Monyane v Manager - Mafeteng L.E.C. Primary School and Another (CIV/APN 216 of 97) [2000] LSCA 9 (29 March 2000)

C I V / A P N / 2 1 6 / 97 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- J U L IA M O N Y A NE A P P L I C A NT A ND T HE M A N A G ER - M A F E T E NG L. E. C. P R I M A RY S C H O OL 1ST R E S P O N D E NT R E S P O N D E NT E L I ZA S E U T L O A LI 2ND J U D G M E NT Delivered by the Honourable M r s. Justice K. J. G u ni on the 29th day of M a r c h, 2 0 00 In 1 9 76 the applicant in this matter w as appointed as an assistant teacher at M a f e t e ng L e s o t ho Evangelical C h u r ch P r i m a ry S c h o o l, by the 1st r e s p o n d e nt w ho is the manager of the said school. On the 30th March 1981, the applicant and 1st respondent entered into a written contract of employment for a teacher on p e r m a n e nt terms. In terms of the said contract the 1st r e s p o n d e nt agreed to e m p l oy this applicant w ho in turn agreed to serve the 1st r e s p o n d e n t, in the capacity of a head Teacher at that s a me school. After her elevation to the post of a head teacher, this applicant served in that capacity for a n u m b er of years. W h i le serving as a head teacher of that school, the applicant felt a need to enhance her educational qualifications a nd skills. S he applied for and obtained a place at the National University of L e s o t ho (hereafter referred to as N U L) to study for a B . Ed degrees. This w as a o ne a c a d e m ic year degree course, c o m m e n c i ng from 1st A u g u st 1 9 86 and ending in M ay 1987. S he also proceeded to apply for and w as granted a study leave extending for exactly the s a me period as the duration of her degree course. Pursuant to this application for study leave a nd the granting thereof, the parties did enter into an agreement w h e r e by the 1st respondent agreed, first to e m p l oy a temporary substitute at that school instead of this applicant f r om 1st A u g u st 1 9 86 to M ay 1 9 8 7. Secondly he agreed to re-employ the applicant at the e nd of her study leave. On the 25th June 1 9 9 7, this applicant filed this application, seeking an order of court in these terms:- "1. 2. Declaring the 1st Respondent's refusal to let Applicant discharge her functions a nd carry out her duties as H e ad Teacher of M a f e t e ng L. E. C. Primary S c h o ol unlawful; Directing the 1st R e s p o n d e nt to allow Applicant r e s u me her functions a nd duties as H e ad Teacher of M a f e t e ng L. E. C. Primary School in terms of her contract of e m p l o y m e nt dated 31st M a r ch 1 9 8 1; 3. Directing the 1st R e s p o n d e nt to p ay costs hereof. 4. Granting Applicant further and / or alternative relief." There is no specific order sought against the 2nd respondent by the applicant. T he applicant avers in her F o u n d i ng Affidavit (paragraph 3) that the 2nd respondent is cited herein as a party w ho m i g ht be affected by the order sought. In her answering affidavit 2nd respondent avers that she is the head teacher of that school a nd has been the head teacher since 1986. E v en although no exact date is alleged by the 2nd respondent, it is not in dispute that she a s s u m ed the position of the head teacher on 1st A u g u st 1986, w h i ch is the date on w h i ch this applicant c o m m e n c ed her study leave. It has been argued on behalf of this applicant that she k n ew before her departure for study leave that the 2nd respondent is that temporary substitute teacher e m p l o y ed in her place while she proceeded on leave. There appears to be a t wo p r o n g ed attack of the applicant's case by respondents. Firstly, there s e e ms to be a total denial of the contract to re-employ this applicant at the e nd of her study leave. S e c o n d l y, if there w as s u ch a contract to r e - e m p l oy this applicant at the e nd of her study leave, the applicant herself, voluntarily a nd deliberately stepped d o wn f r om the post of the h e ad teacher in favour of the 2nd respondent. By her c o n d u ct o v er the years, the a r g u m e nt on b e h a lf of r e s p o n d e n ts continues, this applicant h ad a c c e p t ed the post of the assistant teacher a nd h ad served as s u ch w i t h o ut a complaint. By so d o i ng s he m a de e v e r y b o dy c o n c e r n ed believe that s he is h a p py with the status q u o. S he c a n n ot n ow be h e a rd to c l a im that the status q uo w h i ch obtained uninterrupted s h o u ld be c h a n g e d. It is d e n i ed that the applicant is b e i ng paid the salary as the h e ad teacher. It is a r g u ed that the applicant is receiving the salary of an a m o u nt equivalent to that of the current h e ad teacher not b e c a u se s he is paid as the h e ad teacher. T he scenario is created by the applicant's acquisition of a higher educational qualifications a nd skills. T he salaries are in fact paid by the L e s o t ho G o v e r n m e nt n ot by the 1st r e s p o n d e n t. It is therefore denied that this applicant is paid by 1st r e s p o n d e nt as the h e ad teacher In order to support the allegation, that this applicant freely a nd voluntarily s t e p p ed d o wn f r om the post of the h e ad teacher in f a v o ur of the 2nd r e s p o n d e n t, the 2nd r e s p o n d e nt alleges further a g r e e m e nt b e t w e en herself a nd this applicant. A c c o r d i ng to 2nd r e s p o n d e nt at the b e g i n n i ng of 1 9 85 the field supervisor of the N a t i o n al T e a c h er Training C o l l e ge visited their school w h e re the offer to e n h a n ce her educational qualifications and skills at the said college w as m a de to this applicant. This w as a five years in-service upgrading course for head teachers. A l t h o u gh that invitation w as directed to this applicant, she turned it d o wn on the g r o u nd that she already has a place at N UL to study for a degree course in o ne year. This applicant allegedly r e c o m m e n d ed to the field supervisor that the 2nd respondent is suitable for that five years in-service training course. T he applicant further e n c o u r a g ed the 2nd respondent, w ho on her o wn appeared uninterested in the furtherance of her education at that stage, to apply. T he appropriate application f o r ms for the five years in-service upgrading course for h ead teachers, h a v i ng b e en left with this applicant by the field supervisors w e re filled in by 2nd respondent. This applicant completed w h e re required the r e c o m m e n d a t i o ns for 2nd respondent's suitability for the intended in-service training. B o th ladies, applicant a nd 2nd respondent approached the 1 st respondent for his approval to be indicated on those f o r ms as the chairman of the school. T he co-operation of the c h a i r m an w as secured on the understanding that it m u st be apparent on the face of the application f o rm that the 2nd respondent - w as a h e ad teacher although she w o u ld only function as such after the departure for N UL of this applicant, in A u g u st 1986. B e c a u se of the veiled conspiracy to misrepresent the 2nd respondent's entry qualification into that five years in-service upgrading course, the applicant d o es not w i sh to be associated with that s c h e m e. S he denies taking part in it. S he denies a ny k n o w l e d ge of such s c h e m e. T he respondents s e em to claim that it w as at that very stage that this applicant voluntarily stepped d o wn from the post of a head teacher in favour of this 2nd respondent. T h e se are m o t i on proceedings. T he averments from w h i ch this episode is gleaned raise m o re questions than answers. T h e re is no proof of the allegations that this applicant acted in the m a n n er that indicated her voluntary abdication f r om the position of the head teacher. It is argued on behalf of this applicant that the failure by respondents to a n n ex those f o r ms allegedly completed by the applicant in that fashion, as proof, that there w as no such act c o m m i t t ed by this applicant. T he failure, by 2nd respondent to a n n ex the d o c u m e nt s h o w i ng her appointment as a head teacher immediately w h en this applicant stepped d o w n, it is argued on behalf of this applicant, that it lends further support, to applicant's denials that she never voluntarily a nd willingly stepped d o wn at a ny time f r om the post of the h e ad teacher, w h i ch she persists is still held by her, although the duties a nd functions of the head teacher are performed by 2nd respondent. T he relevancy of the proof of appointment of 2nd respondent in this matter escapes m e. As I h a ve pointed out earlier o n, there is no court order sought against the 2nd respondent. S he does not h a ve to p r o ve anything at all before this court. T he a g r e e m e nt w h o se t e r m s, this applicant, s e e ks to e n f o r ce w as b e t w e en this applicant a nd 1st r e s p o n d e n t. T h e r e f o re the issues w h i ch m u st be r e s o l v ed by this court in o r d er to d e t e r m i ne the rights a nd obligations of the parties are:- Firstly, is there an a g r e e m e nt b e t w e en the parties as alleged by this applicant? S e c o n d l y, w h at are the t e r ms of s u ch an a g r e e m e n t? Thirdly, h as there b e en the b r e a ch of the t e r ms of s u ch an a g r e e m e n t, a nd by w h i ch o ne of the parties h as the alleged b r e a ch b e en c o m m i t t e d? T he applicant, relies on the t e r ms of the a g r e e m e nt b e t w e en herself a nd 1st r e s p o n d e n t, for the relief s he s e e k s. T h e r e f o re the o n us of p r o v i ng the alleged contract a nd the t e r ms t h e r e of rests u p on this applicant. Mc W i l l i a ms v First C o n s o l i d a t ed H o l d i n gs ( P t y) L td 1 9 82 (2) SA 1 ( A ). T h is applicant h as set o ut the t e r ms of the said contract, in h er F o u n d i ng Affidavit. S he h as s u p p o r t ed t h o se a v e r m e n ts by attaching the actual contract d o c u m e nt [ A n n e x u re 'B'] to the F o u n d i ng Affidavit. V o r s t er v H e r s e l m an 1 9 82 (4) SA 8 5 7 ( 0 ). T he 1st r e s p o n d e nt d o es n ot d e ny his signature on the contract d o c u m e n t. He c l a i ms to h a ve signed o n ly to indicate his c o n s e nt to the g r a n t i ng of s t u dy leave. Paragraph 2 of the agreement, deals only with the obligations undertaken by the 1st respondent. T he very first sentence expresses his consent to e m p l oy a temporary substitute at the school instead of this applicant f r om 1st A u g u st 1 9 86 to M ay 1987. There is no ambiguity or hidden m e a n i n g. He continued u n d er the very s a me breath to agree to re-employ this applicant at that s a me school at the e nd of her study leave. This is stated in very clear a nd simple terms. T he 1st respondent does not claim that he misread or misunderstood the terms of the provision. He s e e m s, though vaguely, to be claiming that there is yet another contract w h o se terms superceded the terms of the contract he signed. This a v e r m e nt w o u ld necessarily shift the burden of proof on to the respondents to prove the terms of that subsequent contract. 1st respondent associates himself with the story by 2nd respondent of h ow and w hy she enrolled to undergo that in-service upgrading (5) five years course. This applicant denies ever entering in any sort of a g r e e m e nt with respondents as they allege. Their failure to prove the allegation of the existence of a n ew a nd subsequent contract w h i ch superceded the o ne this applicant relies o n, leaves me in no doubt that there w as no such subsequent agreement. T he special conditions, w h i ch 1st respondent claim, they are the factor w h i ch induced h im to sign A n n e x u re 'B' s e em to have existed in the m i n ds of the respondents only. As Mr . Nchulu succinctly puts it. " No provision is m a de in the form for the special conditions explained in 2nd respondent's answering affidavit u p on w h i ch the applicant's study leave w as granted by m e ." This is a circuitous w ay of admitting that they h a ve no proof of their allegations. T he only agreement w h i ch m u st be e x a m i n ed in order to determine the rights a nd obligations of the parties in this matter, is contained in the A n n e x u re ' B' to the F o u n d i ng Affidavit. I am satisfied, that, that is the only a g r e e m e nt w h i ch this court m u st consider as forming the basis of the relationship b e t w e en the parties. T he applicant avers that, she returned to the school, at the e nd of her study leave to resume, as per their agreement, her duties and functions as the head teacher at the school. T he 1st respondent did not h o w e v er allow her to r e s u me her duties and functions as the head teacher. This is denied by respondents. In terms of their agreement this applicant should h a ve r e s u m ed her duties in M ay 1 9 8 7. F r om M ay 1987, this applicant reported to and w as answerable to the 2nd respondent w ho performed the duties and functions of the head teacher. W e e k s, m o n t hs a nd years w e nt by. N o b o dy at the school w as ever given any impression by this applicant that she is the head teacher. It is the applicant's averments that in effect the terms of her e m p l o y m e nt w e re n ow changed. S he w as e m p l o y ed as an assistant teacher, not a head teacher - contrary to the terms of the contract entered into by her and 1st respondent on the 30th March 1981. - [ Annexure 'A' to the Founding Affidavit]. T he curious situation h as therefore b e en created in this school. T h e re are t wo h e ad teachers in the post of o n e. O ne is p e r f o r m i ng the duties a nd functions of the h e ad teacher a nd accordingly r e n u m e r a t ed as such. T he other is p e r f o r m i ng the duties a nd functions of an assistant teacher but in t e r ms of the contract of her a p p o i n t m e nt she is the h e ad teacher. T h is situation h as obtained for a period of t w e l ve years. T h is applicant alleges that s he requested rectification a nd to be p ut in c h a r ge of the school first on her return f r om study leave, w h i ch is in M ay 1 9 8 7. 1st r e s p o n d e nt refused. T he applicant accepted the status q u o. In 1 9 89 - t wo years later, s he again a s k ed the 1st respondent to rectify the situation. S he received no r e s p o n se f r om the school m a n a g e m e n t. All these allegations are denied. T he applicant h as n ot p r o v ed that she t o ok a ny action to enforce her rights, in t e r ms of the said contract. S he c h a n g ed the t e r ms of her e m p l o y m e nt herself by not then a nd there, challenging the action of the 1st respondent if he did refuse to let her r e s u me h er duties. A c c o r d i ng to the 1 st respondent, this applicant n e v er d e m a n d ed to be r e - e m p l o y ed as the h e ad teacher on her return f r om study leave. T h is w as so, b e c a u se applicant h ad stepped d o wn f r om that post voluntary before she p r o c e e d ed on her study leave. T h is applicant h as not b e en able to p r o ve that s u ch a d e m a nd to be a l l o w ed to r e s u me her duties as a h e ad teacher w as m a de at all on her return f r om study leave. In her affidavits although there is a claim that a d e m a nd w as m a de there is no p r o of of the alleged d e m a nd for re-instatement to a position of a h e ad teacher. A g a in in her p a p er this applicant s h o ws that for a period of at least t wo years s he accepted the position of an assistant teacher without a question. T he applicant h ad undertaken to r e s u me her post at that school at the e nd of her study leave. S he returned f r om her leave in M ay 1 9 8 7. S he did not r e s u me her post. W ho is in breach of the t e r ms of the a g r e e m e n t? If she w as n ot a l l o w ed to r e s u me h er post on her return w hy wait for this long to take action if s he is n ot in a g r e e m e nt w i th the c h a n g ed status? By her c o n d u ct the applicant accepted the position of an assistant teacher. H er query or challenge so belatedly is clearly a c h a n ge of m i nd on her part. T he applicant c an c h a n ge her m i nd as often a nd after a ny length of period as s he pleases, as long as her c h a n ge of m i nd d o es not n e ed the cooperation a nd c o n s e nt of others. O n ce s he accepted to be r e - e m p l o y ed as an assistant teacher, be it for t wo years or less [if I accept that s he started to question the status q uo in 1 9 8 9, w h i ch is denied by 1st respondent] she m u st r e m a in an assistant teacher until another a g r e e m e nt is reached b e t w e en her a nd those c o n c e r n e d. S he h a s, by her conduct, m a de t h em acquire certain rights w h i ch m u st n ow be respected. T h is application m u st fail . It is d i s m i s s ed w i th costs. K. J. G U NI J U D GE 29th M a r c h, 2 0 00 For Applicant: M r. M a h ao For R e s p o n d e n t: M r. Sello