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
[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:
Interest thereon at the rate of 15% per annum;
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:
The appeal succeeds, with costs;
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;
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%;
The first respondent is ordered to pay the applicant's costs."
J.W. SMALBERGER
JUDGE OF APPEAL
I concur.
M. M. RAMODIBEDI
J. J. GAUNTLETT
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For the Appellants: Mr T. S. Putsoane and Ms P. Pali
For the First Respondent: Mr T. Hoeane
