Maluti Community Development Forum & 7 Others V Lets'eng Diamond Mine (Pty) Ltd (CIV/T/576/2017) [2024] LSHC 50 (8 May 2024)

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU CIV/T/576/17 In the matter between:

MALUTI COMMUNITY DEVELOPMENT FORUM 1ST PLAINTIFF

LENTSOETE MOAHI ‘MAMOALOSI NTSIKI

SEPHAPO MOLETSANE ‘MAPONTS’O LEMATLA

NTAOLENG MPORO ‘MALULANG LEMATLA ‘MARETHABILE MOTOKOA And 2ND PLAINTIFF 3RD PLAINTIFF 4TH PLAINTIFF 5TH PLAINTIFF 6TH PLAINTIFF 7TH PLAINTIFF 8TH PLAINTIFF LETŠENG DIAMOND MINE (PTY) LTD

DEFENDANT Neutral Citation: Maluti Community Development Forum and Others v. Letšeng Diamond Mine (Pty) Ltd (No.1) [2024] LSHC 50 Civ (8 May 2024) CORAM: S. P. SAKOANE CJ

HEARD

DELIVERED : : 13TH and 14TH MARCH, 2024 08TH MAY, 2024 1 | P a g e Summary Contract of employment – applicants serving as emergency responders on behalf of their community – whether contract of employment exists and legally enforceable – no quantum of payment stated – counter proposal for payment of services from revenue raised from equipment supplied by defendant - application for absolution from instance – test for absolution. ANNOTATIONS: CASES CITED:

LESOTHO Carlyle Malebo v. Lesotho Plant Services 1991-1996 (1) LLR 562 (HC) Leteka v. National Motor Company LAC (1990-94) 543 Matsoakeletse v. Klaas LAC (2007-2008) 184 Nkhabu v. Sekoeleme And Others LAC (1985-89) 273

SOUTH AFRICA Collen v. Rietfontein Engineering Works 1948 (1) SA 413(A) 2 | P a g e

RULING SAKOANE CJ: [1] The plaintiffs claim the following from the defendant: (a) Compensation of M2,500.00 (Two Thousand Five Hundred Maloti) per month from 1st November 2012 to date. (b) Interest at the rate of 18.5% per annum, calculated from 14 days from date of judgment to date of payment. (c) Cost of suit at attorney and client scale. (d) Further and alternative relief. [2] The plaintiffs’ cause of action is enforcement of an oral agreement according to which they agreed to serve as emergency responders for their communities. The dispute is on whether payment of M2,500 per month was an agreed term of the agreement to so serve. The enquiry is confined to the narrow issue of whether an agreement with such a term was made by the parties. Put differently, the issue is whether the plaintiffs’ alleged request to be paid M2,500.00 was accepted or not by the defendant. [3] The 1st plaintiff withdrew from the proceedings before the hearing of evidence. The 3rd, 6th, 7th and 8th plaintiffs did not appear at the trial. This 3 | P a g e entitled the defendant to an order of absolution from the instance against them in accordance with Rule 41(3) of the High Court Rules, 1980. The defendant was accordingly absolved from the instance. [4] This left only three plaintiffs, namely the 2nd, 4th and 5th plaintiffs to prosecute their cases. They gave evidence and were cross-examined. After

closing their cases, defendant applied for absolution from the instance on the basis that their evidence does not ground the existence of a legally enforceable contract. Plaintiffs’ case [5] The plaintiffs’ evidence is the same. They testified that they agreed to serve as emergency responders at the behest of the defendant. In order to discharge their functions, the defendant gave them two-way radios and installed sirens on some of the houses with the purpose of enabling them to alert their communities in the event of the bursting of the slime-dam built by the defendant. [6] A proposal of monthly payment was made in meetings between them and the defendant’s community liaison officers in October 2012. The defendant’s officers’ reaction to the proposal was that they would table it for consideration by the defendant’s management. They did table the 4 | P a g e proposal and came back with a response that the management was not agreeable to the proposal. The defendant then made the counter-proposal that compensation should come from fees to be levied by the plaintiffs for charging the phones of members of the communities. [7] The plaintiffs were unhappy about the counter-proposal, but, nevertheless, continued to work without payment as emergency responders until May 2020 when the defendant took away the equipment from them per a court order. [8] Under cross-examination, the

plaintiffs conceded that after their proposal for monthly payment was rejected, they continued to offer their services and levied fees for charging phones of members of the community in accordance with the defendant’s counter-proposal. [9] The plaintiffs’ evidence boils to this: 9.1 They made a request for monthly payment as emergency responders. The defendant considered the request and indicated to them that it was not acceptable. 5 | P a g e 9.2 The defendant made a counter-offer that plaintiffs raise revenue by levying fees for charging of phones of members of the communities. That is how they would get compensation. 9.3 The plaintiffs then continued to serve without demur for a period of eight (8) years six (6) months. [10] Although the plaintiffs say they believed or thought that monthly payment was an agreed term of the agreement to serve, the above precis of facts shows that their belief or thought has no basis in fact. On being told about the defendant’s non-acceptance of the request for compensation and the counter-offer to compensate themselves by raising revenue from the charging of phones, they continued to work for over eight years without monthly payment. Their behaviour points to one thing only, that there was no agreement on the proposal to be paid monthly. What was agreed was compensation by fees raised from the charging of phones. The law [11] The plaintiffs

should have been left in no doubt about the fate of their request for monthly payment1. In law, quantum of remuneration is an essential term of a contract of employment. It should be agreed to and 1 Collen v. Rietfontein Engineering Works 1948 (1) SA 413(A) at 420 6 | P a g e specified. If it is not specified or is not objectively determinable, the contract is legally unenforceable2. The amount of monthly payment was neither specified nor is it objectively determinable as it was not agreed to in the first place. It is common cause that the defendant did not from the beginning accept or made a promise in that regard to keep the plaintiffs hope alive. [12] In an application for absolution from the instance, the test is whether there is evidence upon which a court might, not ought to find for the plaintiff. The court is concerned with the probative value of the plaintiffs’ evidence3. The question is whether the plaintiffs’ evidence is such that the court could or might give judgment in their favour4. [13] On the facts established by the evidence, the question postulated in the test for absolution from the instance, namely, “Is there evidence upon which a court might reasonably find for the plaintiffs?” must be answered in the negative. The defendant’s rejection of their proposal to be paid monthly for serving as emergency responders coupled with their receipt of money from fees

for charging of phones by members of the community puts the matter to rest. 2 Leteka v. National Motor Company LAC (1990-94) 543 at 546 E-G 3 Carlyle Malebo v. Lesotho Plant Services 1991-1996 (1) LLR 562 (HC) 4 Nkhabu v. Sekoeleme And Others LAC (1985-89) 273; Matsoakeletse v. Klaas LAC (2007-2008) 184 7 | P a g e Order [14] In the result the following order is made: 1. The defendant is absolved from the instance with costs. ---------------- S. P. SAKOANE

CHIEF JUSTICE For Plaintiffs: Adv. M. V. Khesuoe For Defendant: Adv. M. E. Teele KC with Adv. S. K. Sello 8 | P a g e