HIGH COURT OF LESOTHO
SAM LEKHAFOLA Plaintiff
LIQUOR DISTRIBUTORS Defendant
by the Honourable Mr. Justice J.L. Kheola on the 15th day of April,
action the plaintiff is claiming the following:
of three months' notice in the amount of M1,008-00;
of other terminal benefits;
of the sum of M4,032-00, plaintiff's remuneration for twelve months;
thereon at the rate of 12% calculated from April, 1986.
declaration the plaintiff states that since March, 1984, he was the
employee of the defendant till the 18th April, 1985 when
word of mouth unlawfully dismissed him from his work.
plaintiff contends that defendant had to give him at least three
months notice or payment in lieu thereof on termination
service. Defendant had to pay him terminal benefits e.g. pension
paragraph 6 of the declaration the plaintiff states that -
"Before plaintiff was unlawfully dismissed by defendant, his net
monthly salary was M336-00, it is now twelve months since
was not paid his monthly salaries, the total to date is M4,032-00.
Plaintiff holds defendant liable for payment of this
defendant has taken an exception in terms of Rule 29 (1) of the High
Court Rules 1980 to the plaintiff's claim on the following
excepts to the claim for payment of other terminal benefits on the
grounds that no cause of action whatsoever is made
Declaration does not contain sufficient averments of fact to entitle
Plaintiff to payment as claimed. In fact,
is no indication whatever as to what amount is claimed by the
Plaintiff in respect hereof; Defendant also excepts to the
payment of the sum of M4,032,00 in respect of remuneration for
twelve months. Plaintiff has already claimed payment
of the sum of
M1 008,00 being payment of salary in lieu of three months' notice
and, in the premises, Plaintiff is not entitled
to make any further
claim for payment of remuneration for a full year.
general rude is that an exception must go to the root of the matter
and that if it does not destroy the whole cause of action
it is bad in law (see Goller and others v. van der Merwe 1903 T.S.
157, Naylor v. Central News Agency, 1910 W.L.D. 90).
case of Dharumpal Transport v. Dharumpal, 1956 (1) S.A. 700 (A.D.),
it was held that an exception cannot be validly taken
declaration on the ground that it does not support one of several
claims arising out of one cause of action.
case of Barrett v. Rewi Bulawayo Development Syndicate, Ltd., 1922
A.D. 457 it was held that an exception should not be taken
particular sections of a pleading unless they are self-contained and
amount in themselves to a separate claim or a separate
the case may be, but the exception should be to the pleading as a
instant case the cause of action is unlawful dismissal and under
that cause of action the plaintiff is making several
claims as set
out above. The exception is directed at claims 2 and 3 only. It seems
to me that the exception does not go to the
root of the matter in
that it does not destroy the unlawful dismissal.
of terminal benefits is one of the claims arising out of the same
cause of action i.e. unlawful dismissal. In order to be
terminal benefits the plaintiff shall have to prove that he was
unlawfully dismissed. It seems to me that payment of
benefits is a section of the pleading and that it is not
self-contained and does not amount to a separate claim.
is attacked on the grounds that no cause of action is made out and
that the declaration does not contain sufficient averments
of fact to
entitle plaintiff to payment as claimed and that the amount claimed
is not stated. The question of payment of terminal
benefits is a
question of law provided for in the Employment Act 20.22 of 1967.
Once the employee has proved unlawful dismissal,
benefits follows automatically. In his declaration the plaintiff
alleges that the dismissal was unlawful and if he can
prove that fact
at the trial, he shall be entitled to payment of terminal benefits
which shall include pension contributions made
by him and severence
case of Salzmaun v. Holmes, 1914 A.D. 152 at p. 156 Innes, J.A. said:
"The distinction between an exception and an application to
strike out is clear. An exception goes to the root of the entire
claim or defence, as the case may be. The excipient alleges that the
plea objected to, taken as it stands, is legally invalid for
purpose. Whereas individual sections, which do not comprise an entire
claim or defence, but are only portion of one, must,
if objected to,
be attacked by motion to expunge."
to me that in the instant case the defendant ought to have made an
application to strike out or to have asked for further
because the objection, which seems to be relevant, is that the
plaintiff has not stated the exact amounts he is claiming
the objection that the plaintiff is not entitled to claim payment of
the sum of M4.032-00 in respect of remuneration for
months because he has already claimed payment of the sum of M1,008-00
being payment of salary in lieu of three months'
notice, I think the
plaintiff is entitled to claim damages for unlawful dismissal
together with payment in lieu of notice.
However, in assessing the
amount of damages the Court ought to take into account that some
amount has been paid in lieu of notice.
case I do not think that the defendant had to except, it ought to
have pleaded over and alleged that the plaintiff was not
both damages and a sum in lieu of notice. Secondly, the objection
does not go to the root of the claim because it does
not destroy the
whole cause of action which is unlawful dismissal.
result the exception is dismissed. The defendant shall pay half of
Plaintiff - Mr Phafane
Defendant - Mr. Koornhof.
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