HIGH COURT OF LESOTHO
ENGLISH MEDIUM SCHOOL 1st Applicant
ASSOCIATION OF LESOTHO 2nd Applicant
S. MOKHOTHU 1st Respondent
RANKAE 2nd Respondent
MOKOENA 3rd Respondent
HLATSWAYO 4th Respondent
BANK PLC 5th Respondent
by the Honourable Mr. Justice J.L. Kheola on the 5th day of July,
18th March, 1991 the applicants obtained ex parte a rule nisi calling
upon the respondents to show cause why:-
First, Second, Third and Fourth Respondents shall not be directed to
vacate the school premises of the Thetsane English Medium
situated at the Apostolic Faith Mission site near the National
Teacher's Training College in the Cathedral area of Maseru
Second, Third and Fourth Respondents shall not account to Applicant
for all the monies collected between December 1990
and March 1991.
Bank Account opened with the Standard Bank PLC Maseru (the Fifth
Respondent) shall not be frozen.
Fifth, Second, Third and Fourth Respondents shall not be restrained'
from turning Thetsane English Medium School into a Community
contrary to its Constitution.
First, Second. Third and Fourth Respondents shall not return the
property of Thetsane English Medium School to its proprietor
Christian Association of Lesotho (Second applicant,) and the Board
of the First Applicant (Thetsane English Medium School).
Second, Third and Fourth Respondents shall not pay the costs of this
prayers 1(a), (b). (c). (d) and (e) operate as an interim interdict
pending the finalisation of this application.
respondent has not filed any opposing a papers and it can be inferred
that it will abide by the order of Court. The other
opposing this application but only the first respondent filed an
answering affidavit. On the 19th April, 1991 I
granted an application
that the present application be converted into a trial because I
formed the opinion that there was
a dispute of fact concerning the
ownership of the school and a substantial amount of money in the
fifth respondent. Mr. Hlaoli,
attorney for the respondents, submitted
that the applicant ought to have instituted an action because he must
have foreseen that
there was going to be a serious dispute of fact.
He also submitted that there was no urgency in the matter. I do not
him because there is a large amount of money involved. The
entitled to restrain the respondents from having access to that
money. If he instituted an action it is possible that by the
action is heard the money would have been all withdrawn and used. I
exercised my discretion in terms of Rule 8 (14) of
the High Court
founding and replying affidavit as well as in his oral evidence
Subhuza Sopeng deposed that the Thetsane English Medium School
was founded by himself, Rev. Nthabane and one Venkiah. In this
exercise they were supported by a number of churches including
Methodist Church of Southern Africa, Lesotho Field of Seventh Day
Adventists Church, Apostolic Faith Mission, Anglican Diocess
Lesotho and Assembly of God of Lesotho. The Christian Association of
Lesotho was registered under No. 89/79 in Register of Societies
the Registrar-General on the 8th November, 1989. Its aim was to
foster and to promote educational, social and charitable activities
amongst various religious denominations in Lesotho (See page 71
of the record). Mr. Sopeng deposed that TENS is owned by the
Christian Association of Lesotho (CAL) and refers to the Constitution
of the TEMS in which clause 4 clearly states that the proprietorship
of the school shall be in CAL.
Sopeng deposes that at the present moment TEMS operates at a site of
the Apostolic Faith Mission of Africa (AFM) sub-leased
by the CAL.
The agreement of the sub-lease appears on page 127 of the record. The
sub-lessor is AFM represented by Rev. L.C. Mphosi
and Rev. C.M.
Seutloali. The sub-lessee is CAL represented by R. Venkiah.
Sopeng alleges that the building at which TEMS operates was erected
by CAL. In this regard he refers to the waybill No. 25908
24th January, 1990 issued by Fabricated Steel Manufacturing Co. (PTY)
LTD and addressed to CAL, P.O. Box 714, Maseru
100. Lesotho. These
prefabricated structures were received by the 1st respondent on the
25th January, 1990. A cheque for the amount
of R23, 275-00 was issued
for payment of the prefabricated structures.
founded in July, 1989 and has been recommended for approval or
registration by the Ministry of Education at its 19th, meeting
on the 8th June, 1990. The minutes of that meeting are on page 121 of
the record. Ttem 2.1.5 reads as follows:
"Thetsane English Medium
"The site has already been identified by the Interior and Town
Planning Authorities. The Highlands Authorities and Ministry
Education have to make negotiations for funds and donors to start
buildings so that when the Project takes off the school is
December, 1990 there was a shortage of funds due to failure of
parents to pay over MB 000-00 in school fees. There had also
theft' of M5 800-00 which the police are still investigating.
The respondents and some five people who claimed to represent
parents came to him (Mr. Sopeng) and assured him that they had
and deposited money in Lesotho Bank which is TEMS bank account. He
was asked to sign the cheques so that the teachers
could be paid. Mr.
Sopeng deposes that by this act of coming to him without going
through the Headmaster, he was not aware that
respondents had in fact
taken over the control of the school contrary to the school
constitution. When he tried to resolve the
the respondents and the headmaster, respondents refused to attend the
meetings he had convened. The CAL
had directed that in the interim
the Headmaster Mr. Venkiah should not attend to school business until
the problems of the school
had been solved.
January, 1991 Mr. Sopeng discovered that money was no longer being
deposited in the bank account of the school at Lesotho dank.
result of this he realised that a lot of cash was being kept and used
to pay teachers. The matter was reported to CAL and
deliberations it was decided that a letter be written to the School
Management Committee. It reads as follows:
School Management Committee,
English Medium Scool(TEMS)
of Directors of the Christian Association of Lesotho (CAL) whole
heartedly accepted to intervene when some parents and
members solicited assistance from its President, S. Sopeng, in
December, 1990, to solve certain management problems of
initial steps were taken to defuse the situation, the CAL convened a
meeting with Committee members and Parents' representatives
the school opening date, to attempt to solve all other outstanding
school problems. After our first successful meeting,
meetings were scheduled and unanimously agreed upon on 21.01.91,
31.01.91 and 07.02.91 where CAL officers explained thoroughly
position in relation to the school and produced legal documents.
feels very much concerned about the continued state of insecurity in
the use of money by the Committee on cash basis, and
procedures of management currently being practised in the school.
has furthermore undertaken steps to secure another site for TEMS as
the one we had negotiated with the AFM will not be available
1991. The CAL has also undergone administrative expenses to
safeguard and protect the interests of the School.
of the above, we are advising the TEMS Management Committee
ensure that all school funds are deposited in the TEMS Bank account
and make all expenses by cheque. We do not approve of teachers'
salaries and other expenditures ' being paid in cash.
forward to the CAL a) the 1990 Audit report, and b) submit quarterly
financial statements for 1991.
forward to the CAL all the minutes of the Management Committee and
honour the December 1990 salary of Mr. and Mrs R. Venkiah, as well
as the January and February rent of the house they live
honour the 5% of fees contribution to the CAL to be paid quarterly,
for administrative purposes on behalf of the TEMS, as mentioned
our two previous meetings, Therefore the first contribution is due
immediately and others in 1st April, 1st July and 1st October.
to rely on your cooperation and a swift response to the above
requirements. We also want to commend the Committee for the
done so far.
18th February, 1991 he discovered that the respondents had opened
another bank account with the 5th respondent in the
name of Thetsane
English Medium Community School. Following the opening of this
unauthorised account CAL decided to dismiss
the 1st respondent. He
refused to vacate the school premises and refused to hand over the
school property to the appointee of CAL.
He says that he knows the
TEMS consitution which appears on page 14 of the record. Mr. R.
Venkieh is the founder of the TEMS. He
(Mr. Sopeng) is the
coordinator and Chairman of the Board of Directors. He denies that
the 1st respondent first heard of him when
cheques were to be signed.
He says that on the 6th November, 1989 he introduced the 1st
respondent as one of the signatories of
the TEMS cheques. The letter
of introduction in Annexure "J1" on page 119 of the
record. It is followed by a Lesotho
Bank Form LB56C which appears on
pages 120-21. ON the 9th December, 1990 the 1st respondent. 2nd
respondent and one Miss Moruthoane
came to him and alleged that there
were problems in the school because Mr. Venkiah was refusing to sign
cheques. He signed those
cheques. Early in January, 1991 the
Management Committee informed him that they had dismissed Mr. Venkiah
because he wanted to
dismantle the prefabricated building of the
school. Mr Venkiah made the threat because a group of parents wanted
to change the
school into a community school.
informed that group of parents that the school was owned by CAL. The
parents claimed that the school was owned by a community
Mr. Sopeng admitted that when the school was opened CAL was not yet
affidavit Raiendrah Venkiah deposes that he was the Headmaster of
TEMS. He was the person behind the formation of CAL and
When the management problems of the school arose CAL requested him to
keep away from the school so that it could sort
out those problems.
At that time no one was aware that the respondents intended to seize
the school and alleging it was a community
school. The school was
never a community school. He deposes that the constitution annexed to
1st respondent's answering affidavit
as Annexure 11 on page 35 of the
record which states in clause 3 that the proprietor of the school is
Thetsane English Medium School
(Community), is not the constitution
on which the school was founded. He does not know the author of that
constitution and how
it got to the Ministry of Education. The correct
constitution is Annexure A to Sopeng's affidavit on page 14 of the
states that the proprietor is CAL. He first discovered
in a meeting held in December 1990 that the 1st respondent intended
the school into a community school. Ho was made Headmaster by
CAL and not by a group of parents. Application for permission to open
the school was made even before CAL was registered. He avers that he
got the support of all churches in writing for an
school to be founded by the CAL. Respondents
took advantage of his problems in running the school to seize it
under the guise that
it was a community school.
respondent deposed that the 1st applicant is a community school. Its
proprietor is The Thetsane English Medium School (Community).
constituion is Annexure "KM2" on page 55 of the record
which is dated the 30th January, 1990. The sub-lease between
CAL was fraudulently arranged by Venkiah. That sub-lease has now been
terminated by the landlord. The school is now run
on the same
premises by parents as a community school. He admits that parents
went to Sopeng not that he must intervene but to
sign their cheques
to pay teachers and to remove his signature from the school's bank
account as they were never aware that Venkiah
had made him an
alternative signatory. Sopeng never signed any cheques before and was
only discovered during the crisis of Venkiah's
alternative bank account was opened because Sopeng refused to sign
the cheque nor to remove his signature from
their account which for
the first time they discovered that Venkiah had opened in the . name
of CAL and made Sopeng a signatory
without theirauthorityi. The
respondents have nothing to do with CAL and have never been appointed
by or been responsible to it.
CAL has never attended any of the
parents' meetings nor has it ever demanded any reports from them as
the management committee
appointed by parents.
respondent deposed that the prefabricated structures were ordered by
Venkiah who pointed out that the sellers were not prepared
with an unregistered organisation and an accommodation arrangement
was made that the order should be made in the name of
Annexure "N" on page 132 of the record. That document
that the order was made by Pastor Wentzel of the AFM. He knew Sopeng
as an honorary patron. The coopted him to that position
Mayor of Maseru he would help them get a site for their school. He,
however, noticed when he signed the bank papers
that Sopeng signed as
Chairman, Board of Directors. He thought everything was in order when
Sopeng signed as chairman. 1st respondant
deposes that he never
approved when Mr. Venkiah ordered the prefabricated structures in the
name of CAL as well as when the sub-lease
was made between CAL and
AFM. He associated with the decisions because Mr. Venkiah said that
these things had to be done in the
name of a registered organisation.
He was not aware that by doing all these things Venkiah was turning
the school into the property
evidence of the 2nd respondent confirms what the 1st respondent has
already said. The w school was formed by a number of parents
organised themselves for its formation without the assistance of CAL.
The school management committee appointed by parents
is the supreme
governing body. The management of which she is a member has
practically nothing to do with CAL. The first time she
saw Sopeng was
in November, 1990 when a cheque was lost. She found that Sopeng had
been one of the signatories to their school
account. He was asked to
remove his name from their account but he never did so.
evidence of Mr. Moima is that the application pending before the
District Advisory Committee on Education is that of Thetsane
Community. The constitution which he knew was that appearing on page
55 of the record which was received by his office on the 9th
February, 1990. It is dated the 30th January, 1990. When it was
suggested to him that there was an earlier constitution filed in
office accompanied by a formal application to open TEMS, he said he
was not aware of it because his file was torn and a number
were missing. He was given a chance to go back to his office and make
a proper search. On the following day he brought
appearing on page 14 of the record. The date on the date-stamp is not
clear at all but the number 24 is clear.
The application letter is
dated the 24th May, 1989. It is clear that the application and
the constitution were received on
the same day.
question to be decided by the Court is whether Mr. Sopeng was
authorized by both applicants to institute these proceedings.
11 of the record there is a document termed "Extracts of the
minutes of the Christian Association of Lesotho on 20th
1991 at Morija. Present at that meeting were R. Venkiah, S. Sopeng
and Rev. S.E. Nhtabane. Mr. Soepng was authorized
to make this
application. It seems to me that that authority is good.
second document is also an extract of the minutes of the
extra-ordinary meeting of the Thetsane English Medium School Board
Directors held at Maseru on the 27th February, 1991. The meeting
attended by eleven people representing various churches and CAL. Mr.
Sopeng was authorized to institute this application. Again
to me that the document of page 12 of the record is a proper
authority unless the contrary is proved.
to the first application for the opening of TEMS signed by one
Mahlomelang Lebona the letterheads are Thetsane English
written in capital letters. Under the heading "Applying
Organisation" is written Reverend Daniel Senkhane,
Christian Council of Lesotho, P.O. Box 4190, Maseru. Under the
heading "Executive Organisation" is Mrs. 'Mahlomelang
Lebona, Secretary, Thetsane English Medium School, Project
Association, P.O. Box 714, Maseru. Under "Project Coordinator"
is Mr. Sobhuzo Sopeng, His Worship The Mayor of Maseru, Maseru 100.
shown in detail the letterhead because it is clear that the applicant
was the Christian Council of Lesotho represented by
Sopeng was the project coordinator. The name of CAL does not appear
anywhere in the original application.
15th May, 1990 five representative of the following churches wrote a
letter to the Secretary of the District Advisory Committee
Education supporting the original application: Methodist Church of
Southern Africa, The Apostolic Faith Mission, Lesotho Field
Seventh Day Adventits. The Diocese of Lesotho and Assembly of God of
Lesotho. The letter reads as follows:
Advisory Committee on Education,
undersigned representatives of Churches in Lesotho, referring to a
letter of application dated 12th April, 1989 concerning
mentioned school project
long been informed of its planning
given our wholehearted support for its implementation
understood it as a church school with an interdenominational and
we do hereby
request the District Advisory Committee on Education, and
subsequently the Central Advisory Board, to grant the above
mentioned school project to fall under the status
INTERDENOMINATIONAL instead of any particular denomination
and approve the registration to that effect by the Registrar
General of The Christain Association of Lesotho (under
Reg. N. to follow) to which will be bestowed all duties and
responsibilities of the proprietorship and management.
We hope our request will be favourably considered."
letter of application was apparently not annexed to the record but
handed in from the bar. I have annexed it to the record as
together with its annextures. The minutes of the 18th meeting of the
Maseru District Advisory Committee on Education held
on the 2nd June,
1990 reveal that the applicant
Christian Council of Lesotho (CCL) and that the proposed school shall
be Thetsane when the project takes off. The site had
identified. Constitution of the CCL on schools was needed. The matter
was deferred. The DED was to inspect the site and
give report to DAC.
meeting of the District Advisory Committee on Education was held on
the 8th June, 1990. It was reported that the site had
identified by the Interior and Town Planning Authorities. That the
Highlands Authorities and Ministry of Education
had to make
negotiations for funds and donors to start buildings so that when the
Project takes off the school is ready to start.
no doubt that according to the papers before me the application made
by CCL never referred to the school as a community
school. On page
116 of the record Fika-Le-Mohala was the only school referred to as
the community school. The applicant was the
community. TEMS appears
on page 117. It is not referred to as a community school but as CCL
school. The applicant is CCL. It is
significant that the respondents
have not shown the Court any application they made to the DAC. for
the opening or registration
of a community school named Thetsane
English Medium School. The minutes of the meetings of the DAC. do not
show any application
made by the community for the opening of a
school named Thetsane English Medium School. At the first meeting
Rev. S.E. Nthabane
was present representing CAL. One may ask why CCL
was not represented at the meeting when its own application was
the DAC. The answer is not hard to find. In their
the 15th May, 1989 the churches stated that when CAL is registered
all duties and responsibilities of proprietorship and
shall be bestowed on CAL. It is common cause that CAL was formally
registered under No. 89/79 on the 8th November, 1989
by the Registrar
General. It is argued that there were some irregularities in the
registration of CAL and that the registration
was null and void. The
respondents led no evidence on this point. It seems to me that on the
face of it the registration seems
to be in order.
meeting of the DAC held on the 8th June, 1991 the 1st and 4th
respondents as well as Mr. Venkiah were present. The minutes
previous meeting were read and accepted as a correct record. The 1st
and 4th respondents never raised any objection that
the proprietor of
the school was not CCL but the Thetsane community. They could not
raise such an objection because they were well
aware of the fact that
the proprietor of the TEMS was not the community. The respondents'
allegation that Mr. Venkiah was a dishonest
man who connived with CAL
to steal their school cannot be true. Let us assume for the moment
that because they did not attend the
DAC meeting of the 2nd June,
1990 they were under the impression that Mr. Venkiah made the
application in their favour and that
he stated in the application
that their school was a community school, but at the meeting of the
8th June, 1990 they became aware
that TEMS was not a community school
but they raised no objection. Subsequently they called no meeting of
the parents to inform
them of what they had heard at the meeting of
the DAC. Their lack of reaction seems to confirm that the respondents
knew all along
that the school was not a community school.
also significant that the application to open the TEMS Was made not
by Mr. Venkiah, who is accused dishonesty by the respondents,
one Mrs. Lebona. I am not convinced that Mr. Venkiah was dishonest.
It seams to me that it is the respondents who are dishonest.
constitutions on page 55 is dated the 30th January, 1990 and has no
letter of application accompanying it. They CAL/CCL application
received by Ministry of Education on the 24th May, 1989 and the
letter of application was apparently received on the same day.
Moima as secretary of the DAC is making grievous mistake by saying
the proposed TEMS under consideration by the DAC according
constitution filed with the Ministry of Education is a community
school. The constitution he is referring to is the one
his office on 9th February, 1990. He was unable to explain why he has
ignored the constitution received by his office
on the 24th May. 1989
which was even accompanied by a letter of application. It seems to me
that he must be interdicted from doing
something that is obviously
unfair and unjust. He gave his evidence in a manner which clearly
indicated bias against the applicants.
As I have already indicated
above it seems to me that the parents are the ones who are trying to
capture the school that does not
obviously belong to them. The
constitution which they recently filed with the Ministry of Education
should never have been accepted
because it is being used as a means
of stealing the school belonging to CAL.
observed the 1st respondent as he gave evidence before me and the
impression 1 had of him was that he is a brilliant and
intelligent person. He knew very well that Sopeng was co-opted by
them for the sole purpose of getting a site for their school
he was the Mayor of Maseru. He was not a member of the school!s
management committee. However, on the 6th November, 1989
introduced him as a new signatory into . their school accounts. He
described himself as the Chairman, Board of Directors.
(See page 119
of the record). Even of the bank form (page 120) Sopeng appears as
chairman and as one of the authorised signatories.
The 1st respondent
expects this Court to accept that he took everything to be in order.
I do not accept this explanation because
the 1st respondent and 2nd
respondent said their school had no management board nor a board of
directors. Their supreme governing
body was the management committee
of which Sopeng was not a member. I am of the view that the
respondents knew very well what position
Soepng held at the school.
sublease of the promises where the school is operating is between AFM
and CAL. The respondents know this lease agreement but
nothing wrong with this arrangement because Venkiah explained to them
that because the school had not yet been registered
it could not
enter into that agreement. This explanation is most unconvincing. The
truth of the matter is that the respondents
and the parents knew that
the school is the property of CAL.
good example of how the respondents, especially the 1st respondent,
is Annexure "N" on page 139 in which he (1st
signed the waybill showing that the prefabricated structure: are the
property of CAL. He is obviously not telling the
truth that an
unregistered body cannot order goods in its own name. If Venkiah
that he ought to have realized that the goods mentioned in the
waybill would become the property of CAL. The respondents
parents knew that the school belong to the CAL.
submitted that CAL was not at all involved in the running of the
school because it was not the proprietor. Its members never
all the parents' meetings'which' were convened by the parents on the
2nd November, 1990 and on the 9th December, 1990
(see pages 93 and 78
where the minutes of those meetings appear). I do not attach much
importance to those meetings because they
were held at the time the
parents started rejecting CAL as the owner of the school.
submited on behalf of the respondents that CAL has failed to show
when.' TEMS actually got bestowed on them since they got
I do not think a formal act of bestowal was necessary because in
their letter of the 15th May, 1969 the churches agreed
that when CAL
has been registered all duties and responsibilities of the
proprietorship and management will be bestowed on CAL.
registration CAL assumed its duties as the proprietor of the school.
CCL has never complained that CAL has captured its school.
incorrect that applicants failed to show who the proprietor of TEMS
before CAL was registered. It is very clear from the
papers that CCL
was the proprietor.
submitted that the applicants failed to prove and establish the
connection between the application made by CCL and the school
Management Committee which they dismissed. I am of the opinion that
such a connection has been well proved and
At the meeting of the DAC of the 8th June, 1990 the 1st and 4th
respondents were present and associated themselves
with the events of
the previous meeting. Venkiah and one Mahase were present at that
meeting in which resolution; were taken REGARDING
TEMS. These people
were there to continue the application launched by CCL.
further submitted on behalf of the respondents that Sopeng says that
school buildings were made by CAL but has no receipts
quotation yet Rev. Nthabane, secretary of CAL and permanent member
says there was agreement that Venkiah would advance money
repaid by parents who were not told of this heavy burden.I agree that
Sopeng failed to produce any receipts but there is
a waybill proving
that CAL had paid for the goods. It is common practice in this
country that parents who take their children to
any school pay school
fees. Part of such fees is set aside for new buildings or maintenance
of existing buildings. CAL was entitled
to use part of the school
fees to buy the steel structures referred to earlier in this
judgment. If CAL asked Venkiah to advance
them with some money
towards the buildings of the school, I see nothing wrong with CAL
deducting part of the school fees and repaying
However, there was no reliable evidence before me that Venkiah did in
fact lend TENS that large sum of money.
result the rule is confirmed with costs.
Applicants - Mr Maqutu
Respondents - Mr.Hlaoli.
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