Mokaeane gets the last laugh

Mohloai Mpesi

The High Commissioner of Lesotho to England Rethabile ‘Mahlompho Mokaeane has won the appeal case against the Principal Secretary of the Ministry of Foreign Affairs and International Relations.

The judgment which was handed down by the President of Appeal Court, Justice Kananelo Mosito states that Mokaeane, inter alia must be paid her employment benefits and that her children’s school fees which sums to over M4million must be paid within five days of the judgment.    

The matter was heard by Mosito, Acting Justices of Appeal Petrus Damaseb and P. Musonda.

It was ordered and directed that the government, “pay the applicant’s employment benefits in terms of Regulation 110 (1) and (2) of the Public Service Regulations 2008, by making immediate payment of applicants’ children’s school fees within five days of this order in respect of school fees due and payable from 5th January 2021,” the judgment reads. 

“The appeal succeeds and the order of the High court is set aside and replaced by the following,” the verdict continues.    

It was further directed that in the event that the respondents fail to pay following the granting of the order, the applicant is granted leave to approach court on the same papers or supplemented wherever necessary to seek enforcement of the order on such terms as the court may deem fit. 

According the verdict, regulation 110 (1) and (2) of the Public Service Regulations 2008 (the school fees regulation) explains that the Government shall pay full education expenses for the children and residing with a member of staff of the mission, from when they are at the age of three and are at preschool up to high school.  Such expenses shall include school fees and tuition. 

Mokaeane last year under CIV/APN/381, took legal action against the GoL on account of its admitted failure to meet its obligations to the appellant arising from Reg 110 (1) and (2) where both parties concluded a deed of settlement which recorded that payment of the school fees for Mokaeane’s children shall always be effected only within the scope of the allocated and current quarterly budgetary ceiling and available funds as remitted under the school fees vote.

The judgement further stipulated that the Ministry of Foreign Affairs and International Relations, shall effect allocated funds evenly among all staff members whose children qualify to benefit from Government.  Where the total school fees exceed the amount allocated for the purpose they (Ministry of Foreign Affairs) shall distribute the allocated funds on a pro rata basis. 

An urgent application was filed by Mokaeane on December 31, 2020 under CIV/APN/462/2020 against the GoL, seeking that the government be ordered and directed to pay the applicant’s employment benefits in terms of regulation [110(1) and (20)] by making immediate payment of applicant’s children’s school fees within five days of the order herein in respect of school fees due and payable from January 5, 2021. 

Mokaeane alleged in her founding affidavit that her children’s schools in the U.K will resume on January 5, 2021; that the children’s school fees had not been paid from the first term of the academic year, and remain unpaid. 

The GoL in its response toward the school fees application indicated that Mokaeane’s children’s school fees is always beyond the Ministry’s budget as per the school fees regulation.

“The witness asserts that the fact that the school fees of the appellant’s children were not paid was because the appellant failed to implement the settlement agreement reached between the parties under CIV/APN/381/2020. Therefore, according to the first respondent, the appellant is the author of her own misfortune,” the judgment reads. 

The order continues that in reply, the applicant claims that the settlement agreement in CIV/APN/381/2020 is of no relevance to her present suit because the GoL failed to comply with its terms as she was only authorised to pay £10 556.01 (M221, 432.67) in respect of her children’s school fees when the actual indebtedness was £14 836.32 (M311, 220.42) resulting in the children being excluded from school and that she had previously paid the school fees herself and has not yet been refunded and has no money to pay the fees herself.

“To buttress the irrelevance of the settlement agreement previously reached, she states… “I am now a new case in respect of what is happening now in 2021 starting from January 5, 2021.  I am not bound by the settlement agreement in respect of my new case. The settlement agreement related to the case that is completed. I am claiming a benefit due to me in terms of the law. I am suing because my children are sitting at home. They are not attending school with effect from January 5, 2021,” she said. 

“The reason is because the benefit due to me by law has not been paid. I deny that the school fees have been paid. There has not been payment which covers the period from January 5, 2021…. the school fee is paid in advance. The reference to November 2020 is irrelevant…my children are out of school from January 2021, sitting at home. The last quarter my children went to school because I am the one who paid personally.” She said.

The Court of Appeal ruled that the, “Reliance on the settlement agreement by the court a quo and the government is untenable due to the fact that the appellant made it clear that it related to a completed case and in respect of which the GoL had not honoured its commitments.”  

The reasons in the judgment indicates that it remains uncontested that despite the settlement agreement, the applicants’ children remain out of school and she (Mokaeane) had in the past paid the school fees out of her own pocket to keep her children in school without being refunded by her employer.

“It is admitted that the GoL is unable to meet its obligations in respect of the school fees regulation in full due to financial constraints.  Thirdly, the applicant could not be held to have waived rights that are due to her in terms of the school fees regulation which is intended for all Foreign Service employees such as herself,” the judgment reads.  

“The effect of the settlement agreement, and the order made by the High court, is to reduce the appellant’s benefit under the school fees regulation from payment of all of the school fees to only that which the government is able to pay.  Besides, it raises the real prospect that since only she is privy to the settlement agreement, other employees in a similar position as her could be paid their benefits in full while she receives reduced benefits because of the settlement agreement she entered into in the course of litigation.  That would be against public policy.  It also has the real potential that government will use it as a precedent for not fully meeting its statutory obligations to employees.

“Considering that it is common cause that the GoL had failed to meet its obligations to the appellant in terms of the school fees regulation, it was misdirection for the High court not to grant the relief that was sought in the notice of motion. The GoL’s inability to pay is no valid defence to a claim by its employees to honour its statutory obligations to employees,” the ruling reads.