‘Matebello Rakhoho V Teaching Service Commission & 6 Others (C OF A (CIV) NO. 23/2025) [2025] LSCA 54 (7 November 2025)

# ‘Matebello Rakhoho V Teaching Service Commission & 6 Others (C OF A (CIV) NO. 23/2025) [2025] LSCA 54 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/54/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/54/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/54/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/54/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: ‘Matebello Rakhoho V Teaching Service Commission & …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/54/eng@2025-11-07) [ Download PDF (287.3 KB) ](/akn/ls/judgment/lsca/2025/54/eng@2025-11-07/source) Report a problem __ * Share * [ Download PDF (287.3 KB) ](/akn/ls/judgment/lsca/2025/54/eng@2025-11-07/source) * * * * * Report a problem __ ##### ‘Matebello Rakhoho V Teaching Service Commission & 6 Others (C OF A (CIV) NO. 23/2025) [2025] LSCA 54 (7 November 2025) Copy citation * __Document detail * __Related documents Citation ‘Matebello Rakhoho V Teaching Service Commission & 6 Others (C OF A (CIV) NO. 23/2025) [2025] LSCA 54 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 54 Copy Hearing date 20 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C OF A (CIV) NO. 23/2025 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA) Judgment date 7 November 2025 Language English Summary ###### Flynote Administrative Law — Review — Appointment of school principal — Teaching Service Commission — Candidate’s withdrawal prior to assessment — Commission appointing withdrawn candidate — Failure to afford hearing to remaining candidate — Procedural fairness — Audi alteram partem — Presumption of regularity rebutted by documentary proof — Fatal misdirection by court a quo. Education Law — Teaching Service Commission — Discretion in appointments — Scope and limits — Commission’s powers under section 42(1) of the Education Act 2010 and Teaching Service Regulations 2002 — Discretion wide but not absolute — Must be exercised lawfully, rationally, and with procedural fairness. Appeal — Review of administrative decision — Court below failing to address decisive fact of withdrawal — Failure to determine effect of undisputed evidence amounting to misdirection — Appointment set aside and matter remitted to Commission for reconsideration. Read full summary * * * Skip to document content ###### Flynote Administrative Law — Review — Appointment of school principal — Teaching Service Commission — Candidate’s withdrawal prior to assessment — Commission appointing withdrawn candidate — Failure to afford hearing to remaining candidate — Procedural fairness — Audi alteram partem — Presumption of regularity rebutted by documentary proof — Fatal misdirection by court a quo. Education Law — Teaching Service Commission — Discretion in appointments — Scope and limits — Commission’s powers under section 42(1) of the Education Act 2010 and Teaching Service Regulations 2002 — Discretion wide but not absolute — Must be exercised lawfully, rationally, and with procedural fairness. Appeal — Review of administrative decision — Court below failing to address decisive fact of withdrawal — Failure to determine effect of undisputed evidence amounting to misdirection — Appointment set aside and matter remitted to Commission for reconsideration. 1 LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 23/2025 CIV/APN/0227/2024 In the matter between: ‘MATEBELLO RAKHOHO (NEE LIMPHO VIOLET MAEMA) APPELLANT AND TEACHING SERVICE COMMISSION 1STRESPONDENT PRINCIPAL SECRETARY MINISTRY OF EDUCATION 2ND RESPONDENT DIRECTOR OF HUMAN RESOURCE MINISTRY OF EDUCATION 3RD RESPONDENT PORIKI PRIMARY SCHOOL BOARD 4TH RESPONDENT DIRECTOR TEACHING SERVICE DEPARTMENT 5TH RESPONDENT THE ATORNEY GENERAL 6TH RESPONDENT NTHAKO MPALE 7TH RESPONDENT CORAM: MOSITO P MUSONDA AJA VAN DER WESTHUIZEN AJA HEARD: 20 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 2 FLYNOTE Administrative Law — Review — Appointment of school principal — Teaching Service Commission — Candidate’s withdrawal prior to assessment — Commission appointing withdrawn candidate — Failure to afford hearing to remaining candidate — Procedural fairness — Audi alteram partem — Presumption of regularity rebutted by documentary proof — Fatal misdirection by court a quo. Education Law — Teaching Service Commission — Discretion in appointments — Scope and limits — Commission’s powers under section 42(1) of the Education Act 2010 and Teaching Service Regulations 2002 — Discretion wide but not absolute — Must be exercised lawfully, rationally, and with procedural fairness. Appeal — Review of administrative decision — Court below failing to address decisive fact of withdrawal — Failure to determine effect of undisputed evidence amounting to misdirection — Appointment set aside and matter remitted to Commission for reconsideration. Held: (1) The Teaching Service Commission’s discretion in appointments, though broad, is circumscribed by legality, reasonableness, and procedural fairness as affirmed in School Board of Mapoteng High School v Teaching Service Commission (C of A (CIV) 07/2020. (2) The undisputed documentary evidence established that the seventh respondent had withdrawn from the selection process before assessment. The Commission’s decision to appoint him was therefore ultra vires, irrational, and procedurally unfair. (3) The learned judge a quo misdirected herself by failing to determine the legal effect of that withdrawal and by presuming regularity in the face of positive evidence to the contrary. (4) Appeal allowed; High Court judgment set aside; Commission’s appointment reviewed and quashed; matter remitted for reconsideration in accordance with law and fairness. 3 JUDGMENT MOSITO P Introduction [1] This is an appeal from the judgment of the High Court (Mahase J), delivered on 26 February 2025. The matter arises from the appointment of the seventh respondent, Mr Nthako Mpale, as Principal of Poriki Primary School, in preference to the appellant, Mrs ‘Matebello Rakhoho (nee Maema)’. [2] The appeal originally rested on three grounds, but at the hearing counsel for the appellant properly confined her argument to one decisive question: whether the learned judge a quo erred in law in finding that the appellant had not proved a case for review, despite documentary evidence—the dispatched minutes and report of the Teaching Service Commission—showing that the seventh respondent had withdrawn from the selection process and that the appellant had not been afforded a fair hearing before the post was re-advertised and filled. Factual Background [3] The material facts are largely uncontroverted. The appellant served as acting principal of Poriki Primary School from February 2013 until July 2024, a period exceeding ten years. Her acting appointment was renewed periodically under regulation 13(4) of the Teaching Service Regulations, which permits acting appointments for not more than a year, subject to renewal. [4] In 2024, the Teaching Service Commission (“the Commission”) initiated a process to fill the substantive vacancy. Both the 4 appellant and the seventh respondent applied. The appellant maintains—and the record confirms—that the seventh respondent withdrew from the competition prior to the assessment held at Mohale’s Hoek on 26 March 2022. The Commission’s own District Education Manager, in a report dated 15 July 2022, recorded that withdrawal. Notwithstanding that withdrawal, the Commission proceeded to appoint the seventh respondent. [5] The appellant contended that this decision was procedurally irregular. She sought a review before the High Court, which dismissed her application on the ground that she had failed to substantiate her allegations or to identify any breached regulation or section of the Education Act. The Issue [6] The sole issue before this Court is whether the learned judge a quo misdirected herself in law by failing to determine the effect of the seventh respondent’s undisputed withdrawal from the selection process, and by concluding that the appellant had not made out a case for review notwithstanding evidence of that withdrawal and the absence of a hearing. The Applicable Law [7] The principles governing judicial review of administrative action in Lesotho are well established. All exercises of public power must comply with the Constitution and the law; they must be lawful, rational, and procedurally fair. The High Court, under section 119(1) of the Constitution, has supervisory jurisdiction over all tribunals and administrative bodies. 5 [8] The Commission must act fairly in appointment matters and that a failure to afford a hearing may vitiate the process. Likewise, in School Board of Mapoteng High School v Teaching Service Commission1, this Court observed that, though the Commission enjoys wide discretion under section 42(1) of the Education Act 2010, that discretion must be exercised lawfully, rationally, and with due regard to procedural fairness. [9] The decision in School Board of Mapoteng High School v Teaching Service Commission (supra) provides an important doctrinal backdrop to the present appeal, particularly as it clarifies the scope and limits of the Teaching Service Commission’s statutory powers in matters of appointment and promotion within the education sector. [10] In Mapoteng, the Court of Appeal addressed a challenge brought by a school board against the Commission’s appointment of a deputy principal. The board argued that the Commission had acted contrary to its recommendation and that its preferred candidate had been unjustly bypassed. This Court, in rejecting that contention, affirmed that under section 42(1) of the Education Act 2010 and the Teaching Service Regulations 2002, the TSC holds the primary statutory authority to appoint teachers and heads of institutions. The role of a school board or advisory panel is only recommendatory. The Commission may lawfully depart from such recommendations, provided its decision is made rationally, in good faith, and in accordance with the principles of procedural fairness. 1 Mapoteng High School v Teaching Service Commission (C of A (CIV) 07/2020. 6 [11] The Mapoteng judgment thus draws a clear line between discretion and arbitrariness. While it recognises that the Commission’s discretion in appointments is wide, it simultaneously emphasises that it is not absolute: the exercise of that discretion remains reviewable where the decision is irrational, tainted by procedural unfairness, or unsupported by evidence. As the Court observed, administrative power must not be exercised in a manner that defeats the statutory purpose or disregards material facts. [12] Applied to the present case, Mapoteng reinforces two important propositions. First, it confirms that the Commission, as a statutory body, must adhere to principles of legality and fairness in every appointment. Second, it underscores that a reviewing court’s function is not to substitute its own view of the merits but to ensure that the decision was reached through a fair and rational process. [13] While Mapoteng teaches that the Commission enjoys wide discretion in choosing among candidates, it also insists that the decision must be grounded on a valid and procedurally sound process. An appointment made in disregard of a withdrawal, or without affording a hearing to the remaining candidate, cannot be rationally justified within the Mapoteng framework. [14] Thus, the principle emerging from Mapoteng—that the Commission’s discretion is bounded by fairness and reason—supports the appellant’s contention that the learned judge a quo erred in failing to examine whether the Commission’s decision was infected by procedural irregularity and factual error. It reinforces 7 the view that the Commission’s failure to account for the seventh respondent’s withdrawal constituted a reviewable irregularity, one going to the root of the appointment’s legality. [15] South African authority, which is persuasive in Lesotho, reinforces this principle. In Administrator, Transvaal v Zenzile2 , the Appellate Division held that even where a statute is silent, fairness is implied into every administrative act affecting rights or expectations. And in President of the Republic of South Africa v South African Rugby Football Union 3, the Constitutional Court affirmed that the audi alteram partem rule applies to all administrative processes whose outcome may adversely affect an individual’s legitimate interest. [16] Finally, the presumption of regularity cannot survive positive evidence of irregularity. Where, as here, the record discloses that a candidate withdrew from consideration, the Commission cannot lawfully treat that candidate as having been validly assessed or appointed. Consideration of the appeal [17] The learned judge a quo held that the appellant’s case was “unsubstantiated,” that she had not pointed to any specific irregularity or breached provision, and that the Commission’s decision must therefore be presumed regular. With respect, that reasoning cannot stand. [18] The record before the High Court contained the Commission’s own documentation—the minutes and report of the District 2 Administrator, Transvaal v Zenzile 1991 (1) SA 21 (A). 3 President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC). 8 Education Manager—showing that the seventh respondent had withdrawn from the competition before the assessment. That fact was not in dispute. Once established, it went to the heart of the legality of the appointment. The learned judge was therefore bound to address it. Her failure to do so amounted to a material misdirection. [19] By overlooking that decisive fact, the court below deprived itself of the opportunity to assess whether the appointment was made ultra vires or in breach of fairness. The Commission could not lawfully appoint a person who had withdrawn from the process, nor could it exclude another candidate without affording her a hearing. The audi principle requires that a person affected by an adverse administrative decision be given an opportunity to be heard before the decision is taken. [20] Moreover, the High Court erred in treating the appellant’s reliance on the Commission’s minutes as “bare and unsubstantiated.” Those minutes were official documents emanating from the respondents themselves. They constituted prima facie proof of the very irregularity complained of. Disposal [21] The learned judge’s failure to engage with the uncontroverted evidence of the seventh respondent’s withdrawal was a fatal misdirection. It undermined the foundation of her conclusion that no case for review had been made. The Commission’s decision to appoint a candidate who had withdrawn, without giving the appellant a hearing, was procedurally unfair and irrational. In these circumstances, the appeal must succeed. 9 Order [22] In the result: [a] The appeal is allowed. [b] The judgment of the High Court (Mahase J) delivered on 26 February 2025 is set aside. [c] The decision of the Teaching Service Commission appointing the seventh respondent as Principal of Poriki Primary School is reviewed and set aside. [d] The matter is remitted to the Commission for reconsideration in accordance with the law and the principles of procedural fairness. [e] The respondents shall bear the appellant’s costs both in this Court and in the court below. ______________________________ K.E. MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: _____________________________ P MUSONDA ACTING JUSTICE OF APPEAL 10 I agree: _____________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR APPELLANT: ADV B MOKOATLE-MDA FOR RESPONDENT: ADV T S MOCHESANE WITH ADV M C MOLOI #### __Related documents ▲ To the top >