The applicant was appointed by the first
respondent, initially as a lecturer, then later as a Dean of Studies in the
same institution.
While she was in occupation of this
position, on the 12th day of December 2012, she received a letter
from the second respondent, who is Acting Vice-Chancellor of the first
respondent, advising her that the second respondent intended to appoint certain
persons to the position of Acting Dean of Agricultural Sciences and Acting Dean
of Humanities. She says such appointments are a breach of the express terms,
alternatively, the implied terms of her contract with the first respondent.
She said her letter of appointment,
as Dean of Studies, granted her authority over the Faculties of Agricultural
Sciences and Humanities and Social Studies, and the effect of the purported
appointments will limit the scope of her authority insofar as she will only
have oversight over certain departments within the Faculty of Humanities.
She also pointed out that in terms
of Clause 5.1 of the Faculty of Governance Ordinance 23, the Dean is the Chief
Academic, Administrative and Finance Officer for the Faculty. She went on
to state that the appointments are unlawful as the first respondent is a
statutory body and its members are bound by the provisions of the Lupane State
University Act [Chapter 22:25] and appointments made in contravention of the
Lupane State University Act [Chapter 22:25] are invalid. She said the
second respondent does not have the power to make the appointments and is
acting ultra vires the
provisions of the Lupane State University Act [Chapter 22:25]. She said
such powers are held by the Senate.
Prior to this, she had once been
suspended, and Acting Deans were appointed, but when she challenged the
appointments she was reinstated and the appointments of Acting Deans were set
aside, but despite a memorandum to that effect they were allowed to continue in
occupation of the offices they had been granted and enjoying the benefits that
accrued to those positions. She instituted a court application for
contempt of court which is still pending under case number HC2311/12. She
complained that she will suffer prejudice as the purported appointments of
Acting Deans will unlawfully usurp certain of her powers and responsibilities
as Dean of Studies and affect her ability to perform her duties.
She seeks, in a provisional order,
that the second respondent be interdicted from making those appointments, and
that if the appointments have been made, that such persons be removed from
those appointments.
The second respondent, who deposed
to the opposing affidavit on behalf of the first respondent by virtue of his
position as its Acting Vice Chancellor, said only the first respondent should
have been sued. He said the applicant has no locus standi to challenge the appointments of Acting Deans and
it was not within her right to challenge the appointments. He said she had
not established that she has a prima facie
right or that any of her rights have been violated and that there is no other
remedy. He said since the appointments have been effected she cannot use
an interdict to address perceived past wrongs. He went on to state that
the applicant will not suffer any financial prejudice as she will continue to
receive her pay in terms of her contract of employment. He prayed for the
dismissal of the urgent application with costs.
The second respondent also submitted
that the Lupane State University Act [Chapter 22:25] does not deal with the
smooth running of the University such as interim measures and appointments of
persons in acting capacities.
After hearing both parties, I make
the following observations:
1. The Acting Vice Chancellor had to
be included as the appointments were made by him.
2. The fact that the Acting Deans
continue to occupy offices allocated to them does not affect or violate the
applicant's rights. She does not own those offices.
3. The fact that the 1st
respondent has advanced some persons to positions of Acting Deans does not
violate the applicant's rights.
4. The fact that the appointments of
the Acting Deans may not have been made in accordance with the provisions of
the University Act does not violate the applicant's rights.
5. In my view, what violates the
applicant's rights is the allocation of responsibilities, that is, if the
appointed Acting Deans interfere with the rights and powers of the applicant to
carry out her officially allocated functions in terms of her contract…,.
It is clear from the papers that the
applicant is concerned with the possible interference of her authority to carry
out her functions as Dean of Studies. Her concern should be limited to
that and that only….,. The main grievance of the applicant is clearly stated in
paragraph 5(e) of her founding affidavit where she says:
“I will suffer prejudice insofar or
as the purported appointments will unlawfully usurp certain of my powers and
responsibilities as Dean of Studies and affect my ability to perform my duties.”
In my view, the following order
grants her the relief she seeks:
Order
1. The first and second respondents
are interdicted from interfering with or usurping the applicant's powers,
authority and functions granted to her by the terms of her contract as Dean of
Studies.
2. In the event that such powers
have been removed or altered they must be restored.
3. The respondents are to pay the cost of this
application.
