CIV\APN\422\91
IN THE HIGH COURT OF LESOTHO
In matter between:
THABO M. MOTSEKI Applicant
and
LESOTHO AGRICULTURAL DEVELOPMENT BANK Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J. L. Kheola on the 19th day of April. 1993.
The applicant is applying for a declaratory order couched in the following terms:
Declaring Applicant's dismissal by Respondent null and void;
Directing Respondent to re-instate Applicant forthwith to the position he held immediately prior to his dismissal with Respondent with full benefits;
Directing Respondent to pay Applicant's salary with effect from the date of dismissal to the date of re-instatement;
Directing Respondent to pay interest at the rate of 18% with effect from date of dismissal to date of payment;
Directing Respondent to pay the costs hereof;
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Granting Applicant such further and\or alternative relief.
The applicant was appointed by the respondent as a Credit Manager on the 21st June, 1983. After a six months' probationary period he was admitted to permanent establishment on the 28th May, 1984.
On the 9th February, 1985 he was assigned to the position of Assistant Director, Monitoring and Evaluation with effect from January, 1985. On the 30th June he was promoted to the position of Director of Loans. This is the position he held till the 7th November, 1991 when he was dismissed.
The trouble between the applicant and the respondent started on the 19th August, 1991 when the Managing Director of the respondent instructed 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 he was not told the reason why he had to do this sudden handing over.
On the 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
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until the 7th November, 1991 when the applicant was dismissed.
On the 1st October the Managing Director of the respondent wrote a letter to the Applicant demanding some explanation on certain matters. The letter reads as follows:
1st October, 1991,
Mr. Thabo Motseki,
C\0 Box 845,
MASERU.
Dear Sir,
The Lesotho Agricultural Development Bank has lost 2 tractors (MF 240 registration C 3171 and IB 684 registration A 1212) as a result of 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 duties 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.
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I shall expect your written response by not later than 4 p.m. on 3rd October, 1991.
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 might 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 the 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 authorised M495,549.86.
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 me with 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.
Yours sincerely,
C.S. MOLELLE
MANAGING DIRECORR
In reply to the above letter the applicant gave a very full and comprehensive explanation in his letter of the 1st October, 1991. The letter reads as follows:
1st October, 1991.
The Managing Director,
Agric Bank, Box 845,
MASERU 100
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ATTENTION: 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 684 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 provide me with Authentic Proof. May I remind you, sir, that individual mechanics and garages whose service and prices for repairs appeared to be reasonable are the ones who helped repair tractors and other forma 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 Tsilo is the one who once launched a complaint to Messrs Z. Sello and B. Leleka that I was making things difficult for him to obtain a loan facility. You will note that two tractors you are referring to are not the first ones to be repaired by Lichaba Tsilo. In your letter you repeatedly state that you will expect my written response not
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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 no access 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 may refer to Police Officers\Authorities like Messrs Malephane, Lesiamo, Penane and Trooper Matela). Bank officers who worked closely with me 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 8 th May 1991 to Lesotho Retail Services, again you know the kind of answer I gave you on the 27th 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 it clear that in order for me to respond properly and confidently I should have access to the files and ledger cards of Lesotho Retail Services. Now for your information, on the very same day (27\8\91) at 11,45 a.m. I asked
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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 a few minutes I again asked for the cards but this time I was told that the cards are with Mr. Molelle. On the 29 th August, 1991 Mr. Marase Phoofolo told me that he was instructed to inform me that I am restricted to have access, to the customers' files and ledger cards. 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 was 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 that my services be terminated. That is left to your own discretion
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I wish to conclude by asking you the following questions:-
In 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?
According 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 more?
Why do you instruct that I should no longer have access to customers files and ledger cards yet you want me to respond to your letter of 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 that 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 well that I have never been negligent and incompetent in performing my duties. When have you ever called me and showed me that I am negligent and incompetent. How can you know about my negligent and incompetence when you as my manager have never made job descriptions 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 you probe?
In your letter you merely wanted to tarnish my good image.
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Yours,
T.M. Motseki.
The 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.
He complains that his purported dismissal is based on the recommendations of the Managing Director who is also a member of the Board,
In its 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 meeting are Annexure "F" to the answering affidavit.
The Managing Director avers that on the 4th September, 1991 the applicant was given an opportunity to offer explanations to a sub-committee of the Board headed by Mr. Ntokoane a member of the Board. The Board considered both the applicant's explanations recorded on the 27th August, 1991 and the applicant's written explanations dated the 1st October, 1991. He avers that the Board made decision with the benefit of both
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the minutes of the management Committee meeting of the 27th August, 1991, his letter of the 1st October and the applicant's own verbal explanations to the Sub-committee of the Board on the 4th September, 1991 and the applicant's written explanation of the 1st October, 1991.
It is common cause that the respondent is a statutory body created by Lesotho Agricultural Development Bank Act No.5 of 1976. In Lesotho 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 as such 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 case, for the managing director who was to make the decision whether or not to dismiss the respondent, to himself have conducted the "hearing" albeit in the presence of the personnel manager as is alleged to have occurred."
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In the present case there can be no doubt that the applicant was given a hearing at least on two occasions which he also admits. The occasion 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.
In reply 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 Services.
Another occasion was earlier on the 27th August, 1991 at the Management Meeting held on that day. The question of the irregularities in the loans department was raised by the Managing Director as chairman of that meeting. The respondent gave an
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explanation about the missing tractors and the letter he had written to Lesotho Retail Services (See Annexure "F" to the answering affidavit).
Another 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.
The question is whether this hearing which was given to the Managing Director on the 1st October, 19 91 in the form of a letter by the applicant and the explanation given to the Management on the 27th August, 1991 at their meeting can be regarded as a hearing by the 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 be terminated.
The recommendation of the Managing Director does not appear anywhere in the papers before me. According to the letter of
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dismissal (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 of M28,000.00 authorised by Mr. Motseki and paid to Lichaba Tsilo and having noted that Mr. Motseki was afforded an opportunity to explain the loss on 27th August, 1991 and on the 4th September 1991 the Board decided and resolved as follows:-
That Mr. Motseki is guilty of negligence and incompetence in the performance of his duties.
That 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 the Bank."
The 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 no affidavit by Mr. Ntokoane nor is there any written report he made which was considered by the Board.
I can 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 it was not fair. The applicant was entitled to see the recommendation made by the Managing Director to the Board so
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that he could give an answer to it or challenge it where facts were not correctly stated. If the recommendation, was not written the Board ought to have invited the applicant to be present when it was made.
There is no evidence from the resolution as it appears in the letter of dismissal that the letter of the applicant to the Managing Director dated the 1st October, 1991 was amongst the documents placed before the Board. I say this because the resolution specifically refers to the 27th August 1991 and to the 4th September, 1991. I regard the letter of the 1st October, 1991 to have been very important because it was an answer to a clear indication that a recommendation would be made to the Board that applicant's services be terminated.
The last 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 the respondent.
In Koatsa 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:
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"In the Heads of Argument submitted on behalf of the Appellant on appeal, it was submitted that no man could be a judge in his own case and that it was contrary to natural justice for a Tribunal which had already made a decision approving the termination of the Appellant's appointment to sit in judgment on an "appeal" against its own decision."
The Managing Director of the respondent in the present case investigated this matter and formed an opinion that the applicant should be 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 a judge in his own cause. It cannot be said that when the Managing Director made the recommendation that the applicant be dismissed and subsequently sat with the other members of the Board his mind was open, impartial and unbiased. I have formed the opinion that the 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 to the Board the Managing Director was showing his conviction in the matter and was like a prosecutor in a criminal case who cannot ait with the court when the guilt or otherwise of the accused person is decided.
In the result the application is granted in terms of prayers (a), (b), (c), (d) and (e).
J.L. KREOLA
JUDGE
19th April, 1991.
For Applicant - Mr. Pheko
For Respondent - Mr. Moiloa
