CIV/APN/98/04

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

KONOSOANG
TLALI APPLICANT

And

THE
PRINCIPAL OF PAUL VI

HlGH
SCHOOL 1st RESPONDENT

THE
SCHOOL BOARD OF PAUL VI

HIGH
SCHOOL 2nd RESPONDENT

RELEBOHILE
MOHALE 3rd RESPONDENT

TEACHING
SERVICE COMMISSION 4th RESPONDENT

ATTORNEY-GENERAL
5th RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G. N. Mofolo On the 21st day of
November, 2005

This is
an application in which the applicant approached this Court on an
urgent basis to declare 2nd respondent's decision not
to consider
applicant for a teaching service to be declared null and void and of
no force or effect and 4th respondent's decision
to fill the vacancy
without applicant's candidature to be also declared null and void.

This
Court granted the application with costs intimating its reasons would
follow. Here now are reasons for judgment.

It is
common cause that applicant applied for the post. In her application
she draw attention to the fact that by reason of holding
a degree
relevant to the post, she was better qualified to fill the post.
However it does seem that at time of applying for the
post applicant
was plagued by issues which made her go on an extended sick leave. It
was while she was on leave that the post was
filled by 3rd respondent
who, incidentally was less qualified than the applicant.

In his
Answering Affidavit the 1st respondent who has deposed to the
affidavit also on behalf of the 2nd respondent by virtue of
him being
secretary of the 2nd respondent, 1st respondent admits that applicant
applied but by reason of illness was not discharging
her duties from
January, 2003 to November, 2003 (para. 4.1.3). At para 4.1.4 1st
respondent says 3rd respondent also applied for
the post and 2nd
respondent considered all the applications for the vacant post and
made its recommendations to the 4th respondent.
Also, according to
the 1st respondent "while it is conceded that it is desirable to
fill a vacant post with a person possessing
higher

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qualifications,
that is not the only consideration" for "the availability
of the prospective candidate to discharge the
functions of the post
is another and perhaps the overriding consideration." (para.
4.1.5).

With
regard to 4.1.4, section 18 (3) of the Teaching Service Regulations
2002 is to the effect that "any person who wishes
to be
considered for a vacancy at a particular school shall apply to the
School Board or Management Committee through the Principal."

This is what the applicant did. Sub-section 5 is to the effect the
School Board or Management Committee may invite such teachers
(if
any) and other applicants for interview meaning it is not obligatory
to invite them for interview. Sub-section 6 is peremptory
in that in
the case of a teaching post, it shall then submit its recommendation
to the Commission using a form similar to schedule
17.

Now
schedule 17 on page 35 of the Regulations above is self-explanatory
except highlight the following:-

1st
Choice Name Reg. No.

Present
School (if any

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Qualifications
Qualification date

Comments

2nd
choice, 3rd choice, 4th choice, 5th choice, 6th choice, etc. I read
this as meaning that the Board is to forward names of candidates
to
the Teaching Service Commission with recommendations meaning the
Board is empowered to state its preference or not, for any
reason,
withhold the application for if the Board is not disposed to a
particular candidate according to the note to schedule 17,
reasons
must be given for such preference or not-preference in which case it
will be up to the Teaching Service Commission to agree
or disagree
with the Teaching Service Board or Commission. In this case the
applicant was shut out by the 4th respondent for wrong
reasons
afterall despite her illness applicant was a practicing teacher.

I am of
the view the 4th respondent failed to apply its mind to the problem
in hand and acted unfairly to the prejudice of the applicant.

Mr. Mda
for the applicant has submitted applicant expected that her
application would, along with others, be submitted to 4 respondent

with recommendations. Contrary to this expectation which 1st
respondent

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conceded,
none of this was done for applicant's application was not forwarded
to 4 respondent with recommendations against expectation
by the
applicant that the application would be so forwarded and considered
by the 4th respondent. Applicant had a legitimate expectation
that
her application would be forwarded and considered but it was neither
forwarded nor considered to her prejudice. I could not
agree more.

I am of
the view that 2nd respondent failed to apply its mind to the problem
in hand and acted unfairly to the prejudice of the
applicant. It is
for these reasons that the application was granted as prayed with
costs to the applicant.

G.N.
MOFOLO

For the
applicant: Mr. Mda

For the
1st, 2nd and 3rd respondents: Ms. Lekalakala

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