CIV/APN/113/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of

PULE
KHAKA Applicant

and

1. JOANG
MOLAPO 1st Respondent

2. PHOKA
FOSA 2nd Respondent

3.
MATHIBELI RASEKOAI 3rd Respondent

4. SEMPE
MOSOTHOANE 4th REspondent

5. THABO
MOTLAMELLE 5th Respondent

6.
MAKHOTSANG PHOKOJOE 6th Respondent

7. THABO
THULO 7th Respondent

8. NAPO
SEFALI 8th Respondent

9.
NOBTHONGO NOMO 9th Respondent

10.
THABANG MOKHESI 10th Respondent

11. KETSO
LETSEKA 11th Respondent

12.
COSMOS MOTHEPU 12th Respondent

13. THATO
MOLAPO 13th Respondent

14.
N.U.L. 14th Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 25th day of June,
1985.

The
Applicant was the duly elected Chairperson of the Students
Representative Council (S.R.C.) of the University of Lesotho for
the
83/84 academic year.

On 30th
August, 1984, that is, at or shortly before the commencement of the
84/85 academic year 6 members of the S.R.C. handed
in their letters
of resig­nation from the S.R.C.

On 3rd
September, 1984 the remaining members of the S R.C.. including the
1st Respondent, acting in accor­dance with Article
10.3 of the
Students Union Constitution, met to accept these resignations. This
much is common cause. However, the Applicant said
that the S.R.C.
then proceeded to reorganise itself by electing Applicant as
Chairperson and the 1st Respondent as the Assistant
Sec­retary
for Administration, while 1st Respondent claimed that he disputed
Applicant's claim to chair the meeting

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by virtue
of the provisions of Article 8 of the Constitu­tion.

Section
23 of this Article provides that the Secretary for Administration
shall deputise for the Chairperson in the latter's absence.
Since
both the Secretary for Administration and the Chairperson were among
those who had resigned their officers, 1st Res­pondent,
relied
upon Section 11.2 of this Article, which provides that the Assistant
Secretary for Administration (which he was) shall act
in the absence
of the Secretary for Administration: By a double leap, therefore, 1st
Res­pondent claimed that he should have
chaired this meeting and
that he should remain as Chairperson of the S.R.C. until the election
of a new S.R.C. due to take place
in the beginning of the new
Academic year of 1984/85.

In
various other ways also, the 1st Respondent held himself out as the
Chairperson of the S.R.C. which led to application No. 205/84
for an
order directing the 1st Respondent (who was the only respondent in
those pro­ceedings)

1. to
   return all the assets of the Students Union to the Applicant in his
   capacity as the Chairperson and Secretary for Finance,

   
   

2. to
   restrain the 1st Respondent from holding himself out as Chairperson
   of the S.R C.

   
   

3. to
   declare invalid all resolutions and transactions the 1st Respondent
   carried

   
   

out through the misrepresentation of himself as Chairperson,

4. directing
   the 1st Respondent to follow the constitution in the event of him
   wishing to change the S.R.C.

   
   

5. and
   to pay the costs.

   
   

In the
result, an order was made by me on 26th April, 1985 restraining the
1st Respondent from holding himself out as the Chairperson
of the
S.R.C.. and ordering him to pay the costs. The other orders sought
were refused mainly on the ground that the transactions
refer­red
to had already resulted in the annual election for

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a new
S.R.C. taking place and in a new S.R.C. being elected in September,
1984 for the 1984/85 academic year, and that this whole
new S.R.C.
(of which 1st Respondent is not a member) and which was not a party
to these proceedings would be materially affected
by such an order. A
further application for the committal of the 1st Res­pondent for
contempt for breach of an interim interdict
was heard together with
the first application and was dismissed with costs.

Notwithstanding
the order made in the first application, the Applicant then lodged an
application for joinder of the 13 members
of the new S.R.C. and which
application for obvious reasons was not pursued.

In the
meantime, what had happened was that a so-called electoral officer on
7th September, 1984 had announ­ced elections of
the Students
Union to elect a new S.R.C for the 1984/85 academic year. Applicant
says that these elections were boycotted by the
overwhelming majority
of the student body. Nevertheless these elections proceeded to the
conclusion that the 2nd to 13th Respondents
in this application were
elected as members of the S.R.C. Since that date to the present time,
this S.R.C. has managed the affairs
and undertakings of the student
body and has controlled the funds of the Students Union which were
put at its disposal, after these
elections, by the 14th Respondent,
the University of Lesotho,and generally it has acted in the normal
way of an S.R.C. duly elected
by the student body.

On 6th
May, 1985, Applicant launched the present proceedings against the
same 1st Respondent as was the sole Respondent in the earlier

proceedings and with whom the Applicant has joined the whole of the
S.R.C., and the University for an order declaring these elections
to
be null and void and directing them to restore all the assets of the
Student Union to the Applicant. He further claims an order
declaring
all business transacted by this S R.C. to be null and void including
the action of the Uni­versity in paying over
the Student Union's
funds to the

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S.R.C and
for other consequential relief.

This
matter was heard by me in June 1985 when the academic year 84/85 was
almost at an end.

A
preliminary point taken by the Applicant against the 14th Respondent,
for what purpose I have been unable to understand, was based
upon the
allegation of the Campus Registrar who was the deponent to an
affida­vit filed by him on behalf of the University
that he had
the general authority of the University to represent it in any legal
proceedings. It was submitted that such a statement
of the campus
Registrar was not evidence of his authority to represent the
University and that some speci­fic resolution of
the University
Administration was the minimum proof required. While it may be that
if a written resolution does exist authorising
the Campus Registrar,
the production of such a resolution would be required as the best
evidence of its existence, but short of
that 1 see no reason why an
office bearer of the University should not prove his authority to
represent it by his ipse dixit that
he has such general authority of
the University in all legal proceedings However, in the course of
argument before me, Applicant,
by way of compa­rison, produced a
minute of a resolution of the University Council passed in March,
1985 authorising the same
Campus Registrar who is the deponent to
this affidavit to take such legal proceedings as he deemed necessary
to resolve the dispute
between the contending S.R.C s, that is, the
very matter with which this application is con­cerned. In the
result the point
fails.

Article
16 of the Constitution provides that the S.R.C. shall appoint a
Students Judiciary Committee (S.J.C ) consisting of 5 law
students.
Article 9.5 5. provides that any objection by the electorate
concerning the elections shall be lodged the Electoral Officer
in
writing who shall submit any such objection to the Judiciary which
shall make a ruling on the matter. Article 16 also provides
for a
right of appeal from the S.J C. to the Senate Disciplinary Committee.

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It
appears from the papers before me that such S.J.C. had been duly
appointed by the S R.C. and was in existence at the time of
the
elections in September 1984. Notwithstanding this, no objection was
lodged against the election by the Applicant, or anybody
else and the
newly elected S.R.C entered upon its term of office without any
challenge to its members' election or their authority,
until the
launching of these proceedings

Whatever
the merits of this application may have been had it been launched
before or at the time of the elections in September,
1984, an order
such as is sought by the applicant if granted now would create a
situation where every act, whether of administration
or otherwise,
would have to be considered as invalid every penny spent by this
S.R.C. would have to be regarded as impro­perly
spent, and a mine
of litigation would be opened up to the delight only of lawyers, and
to create the sorry spectacle of a clash
of personalities in a
contest for University leadership (as I see this dispute ) between
Applicant and 1st Respondent being a source
of destruction of the
tranquility of a seat of learning.

It would
be a sorry day if I were to find myself obliged to declare the
election and conduct of the 1984/85 S.R.C throughout the
whole of the
past academic year null and void and to hand over the affairs and
assets of the Student body to the Applicant merely
because he was
Chairperson of the 1983/84 S.R.C.

However,
I am satisfied both on the facts and in law, that the failure of the
Applicant and his remaining fellow members of the
1983/84 S.R.C to
take the steps provided for in the constitution for lodging an
objection to the elections on the grounds on which
this application
is based, for determination by the S.J.C., and the further failure of
the Applicant and his S R C. to take any
judi­cial steps against
the holding of the election or the election itself on the same
grounds, amounted to an ac-quiscence
by the Applicant in the very
state of affairs which he claims amounted to an infringment of his
rights.

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In
addition to that acquiscence, the Applicant has allowed so long a
period to pass that inevitably such substantial prejudice would
be
suffered by the incumbent S.R.C., by the Student Body and by the
University itself, that the Applicant must be considered to
be
estopped from now enforcing such fights

The
Student body and the university can only have been led to believe
that their Student Union was being managed by a duly elected
S.R.C
and that they were entitled to entrust their affairs and funds to
their administration, while the S.R C. members themselves
have had
their appointment challenged by the Applicant only at the very end of
their term of office . The prejudice that would
be suffered by them
through any attempt to restore the status quo ante would be so
in­equitable as to justify a finding that
the Applicant is now
prevented from asserting such rights. See PolicanskyBros, v Herman &
Canard 1910 TPD 1265 and Mutual Life
Assurance Co. Ltd of New York v.
Ingle 1910 TPD 541.

The
application is dismissed with costs,

D S.
LEVY,

ACTING
JUDGE

25th
June, 1985.

For
Applicant Mr. Mphutlane,

Fro
Respondents Mr Matsau