HIGH COURT OF LESOTHO
by the Honourable Mrs. Justice K.J. Guni on this 5th day of November
applicant in this matter was an employee of LESOTHO BANK from August
1985 to October 1997. At the time of her discharge from
of the bank, she had been a teller for over four (4) years. She was
charged of various acts of misconduct involving
disappearance of the
money which was in her care and custody as a bank teller. There was a
misconduct Inquiry conducted by some
designated bank employees as
shown in their report - 'Annexure D' She accepted her acts of
misconduct in respect of most charges.
She denied the allegation of
in respect of some charges. At the end of the Inquiry she was found
guilty of misconduct In all charges except two. She
failed to account
for some of the cash that passed into and through her hands as the
bank teller. She appealed to the Managing
Director against the
finding of misconduct by that bank constituted tribunal. She gave her
reasons of appeal. Each and every reason
of appeal was considered by
the Managing Director who rejected each and everyone of them before
dismissing her appeal.
now approached this court by way of an urgent application. She seeks
a court order in the following terms:-
"1. Dispensing with the periods of service as prescribed by the
Rules of Court.
a Rule Nisi do issue and it is hereby issued returnable on the date
to be determined by this Honourable Court calling upon
respondent to show cause (if any) why:
purported dismissal of the applicant by the respondent shall not be
set aside as being unlawful and unfair.
purported dismissal of the applicant's appeal noted with the
respondent's managing director shall not be set aside as null
void and of no force and effect.
respondent shall not be directed to pay the applicant the amount of
M5 855.39 (five thousand eight hundred and fifty five
thirty-nine lisente) which was withheld by the respondent from the
respondent shall not be directed to reinstate applicant.
the respondent to pay the costs of this application and in the
event of its opposition such costs to be paid on
the applicant such further and or alternative relief as this court
may deem fit.
prayers 2 (a) and (c) shall operate with immediate effect as
interim court order pending the outcome of this application."
hearing of this application the parties agreed that there should be
only two issues determined by this court. Those were:
respondent's point in limine on jurisdiction
or not the person who dismissed this applicant had authority to do
deal first with the question of the jurisdiction of this court to
entertain and determine this matter. This point of law
was raised on
behalf of the respondent, on the ground that there is a specialised
court, constituted with the sole purpose of dealing
with matters of
this nature. Section 24 LABOUR CODE ORDER, 1992. The pertinent
portion of Section 24(1) (a) to the matter under
"24 (1) (a) to inquire into and decide the relative rights and
duties of employers, employees and
their respective organisations in relation to any matter referred to
the Court under the provisions of the Code and to award appropriate
relief in case of infringement."
High Court has unlimited criminal and civil jurisdiction in all
matter, in terms of section 119 Constitution of Lesotho
beyond any dispute. For the purpose of reducing the pressure of work
on the High Court and mainly for expediting the resolution
settlements of disputes, in respect of workers and their employers,
specialised tribunal, such as the LABOUR COURT were created.
Court has come to recognise and accept that, despite its unlimited
jurisdiction, it must let go some of the reins in the
of justice in this kingdom. KOPELI MOILOA v WASA CIV/8/98 at page 4.
The role of the High Court in matters which
must be determined by
other tribunals, is to ensure that the enabling and empowering
statutes are properly followed. The applicant
herein, does not
complain about any irregularity in the application of the provisions
of the Labour Code Order No. 24 of 1993.
This is the matter which
must properly be before the Labour Court. On this ground alone, this
application must properly fail.
second issue concerns the competence of the authority which dismissed
It is argued on her behalf that the competent authority to hire and
fire the employees of the LESOTHO BANK, in terms
of LESOTHO NATIONAL
DEVELOPMENT and SAVINGS BANK ORDER No.8 of 1971, the statute which
created the said bank, is the BOARD OF DIRECTORS.
feature which is directly dealt with in Section 11 (1) Lesotho
National Development and Savings Bank Order No. 8 of 1971 is
appointment of the employees, not their dismissals. The section reads
"11. (1) The Board may appoint a secretary to the bank and such
number of officers and other employees as may appear to it
for the proper and efficient conduct of the business and functions of
the bank." [My underlining].
of the Board of Directors to dismiss, is implied, perhaps correctly
so. For this implication, that only the board of directors
power to dismiss Lesotho Bank employees, reliance is placed on
section 34(1) INTERPRETATION ACT No. 19 of 1977. The relevant
thereof reads as follows:-
"Where an Act confers a power on or imposes a duty upon a person
to make an appointment or to constitute or establish a board,
commission, committee, council or similar body the person having such
power or duty shall also have power -
remove, suspend, dismiss or revoke the appointment of, and to
re-appoint or reinstate, any person appointed in exercise of
power or duty." [My underlining].
appointed this applicant, in 1985 when she joined the bank? 'Annexure
A' attached by this applicant to her Founding Affidavit,
the letter of appointment was written and signed by the personnel
manager. Amongst the terms and conditions of employment
applicant accepted is that of termination of appointment by this
applicant and the authority that appointed her. The
precise terms of
the said condition are;
"(e) You or the authority that appointed you may give one
calender month's notice of termination of appointment for which
reason need be given."
the provision in this applicant's contract of employment. The
applicant accepted and signed the offer which then became
contract of employment between the parties. Further, by taking up the
appointment and continuing to work for the respondent,
first, as a
clerk, thereafter as a teller for
eighteen years, this applicant, clearly accepted the competency of
the personnel manager to exercise the powers or functions
authority which makes appointments according to the applicant must be
the one which dismisses her. This is spelled out in no
terms in her contract of employment. This is consistent with the
INTERPRETATION ACT. Once these powers and/or functions
and dismissing employees are removed from the personnel manager, the
appointment of this applicant also becomes a
argument must therefore be rejected. Since 1971, when it was formed,
LESOTHO BANK has grown tremendously. It now operates branches
over the country. Expediency, for the proper and efficient conduct of
its business and functions, the bank, over the years
appears to have
decentralised the day to day functions of the bank management. The
size of the number of employees would require
the Board of Directors
to be sitting everyday at every branch, determining matters of
employment and dismissals of the bank employees.
For the board of
directors to be sitting every day at every Lesotho Bank Branch is
impractical. In the case of MAPESELA v LESOTHO
BANK and ANOTHER
CIV/APN/ 426/98 (UNREPORTED). The brocard cessante ratione legis,
lex has been skilfully applied by The Honourable Mr.Justice G.N.
suspend the operation of a provision of a statute where the
circumstances justify such suspension. This would certainly
proper position to adopt where there is a definite prohibition or
exclusion. The employee in that case was even of a higher
rank than the employee in our case. Mapesela was a branch manager.
The applicant is a very junior member of staff. As
interpreted by Mr.
Panyane for applicant the order does not discriminate according to
seniority of the employees. That may be so,
but it is absurd even
merely to suggest that for the appointment of every employee of
LESOTHO BANK, from e.g. the driver, cleaner,
branch manager, for each
and every one of its branches up to the General Manager, the Board of
Directors must sit to keep itself
busy with hiring, suspending and
firing those employees. The Court of Appeal, in the same case
MAPESELA V LESOTHO BANK C of A (CIV)
NO.2 of 99 confirmed that
Section 11 (1) Lesotho National Development and Savings Bank Order
gives the board of directors discretion.
There is nowhere in that
order, where the management of the bank is prohibited from exercising
customary powers of management and
or delegating such powers.
application fails and it is dismissed with costs.
Applicant: Mr. Maieane
Respondent: Mr. Mpobole
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