CIV\APN\21\92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

PAAVO
RUOTSALAINENE Applicant

and

ATTORNEY
GENERAL 1st Respondent

MINISTRY
OF HEALTH 2nd Respondent

PROJECT
CO-ORDINATOR RURAL

HEALTH
SERVICE PROJECT 3rd Respondent

JUDGEMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 14th day of October.
1992.

This is
an application for an order in the following terms:

1. That a
rule nisi do hereby be issued calling upon the Respondents to show
cause, if any, on a date to be determined by this Honourable
Court
why:-

1. Second
   and Third Respondents herein and\or their subordinates shall not be
   interdicted forthwith pending the finalization of this
   application
   from deducting

   
   

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rentals from Applicant's monthly salary;

2. The
   deduction of monthly rentals from Applicant's salary shall not be
   declared null and void and contrary to the terms and conditions
   of
   Applicant's contract of employment;

   
   

3. Respondents
   shall not be ordered to pay the costs hereof.

   
   

4. Granting
   the Applicant such further and\or alternative relief.

   
   

2. That
   prayer l(a) operate with immediate effects as a temporary
   interdict.

   
   

It is
common cause that on the 29th June, 1990 the Government of the
Kingdom of Lesotho (GOL) and the applicant entered into a contract
of
employment. The applicant was employed as a civil engineer for a
period of twenty-four (24) months

3

commencing
on the 26th March, 1990.

The
contract agreement is marked Annexure "PR1". The contract
has a Schedule Agreement and Annex A and Annex B. The dispute
in this
case concerns the interpretation of Clause 5(1) of the Schedule
Agreement and Clause 4 of Annex B.

Article
6(c) of the Contract provides that 'this agreement is subject to the
conditions set forth in the Schedule hereto annexed,
and the Schedule
shall be read and construed as part of the Agreement.'

Clause
2(1) of the Schedule provides that the person engaged shall conform
to the Public Service Order and Regulations made thereunder
together
with Financial and other Standing Orders of the Government for the
time being in force in so far as they are appropriate
and not
inconsistent with the terms of this Agreement. This clause means that
where the Public Service Regulations, Financial Regulations
and
Standing Orders are in conflict with the terms of this Agreement they
shall have no effect. For instance, in terms of Regulation
603 of the
Public Service Regulations 1969 an officer

4

who has
been allocated a house must pay rent. However in terms of the
Agreement in the instant case that provision can be ignored
because
it is in conflict with Clause 4 of Annex B.

Clause
5(1) of the Schedule provides that:

"The person engaged shall be provided with Government quarters,
if available, with basic furniture, for which he will be required
to
pay rent in accordance with the regulations for the time being in
force."

Clause 4
of Annex B provides that the civil engineer engaged shall be provided
with furnished housing fully paid by GOL. Electricity
and telephone
expenses to be paid by the person engaged.

Clause
5(1) of the Schedule and Clause 4 of Annex B are in direct conflict
with each other. In his answering affidavit the Principal
Secretary
for Health has deposed that they are bound to give effect to the
provisions of the main contract wherein the same conflict
with the
other subsidiary

5

terms of
agreement between the parties. He has deposed that his office was
labouring under a mistaken belief that it was not authorised
to
deduct rentals from the applicant's salary; and that it was only in
or about October, 1991 when their office was advised by
the
Attorney-General's office, that they got to know that they were bound
by the main contract, to deduct rental from the applicant's
salary.

Mr.
Letsie, counsel for the respondents submitted that Clause 4 of Annex
B does not form part of the Agreement; that Public Service

Regulations 1969 dealing with housing apply to the present case.

Mr.
Pheko, attorney for the applicant, submitted that the parties amended
the rental part of the Agreement that the applicant shall
pay no rent
and that the Government is estopped from forcing his client to pay
rental.

The
suggestion by the Principal Secretary for Health that there is a main
contract whose provisions must be given effectwherein
they conflict
with other subsidiary terms of the

6

agreement,
must be rejected outright. There is one contract which has a schedule
and two annexes. There are no terms appearing in
the contract,
schedule and annexes which must be regarded as subsidiary. The main
concern is to find out the intention of the parties.

I do not
agree with Mr. Letsie that Annex B does not form part of the
contract. It is part of the contract and it was already annexed
to
the contract when the parties signed the contract. It is not alleged
that it was surreptitiously annexed to the contract after
the parties
had signed.

The
parties decided to amend Clause 5(1) of the schedule even before they
had formally signed it. There was nothing wrong with that
because
they knew exactly what they were doing and their minds were ad idem
in that there was consensus between them on all the
terms of the
contract, The applicant did not, according to the provisions of
Clause 4 of Annex B, pay any rental for many months.
I am of the view
that the respondents are in breach of contract and that they should
be ordered to stop from deducting rentals
from the applicant's salary
with immediate effect.

7

I agree
with the submission by Mr, Pheko that the parties amended the
contract. This amendment was done before the contract was
signed in
order to modify the terms of the contract for the benefit of the
applicant. As I have said above Clause 5(1) of the Schedule
is based
on Public Service Regulations 1969 and 2(1) of the same Schedule
makes it quite clear that the Regulations will apply
insofar as they
are appropriate and not inconsistent with the terms of this
Agreement. It seems to me that the Regulations in this
case are not
appropriate and are directly inconsistent with the terms of this
Agreement and they must give way to the terms of
this Agreement.

In the
result the following order is made by the Court:-

1. The
   deduction of monthly rentals from the applicant's salary is declared
   null and void and contrary to the terms and conditions
   of the
   applicant's contract of employment.

   
   

2. The
   respondents are ordered to refund all the money they have deducted
   from the

   
   

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applicant's
salary as rentals.

3. The
   respondents are to pay costs of this application.

   
   

J.L.
KHEOLA

JUDGE

14th
October, 1992,

For the
Applicant - Mr. Pheko

For the
Respondents - Mr. Letsie.