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

Mahomed,
J.A.

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:

2

"3
Appointments

1. 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.

   
   

2. 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:-

3

"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.

4

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

Judge of Appeal

Delivered
at MASERU on the 23rd day of January, 1987.

For the
Appellant - In Person

For the
University - Mr. Tampi.