HIGH COURT OF LESOTHO
MOSELANE AND THIRTY FIVE OTHERS Applicant
MANAGER -BONHOMME COMMERCIAL
SCHOOL 1st Respondent
SCHOOL 2nd Respondent
COMMERCIAL HIGH SCHOOL 3rd Respondent
by the Honourable Mr. Justice J.L. Kheola on the 11th day of
an application for an order declaring that the purported expulsion of
certain students from the third respondent is null
and void. The said
students were expelled on the 18th September, 1991 for allegedly
being involved in a violent strike which took
place at the third
respondent on the 9th September, 1991. The applicants are the parents
of some of the students who were expelled
following the strike.
common cause that some time at the beginning of September, 1991 the
students of the third respondent took a trip to
in order to participate in various sporting activities. The students
travelled to Quthing by bus accompanied by their teachers
in the same
bus. On the way the male students started singing insulting songs.
9th September, 1991 the Headmaster of the third respondent convened a
meeting of all students at. which he reprimanded all
the students who
sang insulting songs en their trip to Quthing. The Headmaster avers
that he informed the students that he had
set up a committee of
teachers under the chairmanship of Mr. Mokete Moloko , the
sportmaster, to investigate the unbecoming behaviour
of the male
students who travelled to Quthing in a bus, so that appropriate
disciplinary action could be taken against them. After
he had spoken,
he gave the Sportmaster a chance to address the assembly. After that
he dismissed the parade\meeting.
Moloko confirms that the Headmaster told the students that a
committee of inquiry had been set up. The applicants deny this
allegation and depose that after the Headmaster had reprimanded the
male students for their unbecoming behaviour in the bus the
was dismissed and no mention was made by the Headmaster of the
setting up of a commission of inquiry. Mr. Moloko further
that the committee convened at the library and caused all the male
students who had travelled to Quthing by bus to assemble
upshot of the matter is that the students were wary to reveal the
identities of the ring leaders. As a result he (Mr. Moloko)
that the boys should go to their classrooms as he would then question
them one by one. He went out of the library in search
of the boys
with the Deputy Headmaster. The boys suddenly started throwing stones
common cause that the boys then went on the rampage and destroyed
school property and seriously injured some of the teachers.
applicants' version is that when the teachers came out of the library
they started throwing stones at the students and the
themselves by throwing stones at the teachers. The Court is entitled
to assume the correctness of the version of
the respondents where
there is a conflict of fact in motion proceedings designed to secure
final relief (Natioaal University of
Lesotho Students Union v.
National University of Lesotho and others, C. of A. (CIV) 10 of 1990
(unreported). In any case it is
inconceivable how two or even eight
teachers could fight a group of more than seventy male students.
common cause that on the 17th September, 1991 a parents' meeting was
held at the school. However, the parties do not agree
as to what was
discussed at that meeting. In his opposing affidavit Mr. Ramahapu,
the Headmaster, avers that the parents were
to inspect the damaged buildings before the reports could be made in
order to accord them with a graphic facility of appreciating
reports. He avers that the chairman informed the parents that the
Board had already decided to meet the emergency by expelling
affected students forthwith, without prejudice to the said students
and their parents making representations thereafter
to the second
respondent and\or to the Headmaster. The respondents categorically
deny that the chairman made such an invitation
to the students or the
respondents have admitted that they expelled the students before
giving them a hearing. They aver that there was an emergency
met and it was necessary to take immediate action. Teachers had been
assaulted and the property of the school had been damaged.
violent strike the teachers were still afraid to return to work
because the safety of their lives was not guaranteed.
the feeling the teachers had about the safety of their lives was not
unreasonable. The students had run amok and had thrown
stones at the
teachers and injured a number of them. One lady teacher was so
seriously injured that she had to remain in the intensive
of the hospital for a number of days. The behaviour of the students
was grossly outrageous. These same
had sung insulting songs in the bus, completely ignoring the presence
of their teachers. Their actions speak volumes as
to the type of
people the teachers were facing. It is naive to suggest that this
type of students were attacked by the teachers
and only reacted in
self-defence. If they were defending themselves one wonders why they
damaged school property. I am not convinced
that they were acting in
Mafisa, attorney for the application submitted that the Board, having
admittedly denied the boys a hearing, acted to the detriment
decision because on authority it is null and void. However detestable
the behaviour of the boys, given their relationship
with the Board,
and whatever their status or social standing, they were entitled to
be heard in their defence before the punishment
was imposed. He
further submitted that the rules of fairness as anchored in the rules
of natural justice know no bounds, no colour
or status. In the
absence of statute which excludes the operation of audi alteram
partern rule this Court cannot place any limitation
application of this rule in the present case. To do so the Court
should have better reasons than that the people involved
children who need to be disciplined.
William Lemena and others v. I. Nurcombe and another, C. of
A. (CIV) no.12 of 1984 (unreported) Wentzel, J.A. said:
"What is natural justice? It is the simple ruleof fair play,
broadly it implies a due enquiry withnotice given of the complaint
being investigated witha decision honestly arrived at after fairly
considering all the relevant facts and especially the response
person accused to the allegations of those who accuse him, (Lesson vs
General Medical Council (1889)43 C.L.D. 366 C.A.).
No hard and fast rules can be laid down. The requirement is judged in
the circumstances of a particular case bearing in mind the
the enquiry, the subject matter that is being dealt with and so
At page 7 the learned Judge of Appeal said:
"There was an emergency to be met. The headmaster rightly felt
that all semblance of discipline would have been lost if he
acted. The boys were simply not entitled to expect a full scale
hearing in the formal sense, and in the atmosphere that
prevailed to be wary of revealing the identities of those who
implicated others is quite understandable.
I have said that to expel or even to suspend a child is a serious
matter: It may gravely affect the child's future, I have that
consideration very much in mind in considering this matter. It must,
however, be appreciated that the person with the power to
the duty to exercise it is the headmaster. The Court will only act to
interfere with his decision in a case in which
decision cannot stand because he has been manifestly unfair in
failing or refusing to hear the scholars answer
to the complaint
against him. That simply did not happen in this case."
In Everett v. Minister of Interior, 1981 (2) S.A. 453 (C.P.D.) at p.
458 D - E Fagan, J. said:
"The more usual application of the rule in quasi-judicial
decisions is for a hearing to take place, or representations to
received prior to the decision being arrived at. But that is not
always the position. Where expedition is required, it might
necessary not to give the affected person the opportunity of
presenting his case prior to the decision, but only after. He thus
obtain the opportunity of persuading the official to change his
already found that there was an emergency at the school and that
emergency was created by the students themselves. Mr. Mafisa
submitted that there was no longer any emergency on the 18th
September, 1991 when the respondents expelled the students. The
had actually brought the situation under control by arresting
some of the students.
evidence by the teachers is that despite the detention of some
students the situation at the school was still very tense and
feared for their lives. In fact some of them refused to return to the
school unless drastic action was taken against the students.
paragraph 11.1.1 of the opposing affidavit; paragraph 7 of Mr.
Moloko's supporting affidavit; paragraph 4.2 of Mr. Moriana's
to me that the mere fact that some students were arrested by the
police and detained for some time does not necessarily
mean that the
state of emergency had ended. The real
in the riot were apparently not all arrested. In fact some students
were released by the police and admitted by the respondents
their investigations did not implicate them in the strike. The
respondents made their own investigations and relied on
of their own witnesses. All their witnesses are teachers who were
assaulted by the students in various ways.They know
students and saw them during the attack. What is even more confusing
is that none of the students who have been expelled
has filed an
affidavit denying his participation in the fight against the
teachers. The two students, Thabang Mochaba and Reentseng
Machachamise who have filed affidavits, do not deny their involvement
in the fight. Their version is that they were defending themselves.
find their story to be far-fetched and I reject it.
submitted that even the so-called eye witnesses merely state that
they identified the perpetrators but fail to name even
one of them.
If any of these boys had been identified as alleged it would have
been the easiest thing under the sun to name them.
of identification in matters such as this do not help the Court at
all. From such statements the Court is perfectly
entitled to come to
the conclusion that there was no identification at all. I entirely
agree with the submission but have to qualify
it by saying that all
the students concerned do not
they took part in the violent strike. They have not filed any
affidavits. It seems to me that the chairman of the commission
inquiry recorded the names as each witness was giving evidence and
then the culprits were found.
Mafisa submitted that by discriminating the applicants' sons the
respondents acted unfairly and without good faith. It is a
established principle that like cases should be treated alike. He
submitted that the students whose names appear in Annexure
were arrested and had to report to the police for some days before
they were allowed to resume classes even before
the criminal case was
heard. But the students whose names appear in Annexure "1"
have not been allowed to resume classes
and have been expelled.
to me that Mr. Mafisa is under the mistaken belief that the
respondents acted in accordance with the police findings. That
the impression I had from the evidence before Court. The respondents
made their own investigations and established the identity
culprits. I am of the view that there was no discrimination against
the sons of the applicants who were apparently implicated
witnesses who gave evidence before the Board.
Mafisa submitted that the Board was, on the undisputed
improperly constituted because the Headmaster, a complainant in a
case of assault, participated in the decision-making process.
with a basic understanding of what is fair would undoubtedly suspect
bias. Clearly he acted in more than one capacity in
a matter in which
he had a lot of interest and in which he could very easily influence
the Board's decision. He submitted that
the participation of the
Headmaster in this manner renders the Board's decision a nullity. I
have read all the affidavits in this
matter and have found no
conclusive evidence that the Headmaster participated in the
decision-making process of the Board. Mr.
Mafisa relies on the letter
of expulsion (Annexure "BM1" to the founding affidavit). It
is signed by the Headmaster as
the Secretary to the Board, by the
Manager and the Chairman of the Board. Surely, the letter of
expulsion is not the minutes of
the Board which show clearly what
transpired in the meeting. As Secretary of the Board, the Headmaster
was probably instructed
to write the letter and signed it. There is
no evidence that as the Secretary of the Board, the Headmster takes
part in the deliberations.
paragraph 6 of the applicants' replying affidavit the deponent avers
that the Headmaster as the complainant should not have sat
Board when it considered the fate of the applicants' children. This
important issue is raised for the first
the replying affidavit when the respondents have no chance to deal
with it. In any case the deponent does not say he attended
meeting or was present within the premises when the meeting was going
on and saw that the Headmaster participated in the deliberations.
a serious dispute of fact whether at the meeting of the 17th
September, 1991 the parents were informed that after the expulsion
the students the door will be left open for them to make
representations in order to persuade the respondents to change their
decision to expel the students. This being an application for a final
relief the Court is entitled to assume the correctness of
of the respondent (Plaacon-Evans Paints v. Van Riebeeck Paints, 1984
(3) S.A. 623).
I find that the audi alteram partem rule applies to the present case.
However, the respondents found themselves in a state
of emergency and
had to act in an expeditious manner. They gave the parents and
students to make representations after the expulsions
and in the
circumstances of this case I am of the opinion that this act of the
respondents was a full compliance with the audi
alterant partem rule.
In fact some parents took advantage of the respondents' offer and
made such representations.
William Lemena's case (supra) Wentzel, J.A. said:
"These are all appealing considerations but I remind myself that
this Court is not the decision-maker nor yet is it the principal
the Lesotho High School. The consideration I must apply is not what
the Court might or might not have done had it had that
responsibility. The question is whether it has been shown that the
1st Respondent acted in a manner which calls for us to intervene."
the same principle must apply in the present case.
result the rule is discharged with costs.
Applicants - Mr. Mafisa
Respondents - Mr. Mda.
Appeal of :
by the Hon. Mr. Justice M.L Lehohta on the 11th day of November, 1991
September, 1991 this Court said that Judgment would be delivered on
11th November, 1991.
reasons far that Judgment follow.
appellant pleaded not guilty to the main and alternative charges.
convicted by the Court below in the main charge of the crime of Rape
allegedly committed on his 14 year old daughter on or
August 1988 at or near Mazenod in the Maseru district. The Court
below returned no verdict in respect of the alternative
Since the appellant had pleaded to that charge it would not be wrong
to infer that the Magistrate meant to discharge him
in respect of the
crime of incest preferred in the alternative charge.
complainant Palesa Thaane PW1 testified before the Court below that
she resides at Ha Majane 1n the Maseru district. She told
that at the time of hearing this matter at trial she was aged 15 and
attending school at Paul VI. The accused is her
day of the incident i.e. 28 August 1988 she had come back from
Matelile where she had gone to see her mother who is a police-woman
stationed and staying at Matelile Police Station.
arrival back home she performed the usual domestic chores- Thereafter
she proceeded to(the sitting room where she was watching
of the bedrooms in
where she and the younger sister 'Matsepo aged 10. went to sleep.
appellant taxed PW1 about a man Mahalefele whom PW1 had seen talk
with her mother in the morning at Matelile. Thereafter he
sleep. It was a rainy night and electricity had failed. Five minutes
after the ordeal concerning Mahalefele the appellant
came back to the
room where PW1 and her sister PW2 'MatSepo were sleeping and ordered
PW1 to come and massage him. PW1 was rather
bewildered how she was
expected to do this in darkness. Sensing the appellant's disapproval
of her bewilderment PW1 woke up drew
water and proceeded to the
appellant's dark bedroom and massaged his weary muscles. After PW1
had finished this task she resume
her sleep next to 'Matsepo in the
Two or so
minutes later the appellant armed with a sjambok came to this sitting
room and challenged "PW1 with having soured
him and the Majalles,
a neighbouring couple. PW1 through 'Matlepo's advice went to the
appellant's bedroom to ask for forgiveness, after the
left the sitting room. PW1 in the company of 'MatSepo asked for
forgiveness but the appellant grunted his discontent.
It is not clear
at what stage 'MatSepo who had accompanied PW1 only as far as the
appellant's door had betaken herself from the
scene but, the
appellant apparently emboldened by PW1's disacivantaged position of a
begger for forgiveness, the timidity of her
disposition and the
darkness in the appellant's bedroom made a relentless utterance
in complete disregard of his daughter's
supplication and told her
that he would only forgive her 1f she sincerely asked for
forgiveness. Saying this he grabbed hold of
PW1's hand, pulled her to
his bed and having overpowered her he sexually forced himself on her.
'MatSepo supported PW1's version about persuading the former to go
and apologise to the appellant concerning whatever wrong.
testified that on coming back from the appellant PW1 gave her a
report. It is a matter of great significance that around
of the incident relations between the appellant and his wife
'Mapalesa PW3 the police-woman were not harmonious at all.
apparent that either of the parents was using his or her influence to
settle old scores with the other. But PW2 having
cross-examination PW3 had told her that she hated the appellant and
asked her to make known that the appellant had raped
PW1, she did
under re-examination tell the Court below that even though her mother
said she should tell this incident about her
father the incident had
nonetheless occurred as a matter of fact and that her mother had not
asked her to so tell before its occurrence.
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