CIV\APN\304\88 CIV\APN\112\90 CIV\APN\
IN THE HIGH COURT OF LESOTHO In the matter
'MAKEFUOE LIEKETSENG MOLELLE Applicant
LABOUR COMMISSIONER 1st Respondent
(LESOTHO) (PTY) LTD 3rd Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 20th day of September. 1991.
On the 20th February, 1991 the applicant moved an ex
carte application and obtained a Rule Nisi couched in the
"1. Rule Nisi, returnable on the 1st day of March,
1991, be and is hereby granted calling upon the Respondents to show
if any, why,
(a) the periods of notice prescribed by
the Court Rules shall not be dispensed with on the
ground of urgency of this application
(b) the 1st Respondent or his subordinatesshall not
be restrained and interdictedfrom paying to the 3rd Respondent or
toany other person whosoever certain monieswhich are yet to
be ascertained by theApplicant and which are due and payable
by the 1st Respondent to the heir of the late
Malefetsane Molelle following his death on the South African mines
the 1st Respondent shall not be directed topay to
the Applicant forthwith the moniesreferred to in the preceding
in the event of payment having beeneffected,
directing 3rd Respondent to paythe said monies to Applicant
1st Respondent shall not be committed toprison for
flouting the order of this Courtdated 23rd July, 1990.
2. That Prayer 1 (b) herein operate with immediate
effect as an interim interdict."
several extensions of the rule the matter was finally
-3-argued before me on the 27th August, 1991 when I
and extended the rule to to-day.
In her founding affidavit the applicant avers that on
the 25th September, 1988 her husband Malefetsane Molelle, who was a
died at Denmark Colliery in the Republic of South Africa.
Following her late husband's death certain monies became payable to
heir but since his heir was still a minor under her guardianship
such monies became payable to her. She avers that she has been
by the officials of the third respondent, whom she verily
believes, that the monies paid by a mine in respect of the death of a
fall into categories and are paid in stages according to
their categories and not at once as a lump sum. When the mine sends
monies it advises the third respondent and instructs it to
inform the deceased mineworker's heir or next-of-kin. The actual
is made by the first respondent who liaises with the third
The applicant avers that on or about the 18th October,
1990 one Mr. Mzamo, an official of the third respondent sent for her
and receive another category of monies payable in respect of
her late husband's death. On arrival he gave her some documents which
he said she should give to the first respondent. One Mr. Kolobe sent
her back to Mr. Mzamo to affix his signature to the documents
given her. At third respondent's offices Mr. Mzamo said he could not
sign the papers because he had just received a telephone
the first respondent's subordinate
advising that he was sending the money back to Mr. Mzamo
for onward transmission to Denmark Colliery as it had been sent by
He said the caller advised him that he had already paid that
category of money . Mr. Mzamo expressed surprise at the attitude of
the first respondent's subordinates and said that the money in
question had been paid following his reminder that it had not been
The applicant denies that he has already received this
money and alleges that the intention of the first respondent and his
is always to punish her or make her sweat before they
can pay her monies in respect of her late husband's death. Before
the first category of money due to her, she was bound
to move this Court in CIV\APN\112\90 for an order directing the first
respondent to pay the said money to her. She is now
apprehensive that the first respondent and his subordinates will send
back to the mine as they told Mr. Mzamo.
In his opposing affidavit Mr. Tsoene Kolobe, the Deputy
Labour Commissioner and the Acting Labour Commissioner avers that it
that some monies are paid by the first respondent, and
such monies are Estate Monies, Unclaimed Wages and Compensation
monies which were paid by his office to the applicant
were made up of the monies mentioned above, and those are the monies
are to be paid by his office and they were paid in full.
Mr. Kolobe avers that his office received a voucher from
the third respondent. On the same voucher was reflected an amount of
It was a deferred pay voucher (See Annexure "TK1").
The voucher was not accompanied by any money at all. Upon perusing
their records it emerged that the same amount of M1392.70 being for
deferred pay was included in the money which was paid over to
office from South Africa which in turn was paid to the applicant.
(See Annexure "TK2" and "TK3"). The documents
forming Annexure "TK3" collectively add up to M2464.01
which figure is the same as in Annexure "TK2". His office
then sought clarification from the third respondent regarding what
appeared to be an obvious double payment of deferred pay. They
to know whether the voucher for deferred pay had not been sent to his
office by mistake. It was unusual that deferred pay
was forwarded to
his office and that is the reason why in Annexure "TM3" is
written "estate payment". The investigations
Annexure "TK1" was sent to his office by mistake (See
He avers that the applicant did receive the money
reflected in Annexure "TK1" and she was told by his office
occasions that the said money was included in the monies
she received from his office pursuant to Annexure "TK2" and
and these monies were paid in compliance with the
Court Order Annexure "MLM1" to the applicant's founding
question of contempt of court does not arise because
all the monies due for payment to the applicant have been paid to
The first difficulty which the applicant is facing is
that she is relying on what Mr. Mzamo (an employee of the third
is alleged to have told her. For some reason she has not
approached him and asked him to make an affidavit to prove what he is
to have said. I think his evidence would have been of vital
importance on the question whether or not Annexure "TM1"
accompanied by any money when it was sent to the first
respondent. The first respondent alleges that the voucher Annexure
was not accompanied by any money. His evidence is
confirmed by the mine in a telefax dated the 22nd February, 1991
faxed to the Manager
of the third respondent and attention to Mr. E.
In the telefax (Annexure "TK4") the mine makes
it quite clear that the amount of R1392.70 reflected on L.C.D.P.
No. 8427 was included in the payment of R2464.01 which was
paid over to the first respondent as reflected Annexure "TK2"
dated the 7th December, 1988. Voucher No.8427 was reported lost and
Annexure "TK1" was issued to replace the lost voucher.
total amount which was due to the applicant was R2464.01.
It is common cause that the applicant has already
received the amount of R2462.01 which is the total amount due to her
of the death of her husband. The circumstances under which
Annexure "TK1" was, issued have been thoroughly explained
the mine in Annexure "TK4". It was issued under the
mistaken belief that the original voucher No.8427 in respect of the
same amount of
R1392.70 was lost. We now know that the same amount was
included in Annexure "TK2" and that it was paid to the
per Annexure "TK3" which consists of three Pay
Advice Forma. The first one is for an amount of M130.00, the second
is for M991.21 and the last one is for M1342.80. When the amounts
appearing in Annexure "TK3" are added they make a total
M2464.01 which was the total amount due to the applicant in respect
of the death of her husband.
In the papers before Court the applicant has repeated
several times that she does not know how much money is due for
payment to her.
She repeated that she is still in the process of
ascertaining the exact amount. She has failed to come up with any
figure till the
case was heard. She cannot rely on an obvious mistake
and insist that the money which has been paid to her should be paid
some official of the third respondent as well as
official of the mine made a mistake. In order to succeed she must
prove on a balance
of probabilities that the respondents owe her some
money. Even if she could not be sure of the exact sum of money, she
ought to have
proved that the respondents omitted to pay her some
money under a particular category. According to Annexure "TK2"
monies due to the applicant's husband fell under two categories,
namely the wages due and deferred pay due. The monies due under
two categories have been paid to the applicant in full.
I am convinced that all the monies due for payment to
the applicant have been paid in full by the respondents.
In the result the rule nisi is discharged with costs.
JUDGE 20th September, 1991.
For Applicant - Mr Mafisa For Respondents - Mr.
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