CIV/APN/303/95

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

MOSITO
LEHANA 1st Applicant

MAAPARANKOE
MAHAO 2nd Applicant

BAHOLO
MATOBO 3rd Applicant

and

THE LAW
SOCIETY OF LESOTHO 1st Respondent

THE
REGISTRAR OF THE HIGH COURT 2nd Respondent

JUDGMENT.

Delivered
by the Honourable Mr.Justice T. Monapathi on the 28th day of
September, 1995

Section 6
(1) (c) (iii) of the Legal Practitioners Act No. 11 of 1983 reads:

"A
person who applies to be admitted and enrolled as an advocate shall
produce to the satisfaction of the High Court proof
that : -

1. .....................

   
   

2. ......................

   
   

3. ....................

   
   

(iii) has satisfied all the requirements for a degree of Bachelor of
Laws of the National

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University of Lesotho."

I have
not seen how this section would be ambiguous nor how it brings about
absurdity. I would not see how a strained interpretation
would be
necessary. Neither would a broad interpretation be necessary where
there is no ambiguity. As long as it is borne in mind
that it is the
University which spells out whether a student has satisfied all the
requirements for a degree it is difficult to
see how a Court of Law
would determine in what' manner a student has satisfied the
requirements for a degree of Bachelor of Laws.
It is the University
which prescribes how the requirements have been satisfied.

Indeed
"in the past the Court has felt that it is a master in its own
house in construing its rules relating to admissions
to the
profession, and that it has looked at the intellectual attainment of
an applicant rather than his status as a graduate which,
through
adding to his dignity does nothing to advance his learning (Ex parte
Feetham 1954(2) SA 468 (N), I do not see the job of
the Court as
being to assess if the University has correctly decided that a
student has satisfied the requirements of his degree.
The job of the
Court is to accept that the success of a student has been certified
by the University. The university can certify
in so many ways
according to its rules. It may issue out a certificate which is
conferred on graduation

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to a
student who is present or in absentia. It may certify the
intellectual attainment by issuing out a transcript of academic
record from the office of the Registrar. In each and all the
transcripts of the Applicants which are signed by the Senior
Assistant
Registrar (Academic), on the 9th August 1995, on behalf of
the Registrar it is endorsed that the transcripts of academic record

are for completion of the requirements for the degree of Bachelor of
Laws and that this has been confirmed by Senate on the 22nd
June
1995.

I have
been referred to various decisions of Courts which I have found to be
very useful. The judgment in the consolidated cases
of Thulo
Mahlakeng and Others vs Lesotho Law Society CIV/APN/135/84,
CIV/APN/136/84 AND CIV/APN/141/64 per Cotran CJ (unreported)
was
concerned with whether degree holders who were entitled to receive a
degree of Bachelor of Laws of the National University
of Lesotho
were: "if anything else was in order entitled to admission as
advocates and now the problem is whether the text
used in section 6
(1) (c) (iii) of the new Act had intended those degree holders to set
for a further examination called the Bar
Practical Examination set by
the Law Society," or the "Chief Justice" or whether
that provision applies only to
these citizens of Lesotho who had
obtained a degree of Bachelor of laws from a university outside
Lesotho and wait to be admitted
to practice as advocates" (page
2-3) The Chief justice then went

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on to
order that the applicants shall be admitted upon producing to the
Registrar copies of their degrees to be awarded on the 29th
September
1984. Incidentally what was before the Chief Justice was the only
problem of the writing of Bar examinations, I am not
convinced of the
soundness in policy of the requirement for production of degree
certificates. Anyway the Chief Justice did not
attempt to justify his
conclusion.

The
special circumstances of the case of FL Surties v Solicitor-General
1978 LLR 414 called for an attitude by Mofokeng J which
can only be
called a practical and commonsense one. A testimonial of the
applicant's professor of law sought to certify that the
applicant had
passed all examinations required at this university for an L.L.B.
degree and that she would be entitled to the award
of her degree at
the next graduation ceremony. The learned judge felt that: This
document cannot obviously be a certificate of
the degree referred to
in the petition. In my opinion the best person to say whether or not
a candidate has satisfied the requirement
for a degree at a
university would be the Registrar and, most certainly, not any of the
professors engaged at such a university."
The reasons behind the
requirement that it shall be the Registrar who vouches for that the
Applicant has satisfied the requirements
for a degree is a sensible
one when the central position of a Registrar in the University
administration is taken into account.
I do not think

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it is
fair that, having produced a transcript, the Law Society should now
insist that it must be under the hand of the Registrar.
It suffices
if an honest statement is made from the office of the Registrar by
any of the officers subordinate to him, clearly
authorized by reason
of their clear functions, to make the statement. Presumably that is
how the University in run.

This
requirement that Court must be satisfied by clear evidence is a
salutary one. It is not nevertheless practical to require an

applicant to discharge the onus in the strict manner as required in
Ex parte Seward Brice K.C. 1902 TS 2 at 4 and Ex part Van Den
Bergh
1924 TPD 117. Each case has still to be dealt with on its own merits.
Hence a matter of a student's qualification from the
National
University of Lesotho should not cause heavens to fall when it is in
fact not denied that a student has, satisfied the
requirements. It is
also very easy to go on saying an allegedly false averment. A clearly
technical objection in the circumstances
is unhelpful and it is to
some extent frivolous. It is simply unwise to insist on production of
a certificate after conferment
of a degree of a ceremony which adds
nothing but dignity to the graduate. In fact it is a result of
intellectual attainment and
satisfaction of. the requirements of the
degree that a graduant is ultimately conferred with a degree at a
ceremony..

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I quite
share she sentiment of the learned judge in FL Surtie's case that
confusion ought to be avoided by adherence to the strict
rules. The
Law Society adds turbulence to stable waters by* its unrealistic
opposition where, a more liberal attitude is called
for. As long as
it is born in mind that it is the Court which has to be convinced
that the requirements have been satisfied. Indeed
this Court is a
Court which deals with the requirement of a profession of which it is
part and has sufficient knowledge of.

The
meaning of sec. 6 (1) (c) (iii) of the legal Practitioners Act 1987
is clear and not dubious. So that "if the words of
the statute
are in themselves precise and unambiguous, then no more can be
necessary than to expound those in that natural and
ordinary sense",
being the words of Tindal CJ in the Sussex Peerage case (1844) 11 C1
and Fin 85. In addition the words of
Lord Reid in Pinner vs Everett
1969 (3) All ER 257 at 2589 have real relevance where he says "In
determining the meaning of
any word or phrase in a statute the first
question to ask is always what is natural or ordinary meaning of that
or ordinary meaning
of what word or phrase in its contexts in the
statute? It is only when the meaning leads to some result which
cannot reasonably
be supposed to have been the intention of the
legislature that it is proper to look for some other -possible
meaning of the word
or phrase".

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I cannot
believe that it was the intension of the legislature that a
certificate issued after conferment of a degree of at a graduation

ceremony is the only proof or satisfaction of requirements of a
degree. That is why the learned author of LAWSA Vol 14 says at

paragraph 235 at page 223. It should be noted that the mere
satisfaction of all requirements for the required degree is adequate

for admission as an advocate. The degree need not necessarily have
been conferred".

I allow
the application. Each party is to bear its own costs.

T.
MONAPATHI

JUDGE

28th
September, 1995

For the
Applicants : Mr. Phoofolo

For the
Respondents : Mr. Khauoe