IN THE HIGH COURT OF LESOTHO
In the matter between:
PAAVO RUOTSALAINENE Applicant
ATTORNEY GENERAL 1st Respondent
MINISTRY OF HEALTH 2nd RespondentPROJECT
HEALTH SERVICE PROJECT 3rd Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 14th day of October. 1992.
This is an application for an order in the following
1. That a rule nisi do hereby be issued calling upon the
Respondents to show cause, if any, on a date to be determined by this
(a) Second and Third Respondents herein and\or their
subordinates shall not be interdicted forthwith pending the
finalization of this
application from deducting
rentals from Applicant's monthly salary;
The deduction of monthlyrentals from Applicant's
salaryshall not be declared null andvoid and contrary to the
termsand conditions of Applicant'scontract of employment;
Respondents shall not beordered to pay the
Granting the Applicant suchfurther and\or
2. That prayer l(a) operate with immediate effects as
a temporary interdict.
It is common cause that on the 29th June, 1990 the
Government of the Kingdom of Lesotho (GOL) and the applicant entered
into a contract
of employment. The applicant was employed as a civil
engineer for a period of twenty-four (24) months
commencing on the 26th March, 1990.
The contract agreement is marked Annexure "PR1".
The contract has a Schedule Agreement and Annex A and Annex B. The
in this case concerns the interpretation of Clause 5(1) of
the Schedule Agreement and Clause 4 of Annex B.
Article 6(c) of the Contract provides that 'this
agreement is subject to the conditions set forth in the Schedule
and the Schedule shall be read and construed as part
of the Agreement.'
Clause 2(1) of the Schedule provides that the person
engaged shall conform to the Public Service Order and Regulations
together with Financial and other Standing Orders of
the Government for the time being in force in so far as they are
and not inconsistent with the terms of this Agreement.
This clause means that where the Public Service Regulations,
and Standing Orders are in conflict with the
terms of this Agreement they shall have no effect. For instance, in
terms of Regulation
603 of the Public Service Regulations 1969 an
who has been allocated a house must pay rent. However in
terms of the Agreement in the instant case that provision can be
because it is in conflict with Clause 4 of Annex B.
Clause 5(1) of the Schedule provides that:
"The person engaged shall be provided with
Government quarters, if available, with basic furniture, for which he
will be required
to pay rent in accordance with the regulations for
the time being in force."
Clause 4 of Annex B provides that the civil engineer
engaged shall be provided with furnished housing fully paid by GOL.
and telephone expenses to be paid by the person engaged.
Clause 5(1) of the Schedule and Clause 4 of Annex B are
in direct conflict with each other. In his answering affidavit the
Secretary for Health has deposed that they are bound to
give effect to the provisions of the main contract wherein the same
with the other subsidiary
terms of agreement between the parties. He has deposed
that his office was labouring under a mistaken belief that it was not
to deduct rentals from the applicant's salary; and that it
was only in or about October, 1991 when their office was advised by
Attorney-General's office, that they got to know that they were
bound by the main contract, to deduct rental from the applicant's
Mr. Letsie, counsel for the respondents submitted that
Clause 4 of Annex B does not form part of the Agreement; that Public
Regulations 1969 dealing with housing apply to the present
Mr. Pheko, attorney for the applicant, submitted that
the parties amended the rental part of the Agreement that the
pay no rent and that the Government is estopped from
forcing his client to pay rental.
The suggestion by the Principal Secretary for Health
that there is a main contract whose provisions must be given
conflict with other subsidiary terms of the
agreement, must be rejected outright. There is one
contract which has a schedule and two annexes. There are no terms
the contract, schedule and annexes which must be
regarded as subsidiary. The main concern is to find out the intention
of the parties.
I do not agree with Mr. Letsie that Annex B does not
form part of the contract. It is part of the contract and it was
to the contract when the parties signed the contract.
It is not alleged that it was surreptitiously annexed to the contract
the parties had signed.
The parties decided to amend Clause 5(1) of the schedule
even before they had formally signed it. There was nothing wrong with
because they knew exactly what they were doing and their minds
were ad idem in that there was consensus between them on all the
of the contract, The applicant did not, according to the
provisions of Clause 4 of Annex B, pay any rental for many months. I
of the view that the respondents are in breach of contract and
that they should be ordered to stop from deducting rentals from the
applicant's salary with immediate effect.
I agree with the submission by Mr, Pheko that the
parties amended the contract. This amendment was done before the
contract was signed
in order to modify the terms of the contract for
the benefit of the applicant. As I have said above Clause 5(1) of the
based on Public Service Regulations 1969 and 2(1) of the
same Schedule makes it quite clear that the Regulations will apply
as they are appropriate and not inconsistent with the terms
of this Agreement. It seems to me that the Regulations in this case
not appropriate and are directly inconsistent with the terms of
this Agreement and they must give way to the terms of this Agreement.
In the result the following order is made by the Court:-
The deduction of monthly rentals from theapplicant's
salary is declared null andvoid and contrary to the terms
andconditions of the applicant's contract ofemployment.
The respondents are ordered to refund allthe money
they have deducted from the
applicant's salary as rentals.
3. The respondents are to pay costs of this
JUDGE 14th October, 1992,
For the Applicant - Mr. Pheko For the Respondents -
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