CIV/APN/234/84
IN THE HIGH COURT OF LESOTHO
In the Application of
TRISTE PATRICIA MOKOENA Applicant
v
NATIONAL UNIVERSITY OF LESOTHO Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice M.P. Mofokeng on the 14th day of January, 1985
This is an application in which the Applicant requested this Court a Rule Nisi calling against the Respondent to show cause why
The decision of the Respondent not to renew the contract of the Applicant at the National University of Lesotho shall not be reviewed and set aside,
The contract of the applicant with the Respondent shall not be declared valid for four years from 13th October 1984 to 12th October 1988.
the Respondent shall not pay the costs of this application,
the applicant shall not be granted further and/or alternative relief, if necessary
The matter is opposed
It is common cause that the applicant was employed
by the Respondent, initially as an Assistant Librarian,
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for a period of two years from the 13th October 1978 to 12th October 1980 Certain documents were agreed upon in lieu of a Contract (Annexure "B"). Subsequently, and in terms of Annexure "B" the Applicant was offered a Contract by the Respondent as a Senior Assistant Librarian This is the Contract which was due to expire on the 12th October 1984.
On the 11th January 1984 the Respondent wrote Annexure "D" to the Applicant. It is important that the contents of this letter be spelt out in full as the greater part of the argument hinges on its meaning It reads
"Mrs T Mokoena
Extension of Appointment
Please refer to your terms and conditions of appointment at the National University of Lesotho. You will, presumably, be aware that your present contract with the University is scheduled to end in October 1984.
In order to facilitate consideration and decisions concerning the extension of your appointment, I should be grateful if you could
indicate to me whether or not you wish to be offered an extension. (My underlining)
Yours sincerely
Xxxx
W M BUKU ASSISTANT REGISTRAR (APPOINTMENTS)"
To this letter the Applicant replied (per Annexure "N") as follows
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" The Registrar. (Appointments)
NUL.
ROMA.
Dear Sir,
I wish to be offered an extension when my present contract with the University expires, IF THE UNIVERSITY STILL REQUIRES MY SERVICES, (My
underlining)
Yours faithfully,
T.P MOKOENA (Mrs T.P. Mokoena)
Dated 26th January, 1984."
On the 29th June 1984 the Secretary of a body styled Academic Staff Appointments Committee (hereinafter referred to as "A.S.A.C ") wrote a letter (Annexure "E") to the Applicant informing her that her contract would not be renewed beyond the existing contract This ASAC is established in terms of Statute 21 in accordance with the provisions of section 36(1) of the National
University Act 1976 After receipt of Annexure "E", there followed a lot of correspondence into which we need not venture.
Perhaps it will be better to pause here and refer briefly to the provisions of the National University Act 1976 as amplified by various statutes and Ordinances
A.S.A.C. is established in terms of provisions of statute 21. It is a joint committee of the Council of the National University and the Senate with the following powers and duties, in part
" 1 (a) .....................
(b) .........................
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(c) to recommend the extension or non-renewal of contracts of members of the Academic Staff."
It is thus a body which initially deals with all matters pertaining to extensions or non-renewals of officers' contracts and then make its recommendations Whether A.S A.C. in the present matter acted within the scope of its mandate is a question which will be dealt with at a later stage in this judgment. Suffice it to say that in order to perform its powers and duties properly A.S.A.C. invokes the provisions of statute 22(2) which state that it shall invite the Heads of Academic Departments to meetings in order to present their recommendations. The Librarian is the head of a department. The significance of this will be apparent at a latter stage when the principle of audi alteram partem is referred to
The question of extension and renewal of the Officer's contract is dealt with in terms of the provisions of Ordinance 11. They provide that the Registrar shall remind the officer of the expiry date of the contract seven (7) months before such date and inform the officer whether the contract is open for renewal If the officer wishes to extend or renew his contract, he shall not later than six (6) months before the expiry of his contract apply for renewal or extension in writing However, if an offer of renewal or extension is to be made, this must be done not later than four (4) months before the expiry of the contract and the officer shall indicate not later than three (3) months before the expiry of his contract whether or not he accepts the offer. (11(2-1)). In this exercise, on his part, the Registrar shall consult the relevant superiors of the officer (11(2.2)) In arriving at
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their decision they shall take into consideration the performance of the officer during his time in office, existing or expected vacancies and localisation policy of the University (11(2.3)). Thereafter, the secretary of the Appointment Committee shall as soon as possible decide on the application. He shall also communicate the decision of the Appointment Committee as soon as possible to the officer as approved by the Council.
In terms of the provisions of statute 24 (25) the Council has the power to dismiss an officer or terminate his employment with or without notice. However, this power is subject to the provisions of section 13(1) of the National University Act 1976, which deals with the various grounds on which an officer may have his appointment terminated. Where the Council has acted in terms of the provisions of statute 24(25) the officer has the right of appeal in person to state his grounds, before the Council, of his appeal. Again, an officer who is given notice of dismissal has the right of appeal to the Chancellor against the decision of the Council Such appeal shall be in writing and made three (3) weeks of the officer's notification of such dismissal However, in the present case the Applicant has not been dismissed nor did she receive any notification of a pending dismissal. I have merely referred to this last form of dismissal because the Applicant has attempted to invoke it in her subsequent dealings with the Respondent More about this later With this prelude I now proceed.
Reduced to simplicity there are two basic contentions by the Applicant They are.
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that A.S.A.C. has no power to have refused to renew or extend the existing contract, and
that Annexure "D" was an offer to renewal of her contract and which offer she accepted. There was, therefore, in existence between herself and the Respondent a valid contract
As to (b) above.
In paragraph 5 of her founding affidavit she puts the matter thus
" By letter dated 11th January 1984 under the hand of the Assistant Registrar (Appointments) the Respondent invited me to
indicate whether or not I wished to be offered a further extension of my contract which was due to terminate in October 1984. I annex here a copy of the said letter marked "D". On the 26th January 1984 I replied affirming my desire to have my contract extended. I refer to clause 8 (iii) of my contract (annexure "B" hereto) and I respectfully submit that Annexure "D" was in fact and in law an offer by the Respondent to extend my contract which offer I duly accepted."
Now clause 8(iii) of the terms of contract (styled Annexure "B") merely states that six months before the expiry of the existing contract the applicant may request an extension or may be given an extension of her contract by the Respondent The reading of Annexure "D" which it is contended is an offer of renewal of Applicant's contract, is very simple indeed. In its simplicity it, firstly, reminds the Applicant that her contract is due to expire on a certain date and, secondly, that "in order to facilitate
consideration and decisions concerning the extension" of her appointment, could she indicate whether or not she wished to make an offer for an extension of her contract It is quite clear that it was the Applicant who has to make and offer and which offer would then be accepted or rejected by the Respondent. In other words, the Applicant was to have been an offerer and the Respondent an offeree
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There was no such an offer by the Applicant and consequently there could not be any acceptance by the Respondent to a non-existing offer, either expressly or by conduct. The Applicant is not ignorant of the fact that she has to make an offer of renewal or extention of her contract. This is patently clear from her previous dealings with the Respondent. (See Annexures "A" and "C") the format used on those two occasions is quite different from Annexure "D" In Annexures "A" and "C"
respectively there was a clear offer by the Respondent to renew her contract and there was an unqualified acceptance by her. In the event of my being wrong and that Annexure "D" constitutes an offer, the acceptance by the Applicant was not a proper acceptance because it was qualified by the words "IF THE UNIVERSITY STILL REQUIRES MY SERVICES " The acceptance of an offer must be unequivocal in order to create a contract. An offerer is surely entitled to know in clear terms whether the offeree accepts his proposal (Reid Bros (S.A.) Ltd v Fischer Bearing Co Ltd , 1943 A.D. 232) The addition of the words underlined above indicate the reluctance of the offerer to accept the offer by the offeree. The offer would not have been made in the first place if the offerer did not require the services of the offeree. This proviso to the acceptance of an offer is a very strange one indeed. In her previous dealings with the Respondent, her acceptance of the offer, on each occasion," was simple and unqualified. However, the question which Applicant could not answer in this respect is simply What was the nature of the offer? Was it an invitation to make an offer of the extension of the contract? If so, that offer was not accepted because Annexure "N" is not an acceptance to Annexure "D", which is an invitation to the Applicant to apply for the extension of her contract. Moreover, in terms of the University Calendar, it is the applicant who has to offer to have her contract renewed.
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She did not do so and neither is Annexure "N" such an application. Annexure "D" was written as a first step in the procedure laid down by ordinance 11.
On the other hand, if Annexure "D" is an offer by the Respondent, what then is Annexure "N"? Surely the latter is an offer by the applicant to the Respondent to extend her contract. Approaching it from another angle, is Annexure "N" a counter-offer to Annexure "D"? This would be most absurd It is simply an offer by the Applicant to have her contract renewed when it expired It remained with the Respondent whether to accept it or reject it. Indeed, Annexure "N" is described as "......application or her renewal of her contract" It was a mere offer by the Applicant as was said earlier. Moreover, an application may either be accepted or rejected
The conclusion to which I come, therefore, is that Annexure "D" is not an offer to renew the Applicant's contract but a request that she should make an offer for the extension of her contract which offer would then be considered and decisions made thereon by the Respondent.
As to (a), namely that A.S.A.C. has no power to have refused to renew or extend the Applicant's contract This argument must surely be in the alternative to (b) (supra) because Annexure "D" was written on behalf of A S.A.C. It is quite correct that one of the powers conferred on A.S.A.C. by Statute 21(1)(c) is merely to make recommendations regarding extensions and renewals of the officer's contract The letter, Annexure "E", conveys that it was agreed by A.S A.C. not to extend her contract This was a mere intimation to her of the state
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of affairs in accordance with provisions of Ordinance 11 (2.3). However, it becomes clear later in its deliberations that A.S.A.C. never intended to imply that their decision was a final one, for Annexure "T" attached to the Applicant's Replying Affidavit) clearly shows hat the matter concerning Applicant's renewal or non-renewal of
her contract was referred to the University Council. This ocument reveals the wanton use of words by A.S.A.C. It was firstly stated that the Applicant's matter was submitted to the University Council for noting and that the original word "consideration" had been written in error in its report to the University Council. So A.S.A.C. had submitted its recommendation for consideration and the University Council understood it in that light. It is noteworthy that the University Council did not say it disagreed with the recommendation of A.S.A.C. in not renewing or extending Applicant's contract. All that the University Council did was to depricate A.S.A.C. for the delay in the handling of the Applicant's matter. Even if A.S.A.C. was in error in that it thought it had the power to refuse the extension of Applicant's contract, it nevertheless knew that its findings were not final. They still had to be referred to the University Council which had the final say in the matter and this is made quite clear in Annexure "T". If I am wrong in this approach there is yet another which leads to the same conclusion. If, as the Applicant contends, all the acts of A.S A.C. were a nullity, what then happened to her contract? What was placed before the Council by A.S.A C. was ultra vires its powers. There was therefore nothing for the Council to approve or disapprove. There was no recommendation for the Council to consider On the 12th October 1984 the contract existing between the Applicant and Respondent came to an end as the Council did not renew or extend it.
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There were other ancilliary submissions made by the Applicant. She alleged that in considering her non-renewal of the contract A.S.A C. took into consideration certain unfavourable statements made by her seniors (superiors). Ordinarily a body considering an application by a candidate for a position at an institution, such as a University, is entitled to inform itself about the candidate from any source at its disposal In my view, the same principle applies in considering the renewal of an officer's contract. That is precisely why Respondent, in Annexure "D", said it wished to consider Applicant's offer when made It was to consider such information from her superiors. The non-availibility of such unfavourable reports concerning the Applicant, cannot be considered to be a violation of the principle of audi alteram partem. Indeed, A.S.A.C had the right to receive such information from her superiors in terms of the provisions of Ordinance 11(2.2) as explained earlier Respondent is under no obligation to give Applicant reasons why her renewal or extension of her contract was not approved. This is in accordance with the provisions of Statute 24(25). However, no attempt has been made by the Applicant to fully utilise the provisions of this Statute. The many letters she has written were actually complaints directed to 'individual University members but never to the right body
Applicant further submitted that because the Respondent had taken a long time before informing her about the non-extension of her contract, there existed a contract created by this silence. Mere silence cannot be taken as acceptance unless there is some duty on the offeree to speak. (East Asia Co. SA. v Midlands Manufacturing Co (Pty) Ltd , 1954(2) SA. 387). There was no such a duty
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on the Respondent. It has been made clear that the Applicant did not comply with the procedure laid down in Ordinance 11. If an application is made it shall be intimated four months before the expiration of the contract. Applicant assumed (as she puts it) that her contract would be extended. Even when she saw the four (4) months pass, she made no inquiries. In my view, when the period was running out and the four months went by and the usual format not used, she must have anticipated that there were difficulties about her offer to have her contract renewed. That is why at first she merely complained about the shortness of time about the renewal of her contract before it expired.
In the premises the Rule Nisi ought to be discharged with costs and it is hereby so ordered.
JUDGE
14th January, 1985
For the Applicant Dr. W.M. Tsotsi
For the Respondent Mr. K. Sello
