Likoti v Commissioner of Police and Others (CIV/APN/332/2002)

Case No: 
CIV/APN/332/2002
Media Neutral Citation: 
[2004] LSHC 43
Judgment Date: 
8 March, 2004

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CIV/APN/332/2002

IN THE HIGH COURT OF LESOTHO


In the matter between:

FAKO LIKOTI APPLICANT

and

COMMISSIONER OF POLICE 1st RESPONDENT

MINISTER OF HOME AFFAIRS 2nd RESPONDENT

MINISTER OF FINANCE 3rd RESPONDENT

MINISTER OF PUBLIC SERVICE 4th RESPONDENT

ATTORNEY GENERAL 5th RESPONDENT


JUDGMENT


Delivered by the Honourable Mr Justice T. Nomngcongo on the 8th of March. 2004


This is an application for an order in the following terms:


  1. Declaring that applicant is entitled to gratuity and other benefits after his long service in the Lesotho Mounted Police Service.


  1. Directing 1st up to 4th Respondents to pay gratuity and/or other benefits to applicant.


  1. Costs of suit.


  1. Granting applicant any further and/or alternative relief.


A notice of intention to oppose was filed and in terms of Rule 8(10) (c) the respondents filed a notice to raise a point of law in the following terms:


That in terms of section 6 of the Pensions Proclamation 1964, applicant does not qualify for either gratuity or pension in that


  1. He did not retire from the Police Service but resigned.


  1. At the time of his resignation he was forty one (41) years of age, which did not qualify him for payment of either gratuity or pension in terms of that law.


It is common cause that by a letter dated 1st August 2000 the applicant tendered his resignation from the Lesotho Mounted Police Service. The resignation was accepted by the Commissioner of Police by a letter dated 9th August 2000. He was paid for the month of August. He was also paid in lieu of eighty nine days outstanding leave. He subsequently caused a letter to be written to the Minister of Home Affairs demanding to be paid gratuity "pursuant to the Public Service Regulations and other related laws of this country ". He does not refer to any specific regulation or law of this country. By a letter from the personnel officer of the Lesotho Mounted Police he was informed that "the Pensions Proclamation 1964 does not provide for gratuity in the event of resignation". The latter is the initial point taken by the respondents.


The respondents draw a distinction between resignation and retirement. The


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Pensions Proclamation N0.4 of 1964, the law that deals with pensions and gratuities does not define the word retire or retirement. The word "retire" is defined in the Concise Oxford English Dictionary (Tenth Edition, Revised) as "i. Leave one's job and cease to work, especially because one has reached a particular age", and resign means, "voluntarily leave a job or position of office ". There does therefore appear to be a distinction between the two words in that whereas in the latter case the emphasis is on the voluntariness of leaving a job or a position in the former it is on the aspect of the age at which one leaves the job. It is this aspect that is envisaged by sec. 6 of the Proclamation which provides as follows:


6(1) no pension, gratuity or other allowance shall be granted under this Proclamation to any officer except on his retirement from the public service except on his retirement in one of the following cases. (a) if he retires from public service under the Government of Basutoland (Lesotho) -


  1. on or after he attains the age of fifty five years; or, subject to six months notice of his retirement, on or after attaining the age of forty;


It seems to me clear that when the applicant chose to resign from the public service he opted for one method rather than the other of leaving the public service. The other is of cause retirement. When he opted for resignation he


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must have been aware that the method of retirement was not available to him as that depended upon him attaining the prescribed ages. The applicant at forty one was therefore not eligible for pension or gratuity under section 6 of the Pensions Proclamation. The minimum age at which pension or gratuity may be paid is forty five years.


The applicant says section 6 of the Pensions Proclamation should be read with section 18 of the Constitution. He says such a reading would make it clear that the legislature "impliedly or at least contemplated payment of gratuity to civil servants who resign their posts". Section 18 of the Constitution prohibits laws that are discriminatory either in themselves or in their effect. It prohibits discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description (section 18 (3)).


I do not see, and the applicant does not say exactly on what ground he bases


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the alleged discrimination against himself. He makes the point that married women who are otherwise discriminated against by the proclamation may be at the discretion of the [RESIDENT COMMISSIONER] - read MINISTER) be given a pension or a gratuity. He compares himself with such women. He seems to be saying that some concession must be made for him similar to the one that may, at the discretion of the Minister, be made to married women.


I have no doubt this would be stretching the interpretation of the Pension Proclamation to breaking point. This law is very clear. It prescribes a retirement age which entitles one to pension and gratuity. Once a woman marries, however her entitlement to such pension and gratuity ordinarily ceases and becomes, together with her age presumably, dependent on a functionary's discretion. To that extent the law becomes discriminatory either in itself or in its effect. I say this of cause without making any definitive decision on this but merely to illustrate the illogicality of applicant's argument. He cannot in my view invoke a discriminatory provision of the law to allege discrimination against himself when all the benefits and privileges of that law actually redound to him on grounds of sex. He cannot expect to be treated like women who are discriminated against in the first place.


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Finally applicant argues that I should apply equitable principles and consider that fairness demands that after twenty four years and five months of service I should rule that he is entitled to a pension and gratuity. He compares himself with a person in the private sector who after serving only a few years would be entitled to a severance pay calculated as a percentage of those years. The simple answer to this is that the applicant was in the public service and as such was governed by the law relating to public servants and not by the law governing employees in the private sector. The latter are governed by the Labour Code No.24 of 1992 (as amended). As far as the applicant is concerned the Labour Code provides at Sec. 2 (2) thereof:


"The Code shall not apply to -

  1. any person (other than a person employed in a civil capacity) who is a member of-


    1. the Royal Lesotho Force.


    1. the Royal Lesotho Mounted Police .

(since amended to read Lesotho Mounted Police Service)


The applicant being a former police officer is thus clearly excluded from the provisions of the Labour Code . More importantly however equity cannot come to the assistance of the applicant in the face of clear and unambiguous provisions of the law. Sir James Rose Innes put it this way:


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"The Court cannot grant equitable relief, if by doing so it would be going contrary to a well defined principle of the Roman Dutch Law, or to some statutory provision". Lazarus & Jackson v Wessels, Oliver and the Coronation Freehold Estates Town & Mines Ltd 1903 TS 499 at 509. (See also Wille's Principles of South African Law 8th Ed. pp. 17 -19).


Section 6 of the Pensions Proclamation on which applicant relies is very clear and there is no occasion to derogate from its provisions.


The application is dismissed with costs.


T. NOMNGCONGO

JUDGE


Mr Letsika : For Applicant Mr Putsoane :

For Respondent


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