IN THE COURT OF
APPEAL OF LESOTHO

C
of (CIV) No. 26/04

CIV/APN/291/2004

In
the matter between:

The
Teaching Service Commission 1^st Appellant

Ministry
of Education 2^nd Appellant

Attorney-General 3^rd
Appellant

and

St. Patricks High
School 1^st Respondent

Theresia
Letlatsa 2^nd Respondent

12, 20 April 2005

CORAM:

Steyn,
P

Ramodibedi, JA

Melunsky,
JA

Summary

Appeal against a
decision of the High Court granting an application ordering the
Education Authorities to transfer a teacher – these
authorities
were parties to an adjudication process which culminated in a deed of
settlement which they were obliged to implement
– a body upon whom
power is conferred has a concomitant duty to exercise that power
(when it is obliged to do so) - authorities
raising spurious and
flawed defence compounded by the attempt to raise on appeal points
not canvassed before the High Court – conduct
of Education
Authorities reprehensible.

JUDGMENT

STEYN, P

[1] In this matter the
appellants appeal against an order of the High Court which reads as
follows:

“1. First
Respondent is directed to give full effect to the Deed of Settlement
signed before First Respondent’s Adjudicator on 11^th
July 2003 which is annexure “NM5”
to
the Notice of Motion by

1. 
   transferring Second Respondent from Applicant;

   
   

2. 
   providing Applicant
   with a replacement teacher upon transfer of Second Respondent;

   
   

3. 
   Applicant is awarded
   costs.”

   
   

[2] Counsel for the appellants
conceded that there is only one ground of appeal against this order.
It reads as follows:

“The
learned judge in the court a
quo
erred in law in holding that the first appellant herein has a duty to
transfer second respondent – teacher”.

[3] In its heads of argument the
appellants contended that there was no duty placed upon first
appellant to transfer teachers. “It
only has the power to transfer
and not the duty”, he averred.

[4] This contention
appears to me to be insupportable. Once a body has a power conferred
on it, such body has the concomitant duty
to exercise that power when
it is obliged to do so. See Baxter: Administrative Law 411–412.
Indeed the failure or refusal to exercise
a power conferred when such
body is lawfully obliged to do so, can be an abuse of power itself.
The power in casu arises from the provisions of sec. 59 of the
Education Act 1995 which reads as follows:

“The
functions of the Commission are to appoint, promote, demote,
discipline, transfer and remove from office teachers whose salaries
are paid by the Government”.

[5] In the present case,
however, it is clear that the duty to transfer the teacher in
question (second respondent in the court a quo – “the
teacher”,) arises from an obligation pursuant to an agreement
between the parties in a dispute, achieved under its auspices.
The
appellants submitted before us, however, that they, and first
appellant in particular, were not bound by this agreement. Because
of the narrow focus of the ground of appeal cited above only the
facts relevant to this issue are summarized below. I will refer
throughout to first appellant as the appellant. I will identify the
second appellant as the Education Authority(ies) and the third
appellant as the Attorney-General.

[6] During August 2001
the school in casu was the subject of student protest of which
it appears the teacher was the principal target. When the protest
ended schooling resumed.
However, the teacher refused or failed to
return to work. Several letters calling upon her to do so were sent
to her during 2002
by the respondent (“the school”). In August
of that year she was warned by the school that her absence – by
this time of 12
months’ duration – was unacceptable. It pointed
out that four letters had been written to her calling on her to
report for work,
all of which she ignored and that disciplinary steps
could well be taken against her.

[7] It was at this point
in time that the appellant and the Education Authorities intervened.
Purporting to act under a regulation
of the Teaching Service
Regulations they charged the teacher with misconduct. In a covering
letter the teacher was called upon to
show cause by the 14^th
of November 2002 why she should not be removed from office “in
terms of section 53 (3) (a) of the Act for desertion”.

[8] The
teacher’s reaction was to institute proceedings in the High Court
against the appellant. In addition to suing it, she also
cited other
parties i.e. the Ministry of Education, the Attorney-General and the
School.

[9] On the 11^th
of June 2003 the teacher and the parties including the appellant and
the Education Authorities agreed to a consent order made by
the High
Court. This order obliged the teacher to respond to the charges
preferred against her within 14 days. It also decreed
that the
appellant was directed to adjudicate upon these charges before
the 15^th of July 2003. It is not in dispute that the
teacher responded and that the matter was adjudicated upon by a Mrs.
Maputsoe appointed by the appellant. (Own emphasis).

[10] On the 11^th
of July the adjudication process was successful inasmuch as a
settlement was achieved. Before the adjudicator the following
settlement
was recorded:

“BEFORE
THE ADJUDICATOR, MRS. MAPUTSOE, ON 11^TH
JULY 2003.

MR.
M. NTLHOKI, Counsel for Complainant

MR.
P.T. NTESO, Counsel for Respondent

Parties
have agreed as follows:

1- Complainant withdraws
the charges against Respondent subject to

(a) that Respondent be
transferred from St. Patrick’s High School to another school;

(b) the
employer fills a vacancy at St. Patrick’s High School , which
arises out of the transfer of Respondent;

(c) Complainant
is to attend to all necessary formalities to enable the transfer of
Respondent to be effected.

2- Parties request the
Adjudicator to make an appropriate recommendation to the Teaching
Service Commission” (the first appellant)
“to adopt, confirm and
ratify the agreement of the parties and thus bring the matter to an
amicable finality.

SIGNED AT MASERU ON THIS
11^TH DAY OF JULY 2003.”

[11] On the 16^th
of July 2003 an application was made to the appellant by the teacher
and the school for her transfer. The application was made on
a form
prescribed under regulations issued by the appellant to which I will
refer below. In answering the question to supply the
reason for
seeking a transfer, the teacher replied as follows:

“Mutual
agreement that brought about the DEED OF SETTLEMENT before the
adjudicator at the Teaching Service Commission on the 11/07/2003
as
detailed on attached copy.”

The deed was duly
annexed.

[12] One would have
thought that in view of the delays that had already occurred the
appellant would, with all deliberate speed, have
implemented the
settlement achieved under its auspices. Instead of doing so the
appellant did nothing. On the 12^th of February 2004 the
school via its attorneys wrote to the appellant calling upon it to
provide the school with a replacement teacher.
No reply was
received. On the 6^th of March the school’s attorney
wrote again, this time to the Attorney-General requesting him to
prevail upon the employer to address
the school’s concerns. On the
29^th March 2004 the appellant replied to the school’s
letter of the 12^th of February – a delay of 8 months.
It made the allegation that the school had “made no recommendation
regarding the transfer
of the teacher”. The school responded by
pointing out that this was a misconception. It informed the appellant
that it had done
so and referred appellant to the application it had
made on the 16^th of July 2003 and attached a second copy
of such “recommendation”.

[13] On the 18^th
of May 2004 the appellant invited the school -represented by its
chairman and its secretary - to a meeting for consultations regarding
the position of the teacher. According to the school’s founding
affidavit deposed to by its principal, the appellant adopted an
uncooperative and confrontational approach to the matter. The
relevant averments in the affidavit read as follows:

“The
Chairman of the Board of Management of Applicant and I were then
subjected to a stern lecture about the exclusive statutory powers
of
Applicant to appoint, place, promote and discipline teachers. We
were then further lectured about the futility and folly of dragging
legal practitioners into matters pertaining to the teaching service
and First Respondent. Thereafter we were informed that our inquiries
and the lectures had constituted the meeting initially proposed and
in the view of First Respondent, we
had failed to convince First Respondent on anything concerning the
fate of Second Respondent and the need for a replacement teacher
at
Applicant.
We were then ordered to leave First Respondent’s premises. We
embarrassingly obliged after this humiliation and repaired back
to
the offices of Applicant’s Attorneys for advice and appropriate
action. Applicant then subsequently resolved to institute the
present proceedings.” (Own emphasis).

[14] These allegations
were not denied by the appellant in its answering affidavit. Indeed
in the presentation of its response to
the school’s claim for the
relief set out above, the first appellant raised for the first time
only one defence, viz that the school
had failed to comply with the
appellant’s rules 2002 and in particular rule 7 (a) – which was
issued pursuant to sections 17
and 18 of the Education Act 10 of 1995
and that the form used by the two parties – the teacher and the
school - was not the correct
one. As the learned judge in the court
a quo correctly points out these sections have no application in
the present case. These provisions apply to teachers in primary
schools
and in “respect of teachers other than [teachers] whose
salary is paid by the Government.” The teacher in casu is
not a primary school teacher and her salary is paid by the
Government. The High Court in a carefully reasoned judgment referred
to the applicable regulations with which the teacher
had to comply.
The form which the school and the teacher submitted on the 16^th
of July 2003 and to which the appellant never responded was in
fact the correct form. The purported reliance on the rules
referred to in its response was not only spurious but also fatally
flawed.
(Own emphasis).

[15] The
regrettable failure of the appellant and the relevant Education
Authorities to perform its statutory duties, is further compounded
by
the arguments advanced before us on appeal by their counsel for the
first time. Counsel for the appellants jettisoned the defence
raised
in the affidavits and sought to argue that:

“4.1 In
this case it would seem like the duty to transfer second respondent
(the teacher) has been placed on the first appellant by
the deed of
settlement reached by the respondents herein. The question that
immediately arises is this, is the first appellant bound
by that
settlement to which they were never a party?

The answer is in the
negative. Clearly this was an agreement between two parties and
it cannot be expected to bind the third one. Not only that but the
agreement
as it is, is against public policy.

2. 
   We are taking (sic)
   here about a teacher who has not been discharging her functions
   from August 2001. Instead of an appropriate
   action being taken
   against her, the school and the teacher agree that the teacher be
   transferred to another school. In our submission to transfer
   somebody like that to another school would be wrong.”
   (Emphasis added for the purpose of identifying matter that is res
   nova in this Court).

   
   

[16] It was unfair and
improper for the appellants to raise these contentions for the first
time on appeal, (see Malebo v Attorney General C of A (CIV)
5/2003). However, as is apparent from the recital of the facts of
this matter, the adjudication process was embarked
upon at the
instance of the parties involved, including the Ministry of
Education and the Attorney-General. Moreover, the appellant
was directed to adjudicate upon the dispute and did so. The outcome
of the adjudication process was the settlement referred to above,
which the Education Authorities in general and the appellant in
particular were in the circumstances obliged to implement. At no
stage prior to seeking to argue it before us did these Authorities
ever repudiate or even question the enforceability of the agreement.

They sought to obscure the neglect of their duties behind the
formalistic smokescreen of the non-compliance with an irrelevant
rule.

[17] The
attempts of the school to resolve their dilemma amicably were either
ignored or rebuffed by the appellants. The litigation
was conducted
irresponsibly by the Authorities. The result was that the relevant
authorities through their culpable neglect allowed
a situation to
develop whereby a teacher’s post remained in limbo for a number of
years.

[18] The
arguments advanced on appeal before us were both irregular and
without merit. The High Court was fully justified in granting
the
orders it did.

[19] For
the above reasons the appeal is dismissed with costs.

[20] This Court would
request the Attorney-General, who is the pro forma third appellant,
to note the contents of the judgments of
the High Court and of this
Court. We would request him as an officer of this Court also to
convey our views and the comments of
the court a quo to the
relevant Education Authorities.

______________

J.H.
STEYN

PRESIDENT

I
agree.

_______________

M.M.
RAMODIBEDI

JUDGE
OF APPEAL

I
agree.

_______________

L.
MELUNSKY

JUDGE
OF APPEAL

For the Appellants : Mr. R. Motsieloa

For the Respondents : Mr. M. Ntlhoki

MASERU

20
April 2005