CIV/APN/314/2001 IN THE HIGH COURT OF LESOTHO
the matter between:
VICE-CHANCELLOR OF NUL 1st RESPONDENT
NATIONAL UNIVERSITY OF LESOTHO 2nd RESPONDENT
Delivered by the Honourable Mrs Justice A.M. Hlajoane
Acting Judge on 21st Day of November, 2001
The Applicant in this case approached the Court ex parte
in an Application couched in the following terms:
That the Rules of this Honourable Court pertaining to
notice andservice be dispensed with and the matter be heard as
That a Rule Nisi be issued returnable on the date and
time to bedetermined by this Honourable Court, calling upon the
Respondentsto show cause, if any why:
Respondents' contemplated exclusion of the Applicant
fromhis office shall not be stayed pending the determination
ofproceedings in CIV/APN/305/2001 and, this application.
Respondent shall not be restrained from excluding
theApplicant from office, on the grounds that the
intendedexclusion is aimed at circumventing and rendering
nugatoryand of no force and effect the Judgement of this
HonourableCourt in CIV/APN/248/2000;
Respondent shall not be ordered to pay the costs of
Applicants shall not be granted such further and/or
(3) That prayer 1 and 2(a) operate with immediate effect
as interim order.
The Application was moved and was granted on the 27th
August, 2001 and return date fixed, which was later extended and
further extended till when the matter was eventually argued before
on the 24th September, 2001.
From the very beginning, I must mention that both
counsel in this case failed to behave professionally in Court by not
each other. They allowed their tempers to get the better
of them, they could not contain their tempers, thus showing so much
to the Court. They caused or allowed their interests to
prevail over that of their clients. In future I don't think that this
of behaviour will be tolerated.
The Respondents in filing their answering affidavits
raised the following points in limine:
That this matter is not urgent.
The certificate of urgency does not comply with legal
requirements in that it does not tabulate the reasons for bringing
before Court on an urgent basis.
The certificate of urgency has not been signed as is
required by law.
Local remedies have not been exhausted.
The Applicant has rightly conceded that whether or not a
matter is urgent is a matter for the discretion of the Judge who
the Application when it is first brought before him/her.
Once a judge has granted dispensation it presupposes that the matter
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,
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
legal requirement, the Lesotho Court of Appeal in the
case of Molapo Qhobela and Another vs B.C. P. and Another 1999-2000
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'sletter is pending before this HonourableCourt in
CIV/APN/305/2001 and to respond
to the Vice Chancellor would amount to dealing with
matters that are sub judice"
"I am in charge of the financial affairs and
relatedtransactions of the University in my capacity as
theBursar. To exclude me from office when the auditof the
University is being carried out would greatlyprejudice the
proper execution of my duties as theBursar."
"I was given this letter (Annexure 'ff) on the
22ndAugust, 2001, in the afternoon. I am being called
to make representations on the 24th 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 24th
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.
6 of the Order establishes the Council of the University and
its composition. Section 10 of the Order describes Council as the
governing body of the University. This Section lists the
powers of Council, which mainly comprise of the overall management
of all the affairs, concerns and property of the
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
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 10th
August, 2001 in CIV/APN/248/2000 where the present Applicant was
still the Applicant against the National University of Lesotho,
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
The judgment of my brother Mofolo J did not only make a
on procedural irregularity on the part of the University
in effecting the exclusion, but went further to say that the exercise
exclusion has been "presumptuous" and "pre-emptive".
This is more so because according to the letter Exhibit
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
AM. HLAJOANE ACTING JUDGE
For the Applicant: Mr Mahlakeng For the Respondent: Mr
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law