HIGH COURT OF LESOTHO
OF LDF 1ST DEFENDANT
GENERAL 2nd DEFENDANT
HON. MR JUSTICE S.N. PEETE
31th MAY 2006
the 26 April 2000 the plaintiff - a retired Warrant Officer No.2145
of the Lesotho Defence Force - issued summons in which
he claimed -
release and payment of plaintiff's gratuity in the amount of
seventy thousand maloti (M70 000.00)
interest thereon a tempora morae.
and/or alternative relief.
can be noted here and now that per "Agreement between plaintiff
and defendant, the latter released a sum of M26,112.49
leaving unpaid a sum of M47,474.14 being the subject-matter of the
is common cause that the 1st defendant is holding on to these monies
because it is alleged in the plea that
"Defendants is justifiably holding to that money in order to pay
Rose - Park Hospital."
the 1st defendant having paid for plaintiff at Rose-Park Hospital at
plaintiffs request. "Plaintiff remain indebted
receipt of payment of the medical bill for the M47 474.14 at anytime
after the hospitalization of plaintiff in Rose-Park Hospital
however been produced before this court.
his declaration the plaintiff alleged that on the 10th day of
November 1996 he was admitted to Makoanyane Military Hospital
hypertensive high blood pressure.
condition having developed for the worse, it was decided to transfer
him to Bloemfontein Military Hospital rather than the
Elizabeth II Hospital in Maseru.
was common cause that because of his critical condition on the 16th
November 1996, plaintiff could not at all communicate his
the proposed transfer. The declaration alleges the transfer was
effected "without his consent and or prior consultation"
is clear therefore that what is at issue is whether plaintiff or his
lawful wife consented to foot the bill arising or resulting
Bloemfontein medical treatment; and viva voce evidence led was thus
limited to that single issue.
was also common cause that the onus to prove the existence of
agreement rested upon the defendant - as the one who alleges
agreement as basis for liability must prove the existence of the
same. Christie - Law of Contract of South Africa (1996) page
Bulane, a doctor of medicine and surgery (University of Zambia 1992)
was called by the defendant. He informed the court that
he knew the
plaintiff as his doctor at Makoanyane Military Hospital for his
chronic hypertensive high blood pressure.
went on to say that one day the plaintiff was brought in with a very
high blood pressure symptoms e.g a severe headache - a
manifestation of celebral haemorrhage. This had also resulted with
stiffness — inability to talk and periodic seizures and fits.
He was unconscious.
informed the court that plaintiffs critical medical condition
required a referral to a better hospital. For this he consulted
Sebajoa - Makoanyane Military Hospital Administrator.
says the plaintiffs wife was soon summoned to Makoanyane Hospital
for these discussions over the referral or transfer so that
urgent operation to stem the haemorrhage could be performed in
says that plaintiffs wife agreed that her ailing husband - the
plaintiff- be uplifted by helicopter for the operation in
Bloemfontein on the same day.
regards the issue of payment Sebajoa was saying, "I cannot
authorize the transfer to MI because payment cannot be guaranteed"
To which the plaintiffs wife said she would pay ...Molise had to go
Bulane informed court that this transfer was an absolute necessity
(life or death) and the airlift was necessary to safe plaintiffs
Mr Maieane's cross-examination he replied - "As regard consent
I have no direct knowledge."
Mr Khololikane Sebajoe was then called to give evidence. He told the
Court that on the 10th November 1996, plaintiff was
Makoanyane Military Hospital in a critical condition which needed a
everyone stood around plaintiffs hospital bed, Dr Bulane explained
that Queen Elizabeth II Hospital was not suitable and that
Bloemfontein was to be recommended; he went on to say that as papers
were being filled, a helicopter airlift was put in
style. The plaintiffs wife was all time saying ".....only if my
husband's life can be saved ... payments
would be seen to later."
is common cause that in the urgency, no forms were filled - either
for the celebral operation or - indeed - payment of medical
Sebajoe explained that MI Hospital always dealt with the LDF
directly and not with individual patients and that all medical
were always cleared by the LDF which was then reimbursed. And, so he
continued "... in the LDF nothing was done gratis
... that is
why the medical bill was to be deducted from his gratuity" when
went on to explain that plaintiff even used to visit her husband at
MI in Bloemfontein.
went on to say that the plaintiff was later released from hospital
and also later retired upon medical grounds.
the issue of consent, Mr Maieane proceeded as follows:-
"Question: One Mahao said consent was "deemed" or
Answer: I don't know. I did not get copies of correspondence between
our legal office and Mosito & Co.
Question: Consent was not there?
Answer: I have told the court what happened.
Question: Mrs Molise has said that her consent was never sought.
Answer: But we did not abduct Molise ...we did not do that.
Question: She was told that LDF was taking him to Bloemfontein ...
you did not seek her consent.
Answer: That did not happen. She even went many times to Bloemfontein
in an LDF transport.
Question: She will say she only got to know about the deduction when
Molise was claiming his gratuity?
Answer: Cpt. Mahase held the bill. It does not come out soon after
insisted that medical expense was discussed briefly at Molise's
bedside on the 16 November 1996. It was an emergency. He went
point that the airlift was a humanitarian gesture - nothing was for
free in the LDF - even Majors Thaane and Marai had
for their own medical treatment.
Matsepo Molise then gave evidence. She informed the court that she
was 54 years old and a lawfully wedded wife of plaintiff
mother of 5 children - 3 of whom are major.
went on to say that on the 10th November 1996 her husband (the
plaintiff) fell seriously ill as a result of which he was admitted
to Makoanyane Hospital.
she later arrived — having been summoned — she saw that
plaintiffs medical condition was very critical. Plaintiff
moaned and said "My wife... please hold me." His blood
pressure was quite high.
the following day Dr Bulane informed her that her husband had had a
stroke and that his condition was becoming very critical
threatening; and that on the 13th she received a telephone asking
her to bring along with her the passport of the plaintiff's.
"I was told he was being transferred to Bloemfontein Military
Hospital on the 14th November ... it was a Thursday. "
went further to say that Sebajoe said this was a military matter and
because Molise was a long serving soldier they would
see to it that
he survived the stroke. "All that time nothing was said about
settlement of bills ... and I never said money
matters would come
afterwards" she says.
admits that she used to pay her husband some visits in Bloemfontein
but at no stage was she made to sign any forms.
insisted also that plaintiff suffered this stroke while on duty. She
told the court that after his discharge from hospital
retired by the LDF on 12th April 1999 on grounds of ill-health. The
plaintiff, the court was told, presently has
incoherent speech and
no longer attends therapy.
Advocate Mosito then took the witness box. He informed the court
that plaintiff was his client in a claim for the gratuity
plaintiff upon his retirement.
Mosito also handed in his formal letter of demand dated 13th
December 1999. It reads:
Lesotho Defence Force
P.O. Box 54
RE: ACCOUNT FOR MEDICAL SERVICES RENDERED TO WARRANT OFFICER PATRICK
MOLISE LESOTHO DEFENCE FORCE MEDICAL SERVICE M47474.14:
We are the legal representatives of the above named client.
to the above matter and request you to furnish proper documentation
made by the above-named officer to have forty-seven thousand for
hundred and seventy-four maloti and fourteen lisente
deducted and medical expenses from his gratuity.
made by the said officer to be transferred to Bloemfontein Hospital.
Yours favourable co-operation will be highly appreciated.
LDF response dated 4th January 2000 reads thus:-
"Lesotho Defence Force
Box 54 (Legal)
4th January 2000
ACCOUNT FOR MEDICAL SER VICES RENDERED TO WARRANT OFFICER PATRICK
Your letter dated 13th December 1999 reference N8 KM/A/MM/3089 about
the above mentioned matter refers.
We are unable, unfortunately to furnish you with proper documentation
showing consent by your client to be transferred to Bloemfontein
Hospital and be paid on his behalf the amount of forty seven thousand
for hundred and seventy four Maloti and fourteen licente
that will be deducted from his gratuity.
It is so held because your client is deemed to have consented to all
this agreement made by the Army.
I remain yours faithfully.
Mahao M Major
Lesotho Defence Force "
the 17th November 2005 Mr Maieane for Plaintiff and Mr Motsieloa for
Defendant then addressed the court.
must be borne in mind throughout that the plaintiff is in fact
claiming the immediate release and payment of.....of the balance
is also common cause that the said amount is being "withheld"
by defendant who maintains that plaintiffs wife consented
plaintiffs transfer to the Military Hospital and to the medical
treatment he received in Bloemfontein.
Maieane, in the main, submits that plaintiff has been despoiled by
the Lesotho Defence Force his rightful property - namely
gratuity and that no legal basis was relied upon by the Lesotho
Defence Force and he lastly refutes that plaintiffs wife
importantly he submits that in the absence of consent, negotiorum
gestor is a basis for a claim of action and not a defence
spoliation claim; and that unjust enrichment should be narrowly
circumscribed - Standard Bank Financial Services Ltd v Taylam
Ltd-1979 (2) SA 383.
his part, Mr Motsieloa for defendant, conceded that negotiorum
gestor can only form a cause of action and is no defence to
spoliation claim. He says "I am standing on one leg and I rest
my case on the fact that there was consent" —
concedes also that the onus to prove consent on a balance of
probabilities rested on him. In other words he submits that
and conduct the plaintiff's wife consented to the transfer and to
the medical operation undergone at a Military Hospital
under which the airlifting of plaintiff to Bloemfontein and his
major operation and payment of medical bill - probably
the wishes or without consent of plaintiffs wife are important
factors in determining whether the payment of the
justly done for the benefit of the plaintiff. - Silke de Villiers and
Macintosh — The Law of Agency in South Africa (3rd
the term negotiorum gestor was originally used to describe the
person who acts on behalf of another and solely
for the latter's
benefit in circumstances of urgency knowing that he had no such
authority to act. There was and could be no
question of any
relationship arising between the parties by consent - Maritime
Motors (Pty) Ltd vs Von Steiger - 2001 (2) SA
584 at 599 (D-E). In
other words negotiorum gestor has no consent of the person who
benefits from his unauthorized act.
going into the issue of negotiorum gestor or consent, I mero motu
raised a constitutional question whether the 1st defendant
legal right to retain part of plaintiffs gratuity - in law his
property once it fell due to him upon retirement —
legal authority - in other words settling the old debt out of the
gratuity -without an order of court authorizing
17 of the Constitution of Lesotho reads:-
"17. (1) No property, movable or immovable, shall be taken
possession of compulsorily, and no interest in or right over any
property shall be compulsorily acquired, except where the following
conditions are satisfied, that is to say-
taking of possession or acquisition is necessary in the interests of
defence, public safety, public order, public morality,
health, town and country planning or the development or utilization
or any property in such manner as to promote the public
necessity therefore is such as to afford reasonable justification
for the causing of any hardship that may result to any person
an interest in or right over the property; and
is made by a law applicable to that taking of possession or
acquisition for the prompt payment of full compensation.
person having an interest in or right over property which is
compulsorily taken possession or whose interest in or right
any property is compulsorily acquired shall have a right of direct
access to the High Court for -
determination of his interest or right, the legality of the taking
of possession or acquisition of the property, interest
and the amount of any compensation to which he is entitled; and
purpose of obtaining prompt payment of that compensation:
that if Parliament so provides in relation to any matter referred to
in paragraph (a) the right of access shall be by way
(exercisable as of right at the instance of the person having the
interest in or right over the property) from a tribunal
other than the High Court, having jurisdiction under any law to
determine that matter.
contained in or done under the authority of any law shall be held to
be inconsistent with or in contravention of subsection
(1) or (2) ~
the extent that the law in question makes provision that is
necessary in a practical sense in a democratic society for the
taking of possession or acquisition of any property, interest or
(i) in satisfaction of any tax, duty, rate, or other impost;
(ii) by way of penalty for breach of the law, whether under civil
process or after conviction of a criminal offence under the law
(iii) as an incident of a valid contract or of the terms and
conditions of service of a public officer;
(iv) in the execution of judgments or orders of a court in
proceedings for the determination of civil rights or obligations;
(v) in circumstances where it is reasonably necessary to do so
because the property is in a dangerous state or injurious to the
health of human beings, animals or plants;
(vi) in consequences of any law with respect to prescription or
limitation of actions;
(vii) for so long only as may be necessary for the purposes of any
examination, investigation, trial of inquiry or, in the case
for the purpose of carrying out thereon of work of soil conservation
or the conservation of other natural
resources or work of soil conservation or the conservation of other
natural resources or work relating to agricultural development
improvement (being work relating to such development or improvement
that the occupier of the land has been required, and has
reasonable excuse refused or failed, to carry out. " (Emphasis
fair reading of these constitutional provisions demonstrates that a
person's property - whether it be fixed or movable assets
-shall not be taken without his or her consent unless certain
requirements are met or unless a law makes a provision
incident of a valid contract or of the terms and conditions of
service of a public officer. (Section 17(4)(a)(iii))
Ramoholi vs Principal Secretary - Education 1991-1996 Lesotho law
Reports 916 at 923 Maqutu J had this to say
"It seems to me that a man's salary is his property. Contractual
rights too can be property. If by legislation Parliament
takes away a
person's salary during suspension it arbitrarily seizes it contrary
to Section 17 of the Lesotho Constitution more
especially when he is
forbidden to find alternative employment in terms of Rule 5-22 (6) of
the Public Service Commission Rules
1970. Government appropriates the
suspect's time and the entitlement to emoluments that are an
officer's due and keeps them while
forbidding the public servant to
use them in order to be able to earn some money to live on. This
should be unconstitutional. Surely
Parliament cannot validly make
laws that discriminate against public servants by taking away from
public servants the rights other
employees have. "
only justification - so it seems to me - for the detention of
plaintiffs gratuity or part thereof can only be founded on consent
otherwise it amounted to self-help on the part of the 1st defendant.
our democratic governance, every public act must be done within the
parameters of the Constitution and law. It is the so called
of law" and "legality".
issue is whether the plaintiffs wife - her husband being critically
ill and unconscious — either by word or conduct
an airlift transfer of her husband and to consequential medical
costs. This is principally a matter of fact and
the onus is on the
defendant to prove its existence upon a balance of probabilities.
This therefore excludes negotiorum gestor
from the inquiry.
to the defendant - the consent should be implied or "deemed"
in the circumstances of this case.
are here dealing with a verbal contract and the consent is sought to
be deemed or implied. In Alfred McAlpine & Son (Pty)
Transvaal Provincial Administration, Corbett AJA (as he then was)
had this to say:-
"In legal parlance the expression "implied term" is an
ambiguous one in that it is often used, without discrimination,
denote two, possibly three, distinct concepts. In the first, place,
it is used to describe an unexpressed provision of the contract
the law imports therein, generally as a matter of
course, without reference to the actual intention of the parties. The
intention of the parties is not totally ignored. Such a term
normally implied if it is in conflict with the express provisions of
the contract. On the other hand, it does not originate
contractual consensus: it is imposed by the law from without. Indeed,
terms are often implied by law in cases where it is
by no means clear
that the parties would have agreed to incorporate them in their
contract. Ready examples of such terms implied
by law are to be found
in the law of sale, eg the seller's implied guarantee or warranty
In the second place, "implied term" is used to denote an
unexpressed provision of the contract which derives from the
intention of the parties, as inferred by the Court from the express
terms of the contract and the surrounding circumstances.
such an implied term the Court, in truth, declares the whole contract
entered into by the parties. In this connection
the concept, common
intention of the parties, comprehends, it would seem, not only the
actual intention but also an imputed intention.
In other words, the
Court implies not only terms which the parties must actually have had
in mind but did not trouble to express
but also terms which the
parties, whether or not they actually had them in mind, would have
expressed if the question, or not situation
requiring the term, had
been drawn to their attention. "
far as a tacit (implied) term is concerned the learned Judge said
"The court does not readily import a tacit term. It cannot make
contracts for people; for can it supplement the agreement
parties merely because it might be reasonable to do so. Before it can
imply a tacit term the Court must be satisfies, upon
in a reasonable and businesslike manner of the terms of the contract
and the admissible evidence of surrounding
circumstances, that an
arises that the parties intended to contract on the basis of the
suggested term. (See Midlin (Pty) Ltd v Benade Ltd 1952 (1) SA
(A) at 214-15, and the authorities there cited; SA Mutual Aid Society
v Cape Town Chamber of Commerce 1962 (1) SA 598 (A).)
test to be applied - and one which has been consistently approved and
adopted in this Court - is that formulated
by Scrutton LJ in the
well-known case of Reigate v Union Manufacturing Co 118 LT 479 at
"You must only imply a term if it is necessary in the business
sense to give efficacy to the contract; that is, if it is such
that you can be confident that if at the time the contract was being
negotiated someone had said to the parties; 'What will
happen in such
a case?' they would have both replied: 'Of course, so-and-so. We did
not trouble to say that; it is too clear."
This is often referred to as the "bystander test".'
the payment of medical costs contemplated (if not discussed) in the
transferral of plaintiff to Bloemfontein Military Hospital?
without such a contemplation, it is rather difficult to speak of an
implied or tacit consent.
there a common misunderstanding as to payment of the medical bill -
with the plaintiff believing that the Lesotho Defence
foot the bill and the Lesotho Defence Force believing that she
should have known that there was nothing for free?
the principle of unjust enrichment, the plaintiff may be liable to
pay for the medical costs of the operation that probably
life. But that is not — upon the pleadings - the case before
us. Unjust enrichment is a cause of action not a
is nothing mythical about consent, be it under criminal or civil
law. Consent generally means agreeing to some act that
right or obligation. Consent may be expressed directly as in
marriage or impliedly where by conduct it can be inferred
consent exist. The latter type of consent must be assessed
objectively — the "bystander test- Christie —
of Contract in South Africa (1996) p.21-3 where the learned author
"In the result it is correct to say that in order to decide
whether a contract exists one looks first for the true agreement
two or more parties and because such agreement can only be revealed
by external manifestations, one's approach must of necessity
generally objective " - at page 23.
- Jordaan vs Trollip 1960 (1) PH A 25; SAR&H v National Bank of
South Africa - 1924 AD 704 at 715 per Wessels JA.
the present case the plaintiff being critically ill was airlifted to
the Bloemfontein Military Hospital on the 16th November
the clear consent of his wife who even visited him at hospital in
Bloemfontein. But I am not convinced that there existed
idem as to the settlement of medical costs.
amidst the crisis of the urgency and the emergency of the situation,
this was in all probability not agreed upon. Such
just be imputed or implied. It seems clearly though that whereas the
plaintiff was airlifted to Bloemfontein
MI Hospital by helicopter
with the full consent of the wife of the plaintiff, the latter then
being unconscious - the agreement
as to the footing of the hospital
bill stands on a rather different footing. Innes CJ once said, "An
acceptance may be inferred
from conduct" — Timoney and
King vs King 1920 AD 133 at 141.
the plaintiffs wife can be "deemed" (to use Mahao's words)
to have agreed to pay for her husband's hospital
upon the surrounding circumstances conscious that in this case
consent or agreement is being sought to be deemed
or implied for the
very reason that parties failed to agree expressly thereon - SA
Mutual Aid Society v Cape Town Chamber of
Commerce- 1962 (1) SA 598
per Van Winsen JA at 615 D. Was the door left wide open for further
discussion? Was plaintiffs final
responsibility to settle the bill
contemplated by all concerned? Would the "deemed"
consent/agreement be appropriate
in the circumstances of the case
-i.e. objectively would a reasonable person despite the emergency
have contemplated the settlement
of hospital bill?
an old English case of Reigate v Union Manufacturing Co (Ramsbottom)
 KB 592 Scrutton LJ once said at 605
"A term can only be implied if it is necessary in the business
sense to give efficacy to the contract; ie if it is such a
it can confidently be said that if at the time the contract was being
negotiated some one had said to the parties: 'What
will happen in
such a case?' they would both have replied: 'Of course so and so will
happen; we did not trouble to say that; it
is too clear'. "
Pan American World Airways Inc v SA Fire and Accident Insurance -
1965 (3) SA 150.
"deemed" term must be "necessary and not merely
reasonable" — Rapp and Maister v Aronovosky 1943
per Millin J. The proper approach is this: Is the court satisfied on
the balance of probabilities that the parties reached
or an understanding that the hospital bill would be borne by the
plaintiff. It was also be borne in mind that the
choice of the
Bloemfontein Hospital was not of the plaintiffs making but the
defendant's , it is also probable that plaintiffs
wife also put the
plaintiffs whole fate in the hands of the Lesotho Defence Force.
Wilkins v Voger - 1994 G) SA 130 Nienaber JA pointedly remarked
(about tacit term) at page 136 H-J, 137 A-C.
"...A tacit term, one so self-evident as to go without saying,
can be actual or imputed. It is actual if both parties thought
a matter which is pertinent but did not bother to declare their
assent. It is imputed if they would have assented about such
if only they had thought about it — which they did not do
because they overlooked a present fact or failed to anticipate
future one. Being unspoken, a tacit term is invariably a matter
of inference. It is an inference as to what both parties must or
would have had in mind. The inference must be a necessary one:
all, if several conceivable terms are all equally plausible, none of
them can be said to be axiomatic. The inference can
be drawn from the
express terms and from admissible evidence of surrounding
circumstances. The onus to prove the material from
inference is to be drawn rests on the party seeking to rely on the
tacit term. The practical test for determining what
the parties would
necessarily have agreed on the issue in dispute is the celebrated
bystander test. Since one may assume that the
parties to a commercial
contract are intent on concluding a contract which functions
efficiently, a terms will readily e important
into a contract if it
is necessary to ensure its business efficacy; conversely, it is
unlikely that the parties would have been
unanimous on both the need
for and the content of a term, not expressed, when such a term is not
necessary to render the contract
fully functional. The above
propositions, all in point, are established by or follow from
numerous decisions of our Courts. "
141 learned Judge also commented:-
"...One is certainly entitled to assume, in the absence of
indication to the contrary, that the parties to the agreement are
typical men (and women) of affairs, contracting on an equal and
honest footing without hidden motives and reservations. "
 A "deemed" or tacit term in a verbal contract can be
the corollary of express words - or can be the product of express
words taken in conjunction with the evidence of surrounding
circumstances. It must also pass the "reasonable contemplation"
 Having regard to the all surrounding circumstances of this case
grave and critical medical condition of the plaintiff on the 16th
fact that he was unconscious at the time when the decision was
reached to airlift him to Bloemfontein Military Hospital.
fact that the Bloemfontein Military Hospital was selected by
officials of the Defendant.
the fact that issue medical cost was not adequately addressed or
discussed at the bedside of plaintiff,
I find on
a balance of probabilities that the wife of plaintiff only consented
to the airlift of her ailing husband to the Bloemfontein
Hospital and there was however no proven consensus ad idem on the
settlement of subsequent hospital bills. I therefore
find that there
was no agreement proven that the hospital bills would be borne by the
plaintiff, even assuming that the wife of
the plaintiff had authority
to bind the plaintiff. - I leave this issue open in casu.
have already decided that in the absence of consent or agreement and
of any legal provision authorising the first defendant
part of plaintiffs gratuity, the withholding of the gratuity is both
unlawful and unconstitutional.
plaintiffs claim is therefore upheld with costs as prayed in the
defendant can, if it so wishes, claim all it paid for plaintiffs
medical treatment in Bloemfontein by proving its loss incurred
the medical treatment which the plaintiff received in Bloemfontein.
Plaintiff : Mr Maieane
Defendants : Mr Motsieloa
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