Iketsbtseng Private School v Malee and Others (CIV/APN 60 of 96) [1996] LSHC 43 (21 March 1996)

1 CIV/APN/60/96 IN THE HIGH COURT OF LESOTHO In the Matter of: IKETSBTSENG PRIVATE SCHOOL Applicant and BALE M. M. SECURITY (PTY) LTD IKETSETSENG PRIVATE SCHOOL MALEE 1st Respondent 2nd Respondent 3rd Respondent Delivered by the Hon. Mr. Justice B. K. Molai on the 21st day of March. 1996. On 14th February, 1996, the applicant herein filed, with the Registrar of the High Court, an application, in terms of rule 8(22) of the High Court Rules. 1980. for an urgent order framed in the following terms: " 1. That a Rule Nisi be issued, returnable on the day of 1996 to show cause if any why:- (a) Dispensing with the periods of notice required by the Rules of this Honourable Court. (b) Respondents shall not be ordered to unlock and remove forthwith the door locks of the classrooms, offices and dwelling houses used the applicant by applicant's premises. within -2- (c) Respondents not shall be restrained from interfering in any manner with the applicant's conduct of carrying on teaching and education activities in the premises used by applicant for that purpose. (d) Respondents should not pay for the costs hereof. (e) Granting applicant further and/or alternative relief. 2. Prayer 1(a), (b) and (c) to operate with immediate effect as interim order." The application was heard ex parte and the Rule nisi granted as prayed on the same day, 14th February, 1996. The return day was fixed as 1st April, 1996. The Order was served upon the Respondents on 15th February, 1996 by a certain Hlanku Maqutu. I shall return to CIV/APN/60/96 later in the judgement. It may be mentioned, from the word go, that Iketsetseng Private School has now been the subject of several disputes before the courts of law in this country. In the interest of clarity, it is, perhaps, convenient to give, at this juncture, a brief outline of the history of these disputes. In CIV/APN/317/90 Iketsetseng Private School and 'Masechele Khaketla appeared before the High Court of Lesotho as applicant and Respondent, respectively. On 14th December, 1990, the applicant obtained, ex parte, a rule nisi calling upon the Respondent to show cause why, inter alia: -3- "(a) Respondent shall not handover forthwith the property of the applicant herein to Messrs. R. V. Lechesa and L. Lechesa, two trustees duly appointed in terms of the constitution of the applicant. (b) Respondent shall not handover forthwith the management and/or administration of applicant to the Executive Committee duly appointed the in constitution of applicant. terms of Executive (c) Respondent shall not submit to of the Applicant financial audited report relating to the financial affairs of applicant during the period she purported to run the school. Committee (d) Respondent desist forthwith from managing and/or administrating applicant. shall not (e) (f) The rule nisi was, on 10th February, 1992, confirmed in respect of (a) (b) and (d) above. It was, however, discharged in respect of prayer (c). The order was served upon the Respondent, personally, on 11th February, 1992. It would appear that after she had been served with the Order on 11th February, 1992, the Respondent -4- lodged, as she was entitled to do, an appeal to the Court of Appeal and applied for stay of execution pending the finalisation of the appeal. That particular application, for stay of execution, has not been placed in the papers before me, I am not, therefore, in a position to know what became of it. Be that as it may, it would appear that, notwithstanding the Respondent's pending appeal and the application for stay of execution, the applicant instituted proceedings for the committal of the Respondent for contempt of the court order, dated 10th February, 1992. The application for committal of the Respondent has, however, not been placed in the papers before me. In any event the Respondent opposed the applicant's application for her committal for contempt and on 4th May, 1992 filed, with the Registrar of the High Court, an answering affidavit which was served upon the applicant on the same day, 4th May, 1992. In her answering affidavit, the Respondent, inter alia, averred that the fact that she had applied for stay of execution, pending her appeal, showed that she had no intention to wilfully disobey the court order and could not, therefore, be found guilty of contempt of the court order. Before the proceedings for contempt of court could be disposed of, the Court of Appeal heard the -5- appeal which had been lodged by the Respondent and upheld the High Court Order of 10th February, 1992. The court of Appeal judgment, prepared by Kotze, J. A. with Ackermann and Steyn, J. J. A concurring, was C. of A (CIV) NO.1/92 handed down by Cullinan, C. J. on 25th September, 1992 . On 10th September, 1993, and following the decision of the Court of Appeal, Iketsetseng Private School, as applicant, filed, with the Registrar of the High Court, in terms of the provisions of rule 8 (22) of the High Court Rules.1980 in which application the court was, inter alia, again moved for an urgent order committing the Respondent ('Masechele Khaketla) to prison for contempt of court. On the papers before me there is no indication that this urgent application was ever moved before the court. Nor is there an indication that either the application itself or the interim Order (if any) was served upon the Respondent. The answering affidavit attached to this application relates to the previous application for contempt of court filed, with the Registrar of the High Court before the Court of Appeal could uphold the High Court Order of 10th February, 1992. The 1993 application for contempt of court is, therefore, not ready for hearing for the simple reason that, on the papers before me, pleadings are not yet complete. -6- Be that as it may, on 22nd March, 1995, another urgent application (CIV/APN/114/95 in which Iketsetseng Private School and 'Masechele Khaketla were applicant and Respondent, respectively, was filed, with the Registrar of the High Court, in terms of the provisions of rule 8(22) of the High Court Rules. 1980. In that application, the relief sought by the applicant was that the Respondent should, inter alia, unlock the water taps, doors for the toilets on the school premises and be evicted therefrom. A reasonable deduction to be drawn from this is that, following the judgment of the court of Appeal dated 25th September, 1992, the Respondent went to the applicant's premises and locked the water taps and door for the toilets. Be that as it may, the application was to be moved on 24th March, 1995. On the papers before me, there is, however, no indication that the application was, in fact, moved on that day, 24th March, 1995 or, for that matter, on any other day. However, there is a return of service, filed by a certain Hlanku Maqutu, according to which the Respondent was served with the motion papers in (CIV/APN/114/95). Indeed, on 10th April, 1995, the Respondent filed, with the Registrar of the High Court, an answering affidavit which was served upon -7- the applicant's Attorney of record on the same day, 10th April, 1995. The Replying affidavit was filed and served on 2nd June, 1995. The pleadings were, therefore, complete in that application which was ready for hearing. However, before CIV/APN/114/95 could be disposed of, another application (CIV/142/95) w a s, on 18th April, 1995, filed with the Registrar of the High Court, by Iketsetseng Private School (as A p p l i c a n t ), against 'Masechele Khaketla (as Respondent). In that application the relief sought, against the Respondent by the applicant, was a rule nisi calling upon the Respondent to show cause why, inter, alia: "(a) Current (b) the court shall not order that the deposit Number 00110002736 in the name of Iketsetseng Private School be frozen with immediate effect. Account be (c) R e s p o n d e nt restrained any account whatsoever in the name of Iketsetseng Private School. not opening shall from (d) (a) Although a certificate of urgency was accompanying CIV/APN/142/95, thus giving the impression that it was an urgent application brought before this court, in terms of the provisions of rule -8- 8(22) of the High Court Rules 1980. the application was to be moved on 24th April, 1995 i.e six (6) days later. In any event, it would appear that the Respondent, was served with the motion papers on 18th April, 1995. I have not been able to find her notice of intention to oppose, in the papers, placed before me. But it can safely be assumed that she did intimate her intention to oppose the application because, on 11th August, 1995, she did file, with the Registrar of the High Court, her answering affidavit which was, however, erroneously headed "Founding Affidavit." The replying affidavit was also filed on 4th September, 1995. The pleadings were, therefore, complete in CIV/APN/142/95. However, before CIV/APN/142/95 could be disposed of, the present application CIV/APN/60/96 was, on 14th February, 1996, brought to, and moved ex-parte before, the High Court for relief as aforesaid. The interim order was, on the same day, 14th February, 1996, granted as prayed in the notice of motion. On 16th February, 1996 the Respondents intimated intention to oppose the application. On 19th February, 1996 yet another urgent application, in which Iketsetseng Private School and 'Masechele Khaketla were cited as applicant and Respondent, respectively, was filed with the Registrar of the High Court, in terms of the Provisions of rule 8 (22) of the High Court Rules. 1980. The application was moved on 20th February, 1996 and an interim Order obtained ex parte. It reads, in part: -9- "1. A Rule Nisi is granted returnable on 1st day of April, 1996 calling upon the Respondent to show cause why: (a) (b) Iketsetseng Private School in whose favour the High Court of Lesotho in CIV/APN/317/90 gave judgment was confirmed by the Court of Appeal in C.of A (CIV) No.1/92 shall not be joined as the 3rd Respondent in main case in CIV/APN/60/96. judgment which purge (c) Respondent shall not be ordered to to CIV/APN/317/90 and C.of A. (CIV) No.1/92 before she can be heard by the above Honourable court. contempt her (d) (e) 2, That prayers l(a) and (b) operate as interim order with immediate effect". It is significant to note that in the same urgent application filed, with the Registrar of the High Court, on 19th February, 1996, the applicant intimated that on the return day, 1st April, 1996, an application would be made, inter alia. seeking ordinary relief that: "(a) Dr. Masechele be Nts'eliseng Khaketla as 2nd Applicant in the main Application of CIV/APN/60/96. joined (b) That the following actions namely: C I V / A P N / 3 1 7 / 90 Proceedings) CIV/APN/114/95 CIV/APN/142/95 ( c o n t e m pt consolidated be the CIV/APN/60/96 so that they can all be heard and argued as one action on the dated of hearing of the said CIV/APN/60/96, with (c) (d) " On 26th February, 1996, the Respondents in CIV/APN/60/96 filed a counter application. A document headed simply "Affidavit" and deposed to by a certain Mahao Morienyane was filed, together with the counter application, on the same day ,26th February, 1996. It was not clear whether that was an answering affidavit to the applicant's founding affidavit in CIV/APN/60/96 or a founding affidavit to the counter application. On Che same day, 26th February, 1996, the Respondents in CIV/APN/60/96 filed, with the Registrar of the High Court, and served upon, the applicant, a notice that, on 28th February, 1996, they would apply for an order anticipating the return day, discharging the interim Order obtained ex parte directing the Applicant to pay coats. Because of the umbiquity in the document headed simply "affidavit" filed by Maheo Morienyane, on 26th February, 1996, 'Masechele Khaketla, who had deposed to the founding affidavit in the main application, filed what she termed "opposing affidavit .... in the Counter Application". It is, perhaps, necessary to mention at this juncture, that, on 26th February, 1996, this case was re-allocated to me on the ground of the recusal by the judge who had been handling it, I needed time to read through the papers in the file which is quite bulky. It was, therefore, agreed by all the parties concerned that the case would be heard on Friday 1st March, 1996. However, after reading through the file, I noticed that the document filed with the counter application and marked "Affidavit" did not appear to be a founding affidavit to the counter application. It could well have been an answering affidavit to the founding affidavit in the main application (CIV/APN/60/96). However, 'Masechele Khaketla had already fileD an opposing affidavit to what she apparently considered, through no fault of hers, to be a founding affidavit to the counter application. Consequently, I returned the file to the Registrar with the directives that the anomalies should be drawn to the attention of counsels who should ensure that the pleadings were properly filed to a completion before the hearing of this case could commence. When the file was brought back to me only the word "opposing" was hand-written before the heading "Affidavit" in the document accompanying the counter application. On the morning of 28th February, 1996 I called both counsels into my chambers and pointed out that if the document accompanying the counter application was the answering affidavit to the founding affidavit in the main CIV/APN/60/96 then there was no founding affidavit to the counter application. The pleadings were, therefore, not complete and the court could not properly commence the hearing of the case. On 1st March, 1996, a proper founding affidavit to the counter application was duly filed. There was then the need to file a relevant answering affidavit to the founding affidavit and a replying affidavits (if need be) by both parties. For this reason, I postponed the hearing of this matter to Wednesday, 6th March, 1996, on which day, I was assured, the pleadings would have been properly filed. When it resumed, on 6th March, 1996, the court was asked to give a ruling on a number of points of law raised, in limine. by both the applicant and the Respondents. Starting with the points of law raised, in limine. by the applicant, it was contended, firstly, that in an application brought before this court on the basis of urgency, in terms of the provisions of rule 8 (22) of the High Court Rules. 1980. the Respondents had improperly obtained, ex parte, an order directing that Iketsetseng Private School should be joined as 3rd Respondent in CIV/APN/60/96. Secondly, the Respondents had joined 'Masechele Khaketla as 2nd Applicant without leave of the court to do so and, therefore, irregularly. After hearing arguments from both sides, I ruled that on the papers placed before me, it appeared that in an urgent application, wherein Iketsetseng Private School and 'Masechele Khaketla were applicant and Respondent, respectively, the applicant obtained, ex parte, an interim order, inter alia directing that the former be joined as 3rd Respondent. The order was to operate with immediate effect. In the same application, the applicant sought, as an ordinary relief, that 'Masechele Khaketla be joined as 2nd applicant in CIV/APN/60/96, The return day was fixed as 1st April, 1996, which had, however, since been anticipated. The first point the court was enjoined to decide, in limine. was whether or not the applicant could properly obtain, ex parte, an order directing that Iketsetseng Private School be joined as 3rd Respondent in those proceedings. Rule 12 (2) of the High Court Rules. 1980 provides, in part: "12(2) in apply Any party to an action whether as plaintiff or defendant may at any t he s t a ge before proceedings judgment to court, on notice to all parties and to the respondent, for leave to join another person (referred to as the respondent) whether as plaintiff or defendant in aforesaid action" the (my underlinings) I have underscored the words "on notice to all parties" in the above cited rule 12 (2) of the High Court Rules. 1980. to indicate my view that notice ought to have been served on all interested parties before an order for joinder could be obtained. In the instant case, there was, on the papers before me, no indication that the interested parties had in fact been served with the notice contemplated by the provisions of rule 12 (2) of the High Court Rules. 1980. before the order, joining Iketsetaeng Private School as 3rd Respondent, was obtained. For that reason, the order was obtained contrary to the provisions of rule 12(2) of the High Court Rules. 1980. and, therefore irregularly. The second point, the court was called upon to decide, in limine. was whether or not 'Masechele Khaketla was properly joined/cited as 2nd applicant in those proceedings. It should be observed that the ordinary relief sought to join 'Masechele Kheketla as 2nd applicant was to be decided upon, on the return day, 1st April, 1996, which return date had, however, been anticipated. The ordinary relief to join 'Masechele Khaketla as 2nd applicant could not be obtained before the court had decided the issue on the return day. It is also appropriate to observe that rule 8(1) provides: "8(1) by Save where proceedings by way of petition are prescribed law, every application shall be brought on notice of motion supported by affidavit setting out the facts upon which the applicant relies for relief." (my underlining) I have underscored the word "shall" in the above cited rule 8(1) of the High Court Rules. 1980 to indicate my view that the provisions thereof are mandatory. The present proceedings were, however, not by way of petition. If it were sought that 'Masechele Khaketla should be joined as 2nd applicant, a proper application, accompanied by an affidavit setting out the facts upon which the applicant relied for the ordinary relief ought to have been filed in compliance with the provisions of rule 8(1) of the High Court Rules. 1980. That had not been done. Instead, the ordinary relief to join 'Masechele Khaketla as 2nd applicant was simply inserted in an urgent application moved, ex carte, before the court. The provisions of rule 8(1) of the High Court Rules. 1980 had up to now not been complied with. I was not convinced that proper procedure had been followed to join 'Masechele Khaketla as 2nd applicant in this matter. Until the proper procedure bad been complied with, I was unable to find that she had, in fact, been joined as 2nd applicant. In the result, the interim order joining Iketsetseng Private School as 3rd Respondent was discharged with costs. As regards the prayers for ordinary relief, firstly, to join 'Masechele Khaketla as 2nd applicant and secondly, that CIV/APN/317/90 (contempt proceedings), CIV/APN/114/95 and CIV/APN/142/95 "be consolidated with the CIV/APN/60/96 so that they could all be heard and argued as one action on the date of hearing of the said CIV/APN/60/96" I struck them out, with coats. Firstly, for non-compliance with the provisions of rule 8(1) of the High Court Rules. 1980. Secondly, because CIV/APN/60/96 could not properly proceed as one application with the applications in one of which the pleadings were not yet complete (i.e. CIV/APN/317/90 (contempt proceedings)). I, however, pointed out that the ruling to strick out the prayer for ordinary relief to join 'Masechele Khaketla as 2nd applicant was no bar to institute, in terms of the provisions of rule 8(1) of the High Court Rules. 1980. a proper application to join her as 2nd applicant in CIV/APN/60/96. On 7th March, 1996, the court asked Mrs. Kotelo. counsel for the Respondents, in CIV/APN/60/96, whether or not in the light of the ruling made yesterday, 6th March, 1996, she still insisted on proceeding with the points of law she had wished to raise, in limine. at p.64 of the record. If necessary, the court was prepared to take a short adjournment to enable her to consult with her clients. In reply, Mrs. Kotelo told the court that she was definitely proceeding with the points of law raised, in limine. at p. 64 of the record. The court then proceeded to hear arguments on the points of law raised, in limine. at p.64 of the record and ruled as follows: The court is now enjoined to make a ruling on four (4) points of law raised, in limine, at p. 64 of the record, v i z. "(a) Iketsetseng Private School was in misjoined as an applicant these proceedings. Iketsetseng could not spoliate itself. (b) Regard being had to the fact that Mrs 'Masechele Khaketla should have filed the application before court the Applicant herself with as there has been none - joinder of a party with substantial interest in the the case. outcome of (c) M r s. Khaketla ought to purge her Court contempt judgment, and the Court of Appeal judgment of September, 1992 in C. of A.(CIV) No.1/92. High the of (d) M r s. Khaketla is guilty of non- disclosure facts of which could have influenced the the court Honourable granting of interim order." material against I proceeded to deal with the points of law raised in limine seriatim. As regards the first point of law raised, in limine. it was significant to bear in mind that ad para 6.2 of the founding affidavit (p.8 of the record) it w a s, inter alia, averred that following the judgment of the court of Appeal: "the school broke into two establishments under one name and operating in the same premises although run by two Executive Committees" According to the deponent (Mrs Khaketla) there were, therefore, two splinters of Iketsetseng Private School viz. one administered by the Executive Committee of which she was a member and the other administered by the Executive Committee of which the two Lechesas, who had deposed to supporting affidavits to the answering affidavit, were members. The Splinter of Iketsetseng Private School which had instituted CIV/APN/60/96 could logically be no other than the one on whose behalf Mrs. Khaketla had deposed to the founding affidavit, Whether or not, that splinter of Iketsetseng Private School could lawfully institute CIV/APN/60/96 to enforce its rights (if any) before this court was, in my opinion, a matter to be properly dealt with in the main application. Coming now to the second point of law raised, in limine. all I could say was that in the course of the ruling, I made on the previous day, 6th March, 1996, I had the occasion to deal with what ought to have been done if it were sought to join 'Masechele Khaketla as 2nd applicant in CIV/APN/60/96. There was nothing more to add to what I had earlier said, on 6th March, 1996. On the third point of law raised, in limine. at p.64 of the record, it was worth bearing in mind that. in the instant case, there were pending proceedings for contempt of court against 'Masechele Khaketla. the pleadings in those proceedings had not yet been completed. When the pleadings were completed, the matter would, in due course, be set down for hearing and determination by the court. To require the court, at this stage, to make an order that 'Masecbele Khaketla should first purge the contempt of court before she could be beard would, in my view, imply that the court had already prejudged the proceedings for contempt of court, against her, even before those proceeding* were heard and deliberated upon. That would, in my view, be not a proper thing to do. Fourthly, it was to be borne in mind that the applicant, in CIV/APN/60/96, was her splinter of Iketsetseng Private School and not 'Masechele Khaketla herself. To say that 'Masechele Khaketla was guilty of non-disclosure of material facts in an application, which had been brought before the court by her splinter of Iketsetseng Private School and not herself did not, in my opinion, make sense. The accusation for non-disclosure should properly be placed at the door of the applicant which is her splinter of Iketsetseng Private School and not 'Masechele Khaketla herself. In the result, it was obvious that the view that I took was that all the four (4) points of law raised, in limine. at p. 64 of the record were not well taken and ought, therefore, not to succeed. They were accordingly dismissed with costs on the ordinary scale. After a brief adjournment to enable the parties to decide what next step to take, the court was told that, by consent of both parties, we should proceed to deal with the main application. However, Mr. Phoofolo. counsel for the applicant, said he wished to move an application, that certain portions in the answering affidavit of Morienyane should be struck out with costs, on the ground that they were scandalous and unnecessary to the proceedings. The relevant portions were para 9(7) on p.70 of the record and the 3rd paragraph on p.72 of the record starting with the word "Afterwards" in that paragraph up to the word "conduct" on the same page (72). The application was resisted by Mrs. Kotelo, counsel for the Respondents, who prayed that the application, to strick out, be dismissed with costs. It is significant to mention that the notice to strike out was filed, with the Registrar of the High Court and served upon the other party cm 1st March, 1996. Para (b) of subrule (5) of rule 29 of the High Court Rules. 1980 provides: "(b) Such an application may be set down on not less than seven days notice to the opposing party as an opposed application before the motion court." To decide whether or not the seven days, referred to in the above cited para (b) of subrule 5 of rule 29 of the High Court Rules. 1980, had expired when, on 7th March, 1996, the notice to strike out was set down and/or moved, it was pertinent to bear in mind the provisions of paragraph (c) of subsection (1) of section 49 of the Interpretation Act. 1977, The paragraph reads: "(c) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, Sundays and public holidays shall not be reckoned in the computation of the time". In the present case, the notice to strike out had to be set down on not less than seven days i.e. within a time exceeding six days. Sundays and public holidays had, therefore, to be reckoned in the computation of time. Now, it is undisputed fact that the notice to strike out was filed and served on 1st March, 1996. When it was set down and moved on 7th March, 1996, the period of 7 days had not yet expired. The application was, therefore, set down and moved prematurely. On that reason alone, the application could not succeed for failure to comply with the provisions of the above cited rule 29(5) (b) of the High Court Rules. 1980. Even if I were wrong and it was held that the application had been set down and moved timeously before the court, I was not convinced that the applicant would be prejudiced in the conduct of its case, if the application were turned down. In the circumstances, I dismissed the application, to strike out, with costs as prayed. Returning now to the main application, (CIV/APN/60/96), it is significant to mention, at this juncture, that in the course of arguments and, therefore, before judgment had been given, Mr. Phoofolo. counsel for the applicant, filed, with the Registrar of the High Court, an application for joinder of Iketsetseng Private School, of which the two Lechesas were trustees and members of the Executive Committee, as 3rd Respondent. The application was duly served, in accordance with the provisions of rule 12(2) of the High Court Rules. 1930 on all interested parties. Mrs. Kotelo. counsel for the Respondents, informed the court that she would not oppose the application for joinder of her faction of Iketsetseng Private School as the 3rd Respondent in the main application (CIV/APN/60/96). She, however, asked for costs. The Iketsetseng Private School was, by agreement of Che parties, accordingly joined as the 3rd Respondent in CIV/APN/60/96. I, however, made an order that costs would be in the cause. The Respondents intimated intention to oppose the application (CIV/APN/60/96) and subsequently filed a counter application, on 16th February, 1996 and 26th February, 1996, respectively. Affidavits were duly filed by the parties. It is perhaps, necessary to mention, at this stage, that when the interim order to join the faction of Iketsetseng Private School, of which the two Lechesas were trustees and members of the Executive Committee as 3rd Respondent was discharged, it was argued on behalf of the applicant that logically, the answering affidavit and its supporting affidavits deposed to by Mahao Morienyane and the two Lechesas, respectively, in support of the case for the 3rd Respondent, who was no longer a party in the proceedings had to fall away. I agreed that there was some logic in the argument. However, when later on, its application to join Iketsetseng Private School as 3rd Respondent was, by consent of the parties, granted, the applicant argued that the answering affidavit and its supporting affidavits deposed to by Mahao Morienyane and the two Lechesas, respectively, did not revive and no opposing affidavits had, therefore, been filed on behalf of the 3rd Respondent. I did not agree with the argument. If when the interim order to join Iketsetseng Private School as 3rd Respondent was discharged, the answering affidavit and the supporting affidavits deposed to on its behalf, logically fell away, when later on, Iketsetseng Private School was, by agreement of the parties, joined as 3rd Respondent, the same logic should apply i.e. the answering affidavit and the supporting affidavits deposed to, on its behalf, by Mahao Morienyane and the two Lechesas, respectively, should revive. Be that as it may, the facts disclosed by the founding affidavit deposed to by Caroline "Masechele Khaketla are, in as far as it is relevant, that she was the proprietor of Iketsetseng Private School. Following the judgment of the Court of Appeal, which directed her to handover the property and the management of Iketsetseng Private School to the two trustees, duly appointed in terms of the constitution thereof and the Executive Committee, respectively, she did not, make the handovers. Instead, some parents and teachers followed her. The parents and the teachers who followed her elected executive committee and continued to teach under her proprietorship, respectively. Therefore, Iketsetseng Private School had, in fact, broken into two establishments which operated under one name, on the same premises. Each of the two establishments was, however, run by its own different Executive Committee, The deponent further averred that on 11th February, 1996, she had been attending a meeting in her office on the school premises. When she got out of the office, she met a man whom she had earlier known to be a police officer. She asked him what he was looking for and in reply, the man told her that he had been sent there by the school committee to attend a meeting. According to her, the deponent knew nothing about the alleged meeting. However, shortly thereafter, a certain Bale Malee arrived. As she sat in the meeting, one 'Matinkane Mokhethi reported to the deponent that the respondents were breaking the door locks of the class-rooms, presumably used by the deponent's faction of Iketsetseng Private School, and replacing them with their (Respondents') own. Altogether 24 door locks of two dwelling houses, an office, a staff-room and class-rooms were replaced. According to her, there was no way, the deponent could stop that operation because it was done in a fighting mood. Neither had the perpetrators taken the trouble to explain to her the reason for doing so, nor where they had derived the authority to do so. She, however, reported the incident to a nearly police station but the police officers did nothing to stop the Respondents' unlawful act of denying more than eight hundred registered pupils access to class-rooms, which they had been using for the last six years, and thus disrupting their education process. In the contention of the deponent, the urgency of the matter was based on the fact that the Respondents had instituted proceedings for her ejectment from Iketsetseng Private School premises in CIV/APN/114/95 due to be heard, on April 1st, 1996, by the High Court. Despite the fact that the matter was still pending, the Respondents decided to take the law in their own hands by forcefully dispossessing the applicant of the premises and the equipment. The registered pupils of the applicant had, therefore, no classes to attend, and tension between the applicant and the 3rd Respondent was at a breaking point, as a result of the incident of Sunday, 11th February, 1996. Hence the institution of urgent application CIV/APN/60/96, for relief as aforesaid. The answering affidavits were deposed to by Mahao Morienyane (on behalf of the 3rd Respondent), Sello Matete (on behalf of the 2nd Respondent) and Bale Malee. In his answering affidavit, Mahao Morienyane, inasmuch as it is relevant, averred that he was the Chairman of the 3rd Respondent and duly authorised to make the affidavit. He referred the court to the judgments of the High Court and the Court of Appeal dated 10th February, 1992 and 25th September, 1992, respectively, which decided conclusively that the 3rd Respondent was the property of the Governing Body (Parents and Guardians of the children attending school at Iketsetseng Private School). The deponent further averred that following the decision of the court of Appeal, a certain Nts'ihlele and others formed a bogus Executive Committee and tried, in CIV/APN/400/92, to challenge the duly elected Executive Committee of Iketsetseng Private School. The application was dismissed by Kheola, J (as he then was) who recognised as valid the 3rd Respondent's Executive Committee elected in 1991 and 1992. An appeal was lodged against the High Court decision in CIV/APN/400/92 but dismissed by the Court of Appeal in C.of A (CIV)No.3/93 on the ground that it was without substance. Indeed, the Ministry of Education recognised (per its letter of 10th April, 1995) the 3rd Respondent's Executive Committee as the only lawful one. The deponent denied, therefore, the averment of Caroline 'Masechele Khaketla that she was the proprietor of Iketsetseng Private School. The deponent also denied that following the decision of the Court of Appeal in C.of A. (CIV) No.1/92, Iketsetseng Private School broke into two establishments, as averred by Caroline 'Masechele Khaketla. According to the deponent, having decided to refuse to obey the judgment of the Court of Appeal directing her to handover the property and the administration of the 3rd Respondent to its trustees and Executive Committee, respectively, (as she herself conceded ad para. 6.2 of her founding affidavit) Caroline 'Masechele Khaketla continued to run an illegal school on the property of the 3rd Respondent. It was her illegal act that forced the Ministry of Education to call a meeting, which was held at L. T. I. (Lerotholi Technical Institute), and categorically state that it recognised only one Iketsetseng Private School and that was the one in whose favour the court of Appeal gave judgment on 25th September, 1992. According to the deponent, after Caroline 'Masechele Khaketla had defied all the judgments and the decision of the courts of law and the Ministry of Education, respectively, and continued teaching activities on the premises of the 3rd Respondent, the Governing body (Parents) resolved at the meeting of 4th February, 1996 to go and change the door locks on the premises of their property, the 3rd Respondent. Consequently, at 2 O'clock in the afternoon of 11th February, 1996, between 150 and 200 parents gathered on the premises of the 3rd Respondent and admittedly carried out the resolution of the Governing Body by changing the door locks on the premises of the 3rd Respondent. He denied, therefore, the suggestion that the let and 2nd Respondents had anything to do with the action of changing the door locks, which action was lawfully carried out by the parents of the pupils attending school at the 3rd Respondent. In his answering affidavit, the deponent averred that the doors of the 3rd Respondent were open to all the children who had registered with the school. Indeed, several parents who had registered their children with 'Masechele Khaketla under the misconception that she was the proprietor of 3rd Respondent de-registered with her, after learning the true position, and re-registered with the 3rd Respondent through its duly elected Executive Committee. He denied, therefore, the averment that the action of the parents, on 11th February, 1996, had disrupted the education of the children at Iketsetseng Private School (3rd Respondent). The answering affidavit of Mahao Morienyane was corroborated, in material respects, by the supporting affidavits of Victor and Lefu Lechesa, the two trustees of the property of the 3rd Respondent. In his answering affidavit Bale Malee (1st Respondent) confirmed the answering affidavit and the supporting affidavits of Mahao Morienyane and the two Lechesas, respectively, in that on the afternoon of the day in question, 11th February, 1996, between 150 and 200 parents of the pupils at Iketsetseng Private School (3rd Respondent) gathered on the premises of the school and carried out the resolution of the Governing Body viz. to change the door locks on the premises of its property (3rd Respondent). The deponent himself did not take part in the work of changing the door locks. Re denied, therefore, the averment of 'Masechele Khaketla that be did so and thus disrupted the education process of children at the school. Nor was it correct that he instituted court proceedings against 'Masechele Khaketla, as she wished the court to believe. That was the function of the 3rd Respondent's Governing Body which had duly elected an Executive Committee whose role was to see to proper administration of the school. On behalf of the 2nd Respondent, Sello Matete deposed to an answering affidavit, in which he averred that he was the Director of M. M. Security (Pty) Ltd and duly authorised to make the affidavit. His company had been employed by the owner of the 3rd Respondent, namely, the Governing Body, to patrol, maintain law and order at the school. The 2nd Respondent had, therefore, no interest whatsoever in the administration, and the changing of door locks on the premises, of the 3rd Respondent (Iketsetseng Private School), He categorically denied, therefore, 'Masechele Khaketla's suggestion that the 2nd Respondent was involved in the changing of the door locks at the premises, of Iketsetseng Private School on the day in question, 11th February, 1996. Considering the evidence as a whole, it seems to me that it is not really in dispute, that on 11th February, 1996, some of the door locks were changed/replaced on the premises of Iketsetseng Private School, Although in her founding and replying affidavits, 'Masechele Khaketla averred that the 1st and the 2nd Respondents did so, it would appear that she herself did not actually witness it. It was merely reported to her by 'Matinkane Mokhethi who, however, filed no affidavit to confirm the averment of 'Masechele Khaketla in this regard. Mahao Morienayne, Bale Malee, Sello Matete and the two Lechesas deposed to answering affidavits and supporting affidavits, respectively, in which they all denied that the 1st and the 2nd Respondents had anything to do with the replacement of the door locks at Iketsetseng Private School, on the day in question, 11th February, 1996. They averred that the parents of the pupils at Iketsetseng Private School, were the people who, in pursuance of the resolution of the Governing Body, replaced the door locks on the premises of the school. In my finding, the evidence is simply overwhelming, against 'Masechele Khaketla. I am, therefore, inclined to accept, as the truth, the story of Mahao Morienyane, Bale Malee, Sello Matete, the two Lechesas and reject as false the version of 'Masechele Khaketla, on this point. It is significant that in her founding affidavit, 'Masechele Khaketla averred that following the judgments of the High Court and the Court of Appeal, dated 10th February, 1992 and 25 September, 1992, respectively, which judgments ordered her to handover the property and the administration of Iketsetseng Private School to the trustees (the two Lechesas) and the Executive Committee of the school, respectively, she did not make the handovers as ordered. Instead the school broke into two establishments operating under one name, and on the same premises, of Iketsetseng Private School, The parents and the teachers who followed her, also elected Executive Committee and continued to teach under her proprietorship respectively. The so-called two establishments of Iketsetseng Private School had, therefore, since been run by two Executive Committees. That was not what the courts of law, in their judgments, had ordered. The clear order of the courts of law was that 'Masechele Khaketla should handover the property and the administration of Iketsetseng Private School to its trustees (the two Lechesas) and duly elected Executive Committee, respetively. 'Maschele Khaketla was, therefore, ordered to put her hands off the property and the administration of the school. Instead what 'Masechele Khaketla and her followers did was to open another school under the name, and on the registered premises, of Iketsetseng Private School. They did so wrongfully, in my opinion, for what they did was flagrant trespass on the premises of Iketsetseng Private School in clear contradiction of the Order of the Courts of law and without any authorisation of the owner of the school. It is common cause that the so-called Iketsetseng Private School, which is the applicant in these proceedings was not even registered, in terms of the provisions of subsection (1) of section 12 of the Education Order. 1971 which was the applicable law at the time. The subsection reads, in part: "12(1) No person or society shall open any school or shall assist in the opening of a school after the date of the commencement of this Order, or continue in existence any existing school 6 months after that date, unless it has been approved by and the Minister r e g i s t e r ed in accordance with the this provisions O r d er t he regulations made under section 21 ..." a nd of (my underlinings) I have underscored the words "shall" in the above cited subsection (1) of section 12 of the Education Order. 1971 to indicate my view that the provisions thereof are mandatory. The salient questiont that immediately arises for the determiantion of the court is, therefore, whether or not where the Governing Body which is, in terms of the judgments of the courts of law and the decision of the Ministry of Education, the lawful proprietor of Iketsetseng Private School, has decided in its wisdom, interest of peace, good government, law and order at the school, to change the door locks on its premises, the applicant who is a trespasser thereon, be granted the relief prayed for in CIV/APN/60/96. I am not aware of any provisions of the law which authorise such a thing. Nor was any such law brought to my attention during the course of the hearing of this application. Common sense dictates that such law (if any) would be prepostrous Indeed, if there were any such law, it would be in direct conflict with the provisions of the Education order. 1971 of which section 13 (1) reads, in part: "13(1) or which Any school which is opened contrary to the provisions of section is conducted in a manner detrimental the interests of peace, and o r d er government .... may be closed cm the written order of the Minister," g o od to From the foregoing, it must be accepted that the answer to the question I have earlier posted viz. whether or not where the Governing Body which is, in terms of the judgments of the courts of law and the decision of the Ministry of Education, the lawful proprietor of Iketsetseng Private School, has, in its wisdon, interest of peace, good government, law and order decided that the door locks on the premises of the school be changed, the applicant, who is a trespasser, can be granted the relief sought in CIV/APN/60/96, must be in the negative. Consequently, I come to the clonclusion that the application (CIV/APN/60/96) ought not to succeed. The rule nisi obtained, ex carte, on 14th February, 1996 is accordingly discharged with costs. Turning now to their counter application filed, with the Registrar of the High Court, on 26th February, 1996, the Respondents, inter alia, sought the relief directing the 2nd Applicant, 'Masechele Khaketla, in CIV/APN/60/96, to unlock and remove forthwith the locks of the gates leading into the premises of Iketsetseng Private School (3rd Respondent) and restraining her from interfering in any manner whatsoever with the school's administration and the business of teaching activities on the school premises. The counter application was opposed and affidavits duly filed by the parties. I do not propose to deal with the affidavits for the following reasons. At the time the counter application was filed on 26th February, 1996, 'Masechele Khaketla was not a party to the proceedings in CIV/APN/60/96. It was only after the court had, on 6th and 7th March, 1996, made its rulings that the prayer to join her as 2nd applicant could not be granted because the provisions of the High Court Rules. 1980 had not been complied with, that an urgent application to join her as 2nd applicant in CIV/APN/60/96 was filed, on behalf of Bale Malee, and served on day, 7th March, 1996. 'Masechele Khaketla intimated intention to oppose the application. The founding and the answering affidavits were filed by the parties. That application has, however, not been disposed of and 'Masechele Khaketla is as yet still not joined as 2nd applicant in CIV/APN/60/96. There is, in my view, no way a court of law can grant an order against a person who is not a party in the proceedings before it. The counter application must, for this reasons fail. It is accordingly dismissed with costs. Having said that much, I must, however, reinterate that the judgments of the High Court and the Court of Appeal (which is the highest tribunal of the land) dated 10 February and 25th September, 1992, respectively, have long decided that Iketsetseng Private School did not belong to 'Masechele Khaketla, who was ordered to put her hands off the school by handingover the property and the administration thereof to the trustees (the two Lechesas) and the duly elected Executive Committee of the Governing Body of the School, respectively. On the basis of those judgments, 'Masechele Khaketla and her followers have no right whatsoever to open the illegal school they are alleged to have opened on the premises of Iketsetseng Private School. They must, therefore, forthwith stop creating confusion and disturbance of the peace; good government, law and order at that school by conducting unauthorised teaching activities on the premises of the school. B. K. Moloi J U D GE 21st March, 1996. For: Applicant : M r, Phoofolo For Respondent : Mrs Kotelo.