IN THE HIGH COURT OF LESOTHO

 

 

HELD AT MASERU                                CIV/APN/301/2008

                       

 

In the matter between:

 

 

THABO LITHAKONG                                 1^ST APPLICANT

THABANG THAKHOLI                              2^ND APPLICANT

 

AND

 

PRINCIPAL SECRETARY        -                     

NATURAL RESOURCES                            1^ST RESPONDENT

ACCOUNTANT-GENERAL                                 2^ND RESPONDENT

ATTORNEY-GENERAL                              3^RD RESPONDENT

 

 

JUDGEMENT

 

 

Delivered by the Honourable Acting Judge Mr. G.N. Mofolo

On the 3^rd January, 2011

 

 

[1]    Applicants have approached this Court claiming an order in the following terms:

        1.     That a Rule Nisi be issued returnable on a date and         time to be determined by this Honourable Court        calling upon Respondents to show cause, if any,   why:

                (a)    Rules of this Honourable Court shall not be                      dispensed with owing to urgency hereof;

                (b)     Respondents particularly 1^st Respondent shall                  not be found guilty of contempt of court for                          having failed, neglected and refused to comply                      with this Honourable Court’s Order of 3^rd May                    2010;

                (c)     Respondents and particularly 1^st Respondent                    shall not be committed to prison for contempt                     of court;

                (d)    The Honourable Court shall not exercise its                       discretion to suspend the committal on                              condition that Respondents and particularly                   1^st Respondent complies with the Court Order                      of 3^rd May 2010 within 21 (twenty-one) days of                         the determination of this matter.

        2.     That prayers 1 (a) operate with immediate effect as   an interim relief.

 

[2]    According to original papers Applicants approached this claiming:

        1.     Notice of retirement with regard to Thabo Lithakong                  and Thabang Thakholi to take effect from 1^st April                   2008 to 30^th April 2008;

        2.     Each Applicant’s salary for the month of April 2008                  shall not be paid to them in full.

        3.     Each Applicant’s gratuity shall not be computed to                    include the period of 1^st March 2007 to 30^th April                  2008.

        4.     Subsistence allowance of each Applicant owing and                  payable to them which are unpaid and/or                                     underpaid shall not be paid in full in the amounts                        of M94,150.00;

        5.     Costs of suit in the event only of opposition;

        6.     Further and/or alternative relief.

4 above is the claim argued before me on 3 May, 2010 in terms of which Mr. Molokoane agreed of the claim M50.00 as paid leaving a balance of M150.00 unpaid.  The court had proceeded to grant the application as prayed in terms of prayer 4 of the Notice of Application.  The court’s order was read to both Mr. Thabane and Mr. Molokoane and they confirmed it as correct.  In retrospect Mr. Molokoane has submitted it now appears the order is wrong and Mr. Thabane maintains it is right in that the court granted the application as prayed.  In course of address by Counsel to court several issues were raised including what subsistence was earned by Applicant’s while operating in their duty station and outside is now particularly when they were in Maseru and according to Thabo Lithakong Founding Affidavit at para.8 for the period April 2006 to February 2007 him and 2^nd Applicant worked outside their duty station spending 154 (one hundred and fifty-four) nights from April to December 2006 and January to February 2007 amounting in all to 154 days.  Worked for the period March 2007 to January 2008 outside their duty station for period March-December 2007 and January, 2008 amounting in all to 231 days.

 

[3]    At paragraph11 Mr. Lithakong has deposed:   

        “It is common cause that Local Official Subsistence   Allowance rates were M250.00 (Two Hundred and Fifty     Maloti) per night as shown on annex “A” herewith.  I have       checked Annexure “A” and find it refers to orphans which         Joel Thakholi offered to raise apart from the fact that       both Mr. Molokoane and  Mr. Thabane have agreed on this    rate it also appears in Circular Notice No.17 of 2005    of    08 November 2005 Subsistence Local where an officer spends a night away from his/her duty station within the         country where orders are not available and there is clear      evidence of no nearby hotels officials will be eligible for        M250.00 per day to cater for accommodation, meals and        travel expenses such as horse hire.”

[4]    Where travel, meals and accommodation have been paid in full by government or a sponsoring organization for an officer on a field trip or attending a course, meeting or workshop, M50.00 a day will be provided to cover incidental expenses.

 

[5]    It does; however, appear that Mr. Lithakong was paid a sum of M2100.00 subsistence allowance which he claims, in his Founding Affidavit at paragraph 12 to have been “the only claim that was paid for forty-two nights at a freighting low rate of M50.00 (Fifty Maloti) per night and in payment he has attached annexure “C”.  It will however be noted that the M250.00 per day subsistence is in respect of where and officer is away from his duty station and an officer spends the night(s) within the country where orders are not available and there is clear evidence of no hotels and orders are not available an officer will be eligible for M250.00 per day to cater for accommodation, meals and travel expenses such as horse hire.  It is claimed Applicants were, for the 385 days in Maseru where they are claiming 385 days @ M250.00 per day subsistence and it will be seen of this M2100.00 was paid @ M50.00 to which Mr. Molokoane probably referred leaving M150.00 I don’t know being what balance to be paid and Mr. Thabane saying the amount owing was M94,150.00 not knowing on what it is based.  The court did detail both Mr. Molokoane and Mr. Thabane to work out M2100.00 having been paid what the balance was on rate(s) acceptable to them.  I have had a look at their Heads of Argument.

                                                                              

[6]    Of his computations Mr. Thabane has said:

        1.     The total nights spend by Applicants’ out of their                       duty station on duty is 385 days made up of 154                     (paragraph 8) plus 231 (paragraph 9) per facts                             admitted by 1^st Respondent.

        2.     The official rate of subsistence within Lesotho is                        M250.00 per night.

        3.     The number of nights paid for it is 42 (Forty-two) at                   M50.00 per night.

        4.     The amount owing and payable to each Applicant is:

                385 nights x M250.00      =      M96,250.00            

                Less 42 nights x M50.00   =      M  2,100.00

                Amount owing                  =      M94,250.00

I do not understand Applicants’ case, they have accepted subsistence allowance at the rate of M50.00 per night for the same cause and tenure when they were out of their duty station and in Maseru.  In confirmation of their acceptance of the rate, they have had the M2100.00 made up of 42 nights @ M50.00 per night deducted from their overall amount owing not having told the court how the disparate rates of M50.00 a night and M250.00 a night are reconciled.  I am of the view though that Applicants in not rejecting the M50.00 rate per night and dissociating themselves from it have accepted it and accordingly that there cannot be two rates to determine their entitlement.  Besides, the amount owing in their computation differs from that which they claimed in their Application.

 

[7]    I agree with Mr. Putsoane in his calculations of Subsistence Allowance owing to the Applicants that:

        Since Applicants were working at Maseru, where there     were hotels and Government Orders available … they        were eligible to M50.00 per day and that when the rate    of M50.00 per day is multiplied by 385 days this adds up         to M19,250 and deducting therefrom M2100.00 the balance payable to Applicants is M17,150.00.

                               

[8]    This Court cannot say that Respondents have willfully and malafide failed to comply with the order of the Court and accordingly the application for contempt is dismissed and while the order of this Court is rescinded on courts own motion being irregular, it is substituted with the order that Respondents jointly and severally pay Applicants the sum of M17,150.00 within three (3) months of this judgment failing which to report to the Registrar of this Court for such failure and for the Registrar to embark on a course to suit both Applicants and Respondents.

 

 

G.N. MOFOLO

PUISNE JUDGE

 

 

 

For the Applicants   :       Mr. Thabane

For the Respondents        :       Mr. Putsoane