CIV/APN/375/8/
IN THE HIGH COURT OF LESOTHO
In the Application between
CHRIST THE KING HIGH SCHOOL,
PARENTS' COMMITTEE Applicant
and
BRO. J. MPHETHENG, HEADMASTER First Respondent
EXAMINATIONS COUNCIL OF LESOTHO Second Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 17th day of November, 1987.____________
This is the anticipated return day of the rule granted on the 13th November, 1987 in this Court on the ex parte application of an association or committee called Christ The King High School Parents' Committee. The rule obtained was in the following terms
IT IS ORDERED
That a Rule Nisi issue to the following effect
Restraining or ordering Brother J. Mpheteng, Headmaster of Christ the King High School at Roma First Respondent herein not to interfere in any manner whatsoever with the writing of Cambridge Overseas School Certificate examinations to be taken at the said High School beginning Monday 16th November, 1987 by the students whose names appear on the "List of Affected Students" annexed hereto marked "A".
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Restraining or ordering the said Brother J. Mpheteng from preventing, stopping or interfer in any way whatever with Second Respondent doing its lawful work of ensuring that all duly registered candidates, Including the affected students, dc siu for and conclude the said examination as schedule.
Likewise ordering the said Brother J. Mpheteng nut to interfere with any invigilator/s or other porson/s detailed by the Second Respondent to conduct the said examinations.
Ordering that prayers (a), (b) and (c) operate with immediate effect.
Ordering First Respondent to pay the costs of this application AND in the event that he opposes the same such costs to be on an attorney and client scale.
Granting alternative or further relief to Applicant
Ordering either Respondent to show cause, if any, on the 27the November, 1987 at 09.30 hours why this order should not be made final.
The facts of the case are that on the 27th May, 1987 at about 10.00 a.m. a large number of students of Christ The King High School converged on the offices of the Headmaster, the Deputy Headmaster and the recreation hall and threw stones at the buildings smashing the windows. As a result of this disturbance the First Respondent, as the Headmaster of the school, appointed a commission of enquiry to investi gate the disturbance.
The commission of enquiry found that out of the seventy-nine students who were initially suspended by the First Respondent only
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thirty-one were involved in the violent strike and this included the sixteen students referred to as "affected students" in these proceedings whose parents compose the present applicant. Following the findings of the Commission of enquiry the "affected
students" were expelled from the school because it was found that some of them were ring-leaders while others were active
participants.
At the time of their expulsion the "affected students" had already paid their examination fees and had selected Christ The King High School as the centre where they would sit for their examinations. The dispute now before the Court concerns their right to sit at Christ The King High School examination centre despite the fact that they were expelled from the school in May, 1987.
On the anticipated return day Dr. Tsotsi, on behalf of the First Respondent, raised a point in limine that the applicant committee has no locus standi in judicio in that it has no constitution authorising it to sue and to be sued in its own name. In other words, the applicant committee did not have the characteristics of an unincorporated association with powers to be sued and to sue in its own name. In the Principles of South African Law, 5th edition by G. Wille at p. 155 a voluntary corporation is defined as a body, or association or society of individuals which has acquired personality, without obtaining the sanction of the State, by virtue of its having exercised, for a substantial period, the essential characteristics of a corporation, namely, perpetual succession of its members, and the acquisition of rights and the incurring of liabilities in its own name apart from its members. See Morrison v. Standard Building Society, 1932 A.D. 237-238 in which Wessels J.A. said
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"This review of our law upon the subject has led me to the conclusion that GREGOROWSKI, J., was right when he held in the case of Committee of the Johannesburg Public Library v. Spence (5 Off. Resp. 54) that an association of individuals does not always require the special sanction of the State in order to enable it to hold property and to sue in its corporate name in our Courts. In order to determine whether an association of individuals is a corporate body which can sue in its own name, the Court has to consider the nature and objects of the association as well as its constitution, and if these show that it possesses the characteristics of a corporation or universitas then it can sue in its own name."
It is common cause that the applicant has no constitution and as such cannot be a universitas having a right to sue or to be sued in its own name or to own property in its own name apart from its members. Secondly, the applicant does not enjoy perpetual succession.
It is common cause that the applicant has no constitution which gives it the right to own property in its own name apart from its member and which authorises it to sue and to be sued in its own name. Secondly the applicants does not enjoy perpetual succession It is a group of parents who were aggrieved by the expulsion of their children from Christ The King High School. This body will automatically come to an end at the end of this year or immediately after the writing the C.O.S.C. examination. This clearly shows that the applicant is an ad hoc committee which does not enjoy perpetual succession. See .ExJPeLL Doornfontem Judiths Paarl Ratepayers Association, 1947 (1) S.A. 47C, Leschin v. Koono Sick Benefit & Benevolent Society, 1936 W.L.D. 9.
I have come to the conclusion that the applicant has no locus standi in judicio. The rule is discharged with costs to be paid by the individuals who compose the applicant jointly and severally.
J.L. KHEOLA
JUDGE
17th November, 1987.
