CIV\T\93\91

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

BANGANI
B. TSOTSI Plaintiff

v

INSTITUTE
OF DEVELOPMENT

MANAGEMENT
Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 17th day of August, 1992

Because
the plaintiff's preliminary application to strike out the defendant's
defence was upheld with costs on 14-8-92 the plaintiff's
case for
damages was heard as an unopposed matter on 17th August 1992.

Because
the damages claimed were not liquid it behoved the plaintiff to prove
them by leading oral evidence. I may just add that
in the nature of
things the plaintiff's evidence was uncontested and so was that of
his witness PW2 Mr. Chris Vusi Makhanya.

The
plaintiff testified under oath that he was born in South Africa and
started in Lesotho in 1962 where he has been living

2

permanently
ever since. He is aged 47 to date. He is domiciled in Lesotho and is
a bona fide citizen of this country.

He
produced hie Lesotho International passport as proof of his
citizenship. The passport was issued in Washington D.C. from the

Lesotho Embassy in the U.S.A. on 6-6-1969. At the time he was a
student in that country. It was handed in marked "A"
but
released to the plaintiff for safekeeping. Before then he had a
Basutoland passport No. 2142 issued at Maseru on 11-8-1964.

He
further testified that on 29-7-82 he was employed by the defendant as
Registrar Controller. On 10-10-83 he was promoted to the
position of
Country Director based in Lesotho effective from 1-11-83. Otherwise
the defendant's headquarters is in Gaborone Botswana.

The
plaintiff's initial salary was Ml4,000 p.a. This salary was
reviewable annually. It was reviewed in 1985 whereupon he received
a
total increment of M583 in that year.

On
27-8-86 the plaintiff received a letter from the Regional Director
for the defendant. In substance the letter authorised the
removal
from office of the Country Director in Lesotho. No reason was given
for this letter. Thereupon the plaintiff requested
in writing to be
given any reasons why but was

3

vouchsafed
no reply. The plaintiff handed in Exhibit "B" - a photocopy
of the letter he

received.
All correspondence received by the plaintiff is in the form of
photocopies because the originals were attached to a record
involving
him and the defendant in CIV\APN\165\87.

The
plaintiff approached one Motlatsi Morolong the Deputy Permanent
Secretary in the Ministry of Labour and Manpower Development
and the
Lesotho Government representative in the Institute of Development
Management(IDM) Board to find out about the IDM Board's
decision to
have him removed from his position. He was assured that he would be
placed somewhere within the IDM structure. That
is why he was removed
from his position. See Annexure "C".

The
plaintiff had also learnt that he had been removed because of his
ethnic background. This point was substantiated by PW2 a member
of
the Management Committee consisting of Regional Director, Country
Directors from Lesotho and Swaziland and the Registrar from
Botswana.

PW2 at a
meeting consisting of the above personages, in the absence of the
plaintiff who was represented at that meeting by the
Acting Country
Director one Selometsi Baholo learnt that the plaintiff had been
offered a study tour in Australia. PW2 says

4

this
information was furnished to the meeting by the same Baholo in answer
to a question put by the Regional Director. The committee
meeting
asked why the Lesotho Government had not released Government
subvention for the purpose, whereupon it was learnt that the
Lesotho
Government was indisposed to release money to be misused by a Xhosa.
PW2 says it was Baholo who raised the query that Lesotho
Government
would not finance a Xhosa. Baholo was supported in this regard by
Frank Dikeleli Registrar and Secretary of the Board
to IDM.

PW2 said
the plaintiff was never confronted with these allegations by the
Board.

PW2
testified that he prepared the plaintiff's terminal benefits on the
instructions of the Regional Director. This was long before
the
plaintiff was dismissed. On the plaintiff's dismissal Selometsi
Baholo was confirmed Country Director in place of the plaintiff.
PW2
says he knew Baholo to be a Mosotho and that his knowledge is
confirmed by the fact that Baholo has run for public office in
the
politics of this country. PW2 said the Lesotho Government
subsequently released subvention when Baholo was the Acting Country

Director - something it never did in respect of the Country Director
plaintiff.

5

PW2
confirmed that there was salary review due for implementation in July
1987 to June 1988. This was 20% increase across board.

The
plaintiff responded to Exhibit "B" by letter whose copy is
dated 11-9-86. See Exhibit "D",

On
3-10-86 plaintiff received a letter from the Regional Director
terminating his employment. See Exhibit "E". This letter

gave no reasons for termination of the employment. The plaintiff
responded to it by writing Exhibit "F" dated 10-10-86.
In
this letter the plaintiff was asking to be given his pension benefits
as his employment had been terminated. The plaintiff also
addressed a
letter to IDM Staff Retirement Fund. See Exhibit "G" dated
8-10-86. IDM Staff Retirement Fund is an organ
of IDM responsible for
retirement benefits of the defendant's employees. When the plaintiff
failed to get an immediate reply he
handed the matter to his
attorneys.

The
plaintiff noticed that the defendant had also approached its own
attorneys Messrs. Kirby, Heifer & Collins in Botswana through

correspondence that subsequently ensued between the parties'
respective attorneys. The first of such letters was one dated 28-1-87

in which for the first time the defendant's attorneys acknowledged
that the plaintiff was entitled to 10%

6

retirement
settlement. See Exhibit "H".

Further
correspondence ensued whereupon in terms of Exhibit "J"
dated 13-3-87 it was suggested by the opposing party that
the
plaintiff should accept the sum of M6 438-29 in full and final
settlement of all or any claims owing to the plaintiff.

The
plaintiff accepted the amount only in so far as it was in settlement
of his pension and not in respect of any other claims he
felt he had
against the defendant. He subsequently protested against this offer
in so far as it purported to be in settlement of
the claims extending
over and above the claim for pension. Accordingly his attorneys
registered the plaintiff's protest in a letter
marked "K"
dated 1-5-87. The plaintiff finding no satisfaction from the
defendant applied on 16-8-90 for a declaration
in Court that the
termination of his employment was wrongful and unlawful. He was
accordingly granted the declaration sought by
Kheola J in a judgment
dated 17-10-90.

Meantime
the plaintiff had for three years been engaged in hunting for a job
in various institutions and places. See pages 42 to
46 of the bound
record. He ultimately secured employment in the Transkei on 15-11-89
as Director of Personal Services in the University
of the Transkei.

7

The Court
is satisfied that the plaintiff tried all he could to mitigate his
damages in the period referred to between his dismissal
by the
defendant and re-employment in the Transkei. The Court also saw an
original certificate of employment issued to the plaintiff
by that
University and released the certificate to him for safe-keeping. A
photocopy was handed in marked Exhibit "L".

The
plaintiff accordingly said he was claiming damages quantified in the
amount of M135 820 being salary and ancillary benefits
he would have
earned in the three years representing a period in which he was
unemployed had it not be for wrongful and unlawful
dismissal by the
defendant. He also claimed damages for injuria in the amount of M50
000. These latter damages are based on the
fact that his dismissal
was without cause. There was no misconduct on his part justifying his
dismissal. An aggravating factor
in that dismissal is that it was to
take place with immediate effect thus falsely imputing to him gross
misconduct while in the
defendant's employ. This caused him
undeserved embarrassment and anxiety. He claimed that a person in his
position should have
been given full notice to serve if his
employment had been terminated bona fide and in terms of his
employment contract with the
defendant.

The
plaintiff testified also that he spoke to the Registrar

8

of NUL on
Friday and was shown by the said Registrar certain documents such as
the response from the Regional Director, IDM confirming
the dismissal
but refusing to give reasons therefor.

It should
be appreciated that the plaintiff strained without success to inquire
after reasons for his dismissal from the only legitimate
authority
where he could legitimately have expected to receive an answer or
some explanation. The entire exercise was wrapped in
a mysterious
aura of silence instead of a reply. Regard being had to the fact that
the truth fears nothing but concealment it would
not be wrong to
infer bad faith from the defendant's persistent attitude to disoblige
the plaintiff when the latter was asking
why he had been dismissed.
It is significant too that the subvention which had been denied the
plaintiff whilst still the Country
Director was released to Baholo
who was only Acting Country Director. Furthermore the same Baholo was
confirmed to the post immediately
after the plaintiff's unexplained
dismissal - unexplained despite several attempts to obtain reasons
for it. PW2'a evidence therefore
serves to confirm that the plaintiff
was discriminated against on grounds of ethnicity. A shameful move
that such a thing occurred
in 1986 despite provisions of the Human
Rights Act 24 of 1983 Section 2 and many other related sections
constituting the law passed
no leas than three years before the
adoption of

9

this
mystifying attitude by the defendant.

For the
above reasons the plaintiff was awarded M135 820 damages in respect
of loss of salary and ancillary benefits and M20 000
for injuria by
judgment of this Court, such damages being deemed to have been proved
by him in evidence led in this Court, No costs
were however awarded
since costs were awarded to the plaintiff in the proceedings where
his point of law was upheld with costs
three days before the hearing
of the instant matter.

JUDGE

17th
August, 1992

For
Plaintiff : Dr. Tsotsi

For
Defendant: No appearance