HIGH COURT OF LESOTHO
AGRICULTURAL DEVELOPMENT BANK Respondent
by the Honourable Mr. Justice J. L. Kheola on the 19th day of April.
applicant is applying for a declaratory order couched in the
Applicant's dismissal by Respondent null and void;
Respondent to re-instate Applicant forthwith to the position he held
immediately prior to his dismissal with Respondent
Respondent to pay Applicant's salary with effect from the date of
dismissal to the date of re-instatement;
Respondent to pay interest at the rate of 18% with effect from date
of dismissal to date of payment;
Respondent to pay the costs hereof;
Applicant such further and\or alternative relief.
applicant was appointed by the respondent as a Credit Manager on the
21at June, 1983. After a six months' probationary period
admitted to permanent establishment on the 28th May, 1984.
9th February, 1985 he was assigned to the position of Assistant
Director, Monitoring and Evaluation with effect from January,
On the 30th June he was promoted to the position of Director of
Loans. This is the position he held till the 7th November,
he was dismissed.
trouble between the applicant and the respondent started on the 19th
August, 1991 when the Managing Director of the respondent
the applicant to hand over his work to Mr. M. Phoofolo and to furnish
the Managing Director with a handing-over report
within two weeks
starting from the 20th August, 1991. The applicant says that be was
not told the reason why he had to do this
sudden handing over.
29th August, 1991 the applicant was directed by the Managing Director
to immediately proceed on leave. The applicant alleges
that at that
time he had not finished handing over his work to Mr. M. Phoofolo.
The leave was extended about twice
7th November, 1991 when the applicant was dismissed.
1st October the Managing Director of the respondent wrote a letter to
the Applicant demanding some explanation on certain
letter reads as follows:
The Lesotho Agricultural Development Bank has lost 2 tractors (MF 240
registration C 3171 and IH 684 -registration A 1212) as a
your negligence and disregard of the Banks established procedures and
practice, that repairs of the Bank's tractors be
carried out by well
known and reputable garages. To your knowledge the approved garages
for this purposes were only Lesotho Tractors,
Maluti Earthmoving and
TOU and yet you, without the authority of management, sent the two
tractors mentioned above to Lichaba Ts'ilo
in whose possession the
two tractors have now disappeared. I understand that you are unable
to locate Lichaba Ts'ilo to regain
possession of the Bank's two
tractors and yet you have authorised the payment of M28,000.00.
In the circumstances the Bank has lost two tractors and M28,000.00 as
a result of your negligence and incompetence to perform your
efficiently contrary to Regulation 21.2 of the Personnel Regulations.
Alternatively your failure to account for the Bank's
funds and assets
mentioned above is in breach of Regulation 21.3. I offer you an
opportunity to give me reasons why I cannot recommend
to the Board
that your services with the Bank be terminated on the grounds of your
negligence on the abovementioned tractors.
I shall expect your written response by not later than 4.p.m. on 3rd
Secondly, on 8th May 1991 you wrote a letter to Lesotho Retail
Services (Pty) Ltd in which you falsely called yourself this Bank's
"Credit Manager" when in fact and in truth you were a
"Loans Director" which act or activity of yours is or
be in conflict with the interest of the Bank,
In regard to this matter of the latter of 8 May 1991 to Lesotho
Retail Services you deliberately falsified the loan amount that
Board had authorised by saying that an amount of M870,722.4 5 had
been given and yet you knew very well that the Board had
In regard to this matter of the letter of 8th May 1991 you addressed
to Lesotho Retail Services (Pty) Ltd I invite you to furnish
an explanation or reasons why I cannot recommend to the Board that
your services be terminated on the grounds that you
acted in breach
of regulation 21.3.
Please furnish me with your written explanation of reasons, if any,
by not later than 4.00p.m. on 3rd October, 1991.
to the above letter the applicant gave a very full and comprehensive
explanation in his letter of the 1st October, 1991.
The letter reads
MR. C.S. MOLELLE
I wish to
refer to your letter dated 1st October 1991. Prior to responding to
the rest of your statements and questions in the body
of your letter
I would like the following points to be crystal clear to you:-
1.0 It is absolutely incorrect to state that the two tractors viz; Mf
240 registration number C 3172 and International Harvester
registration no. A 1212 got lost as a result of negligence and
incompetence on my part. Indeed this is a serious allegation.
2.0 To my knowledge there is nothing like approved garages for the
purpose of repairs. If there is something like that could you
me with Authentic Proof, May I remind you, sir, that individual
mechanics and garages whose service and prices for repairs
to be reasonable are the ones who helped repair tractors and other
forms of machinery.
3.0 To show you that Lichaba Tsilo was no stranger to the Bank as
implied to your letter, one of your former branch managers namely
Lucy Mokoma approved a loan to the tune of M28,000.00 to help him
meet his working capital requirements. The very same Lichaba
the one who once launched a complaint to Messrs Z. Sello and B.
Leleka that I was making things difficult for him to obtain
facility. You will note that two tractors you are referring to are
not the first ones to be repaired by Lichaba Tsilo. In
you repeatedly state that you will expect my written response not
later than 4.00p.m. on 3rd October 1991 yet you know clearly that you
forced me to go on leave as a result of which I should have
to files, ledger cards and other forms of documentation to help me
respond to your statements and questions. At any rate
I wish to
respond briefly as follows:-
1.0 The incidence of the two tractors repaired by Lichaba Tsilo,
which are still in his possession was reported to the Police (you
refer to Police Officers\Authorities like Messrs Malephane, Lesiamo,
Penane and Trooper Matela). Bank officers who worked closely
on matters relating to tractors and other forms of machinery are
Messrs Lekaota and Mahlatsi. You may resort to them as
a source of
information. Messrs Z. Sello and B. Leleka know something about the
incidence. Mr. Hlaele (Security officer) can also
supply you with the
information you require.
2.0 On the question of a letter dated 8th May 1991 to Lesotho Retail
Services, again you know the kind of answer I gave you on
August 1991. Once more I said you instructed me verbally that the
amount to be approved for Lesotho Retail Services would
be in the
region of eight hundred thousand maluti (M800,000.00) and
disbursement of loan funds would be staggered. And I also made
clear that in order for me to respond properly and confidently I
should have access to the files and ledger cards of Lesotho
Services. Now for your information, on the very same day (27\8\91) at
11.45 a.m. I asked
for the ledger cards but to my shock I was told that such ledger
cards are with Tony de Freitas who was busy inspecting them. After
few minutes I again asked for the cards but this time I was told that
the cards are with Mr. Molelle. On the 29th August, 1991
Phoofolo told me that he was instructed to inform me that I am
restricted to have access to the customers' files and
At this juncture would you be amused that I have not falsified the
loan amount granted to Lesotho Retail Services.
Should you check
thoroughly you will find that the amount approved and disbursed for
Lesotho Retail Services is by far more than
M495,549.86 said to be
authorized by the Board of Directors. Why?
3.0 Regarding the question of signing the said letter as Credit
Manager it is quite clear and evident that the loan officer namely
Sello Ntonyane drafted the letter for me and when I attached my
signature I was not aware of the title Credit Manager. Sir, that
not intended to falsify my position. However I wish to make you aware
that when I first served the Bank I was appointed to
the position of
Credit Manager. Could you refer to a letter dated 21st June 1983 from
the former Chief Executive Officer of the
Bank - Mr. G.R. Mashape,
for more information.
4.0 Mr. Molelle, please, note carefully that it is not my duty to
furnish you with reasons why you cannot recommend to the Board
my services be terminated. That is left to your own discretion.
I wish to conclude by asking you the following questions:-
accordance with your two letters respectively dated 29th August 1991
and 12th September 1991 you forced me to go on leave.
What are your
reasons for these mysterious kind of leaves?
to your letter dated 19th August 1991 you instructed me to hand over
my duties to Mr Marabe Phoofolo and furnish you
with a hand over
report. What are your reasons for this kind of action? Why are you
not insisting on the hand over report any
do you instruct that I should no longer have access to customers
files and ledger cards yet you want me to respond to your
1st October 1991.
Finally I wish to advise that I have not violated nor breached any of
the bank's regulations as stated in your letter. If you maintain
stand, please be advised that I take that as a mere allegation or
threat to me. Last but not least Mr. Molelle you know perfectly
that I have never been negligent and incompetent in performing my
duties. When have you ever called me and showed me that
negligent and incompetent. How can you know about my negligent and
incompetence when you as my manager have never made job
for me? You had always insisted that I should make job descriptions
for myself. Why do you inquire about the tractors
now yet the
incidence occurred some time ago? I have always reported incidences
of theft in my monthly progress reports, why didn't
In your letter you merely wanted to tarnish my good image.
applicant's main complaint is that he was not accorded a hearing as
natural justice so requires inasmuch as the Board of Directors
dismissed him without any hearing.
complains that his purported dismissal is based on the
recommendations of the Managing Director who is also a member of the
opposing affidavit the respondent denies that the applicant was never
given an opportunity to be heard. It is alleged that
on the 27th
August, 1991 the applicant was given an opportunity to be heard at a
Management Committee Meeting. The minutes of that
Annexure "F" to the answering affidavit.
Managing Director avers that on the 4th September, 1991 the applicant
was given an opportunity to offer explanations to a sub-committee
the Board headed by Mr. Ntokoane a member of the Board. The Board
considered both the applicant's explanations recorded on the
August, 1991 and the applicant's written explanations dated the 1st
October, 1991. He avers that the Board made decision with
minutes of the management Committee meeting of the 27th August, 1991,
his letter of the 1st October and the applicant's own
explanations to the Sub-committee of the Board on the 4th September,
1991 and the applicant's written explanation of the
common cause that the respondent is a statutory body created by
Lesotho Agricultural Development Bank Act No.5 of 1976. In
Telecommunications Corporation v. Thahamane Rasekila - C. of A (CIV)
No.24\91 (unreported) Browde, J.A. said at pp. 9-10:
"It appears to be common cause that the appellant is a body
created by Statute namely the Telecommunications Act 1979 and
is a parastatal body as referred to, inter alia, in Koatsa v National
University of Lesotho - Court of Appeal (CIV) no.
15 of 1986. In that
case it was decided that before an employee of a parastatal
institution is dismissed he\she is entitled to
a fair hearing as
he\she has a legitimate expectation that such a hearing will take
place before any prejudicial action is taken.
A fair hearing as
Baxter says in his Administrative Law at p. 542:
"need not meet all the formal standards of the proceedings
adopted by courts of law: The vagaries of the administrative process
demand much less formality and much greater flexibility."
What is required, however, is "fairness" and it seems to me
that it was not fair on the particular facts of the present
the managing director who was to make the decision whether or not to
dismiss the respondent, to himself have conducted
albeit in the presence of the personnel manager as is alleged to have
present case there can be no doubt that the applicant was given a
hearing at least on two occasions which he also admits.
was when the Managing Director of the respondent wrote a letter to
him on the 1st October, 1991 inviting him to give
a full explanation
concerning certain matters which are clearly set out in the letter
above. The Managing Director stated clearly
that he was inviting the
applicant to furnish him with an explanation or reasons why he could
not recommend to the Board that applicant's
service with the
respondent should not be terminated on the grounds that he acted in
breach of Regulation 21.3.
to the abovementioned letter the applicant gave a full explanation in
his letter of the 1st October, 1991. For convenience
the two letters
were reproduced above. The only complaint the respondent had was that
at the time he made the report he no longer
had access to the files
and to some members of staff of the respondent. Be that as it may I
found his explanation to be very comprehensive.
He gave a full
explanation about the tractors and the letter to Lesotho Retail
occasion was earlier on the 27th August, 1991 at the Management
Meeting held on that day. The question of the irregularities
loans department was raised by the Managing Director as chairman of
that meeting. The respondent gave an
about the missing tractors and the letter he had written to Lesotho
Retail Services (See Annexure "F" to the
occasion when the applicant was given a chance to be heard was on the
4th September, 1991 when he was interviewed by Mr.
Ntokoane a member
of the Board. There is a serious dispute of fact concerning what the
interview was all about. The applicant says
that it concerned papers
that had been scattered along the streets of Maseru. Mr. Ntokoane has
not filed any affidavit to confirm
what transpired in the interview.
I am of the view that this incident must be ignored by the Court
because it is highly disputed.
question is whether this hearing which was given to the Managing
Director on the 1st October, 1991 in the form of a letter by
applicant and the explanation given to the Management on the 27th
August, 1991 at their meeting can be regarded as a hearing
Board. The Managing Director stated in his letter to the applicant
that he invited him to explain and to give reasons why
he could not
recommend to the Board that the services of the respondent should not
recommendation of the Managing Director does not appear anywhere in
the papers before me. According to the letter of
(Annexure "TM12" to the founding affidavit) shows the
resolution of the Board as follows:
"Having studied the documents of the Bank relating to the loss
of two (2) tractors (A1212 and C3171) by the Bank and a sum
M28,000.00 authorised by Mr. Motseki and paid to Lichaba Tsilo and
having noted that Mr. Motseki was afforded an opportunity
the loss on 27th August, 1991 and on the 4th September 1991 the Board
decided and resolved as follows:-
Mr. Motseki is guilty of negligence and incompetence in the
performance of his duties.
Mr. Motseki's services with the Bank be and are hereby terminated
immediately. One month's salary in lieu of notice will
be paid by
the Bank to Mr. Motseki. Leave and other terminal benefits due to
him will be paid less any amounts he owes to
resolution does not refer specifically to the explanation given by
the applicant on the 1st October, 1991 which was very comprehensive.
It refers only to the explanation on the 27th August, 1991 and the
one on the 4th September, 1991. As I have said above there is
affidavit by Mr. Ntokoane nor is there any written report he made
which was considered by the Board.
only say that the hearing that was given to the applicant by the
Board leaves much to be desired and I am of the opinion that
not fair. The applicant was entitled to see the recommendation made
by the Managing Director to the Board so
could give an answer to it or challenge it where facts were not
correctly stated. If the recommendation was not written
ought to have invited the applicant to be present when it was made.
no evidence from the resolution as it appears in the letter of
dismissal that the letter of the applicant to the Managing
dated the 1st October, 1991 was amongst the documents placed before
the Board. I say this because the resolution specifically
the 27th August 1991 and to the 4th September, 1991. I regard the
letter of the 1st October, 1991 to have been very important
it was an answer to a clear indication that a recommendation would be
made to the Board that applicant's services be terminated.
question is whether it was proper that the Managing Director who
investigated this matter and made recommendations as a
member of the
Board ought to have taken part in the passing of the resolution to
terminate the services of the, applicant with
Koatsa v. The National University of Lesotho- C. of A (CIV) No.15 of
1986 (unreported) at pp. 19-20 Mahomed, J.A. (as
he then was) said:
"In the Heads of Argument submitted on behalf of the Appellant
on appeal, it was submitted that no man could be a judge in
case and that it was contrary to natural justice for a Tribunal which
had already made a decision approving the termination
Appellant's appointment to sit in judgment on an "appeal"
against its own decision."
Managing Director of the respondent in the present case investigated
this matter and formed an opinion that the applicant should
dismissed and made an appropriate recommendation to the Board of
which he is a member, I am of the view that a man cannot be
in his own cause. It cannot be said that when the Managing Director
made the recommendation that the applicant be dismissed
subsequently sat with the other members of the Board his mind was
open, impartial and unbiased. I have formed the opinion that
Board violated one of the most important principles of our law that a
man cannot be a judge in his own cause. By making recommendations
the Board the Managing Director was showing his conviction in the
matter and was like a prosecutor in a criminal case who cannot
with the court when the guilt or otherwise of the accused person is
result the application is granted in terms of prayers (a), (b), (c),
(d) and (e).
Applicant - Mr. Pheko
Respondent - Mr. Moiloa.
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