Tšoloane-Bolepo & Others v Attorney General & Others (CIV/APN/ 222 of 2001) [2002] LSCA 15 (20 March 2002)

CIV/APN/222/2001 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: ' M A N T S A NE T Š O L O A N E - B O L E PO N T H A B I S E NG M O L I SE ' M A S E C H A BA M O RU ' M A K H A B I SO R A M P H O MA L I N EO T S E K OA J O S E P H I NE L E T E KA K E A B E T S OE R A M A E MA T J O E T SO L E H A NA ' M A T H I BA T H A K H I SI T E B O HO LESEI N T S O A KI R A L E J O A NA S E M A K A L E NG P H A F O LI ' M A L I A H E LO Q H O B E LA M P HO T L A BA L Y D IA M. K E K E T SI B R O G I T TA C H A K E LA R E G I NA M P E MI M A R G A R ET M A I NE M O F U T S U OA S E L LO L U CY M. N C H A PI ' M A L E S E N Y E HO S E H L O HO E V E L YN M. M A I NE ' M A T H E BE M. M O L OI A M E L IA R A N O T ŠI S H A R ON K A T L E HO L E L O SA V I C T O R IA V U Y I S WA N T E SO A D E L I NE K E M A N E - C H A B E LA F A I TH TŠIRELETSO P U L U MO G L O R IA M. SEFUTHI E L I Z A B E TH M A T Š E L I SO Y A KO and 1st Applicant 2nd Applicant 3rd Applicant 4th Applicant 5th Applicant 6th Applicant 7th Applicant 8th Applicant 9th Applicant 10th Applicant 11th Applicant 12th Applicant 13th Applicant 14th Applicant 15th Applicant 16th Applicant 17th Applicant 18th Applicant 19th Applicant 20th Applicant 21st Applicant 22nd Applicant 23rd Applicant 24th Applicant 25th Applicant 26th Applicant 27th Applicant 28th Applicant 29th Applicant 30th Applicant T HE A T T O R N EY G E N E R AL 1st Respondent -2- T HE M I N I S T ER OF H E A L TH & S O C I AL W E L F A RE T HE G O V E R N M E NT S E C R E T A RY T HE PUBLIC SERVICE C O M M I S S I ON (PSC) PRINCIPAL S E C R E T A RY - PUBLIC SERVICE CHRISTIAN H E A L TH A S S O C I A T I ON OF L E S O T HO 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent For the Applicants : Mr. K. Mosito For the Respondents : Mr. M. Masoabi Ruling Delivered by the Honourable Mr. Justice T. Monapathi on the 20th day of March 2002 Counsel as before. Mr. Masoabi was questioned by Court as to why, in view of his concession that in law there was no distinction between nurses and nurse-tutors, he would still insist on applying for viva voce evidence. His contention had been that there was a material dispute of fact. Mr. Masoabi said the viva voce evidence in the aid of Respondents' case would be by Mr. Sekatle w ho would testify for Respondents. It would be to the effect that, even if it was not recorded originally, the nurse-tutors for their job specifications had already been higher due on the establishment list and their grading was also consequently higher. The Respondent's intention to upgrade on bedside nurses, which had even been prompted by nurses' strike which had occurred, was to have only bed-side nurses upgraded. Mr. Sekatle a Principal Secretary of Public Service would -3- elucidate that. That meant that there was a dispute of fact remaining namely that the intention was to upgrade bedside nurses only not nurse-tutors or other high grades. Dr. Mosotho would on the other hand as head of Ministry of Health depose that the intention was to upgrade all nurses along the general spectrum (across the board) although bedside nurse would benefit by the upgrading by raising them by two or more notches. It was certainly not intended to leave aside nurse-tutors. Following on an agreement already reached Mr. Sekatle had said with respect to nurse-tutors the agreement should be withdrawn because per establishment list the grading was already higher. They were eventually upgraded. But the question was that the commencement date had to be earlier since there was no good reason w hy it should have been later. That is w hy Mr. Masoabi moved that the order could read that the upgrading of nurse tutors should be with effect from the 1st February 2001 not 1st April 1998 as prayed in the notice of motion. That in addition the order should direct that each party should bear its o wn costs. I did not see h ow there was a real/material dispute of fact when it was established that the original agreement had been to upgrade all nurses with emphasis only that the bedside nurses by a fewer notches higher. This is even born out by the fact that this (inclusion of nurse-tutors) was later sought to be withdrawn hence the present dispute. I thought the concession that the agreement originally encompassed all nurses suggested that there was no dispute that would disable the Court to -4- reach a decision unaided by viva voce evidence. The reason that bed-nurses were worse off originally is in reality a motive for the decision that ended up to mean plainly that all nurses were in the result covered by that decision without making any distinction. In the circumstances I thought that the later decision to exclude nurse- tutor in the upgrading was discriminatory. Furthermore all things indicated that through the agreement to "upgrade all nurses" nurse-tutors legitimately expected that the decision would themselves benefit as well and that when withdrawal was later made they should have been first given a hearing. Once the matter appeared discriminatory it became unjust. In the main there had been no distinction between bedside nurses and nurse-tutors. The application ought to succeed with costs. My full reasons will follow. T. Monapathi Judge 20th March 2002