CIV/T/450/85
IN THE HIGH COURT OF
LESOTHO

In the matter of :

BERNARD SEPETLA

vs
METRO LESOTHO (PTY) LTD.

JUDGMENT

Delivered by the honourable Acting Chief Justice Mr.
Justice J.L Kheola on the 22nd day of December, 1986.

The plaintiff sues the defendant for damages in the

following amounts:

1. 
   payment of M1.140-00 damages for wrongful
   dismissal;

   
   

2. 
   payment of M25,000-00 damages for animus
   injuriandi;

   
   

3. 
   payment
   of M629-00 in lieu of notice;

   
   

4. 
   payment of M1,330-00 severance pay; and

   
   

5. 
   M1,500-00 damages for malicious procedure.

   
   

The plaintiff claims interest at the rate of 11% per
annum from date of demand to date of payment and costs of suit.

/

-2-

In his declaration the plaintiff states that he started
working for the defendant from the 1st day of March. 1978 and in 1983
he was
promoted to the position of Receiving Manager at the
Butha-Buthe branch of the defendant.

On the 10th May, 1985 the defendant purported to dismiss
plaintiff from its employment with effect from the same day for no
lawful
cause and ordered him to leave its premises immediately.

Upon his purported dismissal the plaintiff requested the
Butha-Buthe Manager of the defendant to supply him with a certificate
of
service in terms of the Employment Act of 1967, whereupon the said
Manager issued the plaintiff with a document, the last paragraph
of
which reads as follows:

"Metro Management terminated his services with the
Company after a satisfactory proof that Bernard was misusing Company
property."

The plaintiff denies that he misused Company property
and alleges that the document was calculated to and did injure him in
his dignity
and self-esteem.

Lastly, the plaintiff alleges that on or about the 28th
May, 1985 the defendant wrongfully, unlawfully and maliciously set
the criminal
law in motion against him without any reasonable cause
and laid a false charge against him which the authorities declined to
prosecute.

In its plea the defendant states that it dismissed the
plaintiff on the 9th May, 1985. The defendant was entitled to dismiss
the plaintiff
summarily by reason of the plaintiff abuse of
(alternatively theft of) the

defendant's
property.

-3-

Despite the defendant's aforesaid right to dismiss the
plaintiff summarily, the defendant made a without prejudice offer

to
the plaintiff, in terms of Which

1. 
   the plaintiff would leave the defendant's
   premises
   immediately,

   
   

2. 
   the plaintiff would not be required to work
   during
   any "notice" period;

   
   

3. 
   the defendant would pay to the plaintiff the
   sum of
   R1,024-85 in respect of salary for 9
   days, leave pay for 52 days,
   notice pay and
   over-time pay for 15 hours.

   
   

The aforesaid payment would be in full and final
settlement of all the plaintiff's claims against the defendant. The
plaintiff orally
accepted the offer and he accepted the payment of
R1,024-85.

The defendant states that it did explain to the
plaintiff the reasons for the dismissal of the plaintiff, and the
plaintiff admitted
to Mr. Hart and Mr. Setlaba (on defendant's
behalf) that he had misused company property.

The issues before this Court which have to be resolved
are

the following:

1. 
   Was the dismissal of the plaintiff wrongful
   and
   unlawful?

   
   

2. 
   Had the plaintiff misused or stolen the defendant's

   
   

property?

3. 
   Did the defendant lay a false charge against
   the
   plaintiff; and

   
   

4. 
   Did the defendant impair the plaintiff's personality

   
   

by writing a certificate of service which disclosed that

-4-

the defendant had misused company property.

The plaintiff testified that about two weeks before his
dismissal the branch manager of the defendant one Mr. Setlaba, came
to his
(plaintiff's) department during tea-break. The manager
snatched the bread he was eating, looked at it and then gave it back
to him.
After that the manager took a damaged box of peanut-butter
from where damaged articles are kept and carried it to his office.
The
manager never uttered a single word when he did all these things.

On the 10th May, 1985 he was called to the office of the
branch manager and found Mr. Setlaba and Mr. Hart who is the regional
manager
of the defendant. Mr. Hart told him that the box before him
had been found hidden in his (plaintiff's) office and that he was
being
dismissed summarily. He was ordered to leave the premises of
the defendant immediately. He was asked to sign a certain document
purporting
to show that his services were being terminated; ho
refused to sign that document (A1) because it did not state the
reason why he
was being dismissed. Mr. Hart refused to give the
reason why he was dismissing him except to say that the evidence he
received from
the branch manager was sufficient. He was forced to
leave the premises of the defendant immediately. Before he left he
was asked
to come on the following Monday to collect his wages.

It is common cause that on Monday he came back and
received a cheque to the value of R1,024-85. The amount was made up
as follows:

Wages for 9 days - R131-54

Leave pay for 57 days - R833-08

Notice pay for 1 month - R380-00

Overtime pay for 15 hours - R 43-05

Less P.A.Y.E. - R362-67

-5-

The plaintiff says that he did not accept the above
amount as full and final payment from the defendant because it did
not include
severance pay and he was not happy about pay in lieu of
notice. He expected to be paid a salary for three months in lien of
notice.

Regarding the document (A3) which purported to be a
certificate of service made by the defendant's manager, he felt hurt
when he received
it because it was clear that the defendant and its
management did not wish him any luck to get another job. He says that
he never
misused the defendant's property. The document stated in
very clear terms that he was a thief and people would look upon him
as
a thief. The letter had not been published to any other people
except his lawyer. After his dismissal the defendant set in motion
the criminal prosecution against him without any justifiable cause.
The police visited him and asked him question about the theft
of
defendant's property whether he had not stolen it.

Under cross-examination the plaintiff denied that the
meeting between him and Mr. Hart lasted about an hour and that he
admitted that
he had misused the defendant's property and offered to
pay for it.

Mr. Hart deposed that on the 10th May, 1985 when he
arrived at the Butha-Buthe branch of the defendant Mr. Setlaba showed
him the
box of peanut butter which was damaged. He called the
plaintiff to the manager's office and interviewed him for about an
hour about
the box. The plaintiff admitted that he had misused the
defendant's property and offered to pay for it. He said he was very
sorry
for the wrong he had done but argued about the pettiness of the
case. The notice of termination of . service had been prepared and
the plaintiff was given the chance to read it and then asked to sign
it. He refused to sign it.

/

-6-

Mr. Setlaba deposed that one day in May, 1985 he went to
the plaintiff's department during tea-break. As he approached the
door leading
into that section he saw plaintiff make a sudden
movement as if he was hiding something. He went to him and found that
he was eating
bread smeared with peanut butter. He asked him where he
got the peanut butter from, the plaintiff said he got it from one
person
at the end control. When he was asked to give the name of that
person the plaintiff admitted that he had been caught red-handed and
asked for a pardon.

Mr. Setlaba says that he looked for what the plaintiff
was hiding and found a carton of peanut butter with two broken
bottles, there
was one empty bottle and one bottle half full of
peanut butter. He asked the plaintiff about the carton and it was
then that he asked
to be pardoned. He took the carton to his office
and made a report to Mr. Hare The latter came to Butha-Buthe about a
week later
and the interview with plaintiff was made. At the
interview the plaintiff admitted that he had misused defendant's
goods and offered
to pay.

Some of the claims made by the plaintiff may be easily
disposed of because they are clearly governed by the provisions of
the Employment
Act No., 22 of 1967. Claim (c) payment of R629-00 in
lieu of notice is wrong in law. Section 13 (1) (a) of the Act reads
as follows:

"13 (1) Every contract, not being a contract for
one period of fixed duration nor a contract to perform some specific
work or
undertake a journey, without reference to time shall be
deemed in a case where:-

(a) the contract is to pay wages at a monthly

rate or by reference to any other fixed period not
expressly covered by a provision of this subsection to be a contract
from month
to month, determinable by either party at any time-on not
less than one month's notice."

-7-

It is clear from the above section that any party to an
employment contract may terminate the contract by giving one month's
notice.
This is also confirmed by section 14 (a) of the Employment
Act 1967. Either party to an employment contract may accept payment
in
lieu of notice in terms of section 13 (4) (b) of the
Employment Act. The correct position is that on the 10th May 1985
when the defendant
dismissed the plaintiff, the latter was entitled
to one month's notice. Because the defendant wanted the (plaintiff to
leave its
premises immediately, an offer of payment in lieu of notice
was made. The plaintiff accepted the offer and received R330-00 which
was equal to his salary for one month. That is all that the plaintiff
was entitled to. If the defendant dismissed the plaintiff summarily
-
he was not entitled to any payment in lieu of notice because he was
not entitled to any notice.

The defendant purported to dismiss the plaintiff
summarily but decided that it will pay him all his terminal benefits
including wagas,
payment in lieu of notice, leave pay and overtime
pay. The severance pay was not paid on that day; it has now been paid
in full and
I need not say anything more about it. The defendant says
that it paid all the terminal benefits of the plaintiff to avoid any
future
litigation,

I turn now to claims (a), (b) and (e). The plaintiff's
story is that he was unlawfully dismissed because he never stole or
missused
defendant's property. He was not given the reason why he was
dismissed. He admits that the branch manager came to his office and
snatched the bread he was eating and examined it. After that he took
away a damaged carton of peanut butter. He alleges that the
manager
did not say anything when he did all these things. I find it most
improbable that the branch manager could not tell the plaintiff
what
he was doing and why he examined his bread and then took away a
carton of peanut butter which was apparently

-8-

found at the wrong place where it was not supposed to
be. The plaintiff struck me as being a very poor and evasive witness.
Whenever
he found that a certain question was difficult or would
destroy his case, he elected to say it was irrelevant. His story was
not
only full of improbabilities but he was so evasive that it became
clear that he was telling lies.

The evidence of the defendant is that on the 10th May,
1985 the plaintiff was called to the office of the branch manager and
interviewed
about his misuse of defendant's property. He admitted
that he had misused the property and apologised. He offered to pay
for what
he had stolen. Even on the day he was caught red-handed by
the branch manager he is alleged to have asked for a pardon. The
version
of the plaintiff that he was given no chance to defend
himself at the interview and that it hardly lasted five minutes is
totally
Improbable. The plaintiff was a senior officer within the
defendant's company and as such could not be dismissed like an
ordinary
daily paid labourer. Mr. Hart and Mr. Setlaba gave me the
impression that they were truthful witnesses who had worked with the
plaintiff
peacefully for a fairly long time and never had any
complaint against him that he was incompetent. The first written
warning was
on the 7th February, 1985 that the plaintiff deliberately
failed to complete "to follow orders".

After that first written warning the plaintiff continued
to work for the defendant and no further warnings were given probably
because
there was improvement.

I am convinced that the plaintiff was caught red-handed
stealing the property of the defendant. Claim (a) for an amount of
M1.140-00
being damages for wrongful dismissal must be dismissed on
the ground that the

-9-

dismissal was lawful in terms of section 15 of the
Employment Act 1967. The plaintiff knew very well that according to
defendant's
policy the employees could under no circumstances use for
their own benefit any damaged goods because this would encourage
employees
to damage or break the goods deliberately knowing that such
goods would be given to them.

The claim for M15,000-00 damages for malicious procedure
is based on the ground that after his dismissal from the defendant's
employment
the plaintiff was interviewed by the police on a few
occasions. He says that they wanted to know how he had left the
employment of
the defendant. He explained that he had been dismissed.
They continued to harass him till he consulted his lawyer. Some
correspondence
between the officer commanding, Lesotho Mounted Police
at Butha-Buthe and Mr. Tsotsi, plaintiff's attorney followed.
In one letter 1"Ex B1" the officer commanding said:

"I am also of the idea that your client is Senior
in the department in which he works and property is misappropriated
in his
department and his explanation would put us in light as to how
the alleged misuse came about otherwise silence in this case would
lead investigation to make him carry the burden.

However if you intend to make him keep quite and not
explain anything in regard to property under his charge this would
not only be
a bar to finalise the investigations but it would also be
a bar for Metro to reverse its decision since the finality of Metro's
decision
will depend on the results of the Police investigations.

I am sorry to say that here the police have to. question
Mr Sepetla before they can decide finally whether to go to Court or
not."

I must point out that the remark of the officer
commanding that the finality of Metro's decision will depend on the
results of the
police investigations was wrong. On the 22nd May, 1985
when he wrote that letter

/

-10-

the plaintiff had long been dismissed. It is also clear
from the letter that the police did not say that the plaintiff was
alloyed
to have stolen the defendant's property, but that as a person
in charge of that department where misappropriation of defendant's
property was reported, the police had to interview him.

It is an actionable wrong to institute, or cause to be
instituted criminal proceedings against any person maliciously and
without
reasonable or probable cause. (Law and others v. Kin and
another, 1966 (3) S.A. 480 (W.L.D.). In the instant case the
plaintiff has failed to prove on a balance of probabilities that the
report made
by the defendant's management to the police was made
maliciously and without reasonable and probable cause. The evidence
before me
is that the plaintiff was found eating defendant's peanut
butter and admitted guilt. The defendant was justified and had a
reasonable
cause to put the criminal law in motion. The fact that the
police declined to prosecute is not a proof that the defendant was
malicious.
It may well be that the police were under the wrong
impression that because the peanut butter was not removed from the
premises of
the defendant no crime had been committed. As I said
earlier in this judgment the evidence, which I believe, is that the
plaintiff
was caught red-handed unlawfully eating the peanut butter
of the defendant.

The plaintiff tarnished his reputation by misusing his
employer's property and cannot be heard to say that he suffered any
damages
when he has to blame for what happened. In the result this
claim for M15,000 must also be dismissed.

It is true that the first certificate of service issued
by the defendant's branch manager was not in accordance with the
provisions
of

-11-

section 17 (1) of the Employment Act 1967. The
certificate must state the identities of the parties, the period of
service and the
nature of the employment. In that first certificate
of service the defendant's manager gave the reason why the plaintiff
was dismissed.
Although this was true as far as the manager was
concerned the law did not allow such a disclosure. A certificate of
service is something
that one produces to a prospective employer and
it is clear that no employer would employ a person described as a
thief by his former
employer.

There are two essentials of liability in actio
injuriarum: the first one is an act constituting an impairment
of the plaintiff's personality; and, secondly, dolus or animus
injuriandi. In Whittaker v. Roos and Bateman 1912 A.D. 92
at p. 131 Solomon, J, stated the law in the following words:

"It is not necessary in order to find that there
was an animus injuriandi to prove any ill-will or spite on the part
of the defendants
towards the plaintiffs and it is quite immaterial
what the motive was or that the object which the defendants had in
view was a laudable
one. It is sufficient that the injuries suffered
by the plaintiffs were inflicted by the defendants, not accidentally
or negligently,
but with deliberate intention."

The defendant has explained that its branch manager did
not understand what the plaintiff wanted. In his evidence the manager
says
that he was under the impression that the plaintiff wanted a
testimonial. In actio injuriarum ignorance of the wrongful
character of the act complained of excludes dolus (Mckerron: The Law
of Delict, 7th edition page 56). It
seems to me that the defendant's
branch manager was negligent in not ascertaining precisely the nature
of a document to be given
to a dismissed employee. Such negligence
does not amount to animus injuriandi. It is significant that
as sonn as the plaintiff's attorney drew the attention of the
defendant to the fact that the document

/

-12-

which purported to be a certificate of service, the
regional manager of the defendant admitted that it was wrong and
apologised for
any inconvenience caused by it. This clearly shows
that the defendant never intended to injure the plaintiff.

It was submitted on behalf of the defendant that there
was no publication of that document. In my view publication was not
necessary
for this kind of injuria; it is only in defamation
where publication is necessary.

I come to the conclusion that the defendant has
successfully rebutted the presumption that it had the necessary dolus
when it issued the document complained of.

Finally, I come to the conclusion that although the
defendant had a very sound reason to dismiss the plaintiff summarily,
it did not
do so but gave him one month's salary in lieu of notice
and other terminal benefits. The plaintiff has absolutely no cause
for complaint
because he was actually overpaid by M380 for notice
pay.

In the result the entire plaintiff's action is dismissed
with costs.

J.L KHEOLA
ACTING CHIEF JUSTICE

22nd December, 1986.

For Plaintiff - Dr. Tsotsi
For Defendant -
Mr. Koornhof