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

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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

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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

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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.

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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%

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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.

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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

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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

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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