CIV/APN/248/2001

IN THE HIGH COURT OF LESOTHO
In the matter
between:

MATSOBANE PUTSOA APPLICANT

and
NATIONAL UNIVERSITY OF LESOTHO RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. Justice G.N. Mofolo on
the 10^th day of August. 2001.

On 8 January, 2001 a letter which we reproduce in full
below was written to the applicant by the Acting Vice-Chancellor Dr.
. Thikhoi
Jonathan as follows:-

The National University of Lesotho

Vice Chancellor, P.O. Roma 180

R.I.M. Moletsane Lesotho.

B.A., B.Ed, M.Ed (UBLS) Africa.

2

M.A. (UOFS) Telephone: Roma 340601/340269

DEd (UMASS) Telegrams: Uniter, Roma, Lesotho

Telex 403 LO Telefax: 340000

OFFICE OF THE VICE CHANCELLOR

8 January, 2001.

Mr. M. Putsoa,

National
University of Lesotho,

P.O.Roma 180.

Senate in its meeting of 4 January, 2001 recommended and
advised the Acting Vice-Chancellor that since council has authorised
a Forensic
Audit of the Bursary to be carried soon, you should be
barred from entering university premises.

In pursuance of the powers vested in me under Section
(16) (8) (b) of the 1992 NUL Order, please note that you are excluded
from any
part of the university premises until the forensic audit of
the Bursary has been completed.

Please hand in any university property that may be in
your possession. Hoping for your understanding and cooperation in the
matter.

Yours sincerely,

Sgd. Dr. L. Thikhoi Jonathan Acting Vice-Chancellor

cc: Registrar

On receipt of the letter it would seem the applicant had
approached

3 this court on an application couched as follows:

Kindly take notice that an Application will be made to
the above-mentioned court on behalf of the Applicant herein on 29^th
June, 2001 at 9.30 in the forenoon or so soon thereafter as the
matter may be conveniently heard for an order in the following
terms:-

1. 
   That the Rules of this Honourable Court pertaining
   to
   the notice and service be dispensed with and the
   matter be heard
   as of urgency.

   
   

2. 
   That a. Rule Nisi be issued returnable on the date and
   time to be determined by this Honourable Court
   calling upon the
   Respondent to show cause, if any,
   why:

   
   

1. 
   The respondent and/or its office shall not
   be
   interdicted forthwith from unlawfully
   interfering
   with the applicant in the execution
   of this duties pending
   determination of this
   application.

   
   

2. 
   The purported exclusion of the Applicant from
   the
   respondent's premises shall not be set
   aside;

   
   

4

3. 
   The respondent shall not be ordered to pay the
   costs
   of this application in the event of
   opposing the orders
   sought herein.

   
   

4. 
   Applicant shall not be granted such further
   and/or
   alternative relief.

   
   

3. That prayer 1 and 2(a) operate with immediate
effect in the interim.

My brother Monapathi J. had granted the order that
respondent be served with the papers. Respondent having been served
with the papers
had opposed the application. When counsel appeared
before me it was agreed that points in limine be argued together with
merits of
the case.

The respondent's answering affidavit was an expansive
rolling document which hardly addressed itself to issues raised. Mr.
Mosae's
argument before me was no different: pedantic and avoiding
issues raised by the applicant.

Repeatedly in his Founding Affidavit the applicant has
said that he is Bursar of the respondent. A bursar according to the
Oxford
Illustrated

5

Dictionary 2^nd Ed. is a treasure of a college
so that when the applicant was written the above letter he was
Treasurer of the respondent. The same
dictionary referred to above
refers to a Treasurer as 'now one responsible for funds of public
body or any corporation, society or
club. The respondent can be
safely classed as a corporation so that in this court's view
applicant's position with the respondent
is no mean one and deserves
to be treated with candour and respect and not off-handedly as if
anything said or done to him did not
matter.

In his paragraph 8 of the Founding Affidavit applicant
has deposed:

I respectfully submit that my purported exclusion is not
only prejudicial to me for being purposeless, but wrongful and
improper for
the following reasons:

8.1 When the vice-Chancellor decided to issue the
banning order, I was never offered an opportunity to make
representation on the
matter. I respectfully submit that in my
position as the University Bursar I have a legitimate expectation to
be heard when a drastic
step like excluding me from the University in
general and my office in particular was contemplated.

6

2. 
   When excluding me from the University the
   vice-
   Chancellor purports to have acted on the
   recommendation
   and advise of Senate, I respectfully
   submit that since the
   Senate has no power to
   recommend and/or advise the
   vice-Chancellor in the
   manner it did, the vice-Chancellor has
   failed to
   exercise the discretion vested in her, and/or
   she
   exercised such discretion improperly.

   
   

3. 
   When excluding me from the University the
   vice-
   Chancellor appears to have had no other apparent
   basis
   for exercising the discretion except the
   recommendation and
   advise of Senate.

   
   

4. 
   The exclusion contemplated by section 16(8), (b) of
   the
   1992 N.U.L. Order is purely aimed at
   maintaining
   and promoting the efficiency and good
   order of the University. I
   respectfully submit that no
   basis whatsoever has been laid in the
   vice-Chancellor
   letter of exclusion, that maintenance of
   efficiency
   and good order of the University was at stake.
   Even
   if some basis whatsoever was laid, I still
   maintain that I was
   entitled and I legitimately
   expected to be heard.

   
   

5. 
   The vice-Chancellor's act of excluding me as she
   did
   smacks of discrimination and some ulterior motives

   
   

7

in that I have been singled out of the staff of about
20. The intended forensic audit is aimed at and to be carried on the
Bursary.
I am a Bursar. No explanation whatsoever, has been given as
to why the investigation has to be carried out in my absence and/or
to
my exclusion.

This court is concerned with whether the applicant can,
in law, be barred and excluded from university premises without being
heard.
Whether it is justifiable that without being heard he should
'hand in any university property that may be in' his possession. As
to the doctrine of audi alterant pattern, according to Prest (The Law
and Practice of Interdicts, Juta &. C. Ltd., 1996 at p.223,
'however urgent a matter may appear to be, and however anxious an
applicant may be to obtain his relief, a court is seldom willing
to
come to the assistance of a party without giving the other party the
opportunity to state his case. I may add, however satisfied
a party
is with the bona fides of a party before it, it will not take drastic
steps against the offending party before hearing it.
It has been said
so firmly entrenched in the South African justice is the principle of
audi alteram partem that the maxim has been
described by the
Appellate Division as 'sacred' - see Sachs v. Minister of Justice;
Diamond v. Minister of Justice, 1934 AD. 11 t
38 and cases quoted at
footnote 64 p.223 of Prest, The Law and Practice of

8 Interdicts above.

In this case as I have shown above from applicant's
Founding Affidavit he has shown that he has civil rights and
interests which were
prejudicially affected - see Mankatshu v. Old
Apostolic Church of Africa and Others, 1994 (2) SA. 458 (TKA) at 462;
see also Seloadi
and Others v. Sun International (Buphuthatswana)
Ltyd., 1993 (2) SA. 174 (B) at 179 - 180; S. v.Dobson, 1993 (4) SA.
55 (E); Masinga
v. Minister of Justice, Kwazulu Government, 1955 (3)
SA. 214 (A) at 221 - 224 B.

According to H.W.R. Wade in 10 Cambridge Law Journal 216
at 228, 'as a general rule it may be said that rules of natural
justice must
be complied with in a quasi-judicial act. The act
complained of must of course be performed in the exercise of a
discretion and the
organ is to be established normally from its rules
vested with free discretionary power and may decide for itself about
the desirability
and efficacy of its choice; in such a case no court
will prescribe to it how it is to make its choice. This
notwithstanding, the
organ cannot exceed its powers or use its powers
for an ulterior motive or fail to apply its mind to the matter - see
Johannesburg
Consolidated Investment Co. v. Johannesburg Town
Council, 1913 T.S. Ill at 115; Union Government (Minister of Mines
and Industries)
v. Union Steel Corp. (SA.) Ltd,

9

1928 AD. 220 at 224. From these cases it emerges that if
a discretion is conferred by statute upon an individual and he fails
to appreciate
the nature of that discretion through misreading the
Act which confers it, he cannot and does not properly exercise that
discretion.
In such a case a court of law will correct him and order
him to direct his mind to the true question which has been left to
his discretion.

It is to be understood that though the organ has a free
discretion this does not mean that such a discretion stands outside
the law
and is not bound by law - it still has to adhere to rules
laid down by law.

On the other hand, according to judgment in cases above,
there is what is termed circumscribed administrative discretion which
is
of course circumscribed and limited; here the number of options is
limited by statute and circumscribed under which the discretion
is to
be exercised and is clearly defined by the statute. According to
this, jurisdictional facts are employed being those facts
and
circumstances which determine the powers of the organ and the
existence of such facts may be established by a court of law and
if
the facts and circumstances do not exist, the discretion may not be
exercised. Accordingly, where, for example, the statute provides
that
an administrative organ may make an eviction or bar an individual as
in the

10

present case, circumstances should prevail to warrant or
prompt the organ into exercising the discretion under the law. A case
in
point is where teachers or employees are on strike; if the
authorities fear there might be violence and property damaged, it is
in
order to lock our or as it were restrict and/or exclude striking
teachers from school or university property. As Mr. Mosae correctly
conceded, applicant is not guilty of any malfeasance and yet
visitations on the applicant are drastic and to be feared these
coming,
as it were, out of the blue and not against the backdrop of
Ernst & Young, Lutaru/Nawu recommendations. I am not saying
respondent
would only act were there such recommendations, I am
saying circumstances did not warrant drastic steps taken against the
applicant.

Mr. Mosae before this court and in his heads of argument
has contended that the respondent acted as it did to apply the law as
authorised
by the relevant section of the order under which it acted.
Now, the relevant section is 16(8) (b) of Order No. 19 of 1992.
Sub-section
(8) reads:-

In pursuance of this powers under subsection (7) the
vice-Chancellor may,

(b) exclude any student or member of staff of the
University from any part of the University premises.

11 sub-section 7 reads:

The vice-Chancellor shall, subject to this order and the
status, have a general responsibility to the council for maintaining
and
promoting the efficiency and good order of the University.

As I understand subsection 7, the law gives the
vice-Chancellor discretion to deal with students and members of the
staff who are
out of order or inefficient vices the applicant is not
associated with. Having said this, I must caution that even where the
vice-Chancellor
has applied the sub­section it does not mean that
the court is precluded from inquiring whether in so acting the law
was followed.
It is also to be observed that 'may' in sub­section
8 is directory and not peremptory or as it were imperative thus
giving the
vice-Chancellor a wide discretion in the circumstances.

I have taken a close look at the law applicable and the
interpretation clauses thereof and have found that there is no
interpretation
of the term 'exclude.' However, the Concise Oxford
Dictionary 8^th Ed. describes 'exclude' as 'shut or keep
out (a person or thing) from a place, group or privilege, etc.;
'expel or shut out/ Expel
is described in the same dictionary as
'deprive (a person) of the membership or involvement in (a school,

12

society, etc.)';'order or force to leave a building,
etc.' In this court's view, nothing can be worse than being excluded
from membership
or a building without being heard. What's unheard of,
the letter of exclusion by the vice-Chancellor referred to above
requires the
applicant to in addition hand over or as is said 'hand
in any university property that may be in your possession.' As this
court
sees things, the vice-Chancellor went an extra mile without
hearing applicant. Moreover, unless I am mistaken, in the law that
the
vice-Chancellor applied nowhere does it authorise him or her in
addition to exclusion, to order that university property be handed
over. Respondent by his/her act dismembered the applicant from the
day to day activities of the respondent as if a determination
against
the applicant had been arrived at. Even were there such a
determination, it cannot be made without hearing the applicant.

But of course in the instant case it is to be assumed
the vice-Chancellor after reviewing prevailing circumstances (albeit
wrongly)
such circumstances being a report and recommendations of
Ernst and Young, Presidents of Lutaru and Nawu which concerned
themselves
with restructuring and effective management of
respondent's resources by means of 'an audit committee and internal
audit department.'
The recommendations are wide ranging covering
every aspect of respondent's responsibility. Ernst and

13

Young have in particular advocated that the result of
forensic audit is that employees who are unproductive and incompetent
can be
identified; also 'to be undertaken to substantiate or dispel
the allegations that have been made regarding the validity of certain
expenditure items.' On the other hand, Lutaru and Nawu referred to
above have listed a number of financial improprieties among them
being concerning a contractor, extension of the bursary, covering a
car ports, etc, construction of gates at I.E.M.S, carpeting of
Highlands, etc, purchase of photocopies, contracts for the supply of
furniture ,privatisation of cleaning services of the University
on
the Taung Skills Centre in Liphiring. In particular Lutaru and Nawu
have complained of 'some individuals are lining their pockets
with
University funds through these and other schemes'. Nowhere in the
recommendations has the forensic team advised the respondent
to take
steps if anything against the university staff concerned in the
improprieties.

As I have demonstrated above, recommendations by Ernst
and Young plus Lutaru and Nawu can safely be termed jurisdictional
facts which,
in the exercise of its discretion respondent should have
taken into account. Noticeably, the recommendations and as it were,
jurisdictional
facts were wide ranging and inclusive covering every
aspect of the respondents activity. In adverting to the order under
which the
respondent acted, he or she should

14

have addressed her mind to the aforesaid recommendations
or as it were jurisdictional facts and I find it failed to do this.
As I
have said, a Bursar is a Treasurer who overseas respondent's
treasurers. The respondent has described the applicant as 'a senior
officer of the respondent' (vide para. 7 of the Answering Affidavit)
and I shudder to reflect that such a senior officer of the respondent
was treated so shabbily. In any event, under a Bursar are several
mini bursars accountable to the Bursar engaged in daily transactions.
Although he is responsible for overall management, he is not
immediately accountable until an audit inquiry has revealed
otherwise.
I find the exercise by the respondent to have been
presumptuous and pre-emptive - something this court cannot allow.

The subject matter of audi rule has been dealt with
extensively by our courts and hardly requires recapitulation. It is
an old hat
trampled upon by courts of law for years on end. Whether
we are academics or socialites, it does not mean that principles of
natural
justice are hidden away from us because by nature we are
endowed with them. If your child is assaulted by another, you do not
go
for the aggressor before hearing him. It can never be, my child
has told me what you did to him and I am not listening to you. If
you
do, you will be rightly accused by bipartismship. Ours is civilised
society which cannot be allowed to ignore elementary rules
of daily
social

15

intercourse. Hearing the other side before acting
pre-empts accusations of selective morality and one-sidedness. Much
as it is denied
by Mr. Mosae that there were accusations against the
applicant who continues to receive his salary, it was incumbent on
the respondent
to hear from the applicant why sanctions imposed on
him were not justifiable. These were no ordinary sanctions for they
deprived
applicant of his rights, privileges and freedom of
association without being heard.

Rules of natural justice are nothing but that where
individual rights, privileges and immunities are going to be
interfered with it
is desirable that the subject should be heard.
Principles of natural justice are no more than an expression of the
rule of law where
a person's rights, privileges and liberties cannot
be curtailed or extinguished except by due process of law. The law
frowns on arbitrary
action against a subject. It is arbitrary to
deprive a subject and in this case the applicant without hearing him
in a matter that
was not brought about by him but by exigencies of
the situation.

I have found the applicant to have complied with
requirements of an ex-parte application in that the urgency arose on
the occasion
of the applicant having to resume duties from his
Sabbatical leave. Sufficient reasons prompting urgency were canvassed
in applicant's
founding papers.

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Accordingly, this court grants the application with
costs to the applicant.

G.N.MOFOLO

JUDGE
9^th August, 2001.

For the Applicant: Mr. Mahlakeng For the
Respondent: Mr. Mosae