1

CIV/APN/517/01

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

PROFESSOR
ALLAN FEMILANA APPLICANT

and

THE
VICE-CHANCELLOR OF NUL 1st RESPONDENT

NATIONAL
UNIVERSITY OF LESOTHO 2nd RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr Justice S.N. Peete on the 25th April 2002.

On the
6th December 2001, Mr Mahlakeng, for applicant, appeared before this
court and moved ex parte for and was granted an interim order couched
in the following terms:

"IT
IS HEREBY ORDERED THAT:

1. That
   a Rule nisi be and is hereby issued returnable on the 17th day of
   December 2001 calling upon the Respondents to show cause, if any,
   why:

   
   

2

1. Respondents
   shall not be interdicted forthwith from interfering with the
   applicant in any manner whatsoever in the execution of his duties
   pending the determination of this application.

   
   

2. The
   decision of the Academic Staff Appointments Committee of the 25th
   October 2001 shall not be set aside and/or declared a nullity.

   
   

3. The
   Respondents shall not be ordered to comply with the peremptory
   requirements of Ordinance No. 11 read together with Statute 21 of
   the Second Respondent.

   
   

4. The
   Respondent shall not be ordered to pay the costs of this
   application.

   
   

5. Applicant
   shall not be granted such further and/or alternative relief.

   
   

2. 2.
   That Prayer 2 (a) operate with immediate effect as an interim
   Order."

   
   

In his
founding affidavit, the applicant avers on oath that he is employee
of the second respondent holding the position of ''Director of NUL
-Consuls". He also has annexed the contract of employment
between the second respondent (The National University of Lesotho)
and himself (it was signed by himself on the 25th February 1998 in
Tanzania). It is not dispute however that in terms of this contract
the applicant was engaged for a period of four (4) years and that his
term of service is due to expire on the 10th May 2002.

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He
further states that in terms of clause 8 (iii) of the Contract read
together with Ordinance 11-2 he is entitled to apply for an extension
(or renewal) of his contract.

"8.
Termination of appointment

(i) Appointments may be terminated by either party on not less than
six calendar months' notice, if an appointment is terminated by a
member on less than the stipulated period of notice, he may incur
liabilities in respect of passages and baggage allowance as indicated
in Section 9 (ii) and (iii) below.

(ii) The period of six calendar months' notice shall not include any
period of accumulated leave and/or Study Leave.

(iii) Six months before the expiry of the contract of an expatriate
member, he may request or be given an extension of his contract by
the University. "

Ordinance
No. 11-2 reads:-

"2.0
Extension and Renewal of Contracts:

2.1. The
Registrar shall issue a reminder to each employee of the expiry date
of his/her contract at least seven months before that date and inform
him/her whether the contract is open for renewal. If the employee
wishes to extend or renew his/her contract of employment, he/she
shall, not later than six months before the expiry date of his/her
contract, apply for renewal or extension in writing.

If an
offer of renewal/extension is to be made, it shall be made not later
than four months before the expiry date of the contract, and the
employee shall indicate not later than three months before the expiry
of his/her contract whether or not he/she accepts the offer.

4

2.2. The
Registrar shall consult the relevant superiors of the applicant as
defined in Statute 24, nr. 19-23 and Statute 28 nr. 6-10, and such
other persons as the Appointments Committee shall decide and shall
report the result of such consultation as soon as possible to the
Appointment Committee which shall decide on the application as under
1.5 above.

2.3. In
arriving at their recommendations and/or decisions the applicant's
superiors and the Appointments Committee shall take into
consideration the performance of the employee during his time of
service, existing or expected vacancies and the localization policy
of the University.

2.4. The
Secretary of the Appointments Committee shall communicate as soon as
possible to the employee the decision or recommendation of the
Committee, as approved by the Chairman of Council.

He goes
on to state that intending to renew his contract of employment with
the second respondent, he wrote a memo on the 29th October 2001 which
read:

"Memo
NUL – CONSULS

To :
Senior Assistant Registrar (Appointment)

From :
Director, NUL-CONSULS

Cc

Date :
October 29, 2001

Ref :
CONSULS/gen-1 AFM/mfm

5

Re:
PROFESSOR ALLAN FEMI LAN A - SERVICE CONTRACT

My
current contract service expires on May 10, 2002 - less than seven
(7) months from today. Grateful forward the relevant forms to me as
soon as possible so that appropriate action can be taken.

Thank
you.

Signed:

Professor
Allan Femi Lana "

On the
31st October 2001 Mr T. Khomari, the Senior Assistant Registrar
(Appointments) addressed the following letter to the applicant.

October 31,2001

"Professor
Allan Femi Lana

Director, NUL-CONSULS

National
University of Lesotho

P.O. Roma
180

Lesotho

Dear
Professor Lana,

I am
instructed to inform you, as I hereby, do that in the last Meeting of
the Academic Staff Appointments Committee held on the 25th October
2001, it was decided that your contract will not be extended. This
decision has been taken to accommodate the latest sentiments
expressed within the context of the Transformation Action Plan 2000
and Beyond, which envisages a redefined and reconfigured NUL-CONSULS.

In the
same breadth I wish to acknowledge herein receipt of your memo dated
29th October 2001 which refers to your contract and the seven (7)
months notice. I hope you will realize that your contract with the
University clearly state under Section 8 (i) of the "Terms and
Conditions of Service for Academic, Library and Senior Administrative
Staff" that notice to either

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extend or
terminate contract by either party shall be made ON NOT LESS THAN SIX
CALANDAR MONTHS NOTICE. Unless convinced otherwise, it would appear
to me that this notice is given well in good time.

Subsequent
to the above, you are expected to utilize your ninety-two (92) days
of accumulated leave by going on terminal leave with effect from 10th
December 2001. Up until then, you are kindly requested to wind up
outstanding assignments, to submit handing-over notes and reports to
the Vice-Chancellor on or before 17th December 2001 when the
University shall be breaking for Christmas recess.

Allow me,
on behalf of the National University of Lesotho, to express our
sincere gratitude for the selfless and diligent service you have
rendered to this Institution during your four years of stay here at
NUL. Please accept, Sir, our wishes that you see many more years of
prosperous life hereafter.

Yours
sincerely,

T.
KHOMAR1 (MR) SENIOR ASSISTANT REGISTRAR (APPOINTMENT) "

The
import of this letter was mainly to the effect that the Academic
Staff Appointments Committee (ASAC) had decided that his contract of
employment would not be renewed.

He goes
further to state that he has since appealed to the Council of the
University (NUL) against the decision of ASAC. This notwithstanding,
the first respondent had subsequently written two letters requesting
him to effect the handing over. They read as follows:

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"The
National University of Lesotho

P.O. Roma
180,

Lesotho

Office of
the Vice-Chancellor

4thDecember, 2001

Ref:
ADM/ACP/900

THM/mm

Professor
Allan Femi Lana

Director,
NUL Consuls

Maseru
Campus

Dear
Prof. Lana,

EXTENSION
OF CONTRACT

I have
just received a copy of your letter of 3 December 2001 to Mrs L.C.
Kheekhe, Administrative Assistant (Appointments) informing her that
you have lodged an appeal against ASAC 's decision of 26 November,
2001. This is your prerogative.

I,
however, find it totally unacceptable for you to unilaterally suspend
the hading-over process to the team that I have appointed to work
with you. You are, therefore, directed to proceed with the
handing-over process with the team as agreed with you and are warned
to desist forthwith from frustrating this process and may be liable
to disciplinary action.

I thank
you.

DR T.K
MOTHIBE

VICE
CHANCELLOR"

8

The
National University of Lesotho

P.O. Roma
180,

Lesotho

Office of
the Vice-Chancellor

27th
November, 2001

Professor
Alan Femi Lana

Director,
NUL Consuls

NUL

P.O. Roma
180

Dear
Professor Lana,

In the
light of ASAC decision of the 25 October, 2001 not to renew your
contract, its decision yesterday, 26 November 2001, not to accept
your plea for an extension of one year, and, therefore, your imminent
departure on terminal leave on 17 December 2001,I have appointed Mr
S.G. Hoohlo, Dr M. V. Marake and M. Mofammere and Ms M. Fanana to
work with you as you wound up your work. You are requested to
cooperate fully with them by briefing them and availing them of all
documentation regarding the on­going activities of the NUL
CONSULS.

You are
further requested to attend a meeting in my office on Wednesday 9.00
am, 28 November 2001 to agree on the work-plan.

I thank
you.

Yours
Sincerely,

DR T.H
MOTHIBE

VICE
CHANCELLOR"

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The
applicant submits that the ASAC "decision" not to renew the
contract was pre-emptive and was calculated to deprive him the
opportunity afforded him under the Ordinance 11 and Statute 21, and
that the peremptory provisions of the Ordinance 11 had not been
followed when the decision not to extend his contract was reached.

In
effect, the applicant is asking this court to review the "decision"
of ASAC not to renew the contract and set it aside as ultra vires the
Ordinance 11 and Statute 21.

On the
17th December 2001 the respondents having been duly served with the
papers, filed their notice their intention to oppose and their
answering affidavits. In her answering affidavit Ms Masefinela
Mphuthing, the incumbent Registrar of the second respondent, states
that she wishes

"to even disclose to this Honourable Court that Applicant is a
Nigerian and consequently, an expatriate employee of the second
respondent This information is important for the purposes of this
application and I see no reason for it to have been omitted"

In her
affidavit paragraph 6 she further states:-

"AD
PARA 5.2:

I would
not outright deny that Applicant is entitled to apply for an
extension of his contract. But I think it can be misleading to this
Honourable Court just to state that Applicant has such an entitlement
without stating the existence of certain other conditions that may
affect the enjoyment of such a

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right.
The University has a right, for instance, to inform an employee as to
whether or not his/her contract is open for renewal. The University
also has a right to either extend or not to extend the contract of an
expatriate even in the absence of an application for renewal. "

She also
states that the "decision of the ASAC " not to extend the
applicant's contract is not flawed and ought not to be declared a
nullity because "2nd respondent has a power by virtue of
Ordinance 11 and a right on the strength of Annexure "ZZ
(contract of employment) to unilaterally declare extension or
non-extension as the case may be, of employees contract "

"AD
PARA 9.1:

The
action taken by ASAC cannot be said to be pre-emptive or calculated
to deprive the Applicant of cm opportunity to apply for an extension
of his contract. As I have already stated, 2nd Respondent has a power
by virtue of Ordinance 11 and a right on the strength of Annexure
"ZZ" to unilaterally declare extension or non-extension, as
the case may be, of an employee's contract. "

More
important in her affidavit she raises two preliminary points in
limine, namely that-

1. This
   is a labour matter that falls within the exclusive jurisdiction of
   the Labour Court.

   
   

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2. The
   Certificate of Urgency does not comply with legal requirements in
   that it does not tabulate reasons for bringing this matter before
   court on an urgent basis.

   
   

At the
beginning of his address on the points in limine, Mr Mosae for the
respondents submitted that the relief sought by the applicant is only
justiciable under the exclusive jurisdiction of the Labour Court Code
Order no.24 of 1992 as amended by Act of 2000. To the court's
preliminary request that the Minutes of the ASAC meeting of the 25th
October 2001 regarding its "decision" not to renew or
extend the applicant's contract of employment be produced, Mr Mosae
replied that he objected to such Minutes being produced because the
applicant, as he put it, stood or fell on his founding affidavit.
Anyway, how in the circumstances of this case, how could the
applicant annex to his founding affidavit a copy of Minutes the
possession of which he had none? Fortunately for everyone, the issue
became inconsequential when Mr Mosae formally made an admission to
the effect that Mr Khomari's letter dated 31st October 2001 was to
the effect that ASAC had decided on the 25th that the applicant's
contract of employment with 2nd responded would not be renewed.

Mr Mosae
submits that section 25 of the Labour Code (Amendment) Act no.3 of
2000 is applicable. It reads

"Exclusive
Civil jurisdiction

1. The
   jurisdiction of the Labour Court is exclusive and no court shall
   exercise its civil jurisdiction in respect of any matter provided
   for under the Code

   
   

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1. subject
   to the Constitution and section 38 A; and

   
   

2. notwithstanding
   section 6 of the High Court Act (Act No. 13 of 1978)

   
   

2. ...................."

   
   

He
further submits that the factual matrix of the relief indicates that
it possesses the following characteristics that classify it as a
labour matter-

It is
essentially an issue of rights and duties of parties to a contract of
employment

Section
61 of the Code reads :-

1. Unless
   otherwise provided by the Code, the provisions of this Part apply to
   all contracts of employment."

   
   

It is an
undeniable fact that we are dealing here with a contract of
employment between the University and the applicant.

He also
cited Section 24 2 (a) of the Labour Code (as amended by Act no.3 of
2000) which reads-

24.
Jurisdiction and Powers of the Labour Court

1. Subject
   to the Constitution and section 38A, the Labour Court has
   jurisdiction in respect of all matters that

   
   

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elsewhere
in terms of this Act or in terms of any other labour law are to be
determined by the Labour Court.

(2)The
Court shall have the power-fa) to inquire into and decide the
relative rights and duties of employees and their respective
organizations in relation to any matter referred to the Court under
the provisions of the Code and to award appropriate relief in case in
of infringement;"

Mr Mosae
stressed the point that the Labour Court had exclusive jurisdiction
on the basis that in the matter in case there was an employer
-employee relationship which involved an inquiry into the relative
rights and duties of employee and his organization as envisaged under
Section 24 (2) (a) of the Code.

In this
case, the applicant's contract of employment is for a fixed duration
and renewal thereof is provided under the contract itself and under
the specific provisions of the Statute 21 and Ordinance 11 of the
second Respondent. Under these provisions the applicant and second
respondent had certain rights and duties; one may add, these are
peremptory provisions regarding renewal process.

Mr Mosae
also referred to Section 226 of the Labour Code order which states:

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226.
Disputes of right

1. (l)The
   Labour Court has exclusive jurisdiction to resolve the following
   disputes:

   
   
   
   

   1. Subject
      to subsection (2), the application or interpretation of any
      provisions of the Labour Code or any other labour law;

      
      

   2. An
      unfair labour practice;

      
      

   3. An
      unfair dismissal if the reason for the dismissal is

      
      
   
   

9. for
   participation in a strike;
   

   
   

(ii) as a consequence of a lockout; or

(iii) related to the operational requirements of the employer.

Apparent
from Mr Khomari's letter of 31 October 2001 is the fact that the
contract of employment of the applicant was not being renewed due to
operational requirements of the second respondent namely-

"to accommodate the latest sentiment expressed within the
context of the Transformation Action Plan 2000 and Beyond which
envisages a redefined and reconfigured NUL-CONSULS "

Section
66 of the Code reads:-"66. Unfair Dismissal

1. An
   employee shall not be dismissed, whether adequate notice is given
   or not, unless there is a valid reason for termination of
   employment, which reason is

   
   

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1. ..........................

   
   

2. ..........................

   
   

3. based
   on the operational requirements of the undertaking, establishment or
   service." Section 68 reads:

   
   

"Definition
of Dismissal"

"For
the purposes of section 66 "dismissal" shall include-

1. termination
   of employment on the initiative of the employer;

   
   

2. the
   ending of any contract for a period of fixed duration or for the
   performance of a specific task or journey without such contract
   being renewed, but only in cases where the contract provided for the
   possibility of renewal;

   
   

3. .................."

   
   

Section
68 (b) may seem relevant in this inquiry because the contract of
employment provided for the possibility of renewal; this Mr Mosae
submits, is another indicator that renders the relief a "labour
matter" justiciable exclusively by Labour Court under section
226.

Mr Mosae
has however conceded and rightly so in my view that ASAC in coining
to its decision as it purported to do on the 25th October 2001 did
not follow the peremptory provisions of Ordinance 11 and Statute 21
of the Second Respondent. The reviewability of this decision, so it
seems to me, can competently be inquired into by the High Court under
common law

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or under
Rule 5 of the High Court Rules. Whilst the now repealed section 25 of
Labour Code Order. The new section 24 dealing with the jurisdiction
and powers of the Labour Court does not give the Court powers of
review nor can this power be implied under any provisions of the
Code, sufficiently vested the Labour Court the power to "interpret
the terms of contract of employment" section 24 (2) (a) as
amended merely empowers the Labour Court

"to
inquire into and decide the relative rights and duties of employees
and their respective organizations in relation to any matter referred
to the Court under the provisions of the Code."

As will
be seen later, Mr Mahlakeng for the applicant contends that this
section 24 (2) (a) has no relevance in this enquiry because the
section applies to situation between the employee and his trade union
(see section 3 of the Labour Code Order in defining "employees'
organization)". It has no relevance he submits between employee
- employer scenario. There is much argument in this contention. It
seems to me the Legislature saw it fit to remove from the ambit of
the Labour Court's jurisdiction the power "to interpret the
terms of contract of employment, wage orders and collective
agreements:"

In all
fairness to the draftsman of this amendment I should observe that the
new section 24 of the Code does not seem to vest in the Labour Court
power to review decisions made by other organs not contemplated under
the Code. ASAC as well as the University Council are Statutory organs
created by their founding legislation (National University Act No.10
of 1976 – section

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8) and it
seems to me that the propriety or lawfulness of their actions may
fall more in the realms of administrative law rather than labour law.

In
reviewing the decision of ASAC in this application it is important to
decide whether ASAC had the right to decide not to renew the contract
of employment and whether the Council of the Second Respondent was
the rightful repository. The question would be was the Council
approached to deliberate upon the recommendation of ASAC as mandated
under Statute 21? Had the Council delegated that power to ASAC? If it
did, was the Council entitled to delegate such authority? It would be
wholly inaccurate that ASAC acted on behalf of the Council.

It seems
that where a contract of fixed duration with a possibility of renewal
is not renewed certain mandatory steps must be taken by the Registrar
namely

2.1 The
Registrar shall issue a reminder to each employee of the expiry date
of his/her contract at least seven months before that date and inform
him/her whether the contract is open for renewal. If the employee
wishes to extend or renew his/her contract of employment, he/she
shall, not later than six months before the expiry date of his/her
contract, apply for renewal or extension in writing.

If an
offer of renewal/extension is to be made, it shall be made not later
than four months before the expiry date of the contract, and the
employee shall indicate not later than three months before the expiry
of his/her contract whether or not he/she accepts the offer.

2.2 The
Registrar shall consult the relevant superiors of the applicant as
defined in Statute 24, nr. 19-23 and Statute 28 nr.6-10, and such
other persons as the Appointments Committee shall decide and shall
report the

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result of
such consultation as soon as possible to the Appointment Committee
which shall decide on the application as under 1.5 above.

2.3 In
arriving at their recommendations and/or decisions the applicant's
superiors and the Appointments Committee shall take into
consideration the performance of the employee during his time of
service, existing or expected vacancies and the localization policy
of the University.

2.4 The
Secretary of the Appointments Committee shall communicate as soon as
possible to the employee the decision of the Committee, as approved
by the Chairman of Council".

Ex facie
the papers before the court, it does not appear that this intricate
procedure was followed by the Registrar. In her affidavit, the
Registrar of NUL Ms Masefinela Mphuthing states-

"The University also has a right to either extend or not to
extend the contract of an expatriate even in the absence of an
application for renewal."

Ordinance
No. 11 however gives the employee the right to be informed at least
seven months before the expiry date whether the contract is open for
renewal and it also gives the employee the right to apply for renewal
or extension in writing; and more importantly the employer under
section 69 of the Labour Code is under a duty to provide a written
statement why the contract is not being renewed.

In my
view, it is purely a question of fact whether ASAC in coming to its
decision on the 25th October 2001 had complied with the provisions of
the Statute 21 and Ordinance no. 11 and is a question which can
competently be

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determined
by the High Court without usurping, so to speaks, powers of the
Labour Court.

The point
in limine relates principally to the issue whether the High Court has
jurisdiction to entertain a review application over the decision of
the ASAC to decide not to renew the applicant's contract of
employment. This is not a labour matter at all.

Mr
Mahlakeng, for the applicant, submits in the main that the High Court
of Lesotho enjoys unlimited jurisdiction under the 1993 Constitution.
Section 119 thereof reads :-

"779
(1) There shall be a High Court which shall have unlimited
jurisdiction to hear and determine any civil or criminal proceedings
and the power to review the decisions or proceedings of any
subordinate or inferior court, court-martial, tribunal board or
officer exercising judicial, quasi judicial or public administrative
functions under any law and such jurisdiction and powers as may be
conferred on it by this Constitution or by under any other law. "

Section 2
of the High Court Act No. 5 of 1978 also provides that 2(1) The High
Court for Lesotho shall ..... be a superior court of record and shall
have

(a)
unlimited jurisdiction to hear and determine any civil or criminal
proceeding under any law in force in Lesotho "

(b)............................

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As it has
been stated in South Africa the onus to show that jurisdiction of the
High Court has been outsted is a very heavy one - Mondi Paper vs
Paper, Printing Wood and Allied Workers Union & others - (1997)
18 ILJ 84. The ouster clauses must be clear and unambiguous and are
usually strictly construed - Mathope vs Soweto Council - 1983 (4) SA
287.

Mr
Mahlakeng submits that the applicant has not been dismissed nor is he
claiming that the dismissal or non renewal is unfair; all that he
claims is that the High Court should review the decision of ASAC not
to renew his contract of employment and set it aside as ultra vires
in that it was made in violation of the provisions of the Statute 21
and Ordinance 11.2 of the National University of Lesotho. He quotes
the case of Solomon Masiu vs Lesotho Agricultural Dev. Bank -
CIV/APN/361/94 where Maqutu J. states

"The High Court has jurisdiction where a tribunal has acted
irregularly or illegally by not exercising a jurisdiction it has or
exceeding its jurisdiction "

.... Among the powers of judicial review that this Court has, is to
see that all people, administrators and tribunals observe the
principles of natural justice ".

As I see
it, the provisions in the Labour Code dealing with the exclusive
jurisdiction (e.g. Section 24 and section 226) are rather widely
expressed and indeed there is need for more express provisions
excluding certain matters from the jurisdiction of the High Court -
A.G. vs Lesotho Teachers Trade Union - C of A (civ) No.29/95 Makhutla
vs Lesotho Agricultural Bank - C of A (civ) No. 1 of 1995.

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In the
South African case of Kilpert vs Buitendach & another - (1997) 18
ILJ 1297 Sutherland A.J. held that the jurisdiction of the High Court
was not ousted in a cause of action based on allegation of a
reviewable irregularity in regard to the termination of a contract of
employment. It is the factual matrix rather than the cause of action
which determines the jurisdictional divide between the Labour Court
and the High Court. See also Natal Trust Farms (pty) Ltd vs Nzukulu -
1998 (4) SA 1026.

Although
the University is a statutory body, it was like any other employer
subject to the Labour Code Order 1992, it is a question for review
whether its organ or committee has acted regularly or otherwise. In
the latter inquiry the statutes and ordinances of the University and
not the Labour Code Order have to be looked into. If however the
enquiry is based on the allegation that the applicant was unfairly
dismissed, the Labour Code Order comes into play and the jurisdiction
of the High Court is ousted. We should always look at the facts
giving rise to the cause of action in determining the jurisdictional
divide.

I have
been - I must confess - unable to find any provision in the Labour
Code Order expressly giving the Labour Court the power to review and
possibly set aside, a decision made by a statutory body like the
University or for that matter, any parastatal. If applicants were to
approach the Labour Court for the same relief as before this court,
the first question would be in terms of what powers would the Labour
Court be expected to act. (Nzukulu supra at p. 1028)

22

In the
important case of Moleah vs University of Transkei & another –

1998 (2)
SA 522, the High Court, (Van Zyl J.) set aside the suspension of the
University Principal where the Council of the University had no
express power to suspend the Principal but merely to report to the
Minister. It was held the Council in suspending the Principal acted
ultra vires the Statute of the University. The court held the view
that the principle ex consequentibus (quando lex aliquid alicui
concedit, conceditur et sine quo res ipso eses non potest) did not
apply. This principle generally means that an administrative organ
empowered to do a certain act is authorized to do that which is
reasonably necessary to achieve the main aim. As Van Zyl J. put it –

"It is, in my view, clear from the aforegoing that unless an
implied power is logical consequence or is logically necessary for
the exercise of the power conferred upon an administrative body, such
implied power must be reasonably necessary or incidental and must not
extend beyond the requirement of the occasion nor should it interfere
with the rights of third parties more than is required by the
circumstances of each particular case " (539J-540A).

In this
application the applicant is seeking in essence a review of the
decision of the ASAC. It seems to me that the contract of employment
is between the Applicant and the Second Respondent which can act only
through its supreme organ - the University Council - in terminating,
repudiating or cancelling such contract thereby affecting the rights
and privileges of other parties to the contract.

23

The
Statute 21 therefore states that the ASAC may only "recommend
the extension or non-renewal of contracts of members of the Academic
Staff". It seems to me only Council of the University is the
repository of the power to decide whether renew or terminate the
contract of employment. I am unable to find that the ASAC had implied
power to decide not to renew the said contract as it did; the maxim
ex consequentibus does not apply.

The
letter dated October 31, 2001 written to applicant by Mr T. Khomari
possesses the following flaws:-

1. In
   it ASAC purports to have decided that the applicant's contract of
   employment will not be renewed - whereas it could only recommend.

   
   

2. Mandatory
   steps under Ordinance 11-2.0 seem not to have been followed to the
   letter.

   
   

3. The
   letter is not signed by the Registrar - as Secretary of ASAC - but
   by the Senior Assistant Registrar (Vide Statute 22)

   
   

4. It
   lacks the approval of Chairman of Council.

   
   

The total
effect of these flaws is to invalidate the purported "decision"
of ASAC not to renew the applicant's contract of employment. It was a
non-event and clearly ultra vires and stands to be declared null and
void. The Academic Staff are members of the University whether on
contract or on permanent tenure, whether local or expatriate. If a
contract of employment is not to be renewed, the procedures under the
Ordinance No. 11-2 must be

24

strictly
followed. ASAC is an important organ of the University consisting of

1. The
   Vice-Chancellor - chairman

   
   

2. The
   chairman of the Council

   
   

3. The
   Pro-Vice Chancellor

   
   

4. The
   Deans of the Faculties

   
   

5. One
   member of Council who is a full time member of staff of the
   University, appointed by the Senate.

   
   

And this
judgment in no way belittles that important status.

Indeed
the Transformation Action Plan 2000 and Beyond is a dynamic project
necessary for the betterment and advancement of the University. This
Plan may justify rational localization of certain offices. This
process must however be brought about within the parameters of the
Statutes and Ordinances of the University. I am not going to say that
the non-renewal was prompted by xenophobic or other improper motives.
Localization necessarily involves preference of local over
non-nationals.

The order
of the Court is as follows:

1. The
   Rule is confirmed under Prayers 2 (b) and (c).

   
   

25

2. The
   respondents to pay the costs of the application.

   
   

S.N.
PEETE

JUDGE

For
Applicant : Mr Mahlakeng

For
Respondents : Mr Mosae