CIV/T/469/99

IN THE HIGH COURT OF LESOTHO

In the matter between

LIBE MOLUPE PLAINTIFF

AND

MANAGEMENT COMMITTEE 1st DEFENDANT

OF
THE LESOTHO EVANGELICAL

CHURCH

LESOTHO EVANGELICAL CHURCH 2^nd DEFENDANT

JUDGEMENT

Delivered by the Honourable Mrs. Justice K.J. Guni On
the 3rd Day of December, 2001

The plaintiff in this case is a teacher at KUENENG
PRIMARY SCHOOL. In his declaration at paragraph 5 he claims that at
all material
time he was employed as a head-teacher. There is no
allegation that there was any form of contract of employment on which
plaintiff
seeks to rely. There

are no particulars as to whether or not such employment
was temporary or permanent. Be that as it may.

It is in the common cause that the school where
plaintiff is presently a teacher, is under the Management Committee,
- the 1^st defendant herein. There was a disciplinary
action instituted by the Management Committee against this plaintiff
in 1994. The plaintiff
was found guilty of misconduct in the
disciplinary proceeding instituted against him by the 1^st
defendant. The punishment meted out to him was a demotion from the
position of the headteacher to that of ordinary teacher.

In paragraph 6 of his declaration, plaintiff alleges
that the 1^st defendant malaciously instituted false
disciplinary proceedings. There is some kind of impropriety that is
being levelled against
the 1^st defendant in this
allegation. According to the defendants' plea, the said disciplinary
proceeding were instituted in terms of the
law. Before 1995 the Law
in force which governed the disciplinary proceedings in respect of
the

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teachers, was THE TEACHING SERVICE Regulations 1986.
These regulations were promulgated in terms of the EDUCATION ORDER
N0.32 of 1971.
This order was still in force in 1994. It was only
repealled in 1995, this was immediately after the plaintiff herein
was charged
and found guilty of misconduct in the disciplinary
proceedings instituted against him by the 1^st defendant in
1994.

It also appears to be in the common cause that plaintiff
successfully appealled against both the finding of misconduct on his
part
and the penalty of demotion to a lower rank. The said appeal was
heard on 16/06/98. The appeal was upheld on 17/06/98 before an
adjudicator
who was appointed in terms of Section 70 (1) of the new
act. i.e. THE EDUCATION ACT NO. 10 OF 1995.

In November, 2000 the plaintiff instituted this present
action against the defendants and claims:

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1. 
   Reinstatement as a headteacher of Koeneng
   Primary
   school;

   
   

2. 
   Payment of an amount of M43,848.oo being the
   difference
   between basic teacher and headteacher
   salary;

   
   

3. 
   Interest on the amount claimed at the rate of 15%
   per
   annum;

   
   

4. 
   Cost of suit;

   
   

5. 
   Further and/or alternative relief.

   
   

On behalf of the defendants it is specially pleaded that
in terms of THE EDUCATION ACT N0.10 of 1995 as Amended, the decision
of the
adjudicator is subject to confirmation by the Teaching Service
Commission. This impression stems from the choice of words used in
describing the functions of the adjudicator in terms of section
71-EDUCATION ACT NO. 10 of 1995. The said section provides as
follows:-

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"The functions of the adjudicator are to hear and
decide on cases referred to him for advice by the Commission"
(My underlining).
It seems an adjudicator acts in advisory capacity
to the Commission. This lends credibility to Mr. Sello's argument
that the decision
of the adjudicator is not final and justiciable.

Another issue raised on behalf of the defendants is the
question relating to the employer of the plaintiff. Although he
claims to
be employed by the defendants, plaintiff did not allege and
prove any form of contract of employment between himself and the
defendants.
Forster V. Herselman 1982 (4) SA 857 (6).

There are two types of employers for teachers in this
Kingdom. There are teachers who are hired and paid by schools
privately. In
the main, the majority of teachers in the service are
appointed by the Teaching Service

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Commission. Section 42 points directly at the power of
the commission in this respect. It reads as follows;

(1) The power to appoint a teacher and to
demote,
transfer, discipline or remove
from the office such a teacher
shall
vest in the Commission".

(2) Subsection (1) shall not apply to a
Teacher whose
salary is not paid by
the government".

(My underlining).

From the reading of this section it is clear that it is
very material for the plaintiff to allege and prove that he is
employed by
the defendants and received his salary from them. He is
claiming payment of his salary and the arrears. This claim can only
be made
against the employer who pays the salary being claimed. The
plaintiff in our case does not allege that the defendants pay his
salary.
He does not claim and prove that the defendants withheld the
salary arrears now being claimed.

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In support of his claim for an enhanced payment of the
salary of the headteacher, plaintiff has annexed copies of his
payslips. On
the face of those payslips the plaintiff is paid his
salary by the Government. His demotion in terms of the law should
have been
done by the Commission. It can be reversed by the
Commission only.

The appeal was heard in terms of the provisions of THE
EDUCATION ACT N0.10 OF 1995. The plaintiff did not raise the query
then before
the adjudicator that the law applicable is the repealled
EDUCATION ORDER N0.32 OF 1971. He cannot turn around now and claim
that
even though the appeal on which he basis his claim, was heard
and decided in terms of the new EDUCATION Act, that same Act must not
apply now.

The defendants do not pay the plaintiff's salary. They
are not in a position to pay the arrears claimed. In this

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circumstances the special plea must succeed. The
plaintiff's claim is therefore dismissed with costs.

K.J.GUNI
JUDGE

For Applicant : T. HLAOLI & CO.

For Defendants: : MOHALEROE, SELLO & CO.,

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