HIGH COURT OF LESOTHO
LIEKETSENG MOLELLE Applicant
COMMISSIONER 1st Respondent
(LESOTHO) (PTY) LTD 3rd Respondent
by the Honourable Mr. Justice J.L. Kheola on the 20th day of
20th February, 1991 the applicant moved an ex carte application and
obtained a Rule Nisi couched in the following terms:
"1. Rule Nisi, returnable on the 1st day of March, 1991, be and
is hereby granted calling upon the Respondents to show cause,
periods of notice prescribed by the Court Rules shall not be
dispensed with on the ground of urgency of this application
1st Respondent or his subordinates shall not be restrained and
interdicted from paying to the 3rd Respondent or to any other
whosoever certain monies which are yet to be ascertained by the
Applicant and which are due and payable by the 1st Respondent
heir of the late Malefetsane Molelle following his death on the
South African mines
1st Respondent shall not be directed to pay to the Applicant
forthwith the monies referred to in the preceding paragraph
the event of payment having been effected, directing 3rd Respondent
to pay the said monies to Applicant forthwith
Respondent shall not be committed to prison for flouting the order
of this Court dated 23rd July, 1990.
Prayer 1 (b) herein operate with immediate effect as an interim
several extensions of the rule the matter was finally
before me on the 27th August, 1991 when I reserved judgment and
extended the rule to to-day.
founding affidavit the applicant avers that on the 25th September,
1988 her husband Malefetsane Molelle, who was a mineworker,
Denmark Colliery in the Republic of South Africa. Following her late
husband's death certain monies became payable to his
heir but since
his heir was still a minor under her guardianship such monies became
payable to her. She avers that she has been
advised by the officials
of the third respondent, whom she verily believes, that the monies
paid by a mine in respect of the death
of a mineworker fall into
categories and are paid in stages according to their categories and
not at once as a lump sum. When the
mine sends such monies it advises
the third respondent and instructs it to inform the deceased
mineworker's heir or next-of-kin.
The actual payment is made by the
first respondent who liaises with the third respondent.
applicant avers that on or about the 18th October, 1990 one Mr.
Mzamo, an official of the third respondent sent for her to come
receive another category of monies payable in respect of her late
husband's death. On arrival he gave her some documents which
she should give to the first respondent. One Mr. Kolobe sent her back
to Mr. Mzamo to affix his signature to the documents
he had given
her. At third respondent's offices Mr. Mzamo said he could not sign
the papers because he had just received a telephone
call from the
first respondent's subordinate
that he was sending the money back to Mr. Mzamo for onward
transmission to Denmark Colliery as it had been sent by mistake.
said the caller advised him that he had already paid that category of
money . Mr. Mzamo expressed surprise at the attitude of
respondent's subordinates and said that the money in question had
been paid following his reminder that it had not been
applicant denies that he has already received this money and alleges
that the intention of the first respondent and his subordinates
always to punish her or make her sweat before they can pay her monies
in respect of her late husband's death. Before they released
first category of money due to her, she was bound to move this Court
in CIV\APN\112\90 for an order directing the first and
respondent to pay the said money to her. She is now apprehensive that
the first respondent and his subordinates will send
the money back to
the mine as they told Mr. Mzamo.
opposing affidavit Mr. Tsoene Kolobe, the Deputy Labour Commissioner
and the Acting Labour Commissioner avers that it is
correct that some
monies are paid by the first respondent, and such monies are Estate
Monies, Unclaimed Wages and Compensation
Monies. The monies which
were paid by his office to the applicant were made up of the monies
mentioned above, and those are the
monies which are to be paid by his
office and they were paid in full.
Kolobe avers that his office received a voucher from the third
respondent. On the same voucher was reflected an amount of M1392.70.
It was a deferred pay voucher (See Annexure "TK1"). The
voucher was not accompanied by any money at all. Upon perusing
records it emerged that the same amount of M1392.70 being for
deferred pay was included in the money which was paid over
office from South Africa which in turn was paid to the applicant.
(See Annexure "TK2" and "TK3"). The
forming Annexure "TK3" collectively add up to M2464.01
which figure is the same as in Annexure "TK2".
then sought clarification from the third respondent regarding what
appeared to be an obvious double payment of deferred
pay. They wanted
to know whether the voucher for deferred pay had not been sent to his
office by mistake. It was unusual that deferred
pay was forwarded to
his office and that is the reason why in Annexure "TM3" is
written "estate payment". The
investigations revealed that
Annexure "TK1" was sent to his office by mistake (See
that the applicant did receive the money reflected in Annexure "TK1"
and she was told by his office on several
occasions that the said
money was included in the monies she received from his office
pursuant to Annexure "TK2" and
"TK3" and these
monies were paid in compliance with the Court Order Annexure "MLM1"
to the applicant's founding
affidavit. The question of contempt of
court does not arise because all the monies due for payment to the
applicant have been paid
difficulty which the applicant is facing is that she is relying on
what Mr. Mzamo (an employee of the third respondent)
is alleged to
have told her. For some reason she has not approached him and asked
him to make an affidavit to prove what he is
alleged to have said. I
think his evidence would have been of vital importance on the
question whether or not Annexure "TM1"
was accompanied by
any money when it was sent to the first respondent. The first
respondent alleges that the voucher Annexure "TK1"
accompanied by any money. His evidence is confirmed by the mine in a
telefax dated the 22nd February, 1991 faxed to the
Manager of the
third respondent and attention to Mr. E. Mzamo.
telefax (Annexure "TK4") the mine makes it quite clear that
the amount of R1392.70 reflected on L.C.D.P. voucher
No. 8427 was
included in the payment of R2464.01 which was paid over to the first
respondent as reflected Annexure "TK2"
dated the 7th
December, 1988. Voucher No.8427 was reported lost and Annexure "TK1"
was issued to replace the lost voucher.
The total amount which was
due to the applicant was R2464.01.
common cause that the applicant has already received the amount of
R2462.01 which is the total amount due to her in respect
of the death
of her husband. The circumstances under which Annexure "TK1"
was, issued have been thoroughly explained
by the mine in Annexure
"TK4". It was issued under the mistaken belief that the
original voucher No.8427 in respect of
the same amount of
was lost. We now know that the same amount was included in Annexure
"TK2" and that it was paid to the applicant
"TK3" which consists of three Pay Advice Forma. The first
one is for an amount of M130.00, the second one
is for M991.21 and
the last one is for M1342.80. When the amounts appearing in Annexure
"TK3" are added they make a total
of M2464.01 which was the
total amount due to the applicant in respect of the death of her
papers before Court the applicant has repeated several times that she
does not know how much money is due for payment to
her. She repeated
that she is still in the process of ascertaining the exact amount.
She has failed to come up with any figure
till the case was heard.
She cannot rely on an obvious mistake and insist that the money which
has been paid to her should be paid
again because some official of
the third respondent as well as official of the mine made a mistake.
In order to succeed she must
prove on a balance of probabilities that
the respondents owe her some money. Even if she could not be sure of
the exact sum of
money, she ought to have proved that the respondents
omitted to pay her some money under a particular category. According
"TK2" the monies due to the applicant's husband
fell under two categories, namely the wages due and deferred pay due.
The monies due under the two categories have been paid to the
applicant in full.
convinced that all the monies due for payment to the applicant have
been paid in full by the respondents.
result the rule nisi is discharged with costs.
Applicant - Mr Mafisa
Respondents - Mr. Putsoane
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law