In the matter between:
MOJALEFA MPOTA 1st Applicant
SEMPE TAU 2nd Applicant
ATTORNEY GENERAL (For and on behalf
of Ministry of defence) 1st Respondent
LESOTHO DEFENCE FORCE 2nd Respondent
Coram: Hon. Hlajoane J
Date Hearing: 6th December, 2011.
Date of Judgment: 23rd April 2012.
Applicants being members of Lesotho Defence Force – Having both been charged and convicted of Robbery in 1984 – Convictions and sentence being set aside on Appeal in 1991 – Reporting on duty after release from Prison but being told that they were going to be called later – Approaching Court for compensation and re-instatement in 2007, sixteen years after release from Prison – Respondents taking a point of Law of Prescription – whether Applicants to be considered as having been dismissed – Application dismissed with no order as to costs.
Lesotho Defence Force Order 17 of 1993 Sec. 182 (1)
Pensions Proclamation No4 of 1964 Sec. 6 (1)
Legal Notice 16 of 1969 Public Regulations Sec. 479
 The applicants are claiming from the respondents re-instatement in the Lesotho Defence force and an amount of M350,000.00 each as their pay back salaries with costs.
 The applicants were members of the 2nd respondent, 1st applicant having joined the Army in 1979 and 2nd applicant in 1977.
 Whilst serving under the Lesotho Defence Force, the applicants were both charged and convicted of the crimes of robbery sometime in June, 1984.
 The applicants however appealed to the Court of Appeal and the conviction and sentences were set aside in 1991 which resulted in applicants being released from prison.
 The applicants then said immediately after the judgment of the Court of Appeal and their release from prison they reported on duty in the Lesotho Defence Force but that they were told that they would be called later.
 Applicants showed that they were never called from that time to date as was promised. What they know is that they were never dismissed from service.
 The respondents raised some two points of law ofPrescription and Condonation. They said that in terms of section 6 of the Government Proceedings and Contract Act the matter has prescribed.
 Respondents further denied that the applicants ever reported to their previous stations after their release by the Court of Appeal. Further that because of their convictions that was tantamount to their dismissal.
 Applicants in addressing the issue of Prescription argued that Prescription could not apply where there has been no termination of employment by way of dismissal. Also that the question of condonation would not be relevant as they still considered themselves still within time as were never dismissed.
 Respondents have submitted in argument that applicants’ convictions were tantamount to dismissal. That once one is convicted that alone must be considered as dismissal in itself.
 What the respondents were saying is that because the High Court had convicted the applicants of robbery charges there was no need to have been written letters of dismissal as those convictions alone were tantamount to dismissal. But they failed to appreciate that the Court of Appeal reversed the High Court’s decision and acquitted the applicants.
 I was referred to the case of Mokone v Attorney General and 2 Others in which the case of Koatsa v NUL was cited, which is the authority for saying that a public officer is entitled to be heard before dismissal.
 In casu it was a different scenario in that applicants were never issued with letters of dismissal. Their convictions were even set aside by the Court of Appeal, so that the question of them having been dismissed as a result of the convictions if at all, was overtaken by events.
 Applicants have however alleged in their papers that they reported at work immediately upon their release resulting from the decision of the Court of Appeal. But the respondents denied the fact that the applicants ever reported at work.
 In order for the Court to come to an informed decision at to whom between the two sides was to be believed, the Court took into account the circumstances of this case.
 The applicants have alleged that they reported on duty once they were released from prison. The Court therefore has to look at the period in between their reporting and the launching of this application.
 If it was on the 19th August 1991 when the applicants were declared as having no criminal record as a result of the setting aside of their conviction by the Court of Appeal the reporting on duty must have been the same year.
 The applicants have alleged in their papers that they had been engaged in some negotiations with the second respondent till when they realized that they had reached a dead lock. That was when they decided to approach the Court for intervention.
 What the applicants have told this Court was that it took them some sixteen years before realizing that the respondents were not saying anything positive to them. During all that time they had not been paid. They only lodged their application in October 2007.
 The applicants have not even produced any documentary proof to show that they in fact reported to second Respondent in particular Colonel or Lieutenant Maeko as they alleged in their papers.
 Looking at the time that it has taken the applicants to bring this Application the Court comes to the conclusion that though conviction could not in itself be considered as a dismissal, and the convictions having been set aside by the Court of Appeal, the period they took before coming to Court has crippled their case.
 The applicants must be taken to have waived their right of getting
what could otherwise have been their entitlement due to the lapse of such an unreasonable period of sixteen years.
 They must be taken to have dismissed themselves and in terms of the Lesotho Defence Force Order read together with the Pensions Proclamation, the applicants are not entitled to any relief under the circumstances of their case.
 The question of Prescription and Condonation would not apply to the facts of this case, but that due to the length of time the applicants have taken to bring the application before Court they are taken to have waived their right to sue.
 Though respondents have not succeeded in the points in limine raised, the application is still dismissed on a different ground of the inordinate delay taken by the applicants to have brought this application.
 The application is thus dismissed but each party to bear its own costs as applicants may not have it easy to bear such costs.
For Applicants: Mr Mojela
For Respondents: Mr Mokhehle
Act No.14 of 1965
1991-92 LLR &LB 163
Lesotho Defence Order No.17 of 1993 sec. 182 (1)
Pensions Proclamation 4 of 1964 section 6 (1)
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