The respondents in this appeal are ex members of the Lesotho Liberation Army (LLA) who were employed in the public service on fixed terms contracts (of 36 months) as compensation for their contribution to the freedom struggle of Lesotho. Their identical employment contracts include, amongst others, a term that the Government may terminate their employment at any time either on three months’ notice or on payment of three months’ salary in lieu of notice. A further term of the employment contract is that if the contract is terminated by the Government before the 36 months run out, the employee shall be paid a gratuity of 25 percent of aggregate remuneration for the period served.
The Government terminated the contracts two years before the term of 36 months ran out by giving the employees three months’ notice. The employees then brought proceedings to declare the termination of their employment contracts unlawful and demanded to be paid for the remainder of the contract period. The Government pleaded that the employees were terminated because they had reached the mandatory retirement age of 60 years in terms of s 26 of the Public Service Act 2005 (PSA). The employees retorted that they were appointed on contract which is permissible in terms of s 7 of the PSA.
The High Court found in favour of the employees. On appeal by the Government, the Court Appeal held that contract appointment to the Lesotho public service was permissible both in terms of the PSA and the Constitution. That the appointment of the employees was agreed to be compensation for their contribution to the struggle and that the premature termination of their employment contracts constituted reduction in compensation. Since the appeal lodged about five months after judgement of the High Court and there being no satisfactory explanation for delay and no prospect of success, appeal struck from the roll with costs.
IN THE APPEAL COURT OF LESOTHO
C OF A (CIV) NO. 34/2019
HELD AT MASERU
In the matter between:
PRIME MINISTER 1ST APPELLANT
PRINCIPAL SECRETARY TO CABINET 2ND APPELLANT
PUBLIC SERVICE COMMISSION 3RD APPELLANT
ATTORNEY GENERAL 4TH APPELLANT
TEKO MOLOTSI 1st RESPONDENT
TSIETSI PHENETHI 2ND RESPONDENT
LISEMA MALEFANE 3RD RESPONDENT
TSÓLO KOEPE 4TH RESPONDENT
Coram: Damaseb AJA, Chinhengo AJA et Mtshiya AJA
DATE HEARD: 12 May 2020 (For determination by way of written submissions in terms of the CA President’s COVID 19 PD 2020).
DATE DELIVERED: 29 May 2020
________________________________________________________________ JUDGEMENT ________________________________________________________________
PT DAMASEB AJA:
Common cause facts
“Government and the person engaged agree as follows:
6(2) The Government may at any time terminate the engagement of the person by giving him/her one month’s notice in writing or on paying him/her one month’s salary in lieu of notice”.
( I pause to reflect that the Addendum was signed on 27 April 2018 with each of the applicants whereas the employment contracts were terminated in August 2017. The PS makes no effort to explain the obvious, if curious discrepancy in timing).
“Contents noted save to state that the said position of Reconciliation Officers have re-designed (sic) to serve the Ministry or office strategic objectives’.
“(a) That Officers listed in annex 1 (EX-LLA members) be absorbed to the vacant positions of Reconciliation Officer, Grade E;
. . .
(2) Cabinet may wish to note further that those positions [of Reconciliation Officers] were created to give employment to the EX-LLA members as a form of compensation for their involvement in the liberation struggle.” (My underlining)
Proceedings in the High Court
‘a party to a fixed term contract has no right to terminate such contract in the absence of repudiation or material breach of the contract by the other party’.
To compound the mess in which they had put themselves Respondents purported to amend the period from three (3) months to one (1) months’ notice. In my view the Addendum smacks of malice.
‘(1) A public officer shall retire from the public service and shall be so retired on attaining the age of 60 years.’ (My underlining)
‘Appointments to the public service shall be on-
That shows that it was, as alleged by the applicants, perfectly legal for them to be appointed on contract. The question is, could they be appointed or continue in service on contract beyond the age of 60 years? The various defences will now be considered.
‘Consequently, the reason for termination is clear. Much as the [Government] effected the termination in terms of the contract, the reason was to give effect to the law and that is manifest in the fact that only reconciliation officers who had reached the age of 60 years were selected.’
‘On the satisfactory completion of Thirty-Six (36) months service or such shorter period if this contract is terminated under the provisions of clause 5(1) or 6(2), the person engaged shall be eligible for gratuity of twenty-five (25%) of the amount of aggregate of salary drawn during that period.’
Condonation and points in limine
p t Damaseb
ACTING JUSTICE OF APPEAL
m h Chinhengo
n t Mtshiya
ACTING JUSTICE OF APPEAL
FOR RESPONDENTS: ADV MASOEU
FOR APPELLANTS: ADV B SEKONYELA
 In terms of Rule 4(1) of the Court of Appeal Rules.
 Vide para 13 of the founding affidavit deposed by Mr Teko Molotsi on behalf of the applicants.
 Section 137(1) of the Constitution states: ‘Subject to the provisions of this Constitution, the power to appoint persons to hold or act in offices in the public service …, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Public Service Commission’.
 Vide s 7(1)(a) of the PSA 2005.
[AAM1]Something must be missing here why is there a big gap?
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