C. of A. (CIV) No.1 of 1986
IN THE LESOTHO COURT OF APPEAL
In the Appeal of :
JOACHIM MOKOTELI NTEBELE Appellant
vs
NATIONAL UNIVERSITY OF LESOTHO Respondent
HWLD AT MASERU
Coram : Schutz, P.
Mahomed, J.A.
Aaron, J.A.
JUDGMENT
The appellant in this appeal instituted action against the respondent University in the High Court for judgment in the sum of R15,944.00.
The appellant's cause of action was based on the allegation that he had entered into a contract of employment with the respondent in 1974 which had not been lawfully terminated by the respondent, although the Roma Campus Registrar of the respondent had purported to do so on the 25th of June, 1975.
It is common cause that with effect from the first of October 1974, the appellant had in fact been employed by the respondent as Assistant Dean of Student Affairs. The relevant terms of the employment provided as follows:
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"3 Appointments
A member shall be appointed initially for a probationary period of one year. If the appointment is confirmed at the end of that period, it shall be without time limit up to the age of retirement, namely 60 years, provided that anyone over 60 may be employed at the discretion of the Council.
Appointment may be terminated by not less than (for B3 equivalent and higher categories) three months. (for B4 and B4 sec) one month's notice on either side."
The letter from the Roma Campus Registrar, dated 25th June 1975, drew the attention of the appellant to paragraph 3 (b) above and stated that in compliance with this provision, the appellant was being given one month's notice from the 30th June 1975 to the 30th July 1975. A subsequent letter from the Roma Campus Registrar dated 11th July 1975 stated that the period of notice should have been three months and not one month. The appellant was informed that he would, under the circumstances be paid his salary up to the end of September 1975. He was in fact so paid.
The appellant contended before us that these purported notices of termination were invalid because the Roma Campus Registrar had no authority to terminate the respondent's contract of employment. Only the University itself, acting through its Registrar, could do so and a proper notice terminating the contract of employment was essential, he submitted.
In support of these submissions the appellant relied on section 13 (1) (a) of the Employment Act No.22 of 19670 as amended by Act No.14 of 1977 which reads as follows:-
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"13 (1) Every contract, not being a contract for one period of fixed duration nor a contract to perform some specific work or undertake a journey, without reference to time shall be deemed in a case where:-
(a) the contract is to pay wages at a monthly rate ........ determinable by either party at any time on not less than one month's notice".
It is clear from this provision that the need for a notice in terms of Section 13 (1) (a) arises only if the contract concerned is not "a contract for one period of fixed duration nor a contract to perform some specific work or undertake a journey, without reference to time".
This is in accordance with the common law. A contract of employment for a fixed period, ordinarily expires at the end of that period and will be deemed to have terminated then, without any notice, unless there is an agreement between the parties to extend the terms thereof in any particular case.
The contract of employment between the appellant and the respondent was "initially for a probationary period of one year." At the expiry of that year, the employment terminates, without notice, unless "the appointment is confirmed at the end of that period."
There was no evidence whatever before the Court a quo that the appointment was confirmed at all, at or before the end of the initial period of one year. No such impression was ever given to the appellant.
On the contrary, it was made perfectly plain to him that the University did not, for various reasons, wish to perpetuate the employment beyond the initial period of probation.
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No notice was therefore necessary in law to terminate the appellant s contract of employment when it expired at the end of September 1975. It accordingly follows that even if the Roma Campus Registrar was not authorised by the University to give to the Appellant a notice terminating his employment, the obligation of the University to retain the appellant in its employment ceased at the end of September, 1975 in terms of the appellant's conditions of employment.
This conclusion makes it strictly unnecessary for me to consider the submission of Mr. Tampi on behalf of the respondent that the evidence before the Court a quo proved that the Roma Campus Registrar was in fact properly authorised to give the notices he did because the respondent had, since February 1975, transferred to the Lesotho campus administration ail matters relating to the employment of non academic staff. Suffice it is to say, that there is substantial evidence in support of this submission.
Mr. Tampi intimated to the Court that should the appeal be dismissed he would not insist on an order against the appellant for costs of the appeal.
In the result I would make an order dismissing the appeal.
Signed: I..MAHOMED........
I. MAHOMED
Judge of Appeal
I agree Signed: W.P..SCHUTZ.......
W.P. SCHUTZ
President
I agree Signed: S..AARON..........
S. AARON
Delivered at MASERU on the 23rd day of January, 1987.
For the Appellant - In Person
For the University - Mr. Tampi.