CIV/APN/332/97

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

KHOAI
MATETE APPLICANT

and

THE
CHAIRMAN OF I.D.M. BOARD OF

GOVERNORS
(MR. T. KHATI) 1st RESPONDENT

THE
INSTITUTE OF DEVELOPMENT

MANAGEMENT
2nd RESPONDENT

THE
ACTING COUNTRY DIRECTOR

OF THE
INSTITUTE OF DEVELOPMENT

MANAGEMENT
(T. SEKHAMANE)

JUDGMENT

Delivered
by the Honourable Mrs. Justice K. J. Guni on the 4th day of August
1999

The
events leading to the institution of this proceeding by this
applicant may be briefly summarised as follows.

In April
1993 the applicant herein was appointed as a Country Director -

1

Lesotho
Institute of Development Management (hereinafter referred to as IDM).
This IDM is a company registered in Botswana in accordance
with the
laws of Botswana. Its Head Office is in Gaborone - Botswana. It has
offices in Maseru, Lesotho also in Mbabane, Swaziland.
The applicant
was on probation for a period of twelve (12) months. On completion of
his probation, he was duly confirmed as a permanent
and pensionable
staff member of IDM. As a Country Director the applicant was in
charge of overall affairs of the organisation in
LESOTHO. He reported
directly to the Regional Director at the Regional Office in Gaborone,
Botswana.

In 1995
there was a vacancy at the Regional Office, for a citizen of either
LESOTHO or SWAZILAND. This applicant was offered and
he accepted on
secondment a contract of employment as a Regional Director IDM based
at Headquarters in Gaborone - Botswana. The
appointment to the
regional office was for a period of thirty six (36) months,
commencing on 1st October 1995, in terms of that
contract of
employment on secondment. It was a condition of the contract of
employment as a regional director - that all conditions
of service,
entitlements attached to the applicant's position as a Country
Director -Lesotho, will be frozen, on acceptance by
this applicant of
the offer of employment as a regional director, until the end of the
contract. (My

2

underlining)

This
applicant must have taken up residence in Botswana and started to
perform his duties as a regional director IDM - based at
Gaborone
from the 1st October 1995 or thereabout. When this applicant left the
position of the country director - Lesotho, Dr.
M. Khaketla was
appointed to fill the vacancy so created for a period equal in length
with the period for which this applicant
was appointed a regional
director. Dr. Khaketla as a country director must have reported
directly to this applicant as a regional
director in Gaborone
-Botswana. This applicant must therefore have been aware that the
vacancy, he created when he left Lesotho
country directorate, has
been filled up. While this applicant was performing his duties as a
regional director in Botswana there
arose some problem between him
and the Botswana Police Department of Corruption and Economic Crime.
The problem concerned him personally
not in his official capacity. It
would appear this applicant was charged or threatened with charges
apparently connected with his
alleged corrupt practices as a regional
director there in Botswana. The applicant regarded this as unfair
treatment and harassment
by Botswana Government's Department of
Corruption and Economic Crime. He appealed to the IDM Board for
support and assistance.
Instead of joining the fight with Botswana
police on this

3

applicant's
side, at its 52nd Meeting held in Maseru - Lesotho the Board of IDM
reprimanded this applicant for his corrupt action
or actions.
Whatever they were, those corrupt practices, it is not the matter for
determination before this court. The Board nevertheless
still
undertook to request the Department of Corruption and Economic Crime
to afford the applicant the treatment befitting his
status as a
regional director. Exactly what kind of treatment was envisaged as
befitting his status as a regional director, is
not exactly spelled
out. It seems the actions so far taken and those contemplated by the
Board of IDM did not produce immediately,
the desired result
particularly on the part of this applicant. On the 8th and 9th July
1997 at its meeting in Swaziland the Board
considered amongst other
issues, this applicant's indictment by the Botswana Government which
appears to have proceeded with the
criminal charges which were
levelled against this applicant. It was resolved at that meeting to
suspend this applicant from his
position as a regional director
pending the finalisation of those criminal charges against him. This
decision was communicated,
to the applicant by the Chairman of the
Board there and then, verbally. The letter was written to the
applicant - perhaps formally
informing him of this decision to
suspend him pending the finalisation of the criminal charges against
him. An attempt to deliver
it to the applicant was unsuccessful
according to the unchallenged averment of the Chairman of IDM - 3rd
respondent herein. The

4

impropriety
of suspending this applicant without first giving him a hearing on
the matter of criminal charges against him, is not
an issue before
this court. Since no suspension was in fact effected, there is no
suspension. On the 16th July 1997 the applicant
resigned and his
letter of resignation was received by the Chairman of the Board who
was still holding onto the applicant's letter
of suspension. This
applicant never received that letter. I therefore repeat, there is no
suspension and I will not deal with it.

Being now
in receipt of this applicant's letter of resignation the Chairman of
the Board convened a special Board meeting of IDM's
three (3)
chairpersons to consider it. Those three chairpersons acting on
behalf of the Board accepted the applicant's resignation.
There was
still about fifteen (15) months contract period remaining when he
resigned. This acceptance of his resignation was communicated
to the
applicant successfully by a letter dated 12th August 1997 -attached
to the Founding Affidavit - marked Annexure "C".

This
applicant avers, that on the 19th August 1997 he went into his office
at the premises of 2nd respondent in Maseru, Lesotho
and found his
office occupied by Mr Sekhamane who according to the deponent of the
Opposing Affidavit, was appointed acting country
director - Lesotho,
when Dr. M. Khaketla the

5

holder of
that position, was moved to act in the position of a regional
director in Gaborone, left by this applicant's sudden departure
from
Botswana. Upon discovering that there is someone in what he calls his
office and presumably performing the duties of the country
director -
Lesotho, this applicant left and returned at the end of the month to
collect his salary, where upon 3rd respondent indicated
to him that
he has not been given any instructions to process the said payment.
It was at this juncture that this applicant immediately
proceeded as
he did with this application against all the three respondent.

I have no
problems with the applicant's claim that he is entitled to return to
his original position occupied by him prior to his
taking another
position on secondment. NATIONAL UNIVERSITY OF LESOTHO v THABO
MOEKETSI Lesotho Law Reports and legal Bulletin 1995-96
at Page 102 -
103. The contract between the parties did not only acknowledge such
an eventuality but it has made it one of the
terms of service in the
new contract of employment as a regional director that all conditions
of service, entitlements attached
to the applicant's position of
country director - Lesotho will be frozen, on acceptance of the offer
of employment, as a regional
director, until the end of the
employment contract. It was more than probable that this applicant
will return to his position as
country director - Lesotho. There is
even a

6

specification
with regard to the time of his expected return.

This term
of the contract - freezing of conditions of service and entitlement
-creates a need for time to give those conditions
and entitlement an
opportunity to thaw. Although there is this provision for a return to
the original position, there must equally
be a term, implied if not
spelled out clearly to make that position available for reoccupation
by this applicant. The position
of a country director - Lesotho which
was held by this applicant prior to his taking up another appointment
on secondment as a
regional director, based at Gaborone in Botswana,
was filled. It was not left vacant awaiting his return. The filling
of the vacancy
was not to frustrate his eventual return; but it was
for the proper functioning of the organisation here in Lesotho. As
shown in
the letters of appointment of this applicant, as a country
director - Lesotho, he was organisation's official responsible for
all
its activities in Lesotho and reported directly to the regional
director in Gaborone Botswana. The activities of IDM in Lesotho
were
not frozen along with the terms and conditions of this applicant as a
country director - Lesotho, during the tenure of his
appointment in
Botswana. By filling the vacancy created the applicant's departure,
the organisation was not creating an impossibility
in order to stop
the applicant from returning to that position. There was a special
provision of thirty six

7

months
for the status quo to obtain. Any disruption occurring during that
period needed to be organised and arranged in such a way
that other
employees are not in that process prejudiced for no fault of their
own. The sudden move made by this applicant was by
itself disruptive.
The organisation must be given an opportunity to make appropriate
arrangements.

The
applicant resigned without even giving the requisite three months
notice in terms of the contract of employment. In this era
of human
rights and accompanying frills, applicant should not consider only
himself and only his rights. They do not exist and/or
operate in
vacuum. There are limitations to his rights. Those limitations are
made by existence of other people's rights. The respect
should be
accorded to everyone's rights. The terms of the contract of
employment are intended for smooth running of the organisation
which
can be afforded by the smooth relationship between the organisation
and its staff members. The requirement of giving notice
for taking
any adverse action against anyone is for providing an opportunity for
proper adjustment to be made. Immediately upon
his resignation, the
applicant went into his office in Maseru which he found occupied.
What did he expect? That the person who
had been engaged to perform
those duties which were performed by him as a country director -
Lesotho should be expelled also without
notice now that he

8

has
resigned bis position without notice? That will definitely be the
rule of the jungle. The parties must sit down and discuss
what moves
should be made to accommodate this sudden and unexpected return more
especially that the natural expectations were that
this applicant
will be a regional director for thirty-six months. He spent only
about half that contract period. The organisation
was not prepared
for this sudden return without prior notice more especially that
there were other people who have contractual
rights to hold that
position to which he want to return before the expiration of
stipulated period.

The
organisation needed time in order to make appropriate adjustments for
the reopening of the applicant's position. There is no
provision in
the contract for the applicant's return and assumption of his duties
as a country director -Lesotho before the expiration
of (36) thirty
six months. The expected return at the end of the contract must
relate to the period of thirty six months. This
is most probable,
especially considering that the person who was engaged to occupy the
position of the country director was tied
down in terms of his or her
contract of employment to a term similar in duration to that of the
applicant.

Now I
shall deal with each prayer as set out in the Notice of Motion. The
first prayer deals with dispensation with the Rules of
Court as to
the periods and

9

modes of
service, due to the urgency of this matter. Events moved pretty fast
immediately after the IDM Board meeting of the 9th
July 1997 in
Swaziland. On the 16th July 1997 this applicant resigned from the
position of the regional director. His resignation
was accepted by
the Board of IDM by the letter dated 12th August 1997. On 19th August
1997 applicant was in Lesotho at the institute's
office in Maseru,
without any prior notice to the office that he is returning to occupy
his office. He found it occupied by somebody
else. The applicant did
not indicate that he has now returned and ask the office to make
arrangement to accommodate his unexpected
return. He left and
returned again I suppose without any prior notice or discussion
regarding his return, to collect his salary
cheque. In their latest
correspondence with the respondents the only money issue raised and
discussed was terminal benefits. There
was no talk of monthly salary
cheques to be collected at Maseru Office. It appears to me that
during the period immediately preceding
the institution of this
proceedings there was a serious communication breakdown between the
parties. That is the cause of these
proceedings. When the applicant
failed to get what he wanted instead of discussing the matter
amicably with the Lesotho office
now that he had left Botswana, he
hastened to take a legal action against them.

Despite
that urgency the matter has dragged on to nearly two years. The

10

parties
negotiated and reached a settlement which after a long time , when
they came to court to have it made into court order,
there emerged
some disagreement and they started all over again. So there were
times when parties neglected the urgency with which
the matter was to
be treated . They simply forgot it. The rest of the prayers set out
in the Notice of Motion deal mainly with
the matters which are
governed by the contract of employment between the parties. Take for
instance prayer 2. Applicant is asking
this court to declare him the
substantive holder of the post of the country director of IDM
Lesotho. This position was held by
him before secondment. There has
been no termination. The position was in terms of their contract only
"frozen". The
parties to that contract can by arrangement
thaw or reactivate the position in order to make it ready for
reoccupation by this
applicant.

As
regards prayer 3,I am a little bewildered. It is the averment of this
applicant that he resigned as a regional director of IDM
on 16th July
1997. (Paragraph 4.6 of Founding Affidavit). The 1st respondent on
behalf of the board wrote a letter to the applicant
- a letter in
which the applicant's resignation was accepted. It is in the common
cause that this applicant has resigned. The two
parties terminated
their contractual relationship themselves. The reservation made by
respondent regarding the period of Notice
does not affect the
validity of the

11

termination
of the said contract.

Nowhere
in the affidavits, is a suggestion that the contract of employment of
applicant as regional director is suspended.

In the
two prayers 4 and 5 this applicant is asking this court to direct
respondent to allow him to resume his duties as a country
director -
Lesotho and payment of his salary. In the main, the judgment has
dealt with these two prayers. It is unfortunate that
such a long time
has lapsed since the institution of this proceedings which commenced
initially as an urgent application. There
seems to have been an
impression that settlement has been reached in November or December
of 1998. It is the subsequent rejection
of that settlement, by this
applicant which has returned the parties back in court. As I have
already pointed out earlier on in
this judgment the return to the
office of the country director (IDM) Maseru, Lesotho must be in
accordance with the terms of the
contract of employment on
secondment.

The
applicant cannot be put in that office any other way except as
expressly provided for after an expiration of that contract period,

which is (36) thirty six months. Prior to the expiration of that
period, this court, cannot order that the

12

This
application is therefore dismissed with costs.

K.J. GUNI
JUDGE

4th
August 1999

For
Applicant: Mr Maieane

For
Respondents: Mr Molete