IN THE LABOUR COURT OF LESOTHO
CASE NO LC 17/01
HELD AT MASERU
IN THE MATTER OF:
LEFU LECHESA APPLICANT
AND
NATIONAL UNIVERSITY OF LESOTHO RESPONDENT
This is a case in which an employee of the University is claiming for payment of acting allowance for the period September 1992 to date. The applicant was employed by the respondent as an Administrative Assistant in September 1988. On the 19th October 1990 he was informed that he had ...been temporarily transferred to the Institute of Southern African Studies with effect
from 22nd October 1990 where you will act in the office of Assistant Registrar. He was further informed that the posting would ...
remain valid until the post of Assistant Registrar which is presently being advertised is filled.
On the 8th September 1992 he was transferred from the Institute of Southern African Studies (ISAS) to the Development and Planning Office (DPO) with effect from 15th September 1992. In his Originating Application the applicant avers that the post of Assistant Registrar in which he was acting was still not filled. In testimony before the court he stated that from the time of that transfer his acting allowance ceased to be paid, meaning he reverted to his post of Administrative Assistant. Asked under cross-examination what he did about it he said, nothing at that time.
The applicant contends that his acting appointment was never terminated. He testified that if it had to be terminated the termination had to be in writing. In arguments Mr. Mosito contended that in any event the applicant was not afforded a hearing and as such, termination of his acting appointment was unfair. He relied on the case of Rakhoboso vs Rakhoboso 1997 1998 LLR LB1. It cannot be that in once breath the applicants acting appointment is still valid because it was not terminated and in another breath the termination was unfair because the applicant was not given a hearing. Both cannot exist side by side.
We entirely agree with Mr. Molete that applicants case is not that his acting appointment has been unfairly terminated. His evidence is clear that he regards his acting appointment as still valid. Regarding the contention that the termination could only be effected
in writing, the court was not shown anything that forms the basis of this proposition. In papers however, the applicant had averred that he was transferred before the post of Assistant Registrar in which he had been acting was filled. It is common cause that the letter of his acting appointment had said the appointment would remain valid until the post in which he was acting had been filled.
The respondents position is that the acting appointment terminated when applicant was transferred to the DPO. This is clearly
presumptuous. However, that position seems to be in direct conflict with respondents own undertaking to the applicant, that the acting appointment would remain valid until the post is filled. But in his testimony under cross-examination, the applicant was asked if he believed that he was transferred from ISAS to DPO with his acting position. His answer was there was no way I could have assumed that I was pulling the acting position of ISAS because after I left it was filled. By his own admission therefore, the applicant no longer has a claim to the ISAS acting appointment because it has been rendered obsolete by the filling of the position against which he had been appointed to act.
Applicant contends that his case is based on the fact that in the office to which he was transferred there was no post of Administrative
Assistant. Instead there were two posts of Assistant Registrars. He avers that the court should find that he has been transferred to the DPO to act in one of the two vacant posts of Assistant Registrar. He however, concedes that there is no letter authorising him to act. He contends that the policy and practice of the respondent is that an individual deployed from one department to another is deployed against an existing position. He was asked by Mr. Molete for the respondent what authority he has to support the proposition that he could only be deployed to the office of DPO as Administrative Assistant if such a position existed in that office. All he could say was that this has always been the practice of the university. This answer is not satisfactory. The applicant needed to do more to substantiate this claim. His mere say so is not sufficient.
The applicant has himself admitted that there is no letter that authorised him to act in the position of Assistant Registrar when he moved to Development and Planning Office. Accordingly, he has no enforceable right either in law or in contract to the acting position he is claiming. Infact a question may be asked why he seeks to be proclaimed as acting as opposed to substantive appointment. It could be that acting is easier to get, hence applicants pursuit of it. It seems to us that what applicant is really trying to enforce here is an interest and not a right. His desire to act in one of the two vacant positions of Assistant Registrar is his interest, which until/and unless he is actually so appointed is not justiciable in the courts of law.
The applicant contended that in any event there is no material difference in the job descriptions of the posts of Administrative Assistant and Assistant Registrar. He attached annexure I which is the job description of the two positions as proof. He averred that even the job contend is exactly the same but when it came to salary the one was paid higher than the other. Mr. Mosito for the applicant referred us to section 5(3) of the Labour Code Order 1992 (the Code) which provides that men and women shall receive equal remuneration for work of equal value. He impressed it on us that the provision should be read with three meanings namely, that it prohibits discrimination between men and women, secondly it prohibits discrimination between men and men lastly, it also prohibits it between women themselves. It was his contention that the distinction between Administrative Assistant and Assistant Registrar promotes discrimination in as much as the two incumbents do the same job but are paid differently.
There is nothing in the Code to support the argument that the section should be given the extended meaning proposed to us by Mr. Mosito. However, section 4(e) of the Code provides that in case of ambiguity provisions of the Code shall be interpreted in such a way as more closely conforms with provisions of conventions adopted by the Conference of the International Labour Organisation. Assuming that there is ambiguity as to the exact meaning of section 5(3), Convention 100 concerning Equal Remuneration for Men and Women workers for Work of Equal Value defines equal remuneration for men and women workers as ...rates of remuneration established without discrimination based on sex. There is no evidence whatsoever that the difference in the salaries of the two positions of Administrative Assistant and Assistant Registrar is based on sex. The argument based on discrimination must therefore fall away. On the basis of these findings the applicants claim falls to be dismissed.
Mr. Molete for the respondent advanced two further defences which must be considered in the alternative. These defences related to estoppel and prescription. He contended that the applicant kept silent about his Administrative Assistants salary being paid without acting allowance for so long that he ought to be estopped from claiming it now. Mr. Mosito on the other hand argued that estoppel cannot be invoked because the respondent has failed to show the mode of representation that let it to believe that the applicant had reverted to his Administrative Assistant position. He argued further that the respondent has not brought evidence to show that the applicant should have reasonably foreseen hat he was misleading the respondent by his inaction.
It is incorrect that the respondent has not shown how the representer made the representation. It was established under cross-examination that the applicants acceptance of his salary without acting allowance from September 1992 until September 1998 was signal to the University that the applicant had reverted to his position and this was all along the understanding of the parties. Clearly, this was representation by silence. Applicants position was that it was wrong for the university to deal with its employees on assumptions on matters such as this. While it may not be ideal administrative approach to assume, the common law, however, entitles the representee to act on the representation by the representer and affords the former all the legal protection where he proves that he acted on the faith of the representation.
On the question of evidence it is true the representee has to prove that he acted on the strength of the representation. In casu no witnesses were called on the side of the respondent. But under cross-examination Mr. Molete grilled the applicant at length on this subject. The applicant conceded that he never acted between September 1992 and August 1993 when he joined government on secondment. He returned in February 1996. He again said nothing until February 1998 when he first raised the issue of his acting allowance. The applicant clearly kept silent for so long that no reasonable person would have thought of anything other than that he had reverted to his position after acting for a brief period as Assistant Registrar. Accordingly we are of the view that this is a fitting case to invoke the defence of estoppel.
On the plea of prescription it is common cause that under the common law a person must take steps to prosecute his claim within a reasonable time of the cause of action arising. Mr. Molete for the respondent submitted that the delay in instituting these proceedings is so unreasonable that by effluxion of time the claim has prescribed. He pointed out that the claim has only been lodged after the lapse of six years. Mr. Mosito contended that prescription must be pleaded to allow the other party to answer, which was not the case in casu. He argued further that there is no provision governing the time frame within which a claim for acting allowance must be brought to court. Furthermore, he argued that the applicant is still occupying the same position in respect of which he is saying he is not being properly remunerated as such prescription cannot apply.
There is ample authority to show that prescription is an exception to all other special pleas which as a rule must be raised in initio litis and be established by evidence in the usual way. Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa 4th Ed. P477 state that;
the defence that the claim has prescribed, although relating to the merits of the action itself, can be raised by means of a special
plea. This plea can be raised at any stage in the proceedings and need not necessarily be taken before litis contestatio.
At p.472 the learned authors state as follows:
it would appear, however, that a peremptory exception, for example prescription, can be raised even after litis contestatio, as can a plea to the courts jurisdiction in status matters.
Clearly therefore, nothing turns on the argument that the plea of prescription was not pleaded.
While conceding that there is no statutory provision governing time limit within which a claim for acting allowance must be presented to court, this is not however a matter that is entirely governed by statute. It is contrary to public policy that a litigant be allowed by the courts to enforce against the other party a right that he has without reason sat idly by for years without taking steps to enforce it. The common law would require that a party acts within a reasonable time to bring his claim to court. It is undoubtedly unreasonable to sit for six years without prosecuting ones claim as has happened in casu. The fact that the applicant is still holding the same position that he claims to have been unfairly treated in six years ago, does not interrupt the running of prescription against him. For this reason we are of the view that even the special plea of prescription is well
taken and it is accordingly upheld. In the premises the application is dismissed with costs.
THUS DONE AT MASERU THIS 7TH DAY OF MARCH, 2001.
L.A LETHOBANE
PRESIDENT
A.T. KOLOBE
MEMBER I AGREE
P.K. LEROTHOLI
FOR APPLICANT : MR MOSITO
FOR RESPONDENT: MR MOLETE
