C of A (CIV) No. 15/2000
MONYANE v CROWN SUMMARY
The appellant sought to be re-instated as Head Teacher at the Mafeteng Lesotho Evangelical Church school after a period of study leave. On her return she had been replaced in that capacity and was appointed, and functioned as an assistant teacher. After a lapse of not less than nine years, she approached the High Court to claim her former status as a Head Teacher at that school. This court, in common with the court below, had no difficulty in concluding that by her conduct she had acquiesced in her change of appointment and had forfeited any right to be re-appointed Head Teacher.
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
JULIA MONYANE APPELLANT
and
THE MANAGER MAFETENG L.E.C.
PRIMARY SCHOOL 1ST RESPONDENT
ELIZA SEUTLOALI 2nd RESPONDENT
Held at Maseru
CORAM: Ramodibedi, JA
Kumleben, JA
Plewman, JA
JUDGMENT
KUMLEBEN, J.A.
The applicant, now the appellant, applied on notice of motion for an order directed at the first respondent to have her reinstated as Head Teacher of the Mafeteng Lesotho Evangelical Primary School (the '"LEC"). The second respondent replaced her and for that reason is
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formally cited as a party in these proceedings. The matter came before Guni J who dismissed the application with costs. This appeal followed.
In reply to the allegations in the founding affidavit the following deponents gave evidence on oath. Rev. Ntsasa who was from 1993 a member of the LEC management and since 1996 its chairman. Mr. Tjela, who was at all times likewise a member of the management and is presently the secretary of the LEC. Rev. Ncholu, who was the chairman of the management of LEC and resided at Mafeteng. He signed the employment contract appointing the applicant as Head Teacher at the LEC, consented to her having leave of absence for study purposes and was present in Mafeteng in the aforesaid official capacity when the applicant resumed her duties at the school. The second respondent explained on oath the circumstances that led to her being appointed Head Teacher and how the applicant on her return took up the position and performed the functions of an assistant teacher. The applicant lodged an answering affidavit.
The following facts are common cause. On 30 March 1981 in
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terms of a written contract the appellant was appointed Head Teacher.
On 23 July 1986 she was granted study leave for a year from August 1986 to May 1987. She was replaced as Head Teacher by the second respondent from the time she left. The latter has been functioning in that capacity ever since. On her return from study leave the applicant functioned as an assistant teacher and has continued to do so.
It is her contention, and the basis for her claim to relief, that she was and is aggrieved at the fact that she was not given her former teaching position and professional status. She thus asserts that she never acquiesced in such change. The question is whether the facts bear this out.
According to her founding affidavit her first move was to write a letter in 1989 to claim reinstatement. This would be some two years after her return. A copy of such letter has not been annexed to her affidavit and receipt of this letter is denied. If it was sent, and was prompted by genuine concern, it is inconceivable that she would not have followed up the matter and insisted upon a response, the first acknowledged
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communication by letter in this regard is dated 24 July 1996 - some 9 years after her return - to which Rev. Ntsasa replied on 23 September 1996. In his letter he points out that she has "kept quiet for about ten years without talking about [her] reinstatement." This is confirmed by the deponent Rev. Ncholu. He was in Mafeteng and was the obvious person for her to convey her complaint orally or in writing. She never did so. Finally the second respondent states that the appellant was given the choice of doing a course intended for Head Teachers or of pursuing her study for a university degree by taking the study leave. She chose the latter and actually recommended that the second respondent should replace her as Head Teacher. The denial of these allegations in her replying evidence cannot hold water for two reasons. The allegations are in line with all the probabilities and, in any event, for the purposes of deciding the matter on affidavits they are to be accepted as correct. (See Plascon Evans Paints (Pty) Ltd v Riebeeck Paints 1984 (3) SA 623 (A) 634-5.)
Thus one must conclude that the appellant agreed to return as an assistant teacher and in the nature of things abandoned her former
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position. Her attempt to put the clock back after some 9 years is belated,
contrived and untenable in law. No authority is needed for the proposition that when a right is abandoned or a particular contractual relationship terminated the status quo ante cannot be restored. The principle volenti non fit inturia, though a delictual defence, can be applied aptly in this case.
Three matters should be mentioned briefly by way of postscripts.
The appellant sought to rely on the fact that on her return she received her former salary. Rev. Ncholu explains that she received a salary as an assistant teacher. But by virtue of her B.Ed degree it was at a higher rate that happened to correspond to that paid to a Head Teacher.
The appellant's contract of employment includes the following provision:
"3. Both parties to this agreement acknowledge that in matters which are not dealt with in this contract, the
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provisions of the Education Order 1971 and the Teaching Service Regulations 1974, as amended from time to time, will apply to this
agreement as though specially set out herein."
Mr. Ntlhoki, who appeared for the appellant, rightly conceded that nothing in the Order or Regulations could be relied upon to advance
his case.
Counsel in argument sought to place some reliance on s 43 of the current legislation, the Education Act 1995. It reads as follows :
"43 The power to employ, promote, demote, transfer, discipline or remove from office a teacher other than a teacher whose salary is paid by the Government shall vest in the relevant Educational Secretary or relevant Supervisor or relevant proprietor."
Assuming, since it is not clear from the papers, that the appellant's salary is paid by the Government and that this section applies to her, it has reference to a unilateral act, the exercise of power, on the part of the employer to employ, promote etc. In this case there was no demotion,
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transfer or removal from office exercised by first respondent. The appellant, as I have said, tacitly and by conduct acquiesced in the change. The appeal is dismissed with costs.
M.E. Kumleben
JUDGE OF APPEAL
I agree
MM. Ramodibedi
C. Plewman
Delivered on12th this day of October 2001.
For the Appellant : Mr. M. Ntlhoki
For the Respondents: Mr. K. Sello
