HIGH COURT OF LESOTHO
Application of :
' MUSA Applicant
(R.SA.) HEAD OFFICE) 1st Resprondens
(MASERU BRANCH OFFICE) 2nd Respondent
MAHULA 3rd Respondent
by the Hon. Mr. Justice M.L. Lehohla This matter came before me for
hearing on 10th August 1988.
applicant approached this Court on motion proceedings against the
respondents for an order
her dismissal by the 3rd respondent null and void,
the 1st and 2nd respondents to reinstate her with all her
rights and benefits,
the 1st and 2nd respondents to pay the costs of this application if
they should oppose it,
the 3rd respondent to pay the costs of this application, for any
further and or alternative relief. The application
3rd respondent is reflected on papers as the employee of the 1st
respondent. He holds office of a Senior Representative in
premises occupied by the
respondent in Maseru. The 1st respondent is the head office stationed
in the Republic of South Africa.
founding affidavit the applicant set out that she was employed by the
2nd respondent on behalf of the 1st respondent in December,
common cause that the applicant was stationed in Maseru for the
regular discharge of her duties with the 2nd respondent during
subsistence of her employment. The applicant was employed as a
receptionist under the terms and conditions spelt out in annexure
appears that due to experiencing breathing difficulty the applicant
consulted Dr Matsela in 1985 and was advised to avoid smoky
environment. The second opinion that the applicant sought in 1986
confirmed the previous doctor's diagnosis.
applicant was accordingly granted an internal departmental transfer.
Annexure "B" shows that in approving this arrangement
management informd the applicant that with the exception of her
salary her disi-gnation and grading would change.
"C" suggests that there was a discuss ion between the
applicant and the 3rd respondent. It appears that the thrust
discussion centred on the applicant opting for going back to the cash
office. The 3rd respondent's attitude was favourable
applicant's preferance save that the 3rd respondent insisted that the
applicant should produce a medical certificate showing
the she was
then fit to work in a smoky environment. Apparently this Cash office
is frequented and occupied by people who smoke
most of the time. The
3rd respondent gave the applicant up to a Friday to produce that
certificate. The letter advising her bears
28.1.1987 stamp mark of
the 2nd respondent.
"D" shows that the applicant's doctor indicated that the
applicant's allergy to smoking warranted that she
smoking as this constituted
hazard to her. The doctor recommended that the applicant should work
in an office which is free from smoking and smokers.
appears that on 25th November 1986 the 3rd respondent had addressed a
letter to the 2nd respondent's Manager recommending that
applicant be transferred to Head Office Lesotho or some other office;
alternatively he asked if she could not be referred to
the Medical Division for treatment until her ailment had been
cleared. In that letter the 3rd respondent had indicated
that it is
the mine workers who smoke a lot in his offices and as these were his
clients he was at a quandery what to do to make
them desist from
applicant complains that this letter and in particular the portion
recommending that she be referred to specialists were ignored
clearly spelt out in that letter the writer-did not strictly make any
such recommendation. He merely wished to be advised
if there was any
possibility whereby those Senior in authority could have the
applicant referred to specialists.
event Coetzer the deponent who is the 1st respondent's manager in
Lesotho averred that the specialists of the Medical Division
to in annexure "g" are general practitioners employed by
TEBA in the Republic of South Africa and the applicant's
employment did not provide for medical treatment by these general
practitioners or by any other Company employees,
or make provision
for any liability whatsoever in respect of a medical condition
pertaining to the applicant. Significantly this
averment has not been
gainsaid by the applicant.
lays stress on the fact that the proposed reference to the
specialists was an alternative proposal. The main one being that
applicant be transferred to another job; and this seems to have been
done out of sympathy
applicant's health problems for the 1st respondent had no need for
her services in the new but rather in the old position
which she had
respondent had expressly advised the applicant that the transfer
would affect her grading, and that the new post carried
grading than her existing post.
further emphasised that the applicant was aware that the 1st
respondent uses the Paterson grading system, which pays higher
salaries in higher grades and vice versa. Nevertheless, the 3rd
respondent explained to the applicant that despite her transfer
granted at her request, there would be no reduction in her salary,
but under the circumstances it would not be possible to
future routine annual increments until there was a closer
approximation between her salary and the salaries of the other
members in her job category.
In para 9
of her founding affidavit the applicant avers that on 9th January
1987 she was asked to sign an undertaking by which
accept not to be entitled to an increment which the rest of the staff
would receive in July. The applicant refused to
sign this undertaking
for she regarded it as contrary to the express or even implied terms
of her original contract. To her this
appeared to be no more than a
mere ruse or afterthought devised by the respondents to form part of
the new conditions of her transfer.
applicant avers that she was confronted with three options, namely
sign the declaration not to get increment, or
go back to cash office, or
accordingly chose to go back to cash office for she realised the
respondents were not prepared to assist her in her plight even
she is a member of the Fatal
and Illness Insurance Scheme of the Rand Mutual Assurance Company and
as such is entitled to expert medical treatment,
and that if her
services are to be terminated due to illness it should be with
specific recommendation by medical officers. She
thus bemoans the
fact that the 3rd respondent gave her until Friday 30th January, 1987
to produce a medical certificate of fitness.
response to the above Coetzer averred that as the Lesotho Manager of
the 1st respondent he is charged with the general administration
the affairs of the 1st respondent in this country. Amongst his duties
are the employment and dismissal of staff members and
employees. Acting in this capacity he had delegated to the 3rd
respondent powers and duties to act as he did on clear instructions
and with full authority from Coetzer himself.
acknowledged that annexure JC2 is a true copy of the document which
the 3rd respondent asked the applicant to sign.
further states that this document does not impose a new condition of
employment on the applicant but merely confirms in writing
consequences entailed in the Paterson grading in so far as they
relate to the post offered in a smoke-free environment. All
is a formal acknowledgment from the applicant that she accepts the
said consequences specifically the fact that routine
salary increments will be affected. This gives rise to a dispute of
fact regarding which see Stellenbosch Farmers'Winery
Winery 1957(4) S.A. 234.
applicant refused to sign the document in question.
avere that by refusing to sign it the applicant created a severe
predicament for both herself and the respondents. On the
one band she
had produced a medical certificate by which the respondents
considered themselves bound, to the effect that she should
in an environment permeated by tobacco smoke, while on
hand she had refused to accept the implication of the reduced
Paterson grading pertaining to the only alternative post
her, and by her refusal had prevented the respondent from employing
her in the post.
averred that from 9th to 23rd January, 1987 the applicant performed
no duties. It was only after a series of discussions were
various possible alternatives open to the applicant were considered
that a solution was lighted upon on the basis of which
chose to return to the post in the,cash office.
respondents however, mindful of the fact that the applicant had
obtained a medical certificate stating that she should not work
the cash office where the atmosphere was always fusty and heavy with
tobacco smoke asked her to obtain a further certificate
of assuring them that her health condition had improved to the extent
that it could bear the hazardous atmosphere
prevailing in the cash
office without trouble.
Coetzer explains that the letter of 28th January 1987 was merely a
confirmation of the discussion previously held and not intended
demand for the production of a medical certificate but as an
indication that if the applicant wished to return to the cash
the 1st respondent was eager to be satisfied that the applicant was
physically able to perform her duties there.
appears to be some merit in the respondent's denial that the 1st
respondent was not prepared to assist or help the applicant
alleged for evidence exists to show that the 1st respondent acceded
to the applicant's transfer in the first place.
admitted by the respondents that the applicant is a member of the
Fatal Accident and Illness Insurance Scheme but denied that
membership entitles the applicant to medical treatment or other
benefits alleged by her. The explanation given as to the benefits
accruing from this
that it provides for a payment on [death of a member. Hence not the
applicant but her nominated beneficiary would be entitled
benefit in the event of the applicant's death in service.
appears that it was on account of the deadlock that had been reached,
namely that work in the cash office was detrimental to
s health on the one hand while on the other hand she had repudiated
the alternative post offered" to her on
her own application,
that the manager decided to terminate the applicant's services.
important to note that it was decided not to dismiss the applicant
summarily but to terminate her services in terms of section
of the Employment Act 21 of
party may terminate a contract
any other case, by payment to the other party in lieu of notice of a
sum equal to all wages and other remuneration that would
due to the employee up to the expiration of any notice of
termination which may already have been given or which might
have been given."
avers that he was compelled to take this step because the applicant
had for a long time been not performing any duties and
because by her
own doing there was no post for her to occupy; and consequently it
became clear to him that there would be no point
in inviting the
applicant to continue to work for a further month. However the 1st
respondent offered the applicant one month's
salary in lieu of
of the appliant's services was effected in terms of annexure "F"
. Payment of her salary for the month of
February 1987 was tendered
in lieu of one month's notice in the sum of M558.38. The applicant
refused to accept the payment. But
see CIV/APN/81/87 'Nena vs Pionec
Motors (Pty)Ltd. (unreported) at p. 3 where it was said
"The employee has no right to refuse to accept payment in lieu
of notice and to insist on being given notice."
instead wrote JC5 to the 3rd respondent. The upshort of this letter
is that as no lawful cause for termination of her services
given by the employer and no opportunity granted her to reply or
comment on any accusations giving rise to the termination
contract she still regarded herself as an employee of TEBA. She
expressed the hope that the 3rd respondent's letter would
be passed on to the proper authorities by him.
respondent approached her at least three times instructing her to
leave the premises becasue she had been dismissed. Ultimately
applicant averred that annexure "J" was written without the
1st and 2nd respondents' knowledge. But Coetzer on behalf
respondents denies this. No replying affidavit has been filed by the
applicant to deny or even qualify the respondents'
contents herself with saying through her counsel that Coetzer's
statements are hear-say. But Coetzer indicated
from the outset that
averments made in his affidavit are within his knowledge and/or
appear from the records under his control
further that he verily
believes them to be true and correct. Yet there is authority for the
view that the correct approach where
disputed facts are not replied
to by the applicant is to accept the respondent's version together
with those which are common cause.
seems therefore to be no reason why the court. should doubt that the
letter annexure "F" was written upon Coetzer's
instructions. Nor should any doubts be allowed to cloud his assertion
that the 1st respondent repeatedly ratified the action
of the 3rd
respondent. In any event the 3rd respondent has confirmed as true
what has been said on behalf of the 1st and 2nd respondents.
reasons I regard as true averments contained in paragraphs 19.1
applicant made much of the obiter statement made by a judge of this
Court in deciding CIV/APN/89/87 where her application was
on technical grounds that she had not then sought the assistance of
her husband as required by law. The learned judge
that the applicant was in his view wrongfully dismissed.
application has been thus brought here on the same facts for the same
have perhaps strengthened the applicant's case if the papers before
the court then were made to stand as pleadings and
converted into a trial followed by an order that the respondents be
absolved from the instance.
matter stands now it amounts to an abuse of process and on that
ground alone ought to be dismissed . I don't see what role
intended to be played by the 2nd respondent in these proceedings.
decided to assess and consider the merits of the applicant's case but
have found on the basis of the relevant law and
the decided cases on
the matter i.e. CIV/T/450/85 Bernard Sepetla vs Metro Lesotho (Pty)
that there is no merit in this application. It is therefore dismissed
Applicant : Mr Monyako
Respondents : Mr Koornhof.
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