CIV/T/128/87

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

KHETHANG
SAM LEKHAFOLA Plaintiff

and

LESOTHO
LIQUOR DISTRIBUTORS Defendant

RULING ON
EXCEPTION

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 15th day of April,
1988.

In this
action the plaintiff is claiming the following:

1. Payment
   of three months' notice in the amount of M1,008-00;

   
   

2. Payment
   of other terminal benefits;

   
   

3. Payment
   of the sum of M4,032-00, plaintiff's remuneration for twelve months;

   
   

4. Interest
   thereon at the rate of 12% calculated from April, 1986.
   

   
   

In the
declaration the plaintiff states that since March, 1984, he was the
employee of the defendant till the 18th April, 1985 when
defendant by
word of mouth unlawfully dismissed him from his work.

2

The
plaintiff contends that defendant had to give him at least three
months notice or payment in lieu thereof on termi­nation
of his
service. Defendant had to pay him terminal benefits e.g. pension
fund.

In
paragraph 6 of the declaration the plaintiff states that -

"Before plaintiff was unlawfully dismissed by defendant, his net
monthly salary was M336-00, it is now twelve months since
plaintiff
was not paid his monthly salaries, the total to date is M4,032-00.
Plaintiff holds defendant liable for payment of this
money."

The
defendant has taken an exception in terms of Rule 29 (1) of the High
Court Rules 1980 to the plaintiff's claim on the following
grounds:

1. Defendant
   excepts to the claim for payment of other terminal benefits on the
   grounds that no cause of action whatsoever is made
   out. The
   Declaration does not contain sufficient averments of fact to entitle
   Plaintiff to payment as claimed. In fact,

   
   

2. there
   is no indication whatever as to what amount is claimed by the
   Plaintiff in respect hereof; Defendant also excepts to the
   claim for
   payment of the sum of M4,032,00 in respect of remuneration for
   twelve months. Plaintiff has already claimed payment
   of the sum of
   M1 008,00 being payment of salary in lieu of three months' notice
   and, in the premises, Plaintiff is not entitled
   to make any further
   claim for payment of remuneration for a full year.

   
   

The
general rude is that an exception must go to the root of the matter
and that if it does not destroy the whole cause of action
or defence
it is bad in law (see Goller and others v. van der Merwe 1903 T.S.
157, Naylor v. Central News Agency, 1910 W.L.D. 90).

3

In the
case of Dharumpal Transport v. Dharumpal, 1956 (1) S.A. 700 (A.D.),
it was held that an exception cannot be validly taken
to a
declaration on the ground that it does not support one of several
claims arising out of one cause of action.

In the
case of Barrett v. Rewi Bulawayo Development Syndicate, Ltd., 1922
A.D. 457 it was held that an exception should not be taken
to
particular sections of a pleading unless they are self-contained and
amount in themselves to a separate claim or a separate
defence, as
the case may be, but the exception should be to the pleading as a
whole.

In the
instant case the cause of action is unlawful dis­missal and under
that cause of action the plaintiff is making several
claims as set
out above. The exception is directed at claims 2 and 3 only. It seems
to me that the exception does not go to the
root of the matter in
that it does not destroy the unlawful dismissal.

Payment
of terminal benefits is one of the claims arising out of the same
cause of action i.e. unlawful dismissal. In order to be
entitled to
terminal benefits the plaintiff shall have to prove that he was
unlawfully dismissed. It seems to me that payment of
other terminal
benefits is a section of the pleading and that it is not
self-contained and does not amount to a separate claim.

The claim
is attacked on the grounds that no cause of action is made out and
that the declaration does not contain sufficient averments
of fact to
entitle plaintiff to payment as claimed and that the amount claimed
is not stated. The question of payment of terminal
benefits is a
question of law provided for in the Employment Act 20.22 of 1967.
Once the employee has proved unlawful dismissal,
payment of

4

terminal
benefits follows automatically. In his declaration the plaintiff
alleges that the dismissal was unlawful and if he can
prove that fact
at the trial, he shall be entitled to payment of terminal benefits
which shall include pension contributions made
by him and severence
pay.

In the
case of Salzmaun v. Holmes, 1914 A.D. 152 at p. 156 Innes, J.A. said:

"The distinction between an exception and an application to
strike out is clear. An exception goes to the root of the entire

claim or defence, as the case may be. The excipient alleges that the
plea objected to, taken as it stands, is legally invalid for
its
purpose. Whereas individual sections, which do not comprise an entire
claim or defence, but are only portion of one, must,
if objected to,
be attacked by motion to expunge."

It seems
to me that in the instant case the defendant ought to have made an
application to strike out or to have asked for further
particulars
because the objection, which seems to be relevant, is that the
plaintiff has not stated the exact amounts he is claiming
as terminal
benefits.

Regarding
the objection that the plaintiff is not entitled to claim payment of
the sum of M4.032-00 in respect of remuneration for
twelve (12)
months because he has already claimed payment of the sum of M1,008-00
being payment of salary in lieu of three months'
notice, I think the
plaintiff is entitled to claim damages for unlaw­ful dismissal
together with payment in lieu of notice.
However, in assessing the
amount of damages the Court ought to take into account that some
amount has been paid in lieu of notice.

5

In any
case I do not think that the defendant had to except, it ought to
have pleaded over and alleged that the plaintiff was not
entitled to
both damages and a sum in lieu of notice. Secondly, the objection
does not go to the root of the claim because it does
not destroy the
whole cause of action which is unlawful dismissal.

In the
result the exception is dismissed. The defendant shall pay half of
plaintiff's costs.

J.L.
KHEOLA

JUDGE

15th
April, 1988.

For
Plaintiff - Mr Phafane

For
Defendant - Mr. Koornhof.