C of A (CIV) 10
IN THE COURT OF APPEAL OF LESOTHO Held at
In the matter between:
NATIONAL UNIVERSITY of Lesotho Students Union
NATIONAL UNIVERSITY OF LESOTHO 1st Respondent
COMMISSIONER OF POLICE 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
Mahomed P. Ackermann J.A. Browde J.A.
JUDGMENT Mahomed P.
The appellant in this matter applied for and obtained
from Cullinan C.J. in the Court a quo an order in the following
"1. That a Rule Nisi do hereby issue calling upon
Respondents to show cause, if any why:-
First Respondent shall not bedirected to
forthwith allow the students of the University to have access
forthwith to their halls of residence. Applicant's
laundry, the library and laboratories in order that students may
prepare for the examinations at the end of the academic
First Respondent shall not bedirected
forthwith to allow thestudents of the University to
havepossession of their personalbelongings:
(c) Directing Second Respondent and/orofficers
subordinate to desistforthwith from expelling studentsfrom
the Roma Campus of theUniversity or in any way interfering
with the students of the University in carrying out
their normal duties and/or functions as students of the University;
(d) Declaring the closure of theUniversity null
(e) Declaring the requirement of Senate and/or Council
that the student Union apologises to the Vice- chancellor,
and/or Council null and void;
(f) Directing First Respondent to treat the petition of
the students as a matter requiring urgent attention.
(g) Directing First Respondent to allow the students if
they so wish, to write the examination at the end of the academic
(h) Directing Respondents herein to pay costs of the
(i) Granting Applicant such further and/or
2. That prayers l(a), (b) and (c) operate with
immediate effect as temporary interdicts."
On the extended return day, Kheola J. who heard the
matter was informed that the second and third respondent were not
matter and abided by the decision of the Court.
The second and third respondents apparently took no
further part in the proceedings thereafter and there was no
appearance on their
behalf on appeal.
The first respondent however, vigorously opposed the
confirmation of the rule which was eventually discharged by Kheola J.
The main argument advanced by Mr. Pheko who
appeared for the appellant was that the decision of the University
close the University was wrongful and unlawful and that
reason paragraphs (c) and (d) of the rule and such
parts of the other sub-paragraphs which follow as a necessary
should have been confirmed. His ancillary
argument was that even if the closure of the University was indeed
lawful, the appellant
was entitled to confirmation of some other
parts of the rule. I shall deal with both these submissions
The Closure of the University
It is common cause that, the University was in fact
closed on the 4th of April 1990, following upon a resolution of its
on the 3rd of April 1990. The formal closure of the
University on the 4th of April 1990 was preceded by the following
1. 15 March 1990
On this day the Vice Chancellor was informed by the
appellant that the students intended to demonstrate on 16 March and
their dissatisfaction" in relation to a
proposed new fee structure.
2. 16 March 1990
The Council of the University approved a new fee
3. 16 March 1990
(a) The student body boycotted their lectures, onthis
(b) The students resolved that 19 March be setaside
as a day for petitioning the Universityin respect of the new fee
4. 19 March 1990
(a) The students again boycotted their lectures.
(b) The Senate of the University met and resolvedthat
students should return to classes by 2.00 p.m., failing which they
should leave Roma campus by 6.00 p.m. on that day.
(c) A petition was presented by the appellant onbehalf
of the students to the secretary of the Council of the University.
The petition protested against the proposed increases in
fees in the following academic year and authorised the Students
Council ("SRC") to prepare a paper to the
University Council in June to enable the Council to reconsider its
Following on this, the Senate of the University passed
a further resolution condemning the boycott of classes and
that the Students Union owed the Senate an apology and
that the Senate expected students to resume classes on Tuesday the
At a general meeting the students resolved to resume
classes on 20 March 1990.
5. 21 March 1990
(a) The SRC of the students wrote to the Chairman of
the University Council communicating a resolution that a meeting of
be held within ten days of the date of the letter, that
is, by 30 March, "to consider the demands in the
petition". The resolution further provided that "if the
not convened within such a period or there is no
indication (response) from the Chairman of Council within such a
time, the SU will
take a definite course of action at the expiration
of the stipulated period".
(A letter from SRC President to the Registrar dated 27
March, reiterated that "the deadline is Friday 30th for meeting
as demanded by the Student Union")
6. 23 March 1990
(a) A meeting of students was held at which it was
resolved, inter alia, "that Council should sit immediately"
the students' petition and "that until Council has
met to consider the petition students at the Roma campus should not
(b) A boycott of classes thereafter commenced, on the
23rd of March notwithstanding the fact that the "deadline"
march previously set had not yet expired.
7. 25 March 1990
The SRC President and a delegation of students met with
the acting Minister of Education, who urged them to persuade students
classes. The students were told that the Government was
considering the matter.
The students and the SRC President stated that they had
no power to order the students to resume classes.
8. 26 March 1990
There was a report back to students at a general
meeting of students on Roma campus. The students resolved to
continue the boycott.
9. 29 March 1990
The letter written by the SRC President to the Council,
in which it was demanded that the petition be considered within ten
was answered to the effect that the students' grievances would
be considered at the next Council meeting in June.
10. 2 April 1990
The Senate of the University met and wasinformed
by the SRC President that the students intended to continue the
boycott of classes.
The Vice Chancellor caused a notice to beplaced on
all notice boards and delivered tothe SRC offices stating that
he would beaddressing the students at 2.30 p.m. that day. He was
to be joined by other members of the Senate.
(c) A students meeting in fact took place at about that
time but the Vice Chancellor was not permitted to address the
students "maintained their stand" and
decided to continue the boycott.
(d) The Senate later met and upon receiving the Vice
Chancellor's report of what had transpired resolved to recommend to
that the University be closed.
11. 3 April 1990
The Council of the University considered the
recommendation of the Senate and resolved, inter alia, that unless
classes unconditionally the next day, and the
Students Union apologized in writing for their disregard for the
authority of the Senate,
Vice Chancellor and the Council, the
University" should close by 12 noon on Wednesday 4th April
1990". It also resolved
to consider the petition on fees at the
next scheduled Council meeting in June, 1990.
12. 4 April 1990
The Vice Chancellor issued a notice addressed to all
students, Deans, Directors of Institutes and Heads of Departments,
University was closed until further notice and that all
academic activities would cease with
immediate effect. All students were required to leave
the University immediately.
Mr. Pheko conceded, as he was obliged to, that
the Students of the University represented by the appellant had
indeed been engaged in a boycott
of classes for a considerable
period, before the University authorities decided to close the
University and that the Council of the
University had the statutory
power in terms of Section 13 of the National University Act No.13 of
1975 to close the University. He
submitted, however, that before
invoking such a power, the University was obliged as a public body to
give to the students adversely
affected by such a decision notice of
such intended action and an opportunity of being heard as to why such
action should not be
taken. In his able and concise argument on
behalf of the first respondent Mr. Marcus rightly conceded the
correctness of these submissions but he contended that the appellant
could not on the facts establish that there
had been a breach of the
audi alteram partem rule.
I am of the view that Mr. Marcus is correct in
this approach. Before the Senate meeting of the 2nd of April 1990,
the Vice Chancellor had clearly sought to avert
the impending crisis
by addressing and talking to the students. He was accompanied by
other members of the Senate. He arrived at the hall
student assembly had gathered to hold a meeting, and
told the Chairperson that what he "intended to communicate to
might be of assistance to them in whatever decisions
they may arrive at". The Chairperson retorted that the
would have to follow the procedure of calling the
meeting through the S.R.C. The Chairperson himself avers that the
asked him "to persuade the students to stop
their meeting to allow (the Vice-Chancellor) to address them".
in fact communicated that request to the students but
they "maintained their stand". In the result the Vice
was simply not allowed to talk to the students and he
reported to the Senate that this seemed to him to "constitute
blow to any efforts at resolving the crisis".
The appellant cannot in these circumstances properly
complain that the University authorities had simply taken a decision
the University, without affording to the students an
opportunity of being heard in this regard. By 2.30 p.m. on the 2nd of
possibility that the University might have to be closed, (in
the face of a continuing and unremitting boycott of classes), must
been present in the minds of everyone in the University
Community. The opportunity to debate this crisis and to find some
which would enable the University to function normally
again, presented itself when the Vice-chancellor sought
to talk to the students. The students elected to deny
In his tenacious address on behalf of the appellant,
Mr. Pheko further contended that what the first respondent had
effectively done was to exclude the students from the University on
of "misconduct" and that such "punishment"
had to be preceded by a proper disciplinary enquiry in terms of its
domestic statutes under Section 36(1) of the National University Act
No.10 of 1976.
In my view, however, this is not a proper
interpretation of what the first respondent had resolved to do. It
never intended and never
purported to find any student or students
guilty of "misconduct" in terms of its domestic statutes.
It never intended to
impose any "sentence" or "punishment"
on any student by excluding, suspending or rusticating such student
the University. It was simply exercising its general statutory
power to close the University temporarily, in circumstances where
very rationale for the effective continuation of the University as a
University was being subverted by a prolonged boycott of
and a rupture of effective discipline and respect for the University
administration in the student body. A properly disciplined
body is perfectly entitled to be critical and even vigorously
critical of the University administration and the
government of the day and to manifest its disagreement
with any of the policies or actions of these bodies by organised
It must, however, maintain at all times that minimum
discipline and respect for the administration and staff of the
is essential for the University to function effectively
as a University and to discharge its statutory duties and functions.
Mr. Pheko also contended that even if the
decision of the first respondent to close the University was in the
circumstances justified in principle,
it was accompanied by other
conditions which were unjustified and which he submitted contaminated
the decision to close the University.
In order to appreciate this
objection it is necessary to refer to the material parts of the
resolution of the 3rd April 1990 which
are in the following terms:
"3.1 that students resume classes unconditionally,
tomorrow, Wednesday 4th April 1990 at 8.00 a.m.;
that the Students Union apologies, in writing, to
the Senate, Vice Chancellor and the Council;
that in the event of the directives outlined in
the paragraphs above is not complied with.
the University should close by 12.00 noon on
Wednesday, 4th April 1990."
The first objection made by Counsel for the appellant
is to the word "unconditionally" in paragraph 3.1. Why,
can the students not have the right to return to
classes under protest or to persist in their insistence that the
proposed new fee
structure should be reviewed? I have no doubt that
the students indeed have such rights. The word "unconditionally"
never intended to detract from the right of the students to
continue their criticism of the University administration, to
such criticism by orderly protest and to insist thai: the
new fee structure should be reviewed; provided, however, that the
revision of the new structure was not imposed by them as a
precondition before they resumed class attendances. The
obligation to resume classes had to be "unconditional" in
that sense only.
Mr. Pheko also attacked paragraph 3.2 of the
resolution which required the Student Union to apologize in writing
to the University Administration.
He submitted that this was a
condition more appropriate to disciplinary proceedings and should not
properly have been combined with
a direction requiring the students
to resume classes the next day.
I think there are two answers to this objection. In the
first place, even if paragraph 3.2 was objectionaly it was both
and grammatically severable from paragraph 3.1 and cannot
on the evidence be said to constitute a material reason for the
of the 3rd of April, (without which it would not have
resolved to close the University if the students did not resume
the 4th of April 1990) (see Patel v Witbank Town
Council 1931 TPD 284 at 290; Jabaar and Another 1958(4) SA
107(T) at 114; WADE: Administrative Law '6th Edition page 442).
Secondly, for the reasons I have previously mentioned,
effective discipline and a basic respect by students for the
and staff of the University are essential for the
University to be able to discharge its functions and duties. The
out in paragraph 3.2 of the resolution of the
University Council, could reasonably have been considered necessary
by it to create
the atmosphere conducive to the discharge of such
The Ancillary Prayers
Counsel for the appellant argued that even if the first
respondent had acted lawfully in causing the University
to be closed, appellant was entitled to have certain other parts of
18 rule nisi
confirmed by the High Court.
In the first place it was contended that that part of
prayer (a) which sought to direct the first respondent to allow
to the applicants offices on the campus was in any
event justified. In my view, however, the applicants activities and
on the campus are related to the presence of students
there. There was no evidence on the record that if the University
lawfully closed, the applicant had any independent
functions to perform on the campus or that it had any right to do so.
Secondly it was submitted that the appellant was
entitled to the relief claimed in paragraph (b) directing the first
allow students of the University to have
possession of their personal belongings". Whilst there is an
allegation in the founding
affidavit that access to the campus for
this purpose was being denied to some students on the 5th of April
and at some time on the
morning of the 6th of March, the Vice
Chancellor says expressly that
"on the morning of the 6th April when it became
apparent that there were some students outside campus
who desired to enter the premises for
the purpose of collecting their belongings, I arranged
for the security staff at the gate to admit such students and a
students were so admitted to collect their belongings."
The Vice Chancellor is supported by Chief Security
Officer Mr. Mohapi who confirms these instructions from the
says that on the 6th of October he spent "the
whole day ferrying students in the 1st respondent's mini-bus
to collect their belongings". Quite
apart from the fact that the Court is entitled to assume the
correctness of the version
of the respondent where there is a
conflict of fact in motion proceedings designed to secure final
relief (see Plascon-Evans Paints v Van Riebeeck Paints
1984(3) SA 623(A)), the evidence does not establish that by the time
the appellants moved the application in the Court a quo on the
April 1990 there was any legitimate basis for believing that any
student who sought to take "possession of (his) personal
belongings" would be obstructed from doing so by the first
Thirdly, it was contended that prayer (g) should have
confirmed. This prayer sought to "direct the first
respondent to allow the students if they so wish, to write the
at the end of the academic year". There is nothing
in the record of the
proceedings, however, which suggests that the first
respondent had resolved to deny to any student the opportunity to
write his "examination
at the end of the academic year", if
such a student
was otherwise qualified and prepared to do so and had
properly requested such an opportunity.
In the result I order that the appeal be dismissed with
costs. Dated at Maseru this 26bh day of July, 1991.
I. MAHOMED PRESIDENT OF THE COURT OF APPEAL
L.W.H. ACKERMANN JUDGE OF APPEAL
J. BROWDE JUDGE OF APPEAL
For the Appellant : Mr. L. Pheko
For the 1st Respondent: Mr. G. Marcus (Instructed by
Mr. K. Sello)
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