CIV/APN/332/2002

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

FAKO
LIKOTI APPLICANT

and

COMMISSIONER
OF POLICE 1st RESPONDENT

MINISTER
OF HOME AFFAIRS 2nd RESPONDENT

MINISTER
OF FINANCE 3rd RESPONDENT

MINISTER
OF PUBLIC SERVICE 4th RESPONDENT

ATTORNEY
GENERAL 5th RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr Justice T. Nomngcongo on the 8th of March. 2004

This is
an application for an order in the following terms:

1. Declaring
   that applicant is entitled to gratuity and other benefits after his
   long service in the Lesotho Mounted Police Service.

   
   

2. Directing
   1st up to 4th Respondents to pay gratuity and/or other benefits to
   applicant.

   
   

3. Costs
   of suit.

   
   

4. Granting
   applicant any further and/or alternative relief.

   
   

A notice
of intention to oppose was filed and in terms of Rule 8(10) (c) the
respondents filed a notice to raise a point of law
in the following
terms:

That in
terms of section 6 of the Pensions Proclamation 1964, applicant does
not qualify for either gratuity or pension in that

1. He
   did not retire from the Police Service but resigned.

   
   

2. At
   the time of his resignation he was forty one (41) years of age,
   which did not qualify him for payment of either gratuity or
   pension
   in terms of that law.

   
   

It is
common cause that by a letter dated 1st August 2000 the applicant
tendered his resignation from the Lesotho Mounted Police
Service. The
resignation was accepted by the Commissioner of Police by a letter
dated 9th August 2000. He was paid for the month
of August. He was
also paid in lieu of eighty nine days outstanding leave. He
subsequently caused a letter to be written to the
Minister of Home
Affairs demanding to be paid gratuity "pursuant to the Public
Service Regulations and other related laws
of this country ". He
does not refer to any specific regulation or law of this country. By
a letter from the personnel officer
of the Lesotho Mounted Police he
was informed that "the Pensions Proclamation 1964 does not
provide for gratuity in the event
of resignation". The latter is
the initial point taken by the respondents.

The
respondents draw a distinction between resignation and retirement.
The

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Pensions
Proclamation N0.4 of 1964, the law that deals with pensions and
gratuities does not define the word retire or retirement.
The word
"retire" is defined in the Concise Oxford English
Dictionary (Tenth Edition, Revised) as "i. Leave one's
job and
cease to work, especially because one has reached a particular age",
and resign means, "voluntarily leave a job
or position of office
". There does therefore appear to be a distinction between the
two words in that whereas in the latter
case the emphasis is on the
voluntariness of leaving a job or a position in the former it is on
the aspect of the age at which
one leaves the job. It is this aspect
that is envisaged by sec. 6 of the Proclamation which provides as
follows:

6(1) no pension, gratuity or other allowance shall be granted under
this Proclamation to any officer except on his retirement from
the
public service except on his retirement in one of the following
cases. (a) if he retires from public service under the Government
of
Basutoland (Lesotho) -

1. on
   or after he attains the age of fifty five years; or, subject to six
   months notice of his retirement, on or after attaining
   the age of
   forty;

   
   

It seems
to me clear that when the applicant chose to resign from the public
service he opted for one method rather than the other
of leaving the
public service. The other is of cause retirement. When he opted for
resignation he

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must have
been aware that the method of retirement was not available to him as
that depended upon him attaining the prescribed ages.
The applicant
at forty one was therefore not eligible for pension or gratuity under
section 6 of the Pensions Proclamation. The
minimum age at which
pension or gratuity may be paid is forty five years.

The
applicant says section 6 of the Pensions Proclamation should be read
with section 18 of the Constitution. He says such a reading
would
make it clear that the legislature "impliedly or at least
contemplated payment of gratuity to civil servants who resign
their
posts". Section 18 of the Constitution prohibits laws that are
discriminatory either in themselves or in their effect.
It prohibits
discrimination on the grounds of race, colour, sex, language,
religion, political or other opinion, national or social
origin,
property, birth or other status whereby persons of one such
description are subjected to disabilities or restrictions to
which
persons of another such description are not made subject or are
accorded privileges or advantages which are not accorded
to persons
of another such description (section 18 (3)).

I do not
see, and the applicant does not say exactly on what ground he bases

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the
alleged discrimination against himself. He makes the point that
married women who are otherwise discriminated against by the

proclamation may be at the discretion of the [RESIDENT COMMISSIONER]
- read MINISTER) be given a pension or a gratuity. He compares

himself with such women. He seems to be saying that some concession
must be made for him similar to the one that may, at the discretion

of the Minister, be made to married women.

I have no
doubt this would be stretching the interpretation of the Pension
Proclamation to breaking point. This law is very clear.
It prescribes
a retirement age which entitles one to pension and gratuity. Once a
woman marries, however her entitlement to such
pension and gratuity
ordinarily ceases and becomes, together with her age presumably,
dependent on a functionary's discretion.
To that extent the law
becomes discriminatory either in itself or in its effect. I say this
of cause without making any definitive
decision on this but merely to
illustrate the illogicality of applicant's argument. He cannot in my
view invoke a discriminatory
provision of the law to allege
discrimination against himself when all the benefits and privileges
of that law actually redound
to him on grounds of sex. He cannot
expect to be treated like women who are discriminated against in the
first place.

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Finally
applicant argues that I should apply equitable principles and
consider that fairness demands that after twenty four years
and five
months of service I should rule that he is entitled to a pension and
gratuity. He compares himself with a person in the
private sector who
after serving only a few years would be entitled to a severance pay
calculated as a percentage of those years.
The simple answer to this
is that the applicant was in the public service and as such was
governed by the law relating to public
servants and not by the law
governing employees in the private sector. The latter are governed by
the Labour Code No.24 of 1992
(as amended). As far as the applicant
is concerned the Labour Code provides at Sec. 2 (2) thereof:

"The Code shall not apply to -

1. any
   person (other than a person employed in a civil capacity) who is a
   member of-

   
   

1. the
   Royal Lesotho Force.

   
   

2. the
   Royal Lesotho Mounted Police .

   
   

(since amended to read Lesotho Mounted Police Service)

The
applicant being a former police officer is thus clearly excluded from
the provisions of the Labour Code . More importantly however
equity
cannot come to the assistance of the applicant in the face of clear
and unambiguous provisions of the law. Sir James Rose
Innes put it
this way:

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"The Court cannot grant equitable relief, if by doing so it
would be going contrary to a well defined principle of the Roman

Dutch Law, or to some statutory provision". Lazarus &
Jackson v Wessels, Oliver and the Coronation Freehold Estates Town
&
Mines Ltd 1903 TS 499 at 509. (See also Wille's Principles of South
African Law 8th Ed. pp. 17 -19).

Section 6
of the Pensions Proclamation on which applicant relies is very clear
and there is no occasion to derogate from its provisions.

The
application is dismissed with costs.

T.
NOMNGCONGO

JUDGE

Mr
Letsika : For Applicant Mr Putsoane :

For
Respondent

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