Matela v Principal Secretary - Ministry of Home Affairs (CIV/T 333 of 94) [1996] LSHC 113 (26 November 1996)

IN T HE H I GH C O U RT OF L E S O T HO CIV/T/333/94 In the matter of: Lebusetsa H. L Matela Plaintiff and The Principal Secretary - Ministry of H o me Affairs 1st Defendant The Attorney-General 2nd Defendant JUDGMENT Delivered by the Hon. Mr. Justice B. K. Molai on the 26th day of November. 1996. On 3rd August, 1984, the Plaintiff herein filed, with the Registrar of the High Court, a compound summons commencing an action in which he claimed, against the defendants: "(a) Payment of the sum of M33,761-00; (b) Interest at the rate of 6% per annum a (c) Costs of suit; (d) Further and/or alternative relief" The defendants intimated intention to defend the action and duly filed their plea. It is common cause from the pleadings that plaintiff was gazetted, per Government Notice number 106 of 1989, as the chief of 'Moteng ha Hlakacha, subordinate to the area chief of Ngoajane ha Chaba, with effect f r om 21st M a y, 1 9 8 7. As a gazetted chief, plaintiff w as entitled to a m o n t h ly a l l o w a n ce p a y a b le f r om the office of the First D e f e n d a nt in a c c o r d a n ce w i th the rates fixed by the G o v e r n m e n t, f r om t i me to t i m e. A l t h o u gh his status w as that of a gazette chief, plaintiff w a s, h o w e v e r, paid a m o n t h ly a l l o w a n ce c o m m e n s u r a te to that of a h e a d m a n. A c c o r d i ng to plaintiff the a l l o w a n ce paid to h im h ad a shortfall in the a m o u nt of M 3 3 , 7 6 1 - 00 w h i ch w as the difference b e t w e en his entitlement as a gazette chief a nd the actual p a y m e nt m a de to h im as if he w e re a h e a d m a n. N o t w i t h s t a n d i ng d e m a n d s, First D e f e n d a nt refused a n d / or n e g l e c t ed to p ay plaintiff the correct a m o u nt of his a l l o w a n ce as a gazetted chief f r om 21st M a y, 1 9 87 to date. In his capacity as the C h i ef A c c o u n t i ng Officer of his M i n i s t ry a nd acting within the s c o pe of his e m p l o y m e n t, First D e f e n d a nt w a s, therefore, i n d e b t ed to plaintiff in the s um of M 3 3 , 7 6 1 - 0 0. W h e r e f o r, plaintiff c l a i m ed for relief as p r a y ed in the s u m m o n s. In their plea, d e f e n d a n ts d e n i ed plaintiffs allegations that m o n t h ly a l l o w a n c es p a id to h im f r om 21st M a y, 1 9 87 to date h ad a shortfall in the a m o u nt of M 3 3 , 7 6 1 - 00 on the g r o u nd that d u r i ng the p e r i od in question he h ad r e c e i v ed incorrect a m o u n ts of his m o n t h ly a l l o w a n c e s. D e f e n d a n ts alleged that b e f o re the s y s t em of basic tax w as abolished, the a m o u nt of a l l o w a n ce p a y a b le to a c h i ef h ad d e p e n d ed on the n u m b er of basic tax p a y e rs in his a r ea of jurisdiction at the e nd of the year. W h en the s y s t em of basic tax w as a b o l i s h ed the a m o u nt of a l l o w a n ce p a y a b le d e p e n d ed on his status. D e f e n d a n ts d e n i ed plaintiffs allegation that despite d e m a n ds First D e f e n d a nt refused a n d / or n e g l e c t ed to p ay h im his correct a m o u nt of m o n t h ly a l l o w a n c e s. T h ey further d e n i ed that in his capacity as the C h i ef A c c o u n t i ng Officer a nd acting within the s c o pe of his e m p l o y m e n t, First D e f e n d a nt w a s, therefore, i n d e b t ed to plaintiff in the s um of M 3 3 , 7 6 1 - 00 b e i ng the difference b e t w e en his entitlement as a gazetted chief a nd the actual p a y m e nt m a de to h im as if he w e re a h e a d m a n. C o n s e q u e n t l y, d e f e n d a n ts p r a y ed that plaintiff's c l a im be d i s m i s s ed w i th costs. Plaintiff h i m s e lf g a ve e v i d e n ce on oath a nd called o ne witness to testify in support of his case. In their d e f e n c e, the d e f e n d a n ts called o n ly o ne witness to testify on their behalf. In as m u ch as it is relevant, it w as c o m m on c a u se f r om the e v i d e n ce a d d u c ed on b e h a lf of the parties that plaintiff w a s, p er G o v e r n m e nt N o t i ce n u m b er 1 06 of 1 9 8 9, gazetted as the chief of ' M o t e ng ha H l a k a c ha w i th effect f r om 21st M a y, 1 9 8 7. A c c o r d i ng to h i m, whilst a chief of his status w as paid a m o n t h ly a l l o w a n ce of M 3 6 0, plaintiff w as paid o n ly M 30 p er m o n th as a l l o w a n ce until 1 9 89 i.e. he w as u n d e r p a i d, for a period of a b o ut t wo y e a r s, in the a m o u nt of M 3 30 p er m o n t h, b e i ng the difference b e t w e en the m o n t h ly a l l o w a n ce actually paid to h im a nd the m o n t h ly a l l o w a n ce paid to a chief of his status. It is significance to o b s e r ve that, a s s u m i ng the correctness of his e v i d e n ce that he w as for t wo y e a r s, u n d e r p a id by M 3 30 p er m o n t h, the total a m o u nt of arrears o w ed to plaintiff during that p e r i od w as M 7 , 9 2 0 . 0 0. H o w e v e r, as plaintiff did not s ay until on w h i ch date in 1 9 89 he w as u n d e r p a id by the difference b e t w e en M 30 a nd M 3 6 0 . 0 0, the a m o u nt of M 7 , 9 20 arrears c o u ld o n ly be an estimate. Be that as it m a y, plaintiff w e nt on to testify that in 1 9 89 the a l l o w a n c es p a y a b le to chiefs w e re revised a nd his a l l o w a n ce increased to M 60 p er m o n th whilst that of a chief of his status w as increased to M 4 26 a m o n t h. Plaintiff w a s, therefore, u n d e r p a id by an a m o u nt of M 3 66 b e i ng the difference b e t w e en the a m o u nt of M 4 26 paid to a chief of his status p er m o n th a nd the a m o u nt of M 60 actually paid to h im as m o n t h ly a l l o w a n c e. A g a i n, plaintiff did n ot k n ow the exact period during w h i ch he received the u n d e r p a y m e nt of M 3 66 a m o n t h. He o n ly c o n t e n d ed h i m s e lf w i th an estimation that it c o u ld h a ve b e en until an unspecified date in 1 9 9 0. A c c o r d i ng to h i m, plaintiff w a s, f r om an unspecified date in 1 9 9 0, p a id a m o n t h ly a l l o w a n ce of M 84 whilst a chief of his status received M 5 11 a m o n t h. He w a s, therefore, u n d e r p a id In the a m o u nt of M 4 27 p er m o n t h. As usual, plaintiff no longer r e m e m b e r ed for h ow l o ng he w as u n d e r p a id in the a m o u nt of M 4 27 f r om 1 9 9 0. He o n ly estimated that it c o u ld h a ve b e en until an unspecified date in 1 9 9 2. Be that as it m a y, plaintiff w e nt on to testify that, in his estimation, in 1 9 92 his m o n t h ly a l l o w a n ce w as increased f r om M 84 to M 98 whilst that of a chief of his status w as increased f r om M 5 11 to M 6 0 0. Plaintiff w a s, therefore, u n d e r p a id in the a m o u nt of M 5 0 2, He did not, h o w e v e r, recall the e x a ct period d u r i ng w h i ch he w as u n d e r p a id in the a m o u nt of M 5 02 a m o n t h. In his testimony, plaintiff told the court that on a date he no longer r e m e m b e r e d, the chiefly a l l o w a n c es w e re s u b s e q u e n t ly revised a nd his a l l o w a n ce increased f r om M 98 to M l 07 a m o n t h. T he a l l o w a n ce p a id to a chief of his status w a s, h o w e v e r, increased to M 6 60 p er m o n t h. Plaintiff w a s, therefore, u n d e r p a id in the a m o u nt of M 5 53 a m o n t h. As he c o u ld not r e m e m b er w h en the latest increase in chiefly a l l o w a n c es w as m a d e, plaintiff o n ly c o n t e n d ed h i m s e lf w i th the estimation that it c o u ld h a ve b e en in 1 9 9 4. It is significant to o b s e r ve that it is a m a t t er of c o m m on k n o w l e d ge that plaintiffs a l l o w a n c e, like the a l l o w a n c es of all other chiefs w as paid by G o v e r n m e nt f r om the N a t i o n al T r e a s u ry D e p a r t m e nt w h i ch k e pt a r e c o rd of s u ch p a y m e n t s. T he court is, in my v i e w, entitled to take judicial notice that w h e n e v er his a l l o w a n ce w as paid f r om the treasury, plaintiff w as furnished w i th an a d v i ce slip of s u ch p a y m e n t. T he T r e a s u ry r e c o r ds a nd a d v i ce slips e v i d e n c i ng the e x a ct a m o u n ts a nd periods d u r i ng w h i ch he w as p a id the various increases in his m o n t h ly a l l o w a n c es w e r e, therefore, readily available to plaintiff. Instead of giving the court that e v i d e n ce plaintiff c o n t e n d ed h i m s e lf w i th estimation of h ow he h ad arrived at the specific a m o u nt of M 3 3 , 7 6 1 - 00 arrears. W h e re he c l a i ms specific a m o u nt of arrears, Plaintiff m u s t, in my v i e w, specifically p r o ve his claim. Plaintiff h as failed to do this. In his e v i d e n c e, plaintiff told the court that he c a me to k n ow that he w as p a id an a l l o w a n ce c o m m e n s u r a te to that of a h e a d m an a nd n ot a chief by c o m p a r i ng the a m o u nt of the m o n t h ly a l l o w a n ce paid to h im w i th the a m o u nt of the m o n t h ly a l l o w a n ce received by a certain chief H l a t s o a ne M a t e l a, w ho like h i m s e lf w as a gazetted chief responsible to the area chief of N g o a j a ne ha C h a b a. C h i ef H l a t s o a ne M a t e la w a s, h o w e v e r, not called as a witness to substantiate the e v i d e n ce of plaintiff in that regard. In his t e s t i m o n y, plaintiff t h en told the court that he h ad o b t a i n ed the information that chief H l a t s o a ne M a t e la w as p a id m o re a l l o w a n ce t h an h im f r om G o v e r n m e nt gazettes w h i ch w e re in the p o s s e s s i on of his (plaintiffs) attorneys of record. T he gazettes w e r e, h o w e v e r, not h a n d ed in as exhibits in this trial. The inference that such gazettes, if any at all, would not bear plaintiff out cannot be avoided. 58 years old Malebusetsa Matela testified as P. W.2 and told the court that she was the gazetted area chief of Ngoajane ha Chaba. She confirmed that Plaintiff was, since 1987, the gazetted chief of 'Moteng, subordinate to her. To her recollection, there were five(5) villages falling under Plaintiff's area of jurisdiction. The villages were each under a headman w ho was, however, not gazetted as such. In 1988, plaintiff addressed, per his letter of 6th December, 1988, a complaint to her, as his immediate superior chieftainess. The gist of his complaint was that the monthly allowance paid to him was less than the monthly allowance received by gazetted chiefs of his status. P. W.2 was not aware of the amount of monthly allowance received by plaintiff at the time. She, however, referred under cover of her letter of 9th December, 1988, plaintiff's letter dated 6th December, 1988 to her immediate superior chief viz. the Principal Chief of Makhoakhoa. Copies of the letters of 6th December, 1988 and 9th December, 1988 were handed in as exh. " A" and exh "B", respectively. There was no responce from the Principal Chief. On 19th January, 1989 and 7th August, 1992, P. W. 2 again wrote to the Principal Chief about plaintiff's complaint. Copies of her letters dated 19th January, 1989 and 7th August, 1992 addressed to the Principal Chief were handed in as exh " C" and "exh "D", respectively. Following exh " C" and " D" the Principal chief addressed to the District Secretary for the district of Butha-Buthe, the letter of 9th September, 1992 which was, on the face of it, copied to plaintiff and the Ministry of Interior (Home Affairs). In her testimony P. W.2 told the court that although, on the face of it the letter of 9th September, 1992 was not copied to her, the Principal Chief did give her a copy thereof. She handed in the copy as exh, " E" and part of her evidence in this trial. The gist of exh. " E" was a recommendation by the Principal Chief that certain villages be placed under the area of jurisdiction of the plaintiff so that the number of his subjects could be increased and his monthly allowance brought in line with the a l l o w a n c es p a id to gazetted chiefs instead of h e a d m e n. It c an r e a s o n a b ly be d e d u c ed f r om e xh " E ", therefore, that the g r o u nd on w h i ch plaintiff w as paid the a l l o w a n ce he w as receiving w as b e c a u se his subjects w e re not sufficient to w a r r a nt a h i g h er rate of a l l o w a n c e. T h e re is, h o w e v e r, no indication that the r e c o m m e n d a t i on m a de by the Principal chief h as as yet b e en a c c e d ed to by the relevant authority viz. the Ministry of Interior ( H o me Affairs) or the G o v e r n m e n t. I n d e e d, a c c o r d i ng to her, P . W. 2 w as not a w a re of a ny r e s p o n ce by the M i n i s t ry of Interior ( H o me Affairs) to E x h. " E ". Plaintiff's c o m p l a i nt a b o ut the i n a d e q u a cy of his a l l o w a n ce h ad to date not b e en resolved. H e n ce the institution of the present p r o c e e d i n gs for relief as p r a y ed in the s u m m o n s. D . W. 1, M o l ai M o e k e t si L e p o t a, testified that he h ad b e en the E x e c u t i ve Officer in the Ministry of Interior ( H o me Affairs) since 1 9 8 0. H is duties i n c l u d ed attending to c o m p l a i n ts l o d g ed by the chiefs a nd m e m b e rs of the public. He r e m e m b e r ed that in 1 9 94 t he plaintiff c a me to his office w i th a c o m p l a i nt that the a m o u nt of chiefly a l l o w a n ce paid to h im w as n ot correct i n a s m u ch as he w as paid as if he w e re a h e a d m an w h e r e as he w as in fact a gazette c h i ef Plaintiffs request w a s, therefore, that the a n o m a ly be rectified by p a y i ng h im the a l l o w a n ce p a y a b le to a chief instead of a h e a d m a n. H is request w a s, h o w e v e r, not a c c e d ed to for the following r e a s o n s: S i n ce 1 9 46 chiefly a l l o w a n c es p a id to Principal C h i e fs w e re not b a s ed on the n u m b er of basic tax p a y e rs in their area of jurisdiction. All other gazetted chiefs a n d / or h e a d m en b e l ow the r a nk of Principal chief w e r e, h o w e v e r, paid a l l o w a n c es on the basis of the n u m b er of basic tax p a y e rs in their area of jurisdiction. T he modus o p e r a n di for p a y m e nt of a l l o w a n c es to chiefs a n d / or h e a d m en w as that a chief a n d / or h e a d m an k e pt a register in w h i ch the n u m b er of his basic tax p a y e rs w as r e c o r d e d. At the e nd of e v e ry year, the register w as sent to the office of the Principal chief w ho w o u ld verify the n u m b er of basic tax p a y e rs the chief or h e a d m an h ad in his a r ea of jurisdiction. T he office of the Principal chief w o u ld then m a ke a c o v e r i ng letter by w h i ch it referred the register to the office of the District Secretary. A f t er c h e c k i ng the n u m b er of basic tax p a y e rs in the register, the District Secretary w o u ld s e nd the register to the office of the s u b - a c c o u n t a n cy w h e re the c h i ef or h e a d m an w o u ld be paid 5% of the total a m o u nt of the basic tax collected. T he chief or h e a d m an w ho w as f o u nd to h a ve 2 50 basic tax p a y e rs was, however, not paid 5% of the basic tax collected. He indeed was paid a monthly allowance of Ml00.00. According to D. W. 1, at the end of 1984, the system of paying the chiefs or headmen allowances on the basis of the annual basic tax they had collected in their areas of jurisdiction was abolished and replaced by a new system whereby a chief or headman who, at the end of 1984 had a number of basic tax payers below 250 was paid a monthly allowance of M 3 0, whilst the chief or headman who at the end of 1984, had 250 or more basic tax payers in his area of jurisdiction was paid an allowance of Ml00. The new system operated with effect from 1st January, 1985 and that was the position obtaining at the time plaintiff took over the administration of 'Moteng from his predecessor in 1987. The position had not been altered to dated. Defendants denied, therefore, plaintiffs suggestion that chiefly allowances were paid on the basis of whether a person was gazetted as a chief or headman. In the contention of D. W. I, the allowances of chiefs or headmen below the rank of Principal Chiefs were paid on the basis of whether or not, as of the end of 1984, the chief or headman had 250 basic tax payers in his area of jurisdiction. As of 1984, the number of basic tax payers in the area of jurisdiction of plaintiff w ho is quite a junior chief was below 250, The rate of his allowance was, therefore, the same as that of a headman viz. M30 a month. In the circumstances D. W. I denied that there was anything wrong in the rate of monthly allowance paid to plaintiff. It is worth noting that although he claims that the old system of paying chiefly allowance was, in 1984 abolished and replaced by a new one which came into operation in 1985, D. W. I could not hand in any documentary evidence to substantiate his claim. The onus was on D. W. 1 to proof that in 1984 the old system was abolished and a new put in place in January, 1985. I am not convinced that he has satisfactorily discharged that onus. Considering the evidence as a whole, I am not persuaded that, by and large, sufficient evidence has been placed before this court to decide the case either way. Justice of the case will, in the circumstances, be met by granting absolution from the instance. It is accordingly ordered. B. K. MOLAI JUDGE 26th November, 1997. For Plaintiff: Mr. Ntlhoki For Defendants: Mr. Mapetla.