HIGH COURT OF LESOTHO
OF LESOTHO DEFENCE
ATTORNEY-GENERAL 2nd Defendant
by the Hon. Mrs Justice A. M. Hlajoane on 26th March, 2007.
in his summons has sued the Defendants for damages resulting from the
unlawful termination of his commission as a Second
Lt) in the Lesotho Defence Force (LDF). Such termination was done
without any prior hearing, but after Plaintiff
had been discharged on
all counts against; him at a Court Martial.
to the Plaintiff in his declaration, he was retired at the age of 32
years instead of 55 years as he would have statutorily
to retire. He has claimed for payment of M1161 680.00 being the
equivalent of his monthly salary for the remaining
23 years when he
would be 55 years. This has been those number of years by his cross
monthly salary of M4,200.00 at the time of
termination of his
commission. He has also claimed for payment of M200,000.00 damages
for emotional pain and suffering with interest
matter was opposed and the Defendants' plea admitted that Plaintiffs
Commission was terminated. They however deny that Plaintiff
entitled to retire at the age of fifty-five without necessarily
stating which then was the correct retiring age. I took this
therefore as a bare denial. Plaintiff gave evidence which showed that
he became a member of LDF in June 1992. He rose through the
the army till he was a IInd Lt. This was the rank he held when he was
removed from work in 2000. In his evidence Plaintiff
showed that he
was found not guilty of mutiny by the Court Martial and was
discharged. That the Court Martial even gave a directive
on the 25
March 1999 that all those discharged be reinstated to work without
any strings attached.
had reported at work as directed but was asked to remain at home till
further notice. He said he remained at home for
almost two years. He
then in the interim applied for study leave to the National
University of Lesotho (NUL). He had been admitted
to do law. He took
the admission letter to the LDF Personnel Office to seek permission
to study. This he said was on a Wednesday
and was asked to come again
hopefully for a positive response the next Wednesday.
evidence showed further that he complied and went the following
Wednesday. Instead of getting a letter giving him permission
pursue his studies he was met with a dismissal letter from work. It
was in a form of a Legal Notice, Legal Notice No.39 of 2000
to the papers together with a certificate of good conduct Annexure
be remembered that amongst other claims made by Plaintiff in this
case was to be paid his salaries for the 23 years left
would be 55 years, the statutory retiring age. I have already shown
that the Court would take his word on that as the
just made a bare denial.
called in evidence a member of LDF in the salaries section, one
Captain Morake Tsepe. His evidence revealed that Plaintiff
was so retired, was paid gratuity of M21,663.78 plus his remuneration
for 5 days he had worked for that month of M681.13
and leave pay in
two instalments of M938.40 and M21, 150.22 respectively together with
an amount of M9,644.80 as a three months'
witness also gave evidence showing that it would not be unusual for
paying a member of LDF an amount in gratuity as if he had
full term to his statutory retiring age of 55. He showed that his
records reflected that Major General Thibeli's services
terminated in November of 2002 when he was only going to be 55 years
in June of 2005. But when his terminal benefits were
also covered up to that time in 2005 when he would have been 55.
examination this witness showed that there were officers who were
made to retire voluntarily before attaining the age of
55 years, but
not getting any payments. He would not know why Major General Thibeli
though made to retire was still paid monies
due to him. In explaining
the term "made to retire", the witness said actually it was
a discharge but covered as retirement.
understand was when he said others were made to retire voluntarily.
How could it be voluntary when the urge or suggestion
someone other than yourself? That might be the language used in the
close of Plaintiffs case Defendants' Counsel had applied for
absolution from the instance as Plaintiffs had not disclosed
cause of action. He said that Plaintiff failed to show that
circumstances in Major General Thibeli's case were similar to those
of Plaintiff in this case.
to this application Plaintiffs Counsel showed that by intimating that
they were going to call evidence to show that it
was by agreement
that Major General Thibeli be paid as he was paid, they were already
making an admission that there was something
had dismissed that application without giving reasons but promising
that such reasons would form part of the judgment
in the matter.
These now are my reasons.
Defendants argued that Plaintiffs witness, a member of LDF, never
showed that anyone was ever paid anything if made to retire.
not appreciate this argument because P.W.2 in his evidence gave out
monies that were paid to the Plaintiff when he was made
This witness also showed that Major General Thibeli was made to
retire but was paid his monies. All these were never
denied by the
Defendants in cross examination.
commander of LDF gave evidence for the Defendants. He showed that
Plaintiffs services were terminated by the King in March of
That may well have been so, but the King acts on information from
employer with recommendations. He would not act on His
Commander had made such recommendations.
evidence he also admitted that Major General Thibeli was retired
early but paid as if he had attained age of 55. According
to him at
the Court Martial Plaintiffs case was withdrawn. He ended his
evidence by showing he was willing to engage the Plaintiff
so that he
could be paid for services rendered.
examination, the witness could not say for certain that case was
withdrawn against Plaintiff so that he could not deny
that in fact
Plaintiffs case proceeded and was acquitted and discharged and
re-instatement ordered by the Court Martial. He also
that Plaintiffs dismissal was unlawful. The witness was referred to a
document which he said he clearly recognized. It
was from LDF
Director Personnel directed to Director Defence -Finance. It had
names including that of the Plaintiff directing that
they be paid as
if they had attained age 55, per instructions from LDF Commander. He
concluded that the directive was never complied
evidence further showed that if Plaintiff was not paid yet others
were paid on the basis of that instruction he would be discriminated
against. It was Major General Thibeli at that time as Chief of staff
in 2000 who had given instruction to pay the 5 officers who
the Plaintiff as if they were 55. Major General Thibeli had in turn
got instructions from the then Commander.
beginning of this case parties were agreed that it was common cause
that Plaintiff was unlawfully dismissed and that the
directive from the Court Martial to re-instate Plaintiff was never
complied with. The only issue for determination being
Plaintiff was never afforded an opportunity to be heard before his
dismissal, see Commander LDF & ors vs Mokuena
& ors C of A
(CIV) No.12 of 2002.
Mokuena above as rightly pointed out by Plaintiff's Counsel the facts
were more or less similar to the present where Appellant
dismissed without affording him an opportunity to be heard. It has
not been the Respondents case that the statute used
Applicant had expressly or by implication excluded the Principle of
audi alteram partem, see Matebesi v Director Immigration
Commander LDF v Mokuena supra.
facts of this case and the evidence led before this Court Counsel
were agreed that I deliver my judgment without any addresses
of the issues became common cause.
therefore give judgment in favour of the Plaintiff, and the order of
this Court is that:
be re-instated as a member of LDF with effect from the 1st of April,
he be paid his salary from the date of his dismissal which is June
2000 when he got his last pay, to date of reinstatement.
he be paid M50,000.00 damages for emotional pain and suffering.
Plaintiff: Mr Mohau
Defendants: Mr Letsie
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law