Senior University Staff Union v National University of Lesotho (CIV/APN 422 of 96) [1997] LSHC 24 (18 February 1997)

1 CIV/APN/422/96 IN T HE H I GH C O U RT OF L E S O T HO In the matter between S E N I OR U N I V E R S I TY S T A FF U N I ON A P P L I C A NT a nd N A T I O N AL U N I V E R S I TY OF L E S O T HO R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. Justice M M. R a m o d i b e di On 1 8 th d ay of F e b r u a r y, 1 9 9 7. In this m a t t er the A p p l i c a nt s e e ks an urgent relief in the f o rm of declaratory o r d e rs c o u c h ed in the f o l l o w i ng t e r m s: " ( a) D i s p e n s i ng w i th periods of notice required by the rules on the a c c o u nt of u r g e n cy of this m a t t e r; ( b) D e c l a r i ng that the current Senior Administrative Staff of the University are entitled to be p a id the car a l l o w a n ce in t e r ms of the n ew contract w h i ch spells o ut t he a c a d e m ic t e r ms a nd conditions of service; (c) D e c l a r i ng that t he current S e n i or A d m i n i s t r a t i ve Staff of t he U n i v e r s i ty are for all intensive p u r p o s es to be treated in t he s a me m a n n er as all other m e m b e rs of staff w ho sure on a c a d e m ic t e r ms a nd conditions of service. ( d) Directing R e s p o n d e nt to p ay the costs h e r e o f; (e) G r a n t i ng A p p l i c a nt s u ch further a n d / or alternative relief as this H o n o u r a b le C o u rt m ay d e em it fit." A c c o r d i ng to t he p a p e rs before me there a re t wo t y p es of contract of e m p l o y m e nt w h i ch a re the subject m a t t er of the litigation here. T h ey a re t he following: (a) O ne is entitled " N a t i o n al University of L e s o t ho T E R MS OF S E R V I CE F OR A C A D E M IC L I B R A RY A ND S E N I OR A D M I N I S T R A T I VE S T A F F ." Clause 1 of this contract reads thus:- " 1. A U T H O R I T Y: These terms and conditions of service b e c a me operative from 1 July, 1 9 7 7" This contract is Annexture " C" in the papers before me and I shall hereinafter refer to it as "the O ld Contract." (b) T he other contract is entitled " N A T I O N AL U N I V E R S I TY OF L E S O T HO T E R MS OF S E R V I CE F OR A C A D E M IC S T A F F" Clause 2 thereof is to the following effect: " 2. A U T H O R I TY T h e se terms and conditions of service b e c a me operative from the First of July 1 9 9 6 ." This contract is A n n e x t u r e " B" in the p a p e rs before me a nd I shall hereinafter refer to it as "the N ew Contract." I should m e n t i on at this stage that the N ew C o n t r a ct w as b r o u g ht a b o ut as a result of negotiations of a U n i on called L e s o t ho University T e a c h e rs a nd R e s e a r c h e rs U n i on ( L U T A R U) w i th the University C o u n c i l. T he b o ne of contention as far as this application is c o n c e r n ed is that unlike the old contract, the N ew Contract contains a provision for C ar A l l o w a n ce in t e r ms of clause 13 D thereof w h i ch reads as follows:- " 13 D. C AR A L L O W A N CE A m e m b er shall be entitled to 10 percent of basic salary as car allowance. M e m b e rs shall n o r m a l ly be e x p e c t ed to u se their vehicles for official a nd a p p r o v ed p u r p o s es w i t h o ut m i l e a ge claim within a radius of 35 k m ." T he w o rd " m e m b e r" referred to in the a b o ve m e n t i o n ed clause o b v i o u s ly m e a ns a m e m b er of the A c a d e m ic Staff as defined in C l a u se 1 of the N ew Contract. T h at clause reads thus:- " 1. D E F I N I T I ON T he t e rm a c a d e m ic shall d e n o te all m e m b e rs of staff in the T e a c h i n g, R e s e a r c h, E x t e n s i on a nd Senior Library C a d r e ." Clauses 4 a nd 5 of the N ew Contract are also significant as they provide as follows:- " 4. N A T U RE OF A P P O I N T M E NT All appointments are governed by provisions of the National University A ct and Statutes, a nd any Ordinance or Regulations m a de thereunder (as shall be a m e n d ed f r om time to time). 5. G R A D ES A p p o i n t m e n ts under these terms of Service shall be in o ne of the following grades: (I) Professor (ii) Associate Professor (iii) Senior Lecturer/Senior Extension Librarian. Educator/Senior Research Fellow/Senior Documentalist/Senior (iv) Lecturer/Research Fellow/Extension Educator/Documentalist/Librarian. (v) Assistant Lecturer/Assistant Research Fellow/Assistant Extension Educator/Assistant Documentalist/Assistant Librarian. (vi) Teaching Assistant/Research Assistant/Extension Educator Assistant/Documentation Assistant/Teaching Assistant/Graduate Library Trainee/" W h at is obvious f r om the definition of the term " a c a d e m ic staff" a nd the grades in the N ew Contract is that m e m b e rs of Senior Administrative Staff for w h om the Applicant herein claims to represent are excluded. T he latter m e m b e rs are still included in the O ld Contract under Clauses 2 a nd 4 thereof w h i ch read thus:- " 2. N A T U RE OF A P P O I N T M E N TS All appointments are governed by the provisions of the National University A ct a nd Statutes, a nd a ny O r d i n a n c es or Regulations m a de thereunder. 4. G R A D ES A p p o i n t m e n ts u n d er these T e r ms of S e r v i ce shall be in o ne of the following g r a d es or their equivalent: (a) A c a d e m i c: A p p o i n t m e n ts shall be of six g r a d e s, n a m e l y :- (I) (ii) (iii) (iv) ( v) P r o f e s s or A s s o c i a te Professor S e n i or L e c t u r er L e c t u r er Assistant Lecturer (vi) A d m i n i s t r a t i v e / R e s e a r c h / T e a c h i ng Assistant, (b) S e n i or Administrative a nd L i b r a ry Staff: A p p o i n t m e n ts shall be of six g r a d e s, n a m e l y :- (I) (ii) (iii) (vi) Registrar, Librarian B u r s ar D e p u ty Registrar, D e p u ty Librarian, Director of W o r ks Senior Assistant Registrar, S e n i or Assistant Librarian, or S e n i or Assistant B u r s a r, D e p u ty B u r s a r. (v) (vi) Registrar, Assistant Librarian or Assistant Assistant B u r s ar or D e an of S t u d e nt Affairs. Administrative Assistant or Senior Assistant." Library F or the a v o i d a n ce of d o u bt I should m e n t i on that it is c o m m on c a u se in this case that Applicant's alleged m e m b e rs n a m e ly the S e n i or Administrative Staff h a ve n ot signed the N ew C o n t r a ct b ut h a ve signed the O ld o n e. It p r o v es convenient at this stage to refer to relevant legislation in the matter. T he N a t i o n al University of L e s o t ho (the R e s p o n d e n t) w as established as a b o dy corporate by the N a t i o n al University A ct N o. 13 of 1 9 7 5. T he t e rm " a c a d e m ic staff" as far as the N a t i o n al University of L e s o t ho is c o n c e r n ed w as first defined in S e c t i on 2 of the N a t i o n al University of L e s o t ho A ct N o. 10 of 1 9 76 as follows:- " 2. In this A ct unless the context o t h e r w i se requires - " A c a d e m ic staff" m e a ns the V i c e - C h a n c e l l o r, P r o - V i c e- C h a n c e l l o r, a nd m e m b e rs of the teaching a nd research staff of the University." It is o b v i o us to me therefore that m e m b e rs of S e n i or Administrative Staff w e re not i n c l u d ed in the t e rm " a c a d e m ic staff" in t e r ms of the N a t i o n al University A ct 1 9 7 6. S e c t i on 2 of the N a t i o n al University of L e s o t ho O r d er N o. 19 of 1 9 92 h o w e v er introduced S e n i or Administrative Staff into the t e rm " a c a d e m ic staff" in the following w o r d s :- " 2. In this O r d er unless the context o t h e r w i se requires, " a c a d e m ic staff m e a ns the V i c e - C h a n c e l l o r, the P r o - V i c e - C h a n c e l l o r, the T e a c h i ng a nd R e s e a r ch staff, Senior Administrative staff, S e n i or Library staff, d o c u m e n t a l i s ts a nd other m e m b e rs of staff of the N a t i o n al University a p p o i n t ed on a c a d e m ic t e r ms of service." T he application b e f o re me is b a s ed on the a b o ve m e n t i o n ed section. It is A p p l i c a n t 's c o n t e n t i on that b e c a u se m e m b e rs of S e n i or Administrative staff h a ve b e en statutorily d e f i n ed as m e m b e rs of the a c a d e m ic staff therefore t h ey are automatically entitled to e n j oy the benefits that are c o n t a i n ed in the N ew C o n t r a ct m o re particularly car a l l o w a n c es n o t w i t h s t a n d i ng the fact that t h ey h a ve n ot s i g n ed the N ew C o n t r a c t. It is also s o u g ht to p e r s u a de the court to i n v o ke the constitutional principles of equality of treatment a nd the principle against discrimination. In p a r a g r a ph 2 of h er a n s w e r i ng affidavit ' M A S E F I N E LA M P H U T H I NG w ho is admittedly the Registrar of the R e s p o n d e nt University a nd as s u ch Secretary of the University C o u n c il states as follows:- " P O I N TS IN LIMINE T he f o l l o w i ng points of l aw will be t a k en in l e m i ne (sic) by the r e s p o n d e n t 's c o u n s el at the hearing hereof: - 1. 2. 3. T h is is a m a t t er that falls w i t h in the jurisdiction of the L a b o ur C o u r t, a nd therefore this H o n o u r a b le C o u rt h as no jurisdiction to entertain this matter. T h e re is no u r g e n cy in this m a t t e r, a nd there is no r e a s on w hy applicant did n ot serve the p a p e rs u p on the r e s p o n d e nt in the n o r m al w a y. A p p l i c a nt h as no locus standi to e n f o r ce p r a y er ( b) in as m u ch as no legal enforceable right in respect of the said p r a y er exists at the instance of applicant." At the c o m m e n c e m e nt of the hearing of the m a t t er before me M r. M o s i to for the R e s p o n d e nt w i t h d r ew the first point in limine b a s ed on jurisdiction. T he points in limine w e re therefore restricted to the question of u r g e n cy a nd locus standi only. Purely as a matter of c o n v e n i e n ce I directed that the points in limine be argued along w i th the merits of the application. In d o i ng so I recalled the r e m a r ks of this court in B a s o t ho National Party v T he M a n a g e m e nt B o a r d. L e s o t ho H i g h l a n ds R e v e n ue F u nd a nd 2 others C I V / A P N / 3 3 5 / 95 (unreported) w h e re in dealing with a similar situation I h ad occasion to state:- "It is therefore necessary to e x a m i ne the entire b o dy of evidence f r om all the affidavits a nd d o c u m e n ts before me to determine w h e t h er despite lack of specific a v e r m e n ts thereto the Applicant nevertheless does h a ve the required locus standi. It w as partly for this reason that the court ruled that the question of locus standi be argued together w i th the merits of the case as d e p o s ed to in the affidavits a nd having regard to the l aw a nd a ny relevant statutes. T he other r e a s on of course w as in case I f o u nd m y s e lf unable to m a ke an i m m e d i a te ruling on the point in limine w h i ch m i g ht h a ve the effect of concluding the matter in f a v o ur of either party without the necessity of g o i ng into the merits. I find m y s e lf in v e ry g o od c o m p a ny in this a p p r o a ch as it h as b e c o me increasingly c o m m on for the question of locus standi to be considered together with the merits of the claim. S ee K e n d r i ck v C o m m u n i ty D e v e l o p m e nt B o a rd 1 9 83 (4) S. A. 5 3 2. S ee also T he Administrator. Transvaal a nd T he Firs Investments (Pty) Ltd. V J o h a n n e s b u rg City Council 1971 (1) S. A. 56 ( A) in w h i ch the question of locus standi w as raised for the first time in the appeal." I discern the n e ed to adopt the said r e m a r ks herein as indeed they are apposite to the case before m e. I p r o c e ed then to deal with the remaining points in limine. 1. T h at there is no u r g e n cy in this matter. In p a r a g r a ph 4.3 of his b u n d i ng affidavit J O S E PH M A E M E LA H L A L E LE d e p o s es as to u r g e n cy as follows: " T h is m a t t er is urgent in that the oilier m e m b e rs of staff w ho are on a c a d e m ic t e r ms a nd conditions of service continue to e n j oy this benefit (car a l l o w a n c e) to the exclusion of the current Senior Administrative Staff T he University C o u n c il h ad to attend to the n e e ds of L e s o t ho University T e a c h e rs a nd R e s e a r c h e rs U n i on to a v o id an i m m i n e nt strike w h i ch w as threatened by the m e m b e rs of that union. It is my g e n u i ne belief that unless this m a t t er is attended to urgently m e m b e rs of Applicant m ay go on strike as they h a ve b e en v e ry patient thus far." T he R e s p o n d e n t 's a n s w er to this allegation is contained in p a r a g r a ph 5 of the a n s w e r i ng affidavit o f ' M A S E F I N E LA M P H U T H I NG w ho avers as follows: " 5. 4.3 T h e re is no u r g e n cy in this matter. T h is H o n o u r a b le C o u rt will be t a k en at r a n s om t h r o u gh intimidations of strikes. If s u ch a strike takes place to w h i ch it is submitted e m p l o y e es are by l aw entitled to resort to the r e s p o n d e nt will take appropriate steps a n d\ counter m e a s u r es to protect itself against the d a m a g i ng of its b u s i n e ss by e m p l o y e es w ho w o u ld in b r e a ch of their contracts. (sic). A n y w ay the r e s p o n d e nt will cross that b r i d ge w h en it c o m es to it." It is also i m p o r t a nt to b e ar in m i nd that in p a r a g r a ph 3.5 of his f o u n d i ng affidavit J O S E PH M A E M E LA H L A L E LE h i m s e lf states that the r e c o m m e n d a t i on to separate the cadres in the a c a d e m ic staff w as a p p r o v ed by the University C o u n c il as far b a ck as N o v e m b er 1 9 9 5. Y et there is no e v i d e n ce before me that the A p p l i c a nt e v er t o ok up the matter w i th the R e s p o n d e nt n or did it resort to the L a b o ur C o de 1 9 92 to h a ve the matter resolved. In this regard Section 2 25 of the L a b o ur C o de O r d e r, 1 9 92 p r o v i d es thus:- " 2 2 5. Settlement of trade disputes (1) ( 2) w h e re there is a trade dispute a nd the L a b o ur C o m m i s s i o n er is of the o p i n i on that suitable m e a ns for settling the dispute a l r e a dy exists by virtue of the provisions of a ny a g r e e m e nt r e a c h ed b e t w e en the parties, he or s he m ay refer the dispute for settlement in a c c o r d a n ce w i th t h o se provisions. W h e re the L a b o ur C o m m i s s i o n er d o es n ot refer the dispute for settlement u n d er subsection ( 1) or w h e re u p on s u ch reference there h as b e en a failure to r e a ch a settlement, the L a b o ur C o m m i s s i o n er shall i m m e d i a t e l y: - (a) ( b) inquire into the c a u s es a nd c i r c u m s t a n c es of the dispute; a nd t a ke s u ch steps as s e em e x p e d i e nt to p r o m o te a settlement of the dispute." F u r t h e r m o r e, as earlier stated the N ew C o n t r a ct providing for car a l l o w a n c es to the m e m b e rs thereof c a me into operation on the 1st d ay of July, 1 9 9 6. Y et the present application w as o n ly filed w i th the Registrar of this H o n o u r a n b le C o u rt on the 18th N o v e m b e r, 1 9 96 w h i ch is a delay of full four (4) m o n t h s. J O S E PH M A E M E LA H L A L E LE alleges in p a r a g r a ph 3.9 of his f o u n d i ng affidavit that the A p p l i c a nt protested against the aforesaid p a y m e nt of car a l l o w a n c es a nd that "the University Council h as refused to deal w i th the said protest or h as d e c i d ed to ignore it completely." I o b s e r ve h o w e v er that the d e p o n e nt m e r e ly m a k es b a re unsubstantiated allegations herein. O n ce m o re no resort w as m a de to S e c t i on 2 25 of the L a b o ur C o de O r d e r, 1 9 9 2. B ut e v en a s s u m i ng that the Applicant h ad in fact unsuccessfully protested against the said p a y m e nt of car allowances I do not then see h ow that in itself c o u ld suddenly turn the matter into o ne of u r g e n c y. In my v i ew the real reason that w as a d v a n c ed for the perceived u r g e n cy in the matter is that stated by J O S E PH M A E M E LA H L A L E LE in p a r a g r a ph 4.3 of his founding affidavit n a m e ly that:- " U n l e ss this matter is attended to urgently m e m b e rs of Applicant m ay go on strike as they h a ve b e en very patient thus far." O n ce m o re this allegation r e m a i ns unsubstantiated. T h e re is no e v i d e n ce before me that m e m b e rs of Applicant will (as o p p o s ed to m a y) in fact go on strike. T h is statement therefore is speculative. T h e re is no d o u bt in my m i nd h o w e v er that the a b o ve m e n t i o n ed statement clearly a m o u n ts to threats by the Applicant that its m e m b e rs m ay go on strike unless the court hears their case as a matter of urgency. In my opinion this is a classical case of a litigant creating its o wn urgency. T h at c a n n ot be tolerated. I consider therefore that the perceived u r g e n cy is not genuine at all. W h at is m o r e, it m u st be recorded that this court takes a v e ry d im v i ew of the a b o ve m e n t i o n ed threats w h i ch a m o u nt to intimidation of the court by the Applicant. T he Applicant w as ill advised to e m p l oy this type of a rm twisting tactic w h i ch c an only bring our justice system into disrepute if it is tolerated. C o n s e q u e n t ly this court disapproves of this type of attitude in the strongest possible terms. I shall return to this aspect later. Suffice it to s ay that the Legislature in its o wn w i s d om h as set up a m a c h i n e ry in t e r ms of the aforesaid Section 2 25 of the L a b o ur C o de O r d er 1 9 92 for settlement of labour disputes. It is my c o n s i d e r ed v i ew therefore that until the A p p l i c a nt h as e x h a u s t ed his r e m e d i es in t e r ms of the L a b o ur C o de O r d er it c a n n ot be said that the matter is urgent. T h e re m u st first be a d e a d - l o ck r e a c h ed in the dispute in q u e s t i on after the intervention of the L a b o ur C o m m i s s i o n e r. T h is h as n ot b e en d o ne in the present case. In the circumstances as aforesaid I h a ve c o me to the c o n c l u s i on that there is no u r g e n cy in the matter. 2. T h at A p p l i c a nt h as no locus standi to enforce p r a y er ( b) in as m u ch as no legal enforceable right in respect of the said p r a y er exists at the instance of the A p p l i c a n t. In M a rs Inc v C a n dy W o r ld (Pty) L td 1 9 91 ( 1 ) S . A 5 6 7 ( A ) a t 5 75 N e s t a dt JA h ad this to say:- " In a c c o r d a n ce w i th the general rule that it is for the party instituting p r o c e e d i n gs to allege a nd p r o ve that he h as locus standi, the o n us of establishing that issue rests u p on the A p p l i c a n t. It is an o n us in the true s e n s e; the overall o n us ( S o u th C a pe C o r p o r a t i on (Pty) Ltd. V Engineering M a n a g e m e nt Services (Pty) Ltd. 1 9 77 ( 3) S . A. ( A) at 5 48 B ) ." I respectfully associate m y s e lf w i th these r e m a r k s. It is also important to b e ar in m i nd the r e m a r ks of T e b b u tt J in A A I L ( S A) v M u s l im Judicial C o u n c il 1 9 83 (4) 8 55 at 8 61 to the W o w i ng effect:- "It is quite clear that in o r d er to d e t e r m i ne w h e t h er an association p o s s e s s es the characteristics of a universitas the court h as to consider t he n a t u re a nd objects of the association as w e ll as the constitution. T he constitution is clearly, the m o st important." I entirely agree. In p a r a g r a ph 2 of his f o u n d i ng affidavit J O S E PH M A E M E LA H L A L E LE d e p o s es as follows:- " A p p l i c a nt is S E N I OR U N I V E R S I TY S T A FF U N I ON a trade u n i on d u ly established u n d er Part X I II of the L a b o ur C o de 1 9 92 carrying on business at the R o ma C a m p us of the N a t i o n al University of L e s o t ho in the M a s e ru district w h i ch consists of staff m e m b e rs a p p o i n t ed on a c a d e m ic t e r ms a nd conditions of service a nd m e m b e rs of staff a p p o i n t ed on S e n i or Administrative t e r ms a nd conditions of service by the N a t i o n al University of L e s o t ho as w e ll as interested senior staff." It is significant that n o w h e re d o es J O S E PH M A E M E LA H L A L E LE allege a nd p r o ve that A p p l i c a nt h as locus standi. W h at is w o r se the constitution of the A p p l i c a nt u n i on h as n ot b e en attached to the p a p e rs b e f o re m e. In the a b s e n ce of the constitution this court is therefore unable to d e t e r m i ne the p o w e rs a nd rights of the Applicant a nd w h e t h er s u ch p o w e rs a nd rights include representation of the interests of m e m b e rs of the S e n i or Administrative Staff. In this regard I further attach significance to the fact that n o ne of the ordinary m e m b e rs of the S e n i or Administrative Staff h as s w o rn a supporting affidavit to this application. M r. P h e ko for the Applicant h as tried to o v e r c o me this hurdle by arguing that because it is not disputed that Applicant is a trade u n i on therefore it h as the right to represent its m e m b e r s. M r. P h e ko further submits that it is not disputed for that m a t t er that Applicant is in fact representing its m e m b e rs in this matter. I do not agree. In fact I observe that there is no allegation altogether in the p a p e rs before me that Applicant is representing its m e m b e rs in this matter. N or do I think it suffices for the Applicant m e r e ly to s h ow that it is a trade union. In my opinion a trade u n i on is not necessarily relieved f r om alleging a nd proving that it h as locus standi to s ue in the a b s e n ce of a constitution to that effect. In this regard it is necessary to b e ar in m i nd the definition of the t e rm "trade union." Section 3 of the L a b o ur C o de O r d e r, 1 9 92 defines the t e rm trade u n i on as follows:- " T r a de union m e a ns a ny combination, either t e m p o r a ry or p e r m a n e n t, of ten or m o re e m p l o y e es or w o r k e r s, the principal p u r p o s es of w h i ch are, u n d er its constitution, the representation a nd p r o m o t i on of e m p l o y e e s' interests a nd the regulation of relations b e t w e en e m p l o y e es a nd e m p l o y e r s, or b e t w e en e m p l o y e e s, w h e t h er s u ch c o m b i n a t i on w o u ld or w o u ld not, if the c o de h ad not b e en enacted, h a ve b e en d e e m ed to h a ve b e en an unlawful c o m b i n a t i on by r e a s on of its p u r p o s es being in restraint of trade" ( my underlining). In my j u d g m e nt the rights a nd p o w e rs of a trade u n i on are derived f r om its constitution. I am fortified in this v i ew that I take by the fact that apart f r om the definition of the t e rm "trade u n i o n" in Section 3 of the L a b o ur C o de n o w h e re are rights a nd p o w e rs of a trade u n i on specifically spelt out in the C o d e. In the circumstances I h a ve c o me to the conclusion that the Applicant's failure to attach its constitution to the application before me is fatal a nd that c o n s e q u e n t ly the Applicant h as failed to establish locus standi. I turn n ow to consider w h e t h er the Applicant h as locus standi in the sense of h a v i ng a direct a nd substantial interest c a p a b le of legal e n f o r c e m e nt in the subject matter of the application a nd in the o u t c o me thereof. As earlier stated Applicant's c a se rests solely on the statutory definition of the t e rm " a c a d e m ic staff' as defined by Section 2 of the national University of L e s o t ho O r d e r, 1 9 9 2. T he question that immediately arises therefore is w h e t h er this definition automatically e m b r a c es the t e r ms a nd conditions of e m p l o y m e nt of m e m b e rs of the Senior Administrative Staff. T he L e a r n ed author G i b s o n: Mercantile a nd C o m p a ny L aw states as follows on p a ge 2 2 2 :- "In general statutes do not p r o v i de a contract for the parties." I entirely agree. In C a s s e r ly v S t u b bs 1 9 16 T PD 3 10 at 3 12 W e s s e ls J stated the following principle:- "It is a w e l l - k n o wn c a n on of construction that we c a n n ot infer that a statute intends to alter the c o m m on law. T he statute m u st either explicitly say that it is the intention of the legislature to alter the c o m m on l a w, or the inference f r om the ordinance m u st be s u ch that we c an c o me to no other conclusion than that the legislature did h a ve s u ch an intention." T he Appellate Division also decided in the s a me vein in D h a n a b a k i um v S u b r a m a n i a n& A n o t h er 1 9 43 A D. 1 60 at 1 67 w h e re Tindall JA held:- "It is a s o u nd rule to construe a statute in conformity w i th the c o m m on l aw rather than against it, except w h e re a nd so far as the statute is plainly intended to alter the c o m m on law." I entirely agree with the principles enunciated in these cases. W h at then is the c o m m on l aw in this matter? In my j u d g m e nt the t e r ms a nd conditions of service in individual e m p l o y m e nt relationships are derived f r om the c o m m on l aw of contract. I p r o c e ed then to determine w h e t h er the National University of L e s o t ho O r d e r, 1 9 92 h as altered the c o m m on l aw of contract in the matter. As a starting point I o b s e r ve that the definition of the t e rm " a c a d e m ic staff" d o es not prescribe that m e m b e rs of a c a d e m ic staff shall hold identical contracts or t e r ms of service, rights or benefits n or d o es it attempt to regulate s u ch terms a nd conditions of service of m e m b e rs of the a c a d e m ic staff. I am satisfied that if the Legislature h ad intended that m e m b e rs of the a c a d e m ic staff should be treated equally irrespective of seniority, qualifications, experience, merit, efficiency etc. it w o u ld h a ve said so expressly. As an e x a m p le I cannot imagine that it could h a ve b e en the intention of the Legislature to treat the m an at the top of the a c a d e m ic staff n a m e ly the Vice-Chancellor equally with the m an at the bottom of the cadre. In the circumstances therefore I have c o me to the conclusion that the National University of Lesotho Order, 1992 particularly Section 2 thereof has not altered the c o m m on law of contract of service. Accordingly I find that the terms a nd conditions of service of employees of the National University of Lesotho are to be found in the contracts of e m p l o y m e n t. In this regard Section 56 (5) of the National University of Lesotho Order, 1 9 92 preserves existing contracts of e m p l o y m e nt as follows:- "All m e m b e rs of the a c a d e m ic staff a nd other officers a nd servants of the University appointed or continued in office under the National University A ct 1 9 76 a nd in office at the c o m m e n c e m e nt of this order shall subject to this Order, continue to hold their offices in terms of their appointments thereof respectively under a nd for the purposes of this O r d er a nd shall, without further or other appointment be d e e m ed to be appointed under this Order." ( My underling). T he use of the w o rd shall in this section clearly indicates that the section is p e r e m p t o r y. I consider therefore that the old contracts are still valid a nd that in order for a ny e m p l o y ee to wriggle out of such contract a nd enter into the n ew contract he/she m u st first negotiate with the e m p l o y er n a m e ly the R e s p o n d e nt University failing w h i ch he/she m u st follow the trade dispute machinery of the L a b o ur C o de as a b o ve stated. Section 10 of the National University of Lesotho Order, 1992 provides in part as follows:- " 1 0. (1) T he Council shall be the s u p r e me g o v e r n i ng b o dy of the University. ( 2) Subject to this O r d er a nd the Statutes, the C o u n c il shall m a n a ge a nd control all the affairs, c o n c e r ns a nd property of the University a nd m ay act in all matters c o n c e r n i ng the University in s u ch m a n n er as a p p e a rs to it best calculated to p r o m o te the interests a nd functions of the University a nd in particular a nd without limiting the generality of the foregoing shall h a ve a nd m ay exercise the following p o w e r s, (a) regulate its o wn procedures; (c) enter into, vary, carry out or rescind contracts on behalf of the University; (k) establish such administrative or service sections or units as it d e e ms fit a nd f r om time to time abolish or vary the constitution of a ny s u ch administrative or service section or unit; (n) p r o v i de for the welfare of all persons in the e m p l o y m e nt of the University including the provision of p e n s i on a nd retirement benefits. ( q) subject to this O r d e r, to m a ke statutes, ordinances a nd regulations a nd to confirm a ny regulations d r a wn up by the Senate in pursuance of its p o w e rs a nd u n d er this O r d e r ." I am satisfied therefore that in order to discharge its functions as a b o ve stated the University C o u n c il w as given carte b l a n c he to regulate its o wn procedures by statutes, ordinances a nd regulations. S ee Sehloho M o k a p e la v T he Minister of H o me Affairs a nd 4 others C of A ( C i v) N o. 16 of 1 9 95 (unreported). Statute 24 ( 4) of the R e s p o n d e nt University significantly provides that: " 4. E v e ry m e m b er of the a c a d e m ic staff holds office u n d er the t e r ms of this Statute a nd of a ny O r d i n a n c es a nd Regulations m a de u n d er it, a nd of a ny Resolution of the C o u n c i l, a nd u p on such terms of his contract of e m p l o y m e nt as are not inconsistent with this Statute a nd a ny s u ch O r d i n a n c e s, Regulations, a nd Resolutions." ( my underlining). Sub-section 23 of Statute 24 is also instructive a nd it provides that :- " 2 3. T he Council m ay m a ke Ordinances or Regulations with respect to the terms, conditions of services, a nd m a n n er of a p p o i n t m e nt of the M e m b e rs of the A c a d e m ic Staff of the University, a nd m ay f r om t i me to t i me v a ry or r e v o ke a ny s u ch o r d i n a n c es or R e g u l a t i o n s, albeit n ot to the d i s a d v a n t a ge of a ny M e m b er of the A c a d e m ic Staff w i th respect to the t e r ms a nd conditions of his current p e r i od of e m p l o y m e n t ." F r om the f o r e g o i ng I am satisfied that the R e s p o n d e nt University h as unfettered p o w er a n d / or discretion to enter into a ny contracts w i th individual e m p l o y e e s. A c c o r d i n g ly I find that b o th the O ld Contract a nd the N ew C o n t r a ct are valid contracts as b e t w e en the R e s p o n d e nt University a nd the individual e m p l o y e es w ho are signatories thereto. I c a n n ot then s ee h ow a p e r s on w ho is n ot a signatory to these contracts c an validly c l a im benefits arising there f r o m. Y et in e s s e n ce that is precisely the A p p l i c a n t 's c a se b e f o re m e. In D a l r y m p le Colonial Treasurer 1 9 10 T . S. 3 72 I n n es CJ o b s e r v ed at p a ge 3 7 9 :- " T he general rule of o ur l aw is that no m an c an s ue in respect of a w r o n g f ul act, unless it constitutes the b r e a ch of a d u ty o w ed to h im by the w r o n g d o e r, or unless it c a u s es h im s o me d a m a ge in l a w. T h is principle r u ns t h r o u gh the w h o le of o ur jurisprudence. It is n ot c o n f i n ed m e r e ly to the civil side A nd the rule applies to w r o n g f ul acts w h i ch affect the public, as w e ll as to torts c o m m i t t ed against private individuals." I entirely a g r ee w i th these r e m a r ks w h i ch are apposite to the c a se b e f o re m e. In his b o ok on Administrative L a w, L a w r e n ce B a x t er states as follows at p a ge 652:- "In order to establish his standing, the challenger m u st claim that: 1. S o me legal right or recognized interest is at stake, 2. 3. T he right or interest is direct; a nd T he right or interest is a personal (and possibly special) o n e ." In this regard the r e m a r ks of A a r on JA in L e s o t ho C o n g r e ss of F r ee T r a de U n i o ns v Ts'eliso R a m o c h e la a nd 3 others 1 9 8 2 - 84 L LR 4 42 are apposite in this case. This is w h at he stated at p a ge 4 47 on the question of locus standi:- " the Appellant is not a m e m b er of the L F T U: It is a rival federation Appellant's interests m ay be affected by a decision on these matters, but it h as no legal rights capable of e n f o r c e m e nt arising there f r o m ." In v i ew of the fact that neither the Applicant n or its alleged m e m b e rs h a ve signed the N ew Contract then I h a ve c o me to the conclusion that the Applicant h as no right capable of legal enforcement arising f r om such contract. It cannot claim car allowances on behalf of its m e m b e rs b e c a u se s u ch allowances only arise f r om the signing of the N ew Contract. A c c o r d i n g ly I h a ve c o me to the conclusion that Applicant h as no locus standi to s ue in this matter. N or d o es this court find that there is a ny merit in M r. P h e k o 's submission based on the so called discrimination. I consider that such is the nature of labour relations that differences in the terms and conditions of service a m o n g st individual employees are b o u nd to occur w h e re they hold different contracts or w h e re they do not perform identical or the s a me type of w o rk or e v en w h e re they differ in terms of seniority, experience, qualifications etc. T he list is not exhaustive. In this regard the decision of the Industrial Court of the Republic of South Africa in National U n i on of M i ne W o r k e rs v H e n ry G o u ld (Pty) Ltd. & A n o t h er ( 1 9 8 8) IL J 1 1 49 is very instructive. T he court held as follows at p a ge 5 83 :- " W h e re a system of plural representation is in existence as in this case, it necessarily holds within it the possibility that the principle of equality will be sacrificed w h e re the m e m b e rs of a labour unit of equals elect to belong to different groupings they, in fact, elect to go their separate w a ys a nd this at the expense of former equality. T he result is that it b e c o m es legitimate for the e m p l o y er to bargain or deal separately with these t wo or m o re groups. It follows that equals performing the s a me w o rk m ay be subject to different terms a nd conditions of e m p l o y m e n t. In these circumstances o ne group cannot be heard to complain about the a b s e n ce of equality b e t w e en their terms a nd conditions of e m p l o y m e nt a nd that prevailing as regards the other group. T he potential for inequality and unfairness is inherent in their arrangement." I respectfully agree with these principles w h i ch apply with equal force in the case before m e. In the result therefore I h a ve c o me to the conclusion that both points raised in limine as aforesaid m u st succeed. Since I h a ve heard full a r g u m e n ts on the merits as w e ll I should m e n t i on that this application further falls to be dismissed for the following reasons: (1) S i n ce the p o w er of the court to grant a declaratory order is discretionary I feel that it w o u ld be setting a d a n g e r o us precedent if this court a c c e d ed to the intimidations a nd threats m a de by the Applicant to the court as earlier stated. T he court therefore m a r ks its displeasure at this type of attitude by refusing to exercise its discretion in favour of the Applicant in the circumstances. ( 2) T h e re is a material dispute of fact on w h e t h er all m e m b e rs of the a c a d e m ic staff w e re appointed on s a me terms a nd conditions of service a nd entitled to the s a me benefits. In this regard J O S E PH M A E M E LA H L A L E LE d e p o s es as follows in paragraph 3.2 of his founding afifdavit:- "All m e m b e rs of the a c a d e m ic staff w e re appointed on s a me terms a nd conditions of service a nd entitled to the s a me benefits d e p e n d i ng on w h e t h er or not o ne w as e m p l o y ed on the p e r m a n e nt establishment or on contract." T he Respondent's a n s w er to this allegation is contained in paragraph 4 of the a n s w e r i ng affidavit of M A S E F I N E LA M P H U T H I NG in the W o w i ng w o r d s :- "I d e ny categorically that all m e m b e rs of a c a d e m ic staff w e re appointed on the s a me t e r ms a nd conditions of service a nd entitled to the s a me benefits a nd p ut d e p o n e nt to the p r o of t h e r e of I w i sh to i n f o rm this H o n o u r a b le C o u rt that there exists a collective bargaining a g r e e m e nt b e t w e en L U T A RU as the representative of its m e m b e rs a nd the r e s p o n d e nt herein. A c o py of the s a me is h e r e u n to attached a nd m a r k ed " A ". Pursuant to the said a g r e e m e nt s o me of the m e m b e rs of L U T A RU o p t ed for n ew t e r ms a nd conditions of service w h i ch they n ow h o ld a p p o i n t m e n t s. A c o py of the said contractual t e r ms a nd conditions is h e r e u n to attached a nd m a r k ed " B ". T h is H o n o u r a b le C o u rt will realise that m e m b e rs of applicant h o ld contracts t e r ms of service different f r om " A ". T h ey h o ld t e r ms a nd conditions of service as reflected on A n n e x u re " C" a b o v e. Contracts are different a nd it c a n n ot therefore be correct to say that m e m b e rs of a c a d e m ic staff h o ld s a me t e r ms a nd condition, a nd that they are entitled to the s a me benefits. I h a ve b e en legally a d v i s ed a nd verily believe s a me to be true a nd correct that benefits, rights a nd privileges arise out of a contract of e m p l o y m e n t, not definitions in the University O r d e r, 1 9 9 2. C o n s e q u e n t l y, contents h e r e of are d e n i ed a nd applicant is put to the p r o of thereof." In M a h o m ed v M a h o m ed a nd others 1 9 76 (3) S. A. 1 51 at 1 54 M a r a is J stated as follows:- " T he position n ow is that the courts w o u ld entertain (not necessarily grant) an application for a declaratory o r d er if neither an infringement n or a c o n c r e te dispute exists, the o n ly condition p r e c e d e nt b e i ng that the declaratory order, if granted, w o u ld b i nd o ne or m o re interested parties as w e ll as the A p p l i c a n t, w ho m u st be a party "interested" in a decision on a contingent right or obligation". W i th respect I find that these r e m a r ks are apposite to the c a se b e f o re m e. ( 3) On the principle of the rule laid d o wn in P l a s c o n - E v a ns Paints v V an R i e b e e ck Paints 1 9 84 ( 3) S . A. 6 23 ( A) h o w e v e r, I a s s u me t he correctness of the version of the R e s p o n d e nt U n i v e r s i ty on t he aforesaid dispute of fact. S ee also N a t i o n al University of L e s o t ho Students U n i on v N a t i o n al University of L e s o t ho a nd 2 others C of A ( C i v ) N o . l0 of 1 9 9 0. In the c i r c u m s t a n c es therefore I h a ve c o me to t he c o n c l u s i on that this application o u g ht n ot to s u c c e ed a nd it is a c c o r d i n g ly d i s m i s s ed w i th costs. M . M. R a m b o d i b e di J U D GE 18th d ay of February, 1 9 9 7. F or Applicant: F or R e s p o n d e n t: M r. P h e ko M r. M o s i to