CIV/APN/363/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

THABO
RAMONE APPLICANT

vs

THE
ATTORNEY GENERAL FIRST RESPONDENT

THE
MINISTER OF WORKS SECOND RESPONDENT

Before
the Honourable Chief Justice B.P. Cullinan

For the
Applicant : Mr Rakuoane

For the
Respondents : Mr T. Molapo, Senior Crown Counsel

JUDGMENT

Cases
referred to:-

The
applicant in his founding affidavit deposed that he was employed "as
a manual labour" in the Ministry of Works in
February, 1980 and
was stationed at Thaba-Tseka. He observed that "different
spheres of government - paid employees, ranging
from teachers,
agricultural extension officers police and administrative staff "were
all paid a 'mountain allowance'. He deposed
that he had approached
his supervisors "as to why some of us were not paid the mountain
allowance" . He was informed
that "as residents of
Thaba-Tseka we were not entitled to mountain allowance."

Ultimately
he reached the retiring age and left Government service on 20th
March, 1987. Thereafter he approached his Attornies in
the matter and
filed the present applicant which seeks an order directing the
respondents to pay or cause to be paid to the applicant
"his
monthly mountain allowance of a married person" for the duration
of his service in Government, with interest at
the rate of 11% per
annum. Ultimately the application was heard. The Court dismissed the
application, ordering each party to pay
his own costs, reserving it's
reasons in the matter, which reasons I now give.

The
mountain allowance is payable to public officers under the Public
Service Regulations 1969. The Acting Principal Secretary in
the
Ministry of Works in an opposing affidavit deposed that all manual
labourers in the Ministry sign a contract which reads thus:

You are engaged with effect from ..................... in the
capacity of a temporary ........................ on daily rates of

pay at R................. per diem. Your appointment will terminate
on.........................but you may be offered further employment

if circumstances permit. This appointment may be terminated by 24
hours' notice by either party.

Signature of Employee ............ ...........

Date :..................................."

3

Mr
Rakuoane for the applicant submits that as the Public Service
Regulations 1969 provide for only three classes of public officers,

namely, a "pensionable officer", a "contract officer"
and a "temporary officer", that the applicants
employment
fell into the latter class. Since reserving my reasons for judgment
in this case I have had occasion to address inter
alia much the same
issues as in this case in a judgment delivered in the case of
Masimong vs Attorney General & Another (1),
and for the sake of
convenience I wish to repeat what I there said. Suffice it to say
that the Public Service Regulations provide,
under regulation 1501,
for a fourth class of employee, namely an Industrial Class employee
that is, a daily paid employee, whose
conditions of service are
governed by the Employment Act, 1967 and his contract of service, but
not by the Public Service Regulations.

For all
the reasons stated in Masimong (1) the applicants contract in this
case clearly categorised him as a daily paid employee,
that is, an
employee whose "contract is to pay wages at an hourly or daily
rate" and which is then classified under section
13 (1) (d) of
the Employment Act, 1967 to be "a contract from day to day
either party at the close of any day on one days
notice". Even
though in the case of an employee continuously employed for a year or
more, as in the case of the applicant,
the period of notice is
enlarged to one month, nonetheless where the contract is to pay wages
at an hourly or a daily rate, the
contract remains "a contract
from day to day". The contract into

4

which the
applicant entered was clearly in that category and the Public Service
Regulations 1969 (other than regulation 501) have
no application to
him. Accordingly he was not entitled to receive a mountain allowance.

For those
reasons I dismissed the application. Mr Molapo very properly conceded
that as a point of law was involved, costs should
not follow the
event but that each party should bear his own costs, and I so
ordered.

Dated
This 3rd Day of November, 1995.

B.P.
CULLINAN

(B.P.
CULLINAN)

CHIEF
JUSTICE