C of A (CIV) NO.13/98
CIV/APN/223/97
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
LESOTHO UNIVERSITY TEACHERS
AND
RESEARCHERS UNION APPELLANT
and
NATIONAL UNIVERSITY OF LESOTHO RESPONDENT
Held at: MASERU
Coram: LEON, J.A.
VAN DEN HEEVER, J.A.
BECK, A.J.A.
JUDGMENT
LEON, J.A.
The appellant was the unsuccessful applicant in the Court a quo.
In pursuance of an ex parte application brought by the applicant as a matter of urgency on 23 January
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1997 the Court a quo on the following day granted an order against the respondent in the following terms:-
"It is ordered that:-
The ordinary Rules pertaining to the modes and periods of service herein are dispensed with.
A Rule Nisi be and is hereby issued returnable on the 10th February 1997 calling upon the respondent to show cause why:-
The respondent shall not be interdicted forthwith from freezing the car allowance of applicants in breach of the said members' contracts pending finalisation of this application.
The respondent shall not be interdicted from breaching the said contracts.
The respondent should not be ordered to pay costs of this application only in the event of opposition hereto.
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Paragraphs 1 and 2(a) operate with immediate effect as an interim order."
The rule as sought purports to prevent the University from indulging in certain conduct: breaching the alleged contract between it and certain staff members. In reality it orders the University to pay out certain money to certain members forthwith, albeit only until the application is finalized. Virtually any conduct may be described linguistically in either positive or negative terms. The order the union obtained was in effect a mandamus, not a prohibitory interdict. Moreover, as appears from the opposing affidavit it was a mandamus of uncertain content: not all members of the respondent's academic staff are necessarily members of the applicant union. That by the way. As appears from what follows, the appellant was fully aware that any challenge against the decision to "freeze" payment of car allowances would inevitably be opposed. And opposed it was.
On the 19th February 1997 the court a quo, immediately upon the completion of the addresses by
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counsel on both sides, granted an order discharging the rule with costs. It is against that judgment that this appeal is brought. When the court granted the order it indicated that its reasons for judgment would be filed later. However they were only filed 11 months later, being dated the 5th January 1998 and not handed down in open court. The High Court was in recess at that time. The appellant's counsel only became aware that reasons for judgment had been given when he chanced upon the judgment early in May 1998. (In the final paragraph of those reasons, having commented earlier that the appellant's counsel had not filed heads of argument, the judge a quo imposed on appellant's counsel in his personal capacity a
"nominal penalty . . . . in the sum of M100-00 three quarters of which is suspended with the result that the learned counsel shall be required to pay M25-00 in the form of revenue stamps"
to be dealt with as then set out.) Shortly after that this appeal was noted. The final paragraph in the notice of appeal challenges the lawfulness of the fine imposed on counsel. The notice of appeal was out of
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time and it became necessary for the appellant to apply for condonation. The late noting of the appeal may not have been due to fault on the part of the appellant or his legal representatives although the application for condonation could have been avoided had appeal been noted timeously, grounds to be filed on receipt of the reasons for judgment.
The appellant is a labour union established and registered in terms of the laws of Lesotho. Its members are members of staff of the respondent. In terms of article 4 .1 of its constitution all full-time and part-time teaching/research staff of the respondent
shall be regarded as members of the appellant unless they notify the secretary in writing of their unwillingness to be so regarded. We do not know who the individuals are who were sought to be benefitted by the order obtained by the appellant.
It is not in dispute that because of a deadlock between the appellant and the respondent relating inter alia to salaries and a 13th cheque allowance the appellant embarked upon a strike from the 13th July
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1995. On the 18th August 1995 the parties agreed that the outstanding issues of the dispute between them would be dealt with by a collective bargaining process in a judicious and fair manner which, in any event, would be settled within four to eight months.
The appellant then negotiated a new contract for academic staff (i.e. teachers/researchers, senior librarians, and extension educators). It is the appellant's case that the contract is that set forth in annexure "D" to its founding affidavit. It is headed:
"NATIONAL UNIVERSITY OF LESOTHO TERMS OF SERVICE FOR ACADEMIC, LIBRARY AND SENIOR ADMINISTRATIVE STAFF."
The document is not signed but it appears to be common cause that it is a specimen of one which was indeed signed by some members of the appellant and on behalf or the respondent. Paragraph 13 D reads:-
"13 ALLOWANCES
D Car Allowance
A member shall be entitled to 10 percent of basic salary as car allowance. Members shall normally be expected to use their vehicles
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for official and approved purposes without mileage claim within a radius of 35 km."
Reference is made to that car allowance in a letter dated the 11th December 1996 by the acting Vice Chancellor of the respondent to the President of the appellant, to which I shall presently refer.
After the respondent had paid car allowances for three months its Council met on the 9th December 1996. At that meeting, and by a majority vote, it decided to freeze car allowances from January 1997, because of a lack of sufficient funds which would enable it to pay both medical aid benefits and car allowances. It opted in favour of the former. That decision was conveyed to the appellant in the said letter of 11 December 1996 and the parties indeed met on that day to discuss the situation.
On 17 December 1996 the appellant resolved to challenge the respondent's decision (that was 37 days before the so-called urgent application was launched) .
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Having decided to challenge the respondent's decision the appellant neither then sought any court relief nor did it notify the respondent of its decision until 17 days later. Shortly after that i.e. on the 7 th January 1997 an unsuccessful further meeting took place between the parties and 16 days after that the appellant launched the application.
I have set out the above dates and delays in some detail because it is my firm view that apart from non - compliance with Rule 8 (22) (b) to which I shall later refer, the delays were of the appellant's own making.
The appellant's case in the Court a quo amounted to this:-
If the respondent's Council froze the car allowances its members would suffer irreparable harm.
The appellant had a clear right as its contractual right (or that of its members) was about to be violated. That right flows
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from annexure "D".
The harm apprehended was imminent and that the matter was therefore urgent.
On behalf of the respondent opposing affidavits were filed by ANNE MASEFINELA MPHUTHING the registrar of the respondent and the secretary of its Council and Senate; ZAKARIAH MASASA LIPHOTO the acting bursar of the respondent and MOKHELE R. LIKATE the chairman of the respondent's Council. For the sake of completeness I should add that the appellant also brought a subsequent application before the return day of the rule nisi for contempt of court based on respondent's having failed to pay allowances forthwith in terms of paragraph 3 of the court's order. The application was designed to harass the respondent and its Vice-Chancellor but is not the subject of this appeal.
I turn now to refer to the respondent's case. In her affidavit the registrar, after taking preliminary points relating to the ex parte nature of the
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application, the alleged urgency and the failure to comply with Rule 8 (22) (b) , then deals with the background and the merits. She states in her affidavit that she has personal knowledge of all the material facts in this matter.
With regard to the appellant's demand on behalf of staff for a car allowance she-alleges in paragraph 17 of her affidavit that the
respondent acceded to that demand subject to the following agreement:-
That the respondent would redeploy funds which would be utilised to pay the car allowance and medical aid benefits only until those were exhausted. It was accepted that these monies would be exhausted between the end of December 1996 and March 1997.
That between the period of the end of the strike and the time these funds ran out the respondent would use its best endeavours to try to procure further funding from government to enable it to pay the car
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allowance and the medical aid benefits thereafter.
That if the respondent was unable to procure funds from government the respondent's obligation to pay would cease and the parties would reconsider the question of car allowances and medical aid in further negotiations.
Paragraph 18 of her affidavit reads -
"On this understanding" (my underlining) "it was further agreed between the Applicant and the Respondent that the
contracts of employment of the Applicant's individual members would be reworked to include the car allowance and medical aid benefits and this was done as set out in Clause 13 (D) and 14 (A) of annexure "D" to the founding affidavit. However, I repeat that it was understood by all concerned that the Respondent's obligation to pay these benefits
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would fall away once the Respondent' s available funds had been exhausted and if no new funds could be obtained from government".
I pause to observe that one of the learned Judge's findings that annexure "D" constitutes inadmissible evidence because it is not signed is plainly wrong because it is common cause that annexure "D" is a specimen of the signed agreement between some of the applicant's members and the respondent.
The registrar also refers to the fact that the respondent simply has no funds to pay the car allowance and is unable to procure any from the State or from any other source. The acting bursar states that he was part of the negotiating team and that the agreement was on the terms and conditions stated by the registrar.
In paragraph 4 of the affidavit of the chairman of the respondent's Council he says this:-
"I wish to stress that respondent, when it
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undertook to pay the car allowance, the subject of these proceedings, it did so on the understanding that initially this allowance would be paid out of redeployed funds until these were exhausted. Thereafter the obligation to continue to pay would fall away unless the University could procure further funds from the Government. If the Government did not provide the funds then it was understood that the obligation to continue to pay would fall away."
He urges that the appellant had no right to proceed as a matter of urgency or ex parte and that, in any event, other remedies were available to it i.e. a claim for specific performance, alternatively an action for damages.
He also refers to the fact that the government refused to approve the respondent's budget for 1997/98 which makes provision for car allowances - only an increase of 12% was permitted whereas the budget including the car allowances involved an increase of 38%.
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The learned Judge a quo held:-
The appellant was not entitled to proceed ex parte on motion because it must have appreciated that a genuine dispute of fact would arise on the papers.
For the purpose of deciding the application the respondent's version must be accepted. On that version the respondent's obligation to pay car allowances would endure only for as long as it was financially able to make such payments.
On the facts the respondent was not able to pay such car allowances beyond the end of December 1996 and was therefore entitled to freeze such payment after that date.
No case of urgency had been made out as the appellant knew of the respondent's decision 43 days before launching the application.
To direct the respondent to continue to pay
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car allowances would be to direct that the respondent contravene Section 38 (a) of Order 19 of 1992 (THE NATIONAL UNIVERSITY OF
LESOTHO ORDER, 1992).
Section 38 of that Order provides:-"The Council shall -
in each year adopt for the next following year commencing of (sic) the first day of July a budget for all funds of the University other than those to which paragraph (b) of this section relates and shall approve all amendments to the budget and shall control expenditure of the University so that it confirms (sic) as nearly as practicable to the approved budget; and
review annually funds available to the University by way of request, donation or special grant, and the expenditure thereof and shall, subject to the terms of any trust and before any such
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expenditure is made, approve the proposed disposition of those funds."
The respondent's budget did not allow for the payment of motor car allowances on the evidence of the Acting Bursar.
Because annexure"D" is not signed it constituted inadmissible evidence. This is plainly wrong.
The decision to freeze car allowances is not unilateral because the decision would only take effect from the end of January 1997 and the appellant was invited to negotiate which it did not but instead went to court on an urgent ex parte application.
As counsel for the appellant had not filed heads of argument he was liable to be fined and was fined.
What I have set out above represents a broad
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summary of the findings of the learned Judge a quo.
As stated earlier, the appellant's claim is, in essence, a claim for money i.e. in this case a car allowance. Such claims are normally made by the issue of a summons although that relief has been granted on motion. However, in the present case, the applicant did not, as it should have, sue for payment of the car allowance but instead rushed to court bringing an allegedly urgent application ex parte not for a sum of money but for an alleged interdict, which is in fact an order for immediate albeit temporary specific performance.
There are a number of objections to the procedure adopted by the appellant. No case of urgency is made out and it is difficult to envisage what possible justification was thought to exist for counsel's certificate that the matter qualified to be of that nature. It is clear from the respondent's letter of the 11th December 1996, which is annexed to the appellant's application, that the respondent's Council had decided two days earlier to freeze car allowances
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after December 1996 in view of the inability of the government and the refusal of the World Bank to finance such allowances. Yet the applicant, despite that knowledge, waited more than six weeks before launching the so-called urgent application.
I have referred earlier herein to the other relevant facts on this topic which show that other delays were created by the appellant itself.
Rule 8 (22) (b) of the High Court Rules provides:-"In any petition or affidavit filed in support of an urgent application the applicant shall set forth in detail the circumstances which he avers render the application urgent and also the reasons why he claims that he could not be afforded substantial relief in a hearing in due course if the periods prescribed by this Rule were followed."
That rule was regarded by Kheola CJ. as being mandatory in LESOTHO MEDICAL DENTAL and PHARMACY COUNCIL V MUSOK in CIV/APN/100/93. Non-compliance
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with the provisions thereof in itself justified the dismissal of the application.
The only paragraphs which touch upon urgency are paragraphs 5 (e) and (f) of the Founding Affidavit which read as follows:
"5(e)Applicant also submits that the said harm is imminent inasmuch as its members are usually paid on or around the 25th day of each month and in the manner in which things are going its members rights and obligations will have been violated. Applicant therefore prays this Honourable Court to intervene expeditiously.
The very fact that applicant's members contracts are about to be breached renders it even more urgent that this application be
treated as one of urgency."
The appellant knew full well on the 11th December
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1996 that its "contracts" were allegedly to be breached six weeks later yet says not a word as to why it waited until the very last moment to launch an urgent application. Nor does a word appear as to why the appellant "could not be afforded substantial relief at a hearing in due course."
Worse than that it chose to proceed ex parte in the full knowledge that in the light of the said letter the respondent would be bound to oppose the application, and, on the respondent's version, the appellant had been made acutely aware of the fact that it was the respondent's contention that the obligation to pay a car allowance would endure for only as long as funds permitted. When the funds ran out the obligation would cease.
In every case when a creditor sues a debtor for a sum of money he or she or it is no doubt concerned to receive that money as quickly as possible. That does not mean that such a person or body has the right to move the Court as a matter of urgency. Still less so to do so ex parte knowing that the matter will be
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opposed and where the facts are in dispute. In this regard the appellant is in no better position than such a creditor referred to above.
In the course of his judgment the learned Judge a quo refers to two cases EMIRAM (PTY) LTD VS NEW WOODHOLE HOTEL (PTY) LTD 1967 (2) SA 491 (E) at 493 and LUNA MEUBEL VERVAARDIGERS V MAKIN and Another 1977 (4) SA 135 (T) at p 137 which stress the necessity for a litigant to state explicitly why the ordinary rules should be dispensed with. With regard to the ex parte nature of the application it is important to have due regard to the remarks of my Brother Beck {cited by the learned Judge a quo) in REPUBLIC MOTORS vs LYTTON SERVICE STATION 1971 (2) SA 516 (R) at 518. I respectfully agree with, and adopt, what was said by my learned Brother.
"The procedure of approaching the Court ex parte for relief that affects the rights of other persons is one which in my opinion is somewhat too lightly employed. Although the relief that is sought when this procedure is resorted to is
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only temporary in nature, it necessarily invades, for the time being, the freedom of action of a person or persons who have not been heard and it is, to that extent, a negation of the fundamental precept of audi alteram partem."
The abovementioned remarks were not heeded in this case. Thirdly and most importantly, the relief which was sought and initially obtained was for an interdict. Had the Court a quo confirmed the rule it would have granted final relief. SETLOGELO V SETOGELO 1914 AD 221 was a case in which a final interdict was sought (referred to in the judgment at page 226 as an "absolute" interdict.) Innes J.A. {as he then was) said this at page 227.
"The requisi-tes to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended and the absence of similar protection by ordinary remedy."
A final (mandatory) interdict could not be granted in the present case because the appellant did not have a clear right and there was nothing to
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prevent it from suing in the ordinary course for the car allowance. In SETLOGELO's case (supra) the distinction is drawn at {page 227) between a final interdict and a temporary interdict.
In the case of a temporary interdict what must be shown is -
a prima facie case though open to some doubt
a well grounded apprehension of irreparable harm if the interim relief is not granted.
that the balance of convenience favours the granting of the interim interdict and
that the applicant has no other satisfactory remedy (see LAWSA REISSUE Vol. 11 paragraph 316. )
In dealing with the last requirement the following is stated in paragraph 320:-
"Fourth requisite: no alternative remedy. The fourth requisite for the granting of an interim order is the absence of another
adequate remedy......."
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Whether the remedy is adequate will be a matter for the discretion of the Court but a claim for a sum of money is clearly an adequate remedy.
The rule nisi should never have been granted and could not have been confirmed. For these reasons the application for condonation must be refused and the appeal must be struck off the roll. Mr. Mosito correctly conceded that if there were no prospects of success on appeal the application for condonation must fail. (See also in this regard TLALI SERING vs REX LLR 1991-1996 (Volume 2 page 1462).
There are three other matters to which it is necessary to refer. The first is the fine which was imposed upon counsel for failing to put up heads of argument. It was made ex post facto in the reasons for judgment and without having heard the counsel concerned. But it was not an order against the appellant and I do not think that we have any jurisdiction in this appeal by the appellant to deal with this matter, whatever we may think of the order.
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The second matter to which I should refer is the intemperate and inappropriate nature of some of the language used in the replying
affidavits. For example Mr. MATLOSA in dealing with the respondent's case, refers to some of the contentions as being "nonsense",
"nonsensical"-, and "absurd"; goes so far as to say in reply to the affidavit of Mr. MOLETSANE, that the latter
intends "to take this Honourable Court for a ride"; and later alleges that the appellant's lawyers
"must be punished..... for their misbehaviour" - an
allegation quite without foundation. In paragraph 10 of the said affidavit there is a reference to respondent's showing a further
"ugly contemptuous face" by saying that they "could only pay if their lawyers advised them to pay" . The impropriety
of the language used and lack of realism of the arguments advanced, is clearly illustrated in a passage such as paragraph 13 of Mr. Matlosa's affidavit in reply to the answering affidavit of ANNE 'MASEFINELA MPHUTHING. She deposed that the University simply did not have money available. Prospects of obtaining more were poor. The World Bank was withholding funding because the University budget had increased by 38% in
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circumstances where a ceiling limit of 12% was stipulated. It had however reacted positively "since the University has withdrawn
the car allowance from the 1997/1998 budget and promised to release the development funds" intended for the further development of the University "but would make a final decision later if the need arises".
In the paragraph referred to, Mr. MATLOSA says: "Deponent is blowing hot and cold here. The issue that Council has withdrawn the car allowance for the 1997/1998 budget is irrelevant and nonsensical. The deponent seems to think that this Honourable Court will be scarred (sic) by hearing that there is some animal called World Bank watching this Court. World Bank or no World Bank, the respondent should not be allowed to violate its contracts because some third party called World Bank is watching these proceedings whatever nonsense the World Bank and respondent are concocting between themselves. It is high time that deponent and her World Bank should be aware that this Honourable Court is not a World
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Bank Court, but the High Court of Lesotho. World Bank will dictate to politicians and not this Honourable Court."
I do not know who drew the affidavits but I regard the use of such language as scandalous which is deserving of the strictest censure. It has no place in court proceedings for it is wholly inappropriate to the dignity of the Court.
I come, finally to the determination of the scale of costs which would be appropriate in this matter. The court gave notice to counsel, prior to the hearing, that it wished to hear argument on the question as to whether the costs in this court should not be on the scale as between attorney and client. The court has power to award attorney and client costs even where (as here) there is no express prayer for it (FEIN vs RABINONWITZ 1933 CPD 289 at p 292; GENN vs GENN 1948 (4) SA 430 (c) at p 432) Mr. WOKER for the-respondent impliedly accepted that the appropriate order was an order for attorney and client costs, and awards of such costs are used by the court to mark its
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disapproval of some conduct which should be frowned upon (see KOETSIER vs S.A. COUNCIL OF CAPE TOWN AND REGIONAL PLANNERS 1987 (4) SA 735 (w) at p 744I) .
Such an order of costs of appeal will only be ordered in very special or exceptional circumstances (see HEROLD vs SINCLAIR and Others 1954 (2) SA 531 (A) at p 537 C-E and the cases there cited).
In my view the cumulative effect of what follows provides the justification for such an order. Firstly, the procedure adopted by the appellant represents an abuse of the process of the court. I refer to it rushing to court on an allegedly urgent application, proceeding ex parte knowing full well that the matter would be opposed and that a dispute of fact was bound to arise on the papers,- failing to comply with Rule 8 (22) (b) , and not suing for a sum of money but claiming an interdict where it had no clear right and had another adequate remedy. Moreover, before the return day the appellant launched contempt proceedings designed to harass the respondent and its Vice Chancellor.
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Secondly, as I have observed earlier, the language in some of the affidavits filed on behalf of the appellant is scandalous deserving of the strictest censure. In these circumstances costs on the attorney and client scale is the appropriate order.
The following order is granted:-
The application for condonation is refused and the appeal is struck off the Roll;
The appellant is ordered to pay the costs of the application for condonation and the costs of appeal on the scale as between attorney
and client.
(signed):
R. N.LEON
JUDGE OF APPEAL
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I AGREE (signed):
L. VAN DEN HEEVER
C.E.L. BECK ACTING
Delivered at Maseru on the 16th day April 1999
For Appellant: Mr. Mosito
For Respondent: Mr. Woker
