COURT OF APPEAL OF LESOTHO
C OF A
DAVID TLABA 1ST APPELLANT
BONIFACE MOTENE 2ND APPELLANT
RAFONEKE 3RD APPELLANT
MOLUOANE 4TH APPELLANT
AZEKIEL KHAKHAU 5TH APPELLANT
ARIC NTS'IHLELE 6TH APPELLANT
MACHELE MOKENELA 7TH APPELLANT
MAKHETHA 8TH APPELLANT
RANYALI 9TH APPELLANT
KULEHILE 1ST RESPONDENT
MAFATLE 3RD RESPONDENT
LECHESA 4TH RESPONDENT
LECHESA 5TH RESPONDENT
MALAHLEHA 9TH RESPONDENT
17th November, 1992 the nine appellants, by Notice of Motion, brought
an urgent application in which the following relief
with the normal periods of service provided by the Rules
the Respondents to convene within seven days of the granting of the
order an annual general meeting of the IKETSETSENG
and, upon their failure to do so (3) authorising the applicants or
any of them to convene the said meeting:
4) directing the respondents to pay the costs of the
application in the event of their opposing it.
7th December, 1992 the learned Judge a quo granted the relief sought
in the form of a rule nisi. The matter became opposed
and on the
extended return day, the learned Judge, after hearing argument,
discharged the rule with costs. It is against that order
appeal is brought.
of pupils at the school are ipso facto members of its Governing body.
The appellants brought the application as members
of such body being
parents of pupils at the school. The Respondents are members of the
executive Committee of the school.
appellants' case is set forth in the affidavit of the first
appellant. He has never regarded the Respondents
a duly elected committee of the school nor does he know when they
were elected, if indeed they were. He did not receive
any notice of,
or invitation to, such meeting. However he accepts the Judgment of
this Court in the case of KHAKETLA and IKETSETSENG
(C of A (CIV)
No.1/92 in which the Respondents were declared to be the lawful
executive of the school. But when he heard that in
terms of the
Appeal Court judgment Khaketla was directed to hand over to the
Respondents the property and the management of the
school he and the
majority of members of the Governing Body of the school became
period of office of respondents expired in about August 1991 "as
appears more fully from the affidavits filed in the
against the said Khaketla." (the affidavits are not put up).
Lechesa, who was a Trustee and to whom Khaketla had been ordered to
hand over the property of the school, lost his membership
Governing Body at the end of 1990 by virtue of the fact that his
child ceased to be a pupil at the school having completed
class thereof. But in the next sentence the first appellant states
that Mrs. Kotelo withdrew her child from the school
1992 before the Appeal Court judgment.
appellant alleges that since their term of office came to an end the
respondents had failed to call an Annual General
Meeting in terms of
the Constitution of the school. They had also appealed to parents
over the radio and in writing to stop paying
school fees to Khaketla
but to pay them into an account opened by the respondents at the
Lesotho Building Finance Corporation.
of their apprehension the appellants had prevailed upon Khaketla to
delay the handing over of the school to the respondents
in terms of
the judgment of this Court.
allegations made by the first appellants are supported by the others
who each aver that he or she had never received any notice
invitation to, any meeting of parents convened by the respondents.
application was also supported by one Paleo Tlelai who built and
donated a block of buildings housing the school and who identified
himself with the fears and sentiments expressed by the
opposing the application, were deposed to by the first, fourth,
sixth, eighth and ninth respondents. No service could
upon the second and third repondents nor was the fifth respondent
served personally. Copies of the papers were left
for him with the
allegations made by the appellants are very much disputed on the
affidavits. The first respondent is the Chairman of the Executive
Committee of the school. He states that the second and third
respondents have ceased to be members of the Executive Committee.
regard to the calling and holding of meetings the averments of the
first respondent may be summarised as follows:-
first meeting was held on 1 September 1990 at which the Executive
Committee was elected. The pupils of the school were given
of invitation to hand to their parents or guardians. Notice of the
meeting was broadcast over Radio Lesotho and was also
given at all major churches in Maseru. The meeting was well attended
by many parents or guardians.
meeting of the Governing Body held on 10th December, 1991 the first
appellant and his wife were present and signed a petition
that Judgment in CIV/APN/317/90 be delivered, A copy of the list of
petitioners is put up.
The first respondent claims that the first appellant's attendance at
this meeting called by the Executive demonstrates his dishonesty
alleging that he was never given notice of any meeting.
meeting held on 17 February 1991 the sixth appellant was present. A
list of those present which includes the name of the
9th appellant attended meetings on 9 June 1991, 18 August 1991 and
22 January 1992. Lists of those who attended including
the name of
the 9th appellant are annexed.
respect of the years 1991 and 1992 Annual General Meetings of the
Governing Body were held notice of which was given in the
manner as indicated above. At those meetings the present executive
committee was elected unopposed save that two new members
elected to replace the second and third respondents.
period of office of the executive committee has not expired while
the next Annual General Meeting would be called after the
December 1992 in terms of the Constitution.
respondent also draws attention to article 7 of the Constitution
which provides that Special General Meetings may be called
time by the Committee and shall be called by the Secretary on a
requisition from ten members of the Governing Body. He contends
the appellants should have exhausted their remedies under the
Constitution before approaching the Court.
regard to the position of Mrs. Khaketla the first respondent states
that she did not wish to hand over the school's management
property because her attorney Mr, Sello, at a meeting held on 8
November 1992 at the school's premises, informed
present that Mrs. Khaketla had not lost a case and that the judgment
of the Court of Appeal was difficult to understand. Contempt
proceedings were being pursued against Mrs. Khaketla.
answering affidavits the fourth, sixth and eighth respondents
associate themselves with the allegations of the first and
respondent is the Principal of the school and a member of its
Executive Committee. He confirms that the present executive
was duly elected on or about 1 September 1990 by the Governing Body
and at Annual General Meetings they were elected
unopposed with the
exception of the second and third respondents in 1992. Since
September 1990 whenever the Executive Committee
notices were handed to each child to pass on to his or her parents.
Announcements of such meetings were also made
on the radio and in
churches at Maseru. There never was a meeting which was limited to
those parents and guardians who were paying
their fees at Lesotho
Building Finance Corporation.
replying affidavit the first appellant draws attention to the fact
that no dates or venues are given of the alleged annual
meetings for the years 1991 and 1992 nor are copies of the notices,
agendas or minutes put up. He does not deny that he
attended one or
two meetings called by the respondents but denies that he was ever
invited to or attended any meeting where the
or anyone else were elected to a committee to run the school. Similar
allegations are made by the other respondents
in their replying
affidavits and in ten supporting affidavits.
Judgment the learned Judge held that the appellants had approached
the Court prematurely as they had not exhausted their
the constitution of the school. In terms of Article 7 they could have
called a Special General Meeting which could
have called upon the
repondents to hold an Annual General Meeting at which a new committee
would be elected.
is also made in the judgment to the respondents' allegations that
Annual General Meetings were held in 1991 and 1992 in
which notice was given. Even if they applicants did not receive
notices of such meetings, in terms of the proviso to
Article 8 of the
Constitution nothing done at any meeting shall be invalid merely
because some member or members have not received
notice. This finding
assumes the correctness of the respondents' averments that annual
geneal meetings were held for 1991 and 1992.
contended on behalf of the appellant by Mr. Sello that the onus lay
upon the respondents to prove that annual general meetings
However counsel was correctly constrained to concede that the
appellants bore the onus of proof. It was they who alleged
general meetings had not been held and, in accordance with the
general principle that he who alleges must
was the appellants who had to prove that fact.
disposed to think that that onus was not discharged. In the course of
his pertinacious argument Mr. Sello submitted, in effect
denial by the repondents was a bare denial. But it was more than
that. It is true that details were not provided of the
and place where such meetings were held nor were copies of the
agendas or notices put up. On the other hand details
were alleged of
what had taken place at the meetings and the manner in which notice
was given (i.e. by letters to the pupils and
by announcements on the
radio and in churches) were fully disclosed.
event it is clear that, as the learned Judge a quo found, the
appellants in terms of Article 7 of the Constitution could
demanded that a Special General Meeting be called. In terms of that
Article the Secretary is bound to call such a meeting
requisition in writing from ten members of the Governing Body. It
would hardly have required one of the labours of Hercules
for such a
meeting to have been summoned. On the contrary there are nine
appellants and ten supporters on these papers. To summon
meeting where an annual general meeting would have been insisted upon
was a matter of ease.
suggested that it would have been an exercise in futility but there
is nothing in the papers which even hints at that.
the appellants approached the Court, and, what is
a matter of urgency, without having exhausted the provisions of their
own constitution and the remedy provided thereby.
appeal is without substance and in my view must be dismissed, with
at Maseru this 22nd day of . July........1994.
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