CIV/APN/637/04

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MOHAU
LIKA

AND

THE
ADJUDICATOR (MRS. MAPUTSOE N.O.) 1st Respondent

THE
CHAIR, TEACHING SERVICE COMMISSION 2nd Respondent

THE
ATTORNEY GENERAL 3rd Respondent

ST. JAMES
ANGLICAN HIGH SCHOOL 4th Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice G. N. Mofolo On the 18th day of March,
2005

This case
came to this court by way of review the applicant having applied for
an order in the following terms:-

1. Dispensing
   with the rules relating to notice and service of process owing to
   urgency hereof

   
   

2. That
   a rule nisi issue and is hereby issued calling upon respondents to
   show cause, if any, why:-

   
   

1. First
   and second respondents shall not remit a record of proceedings in
   respect of disciplinary proceedings held against applicant
   for
   breach of discipline to the Registrar of this court for review and
   within 3 days of receipt of this order.

   
   

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2. Proceedings
   (a) above shall not be reviewed and set aside.

   
   

3. Applicant
   shall not be re-instated to his teaching post at St. James Anglican
   High School.

   
   

4. Respondents
   shall not be ordered to pay costs in the event of opposition.

   
   

5. Applicant
   shall not be granted further and/or alternative relief as the court
   day deem fit.

   
   

3. That
   prayer 2(a) operate with immediate effect as an interim relief.

   
   

It would
seem that interim relief was granted on 24 December, 2004and made
returnable on 4 January, 1995 when the application was
argued before
me on 14 January, 2005. Mr. Phoofolo for the 4th respondent appears
to have taken a point in limine namely that applicant
did not exhaust
local remedies namely that points which the applicant relies upon
were not argued in courts below. To this Mr.
Teele, for the applicant
has retorted that there is no way such points could have been argued
for despite demand, the record was
not made available having been
made available only on this matter coming on review to this court.

This
court is of the view that throughout the only point in contention was
whether the entire proceedings were appropriate other
factors having

2.

come in
to buttress the contention. Applicant having been found guilty by the
Adjudicator appealed to the Teaching Service Commission
which threw
out applicant's appeal. I am of the view that in this respect
applicant exhausted the requirements complained of.

Accordingly
the point in limine does not succeed.

On 14
January, as indicated above, the court having also been addressed on
merits set aside judgments of both the Teaching Service
Commission
and the Adjudicator.

In
setting aside the Teaching Service Commission finding, the court was
of the view that a proper judgment to have been entered
by the
Teaching Service Commission was one setting aside the judgment of the
Adjudicator and the court indicated its reasons would
follow. Here
now are my reason for judgment.

The
applicant was charged of misconduct on following allegations:-

1. Misuse
   of your position as Deputy Head by demanding and accepting bribery.

   
   

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2. Fraudulent
   use of school order book and stamp on private business.

   
   

3. Your
   outstanding debt of M9438.00 to the school is still unpaid.

   
   

4. You
   are chronically unpunctual and this has resulted into abusive
   language to the Principal.

   
   

Applicant
had, in terms of law, responded to the charges by his letter of 3
March, 2004. The matter was then set down for hearing
on 25 June,
2004 and the applicant knew and was aware of the date of hearing.
According to the record of proceedings, it would
appear a certain Mr.
Ratau telephoned the Adjudicator's secretary to have the matter
postponed to a later date. Predictably the
Adjudicator refused
postponement for the reason that "the application was not made
before me." Of course the Adjudicator
acted within her rights.
The habit of postponing cases by telephone is undesirable and no
strictures can lay bare the lack of respect
for courts contained in
such an appalling approach to courts of law. For there to be a
postponement a party desiring postponement
is to inform the other
party in advance that he intends postponing a matter. Armed with this
information both parties are to appear
before the presiding Officer
to request postponement. I say request because a Presiding Officer is
not a rubber stamp and may for
good cause refuse the application. In
the instant

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application
the learned Adjudicator was entitled to refuse the application and
proceed with the case as she did.

In
refusing the application for postponement, amongst other things the
Adjudicator pointed out that "the defaulter received
his charge
on time." Rightly so because section 51 of Education (Amendment)
Act, 1996 reads:-

(2)

The Chairman who signed the charge sheet shall cause to be served
upon the teacher charged a copy to the Commission.

1. a
   notification of the charge; and

   
   

2. a
   written explanation of the breach of discipline that constitutes the
   charge

   
   

3. 
   The notification of the charge shall state that the teacher charged
   may submit to the Chairman, with a copy to the Commission,
   within a
   period specified in the notification (not being a period less than
   14 days), a written admission or denial of the
   charge.

   
   

As
against original charges, the following new charges were preferred
against the applicant:

COUNT 1

You are hereby charged with misconduct in terms of section 48 (g) of
the Lesotho Education Act in that you fraudulently used the
order
book and stamp to buy computers on the 09.01.2004 from one L
Motebang.

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COUNT 2

1. You
   are hereby charged with contravention of section 48 (a) of the
   Education Act, 1995 in that you have repeatedly failed and
   omitted
   to report for duty on time as against both the Principal's and
   school Board's orders on the following dates:-

   
   

1. 12.03.2004

   
   

2. 04.04.2004

   
   

3. 05.04.2004

   
   

4. 16.04.2004

   
   

5. 21.04.2004
   and many more.

   
   

2. You
   have neglected your work so much that you refused to give a report
   concerning the night-watchman on the 16.04.2004.

   
   

COUNT 3

You are hereby charged with contravention of section 45 (c) read with
section 48(a) Education Act, 1995 in that you failed to teach
a
formB3 class from 23.03.2004 to 20.02.2004.

COUNT 4

You are hereby charged with misconduct in terms of Education Act,
1995 section 48 (g) in that you used abusive language to the

Principal on the 05.02.2004.

It is
common cause that these charges were not served on the applicant
allowing him to respond to them as the law quoted above requires.
Mr.
Phoofolo has attempted to persuade the court that at least one charge
is repeated in the new charges. This court is of the
view that the
new charges

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have
replaced the original charges, new charges being different from
original charges in content and form and new charges being
explicit
and detailed in particularity.

In any
event, the law requires that charges preferred against a teacher must
be served on him and allow him to respond. This court
does not know
how, were charges served on the applicant, he would have responded. I
am also of the view that, irrespective of whether
applicant attended
his trial or not, charges preferred against him not having been
served on him and allowed to respond thereon,
the trial was
premature. Not only this, Count 2 (i) has to do with unpunctuality
and not absenteeism which is covered by section
48 (h) of the
Education Act, 1995. And yet applicant was convicted of absenteeism,
a clearly more serious breach than unpunctuality.

This is
to confirm that I did, on 14 January, 2005 set aside proceedings in
respect of which applicant was found guilty of disciplinary
breach
and ordered that applicant be reinstated in his post the while fresh
proceedings against him were to be instituted before
another
Adjudicator.

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As to
costs, this court is much indebted to Mr. Phoofolo and Mr. Letsie
who, in the end, conceded that the proceedings were irregular.

Accordingly there will be no order as to costs.

Another
small thing. Education (Amendment) Act, 1996 is badly drafted.
Section 42 is Breach of Discipline and section 43 alleges
sections 51
and 52 of the Principal Act are repealed and then follows section 51
and 52 immediately after section 43, sections
51 and 52 being
followed by section 44-45 after which is section 54 followed by
sections 46, 57, 47 and then 58, 48, 59, 49-56
and lastly is 78.
There is so much interspersion of sections that a systematic,
numerical order is called for.

G. N.
MOFOLO

JUDGE

For the
Applicants: Mr. Teele

For the
Respondents: Mr. Phoofolo and Mr. Letsie

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