IN THE HIGH COURT OF LESOTHO
the matter between:
COMMANDER LESOTHO DEFENCE
MINISTER OF DEFENCE
Delivered by the Hon. Mrs
Justice A. M. Hlajoane on 2nd August, 2010.
This is an Application for a
declarator and other relief couched in the following manner:-
Declaring that Applicant is the
lawful beneficiary of any and whatever payments may accrue due to
the late No.7104 private Molibeli
Mokone’s service in the
Lesotho Defence Force.
Declaring the late private
Molibeli Mokone’s purported dismissal from the Lesotho Defence
Force unlawful and of no legal
force and effect.
Directing respondents to render
to applicant all and whatever monetary payments that shall have
accrued to the said private Molibeli’s
service in the Lesotho
Granting applicant the costs of
The Application was filed on the
11th July, 2008. Service on the respondents was effected
on the 15th July, 2008 and intention to oppose filed on
22nd July, 2008. The respondents were expected to have
filed opposing affidavits within fourteen days of filing of such
notice to oppose.
The answering affidavit was filed on the 27th
October, 2008 after having been served on the other side on the 23rd
October, 2008 which was some three months or so after the filing of
intention to oppose.
The respondent in the answering
papers filed some three months or so out of time, raised a point in
limine arguing that the application did not disclose the cause of
action in that applicant would not have known if deceased had been
Further in their argument showed that applicant could not
have known if the deceased was given a hearing or not before
as applicant was himself not a member of force but
deceased. That deceased owed applicant only a moral duty to inform
him of his
It was common cause that the
deceased No: 7104 Private Mokone was a member of the Lesotho Defence
Force. The applicant became his
beneficiary after his demise in 2003
In answer to the point in
limine raised, the applicant responded by showing that, what
respondents’ say amounts to saying that the claim is based on
He further argued that in the answering papers though
filed out of time, respondents have just given a bare denial without
any factual issues.
Attached to the answering
affidavit is Annexure “1”, a force order dated the 8th
July, 1995 which reflects that No. 7104 Pte Mokone was dismissed from
the force with effect from 1st August, 1995 so that it
could not be true that when deceased died in February, 2003 he was
still on suspension.
There was no dispute that
applicant was the beneficiary of the late Private Mokone. That when
deceased was interdicted in 1993 he
was already an officer within the
Defence Force. He was interdicted with no pay on suspicion of his
involvement in a criminal offence.
That charges against deceased were
withdrawn subsequent to his death.
Without necessarily challenging
the existence of Annexure “1” to the answering affidavit,
argued that at no point was deceased
properly dismissed from the force before such purported dismissal.
His point being that since
deceased was not afforded any hearing
before dismissal such dismissal became unlawful.
In Stellenbosch Farmers’
Winery Ltd v Stellenvale Winery Pty Ltd 1957 (4) S.A 234 (c) at 235E
– G referred to in Placon-Evans Paints 1984 (3) S.A 623
at 634 it was stated that;
“Where it is clear that facts,
though not formally admitted, cannot be denied, they must be regarded
Respondents have not denied in
the answering papers that the deceased was not afforded any hearing
before dismissal. At para 11
of the answering affidavit what
respondents are saying is only that relatives are not privy to the
hearing which concerned members
of the force and applicant was put to
prove that deceased was not afforded a hearing.
As can be seen respondents have
just made a bare denial. It would not be enough to just make a bare
denial and want the Court to
consider that you have dealt with a
dispute of fact. If one does not answer issuably then his defence
will be considered no defence
at all, Plascon’s casesupra.
Relying on decisions within our
jurisdiction and other jurisdictions, Applicant’s counsel
argued that it is mandatory that
a public officer be afforded a
hearing before dismissal, Koatsa v NUL 1991 -92 LLR & LB 163,
Tsolo Makhetha v Ministry of Public Service & Another
CIV/APN/277/96 (unreported) and Ridge v Baldwin  All ER
It was stated in Administrator
Transvaal and Others v Traub and Others 1989 (4) S.A 731 at 748
“when a statute empowers a
public official or body to give a decision prejudicially affecting an
individually in his liberty or property
or existing rights, the
latter has the right to be heard before the decision is taken ...
unless the statute expressly or by implication
The respondents gave a list of
all the legislations that governed the deceased as a member of force.
The Lesotho Defence Order No.17 of 1993 section 182 (1) which
provides that the Pensions Proclamation 1964 shall apply to
officers and soldiers in the regular force. The Pensions
Proclamation No.4 of 1964 section 6 (1) providing that, no
pension, gratuity or other allowance shall be granted to any officer
except on his retirement and in cases listed,
and dismissal not being
one of them.
Legal Notice No.16 of 1969
Public Service Regulations 1969 section 479 which provides:
“An officer who is dismissed
from the service forfeits all pension and gratuity.”
All the above depend on whether
or not the Court is going to conclude that the deceased was dismissed
per the force order attached
to the papers.
Respondents further argued that
applicant’s allegations are baseless and opportunistic as has
failed to prove his case. He
said it is trite law that he who alleges
must prove his case.
In answer to this applicant
submitted that in motion proceedings the question of onus does not
arise, one only has to answer issuably.
He relied on Zuma’s
case, a supreme Court of Appeal – Republic of South Africa caseNo.573/2008 National Director of Public Prosecutions vs Jacob
Gedleyihlehisa Zuma at P11 – 12 Para 27 where it says;
“The Court below imposed an
onus on the NDPP to prove a negative. This appears from the finding
that ‘it was not convinced
that [Mr Zuma] was incorrect’
in relation to political meddling. It reasoned that the question
whether there had been political
meddling fell within the peculiar
knowledge of the NDPP and was difficult for Mr Zuma to prove; and so,
it held, less evidence
would suffice to establish a prima facie case.
This rule of evidence, namely that if the facts are peculiarly within
of a defendant the plaintiff needs less evidence to
establish a prima facie case, applies to trials. In motion
question of onus does not arise.”
In motion proceedings if one
does not answer issuably then his defence will be taken as no
The Applicant is saying even if
the deceased could be taken as having been dismissed per the force
order, such dismissal must be
considered unlawful as he was never
afforded any hearing before such dismissal.
In answer to this respondents
counsel has referred to para 7 of the answering affidavit where
reference is made only to the Force
Order. The force order does not
show that there was any hearing afforded before dismissal. It was
only in argument that counsel
showed that deceased was given a
As rightly pointed out by
applicant’s counsel, the force order’s contents could not
stand scrutiny as far as any procedure
prior to the purported
dismissal is concerned.
No mention is made by the
respondents of when a notice of hearing was served upon the deceased,
what date the hearing took place
and what the alleged misconduct was.
What counsel for respondent sought to argue was that the hearing
might have been verbal so
that no documentation could be produced.
This was a pure speculation. No need for the applicant to have proved
that there was in
fact no hearing this being motion proceedings.
On the papers, at paragraph 6 of
the founding affidavit it was stated that deceased was in 1993
interdicted without pay, but in
argument counsel said he was
interdicted with pay. I will take it that he was correcting himself
to say finally that it was with
pay. On the point in limine of
no cause of action. I find that this point is without merit as
applicant has shown that he considered the deceased to have been
member of LDF till when he passed away, that even if he was dismissed
per the force order, such dismissal was unlawful as he
afforded any hearing prior to such dismissal. To this the respondents
only gave a bare denial in clear disregard of the
Plascon’s case supra.
It is clear therefore that when
the deceased was so dismissed he was not afforded any hearing
rendering such dismissal null and
void. The application thus succeeds
in terms of prayers 1 to 4 of the notice of motion.
For Applicant: Mr Kulundu
For Respondents: Mr Molokoane
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