CIV/APN/249/83
IN THE HIGH COURT OF LESOTHO In the Application of :
JOSEPH MOABI LEBALLO Applicant
and
BASOTHO ENTERPRISES DEVELOPMENT
CORPORATION Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 28th day of August, 1986.
In an application where the applicant had moved the court for an order directing Respondent to pay him M15,840 as damages for his wrongful dismissal, interest at the rate of 12 percent per annum, costs of the application, further and/or alternative relief, the latter raised a point in limine that the former should have proceeded by way of an action and had, therefore, misconstrued his remedy in approaching the court, as he did, by way of an application.
The facts behind this application are briefly that the applicant was, on 1st August, 1979 employed by the Respondent on three months probation as a Personnel Officer. Following successful completion of his probation period the applicant was on 4th December, 1979, confirmed on permanent establishment with the respondent corporation. Shortly thereafter, he was promoted to the post of Personnel Manager on the salary of M440 a month. However, on 23rd May, 1980,the Respondent dismissed the applicant on 30 days notice and paid him all his due benefits.
The reason for his dismissal was the allegation that the applicant had been found unsuitable for his work. The applicant, however, denied the allegation and contended that the dismissal was completely unjustifiable: He accordingly lodged
2/ a complaint
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a complaint with the Labour Department who investigated the matter, found that the dismissal was unreasonable and recommended, inter alia, that the applicant should be reinstated forthwith. Notwithstanding the recommendation, the Respondent refused/ neglected to reinstate the applicant.
According to him the applicant was, as a result, without employment until 5th February, 1982 when he was employed by Lesotho Handspun Mohair i.e. a period of 20 months. Consequently the applicant prayed, inter alia, for an order against the Respondent, for payment of the sum of M15 840 plus interest being damages for the loss of income during the 20 months he was out of work and, therefore, not earning any salary. The Respondent denied the unlawfulness of the dismissal and, therefore, the applicant's entitlement to an order for payment of damages as prayed.
There can be no doubt that that case that the applicant is making out is that as a result of his alleged wrongful dismissal he has incurred, and is, therefore, entitled to, damages viz. the loss of salary plus interest in the amount of M15,840 for the 20 months of his unemployment.
Assuming the correctness of Applicant's unemployment for 20 months, it does not, in my view, necessarily follow that the quantum of damages is M15,840. That is a matter to be assessed by the court taking into account a number of factors including the question of whether or not the applicant had taken appropriate steps to minimise his damages. This granted, the amount of damages for which payment the applicant claims an order of this court can hardly be regarded as of a liquidated nature. Moreover, at the time the applicant instituted the motion proceedings for damages, resulting from his alleged wrongful dismissal, it must have been quite evident to him that a dispute of fact was bound to develop on this issue.
The mordern trend of legal authorities seem to support the respondent in his contention that, in the circumstances of this case, it was not permissible for the applicant to
3/ proceed
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proceed by way of motion proceedings and he should have instituted an action to seek his remedy. Thus at pages 30 et seq: of the Civil Practice of the Suprior Courts in South Africa (1954 ed), by Herbstein and Van Winsen, the learned authors write:
"There are, on the other hand, certain classes of cases (e.g. matrimonial causes and illiquid claims for damages) in which motion proceedings are not permissible at all."
Likewise in Williams v. Tunstall 1949(3) S.A. 835 at p. 839, Dowling, J. had this to say on the issue:
"I agree, however, that the courts must today recognise that in contemporary practice any dispute, save matrimonial causes and claims for damages but not excluding money counts, may be decided by motion proceedings in appropriate case." (My underlinings)
On these authorities, I come to the conclusion that the point in limine was well taken. The application must, therefore, fail and it is accordingly dismissed with costs.
B.K. MOLAI JUDGE
28th August, 1986.
For Applicant : Mr. Pheko For Respondent : Mr. Harley.
