IN THE HIGH COURT OF LESOTHO In the
BAAE EDWARD PHOOFOLO
Delivered by the Honourable Mr. Justice W.C.M. Maqutu on
the 18th day of December, 1995.
On the 23rd August, 1991, Plaintiff issued Summons
against the Attorney-General in which he claims:-
An Order declaring plaintiff's dismissal asDeputy
Governor of the Central Bank unlawful.
Costs of the suit.
Further or alternative relief.
Defendant filed a Notice of Appearance to defend on the
16th October, 1991, defendant filed a Special Plea in which he
Plaintiff's claim in the following terms;-
According to paragraph 7 of the Declaration the alleged
proceedings first accrued on the 25th September, 1987 when the King
the plaintiff from his position as Deputy Governor of the
Central Bank. This action was instituted by the plaintiff on the 23rd
1991 and served on the defendant on the 14th October, 1991.
In terms of Section 6 of the Government Proceedings and
Contract Act (Act 4/1965) no action or other proceedings shall be
capable of being brought against
the Government after the expiration
of the period of two years from the time when the cause of action
WHEREFORE the action is hopelessly prescribed and must
be dismissed with costs."
According to Plaintiff's Declaration that was served
along with the Summons:-
"Pursuant to the Lesotho Monetary Authority Act
1978 (as amended), plaintiff was on 30th March 1984 appointed as
of the Central Bank of Lesotho, then Lesotho Monetary
Authority. The said appointment was for three (3) years with
the 16th November.
On the 30th October 1984, plaintiff was re-appointed for
a further period of three years with effect from 16th September 1984.
In terms of Section 10(1) of the Lesotho
Monetary Authority Act 1978 plaintiff was by virtue of his
position as Deputy Governor a director of the Bank.
On the 25th September 1987, the King while purporting to
act in terms of Section 14(4) of the Lesotho Monetary
Authority Act 1978, wrongfully and unlawfully dismissed
plaintiff from bis position as Deputy Governor
of the Bank."
Plaintiff's cause of action is that of Contract. In
terms of paragraph 5 of his Declaration, his contract expired on the
1987. He could therefore not have been Deputy
Governor of the Central Bank unless he had been re-appointed on a new
the 27th November, 1995, I adjourned this case
after hearing Mr. Tampi in order to give plaintiff an opportunity to
me on whether with pleadings as they stand, plaintiff's
Summons disclose a cause of action.
I asked to be addressed on the absence of cause of
action based on contractual allegations on Plaintiff's Declaration
mero motu because
Mr. Tampi had not excepted to Plaintiff's action on
this ground. He had only contended himself on the fact that the
prescribed. The Court, however cannot allow an excipiable
action to continue. In adjourning the matter, I gave plaintiff's
Counsel an opportunity to file Heads of Argument
canvassing issues generally.
On the 8th December, 1995, when the case resumed, Mr.
Pheko was unable to overcome the problems caused by the fact that cm
of the Plaintiff Declaration, plaintiff's contract had
expired. That being the case, plaintiff's Declaration lacked
are necessary to sustain an action. If indeed an
amendment could have helped, plaintiff would not doubt have applied
for one during
the period of ten days that I had postponed the
matter. It is trite law that at any stage before judgment, pleadings
can still be
amended. See also Rule 33 of the High
Court Rules 1980. I had pointed out to Mr. Tampi for the respondent,
during argument, that the plaintiff's action was
excipiable and his
point was that his Special Plea will abate this action just as much
as an exception would. It does appear that
the special Plea the Crown
has taken would dispose this action if upheld.
An exception is appropriate as a method of settling a
point of law. This is because as Innes CJ said in Stephens v De Wet
279 at 282, an exception goes to the root of an entire claim
or defence. In Du Preez v. Boetsap Stores (Pty) Ltd. 1978(2) S.A. 177
Van den Heever
J found that exception is the appropriate way of
deciding or testing legal issues before trial unless there are
special reasons making
such a course inappropriate. The main purpose
of an exception that the Summons and Declaration do not disclose
a cause of action
is to dispose of the case without the need of
leading evidence. See Barclays Bank Ltd. v. Thompson 1989(1) SA 547
at 553 GH. It seems
to me as (in this case) I would be confined to
the four corners of the record, the Crown could have brought their
Special Plea in
abatement by way of exception.
Mr. Pheko for the plaintiff argued that a Special Plea
or an exception and the rules that govern it do not apply to
which a declaratory order is being sought. Section
2(1)(c) of the High Court Act provides
"The High Court...shall have, in its discretion,
and at the instance of any interested person, power to inquire into
any existing future or contingent right or obligation
notwithstanding that such a person cannot claim any relief
upon the determination."
I do not understand this rule to oblige Courts not to
tell litigants that they do not have the title to sue if the rights
claiming have prescribed. In any event
Mr. Pheko stated plaintiff wanted this declaratory order
in order to claim his terminal benefits in terms of his contract. If
is the intention, then I am obliged to point out that the
Government Proceedings and Contract Act No.4 of 1965 is intended to
plaintiff that very remedy, if he is claiming under a contract.
In using my discretion, I cannot ignore that the
declaration that applicant has been unlawfully dismissed is intended
to be a step
that precedes an endeavour to have full restitution
including reinstatement if possible. The Court has discretion in the
Declaratory Orders. What I have to avoid is to create
unnecessary ambiguities. For example in Mosala Khotle v. Attorney
of A (CIV) No. 13 of 1992, Browde JA said:
"Once there was no dismissal there is no question
of reinstatement and prayer (b) was therefore unnecessary."
The implication might be that the granting of a
declaratory order makes reinstatement automatic. It would be
unwise to make such
an order in this particular case.
What I am trying to say is that a declaratory order
should not be used as a means of obtaining a remedy that
is no more available through the back-door. As Nicholas
AJA said in National Union of Metal Workers of S.A. v Henred Fruehof
1995(4) SA 456 at 462 IJ:
"Where an employee is unfairly dismissed he suffers
a wrong. Fairness and justice require that such a wrong be
fullest redress obtainable is provided by the
restoration of the status quo ante."
According to the Common Law, reinstatement or damages
are options which the Court has to consider in restoring the status
See P.A.C.T. v Printing & Allied Workers' Union
1994(2) SA 204 at 219 E. Making a declaratory order would be opening
to the remedy that has become time barred. Even if I had the
power to make such an order (in the circumstances of this case) I
I should not do so.
It seems to me here, that we are dealing with extinctive
prescription. If the right to bring an action has been extinguished
that right is not an "existing, future or contingent right
or obligation". I am therefore obliged to bold that Section
2(1)(c) of the High Court Act 1978 does not apply to plaintiff's
case. I do not see how I could exercise any discretion under that
Mr. Pheko referred me to case of Mikhane Maqetoane v.
Minister of interior & Others C of A (CIV) No.3 of 1984
Wentzel JA said:
"Nonetheless and even if the remedy is not a
review, but a declaration of rights, the delay is a factor to be
the remedy of a declaratory order is a discretionary
The fact that a declaratory order is discretionary is
not in issue, what I have difficulty with is the fact that the order
being sought does not involve "any existing, future or
contingent right or obligation". Prima facie and ex facie the
Declaration, the right claimed has been extinguished by
In the light of the aforegoing the appropriate order to
make is the following:
Plaintiff's claim is dismissed with costs as the course
of action has been extinguished by prescription.
For Plaintiff : Mr. L. Pheko For Respondent :
Mr. K.R.K. Tampi
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