HIGH COURT OF LESOTHO
COMMITTEE 1st DEFENDANT
LESOTHO EVANGELICAL CHURCH
EVANGELICAL CHURCH 2nd DEFENDANT
by the Honourable Mrs. Justice K.J. Guni On the 3rd Day of December,
plaintiff in this case is a teacher at KUENENG PRIMARY SCHOOL. In his
declaration at paragraph 5 he claims that at all material time he was
employed as a head-teacher. There is no allegation that there was any
form of contract of employment on which plaintiff seeks to rely.
There are no particulars as to whether or not such employment was
temporary or permanent. Be that as it may.
It is in
the common cause that the school where plaintiff is presently a
teacher, is under the Management Committee, - the 1st defendant
herein. There was a disciplinary action instituted by the Management
Committee against this plaintiff in 1994. The plaintiff was found
guilty of misconduct in the disciplinary proceeding instituted
against him by the 1st defendant. The punishment meted out to him was
a demotion from the position of the headteacher to that of ordinary
paragraph 6 of his declaration, plaintiff alleges that the 1st
defendant malaciously instituted false disciplinary proceedings.
There is some kind of impropriety that is being levelled against the
1st defendant in this allegation. According to the defendants' plea,
the said disciplinary proceeding were instituted in terms of the law.
Before 1995 the Law in force which governed the disciplinary
proceedings in respect of the
was THE TEACHING SERVICE Regulations 1986. These regulations were
promulgated in terms of the EDUCATION ORDER N0.32 of 1971. This order
was still in force in 1994. It was only repealled in 1995, this was
immediately after the plaintiff herein was charged and found guilty
of misconduct in the disciplinary proceedings instituted against him
by the 1st defendant in 1994.
appears to be in the common cause that plaintiff successfully
appealled against both the finding of misconduct on his part and the
penalty of demotion to a lower rank. The said appeal was heard on
16/06/98. The appeal was upheld on 17/06/98 before an adjudicator who
was appointed in terms of Section 70 (1) of the new act. i.e. THE
EDUCATION ACT NO. 10 OF 1995.
November, 2000 the plaintiff instituted this present action against
the defendants and claims:
as a headteacher of Koeneng Primary school;
of an amount of M43,848.oo being the difference between basic
teacher and headteacher salary;
on the amount claimed at the rate of 15% per annum;
and/or alternative relief.
of the defendants it is specially pleaded that in terms of THE
EDUCATION ACT N0.10 of 1995 as Amended, the decision of the
adjudicator is subject to confirmation by the Teaching Service
Commission. This impression stems from the choice of words used in
describing the functions of the adjudicator in terms of section
71-EDUCATION ACT NO. 10 of 1995. The said section provides as
"The functions of the adjudicator are to hear and decide on
cases referred to him for advice by the Commission" (My
underlining). It seems an adjudicator acts in advisory capacity to
the Commission. This lends credibility to Mr. Sello's argument that
the decision of the adjudicator is not final and justiciable.
issue raised on behalf of the defendants is the question relating to
the employer of the plaintiff. Although he claims to be employed by
the defendants, plaintiff did not allege and prove any form of
contract of employment between himself and the defendants. Forster V.
Herselman 1982 (4) SA 857 (6).
two types of employers for teachers in this Kingdom. There are
teachers who are hired and paid by schools privately. In the main,
the majority of teachers in the service are appointed by the Teaching
Section 42 points directly at the power of the commission in this
respect. It reads as follows;
power to appoint a teacher and to demote, transfer, discipline or
remove from the office such a teacher shall vest in the Commission".
(1) shall not apply to a Teacher whose salary is not paid by the
government". (My underlining).
reading of this section it is clear that it is very material for the
plaintiff to allege and prove that he is employed by the defendants
and received his salary from them. He is claiming payment of his
salary and the arrears. This claim can only be made against the
employer who pays the salary being claimed. The plaintiff in our case
does not allege that the defendants pay his salary. He does not claim
and prove that the defendants withheld the salary arrears now being
support of his claim for an enhanced payment of the salary of the
headteacher, plaintiff has annexed copies of his payslips. On the
face of those payslips the plaintiff is paid his salary by the
Government. His demotion in terms of the law should have been done by
the Commission. It can be reversed by the Commission only.
appeal was heard in terms of the provisions of THE EDUCATION ACT
N0.10 OF 1995. The plaintiff did not raise the query then before the
adjudicator that the law applicable is the repealled EDUCATION ORDER
N0.32 OF 1971. He cannot turn around now and claim that even though
the appeal on which he basis his claim, was heard and decided in
terms of the new EDUCATION Act, that same Act must not apply now.
defendants do not pay the plaintiff's salary. They are not in a
position to pay the arrears claimed. In this
the special plea must succeed. The plaintiff's claim is therefore
dismissed with costs.
Applicant : T. HLAOLI & CO.
Defendants: : MOHALEROE, SELLO & CO.,
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