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CIV/APN/334/98
IN THE HIGH COURT OF LESOTHO In the Application of:
KHOBOSO LELUMA Applicant
VS
SUPREME FURNITURES LESOTHO(PTY)LTD Respondent
JUDGMENT
Delivered by the Hon. Mr Justice M.L. Lehohla on the 20th Day of September,1999
Having perused the record and heard submissions by Counsel on either side on Wednesday last week this Court decided to reserve reasons for Judgment till today.
The applicant had earlier obtained a final order by default entitling her to reinstatement in the employ of the respondent.
The respondent in turn obtained an interim order staying the order that was granted by default pending finalisation of the respondents application for rescission of that order and its nullification.
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Needless to say the respondent was granted leave to oppose the applicants main application and file its opposing affidavits within the time prescribed by the rules of Court.
The respondent duly filed its opposing affidavit in answer to the applicants averments in the main application which led to the following prayers : i.e that application would be made for an Order in the following terms:-
That the Respondents decision of 5th August, 1998 to summarilydismiss one Khoboso Leluma be reviewed, corrected and declared null and void ab initio.
That the Respondent be compelled to reinstate the said Khoboso Leluma on terms and conditions no less favourable that (sic) which governed her employment prior to the termination of her employment.
The order granted in paragraph 2 above operate retrospectively as from the date of dismissal.
That Respondent pay costs of this application.
Further and/or alternative relief.
The applicant relied on her founding affidavit in moving the above application. In her founding affidavit she avers that at all times she was employed by the
3 Respondent until she was dismissed on the 5th August, 1998.
She further averred that on that day she was called to the office of the Branch Manager and told that her employment had been terminated because of what is termed "poor reference". She was told to leave and come back at 16.30 hours to collect a dismissal letter.
She duly reported herself at the appointed time and was issued with a letter terminating her employment with immediate effect on the same day.
She challenges the dismissal on the grounds that she was not given any hearing by the Respondent, a factor that is contrary to the rules of natural justice requiring that each party be heard.
She fortifies her challenge by reference to the Labour Code which has enshrined the principle of a right to a hearing before dismissal in Section 66(4).
The respondent reacted to what seems material to me by pointing out that the applicant compromises her honesty before this Court by not disclosing when exactly
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she was employed by the respondent company. The respondent furnishes the reason for the applicants lack of candour in this respect by indicating that the applicant was employed on the 4th August, 1998 i.e. a bare 24 hours before dismissal. The respondent thus wishes in this respect to persuade the Court that the applicant is in fact engaged in abuse of Court process for had she disclosed that she was dismissed in barely 24 hours of her employment the Court that granted her judgment by default would have at least hesitated before doing so.
I have observed that the record does not show that before the default judgment was granted the respondents name was called three times outside Court as this has been the rule and practice going far back into the distant past.
Needless to say the Court that set aside the order that had been granted by default and also rescinded it must have had good reasons for doing so. Thus I am not required to elaborate on them at this stage.
I must however, sitting as a Court that is required to grant final judgment in the matter, stress that I demur at the fact that such a significant point as the period of the applicants term of duration of employment was not disclosed in the applicants
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Even when dared by the respondent to say anything to the contrary or water down the negative impact that this entails the applicant preferred to remain silent.
In paragraph 7 ad para 4, the respondent rose to the challenge and indicated that
" It was after applicant was afforded a hearing that she
was advised to come later to collect a formal letter of dismissal".
The applicant didn't do the least she is required by the rules to do in the face of circumstances set out above; namely, file a replying affidavit.
In such a case this Court and in turn the Court of Appeal have repeatedly stated that the statement, that in motion proceedings the applicant stands or falls by his or her founding affidavits, when elaborated means that if the respondents denials are not just bare denials then the Court will accept what is common cause and in the event of conflict between the combatants' versions would reject the applicants version and go along with the respondents version as representing the truth.
6 When shown that the applicants failure in this connection cannot avail her, Mr
Putsoane for the applicant submitted that the applicant as a lay person couldn't have known that she was required to respond to the respondents averments by way of replying affidavits. My humble view however is that affidavits are not drawn by lay people but lawyers who are regarded as experts in this field. It is therefore unacceptable and inexcusable for a practitioner to try and shield behind the ignorance of his or her lay client for his or her own negligence. In all fairness to him Mr Putsoane ultimately conceded that there ought to have been a reply to material challenges raised by the respondent in order to place the Court in a better position to find what further weight if need be could be accorded to the applicants evidence.
In the light of the applicants failure to rise to the respondents material challenges the Court is obliged to accept the respondents version and reject the applicants averments to the contrary. Indeed looked at against the foregoing background the respondents opening challenge assumes a pointedly significant appearance of relevance and pungency in its meaning, namely that
"I note with interest that applicant does not purport to depose to facts which are true and correct". See the respondents paragraph 5 ad para 3
Finally reference to page 28 of the record reflects the final portion of the
7 Contract wherein the applicant subscribes to an understanding and acceptance of the
fact that
" This Company has a 4 month probationary period during
which time either party can give or be given 24 hours notice. During the probationary period your ability to do the job satisfactorily will be assessed".
It is a further point of concern that the applicant has not found it fit to attach the copy of the contract that governs her relationship with her employer, to her papers. This casts a great shadow on her bona fides. An inference is irresistible that she feared that if she filed it the Court would not overlook the portion that constitutes part of that document but which happens to be adverse to her sense of comfort.
The Court observes that the respondent has filed heads of argument in an endeavour to be of assistance to it while the applicant who had longer opportunity to do so did no such thing.
The main application is dismissed with costs.
J U D G E 20th September, 1999
For Applicant : Mr Putsoane For Respondent: Mr Mafantiri
