1

C. of A.
(CIV) 33\92

N THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

BERNARD
MOSELANE AND OTHERS Appellant

and

THE MANAGER - BONHOMME COMMERCIAL HIGH SCHOOL First Respondent

THE BOARD OF GOVERNORS - Second Respondent

BONHOMME
COMMERCIAL HIGH SCHOOL

BONHOMME
COMMERCIAL HIGH SCHOOL Third Respondent

HELD AT
MASERU.

Mahomed,P
Ackermann,J.A.
Browde,
J.A.

JUDGMENT

ACKERMANN.
J.A.

The
thirty-six (36) appellants (whose names are fully set forth in the
Notice of Motion which initiated these proceedings in the
High Court)
are the parents and guardians of the children ("appellants'
children") whose names are set forth in Annexure
1 to the Notice
of Motion. During 1991 the appellants' children were all pupils
attending the third respondent school ("the
school"). The
children whose names appear in Annexure 2 to the Notice of Motion
were during 1991 candidates for the Junior

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Certificate
and Cambridge Overseas School Certificate Examinations at the end of
1991 and their names all appear on Annexure 1 as
well. On the 17th or
18th September 1991 appellants' children were all expelled from the
school by orderof the second respondent
("the school board").

On the
14th October 1991 the appellants moved ex parte for an order in the
following terms:

"1.That
a Rule Nisi, returnable on a date and time to be determined by this
honourable Court, be and is hereby issued calling
upon the
Respondents to show cause, if any, why

(a) the periods of notice prescribed by the Rules of Court shall not
be dispensed with on the ground of the urgency of this application;

(b) the purported expulsion from the 3^rd Respondent of the
students\pupils listed in Annexure 1 to this Notice shall not be
declared null and void and set aside;

(c) the Respondents shall not be directed to forthwith permit and
allow the students listed in Annexure 1 to this Notice to resume

classes and take lessons and tests at the 3^rd Respondent;

ALTERNATIVELY

(d) the Respondents shall not be directed to forthwith make available
to the students listed in Annexure 1 to this Notice a 1991
time-table
for the tests and end-of-the year examinations and to permit and
allow the said students to sit for such tests and examinations
at the
3rd Respondent;

IN THE ALTERNATIVE

an order shall not issue declaring that students listed in Annexure 2
to this Notice are the candidates of the 3rd Respondent and
are
entitled to sit for their Junior Certificate and Cambridge Overseas
School Certificate Examinations at the 3^rd Respondent at
their examination centre for

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1991 and directing the respondents to

forthwith make available to the said students a 1991 time-table for
their examinations and to permit and allow them to sit for
such
examinations at the 3rd Respondent;

(e) the Respondents shall not pay the costs of this application

(f) the Applicants shall not be granted such further and\or
alternative relief as this Honourable Court may deem just.

2. That
prayer 1 (a) and (d) operate with immediate effect as an interim
order".

On the
14th October 1991 only a rule in terms of prayer 1 was granted,
returnable on the 17th October 1991, on which date the rule
was
extended and the following interim relief granted:

1. the students listed in Annexure 2 to the Notice of Motion be and
are hereby declared the candidates of the 3rd Respondent and
are
entitled to sit for
their Junior Certificate and Cambridge
Overseas School Certificate Examinations at the 3^rd
Respondent at their examinations centre for 1991
and that the
Respondents be and are hereby directed to forthwith make available to
the said students a 1991 time-table for their
examinations
and to
permit and allow them to sit for such examinations at the 3rd
Respondent.

2. the above order be subject to the conditions that the said
students enter and remain on the Bonhomme High School premises only

while their examinations are in progress".

On the
11th November 1991 Kheola, J. discharged the rule with costs. The
present appeal is against this order.

The
application being one for final relief a Court is entitled to assume
the correctness of averments by an applicant which are
admitted or
not challenged by respondent and the correctness of the version of
the respondent. (Plascon-Evans Paints Ltd. v. Van
Riebeeck Paints
(Pty) Ltd.. 1984 (3) SA 623 (A)).

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One Teba
Ramahapu ( "the headmaster) is the headmaster of the school and
one Mokete Moloko ("Moloko") the headmaster.

On the
5th September 1991 pupils of the school were conveyed by bus to
outhing where they were going to participate in various sporting

activities. Most of the male students travelled on the bus. On the
way to outhing certain of the pupils starting
singing insulting
songs. Moloko instructed the offenders to desist and to change their
songs, which they duly did. At Quthing, Moloko
reported the incident
to the headmaster and was advised that the matter would be attended
to when they returned
to school on Monday, 9th September 1991. On
the 9th September, in the forenoon, the headmaster appointed a
teachers' committee to
enquire into the behaviour of the students on
the bus. It consisted of Moloko as chairman and four other teachers.
At
assembly, apparently later that day, the headmaster informed
the. students of the existence of the committee that had been
appointed
and that it would start its investigations forthwith.
Thereafter the committee convened in the school library and
commenced
its investigations by calling all the male students who had travelled
on the bus to Quthing to assemble. The students
were asked to
identify the names of the ringleaders in connection with the
offensive singing but were apparently reluctant to do
so. Moloko
thereupon instructed the students to return to their classrooms and
informed them that they would be questioned individually.
Moloko
denies that it was ever intimated at this stage that letters would be
written to students sending them
home.

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The first
student to be questioned was the head prefect, one Tunisang Mpata.
After his questioning by the committee he was detailed
to call the
other male students. He could not find them and reported this fact to
the committee, whereupon Moloko and the deputy
headmaster went out in
search of these students. They saw a group of them standing near the
male toilets, which group broke up
on seeing the two teachers, and
started attacking them by throwing stones at them. The respondent's
deponents deny that the teachers
ever threw stones at the pupils.
After the stone throwing had started the male students went on the
rampage; invading classrooms,
chasing teachers from their classrooms
and assaulting them. The attack must have been a frightening one
for
Moloko says that some teachers were lucky to escape with their
lives. The headmaster states that some of the teachers were seriously

injured. As a result of the attack on her Mrs Agnes Mohloki bled
profusely and sustained five head injuries as well
as several
bruises all over her body. She was hospitalised and put under
intensive care for four days. The headmaster was himself
attacked and
fell down, whereupon certain of his assailants continued to assault
him by kicking him. He suffered
two scalp lacerations and various
abrasions on his chest, abdomen and elbow and had to receive medical
attention at the out- patients'
department where, inter alia, his
scalp lacerations were sutured.

After
these violent events, which are referred to in the papers as a
"strike", the school board set up an inquiry at which
it
heard the evidence of several eye witnesses who positively

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identified
the perpetrators of the strike. Some fourteen teachers testified at
this inquiry. None of the students or their parents
ware afforded an
opportunity to participate in or be represented at this inquiry.

The
respondents' deponents deny that all the male students who were on
the Quthing trip took part in the strike. The head prefect,
Tumisang
Mpata, deposes to the fact that he and several other male students
did not take part in the strike.

Prior to
the 17th September the school board must have met, considered and
decided what disciplinary action had to be taken against
offending
students. I say "must have", because their decision was
announced at a parents' meeting on the 17th
September to which
fuller reference will hereinafter be made. It does not emerge
precisely when, between the 10th and the 17^th September
the board met and came to its decision.

From the
affidavit of one of the pupils expelled, a prefect named Thabang
Mochaba, it appears that on the 10th September the police
arrested
all the pupils subsequently expelled (whose names appear in Annexure
1 to the founding affidavit) as well as certain other
pupils listed
on Annexure TM1 to Mochaba's affidavit. In this regard Mochaba
deposed to the following:

"Subsequently those appearing in Annexure 1 appeared before the
Magistrate in Mohale's Hoek on charges of assault and malicious

damage to property while those appearing in Annexure "TM1"
were, after reporting a few
times at the Charge Office, released
and allowed to resume classes at 3rd respondent. Since our arrest

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(i.e. Annexure 1 pupils) we have not been allowed to resume classes".

On the
17th September the parents' meeting was held to which reference has
already been made. Before reporting to the parents on
the events
which had taken place the chairman of the board invited the parents
to inspect the damage which the strikers had
caused to school
property. Thereafter the meeting resumed and the chairman made a
report on the events which had taken place. The
parents' spokesman
admitted liability for the damage and undertook to make good the loss
occasioned to the school and to
pay the medical expenses of the
persons who had sustained injures. The chairman informed the parents
that the Board had already
decided to meet the emergency by expelling
forthwith all the students involved in the strike. The parents of the
expelled
students were informed that the parents could make
representations for the reconsideration of the expulsion of the
children. As
to what precisely was intimated to the parents at the
meeting regarding the reconsideration of the expulsion of
their
children I refer to the following two passages in the headmaster's
affidavit. The first is to the following effect.

"Suffice to state that the chairman informed the parents that
the Board had already decided to meet the emergency by expelling
all
the affected students
forthwith, without prejudice to the said
students and their parents making representations thereafter to the
2nd Respondent and\or
the headmaster" (emphasis added).

The
second passage appears in a paragraph in which the headmaster is
dealing with the submission in paragraph 9 of the affidavit
of the
appellants' main deponent, Bernard Moselane, that the expulsion of
the students was unlawful and should be set aside on

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the
ground, inter alia, that the respondents had not afforded the
expelled pupils or their parents a hearing before the expulsion.
This
second passage can however only relate, to what the chairman of the
board told parents at the meeting on 17th September 1991,
because
there is no suggestion that such information was imparted
to them
at any other time. The passage reads as follows:

"It is significant that parents of expelled students were
informed that they could make representations thereafter and the

Board or the headmaster would review and set aside the expulsion
order if so persuaded" (emphasis added).

On the
18th September the appellants were notified by letters from the board
that the pupils had been expelled. The letters were
signed by the
chairman of the board, the manager of the school and by the
headmaster who signed in his capacity as
secretary of the board.

There is
a dispute of fact on the issue as to whether the question of
expulsion was mentioned at the meeting on the 17^th
September 1991. The appellants' main deponent is emphatic that it was
not, whereas the headmaster (as emerges from the passages
just
quoted) is adamant that the decision to expel was conveyed to parents
at this meeting. Inasmuch as the appellants were seeking
final
relief, the version deposed to by the respondents has to be accepted.

It is
common cause that on the 18th September 1991 a cyclostyled letter was
sent to all the appellants, dated the 18th September

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1991 and
typed on the letterhead of the school. It reads as follows:

"Dear Parent

Your child (the name of the pupil appears in manuscript) smells of
involvement in the disturbances which were made by children
here at
school.

After a lengthy examination of this matter, and serious consideration
of parents views as well as the speakers who spoke at the
meeting of
17-9-91 the Board finds itself bound to inform you to keep your child
so that he no longer comes to this school.

If your child does Form E or Form C, he will not be given a place to
write here.

Yours ..."

The
letter is then signed by the headmaster as "(Headmaster\
Secretary to the Board)", the Rev. Fr.Phatsoane as manager
and
by R.M. Motsamai as chairman of the Board.

On the
8th October 1991 the board reviewed its decision concerning those
students listed on Annexure 2 to the Notice of Motion who
were due to
sit for their Junior Certificate or Cambridge Overseas School
Certificate examinations at the end of
the year. They were allowed
to sit for these examinations, subject to certain conditions, and
their parents informed accordingly
by letter dated the 11th October
1991.

In his
affidavit the headmaster states that

"The applicants know very well that the Board left its doors
open to parents of affected students and their children to make

representations with the view of
persuading it to change its mind.
Several parents have already exercised this right and representations
have

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been made up to date in respect of eighteen (18) affected children, a
few examples are cited below:"

He then
proceeds to deal with the cases of the following nine pupils. Tumelo
Mahe, Peter Ramoshabe, Lira Martintsi, Manti Maputu,
Seabata Mapuru,
Thabang Lebesa, Peter Ntsenoa, Thabo Tota, Mapuru Mapuru. In respect
of all these persons he states
that their parents or guardians
"made representations" on their behalf and that some of the
pupils (Tumelo Mahe, Thabang
Lebesa, Peter Ramoshabe, Lira Martintsi
and Peter Ntsenoa) were also heard. The board declined to change its
mind in respect of
the first five of the abovementioned pupils but
readmitted the last four. Annexed to the headmaster's affidavit is a
letter dated
10 October 1991 which was sent to Thabang Lebatsa's
parent in regard to his readmission. The letter appears to be a
cyclostyled
typed letter because it is addressed to "Dear
Parent" with a blank
space in which the pupil's name is
inserted in manuscript. The first paragraph reads as follows:

"According to your request to the Board and the mercy you prayed
for, the teachers and the Board have agreed that your son
THABANG
LEBETSA may return to School immediately".

The
letter is signed by the headmaster as "HEAD MASTER/SECRETARY".

The first
main submission on behalf of the appellants' was that the decision of
the board was vitiated by the fact that the headmaster
was a member
of the Board which decided to expel the appellants or, at the very
least, was present at its deliberations. The headmaster
had himself
been assaulted in the

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course of
the violent events on the 9th September 1991 and his participation in
the deliberations of the board made him a judge
in his own cause,
contrary to the rules of natural justice. Alternatively, it was
argued, the headmaster by being present at
the deliberations of
the board had, as an interested party, unfairly and improperly
influenced the board in arriving at such conclusion
or at least his
conduct could reasonably give rise to such a suspicion. This ground
of review was not raised in the
founding papers. It was, however,
contended on behalf of the appellants that they could only mount this
attack in the replying affidavit
because they had only become aware
of the fact that the headmaster had been a victim of the attack in
question through the headmaster's
affidavit in the answering papers.
In his affidavit the headmaster states quite clearly that at the
parents' meeting on the 17th
September 1991 he told the parents that
he was one of the three teachers who had been injured in the fracas.
Inasmuch as the appellants
are seeking final relief on the papers
this statement must be accepted as correct. On this basis the
appellants were aware as early
as the 17th September 1991 that the
headmaster himself had been injured, but
notwithstanding this
knowledge did not advance this ground of review in their founding
papers. That being the case, they cannot
be allowed to do so in
reply. In any event the allegations made in reply are bald in the
extreme. The allegation that the headmaster
participated in the
decision of the board is based solely on the fact that the expulsion
letter of the 18th September was signed
by the headmaster as
"(HEADMASTER/SECRETARY TO THE BOARD)". Without any further
supporting allegation it does not following
as a matter of

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inference
that, simply because he was secretary to the board, the headmaster
took part in the deliberations of the board or influenced
them in any
way. This submission can accordingly not be sustained.

It was
also submitted that the appellants' children were discriminated
against and dealt with arbitrarily because the students whose
names
appear on Annexure "TM1", although they had also been
arrested by the police on the 10th September, had not been
expelled
by the school board but allowed to resume their classes at the
school. I fail to see how this fact lends support to a
bare
allegation of bias. The appellants' main deponent himself states that
the students whose names appear on Annexure "TM1"
were
either not charged in the Magistrates' Court or the charges not
proceeded with. This fact, it seems to me, would be a sufficiently

good reason for the school board not to take steps against such
pupils. The board could well have thought that there was little
point
in taking steps against pupils whom the prosecuting authorities were
disinclined to prosecute, presumably because of a lack
of evidence
against them. In the absence of any further evidence from the
appellants suggesting that the decision to expel certain
pupils was
arbitrary or inconsistently selective, this fact alone does not
support a finding that the school board has acted improperly
by only
expelling the pupils they did expel.

The most
substantial argument advanced on the appellants' behalf was that
neither the appellants not their children were given a

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proper
hearing before the pupils were expelled. It is common cause that at
the enquiry held by the school board only the evidence
was heard of
eye witnesses who could identify the perpetrators of the strike. No
opportunity was afforded to the appellants or
their children to
cross-examine or confront such identifying witnesses nor to present
their own case before the persons conducting
the enquiry. This
argument was countered on the respondents' behalf by the submission
that as a result of the violence perpetrated
by the pupils on the 9th
September against the staff and school property an emergency of such
seriousness had arisen that it was
not possible to conduct full
enquiry, and in particular not possible to hear the side of the
appellants' children, before expelling
them. All the appellants had
been afforded an opportunity to make representations to the school
board after their children's expulsion
and had been informed that the
board would review and set aside an expulsion order if so persuaded.
Certain parents of expelled
pupils did make such representations
which were duly considered by the board and in certain cases the
expulsion orders set aside.
This, it was submitted, afforded a proper
hearing to all the appellants and their children in the light of the
prevailing emergency.

It was
common cause that, in the present case, the audi alteram partem rule
would normally be applicable. In this regard the decisions
in Lunt V.
University of ape__Town__and__Another 1989(2)SA438(C) at 449F,
Gui-Os V, School Principal. Cornelius Goreseb High School
1990(3)SA
536(SWA) and Administrator, Transvaal V. Zenzile 1991(1) SA21(A) are
to be preferred to that

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"in
Sibanyoni and Others V. University of Fort Hare 1985(1)SA19(CK). That
this is the correct approach follows from decisions
in this Court
such as Lemana and Others V. Nurcombe N. O. and Another C. of A.
(CIV) No. 12 of 1984 (unreported).

There is
authority for the view, however, that, in exceptional circumstances,
the rules of natural justice and in particular the
audi alteram
partem rule will be complied with if the hearing is afforded after
the adverse decision and action have been taken.
That such
exceptions are to be narrowly applied flows from the importance
attaching to the audi alteram part-am rule and the specific
dangers
inherent in a hearing being afforded only after the adverse decision
has been taken.

Baxter,
Administrative Law. 587, gives expression as follows to the
well-grounded apprehension in this regard:

"Once a decision has been reached in violation of natural
justice, and even if it has not yet been put into effect, a
subsequent
hearing will be no real
substitute: one has then to do
more than merely present one's case and refute the opposing case –
one also has to convince
the decision-maker that he was
wrong. In
a sense the decision-maker is already prejudiced. As a general
principle, therefore, failure to observe natural justice
before the
decision is taken will lead to invalidity".

That this
is indeed the general approach is borne out, for example, by the
following dictum of Centlivres, C. J. in R. v. Ngwevela
1954(1)SA
123(A) at 131F-132A.

"I have not overlooked the statement made by LORD PARMOOR in De
Verteuil V. Knaggs. 1918 A. C. 557 at pp. 560-1, to the effect
that
there may be special circumstances which would justify a public
official,

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acting in
good faith, to take action, even if he did not give an opportunity to
the person affected to make any relevant statement
or to correct or
controvert any
relevant statement brought forward to his
prejudice. 'For instance', added the learned Lord, 'a decision may
have to be given on
an emergency, when promptitude is
of great
importance; or there might be obstructive conduct on the part of the
person affected'. See also the passage quoted from
Bechler's case
above. It was not contended by the Crown that there was an emergency
in the present case nor is there any evidence
on the record to that
effect. Furthermore, there is nothing
to show that the appellant
adopted an obstructive attitude. I respectfully agree with STRATFORD
A. C. J., as to the importance of
the maxim audi alteram partem.
The
maxim should be enforced unless it is clear that Parliament has
expressly or by necessary implication enacted that it should
not
apply or that there are exceptional circumstances which would justify
the Court's not giving effect to it.

In De
Verteuil V. Knaggs. supra, the Governor first made an order ex parte
and only after that was done didhe give the person concerned
an
opportunity of making
an answer to the case against him and the
Privy Council held that was sufficient. A similar view was taken in
Attorney-General V.
Hooper, 1893(3) Ch. 483, and in the
cases
quoted in the judgment in that case. Those cases differ from the
present case in that in those cases the orders issued did
not have
immediate effect whereas the
notice issued in the present case did
have that effect".

In
Attorney-General. Eastern Cape V. Blom and Others 1988(4) SA 645(A)
at 668 E Corbett, J. A. described the danger in question
in the
following terms:

"....... (A) right to be heard after the event, when a decision
has been taken, is no adequate substitute for a right to be
heard
before the decision is taken.
There is, as van Winsen J pointed
out in Davies and Others V. Administrator, Cane Province, and Another
1973(3) SA 804(C) at 809B,
a 'natural human inclination to adhere to
a decision once taken'".

In
Administrator. Transvaal and Others V. Traub and Others 1989(4)SA
731(A) at 750 C-E, Corbett C. J. stressed the importance of
the
general rule that the hearing be given before the decision is taken
and said the following: