IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/301/2008
In the matter between:
THABO LITHAKONG 1ST APPLICANT
THABANG THAKHOLI 2ND APPLICANT
PRINCIPAL SECRETARY -
NATURAL RESOURCES 1ST RESPONDENT
ACCOUNTANT-GENERAL 2ND RESPONDENT
ATTORNEY-GENERAL 3RD RESPONDENT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 3rd January, 2011
 Applicants have approached this Court claiming an order in the following terms:
1. That a Rule Nisi be issued returnable on a date and time to be determined by this Honourable Court calling upon Respondents to show cause, if any, why:
(a) Rules of this Honourable Court shall not be dispensed with owing to urgency hereof;
(b) Respondents particularly 1st Respondent shall not be found guilty of contempt of court for having failed, neglected and refused to comply with this Honourable Court’s Order of 3rd May 2010;
(c) Respondents and particularly 1st Respondent shall not be committed to prison for contempt of court;
(d) The Honourable Court shall not exercise its discretion to suspend the committal on condition that Respondents and particularly 1st Respondent complies with the Court Order of 3rd May 2010 within 21 (twenty-one) days of the determination of this matter.
2. That prayers 1 (a) operate with immediate effect as an interim relief.
 According to original papers Applicants approached this claiming:
1. Notice of retirement with regard to Thabo Lithakong and Thabang Thakholi to take effect from 1st April 2008 to 30th April 2008;
2. Each Applicant’s salary for the month of April 2008 shall not be paid to them in full.
3. Each Applicant’s gratuity shall not be computed to include the period of 1st March 2007 to 30th April 2008.
4. Subsistence allowance of each Applicant owing and payable to them which are unpaid and/or underpaid shall not be paid in full in the amounts of M94,150.00;
5. Costs of suit in the event only of opposition;
6. Further and/or alternative relief.
4 above is the claim argued before me on 3 May, 2010 in terms of which Mr. Molokoane agreed of the claim M50.00 as paid leaving a balance of M150.00 unpaid. The court had proceeded to grant the application as prayed in terms of prayer 4 of the Notice of Application. The court’s order was read to both Mr. Thabane and Mr. Molokoane and they confirmed it as correct. In retrospect Mr. Molokoane has submitted it now appears the order is wrong and Mr. Thabane maintains it is right in that the court granted the application as prayed. In course of address by Counsel to court several issues were raised including what subsistence was earned by Applicant’s while operating in their duty station and outside is now particularly when they were in Maseru and according to Thabo Lithakong Founding Affidavit at para.8 for the period April 2006 to February 2007 him and 2nd Applicant worked outside their duty station spending 154 (one hundred and fifty-four) nights from April to December 2006 and January to February 2007 amounting in all to 154 days. Worked for the period March 2007 to January 2008 outside their duty station for period March-December 2007 and January, 2008 amounting in all to 231 days.
 At paragraph11 Mr. Lithakong has deposed:
“It is common cause that Local Official Subsistence Allowance rates were M250.00 (Two Hundred and Fifty Maloti) per night as shown on annex “A” herewith. I have checked Annexure “A” and find it refers to orphans which Joel Thakholi offered to raise apart from the fact that both Mr. Molokoane and Mr. Thabane have agreed on this rate it also appears in Circular Notice No.17 of 2005 of 08 November 2005 Subsistence Local where an officer spends a night away from his/her duty station within the country where orders are not available and there is clear evidence of no nearby hotels officials will be eligible for M250.00 per day to cater for accommodation, meals and travel expenses such as horse hire.”
 Where travel, meals and accommodation have been paid in full by government or a sponsoring organization for an officer on a field trip or attending a course, meeting or workshop, M50.00 a day will be provided to cover incidental expenses.
 It does; however, appear that Mr. Lithakong was paid a sum of M2100.00 subsistence allowance which he claims, in his Founding Affidavit at paragraph 12 to have been “the only claim that was paid for forty-two nights at a freighting low rate of M50.00 (Fifty Maloti) per night and in payment he has attached annexure “C”. It will however be noted that the M250.00 per day subsistence is in respect of where and officer is away from his duty station and an officer spends the night(s) within the country where orders are not available and there is clear evidence of no hotels and orders are not available an officer will be eligible for M250.00 per day to cater for accommodation, meals and travel expenses such as horse hire. It is claimed Applicants were, for the 385 days in Maseru where they are claiming 385 days @ M250.00 per day subsistence and it will be seen of this M2100.00 was paid @ M50.00 to which Mr. Molokoane probably referred leaving M150.00 I don’t know being what balance to be paid and Mr. Thabane saying the amount owing was M94,150.00 not knowing on what it is based. The court did detail both Mr. Molokoane and Mr. Thabane to work out M2100.00 having been paid what the balance was on rate(s) acceptable to them. I have had a look at their Heads of Argument.
 Of his computations Mr. Thabane has said:
1. The total nights spend by Applicants’ out of their duty station on duty is 385 days made up of 154 (paragraph 8) plus 231 (paragraph 9) per facts admitted by 1st Respondent.
2. The official rate of subsistence within Lesotho is M250.00 per night.
3. The number of nights paid for it is 42 (Forty-two) at M50.00 per night.
4. The amount owing and payable to each Applicant is:
385 nights x M250.00 = M96,250.00
Less 42 nights x M50.00 = M 2,100.00
Amount owing = M94,250.00
I do not understand Applicants’ case, they have accepted subsistence allowance at the rate of M50.00 per night for the same cause and tenure when they were out of their duty station and in Maseru. In confirmation of their acceptance of the rate, they have had the M2100.00 made up of 42 nights @ M50.00 per night deducted from their overall amount owing not having told the court how the disparate rates of M50.00 a night and M250.00 a night are reconciled. I am of the view though that Applicants in not rejecting the M50.00 rate per night and dissociating themselves from it have accepted it and accordingly that there cannot be two rates to determine their entitlement. Besides, the amount owing in their computation differs from that which they claimed in their Application.
 I agree with Mr. Putsoane in his calculations of Subsistence Allowance owing to the Applicants that:
Since Applicants were working at Maseru, where there were hotels and Government Orders available … they were eligible to M50.00 per day and that when the rate of M50.00 per day is multiplied by 385 days this adds up to M19,250 and deducting therefrom M2100.00 the balance payable to Applicants is M17,150.00.
 This Court cannot say that Respondents have willfully and malafide failed to comply with the order of the Court and accordingly the application for contempt is dismissed and while the order of this Court is rescinded on courts own motion being irregular, it is substituted with the order that Respondents jointly and severally pay Applicants the sum of M17,150.00 within three (3) months of this judgment failing which to report to the Registrar of this Court for such failure and for the Registrar to embark on a course to suit both Applicants and Respondents.
For the Applicants : Mr. Thabane
For the Respondents : Mr. Putsoane
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