IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/468/2008
In the matter between:
TŠEPO MAKHAKHE PLAINTIFF
DIRECTOR OF PUBLIC PROSECUTIONS 1ST DEFENDANT
ATTORNEY-GENERAL 2ND DEFENDANT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 25th August, 2011
This is a case in which the Plaintiff has issued summons claiming:
1. Payment of Five Hundred and Fifty Thousand Maloti (M550,000.00) broken down as follows:
(a) Three Hundred and Fifty Thousand Maloti (M350,000.00) for loss of income.
(b) Two Hundred Thousand Maloti (M200,000.00) for general damages.
(c) Costs of suit and
(d) Further and/or alternative relief.
Plaintiff’s evidence is that at some stage he was employed by Manpower (1994-95) and Foreign Affairs in 1995 and Pretoria as a diplomat in 1994-2002 as 1st Secretary. And then Foreign Affairs alleged saying he had committed fraud and he was suspended on full pay till November 2004 saying his case was going to proceed in the Magistrate’s Court the while it was also proceeding in the Disciplinary Tribunal and he chose to attend the Magistrate’s Court hearing and he received a letter that he had been dismissed in 2004 and his salary was stopped.
In the Magistrate’s Court he was acquitted and found not guilty and he expected to go back to work and in preparing to do so had been told he can’t resume duty because there was an appeal against his acquittal but the appeal was never prosecuted and he was informed there was no such appeal before the High Court and the reason he has approached the court claiming damages for lose of his job. His efforts to find a job were in any event unsuccessful. His wife was engaged as a broker and has a child and parents to support. An application to amend summons was refused. Plaintiff has testified as a result of his dismissal he has lost some income being the amount of money he should have earned while working and he is asking that the same money be paid him. I am to say there was an argument in course of trial whether earnings was the same thing as income. He says in 2004 he earned M4,471 per month being M53,652 per annum and every year salary scales are increased. He says when he was dismissed he was in Grade F and his notch was 60 and he earned M63,340.00 while in 2005 he earned M66,016.00, 2006 he earned M68,824.00; 2007 he earned M75,424.00 while in 2009 he earned M80,706.00; 2010 he earned M83,592.00 being his salary for work done and by income he meant amount he earned as a public servant.
Cross-examined by Mr. Sekati Counsel for Defendants the witness has testified he was deployed in Pretoria and it was while serving there that he was suspended on full pay in 2003 to November 2004 and he was subjected to disciplinary hearing. He says he has already testified before this court that while disciplinary proceedings were going on a trial was also proceeding in the Magistrate’s Court. Put to him he elected to appear before the Magistrate’s Court and not the Disciplinary Tribunal he agrees proceedings in the disciplinary hearing proceeded in his absence and also agrees he was informed of his dismissal which he did not challenge and in any event he had come to this court to challenge his dismissal and to be re-instated in his position. Put to him criminal matter has nothing to do with disciplinary hearing he disagrees saying the two are related. Put to him there was no appeal he says there was. Plaintiff closed his case.
The defence then called Dw1 - Mr. Mokuku who is a Senior Officer in the Law Office who sworn testified he has been in the Law Office for over 10 years and remembered Plaintiff who was charged in the Magistrate’s Court of theft and acquitted and discharged the defence having appealed on 18/02/2006 and everything required was done but the appeal did not proceed. He says the Magistrate’s Court is obliged to bring appeal for hearing and the Registrar of the High Court is responsible for setting down matter for hearing. He says he has been asking for the record to be transcribed they being told the Presiding Magistrate Ms Mahase is not available and it’s only this year they have been told she is available and Mr. Mokuku says he still wishes to proceed with the appeal.
In cross-examination Mr. Khumalo has suggested in terms of Rule 52(a) of the High Court Rules if parties don’t set down the appeal timeously it automatically lapses and Mr. Mokuku has said the Rule applies to civil appeals.
Dw2 - Mr. Thabang Mashoao has testified on oath that he is serving with Foreign Affairs as Deputy Principal Secretary and knows the Plaintiff who worked for Foreign Affairs sometime past and is no longer a public servant since 2004 having been dismissed following a disciplinary hearing in September 2004 of breach of discipline namely, absenteeism; Plaintiff was also charged of presenting a false document per Exh “D” and Plaintiff was found guilty and Plaintiff has not challenged the dismissal. The defence also closed its case.
Facts of this case are that Plaintiff worked for Foreign Affairs and whilst there was charged of fraud in the Magistrate’s Court and he was acquitted. At the same time as Plaintiff was appearing in the Magistrate’s Court he was also charged in the Disciplinary Tribunal of absenteeism and fraud. His acquittal in the Magistrate’s Court was challenged by way of appeal which to date has not proceeded by way of hearing while disciplinary verdicts have not been challenged either.
Plaintiff’s evidence was that while his case was proceeding in the Magistrate’s Court proceedings against him were also going on in the Disciplinary Tribunal making it impossible for him to attend both trials and he had elected to attend Magistrate’s Court proceedings in which he was found not guilty and acquitted an appeal being lodged and not prosecuted and the reason he has approached this court for:
(1) Loss of income;
(2) General damages; and
(3) Costs of suit.
The defence called two witnesses and Dw1 - Mr. Mokuku testified Plaintiff’s acquittal in the Magistrate’s Court was appealed and to date it has not been heard and he is still desirous to proceed with the appeal. Dw2 - Thabang Mashoao has testified Plaintiff was charged of two counts namely absenteeism and fraud and convicted on both counts which have not been challenged and particularly the fraud charge by which the Plaintiff being convicted was dismissed from the Public Service.
I have had a close look at the judgment of the Adjudicator and find that contrary to Dw2 - Thabang Mashoao’s evidence, actually Plaintiff was charged of 3 counts:
Count 1 - Absenteeism
Count 2 - Misrepresentation (Fraud)
Count 3 - Public officer bringing the Public Service into disrepute, discredit or contempt
and was convicted on counts 1 and 2, cautioned on Count 1 and dismissed on Count 2 and it will be observed Count 2 is substantially the same as the offence with which the Plaintiff was charged in the Magistrate’s Court and acquitted. It was submitted to me by the defence that this court cannot interfere with the finding of a disciplinary nature such as for example absenteeism which falls squarely within the compass of a Disciplinary Tribunal and to this extend I agree. It was also submitted by the same token, where, as in this case, the Magistrate’s Court acquitted Plaintiff for fraud and the Disciplinary Tribunal convicted the latter the conviction having not been challenged it stands and to this extend I disagree. Disagree because Disciplinary Tribunals try purely disciplinary cases spelled out by the code; they do not try criminal offences which must be remitted to criminal jurisdiction as soon as they are discovered and I am of the view in trying Plaintiff of fraud the Disciplinary Court went beyond its jurisdiction and accordingly both the conviction and sentence of Plaintiff on Count 2 are set aside and the court is free to consider merits of Plaintiff’s case mindful Plaintiff’s case is loss of income and consequent damages.
But before coming to the case before court, the court must, I think, determine the fate of an appeal which, according to papers before me was taken probably on 08/02/2006 and served on the then Counsel Mr. Phafane Counsel for Plaintiff according to annexure “TM1” (Exh “A”). The Court of Appeal does not been Registrar’s official stamp save being served on the then Plaintiff’s Counsel S. Phafane’s Chambers. Further Annexure “TM1” is annexed which, like the other “TM!” bears a Revenue stamp and the Court has not been able to determine which of the two is the original save that the second “TM1” bears a High Court stamp dated 29 October, 2006 so that when the appeal was purportedly lodged with the Registrar of the High Court it was already out of time mindful Ms Mahase’s judgment (as she then was) has handed down on 27/01/2006. I have endeavoured to discover whether, the appeal being out of time an application was made for its condonation and leave to appeal out of time and have found no such evidence and it would seem to me the real reason why the appeal did not proceed is it being out of time the appellant not having sought leave to appeal out of time and condonation of the late noting of the appeal.
Its no use fussing over this matter for much as an appeal was lodged it was out of time there having been no application for condonation of its late noting and leave to appeal out of time so that so far as Plaintiff’s acquittal by the learned Magistrate is concerned this not having not been challenged it stands and is unshakeable.
Back to Plaintiff’s case, I was attracted more by Defendants’ Counsel submissions by which he says Plaintiff is bound to prove the following as the basis of his cause of action, namely;
(a) Negligence on the part of 1st Defendant
(b) Wrongfulness and unlawfulness
(c) Malice on the part of 1st Defendant
and runs rests with Plaintiff.
According to Introduction to South African Law and Legal Theory by Hosten Edwards, Nathan and Bosman page 479, where a person did not intend to bring about a consequence of his act, the law may still regard his act as blameworthy if it did not correspond to the standard of case required by law the form of blameworthiness being called negligence or culpa and the text employed by courts to determine whether a person has acted negligently or not is that of the reasonable man and according to judgment in Kruger v Coetzee 1966 (2) SA 428 (A) 430 and other cases on note 123 of page 480 of Hosten and others above by which, liability arises if:
(a) A diligens paterfamilias in the position of the Defendant:
(i) Would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) Would take reasonable steps to guard against such occurrence; and
(b) The Defendant failed to take such steps.
Has also been said our courts in assessing liability for culpa often make use of the concept of the duty of care (see McKerron and authorities referred to therein), i a CapeTown Municipality v Pains 423 A.D 207. The writers, it will be noted, are not comfortable with the use of duty of care which confuses elements of wrongfulness and fault preferring, rather, the simpler negligent test outlined above and it will be noted in noting a dubious appeal which, even if noted lapsed there having been no condonation for its late noting and leave to appeal out of time, 1st Defendant, a good man of the family, was certainly aware and foresaw the reasonable possibility of his conduct injuring the Plaintiff in his person or property and causing him patrimonial loss and instead of taking reasonable steps to guard against such occurrence 1st Defendant failed to take such steps. Plaintiff while the appeal was pending was held hostage and could do nothing and acted only when the so-called appeal had taken an unreasonable time to be dealt with 1st Defendant being squarely responsible for its prosecution.
So far as “wrongfulness” and “unlawfulness” is concerned, this has to do with abuse of rights. 1st Defendant is entitled to exercise his right of appeal but not in such a way as to harm the Plaintiff. In appealing and not prosecuting his appeal for more than five (5) years, 1st Defendant cited wrongfully and unlawfully and put in another way abused his rights to Plaintiff prejudice. I am satisfied Plaintiff proved his damages. I am also satisfied Plaintiff gave sufficient evidence in support of 1st Defendant unlawful and wrongful act though I am of the view it’s going too far to allege 1st Defendant in acting as he did was malicious.
Regarding Court Rule 62, I fail to appreciate how Registrar of the High Court can process an appeal that has lapsed and is out of time or being timeously noted is not prosecuted timeously by the appellant.
I disagree disciplinary proceedings were independent of criminal proceedings for while Plaintiff was charged of fraud in the Magistrate’s Court he was also charged of fraud in the disciplinary proceedings, a charge a Disciplinary Tribunal had no jurisdiction to decide while on absenteeism Plaintiff escaped with a warning.
The Plaintiff having proved his case on a balance of probability is awarded his claim as appears in his summons with costs.
For the Plaintiff : Mr. Khumalo
For the Defendants : Mr. Sekati
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