CIV/T/746/87

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

NTHABISENG
LEKHANYA Plaintiff

v

CO-OP
LESOTHO LTD Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Alien on the 1st day of November,
1988

This is a
claim for unpaid salary since October 1983 by the plaintiff who had,
until then bean employed as a cashier by the defendant
Co op in
Maseru since 1978. At the time she was earning M288 gross per month.

Usually a
suit of this, sort is for damages for unlawful dismissal and possibly
for reinstatement. but in this instance the plaintiff
claims that she
was never dismissed but only suspended and so she is still an
employee of the defendant.

The claim
is for:

1. An
   order directing Defendant forthwith to pay plaintiff's salary in
   respect of October 19 83;

   
   

2. An
   order directing Defendant to pay

   
   

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plaintiff's monthly salary with effect from the date of suspension to
date.

The
summons was filed on 24 November 19 87, over four years after the
date of the plaintiff's suspension, though no explanation
of this
long delay was given to the Court. Two months later, in January 1988,
the defendant paid to the plaintiff her salary for
October 1983. Thus
that part of the claim has been dealt with.

The
defence called only one witness,Mrs Malethoko Lebeko (DW1),also
employed as a cashier by the Co-Op. In October 1983 she was
working
in the Headquarters office in Maseru and the plaintiff was a cashier
in the Seed Depot in another part of Maseru. According
to Mrs Lebeko
the plaintiff telephoned her on the morning of Tuesday 18 October 19
83 and asked to meet her to discuss something.
They agreed to meet at
lunch time in the Headquarters office. She said the plaintiff was at
first reluctant to bring up the matter
that she wanted to discuss.
She then said that if Mrs Lebeko did not agree with what she wanted
to suggest she should keep quiet
about it and let the matter end
there.

The
plaintiff pointed out that the Co-op was not paying them very well
and that she had a plan that in­volved about two people
who would
steal the Co-Op's money when it was being taken to the bank by Mrs
Lebeko. She should remain calm at the time because
she would not be
hurt. The men would merely threaten the person who

3

escorted
her to the bank. Mrs Lebeko said that she told the plaintiff that she
was afraid and was not willing to be involved in
the matter and that
she was satisfied with whatever she was being paid. The plaintiff
replied that since Mrs Lebeko did not agree
to the plan the matter
would end there and she should forget about it. Mrs Lebeko did not
report this conversation to anybody.

On the
morning of Friday 21 October, that same week, Mrs Lebeko went to the
Lesotho Bank with cash and cheques amounting to M.38,000.00
to be
deposited. She was escorted by a gate man called Lekitla. Just
outside Co-Op Headquarters two men appeared. The escort was
struck on
the head and the men took the money and escaped in a car. Apparently
they were not caught. Mrs Lebeko was not hurt at
all.

After
persistent questioning on this point Mrs Lebeko stated that after the
robbery the first thing she did was to go to her office
and telephone
to the plaintiff to tell her that her plan had been carried out. She
said that the plaintiff replied that she was
not involved in any way
and it was just unfortunate that they had spoken of it. She asked Mrs
Lebeko to forgive her.

Only then
did Mrs Lebeko report the matter to her supervisor who called in
other senior officials who questioned Mrs Lebeko, each
of whom asked
the same question that was put to her several times in Court;

4

that is,
why had she not reported the conversation with the plaintiff about
the planned robbery before the event. Her answer every
time was that
she did not believe it would happen. Yet, after further persistent
questioning in Court she admitted that she thought
that the plaintiff
was serious at the time but she merely put it down to a grudge of
some sort. That, of course, was no reason
for failing to report it
and Mrs Lebeko's next excuse was that, since she had not agreed to
take part in the robbery, it therefore
would not happen. When it was
pointed out to her that the plan did not envisage her having any part
to play in the robbery, she
merely replied, after a lot of evasions,
that she thought the whole matter had ended with her own
disagreement. It was very unconvincing
in my opinion.

At any
rate Mrs Lebeko was taken to the police station where she told the
same story. She was suspended from duty for a week by
the Co-op and
then re-instated and paid her salary for October.

The
plaintiff was arrested on 22 October, the day after the robbery, and
detained in custody for five days. She was then released
and was not
told to report back to the police again. She completely denied Mrs
Lebeko's version of events and added that she did
not know why Mrs
Lebeko would lie about it.

On 31
October she was given a letter (exhibit 'A') from Mr. Thabisi, the
Co-Op Personnel and Admin. Manager which reads as follows:

5

Subsequent to my letter dated 24th October 1983, management of Co-Op
Lesotho hereby confirms that you have been sus­pended
without pay
until such time that the police shall have finished with their
investigations.

The
plaintiff's attorneys then wrote demanding that her October salary be
paid to her. No other demand or request was made at that
time. In
reply on 3 November (exhibit 'A') one Moorosi writing on behalf of
Thabisi (above) explained about the robbery and the
plaintiff's
alleged part in it and her detention in police custody. He repeated
that she was suspended pending the outcome of police
investigations.
He added that they would only pay her if she produced evidence
showing that she had been cleared by the police
of any complicity in
the robbery.

Nothing
more then happened for three and half years. On 7 May 1987 the
plaintiff's attorneys wrote to the Co-Op (exhibit 'A') demanding
her
salary "from the date of suspension to date" as there had
been no police charge preferred against her. They added
that failure
to pay would result in a summons being issued. On 18 May the acting
Managing Director, Mr Khanyane, wrote to the attorneys
to the effect
that the case was still in the hands of the police who had made no
report about it, so she was still suspended. Six
months later the
summons was filed and issued.

Meanwhile
the plaintiff had remained suspended and not working from 24 October
1983 until she took a

6

clerk's
job with Kali & Partners in April 1984, that is five months
later. She was paid M.200 per month. After a few months
in 1984 she
obtained a clerical job with Maseru Tyre Co. at M.250 per month. She
stayed with them until September 1987 when she
obtained a job with a
shop called Collier & Yeats (Pty) Ltd at M.400 per month. She is
still working for them and had thus
been in gainful employment
continuously since April 1984.

In spite
of that she was claiming her Co-Op salary M.288 per month for the
full time since she was suspended in October 1983. It
was put to her
that she could not expect to receive two salaries for each month of
that period. Mr Pheko on her behalf suggested
that she should be paid
the difference in her salaries up until she joined Collier &
Yeats, when, of course, it became considerably
more than her Co-op
salary.

In the
defendant's plea there was an assertion that "the defendant has
'since dismissed plaintiff for misconduct." However,
no evidence
was adduced to support this contention and so it should not have been
pleaded. The plaintiff claimed that she had never
been dismissed but
only remained suspended for these four years. The three letters from
the defendant in the bundle (exhibit 'A')
all refer only to the
suspension of the plaintiff. There is no mention of any dismissal.
That also perhaps explains why the plaintiff
was not in a position to
bring an action for unlawful dismissal.

With
regard to the evidence before the Court I found both of these women,
the plaintiff and Mrs Lebeko.

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to be
most unconvincing witnesses. It may be that the police did not find
sufficient evidence upon which to base a prosecution;
possibly
because they did not catch the two men involved or recover the money.
But, whatever the position, Mrs Lebeko was a shifty
and evasive and
un­reliable witness, and the plaintiff's denials were equally
unconvincing. It is difficult to believe that
Mrs Lebeko, if she was
innocent, could have failed so badly in her duty as not to report the
robbery plan to her superiors. Or
that, knowing what was planned, she
could have calmly walked out of the building carrying a large sum of
money without any apprehension
or fear or without taking any
precautions, unless she not only knew of the plan but was also
certain that she would be unharmed
and unblamed and would gain
something by it. It is significant that her first move after what
should have been a most frightening
experience of being robbed, was
to telephone to the plaintiff to report the success of the plan. Only
after that did she report
to her superiors. This was surely not the
normal reaction of an innocent person. However, these are not matters
to be decided in
the present case.

The
question that does have to be decided is whether or not the plaintiff
is still an employee of the defendant under suspension;
and whether,
since no police charge is pending or has been brought against her,
she is entitled to be paid for that period. She
told the Court that
she still considers herself to be an employee of the defendant and
she would be willing to go back to work
there in spite

8

of the
higher salary that she is now earning with Collier & Yeats. But
she has not asked the Court for an order reinstating
her. She
explained that she had meanwhile taken up successive employments with
the three different businesses since April 1984
simply because she
had been divorced since 1982 and so she needed to earn money to live
.and keep herself. She admitted that she
has been in continuous
employment since April 19 84. In fact, if she was not dismissed then
she was also employed by the defen­dant
during her period of
suspension from October 19 83 until April 1984 oven if that
suspension was without pay.

Most
organisations, when they suspend employees, do so on reduced pay such
as half-pay or one third pay since obviously an employee
still has to
live somehow during his period of suspension. In my view it is
un­usual and indeed unfair to suspend anyone without
pay at all.
Unfortunately the Employment Act 1967 (as amended) is silent about
the matter of suspension.

Normally
a period of suspension ends when the employee is either reinstated or
dismissed. In the present case it appears that neither
of these
options was exerciser! by the defendant, thus introducing an
unnecessary compli­cation into the issue.

Mr Pheko
referred to a decision of the Appellate Division in Steward Wrightson
(Pty) Ltd v Thorpe 1977(2) SA 943, in which it was
held that "the
exercise of a right to terminate a contract must, as a juristic act,
require an expression of intent. However,
any requirement

9

that the
party against whom it is exercised should be notified does not rest
upon any need for consensus but must flow from other
considerations,
whatever they might be." That does not really take us any
further since it is in any case reasonable and practical,
indeed
essential, that an employee should be informed if and when his
con­tract of employment has been terminated.

In Norton
v. Mosenthal & Co 1920(2) SA (EDL) 115, the defendant wrote to
the plaintiff suspending him on suspicion of theft
of their property.
. He was told to hold himself at the defendant's disposal until
further notice. He was later convicted and his
sentence suspended' on
conditions. He then sued the defendant for wages. The defendant
pleaded that the plaintiff's arrest, and
conviction amounted to a
dismissal and that he had for­feited wages from the date,of
suspension, or at least from the date
of arrest. The Court agreed
with the plain­tiff's counsel that the arreat and conviction was
not a fact from which dismissal
must inevitably be inferred. It was
held that in order to justify a master from with­holding wages
from a servant on the ground
of misconduct warranting dismissal, the
dismissal must either be in ex­press terms, or there must be
facts brought to the servant's
notice from which a dismissal may be
inferred. But that case can clearly be distinguished from the present
in­stance on several
grounds. For instance, the present plaintiff
was not charged and so not convicted. She was not told to hold
herself at the disposal
of her employer and she obtained alternative
employment.

10

It is
this last point which makes this case unusual and perhaps unique. At
any rate, counsel have not been able to cite any precedents
or cases
in which a suspended employee plaintiff has sought and obtained
employment elsewhere without having been formally dismissed
or having
resigned first. Thus I can only give my own opinion about it

I find
the plaintiff's statements in Court that she was holding herself
available to return to work at the Co-Op throughout these
last four
years, and that she con­sidered herself to be still employed by
the defendant, to be at variance with her previous
conduct as well as
her pleadings.

Neither
in her attorney's letters to the defendant (exhibited) nor in her
pleadings did she say even a word to this effect. Why
were there no
letters from her or her attorney in the last four years informing the
defendant of this view and claiming or requesting
reinstatement? Why
did she not ask the Court for an order reinstating her? Without
anything of this kind I find it very difficult
to give any credence
to her testimony on this point.

Furthermore,
if she was so keen to return to the defendant's employment why did
she wait so very long, four years in fact, before
bringing her action
to Court? Equity aids the vigilant. The dilatory cannot expect
sympathy or success.

Apart
from the first five months of her suspension period she has been in
full-time paid employment and her

11

present
job is probably better paid than if she had stayed with the
defendant. Clearly the defendant should not have left the question
of
her suspension or dismissal in the air. A decision should have been
taken when it was clear that she was not going to be prosecuted
and
she should have been informed of it. Similarly the plaintiff had a
duty to inform the defendant that she was all the time holding

herself available for immediate reinstatement, if this was so.

However,
the plaintiff has not asked for rein­statement and I cannot
therefore accept that she wants it nor that she is serious
in her
statement that she considers herself still to be in the employment of
the defendant. In my opinion her actions indicated
that she assumed
that she had been dismissed. By electing to accept fresh full-time
employment elsewhere for so long she impliedly
repudiated her
contract of service with the defendant just as if she had resigned or
walked out.

Thus I
hold that by her own actions the plaintiff terminated her contract
with the defendant in April 1984 when she sought and obtained
other
long-term full-time employment. Consequently she is not entitled to
recover wages from that time onwards.

With
regard to the first five months of her sus­pension she was
clearly still an employee of the defendant and she was entitled
to
some remuneration, whether it was the full amount or a fraction of
it. There was no evi­dence that the defendant was legally

entitled under the

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contract
of employment to suspend her with no pay at all. As I have already
indicated, I would regard such an order as being unfair
and
inequitable. The defendant also acted inequitably by not defining
precisely the plaintiff's position with them after she had
been
released by the police. She should have been informed long ago
whether she was to be reinstated or dismissed. It should have
been
easy enough for the defendant to obtain confirmation that the
plaintiff was not going to be prosecuted.

Since I
find that the defendant's actions in these two respects were unfair
and lamentably lacking in con­sideration, I hold
it to be
appropriate for the defendant to pay the plaintiff her salary for
those first five months (November 1983 to March 1984
inclusive), but
no more than that since she deserves no more and in any case she has
not prayed for any damages. This amount will
be 5 x M288, which comes
to M.1440. The delay in bringing this action was caused by the
plaintiff herself and so interest will
not be back-dated. As the
plaintiff has partially suc­ceeded and the defendant was in the
wrong, the plaintiff is entitled
to her costs.

Accordingly,
judgment is entered in favour of the plaintiff in the sum of M.1440
with interest at l1% from the date of this judgment
and costs in the
suit.

P. A. P.
J. ALLEN

JUDGE

1
November 1988

Mr Pheko
for Plaintiff

Mr Molete
for Defendant