…as Court of Appeal dismisses Student Union’s urgent application
Moorosi Tsiane
THE National University of Lesotho (NUL) Student Union’s last-ditch bid to halt the inauguration of the university’s 16th Council has collapsed after the Court of Appeal dismissed its urgent application for an interim stay, clearing the way for the new governing body to be inaugurated as scheduled yesterday.
The Tuesday ruling marks another setback for the Student Union in its legal battle challenging the constitution of the university’s governing body. Last week, the High Court struck its application off the roll over procedural defects.
The dispute stems from a judgment delivered by High Court Judge ‘Mafelile Ralebese on 22 June 2026, in which she struck the Student Union’s application off the roll after finding that the founding affidavit had been improperly commissioned by the union’s own legal representative.
The application had been filed by Student Representative Council (SRC) president, Tumo Tsanyane, on behalf of the Student Union. It sought an order setting aside the process of constituting the university’s 16th Council, arguing that it did not comply with Section 7 of the National University of Lesotho Order of 1992.
Unhappy with the ruling, Mr Tsanyane approached the Court of Appeal, challenging Justice Ralebese’s decision. Before the substantive appeal could be heard, the Student Union sought an urgent order staying the inauguration of the new Council pending the determination of the appeal.
Arguing before Justice Petrus Damaseb on Tuesday, Advocate Tumelo Qophe said allowing the inauguration to proceed would render the appeal meaningless.
“My Lord, this appeal intends to stay the constitution of the 16th NUL Council because my clients will suffer prejudice in that if the Council is inaugurated on Wednesday, by the time the court hears our appeal the judgment will be academic, as the same process that we are challenging would have happened.”
In the substantive appeal, Adv Qophe argued that Justice Ralebese committed a material procedural irregularity by determining the matter in chambers rather than in open court.
“The learned Judge erred in law and committed a material procedural irregularity by striking the appellants’ founding affidavit with costs in chambers, or otherwise outside open court, in violation of Section 13 of the High Court Act,” he argued.
He maintained that there was no lawful basis for the judge to determine the matter in chambers and that the students had been deprived of the safeguards associated with proceedings conducted in open court.
Adv Qophe also attacked the High Court’s decision to award costs against the Student Union without first inviting submissions from the parties.
“The learned Judge erred in law and committed a material procedural irregularity by ordering costs against the appellants mero motu, without any party having sought such relief and without affording the appellants an opportunity to be heard thereon.”
According to Adv Qophe, neither side had requested a costs order, making it unfair for the court to impose one without hearing arguments.
In the third ground of appeal, Adv Qophe argued that Justice Ralebese ought to have first considered whether his commissioning of the affidavit constituted a legally disqualifying interest before striking out the application.
“The learned Judge erred in law and committed a material procedural irregularity by striking out, alternatively disregarding, the appellants’ affidavit on the basis that it had been commissioned by counsel appearing for them without first determining whether counsel had a legally disqualifying interest in the matter.”
He further argued that the alleged defect did not automatically invalidate the proceedings and that the High Court’s decision should therefore be set aside.
However, counsel for the university, Adv Mamello Makau, urged the Court of Appeal to dismiss the application, arguing that it lacked jurisdiction because there was no appealable order before it.
“My Lord, we have raised preliminary objections and this pertains to the lack of jurisdiction of this court to entertain this matter. There is no appealable order before this court.”
On the issue of the allegedly defective affidavit, Adv Makau said the High Court was duty-bound to ensure compliance with court rules regardless of whether either party had raised the issue.
“The court has the responsibility to ensure that what is placed before it complies with the High Court Civil Litigation Rules. The order is not appealable because it is an administrative order.”
She further argued that the High Court had not considered the merits of the case in chambers but had merely dealt with a procedural defect.
Adv Makau also submitted that the Student Union’s application had effectively been overtaken by events because the process it sought to stop had already been completed.
“What the appellants want to interdict has already happened because the constitution of the 16th Council has already been concluded with all the members having been given their appointment letters. What is only left is the inauguration.”
She warned that halting the inauguration at the eleventh hour would severely prejudice the university.
“Invitation letters have already been sent out, including to His Majesty as the University Chancellor, and plane tickets have already been purchased for those coming from outside the country.”
Adv Makau further argued that the predicament facing the Student Union was self-inflicted.
“Nothing was preventing them from commissioning a proper affidavit and filing another urgent application before the High Court. Instead, they decided to approach the Court of Appeal.”
After hearing arguments from both sides, Justice Damaseb stood the matter down for about 30 minutes before returning to deliver the ruling.
The court dismissed the Student Union’s urgent application, effectively ending its bid to stop the inauguration of the university’s 16th Council.
“Counsel, the appeal (to halt the inauguration) is dismissed and the enrolled appeal (challenging the appointment of Council) should be heard on an expedited basis. Costs shall be costs in appeal,” Justice Damaseb ruled.
The inauguration of the 16th NUL Council proceeded yesterday despite the Student Union’s substantive appeal against the High Court’s decision still pending.
