CIV/APN/297/91

IN THE HIGH COURT OF LESOTHO
In the matter
between:

MOABI LECHESA APPLICANT

and

SHADRACK D. KHENA 1ST RESPONDENT

THE DIRECTOR, TEACHING SERVICE UNIT 2ND RESPONDENT

THE ATTORNEY-GENERAL 3RD RESPONDENT

Before the Honourable Chief Justice B.P. Cullinan

JUDGMENT Case referred to:

(1) Mothobi vs Minister of Education &
Others, CIV/APN/319/87, Unreported.

The applicant commenced employment as a teacher in 1951.
- Thereafter he held altogether seven posts as either Head Teacher or
Assistant
Head Teacher at different schools up to 1972. In that year
he took up appointment as a Teacher at Likhakeng Secondary School,
which
is an African United National Baptist Church School. On 1st
January, 1979 he entered into a written . contract with that Church,
as represented by the Reverent Isaac Khena (now deceased) , manager
of Likhakeng Secondary School under which contract the applicant
was
appointed as Head Teacher of . that School with effect from that
date.

-2-

The applicant remained in that post until 1990. In
January
of that year Rev. Isaac Khena served him notice of
termination
of contract. The notice was ineffective, however, as
it was not.
confirmed by the first respondent, as Educational
Secretary for
the Baptist Church, whose appointment as such
had,under section
8 of the Education Order, 1971, been approved by
the Minister:
such confirmation was required by the terms of
regulation 6 (3)
of the Teaching Service Regulations,1986. In any
event, the
Rev.' Isaac Khena subsequently gave the applicant
written notice
on 2lst March, 1990 stating that he would cease to
recognize the
applicant's contract of service with effect from
31st March,1990
due to the applicant's age, that is the age as
stated by the
applicant in the 1979 contract of service.

I should add that the applicant, when he approached this
Court, did not refer to, much less exhibit such contract. Neither for
that
matter did he state his age. He initially approached the Court
ex parte seeking, or so the notice of motion reads, "a
mandamus". Although expressed in its letter to be ex parte,
the notice of motion does not seek interim relief in the form of
a rule and was apparently intended for service on the respondents
forthwith. Therein the applicant seeks the review and setting aside
of the decision of the first and second respondents in "purporting
to retire the applicant on the grounds of age, and thereafter seeks
the payment of his arrears of salary with effect from 1st day
of
April 1990, to date and thereafter until such time as the applicant
shall have been properly retired from the teaching service."
I
would have thought that

-3-

the latter prayer connoted a prayer for reinstatement,
yet such prayer is couched in the alternative in the notice of
motion.

In any event when it came to grounding the notice of
motion, the applicant in his founding affidavit submitted that his
retirement
was null and void on the grounds that,

"(a) My age has not been proved.

2. 
   I was not given adequate notice.

   
   

3. 
   I was not paid three months' salary in lieu of
   such
   notice.

   
   

(d) In any event such notice ought to have ended
in
December.

(e) I ought to have received my full benefits which I
have
not and these are pension and/or gratuity".

As for the latter point no evidence whatever was
introduced by any party in the matter, and I can say no more than
that I assume that
ultimately the applicant was paid all terminal
benefits. As for the issue of notice, if it is the case that the
applicant had reached
retirement age, then the aspect of notice does
not arise, the contract terminating with affluxion of time, upon the
appropriate birthday
of the applicant.

Which brings me to the applicant's age. In response to
the

termination of his contract on the grounds of age, he
approaches

-4-

this Court and deposes to no more than the bald
statement, "My age has not been proved". I would have
thought that, where
he disputed the age stated by the respondents, he
would in turn depose to the exact date of his birth. He has not done
so, however.
On the contrary, the Secretary of the Teaching Service
Unit in the Ministry of Education, in an answering affidavit, has
annexed
thereto a copy of the 1979 contract, in which the applicant,
in that part of the contract completed by the applicant, gave his
date
of birth as "10.10.1924", which means that the
applicant attained his 65th birthday on 10th October, 1989. In reply
to
such evidence the applicant deposes.

"Save to admit that I gave my date of birth as
10.10.1924, I deny the rest of the contents (of certain paragraphs of
answering
affidavit) and I aver that neither my age nor the
(particular) regulations had the effect of extinguishing my age (-
presumably the
word, 'contract', or 'service', was intended)

I deny that annexure "MTI" (the copy of the
1979

contract) is proof of my age "

The Court gave leave to all parties to file
supplementary affidavits. The applicant annexed to his supplementary
affidavit copies
of three contracts of service into which he entered
over the years of his career as a teacher. One was completed in 1951
with the
Bethany Roman Catholic Mission School, another in 1965 with
the 'M'a Mohau Roman Catholic Mission School, and another

-5-

in 1972 with the aforementioned Likhakeng Secondary
School. In the 1951 contract the applicant gave his age as "March
1920".
In the 1965 contract the age in given as either "October
1930" or October, 1920. The year is uncertain, the figure "1930"
possibly being an alteration of "1920", that is, with a
'tail' added to the figure "2" below the line of the
other
figures, to make it "3". Then in the 1972 contract the
applicant gave his age as 10.10.25."

The learned Crown Attorney Mr Mohapi submits that the
latter contract is a forgery. That is an aspect to which I shall
return. For
the moment I observe again that on his initial approach
to this Court, the applicant never stated his age: thereafter he has
blandly
placed three documents before the Court in which he has given
three different dates of birth. Altogether he is the author of the
relevant part of four documents in which he has given four different
dates of birth. And yet nowhere in his founding, or replying
or
supplementary affidavits has he once stated what is his true date of
birth.

The applicant seemingly labours under the mistaken
impression that the onus falls upon the respondents to prove his age.
Quite clearly
his age is a matter peculiarly within the applicant's
own knowledge, and the onus falls upon him to prove his age, or at
least to
disprove that which he himself has stated in the 1979
contract.

—6—

As the applicant himself has deposed, Likhakeng
Secondary-School became a grant-aided school (that is, an "aided
school"
referred to in section 4 (1) of the education Order,
1971," in receipt of grants from public funds") in 1979.
Even assuming
that the copy of the 1972 contract is a valid document,
the original or copy thereof was not in the possession of the
Ministry (as
was the 1979 contract, which was date stamped by the
Ministry in 1979), and the second and third respondents are entitled
to rely
upon the date stated by the applicant in 1979. Again assuming
that the copy of the 1972 contract is a valid document, the first
respondent,
who presumably did not possess a copy of any earlier
contract with any other school is entitled to rely upon the
applicant's revised
date of birth, that is, the 10th of October,
1924, as last: stated by the applicant in 1979.

The question then arises as to what is the retiring age
applicable to the applicant? That is to be found in the legislation,
or rather
the more recent subsidiary legislation. Initially the
Education Rules, '1948' . (H.C.N 1/1948) were made under the
Education Proclamation
1947, which were followed by the Education
Rules/ 1965, also made under the Proclamation, followed in turn by
the Teaching Service
Regulations (L.N. 3 of 1974) made under the
Education Order, 1971 and lastly the Teaching Service Regulations,
1986, made under the.
Teaching Service Commission Act, 1983. The
earlier Rules, namely those of 1948 and 1965, contained no provisions
as to a teacher's
retiring age . Such provision was introduced under
regulation 11 of which read,

-7-

"11. (1) A teacher shall retire from the Lesotho
Teaching Service on attaining the age of sixty years."

The 1974 Regulations were repealed by those of 1986,
regulation 29 (1) of which reads,

"29. (1) A teacher shall retire from the Lesotho
Teaching Service on attaining the age of sixty five."

It was presumably the latter regulation which caused the
termination of the applicant's contract on 3lst March, 1990, as by
virtue
of the date of birth supplied by him, he had reached his
sixty-fifth birthday on 10th October, 1989. But as the Secretary of
the
Teaching Service Unit pointed out in his answering affidavit, the
operative retiring age when the applicant signed the 1979 contract,
was the age of sixty years to which age the applicant attained on
10th October, 1984, that is, before the retiring age was extended
to
sixty five years under the 1986 Regulations. It is then submitted
that the applicant's contract of service, being contrary to
the
existing legislation, was illegal and hence invalid and of no effect
on and after 10th October, 1984, so that he has no cause
of action
against the respondents. It is submitted further that, in any event,
the applicant's contract of service became invalid
on and after 10th
October, 1989, when under the 1986 Regulations he attained the
retiring age of sixty five years.

-8-

The applicant has inter alia, raised the issue of
estoppel: he submits that the respondents cannot say that his
contract of service
was invalid, when after 10th October, 1984 and
again 10th October, 1989, he continued in service and was duly paid
his salary. But
of course it is trite law that estoppel cannot act to
bar a statutory duty or to validate an illegality.

The respondents also claim that, in any event, the
applicant's 1979 contract of service was invalid as he had not been
admitted to
the Lesotho Teaching Service. The Education Order, 1971
(section 11) established a Teaching Service Board, whose sole
function was
to deal with appeals in disciplinary action against
teachers. - The Order itself, in its long title was expressed to be
an 'enactment
"to provide for the establishment administration
and control of education in Lesotho". Section 21 of the Order
empowered
the Minister to

"made regulations for carrying into effect the
principles
and provisions of this Order and in particular and
without
prejudice' to the generality of the foregoing, he
(might)
make regulations for .....

(c) the appointment, dismissal, qualifications,
salaries
and other conditions of service of teachers in grant
aided
schools and controlled schools; ..."

-9-

The Teaching Service Regulations, 1974, were made by the
Minister under section 21 of the Order. Regulations ,3 (1) thereof
read,

"3. (1) No person shall enter into a
contract of employment as a teacher unless he has been admitted to
the Lesotho Teaching Service, and has received notice of
his
admission in the form set out in the ninth Schedule

(2) An application for admission to the Lesotho Teaching
Service shall be in the form prescribed in the Eighth Schedule.

(3) The Permanent Secretary may call for such evidence
of a teacher's qualifications as he deems necessary in order to
arrive at
a just decision on any application for admission to the
Lesotho Teaching Service".

The application form contained in the Eighth Schedule
was a most detailed form indeed, providing for the supply by an
applicant of
his personal statistics and those of his family, his
academic, professional and additional qualifications, his record of
service
and other general information. Quite obviously the object
thereof was to ensure the achievement of a standard of qualification
in
all persons before admission to the Teaching Service and before
appointment as a teacher.

-10-

With the establishment of the Teaching Service
Commission under the Teaching Service Commission Act, 1983, the
Commission was required
under section 7 of the Act to"establish
and keep

a register of teachers" and to establish and
maintain a teaching service adequate for the. needs of schools in
Lesotho".
Thereafter the provision of regulation 3 of the 1974
Regulations were repealed and replaced by those of regulation 3' of
the Teaching
Service Regulations, 1986,, which repeated the earlier
provisions almost verbatim, with the exception that the Teaching..
Service
Commission took over the role of the Permanent Secretary in
the matter. Those provisions were considered by Sir Peter Allen J.
in
the case of Mothobi vs Minister: of Education & Others
(1) where the learned judge, having considered the contents of a
circular (circular letter 1/1987) issued by the Teaching Service
Commission on 6th February, 1987, with regard, to the 1974
provisions, had this to say at pp 6/7:

"The TSC circular quoted above reveals an
astonishing situation. It. appears that for many years the Ministry
of Education and
the TSC had simply ignored the requirements of
revelant legislation. The TSC Regulations of 1974 which required a
potential teacher
to obtain admission to the Lesotho Teaching Service
before entering into a contract of employment had been ignored
in the case of every teacher. These regulations were eventually
replaced
by the Teaching Service Regulations 1986, which did not not
come into force until July 1987, and so they are not applicable in
this
case, since we are here concerned with what happened up until
February 1987.

-11-

Apparently, according to the Circular, the TSC Act 1983
had ' also been ignored and there was not even a register of teachers
established
and kept by the TSC. Nobody in authority evidently
realised the seriousness of the situation until early in 1987, hence
the above
circular issued in an apparent attempt to regularise the
positions of all the members of the teaching service, who were all
evidently
then in possession of illegal contracts of service. These
appointments had apparently been made ultra vires since the
requirements
of the legislation, particularly the TSC- Regulations
1974, had not been complied with. But the TSC, like everyone and
every organisation
in the country was and is required to comply with
the law."

The applicant in the Mothobi (1) case had entered
into a

contract of employment as a teacher in February,1986,
before the

issue of the circular letter in February, 1987, and
before the

issue and completion of the necessary forms of admission
into the

Teaching Service. The applicant subsequently completed
such form

of application and was admitted to the Teaching Service
on a date

which was not specified by the Commission, but which was

obviously subsequent to the date of application, namely
12th

February 1987. The learned judge then held that such
admissions

could not rectify the earlier illegal contract. With
that

finding I respectfully agree.

Leaving aside the 1972 contract in the present case, the

applicant entered into a contract of service as a
teacher in

-12-

1979, during the currency of the 1974 Regulations
without having been admitted to the Lesotho Teaching Service. That
unfortunately
was an invalid contract. The applicant denies the
averment by the Secretary of the Teaching Service Unit that he has
never been admitted
to the Teaching Service. The applicant was
apparently of the impression that as Likhakeng Secondary School was a
private school in
1974, he was not required by the Regulations of
that year to gain admission into the Teaching Service. But it will be
seen that the
empowering provisions of section 21 of the 1971 Order
did not lack for generality and the provisions of regulation 3 (i)of
1974 embraced
all teachers in all types of schools,is to say, those
persons who might "enter into a contract of employment as a
teacher."
In any event, the applicant did just that in 1979,
without first having been admitted to the Teaching Service. He avers
that,

"In 1986 when the new regulations were made I filed
the second schedule (i.e. completed the form of admission) and handed
it
to the then Acting Secretary of. the Teaching Service Unit Mr
Tente who approved of it": .

The 1986 Regulations were issued in July 1987; again the
applicant did not exhibit a copy of the notificaiton of such
admission. In
any event, such admission could not regularize the
invalid 1979 contract.

-13 -

In his replying affidavit the applicant relied upon the
1979 . contract deposing,

"I deny the contract of employment as reflected in
Annexure "MT 1" (the 1979 contract) was a purported
contract and
I aver that this was a valid contract within the meaning
of the Education Order, 1971 as 'amended and within the meaning

of the Teaching Service Regulations I wish to

aver ........ .. that I have been a teacher since 1951
and

that in 1979 when (I) entered into the said contract it
was for the purpose of receiving a Government grant and Likhakeng
High School
then became a Government aided school:

The 1974 and 1986 regulations did not affect the
position

of persons like myself who were already in the Teaching
Service,

but were meant for new contracts to the Teaching
Service.

Announcements in circulars and over the Radio were made
to the

effect , "

Despite all this, the learned Counsel for the applicant,
Mr Mosito, adopted the position that the 1979 contract was invalid,
inasmuch
as it did not indicate thereon the approval of the
Educational Secretary: the contract, he submits, was however valid
for the purpose
of securing a grant (and, I observe, the applicant's
salary) for Likhakeng School. An Educational Secretary statutorily
required,
under section 8 of the 1971 Order, to "organise,
co-ordinate and inspect the educational work.

-14-

of the church," but I can find no statutory
requirement that he

approve contracts of service, that is, other than a
condition

contained in the form of contract scheduled to the 1974

Regulations, namely,

"7. This contract is subject as appropriate to
the approval of the Educational Secretary and Permanent Secretary".

The scheduled form of contract makes provision thereon
for the signature of approval of the Educational Secretary and the

Permanent Secretary. In. the case of the applicant's
1979

contract, the former signature is not to be found. But
then regulation 5 (5) of the 1974 Regulations prescribes that the
form of contract
may be " subject to such modifications as may
be necessary in particular circumstances." Again, the form
scheduled to the
1974 Regulations (Sixth Schedule) indicates that the
form is "to be completed in quadruplicate and all four copies
sent to the
Educational Secretary for Church Schools or to the
Permanent Secretary for their respective approval." It seems to
me that the word, "or", as compared with the
words, "as
appropriate", in condition no.7 above indicate that the approval
of the Educational Secretary is imperative
of course in the case of
non-aided schools but that when it comes to grant - aided schools,
where the government has a direct pecuniary
interest, the approval of
the Permanent Secretary in a sine qua non, rather than that
of the Educational Secretary. In Brief I would

-15-

consider the latter approval to be "directory
rather than
mandatory.

In any event, the absence of the Educational Secretary's
signature on the particular quadruplicate original form exhibited is
not
conclusive of the latter's non-approval. The applicant never
testified that the contract had not been approved by the Educational
Secretary. There is no satisfactory evidence on the points and it
cannot then be said that the 1979 contract was invalidated on the
ground of any non-approval. It was however, as I have said, invalid
on the ground that at the time the applicant had not been admitted
to
the Lesotho Teaching Service. Being invalid, it cannot then be
pleaded or enforced by the applicant: ex turpi causa non oritur
actio.

Mr Mosito then pleads the 1972 contract, submitting that
as the 1979 contract was invalid "it couldn't novate the 1972
contract".
Mr Mohapi submits, as I have said, that the latter
contract is a forgery. Of that there can be no doubt: even the most
cursory of
examinations reveals that the documents is a forgery.

Although the document purports to contain five different
signatures and to have been completed by two different persons, it
appears
to have been completed throughout by one person: again,
although purporting to have been forwarded to the Educational
Secretary on
5th January, 1972, it purports to have .

-16-

been signed by the latter on 1st January, 1972. But
apart from that, the form of contract exhibited by the applicant
simply was not
in existence in 1972, the current. Regulations at that
time being the Education Rules, 1965. No form of contract of
employment was
scheduled to those Rules, a form being nonetheless,
under rule 13 (4) (a) thereof, approved by the Permanent Secretary.
Such a form
was exhibited by the applicant in respect of the 1965
contract into which he entered with the 'M'a Mohau Roman Catholic
Mission,
and the latter form bears no resemblance to that exhibited
in respect of the alleged 1972

contract.

That document is entitled (in manuscript) "SIXTH
SCHEDULE". There was of course no such schedule to the 1965
Rules. There
was a Sixth Schedule to the 1974 Regulations, and the
form also makes reference to "Reg. 5 (5)" which coicides
with the
appropriate 1974 or 1986 regulation, but suffice it to say
that the form utilised was taken from the Teaching Service
Regulations,
1986. Although it is entitled (in manuscript, as I have
said,) "SIXTH SCHEDULE" it' is also entitled "CONTRACT
OF
EMPLOYMENT FOR TEACHERS ON TEMPORARY TERMS". The contents of
the form also refer to "This Form (Seventh Schedule)"
and
again to employment "on temporary terms," so that it is
clearly taken from the Seventh Schedule to the 1986 Regulations.

-17-

There are a number of reasons for coming to the
conclusion.

Chief amongst them are those reasons already given, and
also the fact that the exhibited form.

(i) requires completion in quintuplicate rather than
quadruplicate, as in the case of the 197,4 Regulations;

(ii) refers to "the Supervisor" (of Controlled
Schools), which reference is only found in the 1986 Sixth and Seventh
Schedules;

(iii) refers to the Eleventh and Twelfth Schedules in
the matter of transfer of a teacher; those are - the appropriate
Schedules to
the 1986 Regulations; there are no such Schedules to the
1965 Regulations and such Schedules to the 1974 Regulations are
inappropriate,
the appropriate Schedules being the fourth and fifth
Schedules thereto;

(iv) refers to the Eighth Schedule in respect of a
medical certificate, which is the appropriate Schedule to the 1986
Regulations;
there is no such Schedule to the 1965 Regulations and
the appropriate Schedule to the 1974 Regulations in the Tenth
Schedule;

(v) refers to the first Schedule in the matter of a .
certificate of admission to the Lesotho Teaching

-18-

Service, which is the appropriate Schedule to the 1986
Regulations : there is no such Schedule to the 1965 Regulations and
the appropriate
Schedule to the 1974 Regulations is the Ninth
Schedule;

(v) contains a clause indicating that "the Teacher
acknowledges that he has read and understands the Teaching Service
Regulations
currently in force". That clause is taken directly
from the Seventh Schedule to the 1986 Regulations, the equivalent
clause
in the 1974 Regulations referring to "the Teaching
Service Regulations 1974", there were of course no Teaching
Service
Regulations in existence in 1972;

(viii) refers to "the current Education Act, the
Teaching Service Commission Act and the Regulations": that
reference is
drawn straight from the Seventh Schedule to the 1986
Regulations; the appropriate phrascology in the 1974 Regulations
refers to the
Education Order 1971 and the Teaching Service
Regulations 1974 ...."; The reference to "Act" rather
than "Order"
dates such reference no earlier than the
Parliament Act, 1983; again the reference to "the Teaching
Service Commission Act"
(and other references to "the
Teaching Service Commission") can only connote a reference to

the Teaching. Service Commission Act, 1983, under
section 21 of which Act (and of the Educaiton Order,

- 19 -

1971) the Teaching Service Regulations, 1986 were
made.
'

I conclude therefore that the 1972 form of contract
exhibited by the applicant is a forgery and was probably concocted
for the purpose
of answering the respondent's submission that the
1979 contract was invalid if not also for the purpose of deceiving
the Court as
to the applicant's age. Nonetheless, it is not disputed
that the applicant entered into. a contract of employment with the
Likhakeng
School in 1972, which was of course governed by the
Education Rules, 1965, which did not stipulate any retiring age for
teachers.
The 1974 Regulations, as I have said, introduced a retiring
age of 60 years and also the requirement of admissions into the
Lesotho
Teaching Service. Certainly persons who subsequently entered
into a contract of employment as a teacher were bound by such
requirements
and indeed are such contract so specified. The 1974
Regulations clearly therefore applied to persons who subsequently
entered into
such contracts.

The question arises as to whether the 1974, Regulations
applied to existing contracts of service. If they did, they
had the effect of immediately invalidating all existing contracts of
service all of which
had necessarily been entered into without prior
admission to the Lesotho Teaching Service. The object of the
Regulations was to further
the object of the 1971. Order, namely "to
provide for the establishment, administration and

- 20 -

control of education in Lesotho. I cannot see that
regulations which nullified all existing contracts of service would
achieve those
objects and it seems to me that any regulations which
had that effect would, to that exterit, be ultra vires. There
is the presumption against restrospectively and I can only assume
that existing contracts were not invalidated. In this respect
I
believe that Sir Peter Allen J. in referring to "all the members
of the teaching service, who were all evidently in possession
of
illegal contracts of service," was not necessarily referring to
all teachers as such, but only to those who had, since the
1974
Regulations, entered into contracts of employment. This I believe is
the import of the learned Judge's subsequent observation,
namely,
that,

"These appointments had apparently been
made ultra vires,
since the requirements of the legislation,
particularly the
TSC Regulations 1974, had not been complied
with". (Italics
added)

The authorities may at some stage have formed the view
that the 1974 Regulations applied only to future contracts. The
applicant indeed
filed two affidavits from teachers in reciept of
Government salaries aged 68 years and 77 years. Neither deponent -
states whether
or not he has been admitted to the Lesotho Teaching
Service. It may be that the deponents are not members of the Lesotho
Teaching
Service and are not therefore considered to be bound by. a
requirement that,

-21-

"A teacher shall retire from the Lesotho Teaching
Service on attaining; the age of (sixty) (sixty-five) years"

But plainly the intention of the subsidiary legislation
was that ultimately all teachers should be members of the Lesotho
Teaching
Service and that all teachers should retire on reaching the
age of sixty years, which age. was subsequently extended to
sixty-five
years. That was the intention of the legislation but
regrettably the i974 Regulations made no transitional provision for
existing
contracts of service. For example, section 12 of the
Education Order 1971 prohibited the opening of any new school, unless
it was
approved by the Minister and requested under the Order. The
section however also provided that all existing schools approved and
registered prior to the commencement of the Order would be deemed to
have been approved and registered under 'the Order, unless otherwise
ordered under . the Order. Quite clearly a comparative transitional
provision was required in the Regulations covering the aspects
of
admission into the Teaching Service and the retiring age. Such a
provision might have catered for a moratorium period in respect
of
such admission, or postponed the coming into operation of the
provision as to the retering age: The absence of any such provision
caused grave anomalies.

I do not see that I am called upon to resolve any such
anomalies. As Sir Peter Allen J. observed in Mothobi (1) at pp
10/11, "The appropriate cure for such a massive error in the

-22-

teaching service would be by further legislation to
rectify and regularise the position of all teachers so affected".
As for
the applicant in this case, different considerations
arise.

Assuming, on the basis of the presumption of regularity,
that he entered into a valid written contract of employment with the
Likhakeng
Secondary School in 1972, which he is unable to or has

chosen not to place before the Court, the gueirtion then
arises-as to whether he can rely on such contract.

I have no doubt that the second and third respondents
will say that the Government was never a party to the 1972 contract
and was
in no way responsible thereunder. As to the Likhakeng
Secondary School, represented by the first respondent, the applicant
determined
his first contract as a teacher with the school by the Act
of entering into an enterily. new contract, as a Head Teacher under
which
contract, the Government was responsible for the payment of his
salary. Thereafter it could not be said that the 1972 contract,
responsibilities,
continued to exist. The involved 1979 contract
served de facto govern the applicant's relationship with the school
and government
for eleven years thereafter; under which indeed he
drew his monthly salary. It must be, remembered that under the 1979
contract the
applicant . agreed to be bound by "the Teaching
Service Regulations, 1974, as amended from time to time", that
is, that
in the present case he agree that the retiring age of sixty
years should apply to him. That requirement was never enforced. Now
that
the respondents have applied the extended retiring age

-23-

contained in the" 1986 Regulations, it cannot be
said, even if the 1979 contract were enforceable by the applicant,
that the
respondents have acted uncontractually.

The application is accordingly dismissed. As to costs,
in view of the anomalous situation created by the subsidiary
legislation, I
had given some thought to granting costs to the
applicant, despite the Court's decision in the matter. The applicant
has however
sought to deceive the Court in the matter of the alleged
1972 contract. On the other hand, he is an elderly retired teacher
and cannot
bear heavy costs. In all the circumstances I consider it
equitable that each party bear his own costs, and I so order,

Dated
this 18th Day of April, 1995.

B.P. CULLINAN

(B.P. CULLINAN)

CHIEF JUSTICE