C OF A
(CIV) NO. 10 OF 1995
COURT OF APPEAL OF LESOTHO
SECRETARY FOR EDUCATION 2ND APPELLANT
material facts in this case may be briefly stated:
October, 1992, a contract of employment was entered into between the
Ministry of Education of the Government of Lesotho
as employer and
employee. The terms of the said contract require to be quoted in
extenso. They are:
rate of 25 per cent of the said annual remuneration for the purposes
of creating a ratuity fund in lieu of pension, payable
effective termination date of this contract.
parties herein further agree that in addition to the aforementioned
remuneration the Employer shall, for the benefit of the
aside a certain sum of money calculated 8. The Employer shall render
the Employee all such facilities as may be reasonably
enable the Employee to discharge his duties. Being more particular
but without prejudice to the generality of the foregoing,
"1. The Employer herein offers to the Employee employment which
shall require the latter to undertake and discharge certain
obligations for and on behalf of the former.
Employee herein accepts the offer referred to in paragraph one
parties herein mutually describe the nature of the aforementioned
employment as follows:
the position of Educational Facilities Coordinator for assistance
in implementation of the Education Sector Development
Educational Facilities Coordinator will report to the Deputy
the terms of reference attached as Annex A.
Employee shall at all times endeavour to undertake and discharge the
aforementioned duties with due diligence.
as may be herein provided this agreement of employment shall be
subject mutatis mutandis to the provisions of the 1969 Public
parties herein mutually agree that the Employee shall be paid a net
salary of Government of Lesotho salary Grade 15, - notch
M37,908 per annum and shall progress through the scale according to
Government of Lesotho regulations.
parties herein further agree that in addition to the benefit of the
Employer shall,for the benefit of the Employee ,put aside
sum of money calculated at the rate of 25 per cent of the said
annual remuneration of the purposes of creating a gratuity
lieu of pension ,payable at the effective termination date of this
employer shall render the Employee all such facilities as may be
reasonably required to enable the Employee to discharge
duties.Being more particular but without prejudice to the generality
of the foregoing,the following shall be provided
accommodation when available with standard furniture at maximum
Government pool house rental with
the said amount deducted from his monthly salary;
for transport and other related expenses from place of origin of
personal effects at the commencement of
assignment and for the
transport and related expenses of transporting persona! effects
back to the place of origin at the completion
of said assignment,
the . obligation of the Employer for such transport and related
expenses shall be limited to the Employee,
wife and children below
the age of 18 years;
for subsistence allowances while on duty outside Maseru, such
allowance to be calculated at normal Government rates.
validity of this contract shall extend over a minimum period of two
years commencing on October 19, 1992. Thereafter, the
be extended by mutual agreement between the Employer and Employee.
Employee shall be entitled to a paid annual leave of 24 working
Whenever the provisions of this agreement of Employment shall Appear
wanting and/or ambiguous, the parties herein shall seek
a consensus and the same shall form part of this agreement of
Employment upon it being reduced into writing and appended
Termination of contract by both parties shall be subject to three
months notice or payment of salary in lieu of three months
respondent by virtue of the office which he held pursuant to the
above-mentioned contract of employment had the use of a motor
X6612 the property of the Government. On 20th May, 1993 a collision
occurred involving vehicle X6612 whilst being driven
by respondent. A
pedestrian lost his life in the collision. On 2nd June, 1993
respondent was called on to "make a written
report in regard to
the accident". The vehicle had been submitted secretly to motor
dealers for repairs. On 13th September,
1993 the appellant, the
Principal Secretary for Education, wrote to respondent stating:
"on the 2nd June, 1993 you were specifically requested per a
memo..... to report in relation to matters stated hereabove (i.e.
damage to X6612)... You failed, neglected and/or refused to make the
required report. On the 2nd July, 1993 .... a reminder
to you to make
was made .... You responded to the reminder on the 7th July, 1993 by
a memo... wherein you apparently disputed that there was
Evidence of the fact that you never showed any interest to bring to
light the true circumstances surrounding the sending of the
motor vehicle for repairs to the garage as aforesaid, is your
hand-written report, hereto annexed for your perusal and marked
The tone of this report leaves much to be desired.
The manner in which you have handled this matter, as already shown
above, amounts to the following acts of misconduct: insubordination,
failing, disobeying, disregarding and making wilful or negligent
default in carrying out an instruction given by a person having
authority to do so and knowingly making false statement that the
motor vehicle had not been involved in an accident, despite evidence
to the contrary, as shown above.
However, before I can take a decision on the matter I deem it
appropriate to grant you an opportunity, as I hereby do; to
your representations, if any, in connection with the matter
concerning X.6612 referred to above. Such representations
made in writing and submitted to the office of the Principal
Secretary for Education within
seven days of the receipt of this letter. "
respondent's response to the Principal Secretary's letter is dated
16th September, 1993 and is brief. It reads:
" To my knowledge; I complied with your instruction on the
matter and as a result, I fail to understand how the acts of
arise. Kindly elaborate more on the acts of misconduct.
Finally, you will wish to recall that, in your own words, you said
even if I say I don't know. I wonder as to what has happened
all of a
last-mentioned letter was followed by a letter of dismissal in the
TERMINATION OF YOUR CONTRACT OF EMPLOYMENT
acknowledge receipt of your letter dated 16th September, 1993. I have
carefully considered your response. It is entirely unsatisfactory.
You have not cared to deal with the serious charges levelled against
you concerning the vehicle X6612,
in terms of Clause 11 of the Memorandum of Agreement of Employment I
terminate your employment with effect from 1st October,
will be paid three months salary in lieu of notice."
events outlined above led to an order in the High Court by MONAPATHI
J. declaring the dismissal of the respondent null and void
directing the second appellant to pay the respondent's costs. The
present is an appeal against the said order.
heard extensive argument on both sides. Such argument, in the main,
turned on the question whether the respondent was, by
reason of the
provisions of Clause 11 of the contract of service, deprived of the
protection of having recourse to the disciplinary
him by the Public Service Regulations imported into the service
contract by Clause 5 thereof.
view that I take, the answer to the question referred to in the
preceding paragraph is that the disciplinary procedures referred
do not form part of the agreement. The Public Service Regulations are
excluded in regard to termination (which is a concept
wide enough to
embrace disciplinary procedures) because termination is provided for
in Clauses 9 and 11 of the agreement. Unless
extended, the contract
terminates after effluxion of a two-year period or by three months'
notice by either party or by payment
of salary by the employer in
lieu of three months' notice.
of respondent, the further contention was raised that the maxim audi
alteram partem was not observed by the appellants.
It is firmly
established that this maxim should apply in a case like the present,
i.e. where an employer performing a public function
contract of service and that he is bound to extend to the employee a
fair opportunity to be heard. (cf. Koatsa v.
National University of
Lesotho, unreported C of A/15/86; Administrator Transvaal v. Traub
1989(4) SA 731). That the respondent
in the present case was afforded
such an opportunity cannot be doubted. In the letter of 13th
September, 1993 the respondent was
granted "the opportunity...
to make your representations". This was stated in the clearest
possible terms and, save for
replying "to my knowledge, I
complied with your instruction", the respondent chose not to
answer the allegations clearly
set out in the said letter.
remains to deal with a final issue which arose during argument viz.,
whether Clauses 9 and 11 of the employment agreement are
with each other. Clause 9 admittedly appears to guarantee the
employment for "a minimum period of two years commencing
October 19, 1992" whereas Clause 11 provides for termination
inter alia on payment of 3 months' salary. The two Clauses
entirely consistent but clearly, in my view, Clause 9 should be read
subject to the provisions of Clause 11.
the circumstances set out above, the appeal should succeed and the
following order should be made:
1. The appeal is upheld and the respondent is ordered to pay
appellants costs of appeal
2. The order of the Court a quo is set aside and substituted by the
application is dismissed with costs.
at Maseru this..........day of October, 1995.
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