IN THE HIGH COURT OF LESOTHO In matter
THE NATIONAL UNIVERSITY OF LESOTHO Applicant
SEISA NQOJANE Respondent
REASONS FOR JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola
on the 20th day of November. 1992
The Rule has already been confirmed. What follow are
the reasons for judgment.
The applicant applied for an order in the following
1. That this matter be heard as one of urgency in terms
of Rule 8 (22) of the Rules of this Honourable Court.
2. That a rule nisi do hereby issue calling on the
Respondent to show cause before this Honourable Court on the day of
1992 why an
order should not be made in the following terms:
(a) declaring the Respondent's employment with
the Applicant to have been lawfully terminated on
31 May 1991;
declaring that the Respondent is notentitled
in law to any salary, emoluments orother entitlements arising
out of hisemployment with the Applicant save for
thosereceived as at the date of the issue of thisrule;
declaring the Respondent's occupation of thehouse
on the campus of the Applicant interms of his contract of
employment, HouseNo.SRR0063, either by himself personally orby
others authorised or permitted by him, tobe unlawful with effect
from 1 June 1991;
that the Respondent be ordered to vacate thesaid
house and restore possession thereof tothe Applicant with
that the Respondent pay the costs of thisapplication.
That the relief in paragraph 2(d) hereof operate as
aninterim interdict with immediate effect,
Further and\or alternative relief.
In his founding affidavit in support of the application
Mr. Wellington Makhaola Buku deposes that he is the Development and
Officer of the Applicant. The respondent was employed by the
applicant as an Assistant Cost Accountant with effect from the 1st
1975. He was posted to the Department of Refectory and
Accounts, falling under the Bursary Department.
On the 26th July, 1984 the respondent was summoned to
appear before the applicant's Standing Staff Disciplinary Committee
answer certain disciplinary charges. As a consequence
thereof and on or about the 9th November, 1984 the applicant
purported to dismiss
the respondent. This purported dismissal was
eventually set aside by the Court of Appeal on the 11th October, 1989
in C. of A. (CIV)
No.27 of 1987. The applicant was ordered to:
"1 The purported summary dismissal of applicant
and the summary termination of applicant's appointment with
respondent, by respondent,
are set aside.
Respondent is ordered to re-instate theapplicant in
his position as a Senior CostAccountant which he held prior to
hispurported dismissal on 9th November 1984,such
re-instatement to be with effect from9th November 1984.
Respondent is ordered to pay the applicantall
arrears of salary with effect from 9thNovember 1984, together
with interest at therate of 11% per annum from the date
uponwhich each and every salary payment becamedue, to date
4 Respondent is ordered to pay the costs of this
Mr. Buku avers that the respondent was transferred to
the , Bursar's office with effect from the 8th January, 1980. He was
transferred to the Refectory as Acting Manager from the
2nd April, 1981. He returned to the Bursary on the 14th . August,
respondent took vacation leave in order to prepare for an
examination with the Lesotho Institute of Accountants.
On the 19th January, 1983 the respondent was declared
ineligible to sit the examinations of the Lesotho Institute of
two years from the 12th January, 1983. In view of
this the respondent was not re-absorbed into the Bursary at the end
of this study
leave prior to the institution of the disciplinary
proceedings which led to his purported dismissal on the 9th November,
the 16th August, 1982 the post held by the respondent was
not filled by the applicant. In fact the Refectory with which the
was concerned in his position in the Bursary was given out
to a private contractor. Although not formally abolished the post
by the respondent had by October, 1989 became redundant.
The judgment of the Court of Appeal was placed before
applicant's Council on the 23rd November, 1989 and the
Council instructed the applicant's Registrar to implement the
reinstate the respondent in his former position. See
Annexure "B". On the 24th November, 1989 the Registrar
Bursar of this decision (See Annexure "C"). In
response to this the Bursar advised the Registrar that the position
held by the respondent no longer existed and that there was
no work available for the respondent in Bursary at the present time.
The Bursar also advised the Registrar that the Bursary was in fact
over-manned and that in any event by reason of the nature of the
Bursary functions that it would not be appropriate to absorb the
respondent into the Bursary. The Bursar accordingly suggested that
the respondent be absorbed into another department. To this the
Registrar advised the Bursar of the applicant's obligation to give
effect to the Court Order.
Mr. Buku avers that on the 18th December, 1989 the
respondent was advised by him in his capacity as Acting Registrar
that he was being
reabsorbed in the office of the Bursar in
compliance with the order of the Court of Appeal (See Annexure "E").
the respondent was however verbally informed by Mr.
Liphoto, the Acting Senior Registrar (Appointments) that, whilst
to the Court Order, the respondent was being given paid
leave until such time as a post became available to him. This was
by the respondent (See Annexure "F").
Thereafter Mr. Liphoto confirmed by letter that the
respondent would remain on indefinite leave of absence until the
of a suitable post for respondent had been resolved (See
On the 29th June, 1990 the respondent's position was
discussed at the bi-annual Council meeting, as a result of which Che
the Registrar in a Memorandum that the respondent's
position no longer existed, that there was no work available for him
in the Bursary
and that the Bursary was overstaffed by three persons
who were in fact under-employed. The Bursary accordingly advised that
justification existed for the reabsorption of the respondent
into the Bursary (See Annexure "H"). As a result on the 7th
January, 1991 the Registrar placed before the Council for discussion
and decision at its meeting on the 24th January, 1991 a
that the Council consider terminating the respondent's
employment by reason of redundancy (See Annexure "I").
The Minutes of the Council are Annexure "J".
The Council meeting was on the 24th January, 1991. Item (f) (i) reads
"It was reported that Mr. Nqojane was presently on
indefinite leave. The Bursar had further indicated that there was no
available in the Bursary which could be allocated to him and
that the position of Assistant Cost Accountant no longer existed in
Legal opinion on the possibility of declaring Mr.
Nqojane redundant was received. It was noted that the University
his appointment by giving the required period of
Council was informed that Mr. Nqojane did not obtain
permission from the University to take part in the work of the
Assembly. That was a contravention of University
It was finally agreed that Mr. Nqojane be offered early
retirement. He would be required to respond within two weeks. It was
agreed that in the event that he declined the offer, his
appointment be terminated in accordance with the terms and condition
service with the University".
By letter dated the 25th January, 1991 the offer of
early retirement was conveyed to the respondent by Mr. Buku in his
Acting Registrar. (See Annexure "K"). The
respondent declined the offer of early retirement (See Annexure "M").
On the 22nd April 1991 the respondent's employment with the applicant
was terminated with effect from the 31st May, 1991 (See Annexure
which reads as follows:
"Dear Mr. Nqojane,
TERMINATION OF YOUR APPOINTMENT
I acknowledge receipt of your letter, referenced
ADM\AC\P\334 OF 4th April, 1991 in which you inform us that you will
the offer of early retirement as shown on page two (2) of
the judgment and number (4) of the terms.
The clause to which you make reference was an alternate
your application to the court. The court granted your
firstthree appeals, being:
the setting aside of your purporteddismissal
and summary termination of yourappointment;
your reinstatement in position of Senior
Cost Accountant with effect from 9th November,
3 payment to you of salary areas with effect from 9th
November 1984 with interest thereon at 11%.
These orders of court have all since been complied with.
The court did not order, you early retirement as applied for and on
reflected in paragraph four (4) on page two (2) of the
You will have noticed that in our letter, ADM\AC\P\334
of 21st March 1991, to you, we gave you a clear one month's notice of
of your appointment through retirement. The 30th April
1991 was specifically stated as your last day of service. We have
complied with the requirement for notice of termination
As a last measure of goodwill and to afford you time for
self-preparation, however, please be informed that you are hereby
of termination of service on the grounds that the post
of Senior Cost Accountant which you previously held with the
longer exists in the University establishment and there
is no alternative related work which you can be assigned. Your last
appointment with the University will accordingly now be the
31st May 1991.
Your terminal benefits will continue to be determined as
outlined in our letter of 21st March 1991 to you.
You are expected to vacate the University house by Che
above stated last day of appointment as well as settle all
you may be owing to the University.
and Secretary of Council.
Mr. Buku deposes that the employment of the respondent
has therefore been lawfully terminated as provided for in Statute 28
the Statutes made in terms of Section 36 (1) of the
National University Act No.10 of 1976, read with Section
13 (2) (a) of the said Act. He deposes that the respondent has been
all his benefits relating to his employment with the applicant
as at 31st May, 1991 and there is nothing owing to him by the
arising from his contract of employment, either by way of
salary, emoluments or any entitlements.
In his answering affidavit the respondent avers that the
applicant bases its case on hearsay evidence; that the decision to
his employment flies in the face of the judgment of the
Court of Appeal and is for that reason of no force and effect; and
till the age of 65 will satisfy him and only in this
way, so he appears to contend, will the applicant avoid contravening
of the Court of Appeal.
I do not agree with the respondent that the applicant's
case is wholly based on hearsay evidence. In Seisa Nqojane v. The
University of Lesotho, C. of A. (CIV) No. 27 of 1987
(unreported), Ackermann, J.A. said at p. 29-30:
"If the Council had in fact formed the opinion in
question the simplest way of proving it would have been to prove the
of the meeting at which such opinion was formed or recorded
or in the absence of such minutes, a person present at the meeting
have deposed to the formation of such opinion. There is
no such proof in the present case."
In the present case the minutes of the Council meeting
at which a decision was taken by the Council have been proved and are
"J" to the applicant's founding affidavit. The
deponent, Mr. Buku, attended that particular meeting which was held
24th January, 1991. Pule attended the above meeting as well.
As I have already said above the question of hearsay evidence does
arise because the minutes of the Council at which a decision was
taken have been annexed to the founding affidavit. In Nqojane's
- supra - there was no proof by the minutes of the Council meeting at
which the decision was taken that the respondent's employment
be terminated. There was no person who was present at the meeting at
which the Council took such a decision. In the present
case there is
Regarding the question whether or not the respondent's
post had become redundant, we have direct evidence and first hand
The Bursar made a report to the Council at its meeting of
the 24th January, 1991 that there was no work available in the
which could be allocated to the respondent and that the
position of Assistant Cost Accountant no longer existed in the
The Council decided to offer the respondent early
retirement. It was further decided that if he declined
the offer, his appointment should be terminated in accordance with
and conditions of his service with the applicant.
Statute 28 (13) reads as follows:
"Subject to Section 13 (2) (a) of the Act, where in
the opinion of the Council there has been good and sufficient cause,
Council shall have power to dismiss a member of staff, or so
terminate his employment with or without notice; provided that he
have the right to appeal in person and state his case before
the Council giving grounds for the Appeal."
In Seisa Nqojane v.N.U.L.- supra - the Court of Appeal
occasion to deal with Statute 28 (13) and Ackermann,
J.A. said at pp. 23-24:
"I am therefore of the view that in terms of
Statute 28 (13) but subject to section 13 (2) (a) of the Act (which
no application here inasmuch as the proviso to the
Council's power "to appoint and dismiss all members of the
and other officers and servants of the University"
applies only to academic staff) the Council has the power to
dismiss a member of the non-academic staff or terminate
his employment without notice "where in the opinion of the
has been good and sufficient cause".
The question of the redundancy of the post of the
respondent is a good and sufficient cause upon which the applicant's
to offer the respondent early retirement which he
declined outright. The respondent used to work in the Refectory
before the applicant's
Council wrongly dismissed him. It is common
cause that when Che respondent won the appeal after several years and
had to be reinstated,
the refectory was no longer run by the
applicant but by a private person or company. His letter of
appointment indicated that he
was posted to the Refectory and
Accounts. When the respondent was reinstated the Bursary was already
overstaffed and there was no
way he could be taken by that
I am of the view that the question of the redundancy of
the respondent's post was a fact and not an attempt to circumvent the
of Appeal's order. In any case the respondent is wrong to
interpret the judgment of the Court of Appeal as meaning that he
not be dismissed or his contract terminated under any
circumstances until he reached the retiring age of 65 years. It was
of him to decline the offer of early retirement after
the applicant's Council found that his post had become
The respondent has failed to prove that in forming this
opinion the Council acted mala fide or from ulterior motive or failed
its mind to the matter,
I have formed the opinion that the respondent's
employment has been lawfully terminated. The respondent was given
proper notice which
ended on the 31st May, 1991 and was paid all
to him up to that date.
Mr. Penzhorn, S.C. submitted on behalf of the applicant
that the respondent's employment was terminated on the 31st May,
occupation of the house was subject to his contract of
employment. Once the employment is terminated the respondent was not
to remain in the house. In Venter v. Livni 1950 (1) S.A. 524
(T.P.D)at pp 528 to 529 Ramsbottom, J. said:
"A master cannot by a unilateral act of dismissal
terminate a contract of employment unless he has good grounds for
but in such latter case he would in law be accepting a
prior repudiation by the servant. If, without good cause, he seeks to
a contract of service the servant may accept that
termination and bring the contract to an end or
he may refuse to accept the termination and keep the
contract alive until the end of its term: but in the
latter case the servant's right is to claim wages as and when they
or at the end of the term to claim damages for wrongful
dismissal. The servant has not the right to remain in possession of
property and in occupation of his employer's premises.
Whether or not the dismissal of the respondent's manager, Mrs Venter,
justified or not, it is clear that, having dismissed her, he was
entitled to require her to leave his farm and restore to him the
possession of the vehicles and other equipment on the farm and also
of the farm itself and the dwelling house. There was, therefore,
answer to the claim for ejectment and the order for ejectment with
costs was correctly made".
I entirely agree with the learned judge.
In the result the Rule is confirmed in terms of prayers
2 (a), (b), (c), (d) and (e).
J.L. KHEOLA JUDGE
21th January, 1993.
For Applicant - Mr. Penzhorn
For Respondent - Mr. Mphutlane
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