C of A
(CIV) No.12 of 2004

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between

COMMISSIONER
OF POLICE FIRST APPELLANT

ATTORNEY-GENERAL
SECOND APPELLANT

and

PETER
MOLAHLOE NTLOTS'OEU RESPONDENT

8-20
April 2005

CORAM:
RAMODIBEDI, JA

SMALBERGER, JA

GAUNTLETT, JA

Summary

Policeman
- reinstatement after wrongful dismissal - claim for payment of
arrear salary - granted for full period of reinstatement
- appeal
against- letter of reinstatement interpreted - respondent entitled to
arrear salary for certain period only - court a
quo's order altered
accordingly - applicable interest rate - costs.

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JUDGMENT

SMALBERGER,
JA

[1] On 26
February 1997 the respondent, who at the time was a trooper in the
Lesotho Mounted Police Service ("the LMPS"),
fled to South
Africa. He claims to have done so because he feared for his personal
safety after learning that his name was on a
"hit list"
with others, including a recently murdered police colleague.

[2] On
his return to Lesotho on 3 September 2000 he was arrested. On 5
September he appeared in the Maseru Magistrate's Court on
charges of
treason, sedition and contravention of the Internal Security Act. He
remained in custody until released on bail on 17
February 2003.

[3] After
his disappearance, on 26 March 1997, the respondent was declared a
deserter and struck off the police roll. Many years
later the first
appellant acknowledged that his dismissal in this manner had been
irregular because of non-compliance with the
proper procedures laid
down in the Police Order 1971 and the regulations thereunder. This
led to a letter being written to the
respondent on 3 1 July 2003 to
which I shall refer in more detail later.

[4] The
period from the time of the respondent's disappearance until his
release from imprisonment may conveniently be divided into
two
segments, viz., that from the time he fled the country on 27 February
1997 until the time of his arrest on 3 September 2000
("the
first period"), and that from the time of his arrest until his
release from custody on 17 February 2003 ("the
second period").
It is common cause that at no time during the periods in question

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was any
disciplinary enquiry held with regard to his conduct, nor were
appropriate and effective steps taken to have him dismissed
from the
LMPS. Furthermore, no salary was paid to him over those periods. In
addition, the charge or charges against the respondent
have not been
proceeded with since his release.

[5] The
letter of 31 July 2003 to which I have referred ("the
reinstatement letter") reads as follows: "REINSTATEMENT
TO
DUTY

I am
instructed by the Commissioner of Police to advise you that a
decision has been made to reinstate you to police duty effective
from
28 February, 1997.

However,
you are further to recall that you disappeared from your duty without
leave since 7 February, 1997 until when you were
arrested by the
Police on 3 September, 2000 on which date you were put in prison
custody to answer a charge of Sedition. The fact
that a period
covered during the dates between February, 1997 and September. 2000
of your being away from police work was in your
own accord that made
it impossible for you to render police services to LMPS clients
deprives you a privilege to access salary
for the said period.

Upon
receipt of this letter, you will be expected to report yourself
before the Director of Training at PTC for instructions of
duty
starting from Monday 4 August. 2003."

[6] On 20
August 2003 the respondent (as applicant) applied to the High Court
for an order against the appellants (as respondents)
in the following
terms:-"(a) directing the first respondent to pay or cause to be
paid applicant's salary arrears from February
1997 to July 2003:

2. Interest
   thereon at the rate of 15% per annum;

   
   

2. Costs".

   
   

[7] After
an exchange of affidavits the matter came before Monapathi J. On 21

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May 2004
the learned judge granted the orders sought by the respondent. The
present appeal is directed against his decision in that
regard. His
reasons for judgment were regrettably only handed down on 29 March
2005 after, as we have been informed, several requests
were made for
them. The appeal had to be enrolled with an incomplete record and
counsel had to prepare their heads of argument
without having had the
benefit of the full judgment.

[8]
Counsel have not referred us to, nor relied upon, any of the
provisions of the Police Order 1971 or its successor, the Police

Service Act 1998, or the regulations thereunder (the Lesotho Mounted
Police Regulations 1972 and the Lesotho Mounted Police Service

(Administration) Regulations 2003 respectively) as having application
in the determination of the issues in this matter. Nor have
I been
able to gain any assistance in that regard from the enactments in
question. Regard must therefore be had to basic principles
bearing in
mind their impact on what is essentially a statutory regime.

[9] In
Chegutu Municipality v Manyora 1 997 (1) SA 662 (ZSC) the respondent
("Mr Manyora") had been dismissed (it would
seem wrongly)
by the appellant ("the Municipality'1). The date of his
dismissal was 26 June 1991. Having relented in its decision
because
of facts which emerged subsequent to Mr Manyora's dismissal, the
Municipality entered into an agreement with Mr Manyora
on 29 July
1993 which provided, inter alia, that he would "be reinstated to
his position on the same grade"; take up
his duties on 1 August
1993; and be paid all benefits accruing to him from the date he had
been suspended from service (20 November
1990) to the date of his
dismissal.

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[10] At
663 G of the judgment the court (per McNally JA) formulated the issue
that had arisen (both in the court a quo and on appeal)
as "whether
or not Mr Manyora should be paid backpay and allowances from 26 June
1991 to 31 July 1993. In short, what is the
meaning of 'reinstated'
in the context". It appears to have been accepted that if the
word "reinstated" had a retrospective
connotation Mr
Manyora would have been entitled to be paid backpay and allowances
over the period in question, notwithstanding
the fact that he had not
rendered any services.

[11] As
the headnote correctly indicates, the court held that having regard
to case law and various statutory provisions, both Zimbabwean
and
South African, the word "reinstate" or "reinstatement"
carried no automatic retrospective connotation,
either in ordinary
language or in Zimbabwean legislation: normally it meant simply that
the person concerned would be placed again
in his/her former job (at
666 D-E). There is no reason why the same position would not apply in
Lesotho. It was further held (at
666 E) that if retrospectivity was
intended, one would normally look for additional words to achieve
such purpose.

[12] The
letter of reinstatement did not simply reinstate the respondent, as
it might have done, in which case his reinstatement
would have
operated from the date of the letter. It expressly reinstated him to
"police duty effective from 28 February 1997".
It is
unmistakenly retrospective in its terms, and thus in its operation.
With regard to the first period it is subject to an important

qualification relating to the payment of salary for such period. No
such qualification attached to the second period. The intention
of
the first appellant (or his authorised representative) as reflected
in the letter is quite

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clear;
the right of the respondent to be paid a salary for the second period
(and beyond to 31 July 2003), if not expressly stated,
is necessarily
implied. This is in keeping with what was accepted in Chegutu
Municipality v Manyora (supra) - if reinstatement
was retrospective,
backpay would follow. In my view the first appellant is bound by his
undertaking in respect of the second period.
There is no suggestion
that the respondent did not accept what was offered in that regard.
The fact that he did not render services
is irrelevant; the
undertaking was made with full knowledge of the fact that his
imprisonment had precluded him from doing so;
and the authority to
make the undertaking has never been disputed.

[13] The
position is, however, different in respect of the first period. It
was made subject to an important qualification - that
because the
respondent's absence "from police work was in your own accord
that made it impossible for you to render police
services to LMPS"
he was not entitled to a salary over that period. In other words, the
first appellant specifically invoked
the common law principle of "no
work no pay" in relation to the first period. Apart from the
fact that his reinstatement
for this period was conditional upon no
salary being paid to him, the respondent, in my view, made out no
proper case for the payment
of salary in respect of that period.

[14] Save
for the bald allegation that he fled because he feared for his life,
the respondent has put forward no facts to justify
his prolonged
absence from Lesotho, and his failure to return to duty. As a
policeman one would have expected him to have communicated
with his
superiors with regard to his predicament, and to have caused
enquiries to be made as to when it would

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his
movements and efforts to return over the first period. The onus is on
the respondent to establish his entitlement to backpay
in respect of
the first period. Because of his failure to provide evidence of
circumstances justifying his prolonged absence, and
in the light of
the qualification that attached to his reinstatement in respect of
this period, he has in my view not succeeded
in doing so. He is
consequently not entitled to backpay for the first period.

[15] It
follows that the appeal must succeed and the court a quo's order must
be altered to reflect the respondent's entitlement
to backpay for the
second but not the first period. Costs of the appeal must follow the
result. Because of his success in relation
to the second period the
respondent is entitled to the costs of the application in the court a
quo. It was necessary for the respondent
to approach the court to
enforce the undertaking in the reinstatement letter in respect of the
second period as the first appellant
had sought, without
justification, to renege on it.

[16] The
court a quo ordered interest on the outstanding amount due to the
respondent at the rate of 15% per annum. It is not apparent
how it
arrived at this figure. The rate was not agreed upon nor established
on the papers. The respondent is entitled to mora interest
at an
appropriate rate. Counsel were unable to agree on what that rate is.
It" would seem that no legal or statutory rate
relating to mora
interest exists. I propose, therefore, to order that the approximate
average of the serving rates provided by
the Central Bank over the
relevant period is to apply with a minimum of 6% (cf Attorney-General
v Mantsane Tsoloane Bolepo C of
A (CIV) 8 of 2002 at 13).

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[17] The
following order is made:

1. The
   appeal succeeds, with costs;

   
   

2. There
   is substituted for the order of the court a quo the following: "1.
   The first respondent is ordered to pay, or cause
   to be paid, the
   applicant's salary arrears for the period 3 September 2000 to 31
   July 2003;

   
   

2. The
   first respondent is to pay interest on the amount of the said salary
   arrears from 31 July 2003 to date of payment at the approximate

   average of the serving rates provided by the Central Bank over the
   relevant period with a minimum of 6%;

   
   

2. The
   first respondent is ordered to pay the applicant's costs."

   
   

J.W.
SMALBERGER

JUDGE OF
APPEAL

I concur.

M. M.
RAMODIBEDI

JUDGE OF
APPEAL

I concur.

J. J.
GAUNTLETT

JUDGE OF
APPEAL

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For the
Appellants: Mr T. S. Putsoane and Ms P. Pali

For the
First Respondent: Mr T. Hoeane