CIV/APN/411/96 IN THE HIGH COURT OF LESOTHO
In the matter between:-
SUN INTERNATIONAL OF LESOTHO APPLICANT
PULENG MATHIBELI RESPONDENT
Delivered by the Honourable Mr Justice S.N. Peete on the
15th June 2000
In this application, the applicant moved the court for
and was granted by My Brother Molai J. an order calling upon the
to show cause why the judgment of the Labour Court in
case No.LC23/95 shall not be stayed, reversed and set aside and why
finalisation thereof, the execution of the said judgment
shall not be stayed.
History of the case
It appears that the first respondent had been employed
since 1988 as a slots cleaner by the Sun International of Lesotho and
at the Maseru Sun Cabanas. On the 15th January 1995 she
was dismissed by the chairman, a Mr Wilson, who presided over a
hearing set up to inquire into a theft scam in which
overage monies from the slot machines were being systematically
the staff of the gambling department. Preliminary
investigations had been conducted by a Mr Wilhehn Pieterse, a
from a sister Sun Hotel - the Thaba-Nchu Hotel. The
first respondent allegedly made a written statement in which she
have taken some bags containing coins on two occasions
from the trays of the slot machines but also explained that she had
to do so by one Calex who had given her on those two
occasions some money as a reward for her assistance.
In this proceedings it is not necessary however to go
over the merits of the disciplinary hearing once more because the
decided that evidence supported the charge.
Having thus found, the Labour Court in its judgment of
the 17th September 1996 came to a finding that-
"There being no evidence of delegation of power we
are not the view that the purported dismissal of the applicant by Mr
on the 15/1/95 was materially flawed and as such of no force
or effect in law as he had no power to dismiss"
and in its award ruled that-
"She is lawfully and properly terminated as of the
17th September 1996 when the judgment of this court was delivered. It
only fair that she be compensated for the loss she has
suffered since 15th January 1995 to that date"
It is this Ending of the Labour Court that is being
challenged by the applicant in the present proceedings.
In her originating application the first respondent
"I was unlawfully dismissed on the allegations
against me (which) were not proved. I was unlawfully punished for the
any) of another person. I was not in charge. I was not
given notice of termination, nor payment in lieu thereof; no
4. Nature of relief sought or reference or question for
determination of Court - Damages, notice of pay, severance of pay."
It is clear that the grounds on which relief was sought
did not challenge per se the authority or power of Mr Wilson as
dismiss after the inquiry was concluded. In her
supporting affidavit she states:-
"I submit that my dismissal is unlawful for the
6.1. I was given no tice of termination in terms of
section 63 of Labour Code Order no 24 of 1992.
I was not given payment in lieu (sic) of Notice in
terms of Section64 of the Order mention (in) 6.1. above
I was not given severance payment in terms of section
79 of thesaid Order".
In her originating application she did not pray for an
order that the purported dismissal by Mr Wilson be declared null and
the reasons that Mr Wilson did not have authority or power
to dismiss. The replying affidavit of the first respondent alleges
"The dismissal was never real when the purported
dismissal Form was signed by the chairman."
It is perhaps important to reproduce the notice of
Dismissal Form in full-Date: 15-1-95
Employee's name and address:
Puleng Mathibeli Thetsane
Mr(s) Mathibeli NOTICE OF DISMISSAL
This serves to confirm that, following the hearing held
on 15-1-95 (date) concerning your serious misconduct, your services
terminated. Your are summarily
It is this finding of the Labour Court that is being
challenged by the applicant in the present proceedings.
dismissed and your employment relationship with the
company ends on 15-1-95 (date) we also confirm that you have the
right to appeal
in writing, within three (3) working days against
acknowledge receipt of this letter by signing where indicated below
Chairman's signature : K.E.WilsonName : Keith
Position : Slots Manager
Employee's signature : P. Mathibeli
During the hearing in the Labour Court Mr Monyaka
Makhetha Personnel Manager of applicant was cross-examined as follows
by Mr Fosa-
"Question: It is correct that when a person is
dismissed there is a dismissal form that is filled?
Answer: Yes, there is but it is not always filled
sometimes it is a dismissal letter.
Question: After signing dismissal form is a dismissal
complete or there is still something else?
Answer: The dismissal is complete, a person is
dismissed. Question: Is he dismissed by the person who signs the
form? Answer: Yes.
Question: And this is signed by Mr Wilson from
Thaba-Nchu who chaired the hearing?
Question: What power does Mr Wilson have to dismiss
people in Lesotho?
Answer: He had been empowered by the Management of
Maseru Sun Hotel as a chairperson of that hearing
Question: Do you mean that when a person is powered to
chair a hearing he is also given power to dismiss?
Answer: Yes, once you are given power to chair a
hearing at that time you were also given power to dismiss.
Question: No even power to recommend?
Answer: No, he is given all powers to dismiss
Question: This is ridiculous, is this position known by
Question: Puleng says she did not know this?
Answer: At the beginning the chairman explained his
position as chairman and his powers so Puleng knew about this."
To his founding affidavit, Murtuza Rahman the General
Manager of Sun International of Lesotho attached what is called
and Disciplinary Procedures"
"(viii) The following people will normally be
- Your supervisor/charging officer
- Your manager (Chairman of the Hearing)
- Your representative (if required)
- Your witness (if required)
- Other witnesses (if required)
7 - Your interpreter (if required)
After hearing all parties and allowing questions, the
Chairman will decide if you are guilty or not. He will then consider
record and decide on what action may betaken.
This may be:
He will notify you of the action to be taken and give
you the right to appeal.
He will also issue you with a disciplinary action form
(see Appendix 3).
A copy of this will be placed on your file and will
normally be valid for 12 months"
The ordinary import of this document despite its
inelegant drafting implies that it is the chairman of the
disciplinary hearing who
decides upon the guilt or otherwise of the
employee and it is the chairman may impose appropriate punishment
i.e. verbal warning,
written warning final warning, or dismissal. The
fact that the convicted employee has a right of appeal from the
decision of the
chairman also implies that the Chairman's decision is
definitive and not merely a recommendation to be forwarded to the
Also attached is a letter purportedly written by Mr
Rahman to Mr Wilson appointing him to chair over the disciplinary
8"RM/mam 9th January, 1995
Mr K. Wilson, Slots Manager, Thaba-Nchu Sun.
This is to confirm that you have been appointed to chair
and preside over disciplinary hearings of cases of the following
of Lesotho Sun Hotels working at the slots department of
Maseru Sun, Violet Lesenya, Julia Moholobela, Puleng Mathibeli and
We have appointed you because you are a senior manager
within the Sun Group with knowledge of the operations of Slots
These employees are facing very serious charges which if
proven may warrant dismissals; and since you do not work at Maseru
you are not intimate with the facts of the cases and you are
thus the most neutral and unbiased Chairman we can get while still
within the Sun Group as these proceedings are an internal
Even though you are familiar with procedure forms to be
followed, we attach a copy for ease of reference.
RAHMAN MURTUZA GENERAL MANAGER"
This letter in fact in my view authorises Mr Wilson to
exercise all disciplinary powers in the said hearing including
If delegation of power was necessary, this
letter constituted one.
I discern no procedure for recommendation but for appeal
after the conclusion of the proceedings; I do not see any negation of
principles of natural justice.
In their originating application it was incumbent upon
the first respondent to have placed the validity or nullity of
in issue before the Labour Court in order that the
applicant could avail that court with necessary documentation. The
International is not a public or statutory body but a
private entity (see Koatsa v NUL C.of A. (civ) No. 15 of 1986) In the
case of Makhutla vs Court President and Lesotho Agricultural
Development Bank - CIV/APN/293/95 Mofolo J. said:-
"In the first place, powers vested on the Managing
Director are by statute and the expectation is that they can be taken
from him or diminished by statute"
The learned judge decided that under the principle of
delegatus potestas non potest delegare where a function is entrusted
to an administrative
organ, the task or function may not be carried
over to another person in the absence of statutory authorization for
this. Thus where
an official purports to exercise a function that is
not entrusted to him under statute, such act is ultra vires - In
Lesotho Pharmaceutical Corporation & Another -
CIV/APN/80/96 per Kheola J. as he then was, decided that purported
a department head was ultra vires because the letter of
dismissal had not been written in terms of section 12 of the Lesotho
Order 1987. See also Lesotho Telecommunications
Corporation vs Thamahane Rasekila - C of A (civ) No.24 of 1991 where
Browde JA stated:-
"I have come to the conclusion, therefore, that the
decision to dismiss the respondent was taken by the Board of
that being so the decision was in breach of the
regulations which governed the relationship between the parties."
The learned judge of appeal also noted that it must be
borne in mind that the onus of proof on the issue of unlawfulness of
is on respondent.
I am also of the view that since the issue of authority
to dismiss only surfaced during the cross examination of Mr Makhetha
incumbent upon the first respondent through his lawyer to have
made an application before Labour Court to amplify or amend his
for relief-which-I should hasten to say - were of
compensatory nature and did not directly challenge Mr Wilson's
authority to dismiss.
This was a necessary step because the Labour
Court - even as a court of equity could not - grant a relief not
sought in the papers.
It is my view that the finding of the Labour Court that
the chairman of the disciplinary hearing Mr Wilson had no authority
is not based on any evidence but on an assumption that
only the general manager had this power. The onus on this issue was
first respondent to show that the dismissal was null and void
because Mr Wilson had no authority to dismiss; there is no iota of
evidence in this regard.
In the circumstances, the finding of the Labour Court
declaring the dismissal of the first respondent of the 15th January
and void is set aside. Consequently any benefits due to
first respondent should be computed up to that date.
For Applicant: Mr Makeka For Respondent: Mr Fosa
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