CIV/APN/147/98

IN THE HIGH COURT OF LESOTHO

In the matter between:

SEEISO KHETHISA APPLICANT

AND

LESOTHO MILLING COMPANY RESPONDENT

JUDGMENT

Delivered by the Honourable Mrs. Justice K.J. Guni on
the this 9th day of November 1999

The applicant herein, was an employee of the respondent,
Lesotho Milling Company (Pty) Ltd, since 23^rd November
1993. He was dismissed from employment on 22^nd October
1997. At the time applicant had been working at the respondent
company, as a professional electrician for a period of approximately
four (4) years.

As
a qualified electrician, with those years of experience, this
applicant should

have been able to discharge his duties diligently.
Professionalism demands

2 maintenance of standards commensurate with one's
qualifications, training, calling

and maturity of his or her human nature. This applicant
while performing his duties at the respondent company, did not even
remotely
associate himself with the above characteristic qualities.
The characteristics which this applicant endeavoured to establish as
an
employee at the Lesotho Milling Company (Pty) Ltd are
incompetence, inefficiency, obstinacy and insolence. He refused to
accept any
authority above him. He refused to take and follow
instructions from his superiors. He failed to execute his duties
diligently. The
papers filed of record disclose in short, that this
applicant was a very bad worker.

According to his own admissions, he would not accept
instructions to come to work on Saturdays when he is on standby. His
ground for
refusing to obey such instructions is that he was not
given prior notice preferably on Thursday before that Saturday that
he will
be called to come to work on Saturday. What is the purpose of
being put on standby? It makes none sense for a person who is on
standby
to demand yet another prior notice to be called on duty.
Being on standby is itself prior notice to be called on duty. To be
on standby
means you are ready and available, only waiting to be
called. For this applicant to refuse to come on duty while on standby
because
he had to go to check the wires elsewhere where he was
moonlighting, was an inexcusable arrogance. He cannot serve the

3

two masters at one and the same time. He had to choose
or be relieved. At the hearing of his misconduct inquiry, after
admitting all
the charges against him, this applicant was asked by
the Managing Director what should be done with him. Various options
were mentioned.
When applicant described how he was doing his private
work, at the time he should be working at the respondent milling
company, Managing
Director suggested to him that he should resign.
The applicant refused. He insisted on working for the two masters at
one and the
same time. Of course he pleases one master at the expense
of the other. The respondent milling company was the master who paid
him
while he worked on his private jobs. That was not satisfactory.
The Managing Director corrected it by dismissing the applicant.

The law governing employment contracts and their
termination is LABOUR CODE ORDER No. 24 of 1992. The specific
provisions of the said
Order, which must be considered in the
determination of the present matter are sections 63, 64 and 66. The
applicant has no problems
with the reasons for the termination of his
contract of employment. His problem concerns the time factor.

The applicant avers that he was called to the boardroom
where he found three other employees of the respondent company.
Allegations
of misconduct against him

4 were put before the board. He was charged with failure
to keep the cover on the

electric motor tightly bolted and refusing to tighten
the bolts when specifically instructed to do so. He was further
charged with
refusal to come for work on Saturday the 18^th
October 1997, when he was on standby for duty call. The applicant
admitted all the allegations. He explained that he refused to tighten
the bolts, because only one bolt was loose and that he could not
tighten the bolts while the motor was working. At the same time
he
would like this court to believe that there was no need to tighten
the bolts because no bolts were loose or even if they were
loose,
they posed no danger to machinery and/or personnel operating the
mill. There seems to be disputes. The question is whether
or not
there were loose bolts on the cover of the motor? The applicant
contradicts himself when answering this question. In the first
place,
he seems to be denying that there were any loose bolts. In the second
place he seems to admit that at least one bolt was loose.
In an
attempt to get away from liability for his refusal to tighten the
bolts, he claims that loose bolts and/or loose motor cover
posed no
danger to machinery or personnel operating the machinery. This
applicant must have seen this fact will be disputed because
he had
been found guilty of misconduct by leaving the cover on the electric
motor not tightly bolted.

The
manufacturer saw it fit to make the tightly bolted cover on the
motor. The

5 managing director and the supervisor are of the view
that the cover must be kept

tightly bolted on the motor. The applicant is of the
different view point as shown by reason for refusing to obey
instructions to
keep those bolts tight. He has no ground to hold that
point of view. There is no reason for me to accept his view

point which I reject.

The second charge consisted in his refusal to come to
work when called from standby position on the 18^th October
1997. He admits refusing to come to work on the ground that he had
his own private business to attend to at that same time.
He was
further accused of displaying a bad attitude and bad work ethics of
non-cooperation with his colleagues. This is the only
charge which
the applicant denied. The rest of the charges were admitted by him

After having been found guilty of misconduct he was
instantly dismissed. This is what the applicant does not accept. He
has come to
court to ask for reinstatement on the ground that he was
not given an opportunity to prepare his defence. He relies on section
66(4)
LABOUR CODE . That subsection reads as follows:-

"(4) Where an employee is dismissed under
subsection (1 )(a) or (b) of this section, he or she shall be
entitled to have an opportunity
at the time of dismissal to defend
himself or herself against the allegations made, unless,

6

in light of the circumstances and reason for dismissal,
the employer cannot reasonably be expected to provide this
opportunity. The
exercise or non-exercise of this right shall not act
as any bar to an employee challenging the dismissal pursuant to the
terms of
a collective agreement or contract of employment, or under
the provisions of the Code." [My underlining].

At the hearing of Misconduct Inquiry against this
applicant, respondent did precisely what this section demands. This
applicant was
given an opportunity to defend himself. He offered
those explanations which he is now putting before this court. He
cannot expect
the court to question, let alone quash, the decision
and reasons for his dismissal. The applicant's admission for
neglecting to tighten
the bolts on the cover of the electric motor
and his point blank refusal to tighten those bolts when instructed to
do so, warrants
instant dismissal. His refusal to come to work on the
ground that he has other jobs elsewhere is equally sufficient by
itself to
warrant instant dismissal from respondent company. There
was no unfairness. Even if there was, "a private employer
exercising
a right to terminate a pure master and servant contract is
not, at common law, obliged to act fairly." These are the words
of
MOHAMED JA (as he then was) in KOATSA v THE NATIONAL UNIVERSITY OF
LESOTHO 1991-92 LLR 163 at 169

7 The reading into the section 66(4) of "a time to
prepare defence" is misleading.

The section provided for an opportunity to defend
himself. The applicant had that opportunity. He defended himself with
or without
preparation. What did he need to prepare? There are no
complications of any type. There are no technicalities allegedly
involved.
He admitted the allegations. Even before this court he
still persists that he refused to take and follow specific
instructions and
that he refused to report for duty when he was
called from a standby position. He was heard on 22^nd
October 1997 - six months later when he filed this urgent application
his defence was still the same. He also did not indicate to
anyone
that he was unprepared and that he needed time to prepare his
defence. He does not complain of being refused time to prepare.
He
never asked for it. He did not need it. His defence has not changed
despite the length of time that had lapsed from the date of
hearing
of misconduct proceedings to the date of this application. By
refusing to accept authority and refusing to take orders from
superiors what complication can be found there? Why would he need
time to prepare to know what he did and/or said? There is no merit
in
this application. It is dismissed with costs.

JUDGE
9^th November 1999

For Applicant: Mr. Maieane
For Respondent: Mr.
Malebanye