CIV/APN/80/86

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

THABISO
MABOTHILE Applicant

V

CO.OP
LESOTHO (PTY) LTD Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr. Justice M.L. Lehohla on the 13th day of July. 1989.

This
application was brought before this Court by way of motion.

The
applicant sought an order :-

1. Reviewing
   and setting aside the decision of respondent's management to demote
   and reduce applicant's salary (sic);

   
   

2. directing
   that applicant be re-instated to the position and status held prior
   to such demotion and reduction in salary;

   
   

3. directing
   respondent to pay to applicant arrears of salary from the date of
   such demotion and reduction in salary up to the time
   of applicant's
   reinstatement;

   
   

4. directing
   the respondent to pay to applicant per diem allowance per night that
   applicant should have received on transfer from
   Mohale's Hoek to
   Maseru;

   
   

5. directing
   the respondent to pay the costs of this application; and

   
   

6. granting
   the applicant such further and/or alternative relief as this court
   may deem fit.

   
   

2

The
application was dismissed with costs on party and party scale for the
following reasons:-

It is
common cause that the applicant is an employee of the respondent, and
that the respondent is a statutory body duly incorporated
and
registered in accordance with the laws of Lesotho, and that the
applicant has been working at the respondent's company as a
Depot
Manager "B" stationed at Mohale's Hoek earning an annual
salary of M4428. It is also common cause that the applicant's

appointment became perma­nent and that he became pensionable with
effect from the 1st January 1984. See copy of confirmation
of
appointment to the permanent staff marked "A".

P.M.
Khanyane on whose opposing affidavit the respondent relies avers that
he is the respondent's Sales and Distribution Manager,
He avers
further that the records relating to the applicant's demotion are
under his control.

Khanyane
admits that he recommended the demotion of the applicant. He
justifies this recommendation on the fact that the applicant's

performance of duty and the results of an audit carried out at the
applicant's

depot
were bad and unsatisfactory. This was made known to the Managing
Director in terms of a letter addressed to the applicant
dated 20th
June 1985 and attached to the applicant's affidavit marked "B".

Having
intimated in that letter that the applicant was not only grossly
negligent but that an element of dishonesty was an obvious
factor in
the performance of his duties Khanyane recommended to the Managing
Director that the applicant be demoted to the vacant
position of a
storeman at Maseru. Apparently this position had been vacated by one
Molongoana on or around the 1st June, 1985.

3

The
decision of the management endorsing the sales and Distribution
Manager's recommendations was intimated to the applicant in
terms of
annexure "C" oh 10th July 1985. It is important to note
that this decision of the management was forwarded and
intimated to
the applicant by Khanyane Who at the time was effecting these things
in his capacity as Acting Personnel and Administration
Manager. It is
important to note that he was at the time discharging his functions
on behalf of the overall management of the respondent.
It is thus
unacceptable for the applicant to aver in para 6 of his founding
affidavit that

"On or about the 10th July, 1985 the said Khanyane now
apparently in his capacity as Acting Personnel and Administration
Manager ... purported to demote me and reduce my
salary..............."

because
in discharging these functions he was not purporting to be a holder
of the office to which he had been appointed. Therefore
if he was
duly appointed no way could he purport to discharge functions germane
to his office. He discharges those functions on
behalf of the
management and does not purport to do so. Khanyane in his opposing
affidavit buttresses this position by indicating
that he was in his
new capacity and circumstances entrusted with the responsibility of
informing the applicant of the decision
to demote him as the regular
incumbent of the position had gone to Malawi for some reason or
other,

Khanyane
admits that when the applicant was temporarily transferred from
Mohale's Hoek to Maseru it was because investigations were
being
conducted following negative audit reports concerning the applicant's
handling of the business entrusted to him, but is quick
to explain
that the Transfer was in part to afford the applicant an opportunity
to explain what are called "the obvious discrepencies
in his
depot." In answer to the applicant's complaint that he was never
informed of the results of the investigation

4

Khanyane
explains that the applicant failed to give a satisfactory explanation
of the discrepencies hence an action was accordingly
taken against
him. Khanyane absolves himself of the duty to inform the applicant of
the results of the investigations because the
latter knew that audit
reports were unfavourable and that he was the one to explain the
discrepancies. I don't think that it would
have cost the respondents
anything to inform the applicant of the results of the investigations
especially when it was on the basis
of such results that the
applicant's interests were adversely affected.

I do not
deem it my function at this point to delve into the intimate
circumstances of this case in the light of the procedural
defects
which characterise it.

The
applicant complains that he was not given an opportunity to be heard
before being given what appears to be short shrift by the
respondent.

But the
respondent shows that the applicant was in fact given such an
opportunity. See Respondent's opposing affidavit at paragraph
12.
Thus now comes into surface what amounts to dispute of fact.

In
paragraph 16 the applicant says he approached this court having
exhuasted whatever remedies were available to 'him. Perhaps his

avoidance of the phrase all available remedies may have fed his
self-delusion that it was not therefore necessary to avail himself
of
all remedies provided for in the grievances handling machinery under
section 51(1) L of the Cooperative Societies Proclamation
47 of 1948.
This section says a dispute shall be referred to the Registrar for
decision. Presently the position of the Registrar
is substituted by
that of the Commissioner of Cooperative Societies.

It is
significant that the applicant has not pointed out what bodies he
approached with a view to

5

settlement
of his grievance.

It was
submitted that the applicant being an officer of the cooperative
societies within ,the meaning of the Proclamation falls
to be treated
under the rules pertinent thereto. Interpretation section 2 of the
Proclamation says "officer" includes
a chairman, Secretary,
treasurer, member of committee or other person empowered under the
rules or by-laws to give directions in
regard to the business of the
registered society.

Reliance
on L.E.C. vs Nyabela CIV/APN/150/80 cannot be of any avail to the
applicant because in Nyabela local remedies had been
exhuasted.

The
applicant cannot be heard to say that he feared that the malice he
apprehended in Khanyane's handling of his matter would be
perpetuated
by other bodies charged with the addressing of employees' grievances.
The law cannot assume bias. See Judicial Review
of Administration
Tribunals in South Africa 1963 Ed. at page 82 where Rose Innes says
:-

"Until a final decision has been given to an application before
the domestic or statutory body and its appellate organs, it
cannot be
said that an irregularity which may have occurred will not be set
right nor justice done. This justification loses its
force where the
appellate body has prejudged the matter and was itself the body which
in the first instance committed the irregularity,"

I am of
the view that respondent has shown substantial compliance with the
respondent's policy manual. Though it was fundamental
to the
applicant's case to adhere to the respondent's policy manual, the
applicant has failed to do so.

It is not
accurate to say Khanyane implemented his recommendation. The letter
in question clearly says "the management has
decided to demote"
the applicant.

6

It is
quite another thing if in the applicant's view Khanyane's person is
inseparably identifiable with the management. If so, then
that's too
bad.

Indeed
the submission rings true that if in the new capacity Khanyane
refused to implement the decision reached by the management
on his
recommendation while acting under another but proper capacity, he
would do so on peril of his own dismissal by the management.
Thus
because nothing in the papers shows that Khanyane was1 acting in his
personal capacity nor that he actually implemented the
recommendation
made by him to the mana­gement despite its decision to the
contrary, it is inescapable that at that stage khanyane
was just
rela-ying on what was decided by the management,

I thus
can hardly find merit in the accusations levelled against Khanyane
that he acted as judge in his own cause or that he manifested
bad
faith. See R vs. Lewes (1973) A C 388 at 402 where Lord Reid said

"Natural justice requires that the board should act in good
faith and that they should ....... tell him the gist of any grounds

on which they propose to refuse his application so that he may show
it to be unfounded in fact. But the board must be trusted to
do that
: We have been referred to their practice in the matter and I see
nothing wrong with it."

It is
difficult to see how the grievances handling machinery can be faulted
for being likely to act mala fide in respect of the
business they
must be trusted to perform even before they have performed it, or any
of them has been shown to have falsely attributed
the failure of the
business to the applicant's negligence. Nowhere has it been shown
that the Commissioner of Cooperative Societies
has had anything to do
with this matter that would be prejudicial to the applicant's
interests.

The
applicant is aggrieved that he was not given an oral hearing. But
Judicial Review of Administrative Tribunals in South Africa
at p.158
shows that even if

7

an
applicant is entitled to a hearing that does not necessarily entitle
him to an oral hearing, nor does it have to include a right
to oral
argument or to examine witnesses. See also Peterson vs Cutbert &
Co. Ltd. 1945 AD 420 at 421. I have already indicated
-that in terms
of Rule 8(14) an assertion by the applicant that he was given no
opportunity to be heard and the denial by the respondent
of such an
assertion can scarcely redound to the applicant's benefit.

Mr.
Molete made much of the fact that officers of the respondent were
acting in an administrative as against quad-judicial capacity.
But a
word of caution here : In R vs Commission for Racial Equality (1980)
ALL E.R. 265 Lord Lane C.J. said;

"It does not profit one to try to pigeon-hole the particular set
of circumstances either into the administrative pigeon-hole
or the
judicial pigeon-hole. Each case will inevitably differ, and one must
ask oneself what is the basic nature of the proceeding
which was
going on here."

Furthermore
in R vs Ganing Board of Great Britain (1970) 2 ALL E.R. 528 we are
told by Foulks at 233-234, referring to Lord Denning,
that

"his Lordship categorised as a heresy the view that the
principles of natural justice apply only to judicial and not to
administra­tive
proceedings".

Finally I
am enamoured of the words of Lord Parker C.J. in Re (H) K (an infant)
1967 ALL E.R. 266 where Foulks above said at 234
of his book.

(Lord
Parker C.J.)

"after saying that he thought that the officer was not acting in
a judicial or quasi-judicial capacity said that even if he
were not
he still had to act fairly."

Further
commenting on the decision immediately above the learned author says
:

8

"We find in that bold decision both a refusal to be
strait-Jacketed in the judicial-admini­strative dichotomy and the

introduction (or re-introduction) (of) or (emphasis on) the idea of
fairness. In Schmidt vs Secretary of State for Home Affairs
(1969)
ALL E.R. 904 S, a U.S. citizen had been allowed into the U.K. for a
limited period to study at the College of Scientology.
He. applied to
the Home Secretary for an extension of his stay. His application was
rejected without giving him a hearing Lord,
Denning said that the
former distinction between acting adminstratively and acting
judicially was no longer valid,"

For my
part i cast my lot with Lord Lane above and think that the proper
question to be asked at the end of the day is "what
is the basic
nature of the proceeding which was going on here". See
CIV/APN/318/88 Tseuoa Tsekoa & 3 Others vs The General
Manager
Lesotho Flour Mills & 4 Others (unreported) at pp. 8 and 24.

It was
argued for. the respondent that if it is felt that the applicant has
exhuasted all the domestic remedies and thus entitled
to institute
these proceedings in this court the respondent's action in that event
is not wrongful or unlawful for as borne out
in the applicant's own
replying affidavit the respondent's document called 'Policy' marked
"J" the procedure is set out
in the event of failure on the
part of an employee to live up to the standard expected of him in the
performance of his duties
as follows:-

"2,2.1 Division Head may propose in writing to the Personnel &
Administration Manager, for reference to the Central Manager,
the
removal of an employee from office or his reduction in rank or salary
on one or more of the following grounds:-

(a) ....................

(b) That he is incapable of carrying out his duties efficiently
(after all efforts to up-grade him/her have been exhausted).

2.2.2 The Division Head shall supply information in support of his
proposal to Personnel & Administrative Manager, for reference
to
the General Manager.

9

2.2.3 The General Manager may after thorough investigation advise
that :-

(a) .................

(b) The employees's. salary or rank or both his salary and rank be
reduced to an extent specified."

In
argument Mr. Mphutlane for the applicant laid much store by his
uncertainty whether Co-op Lesotho is a cooperative society as
opposed
to a statutory body. He submitted that as there is no constitution it
is impossible to show that Co-op Lesotho is a cooperative
society
within the meaning of the Proclamation.

The
essence of this argument truly escapes me. In my view, and while it
is essential to note that what is uppermost for the dermination
of
this matter is the question whether domestic remedies have been
exhuasted, it seems that the argument raised is merely illusory
-
first because it makes no difference whether a body is statutory or a
society within the meaning of the Proclamation, for in
either case a
grievance handling machinery is or should be provided. In the case of
a cooperative society, which as in this matter
it is common cause
that it was registered, there must have been a constitution which
would indicate what procedures are to be followed
in an endeavour to
redress grievances. It was thus the applicant's responsibility to
render the constitution available before Court.
He cannot be heard to
make a merit of his failure to furnish it because the onus is in any
case on him to establish his case on
a balance of probabilities. Next
because if the body is a statutory one then the Act would provide
means of creating rules, which
determine procedures to be followed
for purposes of settling disputes so that at the end of the day there
would be organs specified
for purposes of handling such disputes
before approaching this court.

I do not
however, view with favour the fact that it seems the reduction in
salary was effected retros­pectively. But that is
a matter that
the relevant tribunal

10

would
have been asked to deal with if the applicant had been patient to
avail himself of all the domestic remedie at hand before
rushing post
haste to this Court. However I do not think all is lost even at this
stage.

I am not
inclined to pursue the respondent's self-righteousness in making a
merit of the fact that while it could have dismissed
the applicant in
terms of the Employment Act No. 22 of 1967 section 15(3) (c) and (d)
it was charitable enough to only reduce his
salary and rank. I
confine myself in making a determination that the application must
fail on the grounds that it has been brought
before this court
prematurely.

Costs are
awarded to respondent on party and party basis.

JUDGE

13th
July, 1989.

For
Applicant : Mr. Mphutlane

For
Respondent : Mr. Molete.