HIGH COURT OF LESOTHO
matter of :
UNIVERSITY OF LESOTHO Respondent
by the Hon Acting Mr, Justice J.L. Kheola on the 30th of September.
an application for an order in the following terms:-
Directing the Respondent to take into account the final marks
obtained by the applicant in L304-8 (Criminal Procedure) towards
applicant's final assessment for the requirement of L L.B. Degree.
Respondent to consider and/or publish the applicant's final marks
inthe supplementary examinations on L507-4
Accounts) and L606-4 (Interpretation of Statutes) towards the
applicant's final assessment for the requirements
of L L.B. Degree.
complied with rules 1(a) and (b), directing the Respondent to
publish and/or communicate to the Applicant in relation
satisfaction of the requirements of I L.B. Degree.
Respondent to pay coats of the suit in the event of opposition.
common cause that the applicant sat for his final examinations for
the L.L.B. Degree in May, 1983. He obtained an "E"
courses namely L304-8 (Criminal Procedure), L507-4 (Bookkeeping and
Accounts for Legal Practitioners) and L606-4 (Interpretation
Statutes and Documents). These grades were awarded by the internal
examiner, Mr. Mphutlane and were subsequently submitted to
external examiner, Professor Austin, who reviewed them and confirmed
them before making a recommendation to the Faculty of
internal examiner has no power or authority to review grades which
have been awarded by the external examiner.
results went to the University Senate which confirmed the grades and
ruled that the applicant had failed and that he would have
all the courses tor the relevant year of study. The applicant was not
happy with this decision and appealed to the S
Committee to review the grades awarded to him on the grounds that
Just before the examinations he had witnessed
an accident which
adversely affected his studies and performance during the
examinations. His appeal was duly considered but rejected.
22nd July, 1983 Mr. Mphutlane wrote a letter to Mr. K, Maope who was
then the Acting Dean of the Faculty of Law. The letter
Faculty of Law,
: MR, LESUTHU
Lesuthu has brought to my attention the fact that assessment for MOOT
Court participation was not included in his Course Work
Mark I have
checked the Moot Court participation results and when included in
Course Work assessment his Course Work Mark changes
to 85%. The
result is that he obtains 54% in final examination made up of: Course
Work 28 + Final External mark 26.
FROM : S.
TO : MR.
to this letter Mr. Maope wrote a letter to the Assistant Registrar
(Academic) which reads as follows:
Assistant Registrar (Academic) 22-7-83
enclosing a copy of a report to me from Mr. Mphutlane, a law lecturer
concerning the computation of Mr. Lesuthu's final marks
in the May
examination. This matter has to be settled by the Senate on the
recommendations of the Law Faculty, and that process
has yet to take
place. But on behalf of the Law Faculty and without prejudice to the
final outcome of the matter Mr. Lesuthu may
for supplementary exams in L507 and L606.
strength of Mr, Maope's letter the Assistant Registrar (Academic)
permitted the applicant to sit for a supplementary examination.
his opposing affidavit Mr. Maope states that he showed the applicant
this letter and made it clear to him that the decision
of the Senate
would be final. Applicant accepted it as such. He says that he
allowed the applicant to sit for the supplementary
examinations so as
to avoid prejudice to the applicant in the event of the Senate
accepting what Mr. Mphutlane had suggested, i.e.
that Moot Court
participation marks should be included in the applicant's Course Work
11th August, 1983 the matter was
by the Faculty Board which noted the following disturbing factors
relating to applicant's results:
on applicant's complaint relating to Moot Court participation, Mr,
Mphutlane had awarded him an additional 11 marks which
mark to 54% thereby giving him a pass in Course L304.
was the only student who had been given a grade for Moot Court
participation when Course Work Marks were computed.
result of these findings the Faculty Board reaffirmed its earlier
decision that the applicant had failed and had to repeat
year. On the 22nd August, 1983 the Senate confirmed the Faculty
founding affidavit the applicant says that he was informed by the
Tutor of the Faculty of
the Respondent's Senate Executive has disregarded his final grade in
the said L304-8 Course as made by Mr, Mphutlane, and
has as a result
disregarded his supplementary examination grades in the said two
courses. He further says that Mr. Mphutlane was
not making a
suggestion but was bringing to the attention of the Faculty the error
he had made unintentionally by ommitting to
include the marks for
participation in the Moot Court.
important document in these proceedings is Mr, Maope's letter to the
Assistant Registrar and what interpretation one puts
to it. My
interpretation of this letter is that Mr. Maope did not want to
commit himself whether or not Mr. Mphutlane's computation
applicant's narks by including marks for participation in the Moot
Court was right. He made it quite clear that the decision
matter lay with the Senate on the recommendations of the Law Faculty.
He merely allowed the applicant to sit for the supplementary
examination to avoid prejudice to him (applicant) in the event of the
Senate accepting what Mr. Mphutlane had suggested. The applicant
that Mr, Mphutlane was not making any suggestion but telling the
Faculty a mistake he had made. I do not agree with that suggestion
because the Faculty Board found that the applicant was the only
student who had been awarded marks for Moot Court participation
Course Work marks were computed and that participants in Moot Courts
have never been awarded any marks. If the applicant contends
practice of the University has been to award marks for such
participation he had to file an affidavit by Mr. Mphutlane
the allegation that marks are never awarded for participation in the
Moot Courts. Mr. Pheko, who appeared for the applicant,
that Mr. Mphutlane
seriously ill in hospital and was not in a position to make an
affidavit. Be that as it may the allegations that the applicant
the only student awarded marks for participation in the Moot Court
end that marks are never awarded for such participation
true that according to the Regulations of the University of Lesotho
the Course Criminal Procedure includes Moot Courts. (See
University of Lesotho Calendar 1982-83 page 106). But that does not
necessarily mean that the University is bound
to take into account
the marks for participation in the Moot Courts,
computation of the examination is such an internal natter to the
University that I do not think this Court has the power to
University how to go about it. In CIV/APN/82/82 Selina Kena v
National University of Lesotho and another (unreported)
it was held
that as a matter of broad public policy the Court could not interfere
in a matter of that nature. The applicant had
been ordered to vacate
a room which had been allocated to her. He had been given a proper
hearing and there was nothing to show
bad faith on the part of the
Dean. In the present case the applicant never appealed to the Senate
but decided to come to this Court.
And he does not clam that in their
decision that he had failed the Senate violated any rules of natural
Justice. He is merely asking
this Court to order the respondent
to conduct its examinations in a manner that has never been done
'Maseabata Ramafole v National University of Lesotho and others
1980(2) L.L.R. 412 the applicant had actually passed her examinations
but for a certain breach of discipline she was rusticated from the
University and her examination results were withheld for a period
months. In granting the application Cotran, C.J. said :
"I have been asked to make an 'order that the date of Miss
Ramafole's examination results be made "retrospective"
thai she can be "deemed" to have graduated, if she had
passed, on the 27th September, 1980. I am not sure I have such
powers. The conferring of degrees is a matter of the Senate and is
not fortunately a judicial function, not yet any way. I can
order that her examination results be now published. If she had
passed and Senate is disposed to give her a degree it can
be sent by
post. If she wants glory she may have to wait for the next ceremony
present application the applicant is not asking this Court to order
the respondent to release his examination results, but
he is asking
this Court to order the Senate to conduct its examinations in a
certain manner. I think that is not a matter for the
Courts of law
but for the Senate to decide how it is going to conduct its
examinations in order to confer its degrees on the people
well qualified for that honour. The Senate has decided that the
applicant has failed his courses and has to repeat the
The applicant prays this Court to make an order to estop the
respondent from disregarding "his final grade in
was given by Mr. Mphutlane". This grade can never be described
as "a final grade"because it was never
confirmed by the external examiner. The applicant seems to make much
of the fact that he was allowed to sit for the
examination by Mr. Maope because he qualified under rule 16.19 which
reads as follows.
student who achieves a final grade of E for a Law course may be
allowed to write a supplementary examination.
student shall not be allowed to supplement more than two law courses
In any one year."
I do not
agree with the applicant that when he sat for the supplementary
examination it was because the Senate had already confirmed
that was given to him by Mr. Mphutlane. He was allowed to sit for the
supplement?ry examination so that in case the Senate
Mr. Mphutlane had done he should not be prejudiced. The applicant
must have understood clearly that his supplementary
results could be released on condition that the Senate approved or
confirmed the grade given to him by Mr. Mphutlane.
never materialised because the Senate rejected it and the whole
exercise of sitting for a supplementary examination
became a nullity.
The applicant willingly took the risk of sitting for the
supplementary examination before the matter was finally
the Senate on the recommendations of the Law Faculty.
reasons I have stated above the application is dismissed with costs.
Applicant : Mr. Pheko
Respondent : Mr. Koornhof
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