C OF A
(CIV) NO.26 OF 1991
LESOTHO COURT OF APPEAL
MOTOR COMPANY (PTY) LTD. RESPONDENT
respondent as the plaintiff in the Court a quo sued the respondent
for payment in the sum of M6057—85. Judgment in favour
respondent was given in the sum of M4.038.57 being two thirds of the
respondent relied on an agreement entered into on the 14th of May
1981, ("the agreement") as follows:
The parties herein are desirous to achieve a definite and mutual
understanding with regard to certain identifiable
arrangements regarding a grant for furthering studies. The said David
Leteka having applied for a full fee study grant
through LNDC AND
NATIONAL MOTOR CO. through LNDC having accepted the application;
THEREFORE: It is hereby agreed as follows:
during the continuance of the study, NATIONAL MOTORS COMPANY through
LNDC shall pay to the said ....................
per annum, payable
in two instalments of ............................. per term for the
first year of study, and for subsequent
years if successful.
this arrangement shall be for a maximum period of 2 years.
upon completion of his studies, if successful, the said David Leteka
shall resume duties within the Corporation.
in recognition of the fact that it may be impractical for the
Corporation to compel the said DAVID LETEKA to resume his duties
within the Corporation, it is hereby agreed that the sum of money
referred to in article one (1) above shall, for all intents
purposes, be deemed and regarded as a loan made by the Corporation
and NATIONAL MOTORS COMPANY to the said DAVID LETEKA which
shall become payable with 100 per cent (100%) interest to National
Motor Company via the Corporation by the said DAVID LETEKA,
latter being unwilling and or unable to return to Lesotho to resume
his duties within the Corporation.
the said DAVID LETEKA shall utilise the said study for the purpose
of pursuing academic studies which are substantially related
business of the
Corporation and that the duration of the study shall not be more than
2 consecutive years.
in the event of the said DAVID LETEKA being unsuccessful in his
studies, he will be obliged to repay to NATIONAL MOTORS via
Corporation the sum of money referred to in article one (1) above,
bearing interest rate of 100 per cent (100%).
upon successful completion of his studies, the said DAVID LETEKA
shall resume his duties within the Corporation. He will
be on a
probation status for a period of not less than three months at the
end of which, the Corporation shall be at liberty
to modify, alter
or terminate his employment, depending on his ability to discharge
the performance of the Parties herein shall be subject to non
occurrence of events that are beyond the control of either
NATIONAL MOTORS COMPANY through the Corporation shall, during the
subsistence of this agreement, have the right to demand
from the said DAVID LETEKA reports on his progress in his studies.
NATIONAL MOTORS COMPANY through LNDC may modify
or alter the
payments referred to in article one (1) above, in the light of such
the said DAVID LETEKA shall be required to work for the Corporation
for a minimum period of five (5) years commencing on
the first day
of resumption of duty.
should the provisions of this agreement be found wanting and or
ambiguous, the Parties herein shall seek and achieve consensus
thereon and the same shall become part of this agreement upon it
being reduced into writing and being appended to this document
bearing authenticated signatures of the Parties."
the contract refers to L.N.D.C. and the appellant as parties, it was
not disputed at the trial that the agreement obliged
to provide monies to the appellant thereunder and that the respondent
also became a party to the agreement. Notwithstanding
in Clause 1, it was accepted by all the parties including the
respondent that the appellant would be paid his salary
time that he was in Germany on his studies.
to this agreement the applicant proceeded to Germany for studies and
during his absence from Lesotho, respondent, acting
in terms of the
obligations under the agreement paid a sum of M6,057-58 over a period
of 23 months to the appellant's dependants.
defendant successfully completed his studies in Germany and
thereafter resumed his duties as a motor mechanic with the
appellant thereafter attempted to open discussions with the
respondent about suitable increases in his salary and in his status
and conditions of employment with the respondent, appellant
contending that his further training and qualifications as a Training
Instructor entitled him to an enhanced status and
commensurate income. These attempts were however abortive and five
months after his return from Germany, appellant gave one month's
written notice of the termination of his employment with respondent.
In his letter to the respondent, appellant expressed himself
"I find it difficult for me to continue working for the Company
for reasons which amongst others include my very existence
existence of my dependants.
As a matter of fact, at least I did make you aware of the above issue
and its seriousness, but to my greatest disappointment, the
has never been positive.
With these reasons I find myself left with no choice but to leave the
Company and seek employment elsewhere."
respondent reacted to this notice, within a week, and stated inter
"We would like to remind you that you have a 5 years' contract
with the Company, and you cannot resign your post unless you
compensate the Company for all the expenses incurred by the Company
during 2 years .... of your training in Germany. We would like
draw your attention to para 4 of the contract you signed with
respondent indicated that the appellant was indebted to it in the sum
amount it required the appellant to pay to the respondent "if
you insist on leaving the company".
thereafter left the respondent's employment at the expiry of the
notice period and had no difficulty in finding an alternative
position with another employer with a substantial enhanced income and
status. He refused to repay to the respondent the sum of
demanded or any portion thereof.
to succeed in its claim against the appellant the respondent had to
allege and prove that it was, in terms of the agreement,
demand from the appellant, the repayment of the monies advanced to
his dependents while the appellant was studying
and 5 respectively define two conditions under which the respondent
would be entitled to claim such repayment
upon completion of his studies, the appellant
was "unwilling and or unable to return to Lesotho to resume his
studies within the Corporation" (respondent), the monies
advanced to the appellant could be reclaimed in terms of clause 4.
(This provision does not assist the respondent in its claim, because
the appellant did return to Lesotho to resume his employment
respondent was also entitled to claim such repayment, in terms of
clause 6, if the appellant was "unsuccessful in his
(This provision also does not assist the respondent, because the
appellant was indeed successful in his studies)
respondent could not establish the fulfilment of either condition (a)
or (b) above, its claim could not succeed, unless
there was some
other provision of the agreement which supported the claim.
suggested that clause 10 which required the appellant to work for the
respondent "for a minimum period of 5(five) years
the first day of resumption of duty", could successfully be
invoked to support the respondent's claim, because
worked for the respondent only for 6 months and not 5 years after
resuming his duties. The difficulty with this submission
clause 10 did not specify the quantum of the remuneration which the
appellant was entitled to enjoy during the stipulated
period of 5
years, and was therefore unenforceable. The quantum of the
remuneration is an essential term of a contract of employment
it is unspecified or not objectively determinable, it is legally
unenforceable (Voet: Commentary on the Pandects Vol. 3.
XIX, 2, 7;
African Law Vol. III pp.207/8; Scammell v Ouston 1941(1) All. E.R. 14
appellant's attitude was not that he was not prepared to work for the
respondent for the minimum period of 5 years contemplated
10. He was prepared and willing to do so but there was a dispute
about his remuneration and status which was unresolved.
proper remuneration was never agreed upon (and since there was no
formula agreed upon which could make such remuneration
determinable), the appellant was not obliged to remain in the
employment of the respondent. Clause 10 could never mean
appellant was compelled to remain in employment at any remuneration
unilaterally determined by the respondent and even
if this is what it
does mean it is unenforceable because a binding agreement of
employment cannot in law, leave the quantum of
remuneration to be
determined by one party only.
accordingly follows that clause 10 was not an enforceable provision
and that the appellant committed no breach of any legal duty
the respondent, in not continuing his employment with it, for the
full period of 5 years.
with this difficulty Counsel for the respondent on appeal,
tentatively suggested that if clause 10 was unenforceable, the
agreement was invalid, and the
could simply support his claim without relying on the agreement. When
it was pointed out to him that the respondent's
cause of action, on
the pleadings was based on the validity of the agreement and not its
invalidity and that it did not purport
to rest on any condictio
indebiti, he fairly and properly conceded that the appeal had to
succeed with costs.
for the respondent did not attempt to support the reasoning of the
Court a quo, in upholding two thirds of the claim. I
think he was
correct in that attitude. The approach of the trial Court was that
although clause 10 was unenforceable,
"I hold that the defendant was obliged to remain in the services
of the Company for a period of 18 months, in the post of
mechanic, drawing the normal incremental salary attaching to that
post. The defendant served for a period of six months,
that is, he
rendered but one-third of the consideration required from him. I then
calculate his liability in the matter to be two-thirds
of the sum
I give judgment therefore to the Company in the amount of M4,038.57."
unable to support this approach. The parties did not agree that the
appellant should work for 18 months. Nor did they agree
remuneration should be "the normal incremental salary attaching
to that post". Whatever its equitable attraction
may be, the
order of the Court a quo, is not based on any agreement made by the
parties. The Court cannot make an
for the parties.
result I order that:-
appeal be and is upheld with costs.
order of the Court a quo be and is set aside and substituted by the
plaintiff's claim is dismissed with costs."
OF THE COURT OF APPEAL
THE COURT OF APPEAL
at Maseru this 16th day of July 1993.
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