Lecturer loses contractual suit against UB

Lebogang Mosikare | Thursday February 18, 2016 15:57

 

Delivering judgement on the matter, Justice Zibani Makhwade noted that the plaintiff had sought, in his notice of motion to be reinstated in his employment to his former position of lecturer with full salary and benefits or in the alternative payment of damages being two years salary and benefits.

Masunga’s evidence and contentions is that he was employed by the UB on a two-year renewable contract as lecturer from September 3, 2012 to September 3, 2014, said Makhwade.

“By a letter dated August 25, 2014 titled ‘Renewal of Contract’, the plaintiff applied for a renewal of his contract of employment. On or before September 3 2014, which was his last date of his contract, he did not receive any communication to his renewal application,” stated Justice Makhwade.

“Beyond his contract on September 8, 2014, the Plaintiff was given an assignment through a memo from Obusitse Makgotla Seretse who was the then Industrial Training Coordinator for the Department of Mechanical Engineering,” Makhwade said, “notifying him and other lecturers of his participation on September 19, 2014 as an assessor or examiner for practical presentations done by students of the faculty.”

It is the plaintiff’s evidence that the presentations did take place on September 19, 2014 and he participated as requested.

This assignment was in addition to his normal duties as lecturer and he had access to the amenities of the university from September 3, 2014 until that date and after, Makhwade added.

On October 6, 2014, the plaintiff received a letter rejecting his application of renewal of contract.  In opposition of relief sought by plaintiff, UB said there was never an extension of the plaintiff’s contract of either expressed or implied by its conduct.

The Head of Department (HOD) at the Faculty of Mechanical Engineering Edward Dintwa said following receipt of the plaintiff’s letter dated August 25, 2014; he followed all necessary processes and procedures in application for contract renewal, Makhwade stated.

“These processes included standard tables that had to be completed by the plaintiff for assessment and there were notified to him by the witness, as well as a set of completed documents from a colleague (as a specimen) who had recently done the process, to assist the plaintiff.

“According to Dintwa after giving the plaintiff feedback on what was required, he was able to submit the completed full set of documents on 22nd September 2014 and his application was considered by the Faculty’s Appointment, Review & Promotions Committee on September 24, 2014 whose outcome was communicated to the Plaintiff by the letter dated October 6, 2014…”Dintwa, Makhwade stated, said that it was the plaintiff’s choice if he continued to consult his students or continue teaching outside the allocation by the HOD to which he cannot claim payment from the defendant.

Makhwade said that Dintwa said the common practice at the UB is that when a contract ends lecturers are granted time if they need it, to wrap up and make the necessary clearance with all the sections of the university.

“The main issue, therefore, in this trial is whether the plaintiff’s contract was concluded without any offer and acceptance or extended by conduct of both or either of the parties” said Makhwade, “and whether in the alternative Plaintiff ought to be entitled to payment of damages being two years salary and benefits.”

As a general principle of contract law, an “agreement between two or more persons entered into seriously and deliberately is enforceable by action,” Makhwade added.

The stipulation that a contract is only enforceable if it is entered into “seriously and deliberately” stem from among others, the general rule that a contract is not concluded until the offeree has not only decided in his own mind to accept the offer but has also communicated his acceptance to the offer.

“In this case, therefore, neither of the exceptions to the general rule can be said to exist nor can it be said that there was no need for an offer and acceptance considering the elaborate processes and procedures followed in contracts entered into between the defendant and its lecturers…” said Makhwade.

“I find that as Dintwa was neither the HOD nor responsible for recruitment of neither lecturers nor their contract extensions he could not be faulted and hence bound the defendant when he sent such an email to the plaintiff and others,” said Makhwade.

The judge said the circumstances of the instant case couldn’t be taken to support the existence either of a tacit offer nor of a tacit acceptance.

He concluded that any reasonable person aware of such processes and of the bureaucracy involved in such large institutions as the defendant would have readily known that such an application could not reasonably have been considered in nine days before the contract expired on September 3, 2014.

Lawyer Anthony Manenji represented Masunga while Shathiso Nlebgwa appeared for the UB.