C. OF
A.(CIV) NO.18 OF 1992

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

'MALIPUO
MAKARA Appellant

and

O.K.
BAZAARS LESOTHO (PTY)LTD Respondent

HELD AT
MASERU

Coram:
Mahomed P

Steyn J.A.

Kotze J.A.

JUDGMENT

Mahomed
P,

The
appellant brought an application in the Court a quo for an order
declaring that her dismissal from the employment of the Respondent
on
the 27th of April 1990 was "null and void", and an order
directing the respondent to pay the Applicant's salary with
effect
from the date of the "purported" dismissal. This
application was dismissed by Molai J with costs.

The
applicant had been in the employment of the respondent since the 27th
of June 1981 originally as a shop assistant and since
December of
1989 as a "till operator". She was still

2

employed
in that capacity on the 26th of April 1990, when certain monies of
the respondent under the control of the appellant disappeared.

The
appellant explained that she was busy "cashing up" the
moneys in the discharge of her functions on the afternoon of
the 26th
April 1990. For this purpose she removed the top drawer in the till
and started to count the cash. She first counted the
bank notes which
were in denominations of R10, R20 and R50 and reflected the relevant
figures on the "cash count". The
same was done with the
cheques and credit card slips in her possession.

She then
started counting the "small change". She said:

"When I was counting the small change somebody passed and when I
raised my head this person had just jumped over the chain
for people
not to pass through. I asked who is that jumping over the chain here.
Mr. Matojane he answered can't you see him, he
is Johny. I did not
come to my mind to check the money after he had passed as he was one
of the staff. I went on counting the change
as I had not finished,
until I had finished I took the change bag and put the change into
the bag and tried to put the lock in.
After that I remembered the
other bag is not there at all. I decided to take the plastic bag to
put the notes in it to go to the
cash office where I was going to ask
for the money bag. It was by that time I realized when looking at the
notes something was
wrong by the gap by the R20 notes. There was only
one note of R20 left. I was surprised I said Lizzy where are my R20's
I don't
see my R20's they are no more there. Lizzy was only
surprised".

What went
missing were 77 R20 notes amounting to R1540.

3

The
appellant reported the matter to the till supervisor and the
respondent's Branch Manager, Mr. Woods then commenced an inquiry
the
next day.

Detailed
interviews were conducted and full statements obtained from eight
employees of the respondent, including the appellant
herself.

The
statement made and signed by the appellant runs into some six pages.
The appellant was expressly informed that it was "a
very serious
matter" and that Woods wanted to give the appellant

"this opportunity to place anything before me that could help me
in making my decision":

The
appellant took the opportunity by setting out her version of the
circumstances under which the missing bank notes under her
control
disappeared on the previous day. I have already referred to the
substance of that version previously.

Towards
the end of this interview Mr. Woods indicated that he would need some
time to "think" about the matter and make
his decision. The
appellant reacted as follows

"You took my statement and its up to you to make your decision.
Its after your decision that I can see if I can take the matter
or
leave it".

At about
5 p.m. on the same day the appellant was informed

4

that her
duties had been terminated and she was then given a letter which
reads as follows :-

"Ms S. Makara Staff No. 2339374.

TERMINATION OF EMPLOYMENT

Your employment with the OK Bazaars(Lesotho) Ltd is hereby terminated
for Gross Negligence.

You will receive one month Notice pay, Severance pay and all monies
due to you with immediate effect. Pension will be paid from
OK
Pension Fund.

Yours faithfully,

Norman Woods

GENERAL MANAGER."

The
decision to terminate the appellant's employment in terms of the
notice, was prompted by the Respondent's conclusion that although
the
respondent had not been dishonest in any way whatever, she had been
grossly negligent.

It was
submitted on behalf of the appellant that this notice terminating the
appellant's employment was unlawful.

The
provision of the Employment Act No.22 of 1967 ("The Act")
are relevant in considering this submission.

Section
13(1) (a) of the Act provides inter alia that a contract of
employment in terms of which wages are to be paid at a monthly
rate
is determinable by either party on not less than one

5

month's
notice".

Section
14(4)(b) of the Act gives an employer the right to terminate a
contract of employment by paying to the employee in lieu
of notice a
sum equal to what the employee would have earned during the notice
period.

Section
15 of the Act, gives to an employer the right summarily to dismiss an
employee (without notice or the payment of monies
in lieu of such
notice in terms of section 14(4) (b)) in certain cases enumerated in
Section 15(3).

In the
present case, the respondent did not attempt to invoke the machinery
of summary dismissal provided for in Section 15, apparently
because
the appellant had not been found guilty of dishonesty of any kind.
The respondent decided, however, to terminate the appellant's

contract of employment in terms of Section 14(1)(a) read with Section
14(4)(b) by paying to the appellant "one month notice
pay,
severance pay and all monies due to you with immediate effect".

It was
contended on behalf of the respondent that the letter of the 27th of
April, in these circumstances constituted a lawful termination
of the
appellant's employment.

6

Counsel
for the appellant submitted however, that where the true reason for
the decision to dismiss an employee, is the conclusion
that the
employee concerned has indeed been guilty of some "misconduct"
(or conduct of a nature seriously inconsistent
with the proper
discharge of his duties,) the right of an employer to terminate the
contract of employment in terms of Section
14, can only be exercised,
if such an employee is given a fair opportunity of being heard on the
issue as to whether or not he
has in fact been guilty of such
conduct.

For this
proposition. Counsel for the appellant relied inter-alia on the case
of Koatsa Koatsa v. The National University of Lesotho
(C. of A.
(CIV) No. 15 of 1986)

Counsel
for the respondent contended however that the employer in Koatsa's
case was a public employer whose statutory discretion
had to be
exercised, in certain circumstances fairly, and by observance of the
audi alteram partem principle, but that no such
duty was imposed on a
private employer who had otherwise satisfied the relevant
requirements of Section 14 of the Act,(unless there
was any
contractual provision which created such procedural obligations upon
him.)

Some
support for this submission appears in some remarks which appear in
the majority judgment in Koatsa's case at pages 11 - 14.
These
remarks were, however, clearly obiter (because the employer

7

in that
case was not a private employer) and it may, perhaps be necessary in
the future to consider, whether even a private employer,
in certain
circumstances, might not have a duty to afford a fair hearing to an
employee whose contract he intends to terminate
because of conduct on
the part of the employee which he considers to be sufficiently
serious to justify such a course. (See Collins
"Market Power,
Bureaucratic Power and the Contract of Employment (1976) 373;
Unpublished Inaugural Lecture of Professor Martin
Brassey November
1992 to be published in 1993 SAW; Napier: "Judicial Attitudes
towards the Employment Relationship" (1977)
6. ILJ. UK at 17;
C\f Embling v Headmaster, St Andrews College Grahamstown 1991 (4) SA
458(E); Monckten v. British South Africa
Co. 1920 A.D. 324).

It is,
however, quite unnecessary for the purposes of the present case to
pursue this interesting debate, because, even if I were
to assume in
favour of the appellant, that the respondent was, in the
circumstances of the present case, under a duty to apply
the audi
alteram partem before deciding to invoke its right to terminate the
employment of the appellant, that duty was indeed
sufficiently
discharged on the evidence in these proceedings.

This is
manifest from the express and very full opportunity which was
accorded to the appellant, to give to Mr. Woods "anything
that
could help" him in making his decision. The version advanced by
the appellant was carefully assessed by relevant questions

8

directed
to her and by interviews conducted with seven other employees. The
version of the appellant was not rejected: effectively
what the
respondent did was to hold that on the appellant's own explanation
she must have been negligent because 77 bank notes
of R20 each could
simply not disappear if she had locked them in the till, or kept them
under proper observation while she counted
the "Small change".

Counsel
for the appellant contended that the requirements of the audi alteram
partem rule were not fairly observed because Mr. Woods
who conducted
the inquiry did not communicate to the appellant evidence or
information adverse to her contentions, I invited Counsel
for the
appellant to demonstrate from the statements made by other employees
of the respondent, (or from the reasons given by it
for the decision
which it ultimately took to dismiss the appellant,) any specific
information adverse to the version of the appellant
which was taken
into account by the respondent and which was unfairly withheld from
the appellant at the inquiry.

No such
demonstration was forthcoming. The complaint against the appellant
was fairly articulated to her on behalf of the respondent
and the
information which the respondent obtained from the other witnesses,
did little more than to confirm what was substantially
common cause -
the fact that the bank notes concerned disappeared virtually from
under the nose of the appellant, while

9

she was
counting the "small change". The finding of negligence upon
which the respondent relied, was simply an inference
from this
central fact.

It is
true that there were some assertions in the statements of some of the
other employees which tended to refute the suggestion
made by the
appellant, at some time, that the person who might have taken the
missing moneys while the appellant was busy with
the counting, was
one Nkosi. But the identity of the person who might have taken these
monies was really irrelevant to the finding
of negligence which was
made by the respondent against the appellant. Whether or not, it was
Nkosi or any other person who removed
these monies, this could only
successfully be effected, if the appellant did not keep a
sufficiently watchful eye on the monies
while she was busy with the
counting. The respondent was entitled to consider this to constitute
gross negligence in the circumstances.
The Deputy Labour Commissioner
to whom the appellant later complained was also constrained to agree
that the appellant was indeed
negligent.

In these
circumstances I am unable to agree with the submission that the audi
alterant partem rule was not properly applied in this
matter.

The audi
alteram partem rule is a rule of flexible content. Its fundamental
object is to ensure that the procedure which is

10

adopted
before any action is taken against any person affecting legitimate
interests, is really fair. What will be fair in a particular
case,
will depend on the circumstances of that case b as Colman J. observed
in the case of Heatherdale Farms (Pty) Ltd Deputy Minister
of
Agriculture 1980(3) SA 476 at 486 -

"It is clear on the authorities that a person who is entitled to
the benefit of the audi alterant partem rule need not be
afforded all
the facilities which are allowed to a litigant in a judicial trial.
He need not be given an oral hearing, or allowed
representation by an
attorney or counsel; he need not be given an opportunity to
cross-examine; and he is not entitled to discovery
of documents. But
on the other hand (and for this no authority is needed) a mere
pretence of giving the person concerned a hearing
would clearly not
be a compliance with the Rule... What would follow... is, firstly,
that the person concerned must be given a
reasonable time in which to
assemble the relevant information and to prepare and put forward his
representations; secondly he must
be put in possession of such
information as will render his right to make representations a real,
and not an illusory one."

Fundamental,
however, to the proper application of the rule are two requirements :
Firstly notice of the intended action to the
party affected and
secondly a proper opportunity for him to present his case.

In my
view both these requirements were satisfied by the procedure adopted
by the respondent, before the decision was made to terminate
the
applicant's employment.

The
appeal must therefore fail. In argument, the respondent

11

indicated
however that it would not move for the costs of the appeal against
the respondent.

In the
result I make an order dismissing the appeal.

Dated at
Maseru this day of January, 1993.

I.
MAHOMED

PRESIDENT
OF COURT OF APPEAL

I agree

J.A.
STEYN

UDGE OF
COURT OF APPEAL

I agree

G.P.C.
KOTZE

JUDGE OF
COURT OF APPEAL