C. of A. (CIV).
No. 33/88
IN THE LESOTHO COURT OF APPEAL
In the matter
between :

TSEUOA TSEKOA 1st Appellant

SEUTLOALI MATSABA 2nd Appellant

'MATIISETSO GREEN 3rd Appellant

'MAKHOTSO MOCHESANE 4th Appellant

v

THE GENERAL MANAGER – LESOTHO FLOUR MILLS 1st
Respondent

CHAIRMAN OF THE BOARD OF GOVERNORS

LESOTHO FLOUR MILLS 2nd Respondent

LESOTHO FLOUR MILLS 3rd Respondent

MINISTER OF AGRICULTURE AND

MARKETING 4th
Respondent

ATTORNEY-GENERAL 5th Respondent

HELD AT MASERU

Coram :

Mahomed, J.A, Aaron, J.A.

Plewman, J.A.

JUDGMENT

In or about 1979, the Government of Lesotho set up
an
enterprise called Lesotho Flour Mills in the Industrial
Area
of Maseru. This was established as a trading account
an terms of
the Finance Act 1978. It was common cause in
these proceedings
that "Lesotho Flour Mills" is not a

company, or a body corporate, and has no separate legal

personality of its own. The most accurate description

/that

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that can be given of it is that it is the Government of
Lesotho trading as "Lesotho Flour Mills," It falls within
the Ministerial
responsibility of the Ministry of Agriculture.

In order to conduct the activities of this enterprise (I
shall refer to it hereafter as "Lesotho Flour Mills," but
that
phrase must be understood in the context of the above remarks),
the Government has to employ staff. The four appellants in this
matter were amongst the large body of persons so employed. In
October, 1988, staff members received letters advising them of the
salary increments decided upon for the coming year. The measure of
increments caused dissatisfaction amongst the employees, because
these were not in line with the review of salaries in the civil
service which had been made in April, 1988, and with the review in
"other para-statal organization."

This dissatisfaction led to a written protest which

was signed by a large number of employees, and delivered

to the management of Lesotho Flour Mills late in the

afternoon of Friday, 30th September 1988. This document,

after expressing the grievance of the signatories, ended
with the sentence:

"We decide therefore that until we shall have
received a satisfactory answer, we will suspend out day to day work."

Because of certain holidays, the next working day

was Wednesday 5 October. There is a dispute of fact
about exactly what took place on the three days 5-7 October to which
I shall
revert at a later stage in this judgment. But it is common
cause that on 10 October,

Lesotho Flour Mills sent letters to 318 employees summa-

rily dismissing them from their employment. Included

amongst these were the four appellants.

The ground given for the dismissal was that the
recipients of the letters had! wilfully disobeyed a law­ful
instruction from management
to report to work and resume their normal
duties.

/On

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On 18 October 1988 the present appellants launched an
application in the High Court, as a matter of urgency citing as
respondents
the General Manager of Lesotho Flour Mills, the Chairman
of its Board of Governors, Lesotho Flour Mills, The Minister of
Agriculture,
Co-operative & Marketing, and the Attorney-General
in his capacity as the principal legal advisor to the Government.

The substantive relief claimed was

(i) that the decision of the First Respondent to
dismiss them summarily be set aside;

(ii) that they and other employees who were

summarily dismissed be re-instated and/or re-engaged in
the employment of the Third

Respondent;

and

(iii) that the trade dispute between the employees and
Lesotho Flour Mills be referred for set­tlement in terms of
sections 54
to 57 of the Trade Unions and Trade Disputes Law, 1964.

The case made out in the founding affidavits was

(i) that the dissatisfaction with the salary increments
and the consequent presentation of a written document by the
employees had
led to a trade dispute;

(ii) that although the employees had initially

not presented themselves for work on 5 October, they had
later gone back to work on that day;

(iii) that when they presented themselves for work on 6
October, they found that the gates had been locked, and that they
were not
allowed to enter the premises of Lesotho Flour Mills;

(iv) that on 7 October,management had indicated that
only those employees who signed a docu­ment in which they agreed
to return
to work on the existing terms! and condition of pay­ment
and work, would be allowed back on the premises, whilst those
employees
who refused to sign the document would render themselves
expelled from work.

It was contended that this action by Lesotho Flour Hills
constituted' a lock-out with the intention of compelling or inducing
employees
to agree to the terms dictated by the manage­ment, and
as the necessary procedural steps prescribed in Part X of the Trade
Unions
and Trade Disputes Law of 1964 had not been followed

/the

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the lock-out was illegal. From this it followed that the
instruction to [the employees to return to work on the existing
[terms and
conditions was itself wrongful, and failure to comply
therewith could not be a valid ground from summary dismissal.

The Respondents contested these assertions. They

claimed that as from 5th October, the employees had gone
on strike, and that as the necessary procedural steps had not been
followed,
the strike was illegal. They denied that the employees had
been willing to go back to work, but stated on the contrary that they
had determined to prevent the normal functioning of the operations of
the mill, and had on the afternoon of 5 October threatened
and
menaced the crew of a bakery vehicle who had called at the mill to
pick up supplies of flour. They denied that the employees
had been
locked out with the intent of trying to coerce them to accept the
demands of management, and asserted that the true reason
was that
they had a genuine apprehension th,?.t

if the striking workmen were left at large within the

mill premises, the situation might degenerate into acts

of violence causing danger to life and property.

The application was heard in the High Court by Mr.
Justice Lehohla, who dismissed the application, save for the first
prayer, which
had asked for leave to proceed as a matter of urgency
and dispense with the forms and

service provided by the Rules;'

Appeal was then noted to this Court on a number of
grounds; but when the matter was called, counsel for

appellant indicated that as there were a number of
disputes of facts raised on the papers, he was confining himself to
arguing only
two points, namely :-

(a) that it was common; cause on the affidavits that the
employees had gone back to work on 5 October, and accordingly the
strike
had ceased, and therefore the subsequent action taken by the¹
[management constituted a "lock-out".

The consequence of; [this was that, on the basis of the
common facts, the order to the employees to resume work would not
have wilfully
been disobeyed;

/and

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and (b) that as Lesotho Flour] Mills was really the
Government of Lesotho trading under that name, the Appellants were
subject to
the provisions of the Public Service Order, 1970, section
19(1) of which provided that the power to remove persons

holding "public office" from such office could
be exercised only after consultation

with the Public Service Commission.

Was it common cause that there was an unlawful lockout.
and was the order to return to work wilfully disobeyed?

It was accepted by Appellants' counsel that in

order to determine what facts are common cause, for

purposes of his argument, the Court must accept as

correct the averments made in the affidavits filed by
the 5 Respondents together with such facts in the applicants'
affidavits as
have not been controverted.

Once this basis is accepted, then it is clear that

the first submission is untenable. The affidavits filed

by Respondents leave no room for doubt that they were

asserting that the employees were refusing to go back to

work on 5 and 6 October, and that they were locked out

on 6 and 7 October because of a perceived threat to the

safety of the premises. These allegations are contained

in paragraph 20 of the affidavit of Mr. Banford, and
when

confronted by them, Appellants' counsel was not able to

persist in the contention that the contrary was "common

cause".

Were the employees subject to the provisions of the
Public Service Order, 1970?

As has already been indicated, the Lesotho Flour Mills
is really the Government carrying on business under that name. It is
the real
employer of the Appellants. But does it necessarily follow
that the Appellants and

their fellow employees are "public officers"
within the meaning of the Public Service Order?

"Public Officer" is defined in sec. 2(1) of
the Public Service Order as meaning "a person holding or

/acting

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acting in any public office", and "public
office" is in

turn defined as meaning "any office of emolument in
the

public service."

To ascertain what is an "office of emolument"
one

must turn to the Public Service Regulations, 1969, which

deal comprehensively with the public service, including

such matters as appointment, promotion, posting,
termi­nation of appointment, salary, increments, retiring

benefits, annual holidays, sick leave, housing, medical

attention and allowances. The matter of "emoluments"
is

dealt with in reg. 401, which refers to the emoluments

"that have been prescribed in the establishment
list in

respect of that office...."

It is however common cause that the employees of Lesotho
Flour Mills are not paid, in respect of their

services, amounts which have been prescribed in any
establishment list. They were all engaged under condition of
employment which
are set out in a written document, and are paid
salaries. The conditions of employment deal with matters such as
discipline, maternity
and sports leave,

pension scheme, leave provisions, termination and so on.

These are not the same provisions as apply to the public

service, but are specific to Lesotho Flour Hills.

According to the affidavit of Mr. Banford, the employees

of Lesotho Flour Mills have been the recipients of
several

perks not available to public officers, and at no point

during the existence of Lesotho Flour Mills was any
account

taken of the salary structures of the public service in
fixing their salaries.

It is not necessary for us to consider to what extent.

the Government may employ persons to perform duties in
the

furtherance ox government activities without appointing

them to the public service. It would in any event be-

inappropriate to do so on the present papers as this

point has not been raised or canvassed in the
affidavits.

suffice it to say that whether or not the Government
should

have appointed the employee's of Lesotho Flour Mills to
the

public service establishment, it has not been
established

/that

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that it did so, and for some years now, such employees

have been serving the Government under conditions of

employment different from these which apply in the
public

service. In some respects, they may have been better
off

than their counterparts in the public service, in other

respects, they may have been worse off. But they are not

the holders of any office of emolument, and are
therefore not entitled to the benefit of sec, 19(1) of the Public

Service Order.

Application of the "audi alteram" rule.

At the suggestion of the court, counsel considered

whether - inasmuch as the appellants, even though not

officers in the public service, worked for the
Government

and had certain pension rights and legitimate
expectations -

they had before being dismissed, been given adequate
notice

that management was considering taking such a step
against them, and an adequate opportunity of being heard as to why
such step should
not be taken (cf. Mokoena and Others v.
Administrator, Transvaal, 1988(4) SA. 912 (w)).

What is adequate in these respects must always

depend on the circumstances. It is basically a question
of fairness. In this case the workers outside the gates

of the Mill on 7 October were] - according to the
Bandford's

affidavit - warned on more than one occasion that if
they

did not return to work, they would be dismissed, and
wore afforded the opportunity to return to work. They wanted to
negotiate fresh
terms of employment; but did not seek to advance any
reasons why, if they continued in their refusal to return to work on
the conditions
prescribed by management, they should not be
dismissed. Counsel

for the Appellants was invited to suggest what they
could

possibly have said in this regard but was unable to

suggest anything. In the circumstances, I consider that
appellants and the other employees were given adequate

notice of the intended action against them, and had a
fair

opportunity to make representation of management if they

wished.

/In the

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In the result the appeal fails, and appellants are
ordered to pay the costs thereof.

Signed S. Aaron

Judge of Appeal

I agree

Signed I. Mahomed

Judge of Appeal

I agree

Signed C. Plewman

Judge of Appeal

Delivered at MASERU this 26th day of January, 1989.

For the Appellants : Mr. Matsau

For the Respondents : Mr. Tampi.