CIV/APN/298/95

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

TSELISO
MOHASOA (duly assisted by his father) 1st Applicant

KALI
PHAHAMANE (duly assisted by his father) 2nd Applicant

and

THE
HEADMASTER - 'MAMATHE HIGH SCHOOL

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 21st day of
September 1995.

The
application was filed on the 31st August 1995. The suspension of the
two Applicants by the Respondent had been on the 24th August
1995. It
was common cause that the suspension by the Headmaster was done
pending a hearing of a criminal case instituted against
the
Applicants before the magistrate Court. This was presumably on a
charge of assault following a fight by the Applicants against
certain
fellow students. The hearing was scheduled to be on the 4th September
1995.

The
Applicants claimed for various reliefs. This included that the
decision of the Respondent to suspend the Applicants from

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attending
school shall be declared null and void and that the Respondent shall
be ordered and directed to allow the Applicants to
return to school
and attend classes and Respondent be ordered to refrain from
interfering with the Applicants' attendance except
by due process of
law. This was opposed.

The
Applicants brought into issue the following matters as most briefly
encapsulated in paragraph 12 and 13 of the First Applicant's
founding
affidavit, that "

"I
submit with greatest respect that the Respondent acted wrongly in
suspending me and the 2nd Applicant, for the following
reasons :

1. The
   incident took place after school hours, and did not occur within the
   school premises.

   
   

2. The
   Respondent did not give us a fair hearing before he decided to
   suspend us from classes and school.

   
   

3. The
   Respondent was prejudging issues in. as much as there is a
   presumption of innocence operating in our favour, and our guilt
   has
   to be proved beyond reasonable doubt on the date of hearing.

   
   

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I further submit that in deciding that I and the 2^nd
Applicant should come to school after the hearing of the said
Criminal case, the Respondent was prejudging our Chances of Covering

the syllabus."

I was
first asked by Mr. Nathane for the Respondent to strike off certain
paragraphs in the supporting affidavit of one LIBUSENG
PHOSHOLI. It
was contended that the paragraphs (c) (d) (e) (f) introduced new
matter to which the Respondent would have no opportunity
to reply to.
This was correct, Mr. Putsoane did not oppose. I struck off the
offending paragraphs. Most unfortunately this was
not significant to
my judgmet.

I refused
to go into the substantive aspects of whether in the circumstances of
the alleged fight the Respondent would have been
correct to find
fault with the Applicants and, whether the Applicants caused the
fight or were acting in self-defence. It is because
in suspending the
students (whenever he does it correctly) he need not look into who
was guilty or not guilty. It is because his
suspension is a temporary
measure. He takes a prima facie view of what is reported to him.
There is nothing to prevent the Respondent
from suspending any
student who was involved in the fracas provided this is done in
compliance with Regulation 7(1). The regulation
reads:

4

" 7 (1) subject to sub-regulation (2) of the school (supervision
and management Regulations 1988 legal notice No. 2190/1988,
made
under section 21 of the Education Order 1971 (the Regulation) the
headmaster may suspend a pupil for such period as the Board
may
determine or in the absence of such determination for a period not
exceeding 10 school days."

Section
7(2) reads in part:

"The suspension of a pupil referred to in sub-regulation

(1) may be suspended on the following grounds :

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

   
   

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

   
   

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

   
   

4. .......................

   
   

5. .......................

   
   

6. Conduct
   injurious to the moral tone of the school or to the

   
   

physical or mental well-being of others in the school." (my
underlining)

Furthermore
this Court would not be prepared to go into the exercise of
evaluating the weight of the evidence or the source of the
evidence
on which the Respondent depended in reaching his decision to suspend.

5

The
difficulty of the excercise would be two-fold. Firstly it would
require the record of the proceedings in order to review the

circumstances and the evidence. The voluminous and contentious
affidavits of the parties and other deponents would still be
unhelpful.
Secondly this would require viva voce evidence in the
light of the apparent disputes of fact. As I said nothing really
turns on
the reasoning of the Respondent on the question of fact
finding and fault finding. In addition this is not a matter on which
I
would have to decide this present dispute. Mr. Putsoane was also
wise enough not to insist on finding fault with the Respondent
on the
question of absence of fair hearing.

There has
been much argument by Counsel concerning this matter of whether the
Respondent would have jurisdiction to deal with misconduct
occurring
outside school premises and outside school hours. A caustic example
was made of where, just a few metres outside the
school premises,
students would decide to set up shop for imbibing liquor and smoking
all types of substances. If they did that
outside school hours in
broad day light would the school fold its arms presumably on the
reading of section 4 of the school (supervision
and management)
Regulations 1988? The section read :

"4. Every pupil is responsible to the headmaster of the school
he attends for his conduct,

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1. on
   the school premises;

   
   

2. on
   out-of-school activities that are part of the school programme; and

   
   

3. while
   travelling in a school bus owned or hired by the school."

   
   

It is not
necessary for my judgment to decide this point but I am wondering how
else the provisions of section 7(2) (f) of the regulations
would be
enforced if a literal and restricted interpretation is given to
section 4. Perhaps there are more cogent reasons why the
section was
couched in the way it has been.

It was
submitted that one of the effects of an indefinite suspension of the
Applicants would be a disguised punishment. This was
said for the
very reason that the Applicants would be out of school activities for
a period exceeding a minimum of 10 days. I agree.
Mr. Putsoane also
calls it a double jeopardy in the sense that having been interdicted
from school activity they still would be
punished in terms of the
ordinary laws of the land by Court. That may be so in effect. This
means that pending the decision of
the Court they would be undergoing
the effects of an unpronounced and hidden punishment and the very
prejudicial result as shown
in paragraphs 12.3 and 13 of the First
Applicant's founding affidavit.

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My
concern is mainly that without authority of the Board the Respondent
suspended this Applicants for more than 10 days in contravention
of
section 7 of the Regulations. This he was not entitled to do. The
suspension was therefore unlawful and ought to be set aside.

I made
the Order that the application succeeded in terms of prayers (a) and
(b) and that costs be awarded to the Applicants except
the costs of
the 18th September 1995 and the 21st September 1995.

T.
MONAPATHI

JUDGE

21st
September, 1995

For the
Applicants : Mr. Putsoane

For the
Respondents : Mr. Nathane