CIV/APN/105/86
IN THE HIGH COURT OF LESOTHO In the Matter of:
'MASEBOTA KHUELE Applicant
v BASOTHO ENTERPRISES DEVELOPMENT CORPORATION Respondent
JUDGMENT
Delivered by the Hon. Sir Peter Allen on the 9th day of June, 1987
This is an action for a declaratory order under S.2(1)(c) of the High Court Act, 1978 as amended by Act 34 of 1984. I must point out that this statutory authority for the application was not mentioned in the heading of, or anywhere else in, the Notice of Motion as it should have been.
The order prayed for is a declaration that the applicant's summary dismissal by her employer, the respondent, is null and void and asking for it to be set aside. In fact, of course, if something is null and void then it no longer exists, so it cannot be set aside. The solution is to ask for an existing decision to be declared unlawful and then it can be set aside.
/The applicant ... .
The applicant was employed by BEDCO as a project officer from 3 June 1981 until her dismissal on 10 March 1986 for "unsatisfactory job performance and conduct at work."
In my earlier Ruling, on points raised in limine, I remarked on the fact that this type of application or suit almost invariably includes a claim for damages for unlawful dismissal and loss of earnings. The reason being that the courts will not order specific performance in contracts of employment since it would clearly be wrong and pointless to order someone to employ a person whom he does not want. It would be pointless because, immediately after such an order, the employer could take legitimate steps to terminate the person's employment yet again. Thus orders of reinstatement are very rarely made (except occasionally in relation to civil service posts). Such actions in court are generally concerned with claims for damages only.
The strange thing about the present action is that there is no claim for damages. Indeed even the word "reinstatement" was not used in the Notice of Motion. It was only mentioned once in Court when Mr. Pheko for the applicant, at the end of his address to the Court, remarked that "a Common Law employee is entitled to seek reinstatement but we have not done this."
So what does the applicant want? If it is not damages or reinstatement it can be nothing more than a mere declaration. Mr. Pheko asked the Court for the
/declaratory order ...
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declaratory order "even if the applicant cannot claim any relief consequential on it." He referred to S.2 of the High Court Act (supra) and to Herbstein & Van Winsen's "The Civil Practice of the Superior Courts in South Africa."
It is true that declaratory orders can be prayed for even where there is no claim or dispute of fact, but these are generally sought for such purposes as the interpretation of either a will or a deed or a piece of legislation or a term in a contract. Other purposes might be for declaring a marriage null or for declaring a person's rights in a particular matter. But the courts will not deal with academic, abstract or hypothetical questions. There must be "some tangible and justifiable advantage in relation to the applicant's position with reference to an existing, future or contingent legal right which must appear to flow from the grant of the declaratory order sought" (sea Adbro Investment Co. Ltd v. Minister of the Interior, 1961(3) S.A. 283(T)). In the present case it is difficult to see what that advantage would be. But even if there is some ground for granting an order, it is a matter entirely within the Cort's discretion whether or not to grant it.
With regard to the alleged unlawfulness of the applicant's dismissal Mr. Pheko argued that it was not in accordance with clause 11(b) of the respondent's conditions of employment (Directive 402) which states as follows:
" (b) On termination of an employee's service,
the Corporation shall give one month written notice or payment in lieu thereof."
/The basis ...
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The basis of the complaint is the letter of dismissal dated 10 March 1986 which reads as follows:
" Termination of Contract-Unsatisfactory performance
This serves to inform you that your contract of employment is hereby terminated with effect from the 10th March 1986.
This action is in light of your unsatisfactory job performance and conduct at work. You shall receive all terminal benefits to which you may be entitled to."
It is signed by the Personnel and Administration Manager. The termination date is the same date as the letter itself and Mr. Pheko submitted that this was therefore a summary dismissal. He added that since there was no mention in the letter of the necessary one month's notice nor of any payment in lieu, the dismissal was unlawful.
In reply to that Mr. Mahlakeng referred to the and written memo from the Personnel and Admin. Manager to the Financial Controller dated 18 March 1986 requesting payment of "the following terminal benefits: salary for March 10 days and payment in lieu of notice" (which was M.775, the equivalent of one month's salary for the applicant).
After calculations of what was due to and what was owed by the applicant, a cheque for M.593.59 was signed and dated 20 March 1986 and a typed memo from the accountant also dated 20 March, set out the various amounts due and deductions made. The payment in lieu
/of notice ...
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of notice was clearly included. The Notice of Motion in this case was filed on 26 March 1986 and the above cheque was apparently not received by the applicant until 14 April. Since she was not aware of the internal memos about her terminal benefits, and there was no mention of payment in lieu of notice in the dismissal letter, the applicant brought this action while under the impression that her dismissal was improper because of not being given proper notice or payment in lieu.
However, when that payment was received in April, the matter was rectified and I am puzzled as to why she then persisted in this action with nothing to gain from it. For there was nothing to gain since there has been no issue made out of the reasons given for her dismissal. Therefore these reasons can be taken as having been accepted and all. that remained was for payment to her of terminal benefits. This too was dealt with satisfactorily, though perhaps rather slowly, and no com-pLa-int has been made about the actual amount. Yet still this application has been proceeded with.
With regard to the reasons for the applicant's dismissal Mr. Pheko submitted, rather half-heartedly I thought, that when an employer gives any grounds for a dismissal he must substantiate those grounds. He was unable to cite any authority for this, when asked to do so, and I find the submission both unconvincing and unacceptable. In support of that I would refer once again to my earlier Ruling in which I quoted from Lord Reid's judgment in Ridge v. Baldwin (1963)2 All ER 66 (H. of L.) in which he said:
/"The law ...
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" 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 none. But, if he does so in a manner not warranted by the contract he must pay damages for breach of contract."
It is plain from that passage that no reasons or substantiation can be required. The employer just has to pay up what benefits are due and any damages r fulting from the dismissal, and I agree with that.
The remaining part of the applicant's complaint is that the dismissal letter contained no reference to any notice or payment in lieu of notice. It merely referred to terminal benefits and Mr. Pheko argued that payment in lieu of notice was not a' terminal benefit and so there was a breach of the conditions of service. There might perhaps be a point here if no payment in lieu had been made, but in this case it was actually i' luded in the terminal benefits already referred to above. Furthermore, the argument that the applicant could not have known what was in the respondent's internal memos regarding the payment in lieu of notice, which Mr. Pheko reiterated, was,in my opinion, no longer of significance or relevance because that payment had in fact been made. However, Mr. Pheko argued that its significance was with regard to costs because, since the cheque was received late and after this action was filed, so the applicant would in any case be entitled to costs. I will come back to that point in a moment.
/Mr. Pheko ...
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Mr. Pheko submitted that the expression "terminal benefits" could not be taken to include payment in lieu of notice because, he maintained, such payment was not a terminal benefit but merely a requirement where no notice was given. That might be so if one wishes to quibble about semantics. I suppose, but it is clear enough in this case that to the laymen in the respondent's administrative and financial departments, such a payment was regarded or treated as a part of the terminal benefits. It seems to me that, so long as the correct amount was paid, it hardly matters what it was called or in what category it was placed. I do not think that it advanced the applicant's case in any useful way at all. It certainly does not make her dismissal unlawful.
Consequently I am of the opinion that the applicant has not made out any reasonable case at all and that, in any case, a declaratory order would serve no purpose. Nor is it either appropriate nor desirable in this matter and I shall not grant one.
Returning to the question of costs, the cheque apparently reached the applicant on 14 April, about 19 days after filing this action. .In my view she should then have withdrawn the application, having received all that she wanted and that was due to her. I find no justification for continuing this action after that date. As to the costs involved in filing this application before receiving the cheque and, according to her, before knowing that she was in fact to be paid in lieu of notice, the question is whether or not it was reasonable to file it when she did
and was not too hasty.
/The cheque ...
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The cheque was dated 20 March and presumably then put in the post and it had to reach her. There is no evidence of where she was living or whether the respondents had her correct address at that time. Mr. Pheko from the Bar told the Court that she was in Maseru, as was the respondent company, so there should have been no delay. But we must be realistic about this. Offices of private companies and of the government are not well known for doing things at high speed. Such matters pass through various offices, at various speeds, and delays are inevitable it seems. The wheels of bureaucracy turn exceedingly slowly.
The applicant was dismissed on 10 March and she filed this action on 26 March, just over two weeks later. She must surely have been aware from her own experience that office matters do not usually move as quickly as that. It seems to me that she was perhaps rather overhasty in rushing into this litigation when just a little patience would have avoided it all. Furthermore, there is no evidence that she had even tried to contact the respondent about this payment first before going to Court. In my opinion her attorney should have advised her to wait a little while and to make a few enquiries first before deciding whether to bring this action. I do not consider that it was justifed at such an early stage nor do I think that it would be fair to the respondent to condemn "if in costs in this matter.
Accordingly this application is; dismissed with costs.
P. A. P. J. ALLEN JUDGE
Mr. Pheko for Applicant 9 JUNE 1987
Mr. Mahlakeng for Respondent
