CIV/APN/168/84
IN THE HIGH COURT OF LESOTHO
In the matter of:
CORNELIUS TSEHLA MATJELOAME Applicant
vs
Sr. A. Thakanyane 1st Respondent
MANAGER ST THOMASE HIGH SCHOOL 2nd Respondent
JUDGMENT
Delivered by the Hon. Acting Mr Justice J.L. Kheola on the 2nd day of October, 1984
On the 27th July, 1984 Mr. Tsotsi, Counsel for Applicant, moved an application for an order in the following terms :-
1. That a Rule Nisi be issued returnable on a date and time to be determined by the above Honourable Court calling upon Respondents to show cause why:
(a) The decision of the 1st Respondent to expel Candice Thato Matjeloane from St. Thomas High School shall not be reviewed and set aside;
(b) The above said Candice Thato Matjeloane shall not be readmitted forthwith to St. Thomas High School and allowed to attend classes;
(c) The Respondents shall not pay the costs of this application;
2. Granting further and/or alternative relief.
I granted the Rule Nisi and made it returnable on the 1st August, 1984. After several postponements the
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matter was finally argued before me on the 19th September, 1984 when I reserved ray decision.
The applicant is the father of Candice who had been a scholar at St. Thomas High School from the beginning of 1983 to the end of June, 1984 when she was expelled by the 1st Respondent who is the Principal of the school. The Applicant is basing his application on the ground that the 1st Respondent expelled his said daughter without giving him or her an opportunity to be heard and that this violates the principle audi alteram partem which is applicable to this case. He also challenges the expulsion on the ground that the 1st Respondent has not complied with the requirements of Regulation 13(10) of the Teaching Service Regulations No.3 of 1974.
I shall presently deal with the first ground. In his founding affidavit the Applicant states that in April, 1984 he was called by the 1st Respondent to St. Thomas High School and she complained to him that his daughter was disobedient, would not accept correction and drank liquor. Candice denied the charges against her. As a result of this discussion he decided that his daughter should leave the boarding house and attend school as a day scholar. He goes on to say that at the end of June, 1984 after the school had closed for the winter holidays, he received a letter from the 1st Respondent in which she repeated the allegations she had made to him in April against her daughter and that therefore she would not be
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readmitted when the school re-opened after winter holidays. The letter is annexure A to the founding affidavit. In that letter the 1st Respondent repeats the allegations she made in April and goes on to say "since she stayed in the village her way of life is not pleasant. She drinks liquor, and when she dissuades me from taking strong measures against this, she tells me that you know that she must take a glass of liquor before each meal. She calls it table wine."
In her answering affidavit the 1st Respondent states that some time in April, 1984 she invited the Applicant to come to St. Thomas High School so that they would discuss the behaviour of Candice. The Applicant duly came on the 15th April, 1984 and she told him that it had become absolutely impossible to keep the child at the school as she was a thorough deliuquent. Moreover the other members of staff were extremely unhappy and upset by her continued admission at the school; as it had become difficult to maintain discipline on her account and conduct. She says that the Applicant begged her to keep the child and in symphathy to him she said she would try; but it became absolutely impossible till she finally decided to expel her. In answer to the allegation that she failed to comply with the requirements of Regulation 13(10) (supra), she annexed to her affidavit a letter addressed to the Permanent Secretary for Education dated the 6th August, 1984 in which she reported the expulsion and the reasons for it.
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Sister Damiana Sekatle is the Boarding Mistress at St. Thomas High School. In her affidavit she states that during April, 1984 just before Easters was her first time to see Candice utterly and shamefully drunk. She fell down several times and could not get up on her own. Other boarding girls picked her up and dragged her into the dormitory. She reported to the 1st Respondent and on the 15th April, 1984 the Applicant came to the school. She says that she expelled Candice from the boarding house during Easters.
In CIV/APN/165/84 William Lemena and others v. Nurcomber and another, the learned Chief Justice delivered judgment on the 10th day of August, 1984 and had this to say:
" Here the headmaster was faced with an emergency. It was necessary to take immediate action. Action was taken after due process,, Due process here does not mean a charge sheet, counsel for the prosecution and for the defence and the paraphernalia associated
with a Court trial." (my underlining)
This was a case in which a group of students had raided the residence of the Principal. He said they intended to assault him; the students said it was not a raid but a visit in order to ask the headmaster why one of their colleagues had been unfairly dismissed. The headmaster had made an inquiry and found that all the 12 students had been involved in the raid and decided to
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expel them from the school. Some of the students had denied taking part in the raid. The words I have quoted above are apposite to the present case. The Appellant alleges that the 1st Respondent failed to observe the principle audi alteram partem when she expelled his daughter. I do not understand what he means by this because on the 15th April, 1984 he and his daughter appeared before the principal and one of the witnesses was the boarding mistress who personally saw Candice being utterly and shamefully drunk. I think the child and Applicant were given chance to be heard and although the child denied the allegations the 1st Respondent found that she had been drunk.
My difficulty in this case is that the 1st Respondent did not expel the Applicant's daughter immediately after she found that on that day she had been drunk. She says that the Applicant pleaded with her not to expel the child and that for humanitarian reasons she decided not to expel her "but it became more and more difficult because of the conduct of Candice". It will be seen that this time the principal does not refer to any particular incident or episode when Candice was drunk, disrespectful to older people or absented herself from school. In her letter of expulsion she merely says she drinks liquor. In his replying affidavit the Applicant says that he was not told of any subsequent conduct of her daughter which warranted her dismissal until he received the letter of dismissal. He says that before Candice was expelled she ought to have been advised of the new charges against her.
Now the crucial question is: Was the 1st Respondent
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under any obligation to give the Applicant and his daughter a chance to be heard again if Candice continued to behave in a despicable manner? Was she under any obligation to refer to particular dates on which Candice misbehaved? I do not wish to make any finding on these issues because I wish to base my finding on the next upon which the Applicant challenges the expulsion.
Regulation 13(10) of the Teaching Service Regulations 1974 reads as follows:
" The Head Teacher, Headmaster or Principal of a school shall be responsible for all dismissals in a school and is empowered to suspend or expel a pupil but shall be required to advise the Manager or School Committee and the Permanent Secretary of his action and outline the reasons therefor:
Provided that the Manager or Committee or the Permanent Secretary may direct that a pupil be re-admitted if there are good reasons for doing SO."
Mr. Tsotsi submitted that it is obligatory in terms of the Regulation that when the Principal expels a student he must advise the Permanent Secretary for Education of his action and outline the reasons thereof. Failure to do so would invalidate the expulsion because it would have the effect of denying the Permanent Secretary of his statutory right in terms of the proviso of directing that the pupil be re-admitted if there are good reasons for doing so. I think that this regulation must be strictly interpreted because expulsion of a pupil from a school is
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such a drastic step that in some cases it may determine the whole future of a child. He may find it very difficult to get admission to any respectable school after he has been dismissed from another school because of the unfavourable report from the Principal who expelled him. Without proper qualifications his chances of getting employment are severely reduced. The word used in the regulation is "shall" inform the Manager or School Committee and the Permanent Secretary for Education. There is absolutely no doubt that the requirement in the Regulation is obligatory and that failure to comply with it will render the expulsion null and void. The word "shall" when used in a statute is rather to be considered as peremptory, unless there are other circumstances which negative this intention. See Pio v. Franklin, N.O. and another, 1949(3) S.A. 442 at p. 451.
The principal expelled Candice at or during the end of June, 1984. She did not inform the Manager and the Permanent Secretary till the 6th August, 1984 when she wrote a letter to the latter. By this time she had long been served with the papers of this application and the school had already reopened. In her further answering affidavit the 1st Respondent says that no time limit is prescribed within which she has to inform the Manager or School Committee and the Permanent Secretary. I think that this is a complete misunderstanding of the reason why the Manager and the Permanent Secretary have to be advised of the expulsion. The main reason is that after
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the report has been made to them the Manager or the School Committee or the Permanent Secretary for Education have the right to initiate an inquiry to find out if the expulsion was justified and order re-admission of the pupil if they find that the principal had acted wrongly. The inquiry must be made as quickly as possible after the expulsion so as to avoid, as far as it can be done, a long interruption in the studies of the pupil if the Permanent Secretary decides that he should be re-admitted. I agree with the 1st Respondent that no time limit has been prescribed in the Regulation. I think where a statute or regulation does not prescribe a time within which a certain action must be taken, then such action must be taken within a reasonable time.
In the present case the 1st Respondent took action after approximately 37 days following the expulsion of Candice. She was served with the papers of this application on the 1st August, 1984 but did not comply with the requirement of the .Regulation until the 6th August, 1984, apparently after she was advised by her legal representative. In my opinion 37 days cannot be regarded as a reasonable time at all. There is no reason why the 1st Respondent did not advise the Manager or the School Committee and the Permanent Secretary of her decision to expel the pupil on the same day that she wrote a letter to the Applicant, or, at least, only a few days after she had expelled her. She cannot be heard to say that because there is no time limit prescribed in the Regulation she had the right to do it at any time even after a year. This would completely
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defeat the purpose for which the requirement was inserted in the Regulation. Section 51 of the Interpretation Act, 1977 provides that "where no time is prescribed, or allowed within which anything shall be done, such thing shall be done without unreasonable delay, and as often as due occasion arises." I consider a period of 37 days to constitute an unreasonable delay and invalidates the dismissal.
For the reasons I have stated above I am of the view that the dismissal of Applicant's daughter from St. Thomas High School was not done in strict compliance with Regulation 13(10) of the Teaching Service Regulations 1974 and was for that reason null and void.
The Rule Nisi is confirmed with costs.
J.L. KHEOLA
ACTING JUDGE
1st October, 1984
For the Applicant : Dr. W.M. Tsotsi
For the Respondents : Mr. O.K. Mofolo
CRI/A/50/84
IN THE HIGH. COURT OF LESOTHO
In the Appeal of:
EZEKIEL MOKABA
Vs
REX
Delivered by the Hon. Acting Mr. Justice J.L. Kheola on the 1st day of October. 1984
The Appellant, Ezekiel Mokaba, was convicted of stock theft by the Subordinate Court of Butha Buthe. It is alleged that during the
period between the 11th June, 1982 and the 28th April, 1983 and at or near Rendezbous Farm in the Republic of South Africa the said accused did wrongfully, unlawfully and intentionally steal 13 cattle the property of C.J. Blerk and transport them to Qholaqhoe in Lesotho where this Court has jurisdiction. The appellant was jointly charged with two other people, viz. Ramochuli Lengala and Hlakae Lebesa. The Appellant was found guilty of the theft of 9 head of cattle and sentenced to two years' imprisonment. His co-accused were found not guilty and discharged.
In his judgment the learned magistrate conceded that the case against the appellant was complicated.
With respect, I do not agree with him. If he became confused while writing the judgment, that was due to the fact that he did not read the evidence properly. The issues appear to be very simple and they are:
did the complainant properly identify the cattle before Court as his missing cattle;
did the witnesses who alleged that they had bought some cows from the appellant properly identify those cows from the cattle before Court, and if they did, were those the same cattle the complainant had identified as his; and
did the Court find the Crown witness to be truthful.
The complainant testified that he owns a farm just on the other side of the border between Lesotho and the Republic of South Africa opposite Hendricks Drift. His cattle have different earmarks and special marks and a brand CEG on their thighs. One of the special marks is that all his cattle except calves have rings inserted on their right ears and the rings have different numbers. He keeps a card for each cow. He also said that he cuts off the horns of his cattle. The coraolainant went on to say that on six different occasions during the period covered by the charge sheet he lost 13 head of cattle from his farm. One of the cattle belonged to his employee (P.W.18). On the 15th, 16th and the 17th June, 1983 the complainant came to Butha Buthe where he identified all his missing cows. At that time they all still had rings on their ears except one cow whose ear had been cut off.
According to his record of cards, the missing cows wore the earrings with the following numbers: 30, 31, 80/21, 78/13, 78/1, 36, 90, 41, 19. 78/6, 78/14, 2, 87, 17. At the trial on the 22nd August, 1983 the complainant showed the Court only 12 cows out of which only seven still had rings on their ears and four had punches on their ears "where the earrings had been fixed" and the last cow had no marks except a rope around the neck. The complainant explained that it was a calf when it got lost. Seven cows had earrings numbers: 90. 78/ 1 , 78/13, 41, 87, 78/6 and 80/21. At the inspection in loco the learned magistrate noted that the horns of all the cows claimed by the complainant were cut in a "peculiar manner." Although he did not explain how the cutting off was peculiar I have no doubt in my mind that it was something out of the ordinary.
It seems to me that in order to insert the earrings the ears had to be punched so that when the rings got lost the punches remained. It is .also clear that the rings get detached easily because on the 15th June, 1983 when the complainant identified his cows they still had their earrings but two months later on the 22nd August, 1983 the earrings were missing. It is significant that the rings got detached while the cows were already in the custody of the police where animals are often over crowded in pounds and the likelihood of the rings getting detached is great under such conditions. The learned magistrate came to the conclusion that the complainant
had convincingly identified the nine cows before Court as his missing cows. This finding was correct and was supported by the evidence.
The case for the Crown is that the appellant sold these nine cattle to the nine Crown witnesses, viz. P.W.2, P.W.4,, P.W.3, P.W.5, P.W.8, P.W.12, P.W.13, P.W.15 and P.W.6. The learned magistrate found that the witnesses were truthful in their allegations that the appellant had sold a cow to each of them. But on careful reading of the evidence of P.W.2 and P.W.4 the finding seems to be wrong. P.W.2 testified that the cow she bought from the appellant was not amongst the cattle before Court. She said that the cow she bought from the appellant had earmarks but it had no earring. From her description of the cow it cannot be said with any decree of certainty that the cow was the property of the complainant. It had neither the ring nor the punch which are the main characteristics by which the cattle of the complainant were identified. The trial court was therefore in error when it convicted the appellant of the theft of this particular cow. The cow identified by P.W.4 had neither the earring nor the punch and there was no evidence that it was a calf when it got lost. It is also not clear from the judgment of the trial court whether this particular cow was identified by the complainant.
P.W. 3 identified a hornless black cow with a punch on the right ear. This cow was properly identified by the complainant. P.W. 5 identified a black cow which had a
punch on the right ear. It also had additional earmark: R/E swallow tail, L/E saw teeth and badly made winkelhaak. This cow was identified by the complainant. The third cow was identified by P.W.15, it also had punches on both ears. The complainant identified it as his. The fourth cow was identified by P.W.6, it wore ring no. 90; the fifth cow was identified by P.W.8, it wore Ring No. 78/13; the sixth cow was identified by P.W.12, it wore Ring No. 78/6; the seventh cow was identified by P.W.13, it wore Ring No. 80/21. I found that according to the record of proceedings only seven Crown Witnesses picked and chose seven cows that were sold to them by the appellant.
Trooper Hlasoa (P.W.16) testified that on the 12th June, 1983 he went to Qholaqhoe on patrol. He found 24 cattle and 5 calves from different people, including the 9 Crown Witnesses, who explained that they bought the cattle from the appellant. He also seised bewyses from those people. He discovered that the bewyses did not tally with the cattle. He drove all the cattle to Hendricks Drift Police Post where the complainant subsequently identified them as his missing cattle. He also went to the appellant and asked for an explanation. The appellant admitted that he had sold some cattle to those people but the cattle at the police post were not the ones he had sold to those people. He also went to Hlakae Lebesa (Accused 3) who was the bewys writer and demanded the chits which authorised him to issue the bewyses. The chits purported to have been signed by one Ramokopu and
Ramochuli Lengala (Accused 2) appeared as a witness on those chits. A bunch of bewyes and chits was handed in by this witness.
Ramokopu Qabanyane (P.W. 17) gave evidence that the chits before Court had not been issued by him and he knew nothing about them. He told the Court that he was illiterate and that he only knew the appellant by sight.
The appellant did not give evidence but in cross-examination it was put to the witnesses that the appellant sold some cows to them but that those cows were not the cows exhibited in Court.
In his judgment the learned magistrate found that in order to obtain the bewyses the applicant used chits which purported to have been signed by Ramokopu Qabanyane (P.W. 17). We know that Ramokopu is illiterate and only the appellant knows the person ho issued those chits. Because of this forgery of the signature of Ramokopu I am of the view that the trial court correctly found that only the appellant knows who issued the chits. The appellant sold all the cows to illiterate people who could not see that the bewyses he gave them did not tally with the cattle. One of the people to whom the appellant sold a cow with Ring No. 80/21 was his own father, Mathibela Lebotsa (P.W.13). Mr. Mofolo for the appellant argued that "Crown Witnesses' evidence was not corroborated and there is the danger that witnesses were implicating appellant falsely for he was known to deal in cattle sales." At the
trial Mr. Mofolo even argued that these witnesses were accomplices because they accepted the bewyses which did not tally with the cattle and also bought the cattle in secret in the absence of any witnesses. An accomplice is a person who is liable to be prosecuted either for the same offence as that with which the accused is charged, or as an accessory to such offence (S. v. Kellner, 1963 (2) S.A. 435 (A.D.). All the Crown Witnesses do not fall under this definition. They all testified that they did not know that the cattle the appellant sold to them were stolen. For that reason they cannot be labelled accomplices. I have already stated above that the appellant took advantage of the fact that these witnesses were illiterate. There is nothing in our law which requires that when a person sells an animal to another person he must do so in the presence of witnesses. The Crown Witnesses knew that the appellant speculated in cattle and for that reason they had no cause to suspect that he could have stolen those cattle. There can be no question of conspiracy by these witnesses to implicate the appellant falsely because even his own father bought a cow proved to have been stolen from the complainant. The witnesses live in different villages and it is unlikely that they had the chance to lay their heads together and plot against the appellant. It has not been shown that any of the Crown Witnesses had a grudge against the appellant.
Mr. Mofolo's submission that only cows which had earrings with numbers could rightly be said to be complainant's
must be rejected. I have already shown that the rings could easily get detached and that the punches on the right ears were a clear proof that such cows previously wore rings. The learned magistrate did not rely on punches alone but he also observed that:
"all the cattle have same shape and feature". (page 28 of the typed record).
"the Court noted the peculiar manner in which the horns were cut". (page 3 of the typed record).
In other words, the cattle were of the same breed and had their horns cut off in a peculiar way.
The complainant's evidence was that when the cattle got lost they were all in calf, but his herdboy (P.W.18) testified that they already had calves. He said there were more than ten calves. Mr. Mofolo has argued that this evidence is seriously conflicting and there is the risk that the appellant was convicted of animals unknown to either the complainant or P.W.18. He submitted that the evidence on this score is such that the learned magistrate would not be in a position to either believe the complainant or P.W. 18. I entirely agree with him that the evidence is conflicting on this point but in my opinion this point is not material. The complainant conclusively identified seven cows as his property and when he found these cows at Hendricks Drift Police Post five of them had calves which were still suckling from their mothers when the cows were found. In any case, even if the complainant had failed to prove ownership the public prosecutor would have had the right to amend the charge
sheet to allege ownership in a person unknown. There would have been no prejudice to the appellant. (R. v Skenke, 1916 E.D.L. 225)
The last point raised by Mr. Mofolo is that some of the bewyses were issued in 1981, the 30th April, 1982, 12th May, 1982 and 28th March, 1982 long before the complainant lost any cattle. This is correct. In order to facilitate the sale of these stolen cattle the appellant first prepared chits and forged the signature of a man who cannot write. The preparation could have been done long before the theft was committed. Secondly, he sold these cattle to people who could not read. In respect of about 6 cows he bribed the bewys writer with beer so that he could issue the bewyses without the necessary chits. See oage 17 of the typed record.
I have carefully considered the submissions made by Mr. Mofolo on behalf of the appellant but I am convinced that the appellant was properly convicted. The only change I make is that the appellant is guilty of the theft of seven cattle.
The appeal against sentence is entirely without merit. The appellant has made a profit of well over R2,000.00 out of these transactions. A sentence of two years' imprisonment was grossly inadequate for this offence. I regard theft of stock to be a very serious offence more especially when it is committed beyond the borders of Lesotho.
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For the reasons I have attempted to summarize above the appeal against conviction and sentence is dismissed.
J. L. KHEOLA
Acting Judge
For the Appellant : Mr. Mofolo
For the Respondent : Miss Moruthoane
