IN THE HIGH COURT OF LESOTHO In the matter
THAMAHANE RASEKILA Plaintiff
Delivered by the Honourable Chief Justice Mr, Justice
J.L. Kheola on the 3rd day of February. 1995.
The plaintiff has sued the defendant for payment of
M53,612-64 being in respect of accommodation plus interest at the
rate of 18.5%
plus costs of suit.
In his declaration the plaintiff alleges that at all
material times starting from the 1st March, 1982 he
(plaintiff) was employed as the Head of Finance Division of the
was dismissed by the defendant on the 1st April, 1989.
However he was reinstated as a result of a Court Order in C. of A.
In terms of the defendant's Revised Personal Regulations
Regulation 6.1 - employees of the defendant at the level
of Divisional Heads are entitled to accommodation in a detached,
house with a garage. It is common cause that even
though the plaintiff was given a post of director of Internal Audit
by agreement between the parties he still maintained
all the rights and benefits of a Divisional Head.
The plaintiff alleges that from the 1st day of April,
1989 to the 30th day of September, 1992 the defendant unlawfully and
refused to abide by Regulation 6.1 of its Revised
Personnel Regulations by failing to give plaintiff accommodation or
rent as at market price of a similar house as provided for
in the regulations.
In his further particulars the plaintiff alleges that
the amount claimed in summons is equivalent to rental of a house
in the defendant's Personnel Regulations.
The defendant has taken an exception to the plaintiff's
summons as amplified by further particulars on the ground that:
"The plaintiff's claim discloses no cause of action
in that the plaintiff's entitlement to a house provided by the
terms of the Personnel Regulations is neither emoluments
nor damages which the plaintiff would be entitled to recover upon
to the defendant's establishment."
The defendant has also pleaded over. It alleges that the
defendant, without admission of liability and without prejudice
to its defence that the plaintiff was not entitled to
payment of housing allowance during the plaintiff's period of
dismissal as an
emolument per se, paid the plaintiff housing
allowance at M400-00 per month from May, 1989 to July, 1992.
The first question to be decided by the Court is the
defendant's exception. In Venter v. Livni 1950 (1) S.A. 524 (T) at
Ramsbottom, J. said:
"If, without good cause, he seeks to terminate a
contract of service the servant may accept that termination and bring
to an end or he may refuse to accept the termination and
keep the contract alive until the end of its term; but in the latter
the servant's right is to claim wages as and when they fall due,
or at the
end of the term claim damages for wrongful dismissal.
The servant has not the right to remain in possession of his
and in occupation of his employer's premises.
Whether or not the dismissal of the respondent's manager, Mrs Venter,
or not, it is clear that, having dismissed her, he was
entitled to require her to leave hie farm and restore to him the
of the vehicles and other equipment on the farm and also
of the farm itself and the dwelling house. There was, therefore, no
to the claim for ejectment and the order for ejectment with
costs was correctly made."
In the present case the defendant was entitled to order
the plaintiff to vacate its house at Maseru West when it dismissed
was not entitled to remain in the occupation of that house
during the period of his wrongful dismissal to the date of his
because that is a benefit or privilege which he enjoyed
when he was in the employ of the defendant.
It will be necessary to set out the order in, C. of A
(CIV) No.24 of 1991 because the plaintiff's case is apparently based
-5- that order. It reads as follows:
"(i) The appeal, in so far as it relates to the
reinstatement of the respondent, is dismissed;
(ii) In order to ascertain what emoluments, if any, are
payable to the respondent for the period from the date of his
the date of his reinstatement, the Court a quo should be
furnished with affidavits from both parties regarding the emoluments
have been earned by the respondent in the period since his
dismissal. If there is a dispute of fact which cannot be decided on
affidavits that the Court a quo will order that viva voce
evidence be given by the parties and will in due course make such
regarding the quantum of emoluments, if any, to which the
respondent is, in the opinion of the Court, entitled.
(iii) The costs of this appeal must be borne by the
The order was dealing with emoluments or salary which
the plaintiff ought to have earned during the period he was dismissed
date he was reinstated. From that amount must be deducted the
emoluments or salary which the plaintiff received from another or
employers if during the above period he obtained another
employment. In other words the question was whether the plaintiff
to mitigate his damages by seeking another employment. It was
common cause that he did so and worked for the Lesotho National
It is clear that that case dealt with emoluments only
and not with damages. However it is relevant to the present case
was decided that the dismissal of the plaintiff was
unlawful and therefore whatever damages he suffered as a direct
result of that
unlawful dismissal might be recoverable from the
defendant unless they are too remote.
Mr. Metsau, attorney for the defendant submitted that
the housing provided by the defendant in terms of Regulation 6.1 of
Regulation is not an emolument but a benefit which he
enjoyed when he was still under the employ of the defendant.He
section 3 of the Employment Act No.22 of 1967 where the
definition of wages is a follows:
"Wages means remuneration or earnings.
-7-however designated or calculated, capable of
being expressed in terms of money and fixed by mutual
agreement or by law which are payable by virtue of a written or
of employment to an employed person for work done
or to be done or for service rendered or to be rendered."
There is no doubt that according to the definition given
above accommodation provided by the employer to his employees is not
as a wage or remuneration.
It is significant that in section 81 (1) of the new
Labour Code Order No,24 of 1992 which came into effect on the 1st
provides that it shall not be illegal to enter into an
agreement or contract which an employee to provide the employee, as
remuneration for his services in addition to money wages,
with food, a boarding place and/or such other allowances or
as may be customary in a trade or occupation concerned.
Section 81(2)(d) of the labour Code Order 1992 provides
that where the employee is provided with accommodation, the statutory
wage applicable to that employee may be reduced by such
amount as may be determined by the relevant wages order. It is
clear that in terms of the new Labour Code Order by
agreement of the parties accommodation may be used as partial payment
of the emoluments.
It is common cause that the Labour Code Order of
1992 does not apply to the present proceedings because the events
leading to the
present proceedings took place long before the Labour
Code Order came into operation. It is also clear that according to
Act of 1967 which was in force at the relevant time
accommodation provided by the employer to the employee was not
regarded as wages
It seems to me that the only relevance of C. of A (CIV)
No.24 of 1991 to the present proceedings is that it determined that
of the plaintiff was unlawful. As I pointed out earlier
in this judgment, all the damages suffered by the plaintiff as a
of his unlawful dismissal by the defendant might be
recoverable from the defendant unless they are too remote. The
plaintiff is not
claiming the sum of M53,612-64 as damages he
suffered during the period of his dismissal until his reinstatement
in 1992, He is claiming
that large amount of money as if it were his
emoluments in terms of the Appeal Court judgment. He says that in
terms of the Personnel
Regulations 'I was entitled to a specified
kind of a bouse; during the period of my dismissal to my
reinstatement. I was deprived
of that benefit or privilege therefore
I am entitled to payment of rental of a house of the same standard.'
I think there is something
wrong in this reasoning. If during the period of hie
dismissal to his reinstatement the plaintiff rented a house of a
as provided for by Regulation 6.1 he could probably
be heard to say that as a result of my unlawful dismissal I suffered
in the amount of M53,612-64 in the form of rent which I paid
for a house.
In that case the plaintiff would have to prove his
damages by producing receipts of the rental he paid during that
I was referred to the case of Evangelical Lutheran
Church in Southern Africa (Western Diocese) v. Sepeng and another
1988 (3) S.A.
958 in which the Constitution of the church provided
that "At her discretion ELCSA shall provide free housing for all
workers." A pastor of the church refused to accept
a transfer to another station. He was dismissed and ejectment
were instituted to force him out of the church's house.
It was held that in view of the fact that the free housing was a
or privilege, and that the first respondent was not entitled
thereto as a matter of right, that it followed that the church could
at any time withdraw the said benefit or privilege, purely on demand.
In the above case the words "at her discretion"
were used. In the present no such words are used. Regulation 26
62.1 LTC does not provideaccommodation free of
charge forits staff. Available LTC staffhouses owned by LTC
will beallocated and leased to staff inaccordance with the
Sectional Heads, responsiblefor areas within LTC
where easyavailability after working hoursis beneficial
26.2 Housing allowance is payable topensionable and
non-pensionablestaff of salary grade 9 through14 who do not
have benefits of anallocated house. See Annex4/6.1.
26.3 housing allowances, for staff attending courses
lasting more than a year, shall be reduced in line with dependants'
The reduction in bousing allowance shall, however, be
applied immediately after the employee's departure.
6,1 reads as follows:
"With reference to Article 26 of the Personnel
Regulations, the following rates for housing allowance shall be
effective as from
Salary Grade Allowance for month13 -
11 - 12 M300.00
9 - 10 M150.00
shall be paid to pensionable staff only. - staff on
grade 8 who already receive housing allowance shall retain the
benefit of M100.00/month
and new comers into the grades shall not
receive any housing allowance.
- Divisional Heads shall be accommodated in a detached,
three bedroomed house with a garage."
It is clear that according to the defendant's Personnel
Regulations the accommodation of the staff of the defendant in the
houses depends entirely on the availability of such
houses. If the houses are not available the defendant has undertaken
to pay housing
allowance. The matter does not seem to be
discretionary. It may be a benefit but does not seem to be
discretionary because if the
house is not available the defendant
must pay a housing allowance.
I have come to the conclusion that the plaintiff's
summons and declaration as amplified by further particulars disclose
no cause of
In the result the defendant's exception is upheld and
action is dismissed with costs.
J.L. KHEOLA CHIEF JUSTICE
3rd February, 1995.
For Plaintiff - Mr. Mafantiri For Defendants -
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