THE LABOUR COURT OF LESOTHO
NO LC 101/00
THE MATTER OF:
NATIONAL UNIVERSITY OF LESOTHO RESPONDENT
is a lecturer at the respondent university. He launched these
proceedings on the 24th
August 2000 seeking relief as follows:
That the respondent
be ordered to pay him (applicant) Forty-Seven Thousand and Ninety
That respondent be
directed to pay applicants biannual gratuity as and when it falls
respondent to pay interest at the rate of 18.5% per annum from
October 1998 to date of payment.
matter was heard on Tuesday 18/06/02 and Monday 1st
July 2002. Only one witness testified on each side. The applicant
himself testified in support of his claim.
evidence was briefly that he was first employed by the respondent in
1993. In terms of his contract of employment Annexure
the bundle of documents handed by applicant (ID1) his
appointment was on a permanent and pensionable terms.
In 1996 the
Lesotho University Teachers and Researchers Union (LUTARU) entered
into negotiations with the University with a
view, inter alia, to
vary and improve the terms of employment of its members. The
applicant was a member of LUTARU and held the
position of Secretary
in the unions executive committee. A deal was struck whereby
LUTARU and the University agreed on a set
of benefits which would
apply to LUTARUs members which would also from part of the
contracts of employment of the members concerned.
On the 1st
October 1996 the Registrar of the University published a circular
notice, the contents of which are best reproduced in full. The
notice read as follows:
UNIVERSITY OF LESOTHO
TEACHERS, RESEARCHERS, DOCUMENTALISTS AND SENIOR LIBRARY STAFF.
OF THE ACADEMIC STAFF (TEACHERS, RESEARCHERS, SENIOR LIBRARY STAFF
AND DOCUMENTALISTS) WHO ARE OPTING TO TAKE THE NEW TERMS
CONDITIONS OF SERVICE PROPOSED BY LUTARU, AND APPORVED BY COUNCIL ARE
THEIR OPTION WITHIN OCTOBER 1996 BY SIGNING THE ENCLOSED CONTRACT.
A COPY OF THE ORIGINAL CONTRACT.
TWO COPIES INCLUDING THE ORIGINAL CONTRACT TO THE REGISTRARS
OFFICE (APPOINTMENTS) WITHIN OCTOBER, 1996.
ORDER TO FACILITATE RECEIPT OF THE CAR ALLOWANCES IN OCTOBER THEIR
SIGNED CONTRACTS MUST HAVE BEEN SUBMITTED BY 8TH
OCTOBER, 1996 AT THE LATEST.
PAYMENT MUST ONLY BE EFFECTED FOR THOSE WHO WILL HAVE SIGNED WITHIN
SIGNED CONTRACTS RECEIVED BY THE APPOINTMENTS OFFICE AFTER 31ST
OCTOBER, 1996 WILL TAKE EFFECT FROM THE DATE OF THEIR RECEIPT.
ADDRESSEES ARE INVITED TO A MEETING TO BE HELD AT THE NETHERLANDS
HALL ON THURSDAY 3RD
OCTOBER 1996 AT 10.00 A.M. AT WHICH THE DOCUMENT WILL BE PRESENTED
AND CLARIFICATION ON RELATED MATTERS CAN BE PROVIDED.
facilitate this exercise new contracts of service were drawn by the
respondent (Annexure MM3 of ID1). In terms of
contracts Clause 1.4(c) thereof, members of staff had to choose
between two forms of terminal benefits namely; a non-contributory
provident fund at the rate of 25% of basic salary payable in lump sum
at the termination of employment. Alternatively a member
for gratuity at a rate of 25% of basic salary at the end of every
October 1996 the applicant duly exercised his option in accordance
opted for payment of gratuity at the end of every twenty-four months.
He testified that he deposited the original plus an additional
with the office of the Registrar as stipulated in Annexure MM2.
This new contract entailed that he was no longer permanent
pensionable, but now permanent and gratuiable the applicant
years down, the applicant submitted his claim for gratuity in terms
of the new contract. The letter of claim is MM4 and
October 1998. Not only did the University fail to respond, it also
did not honour the claim. It is applicants evidence that
contract to pay him gratuity every two years exist between him and
the University and the latter must comply with it. He referred
his evidence to the case of Senior University Staff Union .v.
National University of Lesotho CIV/APN/422/96 (unreported) where
applicant union was seeking to have the terms of the new contract
extended to its members. He said that in that case the University
said under oath that a valid contract existed but it was applicable
only to members of LUTARU and the High Court confirmed that
respondent adduced the eidence of the Registrar Mr. Maimela Hlalele,
who confirmed the evidence of the applicant regarding the
negotiations which culminated in the publication of MM2. He
also confirmed the decision in CIV/APN/422/96, but said there
another High Court decision which later contradicted the SUSU
decision and held that the new contracts were invalid. He averred
that as a result of that contradiction the conclusion of the new
contracts in accordance with MM2 was aborted. It was his
evidence that although the applicant had signed the contract in
accordance with MM2 the respondent for its part did not sign
and for that matter the so-called new contract does not exist in
applicants personal file.
arguments Mr. Phafane for the applicant argued that the issue that
falls to be determined is whether the University entered into
contracts with eligible staff pursuant to MM6. He contended
that the answer to this question must be in the affirmative
the University admitted as much in affidavits in CIV/APN/422/96. Mr.
Molete for the respondent contended that judgment
CIV/APN/422/96 proceedings must not be taken as evidence in this case
because the learned judge in that case did not hear
which this court has heard. He said, clearly from the evidence no
contract of the kind being sought to be enforced
by these proceedings
existed between the parties. The process towards the conclusion of
the new contracts started but stopped
midway he submitted.
to MM2 the issue of the terms of the new contracts had already
been approved by council, the supreme governing body
University. What remained therefore was for them to be implemented
in a form of a contract between the University and those
members of staff who would opt for the new terms. The University
duly produced a new contract which encompassed the new
Registrar who is admittedly the right person to do so duly issued the
guideline for the implementation of the new contracts
in the form of
annexure MM2. Applicant duly followed the guidelines and
signed the contract on the 7th
October 1996. Upon signature by the applicant the contract was valid
and binding on the parties because Clause 2 of that contract
These terms and
conditions of service became operative from the first of July 1996.
High Court in CIV/APN/422/96 found as much at pp2-3 of the typed
judgment of Ramodibedi J. Even though the issue in contention
him related to car allowance, it was however an issue arising out of
the terms of the same contract this court is seized
with in casu. In
the SUSU case the Clause in issue was Clause 13(D) while in casu the
relevant Clause is Clause 14(C). No evidence
was adduced which can
lead us to a different conclusion from that reached by the High Court
in respect of the validity of the contract
between applicant and the
respondent. Accordingly, Mr. Moletes contention that this court
should not take into account the
findings of the High Court on the
existence or otherwise of the contract cannot succeed.
was contended that there is another judgment of the High Court which
contradicted Ramodibedi Js finding in CIV/APN/422/96.
that was so, that would not lead us to a different finding if the
facts still remained as they are namely, that according
to Clause 2
of the contract it(the contract) became operative on the first July
1996. It is significant however, that this so-called
contradicted that of Ramodibedi J could not be availed. Mr. Hlalele
said the decision was not reduced to writing.
But he could not even
avail us with the case number or the judges notes showing the
conflicting decision. We are of the view
that no such decision
existed. Even if it did, not enough evidential material was put
before us to prove its existence.
was contended that on the strength of that decision the conclusion of
the new contracts was aborted. This is clearly a misconceived
submission, because according to exhibit MM2 persons opting for
the new contract had to sign the contract, retain a copy
the original and a copy to the Registrar. This the applicant did
thereby concluding a binding contract between himself
respondent retrospectively from the 1st
July 1996. Any subsequent decision could not disrupt conclusion of
the contract because it was already concluded. At best it
resulted in the University seeking to rescind the contract, but as
far as we are aware it did not do so.
was further argued that there was no valid contract in the form of
Annexure MM3 because the University did not sign and
there is no copy of that contract in applicants file. The
presence and non-presence of the contract in applicants
file is a phenomenon which cannot be blamed on the applicant. Once
the applicant complied with the guidelines in annexure
submitted the original of the signed contract to the Registrar, he
had discharged his obligations. The safe keeping
of the records was
then the responsibility of the respondent through their Registrar.
Its disappearance is therefore respondents
regards the signing by the University it may well be true that they
did not sign. The issue however, is that annexure MM2
guidelines), did not make the respondents signature of the
contract a prerequisite to its enforcement. According to MM2
the prerequisite was a members signature of the contract and
depositing of the original and a copy with the Registrar. Indeed
MM3 like its precusor MM1, does not have a space for the
Universitys signature. In both the old and the new contract
signature of the employee and that of a witness and returning the
signed original to the respondent seem to be the requisite
the conclusion of a valid contract. All these the applicant did.
the premises the answer to the question whether the University
entered into new contracts pursuant to MM2 must be answered
the affirmative. The applicant is clearly one of such persons who
opted for the terms of the new contract. Upon his signing
contract it became a binding agreement between him and the University
and it will continue to bind the parties until it is
or lawfully rescinded as the case may be. Accordingly, we grant
applicants prayers as follows:
respondent shall pay the applicant Forty-Seven Thousand and
Ninety-Four Maluti as gratuity due for the period 1996-1998.
shall pay applicants biannual gratuity for the subsequent periods
as and when it falls due.
pay interest on the overdue amounts at the rate of 18.5% from the
date that they were due to the date of payment.
Costs hereof are
awarded to the applicant.
DONE AT MASERU THIS 25TH DAY OF JULY, 2002.
APPLICANT : MR PHAFANE
RESPONDENT: MR MOLETE
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