CIV/APN/271/92

IN THE
HIGH COURT OP LESOTHO

In the
application of:

MARINA
MOKHATLA (duly assisted by her husband) Applicant

VS

PAAVO
RUOTSALAINEN 1st Respondent

THE
PROJECT CO-ORDINATOR (Mr. J.L. McCloy) 2nd Respondent

RURAL
HEALTH SERVICES PROJECT 3rd Respondent

THE
PRINCIPAL SECRETARY FOR THE

MINISTRY
OP HEALTH 4th Respondent

THE
ATTORNEY GENERAL 5th Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi Acting Judge on the 15th
day of April. 1994

The
Applicant claims in her Notice of Motion the following prayers;

1. "Declaring
   as null and void the termination of employment of the applicant by
   the 1st respondent.

   
   

2. Reinstating
   applicant in her position as an office clerk of the 3rd respondent.

   
   

3. Directing
   the respondents to pay applicant her salary with

   
   

2

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.

4. Directing
   respondents to pay the costs of this application.

   
   

4. Granting
   applicant such further and/or alternative relief.
   

   
   

ALTERNATIVELY:

4. Directing
   the respondents to pay applicant monthly salary in lieu of notice.

   
   

4. Directing
   the respondents to pay applicant a severance pay and leave
   entitlements.

   
   

4. Directing
   the respondents to pay costs of this application.

   
   

4. Granting
   applicant such further and/or alternative relief."

   
   

Mr.
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 :

1. The
   Applicant was wrongly or was not wrongly terminated on the 29th May
   1992 and on the 3rd June 1992 in terms of Annexure B
   and C
   respectively.

   
   

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2. (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".

   
   

3. Whether
   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
   Annexure "A"
   which reads "the appointment may be terminated by either
   party, by giving one calender month's
   notice or paying cash in lieu
   thereof."

   
   

4. Whether
   Annexure "C" actually bears out the 1st and 2nd
   Respondent when regard is had to Annexure "E".

   
   

5. Whether
   on the strength of authorities (cases) cited the Applicant would,
   if a finding be made in her favour, insist on reinstatement
   and the
   benefits such as arrear salary and related benefits.

   
   

I always
find it useful to make a brief statement of annexures made to the
papers for ease of reference.

1. "
   "A" letter dated 28th April 1988 from 1st Respondent

   
   

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to Applicant being a statement of conditions of Applicant with the
3rd Respondent.

2. "B"
   Letter dated 29th May 1992, allegedly on behalf of the. 2nd
   Respondent, to the Applicant, being of dismissal "with
   effect
   from the 1st June, 1992"/

   
   

3. "C"
   Letter dated 3rd June 1992, from the 2nd Respondent to the Applicant
   "confirming Annexure B.

   
   

4. "D"
   Letter dated 29th June 1992, from Applicant's Attorneys S.M.
   Mphutlane & Co. to the 2nd Respondent "Re:
   dismissal of
   MARINA NYABELA.

   
   

5. "E"
   Letter dated 15th July 1992 from the 3rd Respondent to S.M.
   Mphutlane & Co. - being a reply to Annexure D.

   
   

6. "F"
   dated 20th May, 1992 from 2nd Respondent to all staff in alleged
   delegation of duties to the 2nd Respondent.

   
   

The
Founding Affidavit of the Applicant was accompanied by the seven
annexures stated above. The Respondents duly opposed and filed
their
Answering Affidavits per JAMES MCCLOY and was

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supported
by PAAVO RUOTSLAINEN (1st Respondent) and one LETAPATA MAKHAOLA the
Principal Secretary at all material times. The Applicant
in turn
filed her Replying Affidavit to the above Answering Affidavits.

The
Applicant was employed by the 2nd Respondent on the 28th April 1988
where the 1st Respondent was his superior but under the
2nd
Respondent who is the Project Manager, He is a successor to the
person who made the appointment of the Applicant, Applicant
says that
on the day of her dismissal she was asked by the 1st Respondent to
take some letters to a place near the Industrial Area,
Maseru.
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
vehicle to
ferry the letters. The 1st Respondent "became very annoyed
saying that I was refusing to obey her instructions".
The 1st
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.

After the
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

6

2nd
Respondent had written the letter of delegation (as alleged by
Respondents), Applicant says that the 1st Respondent had not
been
authorized by the 1st Respondent to terminate the said appointment of
the Applicant, The Respondents in reply say that the
1st Respondent
was empowered to terminate the contract. I do not agree that the
effect of Annexure F was to empower the 1st Respondent
to terminate
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.

One
cannot avoid reading annexure C with Annexure E. Annexure C says "I
confirm that the letter RHSP/31/920356 of May 29, 1992
is in
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
before being
finally dismissed." I must confess that I have had problems in
reconciling the following

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things:

1. If
   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
   1992.

   
   

2. What
   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
   powers are
   left with regard to termination or dismissal as far as the 2nd
   Respondent is concerned,

   
   

3. Why
   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?
   Was not
   the Applicant already doomed? If she was already terminated on 20th
   May 1992 what of the termination of the 30th June
   1992?

   
   

4. If
   the Applicant was terminated as against dismissal

   
   

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for unlawful conduct why, speak about several warnings in Annexure E?

5. Why
   did the 1st Respondent not speak about the several warnings (in
   Annexure E) in Annexure "A"?

   
   

There are
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
well.

In the
face of above it is not helpful for the Respondents to hide behind
the protection afforded by clause 3 of the contract of
appointment.
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
investigation and
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

9

cause or
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
unfair.

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
then section
15 of the Employers Act 1967. I am persuaded further that one can
dismiss who has authority to do so. (See LESOTHO
TELECOMMUNICATION
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
contract, cannot
act capriciously, arbitrarily or unfairly. In
particular, if the real reason for giving to an employee a notice of
termination,
is some perceived misconduct or wrong committed by the
employee, the employee should be given a fair opportunity of being
heard
on the matter, especially where it appears from the
circumstances that the

10

employee
had a "legitimate expectation" that he would remain in
employment permanently in the ordinary course of events."
(See
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
at 528)

I now
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
establishment.
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

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finding
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
performance".
(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
most instructive.

It is
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.

For the
above reasons I would grant the Orders :

1. Declaring
   as null and void the termination of employment of the applicant by
   the 1st respondent.

   
   

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2. Reinstating
   applicant in her position as an office clerk of the 3rd
   respondent.

   
   

3. Directing
   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,

   
   

4. Directing
   respondents to pay the costs of the Applicant's notice of motion.

   
   

T.
MONAPATHI

ACTING
JUDGE

15th
April, 1994

For the
Applicant Mr. Mosito

For the
Respondents : Mr, Molapo