IN THE HIGH COURT OF LESOTHO
In the Application of :
ALICE TIISETSO KHOATHANE Applicant
THE MANAGER, MATLAPANENG A.M.E.
SCHOOL - SEBITIELE MONYAKE ... Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
10th day of November, 1986,
The applicant herein has moved the court for an order
framed in the following terms:
"1. That the Respondent be ordered to pay applicant
all applicant's monthly emoluments outstanding since January,
That the Respondent be ordered to paycosts of this
application at Attorney andclient scale;
The applicant be granted such further andalternative
The application is opposed and affidavits have been
filed by either parties. It emerges from the affidavits that on 1st
applicant and the manager of Matlapaneng Primary School
(herein after called Respondent) entered into a written contract
the latter employed the former as a teacher at the school.
The terms of employment were clearly spelled out in their
contract, annexure "A". In terms of annexure "A"
the applicant was to be paid a monthly salary.
According to the applicant the Respondent had not paid
her monthly salary since January, 1984 despite the fact that she had,
time, been teaching at the school.
2/ She averred that
She averred that it was apparent that Respondent's
attitude was that he had dismissed her as a teacher at Matlapaneng
and yet no such dismissal had ever been con-municated
According to Respondent on 27th September, 1983,the
applicant was in fact written a letter annexure "F"
advising her that
her employment as a teacher at Matlapeneng Primary
School was terminated on three months' notice with effect from 30th
1983. By her letter of 20th October, 1983, annexure "g",
applicant acknowledged receipt of Respondent's letter of 27th
September, 1983, (annexure F) although she disputed the legality of
her dismissal. At the end of December, 1983 applicant's period
notice expired and in January 1984 she was no longer a teacher
entitled to receive any salary at Matlapaneng Primary School.
conceded, therefore, that as from January, 1984 the
applicant was not paid any monthly salary.
It is significant to note that although annexure "A"
does not directly deal with the question of dismissal that is,
indirectly covered by the provisions of Clause 3 thereof.
The clause reads:
"3. Both parties to this agreement acknowledge that
in matters which are not dealt with in this contract, the provisions
Education Order 1971 and the Teaching Service Regulation 1974,
as amended from time to time, will apply to this agreement as though
specifically set out therein".
Although applicant denied knowledge of her dismissal and
communication thereof her letter of 20th October, 1983 (annexure "g")
leaves no doubt whatsoever that she did receive Respondent's letter
of 27th September, 1983 clearly advising her of the dismissal.
was not, therefore, being honest with this court in her averment that
the notice of dismissal was never communicated to her.
I accept as
the truth Respondent's version that on 27th September, 1983
applicant's employment as a teacher at Matlapaneng Primary
terminated on three months' notice with effect from 30th September,
3/ The salient
The salient question is however whether or not the
Respondent was lawfully empowered so to do. In my view the answer is
in the affirmative
for Regulation 6 of the Teaching Service
Regulations 1974 clearly provides, in part:
"6(1) There shall be implied in every permanent
(i) a condition that the contract may be terminated by
the manager or the teacher at any time after giving not less than
written notice of intention to terminate the contract
or on payment of three months salary in lieu of such notice ending in
Provided that a permanent contract may be terminated at
any time by written mutual agreement between the manager and the
(ii) a condition that the contract may be
by the manager at any time -
(a) on one of the grounds of misconduct referred to
in regulation 27; provided that the procedure outlined in
28 has been observed;"...
Assuming the correctness of my view that Respondent
could lawfully terminate, as he did, the contract on three months'
notice in accordance
with the provisions of Regulation 6 of the
Teaching Service Regulations 1974 it must be accepted that when her
period of notice
expired at the end of December, 1983, the applicant
ceased to be a Teacher at Matlapaneng Primary School. That being so,
was perfectly entitled to stop paying her monthly
salary from January, 1984.
That is, however, not the end of the story for in her
founding affidavit, the applicant further deposed that on 30th April,
had appealed against the Respondent's decision dismissing
her as a teacher. The appeal was heard and upheld by the Teaching
Board on 6th May, 1985 -See annexure "B" to the
4/ It was
It was contented in argument that the appeal against the
decision of the Respondent was terribly out of time for in terms of
of Regulation 38(1) of the Teaching Service
(Amendment) Regulations, 1983 such appeal had to be lodged within one
month from the
date when a copy of the Permanent Secretary's
statement was posted to the teacher in terms of Regulation 6. The
Board should not, therefore, have entertained the
I do not necessarily agree. Regulation 42 of the
Teaching Service Regulations 1983 clearly empowers the chairman of
the Board to extend
the time stipulated by the regulations for doing
any act. He may well have extended the time for lodging the appeal
it notwithstanding that the time stipulated for
lodging the appeal had already expired.
It may be mentioned at this stage that an affidavit by
one Arthur Vincent Moruthoane was also attached to Respondent's
From what can be gathered from his affidavit,
Mr. Moruthoane is the School Secretary for the A.M.E. Schools. He
requests a review
of the decision/proceedings of the Teaching Service
Board and for leave to be joined as co-Respondent in the present
In my view, a request such as the one contemplated
by Mr. Moruthoane has to be made by way of application and not
an affidavit. In the result, I am unable to concede to his
As has been pointed out earlier, applicant's appeal
against Respondent's decision dismissing her as a teacher at
School was upheld by the Teaching Service Board.
According to Annexure "E" a letter of 28th January, 1986
the Respondent by the Secretary of the TEaching Service
Unit, the decision of the Board was approved by the Minister.
That being the case, the provisions of Regulation 33(4)
of the Teaching Service (Amendment) Regulations, 1983
be complied with. The Regulation reads:
"(4) If the Board upholds a teacher's appeal, the
manager shall pay him his full salary from the date of his
dismissal to the date the Board made its decision, and 3 months'
salary in lieu of notice,
or reinstate him in his post with full
salary from the date of his dismissal, and where the appeal is
dismissed, the teacher shall
be be paid up to the date of his
dismissal from the service."
I have underscored the word "shall" in the
above cited regulation to indicate my view that the provisions
thereof are mandatory.
Although applicant said she had been teaching
at the school since January 1984, the Respondent denied this and
deposed that another
teacher had in fact been engaged in the place of
I do not believe that after she had been dismissed and
another teacher engaged in her place the applicant could have
teaching at the school. In my view the applicant
is again being dishonest with this court on this point.
However, as her appeal against the Respondent's decision
to dismiss her has been upheld by the Teaching Service Board the
must succeed and the applicant awarded the relief in
terms of the provisions of subregulation (4) of regulation 33 of the
Service (Amendment) Regulations, 1983.
In the circumstances the order that I make is that
applicant must be paid her full salary from January 1984 to the date
made its decision plus 3 months' salary in lieu of notice.
The Respondent must also pay the costs of the application but not on
and client scale.
JUDGE. 10th November,1986.
For Applicant : Mr. Nthethe, For Respondent : Mr.
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