IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 30/99

HELD
AT MASERU

IN
THE MATTER OF:

ROSA
SELLO (duly assisted by her husband) APPLICANT

AND

LESOTHO
ELECTRICITY CORPORATION RESPONDENT

JUDGMENT

This
is a case in which the applicant is contesting the fairness of her
dismissal on the grounds that:

1. Evidence
   submitted and entirely relied upon was hearsay.

   
   

2. No
   witnesses were called except one Mr. Mohapi who was the investigator
   in the case and also relied on statements extracted from
   applicant
   by force and through duress while she was in police custody.

   
   

3. Onus
   of proof was unlawfully placed on applicant to prove her innocence.

   
   

4. Applicant
   was called to testify before the complainants and this rendered the
   hearing procedurally unfair.

   
   

5. Applicant
   was dismissed without having been paid her bonus for end of 1998 and
   for 37 days leave worked for.

   
   

The
applicant accordingly prays that her dismissal should be found to
have been both substantially and procedurally unfair and that
she
should be reinstated with payment of all her emoluments and benefits.

We
must put on record from the start that after it was shown to her
under cross examination that her outstanding 37 days leave were
used
by the respondent to reduce her indebtedness to the Lesotho Bank the
applicant abandoned the claim and said she would verify
with the
bank. As regards the 1998 bonus she also abandoned it after being
closely cross-examined by Woker showing that she never
earned her
bonus because she was suspended for good reasons because of the
trouble she got herself into. All she could say was
“I hear what
you are saying, but I am not sure what to say about it.” (see p.44
of the typed record). Grounds (c) and (d)
above were neither persued
in evidence nor in Mr. Matooane’s heads of argument. We
accordingly treated them as abandoned as
well.

Both
sides adduced evidence before us to substantiate their respective
versions. Applicant herself testified to support her case.
We must
however, start by giving a brief history of the background to this
case. It is common cause that in or around August
1998, it came to
the attention of the respondent corporation that there was a scam to
defraud it. The scam was devised to corrupt
the procedure for the
connection and supply of electricity to households in the Mabote
Project area in Maseru. A connection fee
for a house in the Mabote
Project area was M3,500-00. This resulted in money which ought to
have been paid to the respondent (M3,500
a house) finding its way
into private hands. An investigation was launched by LEC and the
Police. The investigations led in the
arrest of some seven
employees, applicant included. The seven were disciplined and
dismissed by the respondent, but the criminal
case is still pending.
It is that dismissal which the applicant is presently challenging
before this court.

Applicant’s
testimony before this court is that sometime in August or September
1998 she was suspended from work. While she was
on suspension she
was called for a hearing where she was asked questions about other
people. She was asked by her lawyer if before
the hearing she was
ever arrested? She answered that before the suspension she was told
by her supervisor to report to the Police
because Mr. Thibeli had
been looking for her.

She
testified that she went to the Police as instructed. When she got
there, she averred, Mr. Thibeli told her allegations that
were being
made against her by the Management of the respondent. She testified
further that; “he told me to write what he was
saying. He told me
using abusive language because I was reluctant to write and he
promised to lock me up in the cell. He threatened
me to an extent
that I agreed to write.” (see p6/10 of the typed record of the
court proceedings). She testified further that
Mr. Thibeli
“...promised to lock me up in the cell and he told me that he was
going to tell my husband that I had some relationship
with some other
.....(intervention) illicit affair. Okay. He told me that I was
using political affairs at the place of work
which I did not do and
he told me that I was the child of a National BNP.......That is
it.”(Ibid).

The
witness testified that she obliged and wrote what she was being told
to write. She said that she however, wrote very briefly
not taking
everything that she was being told to write. She actually said she
made a short summary. The following day, she testified,
Mr. Thibeli
came back and told her supervisor to tell her to again report to the
police. When she arrived she was again abusively
told to write
another statement in which she was told to implicate other people.
She testified that she wrote that second statement
but only to obtain
her freedom.

The
applicant testified further that at the disciplinary hearing no
witnesses were called except for Mr. Mohapi. She stated that
the
gist of Mr. Mohapi,s testimony was what he said he was told by Mr.
Thibeli which Mr. Thibeli said he got from her (the applicant).
As
for the other people who she was alleged to have helped to obtain
electricity supply unlawfully, they were never called, she
testified.
More on this testimony of the applicant later.

The
respondent’s version was that the applicant was involved in the
scam. To prove this allegation at the disciplinary hearing,
they
relied on the evidence of two of the respondent’s employees namely
Mr. Mohapi who chaired the respondent’s internal investigation

committee and Mrs. Monaheng who is the Revenue Section supervisor.
The respondent further relied on the two statements of admission
made
by the applicant at the police station on the 27^th
and 30^th
October 1998 respectively. We will revert to this aspect of the case
in due course.

Before
this court the respondent adduced the evidence of four witnesses.
The first one was Mr. Samuel Sefefo of Mapholaneng in
the Mokhotlong
District. He is one of the LEC customers whom the applicant is
alleged to have assisted to be connected to the
electricity supply
fraudulently. Mr. Sefefo’s testimony (DW1) was that he never had
any dealing with the applicant to have his
house connected. He
stated that he was helped by one Cecelia Phate to pay for the
connection fee. The said Cecelia took the
papers (presumably
connection application forms) and the money from him and said he
would pay to the applicant i.e. Rosa. Thereafter
he left everything
with Cecelia. When he was asked if he knows Rosa he said he knows
her because they paid to her at the window.
It must be recorded that
it is not in dispute that at the material time applicant was a
cashier. DW1 finally testified that he
never knew that there was any
fraud involved until after he was questioned by the police and
instructed to pay yet another M3,500-00
to the LEC so that he could
be lawfully connected.

DW2
was Detective Inspector Thibeli who interviewed the applicant. DW2
testified that he is the investigating officer in Maseru
RCI150/8/98
in which the applicant is one of the suspects. He averred that the
respondent made a report to the Police regarding
a suspected
misappropriation of funds. As a result of the report some two
employees of the respondent were arrested by the Police.
These were
the lady called Cecelia Phate and the gentleman called Thato Thene.
When they were questioned by the Police they gave
explanations which
led the Police to the applicant. When the Police went to look for
her at work they found that she had gone
on leave. The Police left
the message with the authorities to inform her to report to the
Police when she came back to work.

On
the 27^th
October 1998, without any prior knowledge on the part of DW2 the
applicant arrived to report accompanied by her husband. DW2 says
he
interviewed the applicant in the presence of his (DW2) juniors. The
applicant gave an explanation which, he told her to write
down on a
peace of paper. This explanation is the statement of admission of
involvement which forms page 33 of exhibit “A”
which was handed
up by Mr. Matooane for the applicant with the concurrence of Mr.
Woker for the respondent. DW2 vehemently denied
dictating to the
applicant what to write or in any way through improper means inducing
her to make the statement. He said however,
that he cautioned her
before she made the statement.

He
testified that thereafter they released the applicant with the
warning that she should report again on the 30^th
October 1998. On the 30^th
the applicant made yet another statement still admitting involvement
in the scam. This second statement appears on page 36 of
exhibit
“A”. He again denies threatening the applicant or promising her
anything or doing or saying anything to unduly influence
her to make
the statement.

DW3
was Ms ‘Majubile Ntsoereng. She testified that she resides in the
Mabote Project area. She applied to LEC for connection
around 1996.
Upon follow up, of her application, her file could not be found.
After seeing her going to LEC several times, the
applicant offered to
help her. She searched for her file and was able to find it. After
finding it, applicant told her how much
she had to pay. She averred
further that since she is an airhostess she could not find time to go
to LEC to go and pay. The applicant
went to her place of work to
collect the money from her so that she could pay for her. She gave
her M2,000-00 and she was later
connected. Approximately eighteen
months after connection she was contacted by the LEC which advised
her to go and pay M3,500-00
connection fee as the previous one was
fraudulent. She like DW1 had to pay twice.

Respondent’s
last witness was Mr. Mohapi who was a member of the respondent’s
internal investigation team. His evidence was
that during
investigations he called the applicant to question her about the
scam. He particularly asked her about the fraudulent
receipts of DW1
and DW3. He testified that the applicant admitted that she knew
about the scam and how it operated. She was the
one who was putting
the LEC rubber stamp on the fictitious receipts after they had been
fraudulently generated outside LEC. She
further informed him that
she was the one who was communicating genuine duplicate receipts of
customers kept by her section to
one Pulane who would print those
numbers on blank receipt paper, also stolen from the respondent’s
storeroom. Pulane was using
her employer’s computer to do this.
The receipts so generated would then be taken back to applicant who
would affix the respondent
cashier’s rubber stamp to give
authenticity to the receipt.

Reverting
to the applicant’s testimony, it was to a large extent
substantiating her grounds for relief as outlined in her Originating

Application. It struck us that from the start, applicant’s
testimony lacked the chronology and exactitude that one would expect

from a litigant who has approached a court for relief. The rather
confused and unorganised fashion in which her testimony has
been
summarised in this judgment is precisely the way she presented it
before us. From the very beginning, she talks of suspension
and the
hearing. She estimates that these could have occured around August
or September. Now the suspension and the hearing were
infact the
last two things to happen. Why start with them?

It
is apparent that the applicant was only suspended after she had been
to the Police for questioning. We make this inference because

according to overwhelming evidence which is not denied, when
investigations were started applicant either took leave or she was

already on leave. During investigations her name cropped up. When
Police went to look for her she was on leave. Police left
the
message that when she returned to work she should report to them (the
Police). She reported to the Police on the 27^th
October 1998, after she was told by her supervisors at work that
Police were looking for her. This is applicant’s own testimony
and
it is corroborated by DW2 Inspector Thibeli. Clearly therefore, she
was still at work on the 27^th
October 1998 and the suspension could only have come after that date.
Why then is there such a wide gap between applicant’s
estimate of
her suspension date and the actual date of suspension which by her
own admission could only have been after the 30^th
October 1998, because even on that date she reported to the Police
coming from work? Similarly, her actual date of hearing as
shown on
the record of her disciplinary proceedings (Exhibit “A”) was 19^th
January 1999, but again her estimate is August/September. This in
one view lends credence to our observation that applicant’s

testimony is characterised by inexactitudes, regard being had to the
fact that as the applicant she owes it to the court to be
as close to
the actual thing as possible in order to help the court.

The
second striking feature of applicant’s testimony is its hollowness
in terms of content. The applicant was ignorant of virtually

everything pertaining to procedures leading to the connection of
electricity supply to an individual’s house. She was questioned
at
length by Mr. Woker for the respondent about the procedure that an
individual homeowner would follow before the house can be
connected
up to the point of payment and ultimately connection. Applicant’s
answers were all “I do not know.” It was suggested
to her what
procedure has to be followed after payment of connection fee to
actual connection, she still did not know anything.
This ignorance
of the applicant must be contrasted with the fact that she had nearly
a decade of work experience as respondent’s
cashier in which
position she was central to the giving of directions to people who
had paid the connection fees as to which next
step they had to take.
It is highly unlikely that the applicant could be as ignorant about
the respondent service connection procedures
as she would want us to
believe.

The
third striking feature of applicant’s testimony was its glaring
untruthfulness, when measured against other witnesses’ testimonies.

For instance, when she was asked whether she knew DW1 Mr. Sefefo,
she said she knew Mr. Sefefo. When asked further from where
she knew
him she said, “just being in town, I just know that this is Mr.
Sefefo.” The evasiveness in her answer is a clear
indication that
she was being untruthful. Furthermore, on page 6 of exhibit “A”
(the record of disciplinary proceedings) when
the applicant was asked
if she knew B.S. Sefefo she said, “I know many people by that name
but I don’t know their first names.”
She was asked further “can
you tell us how you know them?” Her answer was a curt, “like I
know you. In fact I know two
people by that name.” Not only are
applicant’s versions contradictory but it is also clear that both
at the enquiry and in
this court the applicant was hiding something
about her knowledge of Mr. Sefefo. Only herself knows what that was,
but that attitude
of hers can only paint a very dark picture of
herself in terms of credibility rating.

Applicant
was asked if she ever had any dealing with Mr. Sefefo and Ms
Ntsoereng regarding the connection of electricity to their
houses.
As has been characteristic of her evidence, her answer was a
categoric denial. However, in his testimony Mr. Sefefo (DW1)

implicated the applicant, albeit indirectly, when he said he gave
money to Cecelia Phate who said he was going to pay for him with
Rosa
(the applicant) when she is free at her counter. Rosa herself
testified that she was not the only cashier, but this particular

payment was going to be made to her specifically. This happens to be
the very fraudulent payment which never reached LEC account.
Common
sense dictates that Cecelia and Rosa know where it went. Her denial
of assisting Ms Ntsoereng has also been proved to
be devoid of truth
by Ms Ntsoereng’s testimony who chronicled how applicant offered to
assist her even without her asking for
such assistance. Applicant
helped Ms Ntsoereng find her forms which could not be found. After
finding them she informed her how
much she was supposed to pay.
Since Ms Ntsoereng was always flying, the applicant offered to pay
for her and to that end she
went to Ms Ntsoereng’s place of work
and collected M2,000-00. Again this is the amount that never landed
in the respondent’s
account. Once again logic dictates that it is
the applicant who ought to be asked where it went and why it was
never paid into
appropriate LEC account. Her denial of having
dealings with these two witnesses are clearly untruths.

Another
glaring example of applicant’s untruthfulness is her narration of
her experience in the hands of the Police. In chief
she said as she
was being told what to write by Inspector Thibeli she was reluctant
to write, but because of the threats she wrote
but only in summary
form. She was grilled by Advocate Woker under cross-examination to
say if all what appears in the statement
of 27^th
October 1998 is what she was told to write she agreed. Then she was
asked;

“Can
I understand you correctly, is it your evidence that Mr. Thibeli
actually dictated what he wanted you to write and then you
wrote down
his words?”

Rosa:
“Yes, he told me what to write and I wrote down everything
that he told me to write.

“Word
for word?

Rosa
: “I am not sure if I took word for word, because he was talking
quickly
and insulting me.” (At p.26). (emphasis added).

We
have emphasized “everything” because that directly contradicts
applicant’s evidence in chief that she was so reluctant
to write
that she infact only summarised. We have also highlighted the claim
that Mr. Thibeli was talking fast thereby denying
applicant chance to
take down every word simply to show how innovative applicant can be.
In one breath she took down everything
word for word and in another
breath the speaker was too fast to enable her to take down
everything. On the same page 26 of the
record the court sought
clarity on her evidence that she was taking down everything being
said by Mr. Thibeli who she said was
also insulting her in the
process. The court asked:

“Why
did you not write down the insults as well, why did you leave them
out?”

Rosa
: “Where I had written what he did not agree with he used to tear
them.”

Common
sense tells you that this is a lie. If ever it was so, it warranted
special mention in her evidence in chief.

In
her evidence in chief the applicant catalogued the chilling threats
that were made against her, as well as insults. Not once
did she
mention an actual assault, a tube or a black blanket. But when she
was asked under cross-examination if she was assaulted
she blew hot
and cold and in her typical innovative style she was able to box
herself out of the corner in this manner;

“He
assaulted me. He did not assault me but he had all the rubber to
cover my face and he wanted me to lie down over there.”

She
was asked further; “what exactly did you see there, there was
rubber? Yes there was rubber and a black blanket. He was
threatening to cover my head with those and lock me in the cell.”
(See p.32 of the typed record). This is all new evidence which

surfaces for the first time under cross-examination. It cannot in
any way help applicant’s case as it is clearly all fabricated

stories.

Because
she has been so outrightly untruthful, the applicant’s testimony
cannot be accepted as a more probable version even where
all the
indications are such that it should be so treated. For example, in
her evidence applicant says that the following day
after she made the
first statement Mr. Thibeli went to fetch her to come and make
another statement. This would mean she was fetched
on the 28^th
October 1998. Mr. Thibeli on the other hand says when he released
her on the 27^th
October he warned her to report again on the 30^th
October. This version was not put to the applicant to enabler her to
rebut it. But because applicant has struck us as the most

untruthful witness, we are not prepared to accept her version as more
probable. On the contrary we think Mr. Thibeli’s is more
probable
because he has been honest with the court and his version
corroborates the date on which the statement was taken. For
these
reasons we rule that applicant’s testimony must be thrown out in
its entirety.

On
the otherhand we are satisfied that the respondent’s witnesses
especially DW1 and DW3 whom applicant helped to have their houses

connected to the electricity supply fraudulently, adequately
implicate the applicant. We are prepared to believe them as it would

appear, they had no ulterior motive in implicating the applicant.
Indeed none was suggested to us. Similarly, we are not convinced

that DW2 used the alleged threats to induce the applicant to make the
two statements that she made before the Police. Indeed DW2
struck us
as an honest, straightforward and consistent witness. We have no
reason not to believe his testimony.

Coming
now to the submissions of counsel, it was contended on behalf of the
applicant that the disciplinary committee did not have
evidence to
support the finding of guilt it made against the applicant. It was
argued that DW1, DW2 and DW3 were never called
at the disciplinary
hearing. Only DW4 was called who it was contended relied on the
statement of applicant to the Police which
had been extracted from
her by force and through duress.

The
respondent never disputed that the three witnesses who testified
before us never testified at the enquiry. Annexure “A”
confirms
that time and again the applicant sought to have Mr. Sefefo and Ms
Ntsoereng to be produced by the disciplinary committee,
but in vain.
As for Mr. Thibeli the committee did attempt to call him to testify
but he declined. Even before us he stated that
he declined the
invitation because it is their policy (the Police) not to participate
in the domestic enquiries conducted by the
employer. In our view the
Police cannot be faulted on the approach they have adopted. As for
DW1 and DW3 the pertinent issue
to be addressed is; if ever they had
to be called, as claimed, what value would their testimony have to
the enquiry? The respondent
mounted its own internal investigations
which led them to the people whom applicant had helped with irregular
service connection.
These were Sefefo and Ntsoereng who were cited
as examples of the existence of the scam. By no means did this mean
that they
were the respondent’s essential witnesses to establish
applicant’s culpability. They may well have testified for the
applicant
if she so desired, that they were not connected
fraudulently, for that matter with applicant’s assistance. But as
we have seen
they would not do so as the direct opposite was the
case.

On
the contention that Mr. Mohapi’s evidence could not be admissible
in as much as it relied on the statements made by the applicant
to
the Police which statements amounted to hearsay, we are of the view
that this submission cannot be correct. It must be recalled
that Mr.
Mohapi was the member of the respondent’s internal investigation
team. He could therefore, testify directly about his
team’s
findings which included applicant’s two statements. As regards the
two statements they are informal admissions which
according to S.E.
Van der Merwe, DW Mokel, A.P. Paizes & A. st Skeen on Evidence,
Juta’s Legal Guide Series, Juta & Co.
Ltd 1983; are admissible
against the applicant as their author. We wish to quote in extenso
what the learned authors say about
this subject of admissions at page
216 of their invaluable work:

“An
admission is a statement or conduct adverse to the person from whom
it emanates. A distinction must be drawn between “formal”

admissions and “informal” admissions: the former category relates
to admissions made either orally in court or in the pleadings
with a
view to reducing the issues before the court by placing the fact
admitted out of contention, whereas the latter category...concerns

admissions, usually made out of court, which are tendered in evidence
against their maker. Confessions which are particular types
of
admissions and which apply only in regard to criminal cases are dealt
with separately.

Informal
admissions constitute an exception to the rule against hearsay in
that they constitute statements, generally made out of
court; which
are admissible to prove the truth of what they assert.”

This is clearly the
case in casu unless sufficient and reliable evidence can be adduced
proving the contrary.

Mr.
Matooane contended further that the statements were not made freely
and voluntarily. He cited as examples the fact that the
applicant
spent five hours at the Police station before giving the statement.
This question was put to Mr. Thibeli why it was
only at five minutes
before six 0’clock that the applicant made the statement? He
answered it freely and without any apparent
attempt to hide anything
and said they were not dealing with applicant alone. There were many
other people they had to interview.
This explanation of his was
never contradicted. Mr. Matooane submitted further that the
applicant may have been induced to make
the statement because of the
intimidating atmosphere of the Police station and the fact that she
was confronted by three “guys”
who interrogated her coupled with
the fact that she was kept many hours at the Police station.

According
to Inspector Thibeli applicant arrived at the Police station at
around 14h30. It is common cause that her statement is
recorded to
have been made at 17h55, some two and half hours later. We are not
persuaded that this is an incredibly long time
to have intimidated
applicant into making a statement regard being had to the Inspector’s
evidence that there were times when
they left her alone to attend to
other matters. As regards the contention that police station
atmosphere and the element of three
“guys” confronting applicant
were also intimidating, we are not prepared to make such an
inference. The applicant testified
at length about threats and other
intimidations she was subjected to. She chose not to mention these
two. It would in our view
be improper for us to rely on inferences
in the presence of direct evidence, albeit fabricated and outrightly
untruthful.

Even
assuming that Mr. Matooane’s argument that the applicant’s
statements are hearsay and as such inadmissible was to be upheld,
the
applicant’s conviction at the disciplinary hearing would still be
well supported by another aspect of Mr. Mohapi’s evidence.
That is
that the applicant admitted involvement in the scam to Mr. Mohapi.
It is true that Mr. Matooane fiercely cross-examined
Mr. Mohapi on
the consistency of his testimony before the court and before the
disciplinary panel. In particular he was arguing
that Mr. Mohapi’s
testimony that applicant admitted guilt to him is not corroborated by
the record of the disciplinary proceedings,
i.e. Annexure “A”.

In
paragraph 4 of its Answer the respondent made the following
concession, “in so far as any criticism can be levelled against
the
disciplinary hearing as it appears from the record of proceedings put
before the court by the applicant, the respondent intends
curing any
shortcomings by means of oral evidence before this Honourable Court.”
The applicants never objected to this procedure
and hence Mr.
Mohapi’s testimony which may on the face of it appear to amend the
record and is as such liable to be attacked
as contradictory. The
applicant herself was asked under cross-examination if it is correct
that the record is not a verbatim record,
but only a summary she
agreed. The same question was put to Mr. Mohapi in chief and he
agreed.

A
summary cannot reflect every word that was said at the hearing as
would a verbatim record. This is evident in the apparent
contradiction
between Mr. Mohapi’s testimony and the recorded
summary of the proceedings on the alleged admission of involvement by
the applicant
to Mr. Mohapi. Nowhere is it specifically recorded in
Mr. Mohapi’s evidence that he testified directly that applicant
admitted
involvement to him. It only becomes clear that Mr. Mohapi
had at some stage testified so at page 15 of the record (exhibit “A”)

where the committee put the following question to the applicant:

“Committee: Evidence
is that you worked at the cash desk at that time, even your files can
show this. Furthermore, the evidence
of Mr. Mohapi showed that you
agreed to having received money from Mr. Sefefo, this evidence was
led in your presence and you failed
to rebut it. Do you have
anything to say?”

“Mrs.
Sello: No, I don’t have anything to say.”

In
the circumstances we discern no contradiction in Mr. Mohapi’s
testimony and the summary of the proceedings of the disciplinary

enquiry. Our finding is that applicant was properly found guilty of
involvement in the scam and indeed evidence before this court
has so
established. The application is accordingly dismissed. There is no
order as to costs.

THUS
DONE AT MASERU THIS 7TH DAY OF AUGUST, 2001.

L.A
LETHOBANE

PRESIDENT

P.K.
LEROTHOLI

MEMBER I
AGREE

C.T.
POOPA

MEMBER I
AGREE

FOR
APPLICANT : MR. MATOOANE

FOR
RESPONDENT: MR. WOKER