C. OF A
(CIV) NO 1/92)

IN THE
LESOTHO COURT OF APPEAL

In the
matter between

MASECHELE
KHAKETLA Appellant

and

IKETSETSENG
PRIVATE SCHOOL Respondent

HELD AT
MASERU

Coram:
Ackermann,

Steyn and

Kotze J.J.A.

JUDGMENT
KOTZe J.A.:-

This
appeal concerns affairs of the Iketsetseng Private School (the
school) situate at plot 153 Cathedral Area, Maseru.

On ,14th
December 1990 MOLAI J. in the High Court granted to the school (as
applicant, now respondent, but to be referred to hereafter
as
applicant) against the appellant (as respondent and to be referred to
as such hereafter) a rule nisi calling upon the respondent
inter alia
to show cause why

1. respondent
   shall not hand over the property of the applicant to Messrs R.V. and
   L. Lechesa - two trustees duly appointed in terms
   of the
   constitution of the applicant;

   
   

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2. respondent
   shall not hand over the management and/or administration of the
   applicant to the executive committee duly appointed
   in terms of the
   constitution of the applicant;

   
   

3. respondent
   shall not desist forthwith from managing and/or administering
   applicant.

   
   

On 10 th
February 199 2 MOLAI J. confirmed the rule and decreed that
respondent pay three quarters of the costs. The respondent
now
appeals against the confirmation of the rule. The present proceeding
is an appeal by the respondent against the order of 10th
February
1992.

The
applicant's founding affidavit is deposed to by T. Kulehile, "in
his capacity as chairman of the executive committee and
governing
body of the applicant and authorised by a resolution of the said
executive committee".

In her
answering affidavit the respondent challenged the legal capacity and
locus standi of the applicant. Before us this issue
was not pursued,
counsel announcing at the outset that the appeal would be confined to
the "central issue" which, as
will appear, falls within a
narrow compass.

The
"central issue" is simply, as the applicant contends and
the respondent denies, whether (1) the management of the
school
resides in an executive committee composed in terms of a constitution
adopted on 6th February 1962 by the governing body

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of the
school and (2) the property of the school is vested in the trustees
mentioned in paragraph (a) of the rule nisi for and on
behalf of the
governing body. The respondent's denial is based on the contention
that there is no proof of the contractual adoption
of the
constitution and consequently that an executive committee or
governing body ever existed. The respondent' s version is that
the
school was, at all material times, run on an ad hoc basis by her and
two other ladies in the capacity of "proprietors
and founders"
of the school.

The
constitution relied on by the applicant is annexed to the founding
affidavit as IPS2. It is headed "IKETSETSENG PRIVATE
SCHOOL
CONSTITUTION as adopted at the Special General Meeting of the
Governing Body held at. the School on February 6, 1962."
Its
provisions inter alia include the following:

1. There
   shall be and is hereby constituted a Governing Body for Iketsetseng
   Private School, the objects of which shall be:

   
   

1. To
   acquire the ownership and control of the undertaking known as
   IKETSETSENG PRIVATE SCHOOL, hitherto conducted on the grounds
   of
   the Basutoland High School, together with all the property and
   assets, movable and immovable, and all its liabilities.

   
   

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2. To
   carry on the said School as a Kindergarten and Primary School for
   the education of children.

   
   

3. For
   the better attainment of the above objects the -Governing Body
   shall have power:

   
   

(i) To purchase, take on lease, or to exchange, hire or otherwise
acquire any movable or immovable property and any rights or
privileges which may be convenient or necessary for the conduct of
the School or the extension thereof; and in particular any land,

buildings, servitudes, furniture or equipment. Any assets so acquired
shall be vested in the two Trustees hereinafter mentioned.

(ii). To borrow, raise and acquire any money or funds necessary as
the Governing Body may think fit, and in particular by way of

overdraft, loan from bankers, or others, or by debentures or by
mortgage or Notarial Bond on any of its property, present or in

future.

(iii) To take any other steps, and to do all other such things as may
be deemed necessary or expedient for the well-being of the
School,

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(iv) To create any Reserve Fund for the furtherence of the objects of
the School, and Bursaries, Scholarships and Prizes for the
benefit of
pupils; and any pension, medical benefit or other funds for the
benefit of servants, staff and employees and to execute
the necessary
deeds in connection therewith.

2. The
   Governing Body shall consist of the parents and guardians of the
   pupils of the School for the time being, who shall, ipso
   facto,
   become members thereof on the acceptance of their children or wards
   as pupils of the School, and shall cease to be members
   thereof on
   their children or wards ceasing to be pupils of the School.

   
   

The Governing Body shall meet at least once annually, and shall elect
a Chairman and two-Vice-Chairmen, an Executive Committee,
and such
other Committees or sub-committees as it may deem necessary for the
maintenance and administration of the School.

3. The
   property of the School, present and future, shall be vested in 2
   (two) Trustees for and on behalf of the Governing Body. They
   shall
   be, ipso facto, members of the Committee, and shall be elected at
   any General Meeting of the Governing Body and shall hold
   office
   until a successor or successors shall have been appointed at another
   General Meeting of the Governing Body. Provided that
   if a Trustee
   dies or resigns in the period

   
   

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intervening
between any two general meetings the Committee may appoint someone to
act in his stead until the next general meeting.

4. On
   behalf of the Governing Body the Management of the School shall be
   vested in the Executive Committee (herein referred to as
   the
   Committee) which shall consist of the Chairman of the Governing
   Body, the Vice-chairman, the Trustees and the Principal of
   the
   School and two members of the Governing Body elected at the Annual
   General meeting. The Governing Body and/or the Committee
   shall have
   the power to elect or co-opt any persons, whether members of the
   Governing Body or not, who, in their opinion, will
   be of assistance
   in furthering the objects of the Governing Body.

   
   

6. The
   Financial Year of the Governing Body shall be from 1st January to
   31st December. Proper books of account and an annual Balance
   Sheet
   and Revenue and Expenditure Account shall be prepared which shall be
   duly audited by someone or more persons appointed
   therefor by the
   Committee, whose fee shall be voted by the Committee. Thereafter
   they shall be presented by the Committee to
   the Annual General
   Meeting of the Governing Body, together with a report by the
   Committee on the work done by it during the year;
   the report shall
   embody a report by the Principal on the work of the School during
   the same period."

   
   

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At the
foot of annexure IPS2 there appears above the signature of the
respondent, as "Managing Secretary", the following:

"I certify that this is a true copy of the constitution of the
Iketsetseng Private School."

Despite
her signed certificate that IPS2 is a true copy of the school's
constitution, respondent denied in her answering affidavit
that it is
the constitution of the school and that any governing body was ever
constituted for the school. She explained that IPS2
was drafted by
the Director of Education but never put into effect. She explains in
her answering affidavit:

"The words appearing at the top of this Annexure namely: 'As
adopted at the Special General Meeting of the Governing Body
held at
the School on February 6, 1962' refer to a meeting of the aforesaid
three of us held in our capacity as proprietors and
founders of the
school. We never formally adopted this document in the manner in
which a constitution has to be adopted. We simply
took note of it and
agreed to submit it to the authorities ... At no time in the history
of the school was there ever constituted
a 'Governing Body' in the
sense contemplated in clause 2 of Annexure 'IPS2' and no such body
ever acquired the ownership and control
of the school as is
contemplated in clause l(a) of the said Annexure. Such acquisition
could only have been obtained from the aforesaid
3 of us founders and
proprietors of the

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school and that, only for value. At no stage did we, the founders and
proprietors of the school, intend to part with the ownership
and
control of the school, least of all without consideration of any kind
as the deponent and his colleagues seem to think can
happen. Without
such acquisition from us there can be no basis, in my respectful
submission, for any claim to ownership of the
school by any person."

Later on,
according to the respondent, the Director allegedly produced a
further draft C annexure A to the answering affidavit)
which, in many
respects corresponds word for word with IPS2. A significant departure
from IPS2, however, -is that clause 3 substitutes
for the figure and
words "2(two) Trustees" the words "three Trustees"
followed by the names of the respondent
and the two other ladies
referred to above. This document bears the same heading and date as
IPS2 but is not certified. The respondent
admits in the answering
affidavit that annexure A was never adopted. Accordingly it has no
bearing on the resolution of the appeal.

Additional
to what is set out above the following are facts which are either
common cause or not in dispute:

1. Over
   the years the respondent had been running the school as if it was
   her personal property.

   
   

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2. During
   the period referred to in the preceding sub-paragraph buildings and
   structures were erected on plot 153. Prior to the allocation
   of the
   plot and erection of the buildings and structures both the land
   allocating authority and the education department made
   it clear that
   such allocation and recognition of the school could not take place
   unless "some type of constitution appertaining"
   to the
   school came into existence- Because of this requirement the Director
   of Education drafted IPS2 as aforesaid. The allocation
   of the plot
   in the name of the school and the said erection ensued.

   
   

3. Site
   153 was registered in the name of the school on 18th November 1969.
   IPS2 was used in support of such registration and a copy
   thereof is
   filed with the Registrar of Deeds together with an affidavit by the
   respondent declaring inter alia that the school
   is the lawful owner
   of the buildings and other improvements "erected with the
   consent of Government" on the site.

   
   

4. On
   1st September 1990 the governing body of the school (consisting of
   the parents and guardians of the pupils of the school) met
   and
   elected a chairman, two vice-chairmen and an executive committee in
   terms of the constitution.

   
   

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5. On
   16th September 1990 the executive committee held its first meeting
   and inter alia resolved that "a letter ... be written
   to the
   respondent asking her to hand over the school property including
   administration/manage­ment and financial reports."

   
   

6. Although
   invited to attend the meetings of 1st and 16th September 1990 the
   respondent failed to do so.

   
   

7. Pursuant
   to the resolution taken at the meeting of 16th September 1990 a
   letter was addressed to and served upon the respondent
   calling upon
   her to "make proper arrangements for the handover of the
   school's property" to Messrs R.V. and L. Lechesa,
   the trustees
   appointed in terms of clause 3 of the constitution and that "the
   management of the school should be handled
   by the executive
   committee in accordance with clause 4 of the constitution."

   
   

8. The
   respondent refuses to give effect to the resolution of the executive
   committee despite a demand so to do formally addressed
   to her by the
   applicant's attorneys.

   
   

It is
apparent from what is set out above that in disclaiming the
applicant's reliance upon IPS2 the respondent sets up a contention
at
complete variance therewith and a denial of its validity and
existence. Moreover her disclaimer is irreconcilable with the
registration of plot 153 in the name of the school

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suppported
by her affidavit affirming the school's ownership. Such an approach
is, in my view, not open to the respondent. It is
common cause that
the respondent has certified in writing that IPS2 is a "true
copy of the constitution" of the school
as adopted by the
governing body. In so doing she made an unequivocal representation of
which the following are integral portions:

1. that
   a governing body (consisting of the parents and guardians of the
   pupils) for the school has been established;

   
   

2. that
   the ownership and control of the school and its property (movable
   and immovable) vests in two trustees on behalf of the
   governing
   body; and

   
   

3. that
   the management of the school vests in the executive committee on
   behalf of the governing body.

   
   

It cannot
be doubted that the said representation was intended to be acted upon
and inevitably that parents and guardians did so
act thereon by
adopting the constitution. The respondent cannot be heard to contend
differently. The very act of such adoption
constitutes a detrimental
alteration of the position of the parents and - guardians. The
respondent's aforesaid representation
and the consequences flowing
therefrom preclude (estop) her from contending that the constitution
which she certified as having
been adopted does not exist as a
binding instrument - cf. Peri-Urban Areas Health Board v. Breet and

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another,
(1958(3) S.A. 783 (T) at 790 and authorities cited therein at
789-791. In my view it matters not whether the constitution
was
adopted during 1962 or during September 1990 and the appeal should
accordingly be dismissed with costs. It is perhaps necessary
to
mention that this judgment does not purport to deal with rights, if
any, which may have accrued to the respondent in running
the school.

The
appeal is dismissed with costs.

G P C KOTZe

Judge of the Lesotho Court of Appeal

I agree.

L W H ACKERMANN

Judge of the Lesotho Court of Appeal

I agree.

J H STEYN

Judge of the Lesotho Court of Appeal