C OF A
(CIV) NO. 7/2000

Attorney-General
and Others

v.

Michael
M. Tekateka and Others

SUMMARY

A. Claim
for reinstatement of government employees after the privatisation of
a parastatal in terms of the Privatisation Act of
1995 which involved
the retirement or retrenchment of the personnel of the parastatal.

B.
Founding affidavit limited to one ground upon which relief was
claimed. Answering affidavit asserting that applicants had been
paid
and had accepted retirement packages. Applicants attempting in reply
to introduce new ground for relief. Applicants held to
be bound by
ground relied on in the founding affidavit. Lack of precision or
certainty in High Courts order discussed.

C.
Plascon-Evans vs Van Riebeeck Paints 1984 (3) S.A. 623 (A) applied
and order of the High Court reinstating the applicants as
public
servants set aside and appeal upheld.

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 21 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:

"1). The purported termination and/or retrenchments of
Applicants by 2nd Respondent be declared null and void.

2. The
   Applicants be reinstated as Public Servants.

   
   

2. ...........

   
   

Alternatively

2. 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:

1. The
   purported termination and/or retrenchments of applicants on
   probation and permanent establishment is declared null and void.

   
   

2. Applicants
   on probation or permanent establishment are to be reinstated.

   
   

3. ………………………….

   
   

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 be 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.17) 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:

1. gratuities

   
   

2. 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:-

"8) I am really surprised that 7th, 57th 81st 84lh 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.

9. 9) 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 1 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)

9. 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".

   
   

9. 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".

   
   

9. 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

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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 so1) 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:

1. 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.

   
   

2. 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

1 agree:

J.H.Steyn

PRESIDENT
OF THE COURT OF APPEAL

1 agree:

F.H.
Grosskopf

JUDGE OF
APPEAL

Delivered
at Maseru on this 12 day of October, 2001

14

For
Appellants :

For
Respondents :

C of
A(CRI) No. 2/2001

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

MOKHERANE
TSATSANYANE APPLICANT

and

THE CROWN
RESPONDENT

Held at
Maseru

CORAM:
Ramodibedi, J.A.

Kumlebeu, J.A.

Grosskopf, 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.

M.M.
Ramodibedi

JUDGE OF
APPEAL

I agree

M.E.
Kumleben

JUDGE OF
APPEAL

1 agree

F.H:
Grosskopf

JUDGE OF
APPEAL