Lesotho University Teachers & Researchers Union v National Union of Lesotho (CIV\APN 23 of 97) [1998] LSCA 4 (5 January 1998)

1 CIV\APN\23\97 IN T HE H I GH C O U RT OF L E S O T HO In the Application of: L E S O T HO UNIVERSITY T E A C H E RS & R E S E A R C H E RS U N I ON Applicants vs N A T I O N AL U N I ON OF L E S O T HO Respondent R E A S O NS F OR J U D G M E NT Filed by the Hon Mr Justice M. L. Lehohla on the 5th day of January, 1998 On 1 9 th F e b r u a r y, 1 9 97 this C o u r t, i m m e d i a t e ly u p on the c o m p l e t i on of a d d r e s s es by respective C o u n s el m a de an o r d er discharging w i th costs the R u le w h i ch h ad b e en granted in t e r ms of p r a y er 3 on 23rd J a n u a r y, 1 9 97 returnable on the 10th of the following m o n t h. T he C o u rt u n d e r t o ok to give reasons for discharging the R u l e. H e re do t h o se reasons follow b e l o w. T he applicant h ad m o v ed this C o u rt ex-parte on 2 3 rd J a n u a r y, 1 9 97 for a Rule Nisi calling u p on the r e s p o n d e nt to s h ow cause, c o u c h ed in the following terms, (apart f r om the order s o u g ht for dispensation w i th ordinary R u l es pertaining to the m o d es a nd periods of service as outlined in prayer 1): w h y; 2 (a) the r e s p o n d e nt shall not be interdicted forthwith f r om freezing the car a l l o w a n c es of applicant's in b r e a ch of the said m e m b e r s ( s i c) contracts p e n d i ng realisation of this application; (b) the respondent shall not be interdicted f r om b r e a c h i ng the said contracts (c) the r e s p o n d e nt shall not be ordered to p ay costs of this application only in the event of opposition hereto. ( d) applicant shall not be given s u ch further and\or alternative relief as this H o n o u r a b le C o u rt m ay d e em fit. Finally the applicant s o u g ht an order u n d er 3 that prayers 1 a nd 2(a) s h o u ld operate with i m m e d i a te effect as an interim order. Following on preliminary objections raised by Mr M o s i to for the applicant in the matter relating to c o n t e m pt of C o u rt allegedly c o m m i t t ed by the V i ce C h a n c e l l or of the respondent a nd the r e s p o n d e nt itself this C o u rt m a de three orders as follows "(1) that in relation to the notice in terms of R u le 8.18 filed by respondents, this Court orders that this is an irregular step a nd resolves the point in favour of the applicant; costs will be costs in the cause. (2) No costs order be m a de in favour of the applicant; consequently no costs for c o n t e m pt are granted to the applicant in respect of the contempt that has b e en purged in a ny case. (3) B e c a u se of the fact that the rule w as snatched in the m a in application as d a w ns to the Court's horror costs are a w a r d ed to the respondent in this regard. S ee letter dated 11-2-97. Letter h a n d ed b a ck to Mr W o k e r" In the founding affidavit filed on behalf of the applicant by o ne K h a b e le M a t l o sa a m e m b er of the applicant a nd at o n ce lecturer at the respondent, the deponent avers that he is the applicant's President; a nd that he has b e en authorised to depose to the founding affidavit by the applicant. T he applicant i.e. ( L U T A R U) for short is a labour union duly established a nd registered in terms of the laws of Lesotho. At a meeting held on 20th January, 1997 the applicant resolved by u n a n i m o us vote to institute the instant proceedings. T he applicant has a n n e x ed to its affidavit a c o py of its constitution m a r k ed " A" appearing at p a ge 8 of these proceedings. T he applicant's deponent avers as the basis for this application w h at h as b e en set out as f o l l o w s: (a) (that) on or about 18th A u g u s t, 1 9 95 the parties herein entered into a collective bargaining a g r e e m e n t, a c o py of w h i ch is m a r k ed " B" a m o ng the attached papers. T he deponent specified that it w as a material term of the said a g r e e m e nt that the contracts of m e m b e rs of the teaching a nd research staff w o u ld be substituted by operation of novation with the result that A n n e x u re " C" w o u ld be replaced by A n n e x u re " D ". (b) In terms of C l a u se 13(d) of A n n e x u re " D" a m e m b er shall be entitled to 1 0% of basic salary as car allowance. M e m b e rs shall normally be expected to use their vehicles for official a nd a p p r o v ed purposes without m i l e a ge claim within a radius of 35 K m. (c) T he term " m e m b e r" m e a ns a m e m b er of the applicant (d) T he provisions of C l a u se 13(d) took effect f r om S e p t e m b e r, 1 9 9 6. T he respondent did p ay car allowances to m e m b e rs of the applicant a nd other m e m b e rs of the teaching a nd research staff w ho h ad signed A n n e x u re " D ". (e) On 11th D e c e m b e r, 1 9 96 the A c t i ng V i ce Chancellor of the respondent called officials of the applicant to inform t h em that the respondent's Council h ad decided in its m e e t i ng of 9th D e c e m b e r, 1 9 96 to allow p a y m e nt of car a l l o w a n c es for D e c e m b e r, 1 9 96 only a nd freeze t h em thereafter a nd to immediately approach the applicant to renegotiate s o me of the aspects of the n e w ly a p p r o v ed a nd signed contract. T he invitation w as followed by A n n e x u re " E" the substance of w h i ch w as in brief a clear indication that the r e s p o n d e nt d ue to the fact that the s o u c e rs would not h a ve had e n o u gh m o n ey to see us t h r o u gh this y e ar there w as a limp in the a g r e e m e n t. A n n e x u re " E" w as a letter written by the A c t i ng V i ce Chancellor addressed to the President of L U T A R U. It a p p e a rs f r om A n n e x u re " E" that p a y m e nt to m e et car a l l o w a n c es w as effected f r om internal sources. W h en it d a w n ed on the r e s p o n d e nt that these w o u ld not go far, the respondent a p p r o a c h ed the Ministry of E d u c a t i on w h i ch required time to consider the request m a de by the r e s p o n d e nt to see to the financing of the n ew c o m m i t m e nt the respondent h ad g o ne into with the applicant without the Ministry's i n v o l v e m e nt yet it a p p e a rs that w h en it c o m es to financing the a g r e e m e nt the Ministry's i n v o l v e m e nt is desperately sought by o ne party with e n c o u r a g e m e nt of the other. In d ue course the Ministry of E d u c a t i on advised the r e s p o n d e nt not to i m p l e m e nt the terms of C l a u se 1 3 ( d) of A n n e x u re " D" before authorisation could be obtained f r om g o v e r n m e n t. M e a n t i me the r e s p o n d e nt did not stop the implementation w h i ch it h ad started of p a y i ng car allowances. H o w e v er up to this point the disregard of the G o v e r n m e n t 's advice didn't s e em to matter m u ch b e c a u se funding to m e et requirements of C l a u se 1 3 ( d) c a me f r om r e d e p l o y m e nt of internal sources of the respondent. T he c r u n ch c a me w h en G o v e r n m e nt w as a s k ed in earnest to help but c o u ld not see its w ay to d o i ng that. (f) T he officers of the applicant w e nt to the V i ce Chancellor's offices apparently following the substance of A n n e x u re " E ". T he applicant's delegation after discovering that the situation w as far f r om favourable to its m e m b e rs w e nt b a ck to the generality of its m e m b e rs w h e r e u p on a m e e t i ng scheduled for 17th D e c e m b e r, 1 9 96 w as subsequently held concerning the contents of A n n e x u re " E ". A reply to this letter w as formulated in t e r ms of A n n e x u re " F ". A n n e x u re " F" in s um expresses the applicant's dissatisfaction with the respondent's Council decision to freeze C ar A l l o w a n c es after D e c e m b er 1 9 9 6. T he applicant indicated that it w as looking f o r w a rd to considering the Council's earlier desire "to a p p r o a ch L U T A RU to renegotiate s o me of the aspects of the n e w ly a p p r o v ed a nd signed contract " T he applicant further expressed in A n n e x u re " F" its perplexity at the respondent's request to renegotiate the contract given that the n ew contract w as a product of long a nd arduous process of negotiations. T he applicant expressed its dissatisfaction with the fact that in deciding to freeze the car allowances the respondent h ad acted unilaterally a nd therefore manifested lack of g o od faith, a factor w h i ch in its v i ew defeated the purpose for requesting renegotiation of s o me aspects of the n e w ly approved a nd signed contract. T he applicant in response to A n n e x u re " E" further noted its observations that part of the explanation for the financial crisis afflicting the University at the time w as the University's failure to implement the recommendations of the W o r ld B a nk Study on Cost-Containment. As a r e m e dy to this supposedly irrelevant consideration by the University, the applicant p r o p o s ed an alternative option c o u c h ed in the following terms i.e. " W h at needs to be d o ne is not to renegotiate the n e w ly a p p r o v ed a nd signed contracts but to w o rk together in implementing m e a s u r es that are likely to bring a s o u nd m a n a g e m e nt a nd utilisation of University funds. It should be borne in m i nd that while all this w as going on the University w as in a particularly unenviable position in w h i ch it h ad by negotiating clause 13(d) of A n n e x u re " D ", e m b a r k ed on something it appears to me to h a ve lacked the proper authority to d o. T he illustration of this c o n c e rn is plainly e x p r e s s ed in h e ad II of A n n e x u re " E" styled N UL B U D G ET P R O P O S AL F OR 1 9 9 7 \ 98 saying " In O c t o b e r, N UL submitted the 1997\98 b u d g et proposal to the M OE (Ministry of E d u c t i o n ), the item " N ew A l l o w a n c e s" w as o ne of the n ew items included in the b u d g e t. T he overall b u d g et h ad g o ne up by 3 8 %. T he G o v e r n m e n t 's directive that all b u d g et p r o p o s a ls should not go b e y o nd 1 2% ceiling, w as c o m m u n i c a t ed to N UL as per the attached c o p y. T he M OE insisted that the N UL b u d g et h ad to c o me d o wn to the a p p r o v ed level. A m o ng the m a j or items that got r e m o v ed f r om the b u d g et following intensive consultations over the b u d g et with the M OE w e re the " N ew a l l o w a n c e s" built into the n ew contract for A c a d e m ic staff. M a n a g e m e nt w as a d v i s ed that b e c a u se of the general c o n c e rn in G o v e r n m e n t, at the " M A N Y" a l l o w a n c es that N UL e m p l o y e es h a v e, inclusion of n ew a l l o w a n c es in the b u d g et proposal w o u ld jeopardise the c h a n c es of approval of o ur submission. It w a s, therefore, a g r e ed that a separate s u b m i s s i on should still be m a de so that it c an be considered on its o wn - a nd if a p p r o v e d, the n e c e s s a ry adjustments w o u ld be duly m a de to the m a in b u d g e t" T he applicant's deponent w e nt further at (g) and (h) to aver that on 17th D e c e m b e r, 1 9 96 at a meeting convened for the discussion of A n n e x u re " E" it w as resolved to reply in terms of Annexure "F". He states that on 7th January, 1 9 9 7, the n ew Vice - Chancellor called the Executive Committee of the applicant to a meeting to discuss the contents of A n n e x u re " F ". After that meeting the applicant says it received A n n e x u re " G" a letter dated 8th January, 1 9 97 addressed by the Vice- Chancellor to Dr M. N t i m o - M a k a ra (till recently the Acting Vice-Chancellor). T he letter reads : "re: L U T A R U 'S C o m m u n i c a t i on of 3rd January. 1 9 97 As per my response to L U T A RU in our meeting yesterday 7 January 1997 with the U n i on please forward the said correspondence to Council for further deliberations. Be kind e n o u gh to c o m m u n i c a te to Council that my period for studying the relevant events and issues fails me to h a ve direct input at the m o m e n t. Sincerely yours Prof. Dr R. I. M. Moletsane Vice-Chancellor c.c. C h a i r m an of Council University M a n a g e m e nt L U T A RU - Secretariat". T he applicant has attached A n n e x u r es "I" and "J" being letters written to and from the L a b o ur C o m m i s s i o n er respectively. A p p r e h e n s i ve of the likely delay in h a v i ng the applicant's grievances redressed by the L a b o ur C o m m i s s i o n er it o p t ed to a p p r o a ch this C o u rt instead as it feared that should the respondent effect its unilateral decision to freeze applicant's m e m b e r 's car a l l o w a n c e s, the said m e m b e rs w o u ld suffer irreparable h a r m. It further stated that as a trade union it h as a clear right in this m a t t er b e c a u se it is its m e m b e r s' contractual rights that are a b o ut to be violated. T he applicant s o u g ht to s h ow further a nd emphatically that the h a rm a p p r e h e n d ed is i m m i n e nt i n a s m u ch as its m e m b e rs are usually paid on or a r o u nd the 25th d ay of e a ch m o n th a nd w as afraid that j u d g i ng f r om the turn of things it w as likely that its m e m b e r s' rights will h a ve b e en violated. T he applicant accordingly indicated that b e c a u se its m e m b e r s' contracts w e re a b o ut to be infringed its plight w as all the m o re deserving of urgent attention. In the respondent's o p p o s i ng affidavit s w o rn to by the r e s p o n d e n t 's Registrar A n ne M a s e f i n e la M p h u t h i ng the d e p o n e nt averred that the r e s p o n d e nt objected to the m a n n er in w h i ch the applicant h ad obtained the interim order. Indeed the Court was aware that these proceedings had been launched ex- pane and without notice to the other side. The respondent maintained that the applicant had snatched the interim order in disregard of the Audi Alterant Partem rule. The reasons furnished by the Chairman of Council in the answering affidavit sufficed to substantiate the embarrassment and prejudice suffered by the respondent in the process. Indeed in paragraph 4 of the Council's Chairman Mr Likate at page 75 of the paginated record emphatically states :- "I wish to stress that the respondent, when it undertook to pay the car allowance, the subject of these proceedings, it (sic) did so on the understanding that initially this allowance would be paid out of redeployed funds until these were exhausted. Thereafter the obligation to continue to pay would fall away unless the University could procure further funds from the Government. If the government did not provide the funds then it was understood that the obligation to continue to pay would fall away". In response to this striking and crisp averment by the official of no mean stature in the respondent the applicant's deponent contends himself with merely saying at page 91 of the paginated record: "I reply hereto as I have to the relevant portions of Mphuthing's affidavit, and wish to incorporate contents thereof as if specifically averred herein. I therefore d e ny contents thereof a nd p ut d e p o n e nt to the p r o of t h e r e o f. Surely the applicant c a n n ot h o pe to ride off on the a b o ve a nd h a c k n e y ed statement to avoid a direct challenge s u ch as contained in the C o u n c il C h a i r m a n 's statement. It m u st h a ve b e en clear to the applicant that the respondent's statement p l u n g ed the p r o c e e d i ng e v en on this point alone into serious dispute of fact w h i ch w o u ld require resolution not on m e re p a p e rs b ut either by oral e v i d e n ce or action proper but the applicant opted for neither of these alternatives, a nd in d o i ng so w as running a risk w h i ch w o u ld a l w a ys a d h e re to it a nd n e v er to the other party. T he salutary rule in applications b r o u g ht ex-parte is that the applicant's version will be accepted w h e re it is c o m m on c a u se but will be rejected in favour of the respondent's version w h e re there is a serious a nd g e n u i ne conflict of fact in respect of w h i ch the l aw takes the v i ew that b e c a u se the applicant m u st h a ve k n o wn of such conflict a nd that it w o u ld be incapable of resolution on p a p e rs the applicant m u st therefore bear the c o n s e q u e n c e s. In this connection I v i ew with favour the extract f r om S u p r e me Furnishers(Pty)Ltd and Anor vs L. H. Molapo C. Of A. (CIV) 13 of 1995 at p.6 submitted on behalf of the respondent that in the absence of facts or circumstances which cast doubt on the " acceptability of a respondent's version, where an applicant institutes procedures (sic) by way of Notice of Motion the version of the facts deposed to by the respondent shall be accepted as correct". See also National University of Lesotho Students' Union vs National University of Lesotho and Ors C. Of A. (CIV) 10 of 1990 at 19 where the Lesotho Court of Appeal expressed the position in Law without any equivocation. Mr Likate's averment at paragraph 5 page 75 (of the record) "that it was an implied term of the contracts of employment of the applicant's members who signed the new contract (Annexure "D") that the University's obligation to pay car allowance would endure for as long as it was able to make these payments" ties in with the undisputed averment by Miss Mphuthing the Registrar's averment in paragraph 14 page 64 of the record that the applicant's negotiators "urged that the University should find the money and suggested that the respondent even sacrifice moneys budgeted for other items to cover the cost of paying the car allowance". To me it appears plain that there could be no hope of sustaining the payment for car a l l o w a n ce if the obviously u n d e p e n d a b le s c h e me s u g g e s t ed by the applicant's negotiators fell through as ultimately it did. It is for this reason that I c o me to the v i ew that it s e e ms the financing of the car a l l o w a n ce s c h e me w as conditional u p on certain conditions being m et i.e. f u n ds b e i ng available as aptly stated by the C h a i r m an of C o u n c il a nd corroborated by the Registrar's undisputed a v e r m e n t. It is not disputed also w h at the Registrar averred that it h ad b e en b r o u g ht to the applicant's negotiators' attention that e v en if an alternative m e a ns of procuring f u n ds w as attempted b y, for instance, r e d e p l o y m e nt of m o n e ys to p ay car a l l o w a n c es this source of f u n ds w o u ld not last long; the estimate being that s u ch funds w o u ld h a ve b e en e x h a u s t ed by M a r ch 1 9 9 7. T he applicant m a k es a merit of saying the Registrar by saying f u n ds are available to finance only the m e d i c al aid benefits a nd n ot car a l l o w a n c e, a nd the B u r s ar by saying there are no f u n ds to finance b o th car a l l o w a n ce a nd m e d i c al benefits m u st be lying. B ut w h i c h e v er w ay the respective officers' a v e r m e n ts are l o o k ed at, they do not to me a m o u nt to positively saying f u n ds are available to finance car allowance. In a ny case w h a t e v er other university staff m e m b e r s' statements are, on the state of finance the m o re d e p e n d a b le w o u ld a l w a ys be that of the Bursar w h o se business it is, m o re than a n y b o dy else's, to deal with the question of finance. A n o t h er crucial averment m a de by the Registrar but w h i ch the applicant didn't bother responding to is at p a ge 64 paragraph 16 w h e re A n ne M p h u t h i ng said " T he redeployment of funds w o u ld m e an other University uses a nd services w o u ld have to be sacrificed. Applicant's negotiators w e re not overly concerned. T h ey d e m a n d ed that funds be redeployed a nd that in the period b e t w e en the strike and the time that the redeployed funds ran out the respondent approach the g o v e r n m e nt to procure m o re funds". In this regard alone o ne sees a callous attitude being adopted by the applicant w h i ch s e e m ed to have particularly relished the inconvenience to w h i ch the two-fold forms of pressure i.e. the strike and the unrelenting d e m a n ds by the applicant on the respondent to ensure that the car allowance be sustained against all o d d s, the respondent w as subjected. W h at is e v en m o re distressing about this matter is that it w as clear that without the G o v e r n m e nt advancing any funds to finance car allowance for the applicant n o h ow with the current state of finances in the respondent's control or custody could the respondent m e et the insistent d e m a n ds on it by the applicant w h i ch at the t i me h ad gleefully twisted the respondent's a r m. On this alone the applicant cannot be said to h a ve discharged the o n us of p r o v i ng that the m o n ey w as e n o u gh a nd available to finance car a l l o w a n c es s o u g ht to be established in p a p e rs a nd a r g u m e n ts on the o ne h a nd a nd hotly disputed by the r e s p o n d e nt a nd their counsel on the other. A peculiar feature of the applicant's replying affidavit w h i ch is r e p r o v ed in evidence by affidavit is that it is argumentative a nd scarcely a d d r e s s es itself to the matter on h a n d. C o m p a re a nd contrast M p h u t h i n g 's o p p o s i ng affidavit at p a r a g r a ph 17 with the rambling a nd captious t wo p a g es of M a t l o s a 's replying affidavit ad para 17 a nd 18 (so styled t h o u gh confining itself to p a r a g r a ph 17 o n l y) at p a g es 83 a nd 84 of the paginated record before m e. C o n t e n ts ad paras 21 a nd 23 on p a ge 85 merely serve to render issues w h i ch the C o u rt strives hard to u n d e r s t a nd m o re a nd m o re obscure. It w o u ld be beneficial to bear in m i nd the requirements of the l aw w i th regard to an applicant's affidavit to the extent that it is intended to support an application m o v ed ex-parte. First it m u st disclose g r o u n ds for dispensing w i th dies induciae a nd breaching the Audi ulteram partem rule. O t h e r w i se such an application runs the risk of being turned d o wn as irregular. Indeed in Emiram (Pty) Ltd vs New Woodhole Hotel 1967(2) SA 491at 493(F) Eksteen J's salutary phrase calls for special attention; namely :- "I regard it as desirable that an applicant seeking to dispense with the ordinary procedure should set out in his affidavit that he regards the matter as one of urgency and should refer explicitly to the circumstances on which he bases this allegation and the reasons that he claims he could not be afforded substantial relief at the hearing in due course". Notwithstanding the above statement consideration of the applicant's affidavit shows that scant attention was given thereto. Consideration of Annexure "F" at page 51 of the paginated record also leaves me in no doubt that the applicant knew as early as 11th December, 1996 that the respondent intended freezing car allowance by the end of January. Matlosa's averment at page 5 paragraph 4(f) also serves to throw light on this contention. What this Court is seeking to emphasise here is the importance of observing provisions of Rule 8(22) by parties moving applications on the basis of urgency before it. In the instant case I note with bewilderment that although the applicant perceived the urgency of bringing this application way back; meaning that some forty three days before launching this application the applicant knew of the respondent's intention to freeze car allowance, the applicant nonetheless waited till 21st January, 1997 to launch it ex-parte. In the circumstances I would view with favour the submission that urgency was self-inflicted and should not at all be visited on the respondent. While dealing with applications of this nature, I may just add, it is important to heed the words of Coetzee J. in Luna Meubel Vervaardigers vs Makin and Another 1977(4) SA 135 at 137 to the effect that "Practitioners should carefully analyse the facts for the purposes of setting cases down for hearing, whether greater or lesser relaxation of Rules and ordinary practice of the Court is required. The degree of relaxation should not be greater than the exigency of the case demands. It must be commensurate therewith. Mere lip service to the requirement of Rule 12(b) (Analogous to our Rule 8(22)(b)) will not do, and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter be set down". In similar vein the dictum of Beck J. in Republic Motors vs Lytton Service Station 1971(2) SA 516 at 518 provides a welcome caution that "The procedure of approaching the court ex-parte for relief that affects is somewhat too lightly the rights of other persons is one which employed. Although the relief that is sought when this procedure is resorted to is only temporary in nature, it necessarily invades, for the time being, the freedom of action of a person or persons who have not been heard and it is, to that extent, a negation of the fundamental precept of audi alteram partem. It is accordingly a p r o c e d u re that s h o u ld be sparingly e m p l o y ed a nd carefully disciplined by the existence of factors of s u ch u r g e n c y, or of w e l l - g r o u n d ed a p p r e h e n s i on of perverse c o n d u ct on the part of a r e s p o n d e nt w ho if i n f o r m ed b e f o r e h a nd that resort will be h ad to the assistance of the C o u r t, that the c o u r se of justice stands in d a n g er of frustration unless t e m p o r a ry curial intervention c an be unilaterally obtained". In the instant p r o c e e d i ng it h as not b e en indicated h ow the c o u r se of justice s t o od in d a n g er of frustration at the respondent's instance h ad the applicant not precipitated u r g e n cy in the matter. I accordingly m u st e m p h a s i se that the rationale of R u le 8 ( 2 2) is that ex-parte orders obtainable on a unilateral basis are not just there for the picking. T he applicant's f o u n d i ng affidavit m a de no attempt to enlighten this C o u rt that there w as a strike staged by the applicant w h i ch strike it n ow turns out h ad a lot of bearing on the negotiations geared at i m p l e m e n t i ng the terms of A n n e x u re " D" w h i ch itself w as conceived without proper arrangements having b e en m a de let alone securing a nd ascertaining the p r e p a r e d n e ss of g o v e r n m e nt to allocate f u n ds specifically to cover the car allowance. T h is factor i.e. g o v e r n m e n t 's p r e p a r e d n e ss appears to me to h a ve b e en a sine qua n on w e re the t e r ms of A n n e x u re " D" to be regarded as h a v i ng b e en properly d e t e r m i n ed b e t w e en the parties. W h at s e e ms to h a ve b e en o v e r l o o k ed by the applicant is that e v en t h o u gh the contract s e e m ed on the face of it to h a ve b e en c o n c l u d ed its vital t e r ms still d e p e n d e d, a c c o r d i ng to at least the understanding of the other party, on t e r ms b e i ng negotiated w i th g o v e r n m e nt to m e et the aspect of car a l l o w a n ce in A n n e x u re " D ". T he m e e t i ng of this t e rm appears to me to h a ve b e en of s u ch vital i m p o r t a n ce that the so-called contract w o u ld r e m a in a m e re condition b e t w e en the parties as l o ng as there w as no certainty that g o v e r n m e nt w o u ld c o me up w i th the necessary funding. A s s u m i ng that A n n e x u re " D" w as properly signed by all parties c o n c e r n ed a nd therefore h ad s o me s e m b l a n ce of validity the situation here w o u ld not be v e ry different f r om w h e re parties contract that certain a m o u nt of C a r go of say Tunisian h o r se b e a n s, carried in the high seas at the time of the contract b e t w e en the parties w o u ld p a ss to o ne of the parties. E v en t h o u gh this w o u ld s e em a valid contract the fact that the parties w e re not a w a re immediately after concluding the contract that the ship w o u ld sink or h ad in fact s u nk c a r go a nd all; a nd rested at the b o t t om of the o c e an w o u ld imply that the contract could only be conclusive on the fulfilment of the implied t e rm that the ship shall h a ve m a de the shore intact. Of i m p o r t a n ce in this regard is that the l aw itself reads the implied t e rm into that contract. L i k e w i se in the instant case for as l o ng as the vital aspect of finding source for the funding of the contract c o n c l u d ed without prior ascertainment of that source, the conclusion b e c o m es irresistible that the procuring of such source is an implied term without the fulfilment of w h i ch the contract w o u ld not be valid. To that extent the e n f o r c e m e nt of the a g r e e m e nt w o u ld be conditional u p on the implied t e rm c o m i ng into operation. If my v i ew of the matter a b o ve proves w r o n g, then the next difficulty that the applicant is faced with, w h i ch is e v en m o re formidable than a ny other is that concerning the fact that e n f o r c e m e nt of the contract s p o k en of w o u ld result in the respondent breaching the l aw of the land. O r d er N o . 19 of 1 9 92 T he National University of L e s o t ho O r d e r, 1 9 92 W as p a s s ed by the highest l aw m a k i ng b o dy of the land at the time. Section 38 of the a b o ve order provides that :- " T he Council shall, (a) in each year a d o pt for the next following year, c o m m e n c i ng of (sic) the first d ay of July, a b u d g et for all f u n ds of the University other than those to w h i ch p a r a g r a ph (b) of this section relates, a nd shall a p p r o ve all a m e n d m e n ts to the b u d g et a nd shall control expenditure of the University so that it confirms (sic) as nearly as practicable to the a p p r o v ed b u d g e t; a nd (b) r e v i ew annually f u n ds available to the University by w ay of bequest, donation or special grant, a nd the expenditure thereof a nd shall, subject to the t e r ms of a ny trust a nd before a ny s u ch expenditure is m a d e, a p p r o ve the p r o p o s ed disposition of those funds". I am satisfied that there is nothing in the present University b u d g et w h i ch allows for the p a y m e nt of m o t or car a l l o w a n c es to staff. P a ge 71 of this paginated record a m p ly s h o ws that the Bursar "repeatedly advised the m e m b e rs of the t wo negotiating teams that there w e re no funds in the University budget to p ay for these benefits". T he applicant s e e ms to s h ow great irritation a nd stock reaction in response to the m e n t i on by the respondent of the respective parties' negotiators. In this attitude the applicant s e e ms to be blissfully oblivious of the fact that its so called contract i.e. A n n e x u re " D" on w h i ch the proceeding is based is not signed by a ny of the parties thereto. Mr M o s i to in response to this challenge stated that A n n e x u re " D" is a specimen of the contract. B ut in civil proceedings a party should c o me to court bearing in m i nd the vast distinction b e t w e en basing its case on proper documents and the risk it takes in failing to furnish such d o c u m e nt w h i ch in my v i ew w o u ld constitute acceptable evidence. T he fact that no attempt in the affidavit has b e en m a de to say w hy a specimen has b e en substituted for a proper d o c u m e nt c o m p o u n ds the baselessness of the applicant's optimism. H ad the matter b e en brought in the ordinary w ay perhaps the court w o u ld h a ve looked at this infraction of the R u l es differently in the rare event that it could h a ve occurred at all. In the circumstances it w o u ld s e em the applicant has rashly c o o k ed its o wn goose. I n e ed hardly dwell on the embarrassment that the respondent is said to h a ve g o ne through by being told that it should a n s w er the case by m e m b e rs of the applicant w h o se individual identities was never disclosed. In the result there was no application for condonation of the absence of the contract on which the case is based and needless to say none was granted. The unexplained absence of a signed version of as vital a document as Annexure " D" leads to an irresistible inference that in effect the document was never signed by the parties because if it was it would have brought real grist to the applicant's mill. H ow then could such an important document which constitutes the very foundation of the applicant's case be not attached to its papers. This absence in turn lends credence to the view that Annexure " D" in fact couldn't have been signed while the University was hoping to get the green light which never came from government. Annexure " D" constitutes lack of admissible evidence to make the simple case that was sought to be made. See C. Of A. (CIV) No.4 of 1984 Lawrence Matime vs Arthur Vincent Moruthoane by Schutz P. Far be it from me therefore to be so gullible and credulous as to incline to the view that any amount of eristic oratory can undo or fill this gaping hollow in the applicant's case. This disregard of the need to do things properly seems to be in defiance of the generality of the remarks by Ackermann J. A. in C. of A.(CIV) 17 of 1990 Makenete vs Major General Lekhanya & 2 Ors (unreported) at p.4 that: " The attitude evinced seems to be that the rules are unimportant, can be overlooked or condonation granted as a matter of course and right. It is time that practitioners' minds were disabused of this much mistaken impression and the misconceived idea that their disregard of the rules will be overlooked because of the prejudice their clients might suffer. Clients who surfer loss because of omissions on the part of their legal representatives m a y, in appropriate circumstances, h a ve r e m e d i es against their advisers". I am painfully a w a re that o ur rules i m p o se no r e q u i r e m e nt on practitioners, in the n a me of giving assistance to the C o u r t, to file h e a ds of a r g u m e n ts in application proceedings. It m ay well be that the applicant's counsel failed to file a ny b e c a u se of this. T he C o u rt thus appreciates the effort of the respondent's C o u n s el in finding it his duty to be serviceable to it regard b e i ng h ad to the fact that naturally the respondent h as far shorter time than applicant to prepare h e a ds a nd file t h em in time to be of a ny m e a n i n g f ul help to the C o u r t. It is to be h o p ed that all practitioners as officers of C o u rt will see merit in b e i ng of assistance to the C o u rt by filing h e a d s. B ut before letting Mr M o s i to off the h o ok I s t u m b l ed u p on the decision of R a m o d i b e di J dated 11th February, 1 9 97 i.e. delivered just nine d a ys before the order that w as to c o me in the instant matter. It a p p e a rs that Mr M o s i to w as after all representing o ne of the parties in that proceeding. It escapes me therefore h ow in the instant c a se he could h a ve o v e r l o o k ed the learned R a m o d i b e di J's unequivocal laying d o wn of the l aw on the question of h e a ds of a r g u m e nt notwithstanding the a b s e n ce of rules in that regard in the H i gh C o u r t. T he case in point is C I V \ A P N \ 4 7 5 \ 96 ' M a b a t a u ng M o l e t e s a ne vs D a v id M o h a pi Moletsane (unreported) at p a ge 12 w h e re the learned J u d ge said : " T h e re is h o w e v er o ne aspect that I should m e n t i on as guidance for the future. It is this. At the c o m m e n c e m e nt of the hearing of the matter before me I inquired f r om both counsel w hy they h ad not filed h e a ds of a r g u m e nt in the matter. Mr M o s i to p r o m p t ly a p o l o g i s ed and undertook to file h e a ds Mr Lesuthu's response h o w e v er left me d u m f o u n d ed a nd s h o c k e d. He i n f o r m ed the court that he h as n e v er k n o wn that h e a ds of a r g u m e n ts are filed in civil cases. He a d d ed that he h as a l w a ys b e en u n d er the impression that h e a ds of a r g u m e nt are only filed in criminal cases. W h at w as s h o c k i ng w as that as I l o o k ed at counsel he a p p e a r ed genuinely ignorant. I immediately w o r r i ed over w h e t h er this m i g ht be a reflection of the standard of o ur legal profession. It m u st n e v er be forgotten that j u d g es d e p e nd largely on the B ar a nd the Side B ar for assistance in dispensing justice. T h at is h ow it should be " I agree with the learned j u d ge entirely. It stands to reason that in the light of the decision cited a b o ve a nd the undertaking at the time by then respondent's counsel it is u n p a r d o n a b le that no h e a ds of a r g u m e n ts w e re filed on behalf of the applicant in the instant matter. A suitable order will be m a de to suit the action to the w o rd at the e nd of this j u d g m e nt for p u r p o s es of giving r e m e dy to this rather irritating act of indiscretion a nd deliberate indifference to clear imports of j u d g m e n ts of this Court. I accept Mr Woker's submission that to confirm the R u le a nd direct the University to continue to p ay car allowances w o u ld be to direct that institution to contravene section 38(a) of the University Order. A court will never direct a litigant to break the law. E v en though this matter w h en it c a me before me appeared to be highly contested the Court w as nonetheless able to distill from the disputations the fact that taken together the affidavits of the Registrar, Bursar and the V i ve Chancellor s h ow that the University redeployed a s um of M 6 10 2 1 0 - 00 of the University's budget a w ay f r om other cost items in that budget to use to p ay the car allowance a nd a medical aid benefit. It s e e ms that all concerned recognised that these funds being limited w o u ld not last. B ut even so the attitude w as that these funds should be used for as long as possible. Acceptable evidence m a k es it clear that by D e c e m b er 1 9 96 these funds w e re virtually depleted and that if the University continued to p ay both the car allowance and the medical aid benefits then the m o n i es w o u ld be exhausted by M a r ch 1 9 9 7. Bearing in m i nd that the government w as not forthcoming with further funding it s e e ms to me that the University acted prudently by not risking to lose both car and medical aid benefits a nd instead opting to sacrifice o ne benefit to save the other. In the result Council w h i ch is a s u p r e me authority in the University voted to freeze the car allowance so as to save the medical aid benefits. T he applicant seeks to u n d u ly emphasise the W o r ld B a nk factor a nd its threats while choosing to cast a blind e ye on the practical approach adopted by the University faced with the choice either to lose both benefits or sacrifice o ne to save the other. It is this decision by Council that the applicant seeks to challenge. In a caustic language clearly u n w o r t hy of appearing on C o u rt papers the applicant seizes on the W o r ld B a nk factor and in the process blinds itself to the real issues at the b o t t om of this proceeding. S ee p a ge 90 paragraph 13. It w as strenuously argued for the applicant that there are striking contradictions in the respondent's affidavits, but as I indicated earlier I f o u nd n o n e. I therefore accept Mr W o k e r 's submission that given the b a c k g r o u nd referred to earlier there are no contradictions in the respondent's a n s w e r i ng affidavits. "In fact the Vice-Chancellor explains the position exactly in the terms d e p o s ed to by the other deponents". S ee h e ad 10 of respondent's h e a ds of a r g u m e n t. I further accept the respondent's submission that to suggest that the various affidavits have contradictions in them is to adopt too simplistic an approach to the real issue in this application; and that what in fact has happened is that the Council has tried to act wisely and for its trouble it is being challenged in these proceedings. It is amazing that the applicant should emphatically deny the University is out of funds but in the same breath at page 51 Annexure "F" item 4 say in its list of observations : "That it is clear that part of the explanation of the financial crisis currently afflicting the University is its failure to implement the recommendations of the World Bank Study on Cost-Containment". and also at (b) that the applicant unanimously agreed "To give the Executive a mandate to meet with the University management with a view to examine (sic) globally the financial crisis afflicting the University That the applicant at once denies and recognises the existence of the situation set out above is a typical example of blowing hot and cold; a factor which at all times fails to meet with the light of the Courts of law's countenance. The Court takes cognisance of the fact that the University Council is the supreme governing body of the National University of Lesotho. Where such a body has exercised its discretion in a manner that, taking all circumstances into account, s e e ms u n i m p e a c h a b le it w o u ld not ordinarily be w i se for a C o u rt of l aw to interfere lightly with the exercise of that b o d y 's discretion a nd the financial w i s d om that s e e ms to h a ve b e en properly attendant throughout the h a rd choices that the University Council found itself having to m a k e. S ee Section 1 0 ( 1) of O r d er N o. 19 of 1 9 9 2. T he Court stresses the Council's proper exercise of its discretion a nd w i s d om in the light of the fact that w h en the University submitted its b u d g et for 1 9 9 7 \ 98 to the Ministry of E d u c a t i on w h i ch included an allocation to c o v er the car a l l o w a n c e, the Ministry rejected this b u d g et a nd in particular the car a l l o w a n c e. S ee p a ge 67 paragraph 25(i) a nd (ii). T he University subsequently w i t h d r ew the car a l l o w a n ce f r om the budget. S ee p a ge 6 9. T he applicant's callous a nd n o n c h a l a nt attitude to all this is that "the issue that the C o u n c il h as w i t h d r a wn the car a l l o w a n ce f r om the 1 9 9 7 \ 98 b u d g et is irrelevant a nd nonsensical". S ee p a ge 9 0. It s e e ms that the applicant's only c o n c e rn is to h a ve the allowance paid for the m o n t hs of J a n u a ry to M a r ch 1 9 97 as there are f u n ds available for that p u r p o s e. S ee p a ge 8 7. This contention h o w e v er deliberately if insensitively o v e r l o o ks provisions of Section 38(a) of the University O r d er 19 of 1 9 9 2. T he applicant complains that the decision to freeze p a y m e nt of the car allowance w as unilateral. In response thereto Mr Woker m a de the following submission w h i ch I found very persuasive n a m e ly that (a) the decision w as not unilateral in effect because although the decision w as taken in D e c e m b er 1 9 96 it w o u ld only be effective at the e nd of January 1 9 97 w h en the next allowance fell d ue for p a y m e n t. In the interim the U n i on w as invited to negotiate (see p a ge 5 0 ). Alternatively it didn't do so in g o od faith. Instead it took the University to Court ex-parte. H ad they negotiated in g o od faith they w o u ld h a ve realised a nd accepted that the position w as hopeless. Instead they d e m a n d ed a further redeployment of funds. S ee p a g es 51 and 52. It follows from the a b o ve that the applicant cannot complain about the m a n n er in w h i ch the decision w as taken; (b) the decision could never be unilateral because it w as part of the agreement b e t w e en the Council a nd the applicant. In effect the University w as performing o ne of the terms of the agreement; (c) the Council is by virtue of section 10(1) of the University Order, 1 9 92 the supreme governing b o dy of the University T he statute by implication excludes the need for Council to consult. This is necessary to enable the Council to govern the University effectively. W i th regard to the oral application by Mr M o s i to for the applicant that paragraphs 17 a nd 18 of the Registrar's affidavit be struck out on the basis that they are hearsay in so far as the Registrar d e p o s es to w h e t h er the University h as no m o n ey factually, it s e e ms to me that p a ge 63 paragraph 11 of the Registrar's founding affidavit provides the a n s w er by informing this C o u rt in the s a me p a r a g r a ph t h a t' As University Registrar a nd Secretary of the C o u n c il I w as at all times involved in the negotiations. I h a ve personal k n o w l e d ge of the facts d e p o s ed to hereinafter'". N e e d l e ss to say paragraphs 17 a nd 18 fall within the category c o v e r ed by the w o rd hereinafter. T he Registrar w as accordingly a witness to the a g r e e m e nt thus the contents of the p a r a g r a p hs c o m p l a i n ed of c an accordingly n e v er be hearsay. A g a in w h at the C o u rt is able to distil f r om the applicant's contentions in the a v e r m e n ts a nd a r g u m e n ts for the v i ew that the University c an continue to p ay the car a l l o w a n ce is that these a p p e ar to be r e p o s ed on the C o u n c il m i n u te at p a ge 97 reading "A question w as a s k ed to determine if the financial position of the University w o u ld allow p a y m e nt of the C ar A l l o w a n c es in D e c e m b e r, 1 9 96 a nd if that w o u ld not a n n oy the G o v e r n m e nt of L e s o t ho to think that the University is diverting funds f r om all the p r o g r a m m es to p ay allowances. A response indicated that the allowances f r om the internal sources that h ad b e en a p p r o v ed by the B o a rd of F i n a n ce a nd C o u n c il w e re sustainable up to M a r ch 1 9 97 w h en the G o v e r n m e nt w o u ld hopefully a b s o rb the e x p e n s es in the B u d g e t. T h is w as a tolerable expenditure u n d er the prevailing circumstances. A n o t h er m e m b er e x p r e s s ed g r a ve c o n c e r ns that this unilateral r e c o m m e n d a t i on to freeze the a l l o w a n c es will place the University in a p r e d i c a m e nt b e c a u se of a series of extensive a nd intensive consultations\negotiations that w e nt on b e t w e en L U T A RU a nd the Council\University M a n a g e m e n t. All these pressures c o m p e l l ed the University to i m p l e m e nt the a l l o w a n c e s ". As Mr W o k er properly indicated w h at the m i n u te d o es say is that a l l o w a n c es f r om internal sources c an be paid " up to M a r ch 1 9 9 7 ". T he m i n u te g o es on to suggest in a following p a r a g r a ph 3 that a lot of d e b a te e n s u ed regarding the merits a nd d e m e r i ts of p a y i ng the car a l l o w a n c e. It is not stated in the m i n u te w h at this debate entailed. W h at is interesting is that e v en the m e m b er w ho e x p r e s s ed grave concern about unilateral freezing of the car a l l o w a n ce by C o u n c il lends c r e d e n ce to the Registrar's emphatic averments that the University w as f a c ed w i th h a rd choices. Pressure by the strike action of the U n i on w h i ch resulted in students not b e i ng taught, the u n w h o l e s o me a t m o s p h e re that continued to present an intolerable g l o om in the University C a m p us in the result, a nd inavailability of resources to sustain the d e m a nd for C ar allowances. All these considerations lend c r e d e n ce to the v i ew that there w as n e v er a ny firm undertaking that the C ar a l l o w a n ce w o u ld be sustainable or at best subsist b e y o nd M a r ch 1 9 97 failing G o v e r n m e n t 's p r e p a r e d n e ss to provide funding. It c a n n ot h a ve b e en the negotiators' contention that the car a l l o w a n ce would be wholly and always dependent on re-deployment of internal resources for that would amount to reposing trust of such a big scheme, for its success, on robbing Peter to pay Paul! It seems then to be true that the factual issue in dispute in this application which goes to the heart of the matter is whether or not the respondent had the money to pay the car allowance. It appears to be common cause that if it can pay it can only do so until the end of March 1997 as can be gathered from page 87 paragraph 6. It should stand to reason that if factors show that the respondent has no money to pay then it would be worthless to expect that it could afford to pay and continue to exist as an entity. I wish to round off by reference to Rule 8(22)(b) once more in conjunction with local authorities on the issue. In CIV\APN\106\93 Lesotho Medical and Pharmacy Council vs Domitilla Musoke it was emphasised that this Rule is mandatory and non-compliance with it is fatal. I observe that the applicant's founding affdavit at page 6 paragraph 5(f) is the only paragraph that touches upon urgency yet it has not dealt in detail with the circumstances which render the application urgent as the Rule requires. Nor is there anything in the affidavit to show why the applicant could not be afforded substantial relief in a hearing in due course if the periods prescribed by this Rule were followed. See also Khaketla vs Malahleha & Ors C. Of A. (CIV) No. 18 of 1991. It thus becomes clear to me that had the applicant given consideration to this Rule it would have realised that the harm it contends is not irreparable for the applicant was at large to and could sue for damages, or obtain back pay or even sue for specific performance. There is merit also in the argument that the applicant, in deference to the requirement of the rule that the applicant should show that it could not secure substantial relief in a hearing in due course, was at large to have resorted to the Labour Court bearing in mind that the Labour Code was created specifically for the type of dispute this court is dealing with presently. Mr Woker under mistaken belief that the rules in Lesotho are the same as those in the foreign jurisdiction where he normally practices, argued for the discharge of the rule which in effect implied that the relief granted then would be of a temporary nature according to practice in that foreign jurisdiction. In Lesotho however in urgent applications the discharge of a rule amounts to dismissal of the application in its entirety. T h is is w h at in effect this C o u rt did on the d ay it discharged the rule w i th costs. In line therefore with the s t em w a r n i ng s o u n d ed in M o l e t s a ne a b o ve at p. 13 that to ensure that proper standards are maintained by practitioners appearing before this C o u rt a nd that irrespective of w h e t h er matters to be a r g u ed before C o u rt are criminal or civil " s o m e t h i ng drastic" should be d o n e, a nd that p r o n o u n c e m e n ts by a ny branches of this C o u rt are taken seriously; I h a ve considered h o w e v er to i m p o se a nominal penalty u p on the applicant's legal representative personally in the s um of M 1 0 0 - 00 three quarters of w h i ch is s u s p e n d ed w i th the result that the learned C o u n s el shall be required to p ay M 2 5 - 00 in the f o rm of r e v e n ue s t a m ps w h i ch the Registrar of this C o u rt shall attach on the reverse side of the last p a ge i.e. p . 1 30 of the paginated record a nd c a u se the s a me to be defaced a nd p r o p er entries m a de in the s t a m ps register. 5th January, 1 9 98 F or A p p l i c a n t: Mr M o s i to F or R e s p o n d e n t: Mr W o k er