CIV/APN/91/82

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

PHOKA
FOSA 1st Applicant

NOOSA
MAHAO 2nd Applicant

THOZAMILE
BOTHA 3rd Applicant

v

RAISAO
NTSIKE 1st Respondent

LINUS
THETSANE 2nd Respondent

THABISO
MOLETSANE 3rd Respondent

MOTSARAPANE
MOLAPO 4th Respondent

SEEPA
NTSANE 5th Respondent

'NYALLENG
MOKOALELI 6th Respondent

MOHAPI
MALEFANE 7th Respondent

PATRICK
MASUIKENI 8th Respondent

PHILLIP
MAPETLA 9th Respondent

COBRI
MASASIRA 10th Respondent

EVODIA
MALEFANE 11th Respondent

ZWELAKHE
MDA 12th Respondent

KARABO
MAHAU 13th Respondent

M.
RANKHELEPE 14th Respondent

N.
LETIMELA 15th Respondent

'MOTA
SEKONYELA 16th Respondent

KUTOANE
KUTOANE 17th Respondent

M. FIEE
18th Respondent

TLOHANG
SEKHAMANE 19th Respondent

N. U. L.
20th Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr. Justice M.P. Mofokeng on the 6th day of May, 1982.

This is
an application, on notice of motion, for an order to hand over to
applicants :

1. All
   the books and documents of the Students' Representative Council of
   the Students' Union of the National University of Lesothot

   
   

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2. the
   keys to the Students' Centre, including those of the Students'
   Tuck-shop and the Bar;

   
   

3. the
   keys to the section of the Netherlands Hall in which musical
   instruments and other property of S.R.C, are kept;

   
   

4. the
   robe of office of the President of the S.R.C.; and

   
   

5. all
   other property and monies controlled by the S.R.C. on behalf of the
   Students' Uninon of the National University of Lesotho
   or in the
   possession of the S.R.C.

   
   

It is
common cause that the applicants and two others were elected members
of the interim students1 Representative Council at a
meeting on the
27th April 1982. It is also common cause that that election resulted
from the adoption of a motion of no confidence
in the then students
Representative Council. After the said elections the

students
body requested the 19th respondent to be present at the handing over
ceremony (in what capacity it is not stated). But
shortly before the
handing over ceremony the 19th respondent was informed that two of
the recently elected members of the students'
Representative Council
(hereinafter referred to as an Interim SRC.) had tendered their
resignations. He then decided to go back
to the students body to
obtain further mandate. A notice to that effect was posted on the
students Union notice Board. Despite
the fact that that was only
matter on the agenda, some of the respondents maintain that they were
elected at such a meeting after
a motion of no confidence was passed
on a day old interim SRC. (This meeting was held on the 29th April
1982).

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It is
obvious that the meeting of the 29th April 1982 was not
constitutional. It is not known in what capacity the 19th respondent

presided over the said meeting. Further it is not alleged that that
meeting had been convened by a proper person. (See Osman v
Jhavarv &
Others. 1939 A.D. 351 at 359). If the 19th respondent was not the
proper person then the convening of the meeting
of the 29th April
1982 by him was improper and consequently, any decision taken thereat
was null and void. Moreover, there is no
allegation on the papers
before me that the agenda had been amended. The only issue to be
discussed was whether the handing over
ceremony should take place in
the absence of two members of the interim SRC due to their
resignations. No other issues were to
be discussed or introduced
until the agenda had been duly amended. Further, it is also doubtful
whether, in fact, the two members
of the interim SRC. had resigned
since the other members had not been notified. There is no averrement
to that effect in the papers
before me.

The main
thrust of the argument for the respondents was that the election of
the applicants was unconstitutional. The respondents
conceded that
their purported election was unconstitutional. The respondents went
even further and conceded that the situation
which faced the students
body was not provided for in the constitution governing their
affairs. The position, therefore, boils
down to the simple fact that
it was agreed that the election of the applicants would be an
emergency measure-temporary in

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nature.
The applicants are merely an interim body. The students body decided,
in their wisdom, to invoke a procedure not provided
for in their
constitution. The interim SRC. (ie. applicants) were merely a
caretaker governing body until a duly elected and constituted

students' Represented Council would be elected. The students body
would decide when that would take place. The students in this

emergency situation took steps to avoid the creation of a vacuum and
I do not think anybody can quarrel with that. However, one
thing is
quite clear and that is that the election of the interim SRC. was not
contrary to the constitution whereas that of the
respondents was null
and void.

In the
result the Court came to the conclusion that the order ought to be
granted and it was accordingly so ordered.

The
handing over of the property mentioned in the order was ordered to
take place at 6 pm. yesterday ie. 5th May 1982.

The
question of costs will be argued on a date to be arranged with the
registrar.

JUDGE.

For the
Applicants : Mr. Sello

For the
Respondents : Mr. Monaphathi