CIV/APN/213/88

IN THE HIGH COURT OF LESOTHO

In the Application of :

'MAMMUSA ' MUSA Applicant

V

TEBA. (R.SA.) HEAD OFFICE) 1st Resprondens

TEBA. (MASERU BRANCH OFFICE) 2nd
Respondent
MOKETE MAHULA 3rd Respondent

J U D G M E N T

Delivered by the Hon. Mr. Justice M.L. Lehohla

This
matter came before me for hearing on 10th August 1988.

The applicant approached this Court on motion
proceedings against the respondents for an order

1. 
   declaring her dismissal by the 3rd respondent
   null
   and void,

   
   

2. 
   directing the 1st and 2nd respondents to re­
   instate
   her with all her rights and benefits,

   
   

3. 
   directing the 1st and 2nd respondents to pay
   the
   costs of this application if they should
   oppose it,

   
   

4. 
   directing the 3rd respondent to pay the costs
   of
   this application,

   
   

(e) for
any further and or alternative relief.
The application is opposed.
The 3rd respondent is reflected on papers as the employee of the 1st
respondent. He holds office of
a Senior Representative in the
premises occupied by the

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2nd respondent in Maseru. The 1st respondent is the
head office stationed in the Republic of South Africa.

In her founding affidavit the applicant set out that

she was employed by the 2nd respondent on behalf of the
1st respondent in December, 1982.

It is common cause that the applicant was stationed in
Maseru for the regular discharge of her duties with the 2nd
respondent during
the subsistence of her employment. The applicant
was employed as a receptionist under the terms and conditions spelt
out in annexure
"A".

It appears that due to experiencing breathing difficulty
the applicant consulted Dr Matsela in 1985 and was advised to avoid
smoky
environment. The second opinion that the applicant sought in
1986 confirmed the previous doctor's diagnosis.

The applicant was accordingly granted an internal
departmental transfer. Annexure "B" shows that in
approving this arrangement
the management informd the applicant
that with the exception of her salary her disi-gnation and grading
would change.

Annexure "C" suggests that there was a discuss
ion between the applicant and the 3rd respondent. It appears that
the thrust
of this discussion centred on the applicant opting for
going back to the cash office. The 3rd respondent's attitude was
favourable
to the applicant's preferance save that the 3rd respondent
insisted that the applicant should produce a medical certificate
showing
the she was then fit to work in a smoky environment.
Apparently this Cash office is frequented and occupied by people who
smoke
most of the time. The 3rd respondent gave the applicant up to
a Friday to produce that certificate. The letter advising her bears
28.1.1987 stamp mark of the 2nd respondent.

Annexure "D" shows that the applicant's doctor
indicated that the applicant's allergy to smoking war­ranted that
she
should avoid smoking as this constituted

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a health hazard to her. The doctor recommended that the
applicant should work in an office which is free from smoking and
smokers.

It appears that on 25th November 1986 the 3rd respondent
had addressed a letter to the 2nd respondent's Manager recommending
that
the applicant be transferred to Head Office Lesotho or some
other office; alternatively he asked if she could not be referred to
specialists of the Medical Division for treatment until her ailment
had been cleared. In that letter the 3rd respondent had indicated
that it is the mine workers who smoke a lot in his offices and as
these were his clients he was at a quandery what to do to make
them
desist from smoking.

The applicant complains that this letter and in
particular the portion recommending that she be referred to
specialists were ignored
by the 2nd respondent.

But as clearly spelt out in that letter the writer-did
not strictly make any such recommendation. He merely wished to be
advised
if there was any possibility whereby those Senior in
authority could have the applicant referred to specialists.

In any event Coetzer the deponent who is the 1st
respondent's manager in Lesotho averred that the specialists of the
Medical Division
referred to in annexure "g" are general
practitioners employed by TEBA in the Republic of South Africa and
the applicant's
condition of employment did not provide for medical
treatment by these general practitioners or by any other Company
employees, or
make provision for any liability whatsoever in respect
of a medical condition pertaining to the applicant. Significantly
this averment
has not been gainsaid by the applicant.

Coetzer lays stress on the fact that the proposed
reference to the specialists was an alternative proposal. The main
one being that
the applicant be transferred to another job; and this
seems to have been done out of sympathy

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for the applicant's health problems for the 1st
respondent had no need for her services in the new but rather in the
old position
which she had held.

The 3rd respondent had expressly advised the

applicant that the transfer would affect her grading,
and

that the new post carried a lower grading than her
existing
post.

Coetzer further emphasised that the applicant was aware
that the 1st respondent uses the Paterson grading system, which pays
higher
salaries in higher grades and vice versa. Nevertheless, the
3rd respondent explained to the applicant that despite her transfer
being granted at her request, there would be no reduction in her
salary, but under the circumstances it would not be possible to
award
her future routine annual increments until there was a closer
approximation between her salary and the salaries of the other
staff
members in her job category.

In para 9 of her founding affidavit the applicant avers
that on 9th January 1987 she was asked to sign an under­taking by
which
she should accept not to be entitled to an increment which the
rest of the staff would receive in July. The applicant refused to
sign this undertaking for she regarded it as contrary to the express
or even implied terms of her original contract. To her this
appeared
to be no more than a mere ruse or afterthought devised by the
respondents to form part of the new conditions of her transfer.

The applicant avers that she was confronted with three
options, namely

1. 
   to sign the declaration not to get increment, or

   
   

2. 
   to go back to cash office, or

   
   

3. 
   to resign.

   
   

She accordingly chose to go back to cash office for
she realised the respondents were not prepared to assist her in
her plight even though she is a member of the Fatal

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Accident and Illness Insurance Scheme of the Rand Mutual
Assurance Company and as such is entitled to expert medical
treatment, and
that if her services are to be terminated due to
illness it should be with specific recommendation by medical
officers. She thus
bemoans the fact that the 3rd respondent gave her
until Friday 30th January, 1987 to produce a medical certificate of
fitness.

In response to the above Coetzer averred that as the
Lesotho Manager of the 1st respondent he is charged with the general
administration
of the affairs of the 1st respondent in this country.
Amongst his duties are the employment and dismissal of staff members
and other
employees. Acting in this capacity he had delegated to the
3rd respondent powers and duties to act as he did on clear
instructions
and with full authority from Coetzer himself.

Coetzer acknowledged that annexure JC2 is a true copy of
the document which the 3rd respondent asked the applicant to sign.

He further states that this document does not impose a
new condition of employment on the applicant but merely confirms in
writing
the consequences entailed in the Paterson grading in so far
as they relate to the post offered in a smoke-free environment. All
it seeks is a formal acknowledgment from the applicant that she
accepts the said consequences specifically the fact that routine
future annual salary increments will be affected. This gives rise to
a dispute of fact regarding which

see Stellenbosch Farmers'Winery vs Stellenbole Winery
1957(4) S.A. 234.

The applicant refused to sign the document in
question.

Coetzer avere that by refusing to sign it the applicant
created a severe predicament for both herself and the respondents.
On the
one band she had produced a medical certificate by which the
respondents considered themselves bound, to the effect that she
should
not work in an environment permeated by tobacco smoke, while
on

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the other hand she had refused to accept the implication
of the reduced Paterson grading pertaining to the only alternative
post available
to her, and by her refusal had prevented the
respondent from employing her in the post.

It is averred that from 9th to 23rd January, 1987 the
applicant performed no duties. It was only after a series of
discussions were
held and various possible alternatives open to the
applicant were considered that a solution was lighted upon on the
basis of which
the applicant chose to return to the post in the,cash
office.

The respondents however, mindful of the fact that the
applicant had obtained a medical certificate stating that she should
not work
in the cash office where the atmosphere was always fusty and
heavy with tobacco smoke asked her to obtain a further certificate
for
purposes of assuring them that her health condition had improved
to the extent that it could bear the hazardous atmosphere prevailing
in the cash office without trouble.

Thus Coetzer explains that the letter of 28th January
1987 was merely a confirmation of the discussion previously held and
not intended
as a demand for the production of a medical certificate
but as an indication that if the applicant wished to return to the
cash office,
the 1st respondent was eager to be satisfied that the
applicant was physically able to perform her duties there.

There appears to be some merit in the respondent's
denial that the 1st respondent was not prepared to assist or help the
applicant
as alleged for evidence exists to show that the 1st
respondent acceded to the applicant's transfer in the first place.

It is admitted by the respondents that the applicant is
a member of the Fatal Accident and Illness Insurance Scheme but
denied that such membership entitles the applicant to medical
treatment
or other benefits alleged by her. The explanation given as
to the benefits accruing from this

/scheme

-7-

scheme is that it provides for a payment on [death of a
member. Hence not the applicant but her nominated beneficiary would
be entitled
to a benefit in the event of the applicant's death in
service.

It appears that it was on account of the deadlock that
had been reached, namely that work in the cash office was detrimental
to the
applicant' s health on the one hand while on the other hand
she had repudiated the alternative post offered" to her on her
own
application, that the manager decided to terminate the
applicant's services.

It is important to note that it was decided not to

dismiss the applicant summarily but to terminate her
services

in terms of section 14(4)(b) of the Employment Act 21 of

1967 providing:

"Either party may terminate a contract

(a)

(b) in any other case, by payment to the other party
in
lieu of notice of a sum equal to all wages
and other remuneration
that would have been
due to the employee up to the expiration of
any
notice of termination which may already have been
given or
which might then have been given."

Coetzer avers that he was compelled to take this step
because the applicant had for a long time been not performing any
duties and
because by her own doing there was no post for her to
occupy; and consequently it became clear to him that there would be
no point
in inviting the applicant to continue to work for a further
month. However the 1st respondent offered the applicant one month's
salary in lieu of notice.

Termination of the appliant's services was effected in
terms of annexure "F" . Payment of her salary for the month
of February
1987 was tendered in lieu of one month's notice in the
sum of M558.38. The applicant refused to accept the payment. But
see CIV/APN/81/87
'Nena vs Pionec Motors (Pty)Ltd. (unreported) at p.
3 where it was said

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"The employee has no right to refuse to accept
payment in lieu of notice and to insist on being given notice."

She instead wrote JCS to the 3rd respondent. The
upshort of this letter is that as no lawful cause for termination of
her services
had been given by the employer and no opportunity
granted her to reply or comment on any accusations giving rise to the
termination
of the contract she still regarded herself as an

employee of TEBA. She expressed the hope that the 3rd

respondent's letter would be passed on to the proper
authorities by him.

The 3rd respondent approached her at least three times
instructing her to leave the premises becasue she had been dismissed.
Ultimately
she complied.

The applicant averred that annexure "J" was
written without the 1st and 2nd respondents' knowledge. But Coetzer
on behalf
of both respondents denies this. No replying affidavit has
been filed by the applicant to deny or even qualify the respondents'
averments. She contents herself with saying through her counsel that

Coetzer's statements are hear-say. But Coetzer
indicated

from the outset that averments made in his affidavit

are within his knowledge and/or appear from the records

under
his control further that he verily believes them

to be true and correct. Yet there is authority for the

view that the correct approach where disputed
facts are

not replied to by the applicant is to accept the
respondent's

version together with those which are common cause.

There seems therefore to be no reason why the court.
should doubt that the letter annexure "F" was written upon
Coetzer's
express instructions. Nor should any doubts be allowed to
cloud his assertion that the 1st respondent repeatedly ratified the
action
of the 3rd respondent. In any event the 3rd respondent has
confirmed as true what has been said on behalf of the 1st and 2nd
respondents.

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For these reasons I regard as true averments contained
in paragraphs 19.1 through 19.3.

The applicant made much of the obiter statement made by
a judge of this Court in deciding CIV/APN/89/87 where her application
was
dismissed on technical grounds that she had not then sought the
assistance of her husband as required by law. The learned judge
further commented that the applicant was in his view wrongfully
dismissed.

This application has been thus brought here on the same
facts for the same relief.

It would have perhaps strengthened the applicant's case
if the papers before the court then were made to stand as pleadings
and the
proceedings converted into a trial followed by an order that
the respondents be absolved from the instance.

As the matter stands now it amounts to an abuse of
process and on that ground alone ought to be dismissed . I don't see
what role
was intended to be played by the 2nd respondent in these
proceedings.

However I decided to assess and consider the merits of
the applicant's case but have found on the basis of the relevant law
and the
decided cases on the matter i.e. CIV/T/450/85 Bernard
Sepetla vs Metro Lesotho (Pty) Ltd.

(unreported), that there is no merit in this
application. It is therefore dismissed with costs.

JUDGE.
2nd February, 1990.

For Applicant : Mr Monyako
For Respondents : Mr
Koornhof.