HIGH COURT OF LESOTHO
FLOUR MILLS (PTY) LTD
by the Honourable Mr. Justice G. N. Mofolo on the 2nd day of October.
applicant has approached this court for an order couched in the
1. Declaring the purported termination of applicant's employment
contract null and void and of no legal force and effect.
2. (a) Directing 2nd and 3rd respondents to pay applicant his arrears
salary from the purported dismissal to date.
the 2nd and 3rd respondents to pay applicant interest at the rate of
18.5% on arrear salary.
2nd and 3rd respondents to pay applicant's terminal benefits in the
nature of pension, leave pay and severance pay from the date of
termination of the contract to date.
2nd and 3rd respondents to pay applicant his remuneration in the
nature of housing allowance, utilities, transport and staff sales
allowances from the date of purported dismissal to date.
applicant such further and or alternative relief as this Honourable
Court may deem meet.
founding affidavit the applicant has alleged, inter alia and at para.
4, that at all material times the applicant was an employee of the
Lesotho Government working for Lesotho Flour Mills, Maseru and that
(para. 5) the Principal Secretary for Agriculture 'purported to
terminate applicant's contract of employment with the Government of
Lesotho per Annexure "A".
Principal Secretary had then written Annexure "B" to which
the applicant reacted by means of Annexure "D". A letter
dated 14th May, 1998 by the Principal Secretary was replied to by
applicant by Annexure "F". (vide
The applicant has also made reference to Annexure "K" and
"G" (para. 8)
appear applicant's case is that the termination of his contract is
null and void 'for failure to comply with the terms of section 64(1)
of the Labour Code in that it gave me an insufficient notice'.
'Furthermore, the termination was without reasons therefore, and
without a pre-dismissal hearing —' (para.9). At para. 11
applicant draws the court's attention to the fact that the 1st
respondent 'has now been privatised' and 'in terms of its
privatization procedure I ought to have been given a retrenchment
package----'. Applicant also draws the court's attention to the fact
that 'I still have the vehicle that had been assigned to me while I
was in employment during and before my suspension' and 'I have no
objection to returning the said vehicle provided my contract is
properly terminated in accordance with law.'
not to confuse issues, before reacting to applicant's specific
allegations in his founding affidavit as sketched above, I wish first
to refer to
in Lesotho Mills & Another v. Sehohoana Kao LLR 1997-98 p.322
which reflects at p.325 charges of fraud brought against the
applicant for the period September, 1996.
letter from Principal Secretary for Agriculture dated 9th December,
1996 refers to Public Service Act, 1995 so that it can be inferred
that then the applicant was a public servant. Apart from this, the
Court of Appeal in its judgement came to the conclusion that then the
respondent (now applicant) was a public a servant. The Principal
Secretary also invited the respondent (now applicant) to make
representations in writing not later than 13th December, 1996. In
terms of the judgement, 'if appellants wish to extricate themselves
from the position they are now in,' amongst other things 'they must
conduct a proper disciplinary enquiry giving the respondent a fair
opportunity to answer all the evidence they may wish to rely on as
grounds warranting the dismissal of the Respondent-----'. (the
reported text is wrong here and I have relied on the original text C.
of A. (CIV) No. 17/97) which reads, further, 'until that is done they
must face the fact the letter of 9th December, 1996 has no force of
and the Respondent remains in their employ though on the agreed
'unrecorded leave' and is entitled to the benefits emanating from the
terms of his employment.' It is also noteworthy that following
concession by Mr. Makhethe for the Attorney-General, the court found
as a fact that the Public Service Act, 1995 did not apply to the
respondent (now applicant). I wish also to underscore the fact that
in dismissing the appeal, the Court of Appeal also found that the
respondent (now applicant) 'is entitled to the benefits emanating
from the terms of his employment'.
heels of the judgement referred to above, which was delivered on 4th
February, 1998, according to annexure "KC" dated 1st June,
1998 and annexure "KC" of 2nd June, 1998 with heading
PAYMENT OF MR. S. J. KAO'S SALARY & BENEFITS, it would appear two
cheques were drawn in favour of the applicant in the amount of
M91,865.40 and M69,105.48 respectively, cheques acknowledged by B.
Sooknanan & Associates on 2nd June, 1998 in respect of Court
Order CIV/APN/170/97 being annexure "Z5".
gone into the issue of the Court of Appeal case and CrV/APN/120/97
above to isolate facts and demonstrate that what was paid in these
cases has nothing to do with the present application in that the
applicant's case is restitution or payment of benefits arising from
14th May, 1998 when his contract of employment was terminated.
as it may, but I think the court must determine first when, actually,
applicant's contract of employment was terminated. From the record of
proceedings it would appear 3rd respondents acknowledging applicant's
letter of 8th April, 1998 had conveyed to the applicant certain of
his (3 rd respondent) motives and directions including the intention
by the 3rd respondent to terminate applicant's contract of
letter the 3rd respondent informs the applicant 'though charges
against you have been dropped, much water has flowed under the bridge
since the later days of your suspension.' Examples of the water
flowing under the bridge are given as:-
of the 1st respondent the result of which being that 1st respondent
will have a new owner with new employees, retrenchment of employees
on a massive scale; further, 'no present employees, including the
head of the 1st respondent will be entitled as of right to be
employed by the new owner.'
3rd respondent then refers to his good working relationships with
Mr. Letsoela who acted during applicant's 'suspension and my
perception is that he is doing extremely well as the Head of the
Lesotho Flour Mills, far better than yourself during your spell of
office as General Manager.'
3rd respondent says given circumstances in 2 above staff
relationships could be strained and to continue working with
applicant would not be in the best interest of the 1st respondent.
applicant was invited to make representations which the applicant
rejected out of hand in his letter of 6th May, 1998.
As for 1.
above, what for would applicant's contract of employment be
terminated, because of privatisation. I don't think so because in
terms of Act No.3 of 1999 Lesotho Flour Mills (Vesting) Act, 1999
A person who is permanently employed under the Trading Account before
the commencement date and is not under notice of dismissal or
resignation, on the commencement date, becomes an employee of the
company on the same terms and conditions as that applicable under the
contract of employment of a person referred to under sub-section (1)
shall, on the commencement date, be deemed for all purposes to be a
single continuing contract of employment.
Vesting Act appears to Have had a retroactive operation for it came
into operation on the 18th February, 1998, and by the way, when it
came into operation the applicant has been re-instated into his
position by the Appeal Court on 4th February, 1998 barely two weeks
before the Vesting Act, 1999 came into operation. When the Vesting
Act, 1999 came into operation, the applicant was on the staff of the
1st respondent, was not under notice of dismissal or resignation. 3rd
respondent's assertion of 1st respondent hiring 'new employees' and
'no present employees including the head of Lesotho Flour Mills, 'not
being' entitled as of right to be employed —' on the
privatisation of the 1st respondent is to be seen as a farce, false
As for 2
above, it is not the fault of the applicant that the latter was
falsely implicated and suspended from duty thus ushering in a
situation in which the applicant is no longer wanted. Conditions
which now make applicant unwanted are not of his making and he cannot
be made to suffer because of
Concerning 3, above, that if applicant continued in his employment
staff relations would be strained and it is in the interest of the
1st respondent that the applicant should be removed from office I
could not disagree more for equally it is in the applicant's interest
that he should be removed from office for good cause and this court
has found no such good cause; nor is this court oblivious of the
judgement above re: Lesotho Flour Mills and Another v. Sehohoana Kao
in which at p. 329, I repeat, the Court cautioned:
' if the appellants wish to extricate themselves from the position
they are now in, they must conduct a proper disciplinary enquiry
giving the respondent a fair opportunity to answer all the evidence
they may wish to rely on as grounds warranting the dismissal of the
Respondent from their employ.' Further, 'until that is done, they
must face the tact that the letter of 9th December, 1996, has no
force or effect and the Respondent remains in their employ------'
for the respondents, charges against the applicant have now been
dropped and once more, it is up to respondents to extricate
themselves from the awkward position they have created for themselves
for, in the view of this court, the letter of 14th May, 1998
purporting to terminate applicant's employment with the 1st
Respondent has no force or effect and applicant remains in their
the application is granted in its substantive with costs to the
Applicant : Mr. Mosae
1st Respondent : Mr. Malebanye
2nd Respondent: Mr. Letsie
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