HIGH COURT OP LESOTHO
MOKHATLA (duly assisted by her husband) Applicant
RUOTSALAINEN 1st Respondent
PROJECT CO-ORDINATOR (Mr. J.L. McCloy) 2nd Respondent
HEALTH SERVICES PROJECT 3rd Respondent
PRINCIPAL SECRETARY FOR THE
OP HEALTH 4th Respondent
ATTORNEY GENERAL 5th Respondent
by the Honourable Mr. Justice T. Monapathi Acting Judge on the 15th
day of April. 1994
Applicant claims in her Notice of Motion the following prayers;
as null and void the termination of employment of the applicant by
the 1st respondent.
applicant in her position as an office clerk of the 3rd respondent.
the respondents to pay applicant her salary with
effect from 1st June, 1991 subtracting the monies already given
thereafter to the date of judgment, plus interest at the rate of
respondents to pay the costs of this application.
applicant such further and/or alternative relief.
the respondents to pay applicant monthly salary in lieu of notice.
the respondents to pay applicant a severance pay and leave
the respondents to pay costs of this application.
applicant such further and/or alternative relief."
Mosito appeared for the Applicant and Mr. Molapo for Respondents
appeared before me on the 23rd February 1994 and had a brief
argument, All in all it revolved around the issues whether :
Applicant was wrongly or was not wrongly terminated on the 29th May
1992 and on the 3rd June 1992 in terms of Annexure B
Whether the 1st Respondent was entitled to terminate the services
of the Applicant by virtue of his own powers or even alternatively
by virtue of powers allegedly delegated to him by the 2nd
Respondent in terms of Annexure "F".
it is to be believed that the 1st and 2nd Respondent acting as they
did that they were acting in terms of clause 3 of
which reads "the appointment may be terminated by either
party, by giving one calender month's
notice or paying cash in lieu
Annexure "C" actually bears out the 1st and 2nd
Respondent when regard is had to Annexure "E".
on the strength of authorities (cases) cited the Applicant would,
if a finding be made in her favour, insist on reinstatement
benefits such as arrear salary and related benefits.
find it useful to make a brief statement of annexures made to the
papers for ease of reference.
"A" letter dated 28th April 1988 from 1st Respondent
to Applicant being a statement of conditions of Applicant with the
Letter dated 29th May 1992, allegedly on behalf of the. 2nd
Respondent, to the Applicant, being of dismissal "with
from the 1st June, 1992"/
Letter dated 3rd June 1992, from the 2nd Respondent to the Applicant
"confirming Annexure B.
Letter dated 29th June 1992, from Applicant's Attorneys S.M.
Mphutlane & Co. to the 2nd Respondent "Re:
Letter dated 15th July 1992 from the 3rd Respondent to S.M.
Mphutlane & Co. - being a reply to Annexure D.
dated 20th May, 1992 from 2nd Respondent to all staff in alleged
delegation of duties to the 2nd Respondent.
Founding Affidavit of the Applicant was accompanied by the seven
annexures stated above. The Respondents duly opposed and filed
Answering Affidavits per JAMES MCCLOY and was
by PAAVO RUOTSLAINEN (1st Respondent) and one LETAPATA MAKHAOLA the
Principal Secretary at all material times. The Applicant
filed her Replying Affidavit to the above Answering Affidavits.
Applicant was employed by the 2nd Respondent on the 28th April 1988
where the 1st Respondent was his superior but under the
Respondent who is the Project Manager, He is a successor to the
person who made the appointment of the Applicant, Applicant
on the day of her dismissal she was asked by the 1st Respondent to
take some letters to a place near the Industrial Area,
Applicant apparently protested that the place was too far if she is
asked to go on foot, She asked to be allowed the project's
ferry the letters. The 1st Respondent "became very annoyed
saying that I was refusing to obey her instructions".
Respondent replied in his papers that he asked that the letters be
carried by public transport and not by Applicant on
foot. But the 1st
Respondent does not explain as to what the Applicant's reaction was.
I find this most unsatisfactory.
events in the preceding paragraph in this judgment Applicant says the
1st Respondent then proceeded to his office and
wrote annexure B thus
terminating her employment. This was done in the absence of the 2nd
Respondent who was abroad. Hence
Respondent had written the letter of delegation (as alleged by
Respondents), Applicant says that the 1st Respondent had not
authorized by the 1st Respondent to terminate the said appointment of
the Applicant, The Respondents in reply say that the
was empowered to terminate the contract. I do not agree that the
effect of Annexure F was to empower the 1st Respondent
the Applicant's appointment. This is negated by the principle
delegatus non potest delegant (see LTC vs RASEKILA C
of A (CIV) No.
24/91. This means that the 2nd Respondent could not delegate the
powers delegated to him. This fact must have been
clearly observed by
the 2nd Respondent when, then, he came back from his visit abroad.
That is why he proceeded to issue out Annexure
C. Annexure "C"
gives a lie to Annexure B. I will show why in the next paragraph.
cannot avoid reading annexure C with Annexure E. Annexure C says "I
confirm that the letter RHSP/31/920356 of May 29, 1992
accordance with a decision taken in conjunction with P.S. Ministry of
Health and the Chief Planning Officer, Ministry of
Health on the 20th
May, 1992". Annexure E says "We hold that the manner of
Miss Nyabela's dismissal was strictly correct
in terms of her
contract and the laws of Lesotho. Although not a contractual
requirement Miss Nyabela had been given several warnings
finally dismissed." I must confess that I have had problems in
reconciling the following
it is not correct that the Applicant was dismissed and the
circumstances that she describes (those of the undelivered letter),
why does the 2nd Respondent speak of the meeting of the 20th May
was the role of the Principal Secretary, the Chief Planning Officer
the Ministry of Health in the termination of Applicant's
appointment? Are they a Committee with the 2nd Respondent. If so for
what? Where have they derived the powers from? If so what
left with regard to termination or dismissal as far as the 2nd
Respondent is concerned,
did the 2nd Respondent wait until the 3rd June 1992 in order to
communicate the decision of the Committee and the 2nd Respondent?
What is the significance of this delay? Could it not be that the 2nd
was unsure what to make of the events of the 29th May 1992?
the Applicant already doomed? If she was already terminated on 20th
May 1992 what of the termination of the 30th June
the Applicant was terminated as against dismissal
for unlawful conduct why, speak about several warnings in Annexure E?
did the 1st Respondent not speak about the several warnings (in
Annexure E) in Annexure "A"?
several questions that could be asked to demonstrate the manifest
conflicts in the whole Respondents' case that makes
the case hard to
defend. This can only suggest unfairness. Mr. Molapo did not fare
face of above it is not helpful for the Respondents to hide behind
the protection afforded by clause 3 of the contract of
It is obvious that the 1st Respondent rash as he was in taking action
against the Applicant resorted to clause 3 when
he had in mind a
punishment to the Applicant -in response to her attitude to letters
to be sent to Industrial Area. May be on further
inquiry which would inevitably entail a hearing, the 2nd Respondent
would have found that there was insubordination
or misconduct on the
part of the Applicant. I say may be. With the sort of questions
against the Respondents, one is left with
an impression that
Respondents or some of them contrived documents against the Applicant
as time went along at times being an after
thought. This only gives
the impression that they were bent on exacting punishment without
unreasonably as bullies would do. Knowing that the flak will fall on
the politicians it is well known how bigger Civil
Servants have had
their way on the smaller Civil Servants. That is unjustified and
I need to
mention that I am persuaded that one can only dismiss for good
grounds and on proof of unlawful conduct in terms of the
15 of the Employers Act 1967. I am persuaded further that one can
dismiss who has authority to do so. (See LESOTHO
CORPORATION vs THAHAMANE RASEKILA (C of A (CIV) No.24/91). I have
already made a finding that I found the reasons
for termination of
the Applicant unconvincing and not fair. I do not think that I need
to address the question that there was or
there was no need for the
Respondent to exercise the right to terminate fairly any more than to
add my observation that the Third
Respondent is parastetal Government
Organisation in which "the Official or Officials who exercise a
discretion to terminate
a contract of employment by giving to the
employee concerned the minimum period of notice provided for in the
act capriciously, arbitrarily or unfairly. In
particular, if the real reason for giving to an employee a notice of
is some perceived misconduct or wrong committed by the
employee, the employee should be given a fair opportunity of being
on the matter, especially where it appears from the
circumstances that the
had a "legitimate expectation" that he would remain in
employment permanently in the ordinary course of events."
NUL v KOATSA C of A (CIV) 15 of 1986). I remain satisfied that in no
way would the third Respondent be precluded to exercise
his rights in
terms of clause 3 of the agreement at any time provided it gave
notice and acted properly. (See also VENTER v LEONI
1950 (1) SA 524
must come to the kind of relief that I must give to the Applicant, I
am not satisfied that the Applicant was on a permanent
I have already stated that the Third Respondent was a Government
Parastatal Project. I am persuaded that the Applicant
can hold the
third Respondent to the contract provided that it has acted properly
in terms of the clause 3 (See Venter vs Leoni
supra). It has been
held that the remedy of damages to the wrongfully dismissed employee
has never been "elevated to a rule
of law to the effect that
such contracts can be unilaterally terminated so that under no
circumstances can be unilaterally terminated
so that under no
circumstances can they be specifically enforced (see NATIONAL UNION
OF TEXTILE WORKERS vs STAG PACKINGS 1962(4)
151(T) at 157 at A-C. I
observe that that case has given a fair comment about the necessary
considerations in regard to where an
employee insists on specific
performance and the Court's discretion in that regard. It remains a
discretion. Thisi is so in answer
to whether on
that a termination has been unlawful an employee's reinstatement
is automatic and the remedy of specific performance
is open to a
servant as a general rule. This includes the Courts "being
obliged to the aggrieved party's choice to the specific
(See PHOMOLO SEBOKA vs LESOTHO BANK CIV/APN.227/91 - 17th December
1993 - per W.C.M, Maqutu AJ at pages 12 to
14) I have found the case
clear that the Applicant was dismissed on the 20th May 1991 which was
about fourteen months to the date when summons were
filed (on the
Z6th October 1992) and which is thirty four months to the date of
judgment. I have not been informed as to what the
Applicant has been
doing by way of being engaged in another job if that is so, If the
Applicant has since been employed this would
affect the orders that I
am to give now. In that event the concerned Respondents will be free
to come to Court for a necessary
declaration or order which would
seek to put right any aspects having a bearing on the orders. I have
also been made to believe
that it is the law that once there was no
dismissal there was no question of reinstatement.
above reasons I would grant the Orders :
as null and void the termination of employment of the applicant by
the 1st respondent.
applicant in her position as an office clerk of the 3rd
the respondents to pay applicant her salary with effect from 1st
June 1991 subtracting the monies already given
thereafter to the
date of judgment, plus interest at the rate of 11% per annum,
respondents to pay the costs of the Applicant's notice of motion.
Applicant Mr. Mosito
Respondents : Mr, Molapo
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