IN THE HIGH COURT OF LESOTHO

 

 

CIV/APN/450/10

 

In the matter between:-                      

                            

MOTS’ELISI MOTHAE                                                  1^ST APPLICANT

MALITLHARE SANTI                                                    2^ND APPLICANT

PONTS’O MOTS’OANE                                                 3^RD APPLICANT

MALESHOANE PENANE                                               4^TH APPLICANT

MAGRIFFITHS MABELETE                                          5^TH APPLICANT

MANTSOAKI RAMOKHOABANE                                  6^TH APPLICANT

MOHATO  NKUEBE                                                      7^TH APPLICANT

MAQALEHA LEKHOOA                                                8^TH APPLICANT

REUTLOILE MOKETE                                                  9^TH APPLICANT

TEBOHO MAILE                                                            10^TH APPLICANT

MOSA MAKATU                                                            11^TH APPLICANT

HLOMPHO MOLIKOANE                                               12^TH APPLICANT

LEBOHANG MAHONKO – NTAHLI                               13^TH APPLICANT

LITEBOHO MOHAPI                                                     14^TH APPLICANT

MPHO LEFOSA                                                             15^TH APPLICANT

MAMOKETE LEBAKAE                                                          16^TH APPLICANT

MPOETSI KHOANYANE                                                         17^TH APPLICANT

AMOHELANG SELAKALO                                            18^TH APPLICANT

 

                                                          V

 

REGISTRAR LEROTHOLI POLYTECHNIC                            1^ST RESPONDENT

 

RECTOR  LEROTHOLI POLYTECHNIC                        2^ND RESPONDENT

 

COUNCIL OF LEROTHOLI POLYTECHNIC                  3^RD RESPONDENT

 

LEROTHOLI POLYTECHNIC                                         4^TH RESPONDENT

 

 

 

JUDGMENT 

 

 

Delivered by the Honourable Madam Justice M. Mahase

On the 21^st January, 2011

Civil Procedure – Practice – Applications and Motions – Failure to disclose material facts – Duty of applicant not to omit any reference to a fact or attitude of his opponent which is relevant.

 

 

The applicants, who are 2^nd year students at the Lerotholi Polytechnic approached this Court applying for the Order in the following terms:

 

1.     That Rule nisi be issued returnable on a date and time to be determined by this Honourable Court calling upon the respondents to show cause, if any, why an order in the following terms shall not be made final:-

 

a)   The ordinary periods and modes of services stipulated by the Rules shall not be dispensed on account of the urgency of this matter.

 

b)  The respondents be ordered to treat the applicants in accordance with the provisions of Articles 5.8.7 (b) of the Lerotholi Polytechnic General Academic Regulations in as far as Office Administration and Management in concerned which requires typing speed of 20 wpm.

 

c)   Declaring the respondents’ conduct of imposing provisions of Article 5.8.7 (b) of Lerotholi Polytechnic Academic Regulations as unnecessarily prejudicial to applicants for purposes of assessment.

Alternatively.

 

d)  The respondents be ordered to give applicants an opportunity to supplement office administration programme.

 

e)   Granting applicants further and/or alternative relief.

 

f)    Costs of suits.

 

2.     That prayers 1 (a) operate with immediate effect as interim relief.

 

The applicants have approached this Court on urgent basis on notice of motion and after having served the respondents with the notice of motion.  The said notice of motion having been served upon the respondents on the 20^th August 2010.

 

The application was subsequently, on the 23^rd August, 2010 moved before my brother, the Honourable Justice Mofolo who granted the applicants an interim Order on that same day – see page 21 of the paginated record.

 

Subsequent to that, the respondents filed a notice of intention to oppose dated the 22^nd August 2010, but was filed in the registry of the court on the 24^th August instant.

 

The Rule nisi was returnable on the 27^th August 2010 at 9:30 a.m but for reasons not known to this Court, the matter was argued before this Court five days later on the 3^rd September 2010.  The applicants’ case is that they are registered students of the 4^th respondent pursuing a two year programme known as the Office Administration Management.

 

Among the subjects therein offered for this programme is computer typing speed.  This is offered from first year and goes on into the second year. Vide articles 5.8.7 of the 4^th respondent’s general academic regulation – page 38 of the paginated record.

 

Suffice it to mention that for a first year student to pass this particular course, one should have obtained a typing speed of 20 words per minute; while for a second year student one should have obtained a typing speed of 35 words per minute page 38-39 of the paginated record.

 

It is the applicant’s case that through no fault of theirs, but due to the failure by the 4^th respondent’s management to provided desks, enough computers and other learning facilities for computer typing speed, which is a core course of the said programme, the applicants were not taught this particular subject in the first year of their study, contrary to the provisions of the 4^th respondent’s general academic regulations.

 

This fact is tersely denied by the deponent to the respondents’ answering affidavit, one Motlatsi Ronald Nts’ala.  I will deal with this issue in due course.

 

Be that as it may, it is a matter of common cause that there were seventy one (71) students who had been enrolled at the 4^th respondents’ polytechnic doing office administration and management programme for the academic year in question.

 

Of this number; forty six (46) students  have successfully completed or passed this particular core course; while twenty five (25) have failed same.  Applicants are the ones who have failed the said course.

 

In a nutshell, the applicants application which is being opposed is that this court should:-

 

-      Order the respondents to assess them (applicants) on the typing speed of not less than 20 w.p.m.  Put in another way, they are  asking that even though they are 2^nd year students and in their final year of study in this programme, they should be treated and assessed on this core course as if they are 1^st year students.

 

-      They ask this court to declare the conduct of the respondents of having assessed them in terms of the provisions of articles 5.8.7. (b) of the 4^th respondent as being unnecessarily prejudicial to them (applicants).

 

The applicants’ reasons(s) for having applied for the granting of these kind of prayers are clearly spelt out at paragraph 5.4 of the founding affidavit.

 

I pause to observe that none of the applicants have disclosed to this court what/which marks have been allocated to them in this particular course in the final examination.

 

In other words, it is not their allegation that they have, and unlike the other forty six (46) students who have passed this core course, been discriminated against by the 4^th respondent by it having treated them differently from those of them in the 2^nd year of study who have passed this core course.

 

In short there is no basis laid down for the allegations that they, unlike those of their colleagues who have passed this course, they have been treated in the alleged prejudicial manner.

 

It is also noted by this court that the applicants have not explained to court why they waited until the 23^rd August 2010, to approach this court for the relief herein while they knew that they were to graduate some seven (7) days from the 23^rd August.  It is also noted that they have not disclosed in their papers when the next registration for the academic year 2010/2011 would be.

 

This court is aware of the applicants’ and the respondents’ paragraphs 6.1, 6.2 and 6.3, founding affidavit and 5.2, 5.3 up to 5.4 (answering affidavit).  This Court is however not prepared to deal with the issues therein raised because it has not been called upon to declare on the legality or not of such an arrangement.  Suffice it for this Court to mention that it is nowhere stated by the applicants that the respondents are bound by any law to adopt the same stance as it did in the year 2009as regards the present applicants.

 

 In their opposition, the respondents have raised certain points in limine.  In the normal cause of things, such points so raised have to be first dealt with and argument in support of and in opposition of same be heard before we go into the merits of the matter in question, but by consent both were argued simultaneously.

 

It is regrettably noted that the applicants’ prayers 1 (b) and (c) in the notice of motion are contradictory and are thus mutually destructive.

 

This is a matter of common cause and in the light of the above, it is the considered view of this court that since application proceedings can not be amended, the applicants have to stand or fall by their averments.

 

There is therefore no way in which this court can grant to the applicants prayers 1 (b) and (c) which are indeed contradictory and mutually destructive.  The court declines to grant these prayers.  This should, in the normal cause of events bring to finality the application in question.  However, this court observes that much as it is a matter of common cause that actually it is the Senate which is responsible for making rules for the conduct of examinations and evaluation of academic programme, the 4^th respondent’s Senate has not been cited as a party in the instant application.

 

This the applicants have not done even though they have not denied that indeed it is the Senate; and not the 1^st to the 4^th respondents which makes rules for the conduct of examinations and evaluation of academic programmes; neither do they deny that it is the Senate which has decided that the applicants should repeat the said course of study.

 

Put differently, the applicants have not pleaded issuably to the respondents’ averments in this regard.  They have neither denied nor admitted this fact.  The averments should therefore be regarded as having been admitted by the applicants.

 

Vide Plascon Evans Paints (LTD) v. Van Riebeeck Paints 1984 (3) S.A. 632 at 634 (F).

 

The applicants have raised, at the replying stage, an issue that the Senate’s decision be reviewed and be set aside.  This is unprocedural.  The unprocedural attempt by the applicants to raise a new cause of action to the effect that the decision of the 4^th respondent’s Senate be reviewed; and which issue is raised at the replying stage is procedural flawed and unacceptable.  (This I say with respect).

 

In my considered view, this step taken at this stage of the proceedings and in this manner, over looks the essential nature of review proceedings.  An application for review would be a substantive one in its own right.  Such an application is not merely an extension or an ancillary part of the main action. Vide Trakman No 1995 (1) S.A. 282 at 289 v. Livsuitz and others.

 

In the instant case, the applicants have elected not to cite the Senate of the 4^th respondent even though such a body (Senate) has a substantial interest in the matter in question because the applicants are challenging and or are bringing into question the rules, or decision or responsibilities of the Senate of the 4^th respondent.

 

 

It has been argued on behalf of the respondents that in essence, other than the fact that the applicants prayer 1 (b) and (c) are contradictory and are thus mutually destructive; as such they should not be granted, that means that there is no leg upon which the applicants can stand.

 

What this boils down to is that, at the end of the day, the applicants have not asked this Court for any particular relief; because the facts as alleged and admitted by them as well as those having been alleged by the respondents do not justify the granting of contradictory and mutually destructive relief.  Vide Khosi Lesuthu v. N.U.L 1982 – 1984 LLR 341.

 

In fact, the crux of the applicants’ application or argument is that this court should grant them the kind of orders whose final effect will be for this court to usurp the functions of the 4^th respondent’s institution and that of its Senate.

 

It is an undenied fact that indeed, it is the sole internal function of the 4^th respondents, and its Senate to assess and compute, or to regulate the computation of the examinations of those students enrolled at the 4^th respondent’s institution.

 

This court has not been referred to any provision of any law in this country or outside it, where it was ever suggested and or upheld that courts of law are empowered and or entitled as of right to interfere with such an inherently internal matter with regard to the conduct and computation of examinations.

 

It is a matter of broad public policy that courts should never interfere in a matter of such nature – vide

 

-      Mots’elise Tsiu v. N.U.L 1982 – 1984 LLR 176

-      Maseabata M Ramafole v. N.U.L 1980 (2) LLR 412

-      Selina Kena v. N.U.L. CIV/APN/82/82(unreported)

 

Put in another way, the applicants have in fact attempted to ask this court to do that which is prohibited by the General Academic Regulations of the 4^th respondent.  This cannot be done for the reasons stated above and also, because that would be tantamount to distabilising the smooth running of not only the 4^th respondent’s institutions.  This may also send out a wrong message to learners in other institutions that courts of law are capable of interfering in the lawful and normal conduct of examinations.  This should be discouraged at all costs.

 

Be that as it may, it is observed sadly by this Court that the deponent to the respondent’s answering affidavit has admitted that indeed there were operational problems which included problems alluded to by the deponent to the founding affidavit.  This is a regrettable state of affairs which should never have been allowed to exist.

It is the 4^th respondent’s and all of its relevant structures to ensure that it too performs its duties amongst which it is to provide all the necessary resources and facilities at all times for it to execute its functions to the students who have enrolled at this institution and in line with its own regulations, so as to maintain the high teaching standards and to avoid being drawn into controversies such as in the present application, at a great cost to all parties herein.  This does, however not mean that the applicants are entitled to the granting of the prayers they have asked this court to grant.

 

It has already been pointed out that there were seventy one students including the applicants who sat for and wrote an examination in compu-typing course but that the applicants have failed same.  This Court has also observed that it is on this ground that the Senate of the 4^th respondent decided that the applicants should therefore not graduate.  This is a matter of common course.  Indeed it is not the applicants’ argument that they; unlike those students who have passed; they have been differently treated or assessed by the respondents.

 

It is therefore untenable for the applicants to ask that they in particular be given a different or preferential treatment by being assessed in a manner which is not provided for under the general academic regulations of the 4^th respondent only after they have failed this core course.

 

It has, lastly been argued on behalf of the respondents that only applicants 1, 7 and 14 are parties in this application.  This is denied by the applicants at paragraph 7.2 of their heads of argument.

 

They rely on the case of Lesotho Telecomm corporation and Another v. Nkuebe and 299 Others LAC 1995 – 1997 page 567 at 574, in support of their argument.

 

The respondents in turn, support their argument by relying on the case of Lesotho Human Rights Alert Group and Others C of A (CIV) 1990 – 94 L.A.C.  While the arguments in this regard do not advance the cases of any of the parties herein any further, suffice it for this court to observe that in the instant case applicants are all students at the 4^th respondents.  This is a matter of common cause.

 

In other words, applicants numbers 1. 7 and 14 are not and cannot be considered to be strangers to the rest of the other applicants.  Be that as it may, and due to the often serious consequences which often follow, especially with regard to costs, it is still properly procedural that the rest of the applicants should have indicated their consent or interest, and or acquiesce for them to be joined in the present application.

 

The fact that they have all been cited herein as appears in the notice of motion does not automatically make them parties to this application; nor does it mean that they have given consent to be cited.  They should each have specifically indicated in the affidavits that indeed they each expressly consented to being cited herein as parties and that they adhere to and associate themselves with the factual averments in the founding affidavit of the first applicant just like the 7^th and 14^th applicants have done.

 

This Court cannot assume that each of the applicants has indeed consented to be joined herein.  In other words, it is fundamental that the basis of having joined each of the applicants in an application should come from each individual so cited.  Vide:- Wood and Others v. Ondangwa Tribal Authority and Another 1975 (2) S.A. 294, where it was reiterated that an applicant has to satisfy court that he has good reason for making the application.  See also AAIL (SA) v. Muslim Judicial Council 1983 (4) S.A 855.

 

The point herein raised at paragraph 5.1 of the respondents’ answering affidavit is upheld for the above reasons, and for other reasons alluded to herein, the applicants’ application is dismissed with costs.

 

M. Mahase

Judge

 

For Applicants         -       Advocate M. Rabotsoa

For Respondents      -       Advocate Z. Mda