C OF A
(CIV) No.13 of 1992

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

MOSALA
KHOTLE Appellant

and

ATTORNEY-GENERAL
Respondent

HELD AT
MASERU Coram:

MAHOMED P.

STEYN J.A.

BROWDE. J.A

JUDGMENT

BROWDE
J.A.

On 11
July 1980 the appellant and the Ministry of Works entered into an
agreement in terms of which the appellant was employed by
the
department of Works of the government of Lesotho as a Technical
Officer. The appointment was agreed to be "on temporary

month-to-month terms" and either party was given the right to
terminate the appointment by giving one calendar month's notice
of
termination to the other party.

On or
about the 11 July 1984 the appellant was promoted to the position of
vehicle examiner in the Ministry of Transport and Communications
a
position he was holding on 27th August 1986 .

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On that
date a letter was addressed to the appellant by the principal
secretary of the Ministry instructing him to "proceed
on
unrecorded leave until further notice". There then followed a
letter addressed to the appellant by the principal secretary
and
dated the 28th November 1986. As it is this letter which gave rise to
this appeal I quote it in full:

"Dear Mr. Khotle,

It has been decided that your probationary terms of appointment be
terminated in terms of paragraph (5) of your letter of offer
of
appointment. The effective date is 1st December, 1986. Your leave
shall be taken concurrently with the period of notice. Wishing
the
best of luck in future,

Yours sincerely,

M. MOHALENYANE FOR PRINCIPAL SECRETARY"

PUBLIC SERVICES (PERSONNEL)"

The
"probationary terms" apparently related to the "temporary
month-to-month terms" in the letter of appointment
and paragraph
(s)" to paragraph (e) of that letter prescribing the one month
calendar notice of termination. It will be readily
seen, and indeed
it is common cause, that the letter of termination does

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not give
one month's calendar notice. On 18th May 1987 the appellant brought
an application before the court a quo in which he asked
for the
following relief against the respondent in his capacity as the legal
representative of the Lesotho Government

1. Declaring
   applicant's dismissal of the 28th November 1986 null and void;

   
   

2. Directing
   Respondent to re-instate applicant in the position Applicant held
   prior to the said dismissal;

   
   

3. Directing
   Respondent to pay Applicant's ,

   
   

salary with effect from the date of the said dismissal to date;

4. Directing
   the Respondent to pay the costs of this application;

   
   

5. Granting
   Applicant such further and\or alternative relief as this Honourable
   Court may deem fit".

   
   

The main
basis for the application was the insufficient notice given in the
letter of termination.

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In answer
to the founding affidavit the respondent relied on a letter which was
addressed by the Ministry of Public Service (Personnel)
to the
appellant and which is alleged by the respondent to have superseded
the letter of 28th November 1986.

It is
dated the 3rd March 1987 and reads:-

"Dear Mr. Khotle<

I regret to inform you that your temporary appointment on
month-to-month terms has been terminated in accordance with clause
(e)
of your letter of appointment.

The effective date of this termination is,1st December 1986 and you
will be paid one month's salary in lieu of notice, and any
leave due.

Yours sincerely.

Ministry of Public Service (Personnel)'

In the
court a quo Molai J. found that the appellant was not given one
calendar month's notice as was required by the contract of
employment
a finding which, in my view, cannot be assailed. It was strenuously
argued before us by Mr. Mapetla who appeared for
the respondent that
the defective notice given in November 1986 was put right by the
letter of March 1987. The argument is,

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however,
without substance. The March letter persists in the effective date of
termination being the 1st December 1986 and consequently
the
appellant was at no time given the notice he was entitled to in terms
of paragraph (e) of the agreement. Molai J. in the court
a quo, came
to the conclusion that although the termination was "wrongly
effected it was not a nullity" and that, therefore,
the
appellant's proper remedy was an action for damages. On that basis
the learned Judge dismissed the application with costs.
With respect
I think that that was a wrong approach. Once the notice was
insufficient the purported dismissal'was a nullity and
as the
invalidity of the notice was disputed the appellant became entitled
to the declaration sought in terms of prayer (a) set
out above. In
this regard see KOATSA KOATSA v. THE NATIONAL UNIVERSITY OF LESOTHO C
of A (CIV) 15\86. Once there was no dismissal
there is no question of
reinstatement and prayer (b) was, therefore, not necessary. As far as
the payment of unpaid salary is concerned
I think it would be unfair
to make the award sought by the appellant if, for example, he has
been in other employment since the
purported dismissal. This claim is
properly one for damages and as we have no information whatsoever on
the subject the issue must
be decided in another forum.

Consequently
I would uphold the appeal with costs and substitute the order of the
court a quo with the following

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order:-

The
declaration sought in paragraph (a) of the notice of motion is
granted with costs.

(Signed):

J. BROWDE

JUDGE OF
APPEAL

I agree,
and it is so ordered

(Signed):

I.
MAHOMED

PRESIDENT

I agree
(Signed):

J.H.
STEYN

JUDGE OF
APPEAL

Delivered
at Maseru this 22nd day of JANUARY, 1993.

For the
Appellant :

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For the
Respondent: Mr. Mapetla