Page | 1
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/332/19
In the matter between:
`MANOHA NTSIE APPLICANT
and
TEACHING SERVICE COMMISSION 1st RESPONDENT
MAHOLOKOANE PRIMARY SCHOOL 2nd RESPONDENT
MAHOLOKOANE PRIMARY SCHOOL 3rd RESPONDENT
BOARD
TEACHING SERVICE TRIBUNAL 4th RESPONDENT
Page | 2
MINISTRY OF EDUCATION 5th RESPONDENT
ATTORNEY GENERAL 6th RESPONDENT
Neutral citation : `Manoha Ntsie v Teaching Service Commission and 5 Others [2019] LSHC Civ 94 (06 June 2024)
CORAM : KHABO J.,
HEARD : 28 FEBRUARY 2023
DELIVERED : 06 JUNE 2024
SUMMARY
Practice and procedure - Special plea - Prescription - Respondents raising a special plea that Applicant’s claim had prescribed under Section 6 of the Government Proceedings and Contracts Act, 1965 - Whether this was applicable to Applicant’s case, it being a review application - Court finds Section 6 not to cover review proceedings as it only covers delictual and contractual liabilities the against Government;
Page | 3
Employment law – Applicant challenging both the substantive and procedural fairness of her dismissal - Where she had been dismissed for allegedly accepting candidature in national elections whilst holding the position of a teacher - Court finding her to have failed to prove the substantive unfairness of her dismissal, but having proven the procedural irregularity thereof - Whether procedural irregularity vitiates the entire proceedings – Court answered in the negative and ordered compensation in the circumstances as opposed to reinstatement as prayed by the Applicant.
ANNOTATIONS
Statutes and subsidiary legislation
Codes of Good Practice, 2011
Education Act, 2010
Government Proceedings and Contracts Act, 1965
Labour Act, 2024
Labour Code (Amendment) Act 2000
Labour Code Order, 1992
Prescription Act, 1861
Page | 4
Cases cited
Lesotho
Former Employees of Lesotho Agricultural Development Bank v Government of the Kingdom of Lesotho and 2 Others CIV/APN/375/2019
Khabo v Lesotho Bank LAC (2000 - 2004) 91
Majoro v Teaching Service Commission and 3 Others CIV/APN/129/06
Motebang Motumi v Maseru City Council and Others LC/APN/28/2021
Mothibeli Khojane v The School Secretary ACL Schools and 5 Others CIV/APN/245/2020
Standard Lesotho Bank v Molefi `Nena and Another LAC/CIV/A/06/08
Other jurisdictions
South Africa
BTR Industries SA (Pty) Ltd v Metal and Allied Workers’ Union 1992 (3) SA 673
Literature
Alan Rycroft and Barney Jordaan in A Guide to South African Labour Law - Juta, 2nd ed., 1992
Page | 5
JUDGMENT
KHABO J.,
Introduction
[1] The Applicant, a teacher at Maholokoane Primary School, and 2nd Respondent herein, was dismissed on 23rd November, 2015 by the Teaching Service Commission (TSC) following a disciplinary enquiry in which she was charged with contravening Section 3 (2) (k) of the Codes of Good Practice, 2011 promulgated under Section 57 (1) (a) (iii) of the Education Act, 20101 in that whilst she was still employed as a teacher she “unlawfully and intentionally used her position to further political aims and accepted candidature in national elections.” It was alleged that her name appeared on the proportional representation (PR) list of the All Democratic Co-operation (ADC), a political party, in the run up to the 2015 national elections.
1 Act No. 3 of 2010
Page | 6
[2] Aggrieved by the dismissal, she appealed to the Teaching Service Tribunal which in its judgment dated 18th April, 20172 identified some procedural irregularities in the disciplinary process and awarded her compensation equivalent to four (4) months’ salary.
[3] Dissatisfied with the Tribunal’s finding, the Applicant approached this court to have the proceedings leading to her dismissal reviewed, corrected and set aside, and prayed to be reinstated to her position without loss of benefits and for payment of all her salary arrears from the date of dismissal to the date of her reinstatement. She sought the following reliefs, an order:
(a)
Directing and ordering that the entire proceedings leading to and including her dismissal from the teaching service and the order for payment of her four (4) months salary in lieu of reinstatement be reviewed and set aside, corrected and set aside;
2 Annexure ‘’MM 3’ to the founding affidavit
Page | 7
(b) Directing and ordering that the Applicant be reinstated to her position in the teaching service as a teacher without loss of benefits and payment of all her outstanding salary from the date of her purported dismissal to the date of reinstatement;
(c) Directing the 1st and/or the 2nd and/or the 4th Respondents to dispatch within fourteen (14) days of receipt of this notice to the Registrar of the above Honourable Court the record of proceedings (if any) leading to the dismissal of the Applicant from the teaching service and to notify Applicant’s attorneys that they have done so;
(d) Directing the Respondents to pay costs hereof; and
(e) Granting the Applicant further and/or alternative relief.
Respondent’s reaction
[4] In reaction to the claim, Respondent’s Counsel filed an intention to oppose but decided not to file an answering affidavit and chose to raise a point of law to the effect that
Page | 8
the claim had prescribed in terms of Section 6 of the Government Proceedings and Contracts Act, 19653 in that it had been instituted beyond the two years prescribed therein. This point of law was raised pursuant to Rule 8 (10) (c) of the High Court Rules, 19804 which provides that:
Any person opposing the grant of any order sought in the applicant’s notice of motion shall:
(a)
within the time stated in the said notice, give applicant notice in writing that he intends to oppose the application, and in such notice he must state an address within five kilometres of the office of the Registrar at which he will accept notice and service of all documents;
(b)
within fourteen days of notifying the applicant of his intention to oppose the application deliver his answering affidavit (if any), together with any other documents he wishes to include; and
3 Act No. 4 of 1965
4 Legal Notice No. 9 of 1980
Page | 9
(c)
if he intends to raise any question of law without any answering affidavit, he shall deliver notice of his intention to do so, within the time aforesaid, setting forth such question.
[5] In motivating her special plea of prescription, Respondents’ Counsel argued that the incidents complained of took place between 09th April, 2015 and 18th April, 2017 when the judgment of the Teaching Service Tribunal was handed down. It is Respondents’ case that they were only served with this application on 30th September, 2019, more than two years after the cause of action had arisen and, therefore, that the claim had prescribed in terms of the Government Proceedings and Contracts Act.
[6] Relying on Majoro v Teaching Service Commission and 3 Others,5 Respondents’ Counsel emphasised that it could not have been the intention of the legislature to let a litigant come to court after so long for something that she has always known. In this case, the Applicant had approached the court after three years. She decried that justice can never be served
5 CIV/APN/129/06
Page | 10
if Applicant’s claim would be entertained by this court as there has to be finality to litigation.
[7] Applicant’s Counsel, opposed this legal point arguing that Respondents cannot be heard to raise this plea in review proceedings. Hence, an enquiry by the court whether the prescriptive clause in Section 6 of the Government Proceedings and Contracts Act applies to review proceedings.
Whether Respondents are entitled to raise a special plea in abatement of prescription in review proceedings
[8] Section 6 of the above Act provides that:
Subject to the provisions of sections six, seven, eight, nine, ten, eleven, twelve and thirteen of the Prescription Act no action or other proceedings shall be capable of being brought against Her Majesty in Her Government of Basutoland (then) by virtue of the provisions of section two of this Act after the expiration of the period of two years from the time when the cause of action or other proceedings first accrued.
Page | 11
[9] The Act outlines procedures related to legal proceedings against the Government of Lesotho. Applicant’s Counsel argued in converse that judicial review proceedings are not subject to prescription under the said Section because they do not arise from a contract lawfully entered with the State nor out of any wrong committed by a servant of the State acting in the course of employment as envisaged by Section 2 thereof. The latter Section provides that:
Any claim against Her Majesty in Her Government of Basutoland which would, if that claim had arisen against a subject, be the ground of action or other proceedings in the competent court, shall be cognisable by any such court, whether the claim arises out of any contract lawfully entered into on behalf of the Crown or out of any wrong committed by any servant of the Crown acting in his capacity and within the scope of his authority as such servant:
Provided that nothing in this section contained shall be construed as affecting the provisions of any law which limits the liability of the Crown or of the Government of any department thereof in respect of any act or omission of its servants, or which prescribes specified periods within which a claim shall be made in respect of
Page | 12
any such liability or imposes conditions on the institution of any action …
The issue then arises whether review proceedings qualify as a claim in terms of Section 2 of the above Act.
[10] This question whether the Government Proceedings and Contracts Act only relates to contractual and delictual liabilities was answered by this court in Former Employees of Lesotho Agricultural Development Bank v Government of the Kingdom of Lesotho and 2 Others6 where it held that the said Act was directed at imposing liability on the Crown vicariously for tortuous acts committed by its servants acting in the scope of their work, and for providing for its liability for contracts entered lawfully into by its servants acting in their scope of work.
[11] The court pointed out that the phrase “action or other proceedings” in Section 2 refers only to the two scenarios
6 CIV/APN/375/2019 at p. 24 para 21
Page | 13
above and not to judicial review. Respondents’ Counsel had argued in the above case that the phrase “other proceedings” included review proceedings. The court concluded that the preliminary point of law taken by the Respondents that the matter had prescribed was ill - conceived.
[12] The learned Judge, Justice Banyane J., relying on the above case on the applicability of the prescription clause contained in Section 6 of the Government Proceedings and Contracts Act to reviews dismissed the special plea of prescription in Motebang Motumi v Maseru City Council and Others7 pointing out that:
It is concludable from the preceding discussion that these being judicial review proceedings, Section 6 of the Government Proceedings and Contracts Act is not applicable. It follows, therefore, that the general principle that review proceedings must be instituted within a reasonable time is the relevant principle to be applied in the matter before me …
7 LC/APN/28/2021
Page | 14
[13] Taking inspiration from these authorities, the court rules that the prescriptive clause in Section 6 of the Government Proceedings and Contracts Act is not applicable to this review proceedings. The authorities clearly point out that prescription in respect of review proceedings brought against the State is regulated by the common law. It is worth noting that Respondents’ Counsel had raised the plea of prescription under the Act and not under the common law which requires that proceedings be instituted within a reasonable time of the cause of action arising. With Respondent’s exception on prescription having fallen off, the court comes to the interrogation of the merits. As aforementioned, Respondents have not challenged Applicant’s claim on the merits, a big risk on their part.
On the merits
[14] As a matter of principle, an employer has a right to discipline an employee but has to act fairly in the process. The Applicant has complained of a series of irregularities in the
Page | 15
proceedings leading to her dismissal, both substantive and procedural. She complained substantively that she never consented to the inclusion of her name in the party list, rendering the reason for her dismissal unfair.
[15] She averred that she was in possession of a letter from the party that indicated that she had been mistakenly included in the party list. She, however, merely deposed to the presence of this letter without annexing the letter. The court is, therefore, not in a position to decide on it, it not being seized with it. The substantial invalidity of the dismissal having not been substantiated; it falls off.
Procedural fairness
[16] Procedurally, the Applicant complained of several procedural irregularities in the disciplinary proceedings which included that Mr Shale, the Chairperson of the said proceedings was biased; that the disciplinary process flouted some standards prescribed by the Codes of Good Practice, 2011; and that she
Page | 16
was denied the right to cross - examine 2nd and 3rd Respondents’ witness.
The rule against bias
[17] The Applicant averred that Mr Shale, had prior to the hearing requested her to resign in the face of the alleged misconduct and she refused. It is her case that Mr Shale could not be impartial in his chairpersonship as he had already formed an opinion that she had conducted herself in an improper manner, hence the request for her to resign. She contended that his prior involvement in the case ran counter to the rule against bias. The Applicant attested further that she received a letter from the 3rd Respondent, the School Board on 15th March, 2015 in which she was instructed to resign from the school for the alleged offence.
[18] She contended that Mr Shale as a complainant ought not to have chaired the proceedings thereby becoming a judge in his own cause contrary to one of the cardinal principles of
Page | 17
natural justice, the nemo judex in causa sua rule. To succeed on this point, the Applicant must prove a reasonable suspicion of bias.8
[19] This court faced with the same complaint in Mothibeli Khojane v The School Secretary ACL Schools and 5 Others9 per the learned Judge Mokhesi J., citing BTR Industries SA (Pty) Ltd (supra)10 alluded to the principle that to succeed in disqualifying the Chairperson, it must be shown that there is an existence of a reasonable suspicion of bias. He went further to cite one of the eminent authors in Administrative Law, Baxter in his book titled Administrative Law11 that prejudice arises in circumstances where the decision - maker has past or present relationship with one of the parties or based on his or her past activities or current external commitments, or the manner of conducting the proceedings.
8 BTR Industries SA (Pty) Ltd v Metal and Allied Workers’ Union 1992 (3)
9 CIV/APN/245/2020 at para. 7 p. 8
10 1992 (3) SA 673 at pp. 690 - 695B
11 1984 Juta at p. 564
Page | 18
[20] The Applicant through her uncontroverted evidence proved that there was a likelihood of bias in Mr Shale presiding over her proceedings by virtue of him having approached her prior to the disciplinary hearing to resign because she was facing a serious case of misconduct. He ought not to have been part of the disciplinary panel, and not to preside at that to thwart any accusation of bias.
Failure to adhere to standards prescribed by the Codes of Good Practice, 2011
[21] The Applicant further complains that there was no Secretary appointed during the disciplinary proceedings to maintain a record of proceedings, and that she was not advised of her rights including the right to representation by a fellow teacher as required by the Codes of Good Practice. This evidence was not countered.
The right to cross - examine 2nd and 3rd Respondents’ witness
Page | 19
[22] The Applicant avers further that she was not informed of her right to cross - examine witnesses as she alleges that upon the conclusion of 2nd Respondent’s evidence, she was asked to give her side of the story. The right to cross - examine a witness is basic. To render the proceedings fair, the Applicant ought to have been afforded an opportunity to cross examine the 2nd and 3rd Respondents’ witness. The court finds the procedure to have been unfair in this regard as well.
Analysis
[23] In the end the issue is whether the proceedings were conducted fairly or not. The Applicant contended that she was not only prejudiced by these irregularities but that they vitiated the whole proceedings.
[24] Having considered Applicant’s affidavit and her Counsel’s submissions, there being no evidence to counter same, the court finds her to have proved the procedural irregularities against the Respondents. She has, therefore, made out a
Page | 20
case of procedural unfairness, and the court confirms the Tribunal’s finding in this regard. The next enquiry is the appropriate relief in the circumstances.
The appropriate relief
[25] The Applicant is seeking reinstatement to her position and payment of salary arrears. According to one of the eminent authors on Labour Law, Alan Rycroft and Barney Jordaan in A Guide to South African Labour Law12 where a dismissal has met both the tenets of substantive as well procedural fairness, reinstatement to employment is the appropriate remedy. But where the dismissal is found only to have been procedurally unfair, reinstatement will be tantamount to condonation of the misconduct in question, and an award of compensation is an appropriate remedy in the circumstances.
12 Juta, 2nd ed. 1992, at pp. 161 - 162
Page | 21
[26] In line with this principle, the court is not able to order reinstatement as prayed by the Applicant, having found her to have only made out a case for procedural impropriety on the part of the Respondents and having failed to prove the unfairness of the dismissal on substantive grounds. The court orders award of compensation in the circumstances.
Assessment of compensation due to the Applicant
[27] As soon as compensation is ordered Section 73 (1) and (2) of the Labour Code Order, 1992,13 (the Labour Code) as amended by the Labour Code (Amendment) Act 200014 comes into play. The matter was instituted before the promulgation of the Labour Act, 2024.15 It provides that:
(1)
If the Labour Court or arbitrator holds a dismissal to be unfair, it shall, if the employee so wishes, order the reinstatement of the employee in his or her job without loss of remuneration, seniority or other entitlements or benefits which the employee
13 Act No. 24 of 1992
14 Act No. 3 of 2000
15 Act No. 3 of 2024
Page | 22
would have received had there been no dismissal. The Court
or arbitrator shall not make such an order if it considers reinstatement of the employee to be impracticable in light of the circumstances.
(2)
If the Court or arbitrator decides that it is impracticable in light of the circumstances for the employer to reinstate the employee in employment, or if the employee does not wish reinstatement, the court shall fix an amount of compensation to be awarded in lieu of reinstatement. The amount of compensation awarded by the Labour Court or arbitrator shall be such amount as the Court considers just and equitable in all circumstances of the case. In assessing the amount of compensation to be paid, account shall also be taken of whether there has been any breach of contract by either party and whether the employee has failed to take such steps as may be reasonable to mitigate his or her losses.
[28] According to the interpretation Section of the Labour Code (Amendment) Act, 2000 reference to “Court” means either the Labour Court or the Labour Appeal Court. It is, therefore, in order to find that Section 73 covers the Labour Appeal Court, the Labour Court and the Directorate of Disputes
Page | 23
Prevention and Resolution (DDPR). In summarising the said Section, these fora are obliged to order compensation in the following circumstances:
(a)
If it is impracticable in light of the circumstances for the employer to reinstate the employee to employment, or
(b)
If the employee does not wish to be reinstated.
[29] The Section, however, does not provide guidance on the quantum of compensation to be granted by the court leaving the court with the difficult question of how it should assess compensation. The question was addressed in Khabo v Lesotho Bank.16 There apex court pointed out there in that Section 73 (2) of the Labour Code requires the Court in assessing compensation to also consider:
16 LAC (2000 - 2004) 91 at p. 97
Page | 24
(a)
Whether there has been any breach of contract by either party; and
(b)
Whether the employee has failed to take steps as may be reasonable to mitigate his or her losses.
[30] The word “also” used in Section 73 (2) of the Labour Code was said to imply that other factors besides those stated may be taken into consideration. Each case will have to be judged on its own merits. Such may include “the actual and future loss likely to be suffered by the employee as a result of the unfair and wrongful dismissal, the age of the employee, the prospects of the employee in finding other equivalent employment, the circumstances of the dismissal …”17
[31] The court directed (Khabo (supra))18 that a claimant is entitled to the difference between what he has received from employment following his dismissal and the sum to which he would have been entitled to, had the contract been fulfilled.
17 Standard Lesotho Bank v Molefi `Nena and Another LAC/CIV/A/06/08 para 15 at p.9
18 Pp. 99 - 100
Page | 25
Further that this principle should serve as a basis upon which the court should factor in the factors that courts are required to consider in terms of Section 73 (2) of the Labour Code.
[32] The evidence before court does not reveal factors that would help it make an appropriate assessment of quantum such as her age, the duration of her contract of employment, her salary at termination making it very difficult to assess how much she would be entitled to if the dismissal had not occurred. It would have been advisable for the Applicant to have pleaded in the alternative.
[33] Justice Mosito AJ., (as he then was) faced with the same frustration in Standard Lesotho Bank (supra) advised that for unfair dismissal cases, it is always advisable for an Applicant who claims to have been unfairly dismissed to also present before court or the DDPR the difference between what he or she has received from employment following his or her dismissal and the sum to which he or she would have
Page | 26
been entitled to had the contract been fulfilled so as to help the court or the DDPR in exercising their discretion in terms of Section 73. Expressing his frustration on the same issue he said courts are expected to make “bricks without straw,”19 a sentiment l share.
[34] The first scenario refers to situations where an employee could have received some terminal benefit such as severance pay. The learned Judge went further to warn that failure to provide this critical information denies the court or the DDPR adequate evidence upon which to exercise their discretion as to the quantum, a factor likely to prejudice the Applicant as well.
[35] The basic principle in assessment of compensation in unfair dismissal cases being that compensation in a case in which an Applicant has proven both substantive and procedural fairness is what he or she would have been entitled to, had the contract been fulfilled, Khabo (supra) and in casu had
19 Standard Lesotho Bank v Molefi `Nena and Another (supra) para 17 at p.10
Page | 27
the dismissal not occurred and the Applicant reached her retirement age in employment.
Conclusion
[36] Faced with a mammoth task of assessing quantum due to the Applicant without sufficient evidence, the court having considered a number of factors including that the Applicant failed to rebut the substantive invalidity of her dismissal (the reasoning) and that irregularity only related to procedure only came to the assessment below.
ORDER
[37] In the result the following order is made:
(a) The preliminary point taken that this application has prescribed in terms of Section 6 of the Government Proceedings and Contracts Act is dismissed;
Page | 28
(b) The Applicant has established procedural unfairness only;
(c)
The 5th Respondent through its responsible Department pay the Applicant half of what she would have been entitled to in terms of salary from the date of dismissal to the date of retirement; and
(d)
Respondents pay the costs of this application jointly and severally, the one paying the other to be absolved.
_______________
F.M. KHABO
JUDGE
For the Applicant : Adv., S. Phafane KC
For the Respondents : Adv., L. Tau