CIV/T/365/2001
IN THE HIGH COURT OF LESOTHO
In the matter between:
RANTSO SEKOATI Plaintiff
and
COMMANDER OF LESOTHO DEFENCE
FORCE 1st Defendant
THE ATTORNEY-GENERAL 2nd Defendant
JUDGMENT
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 26th March, 2007.
Plaintiff in his summons has sued the Defendants for damages resulting from the unlawful termination of his commission as a Second Lieutenant (Ilnd Lt) in the Lesotho Defence Force (LDF). Such termination was done without any prior hearing, but after Plaintiff had been discharged on all counts against; him at a Court Martial.
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According to the Plaintiff in his declaration, he was retired at the age of 32 years instead of 55 years as he would have statutorily been entitled to retire. He has claimed for payment of M1161 680.00 being the equivalent of his monthly salary for the remaining 23 years when he would be 55 years. This has been those number of years by his cross monthly salary of M4,200.00 at the time of termination of his commission. He has also claimed for payment of M200,000.00 damages for emotional pain and suffering with interest and costs.
The matter was opposed and the Defendants' plea admitted that Plaintiffs Commission was terminated. They however deny that Plaintiff was entitled to retire at the age of fifty-five without necessarily stating which then was the correct retiring age. I took this
therefore as a bare denial. Plaintiff gave evidence which showed that he became a member of LDF in June 1992. He rose through the ranks in the army till he was a IInd Lt. This was the rank he held when he was removed from work in 2000. In his evidence Plaintiff showed that he was found not guilty of mutiny by the Court Martial and was discharged. That the Court Martial even gave a directive on the 25 March 1999 that all those discharged be reinstated to work without any strings attached.
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Plaintiff had reported at work as directed but was asked to remain at home till further notice. He said he remained at home for almost two years. He then in the interim applied for study leave to the National University of Lesotho (NUL). He had been admitted to do law. He took the admission letter to the LDF Personnel Office to seek permission to study. This he said was on a Wednesday and was asked to come again hopefully for a positive response the next Wednesday.
Plaintiffs evidence showed further that he complied and went the following Wednesday. Instead of getting a letter giving him permission to pursue his studies he was met with a dismissal letter from work. It was in a form of a Legal Notice, Legal Notice No.39 of 2000 annexed to the papers together with a certificate of good conduct Annexure "A".
It will be remembered that amongst other claims made by Plaintiff in this case was to be paid his salaries for the 23 years left before he would be 55 years, the statutory retiring age. I have already shown that the Court would take his word on that as the Defendants have just made a bare denial.
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Plaintiff called in evidence a member of LDF in the salaries section, one Captain Morake Tsepe. His evidence revealed that Plaintiff when he was so retired, was paid gratuity of M21,663.78 plus his remuneration for 5 days he had worked for that month of M681.13 and leave pay in two instalments of M938.40 and M21, 150.22 respectively together with an amount of M9,644.80 as a three months' notice pay.
This witness also gave evidence showing that it would not be unusual for paying a member of LDF an amount in gratuity as if he had worked a full term to his statutory retiring age of 55. He showed that his records reflected that Major General Thibeli's services were terminated in November of 2002 when he was only going to be 55 years in June of 2005. But when his terminal benefits were calculated they also covered up to that time in 2005 when he would have been 55.
In cross examination this witness showed that there were officers who were made to retire voluntarily before attaining the age of 55 years, but not getting any payments. He would not know why Major General Thibeli though made to retire was still paid monies due to him. In explaining the term "made to retire", the witness said actually it was a discharge but covered as retirement. What I
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did not understand was when he said others were made to retire voluntarily. How could it be voluntary when the urge or suggestion comes from someone other than yourself? That might be the language used in the armed forces.
At the close of Plaintiffs case Defendants' Counsel had applied for absolution from the instance as Plaintiffs had not disclosed any cause of action. He said that Plaintiff failed to show that circumstances in Major General Thibeli's case were similar to those
of Plaintiff in this case.
In answer to this application Plaintiffs Counsel showed that by intimating that they were going to call evidence to show that it was by agreement that Major General Thibeli be paid as he was paid, they were already making an admission that there was something to answer.
The Court had dismissed that application without giving reasons but promising that such reasons would form part of the judgment in the matter. These now are my reasons.
The Defendants argued that Plaintiffs witness, a member of LDF, never showed that anyone was ever paid anything if made to retire.
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I could not appreciate this argument because P.W.2 in his evidence gave out monies that were paid to the Plaintiff when he was made to retire. This witness also showed that Major General Thibeli was made to retire but was paid his monies. All these were never denied by the Defendants in cross examination.
The commander of LDF gave evidence for the Defendants. He showed that Plaintiffs services were terminated by the King in March of 2000. That may well have been so, but the King acts on information from employer with recommendations. He would not act on His own. The Commander had made such recommendations.
In his evidence he also admitted that Major General Thibeli was retired early but paid as if he had attained age of 55. According to him at the Court Martial Plaintiffs case was withdrawn. He ended his evidence by showing he was willing to engage the Plaintiff so that he could be paid for services rendered.
In cross examination, the witness could not say for certain that case was withdrawn against Plaintiff so that he could not deny that in fact Plaintiffs case proceeded and was acquitted and discharged and re-instatement ordered by the Court Martial. He also ended up
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admitting that Plaintiffs dismissal was unlawful. The witness was referred to a document which he said he clearly recognized. It was from LDF Director Personnel directed to Director Defence -Finance. It had names including that of the Plaintiff directing that they be paid as if they had attained age 55, per instructions from LDF Commander. He concluded that the directive was never complied with.
His evidence further showed that if Plaintiff was not paid yet others were paid on the basis of that instruction he would be discriminated
against. It was Major General Thibeli at that time as Chief of staff in 2000 who had given instruction to pay the 5 officers who included the Plaintiff as if they were 55. Major General Thibeli had in turn got instructions from the then Commander.
From the beginning of this case parties were agreed that it was common cause that Plaintiff was unlawfully dismissed and that the order or directive from the Court Martial to re-instate Plaintiff was never complied with. The only issue for determination being the quantum. Plaintiff was never afforded an opportunity to be heard before his dismissal, see Commander LDF & ors vs Mokuena & ors C of A (CIV) No.12 of 2002.
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In Mokuena above as rightly pointed out by Plaintiff's Counsel the facts were more or less similar to the present where Appellant had been dismissed without affording him an opportunity to be heard. It has not been the Respondents case that the statute used to dismiss Applicant had expressly or by implication excluded the Principle of audi alteram partem, see Matebesi v Director Immigration cited in Commander LDF v Mokuena supra.
On the facts of this case and the evidence led before this Court Counsel were agreed that I deliver my judgment without any addresses as most of the issues became common cause.
I therefore give judgment in favour of the Plaintiff, and the order of this Court is that:
Plaintiff be re-instated as a member of LDF with effect from the 1st of April, 2007.
That he be paid his salary from the date of his dismissal which is June 2000 when he got his last pay, to date of reinstatement.
That he be paid M50,000.00 damages for emotional pain and suffering.
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Costs of suits.
M. HLAJOANE
JUDGE
For Plaintiff: Mr Mohau
For Defendants: Mr Letsie
