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CASE SUMMARY: GOVERNMENT OF REPUBLIC OF NAMIBIA V IMBILI ((P) I 366/2008) [2012] NAHC 86 (22 MARCH 2012
FACTS:


 * The Respondent was employed by the applicant as a teacher from 1 June 1996 until 31 May 2006 on which latter date the Respondent had resigned from her employment.
 * During the period 1 October 2001 until 30 September 2004 the Respondent was granted study leave on a full time basis to enable the Respondent to pursue undergraduate studies in Psychology at the University of Luton, England, and the Respondent remained absent from her employment for the whole of this period.
 * The Applicant and Respondent entered into a written agreement of which the material terms were the following:
 * 1) 	That immediately after her studies the Respondent would return to the Public Service in the Ministry of Basis of Education for a continuous period corresponding with the period of special leave granted in any capacity for which she may be regarded suitable.
 * 2) 	The Respondent was granted study leave for the period of 218 days of which half (109) days was special leave for study purposes.
 * 3) 	Respondent complied with her obligations by resuming her work after studies on 18 January 2005 and remaining in the employ of the applicant until 26 July 2005.


 * The special leave was granted with full remuneration for the period 22 September 2003 until 31 December 2004 inter alia on the following conditions:
 * 1) 	Respondent would sign the prescribed contract in terms of the Public Service Staff Rules D.I Part XI;
 * 2) 	Defendant would resume her normal duties as teacher immediately after expiry of the period of study or the extended period of study and thereafter to continuously serve the State for at least two years for every year for which she was released for study.
 * 3) 	Upon failure to carry out her obligations set out paragraph 2 Respondent would immediately refund to Applicant all moneys received by her from the State during the period of special study leave together with interest thereon at the rate determined by the Ministry of Finance per annum calculated from the date of breach of contract. The amount shall be reduced pro rate for every full month of service rendered by the Respondent.
 * 4) 	The applicable interest rate determined by the Ministry of Finance was 16%


 * The Applicant alleged that the Respondent had failed to sign the aforementioned agreement. Applicant provided Respondent with her full remuneration during the period she was on study leave.
 * The Applicant pleaded that Respondent as a staff member of the Public Service was aware or ought to have been aware of the contents of the Public Service Staff Rules and was bound by such Rules including Public Service Staff Rule D.I/XI which encapsulated the provisions relating to special study leave on remuneration. Based on this the Applicant pleaded that there was thus a tacit contract between the parties.
 * The Applicant further pleaded that the Respondent only served 10 month in respect of the period of 4 years she was required to serve in the employ of the State and thus breached the contract as she was required to remain in the applicant’s employ for the additional period of 3 years and 2 months.
 * Based on this, the Respondent is liable to refund applicant salary payments for the period of 38 months which amounted to N$ 98 287-13.
 * The Applicant then also in the alternative pleaded that the Respondent had received too much money, meaning that she was unduly enriched in the amount of N$ 124 152-54 being the total amount paid to her as remuneration while absent for study leave purposes.
 * The Respondent however denied all the allegations made by the Respondent and subsequent to this denial she denied liability as well.
 * The Respondent further stated that the Applicant stopped her salary effectively from 21 June 2002 until 21 September 2003 without a valid cause or explanation and that the Applicant only reinstated her salary effectively from 22 September 2003 until 31 December 2004.

THE COURTS DECISION:


 * The Court came to the following conclusion: It would seem as if the Applicant has approved the special leave granted to the Respondent but disapproved full remuneration during such period, and therefore the Respondent had a bona fide defense, a defense based on good faith on the basis that the monies paid to her during the special leave period were monies she had been entitled to during the earlier period when the payment of her salary had been stopped by the Applicant.

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Reference
http://www.saflii.org