IN THE
LABOUR COURT OF LESOTHO

LC/41/05

LC/33/97

LC/18/98

HELD AT
MASERU

IN THE
MATTER BETWEEN

BENEDICT
TSELISO RANGOANANA APPLICANT

AND

STANDARD BANK LESOTHO LTD RESPONDENT

JUDGMENT

Date of
hearing : 18/04/06

Motion
proceedings – Dispute of fact on affidavits – Court to adopt
respondent’s version – Set-off Applicant bringing claims

piece-meal.

Set-off
– Applicant challenging it after seven years – Vigilantibus
non dormientibus jura subveniunt - a
litigant has a duty to make his claim within a reasonable time-
Interest claimed after five years – late referral undermines
good
administration of justice.

Interest
– general rule is to claim interest a tempore
mora – Any further interest may be
claimed in terms of agreement to that effect between parties –
Lesotho has no statute regulating
interest on judgment debts –
Application dismissed with costs.

INTRODUCTION

The
applicant filed this application out of the Registry of this Court on
the 1^st July 2005.
The relief sought was couched in the following terms;

That the
Honourable Court make an order in the following terms:

1. That
   the respondent be ordered to comply fully with the judgment of this
   Honourable Court in LC33/97;

   
   

2. To
   declare the deduction made by the respondent as set-off as unlawful
   and contrary to the judgment in LC33/97;

   
   

3. That
   the respondent be ordered to pay the applicant an amount of one
   hundred and thirty three thousand maluti (M133,000.00) being

   unlawful deduction made contrary to the judgment in LC33/97.

   
   

At
the hearing this amount was revised down to M68,888.08 after
realizing that an amount of M60,810.00 paid to applicant’s then

attorneys of record in December 2000 constituted part settlement of
the amount claimed under this paragraph.

4. That
   the respondent be ordered to pay compound interest on M133,000.00
   (now M68,888.08) at the rate of 27% from the date of judgment
   in
   LC33/97 to date of payment.

   
   

5. That
   the respondent be ordered to pay compound interest at the rate of
   27% p.a. on the amount of M60,810.00 being applicant’s
   arrear
   salary, from the date of judgment in LC33/97 to 3^rd
   February 2001.

   
   

6. Costs
   of suit.

   
   

7. Further
   and/or alternative relief.

   
   

HISTORICAL
BACKGROUND

The
History of this dispute dates back to 1982, when the then bank
employees union, Lesotho Union of Bank Employees (LUBE) called
out
its members on a strike in support of wage demands. LUBE organized
and had substantial membership in the two international
banks
operating in Lesotho at the time. Those were Barclays Bank PLC and
Standard Chartered Bank. The applicant was employed
by the former as
an Accountant.

The strike
resulted in the dismissal of two prominent members of LUBE; one from
each of the two banks. Bahlakoana Moliko was dismissed
from the
Standard Chartered Bank, while the applicant was dismissed from the
Barclays Bank PLC on the 10^th
August 1982. The union referred the matter to the then Unfair Labour
Practices Tribunal under the then Trade Unions and Trade
Disputes Law
No.11 of 1964. The Tribunal found in favour of the union and the two
complainants and ordered their reinstatement
and compensation for
lost wages from 01/09/82 to 14/04/83. The two banks appealed to the
High Court which set aside the finding
and order of the Tribunal.
The Union took the matter on further appeal to the Court of Appeal,
which set aside the High Court
judgment and reinstated the finding of
the Tribunal. However, the Court of Appeal ordered the Tribunal to
re-evaluate the propriety
of the order of reinstatement it had given,
in the light of the fact that three years had lapsed since
applicant’s dismissal.
The Court of Appeal judgment is reported in
the 1985-1990 volume of the Lesotho Law Reports at p.435.

The matter
only came before the Tribunal in 1986. It was finalized in June
1987. The Tribunal concluded that it was no longer
practicable to
order applicant’s reinstatement in the light of the time lapse
since his dismissal. The tribunal “awarded damages
comprising his
monthly salary from the 7^th
July 1982 to the 1^st
June 1987…” (See p.1 of typed judgment in LC33/97). By this
time the respondent had undergone numerous changes of names having

assumed the name of Barclays Bank International Ltd. A year earlier
it had been known as Barclays Bank Limited. It is common
cause that
the present respondent has been substituted for the previous entities
which employed the applicant.

The award
of the Tribunal ordered that the income that the applicant earned
from self-employment during the ensuing period be deducted
from the
amount due in terms of the Tribunal’s award. It is common cause
that that amount i.e. the mitigated amount was not
easily
ascertainable as it had been raised through informal trading as among
others, fruits hawker. The Court accordingly ordered
the two parties
to sit down and seek to reach agreement on the amount to be deducted.
The award had a rider that if the parties
failed to agree the issue
be referred back to it (the Tribunal) for final determination. It
appears that even the salary that
had to form the basis of the award
became a big dividing issue as the parties could not agree on it.

Despite
these disagreements neither party approached the Tribunal for final
determination. It is common cause that in April 1993,
all hitherto
existing Labour Legislation was repealed and replaced by the Labour
Code Order 1992. It follows that even the then
Unfair Labour
Practices Tribunal became defunct. Functions that it performed
devolved in the Labour Court. The Labour Court commenced
operations
in October 1994. It was only in 1997, ten years after the award,
that the applicant approached the Labour Court in
LC33/97 for final
determination of the outstanding issues namely salary; to be used in
formulating the compensatory award and the
set off. It emerged in
this action that the respondent also sought to set off a mortgage
loan it made to the applicant which the
applicant opposed.

It turned
out at the hearing that the parties had previously been involved in
intense negotiations in an attempt to agree on what
should have been
applicant’s salary between July 1982 and June 1987, should he have
continued in respondent’s employment.
These negotiations yielded
an agreement which was communicated to applicant’s then counsel by
respondent’s counsel on 14/12/95.
The letter was attached to the
papers in LC33/97 as annexure “STB7” and the agreement itself was
“STB10”. The court determined
the matter in LC33/97 by endorsing
that agreement as constituting the salary applicant would have earned
for the period plus the
thirteenth cheque for each year end. As for
the set off the court decided the issue by endorsing applicant’s
own suggestion
that “… respondent’s entitlements be pursued
separately…”. The court accordingly decided that the set-off
sought by
the respondent be ventilated in another forum to avoid any
further delay in deciding the salient issue of the amount to which
applicant
is entitled in terms of the Tribunal’s award.

In July
1998, the respondent made a unilateral payment in the amount of
M118,987.32 to applicant’s then attorneys of record.
This amount
was made up of salary for the period July 1982 to may 1987 totalling
M158,937.70, less guestimate for mitigation of
damages rounded off to
M65,000.00. The balance of M93,937.70 was multiplied by two to cater
for interest within the context of
the in
duplum rule. The amount arrived at was
reduced by M34,444.04 again multiplied by two representing the
balance of the mortgage bond with
interest again based on the in
duplum rule. That left the balance of
M118,987.32 which was paid by cheque to applicant’s attorneys,
without prejudice.

THE
PRESENT CASE

It would
appear that just before the unilateral payment of the amount
aforesaid, the applicant filed fresh proceedings on the 14^th
March 1998 under case LC18/98 in which he sought order of the court
compelling respondent to pay him the judgment sum as computed
by
himself unilaterally. The application was heard and two judgment
thereon delivered on the 25^th
August 1998 and the 1^st
August 2000. In the preamble paragraph of the judgment of the 25^th
August, the learned Mapetla Ad hoc President as he then was made a
pertinent remark that:

“this
matter has an unfortunate history of being a subject of recurring
dispute because the parties involved do not seem to agree
on anything

with
respect to the issues which this court reserved for their mutual
agreement and compromise. In particular, it is common cause
that a
meeting which this court ordered to determine the amount of unpaid
salary due to the applicant never materialized. On the
contrary each
party made its own computations and calculations which are the world
apart.”

The
learned Ad hoc President however, repeated his earlier finding
endorsing the computation reflected in annexure “STB10” and
that
the applicant is entitled to the thirteenth cheque and interest at
the rate of 27%. The court further ruled after considering
a host of
authorities on the subject that the in duplum
rule should be invoked essentially because each party carried a share
of the blame for the delay in effecting payment as ordered
initially
by the Tribunal and later by the court. The court ordered that the
issue of mitigation of damages be dealt with at the
resumed hearing
due to be held on the 2^nd
November 1998.

At the
resumed hearing; judgment for which was delivered on the 1^st
August 2000, the Ad hoc President ruled that the applicant was bound
to mitigate his damages. From applicant’s own computation
of what
he earned outside respondent’s employment it was held that his
award be reduced by M4,190.00. The court refused to endorse
the
questimate amount of M65,000.00 and ruled instead that:

“In
the result we come to the conclusion that the respondent is entitled
to deduct the amount of M4,190.00 only from what is due
to the
applicant as damages. We are aware
that the respondent has already made an advance payment of about
M118,000.00 to the applicant without prejudice and
we consider this to be a reasonable effort towards a settlement.”
(emphasis added).

We have
emphasized the above phrase for the reasons that will be clear
hereunder.

Following
this judgment the respondent reinstated payment of M65,000.00 which
it had unilaterally deducted as questestimate for
mitigation of
damages. The amount was paid less the M4,190.00 allowed by the court
as mitigation of damages. The net amount of
M60,810.00 was duly paid
to applicant’s then attorneys of record on the 14^th
December 2000, even though the applicant himself says his attorney
only transmitted payment of that money to him in February 2001.
It
is trite that in motion proceedings if the two versions of the
applicant and the respondent conflict the court will take the
version
of the respondent. (See Molapo Qhobela & Another v.v. BCP &
Another (1999-2000) LLR – LB 235 at p.253, Bernard
Moselane &
Ors .v. Manager Bonhomme High School & Others (1991-1992) LLR –
LB 132 at page 135.) Indeed the applicant
has not contradicted the
respondent’s averrement regarding the date of payment in his reply
to respondent’s Answering Affidavit.
In the circumstances the
court is entitled to assume the correctness of averrements which are
admitted or are not challenged.
(see Plascon-Evans Paints Ltd .v.
Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623(A)). That payment,
would seem, ex facie
the papers before us, to have closed the dispute between the parties.

THE
APPLICANT’S CLAIM

In a
surprise turn of events, approximately five years down the line, the
applicant approached this court seeking full compliance
with the
judgment in LC33/97. His contention is that the respondent wrongly
deducted the money in respect of the mortgage bond
because the
deduction was not authorized by the judgment. He also seeks interest
at 27% per annum for the alleged late payment
of M60,810.00 and the
amount of the mortgage bond from date of judgment to the date of
payment.

CONCLUSIONS

Three
things need to be said about this claim. First the applicant was
aware as of August 1998 when he received payment of M118,987.32
that
among the deductions made was one that related to the mortgage bond.
He approached the court in LC18/98 and one of the main
issues
canvassed in that case was deductions. Whilst he attacked the
deduction of the questimate amount of M65,000.00 he said
nothing
about the deduction of the mortgage bond. Even the court in the
judgment of August 1998 referred to the amount respondent
paid
without prejudice which was less the mortgage bond deduction. No
justifiable reason is advanced why the issue was not raised
in that
case because the applicant and the court were already aware of the
deduction. Prima facie
this is a typical case of a piece-meal approach which courts simply
do not countenance. (See Moeketsi Moru .v. The Attorney General
&
Another C. of A (CIV) No.12 of 2001 (unreported).)

The second
issue relates to the length of time that is has taken the applicant
to approach the court to challenge the said deduction.
The set-off
is being challenged seven years after it occurred. Public policy
dictates that there should be finality to litigation.
Thus if a
party takes an unreasonably long time to seek a relief to which he is
entitled he is assumed to have waived his right
to claim. In Marumo
& Ors .v. Dorby (& Ors (2005) ILJ 498 at p.500 A-B the
principle that a litigant is obliged to pursue
his claim within a
reasonable period was described as vigilantibus
non dormientibus jura subveniunt. See
also National Union of Metalworkers of SA & Others .v. AS
Transmissions &Steering (Pty) Ltd (2000) 21 ILJ 327. The
same
principle was invoked in the case of Cape Town Municipality .v.
Abdulla 1974 (4) SA 428 at p.348 where the following was said:

“A
man whose allegedly legal interests are threatened should be vigilant
in protecting them. He is not entitled to expect others
particularly
not the party threatening the disputed interest to protect him.
Vigilantibus non dormientibus jura
subveniunt may not be a rule of law,
but it seems to be a maxim having some application in this instance.”

See also
Mbetshu .v. SA Broadcasting Corporation & Others (2005) 26 ILJ
1598 at pp.1603-1604 F-J and A-E.

The third
and final issue to consider is that the respondent’s defence is
that it effected a set-off after an agreement was reached
between
itself and the applicant at a meeting held pursuant to the order of
the court that the issue be ventilated in another forum.
(See
paragraphs 7 and 8 of the Answering Affidavit). As would be expected
the applicant denies that the set-off of the mortgage
bond was done
pursuant to any agreement between him and the respondents. The
circumstances of this case however, militate against
his version. If
indeed no agreement was reached to effect the set-off of the mortgage
bond, the applicant would have acted swiftly
to challenge it. But
the applicant has been quite about the set-off since 1998 when it was
allegedly unilaterally effected until
2005 which is approximately
seven years. We are inclined to accept the respondent’s version as
the more probable version in
the circumstances. In addition the rule
enunciated in Qhobela Molapo’s case supra
where dispute of fact arises in affidavits still applies in this
instance. Accordingly this claim falls to be dismissed.

The issue
that remains is that of interest on the alleged late payment of the
M60,810.00. It is common cause that the payment of
that amount was
done pursuant to the judgment of this court in LC18/98. If any
interest was due on that amount it ought to have
been claimed in that
proceeding. It appears however that the applicant claims payment of
interest from 1^st
August 2000 to 14^th
December 2000 when payment was made. The position is that once again
the applicant has furnished no reason why he is only approaching

court after five years to claim what he alleges belong to him. It is
apposite to repeat what was said by Jones J in Mbetshu’s
case supra
at p.1604 E. The learned judge who was dealing with a case of late
review application stated that “the good administration of
justice
requires certainty and finality in the judicial process, which is
undermined if matters are brought on review after so
many years.”
We have no hesitation in finding that the same principle should apply
in the instant matter.

Furthermore,
in the normal course of things, as a rule interest may only be
claimed a tempore mora.
Any further interest may not be claimed otherwise than in terms of
an agreement which must be specifically alleged. (See Beck’s

Theory & Principles of Pleading in Civil Actions; 6^th
Edition, Butterworths at p.331.) In the case of South Africa
interest may be claimed on a judgment debt in terms of prescribed

Rate of Interest Act No.55 of 1975. It has not been suggested to us
that Lesotho has an equivalent statute and we are not aware
of its
existence. Accordingly, there is no basis in the law for the
applicant to claim interest on a judgment debt as he is seeking
to
do. In the circumstances this application cannot succeed, it is
accordingly dismissed with costs.

THUS
DONE AT MASERU THIS 1ST DAY OF JUNE 2006

L.
A. LETHOBANE

PRESIDENT

L.
MOFELEHETSI I CONCUR

MEMBER

R.
MOTHEPU I CONCUR

MEMBER

FOR
APPLICANT: MR. KHAUOE

FOR
RESPONDENT: MR. MALEBANYE