CIV/APN/314/2001
IN THE HIGH COURT OF LESOTHO

In
the matter between:

MATSOBANE
PUTSOA APPLICANT

and

THE
VICE-CHANCELLOR OF NUL 1^st RESPONDENT

THE
NATIONAL UNIVERSITY OF LESOTHO 2^nd RESPONDENT

JUDGMENT

Delivered by the Honourable Mrs Justice A.M. Hlajoane
Acting Judge on 21^st Day of November, 2001

The Applicant in this case approached the Court ex parte
in an Application couched in the following terms:

1. 
   That the Rules of this Honourable Court pertaining to
   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
   Respondents
   to show cause, if any why:

   
   

1. 
   Respondents' contemplated exclusion of the Applicant
   from
   his office shall not be stayed pending the determination
   of
   proceedings in CIV/APN/305/2001 and, this application.

   
   

2. 
   Respondent shall not be restrained from excluding
   the
   Applicant from office, on the grounds that the
   intended
   exclusion is aimed at circumventing and rendering
   nugatory
   and of no force and effect the Judgement of this
   Honourable
   Court in CIV/APN/248/2000;

   
   

3. 
   Respondent shall not be ordered to pay the costs of
   this
   application;

   
   

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

   
   

(3) That prayer 1 and 2(a) operate with immediate effect
as interim order.

The Application was moved and was granted on the 27^th
August, 2001 and return date fixed, which was later extended and
further extended till when the matter was eventually argued before
me
on the 24^th September, 2001.

From the very beginning, I must mention that both
counsel in this case failed to behave professionally in Court by not
listening to
each other. They allowed their tempers to get the better
of them, they could not contain their tempers, thus showing so much
disrespect
to the Court. They caused or allowed their interests to
prevail over that of their clients. In future I don't think that this
kind
of behaviour will be tolerated.

2

The Respondents in filing their answering affidavits
raised the following points in limine:

1. 
   That this matter is not urgent.

   
   

2. 
   The certificate of urgency does not comply with legal
   requirements in that it does not tabulate the reasons for bringing
   this matter
   before Court on an urgent basis.

   
   

3. 
   The certificate of urgency has not been signed as is
   required by law.

   
   

4. 
   Local remedies have not been exhausted.

   
   

On Urgency

The Applicant has rightly conceded that whether or not a
matter is urgent is a matter for the discretion of the Judge who
considers
the Application when it is first brought before him/her.
Once a judge has granted dispensation it presupposes that the matter
is
being treated as urgent. I would therefore not at this stage turn
around and say the matter in fact is not urgent as that would be
tantamount to reversing the decision of my brother Judge who granted
the rule nisi:

In Sikwe vs S.A. Mutual Fire and General Insurance 1977
(3) S.A 438 at 440,

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it was stated that it is the substance of the affidavit
and not the form which will weigh with a Court on urgency.

Non-Disclosure of Grounds for Urgency

This point is somehow similar to the previous point.
Respondents' point on certificate of urgency not satisfying or
complying with
legal requirement, the Lesotho Court of Appeal in the
case of Molapo Qhobela and Another vs B.C. P. and Another 1999-2000
LLR &
LB 243 clearly indicated that such argument would not hold
water where urgency has been canvassed on the affidavits. As was said
in Qhobela's case [supra], Applicant's founding affidavit at para 8
proclaims the extreme urgency.

8.1. "The subject matter of the Vice
Chancellor's
letter is pending before this Honourable
Court in
CIV/APN/305/2001 and to respond

to the Vice Chancellor would amount to dealing with
matters that are sub judice"

2. 
   "I am in charge of the financial affairs and
   related
   transactions of the University in my capacity as
   the
   Bursar. To exclude me from office when the audit
   of the
   University is being carried out would greatly
   prejudice the
   proper execution of my duties as the
   Bursar."

   
   

3. 
   "I was given this letter (Annexure 'ff) on the
   22^nd
   August, 2001, in the afternoon. I am being called

   
   

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to make representations on the 24^th August.
2001. Surely this does not even give me sufficient time to prepare.
The auditors have not even been consulted to ascertain
whether or not
my presence in office is prejudicial to this exercise."

Incidentally the rule in CIV/APN/305/2001 was confirmed
the same day that this Application was argued, the 24^th
September, 2001.

Unsigned Certificate of Urgency

Applicant has rightly shown that this submission is
clearly misplaced because as a matter of fact the Certificate of
Urgency has been
signed. This point in limine therefore does not hold
water as the Certificate filed of record has been signed.

Local Remedies not Exhausted

Though I had not been availed of a copy of the N.U.L
Order 19 of 1992, somehow I managed to secure a copy from somewhere.
Section
6 of the Order establishes the Council of the University and
its composition. Section 10 of the Order describes Council as the
Supreme
governing body of the University. This Section lists the
powers of Council, which mainly comprise of the overall management
and control
of all the affairs, concerns and property of the
University.

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On the papers, the Court has been informed that the
Applicant is the Bursar at N.U. L, an office established under
Section 19 of the
Lesotho National University Order No. 19 of 1992.
He is appointed by the Council of the University as its Chief
Financial Officer,
subject to the directions of and responsible to
the Vice-Chancellor. The order has no provision for a procedure that
has to be followed
where there are grievances by officers like the
Bursar neither does it oust the jurisdiction of the High Court.

My brother Mofolo J delivered his Judgement on the 10^th
August, 2001 in CIV/APN/248/2000 where the present Applicant was
still the Applicant against the National University of Lesotho,
and
in his judgement the following passage has been quoted:

"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 (N.U.L.) To have
been presumptuous and pre-emptive, something this Court cannot
allow."

The judgment of my brother Mofolo J did not only make a
pronouncement

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on procedural irregularity on the part of the University
in effecting the exclusion, but went further to say that the exercise
of
exclusion has been "presumptuous" and "pre-emptive".
This is more so because according to the letter Exhibit
"DD"
by the Acting Vice-Chancellor to the Applicant he is saying, "It
is my intention to exclude you from office while
this process is
being completed and pending its finalisation." No mention of any
revelations by the audit enquiry which might
have influenced his
decision. This judgment constituted a bar to future administrative
action on the part of the University to a
certain extent, "until
an audit enquiry has revealed otherwise."

In the result, it is held that the points in limine are
without merit and must therefore fail. The application succeeds with
costs.

AM. HLAJOANE ACTING JUDGE

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

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