LESOTHO COURT OF APPEAL
court a quo Monaphathi J on 20th October 1995 made an order in the
dismissal of Applicant from Lesotho Bank of 13th June 1991 is
declared wrongful and unlawful;
Respondent is directed to pay the Applicant's salary, allowance,
rent and leave pay with effect from the date
of dismissal to-date with such necessary adjustments as to increment
as may be necessary; The Respondent is directed to pay interest
thereon at the rate of 18% a tempore morae;
Respondent is directed to adjust the interest rate on the
Applicant's loans with Respondent prior to the purported dismissal
to the applicable staff rate of 3%;
Respondent is directed to pay the costs hereof.
Respondent (Applicant a quo) was dismissed by Appellant (Respondent a
quo) on 13th June 1991 from his employment as manager
of the Maseru
branch of Appellant. The said dismissal followed upon the
Respondent's suspension from duty after a theft of bank
occurred and after a Commission of Enquiry reported on the matter.
The letter of dismissal recorded that the termination
employment was "in terms of paragraph (e) of Applicant's Offer
of Appointment and clause 13 of its conditions
of service". The
last mentioned clause provides that service is subject to one month's
notice on either side.
respondent launched his application for the relief referred to in the
opening paragraph of this judgment on 26th June 1993 i.e.
years after his dismissal. Facts not in dispute are the following:
all times material up to 13th June 1991 the Respondent was in the
lawful employ of Appellant as manager of its Maseru branch
position which was permanent and pensionable, drawing rent
was entitled to a company car, twenty-one days annual leave and
three special leave days per annum.
term and conditions of service were subject to Appellant's
conditions of service - a nine page document.
letter of dismissal addressed to Respondent reads as follows:
"I am directed to inform you that your employment with Lesotho
Bank has been terminated with effect from the date of this
terms of paragraph (e) of the Bank's offer of appointment and clause
No. 13 of Lesotho Bank Conditions of Service which
you have signed.
All benefits and entitlements due to you will be paid in accordance
with Bank policy and the employment law.
Please return the company car and all other Bank property in your
custody or under your control.
P. Kotelo (sgd)
GENERAL MANAGER a.i."
letter of dismissal was preceded by a letter of suspension written
by the Minister of Finance in his capacity as Chairman
Appellant's Board of Directors. A hearing was not extended to
Respondent prior to his suspension.
was not heard by Appellant's board of directors prior to the letter
of dismissal being served upon him.
his dismissal, applicant has been charged interest on his loans at
the rate of 25% instead of the staff rate of 3%.
Appellant now appeals against this order, framed in the terms prayed
by the respondent in his notice of motion. Both are ambiguous,
reinstatement of the respondent was neither specifically sought or
specifically granted. The effect of paragraphs (b), ©
seem however to aim at just that, although the words "to date"
in paragraph (b) blurs this intention. It would
ordinarily mean "
to date of judgment". Then what of the future? The same
reservation applies to the words "of 3%
" in paragraph (d).
There is nothing on the papers to indicate that the staff rate was
the respondent was given no hearing before he was dismissed, that
dismissal may well have been unlawful. of Koatsa v. National
University of Lesotho C. Of A (Civ) 15/1986. The relevant order
prayed was, however intended only as the necessary prerequisite
the further relief sought in the following prayers. By itself prayer
(a) amounts to no more than a legal opinion. In my view
respondent did not on these papers establish that he was entitled to
the consequential relief sought. The parties were locked
contractual relationship which on respondent's version, the appellant
unlawfully repudiated. In such event, the party wronged
is obliged to
decide within a reasonable time how he intends to react: accept the
repudiation and sue for damages, or sue for specific
What he cannot do, is do nothing for an unreasonable time, and then
sue for specific performance in a matter of this
kind. We are not
dealing with a contract where the nature of the performance tendered
by the wronged party usually makes the time
of such tender immaterial
- for example, the delivery of a car where the buyer changes his mind
and purports to cancel. Where the
obligation of the wronged party is
an ongoing one,
longer he postpones deciding whether to insist on specific
performance by the employer, the more one-sided and inequitable his
insistence becomes : it goes without saying that he himself can
neither perform his obligations towards the employer whom he seeks
hold bound, as here, in time irrevocably gone by; nor regain the same
position as before in an organisation that may have altered
considerably in the meanwhile.
specific performance is claimed of a contract repudiated by one of
the parties to it, the court has a discretion whether to
order that -
and this applies also to a contract of employment. See Lesotho
Telecommunication Corporation v. Rasekila C. of A (Civ)1
that the court appreciated that it had a discretion in the matter, it
misdirected itself in the first instance, in having
no regard to time
already elapsed but merely speculating about the future - without, in
turn, affording the appellant a proper
opportunity of being heard as
to the effect an order of reinstatement would have had at that stage:
two years on. Those effects
were put in issue, and could not be
determined on the papers. The respondent did not, to give any
acceptable reason for his inordinate
prayers (b), © and (d) be regarded as a claim for damages after
(tacit - by reason of that delay) acceptance of the
repudiation. There are no fact at all set out in the papers on which
the quantum of the respondent's loss can be assessed
at salary from
dismissal to date (i.e. of judgment) if that was the intention. It
can only be established by evidence in a trial
follows that the appeal must succeed.
ancillary matter concerns an order in the following terms made by the
Court a quo on 7th December 1995 at the instance of Appellant
"1. It is ordered that the operation and coming into effect of
orders (a), (b), (c), (d) and (e) made on 20th October 1995
suspended and stayed, pending the outcome of the appeal against the
its success in this application the appellant was ordered to pay 75%
of Respondent's costs of the application. The granting
of the said
order is also the subject of an appeal to this Court by Appellant.
Regard being had to the fact that the noting of
an appeal in Lesotho
does not operate as a stay of execution of the judgment appealed
against, an application for stay was vital
to protect applicant
against a possible application for contempt of Court and was
appropriately granted. I am of the view that
the aforesaid order of
costs should be set aside. It is an order which violates principles
appeal succeeds with costs. The order of the court a quo is set aside
and replaced with an order dismissing the application
of costs granted in the application for stay of execution is
similarly set aside. Respondent is ordered to pay the costs
occasioned by his opposition.
OF COURT OF APPEAL
at Maseru this ..5th..day of February, 1997
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law