HIGH COURT OF LESOTHO
NATIONAL UNIVERSITY OF LESOTHO Applicant
by the Honourable Mr. Justice J.L. Kheola on the 20th day of
has already been confirmed. What follow are the reasons for judgment.
applicant applied for an order in the following terms:-
this matter be heard as one of urgency in terms of Rule 8 (22) of
the Rules of this Honourable Court.
a rule nisi do hereby issue calling on the Respondent to show cause
before this Honourable Court on the day of 1992 why an
not be made in the following terms:
the Respondent's employment with
the Applicant to have been lawfully terminated on 31 May 1991;
that the Respondent is not entitled in law to any salary, emoluments
or other entitlements arising out of his employment
Applicant save for those received as at the date of the issue of
the Respondent's occupation of the house on the campus of the
Applicant in terms of his contract of employment, House
either by himself personally or by others authorised or permitted by
him, to be unlawful with effect from 1 June
the Respondent be ordered to vacate the said house and restore
possession thereof to the Applicant with immediate effect;
the Respondent pay the costs of this application.
the relief in paragraph 2(d) hereof operate as an interim interdict
with immediate effect,
and\or alternative relief.
founding affidavit in support of the application Mr. Wellington
Makhaola Buku deposes that he is the Development and Planning
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
26th July, 1984 the respondent was summoned to appear before the
applicant's Standing Staff Disciplinary Committee to
certain disciplinary charges. As a consequence thereof and on or
about the 9th November, 1984 the applicant purported to
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:
purported summary dismissal of applicant and the summary termination
of applicant's appointment with respondent, by respondent,
is ordered to re-instate the applicant in his position as a Senior
Cost Accountant which he held prior to his purported
9th November 1984, such re-instatement to be with effect from 9th
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.
is ordered to pay the costs of this application."
avers that the respondent was transferred to the , Bursar's office
with effect from the 8th January, 1980. He was thereafter
to the Refectory as Acting Manager from the 2nd April, 1981. He
returned to the Bursary on the 14th . August, 1982
took vacation leave in order to prepare for an examination with the
Lesotho Institute of Accountants.
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.
judgment of the Court of Appeal was placed before the
Council on the 23rd November, 1989 and the Council instructed the
applicant's Registrar to implement the judgment and
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
to give effect to the Court Order.
avers that on the 18th December, 1989 the respondent was advised by
him in his capacity as Acting Registrar that he was
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
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").
29th June, 1990 the respondent's position was discussed at the
bi-annual Council meeting, as a result of which Che Bursar
the Registrar in a Memorandum that the respondent's position no
longer existed, that there was no work available for him
Bursary and that the Bursary was overstaffed by three persons who
were in fact under-employed. The Bursary accordingly advised
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,
recommendation that the Council consider terminating the respondent's
employment by reason of redundancy (See Annexure "I").
Minutes of the Council are Annexure "J". The Council
meeting was on the 24th January, 1991. Item (f) (i) reads as
"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
Legal opinion on the possibility of declaring Mr. Nqojane redundant
was received. It was noted that the University could terminate
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
with the University".
dated the 25th January, 1991 the offer of early retirement was
conveyed to the respondent by Mr. Buku in his capacity
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
which reads as follows:
OF YOUR APPOINTMENT
acknowledge receipt of your letter, referenced ADM\AC\P\334 OF 4th
April, 1991 in which you inform us that you will only accept
offer of early retirement as shown on page two (2) of the judgment
and number (4) of the terms.
clause to which you make reference was an alternate to your
application to the court. The court granted your first three appeals,
setting aside of your purported dismissal and summary termination of
reinstatement in position of Senior
Cost Accountant with effect from 9th November, 1984;
to you of salary areas with effect from 9th November 1984 with
interest thereon at 11%.
orders of court have all since been complied with. The court did not
order, you early retirement as applied for and on the
in paragraph four (4) on page two (2) of the judgment.
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
appointment through retirement. The 30th April 1991 was specifically
stated as your last day of service. We have accordingly
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
termination of service on the grounds that the post of Senior Cost
Accountant which you previously held with the University
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.
terminal benefits will continue to be determined as outlined in our
letter of 21st March 1991 to you.
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.
and Secretary of Council.
deposes that the employment of the respondent has therefore been
lawfully terminated as provided for in Statute 28 (13)
Statutes made in terms of Section 36 (1) of the
University Act No.10 of 1976, read with Section 13 (2) (a) of the
said Act. He deposes that the respondent has been paid
benefits relating to his employment with the applicant as at 31st
May, 1991 and there is nothing owing to him by the applicant
from his contract of employment, either by way of salary, emoluments
or any entitlements.
answering affidavit the respondent avers that the applicant bases its
case on hearsay evidence; that the decision to terminate
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
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
I do not
agree with the respondent that the applicant's case is wholly based
on hearsay evidence. In Seisa Nqojane v. The National
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
the meeting at which such opinion was formed or recorded or in the
absence of such minutes, a person present at the meeting
have deposed to the formation of such opinion. There is no such proof
in the present case."
present case the minutes of the Council meeting at which a decision
was taken by the Council have been proved and are Annexure
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
the question whether or not the respondent's post had become
redundant, we have direct evidence and first hand evidence.
Bursar made a report to the Council at its meeting of the 24th
January, 1991 that there was no work available in the Bursary
could be allocated to the respondent and that the position of
Assistant Cost Accountant no longer existed in the establishment.
Council decided to offer the respondent early
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
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."
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.
"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
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
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".
question of the redundancy of the post of the respondent is a good
and sufficient cause upon which the applicant's Council decided
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
the refectory was no longer run by the applicant but by a
private person or company. His letter of appointment indicated that
was posted to the Refectory and Accounts. When the respondent was
reinstated the Bursary was already overstaffed and there was no
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
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
applicant's Council found that his post had become redundant.
respondent has failed to prove that in forming this opinion the
Council acted mala fide or from ulterior motive or failed to
its mind to the matter,
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.
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
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
in such latter case he would in law be accepting a prior repudiation
by the servant. If, without good cause, he seeks to
contract of service the servant may accept that termination and bring
the contract to an end or
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
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
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".
entirely agree with the learned judge.
result the Rule is confirmed in terms of prayers 2 (a), (b), (c), (d)
Applicant - Mr. Penzhorn
Respondent - Mr. Mphutlane.
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