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

-2-

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

-3-

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.