CIV/APN/105/86 IN THE HIGH
COURT OF LESOTHO

In the matter of:

'MASEBOTA KHUELE Applicant

and
BASOTHO ENTERPRISES DEVELOPMENT CORPORATION
Respondent

RULING ON POINTS RAISED IN LIMINE

Delivered by the Hon. Sir Peter Allen on the 27th day
of May, 1987

The applicant by Notice of Motion has asked this Court
for a declaratory order that the summary dismissal of the applicant
from the
employment of the respondent is null and void and that it
should be set aside with costs.

The applicant was employed by BEDCO as a project officer
from 3 June 1981 until she was dismissed on 10 March 1986 for
"unsatisfactory
job performance and conduct at work."

On the date fixed for hearing this application Mr.
Mahlakeng for the respondent in a preliminary move made three
objections in limine.
These were:

1. 
   that the applicant has no locus standi in judico;

   
   

2. 
   that the remedy sought had been completely
   misconstrued
   by the applicant; and

   
   

3. there had been non-compliance with the Rules of the
High Court.

/I shall ...

-2-

I shall deal with the first and third objections, which
are genuinely preliminary matters, before considering the second one.
I think
that it is unfortunate that the respondent has brought up
the second objection, with regard to the remedy sought, at this
stage,
because it is very difficult to consider it without going into
the merits of the case. However, both counsel have argued all three
points at some length and have cited various authorities, so I shall
give them a decision and ruling on each, but in the order which
I
have already indicated.

The first objection, then,is with regard to the status
of the applicant who, in her supporting affidavit, is described as a
"female
adult" without mentioning any marital status. Mr.
Mahlakeng submitted that it is established practice that she should
have
stated whether she was married or divorced or a widow(or even
just single perhaps?). He added that in the respondent's "Answering
Affidavit" there was attached annexture "B", the
actual employment contract of the applicant, which shows her as being
married. He cited Hahlo'a South African Law of Husband and Wife (4th
edition) on page 199 of which it states:

" As a general rule, a married woman who is subject
to her husband's marital power has no locus standi in judico, that is
to
say, she may not conduct legal proceedings unassisted whether as
plaintiff or defendant."

Apparently this applies to civil proceedings, not,
criminal, and there are a few exeptions, including when she is a
public trader,
none of which applies here. Mr. Mohlakeng also cited
the South African case of Wllson-Yelverton v. Gallymore
(1950)(2) S.A. 26 in which the applicant described

/herself ...

-3-

herself as "Mrs T. Wilson-Yelverton". The
Judge held that this did not disclose her actual status and he upheld
the

preliminary objection.

I confess that while listening to the argument on

this point I could not help wondering if this was indeed
1987 or if we had perhaps slipped back in time a few hundred years. I
thought
that it was now universally accepted, except perhaps in a few
Islamic States, that all persons, male or female had an equal right
of direct access to the Courts provided they were adult and sane.
After all, here in Lesotho, there are married women magistrates
and
advocates who are apparently regarded as being capable of handling or
deciding other people's cases by themselves, yet they are
said to be
unable to act alone for themselves as a party in a case. To me this
is both illogical and anachronistis, particularly
in cases of the
present sort.

Although the Common Law procedure of South Africa is
generally followed and applied here, I am in no doubt that, where
there is Lesotho
Legislation dealing with any particular
procedure,that legislation overrides and replaces the relevant Common
Law and Customary Law
Procedure which thus . ceases to have effect.
The High Court Rules (Legal Notice No.9 of 1980) were made under
Section 16 of the
High Court Act, 1978.

According to S.16(a) of the Act the Rules were made:

" (a) for regulating and prescribing the procedure
(including the method of pleading) and the practice to be followed in
the
Court in all causes or matters whatever."

/That seems .....

-4-

That seems to me to be comprehensive and
unambiguous
since it deals with the pleading and practice in all
causes
or matters. These rules do not make provision for
any
special requirement with regard to women, except only
that
summonses should contain the marital status of a
defendant
female (Rule 18(7) and of a plaintiff female (Rule
18(8)),
but nothing beyond that. There is no section or rule in
the
Act or Rules which provides that gaps may be filled
by
reference to the Common Law practice. Since the rules
are
expressly stated to be comprehensive it must surely
follow
that, if matters of this sort were left out or not
provided
for, then that was the intention of the legislators or
rule
makers. Blackstone said, "where the Common Law and a
statute
differ the Common Law gives place to the statute." I
believe
that applies to omissions of this sort as well as to
actual
differences in the wording.

Consequently I am of the opinion that in the High .
Court there is no legal requirement for a married woman to prove her
locus standi
or to do anything more than any other party to an action
can be required to do in this respect. Thus, she may be called upon
to prove
her locus standi as an actual litigant, just like anyone
else, but not specifically as a married woman. That disposes of the
first
point raised in limine.

I shall consider the respondent's third objection next.
This was that the applicant served and filed her Replying Affidavit
seven
days out of time. The Respondent corporation was served with
the Notice of Motion and filed its Answering Affidavit on 24 April
1986.
Rule 8(11) provides that, "Within seven days of the
service upon him of the answering affidavit aforesaid the applicant
may
deliver a replying affidavit." In fact the applicant's
Replying Affidavit was not filed and served until 9 May 1986,
fourteen
days later. Mr. Mahlakeng asked for it to be struck out of
the proceedings. Mr. Pheko referred to Rule 30 which provides for an
application to be made within 14 days to have the Court set aside any
improper proceeding or step. This was not done. There is
also an
added proviso "that no party who has taken any further step in
the cause with knowledge of the irregularity or impropriety
shall be

/entitled ...

-5-

entitled to make such application." Mr. Pheko
pointed out that both counsel had met and arranged and secured a date
for this
present hearing and a notice of set-down was con­sequently
filed on 19 March 1987, and that this was a "further step in
the
cause."

In addition, under Rule 8(10)(c),the respondent could

have declared its intention of raising the other two
objections as questions of law without filing any answering affidavit
at all,
thus having these matters dealt with before reaching the
advanced stage which this case had in fact reached.

Rule 59 gives the Court discretion "if it considers
it to be in the interests of justice, to condone any proceedings in
which
the provisions of these rules are not followed." By
accepting the Replying Affidavit of the applicant seven days out of
time
instead of rejecting it, the Court appears to have condoned the
improper procedure, though whether consciously or not is not known.

There was further apparent condonation by this Court when the matter
was fixed for hearing and the hearing commenced. Consequently,
I am
of the opinion that it is now too late and it would be unfair and
unnecessary to set aside the Replying Affidavit. The third
objection
is therefore rejected.

Before taking leave of this particular point.I should
like to comment upon a submission by Mr. Mahlakeng that "documents
filed
with the Registrar in a case are not before the Court, they are
merely papers filed with the Registrar to be perused later in Court."
It is difficult to believe that Mr. Mahlakeng was serious because
not only is this a novel idea but it is also utter rubbish and
be
ought to know that it is so. The Registrar is an officer of the
Court

/and he ...

-6-

and he opens Court files and receives documents and
files them on behalf of the Court. He is not a separate entity in
this respect.

The remaining objection was against the remedy being
sought by the applicant that her dismissal from the respondent'
employment should
be declared null and void. I find it surprising
and most unusual that there is no claim for damages here. Generally
in this type
of action there is a claim for general damages for
unlawful dismissal and for special damages for loss of earnings since
dismissal.
Mr. Pheko referred to this briefly in passing by saying
that the applicant could later bring another action for damages after
first
succeeding in obtaining a declaratory judgment in the present
action. But that cannot be so. The function of pleadings is to
define
clearly and precisely the points on which the parties differ
and those on which they agree. They are the written statements of
facts
on which each party relies in support of his case and the whole
of the plaintiff's claim must be set out. This is essential so that
neither party is later taken by surprise by the other alleging a new
set of facts or a new claim which alters the whole aspect of
the
case. It would be most improper to permit a plaintiff to break his
claim up into separate actions, for it would serve no useful
purpose,
and it would waste the time of the Court and of the other party,
apart from adding enormously and needlessly to the costs
incurred. It
would certainly be most unfair and unjust to put the defendant to the
considerable expense of having to defend two actions
when one would
clearly suffice. There is no question of this present case being in
the nature of a preliminary action for the purpose
of clearing the
way for.

another suit.

/Returning
...

-7-

Returning now to consideration of the remedy prayed for,
Mr. Mahlakeng submitted that the proper remedy in a case of this
nature was
an action for damages, and I agree. In Lord Reid's
judgment in Ridge vs Baldwin (1963)2 All E.R.66 (H.of L.) he
said:

" The law regarding master and servant is not in
doubt. There cannot be specific performance of a contract of service
and the
master can terminate the contract with his servant at any
time and for any reason or for none. But, if he does so in a manner
not
warranted by the contract he must pay damages for breach of
contract."

Usually in such cases there is a breach of contract
rather than a failure to follow whatever procedural regulations are
laid down
for dismissal. Clearly specific performance is not the
answer because no employer can be forced to employ someone he does
not want.
In Francis vs Municipal Councillors of Kuala Lumpur
(1962)3 All E.R. 633, which came before the Privy Council, Lord
Morris said (at page 637):

" In all these circumstances it seems that the
appellant must be treated as having been wrongly dismissed and that
his remedy
lies in a claim for damages. It would be wholly unreal to
accede to the contention that since (the dismissal date) he had
continued
to be in the employment of the respondents."

Mr. Mahlakeng referred to another House of Lords appeal,
Vine v. National Dock Labour Board (1956)ALL E.R. 939, which
in fact does not help his objection a great deal. In that case the
plaintiff dock worker was employed by
a statutory board set up under
an Act of Parliament. He was

/dismissed .....

-8-

dismissed as a result of a disciplinary enquiry and his
name was struck off the register of dock workers, which meant that he
could
never work on the docks again. He sued for damages and a
declaration that he had been unlawfully dismissed which the trial
judge
granted. The declaration was struck out by the Court of Appeal
but restored by the House of Lords which held that the granting of
such a declaration is a discretionary matter for the Court which la
to bo used only "sparingly" and "with extreme
caution"
add only in cases where there is good reason for it. The House of
Lords held that in Vine's case(supra) there was good reason
because of the permanent effect that removing him from the register
would have, so the declaration
was restored.

This was followed in Moliea v Ncholu & Anor
(1971-1973) L.L.R. 14 by Jacobs C.J. in 1969,where the plaintiff
teacher was dismissed by the respondents. The trial judge held
that
although the Court cannot normally order reinstatement of an employee
who has been wrongfully dismissed, there is an exception
where the
employee is a civil servant. He referred to Vine's case
(supra) and added that the exception extends to a case where the body
employing a person is under some statutory restriction
as to the
grounds on which it can dismiss him. While the Court thus had the
power to order the respondents to reinstate such a plaintiff
there
was also the Court's overriding discretion to refuse to grant
specific performance of a contract (particularly for the reasons
given above in Ridge v Baldwin and Francis v Municipal
Councillors of Kuala Lumpur.).

Thus, in the instant case, whether or not the

/declaration

-9-

declaration prayed for can have the effect of
reinstating the applicant depends upon whether the respondent
corporation is a statutory
body under a statutory restriction as to
the

grounds for terminating contracts of employment.

The respondent was established and set up by the Basoth
Enterprises Development Corporation Act, 1980 (Act 9 of 1980). It is
consequently
what is usually known as a para-statal body as distinct
from part of the Civil Service. The relevant Section with regard to
dismissals
is Section 13 which reads as follows:-

" 13. Subject to the provisions of the Employment
Act of 1967 and the Regulations of Wages and Conditions of Employment
Order
1969 -

(1)

(2) The Managing Director is the Chief
Executive
Officer of the Corporation
and is responsible to the Board

for the execution of the policy of the Corporation, has
supervision over and direction of the work and employees and
management of
its affairs, including -

(a) appointment and dismissel of staff;

(b) .. "

The Corporation "Conditions of Employment" are
contained in its Directive 402 of June 1982 (annexed to the Notice of
Motion)
and there are provisions in it for termination of service
(para.11). These are subject to the provisions of the Employment Act
(see
above), the relevant section of which is section 15 which sets
out

/how ...

-10-

how an employment contract may be terminated and when an
employee may be dismissed summarily. I shall not set these out in
detail
here since, whether or not the applicant was dismissed in
accordance with the provisions of the Act is a matter to be decided
on
the merits, which will not be gone into at this stage of the
proceedings.

The point is that I hold that the respondent corporation

is
a statutory body under a statutory restriction as to the grounds for
terminating contracts of employment. Consequently the applicant
is
entitled to ask the Court for a declaration that her dismissal was
unlawful (which might thus lead to her reinstatement) but,
of course,
that has to be proved first and, even then, it would be entirely a
matter for the Court's discretion whether to grant
it or not. But,
as I have already pointed out, such an application is normally
accompanied by a claim for damages, which is not
so in the present
case.

Accordingly, in this application in limine the two
objections concerning the applicant's locus standi and the alleged
non-compliance
with the High Court Rules are both rejected. The
remaining objection, with regard to the remedy being sought, is
mostly rejected
but also upheld to the limited extent already set
out. Since this application in limine by the respondent was only
partially successful
I shall award costs in the cause.

P.A.P.J.ALLEN

JUDGE 27th May, 1987

For the applicant : Mr. Pheko
For the respondent:
Mr. Mahlakeng