IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 28/00

HELD
AT MASERU

IN
THE MATTER OF:

SETHO
JOSEPH KHOELI APPLICANT

AND

LEROTHOLI
SEKHONYANA RESPONDENT

JUDGMENT

Applicant
herein approached this court for relief in the following terms:

1. Payment
   of M2,215-37 in respect of severance pay.

   
   

2. Payment
   of M5,316-92 in respect of leave not taken.

   
   

3. Payment
   of M1,476-91 in respect of overtime not paid.

   
   

The
applicant lodged his Originating Application on the 7^th
March 2000. The Originating application was posted to the respondent
by registered mail in accordance with rule 4 of the Rules
of the
court. Moreover, the applicant’s counsel caused the Originating
application to be served on the respondent personally.
According to
the return of service filed with the court this was done on the 7^th
March 2000. In our view all indications are that the respondent did
receive the Originating Application as is evidenced firstly
by the
personal service effected on him and secondly the fact that the
registered letter sent to him by the Registrar never returned
to show
that it was unclaimed.

Notwithstanding
his receipt of the Originating Application the respondent never filed
an Answer in terms of rule 5 of the rules.
Accordingly on the 18^th
July 2001 the applicant’s attorneys applied for default judgment in
terms of rule 14 of the rules. In terms of the messenger’s
return
of service the application for judgment by default was served on the
respondent personally on the 4^th
September 2001. The default judgment application was scheduled for
hearing on the 25^th
October 2001. The notice of hearing was again sent to the respondent
by post. However, on the date of hearing neither the respondent
nor
his legal representatives were present. The court accordingly
proceeded to hear the default judgment application.

It
turned out that the reliefs sought by the applicant are not capable
of being granted without the support of evidence. It then
became
necessary for the applicant to testify. It turned out that prior to
issuing court summons the applicant’s attorneys had
attempted an
amicable out of court settlement. In their attempts to resolve the
dispute the respondent had offered to pay applicant
some M2,160-00 in
respect of severance pay and accrued leave. The applicant attached
to the Originating Application the respondent’s
calculations of the
amount as annexure “A”. In his Originating application paragraph
11 thereof the applicant disputes these
calculations and say the
method used is unorthodox and not in accordance with the provisions
of the Labour Code Order 1992. No
evidence was led to support these
remarks. However, looking at the figures it is evident that the
method employed by respondent
is far more beneficial to the applicant
than that used by applicant’s attorneys.

When
it came to severance pay the applicant was asked when he joined the
respondent as his employee. The applicant did not know.
All he
could say was that he had been in the employ of the respondent for
four years although he does not know when he started.
His
Originating application says he started in August 1995 and was
terminated in August 1999. While applicant was able to confirm
the
termination date in evidence, he could not do the same in respect of
the starting date. In his calculations (annexure “A”
to the
Originating Application) the respondent says applicant started to
work for him in March 1997 and confirms the year of termination.

According to the respondent applicant had worked for him for two
years. In his evidence the applicant did not dispute the
respondent’s
suggested date of March 1997. He only said he worked
for the respondent since the days of the respondent’s late father,
Chief
E.R. Sekhonyana. Now even in March 1997 Chief Sekhonyana was
still there. In the premises we think the applicant has failed to

prove his alleged four years service. If anything the applicant has
worked for the respondent for two years and this is confirmed
by his
employer.

With
regard to leave the applicant testified that he never took leave in
the years that he worked for the respondent. He however
did not know
how many days of leave he is owed. His counsel was of the view that
he was entitled to two days per month thus making
a total of
twenty-four days per annum. This view could not however, be
supported by either the code or the regulations of the
respondent as
indeed none were availed. In terms of section 120 of the Code, “an
employee shall be entitled to one working day’s
holiday on full pay
in respect of each month of continuous employment with the same
employer.” This makes a total of twelve
days per annum. Given
that we have already held that in our view applicant’s period of
service with the respondent is two years,
it follows that if in the
two years applicant never took leave he has a total of twenty four
days to his credit. This much is
confirmed by the respondent in his
calculations in annexure “A” of the Originating application.

Coming
now to overtime and weekly rest. The applicant conceded when he was
asked by one of the members of the court that he is
an ardent
churchgoer and that on Sundays he used to go to church. He could not
specify how many hours of Sundays he worked after
going to church.
As regards overtime he made a general statement that he worked day
and night. No particularity as to the staring
hours and finishing
hours in each day was furnished. Asked why he did not demand his
overtime and worked weekly rest days when
they were due at the end of
each month they had been worked, he said his employer was always away
on business. This is highly
improbably. It cannot therefore,
possibly be true that in the years that the applicant worked with the
respondent they never had
occasion to meet as he suggested. The view
that we hold is that the applicant’s evidence is insufficient to
sustain the claim
he is making. Accordingly this claim cannot
succeed. In the premises we order that the respondent pays applicant
the sum M2,160-00
made up as follows: M960-00 in respect of the
twenty four days leave and M1,200-00 as severance pay.

THUS
DONE AT MASERU THIS 26TH DAY OF OCTOBER, 2001.

L.A
LETHOBANE

PRESIDENT

A.T.
KOLOBE

MEMBER I
CONCUR

P.K.
LEROTHOLI

MEMBER I
CONCUR

FOR
APPLICANT : MR. M. LICHABA

FOR
RESPONDENT: