HIGH COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice M.L. Lehohla on the 21st day of November,
in the above matter sues defendant for the amount of M4,720 and
interest at the rate of 11% on the said amount reckoned
December 1985 till date of payment; plus costs..
brief declaration plaintiff has set out that he was in the employ of
defendant till being summarily dismissed from employment
on or about 23rd December 1985.
further set out that at the time of the dismissal defendant
wrongfully and unlawfully withheld a sum of M4,720 to which plaintiff
alleges he was entitled. Consequently plaintiff holds in question
defendant's act of debiting plaintiff's account in the amount
referred to above. This is an account that plaintiff has with
plaintiff complains that despite numerous demands to release to him
the said sum of money defendant refuses, fails or
neglects to comply.
plea defendant denies that it acted unlawfully or wrongfully in
debiting plaintiff's account
amount of M4720.00. Defendant further avers in its plea that it
debited plaintiff's personal account in the above sum in
make for the M4720.00 cash shortfall occasioned by plaintiff's
negligence on or about 4th November 1985.
further indicates that it refuses to pay this sum to plaintiff on the
ground that defendant is entitled to the application
of set-off in
order to recoup itself from the amount lost through plaintiff's
called only one witness in support of its case.
evidence plaintiff testified that he was employed as a Bank teller
with defendant since 1979 till his dismissal on 23rd December
He states that defendant deducted a sum of M4720.00 from his terminal
benefits. It is common cause that when employed as
a Bank teller
plaintiff operated a personal account with defendant; and that the
amount in question was debited in that account.
states that he knows nothing about this amount alleged to represent a
short fall due to his negligence.
told the court that as a Bank teller his job involved serving the
agencies of the Bank. At the time of the shortfall which
gave rise to
the instant proceedings he was serving the agency at the Mafeteng
admitted under cross examination that two weeks before the shortfall
was discovered in the instant proceedings he had had a shortage
M1500.00 at the Roma Agency. Plaintiff made good this shortage. He
however denied that the reason for paying this amount to
the Bank was
that he was thereby accepting that the money had got lost through his
lack of care. He stated that his reason for
paying it was that it is
customary for tellers to pay for shortages. He remembered that
teller called Ranyali also had a shortage previously.
regard to the shortage that occurred in connection with the Roma
Agency plaintiff remembers giving the explanation of the loss
money to the management especially Mr. Khabo D.W.1. The explanation
was that while at Roma in the agency plaintiff found that
the M5.00 denomination was missing.
this money went missing he said he believed it was taken out of his
trunk. He didn't know who had taken it but he said
should have taken place at the head office.
to plaintiff the daily routine adopted in respect of tellers who
serve Agency Branches is that in the morning such a teller
money from the head office; i.e. from where it is kept by people in
charge of the stores. These are people responsible
for the strong
room. They are the officer in charge of tellers and the accountant.
At the time these people were one Phomolo Seboka
and one Bahlakoana
Moliko. The other who was in charge was the Bank Manager. Plaintiff
said the Manager does not have the keys
but he does have occasion to
go to the strong room where there is a combination. The Manager and
Moliko and Seboka knew the combination
to the strong room.
It is in
this strong room where money is kept in trunks. Every teller has his
or her own trunk. Plaintiff also had his which had
been allocated to
him by one Teboho Sopeng then teller Number One. This trunk had one
latch and a key to it.
day in question plaintiff collected his single - latched trunk from
the strong room; then left for Mafeteng Branch where
he started to
work. But when he opened his trunk to take out the money for use he
discovered that the money was not in order. It
appeared to have been
unravelled and rifled. The
bands which had been used to bind paper notes in bundles were broken.
The coins were in canvas bags while odd notes which
do not make full
bundles were bound together. On discovering this state of affairs
plaintiff phoned Maseru head office and spoke
to Mr. Khabo who was
then the Assistant Manager.
Assistant Manager advised plaintiff to check the money again. He thus
did not accede to plaintiff's request to have someone
sent over to
Mafeteng to see what plaintiff had discovered, or to establish if the
money was in the amount it ought to have been
the previous day.
checked the money and discovered a short fall of M4720. Thereafter he
phoned back to inform the Assistant Manager of the
results of the
revised check on the money as requested in his earlier telephonic
conversation with the Assistant Manager.
Assistant Manager asked him to continue with the work. But plaintiff
replied that he would not do so for fear that he would
in those circumstances.
upshot of this discussion is that plaintiff was given permission to
come to Maseru and not to work that day. Plaintiff says
disturbed by what could have happened to the money which had been in
on arrival in Maseru went to the Assistant Manager Mr. Khabo and once
more reported the events. Then Mr. Khabo referred
him to Mr. Moliko
to whom he made further explanations. Tom Manyanye happened to be
with Moliko. Then Mr. Khabo came along and
asked plaintiff to come
along with him so that he could check plaintiff's trunk. They
proceeded to the strong room. They were joined
to that place by
trunk was identified. It was still locked. Then Khabo directed the
question to Manyanye
type of trunk with one latch was still being used, as against the
double-latched type which apparently was introduced either
Roma episode or after the mishap that had previously befallen Ranyali
who was dismissed.
according to plaintiff made a demonstration and easily took out one
thousand maluti in M10.00 notes from inside the plaintiff's
single-latched trunk even although it was still locked. Immediately
afterwards he was able to take out M200.00 notes by prying
with one hand while with the other he pushed into the trunk. This
gave an indication of how insecure this type of trunk
to plaintiff Manyanye's reply to the question why this type of trunk
was still in use was that at the time there
weren't any double
latched trunks for they had been taken for repairs to Bloemfontein at
testified that these trunks were allocated to the tellers by Teller
one. Plaintiff got his from Teboho Sopeng. He was
however quick to
point out that this happened during the days of Phomolo Seboka.
further testified that as a teller he had no right to refuse to
accept a trunk allocated to him for he would be guilty of refusing
take instructions. This assertion given in his evidence in chief
stands in rather stark contrast with what he earlier said still
his evidence in chief that "I told him (i.e. Khabo) that I could
not go on with the work under the circumstances for I
feared I would
make mistakes." It thus is to be wondered how in his fear to
make mistakes he could be bold enough to refuse
to take instructions
enjoining him to go on with the work yet in the same vein he could
find it preferable to use an insecure trunk
for fear that if he
refused to use it he would be guilty of refusing to take
instructions. Taken along with the fact that he had
been made to pay
back an amount of M1500 for
of his hardly two weeks previously makes plaintiff's attitude highly
questionable if not suspect.
standpoint is to be accepted that he paid the previous shortfall
because it is customary for a teller to do so it is difficult
understand why by token of the same rule he does not feel obliged to
make good a similar shortfall.Similar in the sense that
the previous shortage as well as the subsequent one to have occurred
in the head office. The only difference being
that in respect of the
previous shortage the repayment was effected while he was still
employed whereas the subsequent payment
was effected by the
management in terms of annexure "A" when he got dismissed..
denied that the trunk he was using at Mafeteng had been discarded
after previous use by Phomolo Seboka. He stressed that
it had been
given to him by Seboka himself.
however leaves a breach in the defendant's case that Seboka was not
called to say things that defence counsel alleged he would
say namely that "He will deny that he allocated you the trunk he
had used - ? Even if he denies, he had given me
say it was among the discarded trunks which were no longer to be used
- ? He wouldn't be telling the truth.
time did he authorise you to use the trunk in question - ? He
wouldn't be telling the truth."
It is on
account of defendant's failure to call evidence to support this line
of cross-examination that plaintiff's counsel's submission
irresistible that an adverse inference on the point should be
drawn against the defence because no suggestion was
advanced that the
supposed evidence would be impossible to get due to unavailability of
the witness referred to.
becomes even more irresistible when taken along with the fact that
plaintiff though conceding that a meeting might have been
subsequent to Ranyali's episode where it was laid down as the Bank's
policy to discard the single-latched trunks in favour
of the double
latched ones, says he was not present at that meeting and is not
aware of it because it might have been held when
he was away for
three months attending a course in Johannesburg part of which was
held in Maseru in 1982.
Mr. Khabo testified that the alleged meeting where it was decided to
scrap single-latched trunks was held after Ranyali lost
money. Thus the Bank took steps by stopping the use of such trunks.
The Bank was so eager to have these trunks replaced
with more secure
ones that it authorised Agency tellers who didn't have the
double-latched trunks to use the Bank's money to buy
They were authorized to do this even in the case where they suspected
the security of their trunks to be in doubt.
argued on behalf of plaintiff that defendant erred by seeking to
persuade the court that even though the defence failed to
plaintiff was negligent as had been suggested that he refused to use
a secure type of trunk, he should nonetheless be
held accountable as
a person up to whom the Bank is to look to recoup itself. It was
argued that this new attitude by defendant
was wrong and unprocedural
for it was neither pleaded nor led in evidence.
the merits in this argument it seems to underrate the lasting
impression that I gained from the plaintiff that as a Bank
he is able to stand up to even his seniors when he thinks that their
instructions would make him act against the Bank's
best interests. It
is untenable therefore to expect a man of his frame of mind to sit
back even after suffering a loss occasioned
through use of a
defective trunk hardly two weeks before and expect that a
loss occasioned through similar means would be written of.
Mr. Moiloa's cross examination of plaintiff on the point is telling
on his attitude towards his responsibility.
"On that morning before leaving for Mafeteng you checked money
before leaving - ? No Why not - ? It is not the practice to
money every morning. But you had already lost money and you said it
had been lost at head office - Yes. Why then didn't you
check - ?
Time would not allow me. Did you do visual check of the money then -
? Not at head office. You did it at Mafeteng - ?
At Mafeteng I opened
trunk to start work not to check money visually. The reason being you
knew money couldn't be stolen from the
strong room where you
collected it - ? I had no such belief."
follow up to this question the court asked:
"You had no faith in the impregrability of the head office
strong room - ? Not so much.
But where - ? Ranyali's had been stolen there. I tell you it was not
stolen in the strong room - ? I have no such belief. The money
went missing on you at Roma Agency was found not to have been stolen
at the strong room -? I don't believe it. That was ruled
out - ? I
don't know. You can't deny that - ? I can neither deny or agree."
argument that it was not pleaded that the Bank would look to
plaintiff to make good the loss should it appear that plaintiff
didn't refuse to use the prescribed type of trunk cannot hold because
the security of the Bank's funds is an integral part of the
responsibility of the Bank's employees.
listened to evidence adduced by the only witness who testified for
the defence and was able to form an opinion that the security
measures taken by the Bank after the loss that occurred due to
Ranyali's negligence and before the loss that plaintiff suffered
respect of Bank's funds in his trunk was such that nobody but the
teller concerned could be held responsible for the. mysterious
disappearance of moneys in his trunk. It cannot hold therefore that
the money disappeared in the strong room at head office. Indeed
during evidence by plaintiff when cross-examined on the impossibility
of the money disappearing at head office it became clear
that he did
not believe his own story for this is the way the evidence went:
had no faith in the security of the strong room. Is that fair - ? It
is not fair. You had faith - ? I had but mishaps
occurred. If there
were you couldn't have had faith in the security situation of the
strong room - ? I had not yet come to that
is you knew the strong room was secure and a secure place wherein to
keep your cash - ? It was secure place where we had
to keep money."
Now comes a startling answer.
you keep money in an insecure place - ? I had no option in this
overall impression left with one after considering the evidence in
the entire case is that plaintiff was inclined to prevaricate
the evidence given on behalf of the defendant was fairly straight
forward and did serve to clarify the security situation
satisfaction as it showed a fair amount of the witness's familiarity
with the facts to which he testified unlike plaintiff's
which on material facts was characterised by lack of local colour,
was also very fair in his approach to matters which could have
implicated plaintiff without
further ado. For instance in his evidence in chief he said
"The plaintiff was present because everybody who did the
tellers' work was called.
I can't recall specifically seeing him (plaintiff) really. I don't
think it is correct that plaintiff knows of no such meeting.
Plaintiff went to Johannesburg in 1983 after the meeting was held
where this whole issue was discussed."
regard to the impregnability of the strong room where boxes were kept
Khabo said when it was suggested to him that the money
the strong room:
"My reaction was that it was impossible for his money to have
been taken from his box because with the introduction of the
mechanism the whole box should have been taken not just part of the
money in it."
further strengthens my view that the security of the strong room was
strength of Miller vs Minister of Pensions (1947)2 ALL. E.R. at 374
which says :
standard of proof
"......... must carry a degree of probability but not so high as
is required in a criminal case. If the evidence is such that
tribunal can say 'we think it more probable than not', the burden is
discharged, but if probabilities are equal it is not."
that plaintiff has failed to discharge this onus for it is impossible
for me to say that his version is more probable than
that of the
defendant whose witness was subjected to a lengthy cross-examination
which laid bare a variety of possibilities in
respect of some of
which he candidly acceded. Many of these possibilities were of a
theoretical nature and could hardly fit in
with the practice to which
Mr. Khabo testified.
the plaintiff's claim is dismissed with costs.
Plaintiff : Mr. Pheko
Defendant : Mr. Moiloa.
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