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CIV/APN/414/92

IN THE
HIGH COURT OF LESOTHO

In the
Application of.

SECHABA
MICAH MAPHIKE Applicant

VS

LESOTHO
OIL (Pty) Ltd 1st Respondent

CHAIRMAN
OF APPEAL HEARING

OF S.
MAPHIKE 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice W.C.M Magutu Acting Judge, on 11th day of
March. 1994,

On the
27th November, 1992, Applicant instituted against Respondents what he
termed an application for a review in terms of Rule
50 the Notice of
Motion calls upon the Respondents to show cause, if any why.-

1. The
   decision to dismiss Applicant dated 26th June, 1992 from the employ
   of First Respondent herein shall not be reviewed and corrected
   or
   set aside,

   
   

2. Respondents
   shall not be ordered 2 to pay the costs hereof,

   
   

3. Granting
   applicant such further and/or alternative relief as this Honourable
   Court may deem fit

   
   

The Court
after checking the Rules noted that Applicant had made a mistake The
was no Rule 507 in our Rules reviews in the High
Court of Lesotho
1980 are government by Rule 50

When the
application was ready for hearing the record had swelled to 208 pages
Despite this endeavour by both aides to provide a
full record, the
crucial portion of the record of proceedings had not been provided
This was the minutes of the disciplinary hearing
of Friday 26th June,
1992 in which F Emit presided as chairman This was in fact the record
of proceedings which was before the
Second Respondent Water de
Villiers Cleverley during the appeal

When the
court discovered both parties had the record of proceedings of the
26th June 1992 when they appeared before the Second
Respondent on
appeal it insisted on its production so that the record of
proceedings could be complete. The view the Court

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took was
Chat it was the responsibility of the aggrieved party to have
provided whatever documents pertained to the matter under
review
which were in its possession In the Court's view it was immaterial
that the Notice of Motion had directed that.

"Second Respondent is called upon to despatch within fourteen
(14) days of the receipt of this notice, to the Registrar of
this
Honourable Court the record of proceedings sought to be corrected or
set-aside together with such reasons as he is required
or desired to
give;"

The
Chairman (Second Respondent) had on the 14th November, 1992 at the
beginning of the hearing of the appeal specifically asked
Applicant
if he had seen a copy of the minutes, applicant replied yes.

Both
parties co-operated with the Court and the copy of the minutes of the
disciplinary hearing was provided by Applicant within
20 minutes and
the hearing of the application proceeded The Court had been prepared
to postpone the matter for seven days so that
this important portion
of the record could be found The reason for the Court's desire to
proceed with the matter was that the date
of hearing had been given
more than a year ago, parties had waited for over 12 months to be
heard Consequently it was

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necessary
that the litigants be accommodated in order that finality could be
reached.

Both
parties had provided the Court with copies of Disciplinary and
Grievance Procedures which included how disciplinary hearings
should
be handled It was agreed that for purposes of the hearing annexure
"JM2" provided by Respondents should be used
This booklet
has 21 pages, it is substantially similar to Applicants annexure
"SMM1" Both booklets were prepared by JJ
Franken Office of
General Counsel Cape Town

It is
common cause that the Court does not have the jurisdiction to
adjudicate upon, determine and dispose of the matter in terms
of the
above rules which are part and parcel of the Applicants contract of
employment Only the adjudicator or the Chairman dealing
with the
disciplinary case has such power. An appeal is provided for in
Discipline and grievance Procedures of First Respondent
That appeal
is to the higher level of First Respondent's management and not to a
court of law Nevertheless the High Court as a
Supreme Court has
general Common Law powers of review

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of
associations, boards, officials or other persons exercising judicial
and quasi-judicial powers

This
Court's review jurisdiction is not meant to take away the powers of
those quasi-judicial persons to deal with the merits and
the
discretion that goes with the exercise of those powers, The Court's
general duty is to see to it that no failure of justice
or unfairness
of a serious nature has occurred Courts are not expected to set aside
proceedings, on review by reason of what they
perceive as
irregularities or defects in the record of proceedings or conduct of
proceedings unless these are grave and must have
caused serious
prejudice to one of the parties. The irregularity must be a gross one
-Rex v Kalogerpoulos 1945 AD 38 at page 51

The
Courts' have sometimes found themselves interfering with decisions of
Boards where they have acted in a grossly unreasonable
manner. See
the majority decision in Loxton v. Kenhardt Liquor Licensing Board
1942 AD 275 It is worth noting that De Wet C J.
in his dissenting
judgment at page 281 dealing with a Licensing Board said'

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"the Board local men of standing who could apply local knowledge
just in such cases as the present In my opinion the Court
would be
usurping the functions of the Board if it treated the matter
virtually as an appeal a question of fact "

In this
case being one governed by rules which form part of the contract the
adjudicators could not use or apply local or personal
knowledge
because they are selected because they are expected to be impartial
There can be no information or knowledge used that
is not declared on
the record De Wet C J emphasizes that a reviewing Court has not and
should not act as if it is a court of appeal

The body
or person adjudicating is nevertheless obliged to direct his mind to
the question at issue -See S A Broadcasting Corp v
Transvaal Township
Board 1953 (4) S A 169 If the person or body involved fails to do so
this might amount to denying such a party
a hearing at all which must
be a serious irregularity In all these matters, the onus of showing
irregularities complained of is
on Applicant Applicant did not only
have the onus of proof He had to show that Respondents were in breach
of the rules and that
this led to prejudice. If we follow De Vos v
Die Ringkommissie Van Die N G Kerk 1952(2) S A 83

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it seems
that voluntary bodies are bound to go by their rules, if they do not
courts are obliged to interfere See also Elsworth
v. Jockey Club of S
A 1961(4) S A 142 There was no real dispute on the binding nature of
the First Respondents rules as implied
in the employment contract

The Court
had a great deal of problem about these Disciplinary and Grievance
Procedures which are to guide the Court in dealing
with this matter
They obviously deal with human relations, which always touch on
delicate issues and the right live Matters of
employment touch on the
very survival of employees in this world where without money is life
deciding becomes very difficult It
seems the employer does what it
can to retain and induce its employees to stay These inducement after
long service become very
lucrative in terms of money Therefore, it is
only fan that long service employees should be treated with special
consideration
and sympathy and their problems should not be ignored
Indeed on page 10 of the Disciplinary and Grievance Procedures
booklet supervisors
are enjoined look after employees with problems,
find out their problems, hear both sides of those involved and even
suggest where
appropriate that

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expert
advice should be obtained. The instructions conclude by telling
supervisors to-

"be suppoitive while reminding the employee that further
complications will arise if personal problems begin to affect
performance
at work."

Courts
are used to cases where rulings are made impartially and impersonally
in civil proceedings. They are normally only obliged
to be sensitive
to the people involved in matrimonial proceedings where minor
children are involved.

The
problems of the Court were further complicated by the following
passage about a hearing -

"The most fundamental rule relating to any disciplinary
procedure is that the employee must be accorded a hearing. The
procedure
adopted may be extremely informal and requirements will
vary from case to case."

What is
obvious is that a serious case cannot be treated with informality.
The passage quoted above appears on page 12 of the Disciplinary
and
Grievance Procedures. This is preceded on page 3 by the following
warning:

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"3 Disciplinary hearing In serious cases or where initial
investigation or the disciplinary interview establishes either
conflicting evidence or a disagreement between supervisor and
employee, a hearing should take place This formal hearing should be

chaired by a manager not directly involved in the making of the case
against the employee The role of the chairman is to gather
facts by
hearing the evidence as submitted by the supervisor and the employee
(and witnesses where appropriate).

The
question the Court must ask itself is whether or not what was said
Price J said in Garment Workers Union v De Vries & Another

1949(1) S A 1110 at page 1110 applies to this case Prince J said

'"In considering questions concerning the administration of a
lay society governed by rules, it seems to me that a Court must
look
at the matter broadly and benevolently and not in a carping critical
and narrow way A court should not lay down a standard
of observance
that would make it always unnecessarily difficult - and sometimes
impossible to carry out the constitution I think
I must approach such
enquiries as the present in a reasonable common-sense way, and not in
a fault finding spirit that would seek
to exact the uttermost
farthing of meticulous compliance with every detail, however
unimportant and unnecessary, of the

constitution "

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The
Garment Workers Union case involved an election of a secretary while
this involves bread and butter, a service of 8 years and
future
prospects of employment involving thousands in Maluti or Rands. The
approach to be followed and the subject matter must
because of
dissimilarity differ from that of the Garment Workers Union Common
sense is and must always be an ingredient in the
decisions of the
courts The Court cannot be broadly and benevolent and uncritical
without hurting one of the parties Since money
or economic interest
are at stake here to say the court should not be penny pinching would
be to be wide off mark

At the
root of Applicant's complaint as more fully appears in his affidavit
are

1. "disciplinary
   hearing will not normally be taken against an employee without a
   disciplinary interview between an employee
   and his supervisor "

   
   

2. "The
   employer, in this case Respondent, is obliged to inter alia give
   proper weight to factors which may have influenced
   or caused the
   employees default Paragraph 7,3
   

   
   

3. "Places
   the onus or burden of proof of proving the employee's misconduct or
   poor performance on

   
   

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the management." - Paragraph 7 3

4. "On
   or about 10th December, 1991 Applicant was given a final written
   warning despite the fact that his staff were not giving
   him their
   support and co­operation." - Paragraph 8.3.

   
   

4. With
   the final warning went the recommendation that Mr, Maile,
   Applicant's supervisor was to undertake frequent checks to ensure

   that controls were implemented and maintained as well as the quality
   of checks in order to minimise stock losses, mr. Maile did
   not
   comply with these recommendations at all Paragraph 8 5

   
   

5. 
   On
   or about 26th June, 1992 at Mr. Maile's instance, Applicant was
   charged with breakdown in controls procedures and standing

   instructions which allegedly caused stock losses which were alleged
   to be evidenced by the audit report - Paragraph 9 1

   
   

4. The
   hearing and letter of dismissal do not in any way address the issue
   of the recommendation that Mr Maile was expected to carry
   out
   frequent checks to ensure that controls are implemented and
   maintained Paragraph 9 2

   
   

4. At
   the hearing no proper weight was given to the factors which might
   have caused Applicant to default in as much as management
   had found
   out the Applicant's staff did not give him support and co-operation
   - Paragraph 9,2

   
   

(i) The reasons given in Applicant's

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appeal deal with previous warnings and loss of stock and no weight
was given to factors that influenced or caused Applicant to
default
in the light of lack of support and co-operation of the staff of
Applicant. - Paragraph 93

(j) The spirit and the letter of the Disciplinary and Grievance
Procedures was not followed Paragraph 9 4

If indeed
Applicant could be able to demonstrate that his dismissal by
Respondents was "contrary to the letter and to the spirit
of the
Disciplinary and Grievance Procedures", the Court would have to
accept, it had jurisdiction In order to succeed, however,
Applicant
would have not only to show these breaches of the letter and spirit
He would further have to show that there were not
only irregularities
or defects in the proceedings but that they were or such a grave and
prejudicial nature that a failure of justice
resulted from them

Respondents
in reply challenged reviewability and proceeded to deny some
allegations and admit other

Respondents
rely mainly on Mr Maile, the Applicant's supervisor and accuser to
refute allegations made by Applicant What Respondents
in

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opposition
through Mr Maile are saying about the appeal is that'

1. "None
   of the procedures were wrong, and is furthermore submitted that the
   only hearing which is relevant for present purposes,
   is the final
   appeal hearing."

   
   

2. "Proper
   weight was given to all the factors involved, and the applicant's
   misconduct was duly established to the satisfaction
   of the persons
   who were authorised to take decision " -Paragraph 10

   
   

3. Applicant
   was given final warning After that Applicant's excuse that his staff
   were not giving him their support is not acceptable
   - Paragraph 13

   
   

4. Mr
   Maile, the Applicant's supervisor annexes the proceedings of 13th
   November, 1991 marked annexure "JM3" where applicant
   was
   charged with FAILURE TO MEET PERFORMANCE STANDARDS which included
   failure to have adequate stock controls, failure to check
   and
   administer Tank Shift Reports and Tachograph Charts, and failure to
   implement instructions/recommendations As appears in
   Annexure "JM3"
   applicant admitted all charges against him In so far as Applicant
   blamed lack of co­operation and
   support from staff under him.
   Applicant was told he was responsible for the performance of staff
   under him and that it was his
   duty to take appropriate disciplinary
   action against them. - Paragraph 13.

   
   

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5. Mr
   Maile denies that the final warning contained a recommendation that
   Mr Maile should check and ensure that controls were implemented
   and
   in support of this annexes "JM4" a letter which does not
   contain such a recommendation Mr Maile adds that he has
   no
   operations background although he made some checks in an attempt to
   minimise stock losses but he could not identify the source
   of stock
   losses He noted failure on Applicant's part to follow compulsory
   procedures Despite his regular exhortations and instructions
   to
   Applicant, applicant failed dismally in this regard Paragraphs 15 1
   and 15.2.

   
   

5. Mr
   Maile points to a large scale conspiracy including Applicant and
   drivers to steal which has caused First Respondent (the employer)
   to
   lose approximately M750,000.00 in 18 months Evidence is, however,
   not enough to lay a criminal charge. Ever since Applicant's

   dismissal, these stock losses have suddenly come to an end -
   Paragraph 16.2.

   
   

5. Mr
   Maile says eventually it transpired that more goods were taken out
   of the depot than was accounted for Physical inspection
   is a
   relatively easy matter through a process called "dipping"
   and the physical inspection is acceptably accurate Another
   system of
   checks was through tachographs, these were deliberately tempered
   with and were not properly working - Paragraph 16
   3 and 16 4

   
   

5. Mr
   Maile says applicant was given a full and fair hearing in which he
   was treated
   

   
   

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with "kid gloves".

(i) Mr Maile feels Applicant is trying to blame him for not
adequately policing him whenApplicant as depot manager was the one

solely responsible for seeing that procedure were followed He adds
the hearing was "full, fair proper and complete "
-
Paragraph 17 1 and 17 2

(j) Mr Maile denied the hearing is quasi-judicial - Paragraph 19 1

If
indeed, the hearing has indeed been "full fair, proper and
complete" then Applicant application must fail even if the

hearing is quasi-judicial The hearing was ex facie quasi-judicial and
Counsel for Respondents could not press that argument

It
remains for me to go carefully through the proceedings in order to
determine the merits and demerits of this review application

I went
through the record or minutes of proceedings of the disciplinary
hearing in which Mr F Smit presided The records as already
stated is
the one that the parties had belatedly supplied me. It is dated 26th
June, 1992 and is styled "Minutes of the Disciplinary
and
Grievance Procedure Booklet" annexure JM2 (which has been agreed
by both to be

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working
document) on this matter of the record at page 19 provides,-

"It is of importance to record everything that transpires at a
disciplinary hearing Minutes of the hearing should be prepared
as
soon as possible and placed in the employee's file,

"In the event of an appeal, the minutes of the original hearing
should be handed to

appointed chairman of the appeal hearing Normally, tile chairman
would review the minutes and/or documents relating to the
hearing/incident
Only in exceptional cases, shall further oral
evidence be allowed, "

"It has been suggested that an appeal should in all cases be a
complete rehearing of the matter I do not believe a complete
hearing
is always required if, however, an employee wants, this should not be
rejected outright However, the parties could agree
on something less
extensive if they so wished "

Having
perused this portion on page 19 dealing with the record in the Guide
to Disciplinary and Grievance Procedures, I am unable
to agree with
Mr Maile that "the only hearing relevant for the present
purposes, is the final appeal hearing" The reverse
is the case,
it is minutes of the original hearing that are the most important

This
record of 26 June,1992 causes a few blushes because it is far from
satisfactory This becomes apparent when it is compared to
the minute
of the

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Disciplinary
Hearing against Applicant dated 13th November, 1991 in which Mr J H
Pienaar presided These are marked "JM3"
This record should
also be compared with Appendix C the minutes of another earlier
disciplinary hearing against the Applicant.
These minutes are
detailed and meticulously kept The record kept by Mr. F Smit does not
reveal that he was mindful of the fact
that this was a formal hearing
which in terms of page 3 of the Guide to Disciplinary and Grievance
Procedures booklet he was obliged
to conduct The documentary evidence
that was handed in is not shown nor does what is written on the
original minutes of 26th June,
1992 correspond with the documentation
that forms part of the record in this review Applicant

The
record of the adjudicator at the appellate stage has not been able to
reconcile the documents with the numbering of the original
record
Were these before the adjudicator of first instance? How did they
come to the adjudicator who dealt with the appeal and
in what order?
These are questions that cannot be answered. The record taken by Mr.
W de Villiers Cleverly (the adjudicator on
appeal) is just a record
of arguments pleas of Applicant and submissions.

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There are
two charges which Applicant had to answer These (according to the
minutes of the Disciplinary hearing before Mr F Smit)
are as follows'

1. Breakdown
   in controls, procedures and standing instructions which led to stock
   losses as evidenced in the field audit report completed
   by Mr R Bath
   This occurred after the previous disciplinary hearings and
   subsequent training.

   
   

2. Abuse
   of company telephone and attempting to disguise the fact after being
   warned verbally in this regard after a previous incident.
   Refer to
   telephone account December, 1991 for Number 322208 This charge was
   dropped See page 2 of the disciplinary hearing minutes
   of 26th June,
   1992

   
   

The first
charge and the evidence adduced need examination No formal evidence
was led according to the minutes Applicant was shown
stock loss
figures as detailed in May 1992 There was not attempt to show and
prove the loss between 13th November, 1991 and May
1992 or June 1992.
This was most important because according to the charge this loss
"had occurred after previous disciplinary
hearing."
Paragraph 16 2 of Mr. Maile's affidavit made on behalf of the
Respondents did not help in this matter because

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it states
the loss was over a period of 18 months Applicant according to the
original record dated 26th June, 1992 was shown a loss
of M100,242 65
in addendum "B" (which was not marked in that manner) Mr
Maile's affidavit puts the loss at M750,000 00.

I decided
to examine the Field Audit Report to determine whether the date of
the losses and failure to comply with the procedures
and standing
instructions that buttressed the control were shown I found they were
not All that was shown were the dates of the
three visits in May 1992
that the field auditor had made. There are many comments but in
particular they involve debts that are
less than 30 days old
Dishonoured cheques less than 3 months old that have not been
redeposited The audit report shows that other
people are responsible
but quite properly the manager must answer

I then
perused a Memorandum on the Eastern Region Field Audit Report of
March, 1992 to end of May, 1992. This report shows other
depots had
minor problems that were immediately rectified or suitably resolved.
When it came to deal with Maseru, the following
was said -

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"However, the same cannot be said of Maseru Depot as the audit
revealed that there had been a complete breakdown of procedures
and
controls In fact the situation is of such proportion that remedial
action on the part of management cannot be delayed any longer
"

This
memorandum was used to frame a charge against applicant

This
charge is phrased in general terms. The nature of the controls
procedures and standing instructions was not clearly spelt out
The
manner of their breach was also not specified What is beyond any
dispute is that Applicant was revealed to be unfit to command
and to
manage subordinates That he was unfit to be a manager was long
discovered, there can be no shadow of doubt about that

The
record as presented and built up by Respondents' for purposes of
resisting this application reveals the following

1. 1 On
   the 29th July, 1991, Applicant was charged with exactly the same
   offence of breakdown of stock control. On top of those were
   Tank
   Truck shift reports not checked and administered properly,
   fictitious recording of dips on form 310, no proper checks of

   invoice adjustments and non-compliance with

   
   

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instructions/recommendations The record of proceedings is 15 pages
long It emerged that Applicant had not taken any disciplinary
steps
against his subordinates who were to blame for his problems
Disciplinary proceedings against his staff were recommended Drivers

of transport contractors were to be confronted to explain anomalies
Finally the Field Operations Manager was to do frequent checks
to
ensure that controls are maintained and quality of checks are up to
standard

2. On
   the 13th November, 1991 about four months later applicant was again
   charged with a similar though much more general offence
   of failure
   to meet performance standards Details were the same, that is failure
   to have adequate stock control, failure to check
   tank shift reports
   and failure to implement instructions/recommendations See annexure
   "JM4" The same complaint about
   the staff that did not give
   him support and co­operation was found to be at the root of his
   problem He did not check and
   supervise the staff to see the standing
   instructions are kept Finally, it was recommended that his
   supervisor undertakes frequent
   checks to ensure that the controls
   are implemented and maintained as well as the quality of checks are
   kept up to standard He
   was given a final warning

   
   

3. Then
   followed the 26th June hearing that was virtually identical with the
   two others, the charges being the same. The difference
   is that the
   record at the hearing of first instance on this occasion is
   deplorable The outcome of this was the dismissal of

   
   

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Applicant and we are reviewing these proceedings

In the
light of the aforegoing, it seems Applicant who was clearly unfit for
management was maintained at his post for a reason
that I find
puzzling Was the senior management of First Respondent intent on
ruining the First Respondent company? Mr Maile, the
Manager who laid
the charge is either untruthful when he says the final warning that
was given to Applicant did not direct him
to police and keep
Applicant under surveillance or the minutes of 13th November, 1991
were never part of the record at the hearing
of first instance Indeed
they do not form part of the package W de Villiere Cleverley, the
Second Respondent (who is adjudicator
of the Applicant's appeal
annexed) to the record along with the record or his affidavit What he
annexed bear his initials of W
C.I just as annexure that go with J
Maile'a affidavit bear Mr Maile's initials of JM1,2,3,4,5,6,7 and 8

The
matter under review is one of employment for which Lesotho has a law.
Section 11(2) of the Employment Act of 1967 provides that

"No person shall employ any employee and no

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employee shall be employed under any contract except in accordance
with the provisions of this Act any term or condition less favourable

to the employee than any corresponding term or condition of this Act,
shall be construed as though the corresponding term or condition
of
this Act were substituted for such less favourable term or condition
of service in such contract"

"Provided that nothing in this Act shall operate so as to
invalidate any term or condition of any such contract which is more

favourable to the employee than the corresponding term or condition
of the Act"

The
Labour Code of 1992 only came into operation on the 1st April, 1993.
The Court in these review proceedings is obliged to check
whether or
not the provisions of the Employment Act of 1967 were followed. The
law of the day bent over backwards to see that the
employee is
protected and saw to it that whatever was favourable to employees in
the provisions of contracts of employment above,
the minimum standard
set by the Employment Act of 1967 would be enforceable This means if
the employer has chosen to make a contract
or rules that treat
employees with "kid gloves", the adjudicators in the
disciplinary case were bound to enforce them

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In terms
of Section 15(3) of the Employment Act of 1967 grounds for dismissal
are specified. The Act emphasises that the grounds
mentioned are the
only ones and no others Those relevant to this review are

1. Misconduct
   which would entitle the employer at common law to dismiss the
   employee summarily

   
   

2. Wilful
   disobedience to lawful orders given by the employer

   
   

3. Lack
   of skill the employee expressly and impliedly holds himself to
   possess

   
   

The
proceedings under review do not disclose criminal conduct such as
theft or dishonesty or insubordination for which under the
Common Law
an employee might be dismissed It has to be observed that in the
previous disciplinary hearings, there was evidence
of falsification
of the records that could have legitimately led to Applicants
dismissal

There is
no allegation that Applicant ever expressly or by implication held
himself as possessing skill or ability as manager. All
evidence on
record shows he could not command or lead men He also displayed
incompetence in his failure to supervise his subordinates
and to
check the work Training is said to have been prescribed as a solution
and he was allowed to continue as manager The ability
to

25

command
and enforce discipline was never remedied There is always the
question whether or not any employer was entitled to discipline

Applicant for having no gifts of management

In the
case of Wallace v Rand Daily Mail 1917 AD 478 a servant had ben
dismissed for negligence because he had allowed a defamatory
article
to be published without due enquiry The appellant who had been a
Managing Director of respondent claimed damages Respondent's
defence
was that Appellant was habitually negligent in the discharge of his
duties Innes C J at pace 482 as follows

"Every servant, every person who enters into the employ of
another, implicitly undertakes to exercise due and reasonable
diligence in the discharge of bis duties And a breach of that
undertaking will, under certain circumstances, entitle the employer

to dismiss him "

While an
employer ought not to keep an employee at his post if he is not
capable of discharging the duties of that office, it remains

debatable that the inability is a disciplinary offence It is unjust
to hold the employee responsible for a wrong appointment and
to
punish an employee for it by putting its effects squarely on the
shoulders of the employee and so

26

attribute
culpability solely to the employee See A guide to South African
Labour Law by Rycroft and Jordaan page 58 Yet this is
what was
traditionally done because by applying for a position, the employee
is deemed to warrant impliedly that he or she is suited
to that
position.

In our
law, the employer is free to terminate his employee's employment
without giving reason provided he gives the employee due
notice See
Section 14 of the Employment Act of 1967 read with Section 13, There
was no reason why such termination was not made.
In Kwete v Lion
Stores Pvt Lty 1974(3) S a 477 the plaintiff's employment was
terminated after due notice Defendant reason given
in the written
notice was that it was re-organizing the business The real reason it
emerged when Plaintiff had brought a claim
of damages for wrongful
dismissal that Defendant believed because Plaintiff spent a
considerable time studying his employment contract
and that the sales
he was effecting had fallen off considerably, as revealed when
company's accounts were made up Plaintiff claimed
he was being
victimised for claiming his rights Defendant had later given him a
good testimonial The court after noting that an
employer

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could
terminate employment without assigning a reason after due notice, it
is not unusual for an employer to take a charitable view
of his
ex-employee's services when asked for a testimonial Greenfield J who
presided after analyzing the facts concluded

"His dismissal was due, I believe, to the fact that his
preoccupation with his supposed unjustified treatment resulted in
a
deterioration of his work "

I have
chosen to deal with the facts of this case at length to show that
there were alternatives of dispensing with Applicant's
services
without charging him with a disciplinary offence Surely Employment
Act of 1967 was applicable or there ought to be a term
in the
contract of Applicant's employment that could enable the employer to
get rid of him without pretending he had committed
an offence by not
being endowed with the ability to manage a depot and its staff To
quote from Miller J in Stewart Wrightson (Pty)
Ltd v Thorpe 974(4) S
A, 67 at page 79A

"I cannot regard this otherwise than an ignonimous dismissal of
Applicant from the employment of First Respondent_____"

If the
agreement between parties obliged the employer to give Applicant
reasons as in Blackley v

28

City of
Salisbury 1979(1)5 A 348, then Applicants failure to manage the depot
could have been given as the reason for terminating
Applicants
employment after due notice.

In the
case under review, the record discloses that since June, 1991, the
employer had long discovered that the employee was not
up to the job
In November, 1991, it was clear that he just could never manager his
staff instead of terminating the employment
contract he was given a
final warning as if want of ability is disciplinary offence The
problem here is that the promotion of Applicant
seems to have been an
error of judgment on the part of the employer This error was
persisted in even when it was discovered that
Applicant was hopeless
The manner of reaching the objective which was the removal of an
unfit manager was notdirect and business-like
To pretend there was a
breach of discipline was being unfair and devious.

The
record is silent on when applicant became a manager If his eight
years with the First Respondent company was as manager, we
are not
told We therefore, cannot say if his recruitment was

29

inefficient.
He probably was promoted If he had displayed some ability and had
become culpably remissive towards his duties then
disciplinary
proceedings might have been appropriate It was the duty of the
employer's investigating officer to do what the Guide
to Disciplinary
and Grievance Procedures provides at page 12 of the booklet It
provides -

The most fundamental rule relating to any disciplinary procedure is
that the employee must be accorded a hearing This entails that
the
employer must in all instances;

(i) investigate the alleged offence properly and obtain promptly all
possible information in regard thereto,

ii) give due consideration to all circumstances upon which he wishes
to rely for disciplinary action, especially where a possible

termination might follow

(iii) give proper attention and weight to factors which may have
influenced or caused the employee's default

(iv) duly consider the employer's work, personal circumstances and
other relevant factors

In terms
of the proviso Section 11(2) of the Employment Act of 1967 the
conditions favourable to an

30

employee
such as the above had to be followed They do not seem to have been.
The reason being the Mr Maile claimed to be at paragraph
8 of the
Answering Affidavit the following concerning his ability to
investigate -

1. He
   does not seem to know that the final warning contained a requirement
   that he (as applicant's supervisor)

   
   

"should undertake frequent checks to ensure that controls are
implemented and maintained as well as the quality of checks
are kept
up to standard."

If Mr Maile had indeed investigated the case as he was obliged to, he
would have not made the denial because this directive comes
from the
last page of annexure "JM3" which Mr Maile annexed to his
Answering Affidavit The denial is at paragraph 15
1

2. Mr
   Maile claims he had not the training and competence to investigate
   what was going on See paragraph 15 2 of his affidavit where
   he said
   -

   
   

"I certainly check from time to time whether controls are
maintained, in an attempt to minimise stock losses As appears in
the
minutes of the enquiries, I do not have the operations

31

background, and was not able to identify the sources of the stock
losses "

If Mr Maile had no such impediments to doing investigative work some
one else ought to have done the investigation

3. Neither
   Mr Maile's Answering Affidavit or the Minutes of the accused's show
   any consideration was given to all circumstances on
   which Mr Maile
   wished to rely at the disciplinary hearing Facts were never clearly
   and properly put for the chairman to gather
   as expected on page 3 of
   the Guide on Disciplinary and Grievance Procedures booklet paragraph
   13 Therefore, the record does not
   show all what transpired at the
   hearing As already stated, it was very badly taken. The formal and
   serious nature of the hearing
   was largely ignored

   
   

4. The
   accused's personal details such as when he became depot manager, his
   experience, his training if any, his problems with the
   job, details
   of his actual default are not properly and clearly presented This
   was binding in terms of A (iv) on page 12 of the
   Guide to
   Disciplinary and Grievance Procedure booklet If at all such
   information was gathered, it was not presented to the chairman
   or
   adjudicator for collection and consideration

   
   

The other
problem that the adjudicators both at first instance and on a appeal
missed were that failure to meet performance standards
was not a
ground

32

for
dismissal in terms of Section 15(3) of the Employment Act of 1967 The
Act only states those are the only grounds and no others
A page 21 of
the Guide on Disciplinary and Grievance Procedures booklet, an
employee may be found guilty of sub­standard performance
In
essence that is what Applicant was guilty of

The only
offence that Applicant might have been guilty of is that of
disobedience of orders The difficulty of the Respondents would
be
that Section 15(3) of the Employment Act of 1967 caters only "for
wilful disobedience of orders given by an employer "
There are
no orders that are specifically said to have been given and which the
accused deliberately disobeyed. The record shows
no such orders. All
that the record shows is incompetence, failure to run the depot and
to impose his authority on subordinates

There is
no way that the charge of breakdown in controls, procedures and
standing instructions which led to losses to the company
could be
fitted into categories that entitle the employer to dismiss its
employee in terms of Section 15(3) of the Employment Act
of 1967 To
that extent the proceedings are

33

irregular

It seems
to me that both the adjudicator at first instance and on appeal
erroneously disregarded the Employment Act of 1967 and
the First
Respondent's Guide on Disciplinary and Grievance Procedures and
therefore, made a fundamental error that made them proceed
on the
wrong footing Stratford J A in Union Government v. Union Steel
Corporation 1928 AD 220 at page 234 in such circumstances
concluded:-

"If a discretion is conferred by Statute upon an individual and
he fails to appreciate the nature of that discretion through

misreading the Act which offers it, he cannot properly exercise that
discretion In such a case a Court of law will correct him
in order to
direct his mind to the true question which has been left to his
decision "

If the
decision in the instant case was erroneous (as I have given reasons
for thinking it was) it constitutes an irregularity reviewable
by a
Court of law - S A Broadcasting Corp v Transvaal Township Board
1953(4) S 169 at 177 A.

In this
case (unless information was on record to show that at one time
Applicant had the capability to

34

manage
the depot and its staff) wilfulness or defaulting in failure to
maintain controls could not be established It has not even
been
established when Applicant became the depot manager In fact all
available information on record shows Applicant never could
manage a
depot, even sending him for further training could not help If before
bringing the disciplinary proceedings details on
work performance,
qualifications, training, history and length of experience had been
given due consideration as the investigator
was obliged to do these
disciplinary proceedings might not have been brought Because contrary
to Disciplinary and Grievance Procedures
at page 12 of the booklet
the supervisor did not

"give proper attention and weight to the factors which may have
influenced or caused the employees default . duly consider
the
employee's work and personal circumstances and other relevant factors
"

That
being the case the supervisor who (on behalf of the employer) placed
the matter before the disciplinary committee did not investigate
and
analyze the information as he was expected to do The record does not
show he did If he had done so he would have realised that
no offence
'had been committed on the

35

faces on
record Inability to do a job can never be a disciplinary offence

If I am
wrong in holding that a man cannot be charged by an employer of a
disciplinary offence because of his inability to do a
job where there
is no wilfulness or culpability of any kind, then I believe the Court
can interfere on the ground that such a charge
is grossly
unreasonable In so saying I quote from Murray J in Gliksman v
Transvaal Institute of S A Architects 1951(4) SA 56 at
62G where he
said

"It is only where the unreasonableness was so gross as to either
to raise an inference of its being prompted by mala fides
or ulterior
motive or to show that the person making the decision did not apply
his mind to the matter that the court will interfere
"

I feel if
indeed the supervisor investigated this matter (a fact which the
record does not show) then he did not apply his mind
to the facts at
all

The two
adjudicators also fell into the same trap They assumed that Applicant
must have wilfully failed to supervise and command
his depot They
both say as he was in charge he must be held responsible, therefore,
he is guilty of the disciplinary offence of

36

failing
to maintain controls in the depot Indeed the question of his
Applicant's inability was considered irrelevant He raised this
in his
defence but it was not considered relevant

First
Respondent did not digest the facts revealed by the two previous
disciplinary hearing to the effect that Applicant could not
command
and supervise men These glaring facts did not register in the minds
of the investigator of the matter and the adjudicators
If the First
Respondent had not made the wrong assumption that being in command is
proof of ability to manage, the disciplinary
charge might have not
been brought against Applicant

As
already stated, it is not only the question of breach of First
Respondent's disciplinary rules The Employment Act of 1967 in
my view
does not permit an employer to level a disciplinary charge of the
type that was levelled against Applicant. The Employment
Act of 1967
was meant to protect employees and create a healthy work environment.

There is
no doubt that the Respondents were obliged to terminate the
employment of the Applicant

37

but not
through disciplinary proceedings It seems to me that the First
Respondent ought to have long terminated the employment of
Applicant
Pretending he has committed a disciplinary offence was unfair and
untruthful He could have been requested to resign or
been given
notice that his employment was being terminated in terms of the laws
of Lesotho or in terms of his contract.

It
certainly was never the Law of Lesotho that if an employees is found
incompetent "then in the eye of the law he stands in
the same
position as if he had been negligent in the discharge of his duties "
Ndamase v Fype-King NO 1939 EDL 259 at 262
The reasoning of the
Ndamase case belongs to the past era It is doubtful if today such
reasoning is acceptable simply because it
favours the employer at the
expense of the employee There is, however, a great deal of difference
between what was involved in
that case and the present case Wille &
Millin Mercantile Law of South Africa 17th Edition at page 275 states
that in entering
into a contract of employment, the employee
impliedly warrants his ability to do the work he undertakes In this
case, the employer
had known the limitations of Applicant for over a
year, therefore,

38

he had no
illusions about him

There is
no question of condonation but here we are dealing with an employee
who was long found to be unable to manage a depot There
is no more
any question of any misrepresentation on the part of the employee He
is being kept despite his drawbacks in the mistaken
belief that he
can be improved If all efforts have failed, the First Respondent
ought to have terminated his employment in a straight
forward way by
calling a spade a spade,

Mr Maile
makes wild allegations that Applicant must have been acting in
concert with thieves, He believes the company lost M750.000
000
during the past 18 months If that is so, the police ought to have
been called in instead of making unsubstantiated allegations
of this
nature Mr Maile's affidavit shows a man who cannot be relied upon He
says he had not been directed to supervise and ensure
the controls
are in place at paragraph 15 1 He provides annexure "JM3"
which shows he had in fact been so directed, He
says he had no
operational experience and training to check the source of the losses
at paragraph 15.2 But at paragraph 16 3 he
says

39

"I explain that a physical inspection is a relatively easy
matter, since one climbs on to the truck and inspects physically
The
process if called "dipping" Every compartment is
calibrated, and physical inspection is acceptably accurate "

To make a
person like Mr Maile a prosecutor, when he is in fact a co-offender
(in the sense that as Managing Director he had co-responsibility

along with the Applicant (the Maseru depot Manager) for the losses
and break-down of controls is hardly a fair method of conducting
a
disciplinary hearing It gives an impression that Applicant was being
sacrificed for the sins of many. Mr Maile is hardly a bed-rock
on
which a fair hearing can be based because he ought also to have had
his job terminated for incompetence which forms the basis
of offences
that accused was charged with Then it seems the First Respondent
company violated its own Guide to Disciplinary and
Grievance
Procedures at page 21 of the booklet where it says.-

Eguality of treatment is an important element of the general
perception of fairness and equity An employer who had not dismissed

others for the same offence will therefore have to justify to the
Court (or Union) that he had good reasons for distinguishing
between
employees "

Maybe
First Respondent intends to bring similar

40

disciplinary
proceedings against Mr Maile If he does, the Laws of Lesotho would
not permit him so to do for the reasons already
disclosed above

What
appears in the minutes of the disciplinary hearing of the 26th June,
1992 at page 1 does not disclose that there were in fact
standing
control procedures If that was not so how could Applicant be
requested by Mr Maile to propose in writing procedures to
overcome
the problems If, indeed Applicant believed the procedures were
unworkable and the auditors' reports were dated the beginning
of
June, 1992 then Applicant could not really have defaulted by the 26th
June, 1992 when the disciplinary hearing was held In any
event these
were not followed up according to Mr, Maile It seems Mr Maile ought
to have followed them up Since the procedures and
the standing
instructions that bolster controls were never specified or singled
out one by one they could not be specifically addressed
The onus of
putting facts before the adjudicator was on the man representing the
employer This was not discharged

A lot has
ben made about Applicant's admission of

41

guilty.
This is not helpful because it is really an admission of incompetence
Rycroft and Jourdan in A Gmde to South African Labour
Law at cages
211 to 212 have summarised the issue at stake, when they say

"Culpability is a factor which affects fairness of a dismissal
while it may be fair to punish an employee who refuses to perform

properly, it will not be fair to do so if the employee is not capable
of performing properly, There is no point, it has been said,
in
trying to discipline an employee for doing something he cannot do
Bearing in mind that unsatisfactory work performance is often
the
result of lack of skill or training, or even poor selection on the
part of the employer. This approach is no doubt correct
"

That does
not mean an employer cannot terminate his employee's appointment, but
he cannot try him disciplinary as if he has wilfully
defaulted That
would not be fair Page 11 of the Guide to Disciplinary and Grievance
Procedure booklet speaks of a fair disciplinary
hearing The two
adjudicators both at first instance and on appeal did not realise
that being incapable of performing properly in
a work situation can
never be a disciplinary offence Applicant was tried for a
non-existent offence Therefore, Appellant was not
fairly tried
because of an error caused by lack of perception of what the rules of
the First Respondent (the employer) required
I have already said
further that sight was lost of the

42

law of
Lesotho on the matter

In Martin
v Durban Turf Club and Others 1942 AD 112 at 126 Tindall J A. said -

"The test of fundamental fairness, however, must be applied with
due regard to the nature of the tribunal, adjudicating body
and the
agreement if any, which may exist between the persons affected.

The
fairness that the court has to review must be considered in relation
to work performance and the expectations of the parties
having regard
to the Guide to Disciplinary and Grievance Procedure of First
Respondent

In modern
times, the employer is expected to try and correct defects in an
employee if he can If it is a question of lack of skill
or training,
he is expected to try and help the employee to acquire the requisite
skill The employer may even re-deploy the employee
The fact that the
employer is eventually entitled to terminate the incompetent
employee's employment does not entitle the employer
to charge an
employee with misconduct

In order
for a person to be liable be it for any

43

criminal
act or civil claim some fault or culpa must be proved Culpa in this
case would mean a blame­worthy lack of ordinary
care on the part
of a person It is accepted in our law that culpa caret gui scid set
prohibere non potesf- no negligence is attributable
to a person who
is powerless to avoid danger Claaaen Dictionary of Legal Words and
Phrases Volume 1 First Respondent has not (nor
has an attempt been
made) to show that Applicant ever had the barest capability to manage
the depot and its staff. What has been
proved and demonstrated was
that he could not and that he was untrainable for the job First
Respondent made a bad appointment when
he made Applicant Manager To
invert words used by Bresler J. in Stolzenberg v. Lurie 1959(2) SA 67
at page 74D

"It seems to me that it does not lie in First Respondent's
mouth, having created the danger in consequence of his admitted

negligence, to demand a conduct of perfection on the part of
Applicant "

That case
was one of negligent driving but the principle is the same An
employee cannot be blamed for everything In this case the
losses that
occurred were caused by First Respondent's bad recruiting and staff
deployment which is clear on record

44

As
already stated, the employer (First Respondent) ought to have given
Applicant due notice and terminated his employment if he
was unable
to manage the depot and its staff I sympathise with the adjudicator
who heard the appeal in trying to make the hearing
"a genuine
one" The whole disciplinary proceedings were misconceived.

I am also
not oblivious of the fact that First Respondent was trying to be
decent when he sought to retrain Applicant and give him
a chance to
improve When First Respondent had failed to make a silk purse out of
a sow's ear in building the untrainable Applicant
into a depot
manager he was not entitled to put him on trial for his personal
limitations The Eastern Region Field Audit Activity
Report of 6th
June, 1992 bad pointed out about the Maseru Depot

"There has been a complete breakdown in the various accounting
policies, procedures and controls In fact, the situation is
such
proportions that remedial action on the part of Management cannot be
delayed any longer "

It is
clear Applicant was warned to pull up his socks regarding controls as
Second Respondent (as a adjudicator on appeal) observed
The question
that

45

was not
addressed (and which was fundamental) was whether Applicant had any
socks at all to pull up The record does not discloses
any When
remedial action is taken employees should not be made scape­goats
for the failure to take appropriate timeous action
by the entire
management Management must accept responsibility for the losses
according to accepted business risk principles It
must act promptly
to stop losses, where it has not done so it must not make one of its
brethren to carry the blame unfairly Applicant
as depot manager had
to go but not in this way

I,
therefore, make the following order -

1. The
   disciplinary proceedings brought on behalf of First Respondent
   against Applicant on the 26 th June, 1992 and which were finalised

   by Second Respondent on the 14th September, 1992 are set aside.

   
   

2. Respondents
   are directed to pay costs

   
   

W.C M
MAQUTU

ACTING
JUDGE

11th
March, 1994

46

For
Applicant ' Mr. Buys

For
Respondent Mr Pheko