CIV/APN/103/07
CIV/ APN/ 104/07
IN THE HIGH COURT OF LESOTHO
In the matter between:-
SEBOKA LETSOTA APPLICANT
MOKONE MALIBENG APPLICANT
AND
THE CHAIRMAN OF THE STUDENTS' DISCIPLINARY
COMMITTEE OF THE LEROTHOLI POLYTHECHNIC 1st RESPONDENT
LEROTHOLI POLYTHECHNIC 2nd RESPONDENT
JUDGMENT
DELIVERED BY THE HONOURABLE JUDGE M. MAHASE ON THE 4th DECEMBER 2007
The above-shown applications were consolidated because they are founded upon identical issues.
Applicants have approached this court on urgent basis following their suspension from the 2nd respondent's institution.
They have asked the court to stay and review the decision of the first respondent suspending them from the 2nd respondent's institution for the whole academic year of 2006/2007. The applications are being opposed.
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The letter of suspension; in question is marked annexure "MM4" dated the 7th February 2007.
In brief the applicants were charged by the respondents for having contravened Article 8.7.1 (c), 11.3.1 (e) and (f) as well as 11.3.2 (i) of the Students Discipline and Residence Regulations to wit see annexure "MM1".
- Article 8.7.1 of the Students Discipline and Residence Regulations reads thus:
- The following shall constitute a breach of discipline:
......(c) A conduct which causes, or is liable to cause damage or violence to property or person.
(i) Within L. P.
(ii) Notwithstanding that the conduct in question occurred outside the LP, provided that such conduct is that of a student to another
student, an officer, member or employee of the institute arising from their relationship as learners, officers, members or employees of the L.P.
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Subsequent to the hearing of the disciplinary case against the applicants, a verdict of guilty was returned/entered in respect of both of them.
Their punishment, which was duly communicated to them has been filed herein this papers as being annexure "MM2" dated the 5th December 2006.
The punishment imposed upon them is that (I quote):
"The SDC has therefore, resolved to punish you as follows:
You are required to provide community service for (12) months with effect from 11th December 2006 under the supervision of Head of Maintenance and SDC.
You are expected not to commit similar offences until you complete your studies at this institution failing which you will be expelled from school".
This has been signed by one M. Sesoane (Mr.) - Rector (a.i.). Mr. Sesoane has expressed his wish that he hopes that the said punishment will assist the applicants to become law abiding citizens.
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One may pause to observe that it is not clear on these papers when the applicants will complete their studies at the Lerotholi Polytechnic.
Be that as it may, it is also not clear whether or not the portion or all of the punishment which appears under item (1) of annexure "MM2" is suspended or not upon the condition stipulated in item (2) of the said "MM2".What is very clear from the wording of item 2 of this annexure is the fact that this is a kind of punishment which will always remain hanging over the heads of the applicants for whatever remaining period whilst they are students at the second respondent's institution.
Applicants allege that they duly commenced with the punishment imposed upon them and carried out the community service under the supervision of one Mr. Mokolatsie Ntlhakana.
The above facts are denied by the said supervisor in his supporting affidavit at paragraph 2.1 - 2.5.1 hereof to wit see annexure "A" as to the timetable he had kept as a record for those students who had been placed and attached to his office to do community service as a form of punishment.
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Regrettably, annexure A is inconclusive because it is not completely filled in, so not much weight can be attached to it.
As a result of this alleged failure or refusal by the applicants to cany out punishment imposed upon them, they were once more suspended by the SDC from the second respondent's institution for 14 (fourteen) days with effect from the 15th January 2007. The other reason for this kind of measure being taken is allegedly that the Rector of respondents had a reasonable fear that the applicants would further incite other students to attack Life High School scholars. He has however not provided the basis for such fear. This is not fair to the applicants.
Be that as it may when the above-referred to 14 days' suspension expired, the applicants went back to school and attended classes. They were however, once again suspended from the second respondent's institution allegedly by the Governing Council for the whole period of the academic year 2006/2007. The grounds for this latter suspension being that the applicants have failed or refused to carry out the community service punishment which had been imposed upon them by the SDC as per annexure "MM2" herein.
This is the punishment which the applicants are challenging as being irregular and illegal. They aver that having been
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suspended from school for 14 days by the SDC immediately after allegedly having failed to serve the punishment imposed upon them as per annexure "MM2"; they were then subjected to double punishment on one and the same offence by the Governing Council which imposed yet another more severe punishment upon them for the same offence.
It is their further argument that having been suspended from school firstly for 14 days, they have been duly punished for their alleged failure to carry out the community service punishment and that therefore a further suspension from school for the whole academic year of 2006/2007 as per annexure "MM4" was double jeopardy/punishment for the same offence for which they have already been punished. They argue that they are unfairly being forced to miss a lot in their studies.
It is for the above reasons that the applicants have asked this court to review and set aside the last decision or punishment that they be suspended from school for the whole of the academic year 2006/2007. Reasons in support of their prayers have been spelt out clearly in paragraph 14 of their founding affidavits.
They further allege that the offence for which they were charged is not a disciplinary offence nor is it contained in the
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Students Disciplinary Regulations of the second respondent -Vide Clause 14.1.
For clarity, it is apposite to spell out clearly the sequence of events which culminated into the events forming subject-matter herein: -
- November 2006 - (no date given) - the SDC set to hear and determine the disciplinary case against the applicants, for having contravened
Articles 8.7.1(c), 11.3,1(c) and (f) and 11.3.2(i) of the Students Discipline and Residence Regulations. (Annexure "MM1 herein).
- 5th December 2006 - Having been found guilty for having contravened the articles stated above - punishment imposed upon applicants was communicated to them as per annexure "MM2". The punishment being that applicants should do community service for 12 months.
- 10th January 2007 - Annexure "MM3" - entitled "Failure to execute punishment" was issued and served upon the applicants. (My underlining).
Applicants were on that day suspended from Lerotholi Polytechnic and its related activities for 14 (fourteen) days with effect from 15th January 2007 pending the
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ratification of SDC's recommendation, as per Clause 11.4(b).
- Clause 11.4 (b) of the Students Disciplinary and Residence Regulations reads as follows:
(b) if a student is suspected to have committed a breach of discipline as per Article 8.7.1 or offences listed in Article 11.3, he shall immediately be suspended for a period not more than two weeks from Lerotholi Polytechnic premises and all related activities pending investigation. The institution will not be obliged to provide such a student which tutoring.
7th February 2007 - Annexure "MM4" entitled "Verdict on a case of failure to comply with punishment. (My underlining) was issued and served upon the applicants.
This served to inform the applicants that they were, with immediate effect suspended from Lerotholi Polytechnic and its related activities for the whole 2006/2007 academic year.
This goes further to inform the applicants that this resolution was taken on the basis that the Students Disciplinary Committee found you guilty of failing to comply with its
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punishment (refer to the letter dated 10th January 2007), hence inolating clause 14.1(i) of the Students Discipline and Residence Regulations. The clause provides that
"If a suspect is found guilty of an offence (s) and does not comply with the punishment meted out, he/she is liable to immediate
suspension or expulsion without further hearingfe)". (My underlining)
One may pause to observe that the heading in annexures "MM3" and "MM4" are in respect of the same offence or same charge that the applicants have failed to execute/comply with punishment meted out to them. It is punishment that appears in annexure "MM4" that is being challenged and not that in"MM3".
There is no allegation that the two headings refer to two different forms of punishment in relation to two different offences committed on two separate instances.
The punishment referred to in annexure "MM4" is the very one referred to in annexure "MM3" for which the applicants were punished by being suspended from Lerotholi Polytechnic for 14 (fourteen) days with effect from the 15th January 2007. It is not the respondents' story that the applicants did not serve the punishment of fourteen (14) days suspension from the LP
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and its related activities. The fact that they served this punishment has not been denied.
It is the applicants' story that before being served with annexure "MM4" dated the 7th February 2007, they did not attend school at Lerotholi' Polytechnic until after the expiry of the said fourteen days period referred to in annexure "MM3". They only went back there to attend normal classes on the 24th January 2007.
In fact, a careful and proper reading of the contents of annexures "MM3" and "MM4" will show that the applicants' case of failure to execute or comply with community service punishment was dealt with by two different bodies of Lerotholi Polytechnic; namely:
- The Students' Disciplinary Committee which sat over this case on the 10th January 2007;
- This Committee imposed a punishment of a suspension of applicants from the Lerotholi Polytechnic for 14 days.
- The reason for it having done that was that the said committee had made recommendations to the Governing Council, which recommendation would be communicated to the applicants in due course.
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There is no record annexed to the papers now before court showing whether or not such a Governing Council ever received such a recommendation. Nor is there a record attached herein of the proceedings of such a Council nor indeed that of the Students' Disciplinary Committee.
Further the procedure adopted by the Committee (SDC) of suspending the applicants from Lerotholi Polytechnic for 14 days whilst seeking and awaiting the recommendation or ratification of the Governing Council is not sanctioned by any of the articles or regulations of the Lerotholi Polytechnic.
Evening assuming, without conceding that the above is sanctioned by laws governing the Lerotholi Polytechnic, what has ultimately transpired is that the so called Governing Council has not ratified any recommendation of the SDC.
Ex facie the papers filed herein, there is no recommendation from the SDC for the Governing Council to ratify. On the contrary, the said Governing Council has imposed another punishment which is completely different from the one of 14 days referred to in annexure "MM3".
The said Governing Council has imposed a very harsh punishment of immediate suspension from Lerotholi
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Polytechnic for the whole 2006/2007 academic year. This was done without the Governing Council having afforded the applicants a hearing of any kind.
There is nothing placed before court showing if indeed the Governing Council even looked at annexure A before it made a finding that the applicants had refused to serve that punishment of community service.
The Governing Council, has in imposing with immediate effect the said punishment upon the applicants invoked the Provisions of a Clause, 14.1 of the respondents' regulations which oust the audi alterum rule of natural justice.
There is a plethora of authorities to the effect that no man can or should be punished before being heard. Indeed being an administrative body or tribunal which has or which exercises quasi-judicial powers, the Governing Council is enjoined by law to have given the applicants, a fair hearing before having imposed a punishment which produces such negative and adverse consequences against the applicants. See ATTORNEY GENERAL, EASTERN CAPE v BLOM & OTHERS 1988 (4) S.A. 645.
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The net effect of the above is that when on the 10th January 2007, the SDC charged the applicants for having violated the Provisions of Clause 14.1 of the Students' Discipline and Residence Regulations, it did so irregularly and that subsequently the Lerotholi Polytechnic Governing Council acted upon that irregularity of the SDC when it too suspended the applicants with immediate effect without any further hearing. There is no way in which a clause which provides a penalty/punishment can be violated. This is an anomaly.
Last but not least it is apposite to note that the charges which were preferred against the applicants and upon which they were found guilty and then resulted into their being suspended from the Lerotholi Polytechnic relate to their having contravened Provisions
of Sections 8.7.1(c); 11.3.1(e) and (f) and 11.3.2 of the Students Discipline and Residence Regulations.
It is noted further, that with the exception of the Provisions of Article 11.3.2 (c) the applicability of the provisions of all the other articles is confined and or is limited to situations wherein a student(s) of Lerotholi Polytechnic has committed actions therein mentioned against property or person:
Within the Lerotholi Polytechnic
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Notwithstanding that the conduct in question occurred outside the Lerotholi Polytechnic, provided that such conduct is that of a student to another student, or officer, member or employee of the institute arising from their relationship as learners, officers, members or employees of the Lerotholi Polytechnic - Vide Article 8.7.1
It is observed that the charges as contained in annexure "MM2" make no reference at all to any of the people nor property referred to in the Provisions of Article 8.7.1(c). Instead, the people and property referred to therein are of Life High School.
In the absence of a record of proceedings of the disciplinary hearing held against the applicants by the respondents, it can not seriously be argued that the offences with which the applicants stood charged are disciplinary offences since they are not contained in the said regulations of the second respondent.
Alternatively, it can be argued that the said charges are not in line with the wording of Articles 8.7.1 of the second respondent; which article clearly spells out which kind of
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conduct constitutes instances of a breach of discipline in so far as the students of Lerotholi Polytechnic are concerned.
The question to be answered is, have the applicants been reasonably and sufficiently in law informed of the nature of charges preferred
against them? It is not easy to answer this question because the respondents have, and contrary to the order of this court dated the 7th May 2007, not dispatched the record of proceedings of the disciplinary hearing against the applicants to the Registrar of this Court. This issue has not really been canvassed during argument of these two applications. However, this is the kind of behaviour which this court does not view lightly. Contempt of an order of court is a serious matter.
Be that as it may, it is trite law that a charge sheet must be specific, and should reasonably and sufficiently inform the accused of the nature of the charge. See REX v MPENA 1947(1) S.A. 635.
The fact that the victims and property referred to in annexure "MM2" are not entities belonging to the Lerotholi Polytechnic and so are not the ones referred to in the said Provisions of the
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Articles of the Students Discipline and Residence Regulations which the applicants are alleged to have contravened leaves a lot to be desired as to the nature of charges which have been preferred against them.
As has already been alluded to above, the respondents have not dispatched the record of their proceedings to this court and the reason for their having not done so is that there was no need for keeping such a record because the exercise was done in order to determine if applicants were carrying out their punishment.
With respect, and due to the far reaching consequences from this exercise, such a record of such proceedings (or exercise) should have been kept. It is highly prejudicial to the applicants that no such record of proceedings was kept. It is difficult for this court to believe this story of the respondents.
In any case, the above-referred to exercise was a second disciplinary hearing preferred against the applicants. There is yet still no record of proceedings dispatched to this court to the second hearing despite the order of this court alluded to above that such a record be so dispatched.
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In conclusion one observes that while the alleged conduct of the applicants is unacceptable and brings into disrepute the Lerotholi
Polytechnic, in pursuing the disciplinary hearing against the applicants, the respondents did so in total disregard of provisions
of their own regulations, thereby prejudicing the applicants.
It is for the foregoing reasons that this court has come to the conclusion that punishment imposed upon the applicants as per "MM4"
constituted double punishment and that it should, and is hereby set aside and the applicants' application is granted in terms of prayers 1 and 2(b).
Temporary interdict dated the 3rd May 2007:- Counsel for parties herein had been informed through the office of the then Deputy Registrar of this Court that this court had granted indulgence to them to hear them on these applications, on 3rd May 2007 at 2:30 p.m.
Having been approached by the then Deputy Registrar of this Court and at the request of Mr. Tsenoli - Counsel for the applicants; this court set aside its business for that afternoon
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In the view of this court, it is highly irregular that the applicants have been denied an opportunity to be heard before the Governing Council imposed a punishment herein stated in annexure "MM4". This grave irregularity has been committed by the Council by having not only denied applicants a fair or any hearing at all, but in addition in doing so it invoked the wrong article of the 2nd respondents regulations - to wit Clause 14,l.(i) which does not create any offence at all.
One need hardly mention that whatever the conduct of the applicants was, that prompted the respondents - to take the most serious step of suspending them from the Lerotholi Polytechnic for a whole academic year, fairness and reasonableness demanded of the respondents to give applicants an opportunity to be heard.
Vide - NOKA-NTSO PRIMARY SCHOOL AND OTHERS v KHABOLISO AND ANOTHER 1995-99 LAC 783.
The principle of natural justice has survived from ancient times and it is recognised by humanity as the corner stone of democracy and justice. Vide Baxter Administrative Law.
This court observes that nowhere in the regulations of the respondents has suspension and or expulsion been provided as mechanisms to be invoked whilst one is awaiting the
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outcome of any matter/issue which has been referred to the Lerotholi Polytechnic's Governing Council for ratification.
These words, suspension and expulsion have throughout these regulations been used as forms of punishment which the respondents are empowered to impose against any of their students who have violated the various provisions of their Student Disciplinary and Residence Regulations.
It is equally clear from the Provisions of Clause 11.2 of annexure "MM1" - page 45 that suspension and expulsion are provided as forms of punishment(s) to be imposed upon any student of Lerotholi Polytechnic who is found to have offended against it regulations, and nothing else.
While the above observation can not be denied; the Provisions of article/clause 14.1 provide the penalties which should be imposed upon a student who has been found guilty of having committed an offence (s); and who has not complied with the punishment meted out to him/her. This is a penalty section/clause. It does not create any kind of an offence if violated.
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The kind of punishment thereby provided by the Provisions of Clause 14.1 of the said regulations is suspension or expulsion and nothing else. The said provisions of this clause are silent as to the period of suspension should that be imposed. It then can safely be argued that the body whose duty it is to discipline or charge students has a wide discretion as to the period of suspension.
This Clause 14.1 further provides for the suspension or expulsion with immediate effect of any student who has been found guilty by the respondents and or the Lerotholi Polytechnic without further hearings. This is what was done against the applicants in the instant case. I have already alluded to the effects of any provisions or procedure which denies anybody against whom a drastic or negative act is taken are. I need not repeat same safe to observe that this clause is illegal because it operates against and excludes the audi alterum principle.
Having made the above observations, it immediately becomes very clear that it was wrong for the respondents to have purported to invoke the Provisions of Clause 14.1 against the applicants since this does not create any kind of an offence.
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to deal with this application. Prior to that, the Deputy Registrar had informed court that both Counsel were aware of the indulgence having been granted.
However, and to the dismay of this court Mr. Letsika, Counsel for respondents did not attend court. No reasons were given why he did not attend. He instead filed a Notice of Anticipation in Terms of the Provisions of Rule 8(18) anticipating the rule to the 9th May 2007.
The application was however dealt with and argument by both counsel heard on the 10th May 2007. Counsel for the respondents never objected nor did he challenge the order dated the 3rd May 2007.
To be precise, the matter was by consent of both Counsel argued on merits on the 10th May 2007 after a Notice of Anticipation was issued and served upon the applicants. Attorney for respondents again filed a notice in Terms of the Provisions of Rule 8(18) dated the 20th September 2007, but this was never argued.
In short, attorney for respondents can not be heard to complain now when in essence he waived his right to do so. Having argued the matter on merits on the 10th May 2007 and
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in the absence of any prejudice he is estopped from complaining about the order dated the 3rd May 2007.
Each party should bear its costs.
M. MAHASE
JUDGE
For Applicants : Mr. Tsenoli
For Respondent : Mr. Letsika
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