IN THE HIGH COURT
OF LESOTHO In the Matter of:
'MASEBOTA KHUELE Applicant
v BASOTHO ENTERPRISES DEVELOPMENT
Delivered by the Hon. Sir Peter Allen on the 9th day of
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
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
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
a claim for damages for unlawful dismissal and
loss of earnings. The reason being that the courts will not order
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"
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
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.
asked the Court for the
/declaratory order ...
declaratory order "even if the applicant cannot
claim any relief consequential on it." He referred to S.2 of the
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
for such purposes as the interpretation of either a
will or a deed or a piece of legislation or a term in a contract.
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
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 ...
The basis of the complaint is the letter of dismissal
dated 10 March 1986 which reads as follows:
" Termination of Contract-Unsatisfactory
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
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
dated 18 March 1986 requesting payment of "the
following terminal benefits: salary for March 10 days and payment in
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
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 ...
of notice was clearly included. The Notice of Motion in
this case was filed on 26 March 1986 and the above cheque was
received by the applicant until 14 April. Since she
was not aware of the internal memos about her terminal benefits, and
no mention of payment in lieu of notice in the dismissal
letter, the applicant brought this action while under the impression
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
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
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
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
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 ...
" The law regarding master and servant is not in
doubt. There cannot be specific performance of a contract of service
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
by the contract he must pay damages for breach of
It is plain from that passage that no reasons or
substantiation can be required. The employer just has to pay up what
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
of notice. It merely referred to terminal benefits and Mr.
Pheko argued that payment in lieu of notice was not a' terminal
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,
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 ...
Mr. Pheko submitted that the expression "terminal
benefits" could not be taken to include payment in lieu of
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
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
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
cheque and, according to her, before knowing that she
was in fact to be paid in lieu of notice, the question is whether or
was reasonable to file it when she did
and was not too hasty.
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
living or whether the respondents had her correct address at
that time. Mr. Pheko from the Bar told the Court that she was
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
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
aware from her own experience that office matters do not
usually move as quickly as that. It seems to me that she was perhaps
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
advised her to wait a little while and to make a few enquiries first
before deciding whether to bring this action. I do not
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
Accordingly this application is; dismissed with costs.
P. A. P. J. ALLEN JUDGE
Pheko for Applicant 9 JUNE 1987
Mahlakeng for Respondent
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