CIV/T/136/79.
IN THE HIGH COURT OF LESOTHO In the matter of :
JOACHIM MOKOTELI NTEBELE Plaintiff
V
NATIONAL UNIVERSITY OF LESOTHO JUDGMENT
Delivered by Hon. Mr. Justice D. Levy Acting Judge on the 17th. day of June. 1985.
Plaintiff was employed by the University of Botswana, Lesotho and Swaziland as an assistant Dean of Students and on the 25th of June, 1975 the Roma Campus Registrar terminated his employment or purported to do so by a letter giving him three month's notice as a result of which he was paid his emoluments up to the end of September, 1975.
There is some dispute whether further payments were made to him up to and including January, 1976 but that is an issue which need not detain me on the present problem.
The plaintiff claims that his dismissal was unlawful in that the Campus Registrar was not authorised by the University or by the regulations governing the contract between the parties to dismiss him, and that this could be done only by the University Council or by the Registrar himself. I should point out that the Campus Registrar is Registrar merely of the particular Campus, there being three such Registrars who all are subordinate to the Registrar of the University and it is the latter Official only, so it is said, who may dismiss employees whether academic or non-academic.
In fact the statement of agreed facts put before me contains no agreed facts. There is a recital of the allegations of the
plaintiff /2
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plaintiff and recital of defendant's contentions based upon the University Act of 1976. This Act contains the provision that no proceedings can be brought or continued against the University in respect of delictual liabilities or contractual obligations of the University of Botswana, Lesotho and Swaziland which were incurred and complete prior to the 20th day of October, 1975. The notice that was given to the plaintiff by the Campus Registrar was given on the 25th of June 1975 but the plaintiff contends in argument before me that by virtue of the lack of
authority of the Campus Registrar to terminate the plaintiff's
employment, that termination should be regarded as a nullity, that
fierefore the plaintiff's employment continued on indefinitely, and therefore a claim for salary for the past seven or eight years from the time of purported dismissal is competent notwithstanding the provisions of Section 42 sub-section 7 of the 1976 University Act.
The merit of the plaintiff's argument is that Section 42 (7) speaks of a complete obligation and plaintiff contends that in law the obligation to pay salary from month to month to an employee of the University can never be complete until that employment is lawfully terminated.
The defendant, on the other hand, contends that the employment was lawfully terminated and that is an end of the matter. It is obvious to me from a reading of the pleadings and of the so called statement of agreed facts and after hearing counsel for plaintiff and defendant, that the question of law that has been put before me is totally academic in its nature. Both parties are in complete agreement that if the Registrar had the authority, either prior to the notice of dismissal given by him to the plaintiff or ex post facto by virtue of a ratification by the University Council,then the dismissal took place prior to the 20th October, 1975;and so any obligation on the part of the defendant to pay salary under the prior contract of employment ceased and the plaintiff's claim
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therefore would have been complete prior to the 20th of October, 1975.
On the other hand the plaintiff has urged that if the dismissal was unauthorised that the employment continued and this argument as I see it at the present time is unanswerable. If the dismissal was not authorised then the obligation continues. If it was authorised then the obligation ended. All of this therefore happened before the 20th of October, 1975 and there is no problem arising out of any interpretation of Section 42 (7) of the 1976 University Act.
In the light of that view which I have formed I cannot accept that there is any question of law which may lead to an early or more convenient determination of the dispute between the parties. It is clear that the matter has to go to trial on the issue at least of the authority of the Campus Registrar and probably also on the question of the University's continuing liability to pay salary to plaintiff for the past seven or eight years.
In those circumstances therefore and by virtue of the authority vested in me by Rule 32 of the Rules of Court I direct that the issues between the parties go to trial in the ordinary way without any predetermination of any academic questions of law which do not arise as I see the facts before mo.
Both parties in my view contributed equally to the placing of this so called statement of agreed facts before me and I therefore think that the costs of today's appearance and submission of this statement of agreed facts should bo costs in the cause, and I so order.
ACTING JUDGE
17th of June, 1985
For Plaintiff. Mr. W.C.M. Maqutu. For Defendant: Mr. Tampi