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

therefore ../3

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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