HIGH COURT OF LESOTHO
Application of :
tsietsi nthunya Applicant
tourist board Respondent
by The Honourable Chief Justice, Mr. Justice J.L. Kheola on 17/10/95
an application for an order in the following terms:
with the normal periods of service as is required by the Rules.
null and void the purported termination of Applicant's employment by
the Respondent and directing his reinstatement.
the Applicant such further or . . alternative relief as this
Honourable Court may seem just.
the Respondent to pay the costs of this application.
common cause that on the 23rd July, 1991 the applicant was employed
by the respondent as General Manager. On the 28th November,
applicant was placed on the permanent and pensionable establishment
of the respondent. (Annexure "A" to the
. The employment of the applicant/was in terms of the respondent's
again common cause that at the time of the applicant's appointment
there was, in existence, the post of Managing Director
filled by someone seconded by the civil service. The applicant
alleges that after his employment, and after the incumbent
post of Managing Director had been moved to another department, he
advised the respondent's Board of Directors that there
was no need
for both the post of General Manager and that of Managing Director.
He recommended the abolition of one or the other.
His reasoning was
that this was a duplication of functions and duties.
applicant alleges that notwithstanding his advice aforesaid the
respondent proceeded to fill the said post with the present
Director, a person from outside the Tourist Board, and only
thereafter, proceeded to abolish the posts of General Manager.
suggests that the phrase in Annexure "B" on a
"recommendation by Management" is a reference to his
recommendation that one of the two posts should be
abolished. He made the suggestion on the ground that at the relevant
post of Managing Director was vacant.
applicant further submits that it is abundantly clear that the
respondent's conduct in abolishing his post was not only mala
in that the decision to adopt it must have been taken before the
incumbent Managing Director was employed or any decision
him taken, but that, there being nothing in a name, as the saying
goes, it was his person not his position that was the
there being no reason to get rid of him.
decided that the handiest, cynical as it ironically is, could not be
other than the one supplied by him. He alleges that
there was never
any intention to find a suitable alternative position for him as
required by Regulation 28 (d) (vii). He submits
that this requirement
is mandatory but the abolition of the post should have been caused by
a change in the Board's organisation.
No such change has taken place.
respondent's opposing affidavit was sworn to by its Managing
Director, Kananelo Tlebere. He alleges that it was the respondent's
Board of Directors at its meeting of the 11th November, 1994 which
gave the directive for the abolition of the post of General
on the ground of redundancy. (See Annexure "LTB1"). He
submits that the former Managing Director of the respondent
recalled to the Civil Service after her contract of secondment
expired and that before she departed she had recommended the
abolition of the post of General Manager to the Board of Directors by
a letter dated the 7th June, 1993. The letter is Annexure
and reads as follows:
- Board of Directors,
POSITION OF TEE GENERAL MANAGER -LESOTHO TOURIST BOARD.
The above mentioned position was created by the directive from the
then Minister of Tourism, Sports and Culture in May 1991 on
grounds that the Government has the "desire" to employ Mr.
E.T. Nthunya as assistant to the Managing Director, despite
that there was no need to create such a position. Besides
this, no other justification whatsoever was forwarded by Government
to the Board of Directors of Lesotho Tourist Board.
Regardless of the fact that there were no funds, since its inception,
the post has proved very expensive for the Board to maintain
into consideration the package entailing salary, housing allowance,
ten (10) per cent pension contribution and the official
It has also become apparent that the incumbent's terms of reference
duplicate those of the Divisional Heads of the Board, more
those of the Finance and Administration Manager who is the prime
Advisor to the Managing Director on Legal, Financial
Administrative issues for proper management of the Organisation.
In view of the aforementioned facts, there is a need to abolish the
position, taking into consideration its financial backlog and
unjustified terms of reference.
Managing Director further deposes that there are studies which were
undertaken by two consultants who had also recommended the
of the post of General Manager. The extracts from the studies are
Annexures "LTB3" and "LTB4", On
Annexure "LTB3" the consultant has this to say:
"The position of Managing Director was created in 1990
apparently to replace the existing position of General Manager yet
there continues to be a General Manager of the Board. Consideration
needs to be given as to whether there is a need for a Managing
Director and a General Manager and if so, what their respective roles
149 of Annexure "LTB4" the consultant says:
is our opinion that LTB would be more effective if:
"A level of management (viz. General Manager) is abolished."
common cause that when the post of Managing Director was eventually
advertised the applicant applied for that post. At that
time he was
acting as Managing Director. His application was not successful. (See
Managing Director of the respondent denies that his conduct in
abolishing the post of General Manager was mala fide as he made
proposal basing himself on objective and unbiased recommendations of
consultants and the former Managing Director which were
with the post and not the incumbent thereof. He deposes that the
structure of the respondent does not make room for easy
staff especially when all senior posts were occupied at the time of
making the decision to abolish his post. Therefore,
transpired that no suitable alternative position could be found for
applicant the Board had no choice but to pay him his
benefits and relieve him of his duties.
considered this matter and have come to the conclusion that the
issues to be determined by the Court are as follows:
the decision of the respondent to abolish the post of General
Manager made mala fide?
the post of General Manager really redundant?
their decision to appoint Mr. K. Tlebere, who was an outsider, as
their Managing director over he applicant, who was already
employ of the respondent as acting Managing Director, did the Board
of Directors of the respondent act unfairly?
(a) above one has to carefully look at the events Leading to the
abolition of that post in their chronological Drder.
In paragraph 5
of his replying affidavit the applicant says:
"I respectfully call attention to the fact that it is not my
case that I had the singular wisdom to notice that there was
for the existence of both posts. Nowhere do I say that I was the only
one who drew attention to this. My case is that the
not acting bona fide when it filled the then vacant post of Managing
Director almost immediately after I had made
the recommendation to
the Chairman of the Board at my said meeting with him in his office
during January, 1994 - the deponent was
appointed Managing Director
in July, 1994, and soon thereafter purport to abolish my post. The
gravamen of my case is that this
was but a strategem to get the
deponent to take my place without having to give reasons which, in
all probability, would conflict
with the reasons appearing in the
Board's minutes of my suitability for one or other post."
clear from the allegation in the above paragraph that it was the
applicant who first made a recommendation to the Chairman
Board of Directors of the respondent that the post of General Manager
be abolished. This recommendation was made in January,
1994 and it is
common cause that at that time the applicant was acting as the
Managing Director and naturally hoped that he would
be confirmed in
that post. It is not uncommon that a person may act in a certain
position for a long
when the actual filling of the position comes, the employer appoints
a different candidate and not the one who had acted
in the post for a
long time. It does not necessarily mean that the employer is acting
mala fide if he appoints a new candidate
and gives him preference
over the one who had been acting in the post.
present case the preference of Mr. K. Tlebere over the applicant may
be due to a number of reasons. It may be that Mr. Tlebere
qualifications than the applicant. It may be that during his acting
appointment the applicant did not perform well.
application for the post of Managing Director was unsuccessful. After
that the applicant reverted to his post of
General Manager. It was
only after the post of Managing Director was filled that the position
of General Manager was abolished.
The applicant avers that this was
but a strategem to get Mr. Tlebere to take his place without having
to give reasons which, in
all probability, would conflict with the
reasons appearing in the Board's minutes of his suitability for one
or other post.
As I said
above it may be that the respondent found that the qualifications of
Mr. Tlebere were better than those of the applicant.
advertised the post because the previous incumbent had vacated it.
The applicant gives the impression that because
at the relevant time
he was acting Managing Director, the respondent ought to have
appointed him to that post and ought to have
abolished the post of
Mr. Tlebere was appointed. It seems to me that the same result would
still have been achieved by advertising the post of
after the abolition of the post of General Manager. Mr. Tlebere's
application, if he made one, would probably
still have succeeded and
the applicant's application would probably still have been
events which preceded the abolition of the post of General Manager
were (1) the recommendation of the former Managing Director,
recommendations of two consultants whose reports have been referred
therefore come to the conclusion that the applicant has failed to
prove that in abolishing the post of General Manager the respondent
acted mala fide. The onus was on him to prove bad faith on the part
of the respondent.
(b) above I am of the view that one has to take into account that the
applicant himself recommended that the post was
view was also taken by the former Managing Director and the reports
of the two consultants. The letter of the
former Managing Director is
criticized on the ground that when she wrote it she never informed
the applicant though they were working
together under the same roof
yet she decided to write it without his knowledge or even after
consultation with him.
to me that it was difficult for the Managing Director to disclose the
contents of her letter (Annexure "LTB2")
to a colleague
(General Manager) that she was busy making recommendations that his
post be abolished. Be that as it may it was
common cause that the
position of General Manager be abolished. The applicant had also made
such a recommendation which goes to
show that the former Managing
Director's letter was not nothing but a "clumsy invention of its
author intended to achieve
the objects of her own hidden agenda."
(c) above I can only say that the applicant has failed to prove that
the Board of Directors of the respondent acted unfairly
appointed Mr. Tlebere over the applicant's head. There is practically
no evidence of unfairness. The respondent was free
to appoint any one
he pleases as long as he followed the proper procedures prescribed by
its regulations. It is not under any obligation
to disclose why they
found Mr. Tlebere a better candidate than the applicant. The
applicant got all his terminal benefits.
opposing affidavit the respondent alleges that the structure of the
respondent does not make room for easy deployment of
when all senior posts were occupied at the time the applicant's post
was abolished. The applicant denies this
and avers that one C.S.
Tlalajoe who occupied the post of Research and Development Manager
had just resigned on the 13th October,
1994. This allegation appears
in the replying affidavit when the respondent is no longer in a
position to deny it. In his founding
affidavit the applicant
this issue by saying that no attempt was made to find an alternative
suitable position for him in terms of Regulation 28
(d) (vii). He
ought to have mentioned at that stage that the position of Research
and Development Manager was vacant. The respondent
would have had a
chance in his answering affidavit to deal with that issue. This is a
dispute of fact which cannot be decided on
the affidavits before me.
extract from the minutes of a meeting of the Board of Directors of
the respondent held on the 1st February, 1995 was filed with
Registrar on the 22nd March, 1995. It authorised Kananelo Tlebere to
sign all the necessary papers to defend this application.
reasons stated above the application is dismissed with costs.
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