HIGH COURT OF LESOTHO
TOBACCO COMPANY (PTY) LTD Respondent
by the Honourable Mr. Justice J.L. Kheola on the 19th day of April.
action the plaintiff is claiming payment of the amount of M9,155-11
as damages the plaintiff suffered after his dismissal
defendant; interest thereon at the rate of 22% per annum a tempora
morae and costs of suit.
in this case are common cause. A written contract was entered into
between the plaintiff in Bloemfontein on the 1st November,
notice period was to be one month, unless summary dismissal was
justified. The duties of the plaintiff were to sell cigarettes
tobacco on defendant's behalf.
written agreement provided, inter alia, as follows:
employee hereby undertakes to ensure
that all monies received by him on the employer's behalf in respect
of sales of its products will at all times be reconcilable
invoices issued by the employee in respect of each such sale, and
with stocks of the employer's products in the employee's
evidenced by stock inventories issued to the employee by the
employee hereby undertakes and agrees to repay to the employer
immediately upon demand, any amounts which may be found to
by the employee to the employer, including any shortfall in the
value of stocks entrusted to the employee, or in monies
him on the employer's behalf, evidenced as aforesaid.
the event of there being any shortfall in stocks or cash as
contemplated above, the employer shall be entitled to summarily
dismiss the employee without notice or payment in lieu of notice.
evidence before this Court the plaintiff said that
troubles with the defendant started in April, 1985. He sold his
employer's products to a business concern known as Pokane Store
an amount of M1,500. He accepted a cheque for the amount. The strick
policy of his employer was that its products be sold for
plaintiff knew very well that if he accepted a cheque from a buyer he
was doing so at his own risk. The cheque he had
accepted was returned
by the bank because there were no funds to meet it. It seems that
Frasers Ltd. was the representative of
the defendant in Lesotho
because the plaintiff collected the defendants products from Frasers
Ltd. and paid the money to them after
he had sold the products. After
the cheque had bounced Frasers demanded payment in cash.
plaintiff says that he went to Pokane Store and demanded cash. The
owner of Pokane Store was unable to raise the full amount.
only M600. In the meantime the plaintiff had sold some other stock
but Frasers refused to accept the part payment and wanted
amount for all the stocks he had taken including the amount for the
returned cheque. He tried to borrow money from his
friends but he was
unsuccessful. He finally decided to go to the casino and gambled with
the M600 he got from Pokane Store plus
the money for the stock he had
taken. He was unlucky and lost all the money he had.
that things were getting worse, on the 12th June,
decided to go and tell his employer in Bloemfontein. He pleaded with
the managers of the defendant to allow him to repay
the shortage by
monthly deductions from his salary. His plea was rejected outright.
He was ordered to go and find the money.
To cut a
long story short the plaintiff eventually got a loan from Mr, Victor
Moloi in the sum of M2,400 and the shortage was paid
in full on or
about the 21st June, 1985. At the end of June, 1985 the plaintiff was
paid his full salary. However, on the 9th July,
1985 the Area Manager
of the defendant came to the plaintiff at his home and informed him
that because of the shortage that has
occurred he had been dismissed.
He was ordered to return the books of the defendant. His terminal
benefits were paid and were calculated
Fund contributions - M830.04
amount to employer - 540-08
leave pay - 426-39
evidence the plaintiff admits that there was a shortfall. I am of the
opinion that he was in breach of clauses 1 and 2 of
his contract with
the defendant. The shortfall was created by his own breach of the
policy of the defendant that its
must be sold for cash. He accepted the cheque at his own risk. The
plaintiff compounded his problems by taking all the cash
he had and
gambled with it. This was the money he was obliged to hold in trust
and pay over to the defendant.
initial shortfall was M900 after Pokane Store paid M600 in cash. But
at the end of the day the shortfall was M2,400 caused by
admitted in cross-examination that he too could not trust a person
who gambled with his money. The plaintiff was working
in a position
of trust and behaved not only in a manner which amounted to breach of
the terms and conditions of him contract but
in a manner that caused
his employer to loss faith in him. He is now regarded as an
untrustworthy person to whom the employer cannot
entrust his stock,
monies and a car with which he was provided in order to carry out his
Matooane, Counsel for the plaintiff, submitted that the defendant had
waived its right to dismiss the plaintiff summarily because
not act immediately after the shortfall was discovered.
to this submission Mr. Redelinghuys, attorney for the defendant,
submitted that the onus was on the plaintiff to prove
waiver and that
in any case waiver was not raise in the pleadings.
I am of
the view that there was no waiver. When the shortfall was discovered
the plaintiff was ordered by the Provincial Manager
of the defendant
to go and find the money. There was no promise that if he found the
money no action would be taken against him.
Immediately he made good
the shortage he was dismissed.
reasons stated above I had formed the opinion that the summary
dismissal of the plaintiff was for good cause and that all
terminal benefits that were due to him have been paid.
from the instance is granted with costs as prayed by Mr Redelinghuys.
Plaintiff - Mr. Matooane,
Defendant - Mr. Redelinghuys.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law