CIV/T/523/86
IN THE HIGH COURT OF LESOTHO
In the matter of :
MOKHBTHI THAHANE Plaintiff
V
LESOTHO BANK Defendant
JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the 21st day of November, 1988,
Plaintiff in the above matter sues defendant for the amount of M4,720 and interest at the rate of 11% on the said amount reckoned from 23rd December 1985 till date of payment; plus costs..
In his brief declaration plaintiff has set out that he was in the employ of defendant till being summarily dismissed from employment by defendant on or about 23rd December 1985.
He 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 defendant.
Accordingly plaintiff complains that despite numerous demands to release to him the said sum of money defendant refuses, fails or neglects to comply.
In his plea defendant denies that it acted unlawfully or wrongfully in debiting plaintiff's account
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in the amount of M4720.00. Defendant further avers in its plea that it debited plaintiff's personal account in the above sum in order to make for the M4720.00 cash shortfall occasioned by plaintiff's negligence on or about 4th November 1985.
Defendant 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 negligence.
Each side called only one witness in support of its case.
In evidence plaintiff testified that he was employed as a Bank teller with defendant since 1979 till his dismissal on 23rd December 1985. 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. Plaintiff however states that he knows nothing about this amount alleged to represent a short fall due to his negligence.
Plaintiff 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 branch.
He admitted under cross examination that two weeks before the shortfall was discovered in the instant proceedings he had had a shortage of 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
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another teller called Ranyali also had a shortage previously.
With regard to the shortage that occurred in connection with the Roma Agency plaintiff remembers giving the explanation of the loss of money to the management especially Mr. Khabo D.W.1. The explanation was that while at Roma in the agency plaintiff found that money in the M5.00 denomination was missing.
Asked how 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 its disappearance should have taken place at the head office.
According to plaintiff the daily routine adopted in respect of tellers who serve Agency Branches is that in the morning such a teller collects 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.
On the 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
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rubber 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.
The 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.
Plaintiff 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.
Then the Assistant Manager asked him to continue with the work. But plaintiff replied that he would not do so for fear that he would make mistakes in those circumstances.
The upshot of this discussion is that plaintiff was given permission to come to Maseru and not to work that day. Plaintiff says he was disturbed by what could have happened to the money which had been in his trunk.
Plaintiff 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 Phomolo Seboka.
Plaintiff's trunk was identified. It was still locked. Then Khabo directed the question to Manyanye
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why that type of trunk with one latch was still being used, as against the double-latched type which apparently was introduced either before the Roma episode or after the mishap that had previously befallen Ranyali who was dismissed.
Mr. Khabo 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 it open with one hand while with the other he pushed into the trunk. This gave an indication of how insecure this type of trunk was. According 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 CHUBB.
Plaintiff 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.
He 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 to take instructions. This assertion given in his evidence in chief stands in rather stark contrast with what he earlier said still in 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
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no fault of his hardly two weeks previously makes plaintiff's attitude highly questionable if not suspect.
If his standpoint is to be accepted that he paid the previous shortfall because it is customary for a teller to do so it is difficult to understand why by token of the same rule he does not feel obliged to make good a similar shortfall.Similar in the sense that he suspected 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..
Plaintiff 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.
It however leaves a breach in the defendant's case that Seboka was not called to say things that defence counsel alleged he would come and say namely that "He will deny that he allocated you the trunk he had used - ? Even if he denies, he had given me that.
He will say it was among the discarded trunks which were no longer to be used - ? He wouldn't be telling the truth.
At no 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 becomes 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.
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It becomes even more irresistible when taken along with the fact that plaintiff though conceding that a meeting might have been held 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.
Indeed Mr. Khabo testified that the alleged meeting where it was decided to scrap single-latched trunks was held after Ranyali lost the Bank's 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 proper trunks. They were authorized to do this even in the case where they suspected the security of their trunks to be in doubt.
It was argued on behalf of plaintiff that defendant erred by seeking to persuade the court that even though the defence failed to show that 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.
Whatever the merits in this argument it seems to underrate the lasting impression that I gained from the plaintiff that as a Bank employee 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
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Subsequent loss occasioned through similar means would be written of.
Indeed 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 check 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."
As a follow up to this question the court asked:
"You had no faith in the impregrability of the head office strong room - ? Not so much.
By Defence Counsel:
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 that 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."
The 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.
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I have 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 in 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:
"You 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 conclusion.
The truth 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.
"Would you keep money in an insecure place - ? I had no option in this instance."
The overall impression left with one after considering the evidence in the entire case is that plaintiff was inclined to prevaricate while the evidence given on behalf of the defendant was fairly straight forward and did serve to clarify the security situation to my satisfaction as it showed a fair amount of the witness's familiarity with the facts to which he testified unlike plaintiff's testimony which on material facts was characterised by lack of local colour,
Mr. Khabo was also very fair in his approach to matters which could have implicated plaintiff without
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any 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."
With regard to the impregnability of the strong room where boxes were kept Khabo said when it was suggested to him that the money disappeared in 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 new mechanism the whole box should have been taken not just part of the money in it."
This further strengthens my view that the security of the strong room was beyond question.
On the strength of Miller vs Minister of Pensions (1947)2 ALL. E.R. at 374 which says :
the 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 the tribunal can say 'we think it more probable than not', the burden is discharged, but if probabilities are equal it is not."
I find 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.
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Consequently the plaintiff's claim is dismissed with costs.
JUDGE.
21st November, 1988.
For Plaintiff : Mr. Pheko
For Defendant : Mr. Moiloa.
