CIV/T/104/88

CIV/T/230/89

IN THE HIGH COURT OF LESOTHO

In
the matter of :

JOSHUA MASEKOANE MALUKE Plaintiff

V
PIONEER MOTORS (PTY) LTD. Defendant.

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla on the
29th day of November 1989.

The plaintiff instituted an action against the defendant
in the above matter. While pleadings were going on and before their
completion
the defendant instituted a counterclaim against the
plaintiff.

It was agreed by the parties to the respective actions
to consolidate these proceedings and retain the parties' designations
as reflected
in the princi-pal action even when reference is made to
the parties in the counter-claim. Consequently the parties will be
referred
to as the plaintiff and the defendant as appear in the
principal action regardless of their reversed positions in the
counter-claim.

The plaintiff sued out summons from the Registrar's
office in February 1988, requiring from the defendant

1. 
   payment of M31,022.48 damages.

   
   

2. 
   interest at 11% per annum a tempora
   morae.

   
   

3. 
   costs of suit.

   
   

4. 
   Further and/or alternative relief.

   
   

/In

-2-

In paragraph 3 of his declaration the plaintiff sets out
that at all relevant times prior to 27th November 1987 he was in the
employ
of the defendant as a salesman at the defendant's place of
business where motor vehicles are sold.

The plaintiff states that he was employed on permanent
terms earning a salary in the amount of M372.00 per month. He
further states
that he was entitled to fringe benefits in the form of
M50 being petrol allowance. Furthermore he pointed nut that he was
entitled
to one day's leave per month and a commission on the gross
profit made in respect of sales of vehicles concluded by him
calculated
on a percentage formula laid down by the defendant.

The plaintiff complains that on 27th November 1987 he
was unlawfully and wrongfully dismissed summarily by the defendant
through its
General Manager who, acting on the defendant's behalf did
not afford the plaintiff an opportunity to be heard nor did the
General
Manager give the plaintiff any notice at all.

He further sets out in his declaration that during the
period of his employment with the defendant he had to his credit
unpaid commission
on sales of vehicles he had effected for the
defendant. Furthermore he had not yet exhuasted the balance of
leave days he had
already earned before termination of his
employment.

It is on the basis of the above unlawful conduct by the
defendant that the plaintiff states that he has suffered damages in
the amount
of a total sum of M31,022.48 made up as follows :-

1. 
   (for) wrongful and unlawful dismissal M30,000.00

   
   

2. 
   Commission on vehicle sales 621.18

   
   

3. 
   Cash in lieu of one month's notice 372.00

   
   

4. 
   Cash in lieu of notice for 2 days' leave 29.52
   

   
   

Total 31022.40

/In

-3-

In reply to defendant's request for further particulars
the plaintiff denied any misconduct on his part that could warrant
being summarily
dismissed by the subsequent General Manager Mrs
Motheba Lerotholi.

He further explains that this General Manager based
herself for his dismissal on some misconduct alleged to have been
manifested by
the plaintiff during the term of office of her
predecessor the then General Manager Mr Mokalanyane i.e. P.W.2. He
pointed out that
Mr. Mokalanyane during his term of office in
exercise of his discretion found no reason to dismiss the plaintiff
nor indeed even
to take any disciplinary action against him. Thus the
matter which precipitated the action embarked on by Mrs Lerotholi had
already
been closed during the term of her office as Mr Mokalanyane's
successor.

Actually the matter which the plaintiff maintains was
closed involved a motor vehicle which the defendant alleges
disappeared in
the plaintiff's hands and thus constituted
negligence on his part.

In the further particulars that the plaintiff furnished
to the defendant he disclosed that in re­opening the matter which
had
been closed, the defendant through its agent Mrs Lerotholi the
subsequent General Manager did not afford the plaintiff an
opportunity
to make representations. He disclosed further that the
dismissal was nothing but a retaliatory action by Mrs Lerotholi in
response
to an action instituted by the plaintiff against her in the
Magistrate's Court Maseru numbered CC 1174/87 dated 26th November
1987.
No copy of the summons in the Magistrate's Court has been
attached to the papers constituting the plaintiff's action in this
court
but nonetheless the plaintiff has disclosed that he had made
known to Mrs Lerotholi on 26th November, 1987 that he had lodged an
action against her and so it seemed in response the following day
i.e. 27th November 1987 the defendant's General Manager dismissed
the
plaintiff on the pretext that he had committed some

/act

—4—

act of misconduct relating to a matter that had long
been abandoned and closed.

As no valid nor justifiable grounds existed for the
dismissal the plaintiff ascribes mala fides to the defe­ndant's
conduct.
He points out that in going about his dismissal the
defendant had employed unprocedural methods and based its action on
extraneous
and irrelevant consi­derations.

In paragraph 2 ad para 2 of the request the plaintiff
has indicated that in his capacity as a salesman entitled to
commission chargeable
against the defendant he had sold a variety of
vehicles to five different customers in respect of which sales he is
still expecting
his commission calculated on a formula reflected in
annexure "A" of his papers. Annexure "A" is what
is termed
New Commission Structure.

The defendant in its plea tendered after issues had been
amplified by the plaintiff's further particulars stated that when the
new
General Manager took over from Mr Mokalanyane her predecessor in
the defendant's company investigations into the plaintiff's
misconduct
were still pending.

The defendant's plea asserts further that the
plaintiff's dismissal was justified on the grounds that in his own
report made subsequent
to the incident the plaintiff revealed that
he had left the company car in the hands of a stranger contrary to
the company's normal
procedure and enabled that stranger
masquerading as a customer to steal the company car as a result of
which the company suffered
a loss of M16,090 which constituted the
value of the vehicle plus profit that would accrued to the company if
the sale had been concluded.

In paragraph 3 of the defendant's plea ad para 5 the
defendant puts the plaintiff to proof of the commission claimed by
the plaintiff
as owing to him by the defendant.

/The

-5-

The defendant further indicates that the plaintiff was
paid M14 being in respect of one day's leave which was the only
balance of
leave days outstanding to the plaintiff's credit. The
defendant further shows that it had informed the plaintiff through
his lawyer
to follow the normal procedure in the event that any
commission was owing to him by the defendant.

Thus the defendant denies liability to the plaintiff for
damages set out in the plaintiff's

summmons.

In his evidence the plaintiff said to this Court that he
started working for defendant on 1st September 1986. He left the work
when
his employment was terminated by the defendant on 30th November
1907.

His employment was terminated through a letter that
forced him to leave the job immediately. He told the court that the
reason for
this dismissal was an alleged negligence ascribed to him
regarding a vehicle which either disapeared or got stolen while in
his possession.

When he got dismissed he says he was on permanent
employment having completed the probation period of three months
prior to the event
that precipitated his dismissal.

He denies that the vehicle got stolen while in his
possession during the term of his employment with the defendant.

The plaintiff said that on 14.7,87 one David Paliso
arrived at the defendant's business premises saying that he wanted to
buy the
vehicle in question. He was served and he bought the vehicle.

The said David Paliso effected the purchase by filling
"the offer to purchase" forms. This transaction was
con­cluded
upon the customer, the plaintiff, the sales manager
and the general manager appending their signatures on it.

/The

-6-

The form was handed to the customer to go and pay at

the accounts section. The customer came back from the

accounts
section and the plaintiff demanded to be shown

an invoice by the customer. The customer complied and
the

plaintiff was satisfied on being shown the invoice that
the
customer had paid for the vehicle.

Then D.W.1 Mr Moshabesha the sales manager asked the
plaintiff to go with the customer on a test-drive.

The test-drive was effected along the road spanning the
defendant's premises and the road leading to Free Way Motors lying
about 4
km from the defendant's premises. On the way back the
plaintiff asked the alleged purchaser to drive him to Lesotho
Electricity Corporation
a place falling outside the mapped route for
the test drive.

It was when the plaintiff tried to retrace his steps to
the place outside the Electricity Corporation where the vehicle had
remained
parked by the alleged purchaser that the plaintiff
discovered that the purchaser had left him behind. The plaintiff
used the phone
at Lesotho Electricity Corporation to ask the staff at
the defendant's business whether the purchaser had not per chance
gone back
there. Replied in the negative by authorities at his
employer's premises he complied when asked to go and report to the
police
the obvious act of theft committed by the purchaser who had
left the plaintiff at the Lesotho Electricity Corporation.

In his statement to the police the plaintif did not
reveal that the alleged purchaser had in fact paid for the vehicle he
is alleged
to have bought. Significantly the plaintiff when asked by
the management of the defendant's company to make and submit a
written
report he did not include in it the fact that he had
satisfied himself that the vehicle had been paid for.

Instead he said in his report that he and one Mochesane
went to the South African Border police to report "about the car
theft
case, and from there .. to the Criminal

/Investigation

-7-

Investigation Division Police of Lesotho to give them
the same report."

In the light of the contents of his own report it seems
that the plaintiff's pretence even at this stage that the vehicle in
question
had been paid for is not maintainable.

His own witness P.W.2 Mr Mokalanyane said as a matter of
policy a test-drive is undertaken before any purchase has been
effected thus
enabling a prospective buyer to make up his mind
whether to proceed with the purchase or not. P.W.2 further stated
that he never
expressly or by implication suggested that the
plaintiff's report absolved him from liability to the defendant for
the loss incurred
through the plaintiff's negligence. He also said
that a receipt and not an invoice is proof that a commodity has been
paid for.
In the light of this evidence by the plaintiff's own
witness it is impossible for me to let the plaintiff make a merit of
his pretended
ignorance of the procedures relevant to purchases of
vehicles in respect of which he was placed in a position of trust as
a salesman
by his employer.

The plaintiff cannot be allowed to water down his
negligence on the grounds advanced by his counsel that because of his
failure to
live up to the required standard of care and performance
the plaintiff was not confirmed at the expiry of his probation
period, hence
the management was in part to blame by letting him have
a free hand in his involvement with the defendant's customers in the
capacity
he was employed as a salesman.

This argument tends to defeat the plaintiff's view that
he in fact had been confirmed on permanent terms at the end of the
probation
period of three months hence should have not been dismissed
without a hearing for he had legitimate expectation to benefits which
accrue to permanent members of staff.

It is clear to me that if the plaintiff had been

/confirmed

-8-

confirmed in his position as a member of the defendant's
permanent staff he would have been made to know this in writing. He
told
me that his confirmation was effected orally. But the man who
should have verified this i.e. the then General Manager Mr
Mokalanyane
said nothing of the sort.

I have no hesitation in taking the view that the
plaintiff's relationship with the defendant was of master and
servant type governable
under the common law, thus imposing no
obligation on the employer to afford his servant a hearing before
dismissing him. Indeed in
this case the fact that he was allowed to
make representations to the employer by way of the report made and
submitted by him about
the disappearance of the vehicle in his hands
served as an opportunity to have his side of the story aired.

In Langeni and Others vs Minister of Health and
Welfare and Others 1984(4) SA at 99 to 100 Lord Wilberforce said

"... in master and servant cases, one is normally
in the field of the common law of contract inter partes, so
that principles of administrative law including those of natural
justice, have no part to play .... in pure master and servant
cases,
the most that can be obtained is damages, if the dis­missal is
wrongful: no order for reinstatement can be made, so no
room exists
for such remedies as administrative law may grant, such as a
declaration that the dismissal is void."

In Judicial Review of Administrative Action 4th Ed. by
De Smith at 227 it is stated

"First in 'a pure case of master and
servant,'
dismissal was legally effective, although
the servant
had been given no prior oppor­
tunity to be heard, that the
facts might show
breach of contract entitling the servant
to
damages

The plaintiff said he had been allowed by D.W.1 to go on
a test-drive. D.W.I denied this. I heard D.W.1 and

/formed

-9-

formed the opinion that he is an honest and truthful
witness who even conceded that the point he raised namely that he
learnt from
the plaintiff that the customer was going to his Bankers
who would finance the purchase on the basis of the invoice that was
in the
customer's hands, was in the nature of an afterthought.
However the point had been put to the plaintiff during
cross-examination
that an invoice is not proof of payment; for only a
receipt can furnish such proof to satisfy the court or anybody
involved in sales
that a marketable commodity has been paid
for.EX."A" the letter of appointment dated 19-8-86 is a
contract between the
instant parties.

Clause six of this contract says

"Your duties will entail ensuring effective
prospecting in this department, a profe­ssional and ethical
approach to the
marke­ting of Toyota Vehicles in our trading
area."

It is clear to me that the plaintiff breached this
clause by leaving a total stranger with the car keys in the car which
he had not
paid for. He failed to ensure a professional and ethical
approach to the marketing of his master's merchandise.

The contract does not outline the manner of its
termination between the parties. In this event the court has resort
to provisions
of sections 13 and 15 of The Employment Act 22 of 1967
indicating that where the period of notice is not given then the mode
of payment
by way of salary should determine the length of notice
required to be given by either party to the other in the event of
termination
of the contract if the amount of the salary is not
surrendered in lieu of notice. See Act 14: the Employment Amendment
Act section
13 of which re-casts the principal law. The question of
termination falls under section 15(2) and (3).

Mr Hlaoli for the defendant submitted that for
the maxim audi alteram partem rule to apply it should be noted

that

-10-

that this rule cannot apply in every situation but in
particular situations where the status reached by an employee
entitles him to
a hearing. See C. of A. (CIV) No. 6 of 1977
'Maseribane & 3 0thers vs Kotsokoane & Another
(unreported).

He
submitted that the plaintiff had not reached the necessary status
because he had not yet been confirmed. The fact that the plaintiff
had been undergoing a proba-tionery period presupposes that he was
not fully employed.

It was argued in the alternative that if at the end of
the probationery period the court is justified in inferring that the
plaintiff
was entitled to regard himself as being on permanent
employment regard should be had to the fact that he was given no
ostensible
status or authority over and above that which was
obtaining when first he was appointed thus nothing could form a basis
for him therefore
thinking that he had a legitimate expectation for
remaining in the company for a long time.

Mr Hlaoli urged the court to dismiss as unfounded
the alleged condition precedent on the basis of which the plaintiff
said the previous General
Manager's view was departed from by his
successor Mrs Lerotholi. He pointed out that P.W.2 who was supposed
to have held this promise
or whatever it was to the plaintiff denied
that he ever caused the plaintiff to believe that the matter had
been filed and forgotten.
P.W.2 instead said that he felt this was a
matter for the police and did not: finalise it himself.

Mr Hlaoli submitted that because the plaintiff
said as far as he was concerned the vehicle had been paid for by the
stranger then it behoved
the plaintiff to establish that payment had
been effected.

/It

-11-

It is indeed surprising that although the plaintiff
agrees that when the stranger told him that he had liquor and other
businesses
at T.Y. and a residence at Lithabanang it was with a view
to cultivating the plaintiff as the sort of a person who could be
useful
to him in his designs on the vehicle which was entrusted to
his care. The plaintiff admits that his customer was projecting
himself
as a man of substance for this dubious purpose but
none­theless maintains that the car had been paid for when told
the stranger
had not paid for it even though he himself discovered
that the stranger had lied about the possessions he said he had in an
endeavour
to soften and ply him with lies calculated at letting the
plaintiff give him the opportu -nity to remain alone in the car.
Even
if the stranger lied to the plaintiff about his financial
strength the bottom line lies in the fact that the stranger did not
hide
from him the invoice which provided the plaintiff with knowledge
of the amount that was chargeable against the stranger.

The plaintiff was thus placed in a position of knowing
that the pretentious customer had not paid for the car, yet when he
and the
said customer went for a test-drive he left this unknown man
in full control and possession of the car to which he had no lawful
claim at all. Once left to his own devices the stranger wasted no
time before letting the car take to itself wings. This could
in wry
humour be regarded as the price the plaintiff was made to pay by the
stranger for deviating from the mapped route for the
test-drive to
the route leading to the Lesotho Electricity Corporation where, even
assuming the plaintiff had been allowed to take
the test-drive, on
his own admission the Electricity Corporation fell out of the
purported round -

/for

-12-

for the test-drive. Thus the plaintiff can legitimately
be said to have gone there on a frolic of his own. The management
had not
authorised him to go to the Electricity Corporation, for acts
of that nature the law is very clear; the servant who commits a
delict
outside the scope of his mandate from his master takes full
responsibility for his delictual acts.

It is surprising that when making his report the
plaintiff never said the vehicle had been paid for.

In the plea to the counter-claim the plaintiff even
though now adopting the stance that the vehicle had been paid for,
said it had
been lost.

His claim is for unlawful dismissal but the letter
terminating his appointment summmarily shows that he was dismissed
for misconduct
and negligence. His own report is in line with the
view that he was negligent. Because he owed a duty of care to his
master's property
in his hands in terms of the contract I find that
his failure in that regard cannot free him from liability.

It was submitted for the plaintiff that nothing in the
papers shows that D.W.I was appearing in court with full authority
granted
him by his company. But in C of A (CIV) No. 6 of 87 Phoofolo
vs Central Bank of Lesotho (unreported) at p. 12 it was held that
there is no in­variable rule requiring that a resolution should
be furnished even where
it can be gathered from the facts that an
employee represents a juristic person.

At page 25 of The Law of Delict by R.G. Mckerron
it is said

"The question for judges and juries is not what a
man was thinking or not thinking about, ex­pecting or not
expecting but
whether his beha­viour was or was not such as we
demand of a prudent man under the given circumstances. Considered as
an objective
fact. negligence may be defined as conduct which
involves an unrea­sonable risk of harm to others. It is failure
in given circumstances
to exercise that degree

/of

13

of care which the circumstances demand

But negligence will not be a ground of civil liability
unless there existed in the particular case a legal duty to use care.
'A man
cannot be charged with negligence if he has no obligation to
exercise deligence.'"

I may just add that it has often been said that
negligence always has misfortune for a companion.

Referring to The Law of Delict by Boberg at 3 where
reference is made to Pilkington Brothers (S.A.) Pty Ltd. vs
Lillicarp Wassenaar & Partners 1983 (2) S.A. 157 Mr Hlaoli
pointed out that the defendant relied on the skill that the plaintiff
held himself nut to possess when he was given the appointment
much in
the same way as

"L had professed to have the necessary skill and
expertise to do these things."

In the course of giving evidence the plaintiff stated
that he was now abandoning a substantial portion of his claim falling
under
the first head, i.e. the claim for unlawful and wrongful
dismissal. Under this head he is now claiming M12,097 instead of the
original
M30,000.

The defendant on its part was put to task to explain why
it now claims M15,700 instead of the M16,090 allegedly suffered as a
loss
by the company as stated in paragraph 2 of the defendant's plea
ad para 4.

1 view with favour the suggestion by the plaintiff that
better evidence by way of either witnesses knowledgeable in the
business
of motor sales or by production of auto digests which are
not beyond the reach of the defendant should have been led, instead
of
an address on the issue delivered from the bar by defendant's
counsel and based on no evidence at all. There is indeed danger in
the absence of such evidence that an unscrupulous litigant eager to
make quick money may make a highly inflated claim and later
deflate
it by a substantial amount which however does not reduce his claim to
the level of loss actually suffered. The court is
entitled therefore
to be wary not to take the

/defendant's

-14-

defendant's defence in this regard at face value when
the possibility has not been excluded that the loss suffered by it
may be far
less than the M15,700 claimed without satisfactory proof
by the defendant.

In conclusion I make the following order: The
plaintiff's claim in the principal action is dismissed with costs.

The plaintiff's defences in the Counter- claim are
dismissed with costs reduced by 15% on account of the defendant's
attorney's failure
to supply me with heads of arguments and the fact
that the value of the vehicle lost was not properly established.

J U D G E.
29th November, 1989.

For Plaintiff : Mr Ntlhoki For Defendant : Mr Hlaoli.