Sepetla v Metro Lesotho (Pty) Ltd (CIV/T 450 of 85) [1986] LSCA 167 (22 December 1986)

CIV/T/450/85 IN THE HIGH COURT OF LESOTHO In the matter of : BERNARD SEPETLA vs METRO LESOTHO (PTY) LTD. J U D G M E NT Delivered by the honourable Acting Chief Justice Mr. Justice J. L Kheola on the 22nd day of December, 1986. The plaintiff sues the defendant for damages in the following amounts: (a) payment of M1.140-00 damages for wrongful dismissal; (b) payment of M25,000-00 damages for animus injuriandi; (c) payment of M629-00 in lieu of notice; (d) payment of M1,330-00 severance pay; and (e) M1,500-00 damages for malicious procedure. The plaintiff claims interest at the rate of 11% per annum from date of demand to date of payment and costs of suit. / -2- In his declaration the plaintiff states that he started working for the defendant from the 1st day of March. 1978 and in 1983 he was promoted to the position of Receiving Manager at the Butha-Buthe branch of the defendant. On the 10th May, 1985 the defendant purported to dismiss plaintiff from its employment with effect from the same day for no lawful cause and ordered him to leave its premises immediately. Upon his purported dismissal the plaintiff requested the Butha- Buthe Manager of the defendant to supply him with a certificate of service in terms of the Employment Act of 1967, whereupon the said Manager issued the plaintiff with a document, the last paragraph of which reads as follows: "Metro Management terminated his services with the Company after a satisfactory proof that Bernard was misusing Company property." The plaintiff denies that he misused Company property and alleges that the document was calculated to and did injure him in his dignity and self-esteem. Lastly, the plaintiff alleges that on or about the 28th May, 1985 the defendant wrongfully, unlawfully and maliciously set the criminal law in motion against him without any reasonable cause and laid a false charge against him which the authorities declined to prosecute. In its plea the defendant states that it dismissed the plaintiff on the 9th May, 1985. The defendant was entitled to dismiss the plaintiff summarily by reason of the plaintiff abuse of (alternatively theft of) the defendant's property. -3- Despite the defendant's aforesaid right to dismiss the plaintiff summarily, the defendant made a without prejudice offer to the plaintiff, in terms of Which (a) the plaintiff would leave the defendant's premises immediately, (b) the plaintiff would not be required to work during any "notice" period; (c) the defendant would pay to the plaintiff the sum of R1,024-85 in respect of salary for 9 days, leave pay for 52 days, notice pay and over-time pay for 15 hours. The aforesaid payment would be in full and final settlement of all the plaintiff's claims against the defendant. The plaintiff orally accepted the offer and he accepted the payment of R1,024-85. The defendant states that it did explain to the plaintiff the reasons for the dismissal of the plaintiff, and the plaintiff admitted to Mr. Hart and Mr. Setlaba (on defendant's behalf) that he had misused company property. The issues before this Court which have to be resolved are the following: (a) Was the dismissal of the plaintiff wrongful and unlawful? (b) Had the plaintiff misused or stolen the defendant's property? (c) Did the defendant lay a false charge against the plaintiff; and (d) Did the defendant impair the plaintiff's personality by writing a certificate of service which disclosed that -4- the defendant had misused company property. The plaintiff testified that about two weeks before his dismissal the branch manager of the defendant one Mr. Setlaba, came to his (plaintiff's) department during tea-break. The manager snatched the bread he was eating, looked at it and then gave it back to him. After that the manager took a damaged box of peanut-butter from where damaged articles are kept and carried it to his office. The manager never uttered a single word when he did all these things. On the 10th May, 1985 he was called to the office of the branch manager and found Mr. Setlaba and Mr. Hart who is the regional manager of the defendant. Mr. Hart told him that the box before him had been found hidden in his (plaintiff's) office and that he was being dismissed summarily. He was ordered to leave the premises of the defendant immediately. He was asked to sign a certain document purporting to show that his services were being terminated; ho refused to sign that document (A1) because it did not state the reason why he was being dismissed. Mr. Hart refused to give the reason why he was dismissing him except to say that the evidence he received from the branch manager was sufficient. He was forced to leave the premises of the defendant immediately. Before he left he was asked to come on the following Monday to collect his wages. It is common cause that on Monday he came back and received a cheque to the value of R1,024-85. The amount was made up as follows: - Wages for 9 days Leave pay for 57 days - Notice pay for 1 month - Overtime pay for 15 hours - Less P. A. Y. E. - R131-54 R833-08 R380-00 R 43-05 R362-67 -5- The plaintiff says that he did not accept the above amount as full and final payment from the defendant because it did not include severance pay and he was not happy about pay in lieu of notice. He expected to be paid a salary for three months in lien of notice. Regarding the document (A3) which purported to be a certificate of service made by the defendant's manager, he felt hurt when he received it because it was clear that the defendant and its management did not wish him any luck to get another job. He says that he never misused the defendant's property. The document stated in very clear terms that he was a thief and people would look upon him as a thief. The letter had not been published to any other people except his lawyer. After his dismissal the defendant set in motion the criminal prosecution against him without any justifiable cause. The police visited him and asked him question about the theft of defendant's property whether he had not stolen it. Under cross-examination the plaintiff denied that the meeting between him and Mr. Hart lasted about an hour and that he admitted that he had misused the defendant's property and offered to pay for it. Mr. Hart deposed that on the 10th May, 1985 when he arrived at the Butha-Buthe branch of the defendant Mr. Setlaba showed him the box of peanut butter which was damaged. He called the plaintiff to the manager's office and interviewed him for about an hour about the box. The plaintiff admitted that he had misused the defendant's property and offered to pay for it. He said he was very sorry for the wrong he had done but argued about the pettiness of the case. The notice of termination of . service had been prepared and the plaintiff was given the chance to read it and then asked to sign it. He refused to sign it. / -6- Mr. Setlaba deposed that one day in May, 1985 he went to the plaintiff's department during tea-break. As he approached the door leading into that section he saw plaintiff make a sudden movement as if he was hiding something. He went to him and found that he was eating bread smeared with peanut butter. He asked him where he got the peanut butter from, the plaintiff said he got it from one person at the end control. When he was asked to give the name of that person the plaintiff admitted that he had been caught red-handed and asked for a pardon. Mr. Setlaba says that he looked for what the plaintiff was hiding and found a carton of peanut butter with two broken bottles, there was one empty bottle and one bottle half full of peanut butter. He asked the plaintiff about the carton and it was then that he asked to be pardoned. He took the carton to his office and made a report to Mr. Hare The latter came to Butha-Buthe about a week later and the interview with plaintiff was made. At the interview the plaintiff admitted that he had misused defendant's goods and offered to pay. Some of the claims made by the plaintiff may be easily disposed of because they are clearly governed by the provisions of the Employment Act No., 22 of 1967. Claim (c) payment of R629-00 in lieu of notice is wrong in law. Section 13 (1) (a) of the Act reads as follows: "13 (1) Every contract, not being a contract for one period of fixed duration nor a contract to perform some specific work or undertake a journey, without reference to time shall be deemed in a case where:- (a) the contract is to pay wages at a monthly rate or by reference to any other fixed period not expressly covered by a provision of this subsection to be a contract from month to month, determinable by either party at any time- on not less than one month's notice." -7- It is clear from the above section that any party to an employment contract may terminate the contract by giving one month's notice. This is also confirmed by section 14 (a) of the Employment Act 1967. Either party to an employment contract may accept payment in lieu of notice in terms of section 13 (4) (b) of the Employment Act. The correct position is that on the 10th May 1985 when the defendant dismissed the plaintiff, the latter was entitled to one month's notice. Because the defendant wanted the (plaintiff to leave its premises immediately, an offer of payment in lieu of notice was made. The plaintiff accepted the offer and received R330-00 which was equal to his salary for one month. That is all that the plaintiff was entitled to. If the defendant dismissed the plaintiff summarily - he was not entitled to any payment in lieu of notice because he was not entitled to any notice. The defendant purported to dismiss the plaintiff summarily but decided that it will pay him all his terminal benefits including wagas, payment in lieu of notice, leave pay and overtime pay. The severance pay was not paid on that day; it has now been paid in full and I need not say anything more about it. The defendant says that it paid all the terminal benefits of the plaintiff to avoid any future litigation, I turn now to claims (a), (b) and (e). The plaintiff's story is that he was unlawfully dismissed because he never stole or missused defendant's property. He was not given the reason why he was dismissed. He admits that the branch manager came to his office and snatched the bread he was eating and examined it. After that he took away a damaged carton of peanut butter. He alleges that the manager did not say anything when he did all these things. I find it most improbable that the branch manager could not tell the plaintiff what he was doing and why he examined his bread and then took away a carton of peanut butter which was apparently -8- found at the wrong place where it was not supposed to be. The plaintiff struck me as being a very poor and evasive witness. Whenever he found that a certain question was difficult or would destroy his case, he elected to say it was irrelevant. His story was not only full of improbabilities but he was so evasive that it became clear that he was telling lies. The evidence of the defendant is that on the 10th May, 1985 the plaintiff was called to the office of the branch manager and interviewed about his misuse of defendant's property. He admitted that he had misused the property and apologised. He offered to pay for what he had stolen. Even on the day he was caught red-handed by the branch manager he is alleged to have asked for a pardon. The version of the plaintiff that he was given no chance to defend himself at the interview and that it hardly lasted five minutes is totally Improbable. The plaintiff was a senior officer within the defendant's company and as such could not be dismissed like an ordinary daily paid labourer. Mr. Hart and Mr. Setlaba gave me the impression that they were truthful witnesses who had worked with the plaintiff peacefully for a fairly long time and never had any complaint against him that he was incompetent. The first written warning was on the 7th February, 1985 that the plaintiff deliberately failed to complete "to follow orders". After that first written warning the plaintiff continued to work for the defendant and no further warnings were given probably because there was improvement. I am convinced that the plaintiff was caught red-handed stealing the property of the defendant. Claim (a) for an amount of M1.140-00 being damages for wrongful dismissal must be dismissed on the ground that the - 9- dismissal was lawful in terms of section 15 of the Employment Act 1967. The plaintiff knew very well that according to defendant's policy the employees could under no circumstances use for their own benefit any damaged goods because this would encourage employees to damage or break the goods deliberately knowing that such goods would be given to them. The claim for M15,000-00 damages for malicious procedure is based on the ground that after his dismissal from the defendant's employment the plaintiff was interviewed by the police on a few occasions. He says that they wanted to know how he had left the employment of the defendant. He explained that he had been dismissed. They continued to harass him till he consulted his lawyer. Some correspondence between the officer commanding, Lesotho Mounted Police at Butha-Buthe and Mr. Tsotsi, plaintiff's attorney followed. In one letter 1"Ex B1" the officer commanding said: "I am also of the idea that your client is Senior in the department in which he works and property is misappropriated in his department and his explanation would put us in light as to how the alleged misuse came about otherwise silence in this case would lead investigation to make him carry the burden. However if you intend to make him keep quite and not explain anything in regard to property under his charge this would not only be a bar to finalise the investigations but it would also be a bar for Metro to reverse its decision since the finality of Metro's decision will depend on the results of the Police investigations. I am sorry to say that here the police have to. question Mr Sepetla before they can decide finally whether to go to Court or not." I must point out that the remark of the officer commanding that the finality of Metro's decision will depend on the results of the police investigations was wrong. On the 22nd May, 1985 when he wrote that letter / -10- the plaintiff had long been dismissed. It is also clear from the letter that the police did not say that the plaintiff was alloyed to have stolen the defendant's property, but that as a person in charge of that department where misappropriation of defendant's property was reported, the police had to interview him. It is an actionable wrong to institute, or cause to be instituted criminal proceedings against any person maliciously and without reasonable or probable cause. (Law and others v. Kin and another, 1966 (3) S. A. 480 (W. L. D.). In the instant case the plaintiff has failed to prove on a balance of probabilities that the report made by the defendant's management to the police was made maliciously and without reasonable and probable cause. The evidence before me is that the plaintiff was found eating defendant's peanut butter and admitted guilt. The defendant was justified and had a reasonable cause to put the criminal law in motion. The fact that the police declined to prosecute is not a proof that the defendant was malicious. It may well be that the police were under the wrong impression that because the peanut butter was not removed from the premises of the defendant no crime had been committed. As I said earlier in this judgment the evidence, which I believe, is that the plaintiff was caught red-handed unlawfully eating the peanut butter of the defendant. The plaintiff tarnished his reputation by misusing his employer's property and cannot be heard to say that he suffered any damages when he has to blame for what happened. In the result this claim for M15,000 must also be dismissed. It is true that the first certificate of service issued by the defendant's branch manager was not in accordance with the provisions of - 1 1- section 17 (1) of the Employment Act 1967. The certificate must state the identities of the parties, the period of service and the nature of the employment. In that first certificate of service the defendant's manager gave the reason why the plaintiff was dismissed. Although this was true as far as the manager was concerned the law did not allow such a disclosure. A certificate of service is something that one produces to a prospective employer and it is clear that no employer would employ a person described as a thief by his former employer. There are two essentials of liability in actio injuriarum: the first one is an act constituting an impairment of the plaintiff's personality; and, secondly, dolus or animus injuriandi. In Whittaker v. Roos and Bateman 1912 A. D. 92 at p. 131 Solomon, J, stated the law in the following words: "It is not necessary in order to find that there was an animus injuriandi to prove any ill-will or spite on the part of the defendants towards the plaintiffs and it is quite immaterial what the motive was or that the object which the defendants had in view was a laudable one. It is sufficient that the injuries suffered by the plaintiffs were inflicted by the defendants, not accidentally or negligently, but with deliberate intention." The defendant has explained that its branch manager did not understand what the plaintiff wanted. In his evidence the manager says that he was under the impression that the plaintiff wanted a testimonial. In actio injuriarum ignorance of the wrongful character of the act complained of excludes dolus (Mckerron: The Law of Delict, 7th edition page 56). It seems to me that the defendant's branch manager was negligent in not ascertaining precisely the nature of a document to be given to a dismissed employee. Such negligence does not amount to animus injuriandi. It is significant that as sonn as the plaintiff's attorney drew the attention of the defendant to the fact that the document / - 1 2- which purported to be a certificate of service, the regional manager of the defendant admitted that it was wrong and apologised for any inconvenience caused by it. This clearly shows that the defendant never intended to injure the plaintiff. It was submitted on behalf of the defendant that there was no publication of that document. In my view publication was not necessary for this kind of injuria; it is only in defamation where publication is necessary. I come to the conclusion that the defendant has successfully rebutted the presumption that it had the necessary dolus when it issued the document complained of. Finally, I come to the conclusion that although the defendant had a very sound reason to dismiss the plaintiff summarily, it did not do so but gave him one month's salary in lieu of notice and other terminal benefits. The plaintiff has absolutely no cause for complaint because he was actually overpaid by M380 for notice pay. In the result the entire plaintiff's action is dismissed with costs. J. L KHEOLA ACTING CHIEF JUSTICE 22nd December, 1986. For Plaintiff For Defendant - - Dr. Tsotsi Mr. Koornhof