Students Representtive Council of Molepolole College of Education and Another v The Attorney General (Civil Appeal No. 34 of 1995) [1996] BWCA 28; [1996] B.L.R. 182 (CA) (5 February 1996)

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Students Representtive Council of Molepolole College of Education and Another v The Attorney General (Civil Appeal No. 34 of 1995) [1996] BWCA 28; [1996] B.L.R. 182 (CA) (5 February 1996)

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1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL
CIVIL APPEAL NO: 34/95
In the matter between:
STUDENTS REPRESENTATIVE COUNCIL - First Appellant
OF THE MOLEPOLOLE COLLEGE OF
EDUCATION
HUVERA TJAVANGA - Second Appellant
and
ATTORNEY GENERAL - Respondent
Mr. P. Matlala for the Appellants
Mr. I.S. Kirby with Mr. Moipolai for the Respondent
JUDGMENT
CORAM: Amissah, JP Wylie, JA HOEXTER, JA
AMISSAH, JP:

This is not the first time that the first appellant has appeared before us. It scored a notable victory against the respondent in Student Representative Council (of Molepolole College of Education) v. The Attorney General of Botswana, Civil Appeal No. 13/94, judgment given on 31 January, 1995 (unreported) in which this Court held that a regulation made in the College Regulations was discriminatory against women students and ought not to stand. This case is partly, even though somewhat remotely, founded on that victory.

The first appellant comes before us this time, together with the second appellant who is a third year student of the College, on

2 an appeal from a judgment of the learned Chief Justice, dismissing with costs an urgent application by way of notice of motion brought by them on 29 July 1995. That application called for the following relief:

Declaring the closure of Molepolole College of Education consequent eviction and/or expulsion of the Molepolole College of Education students unlawful and of no force and effect;

Directing and ordering that the respondent open Molepolole College of Education and admit all students who were evicted or ordered to leave or expelled forthwith, in any event not later than the 2nd July 1995;
3.

Directing that Respondent pay costs hereof.
4. That this order operate as interim relief.

The Respondent be or is hereby granted leave to anticipate the return date by giving the Court and the Applicant at least 48 hours written notice of such intention to anticipate.

The facts supporting this application to the High Court were that on 8 February 1995 the first appellant presented a petition to the Ministry of Education which raised two issues: first of all, the implementation of this Court's judgement dealing with discrimination against pregnant female students; and secondly, inadequacies of the College library, and of the text books available therein. In response, the Ministry sent a team of senior officials to the College on 20 February 1995 to investigate the grievances of the students, and to consult the first appellant and others.

On 23 March a formal response dealing in some detail with the

3 matters raised in the petition was addressed to the first appellant by the Permanent Secretary for Education. On 1 June, the students, now acting through an ad hoc committee of the first appellant, delivered a second petition to the Ministry, calling for a special commission of enquiry and setting out a whole host of demands, including the supply of personal copies of textbooks to students; that final examinations should not contain questions covering work in previous years; that external moderation of examination be abolished; that library facilities should be upgraded; that the College Refectory should be extended to quadruple its size,- that the student allowance should be increased by 120%; that buses be provided for student transport; that a security firm be hired to curb thefts on campus; that accommodation be provided for all lecturers; that liquor be sold on the campus; and that all students be permitted to attend in-service training. The students gave the Ministry two weeks to respond to their demands.

On the same day, that is 1 June, 1995, the students delivered a copy of the petition to their new principal; this was on his first day in office.

The Permanent Secretary of the Ministry of Education responded by letter dated 7 June acknowledging receipt of the petition and informing the students that they would be advised of follow-up action in due course. On 14 June the Principal of the College held a meeting with the first appellant at which all the students' grievances were fully discussed. The Principal

4 delivered a written reply to the first appellant that same day, dealing, in a sympathetic and conciliatory manner, point by point and in detail with each of the points raised in the students' petition.

Despite the conciliatory nature of the Principal's letter, on 15 June, that is, the very next day, at the commencement of classes the student body as a whole commenced a complete boycott of classes. On being summoned to the Principal's Office, the President of the first appellant informed the Principal that the student body had decided to boycott classes until all their demands were met. On the same day the Principal and some members of staff addressed the students at an amphi-theatre where they had gathered, and tried to reason with them. The response of the students was that they would return to classes when "due course" arrived, that is a form of their saying, when their demands had been addressed.

On 16 June, the students were again addressed, but this time by
the Chief Education Officer and by Community Representatives.
They were adamant in their refusal to return to classes. On
Monday 19 June the total boycott was still in force and no
classes could be held. The District Commissioner and traditional
leaders of Molepolole Village addressed the students. This had
no effect. The students rather formalised their position in a
letter addressed to the Ministry of Education stating:
"Dear Sir/Madam,
Reference is made to our petition letters through which all our grievances were made

known to all the concerned parties. It is unfortunate and pathetic that all people who have come here to address us in respect to the prevailing situation have failed to address our problems.

We therefore decided to wait for your 'due course' outside the classrooms."

By the next morning, that is the sixth day after the boycott began, the situation remained the same; no end to the boycott was in sight. During the whole period of the boycott the students ate and slept as usual on the campus at public expense. The Minister of Education at this juncture intervened by sending the Permanent Secretary of his Ministry to Molepolole to read a statement to the students, giving them an ultimatum to return to classes by 1.00 p.m., failing which the Molepolole College of Education would be closed in the public interest until such time as the Minister became satisfied that attendance at classes would resume. None of the students returned to classes. Rather, some of them immediately went to commence packing their possessions in anticipation of the closure.

At 1.00 p.m. on that Tuesday, the District Commissioner read out a Notice from the Minister announcing the closure of the College and instructing the students to vacate the campus by 2.00 p.m. The students duly vacated the campus, and the College was closed.

It was this closure which led to the urgent application brought by the appellants which I mentioned earlier. On 21 July 1995 judgment was delivered dismissing the application with costs. Dissatisfied with the judgment, the appellants have appealed to

6 this Court on the grounds that the learned Chief Justice misdirected himself on the issue of:

(a)

whether the students were entitled to/or were given a fair hearing before the College was closed;

(b)

whether adequate notice was given to the students before closure.
(c)

whether adequate reasons were given by the Minister for the closure;
(d) whether the Minister properly complied with the requirements of section 3 of the Education Act;
and on the definition of
(e) what is or is not the public interest in the
circumstances of the case.

Grounds (a) and (b) were argued together by Counsel for the appellants. The case made by him was that the decision to close the College was a disciplinary measure, but no opportunity was given to the students to show cause why the College should not be closed. It was argued that where an authority was to take measures against a person, which measures might adversely affect that person, the person concerned was entitled to know the charges against him, and he should be given a hearing before such decision was taken. Reliance was placed on, among others, the decision of Selebi Phikwe Mine Workers Co-Operative and Thrift Loan Society Limited v. Commissioner of Co-operatives Misca No. F40/93 (unreported) in which, Aboagye J. had said at page 4 that, "Failing to hear the applicant's side of the case was an infringement of a cardinal principle of natural justice, namely,

audi alteram partem " In National Amalgamated Local and
Central Govemwuanfr and Parastatal Manual Workers Union v. The

7 Attorney General Civil Appeal No. 26/93 judgment given 19 January 1995 (unreported) I had said at page 48 that "Those placed in authority should in the exercise of their discretionary power act fairly. This requirement of the law is one of the manifestations of the rules of natural justice. A manifestation which in some cases is described as the audi alteram partem rule." The rule is well known. It is in its application that difficulties may be found. Thus in this case where the appellants claim was that the students were never given any notice about the contemplated closure of the College; or given a hearing whether as individual students or collectively through the Student Representative Council, the question arises whether the warning given by the Minister that if they did not return to classes by 1.00 p.m. on 20 February the College would be closed did not constitute adequate or any notice; and the question also arises whether the circumstances of this case made a hearing possible or meaningful.

It is clear to me that notice was given. That was when the Minister's ultimatum was read to the students at 10.00 a.m. on 20 February. Even before that time, the students must have known that if they persisted in their boycott of classes while continuing to enjoy the facilities of free food and lodging at public expense, this closure was a distinct possibility. The students had already said that they were going to boycott classes indefinitely if "due course" was not obtained. They had been made aware by the letter from the Principal on 14 June that some of their demands which could be met immediately had been met; more books, for example had been made available to their library;

8
and that other demands could not be so readily met because there
would take some time and resources for the desired objective to
be attained. The Minister's ultimatum which was read to the
students was as follows:

"Bagaetsho, I have taken note of the two petitions which you have delivered, raising matters that are of concern to you. I have also noted that the second petition adds a number of issues to those which were already in your first petition and being addressed.

My Ministry takes a serious view of any issues which may adversely affect the quality of Education being offered at this institution. The matters raised in your petition will be investigated, and where deficiencies are found, they will be addressed.

I am informed, however, that the entire student body has boycotted classes for five days, and threatens to continue this boycott until a Commission of Enquiry is set up to investigate its complaints. I have given my assurance that these complaints will be investigated and so they will be. The manner of their investigation will be determined by my Ministry after taking advice, and after taking into consideration the nature of the matters to be looked into.

It is, however, neither acceptable nor in the public interest that public funds should be expended on keeping open an institution of learning for the benefit of students who refuse to take advantage of the classes offered. If the facilities of a school or college are not being utilised for the purpose for which they were provided, it is not in the public interest to keep expending public money on those facilities.

I must therefore call upon you, the Students of Molepolole College of Education, to return to classes this morning, the 21st June, 1995. Your concerns will be properly investigated, as I have stated.

Should the student body not have returned to class by 1.00 p.m. then I shall have no choice but to order the closure of the College in terms of Section 27 (1) of the

Education Act Cap 58:01 until such time as I am satisfied that attendance at classes will resume."

It fully explained the reasons for the Minister's decision that the College be closed. I find it difficult in the circumstances to understand the argument that no notice was given them. But the appellants further argued that if notice was given, then it was not sufficient. By sufficient, I expect the appellants mean inadequacy in time rather than in the form of the notice. Whether the notice was adequate in time can be judged by the application of two standards; the time needed to physically comply with it: and the time needed, if anything was to be done to reverse the decision, to do what was necessary. In the latter case, the question would arise as to what could, in the circumstances be done to reverse it. The appellants argue that the decision to close the College created a new situation in their struggle to obtain their demands, and that opportunity should have been given them to negotiate the terms of their return to classes while the College was kept open. I agree with the view of the Minister that taking that position would have made things intolerable. The object of providing educational facilities is not in my view to create a forum at public expense for students to assemble together to decide when and under what conditions they would attend classes, or to negotiate such conditions. What they needed to say had been said. At numerous meetings, various personalities had addressed them to resume classes. They had turned a deaf ear to the entreaties. As we stated in Sarah Mmoniemang Mo thus i v. The Attorney General Civil Appeal No. 15/93 (judgment unreported) at page 24, "A right to

10 be heard must be meaningful, in that its exercise should involve the possibility of a change in a contemplated decision." If the object of their requiring time and demanding a hearing was to enable them to negotiate conditions for a return to classes, I have no doubt that it would not have made the slightest difference to the decision of the Minister that the objectives of education were not served by keeping the College open while students continued to boycott classes.

With regard to the first standard for measuring the adequacy of the time given, namely the time needed to comply with the Minister's ultimatum, I think that this requires the application of a practical test. The very fact that the students were able to vacate the College in time surely meets this test. I would, accordingly, reject the appellants' arguments on audi alteram partem.

I am also unable to understand what further reasons other than the ultimatum which was read to the students were required in the circumstances of this case. In argument Counsel, when pressed, conceded that the Minister was under no legal obligation to give reasons for the closure, but that he was morally bound to do so. He did not weigh the interest of the students in the implementation of the decision to close the College. I am sure the appellants did not bring this urgent application to Court in order to assert moral rights.

One other point taken on behalf of the appellants was whether the

11
Minister properly complied with the requirements of section 3 of
the Education Act [Cap 58:01]. I believe the relevant part of
the section of interest to the appellants is subsection (1) which
provides that:

"3(1) It shall be the duty of the Minister to promote primary and post-primary education, educational research, and the progressive development of schools, consistently with the powers of direction and control vested in him by this Act."

For the appellants argued that closing down the College was inconsistent with promoting education. It should be remembered that the Minister did not say in his ultimatum that the College was to be closed down forever. What the ultimatum said was that the Minister had been given no alternative by the conduct of the students but to order the closure of the College "until such time as [he was] satisfied that attendance at classes would resume." I understand that the College has now re-opened and that the students are attending classes. Obviously, the closing down was taken as a measure to ensure that the students did not continue, as they threatened to do, to remain on the campus while boycotting the one basic objective for their presence there. It comes ill from the mouth of students who are deliberately boycotting classes to complain that the Minister in sending them home for that reason was failing in the discharge of his public duty to promote education.

In the same vein should be regarded the students' protest that what the Minister did was against the public interest, as the

Minister did not consider the interests of the students or weigh that against the public interest. But, besides that, I do not think that we, as a Court, are entitled to substitute our view of the public interest for that of the Minister on whom the Legislature has conferred the power to act, without proof of mala fides or other impropriety.

Finally, the appellants argued that as the Minister had purported
to exercise a discretionary power conferred on him by Parliament,
this power must be exercised by him and not by a person delegated
by him. That in the Minister delegating the exercise of the
power to some other person, he offended against the principle,
"delegatus non potest delegare;" i.e. a person on whom the
exercise of a power is delegated cannot himself further delegate
the power to another. I am aware of that principle, but in the
particular context of government, it has been held in Carltona
Ltd. v. Commissioner of Works [1943] 2 All E.R. 560 at page 563,
it was held by Lord Greene M.R., speaking for the English Court
of Appeal, that:

"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to

them The duties imposed

upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the

decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer to Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."

Under pressure it turned out that what the appellants had to complain about was not that the Minister or the Permanent Secretary did not make the decision to close the College but that the judgment as to whether or not the students had returned to classes as a result of the ultimatum, was left to the Principal of the College. The complaint is, therefore, not against the decision taken, but against the mechanics for the implementation of the decision. I do not think that the Minister was obliged to stand by to see for himself whether the students had returned to College before closure. I do not think that even officers of his Ministry needed to be present to check. The uncontested fact is that the students did not return to classes within the time given. Besides, the Principal of the College is the person eminently suitable to testify to the students' return if it had been challenged. The argument has no substance.

14 The appeal is without merit. And I would dismiss it with costs
Delivered in open court this 5th day of February, 1996.
A.N.E. AMISSAH JUDGE PRESIDENT

I agree,
LORD N. WYLIE JUDGE OF APPEAL

I agree.
G.G. HOEXTER JUDGE OF APPEAL

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