Unity English Medium School v Masia and Others (CIV/APN 497 of 93) [1994] LSCA 179 (9 December 1994)

CIV/APN/497/93 IN THE HIGH COURT OF LESOTHO In the Application of UNITY ENGLISH MEDIUM SCHOOL Applicant V BERNADETTE MASIA ) LIZZY JOHN ) Respondents MATEBOHO KOELANE ) REASONS FOR JUDGMENT Delivered by the Honourable Mr J u s t i ce W C M Maqutu Acting Judge This was launched as an ex parte application on the 9th December In it applicant sought an order in the following terms That a rule nisi be issued by the Honourable Court returnable on a date to be determined ordering Respondents to show cause, if any, why - (a) The normal forms and period of service provided for in the Rules of Court shall not be dispensed with on account of the urgency of this matter (b) Respondents shall not hand over to Applicant and/or its Board the possession of the school and all its property including locks and keys for the main gate, the classrooms and inter premises at the school, books, financial records, office and other equipment and all other property and assets of the Applicant of whatsoever nature, /2 - 2- (c) Respondents shall not be interdicted from doing any act or thing on behalf of the Applicant without the authorisation of the Board, (d) Respondents shall not be interdicted from interfer- ing in any way with the smooth running of the school or preventing the Board in any way from exercising its rights and carrying out its duties, (e) Applicant shall not be granted such further and/or alternative relief as the Court may see fit, (f) Respondents shall not be ordered to pay the costs of this application That prayers 1 (a) to (d) operate with immediate effect as temporary relief After reading the papers and hearing Mrs Makara counsel for applicant briefly the court made the following order (a) In as much as the matter is urgent normal rules of service are dispensed with (b) Nevertheless it is ordered that Respondents be personally served with the application The application for the issue of the Rule Nisi will be heard on Tuesday 14th December 1993 at 4 00 p m The court's view was that it is a fundamental principle of our law that the court should hear both sides before making any order even if the matter is urgent Orders are provisionally granted without hearing the other side if circumstances of the case makes such a course unavoidable Beck J in Republic Motors V Lytton Road Service Station 1971 (2) SA 516 at 518 FH put this court's view succintly when he said /3 - 3- "The procedure of approaching the court ex parte for relief that affects the rights of other people is one w h i c h, in my opinion, is somewhat too lightly Although the relief that is employed sought when this p r o c e d u re is resorted to is only temporary in n a t u r e, it n e c e s s a r i l y, for the time being invades T he freedom of action of a person or persons who have not been heard and it is to that extent a negation of a fundamental precept of audi alteram partem It is accordingly a p r o c e d u re that should be sparingly employed and carefully disciplined by the existence of factors of such urgency, or of well-grounded apprehension of perverse conduct on the part of respondent who if informed before-hand of justice is in danger of frustration unless temporary curial intervention can be unilaterally obtained" the course C i r c u m s t a n c es in which ex parte order might be sought are too varied to be enumerated Every case has to be determined according to its special circumstances The important point to emphasise is that an urgent application need not be ex parte In the court's view urgent applications that are made on notice to the other side can even be more speedily disposed of because when parties appear before court (they are ready to argue the application b e c a u se ordinary periods of service -and preparation w e re dispensed w i t h) therefore opposing affidavits are before court This is what happened in this case This urgent application was disposed of within five days There was no need to issue a Rule Nisi The court was able to deal with the merits and make a final order straight away There are cases where a Rule Nisi or interim order might be issued on notice It seems therefore that an application for the issue of a Rule Nisi can be on notice These proceedings involve the right to run and be in control of Unity English Medium School /4 - 4- Unity English Medium School is the a p p l i c a nt herein In fact this a p p l i c a t i on was brought by one faction claiming the right to control Unity. English Medium School The R e s p o n d e n ts (who also claim to be Board of the s c h o o l) belong to the f a c t i on t h at failed in C I V / A P N / 4 4 1 / 93 to wrest control from the faction that have brought this a p p l i c a t i on in the name of Unity English Medium School This is the r e a s on that R e s p o n d e n ts have o b j e c t ed to their right to bring this a p p l i c a t i on In C I V / A P N / 4 4 1 / 93 R e s p o n d e n ts brought an a p p l i c a t i on whose j u d g m e nt is a n n e x t u re "D" In it they sought to r e s t r a in C h a r l es M p h a o l o li and ten others among whom was Unity English Medium School from exercising the f u n c t i o ns of Board of Directors of Unity Medium School There appeared to be a d i s p u te as w h e t h er t he p r o p r i e t o r s h ip of the school vested in "the Board of D i r e c t o rs with the f o u n d e rs i n c l u s i v e" or t h at it is a c o m m u n i ty school To r e s o l ve it Kheola J held t h at "at the moment the school is now a c o m m u n i ty s c h o o l" R e s p o n d e n ts claimed they w e re the lawful board of the school To R e s p o n d e n ts the school was still a p r i v a te school not a c o m m u n i ty school T h e r e f o re R e s p o n d e n ts s u b s e q u e n t ly a p p e a l ed a g a i n st this decision of Kheola J They feel that Kheola J w r o n g ly assumed they did not c h a l l e n ge the fact that the school w as now a c o m m u n i ty school In p a r t i c u l ar in "MMB4" they say they w e re not only c h a l l a n g i ng the c o n s t i t u t i o n a l i ty of the e v e n ts t h at followed but the a m e n d m e nt t h at turned the school into a c o m m u n i ty school C h a r l es M p h a o l o li is in this a p p l i c a t i on applicant's deponent In C I V / A P N / 4 4 1 / 93 the said C h a r l es Mphaololi was the First R e s p o n d e nt /5 -5- Kheola J in C I V / A P N / 4 4 1 / 93 after hearing both p a r t i es and reading the p a p e rs filed of record had found t h at w h at caused the present r e s p o n d e n ts to bring that a p p l i c a t i on was that "The First Respondent Charles M p h a o l o li is the M a n a g er of the school and C h a i r m an of the Board of D i r e c t o rs As such he was under an o b l i g a t i on to i m p l e m e nt the d e c i s i o ns of the board to c h a n ge the school into a fully fledged c o m m u n i ty s c h o o l" Charles M p h a o l o li in C I V / A P N / 4 4 1 / 93 is shown to have been not only the C h a i r m an of the Board which the p r e s e nt Respondents recognise as t he proper o n e, but one of the three f o u n d e rs of the school He is also the Chairman of the Board which w as elected when the school b e c a me a community school It is this newly elected B o a r d , t h at present Repondents are c h a l l e n g i n g, which has brought this a p p l i c a t i on in the name of Unity English Medium School In d i s m i s s i ng applicant's o b j e c t i on to the locus standi of the Board w h i ch b r o u g ht this a p p l i c a t i on I m a de t he following ruling "The c o u rt feels it cannot review Mr J u s t i ce Kheola's j u d g m e nt In the light of the a f o r e g o i ng applicants a p p l i c a t i on is granted in terms of p r a y e rs (b) (c) (d) and (f) of the Notice of M o t i o n" The view t h at I t a ke is that the d i s p u te o v er w h i ch Board is the rightful one has been settled by Kheola J the Respondent's appeal n o t w i t h s t a n d i ng An appeal does not suspend the operation of a High Court J u d g m e nt See Rule 6 (1) of the Court of Appeal Rules 1980 which crisply state "The noting of an appeal does not o p e r a te as stay of e x e c u t i on of the j u d g m e nt appealed from" /6 - 6- If any o ne d o u b ts that K h e o la J s e t t l ed the d i s p u te b e t w e en the two B o a r ds one has to read p a g es 5 and6 of Kheola J's j u d g m e nt in which he said "The q u e s t i o ns to be d e c i d ed by the c o u rt a re w h at was the effect of c h a n g i ng t he p r o p r i e t o r s h ip of the school to a c o m m u n i ty s c h o o l? Did t he c o n s t i t u t i on w h i ch was m e a nt for a p r i v a te school c o n t i n ue to have full e f f e ct a f t er the school b e c a me a fully fledged c o m m u n i ty s c h o o l? It s e e ms to me that the a n s w er must be that as soon as t he a m e n d m e nt was m a de to t he c o n s t i t u t i on that the s c h o ol was a c o m m u n i ty school the e x i s t i ng c o n s t i t u t i on b e c a me ineffectual and i r r e l e v a nt The First R e s p o n d e nt did t he right thing to call t he p a r e n ts m e e t i ng to e l e ct a new Board that w o u ld draft a new c o n s t i t u t i on I t a ke the view that the c o n s t i t u t i on whcih was m e a nt for a p r i v a te school could no longer b e - s u i t a b b le after t he u n a n i m o us d e c i s i on that the p r o p r i e t r o s h ip of the school then vested in the school ( c o m m u n i t y) It is a c o n t i n u i ng process which involved as the next s t e p, the e l e c t i on of the new Board who would d r a ft a new c o n s t i t u t i on for the new school The a p p l i c a n ts cannot be heard to say that after the u n a n i m o us decision that t he school should be changed to a c o m m u n i ty school t h e re should be a s t a l e m a te as to how this should be d o n e" A f t er f a c i ng t h is issue squarely and r e c o g n i s i ng the newly elected Board as the l e g i t i m a te o ne to c h a n ge the p r i v a te school into a c o m m u n i ty o n e, Kheola J dismissed a p p l i a n t 's a p p l i c a t i on This is t he d e c i s i on that this court c a n n ot and will not review /7 - 7- I do not t h i nk R e s p o n d e n ts are e n t i t l ed to stand in the way of A p p l i c a n ts when R e s p o n d e n ts did m o ve court for control and having f a i l ed in that a p p l i c a t i on to remain in c o n t r ol of t he school, t h ey c a n n ot stay put e s p e c i a l ly w h en in d e a l i ng w i th t he m e r i ts of t h e ir a p p l i c a t i on the c o u rt has d e c l a r ed their a d v e r s a r i es to be rightful Board T h e ir a d v e r s a r i es are entitled to rely on that court's j u d g e m e nt to c o n t i n ue w h e re they left off (before R e s p o n d e n ts b r o u g ht t h e ir u n s u c c e s s f ul a p p l i c a t i o n) s t r e n g t h e n ed by the c o u r t 's ruling in t h e ir f a v o ur In so d e c i d i ng I am c o n s c i o us of the c o u r ts duty to c o n s i d er t he issues in each case and a n a l y se t he j u d g m e nt in o r d er to a s c e r t a in a c c u r a t e ly what e x a c t ly it did affect See Beck's T h e o ry and P r i n c i p l es of P l e a d i n gs in Civil A c t i o ns by Isaacs 5th Ed at page 164 (para 78) C a n ey J in P u r c h a se V P u r c h a se 1960 (3) SA 383 at 385AB said "I t h i nk that a d i s m i s s al and refusal of an a p p l i c a t i on have the same e f f e c t, namely a d e c i s i on in f a v o ur of r e s p o n d e n t" The view I t a ke is that C I V / A P N / 4 4 1 / 93 was not on this point a p u r e ly i n t e r l o c u t o ry a p p l i c a t i on Indeed if it was i n t e r l o c u t o ry R e s p o n d e n ts s h o u ld not have a p p e a l ed w i t h o ut f i r st o b t a i n i ng l e a ve of court K h e o la J in C I V / A P N / 4 4 1 / 93 also d e c i d ed w h i ch of the B o a r ds is c u r r e nt B o a rd of Unity English M e d i um School (the a p p l i c a n t) He had to do t h is in order to d i s m i ss a p p l i c a n t 's a p p l i c a t i on T he view K h e o la J took in r e a c h i ng his d e c i s i on was that he should t a ke a r o b u st a p p r o a ch and a v o id " m i n u te o b s e r v a n ce of the r e g u l a r i ty of forms among p e o p le who a re not f a m i l i ar with legal f o r m s" R e s p o n d e n ts at p a r a g r a ph 10 of First R e s p o n d e n ts admit w r i t i ng a n n e x u re " B" /8 - 8- This v e s t ed t he p r o p r i e t o r s h ip of the school in the Unity English M e d i um S c h o ol in the s c h o ol ( c o m m u n i t y) and a m e n d ed the c o n s t i t u t i on by r e m o v i ng the w o r ds " p r o p r i e t o r s h ip of the school is vested in t he Board of D i r e c t o rs the f o u n d e rs i n c l u s i v e" I accept w h at K h e o la J found n a m e ly that t h e re w as no real d i s p u te that the c o n s t i t u t i on was a c c e p t ed by p a r t i es b e f o re him in C I V / A P N / 4 4 1 / 93 as h a v i ng been c h a n g ed R e s p o n d e n ts b e l a t e d ly raised c l a u se 1 8 ( i) on t he a m e n d m e nt of the c o n s t i t u t i on marked " M M B 1" This p r o v i d es t h at t he a m e n d m e nt shall not be d i s c u s s ed u n l e ss six m o n t hs n o t i ce has b e en given R e s p o n d e n ts do not d i r e c t ly say w h e t h er six m o n ts n o t i ce an a m e n d m e nt w o u ld be made to the c o n s t i t u t i on w e re g i v en A n n e x u re " B" only s t a t es t h at the Board of M a n a g e m e nt a m e n d ed t he c o n s t i t u t i on at its m e e t i ng of 14/5/93 w h e re the a m e n d m e nt w as u n a n i m o u s ly a p p r o v ed T he c o u rt has no g r o u n ds to d o u bt that the h o l d i ng of the m e e t i ng w as a s s a i l a b le R e s p o n d e n ts in t h e se p r o c e e d i n gs tried to r e p e at f a i l u re to c o m p ly w i th S e c t i on 16 of the c o n s t i t u t i on w h i ch K h e o la J had d e a lt with and a g a in c h a l l a n ge the a m e n d m e nt on t he g r o u n ds that "In t e r ms of S e c t i on 16 of the c o n s t i t u t i on only the B o a rd of D i r e c t o rs has p o w e rs to amend the c o n s t i t u t i on a f t er t he lapse of a p e r i od of six (6) m o n t hs after d e b a t i ng the m o t i on to do so". They have a n n e x ed to t h e ir p a p e rs (in t h is a p p l i c a t i o n) a c o n s t i t u t i on m a r k ed " M M B 1" to w h i ch t h is c o u rt is r e f e r r ed to The c o u rt looked at S e c t i on 16 of the said c o n s t i t u t i on and found it d e a lt w i th o f f i c e rs not a m e n d m e nt of the c o n s t i t u t i on S ee page 9 of " M M B 1" On page 10 of " M M B 1" the c o u rt found S e c t i on 1 8 ( i) w h i ch d e a ls with A m e n d m e nt to C o n s t i t u t i on and it r e a ds /9 - 9 - "The power to amend this constitution shall be a subject of a meeting of Board of D i r e c t o r s, and any intention to do so must be provided for a period of six (6) months before the date of d e b a t i ng such a m o t i o n" It will be observed that the Respondents have deliberately misread the c o n s t i t u t i on or inventing what is not in the constitution to try and wriggle out of the amendment If they are parties to the amendment they estoppel from challenging it especially as f o u n d er members First and Second Respondents are founder members This also applies to Third Respondent who appears to have been a party to the amendment as a member of the Board which made the said amendment which First and Second Respondents signed It is a fundamental principle of our law that no one shall derive any advantage from his wrongful act or culpable remissiveness See Baumann V Thomas 1920 AD 428 at 435 Tebbutt J in Sunday V Surrey Estate Meat Market 1983(1) SA 521 at 532E rejected the suggestion that culpa or negligence is not an element of this form of estoppel because "The basis of estoppel is the fundamental principle of f a i r n e ss and justice and the avoidance of inequity and unconscionable conduct upon which it is based also permeates our law of e s t o p p e l" That being the case the findings of Kheola J which this court is in any e v e nt not entitled to review receive independent support from the above findings that come from a proper reading of Respondent's papers /10 - 10 - Charles Mphaololi is the applicant's d e p o n e n t, Chairman of the Board and M a n a g er of the applicant school (from what Kheola J found) At p r e s e nt he is being impeded by R e s p o n d e n ts from exercising the authority he has always had over the school T h e r e f o re 1 am of the view that curial intervention on his side and that of the current Board of Applicant is u n a v o i d a b le It is on that basis that on the 14th D e c e m b er 1993 I made the following order Applicants application is granted in terms of prayers (b) (c) (d) and (f) of the Notice of Motion R e s p o n d e n ts are in effect ordered to hand over control of the school to the newly elected board of which the deponent Charles Mphaololi is the current C h a i r m an W C M MAQUTU ACTING JUDGE