HIGH COURT OF LESOTHO
by the Honourable Mr Justice W.C.M. Maqutu Acting Judge on the 17th
was employed by the Respondent - The Lesotho Bank until the 16th
6th August 1991 Applicant made an application for an order:
Applicant's dismissal by Respondent null and void and of no effect;
Respondent to reinstate Applicant in his former position with
Respondent to pay the costs of hereof;
Applicant further and/or alternate relief; This application was
opposed by Respondent as more fully appears in Respondent's
of intention to oppose dated 8th August 1991.
nutshell Applicant's basis for his application are summarised in
paragraph 19 of his founding affidavit in which he says that:
was dismissed without being given a hearing or notice of the
was not found guilty of misconduct as defined by Clause 11 of the
conditions of employment of Lesotho Bank - Conditions of
Permanent staff annexed to the application and marked "PS1".
who was then on what Respondent styles "permanent
establishment" had not had his contract of service marked
terminated in terms of Clause 12 for incapacity or inability to
perform duties efficiently, continued ill health,
abolition of post,
violation of the oath of secrecy, gambling or. any other matter
prejudicial to the good running of the Bank.
up the non-justification of Respondent in terminating his employment
Applicant has annexed a copy of a letter from the Principal
Finance dated 6th October 1989 in which it is recorded that the
Minister of Finance discussed with the Managing Director
Agricultural Development Bank the employment of Applicant (Phomolo
Seboka) by that Bank. In the said letter marked "PS5"it
said that during Applicant's employment with the Lesotho Bank no
criminal activity was brought to the attention of the Minister
Finance. Respondent also relied on a verbal discussion he claimed he
had had with Mr Moloi the Manager of Respondent on the
1990. In that conversation the said Manager is alleged to have
encouraged Applicant to challenge his dismissal by
writing to the
Personnel Manager. This alleged conversation has not been challenged
by Respondent .
a bit odd that on the 25th October 1990 a Manager of Respondent
should have encouraged Applicant to challenge his dismissal.
an Answering Affidavit made through its Personnel Manager) Respondent
claimed Applicant had been dismissed for a breach
of discipline of
refusing to obey lawful orders during an investigation of the
disappearance of a cash trunk containing M57 000
in cash, Applicant
brought testimonials from senior officials in Respondent's
management. These were the following:-
letter dated 22nd April 1992 marked "PS10" from Mr
Monyane, the General Manager Lesotho Bank, puts Applicant as a
of intergrity, impeccable character and great potential. The
significant thing is that the Respondent's General Manager gave
Respondent's adversary (the Applicant) this certificate of good
conduct while these legal proceedings (of which the said General
Manager is very much a part of) were in progress. The Court is
genuinely puzzled by this?
letter or recommendation marked "PS11" from Mrs K.M.
Kaphwiyo dated 16th April 1992 in which this colleague of Applicant
says good things about Applicant. Among the things she says are that
she worked with Applicant closely for five years when Applicant
Chief Teller. She further adds Applicant "maintains a good
image of a typical banker." Mrs Kaphwiyo has not stated
rank nor is her letter written on the Lesotho Bank stationery.
Applicant also does not disclose the rank of Mrs Kaphwiyo
paragraph 13 of his affidavit.
is finally a letter marked "PS12" from a person that
Applicant at paragraph 13 of his affidavit claims is the
Finance and Chairman of the Board. A. L. Thoahlane as Principal
Secretary Finance issued the letter "PS5".
attempt was made to challenge annexure , PS"10, 11 and 12"
although they were taken from the new Chairman and new General
Manager of Respondent when these proceedings were already pending.
Although they were made to challenge the allegation that Applicant
had been dismissed for misconduct, I believe if it was not true they
were made in the full realisation that these proceedings were
pending, Respondent would have sought leave to challenge this
averment. This behaviour on the part of the leadership of Respondent
is very puzzling and compounds the problems of the Court in deciding
Geldenhuys for Respondent did not seriously challenge the main
premises of Applicant's application on the method of dismissal.
hearing was given nor was Applicant accused of any misconduct at the
time he was dismissed by Respondent. The letter from Respondent
marked "PS2" reads:-
Dear Mr Seboka,
TERMINATION OF APPOINTMENT
Please be informed that the management of the Bank hereby relieves
you of your duties and responsibilities as an employee of the
with immediate effect.
General Manager of the day Mr P.T. Mafike from his letter of 20th
February 1989 marked "PS3" handed in by Applicant
the 22nd August 1988 he had a discussion with Applicant in his
Office. That General Manager does not say
discussed on the 22nd August, 1988. It appears that subsequently he
became involved in the investigation of circumstances
that led to
Applicant's dismissal. On the morning of 2th February, 1989 that
General Manager said he made a thorough investigation,
stood by the decision of management. He concludes by saying Applicant
should pursue other alternatives. In whatever
were made there is no suggestion that Applicatn was involved or that
a disciplinary hearing took place.
dismissal of Applicant from Respondent's employment null and void or
unlawful? Companies and public bodies which have an
persona are strictly governed by the Constitutions, Memoranda of
Association and statutes if they were founded by some
not done in terms of their founding document can be deemed not to
have happened at all. Hence that action is null
and void. The brains,
eyes, ears, mouth and hands of these bodies are their Board of
Directors and Committees. Usually, matters
of day to day
administration, hiring and firing junior members of staff and some
matters of discipline are delegated to a manager
or management. That
is why in K. Koatsa V National University of Lesotho C of A (CIV) No.
15 of 1986 and M. Khotle V Attorney GeneralC
of A (CIV) No. 13 of
1992 the Court of Appeal speaks of nullity of dismissal. The reason
is simply that artificial persona do not
have any physical existence
except as a body of rules which have to be complied with if the
artificial persona has to remain in
several decisions of Court of Appeal such as K. Koatsa V National
University of Lesotho (Supra) in which principle of
expectation of employee to get a fair hearing was recognised in
bodies created by statute. Browde JA in Lesoth Telecommunications
Corporation V Rasekila C of A (CIV) No. 24 of 1991 (unreported) at
pages 9 - 10 said.
"Before an employee of a parastatal institution is dismissed
he/she is entitled to a fair hearing as
he/she has a legitimate expectation that such a hearing will take
place before any prejudicial action is taken".
does the General Manager of the day Mr. Mafike allege or even suggest
that any hearing in this matter ever took place. The
"PS 2" from the Personnel Manager just informs applicant
that his employment is being terminated with immediate
assigning reasons. The Personnel Manager does not suggest any hearing
Lesotho Bank (Respondent) is a statutory body established by Order
No. 8 of 1971. It therefore seems unquestionable in the light
above decisions that the thrust of the above decisions is that
applicant was entitled to a fair hearing or some hearing.
to have been a lack of the openess that applicant was entitled to
expect in terms of his contract of employment marked
of Respondent's Answering Affidavit. The heading of this document
shows clearly that Applicant expected to be
part of the "permanent
staff" of Respondent. This apart from everything else is a
contract in which an offer was made
whose acceptance applicant
signified by signing the documents marked "EMTI".
Geldenhuys, Counsel for Respondent did not seriously challange the
Applicant's Application that the dismissal was indefensible.
nevertheless avoided conceeding this point. The thrust of his
argument was that reinstatement should not be ordered.
for Applicant relied on Koatsa V National University of Lesoth
(supra) for the proposition that a declaration of invalidity
dismissal of Applicant from employment implies that applicant's
employment was never terminated in the first place. My reading
judgment does not lead me to that conclusion. Indeed the matter of
reinstatement was never fully argued in that case. .
It seems to have
been assumed. Cullinan C J in his dissenting judgment felt the High
Court was entitled to hold that the dismissal
appellant was void. But having done that refuse to make a declaration
because Applicant's real remedy lay in an action for damages.
case M. Khotle V Attorney General c of A(CIV), No.13 of 1992
(unreported) Browde JA faced with Molai J approach that a wrongfully
effected termination of employment was not a nullity and that the
proper remedy was an action for damages said:
"With respect I think that was a wrong approach. Once the notice
was insufficient the purported dismissal was a nullity and
invalidity of the notice was. disputed appellant became entitled to
the declaration sought in terms of prayer (a) set out
as the appellant had already been in other employment the court felt
the question of unpaid salary was one that could
be pursued in
proceedings in another forum as the Appellate Court had no
information on the subject.
not be forgotten that we are here dealing with an application .
Applications in general and ordinarily were meant for urgent
interim relief. A practice has developed (over the years) of dealing
with virtually any matter by way of application provided
there is no
dispute of fact and no dispute of fact is expected. If there should
be a dispute of fact that ought to have been foreseen
the court might
dismiss the application. People normally go to court because there is
a dispute and in many of the cases that dispute
is of a factual
nature. Such disputes of fact oblige litigants to proceed by way of
action. In that event summons are issued, parties
plead and finally
on the trial date evidence is called, the dispute fully ventillated
and the court makes a judgment. In this matter
applicant chose to
proceed by way of application because he expected the matter to be
resolved on papers.
declarator order is being sought by the risky procedure of
application. Jones and Buckle Civil Practice of Magistrates Court 7th
Ed Vol.11 pages 419 -10 states that full disclosure of
important facts on which the determination of this application might
resolve be made. Has the applicant ever sought alternative
employment? In his founding affidavit applicant says once it was
realised his dismissal was unlawful he came to an agreement with
Chairman of the Board of Respondent in terms of which the chairman
would find alternative employment for applicant. It was
between applicant and the Chairman of Respondent he would accept the
alternative employment only if applicant would be given
equivalent to the one he held in the respondent bank. The question
which arises is whether or not Respondent's chairman
was or was not
acting as the Respondent's agent in doing this.
of legislation that established the Respondent Bank in 1971 (as
amended) the Minister of Finance ought to appoint a chairman.
seems the Ministers of Finance over the years appointed themselves as
Chairmen of Respondent. I hold that a chairman of any
board is not an
agent of the board of the Directors Company or statutory body unless
he is duly authorised to do so. All decision
made by a company or
statutory body must be the collective decision of the board. This is
trite law. Nevertheless, the Company
can authorise its chairman, any
of its board members, manager servant or even body of servants to be
its agents to take some decisions
to do certain things on behalf of
to look to the Board of the Respondent to resolve the issue of the
chairmans's mandate and the powers that the board had
the chairman. I have perused the file in vain for any resolution from
respondent's board authorising anybody to defend
these proceedings on
behalf of respondent. Since applicant has not challenged this aspect
of the matter the court will not make
an issue of it. Sufficeth to
say the attorneys of respondent ought to have seen that there is a
resolution from the Board of Respondent
authorising them to appear
not joined on the activities of the Chairman of
There is no suggestion and even a denial that the chairman who is
also a Minister of Finance was or was not authorised
to enter into
the agreement he entered into with applicant. The Board of respondent
may or may not have authorised the Minister
of Finance who is also
its chairman to do what applicant alleges. The Board of Directors has
its minutes which could have shed
light on this matter. We have not
been given any information on the authority and ostensible authority
that the Board had delegated
to its chairman.
respondent through its board was given the opportunity to admit or
deny the allegations that were made by the applicant, it
chose not to
deal with them at all. That being the case the court has to accept
unchallenged averment of applicant that in August,
1991 he felt he
had awaited enough for the Honourable Minister of Finance (who is
also chairman of respondent) to find for applicant
opposing affidavit of the Personnel Manager filed on behalf of
respondent claims she is duly authorised by respondent to make
affidavit. The Personnel Manager claims that she depones only in so
far as matters who records are under the Personnel Managers
concerning this matter. Although there is no resolution of the Board
of respondent to that effect is not challenged therefore,
can act on it. The affidavit of applicant has been answered only on
what was paid to applicant in what respondent intended
to be in full
and final settlement. See Applicant's letter of the 12th September,
1989. In applicant's letter of 16th September,
1989 applicant wrote:-
"With the signing of the letter I accept the payment in full and
final settlement in so far as the terminal benefits are concerned."
18th September, 1989 applicant was made to sign respondent's letter
dated 12th September, 1989. The question the court asks
itself why he
signed on this letter? Was it a withdrawal of his intention to
proceed further with the matter
had accepted his terminal benefits? This is not clear.
It is the
Courts view that the Personnel Manager and the respondent should have
discosciated themselves from the actions of the
Chairman if they had
nothing to do with respondent. Applicant's founding affidavit is far
from argumentative, in fact it is far
too brief. In these matters
where two parties are involved and they are said to have agreed there
must be a clear meeting of minds.
Applicant's letter of 16th
September, 1989 is a conditional acceptance which applicant at
paragraph 9 of his Replying Affidavit
"I accepted payment of terminal benefits which I still consider
wrongful and unlawful even then. I never waived my right to
the dismissal in the circumstances".
this acceptance have meant I am taking the terminal benefits but I
still will persue other remedies.
18th September, 1989 applicant might be seen to have reversed his
position when he signed Respondent's duplicate original
complying with respondent's offer unconditionally. Page 2 of the
letter marked "PS 4" by Applicant and marked
by Respondent reads:
"Lesotho Bank and its officials on one side and yourself on the
other side shall upon signing the duplicate of this letter
matter as closed in its entirety."
other hand applicant at paragraph 10 of his Replying Affidavit avers
he accepted the payment without prejudice. It would
on the other hand
appear that since applicant had made his position clear that that
matter was not closed, signing the respondent's
did not alter applicant. During argument it became clear that this
matter was not as easy respondent through
the Personnel Manager makes
that were decided before 1945 on the Courts attitude in cases of
master and servant might be of assistance in cases involving
ordinary master and servant relationship.
the pendulum has greatly shifted in favour of the employee. In cases
involving a statutory body such as the respondent
bank they do not
help. In this view I am fortified by what Lord Wilberforce said in
Malloch V Aberdeen Corporation 1971 (1) WLR
1578 where he said there
"What has been called 'pure master and servant cases', which I
take to mean cases in which there is no element of public employment
or service, nothing in the nature of an office or a status which is
capable of protection."
Mohamed JA remarks in Koatsa V National University of Lesotho C of A
'CIV No.15 of 1986 . In this case we have the respondent
which is a
bank controlled by statute and largely controlled by the Minister of
Finance who has extensive powers of nominating
members of the board.
Geldenhuys argued that the delay of applicant had been a period of
three years before bringing this application. In Wolgroeiers
(pty) Ltd. Municipality of Cape Town 1978 (1) SA 13 (case is in
Afrikaans) it is noted that in a review where there is
delay, prejudice to the opposite party does not have to be proved
before the court can dismiss an application on the
unreasonable delay. In that case there had been a delay of three and
half years. The Appellate Division dismissed the
the fact that it would succeed on the merits. Muller JA nevertheless,
at page 27 and 28 added.
are several judgments of our courts in which applications for review
were dismissed merely on the grounds of unreasonable
delay. That is
true. But there is also a long line of cases which clearly indicate
that prejudice is not only important factor,
but that it should also
be the decisive factor........ From the above it is clear -
prejudice should be the decisive factor;
the prejudice must have the effect that the
opposing party must be placed in such a position, by applicant's
omission, that he cannot present his case properly."
follow the remarks that Muller JA made in Wolgroeiers Afslaers (Pty)
LTD V Municipality of Cape Town (supra) and apply it
to the facts of
this case, the following picture emerges:-
Board of Directors of respondent has not rebutted the allegation
that the Minister of Finance who acted as its chairman stopped
applicant from bringing this application by promising him a job of
equal standing to the one he lost.
affidavit made by the Personnel Manager suggest that the delay is
between September, 1989 and August, 1991 which is a period
about two years.
is no clear position taken by the Board of Directors of respondent
as to its stand on this matter. There is no resolution
of the Board
on the matter. There is conflict in the ranks of Respondent in that
Chairman of the day and the General Manager
of the day of respondent
are making supporting testimonials knowingly in favour of applicant
while these proceedings are in progress.
On the other hand the
Personnel Manager is saying applicant should not be reinstated.
some of the senior employees of respondent seem to support applicant
against the Personnel Manager then the prejudice of reinstatement
would not be as great as it would other-wise be.
the other hand this delay might be prejudicial in that memories of
the parties have faded and the plight of the applicant is
senior employees to do things that are prejudicial to respondent out
making of favourable testimonials might be intended to help
applicant to get alternate employment and thus remove this problem.
is in principle wrong for litigants to wait for a change in top
managment before bringing legal proceedings because Important
witnesses are gone and consequently their advesaries in litigation
cannot present their cases properly.
for applicant and Mr. Geldenhuys for Respondent agree that
reinstatement is a discretionary matter for the court because
an order directing specific performance of a contract by the
defaulting party.The ease Haynes V Kingwilllamstown Municipality
(2) SA 372 AD at page 378 has stated that the court has to judge each
case in the light of its own circumstances and has a
discretion as to
whether or not to order specific performance. The court in so doing
is obliged to the aggrieved party's choice
to claim specific
performance. Save to say this discretion (to order or refuse specific
performance) in a fitting case must be
exercised judicially, there
are no rigid rules circumscribing this discretion.
Pheko's main submission was that the Court should grant him prayer
(a) of his application with costs. In it applicant . asks
"Declaring Applicant's dismissal by Respondent null and void."
Pheko's view is that going further and asking that applicant should
be instated is unnecessary. Browde JA in Mosala Khotle V
General C of A (CIV" No.13 of 1992 is of the view that in
circumstance where there was no fair hearing or any hearing
and no prior notice of termination at all or was insufficient:
"The purported dismissal was nullity ...... In this regard see
Koatsa V The National University of Lesotho
C of A (CIV) No. 15 of 1986. Once there was no dismissal there is no
question of reinstatement and prayer (b) was therefore unnecessary".
prayers in Mosala Khotle's case are identical to those of this case.
While in the circumstances of this case I am prepared to
declarator order of in terms of prayer (a). I have some reservations
about the automatic application of prayer (b) of
reinstatement in all
cases. This following of precedent in this way is an English stare
decisis doctrine of precedent that has
caused the English endless
reservation about the automatic reinstatement arises from the fact
that Browde JA in Mosala Khotle's case did not order automatic
reinstatement. The reason was that appellant at the time of hearing
had another job. This applicant's reticence about his employment
the time he brought this application does not help the court on the
matter. Two years have elapsed since the applicant brought
application. It might or might not suit applicant to start off where
he left with respondent. The parties should be enabled
their present situation.
greatly attracted by the wording of Mohamed JA (as he then was) in K.
Koatsa V National University of Lesotho (Supra). Consequently,
order of the court is as follows:
is declared that Respondent's purported termination of the
Applicant's appointment as Respondent's employee on the 16th
August, 1988 or at any time thereafter is set aside and declared
Respondent is directed to pay the costs of this application.
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