HIGH COURT OF LESOTHO
MOTORS COMPANY (PTY) LTD RESPONDENT
on the 11th April, 1994 by the Honourable Mr. Justice W.C.M. Maqutu,
application Applicant brought an application for a declaration that
his dismissal was null and void. Reinstatement was implicit
application. Such cases are often highly disputed and the appropriate
remedy is often an award of damages. This is not a
matter that can
normalies be dealt with without hearing full evidence.
hurdle that had to be cleared was whether or not the court as a
general principle ought to order reinstatement in matters
and Servant. Damages are the normal remedy for wrongful dismissal and
in employment. In Schierhout v Minister of Justice 1926 AD 99 at 107
Innes CJ (dealing with specific performance which
But the practice has long since been abandoned, and for two reasons:
inadvisability of compelling one person to employ another
does not trust in a position which imports a close relationship and
the absence of mutuality, for no Court could by its
order compel a
servant to perform his work faithfully and diligently."
matter is not always that simple because employment is a matter of
contract. It seems an employee has a right of election. In
Livni 1950 (1) SA 524 at page 528 where Ramsbottom J said:
"A master cannot by a unilateral act terminate a contract of
employment unless he has good grounds for doing so..... If without
good cause, be seeks to terminate a contract of service the servant
may accept that termination and bring the contract to
an end or he may refuse to accept termination and keep the contract
alive until the end of its term ..."
Winsen J in Myers v Abramson 1952 (3) SA 121 at page 123 G noted that
courts are unwilling to enforce specific performance in
employment but nevertheless:
"it does not necessarily follow that they are taken out of the
operation of the general rule and must be treated as contracts
can be completely terminated by unilateral action."
contracts where personal service is rendered to order specific
performance is not often a realistic way of doing things. In this
case the way I see it the words of Broome J in Rogers v Durban
Corporation 1950(1) Sa 65 at page 69 are appropriate where he said:
"so far as an ordinary service contract between private persons,
... a servant wrongly dismissed has no other remedy other
be seen later this is often the beat thing to do. It is however
mistating the law to say reinstatement can never be ordered
in many cases it is not. To do so would be to borrow Corbetts JA's
words in South Cape Corp. v Engineering Management Services
SA 534 at 547G to turn
"what started as a rational and comon sense exercise of the
Court's discretion, in the course of time hardened ... in some
decisions, conveys a suggestion of inflexibility which, in my view,
is ... contrary to the concept of wide discretion which
National Union Textile Workers & Orthers v Stag Packing (Pty) Ltd
and Another 1982 (4) SA 151 it was held that an employee
an employer to the contract which had been unlawfully terminated if
the employee so elected. This was the decision of
Pronvincial Division which reversed the decision of the Witwatersrand
Local Division in National Union of Textile
Workers And Another v
Stag Packing (Pty) Ltd and Another 1981 (4) SA 932. Principles
governing specific performance revolved round
the court's discretion
which has to exercise judicially not arbitrarily and capriciously.
Each case has to be judged in the light
of its own circumstances. See
Haynes v Kingwilliamstown
1951 (2) SA 371 at 378 to 379.
Dijkorst J in National Textile Workers and Others v Stag Packing
(Pty) Ltd and Another 1982 (4) at 158 said
"The Appellate Division did not in Haynes case, when laying down
the approach to the granting of orders of specific performance,
exclude the case of an ordinary servant. There was no reason to do
so. In my view the approach to the application of the discretion
respect of specific performance laid down in Haynes case is equally
applicable to the wrongful dismissal of an ordinary servant."
It is a
wrong approach to say in every case involving an ordinary servant
reinstatement can never be ordered. The Court is obliged
the facts of each case in order to decide whether or not the balance
of convenience favours reinstament. In Seloadi
and Others v Sun
International (Bophuthatswana) Ltd. 1993 (2) SA 174 at 189 Lawrence
AJ in considering whether employees should
be reinstated said:
"... applicants would be most unhappy with their employment,
with strong grievances and enmity towards respondent. This would
result in enormous mischief being done to respondent."
in that case after weighing this reason together with others held
that the ends of justice would be better served in not
clear that is is wrong for courts to deny themselves (as they have
often done in the past) an opportunity to assess the situation
each case in the belief that they have no discretion to order
reinstatement in cases of wrongful dismissal from employment.
case must be dealt with according to its merits.
case the relationship of Master and Servant was never terminated by
the Respondent, See the Minutes of the Board dated 18th
1991 at page 2 where the Board did not take a decision to dismiss
Applicant. The Board bad intended to hear Applicant
levelled against him by Teke and the General Manager. Such a meeting
has not yet taken place. A company takes decisions
through its Board
of Directors. That being the case the Applicant's fate cannot be said
to have been finally determined.
considered whether or not application proceedings were appropriate in
this case. If there was a dispute of fact that was forseeable
the Court might have been obliged to consider dismissing this
application in terms
18 (14) of the High Court Rules 1980. Price J in Garment Workers
Union v de Vries 1949 (1) SA 1110 at 1133 ventilated the
courts against the tendency to bring disputed applications in the
hope that courts will turn them into trials or hear
evidence. The following words of Price J are apposite:
"Applicants thereby obtain a great advantage over other
litigants who have proceeded by way of action and who may have to
wait for many months to get their cases before the court. Such
applications - cum - trials interpose themselves, occupying the
of judges and still further delaying legitimate trials."
was fortunate to find that there was no real dispute of fact much as
the Respondent's General Manager tried to manufacture
one in his
affidavit although Respondent's annexure "B" clearly
corroborates Applicant. The Board has simply not yet
heard the matter
and taken a decision. The Minutes show that the General Manager had
almost got a decision he desired but the Board
brought an application in which he asked
order in the following terms:
"(1) Declaring the termination of the Applicant's employment by
the Respondent null and void
the Respondent to pay costs of this application
Applicant such further and \ or alternative relief as this
Honourable Court may deem fit."
Affidavits were filed or record on the 17th June, 1992.
common cause that Applicant was employed by Respondent in terms of a
written contract as a Technical and Service Manager.
Applicant was second in command and therefore acted as manager when
the General Manager was absent.
common cause that on the 6th November, 1991 Applicant wrote to the
General Manager complaining that the company was losing
rands because of continuous shortages of petrol money. There is also
letter a report of theft tyres, misuse of company property and a
5-year failure of management staff to pay outstanding petrol
workshop bills. Applicant requested that these issues be addressed at
top management level.
7th November 1991 (that is the day after Applicant's letter to the
General Manger) the General Manager wrote Applicant a
suspending Applicant from his duties pending an investigation of
certain improprieties. Applicant immediately wrote a letter
November, 1991 expressing surprise at his suspension but nevertheless
urging Top Management to meet to address the issues
Applicant's letter of 6th November, 1991. Applicant continued to come
to work as before. This caused the Managing Director
to write a
letter dated 12th November, 1991 in which he stated that it was now
the decision of the Board to suspend Applicant.
wrote back to the General manager asking for the particulars or exact
nature of the "impropriety"
that is being suspected against
no dispute up to this point, except that Applicant claims the General
Manager's private motor vehicle was involved in the
theft of petrol.
Respondent denies this, stating that because this fact was not
in the letter of the 6th November, 1991 it is an after thought. The
General Manager does not deny the rest of Applicant's
to the writing of Applicant's letter dated 13th November, 1991. The
General Manger states he suspended Applicant
because he had
information from the Police that during interrogation Francis Teke
had confessed that he stole tyres with Applicant.
The General Manager
claims this information was reliable. According to Applicant his
letter of 13th December, 1993 was never answered.
point applicant's affidavit and the General Manager's affidavit do
not agree. Applicant says he was invited to a meeting
at the Lesotho
Bank on the 14th November, 1991. He found the General Manager, the
night-watchman and the Board in discussion. He
was told Co go home.
He was invited to the Board meeting on the 18th November, 1991 where
queries which Applicant does not specify
were raised. He was told to
come on another date but when he came there was no quorum, therefore
no business was transacted. He
was surprised to get a letter dated
13th December, 1991 from the General Manager summarily dismissing him
from employment because:-
"The Board finds you unworthy of the position of Technical
manager. You are summarily dismissed
from the employ of National Motors Company (Pty) Limited."
says he was not given a hearing as he was never given a charge. He
says questions that were put to him and his answers
to them do not
amount to a quasi judicial hearing he was entitled to.
General Manager of Respondent says Applicant was given a fair hearing
and cites the statement annexed by applicant to his papers
Annexure "MT9" as evidence of Applicant preparation for the
hearing of 18th November, 1991. The General Manager
does not say
anything about the fact that Applicant was never given a written
reply or statement as to the nature of the impropriety
presentation of the National Motors to the Board marked Annexure
"MT9" and the letter of dismissal Annexure
were filed with Applicant's application. A short comparison of the
two should reveal if indeed Applicant knew
of the charge and was
prepared for the hearing of the disciplinary case. Applicant claims
he went before the Board to discuss hie
letter of 6th November, 1991
to the General Manager in which he had asked for a meeting of to
in Annexure "MT9" makes the following points:
Audit reports had shown financial problems of National Motors. In
the letter of 6/11/91 this appears.
of petrol and unpaid bills owed by staff members also appear in the
letter of 6/11/91.
claims in September 1991 he approached the General Manager ;about
losses. This does not appear in the letter of 6/11/91.
Manager does not challenge this.
thieves of petrol money were caught through Applicant. In the letter
of 6/11/91 this does appear.
thieves of tyres were caught also appears in Applicant's letter of
fact that police informed Applicant of the General Manager's
frequent visits tot he police asking for certain staff members
arrested does not appear in the letter of 6/11/91. Also
not mentioned in that letter is the fact that Applicant was
interrogated by the police.
fact that on 11/11/91 Applicant found burnt out remnants of
financial data from burnt out files is a new fact, so is the fact
that Applicant picked them up and now has these in bis possession.
letter of dismissal are the following:-
which Applicant receive from a company supplier and could not
explain satisfactorily must have come as a surprise to Applicant.
confession of the night-watchman that implicated Applicant in the
theft of tyres before the police might or might not have
Applicant. This is clear from the fact that in his memorandum of
12th November, 1991 be shows that the police had interrogated
Nevertheless it does not mean he went to the meeting of 18th
November, 1991 being aware he was a suspect in the eyes of
towards the confessing thief by
asking for the thief's accelerated promotion might have surprised him
bit it ties up with the confession.
of incompetence, use of customers' vehicles without permission,
several law suits Applicant had caused the company
release of vehicles to customers resulting in a number of
unauthorised debtors must have surprised Applicant.
refusal to be suspended by the Manager without any clear reason is
conceded even in the memorandum of 12/11/91.
question that I immediately asked myself was why was there this
mud-slinging match between applicant and the General manger?
were these two up to? could it not be that both the General Manager
and Applicant were far from being innocent bystanders
activities that led to severe losses to the company? Could the letter
of 6th November, 1991 written by Applicant, not be
an attempt to get
in first so that the General Manager could be the only one on the
defensive? If the General Manager was not involved
in these illegal
activities, why did he not take action at all. If he did not have
anything to hide why
instantly suspend Applicant from duty when applicant called for a
meeting of top management to look into the company's massive
Could the General Manager seriously consider an allegation (by a
thief caught red-handed) levelled by the Applicant who
Deputy General Manager to be enough grounds for Applicant's
suspension? What was at the root of the General Manager's
suspending his Deputy without the Board's authorisation?
clear that Applicant though responsible to the General Manager, bad
in terms of his Job Description Annexure "MT3"
access to the Director of PPO LNDC. This is not surprising because
Paragraph 9 of his Job Description makes Applicant duty
"To act in the position of General Manager in the absence of the
substantive holder of that position,"
problem we have here is that the General Manager does not deny that
as early as September 1991 applicant requested from and
permission from the General Manager to mount an investigation. Not
long thereafter arrests were made. It was only after applicant
asked Top Management to take action that the General Manager began
precipitously and illogically. He acted as if he had something to
hide. Moat of the charges that were levelled against Applicant
not those traversed in annexure "MT9" on which the General
Manager relies substantiate his claim for a fair trial.
reason for Applicant's dismissal is the receipt of M300.00 which he
received from a supplier which the General Manager
says he could not
explain. This is a far cry from the confession of a thieving watchman
that the General Manager advances as the
reason for suspension.
applicant does not seem to have expected to be charged with theft,
annexure "MT9" gives the impression that he
knew that the
General Manager was busy working on the police to arrest other
members of staff who seem to have included Applicant.
What comes as a
surprise in the dismissal letter annexure "MT 10" are
charges of lack of diligence against Applicant.
Indeed these also
include implications of criminality. What does not put Applicant in a
favourable light is the allegation that
the thief implicating
Applicant in a confession before the Police is the one that stole
tyres after being highly recommended by
Applicant for promotion over
seniors. This does not appear in annexure "MT9" which
according to the General Manager shows
the charges Applicant expected
to meet. What is clear is that the General Manager refused to give
the written details that Applicant sought in order to know the
"impropriety" he was suspended for.
Matooane counsel for Respondent said the employer need not hold a
formal hearing in order for the audi alteram principle to
Indeed according to him only to public companies and parastatals such
as the LNDC and the Lesotho Bank are obliged to have
hearing. The principle of legitimate expectations according to Mr.
Matooane does not apply to ordinary employees such
as companies and
individuals. In other words according to Mr. Matooane the ordinary
employer can interview witnesses away from
the Applicant, never
bringing them together and decide there and than to dismiss
Applicant. Mr. Matooane cited the case of Koatsa
Koatsa v National
University of Lesotho C of A (CIV) No.15 of....... at page 12. He
also refers to Embling v Headmaster St. Andrews
College 1991 4 (SA)
case is the case where dismissal was in terms of a contract.
Furthermore applicant in Emblings's case had on several
been criticised for his teaching and for his attitude to colleagues.
In the Embling case Cooper J at page 469 said:-
"In the light of the aforegoing and
the applicant's apparent intransigence I am not persuaded that the
was unfairly treated and the manner in which he was dismissed
my feelings of fairness."
differs in this regard from that of Embling. In this case I have
already shown that Applicant received a rather cavalier
was accused of misconduct based on a repudiated statement of a thief
in a very unfair manner and dismissed from employment
unsubstantiated grounds in the most ignonimous way and I quote:
"The Board of Directors ..... directs me to inform you that you
have betrayed the trust placed on you as a senior employee
company .... The Board finds you unworthy of the senior position ...
You are summarily dismissed from the employ of National
Pty Ltd. ... Please surrender forthwith all company property in your
question is whether National Motors, the Respondent, which was once a
subsidiary of the Lesotho National Development Corporation
and is now
Bank which are both parastatals, can treat people as Applicant was
treated. In argument the parastatal nature of these bodies
conceded. The letter of dismissal annexure "MT10" shows
that the Proprietor of National Motors is Lesotho Bank. It
probably no more treated as a company with Limited Liability because
the proprietorship of Lesotho Bank is written with bold
the bottom while the (Pty) Ltd at the top of the page is written with
letters that can only be seen by some bad-sighted
people through the
use of a lens.
employee is dismissed summarily because of a misconduct Section 15
(3) of the Employment Act 1967 lists the circumstances
in which such
dismissal might take and says there are no other circumstances in
which employees can be so dismissed. Surely an
employer is not
entitled to act on unsubstantiated repudiated confession of arrested
people who implicate whoever they can in the
hope of escaping
punishment. All contracts of service in terms of Section 11 of the
Employment Act. 1967 cannot offer conditions
that are less favourable
than those provided for by the Employment Act 1967. In terms of
Clause 5 of Contract of Employment Respondent
applicant's contract of employment without giving a reason. This
unfortunately does not apply because Applicant
was accused of
misconduct. This has to be
substantiated, and it has not been. In Federal Storage Co. v Angehm &
Ano. 1910 TPD 134 Lord Atkin at the Privy Council
where a company had
summarily dismissed employees from their positions held:
"The burden of proving a justification for that dismissal rests,
no doubt, upon the company."
case the employees did not deny that they "had been guilty of
falsehood, hypocrisy thereby showing they were unfit
discharge the duties of the positions they held". What National
Motors should at least have put before this court
was a case which
called for a clear, full and conclusive answer from Applicant. This
they did not do. Applicant has disproved that
Francis Teke never
implicated Applicant in the theft although this is challenged by R.
Mapetla, the Respondent's Chairman. They
made affidavits to that
Minutes of the Board dated 12/11/91 annexure "A" reveal
that the letter dated 6/11/91 calling for a meeting
of Top Management
was written at the Chairman's suggestion when Applicant complained
about his working relations with the General
Manager. Applicant had
"a tirade of other allegations" against the General
Manager. When this letter was received the General Manager
Applicant on 7/11/91. Teke who was brought by General Manager alleged
he had seen Applicant steal tyres. Applicant was
Minutes of the 18th November, 1991 show clearly that the General
Manager is not telling the truth when he alleges that Applicant
given a hearing on the 18th November, 1991. Only the General Manager
was heard. The Board decided to confront Applicant with
and accusations so that his defence could be heard. A meeting was
scheduled for the 22nd November, 1991. These Minutes
two pages are Respondent's annexure "B". The strange thing
is that conclusions adverse to Applicant which
appear in his letter
of dismissal annexure "MT10" appear in the Minutes. Page 2
of the Minutes of 18th November, 1991
which are Respondent's annexure
"B" shows clearly that E.M. Mapetla, the Chairman is
mistaken when he alleges that Applicant
was ever heard. It is clear
that the meeting of 22nd November, 1991 never took place as Applicant
has correctly shown. That being
the case Applicant was never given an
opportunity to deal with the allegations made by the General Manager
on the basis of which
his employment was terminated on the 13th
December, 1991 as more fully in annexure "MT10". It is
that both the General Manager and the Chairman of the Board E.M.
Mapetla are mistaken when they say Applicant was heard, the
wanted to hear him but that hearing scheduled for 22nd November, 1991
never took place. Applicant has not been heard
by the Board as the
Board had wished as more fully appears in annexure "B" of
the Board Minutes of 18th November, 1991.
Matooane for Respondent has read more into the remarks of Mahomed P.
in Koatsa Koatsa v National University C of A (CIV) No.15
What he meant was that courts do not in their discretion order
specific performance as a matter of course in such case.
can no more work together in a small business or firm it is most
unwise to order reinstatement. Courts would rather order
case I will only content myself with granting the order as prayed
subject to some clarification. Respondent is free to proceed
hearing of Applicant's aide of the story as it intended on 18th
November, 1991. Nevertheless the effect of the order will
Applicant has not yet been dismissed from his employment because the
Board has not (nor has it ever) dismissed him from
worried by the delay of this court in finalising this application.
Two full years have passed, but then if Respondent had
Minutes of 18th November, 1991 he would have spotted his error and
put things right.
light of the aforegoing the court makes the following Declaratory
employment was never terminated by the Board of Directors of the
Respondent Company consequently the letter terminating
employment with the Respondent company dated 13th December, 1991 was
written by mistake.
termination of applicant's employment as contained in the General
Manager's letter dated 13th December, 1991 is null and void.
is directed to pay the costs of this application.
at Maseru This 11th Day of April, 1994.
Applicant : Mr. M. Mafantiri
Respondent : Mr. T. Matooane
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