Cana High School v Lesotho Evangelical Church of South Africa School Secretariat Dr. Senekal (CIV/APN/0047/2022) [2022] LSHC 126 (29 September 2022)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/APN/0047/2022 In the matter between CANA HIGH SCHOOL 1ST APPLICANT OUTGOING CANA HIGH SCHOOL BOARD 2ND APPLICANT INCOMING CANA HIGH SCHOOL BOARD 3RD APPLICANT AND LESOTHO EVANGELICAL CHURCH OF SOUTH AFRICA SCHOOL SECRETARIET (DR SENEKAL) 1SRESPONDENT LESOTHO EVANGELICAL CHURCH OF OF SOUTHERN AFRICA MINISTER EDUCATION THE ATTORNEY GENERAL 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT Neutral Citation: Cana High School and others V Lesotho Evangelical Church of (SIC) Southern Africa Schools Secretariat (Dr Senekal) and 3 Others [2022] LSHC 248 Civ (29 SEPTEMBER 2022) CORAM HEARD DELIVERED : : : HLAELE J. 08 AUGUST 2022 29 SEPTEMEBER 2022 SUMMARY Review Application- Jurisdiction of the court- Effectiveness of judgements. Court to decline jurisdiction where its judgements are rendered ineffective. ANNOTATIONS: CITED CASES: 1. Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others 2010 (6) SA 329 (SCA 2. South Atlantic Islands Development Corporation Ltd v Buchan 1971 (1) SA 234 (C) at 240D-E 3. Bobroff and Another v The National Director of Public Prosecutions1 (Case no 194/20) [2021] ZASCA 56 (3 May 2021), STATUTES: 1. Education Act of 2010; HLAELE J [1] INTRODUCTION JUDGMENT 1.1The applicant came before this court seeking the following orders: That Rule Nisi issue returnable on the date and time to be determined by this Honourable Court, calling upon the Respondents to show cause (if any) why: a) The Rule as to form and notice shall not be dispensed with on account of urgency; b) The 1st and 2nd Respondents shall not be ordered and directed to dispatch the record of proceedings that gave birth to their refusal to appoint and submit two candidates to the 3rd Respondent for onward inauguration of the 1st Applicant’s Incoming School Board elected on the 1st February 2020 (if any to the Registrar of his Honourable Court and Applicant’s Attorneys within Seven (7) days hereof; c) The 1st and 2nd Respondent’s refusal to appoint and submit two candidates to the 3rd Respondent for onward inauguration of the 1st Applicant’s Incoming School Board elected on the 1st February 2020 shall not be reviewed, corrected and set aside; d) The 1st and 2nd Respondents shall not be compelled, directed and ordered to appoint and submit two candidates to the 3rd Respondent for onward inauguration and approval of the 1st Applicant’s Incoming School Board elected on the 1st February 2020; e) The 1st and 2nd Respondent shall not be compelled, directed and ordered to appoint and submit two candidates to the 3rd Respondent for onward inauguration and approval of the 1st Applicant’s Incoming School Board elected on the 1st February 2020 as envisaged by the Education Act of 2010; f) The 3rd Respondent shall not be compelled, directed and ordered to approve the 1st Applicant’s Incoming School Board elected on the 1st February 2020 inclusive of the 1st and 2nd Respondents appointed candidates as envisaged by the Education Act of 2010; g) The 3rd Respondent shall not be compelled, directed and ordered to approve the 1st Applicant’s Incoming School Board elected on the 1st February 2020; h) The Respondents herein shall not be ordered to pay costs on Attorney and Client Scale; i) The Applicants shall not be granted such further and/or alternative relief; [2] ISSUES FOR DETERMINATION 2.1Reading from the Notice of Motion it appears that the issues for determination by this court are: a. The issue of the appointment of two members of the 2nd Applicant1 which are the responsibility of the 2nd respondent in terms of the Education Act2 b. That the court should direct and compel the 3rd Respondent [Minister] to approve the 2nd Applicant. The 2nd Applicant is defined as the incoming board.3 [3] FACTS THAT ARE COMMON CAUSE 3.1. Most, if not all facts are contested. The facts that are common cause are; a. b. That the first and second Respondents are as cited in the proceedings. That there was a process undertaken to establish a school board in February 2020 in that; i. ii. The teacher component was elected.4 The parent component was elected5 1 Prayers 1 ( c) , (d), (e) of the founding affidavit. 2 Section 23(2) (a) of the Education Act reads “23. (1) A school shall be governed by a school board. (2) A school board consists of the following nine members appointed by the proprietor and approved by the Minister - (a) two members nominated by a proprietor, one of whom is the chairperson; 3 Prayer (f) of the Notice Motion 4 Paragraph 8.3.2 of the Founding Affidavit. The names of the teacher elected appears on “CANA1” at page 46 of the record and annexure “B” to the Answering Affidavit at page 95 of the record. The teacher’s name on both documents is MPHO NOE. 5 “CANA1” to the Founding Affidavit page 46 of the record and annexure “B” to the Answering Affidavit, page 95 of the record both disclose the names of MOSHAONYANE MAKHELE ,TSELISO MORIE and MAKUME MAKUME as the parent component of the School Board. iii. The 2nd Respondent forwarded a list to the 3rd Respondent for approval. The names of the elected component (parents and teachers) are as appears in the report of the deponent to the Founding affidavit. The same names appear in the list forwarded to the Minister by the 2nd Respondent. iv. The rest of the members are ex officio members who are members by virtue of their official titles, being the chief, Local Council. c. That the minister has not approved the Board elected from February 2020. [4] JURISDICTION OF THE COURT TO ENTERTAIN THIS MATTER 4.1 It is important for the court, before delving into this issue, to take a tour so as to establish how the issue of jurisdiction came to fore. This is so because none of the parties raised it in their pleadings. Herein under is a narration of the journey of the proceedings which ultimately led to the issue of jurisdiction being raised by the court. 4.2 It was during the proceedings whilst the parties were making submissions that it transpired that certain of the orders sought were overtaken by events. This could probably be as a result of the dominis litis’ failure to undertake proper due diligence before instituting proceedings. 4.3 To put this into perspective, I will refer to the papers filed of record. In prayers 1 (c), (d) and (e), the applicant sought the intervention of this court to direct and compel the 2nd Respondent to appoint two candidates and forward their names to the 3rd Respondent so that the latter could exercise his statutory duties and approve of the 2nd Applicant. 4.5 I will go into the facts of the case so as to unpack and simplify what is meant by the paragraph above. In so doing I will as strictly as possible, rely on the facts that are common cause. Where issues form contestation, I will so state without offering a conclusion lest a party is of a view that the court has made a confirmation, albeit obiter, of their version. 4.6 The deponent to the founding affidavit alleges that he is the Deputy Principal of the 1st Applicant which is Cana High School. Acting in terms of his duties as such, he submits that he caused for a school board to be elected. This he did because as at 2019 the life of the then current School Board had come to its statutory lifespan. 4.7 In February 2020 the deponent, and this is common cause, caused for the teacher component and the parent component of the school to be elected.6 To this end, he filed a report with the proprietor of the school, the 1st and 2nd respondent.7 It will readily be seen that “CANA1” does not have the names of the two members who are elected by the 1st and 2nd Respondents as the owners or proprietors of the school. The deponent’s expectations, which were not unfounded, was that the proprietors would then submit a full report detailing all members elected and appointed8 4.8 Unbeknown to the Applicants and strange enough the 3rd Respondent9, the 2nd Respondent had filed with the 3rd Applicant the names of the board members for his approval. Despite reservations and issues that the 1st and 2nd Respondents had had with regard to the election of the parent component, they submitted to the 3rd Respondent the same names of the parents that were elected under the supervision of the deponent to the founding affidavit.10 6 Paragraph 8.3 of the record. Para 8.3.1- 8.3.5 at pages 15-16 of the record. 7 The report is marked “CANA1” at pages 46- 48 of the record. 8 Certain members are ex offcio and are, in terms of the act appointed by virtue of their position in the community where the school is located. Section 23(2) (d) and (e) refer to the gazette chief of the area or his representative and the Local Councilor or his representative. 9 In terms of annexure “E” to the answering affidavit, the Minister writes the Applicant a show cause letter instructing the 2nd Respondent to submit the list to him for approval. in terms of “F” Respondents indicate that he has as far as the 14th May 2021 submitted the same. 10 Compare “CANA 1” with annexure “B “to the answering affidavit. 4.5 It is from this same confusion and obvious lack of communication between these parties that the matter is before this court. A situation best described as Babel. Where people working towards the same goal appear to lose communication whilst still working on the same project. [5] SUBMISSIONS BEFORE COURT 5.1 It is important to take a detour and rummage through the submissions the parties made before the court in order to reach the destination of how this court eventually came to the order that it did. For this proposition I rely on the oral submission made and what transpired during these exchanges. 5.2 Whilst parties were making submissions, it became apparent to the Applicants’ counsel that the 2nd respondent had indeed furnished the 3rd Respondent with the names of the two candidates who represent the Proprietor in the School Board. It was as if a tube light had finally shone in the dark after some initial flickering. 5.3 It was for this reason that Advocate Setlojoane who was representing the Applicants was quick to concede that prayers 1 (c), (d) and (e) were overtaken by events. As a result, he abandoned these prayers. To put it succinctly, he no longer pursued them. Having abandoned these prayers, the court was left with prayer (f) to the Notice of Motion to deal with and determine. 5.4 With the detour over, the court goes back on track to the issue at hand. The issue of its jurisdiction to grant the order prayed for. It is imperative to mention that the issue of jurisdiction was not raised by either of the parties to these proceedings. The court thus having doubted its capacity to entertain the matter, requested the parties to make submissions on the issue of its jurisdiction. To this end, the parties filed written submissions. The court commends this and is assisted by these submissions. 5.5 At the risk of repetition, the court will recite prayer 1(f) of the Notice of Motion. It reads as follows: The 3rd Respondent shall not be compelled, directed and ordered to approve the 1st Applicant’s Incoming School Board elected on the 1st February 2020 inclusive of the 1st and 2nd Respondent’s appointed candidates as envisaged by the Education Act of 2010; 5.6 In essence the Applicant is requesting the court to compel (force), direct (give an order) and order the Minister of Education, 3rd Respondent to appoint members of the school board of Cana High School. The question therefore becomes, is the court competent to make this order? Put differently, does the court have jurisdiction to entertain this matter. [6] JURISDICTION- THE LAW. 6.1 The jurisdiction of the court is the authority given by the law upon the court, to decide or adjudicate and make final determination of any dispute between the parties or pass judgment or make a final order. Jurisdiction is a key question for the court because it goes to the root of the case and ultimately the fate of matter either at preliminary stage or on merit. If any order is passed without jurisdiction, it becomes a nullity and not enforceable by law. One of the most important aspects of the court’s jurisdiction is the authority and power it has to enforce orders that it makes. If a court cannot enforce its order once made, it therefore has no jurisdiction to make such an order. In the case of (Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others11 Under the common law, the doctrine of effectiveness is the basic principle of jurisdiction. The essence of this doctrine is that a court will only have jurisdiction to adjudicate on a matter if its order will be effective (Veneta 11 Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others11 2010 (6) SA 329 (SCA) at para 6 Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A) at 893F). 6.2 Further in the case of South Atlantic Islands Development Corporation Ltd v Buchan12 Diemont J stated: ‘If the accent is to be laid on the question of relief it is because the Court is concerned with the effectiveness or otherwise of its judgment. Where the relief asked for is such that it will not be enforceable, the judgment becomes illusory and the Court should not undermine its authority by giving such a judgment. This no doubt is why it has been repeatedly stated that the principle of effectiveness is the basis of jurisdiction.’ 6.3 In the case of Bobroff and Another v The National Director of Public Prosecutions13, the court, when considering the principle of effectiveness and jurisdiction of the court stated, Considering the rationale for the principle of effectiveness as the basis for jurisdiction in Bid Industrial, this Court observed that the jurisdictional principles at issue originated, ‘because courts have always sought to avoid having to try cases when their judgments will, or at least could, prove hollow because of the absence of any possibility of meaningful execution in the plaintiff’s jurisdiction’. Whilst it may be that execution cannot be achieved within the jurisdiction of the court, this is not a case where there is no reasonable possibility of execution. All this translates to mean that a court must have jurisdiction to enter a valid, enforceable judgment. [7] THE LAW AND THE FACTS 7.1 It has already been outlined herein above what the Applicants seek before this court. The court will interrogate the statutory powers that the minister has in this regard. For this the Education Act 2010 becomes relevant. The provisions dealing with the Minister’s powers 12 South Atlantic Islands Development Corporation Ltd v Buchan 1971 (1) SA 234 (C) at 240D-E 13 Bobroff and Another v The National Director of Public Prosecutions13 (Case no 194/20) [2021] ZASCA 56 (3 May 2021), in relation to approval of the board are found in Section 23of the Act. The same states: School boards 23. (1) A school shall be governed by a school board. (2) A school board consists of the following nine members appointed by the proprietor and approved by the Minister – (a) two members nominated by a proprietor, one of whom is the chairperson; (b) three members nominated by parents, one of whom is the vice- chairperson; (c) one teacher nominated by the teachers in that particular school; (d) a gazetted chief or his or her representative under whose jurisdiction the school fa1ls; (e) a member of the loca1 council or his or her representative under whose jurisdiction the school falls; And (f)the principa1 of the relevant school who is the secretary of the board and an ex-officio member. (3) The Minister shall prescribe minimum requirements for a person to be appointed as a board member. (4) The Minister may, if he or she has reason to believe that the nominated candidate is not suitable, disapprove such nomination and he or she shal1disapprove the renomination of a person whose appointment has been terminated under sub-section (Own emphasis) I have highlighted the specific parts of the section to indicate that; a. The statute gives the Minister the power to approve the school board b. The statute gives the Minister the discretion to disapprove of the nominations put forward to him by the proprietor of the school. 7.2 In the context of this case, the Minister has the power to approve or disapprove the names forwarded to him in terms of annexure “B” to the answering affidavit. In the same vein, whilst he exercises such approval, he is also given the power to disapprove the nominations. 7.3 Interrogating prayer (f) in the light of this discretion that is granted by the statute to the Minister, I find that the court cannot compel and direct that one should approve any nominations where he clearly has a power to decline the same nominations. The court would then be acting directly against the dictates of the statute. 7.4 Advocate Setlojoane in his written submissions has alleged that prayer (f) is a mandamus. A (writ of) mandamus is an order from a court to an government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. A mandamus should be exercised with caution for it is an extraordinary remedy. 7.5 Relying on the principles enunciated above, that when a court makes an order to direct or compel a person to do something, such an order should be effective. Assuming the court does order the 3rd Respondent (Minister) to approve of the candidates appointed by the 2nd Respondent, and in the exercise of his powers the Minister disapproves of the list, will the court hold him for the contempt? Put differently will the order of the court have been effective? 7.6 As has been said, courts do not administer justice for the sake of it. Hence it cannot entertain academic matters which are moot. In the same manner, its judgements have to have the element of effectiveness. 7.7 I am persuaded by the written submissions of Advocate Mohau KC to exercise not only caution but not to render the court powerless by assuming jurisdiction where its judgements are rendered ineffective. It is for this reason that this court declines jurisdiction to entertain this matter. [8] SCHOOL GOVERNANCE 8.1 Having declined jurisdiction, which means I cannot issue an order in this matter, I find it prudent to say the following remarks to counsel. That the Education Act 2010 was clearly promulgated to bring order and good governance in schools. The importance of the administration of the affairs of the school by a board of governors cannot be over emphasized. For Advocate Mohau KC to state that for a period close to 3 years a school has been operating without proper governance structures sets the country 10 years back to obscurity. It is a concern that this court has. The 3rd Respondent should and must intervene and exercise his discretionary powers in terms of the Act. I must hasten to add that this is not an order of court. Just a caution. [9] CONCLUSION 9.1 The court finds that it has no jurisdiction to entertain this matter. On costs, it is difficult for this court to make costs orders against non-existent persons, more so where the existence of such persons is by operation of the law. [10] ORDER 1. The application is dismissed. 2. There is no order as to costs. ------------------------------ M. G. HLAELE JUDGE Applicant: Adv Setlojoane Respondents: Adv K. K Mohau KC 13