IN THE HIGH COURT OF LESOTHO
In the matter between
BULARA RANGOPE APPLICANT
SECURITY LESOTHO RESPONDENT
Delivered by Honourable Mrs Justice K. J. GUNI on the 22nd day of November, 2000.
The applicant herein was an employee of the respondent company (SECURITY LESOTHO (pty) LTD). He was first engaged by the said company on the 29th August 1985. Nothing is said about the position or rank held by him on his entry into the service of the said company. His services were terminated on the 14th January 1994 rather abruptly after a series of disciplinary proceedings had been instituted against him. It would therefore appear that he had worked for the
respondent company for a period of approximately eight (8) years (7) seven months.
It is apparent that over those years, he worked his way in the ranks of the said company to a position of a SECURITY OFFICER which appears to be the rank held by him just before his dismissal from the respondent company. In that said capacity, the applicant must have been entrusted with a greater responsibility concerning security and control at the respondent company. It would appear from the facts gleaned from the papers filed of record, that this applicant was in charge in the control section of the respondent company. This impression is created by the fact that at the conclusion of the misconduct proceedings, conducted against this applicant, on the 10th December 1993, the recommendation for his removal from the control section, was made. At that stage, he was also given a final warning for his misconduct. At the first appearance before the disciplinary committee, he had been charged with neglect of duty. The cash left in his custody had disappeared. He had claimed that the disappearance was caused by his neglect of his duty because he should have taken good care of the money which was in his custody and under his immediate control.
When he appeared again before the same Disciplinary Committee, this time, facing
a charge of misconduct involving another disappearance of cash left in his care and custody, there was no full blown misconduct inquiry proceedings as before [See Annexure "C" page 1 of the record]. On the 10th December 1993, this applicant was charged with the neglect of his duty instead of misappropriation of that cash. It was being alleged, that he was responsible for the disappearance of the money left in the control room. This is the room where he was in charge. This applicant seems to have no power to resist any temptation to help himself with any amount of money whenever an opportunity arises. On two separate occasions small amounts of money which was under his immediate care and custody disappeared.
On 15th December 1993, this applicant was charged with an act of misconduct whose particulars show that he unlawfully borrowed himself some money which had been collected from his colleagues as contributions to assist the bereaved family of a deceased colleague. That cash which this applicant took is alleged to belong to the deceased Ramarou. [See Annexure 'D' Page 24 of the record]. The technical question of whether or not the applicant could or did steal from the deceased who may not lay a claim against him, does not fall for determination presently. The applicant appears to claim that he borrowed the said cash from one Pokola to whom he repaid the same. The applicant's explanation is belated
because at the hearing, there was no full blown misconduct inquiry regarding the disappearance of those contributions collected to assist the family of the deceased Ramarou because this applicant admitted stealing it. At the hearing by the disciplinary committee this applicant raised no such defence or any defence at all. It is the presence of Mr. Pokola, in the disciplinary committee, which this applicant now uses as a ground to attack the proprietary of the decision reached by the said disciplinary committee. The decision that the applicant stole the said money from the deceased was that of the applicant himself. The committee merely made the recommendations following upon that admission. The proprietary of charging the applicant with stealing that money from the deceased person while the same was in his own care and under his own control, does not fall for determination at this stage. At this juncture, this court has been specifically requested to determine a question of law first and separately in terms of Rule 32(7) High Court Rules, Legal Notice N0.9 of 1980. The relevant portion of the said rule reads as follows:
"(7) If it appears to the court mero motu or on the application of any party that there is any pending action a question of law or fact which it would be convenient to decide either before any evidence is led or separately from any other question the court may make an order directing that the trial of such question in such manner as it may deem fit, and may order that all further proceedings be stayed until such question is disposed of.
The parties indicated to me that they have agreed that a court order be made that
there is a question of law or fact which must be determined first and separately before the determination of the main application. There has been three peripheral issues determined separately and individually by this court in this case. In the first instance, this matter was before my brother Judge Mofolo. The only question decided, then was what appeared to be a plea in bar. This plea was to the effect that this applicant was not entitled to bring for review before this court, the proceedings which took place more than two years ago. That plea of prescription failed.
The same matter was now heard the second time by Honourable Judge Lehohla. The parties had agreed that an order of court be made, directing that a question of law or fact be determined first and separately before the court could consider the determination of the application on its merits. An order to that effect by their agreement was, accordingly made by Lehohla J. The question of law which this court is called upon to determine first and separately is whether or not this applicant is entitled to the relief sought, considering the prayers made and the facts which are in the common cause. The applicant in his prayers seeks the review of the proceedings of the disciplinary committee, instituted and conducted against him on the 10th December 1993 and on the 15th December 1993. The facts which are in the common cause are that the applicant brought the matter to the court for
review after the expiration of more than two years without showing what he did in that period to mitigate his loss if he did anything It is argued that this applicant brought this application for the review of the decision of the disciplinary committee, after the expiration of a period of approximately two years. The applicant does not mention in his papers what he has been doing for the period of two years since his dismissal from the respondent company. He may have been employed or unemployed. The parties agree, that the review, correction and setting aside of the disciplinary committee's decision has a necessary consequence of restoring the terminated relationship of the employer and employee between the parties, without the specific request of reinstatement made by the applicant. The applicant in this matter has two available remedies. BAXTER - ADMIN . LAW; Page 673 He could have specifically asked for reinstatement or payment of damages. Where a contract of employment is terminated in breach of the said contract, the aggrieved party is entitled to sue for reinstatement or payment of damages. This is a common practice. This applicant has not specifically asked for any of the available remedies.
The power to review, correct and set aside is a discretionary one. This discretion
must be exercised judicially after weighing properly all the surrounding circumstances of the case. Wolgroeiers Apslaers (Edms) Bpk v Hunisipaliteit Van Kaapstad 1978 (!) SA 13 (A) 38 -9. It is important to allege in the affidavit all the material facts. In this case it is very material that the court is given sufficient facts regarding what exactly has been happening to this applicant since the termination of his employment two years ago. The parties have agreed that the reinstatement of this applicant is a necessary consequence of the setting aside of the decision of the disciplinary committee. The applicant, would therefore be reinstated after six years [from 1994 to 2000] and be entitled to his benefits without asking this court specifically to order the reinstatement and payment of the said benefits. There are no facts alleged and discussed, which could possibly justify the exercise of the court's discretion in favour of this applicant. It is argued and I feel properly so, by Ms Thabane for respondent, that this may prejudice the respondent because the applicant, may have, as required by the law, mitigated his loss of the said benefits during this period of six years. Reinstatement in those circumstances can not be the restoration of the status quo. The applicant should have elected either to be reinstated or paid damages and set out properly the grounds to support his chosen remedy. This is the usual practice. He has done neither.
In the exercise of its discretion, the court is entitled to withhold the remedy sought, when from the facts alleged it is obvious that the remedy sought is not a suitable one. BAXTER - ADMIN. LAW; Page 673 Without the sufficient facts, this court cannot exercise its discretion judicially to review, correct and set aside the decision of the disciplinary committee of the respondent. In other words, the applicant is not entitled to a remedy sought, particularly when it is going to bring about what the applicant has not specifically asked for. Therefore in this circumstances the question which this court was required to determine first and separately, that is, whether or not the applicant is entitled to the remedy sought in the light of his prayers and the facts in the common cause, is answered in a negative.
22nd November 2000
For Applicant : Mr. Mosae
For Respondent : Mr. Matsau