CIV/APN/2B9/86

IN THE
HIGH COURT OF LESOTHO

In the
Application of

SEISA
NQOJANE ................ Applicant

and

THE
NATIONAL UNIVERSITY

OF
LESOTHO................... Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on on the 30th October,
1987.__________

On 5th
September, 1986 the Applicant herein filed with the Registrar of this
Court a notice of motion in which he sought against
the Respondent,
on order in the following terms

"1. Directing the Respondent to show cause why the purported
summary dismissal and/or termination of Applicant's appoint­ment

with respondent by respondent shall not be reviewed and set aside,

2. Directing
   the Respondent to reinstate applicant in his position as Senior Cost
   Accountant with effect from the 9th December, 1984,
   which applicant
   held prior to his purported dismissal and/or termination of his
   employment,

   
   

3. Directing
   the Respondent to pay applicant arrears of salary with effect from
   9th November, 1984, plus interest at the rate of
   11% per annum with
   effect from the insti­tution of these proceedings to the date of
   payment.

   
   

OR
ALTERNATIVELY

4. Directing
   Respondent to pay to applicant damages arising out of the wrongful
   and unlawful dismissal and/or termination of the
   appointment of
   applicant calculated at the rate of MB,058 per annum with effect
   from the 9th November, 1985 until the age of
   retirement of applicant
   at the age of sixty-five (65) years including all increments and

   
   

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terminal benefits to which applicant would have been entitled, but
for the purported dismissal of applicant.

4. Directing
   the Respondent to pay the costs of this application.

   
   

5. Granting
   the applicant such further and/or alternative relief as this
   Honourable court may deem meet."

   
   

In terms
of the notice of motion, the Respondent was required to intimate the
intention to oppose this application within seven
(7) days of service
of process in these proceedings. On 16th September, 1986 the papers
were served on the Respondent who did not,
however, file notice of
intention to oppose. On 2Oth October, 1986, the application was moved
before Kheola, A.C.J. who by default
granted the order in terms of
prayers 1,2,3 and 5 of the notice of motion. By consent of the
parties, I, however, allowed application
for rescision on 29th April,
1987 when the Respondent was ordered to file the notice of intention
to oppose and pay costs. The
Opposing papers were duly filed.

Briefly
stated and in as far as it is material the facts disclosed by the
affidavits are that on 1st July, 1975 the applicant was
employed on
one year's probation as Assistant Cost Accountant by the Respondent
University or its predecessor, the University of
Botswana, Lesotho
and Swaziland. He was, therefore a member of the non-academic staff
of the Respondent university and answerable
to the bursar. On
satisfactory completion of his period of probation, the applicant was
confirmed on permanent and pensionable
establishment. On 22nd
October, 1979 the applicant's post of Assistant Cost Accountant was
upgraded to that of Senior Cost Accountant.

On 31st
March, 1981, the applicant was transferred on temporary basis, to the
Refectory as Acting Refectory Manager, the position
he held until
17th September, 1982. According to applicant, he then proceeded on
study leave. When he returned from study leave
on 3rd January, 1983,
he was informed that his position had become redundant. He was then
advised by the Senior Assistant Registrar
(Appointments), one
W.M.Buku to proceed on

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"unrecorded
paid leave" until the question of assigning him to some other
duties had been decided. He complied and continued
to draw full
salary for the remainder of 1983 though not doing any work for the
Respondent.

The
Respondent's version as to what happened when the applicant's
temporary appointment as acting Refactory Manager came to an end
is
slightly different. According to Mokhele Rantsie Likate, the
Registrar, who deposed to the answering affidavit on behalf of
the
Respondent University the post of the applicant did not become
redundant whilst he was temporarily serving at the Refectory.
This
was confirmed by W.M. Buku who also filed an answering affidavit in
which he denied that he ever advised the applicant to
proceed on
"unrecorded paid leave".

It is to
be observed, however, that in his replying affidavit the applicant
attached annexure "0" a copy of a report dated
22nd
November, 1984 on his appointment. According to annexure "O"
when in 1982 the applicant reverted from the Refectory
to his
substantive post in the bursary he did "find that his position
had become redundant" Assuming the correctness
of annexure "O"
it would appear to me that although both Mr. Likate and Mr. Buku
denied it, the applicant was correct
in his averment that when in
1982 he reverted from the Refectory to his substantive post in the
bursary ho found that his position
had become redundant.

According
to annexure "O" the applicant then proceeded on leave,
which was calculated at 91 days, to prepare for the comple­tion

of his accounting studies. However, in March, 1983, the Respondent
received from the Centre for accounting studies applicant's
report in
which it was said he had been declared ineligible to sit for the
examination of the centre for two years with effect
from 12th
January, 1983, the reason being that the applicant had been in breach
of the examination rules at the December 1982 sitting.
It would
appear that following receipt of the report from the Centre of
accounting studies, the auditors visited the campus to
check on the
books of the Respondent university. The auditors' report revealed
that the applicant had been negligent in his accounting
duties - a
fact which is denied by the applicant. However, according to the
Respondent advice was sought from the auditors who
recommended an
option of early retirement rather than disciplinary action.

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On 17th
January, 1984, the Respondent accordingly wrote annexure "G"
a letter by which it was pointed out to the applicant
that because of
the report from the centre of accounting studies it was impossible to
assign him any duties which required trust
and no department was
prepared to employ his services. It was suggested, therefore, that
the applicant should tender his resignation
before the 31st January,
1984. In reply the applicant addressed annexure "I" a
letter dated 25th January, 1984 - to the
Respondent and stated that
he refused to resign. The Respondent then decided to institute
discipline proceedings and accordingly
referred the matter to the
Standing Staff Discipline Committee. On Z6th July, 1984, the Standing
Staff Discipline Committee of
the Respondent university issued
annexure "J" by which the applicant was summoned to appear
personally before the committee
to answer two charges laid against
him by the university. Annexure "J" clearly stated that the
hearing was to take place
in the committee room at 10.00 a.m. On 2nd
August, 1984. The allegations contained in the charges against the
applicant were framed
in the following terms

"(a) you were not performing the duties assigned to you by the
Bursar satisfactorily and you were negligent and careless in

main­taining the books of account. The report of the auditors
confirm it.

2. You
   were in breach of the examination rules of the Lesotho Institute of
   accountants at at the December, 1982 Examinations".

   
   

It is
worth noting that annexure "J" notified the appli­cant
that failure to obey the summons rendered him liable
for a summary
trial and punishment. Notwithstanding the notice, the applicant
decided not to attend the hearing of the Standing
Staff Discipline
Committee. Instead he wrote to the Respondent annexure "K"
a letter of 30th July, 1984 which reads,
in part

"Please convey the following reply to the Discipline Committee
and all other committees up to council. I wart to point out
as
follows

1. I
   have no knowledge of the allegations.

   
   

2. The
   spirit of the document is un­founded, defamatory and malicious
   to me.

   
   

On the basis of the above, I do not want to waste the university
council's time you are, however, free to to make your decision,
on
thebbasis of which I will respond."

5

The
applicant having refused to appear before it the Standing Staff
Discipline Committee sat on the arranged date to deliberate
on his
case which was decided against him in his absence. The decision was
placed before the non-Academic Staff Appointment Committee
which on
27th August, 1984 noted with concern the appli­cant's refusal to
appear before the Standing Staff Discipline Committee,
the auditor's
report on his work and his report from the centre for accounting
studies. In the light of all this, the non-Academic
Staff Appointment
Committee reported and recommended to council termination of
applicant's contract of employment with immediate
effect and payment
of cash in lieu of notice. Council accepted the recommendantion made
by the non-Academic Staff Appointment Committee
and the applicant was
by annexure "L", the letter of 9th November, 1984, notified
of the decision to terminate his contract
of employment with the
Respondent university and requested to vacate the house which he
occupied on the campus.

It would
appear that the applicant did not vacate the house as requested in
annexure "L" and the Respondent university
had to institute
against him ejectment proceedings before the Maseru Magistrate's
court. Whilst the proceedings were still pending,
the applicant noted
appeal to council against his dismissal. However, before council
could dispose of the appeal,the applicant
hes now approached the High
Court with the present application in which he moves the court for an
order as aforesaid.

It has
been argued before me that in the first place the applicant was not
afforded a hearing prior to his dismissal. Secondly the
statute made
by the Respondent gave to council appellate powers over its own
decision. For these reasons applicant's dismissal
was a violation of
two rules of natural justice viz. audi alteram partem and nemo delict
esse judex in propria cause.

It must
be remembered that the applicant was invited to appear before the
Standing Staff Discipline Committee to answer disciplinary
charges
laid against him. The Standing Staff Discipline Committee is a
sub-committee established by the non- Academic Staff Appointment

Committee under powers vested in it by Statute 25(k). Its function is
to hear discipline cases brought against staff members of
the
respondent university. Notwithstanding the in­vitation extended
to him by the lawfully established sub-committee,

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the
applicant refused/neglected to appear before the sub-committee which
then had no alternative but to proceed in his absence.
That being so,
the applicant cannot in my opinion, be allowed to turn round and say
prior to his dismissal he was not afforded
the opportunity to be
heard and for that reason his dismissal was a violation of audi
alteram pertem rule.

As regard
the second leg of argument, it is worth noting that by an act of
Parliament viz. S.36(1) and (3) of the National University

(amendment) Act, 1965 council is empowered to make statutes and
ordinances. Under paragraph 13 of Statute 28 it is provided

"13. Subject to section 13(a) of the Act, where in the opinion
of the council there has been good and sufficient cause, the
council
shall have power to dismiss a member of staff, or to terminate his
employment with or without notice, provided that he
shall have the
right to appeal in person and state his case__before the council,
giving grounds for the appeal." (My underlining).

I have
underscored the proviso to the above cited paragraph of Statute 28 to
indicate my view that there can be no doubt that it
is by a legal
instrument made pursuant to an act of Parliament that appeal against
the decision of council dismissing a member
of staff lies to council
itself. The function of this court is to apply the law as it stands
and not to criticise it. In the light
of the proviso to paragraph 13
of Statute 28 there is, therefore, no merit in the argument that
applicant's dismissal by council
was wrong in as much as the appeal
against it lied to council itself.

Finally I
wish to point out that where, in an Institution like the University,
provision is made for settling disputes the parties
must first
exhaust the means made available to them for settling disputes before
approaching the courts of law. In the present
case the applicant
should not have approached this court, before council had disposed of
his appeal. The application has, therefore,
been prematurely brought
before this court.

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From the
foregoing it is obvious that the view that I take is that this
application ought not to succeed and it is accordingly dismissed
with
costs,

B.K.
MOLAI

JUDGE.

30th
October, 1967.

For
Applicant Mr. Matsau

For
Respondent Mr. Mphutlane.