CIV/APN/414/2003
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:-
TSELISO C.H.L. MAKHEKHE APPLICANT
AND
MINISTER OF LABOUR & EMPLOYMENT 1st RESPONDENT
MINISTER OF THE PUBLIC SERVICE 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo On the 10th September, 2007
Applicant has applied to this court for an order in the following terms:-
Condoning applicant's delay in bringing this application;
Declaring applicant's compulsory retirement on the 16th June, 1987 to have been invalid;
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Directing respondents to pay applicant's remuneration as if he had been re- employed and continued to be so employed until reaching the retiring age of 55 years;
Re-calculating applicant's terminal benefits taking into account the extra three years' service arising from prayer 1 and 2 above;
Directing respondents to pay costs hereof only in the event of opposition hereof;
Granting applicant further and/or alternative relief.
In support of his application the applicant has deposed at paragraph 6 of his Founding Affidavit that he was retired from the public service "purportedly in terms of Sec. 12(2) of the Public Service Order, 1970 at the age of 52 years.
At paragraph 7 applicant has deposed his removal from the public service was effected without affording him a hearing even though it was prejudicial to his rights in that it was done prematurely. He further says there was no justification for
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his removal from office. At paragraph 9 he says he pursued this matter in vain and he has annexed annexure "TM2".
At paragraph 10 applicant deposes given circumstances under which he was bundled out of office he suffered mental shock and he was mentally confused for a very long time, the reason he delayed in pursuing the mater legally. He also says he was not aware he was to resort to legal remedies expeditiously.
In answer to paragraph 6 above, at paragraph 6 the 2nd respondent says in terms of Section 12(2) of the Public Service Order, 1970, a public officer may be required or permitted to retire any time after attaining the age of 45 years meaning, in terms of the legislation, a public officer may himself require to retire on attaining the age of 45 years and by the same token government may require a public servant to retire. Regarding paragraph 7 of the applicant's Founding Affidavit, applicant was given the requisite one month's notice in terms of the law. Regarding paragraph 10 and 11 of the applicant's Founding
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Affidavit, 2nd respondent has deposed at his paragraph 9 that (a) cause of action against applicant arose on the date of his retirement; (b) proceedings challenging his retirement only instituted in October, 2003 after a period of 16 years from the date cause of action arose; (c) in terms of Government Proceedings and Contracts Act, 1965, proceedings against government have to be instituted within a period of two years from the date of cause of action.
9.3: the 2nd respondent has pointed out applicant is a highly enlightened person having been a public officer of long experience in labour matters and at one time a Lesotho Government Labour representative in South Africa for years.
9.4: As to the claimed mental shock, 2nd respondent has deposed there is no proof.
In order not to put a cart before the horse, all that this court has to decide is whether there are sufficient reasons or put in another way, whether there is reasonable and
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satisfactory explanation by the applicant to have delayed acting against government.
Applicant's reason for the delay of 16 years before instituting action against government in circumstances in which he should have instituted action within two (2) years in terms of Government Proceedings and Contracts Act, 1965 is that he "suffered mental shock and was mentally confused for a long time". This court is of the view where a party complains of prejudice or injustice against him he should speak up and unable to do so offer reasonable and satisfactory explanation of the delay before a court can condone a delayed action. Besides, the court is also of the view where a party complains of mental disability or incapacity as the cause of the delay, the onus is on party and in this application clearly on the applicant. There is no proof of mental incapacity as cause of applicant's delay to institute action against government.
In a different case which I decided recently Malebo v Lesotho General Insurance Company Ltd,
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CIV/APN/319/2004) the applicant, in circumstances in which he should have claimed against the respondent within two (2) years in terms of the statute, he claimed 4 years after. Applicant's case is worse; it is sixteen (16) years. In Malebo's case above it was submitted by the defence the application was extra-ordinary, requiring reasonable explanation to show applicant did not just sit back doing nothing. Moreover, along the same lines as respondents' counsel submitted, it was said applicant was a literate businessman and a political leader by all means sophisticated.
In course of judgment in Malebo's case referred to above, this court had reason to refer to L.F. Boshoff Investment v Cape Town Municipality (2) 1971 (4) SA 532 (C.P.D) where counsel applying from the bar for condonation of the late noting of appeal the application was entertained but rejected on account of no reasonable explanation being offered for the delay. Indeed the court in refusing application for condonation had found in the absence of facts upon which any deduction could be made one way or the other, submissions
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constituted were speculation. Further, the court had found where an applicant claims indulgence of condonation, it is for him to show that respondent would not be adversely affected thereby to any substantial degree and that, even if he were to be affected, other considerations apply which would persuade the court to grant the indulgence sought (p.536). In L.F. Boshoff Investment above application for condonation was rejected for, amongst other reasons, there being no prospect of success on appeal and with the same vein, applicant having been retired in terms of an existing statute, the court seriously doubts applicant has prospect of success at the trial should the indulgence be granted.
Mr. Mohau for applicant, well aware his application for condonation of the delay in instituting action against government is unsustainable has applied for oral evidence claiming this would or might shed light on why applicant delayed in instituting action aforesaid. The application is strenuously resisted by Mr. Putsoane for the respondents.
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In Van der Merwe v Meyer, 1971 (3) SA 22 (AA) it was said the possibility of a deponent deviating from his affidavit under cross-examination in regard to factual dispute of narrow compass is importable and does not justify an order that he should be compelled to give oral evidence. It was further said the existence of an actual dispute of fact in contrast to a dispute of fact which might possibly be brought to light under cross-examination, is a pre-requisite for an order that oral evidence should be heard.
I have gone through applicant's Founding Affidavit and have found nothing in it that intimates, even remotely, a dispute of fact, facts raised by him being, in my view, common cause. On the contrary, Mr. Mohau has applied for oral evidence on the premise that if oral evidence is allowed, there is a possibility of dispute of fact being brought to light under cross-examination. An unfortunate result because it is not dispute of fact which might possibly be brought to light under cross-examination that is the prerequisite for an order that oral evidence be heard, but actual dispute of fact. As was also
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said in Van der Merwe's case above, the court is of the view real dispute of fact should exist in the affidavits for oral evidence to be allowed.
In Moosa Bros and Sons (Pty) Ltd v Rajah, 1975 (4) SA 87 (D., CLD) it was also found oral evidence to be allowed where there are reasonable grounds as to the correctness of the allegations. This court has not doubted and had no reason to doubt respondents' allegations.
And although it was observed in Parow Municipality v Joyce and McGregor (Pty) Ltd., 1973 (1) SA 937 (C) at p.939 that a court should "to my mind incline towards allowing a party to pull his full case before the court", facts and circumstances of the instant application do not qualify to allow oral evidence.
When Mr. Mohau applied for oral evidence, the court had been fully addressed on condonation and the court's view is that reference to oral evidence by Mr. Mohau was purely
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diversionary. In the circumstances, while application for referral to oral evidence is refused, application for condonation also fails and the application is dismissed. There will be no order as to costs.
G.N. MOFOLO
JUDGE
For the Applicant : Mr; Mohau
For the Respondents : Mr. Putsoane
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