CIV/APN/222/2001

IN THE HIGH COURT OF LESOTHO

In the matter between:

'MANTSANE TŠOLOANE-BOLEPO 1st Applicant

NTHABISENG MOLISE 2nd Applicant

'MASECHABA MORU 3rd Applicant

'MAKHABISO RAMPHOMA 4th Applicant

LINEO TSEKOA 5th Applicant

JOSEPHINE LETEKA 6th Applicant

KEABETSOE RAMAEMA 7th Applicant

TJOETSO LEHANA 8th Applicant

'MATHIBA THAKHISI 9th Applicant

TEBOHO LESEI 10th Applicant

NTSOAKI RALEJOANA 11th Applicant

SEMAKALENG PHAFOLI 12th Applicant

'MALIAHELO QHOBELA 13th Applicant

MPHO TLABA 14th Applicant

LYDIA M. KEKETSI 15th Applicant

BROGITTA CHAKELA 16th Applicant

REGINA MPEMI 17th Applicant

MARGARET MAINE 18th Applicant

MOFUTSUOA SELLO 19th Applicant

LUCY M. NCHAPI 20th Applicant

'MALESENYEHO SEHLOHO 21st Applicant

EVELYN M. MAINE 22nd Applicant

'MATHEBE M. MOLOI 23rd Applicant

AMELIA RANOTŠI 24th Applicant

SHARON KATLEHO LELOSA 25th Applicant

VICTORIA VUYISWA NTESO 26th Applicant

ADELINE KEMANE-CHABELA 27th Applicant

FAITH TŠIRELETSO PULUMO 28th Applicant

GLORIA M. SEFUTHI 29th Applicant

ELIZABETH MATŠELISO YAKO 30th Applicant

and

THE ATTORNEY GENERAL 1st Respondent

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THE MINISTER OF HEALTH & SOCIAL WELFARE 2nd Respondent

THE GOVERNMENT SECRETARY 3rd Respondent

THE PUBLIC SERVICE COMMISSION (PSC) 4th Respondent

PRINCIPAL SECRETARY - PUBLIC SERVICE 5th Respondent

CHRISTIAN HEALTH ASSOCIATION OF LESOTHO 6th Respondent

For the Applicants : Mr. K. Mosito

For the Respondents : Mr. M. Masoabi

Ruling

Delivered by the Honourable Mr. Justice T. Monapathi on the 20th day of March 2002

Counsel as before.

Mr. Masoabi was questioned by Court as to why, in view of his concession that in law there was no distinction between nurses and nurse-tutors, he would still insist on applying for viva voce evidence. His contention had been that there was a material dispute of fact.

Mr. Masoabi said the viva voce evidence in the aid of Respondents' case would be by Mr. Sekatle who would testify for Respondents. It would be to the effect that, even if it was not recorded originally, the nurse-tutors for their job specifications had already been higher due on the establishment list and their grading was also consequently higher.

The Respondent's intention to upgrade on bedside nurses, which had even been prompted by nurses' strike which had occurred, was to have only bed-side nurses upgraded. Mr. Sekatle a Principal Secretary of Public Service would

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elucidate that. That meant that there was a dispute of fact remaining namely that the intention was to upgrade bedside nurses only not nurse-tutors or other high grades.

Dr. Mosotho would on the other hand as head of Ministry of Health depose that the intention was to upgrade all nurses along the general spectrum (across the board) although bedside nurse would benefit by the upgrading by raising them by two or more notches. It was certainly not intended to leave aside nurse-tutors.

Following on an agreement already reached Mr. Sekatle had said with respect to nurse-tutors the agreement should be withdrawn because per establishment list the grading was already higher. They were eventually upgraded. But the question was that the commencement date had to be earlier since there was no good reason why it should have been later. That is why Mr. Masoabi moved that the order could read that the upgrading of nurse tutors should be with effect from the 1st February 2001 not 1st April 1998 as prayed in the notice of motion. That in addition the order should direct that each party should bear its own costs.

I did not see how there was a real/material dispute of fact when it was established that the original agreement had been to upgrade all nurses with emphasis only that the bedside nurses by a fewer notches higher. This is even born out by the fact that this (inclusion of nurse-tutors) was later sought to be withdrawn hence the present dispute.

I thought the concession that the agreement originally encompassed all nurses suggested that there was no dispute that would disable the Court to

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reach a decision unaided by viva voce evidence. The reason that bed-nurses were worse off originally is in reality a motive for the decision that ended up to mean plainly that all nurses were in the result covered by that decision without making any distinction.

In the circumstances I thought that the later decision to exclude nurse-tutor in the upgrading was discriminatory. Furthermore all things indicated that through the agreement to "upgrade all nurses" nurse-tutors legitimately expected that the decision would themselves benefit as well and that when withdrawal was later made they should have been first given a hearing. Once the matter appeared discriminatory it became unjust.

In the main there had been no distinction between bedside nurses and nurse-tutors.

The application ought to succeed with costs. My full reasons will follow.

T. Monapathi

Judge

20th March 2002