Motlatsi Hlalele v The Commander of the Lesotho Defence Force and Others (C of A (CIV) 59 of 2013) [2014] LSCA 10 (17 April 2014)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between: C of A (CIV) NO.59/2013 CIV/T/276/2007 MOTLATSI HLALELE Appellant And THE COMMANDER OF THE First Respondent LESOTHO DEFENCE FORCE MINISTER OF DEFENCE Second Respondent AND SECURITY THE ATTORNEY GENERAL Third Respondent CORAM: HOWIE JA HLAJOANE JA CLEAVER AJA HEARD: DELIVERED: 31 MARCH 2014 17 APRIL 2014 SUMMARY Appeal from the High Court which upheld a plea of prescription raised by way of special plea – no evidence heard by trial court – not clear from papers on what basis prescription was raised and from when prescription might have run – special plea set aside. JUDGMENT CLEAVER AJA [1] In an action in the High Court, the appellant, allegedly a private in the Lesotho Defence Force, claimed (a) payment of the sum of M3,260 per month as salary for the years 1996 to 19 December 2008 (b) payment of pension with effect from 19 December 2008 (c) payment of all benefits that soldiers of the plaintiff’s rank are entitled to upon retirement from the force from the defendants. [2] It is not necessary to deal with the details of the pleadings at this stage for the appeal turned solely on the plea of prescription raised by way of a special plea by the defendants. This reads as follows: In terms of the Government Proceedings Act of 1965 no action or other proceedings shall be capable of being brought against the Crown after the expiration of two years from the time when the action first accrued. According to plaintiff the cause of action arose in 1996, eleven years ago. Plaintiff brought the action only in 2007. Plaintiff’s cause of action is therefore hopelessly prescribed in terms of the law. [3] It appears from the pleadings that the appellant, while a member of the Lesotho Defence Force, was suspended from duty on 22 March 1985 pending the finalization of a culpable homicide charge against him. He was found not guilty of the charge and discharged on 2 July 1986. When the Defence Force failed to reinstate him he turned to the High Court for assistance and on 16 June 1999 secured an order from that court (CIV/APN/217/98) declaring him to be entitled to be paid the emoluments due to him for the period from 22 March 1985 to 21 October 1996. The appellant avers that the order, which was not attached to the pleadings and was not put before the court a quo, provided that he was entitled to terminal benefits such as pension. [4] The appellant’s case is that his contract of employment provided for his retirement at the age of 55 years but that contrary thereto the Defence Force had placed him on pension from November 1996 when he was not yet 55 years old. He avers that he remained a member of the Defence Force after the award was made to him by the High Court and that he was entitled to be paid his salary up to the date when he would have had to retire at the age of 55 years on 19 December 2008, from which date he would have been entitled to pension. [5] The case pleaded for the defendants is that pursuant to the order of the High Court, the appellant accepted voluntary retirement in 1998/1999 when he received payments of gratuity, pension and other benefits, payable only on retirement and is currently receiving monthly pension payments. In his replication the appellant denies having retired voluntarily or at all. [6] The proceedings in the High Court were confined mainly to arguments advanced by counsel for the parties on the issue of prescription. No oral evidence was heard. It would seem that most of the submissions related to the attack on behalf of the appellant on the constitutionality of the prescription provisions in the Government Proceedings Act of 1965. This challenge was correctly rejected by the court and was not pursued before us. [7] The judge a quo found that the appellant’s claim had prescribed because his action was instituted 11 years after the cause of action arose in 1999. Regrettably he may have come to this conclusion on the strength of findings which were incorrectly made. Although he had not heard any evidence he found as a fact that the appellant had accepted voluntary retirement with effect from 1996. Although this had been pleaded by the defendants, it was denied by the appellant and consequently, in the absence of evidence, such a finding was not competent. [8] As I have indicated, the appellant’s case is that he was entitled to salary up to the date when he would have been obliged to retire, i.e. 19 December 2008, and in the absence of evidence the issue of prescription must be decided on this basis. There is no indication in the pleadings as to the nature of the appellant’s employment with the Defence Force. He pleaded that his employment was in terms of a contract with the defendants. The nature of that contract will be crucial to his claim for arrear salary. If it was for a fixed period, it may be argued that prescription in respect of arrear salary payments would have run only from the date of the termination of the contract. On the other hand, it might be found that each successive monthly payment of arrear salary would have had its own prescriptive period. In such event, should the appellant be able to establish that he did not take early retirement, even though the bulk of his claim would have prescribed, he would be entitled to arrear salary for the 2 years immediately preceeding the date of the service of the summons in 2007. The true position can only be established by the hearing of evidence. [9] The defendants bore the onus of establishing the special plea and it is clear that they failed to set out sufficient facts in the pleadings to substantiate the plea. The plea should therefore not have been upheld. [10] The following order is made: (1) The appeal succeeds with costs. (2) The order of the court a quo is set aside and the following substituted “The special plea is dismissed, with costs.” _______________ C. T. HOWIE JUSTICE OF APPEAL _______________ A. M. HLAJOANE I agree JUSTICE OF APPEAL I agree ________________ R. B. CLEAVER ACTING JUSTICE OF APPEAL Counsel for the appellant: K. K. Mohau KC Counsel for the respondent: R. Motsieloa