IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 40/99

HELD
AT MASERU

IN
THE MATTER OF:

BERENG
MOLAPO APPLICANT

AND

GOOD
LUCK WUS (PTY) LTD RESPONDENT

JUDGMENT

Applicant
herein launched the present application on the 20^th
September 1999 seeking relief in the following terms:

1. An
   order declaring applicant’s dismissal by respondent as unfair
   dismissal.

   
   

2. An
   order directing respondent to pay applicant salary for the month of
   August 1999 in the sum of M3,700.

   
   

3. An
   order directing respondent to pay applicant a sum of M3,700-00 being
   an equivalent of one month’s salary in lieu of notice.

   
   

4. An
   order directing respondent to pay applicant a sum of M1,423-00 being
   leave pay for ten(10) days.

   
   

5. An
   order directing respondent to pay applicant a sum of M11,100-00
   being an equivalent of three months salary as compensation
   in lieu
   of reinstatement.

   
   

6. An
   order directing respondent to pay costs hereof, including
   consultant’s fees.

   
   

7. Further
   and/or alternative relief.

   
   

Fourteen
days lapsed without the respondent filing its Answer in terms of the
rules, which prompted the applicant to file an application
for
default judgment on the 26^th
October 1999. On the 4^th
November the respondent filed its authority to represent thereby
indicating its intention to defend the action. On the 10^th
November an Answer combined with an application for condonation were
filed by the respondent.

On
the 8^th
March 2000 the parties appeared before Mr. Mapetla Adhoc Deputy
President as he then was assisted by Messrs Poopa and Makhetha.
In
that brief appearance the parties agreed that leave for condonation
of respondent’s late filing of the Answer be granted.
They further
agreed to proceed by way of discovery of documents in terms of rule
11(2)(a)(b)(d) and (f) of the Court rules in
order to determine
whether the applicant was employed by the respondent. This agreement
was made an order of the court.

On
the 10^th
May 2001 the parties appeared before us. While confirming the Order
of Mapetla Ad hoc Deputy President, Counsel for the parties
informed
the court that they had decided to narrow the issues to the question
whether there was an employment relationship between
the applicant
and the respondent. The determination of this issue will, the
parties reported, rest the case.

To
prove his case the applicant led an evidence of himself. He was the
sole witness assisted by some documents which he handed
in court to
corroborate his evidence. Applicant testified that he met a Chinese
man by the name of Mr. Wu, who asked him to help
him to form a
company and to become an employee of that company. He testified
further that he contacted a lawyer who helped him
to register a
company. He went further to say that he subsequently registered the
company with the Ministry of Trade for purposes
of issuance of a
licence to manufacture.

Applicant
relied on a form he submitted to the Ministry of Trade as evidence
that he was employed by the respondent as the Chief
Executive of the
company. That form was handed in and was marked “BM1”.
Applicant further testified that he earned a salary
of M3,500-00 a
month and a housing allowance of either M1,400-00 or M1,500-00. He
was not sure he said. Applicant further relied
on a letter written
by his lawyer to the commissioner of Income Tax in compliance with
Section 41 of the Income Tax Act 1981 as
further proof that he was
employed by the company. In the last paragraph of that letter it had
been stated “the Secretary and
Public Officer of the company shall
be Bereng Molapo, P.O. Box 0720, Maseru West.”

In
their answer the respondents denied that applicant was an employee as
alleged. They averred that “applicant was merely rendering

services to the respondent in applying for a trading licence and
attended Government institutions to set up its business in Lesotho.”

They said further that for those services they remunerated applicant
with a fixed amount of M2,500-00 which was given to him on
a monthly
basis; but not as a salary. They denied that any contract of
employment ever existed between the parties.

Under
cross-examination Mr. Buys alerted the applicant to the fact that his
Originating Applicant does not say anything about housing
benefit.
His answer was that he did not know maybe the lawyer would know. He
was asked if it was correct that he said his salary
was M3,500-00 per
month. He answered evasively by saying “thereabout.” Cornered
to say exactly how much it was he said M3,500-00.
It was then
brought to his attention that his originating application says he was
earning M3,700-00. His answer was again “I
don’t know.”

In
our considered view, applicant’s claim that he earned a housing
allowance is an afterthought. This is why the claim has not
been
pleaded. Furthermore, his uncertainty as to how much it was goes
further to show that he was engaging in a fishing expedition.

Similarly, applicant’s uncertainty coupled with downright
contradiction of his claim on the papers regarding the salary he
earned, leaves much to be desired about his credibility as a witness.

Applicant
was further asked to prove his Chief Executive status with the
company. To this end he was asked if he was one who was
giving
instructions, his answer was “yes with Mr. Wus”. This evidence
could not in our view possibly be true because in his
evidence under
cross-examination the applicant stated that the company was at the
stage of formation and it had not at that time
employed staff. He
was further asked who appointed him as Chief Executive he said it was
Mr. Wu. He was asked further if he ever
saw the resolution of the
Board of Directors appointing him as the Chief Executive his answer
was in the negative. When he was
asked if he was one of the
Directors of the respondent he said he was not; but he was in charge
of the executive operations of
the company.

Mr.
Buys for the respondent referred the applicant to the letter “BM2”
which had been written by his lawyer informing the commissioner
of
Income Tax that he (the applicant) would be the Secretary and Public
Officer of the company. He then asked him if in that capacity
he
ever attended to any of the statutory requirements regarding this
company in compliance with the law. His answer was the company
was
still at the formation stage. Machinery was yet to be imported and
staff still had to be employed he said. Mr. Buys became
specific and
said company secretary is supposed to keep the company register. Did
this company have a company register that you
kept? His answer was
we had not yet done that. When he was made aware that according to
his evidence he had worked for the company
for nearly a year, ten
months to be exact and that he can’t be heard to say the company
had not yet had a company register, he
said this was supposed to be a
very big company and it was as such taking off slowly.

It
is clear that applicant’s only evidence that he was employed as
secretary, public officer and chief executive of the respondent
is
based on exhibits “BM2” and “BM1” respectively. He however,
dismally failed to show a single executive or secretarial
function he
performed in fulfillment of his employment as such. “BM1” on
which he places his reliance that he was appointed
as Chief Executive
by Mr. Wu expressly states that apart from the name and address of
the Chief Executive, the authority must be
enclosed. This can only
mean the authority of appointment as Chief Executive. No such
authority could be shown to have been enclosed,
for when applicant
was asked if he enclosed it he said may be the lawyer could know.
This inability to produce the authority,
fits hand in glove with the
question that was asked whether applicant ever saw the resolution of
the Board of Directors appointing
him Chief Executive, which he
answered in the negative. Such resolution would in our view be a
loud and clear authorisation of
the applicant which paragraph 10 of
“BM1” required.

As
regards the appointment as secretary again “BM2” cannot
constitute an authority of appointment into such an important and

powerful statutory position as company secretary. The same goes for
appointment as Chief Executive. Better authority than annexure
“BM1”
would be required for the appointment into such senior executive
position. But all in all we are of the view that if
applicant’s
testimony when under the pressure of cross-examination is to be
believed, he could not be employed in either of the
two capacities
claimed because the company was only at a formation stage. Indeed he
was asked by one of the members of the court
why in paragraph 2 of
“BM1” where he had to provide the name of the applicant
enterprise, he did not also provide the number
under which the
company was incorporated. He could not provide an answer. Indeed
the applicant could not even prove that the
company was at the
material time already incorporated.

Mr.
Mohaleroe submitted in argument before us that there was an
employment relationship between applicant and respondent because

“BM1” which gives his name under the paragraph requiring
particulars of the Chief Executive is signed by the Managing Director

Mr. Wu. We have already shown that “BM1” cannot be an authority
for applicant’s appointment as claimed. A more direct form
of
evidence is necessary to prove this status. Secondly, there is no
authority authenticating his appointment as such. Thirdly,
the
authenticity of “BM1” itself is questionable. Though the
handwriting is consistent, it is however, filled in at least
three
different pens. It has been tippexed in certain places instead of
merely striking out the error and signing for it. Above
all it bears
no governmental stamp to show that it is an official Government
document. Mr. Mohaleroe averred that it could not
be stamped because
the official who gave it to them had no authority to release it.
There is no explanation why they did not go
to the appropriate
authority who would have the authority to release the document. But
even if there was a sustainable reason
why they could not approach
the appropriate authority Mr. Mohaleroe’s averrement cannot
possibly be true. This is so because
as a practice as soon as a
document is received at a government department, it is rubber stamped
to evidence receipt and the date
thereof. Accordingly, if the
document was ever received at the Ministry of Trade where it is
alleged to have been retrieved from,
it would bear that Ministry’s
rubber stamp of the date of receipt even if in a secondary form.

He
submitted further that “BM2” should be acceptable as it has been
certified as the true copy of the original. The question
that arises
is still the same. If it was ever received at the office of the
Commissioner of Income Tax it would bear his office’s
rubber stamp.
He would then himself have had the power and authority to certify it
as a true copy of the original he received.
The likelihood is that
in casu the office file copy signed in the original signature of the
author of the letter was photocopied
and presented to the
commissioner of oaths to certify. This leaves the question open
whether the commissioner did receive the
letter “BM2” or whether
it was sent after all. We cannot in the circumstances say that
applicant’s appointment as secretary
of the company is established
in terms of the Income Tax Act.

Mr.
Mohaleroe argued further that applicant was employed because he was
being paid a monthly salary. It is common cause that the
respondent
denies paying applicant a salary. It says it remunerated him for
services rendered by way of contacting Government
institutions in
pursuit of the registration requirements of the respondent company
albeit on a monthly basis. In evidence under
cross-examination
regarding the salary he earned applicant crashed badly. His
contradictory evidence regarding what his salary
was cannot sustain
his claim that he earned a salary. In the circumstances this point
fails as well.

Mr.
Mohaleroe contended further that the questions regarding applicant’s
fulfillment of statutory requirements of the company
were not fair to
the applicant as they are legal questions as such they should not
weigh against him. The applicant is no ordinary
lay person. He
clearly has some comfortable level of education as he was even able
to conduct his testimony in the English language.
Indeed he could
not be considered for such high positions as he claims he had been
appointed to, but for his diligence in matters
connected therewith.
If he was employed in a statutory position surely he should be versed
with the statutory requirements of
the position. Accordingly, we
find no unfairness in the questions and his inability to answer them
satisfactorily has indeed had
an influence on our decision whether he
was infact employed in the capacity alleged. We are of the view that
the applicant has
failed to prove that an employment relationship
existed between him and the respondent. This application is
accordingly dismissed
with costs.

THUS
DONE AT MASERU THIS 18TH DAY OF MAY, 2001.

L.A
LETHOBANE

PRESIDENT

C.T.
POOPA

MEMBER I
AGREE

M.
MAKHETHA

MEMBER I
AGREE

FOR
APPLICANT : MR MOHALEROE

FOR
RESPONDENT: MR. BUYS