CIV\APN\309\92
IN THE HIGH COURT OF LESOTHO
In matter between:
THE NATIONAL UNIVERSITY OF LESOTHO Applicant
and
SEISA NQOJANE Respondent
REASONS FOR JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 20th day of November. 1992
The Rule has already been confirmed. What follow are the reasons for judgment.
The applicant applied for an order in the following terms:-
That this matter be heard as one of urgency in terms of Rule 8 (22) of the Rules of this Honourable Court.
That a rule nisi do hereby issue calling on the Respondent to show cause before this Honourable Court on the day of 1992 why an order should not be made in the following terms:
declaring the Respondent's employment with
2
the Applicant to have been lawfully terminated on 31 May 1991;
declaring that the Respondent is not entitled in law to any salary, emoluments or other entitlements arising out of his employment with the Applicant save for those received as at the date of the issue of this rule;
declaring the Respondent's occupation of the house on the campus of the Applicant in terms of his contract of employment, House No.SRR0063, either by himself personally or by others authorised or permitted by him, to be unlawful with effect from 1 June 1991;
that the Respondent be ordered to vacate the said house and restore possession thereof to the Applicant with immediate effect;
that the Respondent pay the costs of this application.
That the relief in paragraph 2(d) hereof operate as an interim interdict with immediate effect,
Further and\or alternative relief.
In his founding affidavit in support of the application Mr. Wellington Makhaola Buku deposes that he is the Development and Planning Officer of the Applicant. The respondent was employed by the applicant as an Assistant Cost Accountant with effect from the 1st July, 1975. He was posted to the Department of Refectory and Accounts, falling under the Bursary Department.
On the 26th July, 1984 the respondent was summoned to appear before the applicant's Standing Staff Disciplinary Committee to
3
answer certain disciplinary charges. As a consequence thereof and on or about the 9th November, 1984 the applicant purported to dismiss the respondent. This purported dismissal was eventually set aside by the Court of Appeal on the 11th October, 1989 in C. of A. (CIV) No.27 of 1987. The applicant was ordered to:
The purported summary dismissal of applicant and the summary termination of applicant's appointment with respondent, by respondent, are set aside.
Respondent is ordered to re-instate the applicant in his position as a Senior Cost Accountant which he held prior to his purported dismissal on 9th November 1984, such re-instatement to be with effect from 9th November 1984.
Respondent is ordered to pay the applicant all arrears of salary with effect from 9th November 1984, together with interest at the rate of 11% per annum from the date upon which each and every salary payment became due, to date of payment.
4
Respondent is ordered to pay the costs of this application."
Mr. Buku avers that the respondent was transferred to the , Bursar's office with effect from the 8th January, 1980. He was thereafter transferred to the Refectory as Acting Manager from the 2nd April, 1981. He returned to the Bursary on the 14th . August, 1982 the respondent took vacation leave in order to prepare for an examination with the Lesotho Institute of Accountants.
On the 19th January, 1983 the respondent was declared ineligible to sit the examinations of the Lesotho Institute of Accountants for two years from the 12th January, 1983. In view of this the respondent was not re-absorbed into the Bursary at the end of this study leave prior to the institution of the disciplinary proceedings which led to his purported dismissal on the 9th November, 1984. After the 16th August, 1982 the post held by the respondent was not filled by the applicant. In fact the Refectory with which the respondent was concerned in his position in the Bursary was given out to a private contractor. Although not formally abolished the post held by the respondent had by October, 1989 became redundant.
The judgment of the Court of Appeal was placed before the
5
applicant's Council on the 23rd November, 1989 and the Council instructed the applicant's Registrar to implement the judgment and reinstate the respondent in his former position. See Annexure "B". On the 24th November, 1989 the Registrar advised the Bursar of this decision (See Annexure "C"). In response to this the Bursar advised the Registrar that the position formally held by the respondent no longer existed and that there was no work available for the respondent in Bursary at the present time. The Bursar also advised the Registrar that the Bursary was in fact over-manned and that in any event by reason of the nature of the Bursary functions that it would not be appropriate to absorb the respondent into the Bursary. The Bursar accordingly suggested that the respondent be absorbed into another department. To this the Registrar advised the Bursar of the applicant's obligation to give effect to the Court Order.
Mr. Buku avers that on the 18th December, 1989 the respondent was advised by him in his capacity as Acting Registrar that he was being reabsorbed in the office of the Bursar in compliance with the order of the Court of Appeal (See Annexure "E"). Thereafter the respondent was however verbally informed by Mr. Liphoto, the Acting Senior Registrar (Appointments) that, whilst giving effect to the Court Order, the respondent was being given paid leave until such time as a post became available to him. This was accepted by the respondent (See Annexure "F").
6
Thereafter Mr. Liphoto confirmed by letter that the respondent would remain on indefinite leave of absence until the question of a suitable post for respondent had been resolved (See Annexure "G").
On the 29th June, 1990 the respondent's position was discussed at the bi-annual Council meeting, as a result of which Che Bursar advised the Registrar in a Memorandum that the respondent's position no longer existed, that there was no work available for him in the Bursary and that the Bursary was overstaffed by three persons who were in fact under-employed. The Bursary accordingly advised that no work justification existed for the reabsorption of the respondent into the Bursary (See Annexure "H"). As a result on the 7th January, 1991 the Registrar placed before the Council for discussion and decision at its meeting on the 24th January, 1991 a recommendation that the Council consider terminating the respondent's employment by reason of redundancy (See Annexure "I").
The Minutes of the Council are Annexure "J". The Council meeting was on the 24th January, 1991. Item (f) (i) reads as follows:
"It was reported that Mr. Nqojane was presently on indefinite leave. The Bursar had further indicated that there was no work
available in the Bursary which could be allocated to him and that the position of Assistant Cost Accountant no longer existed in the establishment.
7
Legal opinion on the possibility of declaring Mr. Nqojane redundant was received. It was noted that the University could terminate his appointment by giving the required period of notice.
Council was informed that Mr. Nqojane did not obtain permission from the University to take part in the work of the National Constituent
Assembly. That was a contravention of University regulations.
It was finally agreed that Mr. Nqojane be offered early retirement. He would be required to respond within two weeks. It was further
agreed that in the event that he declined the offer, his appointment be terminated in accordance with the terms and condition of service with the University".
By letter dated the 25th January, 1991 the offer of early retirement was conveyed to the respondent by Mr. Buku in his capacity as Acting Registrar. (See Annexure "K"). The respondent declined the offer of early retirement (See Annexure "M"). On the 22nd April 1991 the respondent's employment with the applicant was terminated with effect from the 31st May, 1991 (See Annexure "N") which reads as follows:
"Dear Mr. Nqojane,
TERMINATION OF YOUR APPOINTMENT
I acknowledge receipt of your letter, referenced ADM\AC\P\334 OF 4th April, 1991 in which you inform us that you will only accept the offer of early retirement as shown on page two (2) of the judgment and number (4) of the terms.
The clause to which you make reference was an alternate to your application to the court. The court granted your first three appeals,
being:
the setting aside of your purported dismissal and summary termination of your appointment;
your reinstatement in position of Senior
8
Cost Accountant with effect from 9th November, 1984;
payment to you of salary areas with effect from 9th November 1984 with interest thereon at 11%.
These orders of court have all since been complied with. The court did not order, you early retirement as applied for and on the terms reflected in paragraph four (4) on page two (2) of the judgment.
You will have noticed that in our letter, ADM\AC\P\334 of 21st March 1991, to you, we gave you a clear one month's notice of termination of your appointment through retirement. The 30th April 1991 was specifically stated as your last day of service. We have accordingly complied with the requirement for notice of termination of service.
As a last measure of goodwill and to afford you time for self-preparation, however, please be informed that you are hereby given notice of termination of service on the grounds that the post of Senior Cost Accountant which you previously held with the University no longer exists in the University establishment and there is no alternative related work which you can be assigned. Your last day of appointment with the University will accordingly now be the 31st May 1991.
Your terminal benefits will continue to be determined as outlined in our letter of 21st March 1991 to you.
You are expected to vacate the University house by Che above stated last day of appointment as well as settle all outstanding debts you may be owing to the University.
Yours faithfully.
M.R. LIKATE
Registrar and Secretary of Council.
cc: Bursar."
Mr. Buku deposes that the employment of the respondent has therefore been lawfully terminated as provided for in Statute 28 (13) of the Statutes made in terms of Section 36 (1) of the
9
National University Act No.10 of 1976, read with Section 13 (2) (a) of the said Act. He deposes that the respondent has been paid all his benefits relating to his employment with the applicant as at 31st May, 1991 and there is nothing owing to him by the applicant arising from his contract of employment, either by way of salary, emoluments or any entitlements.
In his answering affidavit the respondent avers that the applicant bases its case on hearsay evidence; that the decision to terminate his employment flies in the face of the judgment of the Court of Appeal and is for that reason of no force and effect; and only payment till the age of 65 will satisfy him and only in this way, so he appears to contend, will the applicant avoid contravening the order of the Court of Appeal.
I do not agree with the respondent that the applicant's case is wholly based on hearsay evidence. In Seisa Nqojane v. The National University of Lesotho, C. of A. (CIV) No. 27 of 1987 (unreported), Ackermann, J.A. said at p. 29-30:
"If the Council had in fact formed the opinion in question the simplest way of proving it would have been to prove the minutes of the meeting at which such opinion was formed or recorded or in the absence of such minutes, a person present at the meeting could
10
have deposed to the formation of such opinion. There is no such proof in the present case."
In the present case the minutes of the Council meeting at which a decision was taken by the Council have been proved and are Annexure "J" to the applicant's founding affidavit. The deponent, Mr. Buku, attended that particular meeting which was held on the 24th January, 1991. Pule attended the above meeting as well. As I have already said above the question of hearsay evidence does not arise because the minutes of the Council at which a decision was taken have been annexed to the founding affidavit. In Nqojane's Case - supra - there was no proof by the minutes of the Council meeting at which the decision was taken that the respondent's employment should be terminated. There was no person who was present at the meeting at which the Council took such a decision. In the present case there is such proof.
Regarding the question whether or not the respondent's post had become redundant, we have direct evidence and first hand evidence. The Bursar made a report to the Council at its meeting of the 24th January, 1991 that there was no work available in the Bursary which could be allocated to the respondent and that the position of Assistant Cost Accountant no longer existed in the establishment. The Council decided to offer the respondent early
11
retirement. It was further decided that if he declined the offer, his appointment should be terminated in accordance with the terms and conditions of his service with the applicant.
Statute 28 (13) reads as follows:
"Subject to Section 13 (2) (a) of the Act, where in the opinion of the Council there has been good and sufficient cause, the Council shall have power to dismiss a member of staff, or so terminate his employment with or without notice; provided that he shall have the right to appeal in person and state his case before the Council giving grounds for the Appeal."
In Seisa Nqojane v.N.U.L.- supra - the Court of Appeal had occasion to deal with Statute 28 (13) and Ackermann, J.A. said at pp. 23-24:
"I am therefore of the view that in terms of Statute 28 (13) but subject to section 13 (2) (a) of the Act (which paragraph has no application here inasmuch as the proviso to the Council's power "to appoint and dismiss all members of the academic staff and other officers and servants of the University" applies only to academic staff) the Council has the power to
12
dismiss a member of the non-academic staff or terminate his employment without notice "where in the opinion of the Council
there has been good and sufficient cause".
The question of the redundancy of the post of the respondent is a good and sufficient cause upon which the applicant's Council decided to offer the respondent early retirement which he declined outright. The respondent used to work in the Refectory before the applicant's
Council wrongly dismissed him. It is common cause that when Che respondent won the appeal after several years and had to be reinstated, the refectory was no longer run by the applicant but by a private person or company. His letter of appointment indicated that he was posted to the Refectory and Accounts. When the respondent was reinstated the Bursary was already overstaffed and there was no way he could be taken by that Department.
I am of the view that the question of the redundancy of the respondent's post was a fact and not an attempt to circumvent the Court of Appeal's order. In any case the respondent is wrong to interpret the judgment of the Court of Appeal as meaning that he could not be dismissed or his contract terminated under any circumstances until he reached the retiring age of 65 years. It was unwise of him to decline the offer of early retirement after
13
the applicant's Council found that his post had become redundant.
The respondent has failed to prove that in forming this opinion the Council acted mala fide or from ulterior motive or failed to apply its mind to the matter,
I have formed the opinion that the respondent's employment has been lawfully terminated. The respondent was given proper notice which ended on the 31st May, 1991 and was paid all monies due to him up to that date.
Mr. Penzhorn, S.C. submitted on behalf of the applicant that the respondent's employment was terminated on the 31st May, 1991. His
occupation of the house was subject to his contract of employment. Once the employment is terminated the respondent was not entitled to remain in the house. In Venter v. Livni 1950 (1) S.A. 524 (T.P.D)at pp 528 to 529 Ramsbottom, J. said:
"A master cannot by a unilateral act of dismissal terminate a contract of employment unless he has good grounds for doing so, but in such latter case he would in law be accepting a prior repudiation by the servant. If, without good cause, he seeks to terminate a contract of service the servant may accept that termination and bring the contract to an end or
14
he may refuse to accept the termination and keep the contract alive until the end of its term: but in the latter case the servant's right is to claim wages as and when they fall due, or at the end of the term to claim damages for wrongful dismissal. The servant has not the right to remain in possession of his employer's property and in occupation of his employer's premises. Whether or not the dismissal of the respondent's manager, Mrs Venter, was justified or not, it is clear that, having dismissed her, he was entitled to require her to leave his farm and restore to him the possession of the vehicles and other equipment on the farm and also of the farm itself and the dwelling house. There was, therefore, no answer to the claim for ejectment and the order for ejectment with costs was correctly made".
I entirely agree with the learned judge.
In the result the Rule is confirmed in terms of prayers 2 (a), (b), (c), (d) and (e).
J.L. KHEOLA
JUDGE
15
21th January, 1993.
For Applicant - Mr. Penzhorn
For Respondent - Mr. Mphutlane.
