CIV/APN/216/97

IN THE HIGH COURT OF LESOTHO
In the matter
between:-

JULIA MONYANE APPLICANT

AND

THE MANAGER - MAFETENG L.E.C. PRIMARY SCHOOL 1ST
RESPONDENT
ELIZA SEUTLOALI 2ND RESPONDENT

JUDGMENT

Delivered by the Honourable Mrs. Justice K.J. Guni on
the 29th day of March, 2000

In 1976 the applicant in this matter was appointed as an
assistant teacher at Mafeteng Lesotho Evangelical Church Primary
School,
by the 1st respondent who is the manager of the said school.
On the 30th March 1981, the applicant and 1st respondent entered into
a written contract of employment for a teacher on permanent terms. In
terms of the said contract the 1st respondent agreed to employ
this
applicant who in turn agreed to serve the 1st respondent, in the
capacity of a

2
head Teacher at that same school.

After her elevation to the post of a head teacher, this
applicant served in that capacity for a number of years. While
serving as
a head teacher of that school, the applicant felt a need
to enhance her educational qualifications and skills. She applied for
and
obtained a place at the National University of Lesotho (hereafter
referred to as NUL) to study for a B.Ed degrees. This was a one
academic year degree course, commencing from 1st August 1986 and
ending in May 1987. She also proceeded to apply for and was granted
a
study leave extending for exactly the same period as the duration of
her degree course.

Pursuant to this application for study leave and the
granting thereof, the parties did enter into an agreement whereby the
1st respondent
agreed, first to employ a temporary substitute at that
school instead of this applicant from 1st August 1986 to May 1987.
Secondly
he agreed to re-employ the applicant at the end of her study
leave.

On the 25th June 1997, this applicant filed this
application, seeking an order of court in these terms:-

3

"1. Declaring the 1st Respondent's refusal to let
Applicant discharge her functions and carry out her duties as Head
Teacher
of Mafeteng L.E.C. Primary School unlawful;

2. 
   Directing the 1^st Respondent to allow
   Applicant resume her
   functions and duties as Head Teacher of
   Mafeteng L.E.C.
   Primary School in terms of her contract of
   employment dated
   31st March 1981;

   
   

3. 
   Directing the 1st Respondent to pay costs hereof.

   
   

4. 
   Granting Applicant further and / or alternative
   relief."

   
   

There is no specific order sought against the 2nd
respondent by the applicant. The applicant avers in her Founding
Affidavit (paragraph
3) that the 2nd respondent is cited herein as a
party who might be affected by the order sought. In her answering
affidavit 2nd respondent
avers that she is the head teacher of that
school and has been the head teacher since 1986. Even although no
exact date is alleged
by the 2nd respondent, it is not in dispute
that she assumed the position of the head teacher on 1st August 1986,
which is the date
on which this applicant commenced her study leave.
It has been argued on behalf of this applicant that she knew before
her departure
for study leave that the 2nd respondent is that
temporary substitute teacher employed in her place while she
proceeded on leave.

There appears to be a two pronged attack of the
applicant's case by respondents. Firstly, there seems to be a total
denial of the
contract to re-employ this applicant

4
at the end of her study leave. Secondly, if there
was such a contract to re-employ this applicant at the end of her
study leave, the
applicant herself, voluntarily and deliberately
stepped down from the post of the head teacher in favour of the 2nd
respondent. By
her conduct over the years, the argument on behalf of
respondents continues, this applicant had accepted the post of the
assistant
teacher and had served as such without a complaint. By so
doing she made everybody concerned believe that she is happy with the
status
quo. She cannot now be heard to claim that the status quo
which obtained uninterrupted should be changed. It is denied that the
applicant
is being paid the salary as the head teacher. It is argued
that the applicant is receiving the salary of an amount equivalent to
that of the current head teacher not because she is paid as the head
teacher. The scenario is created by the applicant's acquisition
of a
higher educational qualifications and skills. The salaries are in
fact paid by the Lesotho Government not by the 1st respondent.
It is
therefore denied that this applicant is paid by 1st respondent as the
head teacher

In order to support the allegation, that this applicant
freely and voluntarily stepped down from the post of the head teacher
in favour
of the 2nd respondent, the 2nd respondent alleges further
agreement between herself and this applicant. According to 2nd
respondent
at the beginning of 1985 the field supervisor of the
National Teacher Training College visited their school where the
offer to enhance
her

5 educational qualifications and skills at the said
college was made to this applicant. This was a five years in-service
upgrading
course for head teachers. Although that invitation was
directed to this applicant, she turned it down on the ground that she
already
has a place at NUL to study for a degree course in one year.
This applicant allegedly recommended to the field supervisor that the
2nd respondent is suitable for that five years in-service training
course. The applicant further encouraged the 2nd respondent, who
on
her own appeared uninterested in the furtherance of her education at
that stage, to apply. The appropriate application forms for
the five
years in-service upgrading course for head teachers, having been left
with this applicant by the field supervisors were
filled in by 2nd
respondent. This applicant completed where required the
recommendations for 2nd respondent's suitability for the
intended
in-service training. Both ladies, applicant and 2nd respondent
approached the 1 st respondent for his approval to be indicated
on
those forms as the chairman of the school. The co-operation of the
chairman was secured on the understanding that it must be apparent
on
the face of the application form that the 2nd respondent - was a head
teacher although she would only function as such after the
departure
for NUL of this applicant, in August 1986. Because of the veiled
conspiracy to misrepresent the 2nd respondent's entry
qualification
into that five years in-service upgrading course, the applicant does
not wish to be associated with that scheme. She
denies taking part
in it. She denies any knowledge of such

6 scheme. The respondents seem to claim that it was at
that very stage that this

applicant voluntarily stepped down from the post of a
head teacher in favour of this 2nd respondent.

These are motion proceedings. The averments from which
this episode is gleaned raise more questions than answers. There is
no proof
of the allegations that this applicant acted in the manner
that indicated her voluntary abdication from the position of the head
teacher. It is argued on behalf of this applicant that the failure by
respondents to annex those forms allegedly completed by the
applicant
in that fashion, as proof, that there was no such act committed by
this applicant. The failure, by 2nd respondent to annex
the document
showing her appointment as a head teacher immediately when this
applicant stepped down, it is argued on behalf of this
applicant,
that it lends further support, to applicant's denials that she never
voluntarily and willingly stepped down at any time
from the post of
the head teacher, which she persists is still held by her, although
the duties and functions of the head teacher
are performed by 2nd
respondent.

The relevancy of the proof of appointment of 2nd
respondent in this matter escapes me. As I have pointed out earlier
on, there is
no court order sought against the 2nd respondent. She
does not have to prove anything at all before this court. The

7 agreement whose terms, this applicant, seeks to
enforce was between this applicant and 1st respondent. Therefore the
issues which
must be resolved by this court in order to determine the
rights and obligations of the parties are:-

Firstly, is there an agreement between the parties as
alleged by this applicant?

Secondly, what are the terms of such an agreement?

Thirdly, has there been the breach of the terms of such
an agreement, and by which one of the parties has the alleged breach
been
committed?

The applicant, relies on the terms of the agreement
between herself and 1st respondent, for the relief she seeks.
Therefore the onus
of proving the alleged contract and the terms
thereof rests upon this applicant. Mc Williams v First Consolidated
Holdings (Pty)
Ltd 1982 (2) SA 1 (A). This applicant has set out

the terms of the said contract, in her Founding
Affidavit. She has supported those averments by attaching the actual
contract document
[Annexure 'B'] to the Founding Affidavit. Vorster v
Herselman 1982 (4) SA 857(0).

The 1^st respondent does not deny his
signature on the contract document. He claims to have signed only to
indicate his consent to the granting
of study leave.

8 Paragraph 2 of the agreement, deals only with the
obligations undertaken by the

1^st respondent. The very first sentence
expresses his consent to employ a temporary substitute at the school
instead of this applicant
from 1st August 1986 to May 1987. There is
no ambiguity or hidden meaning. He continued under the very same
breath to agree to re-employ
this applicant at that same school at
the end of her study leave. This is stated in very clear and simple
terms. The 1st respondent
does not claim that he misread or
misunderstood the terms of the provision. He seems, though vaguely,
to be claiming that there is
yet another contract whose terms
superceded the terms of the contract he signed. This averment would
necessarily shift the burden
of proof on to the respondents to prove
the terms of that subsequent contract. 1st respondent associates
himself with the story by
2nd respondent of how and why she enrolled
to undergo that in-service upgrading (5) five years course. This
applicant denies ever
entering in any sort of agreement with
respondents as they allege. Their failure to prove the allegation of
the existence of a new
and subsequent contract which superceded the
one this applicant relies on, leaves me in no doubt that there was no
such subsequent
agreement. The special conditions, which 1st
respondent claim, they are the factor which induced him to sign
Annexure 'B' seem to
have existed in the minds of the respondents
only. As Mr .Nchulu succinctly puts it. "No provision is made in
the form for the
special conditions explained in 2nd respondent's
answering affidavit upon which the

9 applicant's study leave was granted by me." This
is a circuitous way of admitting

that they have no proof of their allegations.

The only agreement which must be examined in order to
determine the rights and obligations of the parties in this matter,
is contained
in the Annexure 'B' to the Founding Affidavit. I am
satisfied, that, that is the only agreement which this court must
consider as
forming the basis of the relationship between the
parties.

The applicant avers that, she returned to the school, at
the end of her study leave to resume, as per their agreement, her
duties
and functions as the head teacher at the school. The 1st
respondent did not however allow her to resume her duties and
functions
as the head teacher. This is denied by respondents. In
terms of their agreement this applicant should have resumed her
duties in
May 1987. From May 1987, this applicant reported to and was
answerable to the 2nd respondent who performed the duties and
functions
of the head teacher. Weeks, months and years went by.
Nobody at the school was ever given any impression by this applicant
that she
is the head teacher. It is the applicant's averments that in
effect the terms of her employment were now changed. She was employed
as an assistant teacher, not a head teacher - contrary to the terms
of the contract entered into by her and 1st respondent on the
30th
March 1981. - [ Annexure 'A' to the Founding Affidavit].

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The curious situation has therefore been created
in this school. There are two head teachers in the post of one. One
is performing
the duties and functions of the head teacher and
accordingly renumerated as such. The other is performing the duties
and functions
of an assistant teacher but in terms of the contract of
her appointment she is the head teacher. This situation has obtained
for
a period of twelve years. This applicant alleges that she
requested rectification and to be put in charge of the school first
on
her return from study leave, which is in May 1987. 1st respondent
refused. The applicant accepted the status quo. In 1989 - two years
later, she again asked the 1st respondent to rectify the situation.
She received no response from the school management. All these
allegations are denied. The applicant has not proved that she took
any action to enforce her rights, in terms of the said contract.
She
changed the terms of her employment herself by not then and there,
challenging the action of the 1st respondent if he did refuse
to let
her resume her duties.

According to the 1 st respondent, this applicant never
demanded to be re-employed as the head teacher on her return from
study leave.
This was so, because applicant had stepped down from
that post voluntary before she proceeded on her study leave. This
applicant
has not been able to prove that such a demand to be allowed
to resume her duties as a head teacher was made at all on her return
from study leave. In her affidavits although there is a claim that a
demand was made there is

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no proof of the alleged demand for re-instatement
to a position of a head teacher. Again in her paper this applicant
shows that for
a period of at least two years she accepted the
position of an assistant teacher without a question. The applicant
had undertaken
to resume her post at that school at the end of her
study leave. She returned from her leave in May 1987. She did not
resume her
post. Who is in breach of the terms of the agreement? If
she was not allowed to resume her post on her return why wait for
this long
to take action if she is not in agreement with the changed
status? By her conduct the applicant accepted the position of an
assistant
teacher.

Her query or challenge so belatedly is clearly a change
of mind on her part. The

applicant can change her mind as often and after any
length of period as she pleases, as long as her change of mind does
not need
the cooperation and consent of others. Once she accepted to
be re-employed as an assistant teacher, be it for two years or less
[if
I accept that she started to question the status quo in 1989,
which is denied by 1st respondent] she must remain an assistant
teacher
until another agreement is reached between her and those
concerned. She has, by her conduct, made them acquire certain rights
which
must now be respected.

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This application must fail . It is dismissed with costs.

K. J. GUNI
JUDGE

29th March, 2000

For Applicant: Mr. Mahao
For Respondent: Mr. Sello