CIV/APN/203/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

KOATSA
KOATSA Applicant

v.

NUL
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice J.L. Kheola on the 16th day of April, 1986.

In this
application the applicant is seeking an order in the following terms:

1. "Directing
   the respondent to show cause why the purported dismissal and or
   termination of applicant's appointment with respondent
   by the
   respondent shall not be reviewed and set aside.
   

   
   

2. Directing
   the respondent to re-instate applicant in his position as Security
   Guard of respondent with effect from the 9th November,
   1983.

   
   

3. Directing
   the respondent to pay applicant arrears of salary with effect from
   the 9th November, 1983, plus interest at the rate
   of 22 per cent per
   annum with effect from the institution of these proceedings; or
   alternatively.

   
   

4. Directing
   Respondent to pay to applicant damages arising out of the wrongful
   and unlawful dismissal or termination of the appointment
   of
   applicant calculated at the rate of per month with effect from the
   9th November, 1983 until the the age of retirement of applicant
   at
   the age of sixty-five (65) years;

   
   

5. Directing
   the respondent to pay the costs of this application.

   
   

6. Granting
   applicant such further and/or alternative relief as this Honourable
   Court may deem meet."

   
   

The facts
of this case ana common cause and may be summarized as follows:-

1. On
   the 27th November, 1975 the applicant was appointed by

   
   

the respondent to the permanent and pensionable establishment as a
security guard.

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2. The
   appointment was subject to completion of a proba­tionary period
   of one year with effect from the 1st January, 1976. The
   appointment
   was confirmed on the 10th July, 1977.

   
   

3. In
   terms of clause 4 of the contract of service the applicant could
   resign his appointment and the respondent could terminate
   such
   appointment by giving one calendar month's notice, in either case
   without assigning any reason therefor.

   
   

4. On
   the 2nd September, 1983 the applicant appeared before the
   Non-Academic Staff Discipline Committee on a charge of having
   assaulted
   a certain Mrs. Motsieloa who was then a registered student
   of the respondent but who stayed off campus.

   
   

5. Having
   heard the evidence of both Mrs. Motsieloa and the applicant and read
   some written reports made by some officials of the
   respondent, the
   Non-Academic Staff Dis­cipline Committee Found the Applicant
   guilty as charged. The applicant was given a
   very strong and last
   warning as punishment in terms of Ordinance No.11, 4.6 of the
   respondent.

   
   

6. On
   the 4th November, 1983 the Council of the respondent terminated
   applicant's appointment with immediate effect after it had

   considered the report of the Non-Academic Staff Appointments
   Committee and its Staff Discipline Committee. The applicant was

   given one month's pay in lieu of notice and some other terminal
   benefits.

   
   

7. On
   the 22nd November, 1983 the applicant noted an appeal against the
   decision of the Council to dismiss him. The appeal was heard
   on the
   15th Juno, 1984 and the Council decided to call for full
   documentation with regard to the cose of Mrs. Motsieloa.

   
   

8. On
   the 12th October, 1984 the respondent's Council again met and
   received full documentation of Mrs. Motsieloa's case and confirmed

   applicant's dismissal.

   
   

The
applicant is now asking the Court to review the decision of the
Council and to set it aside as being unlawful, null and void,
of no
legal force and effect on a number of grounds. The first ground is
that once his appointment had been confirmed it was not
competent for
respondent to terminate such appointment by giving him one month's
notice or payment of one month's salary in lieu
thereof otherwise
than in compliance with the provisions of section 13 (2) (a) of the
National University Act No.10 of 1976, read
with Statute 28 (13) of
the respondent. There is altogether no

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substance
in this ground. Section 13 (2) (a) gives the council power to dismiss
any member of staff who has engaged in any conduct
rendering him
unfit to hold his appointment. I am of the view that assault of a
student of the university by a security guard of
the university is
conduct envisaged by section 13 (2) (a). Statute 28 (13) is not
relevant to these proceedings because it deals
with members of
Non-Acadamic Staff who are not citizens of Lesotho. The applicant is
a citizen of Lesotho.

The
appointment of the applicant was governed by not only the National
University Act of 1976, the Statute and the Ordinances but
by the
Regulations governing the appointment and dismissal of staff which
were annexed to applicants letter of first appointment.
Under the
heading: Duration of Contracts at page 4 (c) (11) the contract is
determinable by the employer on not less than one month's
notice (see
annexure "J.M.P. 2" pagu 4 (d) and appendix D at page 4 (c)
(11),

The
second ground is that to the extent that the termination of his
employment purported to have been done in accordance with the

provisions of the Act, the Statute and the Ordinances such
termination was an improper exorcise of the discretion reposed in the

respondent in that no good and sufficient cause existed for such
termination as the Non-Academic Staff Appointment Committee had
no
power to recommend ter-ruination of his appointment for lack of
jurisdiction in matters of discipline. The only Committee with
such
competence, the Non-Academic Staff Discipline Committee had only
imposed a punishment of a strong and last warning. Mr. Mphutlane,
for
the applicant further submitted that the decision of the respondent's
Non-Academic staff Discipline Committee was binding on
the Council
and that the latter had no power to impose another sentence of
dismissal of the applicant. The point that I wish to
clarify is that
the Council is the supreme governing body of the respondent. It meets
at regular intervals but some of its members
are not residents of the
Roma campus. When it meets at Roma

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campus it
considers a number of matters concerning the university including
reports by bodies created by the Act and Statutes as
well as the
Ordinances. The Non-Academic Staff Appointment Committee is one of
such bodies (Statute 25 (1) ). The Non-Academic
Staff Dis­cipline
Committee is appointed by the Non-Academic Staff Appointments
Committee (Ordinance 11, 4.1).

It is not
correct that the Non-Academic Staff Appointment's Committee
recommended to the Council that the applicant be dismissed.
There is
no evidence in the papers before me that such a recommendation was
made. What appears to be the position is that the Non-Academic
Staff
Appoint­ments Committee made its report that a member of staff
had bean found guilty of assault and given a strong and
last warning.
That report had to be made to the Council and the Staff Appointments
Committee is the appropriate body to make such
report because it was
a matter concerning a member of staff. The Non-Academic Staff
Discipline Committee makes its reports to the
Staff Appointments
Committee by which it is appointed. It does not directly report to
the Council. The Non-Academic Staff Appointments
Committee was
exercising its rights under Statute 25. Even if it made a '
recommendation that the applicant be dismissed that would
not be
ultra vires because he who is given power to recommend appointments
of staff is presumed to have the power to recommend
the dismissal.
However, there is no evidence that a recommendation for dismissal was
made by the staff Appointments Committee.
The Council considered the
matter and decided that the applicant had to be dismissed. There is
no suggestion that the audi alteram
partem rule was not followed. The
applicant was given a chance to argue his case before the Council but
failed to persuade them
that the dismissal was unfounded. The Council
even called for full documentation of the case in which the applicant
had been involved
and confirmed the dismissal.

Although
the respondent was not required by the terms of the contract of
service between itself and the applicant to give the reason
for the

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termination
of the contract of service, in fairness to the applicant the reason
was given. The respondent is therefore bound to
show that good a
sufficient cause existed for termination of the contract. The job of
a security officer is not only to look after
the property of the
university but also to guard the welfare of the students. A security
guard who assaults a student is guilty
of a very serious breach of
discipline and it may be regarded as a good and sufficient cause for
a dismissal. I am of the view
that the respondent's Council was
justified to dismiss the applicant on the basis that he had been
convicted of assault of Mrs.
Motsieloa. It was also not the first
time that the applicant had been found guilty of assault; in the case
of assault on Miss Seqojane
the applicant was found guilty by the
Staff Discipline Committee and the Staff Appointments Committee
sentenced him to a six months'
suspension from work. This decision
was reversed because the Non-Academic Staff Appointments Committee
had no powers to deal with
the matter.

The case
of assault of Miss Seqojane was dismissed on technical grounds and
not on the ground that there had been no assault. The
Council was
well aware of this when the case of Mrs. Motsieloa came before them.
I do not think that the Council had no power to
dismiss the applicant
simply because a certain committee had imposed a lighter sentence.
The power to dismiss a member of the staff
of the respondent is
reposed in the Council of the respondent. And in exercising this
power the Council must show good and sufficient
cause. As 1 have
stated earlier in this judgment a conviction of assault of a student
by a security guard is a sufficient cause.
The assault is alleged to
have been of a very indecent nature in which a man dragged a naked
woman out of the shower curtain and
beat her up. The mure fact that
no injuries were found on the body of Mrs. Motsieloa does not
necessarily mean that the indecent
assault never took place.

The third
ground is that the staff Discipline Committee acted on insufficient
and hoarsay evidence. I shall first deal with the
so called

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hearsay
evidence. The first one is a report by the Dean of Student Affairs to
the Chief Security Guard in which she informs the
Chief Security that
Mrs. Motsieloa has made a report to her that the applicant had
assaulted her. She made a suggestion that the
appli­cant be given
a chance to say what he knows about the allegation. This report is of
no evidential value and cannot bo
regarded as hearsay evidence. The
second one is a memorandum from the security officer to S.A.R.C.
(Appts). The Security Officer
states that Mrs. Motsieloa made a
report to him and he suggested that she must take her complaint to a
court of law because at
the relevant time the applicant was not on
duty but on a sick leave. He refused to make any preliminary
investigation of the matter.
This memorandum is not evidence that the
applicant assaulted the complainant in the case. The fact that the
applicant was on leave
is neither here nor there because the
applicant never raised it at any stage before the Staff Discipline
Committee, the Council
nor before this Court.

The
submission that there was insufficient evidence before the Staff
Discipline Committee on which it found the applicant guilty
is
untenable. It was submitted that the only admissible evidence in the
case was the word of the complainant against that of the
applicant
and that such evidence was not even properly recorded. I must at once
emphasise that the Non-Academic Staff Discipline
Committee is not a
court of record like our courts of law. The members of the Committee
hear oral evidence and minutes are recorded.
These are the minutes
upon which the Council relied. I have read them and found them to be
fair notes of what transpired in that
meeting.

I agree
that the evidence before the Committee was the word of the
complainant against that of the applicant. I do not find anything

wrong with that. I have had cases before me in which the only
evidence for the Crown was that of the complainant as against that
of
the accused in some of those cases I convicted the accused because
our law provides that a

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conviction
can be sustained on the evidence of a single, credible and competent
witness. The question of credibility and demeanour
in general is very
decisive in a case based on the evidence of a single and credible
witness. The Staff Discipline Committee must
have taken into account
not only the words of the parties but also the demeanour of the
witnesses. I cannot upset their finding
on that fact unless they are
shown to have acted wrongly.

It was
also argued that as the acts complained of are acts or behaviour
which are regarded as criminal offence under the laws of
Lesotho,
they had to be reported to the Registrar and to the Police for action
by the courts. (Ordinance 11, 4.3). There is no
doubt that assault is
a criminal offence under the laws of this country but it can also be
regarded as a disorderly conduct (Ordinance
11, 4.2) for which the
respondent was entitled to take a disciplinary action. It seems to me
that dragging a naked woman out of
the shower was not only an
indecent conduct but was also a very dis­orderly conduct. The
applicant had no right to enter into
the ladys' bathroom when he was
well aware that the complainant was having a bath.

For the
reasons stated above the application is dismissed with costs to the
respondent.

J.L.
KHEOLA

JUDGE.

16th
April, 1986.

For
Applicant - Mr. Mphutlane

For
Respondent - Mr. Matsau.