C of A (CIV) No. 7/2001
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
ATTORNEY-GENERAL 1st APPELLANT
P.S. MINISTRY OF WORKS 2ND APPELLANT
P.V.P.S. 3RD APPELLANT
and
MICHAEL M. TEKATEKA & 145 OTHERS RESPONDENTS
Held at Maseru:
CORAM: Steyn, P.
Grosskopf, J.A.
Plewman, J.A.
JUDGMENT
PLEWMAN, J.A.
The dispute giving rise to this appeal had its origin in the implementation by government in the years 1996 to 1999 of a scheme
for the privatisation of certain parastatal organisations. This programme was undertaken pursuant to the provisions of the Privatisation Act No.9 of 1995. One of the organisations so privatised was the Government
2
Vehicle Pool Fund (sometimes known as the Government Garage and so referred to in this judgment). It had been established in 1970 under Finance and Audit Order No. 7 of 1970. By a notice of motion dated 27 October 1999 the Respondents (146 in number) applied in the court below for relief in a form to be presently discussed. It will be convenient to refer to Respondents by their designation in the court below namely as "Applicants". In the application they alleged that they had been employed by the government at the Government Garage when the programme of privatisation was implemented. What they sought was an order set out as follows in the notice of motion:
The purported termination and/or retrenchments of Applicants by 2nd Respondent be declared null and void.
The Applicants be reinstated as Public Servants.
...........
Alternatively
Respondents are directed to pay to Applicants their pension or gratuity entitlements."
At the time when judgment was delivered the privatisation process
3
was complete to the extent, at least, that no such organisation as the Government Garage remained in existence.
The Second Respondent in the application was the Principal Secretary of the Ministry of Public Works and Transport - now second appellant before this Court. The Attorney-General in his capacity as the representative of government is the first appellant. The third appellant is the Government Garage - though cited by applicants, it is questionable whether it has or had the capacity to sue or be sued. But this is of no moment at the present stage.
It is necessary to make some reference to the procedure followed by the applicants in the court below. Answering and replying affidavits were filed in the normal sequence. In the replying affidavit notice was given of the applicants' intention to apply for the leading of evidence viva voce. It seems, however, that this was either abandoned or simply not pursued and the main application was argued on paper. The consequence, of course, is that the principle enunciated in the case of Plascon Evans Paints vs Van Riebeeck Paints 1984 (3) S.A. 623 (A) at 634/5 (so
4
frequently drawn to the attention of practitioners by this Court) had to be followed.
It is also necessary to refer to the learned Judge's order. This is in the following terms:
"Accordingly, the application is granted in its substantive form and to the extent that:
The purported termination and/or retrenchments of applicants on probation and permanent establishment is declared null and void.
Applicants on probation or permanent establishment are to be reinstated.
……………………….
This Court notes that some applicants were paid retrenchment packages. In the event the Public Service Commission retired them, it would seem such applicants would he required to mitigate damages."
The basis of the judgment of the court below will be discussed presently. What must be said at this point is that the order, as the rider
5
thereto makes clear, cannot in this form, be given effect to or be enforced.
One can merely ask what is the "substantive form" and who are the persons whose "termination and/or retrenchments" have been declared null and void." So too (other objections apart) who are the applicants who would be required to ''mitigate damages"?
With these preliminary observations I turn to the case as it emerges from the record. In terms of the Privatisation Act a Privatisation Scheme (for each parastatal) must be prepared (s.l 7) and submitted through the (relevant) Minister to the Cabinet (s. 18). The Cabinet may then approve the scheme which must then be published. These procedures were duly followed.
One part of the scheme relating to the Government Garage was that the personnel were to be informed that they could elect whether "to take retrenchment packages and then pass on with the new company that was to take over the (organisation) or to elect not to take the packages and then to remain with the government in which case, (they) would be redeployed within some other ministries and branches of government."
6
This is the allegation in the founding affidavit which then goes on to state as follows:
9) "I aver that some of the applicants herein were entitled to terminal benefits in the nature of:
gratuities
pensions.
but were not given such benefits in terms of the Pensions Proclamation of 1964....."
Other than identifying (by means of a document annexure F) the office to which each of the applicants was initially appointed and, whether permanently or on probation, neither in the founding or the replying affidavit nor indeed elsewhere did the applicants identify who among them were alleged to be entitled to such terminal benefits.
In the answering affidavit it is asserted that the applicants were properly informed of their option as aforesaid. The case in the founding affidavit is further met in the answer in terms which it will be convenient
7
to set out herein by quoting the relevant paragraphs. This answer is found in paragraphs 8-12 which read:-
I am really surprised that 7th, 57th 81st 84th 133rd and 140th applicants also joined in these proceedings because they had been offered to remain with the public service as there were available positions for them, but they had rejected the offer and opted for leaving the service.
I further wish to inform this Honourable Court that following the retirement/termination of applicants and other former employees of P.V.P.S., the total amounts reflected in annex "L" and "LL" hereto were paid to and duly received by applicants
as their retirement/termination of employment packages, over and above payment of pension and gratuity to those of applicants
entitled to the same in terms of the law and in this regard I inform this Honourable Court that respondents would not oppose a prayer for payment of pension and gratuity for those who do qualify for such benefits and have not yet received the same. But as the ALTERNATIVE prayer in the notice of motion stands, it is vehemently opposed because it is certainly not all applicants who would be so qualified to receive pension and/or gratuity and this much I realise that it is conceded in the founding affidavit. The document annexed to "C"
8
of the founding affidavit is not up-to-date as it is clearly based on a period ending in December 1998, whereas "L" of my answering affidavit is based on the period ending July, 1999. (My emphasis)
On diverse occasions the Public Service Commission was seized of the matter of applicants' retirement and/or termination of employment,
excepting some of those whose period of probation had expired without them being confirmed in the permanent establishment. The
court is referred to annex "F" of the founding affidavit. Annexed hereto are copies of the relevant memoranda, the proposals and the actual decisions of the Public Service Commission in the matter. They speak for themselves. 1 collectively mark them "L1".
Following the said decisions of the Public Service Commission regarding the retirement/termination of applicants, the necessary letters to applicants duly issued except that in the majority of cases these letters are still with the Ministry due to the fact that since their retirement/termination, it is proving to be a lengthy process to get hold of applicants for purposes of giving the letters to them. Copies are hereto attached and collectively marked "L2".
Further processes are already underway in terms of
9
facilitating the formal termination of those applicants who had not been confirmed in the permanent establishment after expiry of their respective probationary periods. Delays in formally finalising the whole exercise in time were inevitable as the process of privatisation of any public institution is always bound to be complex and time-consuming. Nevertheless, measures are already at an advanced stage to also formally have in place termination of those of applicants whose probationary period had expired and had not been confirmed (confirmed as pensionable)."
It is necessary to note that the invitation extended to the applicants in paragraph 8 to formulate a prayer properly identifying those persons among them who could show an entitlement to a gratuity or payment of a pension (no doubt with an indication in each instance of the amount so due) was not accepted or taken up by the applicants. The result is that the order made by the learned judge is, by reason of this uncertainty alone, unenforcible.
There are however further reasons why the court's order cannot stand. Firstly, the crucial allegation made in the answering affidavit is
10
that following the retirement/termination of the applicants, the amounts reflected in two documents annexed to the answering affidavit were "paid to and duly received by the applicants as their retirement or termination of employment packages". While it is true that the sentence containing this assertion is somewhat lengthy and not particularly well framed, the meaning is clear. Significantly the paragraph is dealt with in the replying affidavit but the particular assertion is not met in point of substance. Therefore it stands as an uncontested fact that the applicants were not only paid but that they accepted such payments as their "retirement or termination of employment packages". Once that is conceded there can be no basis for an order re-instating the applicants.
Another ground for holding that the order cannot stand emerges from the court's reasoning. It is a proposition argued in this Court by Mr. Mosito who appeared for the respondents. Mr. Mosito's proposition was that the termination of the applicants' employment proceeded in terms of s.30 (8) (i) of the Public Service Act 13 of 1995. This section (which deals with Public Service Commission's power to compulsorily retire public officers) is subject to a requirement that any officer who is to be so II retired is entitled to a fair hearing. For convenience I will term this the audi alteram partem argument. It was contended that the answering affidavit failed to show that the applicants had been granted a fair hearing.
There are (again) several answers to this proposition. It is, in the first place, by no means clear that the applicants were retired under the provision of s.30 (8) (i). They were, according both to the founding affidavit and the answering affidavit, retired in terms of a privatisation scheme duly carried out in terms of the Privatisation Act. While I tend to agree that this is correct it is, in fact, unnecessary to decide the point because it is quite clear that (whatever may have been argued both in the court below and in this court) this ground for relief was not the case the applicants made out in the founding papers. It is trite that an applicant must make out his or her case in the founding affidavit and that a court will not allow an applicant to make out a different case in reply or, still less, in argument.
The court below was therefore not entitled as it did to justify its order on the ground that the applicants had not been afforded a fair
12
hearing. The audi alteram partem argument therefore also fails. It was, simply never dealt with in the answering affidavit because this was not the case the respondents were called upon to answer.
In the result the appeal must succeed. There is, however, one aspect of the matter which calls for further comment. It will have been seen that implicit in the answering affidavit is a concession that certain of the applicants may not have been paid their gratuities or pensions. The' court a quo dealt with this not by an order for payment (no doubt for reasons already discussed) but in terms of the rider set out above. This, unfortunately, in itself displays a measure of confusion. No question of mitigating damages can arise. The claims, if there are such claims, are money claims not claims for damages. This part of the order must therefore also be deleted. But it is fervently to be hoped that common sense will prevail. If there are applicants who have legitimate claims it must be understood that this judgment does not deprive them of such claims. They must simply pursue them in the correct manner. Hopefully (and appellants counsel assured this court that this would be the case) the
13
appellants will by informal steps ensure that they receive what they are entitled to.
The order which I make is;
The appeal succeeds. The orders of the court below are set aside and there is substituted therefore an order that the application is dismissed with costs.
The respondents (in this Court) are to pay the costs of the appeal the one paying the others to be absolved.
C. Plewman
JUDGE OF APPEAL
I agree:
J.H.Steyn
PRESIDENT OF THE COURT OF APPEAL
F.H. Grosskopf
Delivered at Maseru on this 12 day of October, 2001
14
For Appellants :
For Respondents :
C of A(CRI) No. 2/2001
MOKHERANE TSATSANYANE APPLICANT
THE CROWN RESPONDENT
Held at Maseru
CORAM:Ramodibedi, J.A.
Kumleben, J.A.
ORDER OF COURT
Condonation for the late lodging of heads of argument on the part of the applicant is condoned. The appeal is to be heard at the next session of this Court with heads of argument filed in terms of the Rules.
MM. Ramodibedi
I agree
ME. Kumleben
F.H Grosskopf
