CIV/APN/81/87

IN THE HIGH COURT OF LESOTHO

 

In the matter between .

 

S.P. 'NENA Applicant

and

PIONEER MOTORS (PTY) LTD Respondent

 

JUDGMENT

 

Delivered by the Honourable Mr. Justice J.L. Kheola on the 18th day of March, 1988.

 

This is an application for a declaration that the applicant's dismissal from respondent's employment was wrongful and unlawful, that respondent be directed to pay applicant's salary until applicant's employment with respondent is terminated in accordance with the provisions of the Employment Act 1967 as amended and costs.

 

The applicant was employed by the respondent as a sales promotion manager on the 13th June, 1979. On the 20th February, 1987 the General Manager of the defendant wrote a letter to the applicant informing him that his services were being terminated with immediate effect on security grounds. (See Annexure "A" to the summons).

 

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On the 23rd February, 1987, the attorneys of the appli­cant challenged the dismissal on the ground that it was unlawful and violated the provisions of the Employment Act 1967 as amended. (See Annexure "B").

 

On the 26th February, 1987, the respondent withdrew the letter of dismissal and reinstated the applicant to his former position with immediate effect. The applicant was asked to ignore the letter of dismissal and to return to office on the following day. (Annexure "C").

 

On the 3rd March, 1987, the applicant wrote to the General Manager of the defendant and asked for a clarification as to whether the decision to dismiss him was taken by the Board of Directors and why it had changed its mind. He also wanted to know on what terms and conditions of employment was his reinstate­ment. The General Manager did not answer the letter.

 

On the 13th March, 1987, the General Manager of the defendant gave notice to the applicant that his contract of employment was being terminated with effect from the 12th April, 1987 and that payment of one month's salary was tendered in lieu of notice. It was made clear that the defendant would not suffer him to remain in its employment after the close of the business on that day. All his terminal benefits were paid in full.

 

It was submitted on behalf of the applicant that the letter of notice (Annexure "E") included the day on which the notice was given and that that was contrary to section 14 (1) of the Employment Act 1967. I agree with this submission because the letter was written on the 13th March, 1987 and stated that termination would

 

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be with effect from the 12th April, 1987. In section 3 of the Employment Act 1967 "month" "means a period commencing on any date in a calendar month and expiring on the day preceding the correspon­ding date in the succeeding calendar month". In the instant case if the defendant had not included the 13th March, then the termina­tion would have taken place on the 13th April and not on the 12th April.

 

It is also clear from Annexure "E" that when the defendant actually calculated the terminal benefits the period of notice was taken to be from the 14th March, 1987 to the 13th April, 1987. I say this because the applicant was paid his salary for the period 1st March, 1987 to 13th March, 1987, in addition to that he was paid his full salary for a month in lieu of notice. The month was calculated from the 14th March. I have come to the conclusion that the applicant was not prejudiced in any way because he was given full salary for a month excluding the 13th March.

 

The second point raised on behalf of the applicant is that as an employee who was entitled to notice he did not waive his right to notice in terms of section 13 (4) (b) of the Employment Act 1967 (hereinafter called the Act). In my view section 13 (4) (b) must be read with section 14 (4) (b) of the Act. The latter gives to either party to a contract the right to terminate it by payment to the other party in lieu of notice of a sum equal to the wages and other remuneration that would have been due to the employee up to the expiration of notice of termination. The employee has no right to refuse to accept payment in lieu of notice and to insist on being given notice.

 

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Section 13 (4) (b) of the Act deals with an entirely different situation. It means that each party to the contract may waive his right to notice. For instance, the employee may tell the employer that "if you want me to leave your employment I shall not insist that you give me proper notice." In that case the employee has waived his right to notice. In the same way the employer may say "if you want to leave now, I shall not insist that you should give me a proper notice before you leave."

 

In the instant case the applicant accepted payment in lieu of notice in terms of section 14 (4) (b) of the Act and cannot be heard to say that he had not waived his right to notice.

 

It was argued that the dismissal was unlawful or wrongful on the ground that the decision to dismiss the applicant was not taken by the Board of Directors of the defendant but by its General Manager who did not have the authority of the Board. It is common cause that when the General Manager wrote Annexure "E" he had not been authorised by the Board to do so.

 

It is also common cause that on the 26th March, 1987 the Board of Directors of the defendant met and passed a resolution ratifying the dismissal of the applicant by the General Manager. The law is that subsequent ratification is equivalent to prior authority. In other words, when the Board ratified the General Managers dismissal of the applicant the dismissal became valid. Before the ratification the dismissal was void because the action taken by the General Manager was ulra vires his powers.

 

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In Grundling v. Beyers and others, 1967 (2) S.A. 131 at p. 145 Trollip, J., said

 

"Moreover, the general rule is that if, as a result of the unauthorised act, the third party has acquired any rights, the subsequent ratification of the act by the principal does not disturb or prejudice those rights (Gamsu v. Kotze, 1914 T.P.D. 294 at p. 297, Finbro Furnishers (Pty) Ltd. v. Peimer, 1935 C.P.D. 378 at p. 380; Williston on Contracts, vol. 1 para. 278A, p.811). But that does not apply here, for Gruindling did not acquire any rights of action when the executive committee dismissed him, he only acquired them when the general council confirmed, i.e. ratified, his dismissal, for until then the dismissal did not take effect - see clause 29 (5)."

 

In the present case the applicant did not acquire the rights of action when the General Manager purported to dismiss him, but acquired the rights of action when the Board of Directors ratified the dismissal. I am assuming that the General Manager was bound to make the report to the Board of Directors at its first meeting following the dismissal. The first such meeting seems to have been on the 26th March. The Board of Directors ratified the dismissal of the applicant.

 

In the first letter (Annexure "A") the respondent purported to terminate the applicant's services for what it regarded as lawful cause. But this letter was later withdrawn and the applicant was reinstated to his former position. In the next letter Annexure "E" the respondent decided to terminate the services on notice and paid a sum equal to applicant's salary for a month in lieu of notice. The respondent was entitled to do so and the applicant has no cause of action against it.

 

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In the result the application is dismissed with \ costs.

 

J.L. KHEOLA

JUDGE

18th March, 1988.

 

For the Applicant - Mr. Pheko

For the Respondent - Mr. Edeling.