HIGH COURT OF LESOTHO
THABO MOKAEANE APPLICANT
OF NATURAL RESOURCES 1st RESPONDENT
OF MINES AND GEOLOGY 2nd RESPONDENT
GENERAL 3rd RESPONDENT
by the Honourable Mrs Justice K. Guni on the 15th Day of August, 2000
applicant herein approached this court by way of an urgent ex-parte
application on 15th October 1996. He obtained a Rule NISI in the
following terms :-
a Rule Nisi be and is hereby issued calling upon the respondents to
show' cause, if any, on the 15th day of October 1996 why an order as
set out hereinbelow shall not be made.
order dispensing with the normal forms and periods of notice
relating to service and filing of papers. This order was granted.
termination of applicant's employment by 1st respondent be declared
null an void as 1st Respondent acted ultra vires his powers.
be paid terminal benefits up to the last day of his service should
the Honourable Court hold that the contract was lawfully
be ordered to comply with the Court Order prayer
CIV/APN/227/96 should the Honourable Court hold that the
termination of contract was lawful.
by the applicant's prayer (d) above, he had previously approached the
court in CIV/APN/227/96 where he sought reinstatement or
alternatively, payment of his salary for the balance of 72 months
extension applied for on his behalf by his Departmental head. In that
application he obtained a final court order -Annexure TM1 - attached
to his Founding Affidavit. The court order was obtained by agreement
of the parties without the hearing of the case. The applicant was
subsequently reinstated in terms of the said court order.
of this case as gleaned from the papers filed of record are briefly
as follows: This applicant was a public officer in the Public
Service. He held a permanent office on pensionable terms which at
that time were governed by
11 and 12 of the Public Service ORDER NO 21 of 1970. The relevant
portions thereof reads as follows:-
"11. The provisions of this Part apply to each public officer
who at the at the material time holds on permanent terms a public
office that is pensionable under the provisions of the law relating
to the pensions of the public officers for the time being in force.
12. (1) Subject to the provisions of the other subsections of this
section, a public officer shall have the right to retire from the
public service, and shall be so retired, on attaining the age of
fifty five years." [My underlining]
October, 1990 the applicant attained the age of fifty five years.
This is a compulsory age of retirement. He did not retire. Those
responsible for the retirement of public officers in the public
service inadvertently or corruptly ignored the fact that the
applicant is not legally entitled to remain in the public service
after his attainment of 55 years of age. [See section 12 (1) cited
above. He managed to convince someone to issue a Casualty Return -
Annexure "TM7" attached to the Founding Affidavit, showing,
falsely, that this applicant's service has been extended for a
further period of forty-eight (48) months beyond the normal
retirement age. According to the personnel officer of the Ministry of
Natural Resources, one Mrs M. MOQHALI, this was wrong because no such
extension had been granted by the Minister of Public Service as
"TM2 and TM3". In annexure "TM2" it is indicated
that this applicant attained the age of fifty five (55) years on 25th
October 1990 and he was not granted an extension of pensionable
service. [My underlining]. An attempt was made even though it was now
late, to seek approval for fifty-four (54) months extension. This was
solemnly for the purpose of facilitating payment for the period for
which this applicant had continued to render his services well beyond
his age of retirement. There seems to have been no response to that
request. TM3, a further request was made, still, there was no
approval. Belatedly, on 10th September 1996, a letter was written to
this applicant by the Principal Secretary -Natural Resources, one Mr
MABOTSE LEROTHOLI. He indicated in this letter, that the applicant's
period of pensionable service has been extended retrospectively,
ending on or about October 1995. The applicant was to be given
terminal benefits up to that date. It was on receipt of this letter
that this applicant approached the court and sought the relief stated
at the beginning of this judgement. At the age of sixty-one (61)
years, he still does not want to go on his retirement.
applicant in this matter, reached the compulsory retirement age of
fifty (55) years on the 25th October 1990. Beyond this age of
fifty-five years, the public officer shall be retained on permanent
and pensionable terms if in the opinion of
Minister, it is in the public interest to retain such a public
officer from time to time for periods which in aggregate shall not
exceed five (5) years. [Section 12(4) Public Service Order No. 21 of
1990]. In October 1996, when this applicant filed this application
and obtained the Rule NISI which he now seeks to confirm, he was now
sixty-one years old. The further extensions of his service which he
claims were sought on his behalf by his Departmental Head, were in
fact not granted.
October 1995, this applicant claims, that his service was farther
extended for a period of seventy-two months. He attaches to his
Founding Affidavit Annexure "TM3" as proof of the granting
of such extension. It is denied that the applicant was ever granted
any extension of service as alleged. The perusal of "TM3"
clearly shows that it was a document addressed first to the Principal
Secretary, secondly, to the Minister. There is a space provided on
this document, where both the Principal Secretary and the Minister
should sign and date the document, for the purpose of signifying
their recommendation and approval respectively. The Principal
Secretary did not recommend to the Minister that this applicant's
period of permanent and pensionable service be extended.
Consequently, the Minister did not approve of any further extensions.
Therefore it is fallacious to claim as this applicant does, at
paragraph 5 of his Founding Affidavit, that he was granted (72)
seventy-two months extension from October 1995.
fact that the extension was recommended or sought does not entitle
the applicant to claim that it was granted simply because he was
willing to be retained should there be a need for his retention.
the recommendation for the retention of this applicant beyond the
compulsory age of retirement was actually granted, it would have been
done in direct conflict with the specific provision in The Public
Service ORDER No. 21 of 1970 - section 12(4). The provisions of this
section, relating to the total length of the period of extensions, is
peremptory. The section decrees that the period of the extensions in
question "Shall not exceed in the aggregate five years".
Therefore it would have been irregular to grant this applicant
further extensions of the period of pensionable service once he has
reached the age of sixty years. When he first approached the court in
1996 and obtained ex-parte the order that he be reinstated or
retained in the Public Service when he was then sixty-one years of
age, was unlawful because the law governing retirement of the public
officers at that time forbid further extensions beyond that age.
[Section 12(4) PUBLIC SERVICE ORDER NO. 21 of 1970]. His claim for
his retention in the civil service beyond the compulsory retirement
age must fail.
on an alleged contract of employment must be supported by the
production before this court, of the copy of the alleged, contract if
it is a written contract. (Vorster v Herrselman 1982 (4) SA 857 (0).
Before this court, the applicant has produced letters of requests for
extension [see Annexure TM2, TM3]. There is no document signed by the
applicant and his employer, specifying that there is an agreement
between the parties for the extension of the service of this
applicant for a further period of seventy-two (72) months. Annexure
TM3 on which the applicant relies, there is no agreement between the
parties. There is only an express wish of the official who acted on
behalf of this applicant. Therefore there is no contract of
employment for a period of seventy-two (72) months between this
applicant and his employer. His claim based on this ground must fail.
reasons, the application is dismissed with costs.
Applicant: Mr E.H. Phoofolo
Respondents: Mr T. S. Putsoane
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