By Caswell Tlali
MASERU — An ex-soldier who was discharged from the army after he fell blind due to an HIV-related illness is suing the Lesotho Defence Force (LDF) commander Lieutenant General Tlali Kamoli for unfair dismissal.
The former soldier, whose name we have withheld, is demanding M500 000 in compensation.
He says in his court papers that the decision by the army to discharge him on medical grounds is inconsistent with Section 18 and 19 of the Constitution of Lesotho.
He also wants the Constitutional Court to reinstate him to his position within the LDF and with appropriate salary adjustments.
He told the Constitutional Court yesterday that he wants to be paid his salary that he ought to have earned from the date of discharge to the date of reinstatement.
He was discharged from the Lesotho Defence Force in February 2008, having served the army since November 1996.
He says he tested HIV positive in 2006 and during that time his vision began to deteriorate rapidly.
“In 2007 I could hardly see and was eventually examined by an ophthalmic surgeon, a certain Dr T B Muller, who then concluded that I was legally blind,” he told the court in his affidavit.
The medical board, which was appointed by the Health Minister, concluded that “I was now blind due to HIV sequelae with cytomegalic virus invasion of the retina and complicated cataracts”.
The board recommended that he retire because of being permanently unfit to continue with his employment.
The then Prime Minister, Pakalitha Mosisili, signed a document approving his retirement from the LDF.
The then commander, Lieutenant General Thuso Motanyane, discharged him from the army “with immediate effect due to my medical condition”.
“I was further advised that I should immediately vacate the official residence that was allocated to me and return the uniform,” he said.
“I requested a meeting with the then commander, LDF, but that was declined.
“At the time I was very disappointed, betrayed, unfairly treated and very angry towards the LDF as I believed that I could be given alternative duties instead of being discharged from the army,” he said.
“I then refused to vacate the army premises but after being threatened that I would be arrested, I eventually vacated in June 2008.”
The ex-soldier was paid his gratuities and is receiving a pension every month.
He says he attended a rehabilitation programme to appreciate his blindness and come to terms with his medical condition at his cost. “I have remained very healthy and I am able to do anything that a visually impaired person can reasonably be expected to do,” he said.
He said what made him decide to sue the army is that his “discharge was discriminatory and that I was not treated equally to other members of LDF in a more or less similar position”.
He says in 2008 the now deceased Lance Corporal Mathealira Ntjana of Ha-Seoli became permanently blind but “he was not discharged from the LDF but instead was transferred to the Stores Department” where he was trained to sew.
“He remained a member of LDF up until his death sometime in September 2011,” he said.
“I am in a position to know better about the said Ntjana as we attended rehabilitation programme together.”
He says there is also Brigadier Thoriso Mareka “whom I understand that he has been blind since or before 2010. To date he is still a member of LDF”.
Another one is Private Jane of Quthing who had his left limb amputated up to his hip but had remained in the army until his death in 2006.
He argues that soldiers’ duties are not all about physique but rather where one suffers from some form of physical disability, the LDF tries all to accommodate him.
He says the army commander and the Prime Minister failed or neglected to consider alternatives before they decided to discharge him of his duties.
“For instance, with little but proper training, I could have been given an opportunity to be a switchboard operator, messenger or to do any of the many vocational duties within the army,” he said.
He says since there is no recorded case of anyone who was retired from the army on account of blindness or any other form of disability, “this leaves me with a reasonable suspicion that I was accorded different and discriminatory treatment due to my HIV status”.
“It was emotionally stressful and painful to be diagnosed with HIV but it was a nail in the coffin to be informed that I will not be able to see again,” he said.
“Compounded to all this, the authorities decided to discharge me, with immediate effect for that matter,” he said.
He complained that nobody bothered to hear him out or “even sit me down to assist me to come to terms with the future”.
“At the time I concluded that it was a scourge to be HIV positive and visually impaired. At times I even felt suicidal but gained strength from my son and wife.”
The LDF lawyer, T Lebakeng, told the court that the army “has no mandate by the law to train its employees who are found unfit for employment due to disability, especially when there is no alternative duty that can be offered”.
Regarding other disabled employees who are still at work, “the circumstances surrounding their individual cases are different as such it cannot be discrimination,” Lebakeng said.
He said the soldier’s own private doctor “indicated that he would not do any work anymore”.
“The Commander had no option but to retire applicant,” he said.
