IN THE HIGH COURT OF LESOTHO
In the matter of
MARTIN LESOLE THAKASO Applicant
NATIONAL UNIVERSITY OF LESOTHO Respondent
Delivered by the Hon Mr. Justice Sir Peter Allen on the 1st day of March, 1988
This is an application by way of Notice of Motion for an order, the main part of which is as follows
Setting aside the decision of the Council of the Respondent dated 11 September 1987,
Directing the Respondent to re-instate the Applicant immediately,
Directing the Respondent to pay the Applicant his salary from the month of September 1987 to date of re-instatement.
Right at the start I wish to point out that in my opinion matters of this sort should not be brought to Court as applications. There are two reasons for this. The first is that they are invariably opposed, and the second is that orders to re-instate a dismissed employee are matters for the discretion of the Court and such orders are very rarely granted for reasons which I will explain later.
The better and, indeed, correct procedure is to proceed by way of summons suing the defendant for general damages for unlawful dismissal and special damages for loss of salary. A reinstatement order can then also be asked for as an additional or alternative remedy in cases where there are exceptional reasons for it
The applicant was an assistant executive officer in the respondent's examinations office for about thirteen years until his dismissal in September 1987 One of his responsibilities was the security of examination question papers prior to examinations
On 12 December 1986 he gave a question paper in the subject AD 201 to a student called Mrs Martha Letsela. On 16 December she sat for and wrote the same examination with prior knowledge of the questions, for which she was thus able to prepare answers It seems very likely that at least one other student saw the same paper Apparently Mrs Letsela did not ask for the question paper but the applicant chose to give it to her as what she called "a proposal of love."
Other students soon heard about it and one of them informed the University Registrar. As a result the respondent set up a Commission of Inquiry under the chair manship of the Rev. Mohlomi, the acting Pro-Vice-Chancellor. The Commission sat from 10 to 24 February 1987 and interviewed eight students, in addition to Mrs Letsela and the applicant The latter at first denied the allegation but eventually admitted that he had given Mrs Letsela the question paper. He said that he had "succumbed to temptation" and he was sorry He then asked for his thirteen
years of "faithful service" to be taken into account when deciding what to do with him
The Commission then made the following recommendations to the University at the end of its report
" i) There was a proved case for disciplinary action against Mr. Thakaso, as well as the student Martha Letsela, and
ii) the paper AD 201 should be reset "
Under University Ordinance No 11-41 the Won Academic Staff Appointments Committee must appoint a Standing Staff Discipline Committee, consisting of persons who are not members of that Appointments Committee, to hear disciplinary cases brought against staff members
The case against the applicant was heard by the above Discipline Committee under the chairmanship of one Mr. P. Sepipi from 8 to 12 May 1987. The applicant was present throughout and he was allowed to be represented by his present counsel, Mr. Mphalane. The record of those meetings (NUL 2,3, and 4) shows that the applicant was "charged with contravention of Staff Discipline Section 4 2 under Ordinance No 11 of the National University of Lesotho in that he, without authority or just cause, on or about the 12th day of December, 1986, gave one Mrs Martha Letsela, a student, at the National University of Lesotho in the AD.201 Course, an examination paper AD 201 prior to the date of the examination and thus committed an act of dishonesty and neglect of duty."
Mr Mphalane objected to the proceedings on the grounds that they were premature and not in accordance
with Ordinance 11-4.4 and 4 5. These two sections read as follows -
" 4 If an offence which is not a criminal offence has been committed, the Head of Department/Section shall, after consultation with his Department/ Section and after due investigation of the accusation, give a written warning to the accused and shall send a copy of this warning to the Registrar for filing in the employee's personal file. The accused may respond in writing to the Registrar to this warning, this response to be filed with the warning.
4.5 If a similar disciplinary offence is committed a second time, or if the offence is of a serious nature, the Head of Department/Section shall after consultation with his Department/ Section and after due investigation of the accusation, report the matter to the Appointments Committee for disciplinary action by the Staff Discipline Committee "
Unfortunately these sections, like other parts of the University Regulations, were not well drafted. There are far too many important omissions and some of the language used can only be described as clumsy For instance. the last sentence of 4 4 reads, "The accused may respond in writing to the Registrar to this warning ..." This is meaningless. It clearly ought to read, "The accused may respond to this warning in writing to the Registrar
In 4.5 it reads "if the offence is of a serious nature .. " but it does not indicate or define what is meant by the term nor who is to decide that it is of a serious nature. At the very least it should say something like "if the Head of Department/Section considers that the offence is of a serious nature .. .."
Again in 4.5 it reads, "If a similar disciplinary offence is committed a second time .," but it makes no provision for the second offence being of a different nature. In other words the implication seems to be that one can get away with a written warning every time no matter how often offences are committed provided each is a different offence. Surely that was not intended
These are just some of numerous examples of poor draftsmanship in the NUL regulations which, J would suggest need some urgent attention since cases involving them continue to come before this Court.
Mr Mphalane's objection to the Discipline Commitees was that 4 4 makes it a mandatory requirement for the accused first to be given a written warning because this was his first offence. This appears to be so because, once again due to poor drafting, 4.4 refers to "an offence which is not a criminal offence" without specifying that it does not include a serious disciplinary offence.
The result is thus absurd because, if the section is taken at its face value, it means that for any disciplinary offence, no matter how serious it is, a written warning is all the accused receives Clearly that cannot have been intended In addition, 4 5 in providing for the action
to be taken regarding a serious offence, also uses the mandatory "shall?. Thus there is the contradiction of a choice between two 'mandatory" actions required.
The Discipline Committee, which has the unenviable task of trying to make sense out of these contusing regulating overruled counsel and declared that in its view the offence charged was of a serious nature and that the "defaulter" had a case to answer. In my view this was a sensible and reasonable decision in the circumstances and 1 do not consider that it acted improperly.
The Discipline Committee then heard Mrs Letsela describe how the applicant gave her the examination paper some days before she wrote the examination Counsel cross. examined her and she added that he gave her only one question paper and that she had since been suspended from the University. The Registrar was then called and he described how he received information about the examination leak and what steps he had taken to inform the Vic-Chancellor about it
Mr. Mphalane did not cross-examine him but, instead he informed the Committee that he was closing the defence without calling the applicant to speak in his defence Thus, it is clear that the applicant had the opportunity to give his version of events but he declined to avail himself of it Consequently there was no failure of justice with regard to the hearing before the Discipline Committee in that respect
However, the applicant had already admitted the offence and the position had not changed when Mr Mphalane addressed the Committee. He repeated his objection to the procedure and in mitigation twice repeated that in his opinion the offence was not of a serious nature, that the applicant had given her only one paper and that his long service should be borne in mind.
The Committee took time to consider its findings which were as follows
The Committee takes it that the examination papers are the cornerstone of any institution, more especially of a higher learning In the opinion of This Committee the academic reputation of the University has to be safe-guarded and that it has to be given the highest priority
In accordance with Ordinance no 11-4.0 this Committee feels that the Registrar is the actual Head of the Department and has thus done the proper investigations required by this Ordinance.
This Committee feels that the prosecution has proved its case beyond reasonable doubt and thus finds the defaulter guilty as charged.
With regard to a suitable punishment the Committee decided as follows
"The Committee felt that the gravity of of the offence is beyond its competence, therefore agreed that the case be referred straight to the Non-Accademic Staff Appointments Committee to pass sentence "
The Discipline Committee should have been well aware that the Appointments Committee had no power at all to pass sentence or to decide upon punishments Mr Mphalane referred to Ordinance 11-4 6 which reads as follows.
"4.6 The Staff Discipline Committee may impose one or more of the following penalties
- An official reprimand which shall be entered in the employee's personal file,
- A fine not exceeding R30,
- Suspension without pay for a period not exceeding one month "
And that is all. There is no provision at all for any more serious punishments and no mention or instruction regarding, what should be done in the case of a serious offence which warrants a greater punishment than the three petty punishments listed The section is incomplete, insufficient and most unsatisfactory. Yet another example of defective drafting.
This is by no means the first time that an employee has been dismissed by the respondent which has then been brought to Court to answer for it. I would have thought that by now the respondent would have taken the obviously necessary steps to regularise the position and to revise and rewrite its regulations
Obviously, in spite of these defects in the respondent's regulations, it does have the power to dismiss employees, at least under the Common Law, for he who can hire can also fire; but there should be proper provision made in the respondent's regulations.
The Discipline Committee ought to have been able to do this or, if that was not desired, then it should at least have been given the power to recommend dismissal, or to order dismissal subject to confirmation But the Discipline Committee clearly felt constrained and res-tricted by Section 4.6 (above) and so decided to pass the responsibility of making a decision back to its parent committee.
The Non-Academic Staff Appointments Committee held a special meeting on 14 May 1987 under the chairmanship of Dr. Machobane, the Ag. Vice-Chancellor. The Non-Academic Staff Representative on the Council, Mr. Mathaba, recused himself. The record (NUL5) does not state why but, perhaps it was because they were close colleagues or friends. The Rev. Mohlomi, who had been Chairman of the Commission of inquiry, was also present, though the record does not show what, if any, part he took in the proceedings. It would probably have been better if he too had recused himself in the circumstances. But, there was no evidence of bias and, in any case, the Committed did not decide anything, it merely recommended the applicant, ' dismissal. The application of the rules against interest and bias must be tempered with realism, particularly in organisations like educational institutions where the staff all tend to know each other and cannot isolate them selves from internal affairs.
Clearly the Appointments Committee was aware of the defects in their regulations because the question of why the matter of punishment had been referred to them was considered. The record shows
"It was also noted that the Non-Academic Staff Standing Discipline Committee had in the past referred to NASAC the passing of sentence if the offence was of a serious nature and, in supoort this, Messrs K. Koatsa and B. Vamussi's cases were quoted "
The record went on to say
"The Committee noted that the credibility of the University had been affected due to the occurrence of this offence. The offence was of a serious nature and that the student concerned had had an unfair advantage over others The Administration was being blamed for keeping people who take students into trouble.
The Committee therefore agreed to recommend to Council that Mr M.L. Thakaso'a appointment be terminated (University Act Part II Section 13(2)(a)) "
Four months then passed and, on 11 September 1987, the Registrar wrote a letter (MM 7) to the applicant in-forming him that he had been summarily dismissed with effect from 14 May 1987 as a result of the decision of the Council.
Mr. Mphalane conceded that the Council has the power to dismiss an employee summarily or on notice after investigations have been carried out by a commissioner of inquiry. He did, however, object to the matter having been referred to what he called "a discipline committee with restricted powers."
But this seems to me to be a very contradictory argument Several times while he was before the Discipline Committee, and even more times before this Court, Mr Mphalane persisted with his submission that the offence was not at all a serious one. If he was right, then, as a petty offence, it should have been dealt with by the Discipline Committee By insisting that the matter should have gone straight from the commission of inquiry to the Council, he was clearly admitting that it was in fact such a serious offence that the Discipline Committee could not be allowed to deal with it. The inevitable result would have been dismissal. So what did he want?
The only other possibility was that he thought it to be such a very minor offence, one of such insignificance, that the applicant ought to have been dealt with under Ord.11-4.4 and merely given a written warning from the Registrar telling him not to do it again and to behave himself in future.
The applicant was the only one who was prepared to assert that his admitted offence was not of a serious nature. The Commission of Inquiry quite rightly confined itself to a recommendation that disciplinary action should be taken against the applicant without making any reference to the seriousness, or otherwise, of the offence. But it added a rider to its report to the effect that "we are of the view that AD 201 be reset to protect the integrity of the University examinations."
This clearly demonstrated the seriousness with which it regarded the applicant's act Examinations are not reset
for trivial reasons. The Discipline Committee's observations are set out above and they refer to the importance of university examinations and the reputation of the University. They added that "the gravity of the offence is beyond its competence " So their opinion of it was clear.
The Non-Academic Staff Appointments Committee (NUL.5) referred to the "credibility of the University" being affected b.y the offence and described it as an Itself offence "of a serious nature " The Counoil^obvioualy considered the offence to be sufficiently serious as to merit summary dismissal.
In fact it should be obvious that an examinations official who permits a candidate to have a preview of a forthcoming examination paper is guilty of a grave neglect of duty and of a shameful offence. He is not only giving the candidate a very unfair advantage, but he is also betraying the trust of his employers and demonstrating a high degree of dishonesty and unreliability It is irrelevant whether he hands over only one paper or the whole examination Such a person is a menace, for he can no longer be trusted at all. I cannot imagine that the head of any educational institution anywhere would allow him to continue in that institution's employment. I consider that summary dismissc. is the most appropriate method of dealing with a staff member like that.
Section 13 of the National University Act, 1976 (Act 10/76) provides that the Council is the supreme governing body of the University with entire management fn^ control, including the power to appoint and dismiss academic and other employees. The University's Statute 28 Section 13 reads as follows.
Subject to Section 13(a) (sic) of the Act, where in the opinion of the Council there has oeen good and sufficient cause, the Council shall have power to dismiss a member of staff, or to 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 ground for the appeal
The section of the Act referred to above should be "section 13(2)(a)". The applicant did not follow the procedure set out in that he did not appeal to the Council against his dismissal but came straight to this Court. Mr Mphalane submitted that it would have been a futile exercise to ask the Council to reconsider its decision, on the grounds that it was in any case an example of the maxim nemo ludex in sua causa. I am inclined to agree since the Council decided on the punishment and therefore was more unlikely to reverse that decision on hearing an appeal against it. However, that is by the way as it is not a matter to be decided in this present case, since it did not happen that way, but I do recommend that if and when the respondent considers making the necessary amendments to its regulations, this should be borne in mind and a better arrangement made.
Perhaps the respondent could consider up-grading the Discipline Committee to give it the power of dismissal thus leaving an appeal against dismissal to come before the Council which has not then been involved in deciding the punishment originally. It would thus be more in line with the general concept of natural justice and it would certainly look better. That is important too
The respondent might then also consider making it a specific requirement for a dismissed staff member to exercise his right of appeal to the council before coming to Court At the moment, the way in which 28 13 is worded merely gives that person the right to appeal and state his case to the Council but if, as the present applicant did, he choses not to do so because of the way things stand at the moment, it cannot be said then that he was wrong to come to this Court instead
I would be very reluctant to hold that the applicant should first have exhausted his internal remedies at the University before coming to Court while the Council still retains the power to sit on appeal against its own decisions
As I said earlier, the usual and proper remedy in cases of unlawful dismissal is an action for damages. Reinstatement is very rarely granted and it is a matter for the Court's discretion. In Ridge v Baldwin (1963) 2 All E R 66, in the House of Lords, Lord Reid said
" The law governing master and servant is not in doubt There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract."
Clearly it would be wrong for the courts to try to force on to an employer a person whom he does not wish to employ. An exception to the general rule is where there
are statutory restrictions as to the actual grounds on which the employer can dismiss a member of staff, such as in the civil service (see Moliea v Ncholu & Anor. (1971-73) LLR 14). But in such cases the restrictions will not prevent dismissal for proven dishonesty or neglect of duty.
Mr Mphalane agreed that the Council had full power to dismiss members of the staff, and his line of attack was directed at the intermediate proceedings to reach that stage in the particular case of the applicant. He submitted that, "immediately after the commission of inquiry had made its findings, the Council should then have exercised its powers by dismissing the applicant outright." Just how that would have helped the applicant I do not know, since he would have ended up in the same position as now and the Council would have had an even greater say in deciding his guilt.
I would have thought that, by going through the Discipline Committee and the Appointments Committee, the applicant was given more chance of being heard and then perhaps of being dealt with at a lower level I do not agree that it was an objectional process. The applicant appeared and was heard by the commission of inquiry and he appeared and his counsel was heard by the Discipline Committee He thus had ample opportunity to be heard and for any mitigation to be pleaded
Mr. Mphalane submitted that he ought also to have been heard by the Appointments Committee, but 1 cannot see the purpose or need for that. The Appointments
Committee has no disciplinary powers and no machinery for holding any sort of hearing. It realised this and simply passed on to the Council the responsibility for deciding on a suitable punishment.
Mr. Mphalane objected to the Appointment Committee making a recommendation to the Council for termination of the applicant's contract He referred to Statute 25 section 1 which sets out the functions of that Committee These include recommending staff appointments to the Council and also recommending the extension or non-renewal of contracts. In the list of functions there is no mention of being able to recommend staff dismissals. Obviously this ought to have been included as one of its functions since there is no other body to make such recommendations to the Council. This omission is yet another example of the inadequate draftsmanship of these regulations.
However, the omission from the list of functions of the authority to make recommendations about dismissals does not mean that the Committee is forbidden to do so. One does not need a law to give one the right to make recommendations. It is often just a matter of duty to do so. In A.G. v Great Eastern Railway (1880)5 App. Cas. 473, the House of Lords laid down the principle that, "whatever may fairly be regarded as incidental to, or consequent upon, those things which the Legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires. I cannot find that it was wrong or improper of the Appointments Committee to give an opinion and to suggest a punishment. It was not ultra vires The Council did
not have to pay any attention to it if it had decided that it ought to be ignored On the other hand the Council may have considered it useful to have their recommendation. I do not see any unfairness to the applicant in this process, nor can I find any failure of justice, whether it is called "natural justice" or otherwise, in the way in which the applicant was treated and dealt with by these various bodies within the University.
I am of the opinion that, in spite of the in-adequate drafting of the respondent's regulations, the procedures laid down were properly carried out The applicant was given a very fair hearing and the decision to dismiss him was well merited and properly made by the Council.
Accordingly, this application is dismissed with costs
P A. P J ALLEN
1st March 1988
Mr Mphalane for applicant
Mr Matsau for respondent
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