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:
that the applicant has no locus standi in judico;
that the remedy sought had been completelymisconstrued by the applicant; and
3. there had been non-compliance with the Rules of the High Court.
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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
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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."
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That seems to me to be comprehensive and unambiguoussince it deals with the pleading and practice in all causesor matters. These rules do not make provision for anyspecial requirement with regard to women, except only thatsummonses should contain the marital status of a defendantfemale (Rule 18(7) and of a plaintiff female (Rule 18(8)),but nothing beyond that. There is no section or rule in theAct or Rules which provides that gaps may be filled byreference to the Common Law practice. Since the rules areexpressly stated to be comprehensive it must surely followthat, if matters of this sort were left out or not providedfor, then that was the intention of the legislators or rulemakers. Blackstone said, "where the Common Law and a statutediffer the Common Law gives place to the statute." I believethat applies to omissions of this sort as well as to actualdifferences 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
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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
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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.
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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
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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
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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 ChiefExecutive Officer of the Corporationand 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
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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