CIV/APN/107/86

IN THE HIGH COURT OF LESOTHO

In the application of:-

'MABATAUNG THAKALEKOALA Applicant

v.

LESOTHO BANK Respondent

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on the 3rd day of August, 1987.

The application is for an order declaring Applicant's summary dismissal by Respondent null and void and that it should be set aside with costs.

The facts of the case may be summarized as follows: On the 3rd September, 1975 the Applicant was employed by the Respondent as a clerk on twelve months' probation which she duly completed to the satisfaction of Respondent. At the time of her dismissal the Appli­cant was holding the position of assistant sub-accountant. On the 16th January, 1986 the Applicant received a letter of dismissal which reads as follows:

2

"Dear Madam,

We regret to have discovered that you have taken part in influencing Miss Mofuoa to kite-fly her account as she claims and, in the circumstance, we find it difficult to bestow any trust on you and hence, inform you that your services with the Bank have been terminated forthwith.

Yours faithfully,

A.T. Manyanye

for PERSONNEL MANAGER."

In her founding affidavit the Applicant deposes that her dismissal was wrongful and unlawful in one or all of the following respects:-

1. She was dismissed without notice contrary to section 13 of the Employment Act 1967;

2. The said dismissal was contrary to section 15 of the Employment Act 1967;

3. The ground upon which her said dismissal is based is false and/or would not entitle Respondent to dismiss her summarily under the common law.

In his opposing affidavit Mr. A.T. Manyanye on behalf of the Respondent states that Applicant's dismissal followed an inquiry into her malpractices as an employee of the Respondent, as a result of which he made recommendations to the Manager after he had on several occassions reprimanded applicant for her abuse of the cheque book facilities and her negligence in her financial commitments. At the time of the inquiry he had discovered that one Miss M. Mofuoa who was then a new employee of the Respondent was engaging in the practice of kite-flying her account.

3

Kite-flying an account is a malpractice by bank employees which is tantamount to theft. Miss Mofuoa said that she had been taught that practice by the Applicant and that on one occasion the Applicant had given her her (applicant's) cheque leaf for this purpose.

Although the Applicant denied any involvement in teaching Miss Mofuoa the practice of kite-flying her account, Mr. Manyanye says that he found out that Miss Mofuoa had in fact used Applicant's cheque leaf on the occasion referred to by Miss Mofula. He accordingly rejected Applicant's denial of teaching Miss Mofuoa that malpractice.

Mr. Manyanye deposes that it is not true that the Applicant was dismissed without notice because payment of one month's salary in lieu of notice as well as leave pay and gratuity were made to Applicant and a pay slip is annexed to the affidavit. It is dated the 27th January, 1986 and signed by the Applicant.

Mr. Pheko, counsel for the applicant submitted that the onus as to the lawfulness or otherwise of the summary dismissal of the Applicant is on the Respondent and that the Respondent has failed to discharge such onus inasmuch as it relies on information supplied by Miss Mofuoa who has not filed an affidavit and as such is hearsay. It is not correct that Mr. A.T. Manyanye relied on hearsay when he recommended to the management of the Respondent that the Applicant should be dismissed. Following a discovery that Miss Mofuoa was kite-flying her account an inquiry was made. Miss Mofuoa said that she had been taught that malpractice by the Applicant. That piece of evidence before the board of inquiry was not hearsay, it was evidence implicating the Applicant in the commission of that malpractice. When the applicant was confronted with the accusation that she taught Miss Mofuoa to kite fly her account, she categorically denied the accusation .

4

In her allegations Miss Mofula had stated that on one occasion the Applicant had given her, her cheque leaf to enable her to kite-fly her account. Mr. Manyanye found it as a fact that on that occasion the Applicant's cheque leaf had actually been used by Miss Mofuoa for that prupose. He came to the conclusion that the Applicant was a liar and recommended that she should be dismissed.

I agree that what Miss Moruoa told Mr. Manyanye is hearsay before this Cout, however at the inquiry it was not hearsay but a direct accusation implicating her in the malpractice. Although she denied she was found to be a liar because her own cheque leaf had been used for that purpose. Even in her replying affidavit the Applicant has not explained how and why her cheque leaf was used for this purpose.

The so called kite-flying one's account is alleged to tantamount to theft committed by bank employees. The Respondent was entitled to summarily dismiss the Applicant for that very serious misconduct. The submission that the Respondent has failed to show that Applicant was guilty of misconduct inconsistent with the fulfilment of the express and implied conditions of service which would entitle the Respondent under the common law to dismiss Applicant summarily in terms of section 15 of the Employment Act 1967, as amended, is entirely untenable. I am of the opinion that under common law on employer can dismiss an employee for theft and I am told that kite-flying amounts to theft. The Applicant has no cause for complaint because the evidence before the board of inquiry found that she taught a new employee in the Bank to steal.

Clause 13 of the Respondent's conditions of service for permanent staff provides service with the Bank shall be subject to one month's notice on either side. It was submitted that this clause clearly shows that the

5

parties thereto did not want' section 13 (4) (b) of the Employment Act 1967, as amended, to apply to them and that the Applicant was entitled to notice and not cash in lieu of notice. I am of the opnion that the Applicant was not entitled to any notice or payment in lieu of notice because she was summarily dismissed. An employee who is summarily dismissed is not entitled to any notice or any terminal benefits. In the present case the Respondent did not know its rights or decided on humanitarian grounds to give the Applicant some money after more than ten years' service. The Applicant cannot say that because the Respondent did not know its rights under the law, it must be forced to reinstate an employee who has been found to be untrustworthy.

In the case of Usakos Recreation Club v. Slaney, 1950 (3) S.A. 121 at p. 123 Brebner, J. had this to say:

"If the appeal is dismissed the effect would be that an employer, who purports to dismiss his employee for mis­conduct and who from a mistaken view of the law, or from motives of charity, is prepared to pay a month's salary, notwithstanding the clear breach of contract by the plaintiff, is penalised by being compelled to pay the servant, who has been guilty of misconduct justifying dismissal, two month's salary. It would require very strong authority to convince me that where a master unequivocally dismisses his servant for misconduct and then from a mistaken view of the law undertakes to pay the servant a month's salary, such master can be held to have condoned plaintiff's misconduct and in effect taken him back into service under the earlier contract, which the master has lawfully terminated."

I entirely agree with the learned judge and in the present case the Applicant must thank her lucky stars that she was paid all her

6

terminal benefits to which she was not entitled.

The application is dismissed with costs to the Respondent.

J.L. KHEOLA

JUDGE.

3rd August, 1987.

For Applicant - Mr. Pheko

For Respondent - Mr. Moiloa.