IN THE HIGH COURT OF LESOTHO In the Application
Edgar Tsietsi Nthunya Applicant
vLesotho Tourist Board Respondent
Delivered by The Honourable Chief Justice, Mr. Justice
J.L. Kheola on 17/10/95
This is an application for an order in the following
Dispensing with the normal periods ofservice as is
required by the Rules.
Declaring null and void the purportedtermination of
Applicant's employment by theRespondent and directing his
Granting the Applicant such further oralternative
relief as this Honourable Court
may seem just.
(d) Directing the Respondent to pay the costs ofthis
It is common cause that on the 23rd July, 1991 the
applicant was employed by the respondent as General Manager. On the
1992 the applicant was placed on the permanent and
pensionable establishment of the respondent. (Annexure "A"
to the founding
affidavit) . The employment of the applicant/was in
terms of the respondent's Personnel Regulations.
It is again common cause that at the time of the
applicant's appointment there was, in existence, the post of Managing
was filled by someone seconded by the civil service.
The applicant alleges that after his employment, and after the
the post of Managing Director had been moved to another
department, he advised the respondent's Board of Directors that there
no need for both the post of General Manager and that of Managing
Director. He recommended the abolition of one or the other. His
reasoning was that this was a duplication of functions and duties.
The applicant alleges that notwithstanding his advice
aforesaid the respondent proceeded to fill the said post with the
Director, a person from outside the Tourist Board,
and only thereafter, proceeded to abolish the posts of General
Manager. He suggests
that the phrase in Annexure "B" on a
"recommendation by Management" is a reference to his
that one of the two posts should be
abolished. He made the suggestion on the ground that at the relevant
time the post of Managing
Director was vacant.
The applicant further submits that it is abundantly
clear that the respondent's conduct in abolishing his post was not
only mala fide, in that the decision to adopt it must have
been taken before the incumbent Managing Director was employed or any
decision to employ
him taken, but that, there being nothing in a
name, as the saying goes, it was his person not his position that was
the target and
there being no reason to get rid of him.
it was decided that the handiest, cynical as it
ironically is, could not be other than the one supplied by him. He
alleges that there
was never any intention to find a suitable
alternative position for him as required by Regulation 28 (d) (vii).
He submits that this
requirement is mandatory but the abolition of
the post should have been caused by a change in the Board's
organisation. No such change
has taken place.
The respondent's opposing affidavit was sworn to by its
Managing Director, Kananelo Tlebere. He alleges that it was the
Board of Directors at its meeting of the 11th November,
1994 which gave the directive for the abolition of the post of
on the ground of redundancy. (See Annexure "LTB1").
He submits that the former Managing Director of the respondent was
recalled to the Civil Service after her contract of secondment
expired and that before she departed she had recommended the
of the post of General Manager to the Board of Directors by
a letter dated the 7th June, 1993. The letter is Annexure "LTB2"
and reads as follows:
Mr. D. Mokhesi,
Chairman - Board of Directors,
Lesotho Tourist Board,
P.O. Box 52,
POSITION OF TEE GENERAL MANAGER -LESOTHO TOURIST
The above mentioned position was created by the
directive from the then Minister of Tourism, Sports and Culture in
May 1991 on the
grounds that the Government has the "desire"
to employ Mr. E.T. Nthunya as assistant to the Managing Director,
the fact that there was no need to create such a position.
this, no other justification whatsoever was forwarded by
Government to the Board of Directors of Lesotho Tourist Board.
Regardless of the fact that there were no funds, since
its inception, the post has proved very expensive for the Board to
taking into consideration the package entailing salary,
housing allowance, ten (10) per cent pension contribution and the
It has also become apparent that the incumbent's terms
of reference duplicate those of the Divisional Heads of the Board,
those of the Finance and Administration Manager who
is the prime Advisor to the Managing Director on Legal, Financial and
issues for proper management of the Organisation.
In view of the aforementioned facts, there is a need to
abolish the position, taking into consideration its financial backlog
unjustified terms of reference.
CM. Mosae (Mrs) (Signed) MANAGING DIRECTOR.
The Managing Director further deposes that there are
studies which were undertaken by two consultants who had also
abolition of the post of General Manager. The
extracts from the studies are Annexures "LTB3" and "LTB4",
17 of Annexure "LTB3" the consultant has this to
"The position of Managing Director was created in
1990 apparently to replace the existing position of General Manager
continues to be a General Manager of the Board.
Consideration needs to be given as to whether there is a need for a
and a General Manager and if so, what their
respective roles are."
On page 149 of Annexure "LTB4" the consultant
"It is our opinion that LTB would be more effective
"A level of management (viz. General Manager)
It is common cause that when the post of Managing
Director was eventually advertised the applicant applied for that
post. At that
time he was acting as Managing Director. His
application was not successful. (See Annexure "LTB5").
The Managing Director of the respondent denies that his
conduct in abolishing the post of General Manager was mala fide as
he made a proposal basing himself on objective and unbiased
recommendations of consultants and the former Managing Director which
were concerned with the post and not the incumbent thereof. He
deposes that the structure of the respondent does not make room for
easy deployment of staff especially when all senior posts were
occupied at the time of making the decision to abolish his post.
when it transpired that no suitable alternative position
could be found for applicant the Board had no choice but to pay him
terminal benefits and relieve him of his duties.
I have considered this matter and have come to the
conclusion that the issues to be determined by the Court are as
(a) Mas the decision of the respondent to abolish the
post of General Manager made mala fide?
was the post of General Manager reallyredundant?
In their decision to appoint Mr. K. Tlebere,who was
an outsider, as their Managingdirector over he applicant, who
was alreadyin the employ of the respondent as actingManaging
Director, did the Board ofDirectors of the respondent act
To answer (a) above one has to carefully look at the
events Leading to the abolition of that post in their chronological
paragraph 5 of his replying affidavit the applicant says:
"I respectfully call attention to the fact that it
is not my case that I had the singular wisdom to notice that there
need for the existence of both posts. Nowhere do I say that I
was the only one who drew attention to this. My case is that the
was not acting bona fide when it filled the then vacant
post of Managing Director almost immediately after I had made the
to the Chairman of the Board at my said meeting with
him in his office during January, 1994 - the deponent was appointed
Director in July, 1994, and soon thereafter purport to
abolish my post. The gravamen of my case is that this was but a
to get the deponent to take my place without having to give
reasons which, in all probability, would conflict with the reasons
in the Board's minutes of my suitability for one or other
It is clear from the allegation in the above paragraph
that it was the applicant who first made a recommendation to the
the Board of Directors of the respondent that the post of
General Manager be abolished. This recommendation was made in
1994 and it is common cause that at that time the applicant
was acting as the Managing Director and naturally hoped that he would
be confirmed in that post. It is not uncommon that a person may act
in a certain position for a long
time but when the actual filling of the position comes,
the employer appoints a different candidate and not the one who had
in the post for a long time. It does not necessarily mean that
the employer is acting mala fide if he appoints a new
candidate and gives him preference over the one who had been acting
in the post.
In the present case the preference of Mr. K. Tlebere
over the applicant may be due to a number of reasons. It may be that
has better qualifications than the applicant. It may be
that during his acting appointment the applicant did not perform
applicant's application for the post of Managing Director
was unsuccessful. After that the applicant reverted to his post of
Manager. It was only after the post of Managing Director was
filled that the position of General Manager was abolished. The
avers that this was but a strategem to get Mr. Tlebere to
take his place without having to give reasons which, in all
would conflict with the reasons appearing in the Board's
minutes of his suitability for one or other post.
As I said above it may be that the respondent found that
the qualifications of Mr. Tlebere were better than those of the
The respondents advertised the post because the previous
incumbent had vacated it. The applicant gives the impression that
at the relevant time he was acting Managing Director, the
respondent ought to have appointed him to that post and ought to have
the post of General Manager
before Mr. Tlebere was appointed. It seems to me that
the same result would still have been achieved by advertising the
post of Managing
Director after the abolition of the post of General
Manager. Mr. Tlebere's application, if he made one, would probably
succeeded and the applicant's application would probably
still have been unsuccessful.
The events which preceded the abolition of the post of
General Manager were (1) the recommendation of the former Managing
(2) the recommendations of two consultants whose reports
have been referred to above.
I therefore come to the conclusion that the applicant
has failed to prove that in abolishing the post of General Manager
acted mala fide. The onus was on him to prove
bad faith on the part of the respondent.
To answer (b) above I am of the view that one has to
take into account that the applicant himself recommended that the
post was superfluous.
This view was also taken by the former Managing
Director and the reports of the two consultants. The letter of the
Director is criticized on the ground that when she
wrote it she never informed the applicant though they were working
the same roof yet she decided to write it without his
knowledge or even after consultation with him.
It seems to me that it was difficult for the Managing
Director to disclose the contents of her letter (Annexure "LTB2")
to a colleague (General Manager) that she was busy making
recommendations that his post be abolished. Be that as it may it was
cause that the position of General Manager be abolished. The
applicant had also made such a recommendation which goes to show that
the former Managing Director's letter was not nothing but a "clumsy
invention of its author intended to achieve the objects
of her own
To answer (c) above I can only say that the applicant
has failed to prove that the Board of Directors of the respondent
when they appointed Mr. Tlebere over the applicant's
head. There is practically no evidence of unfairness. The respondent
to appoint any one he pleases as long as he followed the
proper procedures prescribed by its regulations. It is not under any
to disclose why they found Mr. Tlebere a better candidate
than the applicant. The applicant got all his terminal benefits.
In its opposing affidavit the respondent alleges that
the structure of the respondent does not make room for easy
deployment of staff
especially when all senior posts were occupied at
the time the applicant's post was abolished. The applicant denies
this and avers
that one C.S. Tlalajoe who occupied the post of
Research and Development Manager had just resigned on the 13th
October, 1994. This
allegation appears in the replying affidavit when
the respondent is no longer in a position to deny it. In his
raised this issue by saying that no attempt was made to
find an alternative suitable position for him in terms of Regulation
(vii). He ought to have mentioned at that stage that the
position of Research and Development Manager was vacant. The
would have had a chance in his answering affidavit to deal
with that issue. This is a dispute of fact which cannot be decided on
the affidavits before me.
An extract from the minutes of a meeting of the Board of
Directors of the respondent held on the 1st February, 1995 was filed
the Registrar on the 22nd March, 1995. It authorised Kananelo
Tlebere to sign all the necessary papers to defend this application.
For the reasons stated above the application is
dismissed with costs.
J.L. Kheola CHIEF JUSTICE
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law