IN THE HIGH COURT OF LESOTHO In the matter
MAHLOMOLA KHABO PLAINTIFF
Delivered by the Honourable Chief Justice Mr. Justice
J.L. Kheola on the 9th day of August, 1999
In this action the Plaintiff claims:
1. (a) Payment of Plaintiff's salary for the period 1987
to 2008 at the rate of M2,850.00 per month increasing at the rate of
per month per year and in the form of re-adjustments related
to the inflation rate of 20% every 3 years.
(b) Payment of Plaintiff's annual thirteenth monthly
cheque for the period 1987 to 2008 increasing at the rate of M50.00
2 month per year and re-adjusted for inflation at
the rate of 20%
every 3 years.
Payment of Plaintiff's housing allowance for the period
1987to 2008 at the rate of M650.00 per month increasing at the
rateof 10% per annum.
Payment of the loss of the benefit of the use of an
official carby Plaintiff calculated at M300.00 per month and
M300.00 per month for the period 1989 to 1990: M600.00
per month for the period 1991 to 1995: M1 200.00 per month for the
to 2000: M2 400.00 per month for the period 2001 to 2005
and M4 800.00 per month for the period 2006 to 2008.
(e) Payment of the loss of the benefit of the use of a
free telephoneand sewerage charges at the rate of M180.00 per
monthincreasing at the rate of 20% per annum from the year 1989
3 the year 2008.
Payment of Plaintiff's gratuity payable every 10 years
for 3periods of 10 years at the rate of 25% of earnings for
every 10year period.
Payment of the proceeds from a certain life insurance
policythe premiums of which Defendant was contributing
towardsamounting at maturity to a minimum of M60 000.00.
(h) Payment of the proceeds from Defendant group
insurance policy in favour of its employees amounting at maturity to
a minimum of
(i) Payment of Plaintiffs pension payable monthly on
retirement at age 60 years calculated at 2% or such percentage as
be found to be payable of Plaintiff's final average salary
multiplied by the number of Plaintiffs pensionable years of service
by 12 months.
Costs of suits:
Further and/or alternative relief.
The only issue in this action is the quantum of
Plaintiff's damages, liability having been conceded by the Defendant.
The Plaintiffs claim arises out of his wrongful
dismissal. At the relevant time the Plaintiff was Assistant Manager
of the Defendant.
On the 18th March, 1987 Mr Mafike, the
General Manager of the Defendant wrote a letter to the Plaintiff in
which he advised him that:
"the Board of Directors of the Bank has decided to
retire you from the services of the Bank with immediate effect. You
paid all your benefits and service entitlement as soon as
they have been computed. We join hands in wishing you happy years of
On the 21st August, 1998 I was asked to make
a ruling on certain points of law. One of such points of law was
whether the Plaintiff was entitled
5 from the date of his dismissal to the date of his
retirement at the age of sixty years or whether he was entitled to
damages for some
lesser period? I came to the conclusion that the
Plaintiff was entitled to damages for a reasonable period after his
pointed out that this period will vary from case to case
depending on the facts and circumstances of each case. Some jobs may
easily or readily available after an employee has been dismissed,
but others may not be available at all.
I also ruled that although the letter was couched in
terms which suggested that the Defendant sought to retire the
was a case of unlawful dismissal. In his declaration
as amended for the second time the Plaintiff alleges that the
unlawfully and without just cause summarily
terminated Plaintiff's said contract of employment. The Defendant has
also admitted liability
for damages arising out of unlawful
dismissal. So far both parties agree that this is a case of wrongful
or unlawful dismissal and
that the only issue is the quantum of
damages to which the Plaintiff is entitled.
6 In Strachan v. Lloyd Levy, 1923 A.D. 670 at p.671
de Villiers, J.A. said
"It is trite law that a contract cannot be
cancelled by one party to it against the wish of the other. As it
requires the consensus
of two parties to conclude, it equally
requires the consensus of both for its dissolution. But if one party
to it purports to cancel
it, or commits such a serious breach that it
amounts to a repudiation; the other party can either hold him to his
contract or sue
him for damages for the breach. He can of course also
acquiesce in the breach. But for that clear evidence is required.
That is our
law as well as the English law. It has been well
expressed by the late Master of Rolls, Lord ESHER in Johnstone v.
Milling (16 Q.B.D.
at p. 467): "When one party assumes to
renounce the contract, that is, by anticipation refuses to perform
it, he thereby, so
far as he is concerned, declares his intention
then and there to rescind the contract. Such a renunciation does not,
of course, amount
to a rescission of the contract, because one party
to a contract cannot by himself rescind it, but by wrongfully making
such a renunciation
of the contract he entitles the other party, if
he pleases, to agree to the contract being put an end to, subject to
by him of his right to bring an
7 action in respect of such wrongful rescission. The
other party may
adopt such renunciation of the contract by so acting
upon it as in effect to declare that he too treats the contract as at
except for the purpose of bringing an action upon it for the
damages sustained by him in consequence of such renunciation."
On the question of damages this Court cannot entirely agree with the
findings of the Learned Judge on the details, but as in the
the amount awarded is not excessive, the Court will not interfere. To
award damages on the footing of the whole of the unexpired
perhaps somewhat high, for no allowance is made for the possibility
of the Plaintiff finding employment during that period,
but on the
other hand to assess the Plaintiffs share of the crops at £35
appears unduly low."
The plaintiff is claiming damages on the whole of his
unexpired period of his contract, which is twenty-one years. As de
J.A. pointed out in Stracham v. Llyod Levy - supra- "to
award damages on the footing of the whole of the unexpired period is
perhaps somewhat high, for no allowance is made for the possibility
of the plaintiff finding employment during that period."
8 In the present case it is common cause that the
plaintiff found another job
within a fairly short period after his unlawful
dismissal by the defendant. The main dispute between the parties was
whether the job
he found as a depot manger at Caltex was comparable
with his previous employment as an assistant manager of the
defendant. It is
clear that the word "manager" may involve
different things that are to be managed. Such things may not be
each other at all. For instance, a bank manager may be
dealing mainly with financial transactions and books of account. A
may be dealing with the sale of petrol and transfer of
petrol from rail tankers into the ground tanks at the depot. That may
the actual taking of those heavy pipes by the manager. He may
even have to wear protective clothing. The plaintiff alleged that the
work of a depot manager is a dangerous job. It is also a dirty job.
The defendant's witnesses denied all these allegations. However
agreed that during the plaintiffs training period as an assistant
depot manager he was bound to handle petrol pipes and to do
manual work so that he could know what was involved. After that
period of training he (plaintiff) would not have to personally
transfer of petrol. The yard attendants would do the dirty work which
plaintiff did not like.
There are many types of managers and their jobs involve
diametrically different activities. For instance, a farm manager who
involved in the
9 breeding of certain breed of animals or in growing
certain crops. A compound
manager who may be involved mainly in the welfare of the
labourers. The salary of a particular manager may be high and yet a
from another place may not get job satisfaction. It is
generally accepted, even by the employees of Caltex who were
this case, that the plaintiff was over-qualified for the
position of depot manager. But he really never got any job
and as a result he never performed well until he was
demoted. This is the allegation by the defendant that plaintiff was
and that was the reason why he was demoted.
The crux of the matter is whether the position of depot
manager at Caltex was comparable to the position of assistant bank
at the defendant? The two positions are not at all comparable
with each other. The plaintiff never felt that he had found a job
or less similar to the position he held at the defendant. Mr.
Sello, attorney for the plaintiff, went so far as to describe the
of depot manger as a glorified petrol attendant. I do not
agree with him that the position was that of a glorified petrol
I agree that the position of depot manger cannot compare
with that of an assistant bank manager.
What the law expected the plaintiff to do was to
mitigate his damages by
10 taking up some employment as soon as he could after
he was unlawfully
dismissed. That is exactly what he did. He gladly
accepted the position of depot manager at Caltex but the position did
with his previous position of assistant bank manager at
the defendant. What the plaintiff did is quite commendable because he
not sit back and did nothing but he took up any job that he came
across in order to mitigate his damages. Unfortunately he could
get a job that was comparable to his previous job.
The plaintiff had a very bright future in the employment
of the defendant. He was fairly young when he was wrongfully
dismissal apparently destroyed him for the rest of
his life. He is now over fifty years old but he is still unemployed.
was very malicious in that when it dismissed the
plaintiff it alleged that it was retiring him. It soon turned out
that it was not
true that this was a retirement but a disguised
unlawful and wrongful dismissal. This disguised dismissal has
actually caused problems
for the plaintiff to get another job. At
least one prospective employer wanted to know shy the plaintiff was
offered early retirement.
The defendant was asked by the plaintiff to
give the reason for that early retirement. It refused to give the
reason. As a result
of this refusal the plaintiff has been rendered
unemployable because some prospective employers may suspect that
plaintiff was retired
early because he had
done something wrong or was incompetent. The defendant
has deliberately made life very difficult for the plaintiff to get
job which is comparable to his previous job.
Mr Woker submitted that the court has already ruled that
the plaintiff is only entitled to damages for a reasonable time. By
plaintiff resigned from Caltex nearly three years has passed
since the date of his dismissal. He submitted that this period
more than a reasonable time. In this regard guidance is
to be found in the South African Labour Relations Act 66 of 19995
in section 194 thereof, limits the period for which an
unfairly treated employee can recover compensation to a maximum of
months remuneration at the employee's rate of remuneration
on the date of dismissal." The plaintiff should according not be
awarded damages for any period beyond 31st December, 1989.
I am of the view that the period of 24 months is not at
all reasonable in the circumstances of the present case. At the same
it seems to me that damages for a period of 21 years i.e. until
the plaintiff has reached the retiring age is also too high. The
problem with this case is that we know that for the last twelve years
after his wrongful dismissal the plaintiff has really never
a suitable job comparable to his previous position. If the case had
been disposed of within a
12 reasonable time after his dismissal there would have
been a hope that he would get another suitable job. Now we know that
most unlikely to get another job because of his age and lack of
practice having been not working for a long time.
I find it very difficult to decide what is a reasonable
time in the circumstances of this case. Both Mr Sello and Mr Woker
refer me to any authorities that bear some semblance to the
facts of the present case. I have also not found any authority. In
v. Abramson 1952 (3) S.A. 121 (C.P.D.) At 127 Van Winsen, J.
"In my view the only remedy open to plaintiff in
this case is the remedy of damages. What is the measure of such
Bloch contends that he is entitled to surrogate damages,
i.e. damages which are substitutional for specific performance and
in the circumstances of this case would amount to the same sum
as would be awarded on a claim for specific performance. I have found
no precedent for awarding surrogate damages to a wrongfully dismissed
employee. The measure of damages accorded such employee is,
our law and in the English law, the actual loss suffered by him
represented by the sum due to him for the unexpired period
13 contract less any sum due to him for the
unexpired period earned
during such latter period in similar employment"
In Beeton v. Peninsula Transport Co. (Pty) Ltd 1934
C.P.D. 53 at p.59
Sutton, J said:
"The measure of damages in this action is the
actual loss incurred, which may be much less than the wages for the
of service where another employment may be easily
obtained, and which will vanish where the plaintiff has immediately
another employment, on equally good terms."
Taking into account all the particular circumstances of
this case I have come to the conclusion that a reasonable period
dismissal during which the plaintiff is entitled to damages
is twelve (12) years.
In the result the plaintiff is awarded damages for a
period of twelve (12) years after his dismissal in terms of claims 1
(c), (f), (g), (h) and 2.
J.L KHEOLA CHIEF JUSTICE
9TH AUGUST, 1999.
For Plaintiff - Mr. Sello For Defendant - Mr.
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