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LESOTHO

LABOUR
COURT
JUDGMENTS
A compilation

Vo lum e 3 (201 4 Judge m e nt s)

LESOTHO LABOUR
COURT JUDGMENTS
A COMPILATION
2014 JUDGMENTS
Volume 3
Before
His Worship, Advocate Thato Charles Ramoseme
Lecturer
Book author
Judge of the Labour Court of Lesotho

ii

ABOUT THE AUTHOR


Biography
Advocate T. C. Ramoseme is a holder of a
Bachelor of Arts degree in Public
Administration and Political Science. He
also holds a Bachelor of Laws Degree and
two masters of laws, one in Labour Law and
Social Security Law, and the other in the
Law of Business Entities.
He has over10 years of experience in the
practice of law. He is a Lecturer in Business
and Management studies, a book and
article Author and a Judge of the Labour
Court of Lesotho. He has published two
monograph books, in the fields of Labour
Law and Company Law, and a chapter on Arbitration Law in Lesotho in a
book by Lise Bosman.

Works
Published Books
(2012) The Impact of Closed Shop Agreements: A Critical and Comparative
Analysis of South Africa and Germany Lambert Academic Publishing:
Germany.
(2012) The Rights of the Minority Against Majority Rule: A Critical Analysis of
South African Companies Act 71 of 2008 Lambert Academic Publishing:
Germany.
Arbitration Law in Lesotho in Bosman L (2013) Arbitration in Africa: A
Practitioners Guide Alphen aan den Rijn, The Netherlands: Kluwer Law
International.

Published Articles
Maternity Protection under the Labour Code Wages Order: A Source for
Discrimination (2011) Vol. 28, No. 1, Transformation Resource Centre Work
for Justice Journal.
The Effect of Dismissal for Misconduct on the Right to Severance Payment
(2012) Vol. 12, Issue 2, DDPR Information Bulletin.
The Right of the Employer to Dismiss an Employee for Contravention of
Unwritten Rules of Standards (2012) Vol. 12, Issue 3, DDPR Information
Bulletin.
The Exclusion of the Right to a Fair Hearing in Dismissal for Misconduct
(2012) Vol. 12, Issue 4, DDPR Information Bulletin.
The Right of the Employer to Refuse Reinstatement: The Need for a
Corresponding Right for the Employer. (2012) Vol. 12, Issue 5, DDPR
Information Bulletin.
The Protection of Probationary Employees Against Dismissal for Incapacity
(2012) Vol. 12, Issue 6, DDPR Information Bulletin.

iii

PREFACE
Labour Law is a specialised field within our jurisdiction, as is the case in
many other jurisdictions. There are specified forum and courts of law that
have been specifically established to interpret and apply labour laws. This
compilation is intended to guide labour law practitioners towards the correct
application of the labour laws of Lesotho.
This volume is a third sequence to the first and second volumes. The first
volume, on the one hand, contains judgments from early in the last quarter
of 2012 to December of that year. The second volume, on the other hand,
contains judgments issued in the year 2013. This volume contains
judgments issued in the year 2014, which are 52 in number.
This is just a compilation of the judgments in the form in which they were
issued. No modification has been made to suit this purpose both in terms of
content and styling. The only modification has been in so far as the font and
pagination are concerned. Even then the modification has been done for
purposes of standardising the document.
Emphasis is made that some of the recorded judgments herein, may have
been appealed against, some successfully and others otherwise. As a result,
it is the responsibility of the practitioner to make sure, before relying on any
of the judgments contained herein, to verify that they have not been
reversed.
T. C. Ramoseme
Maseru
September 2015

iv

TABLE OF CONTENTS
PARTICULARS
About the Author
Preface
Table of Contents
List of authorities
Cases
Legislation
Books and Journals

PAGE NUMBER
iii
iv
v - viii
ix - xii
xiii
xiii

Ntahli Matete v Maluti Mountain Brewery (Pty) Ltd.


Unpaid monies claim; court acting on own motion;
Jurisdiction of the court
Tepong (Pty) Ltd v Lesotho Workers Association.
Declaratory order; strike; non-compliance with the
law; non-compliance with award
Mabakuena Monaheng and others v Menkhoane
Holdings (Pty) Ltd.
Breach of contract; unpaid wages; court acting on own
motion; jurisdiction; dismissal for want of jurisdiction
Chabeli Letebele v Lesotho Electricity Company (Pty)
Ltd and another
Review; appeal disguised as review
Lesoma Noko v Mango Tree Construction Company
Ltd and another
Review; breach of rules; cause of action; jurisdiction to
review settlement
Bongani Jeyi v Monahali Construction (Pty) Ltd and
another.
Review; condonation
Factory Workers Union o.b.o Matepo Mohale and
others v TZICC Clothing Manufacturers (Pty) Ltd.
Discrimination; default; failure to establish claim
Itumeleng Moto-Moto and others v Eclat Evergood
Textiles (Pty) Ltd
Unfair dismissal; strike; insubordination; jurisdiction
of court
Makhobotlela Nkuebe v Nkau Matete and
another...
Contempt and committal; settlement agreement
Manketu Moeletsi and others v Director
Department of Rural Water Supply and others.
Interdict; declaratory order; coercion
Nthabeleng Ntekhe v LPKM Motors/Vision Motors
and another
Review
Zinyathi Trading (Pty) Ltd v DDPR and others..
Review

1-3
4 - 10

11 - 14

15 - 19
20 - 24

25 - 30
31 - 34
35 - 38
39 - 45

46 - 51
52 - 54
55 - 61

Liteboho Phaila and others v Stallion Security (Pty)


Ltd and another
Review
Teboho Thatho v Security North and another
Review; consequential relief
St. James ACL High School and another v Thato
Mokhobo Moeletsi and another...
Review; withdrawal of opposition; postponement
Phole Ntene v Highlands Natural Resources
And Rural Income Enhancement
Project and others
Unfair dismissal; underpayments; right party to sue;
employment relationship
Tiu Mosala and others v Director Department of
Rural Water Supply and others; and Shotopa Motloi
v Director Department of Rural Water Supply and
others...
Duress; misrepresentation; rescission of contract
Makhumalo Evelyn Hlekwayo v Mountain Star
Lodge (Pty) Ltd and another.
Review; condonation; default
Matokelo Setemere and others v Mediguard WIC
Cleaning and another.
Dismissal; strike; failure to attend; maxim nemo judex
in causa sua
Abiel Mashale v Lesotho Revenue Authority..
Urgency; anticipated breach; jurisdiction of the court
Masekhanto Sekhanto v Maluti Mountain Brewery
and another
Review; appeal disguised as review
Semakaleng Liphapang and others v Legal Voice (Pty)
Ltd.
Unfair dismissal; failure to attend; irregular procedure
Nkatana Phatela and others v Director Department
of Rural Water Supply and others..
Urgency; declaratory order
Mapesela Moejane v Ellerines Furnishers (Pty) Ltd..
Urgency; posting of deposit
Makamohelo Makafane v Zhongtian Investment (Pty)
Ltd and another
Unfair dismissal; withdrawal of representation;
default award
Shoprite Checkers (Pty) Ltd v Mapaseka Rantsane
and others..
Review
Lesotho Workers Association v Tepong (Pty) Ltd and
another.
Declaratory order; res judicata; lis pendens; improper
procedure

vi

62 - 65
66 - 70
71 - 74

75 - 82

83 - 90
91 - 93
94 - 97
98 - 103
104 - 109
110 - 112
113 - 117
118 - 123
124 - 127

128 - 132
133 - 137

Motebang Lelimo t/a Subway Fix it v Seisa


Shakhane and another..
Review; review unopposed
Nazareth Supermarket (Pty) Ltd v Mita Lesaoana
and another
Review
Ellerines Furnishers (Pty) Ltd v DDPR and
another.
Review; review out of time; appeal disguised as
appeal
Seville Foods (Pty) Ltd v Senate Makhaola and
another....
Review
Alec Ralph Thabiso Ramokoena v Nedbank Ltd and
another...
Pension; reimbursement of charges; jurisdiction of the
court
Action Statistical Investment (Pty) Ltd t/a Pick n Pay
v Lesia Monanabela and another
Review; appeal disguised as review
Napo Moeketsi v Edcon t/a Jet Stores and
another....
Review; condonation
Stem (Pty) Ltd v Ntiuoa Sefale and another..
Review
Washington Kopang Thabane t/a Paradise Lodge v
Mathabo Moroka and another
Review; claim out of time; absence of authority to
represent
Atlantic Enterprises (Pty) Ltd v Makatleho Letlalo
and another
Review; purpose of record of proceedings
Masechaba Mothibeli and 120 others v Lesotho
Precious Garments (Pty) Ltd and another
Review; additional ground from the bar
Teaching Service Commission and another v Samuel
Teboho Mokobocho and another.
Review
Jikelele Services v Putsoe Bosule and another..
Review
G4 Securicor Security Services (Pty) Ltd v Makhala
Mofube and another
Review; point of law from the bar
Thabiso Ralethoko v Lesotho Steel Products and
another.
Review; appeal disguised as review; jurisdiction of the
court

vii

138 140
141 - 145
146 - 150

151 - 154
155 - 160

161 - 166
167 - 172
173 - 177
178 - 183

184 - 187
188 - 192
193 - 200
201 - 206
207 211
212 - 217

Mamateliso Toana and 61 others v Nien Hsing


International (Pty) Ltd.
Unfair dismissal; strike
Molouoe Letsae and 42 others v J. W. International
(Pty) Ltd/Jonsson Manufacturing (Pty) Ltd.
Unfair dismissal; strike; joinder; non-compliance with
rules; cause of action
Teboho Mafereka v Ministry of Public Works and
Transport and others..
Appeal; failure to attend; default judgment
Thabiso Moletsane v Ministry of Public Works and
Transport and others..
Interdict; jurisdiction of the court
Moepi Kobo and another v G4S Cash Solutions (Pty)
Ltd and another
Interdict; joinder; right to appear; improper procedure
Sekonyela Mokhosi and 41 others v Lesotho Four
Mills (Pty) Ltd.
Unfair dismissal; operational reasons; improper
procedure
Goodwill Auto Clinic v Seng Masenkane and
another.
Rescission
Formosa Textile v Lebohang Heisi and another.
Review
Naledi Lesala v Lesotho Revenue Authority and
others
Review; appeal disguised as review
Matanki Toeunyane v Hong Da Lesotho (Pty) Ltd
and another
Review; compliance with the rules

viii

218 - 223
224 - 229

230 - 232
233 - 237
238 - 242
243 - 248

249 - 253
254 - 256
257 - 261
262 - 265

LIST OF AUTHORITIES
Cases
National
Morena Sello v Mametsing Sello & others C of A (CIV) 22 of 2011
TEBA
&
others
v
Lesotho
Highlands
Development
Authority
LAC/CIV/A/06/2009
JD Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004
Phakiso Ranooana v Lesotho Flour Mills (Pty) Ltd & another LC/REV/59/2011
Fahhida Supermarket (Pty) Ltd v Ikhetheleng Sibolla & another
LC/REV/107/2012
Global Garments v Mosemoli Morojele LC/REV/354/2006
Molapo v Mphuthing & others CIV/APN/188/1994
United Clothing v Phakiso Mokoatsi and another LAC/REV/436/06
Thabo Mohlobo & others v Lesotho Highlands Development Authority
LAC/CIV/A/02/2010
Motlalentoa & another v Tlokotsi C of A (CIV) 28 of 1991
Namane Khotle v Security Lesotho (Pty) Ltd LC/44/1998
Blandina License v Lerotholi Polytechnic LAC/CIV/05/2009
Ntoi v Ntoi CIV/T/29/2009
Lerotholi Polytechnic & another v Blandina License C of A (CIV) 25 of 2009
Law Society of Lesotho v Minister of Defence and Internal Security & another
CIV/APN/111/1986
Pitso Selogile v Total (Pty) Ltd C of A 27/2010
Zinyathi Trading (Pty) Ltd v DDPR & others LC/REV/11/2013)
Puleng Mathibeli v Sun International 1999-2000 LLR-LB 374 (CA)
Linkoe FC v LEFA & others CIV/APN/1/1994
Letuka v Motinyane and others CIV/APN/340/2001
Theko v Commissioner of Police and Another 1991-1992 LLR-LB 239
Kopano Textiles v DDPR and another LC/REV/101/2007
Matsemela v Nalidi Holdings (Pty) Ltd t/a Nalidi Service Station
LAC/CIV/A/02/2007
R. v Pitso Matobo CRI/T/18/1993
Leloko Selebalo v Stallion Security Lesotho (Pty) Ltd LC/15/2010
Makhobotlela Nkuebe v Metropolitan Lesotho Ltd LC/79/2006
Lesotho
Highlands
Development
Authority
v
Motumi
Ralejoe
LAC/CIV/A/03/2006
Teliso Moiloa v Total Print House (Pty) Ltd & others LC/REV/524/2006
Swiss borough Diamond Mines (Pty) Ltd & another v Lesotho Highlands
Development Authority LAC 1995 1999 87
Mokone v Attorney General & others CIV/APN/232/2008
Lesotho Evangelical Church v John Nyabela CIV/APN/150/1980
The President of the Court of Appeal v The Prime Minister (Dr. Motsoahae
Thomas Thabane & others CC/11/2013
Tumelo Monyane v National University of Lesotho LAC/CIV/A/23/2013
Makhoabe Mohaleroe v Lesotho Public Motor Transport Company (Pty) Ltd &
another C of A (CIV) 16/2010
Teba Ltd v DDPR & another LC/REV/38/201

ix

Mapaballo Mokuoane v Care Lesotho LC/25/2012


Best Boxers Club v Lesotho Amateur Boxing Association CIV/APN/97/2003
Seeiso Leche v Telecom Lesotho & others LAC/REV/26/2009
Standard Lesotho Bank Limited v T. J. Construction (Pty) Ltd & others
CIV/APN/592/2012
Mahlakeng and Others v Southern Sky (Pty) Ltd and others
CIV/APN/240/2003
Commander of LDF and Another v Matela LAC (1995-99) 799
Motemoka Mokabe v Security Lesotho (Pty) Ltd LC/98/1995
Tsotang Ntjebe & others v LHDA and Teleng Leemisa & others v Lesotho
Highlands Development Authority LAC/CIV/17/2009
Mathiba Malothoane v Commissioner of Police & another C of A CIV/18/2009
B. P. Lesotho (Pty) Ltd v S. M. Moloi LAC (2005-2006) 429
Abiel Mashale v Lesotho Revenue Authority LC/30/2014
T & T Security Services (Pty) Ltd v Samuel Peapea LAC/CIV/A/21/2013
Sechele v Sechele C of A (CIV) 06/1998
Mohai and another v Lesotho Electricity company and others
LAC/CIV/A/13/13
Khutlang Mokoaleli v Standard Lesotho Bank & DDPR LC/REV/21/07
Afro Asia Engineering (Pty) Ltd v Ntsoaki Matela and another
LC/REV/65/2006
Masechaba Mothibeli & others v Lesotho Precious Garments (Pty) Ltd &
another LC/REV/140/2013
Pascalis Molapi v Metcash Ltd Maseru LAC/CIV/REV/09/2003
Lephele Mpheu v Tseko Machaha and others CIV/APN/197/2007
Leteng Diamonds (Pty) Ltd v DDPR & others LC/REV/397/2006
Lesotho
Highlands
Development
Authority
v
Mantsane
Mohlolo
LAC/CIV/07/2009
Factory Workers Union o.b.o Labane & others v Tai Yuan Garments (Pty) Ltd
LC/52/2012
Thabo Makhalane v The Ministry of Law and Constitutional Affairs & others
LC/PS/A/02/2012
Thabo Moleko v Jikelele Services LC/40/2013
Sefatsa Mokone v G4S Cash Solution (Pty Ltd LC/31/2012
Lesotho Brewing Company t/a Maloti Mountain Brewery v Lesotho Labour
Court President & Another CIV/APN/435/95
Teliso Kabinye v The Clerk of Court Magistrate court & others C of A
CRI/06/2010
Ramoroke v Director of Public Prosecutions & another CRI/APN/795/2010
Molupi Piti & another v Rex CRI/A/36/91
Masefabatho Lebona v Director of Public Prosecutions C OF A/CIV/34/1995
Masekhanto Sekhanto v Maluti Mountain Brewery & Others
LC/REV/36/2012
Mathabelo Mbangamthi v Puleng Sesing Mbangamthi C. Of A (CIV) 06/2005
Teaching Service Commission and Others v St. Patricks High School &
another C of a (CIV) 26/2004
Margret Tuane & Others v National Executive committee & Others
CIV/APN/61/12
Thabo Phoso v Metropolitan Lesotho LAC/CIV/A/10/2008

Khajoe Makoala v Masechaba Makoala C of A (CIV) 04/2009


Matekane Mining and Investment company (Pty) Ltd v Retelisitsoe Ralikhomo
and others C of A (CIV) 52/2013
Lesao Lehohla v National Executive Committee of the Lesotho Congress for
Democracy and others CIV/APN/160/1998
Thabo Motseki v Lesotho Agricultural Development Bank CIV/T/54/1994
Tsotang Ntjebe & Others v LHDA and Telang Leemisa & Others v LHDA
LAC/CIV/A/12/2004
Lesotho National General Insurance Company v Alfa Plan Hire & another C of
A (CIV) 24/2005
Letsie Mamasupha v Nthabeleng Ntekhe C of A (CIV) 27/2009.
Lenka Mapiloko v President of the Labour Court & Others LAC/REV/05/2007
Queen Komane & Another v City Express LAC/CIV/A/5/2002
Thabelo Kebise v Lesotho Brewing Company (Pty) Ltd & another
LAC/CIV/A/04/2013
Lesotho Highlands Development Authority v Tsotang Ntjebe & Others C of A
(CIV) 7/2012
Lesotho Telecommunications Corporation and another v Makhobotlela Nkuebe
and others C of A (CIV) 5/1998
Lesotho Telecommunications Corporation and another v Makhobotlela Nkuebe
and others C of A (CIV) 12/1998
Moshoeshoe v Seisa & others CIV/T/596/2004
Jerome Ramoriting & Another vs Lesotho Bank-National Development Bank
(CIV/APN/136/87
Seisa Nqojane v National University of Lesotho LAC (1995-1999) 369
Teaching Service Commission & Others v Learned Judge of the Labour Appeal
Court and others C of A (CIV) 21/2007

Foreign
Pretoria Portland Cement Co. Ltd & another v Competition Commission &
others 2003 (3) SA 385 (A)
Johannesburg Consolidated Investment Co. v Johannesburg Town Council
1909 TS 111
Chief Constable of the North Wales Police v Evans [1982] 3 ALL ER 141
Coetzee v Lebea N.O & another (1999) 20 ILJ (LC)
Carephone (Pty) Ltd v Marcus N.O & others (1998) 19 ILJ 1425 (LAC)
County Fair Foods (Pty) Ltd v CCMA & others (1999) ILJ 1701
Evans v Bartlam 1937 2 All ER 646
Nkisimane & others v Santam Insurance Co. Ltd 1978 (2) SA 430 (A)
Sidumo v Rustenburg Platinum Mines Limited (2007) 28 ILJ
Pillay v Krishna 1946 AD 946
Intramed (Pty) Ltd v Standard Bank of South Africa Ltd 2004 (6) SA 252 (W)
Casa v Tao Ying Metal Industries & 3 others 2009 (2) SA (CC)
Fakie N.O v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)
Naidoo v Naidoo (1948 (3) SA 1178,
Retail Motor Industry Organisation v Minister of Water & Environment Affairs
ZASCA 70 (23 MAY 2013)
Chamber of Mines of South Africa v National Union of Mine Workers & another
1987 (1 ) SA 668 (A)

xi

Qhoboshiyane N.O v Acusa Publishing 2013 (3) SA 315 (SCA)


Setlogelo v Setlogelo 1914 AD 221
Knox v DArcy Ltd & others v Jamieson & others 1955 (2) SA 579 (WLD)
Sanachem (Pty) Ltd v Farmers Agri-care (Pty) Ltd & others 1995 (2) SA 781 (A)
Bull v Minister of State Security & others 1987 (1) SA 422 (ZH)
Gossschalk v Rossouw 1996 (2) SA 476 (C)
Motlhala v The Attorney General 2006 (1) BLLR 282 (CA)
Bulawayo Municipality v Bulawayo Indian Sports Ground Committee 1956 (1)
SA 34 (SR)
Ex parte Ginsberg 1936 TPD 155
Arend & another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C)
Burger v Central South African Railways 1903 T.S. 571
Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA
623
Johannesburg Stock Exchange & another v Witwatersrand Nigel Ltd & another
1988 (3) SA 132 (A)
Smith v Smith 1948 (4) SA 61 (N)
Broadry v Smuts NO 1942 TPD 47
Bundach v United Tobacco Co. Ltd (2000) 21 ILJ 2241
La Vita v Boymans Clothiers (Pty) Ltd (2001) 22 ILJ 454
Bayer South Africa (Pty) Ltd v Frost 1991 (4) SA 559 (A)
Absa Bank v Fouche 2003 (1) SA 178 (SCA)
Nel v Waterberg Landbouwers Co-operative Vereeniging 1946 AD 597
Gcwensha v CCMA & Others (2006) 3 BLLR 234 (LAC)
Aroma Inn v Hypermarkets & Another 1981 (4) SA 108
Makhuva v Lokoto Bus Service (Pty) Ltd 1987 (3) SA 376
Kaone Leoifo v Bokailwe Kgamena & another CA/048/2007
First National Bank of South Africa Ltd v Myburgh & another 2002 (4) SA 176
(C)
Hira & another v Booysen & another 1992(4) SA 69 (A
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau No & Another
(2009) 30 ILJ 279 LAC
Edcon Ltd v Pillermer NO and others (2009) 30 ILJ 2642 (SCA)
National Union of Public Service & Allied Workers Union & others v National
Lotteries Board [2014] ZACC 10
Kriegler v Minitzer & another 1949 (4) SA 821 (A)

xii

Legislation
National
Labour Code (Amendment) Act 3 of 2000
Labour Code (Amendment) Act 5 of 2006
Labour Code Order 24 of 1992
Labour Court Rules of 1994
Labour Appeal Court Rules of 2002
Labour Code (DDPR) Regulations of 2001
Constitution of Lesotho of 1993
Labour Code Wages Order of 1995
Labour code (Essential Services) Regulation of 1997
Labour Code (Conciliation and Arbitration Guidelines) Notice of 2004
Labour Code and Labour Code (Codes of Good Practice) of 2003
Education Act of 2010
Codes of Good Practice (Public Servants) of 2005
Labour Court (Amendment) Rules, 2006
High Court Rules of 1980
Privatisation Act 9 of 1995

Books and Journals


Daniel Malan Pretorius The Origins of the Functus Officio Doctrine (2005) 122
SALJ 832
Van der Merwe and S.E. Duppleis in the book entitled Introduction to the law
of South Africa, 2004 found in Law International
Schwikkard & van Der Merwe (2009), Principles of Evidence, Juta & Co.
R. H. Christie in The Law of Contract in South Africa (2nd Ed.)
A. J. Kerr in The Principles of the Law of Contract (4th Ed.)
C. G Van der Merwe & J. E. Du Plessis entitled Introduction to the Law of
South Africa, 2004
Du Plessis L.M. (2002) Interpretation of Statutes, Butterworths
Angus Stevenson, (2010) Oxford Dictionary of English, Oxford University Press
Hebsten entitled Civil Practice of Supreme Court, 3rd Edition
st
Schalk Van Merwe et al; Contract: General Principles 1 Ed. Juta & Co,
Phipson Evidence, 8th Ed.
Grogan J. 10th Ed., Workplace Law

xiii

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/55/2012

IN THE MATTER BETWEEN


NTAHLI MATETE

APPLICANT

AND
MALUTI MOUNTAIN
BREWERY (PTY) LTD

RESPONDENT

JUDGEMENT
Claim for unpaid monies. Court mero muto raising a point of law on its
jurisdiction to hear and determine claim. Both parties making addresses and
in their addresses conceding that this Court has no jurisdiction over the claim
referred. Court declining jurisdiction and directing that the matter be remitted
back to the DDPR for determination. Court declining to exempt parties from
going through the conciliation process. No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is a dispute that involves a claim for unpaid monies. The dispute
had initially been referred to the Directorate of Dispute Prevention and
Resolution (DDPR) under referral A0060/2012, together with a number of
other claims. By agreement of both parties, the unpaid monies claim was
withdrawn for the reason that it had not as yet accrued. As for the other
claims, they were referred to this Court for adjudication, purportedly in
terms of section 226(3) of the Labour Code (Amendment) Act 3 of 2000.
2. When the unpaid monies claim accrued, Applicant referred same with the
DDPR for resolution by both conciliation and arbitration, under referral
A0995/2012. During conciliation, the learned arbitrator declined to
proceed with the matter on the ground that this claim had already been
referred to this Court for adjudication, under referral A0060/2012. She
then directed that parties proceed to initiate the claim with this Court, as
directed in the certificate on non-resolution under referral A0060/2012.
Pursuant to the directive, Applicant initiated the current proceedings.
3. At the commencement of the proceedings, We meru muto raised a point of
law to the effect that this Court lacked jurisdiction to determine a claim
for unpaid monies. We specifically indicated that claims for unpaid
monies fall within the exclusive jurisdiction of the DDPR for resolution, by
arbitration in terms of section 226(2)(c) of the Labour Code Act (supra). We
added that the said provisions are mandatory and thus leave no room for
Page 1 of 265

this Court over the concerned claims. We directed parties to address Us


and having heard them, Our judgment is therefore in the following.
SUBMISSIONS
4. Applicant submitted he in fact agreed with the Court that this matter
would competently be heard and determined by the DDPR. He added that
they only lodged it with this Court because they had been directed to do
so by the learned Arbitrator. He prayed that this Court direct that it be
remitted back to the DDPR for resolution and that it be given priority in
the DDPR case roll. Respondent agreed with Applicant submissions and
in addition prayed that the remittal should go with the rider that the
matter proceed directly into arbitration, as there were no prospects of
settlement.
5. It is without doubt that parties agree with Us that this Court has no
jurisdiction over this matter. Our stance finds support under the
provisions of section 226(2)(c) of the Labour Code Act (supra), as amended
by section 4 of the Labour Code (Amendment) Act 5 of 2006. The said
provisions are as follows,
The following disputes of right shall be resolved by arbitration
(a) ..............
(b) ..............
(c) A dispute concerning the underpayment or non-payment of any monies
due under the provisions of the Act;
Consequently, We decline jurisdiction over the referred unpaid monies
claim.
6. In reaction to the additional prayer by Respondent, We wish to comment
that all claims referred to the DDPR must undergo two significant
processes, namely conciliation and arbitration.
Supportive of Our
attitude are the provisions of section 227(4) that,
(4) If the dispute is one that should be resolved by arbitration the Director
shall appoint an arbitrator to attempt to resolve the dispute by conciliation,
failing which the arbitrator shall resolve the dispute by arbitration.
7. The above provisions are clearly mandatory and any of the procedures
prescribed thereunder cannot be avoided. To do so would constitute a
grave procedural irregularity worthy of being reviewed and set aside.
Consequently, We cannot direct that the matter proceed directly into
arbitration and surpass the conciliation process.
8. We wish to comment that We have noted from the record, that the
learned arbitrator merely made a verbal declaration of lack of jurisdiction,
wherein S/He also referred the matter for adjudication before this Court.
In Our view, jurisdictional issues deserve a much more formal process
than the one adopted by the learned arbitrator in casu. As a result, once
the learned Arbitrator had heard the presentations of parties on the issue
of jurisdiction, S/He ought to have made a written finding in the form of

Page 2 of 265

an arbitration award. By this said, We direct that arbitrators avoid


adopting a similar approach in future, as that is an irregular conduct.
AWARD
In the light of the above said, We therefore make an award in the following
terms:
a) That this Court has no jurisdiction over the referred claim;
b) That the claim is remitted to the DDPR for determination;
c) That referral A0995/2012 must be given priority in the DDPR case roll;
and
d) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 2nd DAY OF JUNE 2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mr. R. MOTHEPU
Mr. S. KAO

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENTS:

ADV. MOHAU
ADV. LOUBSER

Page 3 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/57/2014

In the matter between:


TEPONG (PTY) LTD

APPLICANT

And
LESOTHO WORKERS ASSOCIATION

RESPONDENT

JUDGMENT
Application for a declaratory order that strike by Respondent is illegal.
Applicant basing argument on two grounds namely,
- non-compliance with section 225(6)(b)(ii) of the Labour Code (Amendment)
Act 3 of 2000
- Non-compliance with the arbitration award issued on 11th December 2013
Court finding merit in arguments and declaring the strike by Respondent and
its members illegal. No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for a declaratory order and it was made on urgent
basis. Applicant specifically sought an order in the following terms,
1. Dispensation with the ordinary rules pertaining to the modes of service.
2. A Rule Nisi be and is hereby issued returnable on the date and time to
be determined by this Honourable Court calling upon the Respondents to
show cause (if any) why an order in the following terms shall not be made
final:
(a) That the strike intended by respondent and its members cannot be
declared illegal;
(b) That the respondent and its members cannot be interdicted to embark
on the strike that is intended to start on or around 30th April 2014 pending
finalisation of this matter;
3. Costs of suit in the event of opposition;
4. Further and/or alternative relief.
5. That prayers 1, 2(b) and 3 hereof operate with immediate effect as
interim relief.
2. The brief background of the matter is that Respondent had referred a
despite of interest with the Directorate of Dispute Prevention and
Resolution (DDPR). It had claimed the following from Applicant,
(i) Access to the Public Private Partnership Agreement entered into between
the Government of Lesotho and Tepong.
(ii) Restructuring of salaries of the union members in the same scale as
government employees.
Page 4 of 265

3. The dispute was duly conciliated upon but could not be resolved. As a
result, the learned Conciliator issued a certificate of non-resolution
wherein She determined that Applicant (herein) was an essential services
and then referred the dispute for compulsory arbitration. At the
commencement of arbitration proceedings, Respondent (herein) raised a
preliminary point that the matter ought not to have been referred for
compulsory arbitration for the reason that not all its members offered
essential services within Applicant organisation. The learned Arbitrator
dismissed the argument and made an award as follows,
(a) The respondent herein is an essential service and therefore the matter
is to be set for compulsory arbitration.
.
4. The matter was eventually set down for arbitration on the 26th April 2014.
However, it could not proceed on that day and as a result it was
postponed to 29th April 2014. In the interim period between the issuance
of the arbitration award and the first notice of set down, Respondent
issued a notice of commencement of strike action. The notice was served
upon the Applicants on the 23rd April 2014, indicating that Respondent
would embark on a strike action on the 30th April 2014. It was in reaction
to this notice that the current application was made.
5. The application was initially intended to be moved and argued to finality
on the 28th April 2014. However, on this date the matter was postponed
to the 29th April 2014, at the request of both parties, to enable the
Respondent to answer to the Applicant claims. Still on the 29th April
2014, the matter could not proceed and was further postponed to the 5th
May 2014, to enable Applicant to reply to the Respondents answer. In
addition to granting the postponed on the 29th April 2014, We also
granted prayers 1 and 2(b) of the notice of motion, as interim Court Order
pending finalisation of the matter on the 5th May 2014.
6. On the 5th May 2014, parties presented an agreement which they had
made to the effect that they had agreed to narrow down the issues for
determination, by abandoning and no longer pursuing all the preliminary
issues that they had raised in favour of the merits of the matter. We
accepted their agreement and made it an Order of Court, and directed
that they proceed to address the merits of the matter. In the light of this
development, the issue that remained to be determined was the legality or
otherwise of the strike by the Respondent. Having heard the submissions
and arguments of parties, Our judgment is therefore in the following.
SUBMISSIONS
7. Applicant submitted that the strike action undertaken by Respondent is
illegal in that it is contrary to the arbitration award issued on the 11th
December 2013. It was argued that in terms of the arbitration award,
Applicant organisation was declared an essential services and that the
learned Arbitrator had also directed that the dispute which remained
unresolved at conciliation, be referred for resolution by compulsory
Page 5 of 265

arbitration. It was added that the said award has not been reviewed and
as such it remains binding on all parties concerned and that includes the
Respondent and its members.
8. It was further argued following the conclusion of the conciliation stage,
the learned Conciliator issued a certificate of non-resolution, wherein She
made a determination that parties are engaged in essential services and
accordingly directed that the dispute be referred for compulsory
arbitration. It was submitted that owing to both the determination of the
conciliator as well as the finding of the learned Arbitrator, arbitration
became a compulsory means by which the unresolved dispute could be
dealt with. The Court was referred to section 225(6)(b)(ii) of the Labour
Code (Amendment) Act 3 of 2000, in support.
9. The above said section provides as follows,
(6) if the dispute remains unresolved after the 30 day period

(b) the dispute shall be referred to arbitration if

(ii) the parties to the dispute are engaged in an essential services as


defined in section 232(1) as amended.
It was submitted in conclusion that under the above circumstances, there
is no doubt that the Respondents strike is illegal and stands to be
declared as such. It was prayed that the application be granted as prayed
and no prayer as to costs was made.
10. In answer, Respondent submitted that their strike is legal in that they
have duly complied with the law on strikes. Specific reference was made
to section 229 of the Labour Code Act (supra), which provides as follows,
229. When is a strike lawful
(1) A strike is lawful if
(a) it concerns a dispute of interest;
(b) that dispute of interest has been referred to the Directorate in terms
of section 225;
(c) that dispute remains unresolved;
(d) the time periods contemplated in section 225 have expired;
(e) a notice of intention to commence a strike has been served on the
other party to the dispute and on the Directorate; and
(f) at least 7 days from the date of that notice has expired.
(2) The notice referred to in subsection (1) may be served before the expiry
of the time periods contemplated in section 225.
(3) A strike is unlawful if
(a) It is not in accordance with the provisions of subsection (1);
(b) The parties to the dispute have consented to having the dispute
resolved by arbitration.
It was argued that Respondent has complied with the prescribed
procedures provided for by the Labour Code.
Page 6 of 265

11. In addressing the Applicants case, Respondent submitted that the


arbitration award issued on the 11th December 2013, does not in any way
prohibit the Respondent from engaging in strike action or to even render
it illegal. It was submitted in amplification that the award merely makes a
finding that The respondent herein is an essential service and therefore
the matter is to be set for compulsory arbitration.
.
12. Further on the issue, it was submitted that even if the matter had
gone for compulsory arbitrator, the award issued thereafter would not put
an end to the matter. It was submitted that the Minister would still have
to act in terms of section 232 of the Labour Code Order 24 of 1992,
applied together with Rule 36 of the Labour Court Rules of 1994, to have
the matter finalised. It was added that even still, this procedure is not
binding upon the Respondent as all they had to do was to comply with
section 229, which they did.
13. On the issue of non-compliance with section 225 of the Labour Code
Act (supra), it was argued that the same section makes the consent of
parties a pre-requisite for their unresolved dispute to go for compulsory
arbitration. It was submitted that there is no point during the conciliation
process where their consent was ever secured for the dispute to be
referred for compulsory arbitration, in as much as nothing has been
shown to prove same. It was submitted that on these basis, their strike
cannot be declared illegal by reliance on section 225. It was prayed that
this application be dismissed and no prayer for costs was made.
14. In reply, Applicant submitted that section 229, presents the general
rule in dealing with disputes of interest. Further that section 225 makes
provision for exceptional circumstances under which a deviation from the
procedure in section 229 may occur. It was argued that such exceptional
circumstances are where a dispute involves an essential services, as is in
casu.
15. The suggestion that the arbitration award does not prohibit a strike
action was rejected by Applicant as being inaccurate. It was submitted
that the learned Arbitrator addressed this issue under paragraph 11 of
His arbitration award wherein He is recorded as follows,
Having found that the respondent including its employees fall within the
definition of essential service it is my considered view that the dispute
herein will be dealt with in terms of section 225(6)(b)(ii) which provides
that, the dispute shall be referred to arbitration if the parties to the dispute
are engaged in an essential service.
16. Regarding section 232 and Rule 36, it was argued that the concerned
provisions are permissive and as such squarely depend upon the
discretion of the Minister to invoke or act on their basis. It was said that
this is contrary to the provisions of section 229 subject to section 225,
which are mandatory. Further, that it is inaccurate that section 232
Page 7 of 265

would still apply even if parties had gone for compulsory arbitration, as
the finding from the arbitration proceedings would put an end to the
dispute.
17. On the issue of non-compliance with section 225, Applicant replied
that the said section does not make it a requirement that the consent of
parties be obtained before a dispute of interest can be referred for
arbitration. It was further argued that the same section does not give an
option to issue a notice of commencement of strike if services involved are
essential in terms of section 232(1). It was argued that where such a
notice is issued, section 225 makes it null and void, along with any other
subsequent process that may be undertaken pursuant to it. It was thus
prayed that the application be granted as prayed.
ANALYSIS
18. We wish highlight two important points before We proceed to address
the arguments of parties. Firstly, that it is neither in doubt nor is it
denied that an arbitration award was issued, which declares the
Applicant organisation an essential services and directs that the dispute
be resolved through compulsory arbitration. Secondly, that it is neither in
dispute nor is denied that the learned Conciliator made a determination,
in the certificate of non- resolution, that Applicant organisation is an
essential service and referred the dispute for compulsory arbitration.
These determinations have neither been challenged nor are they subject
of challenge in these proceeding. Consequently, they remain effective and
therefore are both binding upon both parties.
19. In the light of this said above, We are in agreement with Applicant that
the Respondent strike action is in contravention of both the arbitration
award issued on the 11th December 2013, and the determination made in
the certificate of non-resolution. We have carefully considered the
arbitration award, in particular at paragraph 11 as well as under the final
ruling, and the undisputed content of the certificate of non-resolution.
They both make it clear that the Applicant is an essential services and
that the unresolved dispute is referred to arbitration for resolution. These
determinations clearly exclude any other means of resolution other than
the one that they prescribe. In clear and explicit terms, both the
arbitration award and the certificate prohibit a strike action. We therefore
dismiss the suggestion that both or any one of them is silent on the
prohibition of a strike action.
20. We also find no merit in the suggestion that compulsory arbitration
does and/or would not have put an end to the dispute in casu. The
correct position of the law is that is does, as arbitration awards are final
and binding on the parties concerned and are only subject to review.
Supportive of Our finding are the provisions of section 228E(5) read with
section 228F(1) of the Labour Code Act (supra), which provide as follows,
228E Arbitration awards

Page 8 of 265

(5) An arbitration award issued by the arbitrator shall be final and binding

228F Review of arbitration awards


(1) Any party to a dispute who seeks to review any arbitration award
issued under this Part shall apply to the Labour Court for an order
setting aside the award -
21. We also dismiss the suggestion that over and above compulsory
arbitration, the Minister would still have to act in terms of section 232 of
the Labour Code Order (supra) read with Rule 36 of the Labour Court
Rules (supra). We say this because once arbitrated upon, the outcome of
the arbitration proceedings would finalise the matter and leave no room
for other processes safe for review, as We have already stated. As a result,
there would be no need to resort to section 232. In fact the mere fact that
parties have elected to have the matter resolved through section 229, that
election excluded the use of the procedure under section 232. We wish to
comment that had the matter been resolved through section 232, all
procedures involved in that process would be binding on all parties and
this includes Respondent.
22. It is also inaccurate that the consent of parties must be sought before
a dispute of interest involving an essential services can be referred for
arbitration. All that is required is for the conciliator to make a
determination that parties involved in a dispute of interest, are engaged
in an essential service. It is without doubt in casu that such a
determination has been made. As a result, it is illegal for Respondent to
embark on a strike action, particularly in the light of both the
determination that parties are engaged in essential services and the
provisions of section 225(6)(b)(ii) of the Labour Code Act (supra). In
essence section 225(6)(b)(ii) prohibits a strike action where parties are
engaged in an essential service.
23.
We wish to confirm that the procedure under section 229 is the
general rule in dealing with disputes of interest. However, the procedure
provided for under this section, is subject to the provisions of section 225
(see quotation of section 229 on para 10 of this Judgment). Section 225
makes is illegal to embark on a strike action where parties are engaged in
an essential service. This is the same section that Respondent claims to
be immune from on the premise that its consent was not sought prior to
the referral of the matter for arbitration.
24. Section 225 does not require the consent of parties in order for a
dispute of interest to be referred for compulsory arbitration. Rather
consent is only sought where a dispute interest does not involve parties in
essential services, but such parties to a dispute interest wish for it to be
resolved by arbitration. In essence, if the dispute in issue did not involve
parties engaged in essential services, We may have been inclined to find
in favour of Respondent that it had complied with section 229.
Page 9 of 265

AWARD
We therefore make an award in the following terms:
a) That the application is granted;
b) That the strike action by Respondent and its members is declared illegal;
and
c) That no order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 7th DAY OF MAY 2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mr. KAO
Mr. MOTHEPU

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. N. MOSHOESHOE
ADV. P. R. SESINYI

Page 10 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/67/2013

In the matter between:


MABAKUENA MONAHENG
MAMOJABENG PROSENTE
MATHAPELO MOTA
PUSELETSO MATSOSO
MPHO MAKHELE
ITUMELENG SHELILE

1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT

And
MENKHOANENG HOLDINGS (PTY) LTD

RESPONDENT

JUDGEMENT
Claims for breach of contract and unpaid wages. Court mero muto raising a
point of law on its jurisdiction to hear and determine the claims. Both parties
making addresses and in their addresses conceding that this Court has no
jurisdiction over the claims referred. Court dismissing matter for want of
jurisdiction. Further directing that the matter be remitted back to the DDPR for
determination.
BACKGROUND OF THE ISSUE
1. This is a dispute that involves claims for breach of contract and unpaid
wages. The dispute had initially been referred to the Directorate of
Dispute Prevention and Resolution (DDPR) for resolution by both
conciliation and arbitration. However, when conciliation failed, the
learned conciliator issued a certificate referring the matter to this Court,
purportedly in terms of section 226(3) of the Labour Code (Amendment)
Act 3 of 2000. Pursuant to the terms of the certificate of referral,
Applicants initiated the proceedings with this Court.
2. In terms of their pleadings, Applicants claimed that Respondent beached
their contracts of employment by unilaterally altering their open-ended
contracts of employment, and replacing them with one year fixed term
contracts, which they refused to sign. Further, as a result of both the
breach and their refusal to sign the imposed contracts, Respondent
refused to pay and accept them into service, notwithstanding the fact that
they remained its employees. They claim that these acts by the
Respondent constitute a breach of their contracts of employment.
3. Respondents defence is that it had to alter the Applicants contracts of
employment due to the fact that the main contractor, Vodacom, had
Page 11 of 265

altered their contract. The contractor had also demanded that


Respondent also alter employment contracts of its employees with the
view to align them to the main contract, failing which the main contract
would be terminated. As a result, Respondent introduced new contracts
to its employees and those who refused to sign them were terminated,
hence the non-payment of their wages.
4. In the light of these pleaded, We mero muto raised a point of law that this
Court lacks jurisdiction to determine claims referred as they were based
on a breach of contract and unpaid wages. We indicated that these claims
fall within the exclusive jurisdiction of the DDPR, in terms of section
226(2) of the Labour Code Act (supra). Both parties were directed to
address the Court on the issue and having heard them, Our therefore in
the following.
SUBMISSIONS
5. Applicants submitted that they conceded that the matter did not fall
within the jurisdiction of this Court but that of the DDPR. They added
that they only brought it before this Court under a directive of the DDPR
that it be brought here. They stated that the certificate having been
issued, they had no alternative but to honour its terms and seek
appropriate relief against it before this Court. They added that they have
done so and this is reflected in their heads of argument where they have
challenged the jurisdiction of this Court over their claims.
6. Respondent submitted that it agreed with Applicants that this Court has
no jurisdiction over their claims, as they fall within the jurisdiction of the
DDPR. It was added that as a result, Applicants ought not to have
referred these claims with this Court. Further that having referred same,
they ought to have withdrawn them as soon they became aware that they
were wrongly placed before this Court. It was prayed that in view of the
current circumstances, the Court dismiss the claims.
7. Both parties agree with Us that this Court lacks jurisdiction over the
Applicants claims. Claims for breach of contract and unpaid wages
indeed fall within the exclusive jurisdiction of the DDPR for resolution by
both conciliation and arbitration. As We have already stated, relevant to
this position are the provisions of section 226 of the Labour Code Act
(supra), which provide as follows,
The following disputes of right shall be resolved by arbitration
(a)
(b) A dispute concerning
(i)
(ii) a breach of contract of employment.
(iii) a wages order contemplated in section 51;
8. We wish to make a point that the mere fact that Respondent raised a
defence of operational requirements to Applicants claims, did not render
this matter a section 226(3) claim. Section 226(3) provides that,
Page 12 of 265

Notwithstanding the provisions of this section, the Director may refer a


dispute contemplated in subsection (2) to the Labour Court for
determination if the Director is of the opinion that the dispute may also
concern matters that fall within the jurisdiction of the Court.
9. Now section 226(1) of the Labour Code Act (supra), provides for specific
disputes of right that fall within the exclusive jurisdiction of this Court,
as contemplated in section 226(3). In terms of this section, the only
dispute of right that falls within the exclusive jurisdiction of this Court,
against which a defence of operational requirements has been raised, is a
dispute over the fairness or otherwise of a dismissal. Relevant to Our
point are the following provisions of section 226(1),
The Labour Court has exclusive jurisdiction to resolve the following
disputes:
(a)
(b)
(c) an unfair dismissal if the reason for the dismissal is related to
operational requirements of the employer.
10. In casu, the defence of operational requirement has not been raised
against a claim for dismissal but breach of contract. As a result, this
claim does not qualify as a section 226(1) claim and as such it is
incapable of being referred to this Court for determination. Consequently,
the provisions of section 226(3) have been improperly invoked as both the
breach of contract and unpaid wages claims fall within the exclusive
jurisdiction of the DDPR. They therefore cannot be heard and determined
by this Court.
11. We further wish to make a point that it is improper for the Applicants
to have brought these claims before this Court. It is further improper for
Applicants to have raised a point of law against their very own claims. In
Our view, their conduct amounts to an attempt to use these processing to
nullify the referral of their claim to this Court by the learned Conciliator.
There are several avenues that they could have invoked rather than to
refer a claim which they knew not to be competent before this Court. This
Court has a wide jurisdiction over trade disputes under the provisions of
section 24 of the Labour Code Act (supra), including the right of
Applicants to challenge the certificate in issue.

Page 13 of 265

AWARD
We therefore make an award in the following terms:
a) That this matter is dismissed for want of jurisdiction;
b) Claims are remitted to the DDPR for determination; and
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 19th DAY OF MAY 2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. M. MOSEHLE
Mr. S. KAO

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENTS:

MR. MOLEFI
ADV. NTAOTE

Page 14 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/75/2012
A0244/2012

In the matter between:


CHABELI LETEBELE

APPLICANT

And
LESOTHO ELECTRICITY
COMPANY (PTY) LTD
DDPR - ARBITRATOR M. SENOOE

1ST RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. Respondent arguing that the
ground raised is an appeal disguised as a review. Court finding that the
ground raised is a review and not an appeal as it relates to the method of trial.
Court however, not finding merit in the said review ground and dismissing it.
No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for the review of the 2nd Respondent arbitration
award in referral A0244/2012. Seven grounds of review were raised on
behalf of the Applicant in the founding affidavit to the notice of motion.
However, the grounds were reduced to only one during submissions. Both
parties were in attendance and/or represented and made submissions.
2. The brief background of the matter is that Applicant was first employed
by the Respondent Company on the 14th August 1990, in the position of
Trainee Technician. He was later, in 2001, placed in the position of
Personnel Officer. On the 3rd December 2004, he was transferred to the
position of an Electrician. Owing to the latter transfer, on or around the
3rd February 2012, Applicant referred a claim for underpayments with the
2nd Respondent institution. The premise of his claim was that he had
been unfairly transferred from the position of Personnel Manager to that
of an Electrician and that as a result of the unfair transfer, he incurred
underpayments.
3. The said claim was accompanied by an application for condonation. The
condonation application, which was duly opposed, was heard and
finalised on the 10th July 2012 and an award was issued about 8 days
later, on the 18th July 2012. The said award dismissed the condonation
application and the referral. It is this arbitration award that Applicant
Page 15 of 265

wishes to have reviewed, corrected and/or set aside. Having head the
submissions of parties, Our judgment is therefore in the following.
SUBMISSIONS OF PARTIES
4. Applicant claimed that the learned Arbitrator erred and misdirected
herself in stating that Applicant had not provided good and sufficient
reasons of the delay in following up on the matter internally and in bringing
it to the DDPR. It was argued in support that in determining an
application for condonation, the learned Arbitrator was bound to consider
the principles enunciated in the Court of Appeal case of Morena Sello v
Mametsing Sello & others C of A (CIV) 22 of 2011 that an applicant party
must establish good cause for condonation. In this regard he must explain
his failure to act timeously. He must show that he was not wilful. He must
show that he has good prospects of success on appeal.
5. The Court was further referred to the Labour Appeal Court case of TEBA
&
others
v
Lesotho
Highlands
Development
Authority
LAC/CIV/A/06/2009, where the learned Judgment stated the following
principle,
those factors include not only the degree of non-compliance, the
explanation for it, the prospects of success and the importance of the case
but also the respondents interest in the finality of his judgment, the
question of prejudice to him, the convenience of the court and the avoidance
of unnecessary delay in the administration of justice.
6. It was argued that in the light of the above authorities, the learned
Arbitrator ought to have found that the Applicant had provided good and
substantial reasons for the delay in both following up on the matter
internally and/or in bring it to the DDPR. In amplification of the
argument, it was submitted that Applicant had lead evidence establishing
that he delayed due to a promise by the then Human Resources
Officer/Industrial Relations Officer, that he would have his grievance
addressed. Owing to the promise, he waited in anticipation until he later
realised that this was just an attempt to discourage him to pursue his
claim.
7. In reaction to the Applicants claim, Respondent argued that Applicant is
challenging the correctness of otherwise of the decision of the learned
Arbitrator rather than the decision making process. He argued that this
being the case, this is an appeal disguised as a review. He relied on the
authority in Pretoria Portland Cement Co. Ltd & another v Competition
Commission & others 2003 (3) SA 385 (A) at 401 to 402C. It was added
that at paragraphs 34 and 35, the learned Schultz JA held that a review
is not directed at correcting the decision on the merits but that it is aimed
at the maintenance of legality, which is the means by which those in
authority are compelled to act.

Page 16 of 265

8. Further reference was made to the authority in Johannesburg


Consolidated Investment Co. v Johannesburg Town Council 1909 TS 111,
where the leaned Innes CJ held that a review is
the process by which the proceedings of inferior courts of justice,
both civil and criminal, are brought before the court (i.e. the reviewing
superior court) in respect of grave irregularitys or illegalities occurring
during the course of such proceeding. Further reference was made to the
case of Chief Constable of the North Wales Police v Evans [1982] 3 ALL ER
141 at 154.
9. In answer to the merits, it was argued that there is no error or a
misdirection on the part of the learned Arbitrator. It was submitted that
She made a decision to dismiss the condonation application on the basis
of the information that parties had tendered before Her. As a result, the
learned Arbitrator fully applied Her mind to the matter that she was
seized with. Further that She duly referred to relevant authorities to come
to Her conclusion. In addition, the Court was referred to the case of
Coetzee v Lebea N.O & another (1999) 20 ILJ (LC) for the test in
determining whether a presiding officer in the court a quo duly applied
their mind.
10. It was argued that in the above authority, the Court stated that the
best demonstration of applying ones mind is whether the outcome can be
sustained by the facts found and the law applied. It was submitted that
in casu, the outcome is sustained by the facts found. The Court was
referred to paragraphs 7 to 12 of the arbitration award. It was added that
there is a clear indication, from the arbitration award, that Applicant is
merely calling upon this Court to substitute the decision of the learned
Arbitrator with that of its own. It was argued that not only is this
prohibited in law but that it would also infringe the general rule
applicable to reviews.
11. In reply, Applicant rejected the suggestion that this is an appeal
disguised as a review. The Court was referred to the case of JD Trading
(Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004, where the Court made a distinction between an
appeal and a review, in the following,
where the reason for wanting to have the judgment set aside is that the
court came to a wrong conclusion on facts or the law, the appropriate
remedy is by way of appeal. Where, on the other hand, the real grievance
is against the method of the trial, it is proper to bring a case on review. An
appeal is thus in reality a revaluation of the record of proceedings in the
court a quo.
12. It was argued that in casu, Applicant is challenging the method of trial
and specifically that the learned arbitrator failed to apply Her mind to his
evidence that explains the delay in filing the referral on time. It was added
that in terms of the above authority, this constitutes a valid review
ground and not an appeal ground as Respondent suggests. The Court
Page 17 of 265

was specifically referred to the authority of Coetzee v Lebea N.O & another
(supra), where the Court confirmed failure to apply ones mind as being a
ground of review.
13. Further reference was made to the authorities of Phakiso Ranooana v
Lesotho Flour Mills (Pty) Ltd & another LC/REV/59/2011; Coetzee v Lebea
N.O & another (supra); Fahhida Supermarket (Pty) Ltd v Ikhetheleng Sibolla
& another LC/REV/107/2012; Global Garments v Mosemoli Morojele
LC/REV/354/2006; Carephone (Pty) Ltd v Marcus N.O & others (1998) 19
ILJ 1425 (LAC) and County Fair Foods (Pty) Ltd v CCMA & others (1999)
ILJ 1701, on the same principle.
ANALYSIS
14. The question concerning the status of the claim brought before Us, is
a jurisdictional issue. As a result, notwithstanding the fact that parties
opted to take a holistic approach in these proceedings, We will first
address it before We proceed to deal with the merits often matter. We note
and accept the authorities cited by parties in highlighting the distinction
between an appeal and a review. Specifically, We confirm that where the
grievance relates to the procedure, then the correct route is a review but
that where it relates to the decision, then the proper route is an appeal.
We deem it pertinent to state at this point that in the latter route, this
Court would have no jurisdiction to hear and determine such a claim at
all.
15. In casu, Applicant claims that the learned Arbitrator failed to apply
Her mind to his evidence and that as a result She came to a wrong
conclusion that he had no good and substantial reasons for late referral
of his claim. In Our view, this is prima facie a review ground which if well
substantiated may lead to the granting the review of the arbitration
award. The challenge is aimed at the method of trial and is as such a
review ground. Our view also finds support in the authorities cited above,
with specific reference to the authority in Coetzee v Lebea N.O & another
(supra), where the Court went further to layout the test for failure to apply
ones mind. In the light of this finding, We now proceed to address the
merits of the matter.
16. We have perused the arbitration award, in particular from paragraph 7
to paragraph 12, which relates to an analysis of the evidence of Applicant
in the arbitration proceedings. We have found from these paragraphs that
the learned Arbitrator considered the evidence of Applicant explaining the
delay in referring the matter. Further that the learned Arbitrator found
them insufficient to sustain the requirements of a condonation
application.
17. In fact not only was the evidence of Applicant considered, but that the
learned Arbitrator also fully applied her mind to it. We say this because,
there is also a rational connection between the conclusion made and the
facts presented. We say this because from the award the learned
Page 18 of 265

Arbitrator considered and applied her mind to the explanation given by


Applicant. At paragraph 8 of the arbitration award, the evidence shows
that Applicant claimed to have waited due to a promise from the
Industrial Relations Officer that he would see to it that his grievance is
addressed. In dismissing this explanation, at paragraph 8 of the
arbitration award, the learned Arbitrator had the following to say,
Applicant alleges that he waited because the Industrial Relations Officer
had promised him that the matter would be dealt with but fails to rebut
respondents evidence that he could not rely on a junior officer where the
Chief Executive had already given him a response. Over and above that,
there is no evidence that the said Industrial Relations Officer made such a
promise especially where in his affidavit Para 7 indicated that the said
officer even said he was afraid of reprisals by the company hence he kept
making promises until he left respondent Company.
18. In view of this said, We find that the learned Arbitrator has fully
complied with the test in Coetzee v Lebea N.O & another (supra). She
considered the principles applicable in an application for condonation, in
particular an explanation for the delay, as laid out in both Morena Sello v
Mametsing Sello & others (supra) and TEBA & others v Lesotho Highlands
Development Authority (supra). Consequently, We find no irregularity in
the arbitration award.
AWARD
Our award is therefore in the following terms:
a) That the application for review is refused;
b) The award in referral A0244/2012 remains in effect; and
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 12th DAY OF MAY 2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. RAMASHAMOLE
Mr. MATELA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

ADV. MOTOARI
ADV. NTIHLELE

Page 19 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/78/2013
E0010/2013

IN THE MATTER BETWEEN


LESOMA NOKO

APPLICANT

AND
MANGO TREE CONSTRUCTION
COMPANY LTD
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGEMENT
Application for the review of the proceedings in referral E0010/2013. Only two
grounds of review having been raised. 1st Respondent raising three points of
law,
-Non-compliance with the Rules of Court;
-Pleadings do not disclose the cause of action; and
-Jurisdiction of the court to review a settlement.
Court upholding points of law and dismissing review application and making
no order as to costs.
BACKGROUND TO THE ISSUE
1. This is an application for the review of proceedings in referral
E0010/2013. Applicant had initially attempted to have judgment by
default. However, he could not succeed for the reason that he had not
served the 1st respondent with a notice in terms of Rule 16 of the Rules of
this Court. As a result, We refused the application and directed him to
file a notice in terms of rule 16 to indicate if he wanted to file additional
ground/s of review, or not, so that 1st Respondent would be able to
thereafter file an answer. The matter was then adjourned and postponed
to this day.
2. On this day, Applicant raised a point of law that the 1st Respondent
answer be disregarded, as had been filed out of time. We then directed
that they address Us on the issue. From the submissions of parties, it
transpired that Applicant had not filed a notice in terms of Rule16,
notwithstanding the order that We had initially made requiring him to do
so. Rather, he proceeded to have the matter set down for hearing. It
further transpired that 1st Respondent only took the decision to file an
answer when Applicant had the matter set down.

Page 20 of 265

3. On the premise of these said, We made a conclusion that the answer was
not out of time but rather that, at best it could be said to have been
premature, as a notice in terms of Rule 16 had not been served upon 1st
Respondent. However, given the fact that parties were present, ready and
desirous to argue the merits of the matter, We condoned the said breach
and directed that they proceed to address the Court on the review. In 1st
Respondent answer, he had raised four points of law to the Applicant
notice of motion and founding papers. We therefore directed the parties
to address Us on the points. Having heard their submissions, Our
judgment is therefore in the following.
SUBMISSIONS AND ANALYSIS
4. 1st Respondent argued that Applicant had not complied with Rule 16 of
the Rules of this Court in that he did not request the dispatch of the
record of proceedings which are subject of review. He added that the
absence of the record has prevented him from answering the Applicants
case issuably and that it will also make it difficult for the Court to
exercise its discretion judiciously in handling this review. Applicant
answered that he did not know that he was required to obtain and avail
the record of proceedings to the Court and 1st Respondent. He however
argued that he had filed a copy of the report from the DDPR namely, the
arbitration award and the settlement agreement.
5. Review proceedings before this Court are governed by Rule 16 of the
Labour Appeal Court Rules of 2002. In terms of that Rule, in particular
Sub-rule (3)(b);
(3)
The notice of motion shall(a) .....
(b) Call upon the decision maker to deliver to the Registrar within 14 days
of the service of the notice of motion on the decision maker(i) the record of proceedings; and
(ii) any reasons that the decision maker is required to give or
wishes to give; and
6. The provisions of Rule 16 are mandatory as the word shall have been
used. As a result, Applicant was obliged to request the dispatch of the
and to present a copy of same to both the 1st Respondent and to this
Court for purposes of determining the review.
Applicant claim of
ignorance about this procedure cannot hold for a simple reason that
ignorance of the law is no excuse in Our jurisdiction. Our attitude finds
support in the High Court of Lesotho decision in Molapo v Mphuthing &
others CIV/APN/188/1994, where the learned Maqutu J quoted an
extract from the authority of Evans v Bartlam 1937 2 All ER 646 at
649GH, that
There is a rule that ignorance of the law does not excuse.
Relying on the above authority, the learned Judge went to say,
In other words the maxim that ignorance of the law does not excuse is a
purposeful precept applied in the public interest to buttress rather than
Page 21 of 265

undermine the rule of law. If people can plead ignorance of the law in all
cases there can be chaos.
7. In view of the above authority, the conduct of Applicant is inexcusable as
condonation of same would lead to chaos. Applicant was without fail
expected to secure a copy of the record of proceedings under review, to
file same with the Court and serve it upon the 1st Respondent. By this
said, We signify that We take notice of the prejudice that the absence of
the record presents on the part of 1st Respondent, let alone the Court in
the exercise of Its judicial discretion.
8. Secondly, 1st Respondent argued that there are no factual or legal
grounds upon which the review is based. It submitted in amplification
that the Applicants pleadings do not disclose the course of action except
to mention in passing that the learned Arbitrator unlawfully varied His
own decision, by rescinding His arbitration award. He further mentions in
passing that the 1st Respondent representative in these proceedings, did
not have a resolution from 1st Respondent company. It was added that
the pleadings do not say what is being reviewed, and this makes it
difficult to answer.
9. In answer, Applicant submitted his grounds of review have the factual
and legal basis. He added that in any event a breach in that sense can be
condoned by the Court. It was further argued that while 1st Respondent
claims that Applicant has not laid any factual or legal basis of the review,
it has not shown how that is the case.
10. Rule 16(3)(c) of the Labour Appeal Court Rules provides that an
affidavit in support of an application for review, must set out the factual
and legal grounds upon which the applicant party relies to have the
decision or proceedings corrected. While We admit that We have the
power to condone any breach of the Rules of Court, in terms of section 27
of the Labour Court Rules of 1994, but the exercise of such powers
depends on the impact of the breach of the other party to the
proceedings. Simply put, a breach can, among others, only be condoned
where it bears no prejudice on the part of the other party or if the likely
prejudice is insignificant.
11. In casu, We are in agreement with 1st Respondent that the pleadings of
Applicant do not disclose the cause of action. A cause of action in any
claim must contain at least the following elements,
a) Facts against which a claim made is based;
b) The law relied upon for the claim made; and
c) The conclusion which must flow from both the facts and the law relied
upon.
12. The absence of any of the above elements makes it difficult for one of
the parties to answer. At paragraph 5 of the Applicants founding
affidavit, he states that he was awarded M17,814.00 by 2nd respondent
Page 22 of 265

only to be varied by him unlawful. Further at paragraph 6 of same,


Applicant prays that the Court review, correct and set aside the variation
made by 2nd respondent in as much as the applicant for variation did not
have a resolution of the directors of the company to do so. The pleading
does not state the premise of the claim or even how this constitutes an
irregularity worthy of being reviewed. There is simply no sufficient
material averments to enable the 1st Respondent to issuably react to the
claims of Applicant.
13. Thirdly, 1st Respondent argued that Applicant has failed to comply
with both Rule 16 of the Labour Appeal Court Rules, to file a notice
indicating his intention to file additional grounds or not to, and an order
of this Court directing him to comply with this Rule. It was argued that
when Applicant had approached this Court for default judgement, in
refusing the application, the Court ordered him to file a notice in terms of
Rule 16, but he has not. It was added that this is a breach that warrants
the dismissal of the matter.
14. Applicant answered that he conceded that he had flaunted both the
order of Court and Rule 16 of the Rules of this Court. He submitted that
the Court should take note of his effort to comply with the rest of the
Rules of this Court, in considering his current breach.
15. Rule 16(6) of the Labour Appeal Court Rules provides that;
(6)
The applicant shall, within 7 days after the Registrar has made
the record available, either:(a) by delivery of a notice and accompanying affidavit, amend,
add to or vary the terms of the notice of motion and
supplement the supporting affidavit; or
(b) deliver a notice that applicant stands by its notice of motion.
16. The provisions of this Rule are clearly mandatory. We have already
pronounced Ourselves over the effect of mandatory provisions.
Consequently, We find that Applicant has committed a breach. Not only
has this been the case, as Applicant has also deliberately flaunted an
order that We made when he had approached Us for a default award.
The conduct of Applicant to flaunt Our order amounts to the violation of
the dignity, repute and authority of this Court. Applicant has simply
been contemptuous. We are tempted to commit him at this instant as his
conduct is inexcusable, not even by his effort to comply with the rest of
the Rules of this Court.
17. The last point of law was that the proceedings before this Court are
improper. It was submitted in amplification that the award that is
subject of review was rescinded and that thereafter, the matter was
finalised by settlement. The Court was referred to annexures to the
Applicants founding affidavit. Applicant answered that indeed the award
annexed to his founding papers has been rescinded and further that a
settlement agreement was thereafter made. He stated that he sought the
Page 23 of 265

review of the said agreement as it reduced the amount that had initially
been awarded to him. He added that this Court being superior to the 2nd
Respondent Tribunal has the power to review all its proceeds including
the settlement agreement.
18. The jurisdiction of this Court to review decisions of the DDPR derives
from section 228F of the Labour Code (Amendment) Act 3 of 2000. The
said section is headed Review of arbitration awards. It is clear from the
reading of the heading that reviews are limited to arbitration awards and
nothing else. Applicant has approached this Court for the review of a
settlement agreement. This falls outside the scope of reviewable decisions
in terms of the quoted section. Consequently, We are in agreement with
1st Respondent that the approach adopted by Applicant is improper and
We therefore have no jurisdiction to review a settlement agreement.
19. On the basis of the above arguments, with each point raised being
sufficient on its own to have the matter dismissed, We dismiss this review
application. No order as to costs has been prayed for and We accordingly
decline to make any.
AWARD
Our award is therefore in the following:a) The review application is dismissed;
b) The award in referral E0010/2013 remains in effect; and
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 16th DAY OF JUNE 2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
THE LABOUR COURT OF LESOTHO
MS. LEBITSA
MRS. MOSEHLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

IN PERSON
ADV. TENASE

Page 24 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/90/2011
A0198/2011

IN THE MATTER BETWEEN


BONGANI JEYI

APPLICANT

AND
MONAHALI CONSTRUCTION (LTD) PTY
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. Review being filed out of time
together with an application for condonation. Applicant for condonation not
being opposed. Court finding merit in the unopposed condonation application
and granting same. Court further directing parties to address the merit of the
matter. Applicant raising three ground of review. Only one ground of review
sustaining. Court however, finding that the irregularity committed does not
warrant the setting aside or correction of the arbitration award. Review
application being refused. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the DDPR arbitration award in
referral AO198/2011. The application has been filed out of time together
with an application for condonation.
Whereas, the condonation
application had initially been opposed, such opposition was withdrawn
and parties prayed that it be granted and they be directed to proceed into
the merits of the matter. Having considered the condonation application,
and having satisfied Ourselves of merit in same, We granted it. Our
judgement in the merits of the matter is therefore in the following.
SUBMISSIONS
2. The first ground of review is that the learned Arbitrator erred by allowing
1st Respondent to oppose Applicants condonation application verbally,
contrary to the mandatory provisions of Regulation 4(3) of the Labour
Code (DDPR) Regulations of 2001. It was submitted that in terms of that
Regulation, a party wishing to oppose an application for condonation
must do so in writing. It was added that as a result of this error,
Applicant was denied the right to know beforehand that his application
was opposed, the grounds for such opposition and was thus unable to
issuably meet the challenge to his condonation application. It was
argued that the mere fact that the opposition papers have to be served on
the other party before hearing shows that the intention is to give that
Page 25 of 265

other party sufficient time to study and controvert the opposing reasons.
It was argued that this was a clear violation of the mandatory provisions
of Regulations 4(3)(b) and 4(4) of the DDPR Regulations (supra).
3. The Court was referred to the authority of Nkisimane & others v Santam
Insurance Co. Ltd 1978 (2) SA 430 (A), where the court made the following
remarks in relation to statutory requirements. Specific reference was
made to the remark by Trollip JA in the following,
Thus on the one hand, a statutory requirement construed as peremptory
usually still needs exact compliance for it to have the stipulated
consequence, and any purported compliance falling short of that is a
nullity.
4. 1st Respondent answered that the learned Arbitrator acted in the interest
of justice in allowing them to oppose the condonation from the bar. The
Court was referred to the authority of Sidumo v Rustenburg Platinum
Mines Limited (2007) 28 ILJ. It was added that in so doing, the learned
Arbitrator exercised His powers judiciously, while at the same time he
avoided a piecemeal approach to the matter. It was further submitted
that even if it was to be found that the learned Arbitrator mishandled the
condonation application, that would not warrant the granting of the
review, as the irregularity complained of does not go into the merits of the
condonation application itself.
5. The provisions of Regulation 4 of the DDPR Regulations (supra), are clear
that where a party opposes an application for condonation they must
notify the other party in writing about the reasons for opposition. These
provisions are as follows:
4(1)
(2)
(3) Where a party to the dispute opposes the application for condonation,
such application shall
(a) be in writing; and
(b) state the reasons for opposing the application.
(4) The opposing statement shall be served on the other parties to the
dispute and be filed with Senior Case Management Officer within 7 days of
the service of the referral.
6. It is without doubt that, in allowing Respondent to oppose the
condonation without having first filed written reasons for opposition, the
learned arbitrator committed an irregularity. We say this because the
regulations are meant to prescribe the procedure that is to be followed in
proceedings before the DDPR.
Any deviation from the prescribed
procedure by the regulations constitutes a procedural irregularity. We
therefore find that the learned Arbitrator erred. The procedure adopted
by the learned arbitrator has no support in law and is therefore an
arbitrary act far from being in the interest of justice as 1st Respondent
has attempted to suggest. In fact, not only is this the case, but even the
authority of Sidumo v Rustenburg Platinum Mines Limited (supra), relied
Page 26 of 265

upon does not advance its case as it has been misapplied. The authority
relates to the reasonableness of an award.
7. The above finding notwithstanding, We agree with 1st Respondent that the
irregularity committed does not warrant the granting of a review of the
arbitration award. We say this because the irregularity complained of
does not go into the merits of the matter. Nothing has been pleaded or
suggested in submission that if 1st Respondent had not been allowed to
answer for the bar, the factual averments by Applicant would have
sustained the granting of the condonation application. Applicant has
merely pleaded breach of procedural rules.
8. The second ground of review is that it was improper for the learned
Arbitrator to have dealt with a point limine raised by 1st Respondent in the
main claim, as She had already dismissed the condonation application for
the late filing of the main claim. It was added that once the condonation
application had been dismissed, it disposed of the matter and it was not
necessary to deal with the main claims, which are the premise of the
dismissal of the matter. 1st Respondent merely answered that while it
may have not been necessary for the learned Arbitrator to entertain the
main claim, having refused the condonation application, She nonetheless
did what was just to parties by entertaining same.
9. We are in agreement with both parties that it was not necessary to deal
with the main claims after the refusal of the condonation application. In
fact, it is Our view that it was not only unnecessary, but also irregular for
the learned Arbitrator to have done so. The effect of the refusal to grant
the condonation application was that She lacked jurisdiction over the
main claims. It is therefore Our view that the learned Arbitrator erred, at
least to the extent of the decision to dismiss the applicants claims for
lack of jurisdiction, which was borne by the determination that there was
no employment relationship between parties.
10. The third ground of review is that the learned Arbitrator erred in
concluding that applicant had not provided sufficient evidence to prove
that he was an employee of 1st Respondent. It was argued that it is trite
law that he who alleges bears the onus. It was submitted that in casu, 1st
Respondent had claimed the non-existence of an employment relationship
between parties. As a result, it was 1st Respondent who bore the burden
of proving the non-existence of the employment relationship.
11. The Court was referred to the case of Pillay v Krishna 1946 AD 946 at
952 where DAVIS AJA had the following to say,
In my opinion, the only correct use of the word onus is that which I
believe to be its true and original sense (cf.D.31.22) namely the duty which
is cast upon the particular litigant, in order to be successful, of finally
satisfying the Court that he is entitled to succeed on his claim or defence as
the case may be

Page 27 of 265

12.

It was added that Davis AJA went on to state that,


where the person against whom the claim is made is not content with
ta mere denial of that claim but sets up a special defence, then he is
regarded quod that defence as being the claimant; for his defence to be
upheld he must satisfy the Court that he is entitled to succeed on it.

13. Further reference was made to the case of Intramed (Pty) Ltd v
Standard Bank of South Africa Ltd 2004 (6) SA 252 (W) at page 257, where
G. J. Classes J had the made the following remark,
The incidence of the burden of proof in this sense is on each issue a matter
of substantive law. In a secondary sense, the phrase denotes the duty to
adduce evidence in order to combat a prima facie case made by his
opponent, sometimes called the evidential burden.
14. Applicant went on to rely on the authority in Kriegler v Minitzer &
another 1949 (4) SA 821 (A) at page 828, where the learned Greenberg JA,
relying on a statement from Phipson Evidence, 8th Ed. At page 27, stated
as thus,
The burden of proof rest upon the party, whether plaintiff or defendant
who substantially asserts the affirmative of the issue.
And further that,
The true meaning of the rule is that where a given allegation, whether
affirmative or negative, forms an essential part of a partys case, the proof
of such allegation rests on him.
15. It was argued that contrary to above trite principles of law, the learned
Arbitrator required Applicant to prove the existence of the said
relationship. It was added that in so doing the learned Arbitrator also
acted contrary to Regulation 20(2) of the DDPR Regulations (supra). The
Court was also referred to paragraphs 13 to 15 of the arbitration award,
where this determination is said to have been made.
16. In answer, 1st Respondent submitted that the approach that the
learned Arbitrator adopted was reasonable, fair, objective and sanctioned
by the principles of law. It was added that the learned Arbitrator duly
exercised Her mind to the evidence before Her. Evident to this was the
fact that She adjourned proceeds to allow parties to obtain evidence to
support their claims, before proceeding to hear and determine the matter.
It was denied that the learned Arbitrator erred at all.
17. We wish to note and accept that is trite law that he who alleges bears
the onus of proof. This principle is consistent with Regulation 20(2) of
the DDPR Regulations (supra). In casu, 1st respondent claimed that 2nd
respondent did not have jurisdiction to entertain Applicants claims. In
support of the claim, 1st respondent argued that there was no
employment relationship between the parties.
In Our view, 1st
Respondent made sufficient averments which if not disputed by
Applicant, by leading evidence of the existence of the employment
Page 28 of 265

relationship, entitled it to succeed in its claim of lack of jurisdiction.


Consequently, the learned Arbitrator was not wrong in requiring
Applicant to lead evidence to rebut the claim of non-existence of the
employment relationship.
18. In adopting the above approach, the learned Arbitrator was not
misplacing the application of the principle of onus of proof, but rather
applied it properly. The principle was explained in the case of United
Clothing v Phakiso Mokoatsi and another LAC/REV/436/06 as follows,
The duty that is cast upon a litigant to adduce evidence that is sufficient to
persuade the court, at the end of the trial that claim or defence as the case
may be should succeed.
Consequently, this ground fails.
19. Our finding finds support in the authorities cited by Applicant in
support of his claim. As We have already stated, 1st Respondent claimed
that the 2nd Respondent lacked jurisdiction to entertain Applicants
claims. In amplification of its claim, 1st Respondent had alleged the
absence of an employment relationship between parties. In reaction,
Applicant raised a special defence of the existence of the employment
relationship. As the authorities cited above dictate, the obligation was
now on the part of the Applicant to prove his positive assertion which was
made in defence to a claim of non-existence of a contractual relationship.
20. Notwithstanding Our finding on the second ground of review, We
decline to set aside the arbitration award in referral AO198/2011. Our
decision is premised on the fact that while it was not necessary to hear
and determine the merits of the main claim or matters arising therefrom,
after the condonation had been refused, that does not alter the fact that
the late referral of Applicants claim was not condoned. In the end, the
2nd respondent would still lack jurisdiction to hear and determine
Applicants claims.

Page 29 of 265

AWARD
We therefore make an award in the following;
a) That the review application is refused;
b) The award of the 2nd respondent in referral A0198/2011 remains in
effect; and
c) There is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 16th DAY OF JUNE 2014
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
THE LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR. MATELA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. SELIMO
ADV. KUMALO

Page 30 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/51/2012

In the matter between:


FACTORY WORKERS UNION (FAWU)
(O.B.O MATEPO MOHALE AND OTHERS

APPLICANT

And
TZICC CLOTHING
MANUFACTURERS (PTY) LTD

RESPONDENT

JUDGEMENT
Claims for discrimination as a species of unfair labour practice. Respondent
neither opposing the claims nor attending the hearing on the scheduled date.
Court proceeding with the matter in default of Respondent. Court proceeding
on the basis of acceptance of the unchallenged evidence of Applicants. Court
finding that Applicants have failed to establish a case for discrimination in
terms of section 196(2). Court further finding that Applicants are not entitled to
remedies flowing from section 196(2), on account of failure to establish their
claim. Applicants claims being dismissed. No order as to costs being made.
BACKGROUND OF THE ISSUE
1. These are claims for discrimination in employment in terms of section
196(2) of the Labour Code Order 24 of 1992. On the first date of hearing,
Applicant union made an application for its substitution by Applicants in
their personal capacities. The application was duly granted, in default of
Respondent who had failed to attend. The matter was thereafter
postponed to the 20th June 2013 for hearing in the merits. Still on this
day, Respondent failed to attend and in the same manner the matter
proceedings into the merits in its default.
2. At the commencement of the proceedings, Applicant indicated that they
would only lead the evidence of one witness, by the names of Nthabiseng
Monkhe, as they had filed on record affidavits in terms of which the rest
of the Applicants have undertaken to be bound by the evidence of the
said Monkhe. Having accepted proposed approach of Applicants, We
heard the matter and Our judgment is therefore in the following.
EVIDENCE
3. Applicants testified under oath that prior to their discrimination, they
had initiated proceedings with the DDPR wherein they had claimed,
against Respondent, payment of their wages while on a lay off. The DDPR
had then made an award in their favour and directed Respondent to pay
Page 31 of 265

the said wages. Respondent had then promised Applicants that it would
pay them the awarded amounts on the 3rd August 2012. However the
monies were not paid as promised.
4. On the 9th August 2012, employees of Respondent were all told that they
would be required to work both overtime and on rest days beginning the
11th August 2012. On the 10th August, Applicants approached the
Respondent personnel to follow up on their awarded amounts, as
payment had still not been made. The concerned issue was not addressed
by the personnel officer, as the Applicants were rather accused of playing
at the personnel offices.
5. When Applicants reported for work on the 11th August 2012, as earlier
directed, they were refused entry into the workplace and told to return to
their homes, while the rest of the Respondent employees were admitted
into the workplace. It was explained to Applicants that they had been
returned for both initiating unpaid lay off proceedings with the DDPR
against Respondent and further demanding the awarded wages on the
10th August 2012. They were informed that they would not be allowed to
work both overtime and on rest days as their punishment. The
punishment only spanned for a month as they were then allowed to work
both overtime and on rest days from the 10th September 2012.
6. Applicants claim that the conduct of Respondent in the period between
the 11th August to the 10th September 2012 was a discriminatory unfair
labour practice in terms of section 196(2) of the Labour Code (supra), as
they were unfairly denied the right to work both overtime and on rest
days, without justifiable cause. They thus claim remedies in terms of
section 202(2)(b) of the Labour Code (supra), that Respondent be ordered
to discontinue from engaging in such discriminatory acts and to treat its
workers equally, that Respondent be committed and punished for an
unfair labour practice by being ordered to pay Applicants the money that
they would have accrued in overtime and rest days, during the period in
issue.
7. Applicants alleged that they earned monthly salaries of M980.00 per
month for which they worked for 8 hours a day. Further that in the
period in question, they would have worked for 8 weekly rest days and
overtime of 8 hours on Saturdays and 7 hours on Sundays, for the entire
period in issue.
ANALYSIS
8. It is undoubtful that Applicants were unfairly treated by the Respondent
in excluding them from working both overtime and rest days in the period
in issue. This is clear from the unchallenged evidence of Applicants,
which as a matter of principle, this Court is obliged to accept as true and
conclusive of the factual position of events of the days in issue. The
question is whether Applicants were discriminated against in terms of
section 196(2) as they claim and whether they are entitled to remedies
Page 32 of 265

under section 202 (2) (b) of the Labour Code (supra). We will deal with
these issues in the succeeding part of Our judgment.
9. Section 196(2) of the Labour Code (supra) provides as follows,
196.
Discrimination against union members and officials,

(2) Any person who seeks, by intimidation, threats, dismissal,


imposition of a penalty, giving or offering to give a wage increase, or
any other means, to include an employee to refrain from becoming or
to refrain from continuing to be a member, officer or trustee of a trade
union shall commit an unfair labour practice.
10. It is clear from a simple reading of the section in issue that an unfair
labour practice in the form of discrimination applies in respect of issues
involving discriminatory acts against union members and officials, to
compel them to disassociate from unionisation. In Our view, this is not
the case of Applicants as their claim has nothing to do with the intend on
the part of the Respondent to compel them to disassociate from their
union. Consequently the Applicants have failed to prove a case for
discrimination in terms of section 196(2).
11. In view of Our finding above, the right of Applicants to a remedy under
section 202(2)(b) of the Labour Code (supra), also falls off for a simple
reason that a remedy under this section is depend upon there being a
breach in terms of section 196. The provisions of section 202(2)(b) are as
follows,
202.
Power of Court to make orders

(2) Where the Court finds that a person has engaged in an unfair labour
practice under section 196 of the Code which involves the termination of
employment of an employee or the alternation of his or her employment or
of conditions of employment, the Court may, if it thinks fit, make an order
requiring the employer
(a)
(b) to pay the employee such sum as the Court considers just and
equitable in all the circumstances.

Page 33 of 265

AWARD
We therefore make an award in the following terms:
a) That Applicants claims are dismissed; and
b) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 17th DAY OF APRIL
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. M. MOSEHLE
Ms. P. LEBITSA

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR RESPONDENT:

ADV. RASEKOAI
NO ATTENDANCE

Page 34 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/40/2012

IN THE MATTER BETWEEN


ITUMELENG MOTO-MOTO
MATELE KHOELI
MANTEBO MPHOTO
LINEO SENYANE
CHESETSI CHESETSI
MOKUOANE MASABALLA
TEBOHO FERENE
AUGUSTINA SELLO
PALESA MAHLO
MOHANUOA MORAKE
NTIELENG MONOTO
MATELISO RANTOA
KHABANE NTELI
MALILLO MUSA
REFILOE LENKO
MAMOEKETSI LISEBE
MARIANNA SHOROMANE
MATEBOHO ABELE
MASEMANA PITI

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

AND
ECLAT EVERGOOD TEXTILES PTY LTD

RESPONDENT

JUDGMENT
Claims for unfair dismissal for participation in a strike and for
insubordination. Respondents claiming that some of the Applicants were
dismissed purely for insubordination and challenging jurisdiction of this Court.
Court finding that some of the Applicants were dismissed for insubordination
and that his Court lacks jurisdiction over their claims. No order as to costs
being made.
BACKGROUND TO THE DISPUTE
1. These are claims for unfair dismissal for participation in an unlawful
strike and for insubordination. Claims had initially been referred to the
Directorate of Dispute Prevention and Resolution (DDPR) for resolution.
The learned Arbitrator issued an award wherein he made a determination
that these claims fall under section 226(1) of the Labour Code
(Amendment) Act 3 of 2000, in that they involve a claim dismissal for
participation in a strike.
Page 35 of 265

2. Armed with this determination, Applicants referred their claim with this
Court. The claims were heard and dismissed for want of jurisdiction
before this Court. Applicants then appealed to the Labour Appeal Court,
whereat the decision of this Court was reversed and the matter was
remitted back for determination. The matter was accordingly set down
for hearing.
3. On the date of hearing, Respondent raised a point of law to the effect that
this Court had no jurisdiction to hear and determine claims of the 1st to
5th applicants, 7th to 9th Applicants, and 11th to 19th Applicants. Parties
were accordingly directed to address the Court on the issue and having
heard their submissions Our judgement on the matter is as follows.
SUBMISSIONS AND ANALYSIS
4. It was Respondents case that only the 6th and 10th Applicants had been
dismissed for participation in an unlawful strike. It was submitted that
the rest of the Applicants were dismissed for misleading, disrespecting
and influencing others to engage in an unlawful strike. It was argued
that these are acts of misconduct which ought to have been dealt with by
the DDPR as opposed to this Court. It was prayed that all others
Applicants claims except for the 6th and 10th Applicants be excluded from
these proceedings, as being improperly placed.
5. Applicants answered that this point was not raised in the pleadings and
that as a result it has taken them by surprise. However, when asked by
the Court if they needed time to reflect on it in order to issuably react
thereto, they declined the indulgence and elected to proceed with
addresses. Applicants argued that the content of the letters of dismissal
suggests that all Applicants were dismissed for actively taking part in an
unlawful strike action. The Court was referred to the dismissal letters,
which are annexures FAWU 3 to the Applicants originating application. It
was argued that this Court has jurisdiction to entertain claims involving
dismissals for participating in a strike action, per section 226 (1) of the
Labour Code Act (supra).
6. It was further submitted while it may seem that some of the Applicants
were dismissed purely for participation in a strike action and others for
both strike action and insubordination, this Court nonetheless has
jurisdiction over all claims in terms of section 226(3) of the Labour Code
Act (supra). It was added these other claims of insubordination cannot be
divorced from claims of dismissal for participation in a strike as they all
derive from a single transaction.
7. It was denied by Respondents that dismissals were based on strike and
other acts of misconduct in addition thereto. It was said that as the letter
of dismissals, to which applicants had referred to and annexed to their
originating application, some of the claims were borne by act of dismissal
for misconduct. Regarding, the timing for raising a point of law, it was
argued that a point of law can be raised at any time and that this is a
Page 36 of 265

trite principle of law.


It was prayed that the claims relating to
misconduct be excluded from these proceedings.
8. We wish to start with the first point raised by Applicants relating to the
timing for purposes of raising a point of law. We agree with Respondent
and confirm their contention that a point of law can be raised at any
time. Supportive of Our finding in the case of Thabo Mohlobo & others v
Lesotho Highlands Development Authority LAC/CIV/A/02/2010 where the
Court relied on a quotation from the authority of Casa v Tao Ying Metal
Industries & 3 others 2009 (2) SA (CC) as thus, Jurisdiction which is
essentially a question of law, can be raised at any time...
9. The above notwithstanding, We had inquired from Applicants if they
wished to be given time to reflect on the point. However, and as We have
already stated, they rejected the indulgence and elected to proceed to
address Us. We have elected to highlight the incident for the reason that
where a party claims to be unable to argue issuably to a point of law that
has been raised from the bar, the Court has a discretion to stay
proceedings to allow such a party to make the necessary preparations
and thus avert any form of prejudice that they may suffer as a result of
the element of a surprise.
10. Regarding the merits of the point of law, We have studied the letters of
dismissals, bearing annexure number FAWU. All letters in relation to the
dismissals of the 1st to 5th Applicants 7th to 9th Applicants, and 11th to
19th Applicants, though slightly different, relate to reason for dismissal
being misleading, disrespect and influencing others. In Our view, this
does not in any way suggest that these concerned Applicants partook in
act of strike, it being lawful or otherwise. Consequently, We find that We
do not have jurisdiction over their claims.
11. We say this because the only claims in respect of which We have the
power to determine, which involve dismissals are those that are,
(a) Based on participation in a strike,
(b) a consequence of a lock out; and
(c) those related to operational requirements
(see section 226(1)(c) of the Labour code Act (supra).
The claims of all other Applicants except the 6th and 10th are nowhere
near the requirements of section 226(1)(c).
12. We wish to comment that We are aware that this matter was referred
to this Court pursuant to an award which was issued on the 20th June
2012. Whereas, the learned Arbitrator had declined jurisdiction in that
award, for the reason that this matter involved a claim for dismissal for
participation in a strike action, the proper procedure would have been to
issue a conciliation report in terms of section 227(5), rather than to make
an award.
By this said, We call upon arbitrators to observe the
requirements of section 227(5) of the Labour Code Act (Supra).

Page 37 of 265

AWARD
In the light of the above said, We make an award in the following terms:
a) That this Court has no jurisdiction over the 1st to 5th Applicants, 7th to 9th
Applicants and 11th to 19th Applicants.
b) Claims of these Applicants are remitted to the DDPR for determination.
c) Applicants must obtain a date of hearing of the matter within 30 days of
issuance of this judgement.
d) The DDPR must give priority to the matter given its history and the
nature of the relief sought.
THUS DONE AND DATED AT MASERU ON THIS 16th DAY OF JUNE 2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MS. LEBITSA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. RASEKOAI
ADV. TLELASE

Page 38 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/13/2013

In the matter between:


MAKHOBOTLELA NKUEBE

APPLICANT

And
NKAU MATETE
METROPOLITAN LESOTHO LIMITED

1st RESPONDENT
2nd RESPONDENT

JUDGEMENT
Application for contempt and committal to jail. Court finding that Respondent
has complied with the order of this Court and therefore not in contempt.
Further, that it is neither unlawful nor uncommon for parties to reach
settlement over an order of court. Furthermore, that a settlement reached by
parties is final and binding upon them. Moreover, that once a settlement
agreement has been complied with, it puts an end to the matter and that no
party may revert to enforce the original order of Court. Application for contempt
and committal to jail being refused and no order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for contempt and committal to jail. Applicant had
lodged an unfair dismissal (operational requirements) claim with this
Court in LC/79/2006. Judgment was delivered in his favour on the 1st
December 2009 in the following,
(i) Retrenchment of applicant on 7th July 2006 with effect from 19th June
2006 was procedurally and substantively unfair.
(ii) The respondent is ordered to reinstate applicant to the position of
Regional Manager Central retrospectively to the date of acceptance of the
package offered for the post i.e. 7th July 2006 without loss of remuneration,
seniority or other entitlements or benefits.
(iii) The respondent shall pay applicant salary he would have earned from
the position from 7th July 2006 to date of reinstatement less the mitigated
losses of M31,000-00 which applicant said he received as Directors fees
amounting to M2,000-00 and Project Management fees of M24,000-00.
(iv) There is no order as to costs.
2. It is this judgement that Applicant seeks to enforce through contempt
proceedings. Specifically, Applicant seeks the following order,
Respondents to show cause (if any) why:

Page 39 of 265

a) The first and second respondents shall not be ordered to purge their
contempt failing which to show cause (if any) why they shall not be
committed to prison for contempt of court.
(b) The respondents herein shall not be directed to pay the costs of this
application in the event of opposing same.
(c) Granting applicant such further and/or alternative relief.
The matter was opposed and having heard the submissions of both
parties, Our judgment is in the following.
SUBMISSIONS
3. Applicants case is that subsequent to the judgment of this Court in
LC79/2006 (Annexure NK1), parties commenced negotiations on how to
execute the said judgment. During the negotiations, it transpired that the
position in issue had since been filled by someone else. As a result,
Applicant was offered the position of Regional Manager Lesotho Brokers
by Respondent. Reference was made to annexure NK3. It is Applicants
argument that this position offers less benefits than the initial position of
Regional Manager - Central and as such he rejected the offer. Reference
was made to NK4 and NK5 to highlight the difference in the benefits of
the two posts.
4. The rejection notwithstanding, Applicant went and worked in the rejected
position. His explanation for working in this position was that he was
trying to avoid appearing defiant. He submitted that while working in this
position, he continued to negotiate the package that he was offered under
the new position. Reference was made to annexure NK2. Ultimately, the
negotiations with Respondent failed and he then insisted on the terms of
the order of this Court (annexure NK1), with the Respondent.
5. It was submitted that having failed to comply with the said judgment, the
Respondent was contemptuous. The Court was referred to the case of
Motlalentoa & another v Tlokotsi C of A (CIV) 28 of 1991, wherein the
Court cited with approval the case of Fakie N.O v CCII Systems (Pty) Ltd
2006 (4) SA 326 (SCA), for the requirements in an application for
contempt. It was argued that the requisites are stated as thus,
the existence of the order of court,
service or notice of the order of court,
non-compliance with the order
wilful and mala fide defiance of the order.
6. It was argued that in terms of the above requisites, all that an applicant
party must do is to establish the existence of the order, service or notice
of same to the respondent party and that it has not been compliance
with. It was added that once an applicant party has satisfied these
requirements, the Respondent then bears the evidential burden to
establish that failure to comply was not wilful and mala fide. The Court
was referred to the case of Fakie N.O v CCII Systems (Pty) Ltd (supra) in
support of the proposition.
Page 40 of 265

7. The Court was further referred to the case of Namane Khotle v Security
Lesotho (Pty) Ltd LC/44/1998, where the Court stated that in determining
whether or not a party has been contemptuous, the Court can look at the
conduct of the parties. The Court was furthermore referred to the case of
Blandina License v Lerotholi Polytechnic LAC/CIV/05/2009, in support of
the same proposition. It was argued that the conduct of Respondent is
clearly one that is demonstrative of both wilfulness and mala fide failure
to comply with the order.
8. It was further argued that if Respondent was of the view that
reinstatement was not possible, it ought to have raised same with the
Court. Having failed to do so, this is no longer an issue as the order made
must then be executed as it is. It was argued that having made a
decision, the Court cannot change it. The Court was referred to the case
of Naidoo v Naidoo (1948 (3) SA 1178, which was cited with approval in
High Court of Lesotho judgment in Ntoi v Ntoi CIV/T/29/2009. Further
reference was made to the case of Retail Motor Industry Organisation v
Minister of Water & Environment Affairs ZASCA 70 (23 MAY 2013), in
support.
9. It was further submitted that as far as the emoluments that were
awarded to Applicant were concerned, Respondent used the wrong
formula to compute them. It was argued that the proper formula is as
appear under annexures NK6, NK7 and NK8. It was prayed that
Respondent be ordered to comply with the original order of this Court,
failing which, to be found to be in contempt and be committed to jail.
10. Respondents answer was that after the judgment in LC/79/2006,
parties commenced negotiations on how to best put the judgment into
effect. This was after it had become apparent that Respondent would not
be able to place Applicant in the position that he was initially. Out of the
negotiations was a settlement agreement which was reached on the 20th
September 2010. In terms of the settlement agreement, Applicant
accepted to be placed in the position of Regional Manager Lesotho
brokers, with a condition that he be given some form of compensated by
Respondent for the low level of commission in the new position.
11. Notwithstanding the fact that the condition of the reinstatement
agreement had not been met, Applicant resumed duties on the 1st
November 2010 as agreed. On the 16th November 2010, Respondent
communicated its position to Applicant that its offer to reinstate him was
final and that it was not willing to consider any compensation, over and
above the lost wages paid, as he had sought. In reaction, Applicant then
threatened to institute legal proceeding to enforce the original judgment
of this Court. However, such proceedings were never instituted. Rather,
Applicant continued to work in the same position of Regional Manager
Lesotho Brokers until he retired on 3rd August 2012. It was only after
about 7 months from the time of his retirement, that he proceeded with
this application.
Page 41 of 265

12. Respondent argued that Applicant clearly elected to be reinstated as


he was and cannot therefore be heard in law to claim not to have been
reinstated. The Court was referred to the case of Chamber of Mines of
South Africa v National Union of Mine Workers & another 1987 (1 ) SA 668
(A), where the following was said,
He must be allowed a reasonable time within which to make his
election. Still, make it he must, and having once made it he must abide by
it. In this, as in all cases of election, he cannot first take one road and then
turn back and take another. If an unequivocal act has been performed,
that is, an act which necessarily supposes an election in a particular
direction, that is conclusive proof of the electing having taken place.
13. It was submitted that the facts before Court clearly demonstrate that
the moment Respondent indicated its position not to give any form of
compensation to Applicant, over and above that paid, he was faced with
an option to either proceed to enforce the original order or to accept the
offer was made. Rather, Applicant in the end elected not to proceed to
enforce the original order but to accept the offer by Respondent. It was
added that in so doing he abandoned his right to take the dispute further.
The Court was referred to the case of Qhoboshiyane N.O v Acusa
Publishing 2013 (3) SA 315 (SCA) at 318E to 319A, in support.
14. It was added that on the basis of the narrated facts, Respondent has
not been contemptuous at all. It was argued that the test for contempt
was pointed out in the case of Lerotholi Polytechnic & another v Blandina
License C of A (CIV) 25 of 2009, as being whether a breach was committed
deliberately and mala fide. It was submitted that in casu, it cannot be
said that Respondent either acted in deliberate and mala fide
disobedience of the decision of this Court as Applicant was reinstated to
the position which he accepted and was also paid arrears which
Respondent believed were due to him. It was concluded that none of what
Respondent did constituted contempt and that the application be
dismissed with costs, as being frivolous.
ANALYSIS
15. We wish to confirm that the requirements in a claim for contempt and
committal to jail are as the Applicant has put. It is important at this stage
to highlight that these requirements must all be satisfied in order for
such a claim to succeed. We further wish to note that there is no doubt,
as the facts reveal, that there is an order of Court which has been
brought to the attention of the Respondent. What therefore remains in
dispute, and for determination, is whether the Respondents failed to
comply with the said order and whether their failure to do so was
deliberate and mala fide.
16. The evidence in casu, establishes that the order of the Court in issue
was not complied with. We say this because the order was specific that
Applicant must be reinstated in the position of Regional Manager
Central, whereas he was reinstated into the position of Regional Manager
Page 42 of 265

Lesotho Brokers. This is a clear flaunt of the order of Court as it falls


short of the specific directive given. In essence, this requirement has also
been successfully established by Applicant.
17. On the issues of both deliberate and mala fide defiance, We wish to
start by stating the correct position of the law. In law he who makes a
positive assertion is generally called upon to prove it with the effect that the
burden of proof generally lies on the person who seeks to alter the status
quo. Thus he who asserts the positive is the one with the burden of proof(
see Schwikkard, Principles of Evidence, 2nd Ed. At page 538). As a result, it
is not accurate that once an applicant party has satisfied the first three
requirements, then a respondent party bears the evidential burden to
establish that failure to comply was not wilful and mala fides. We wish to
further comment that this is also not a stated requirement in Fakie N.O v
CCII Systems (Pty) Ltd (supra). In law one cannot be expected to prove the
negative.
18. The evidence before Us has shown the complete absence of both
wilfulness and mala fide in the conduct of Respondent. We say this
because, rather than to enforce the judgment as it was, parties decided to
attempt to settle the matter, the result of which was the acceptance of
Applicant to take the alternative position of Regional Manager Lesotho
Brokers, which as We have already said was different from the position
awarded by the Court. This is essence demonstrates the absence of
contempt on the part of Respondent, as the requirements are short of the
latter requirement.
19. It is Our view that failure to comply with the original order was borne
by a shared view that parties had to consider an alternative placement for
Applicant. This cannot be said to be either deliberate, wilful and/or mala
fide flaunt of the Court order. Parties clearly believed that they were right
in taking this approach. Supportive of Our view is the decision in Fakie
N.O v CCII Systems (Pty) Ltd, where the Court had the following to say,
a deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled to act in the
way claimed to constitute the contempt. In such a case, good faith avoids
infraction. Even a refusal that is objectively unreasonable may be bona fide

20. Rather, in Our view, it is the conduct of Applicant that illustrates mala
fide in that he did not only accept the position of Regional Manager
Lesotho Brokers, but continued to work in that position unlit his
retirement. He was at all material times fully conscious of the position of
Respondent in relation to his reinstatement as well as payment of his lost
wages (emoluments). It is also Our view that not only has Respondent not
been contemptuous, but that the matter has been finalised by settlement.
It is neither uncommon nor is it wrong for parties to agree in a direction
that is different from that prescribed by the Court. This in Our view is
what the parties did in casu.
Page 43 of 265

21. We wish to comment further that having elected to be reinstated under


the conditions of Respondent, Applicant cannot in law turn back to claim
the enforcement of the initial order. We are in agreement with Respondent
that, in accepting to work under the terms of Respondent until his
resignation, Applicant by conduct, not only demonstrated his acceptance
that the matter had been finalised, but that he also abandoned his right
to enforce the original order of this Court. Applicant was at that stage, i.e.
when he made the election, aware that the benefits of the new position
were less favourable than those of the former position. The authorities
cited above, and specifically in Blandina Lisene v Lerotholi Polytechnic
(supra) and Qhoboshiyane N.O v Acusa Publishing (supra), are supportive
of this view.
22. We agree with Respondent that Applicant is therefore fully bound by
the election that he made (see chamber of Mines of South Africa v National
Union of Mine Workers & another (supra). In Our view, the situation would
have been different had Applicant proceeded to enforce the original Court
order in the subsistence of his employment with Respondent rather than
to wait until after his retirement. It took him from the 16th November
2010 until about 7 months after his retirement, which retirement was on
the 3rd August 2012, to approach this Court for relief. In Our view,
Applicants timing reduces his claim to no more than an afterthought and
fortifies the argument that the matter was finalised by settlement.
23. We further wish to comment that We are in agreement with Applicant
that Respondents ought to have pleaded impracticality of reinstatement
during the initial hearing. Having failed to do so, this Court becomes
functus officio that issue, as Applicant has put. Supportive of Our view is
the authority cited by Applicant, in Retail Motor Industry Organisation v
Minister of Water & Environment Affairs (supra). In explaining the doctrine
of functus officio, the Court relied on the quotation from the book of
Daniel Malan Pretorius The Origins of the Functus Officio Doctrine (2005)
122 SALJ 832 at 832, as follows,
The functus officio doctrine is one of the mechanisms by means of which
the law gives expression to the principle of finality. According to this
doctrine, a person who is vested with adjudicative or decision-making
powers may, as a general rule, exercise those powers only once in relation
to the same matter. The result is that one such a decision has been given, it
is (subject to any right of appeal to a superior body or functionary) final and
conclusive.
24. However, the Respondents defence in casu is not that reinstatement is
not practical but rather that it has complied with the order of this Court.
If the impracticality of reinstatement was the defence of Respondent, then
this Court would readily declare itself functus officio that issue.
Respondent claims to have reinstated Applicant in terms of a settlement
agreement reached between them and that it also paid him his lost
wages. Consequently, this point does not advance Applicants case for
contempt.
Page 44 of 265

COSTS
25. Both parties have prayed for costs but neither has attempted to
motivate their claim, at least to Our satisfaction. We have often held
before, that this is a Court of equity and fairness and that costs do not
automatically follow suit. Parties must motivate their claims for costs,
which motivation must in clear and explicit terms, demonstrate either
frivolity or vexatious conduct in the proceedings. As We has said, no such
motivation has been made before Us. As a result, We consequently
decline to award costs to either of the parties.
AWARD
We therefore make an award in the following terms:
a) That Respondents are not in contempt;
b) That this application fails; and
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 6th DAY OF MAY 2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. M. MOSEHLE
Mr. L. MATELA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENTS:

ADV. RAFONEKE
ADV. WOKER

Page 45 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/61/2013

IN THE MATTER BETWEEN


MANKETU MOELETSI
MALIEPOLLO KHOJANE
QOBETE LEUTA

1st APPLICANT
2nd APPLICANT
3rd APPLICANT

AND
DIRECTOR DEPARTMENT
OF RURAL WATER SUPPLY
P. S MINISTRY OF ENERGY,
METEOROLOGY & WATER AFFAIRS
MINISTER OF ENERGY, METEOROLOGY
& WATER AFFAIRS

1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT

JUDGMENT
Application for an interdict and a declaratory order. Requirements for both an
interdict and duress considered. Applicants failing to meet the requirements
for an interdict. Applicants further failing to establish duress/coercion.
Applicants claims failing to sustain. Court dismissing application and making
no order as to costs.
BACKGROUND OF THE ISSUE
1. This is an urgent application for a declaratory order in the following
terms,
1. That the rules of this court pertaining to normal modes and periods of
service be dispensed with on account of urgency hereof.
2. A rule nisi be and is hereby issued returnable on the date and time to be
determined by this Honourable Court calling upon the respondents to show
cause (if any) why an order in the following terms shall not be made final:(a) That the unlawful termination of applicants employment contracts
effective 1st September 2013 in terms of letter of 25th and 30th issued by
1st respondent be stayed and 1st respondent be ordered to continue to
renew applicants into service and pay their salaries accordingly
pending finalisation of this matter.
(b) That the respondents be restrained and interdicted from their
unlawful conduct of coercing or forcing or compelling or inducing
applicants consent to sign new contracts which-negatively vary their
current terms except by following due process of the law pending
finalisation of this matter.
Page 46 of 265

(c) That the respondents conduct of coercing or forcing or compelling or


inducing applicants consent to sign new employment contracts which
negatively vary their current terms of employment be declared unlawful.
(d) That respondents pay costs at attorney and own client scale only in
the event of opposition.
(e) That applicants be granted such further and or alternative relief as
the Honourable Court may deem fit in the interest of fairness.
3. That prayers 1, 2(a) and (b) should operate with immediate effect as
interim orders.
2. By agreement of both parties, We granted prayers 1 and 2(a) to operate as
interim pending finalisation of this matter. Parties were then put to
terms regarding the filing of remaining pleadings. Respondent had in its
answer raised a number of points limine which were later withdrawn in
favour of the merits of the matter. Having heard the submissions of
parties in the merits, Our judgement is thus in the following.
SUBMISSIONS
3. Applicants claim was that on or around the 2nd May 2013, they were
called to a meeting by 1st Respondent where at a copy of a unilateral
contract was presented to them for their signature. The Court was
referred to annexure MM2, which is the said contract. The Applicants
refused to sign the said contract mainly for two reasons, that they had
not been consulted prior to the presentation of the contract and that it
made them worse off in comparison to their then or earlier contracts
signed in 2006.
4. It was submitted that during the said meeting, it had also been said that
those who would not sign the new contracts would not be paid any
salaries from June 2013. They were indeed not paid any salaries in June
and in reaction to that, they caused their attorneys of record to write a
letter to respondents to demand payment of same. It was only after that
they were paid their June salaries, in July, together with those of July.
The Court was referred to MM3 which is the said letter of demand.
5. It was further submitted that immediately thereafter, Applicants were
given letters terminating their employment contracts and an ultimatum
that they sign the new contracts within month of receipt of the said
ultimatums. The Court was referred to MM4 being copies of the said
letters. It was argued that both the letter of termination and ultimatum to
sign, are an act of coercion on their part to sign the new contracts, to
which they are opposed. It was prayed this conduct on the part of the
employer is unlawful and stands to be declared as such and that the
Respondents be interdicted from coercing the Applicants to sign the new
contracts.
Page 47 of 265

6. The Court was referred to the cases of Setlogelo v Setlogelo 1914 AD 221;
Knox v DArcy Ltd & others v Jamieson & others 1955 (2) SA 579 (WLD);
Sanachem (Pty) Ltd v Farmers Agri-care (Pty) Ltd & others 1995 (2) SA 781
(A); Bull v Minister of State Security & others 1987 (1) SA 422 (ZH); and
Gossschalk v Rossouw 1996 (2) SA 476 (C), for the requirements of an
interdict. These were said to be the following,
1) A clear right;
2) A well-founded fear or apprehension that harm will be caused by
Respondents; and
3) That here is no other adequate remedy available to Applicants.
7. The Court was further referred to the cases of Law Society of Lesotho v
Minister of Defence and Internal Security & another CIV/APN/111/1986;
Motlhala v The Attorney General 2006 (1) BLLR 282 (CA); Bulawayo
Municipality v Bulawayo Indian Sports Ground Committee 1956 (1) SA 34
(SR); Ex parte Ginsberg 1936 TPD 155; and section 24(2)(d) of the Labour
Code (Amendment) Act 3 of 2000, for the circumstances under which a
declaratory order may be sought. It was said that they include where
there is a concrete controversy involving an actual invasion of a persons
right. It was argued that on the face of the admitted facts alone,
Respondents conduct constitutes an act of coercion or duress and thus
violates the rights of Applicants.
8. It was added that Applicants have made out a case for an interdict in that
they have demonstrated a clear right to their initial contract of
employment. Further, that they have established a well-founded
apprehension of harm in that their employer is coercing them into a
prejudicial contract than the one that they have. Lastly, that they have
established that there is no adequate remedy in the event that this Court
does not grant them the relief sought.
9. Respondents answered that Applicants contracts of employment were
terminated because the donor to the project from which their salaries
were sourced, had since stopped providing funds. As a result there were
no funds from which the salaries of Applicants were to be paid. It was
added that the meeting of the 2nd May 2013, was a consultative meeting
wherein, they were appraised of the situation. They were in that meeting
offered new contracts of employment.
10. In the said meeting Applicants were told that those who would not
accept the contracts would not be paid, hence the non-payment of the
Applicants salaries in June, as they had not accepted the new contracts.
Formal letters of termination were issued against those who did not
accept the new contracts together with an ultimatum to sign if they
wished.
11. It was denied that both the termination letters and ultimatums were
an act of coercion on the part of Applicants, as they had the freedom to
either accept or refuse the new contracts, after their old contracts had
Page 48 of 265

terminated. It was submitted that in order for one to succeed in a claim


for duress or coercion, they must establish the following requirements,
1. Fear must be reasonable;
2. It must be caused by threat of some considerable evil to the person
concerned or his family;
3. It must be threat of an imminent or inevitable evil;
4. The threat or intimidation must be unlawful or contra bonos mores;
and
5. The moral pressure used must have caused damage.
The Court was referred to the case of Arend & another v Astra Furnishers
(Pty) Ltd 1974 (1) SA 298 (C), for these requirements.
12. It was denied that the Applicants have met the above requirements. It
was said that Applicants only claim that the termination letters and the
ultimatums were intended to render Applicants desperate and make them
feel coerced into accepting the new contracts of employment. It was
categorically denied that the Respondents were coercing the Applicants in
any manner but that they were merely offering them new employment so
that they may continue to be paid. It was prayed that the application be
dismissed as it was devoid of merit.
13. It was argued Applicants have failed to meet the requirements for an
interdict in that they have failed to show a clear right as their alleged
right is based on the contracts which were lawfully terminated. Further
that owing to absence of a clear right, Applicants have no right to protect
and thus cannot suffer any prejudice from the conduct of Respondents. It
was furthermore submitted that Applicants have other alternative
remedies among which is the exercise of their right not to accept the
newly offered contracts of employment. It was submitted that on the basis
of these said, Applicants have not met the requirements for an interdict.
14. Applicants substantive relief lies in prayers (b) and (c) of their Notice of
Motion that the respondents be restrained and interdicted from their
unlawful conduct of coercing or forcing or compelling or inducing applicants
consent to sign new contracts which-negatively vary their current terms
except by following due process of the law pending finalisation of this
matter and that the respondents conduct of coercing or forcing or
compelling or inducing applicants consent to sing new employment
contracts which negatively vary their current terms of employment be
declared unlawful. In order to address these claims, We must first
determine if the conduct of the Respondent to both terminate and place
ultimatums to sign the contracts amounts to coercion to contract.
15. Coercion, which is also duress, relates to an unlawful threat of harm
which is meant to induce another party to contract (see C.G. Van der
Merwe and S.E. Duppleis in the book entitled Introduction to the law of
South Africa, 2004 found in Law International at page 248). The elements
thereof have been correctly noted by Respondents from the authority of
Arend & another v Astra Furnishers (Pty) Ltd (supra). This authority has
Page 49 of 265

been cited with approval within Our jurisdiction by the Court of Appeal in
Pitso Selogile v Total (Pty) Ltd C of A 27/2010.
16. The labour law of Lesotho provides for two ways through which a
contract of employment can be terminated. These are at the instance of
the employer or at the instance of the employee. It is the evidence of both
parties that the Respondents terminated the employment contracts of
Applicants through a letter marked MM4. Clearly termination occurred
and it was at the instance of the Respondents.
17. If this is the case, We are of the view that the Respondents were within
their right to terminate the contracts of employment of Applicants, as the
law contemplates and permits same. Therefore there is nothing unlawful
in the conduct of termination of the Applicants employment. Care
should be taken that by this, We are not suggesting that termination of
Applicants contracts of employment was either fair or unfair. This is an
issue for determination in another forum, that is different from the one in
casu.
18. Regarding the ultimatum to sign the new contracts, We are in
agreement with Respondents that it did not coerce applicants to contract.
We say this because, Applicants had an option to either comply with the
ultimatum or not to, which is what they elected to do hence the nonpayment of salaries to them in June. In fact, We are satisfied in the
explanation given by Respondents regarding the issuance of the
ultimatums. We therefore find that the ultimatums did not constitute an
act of coercion as they were not unlawful.
19. Even when taken together, both the termination and ultimatums do
not amount to coercion. We say this because We have not found any
illegality in them or their conduct, in as much as Applicants have failed to
demonstrate the alleged unlawful or illegal use of both, or each one of
them. What is clear in casu, is that Respondents terminated the
contracts of employment of Applicants, for the reasons which they
advanced and offered them new contracts with terms regarding their
acceptance.
20. Regarding the requirements for an interdict, We are also in agreement
with Respondents that applicants have failed to meet them. Applicants
have not established a prima facie illegality in the termination of their
contracts that warrants interference with the termination of their
contracts. As Respondents have right argued, without a clear right, there
is no right to protect and therefore, there cannot be any prejudice
suffered or to be suffered. We are also of the view that Applicants have
alternative remedies to the conduct complaint of, such as the referral of
an unfair dismissal claim with the DDPR or refusal to accept the new
contracts and insistence of the old ones.

Page 50 of 265

21. In essence, the requirements spelled out, by Applicants, in Setlogelo v


Setlogelo (supra) and the other supporting authorities, for an interdict and
in the Law society of Lesotho v Minster of Defence and Internal Security &
another (supra) and the supporting authorities, have not been met. On
the strength of the above reasons, We find no merit in this application.
AWARD
We therefore make an award in the following:
a) That this application is dismissed;
b) That the rule nisi earlier issued is discharged; and
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 16th DAY OF JUNE 2014
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. THAKALEKOALA
MRS. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR RESPONDENTS:

ADV. TLHOELI
ADV. MOSHOESHOE
ASSISTED BY
ADV. MOKHENA

Page 51 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/57/2013
A1144/2012

IN THE MATTER BETWEEN


NTHABELENG NTEKHE

APPLICANT

AND
LPKM MOTORS/VISION MOTORS
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application of the review of the arbitration award. Applicant raising only one
grounds of review that Arbitrator failed to consider and apply Her mind to all
her claims. Court finding that the alleged claims were not referred before
Arbitration but only raised for the first time on review. Further finding that
Arbitrator was right not to consider such claims. Court not finding merit in
review and refusing same. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A1144/2012. The brief background of the matter is that Applicant was
an employee of Respondent until her dismissal for misconduct. She had
then, following her dismissal, referred a claim for unfair dismissal with
the 3rd Respondent. An award was issued on the 15th March 2013,
wherein her referral and claim were dismissed. It is this award that she
wishes to have reviewed, corrected and set aside. Having heard the
submissions of parties, Our judgment is thus as follows.
SUBMISSIONS AND ANALYSIS
2. Applicants case is that the learned Arbitrator erred in that She failed to
consider and apply Her mind to the procedural fairness of Applicants
dismissal.
It was argued that Applicant had challenged both the
substantive and the procedural fairness of her dismissal. However, and
to her dismay, the learned Arbitrator only considered the substantive
aspect of her dismissal to the exclusion of the procedural aspect. It was
added that had the learned Arbitrator considered both aspects, She
would have found the dismissal to have been unfair on account of the fact
that Applicant was denied the opportunity to defend herself against the
allegations made towards her. It was submitted that annexure MM1,
which is the letter of dismissal, shows that Applicant was denied a
hearing.
Page 52 of 265

3. It was further claimed that the learned Arbitrator erred by not


considering the fact that Applicant was owed her wages for the period
that she was on suspension. It was submitted that evidence showed that
Applicant was suspended indefinitely and that she was only paid her
salaries in January 2012 and not thereafter. The Court was referred to
annexures NN2 and NN3.
4. In answer, 2nd Respondent submitted that the claim before the learned
Arbitrator related only to the substantive fairness of the Applicants
dismissal. It was said that as a result, the learned Arbitrator only
confined Her analysis to the claims before Her. It was added that if the
learned Arbitrator had considered the procedural aspect of the dismissal
of Applicant, She would have misdirected herself.
5. On the second issue, it was submitted the claim before the learned
Arbitrator was an unfair dismissal claim which had not been coupled
with any other claim. As a result, and in the same vein, the learned
Arbitrator only confined Herself to the claims before Her, for if She had
not, She would have misdirected Herself. It was denied that Applicant
was owed any monies.
6. It was further submitted that in law a party cannot raise a new claim for
the first time on review, which is what Applicant is attempting to do. The
Court was referred to paragraphs 2 and 6 to illustrate that the case
before the 2nd respondent was an unfair dismissal case, premised only on
the substantive aspect of the dismissal.
7. We have carefully considered both the arbitration award, the pleadings
and submissions of parties. We do confirm that the record affirms the 1st
Respondent position that the referred claim was aimed at challenging
only the substantive aspect of the Applicants dismissal. This is clear
from paragraph 2 of the arbitration award where the following is
recorded, under the background to the dispute,
applicant contends that her dismissal was substantively unfair.
8. This being the case there is no procedural irregularity on the part of the
learned Arbitrator as She only considered and applied Her mind, rightly
so, to the claim before Her. We do confirm that if She had gone beyond
the substantive fairness of the Applicants dismissal, that would have
been an irregular step as She would have exited the bounds of Her
powers.
9. On the second claim, and in the same vein, the record confirms that the
referred claim related to the fairness or otherwise of the dismissal of
Applicant. This is captured under the introductory paragraph of the
arbitration award as thus,
Applicant referred a dispute for unfair dismissal to the Directorate of
Dispute Prevention and Resolution on 31st October 2012.

Page 53 of 265

10. The above being the case, the learned Arbitrator was right not to
consider the issue of the unpaid wages of Applicant while on suspension.
We have already pronounced Ourselves over the obligations of the learned
Arbitrator in these circumstances and therefore see no need to reiterate
on the issue. Our conclusion is premised on the remarks of the learned
Mosito AJ in Thabo Mohlobo & others v Lesotho Highlands Development
Authority (supra), as thus
The authority of an arbitrator is confined to resolving the dispute that has
been submitted for resolution and an award that falls outside that
authority will be invalid.
11. We wish to comment that We agree with 1st Respondent that Applicant
is attempting to bring in new claims for the first time on review. As We
have already determined, both the procedural aspect of Applicants
dismissal and the unpaid wages claims were never part of the claims in
the proceedings before the 2nd Respondent. We have stated before that
this practice is forbidden in review proceedings as it is contrary to the
principle of audi alteram partem (see Phakiso Ranooana v Lesotho Flour
Mills (Pty) Ltd & another LC/REV/59/2011; Zinyathi Trading (Pty) Ltd v
DDPR & others LC/REV/11/2013) . The principle of audi alteram partem
applies both ways, that is, it must be afforded to all parties concerned
and that includes the learned Arbitrator. By this We essentially mean
that the two issues should have been raised with the learned Arbitrator to
give Her the opportunity to address them.
AWARD
We therefore make an award in the following terms:
a) The review application is refused;
b) The award in referral A1144/12 remains in effect; and
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 16th DAY OF JUNE 2014
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR KAO

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. SEKATLE
ADV. MABULA

Page 54 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/11/2013
A0896/2012

In the matter between:


ZINYATHI TRADING (PTY) LTD

APPLICANT

And
DDPR
MOSITO MOELETSI
MAKHOANA KHENENE
MALEFANE KOBOKHOLO
THABANG MATLI
TELISO MOKATI
TUMELO MORAKABI
MOTLALEPUSO RAPOTSANE

1st RESPONDENT
2nd RESPONDENT
3Rd RESPONDENT
4th RESPONDENT
5th RESPONDENT
6th RESPONDENT
7th RESPONDENT
8th RESPONDENT

JUDGMENT
Application for review of arbitration award. Applicant having raised six
grounds of review. All grounds failing and review application being dismissed.
No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for the review of the 1st Respondent arbitration
award in referral A0896/2012. It was heard and judgment was reserved
for a later date. The facts surrounding the matter are that 2nd to 8th
Respondents were employees of 1st Respondent until they were dismissed
for misconduct. Thereafter, they referred a claim for unfair dismissal with
1st Respondent. The matter was duly heard, after which an award was
issued in favour of the 2nd to 8th Respondents. In terms of the award,
Applicant was directed to pay 2nd to 8th Respondents, each an amount
equal to their 6 months wages in compensation. It is this award that the
Applicant wishes to have reviewed, corrected and/or set aside.
2. At the commencement of the proceedings, parties noted that they no
longer wished to pursue the points of law raised in their pleadings in
favour of the merits of the matter. The Court noted and accepted the
parties proposal and directed that they proceed to address the merits.
Having heard their submissions and having considered their pleadings,
Our judgment is therefore in the following.

Page 55 of 265

SUBMISSIONS OF PARTIES
3. It was Applicants case that the learned Arbitrator had erred by
concluding that the dispute was right based when in fact it was an
interest based dispute. It was argued in amplification that the
Respondents were dismissed for embarking on a strike. The Court was
referred to page 5 of the record of proceedings where the following is
recorded,
Before this issue the workers did work until two oclock and after that
they took the lunch and went home. Seven people out of three hundred and
twenty people said we will not work if we did not eat. You have to
understand that the law is very clear on that matter to say that there must
be a break after five hours for one hour if they worked continuously for five
hours but there must be a mutual agreement between the employees and
employer which were signed and thats why we stated that it is not unfair
dismissal. There was agreement signed between employees and
employers. So, on that I am finished.
4. Respondent rejected the Applicants case on the ground that it was never
Applicants case that Respondents had been dismissed for participation in
a strike. It was added that in the arbitration hearing, parties had agreed
on the factual issues, to which dismissal for participation in a strike was
not an issue. It was submitted that it was from these issues that parties
made submissions. It was rejected that the quoted extract indicated that
the Respondents were dismissed for participation in an illegal strike.
5. We are in agreement with Respondents that nothing in the quoted extract
either indicates, suggests or even gives the impression that Respondents
were dismissed for participation in a strike. Rather, it merely illustrates
that they refused to work continuously for more than five hours without a
break. Further, there is nothing in the argument of Applicant that
indicates a procedural breach on the part of the learned Arbitrator, in
making a conclusion that the dispute in issue was right based as opposed
to interest based. Rather, what is clear to Us is that Applicant is merely
unhappy with the decision of the learned Arbitrator, as it specially
challenges the conclusion.
6. It is trite law that mere unhappiness with the decision is not a ground for
review. Rather for an unhappiness with the decision to sustain as a
review grounds it must establish the absence of a rational connection
between the facts presented and the decision made (see Carephone (Pty)
Ltd v Marcus NO & 7 others (1998) 11 BLLR 1093 (LAC) at 1103). In casu,
no irrationality has been suggested in the finding, and We also find none
from both the quoted extract and the decision of the learned Arbitrator.
The quotation from the extract does not paint the alleged picture by
Applicant. The Applicants argument simply cannot sustain.
7. Further, Respondent does not deny or reject the suggestion that the
defence that Respondents were engaged in a strike is only being raised for
the first time on review. If this is the case, the proceedings before this
Page 56 of 265

Court are an improper forum to canvass this point. We have stated before
that the maxim of audi alteram partem applies both ways, that is, it must
be afforded to all parties concerned and that includes the learned
Arbitrator. By this We mean that the issue should have been raised with
the learned Arbitrator to give Her the opportunity to address it. We have
stated this position in Phakiso Ranooana v Lesotho Flour Mills (Pty) Ltd &
another LC/REV/59/2011, where We relied on the finding of the Court of
Appeal in Puleng Mathibeli v Sun International 1999-2000 LLR-LB 374
(CA)).
8. The second ground of review was that the learned Arbitrator erred and
misdirected herself by failing to explain the implications of a prearbitration conference to Applicant. It was submitted that owing to this
omission on the part of the learned Arbitrator, Applicant left out some of
his crucial evidence and that this delivered a fatal blow to his case.
9. In answer, Respondent submitted that the learned Arbitrator explained
the process to both parties. It was argued that if Applicant did not fully
appreciate the process, it ought to have raised it with the learned
Arbitrator immediately after the explanation was given. It was further
argued that Applicant cannot plead ignorance over something that he had
ample opportunity to have cleared. It was further submitted that, even
still, ignorance of the law is no excuse In Lesotho. It was added that a
pre-arbitration conference is provided for and explained in the Labour
Code.
10. It was further submitted that Applicant is attempting to challenge the
pre-arbitration minutes to which it is a signatory. It was said that by
appending its signature to same, it signalled its consent and agreement to
the contents of the said minutes. It was added that Respondent is in law
barred from any attempt to renege against what it attested to.
11. A pre-arbitration conference is held in terms of Regulation 22 of the
Labour Code (DDPR) Regulation of 2001. Indeed as Respondent has put,
the said section outlines the pre-arbitration process and its purpose.
Applicant is an employer and as such it is enjoined in law to acquaint
itself with the applicable laws to its trade. As a result, Respondent cannot
be heard to claim ignorance to the labour laws of Lesotho and this
includes the Rules and Regulations. Our conclusion finds support in the
High Court of Lesotho Authority in Linkoe FC v LEFA & others
CIV/APN/1/1994, where an applicant party had pleaded ignorance of the
rules applicable to the disputed issue. In rejecting this defence, the Court
relied on the principle that ignorance of the law is no excuse.
12. Further, Applicant has not denied the allegation that the process and
purpose of the conference were explained to parties by the learned
Arbitrator. If this is so, then We agree with Respondent that Applicant
had ample opportunity to seek clarity from the learned Arbitrator if it did
not fully appreciate the pre-arbitration procedure. We are therefore drawn
Page 57 of 265

to the conclusion that Applicant is attempting to use these proceedings to


avoid what it committed itself to. We simply cannot allow this practice as
that would unduly undermine the principle of caveat subscriptor, i.e., that
once an agreement has been reduced to writing and signed by parties,
then parties are bound by the terms contained therein as signature
signifies assent thereto (see Burger v Central South African Railways 1903
T.S. 571, cited with approval in High Court of Lesotho decision in Letuka
v Motinyane and others CIV/APN/340/2001.
13. The third ground of review is that the learned Arbitrator erred by not
giving Applicant the opportunity to lead evidence explaining why workers
were told to work more than 5 hours without a break. It was argued that
the learned Arbitrator only restricted the parties to the fairness of
otherwise of the dismissals of Respondents. The Court was referred to
page 3 of the record of proceedings where the following is recorded,
The only matter that is in dispute is whether the dismissal of the
applicants was fair or not. What is going to happen is that the parties are
going to give their submission to the court as to whether the dismissal was
fair or not.
14. In answer, Respondent submitted that Applicant was not denied the
opportunity to lead evidence. Rather, all the evidence of parties was noted
in the pre-arbitration minutes and that that at arbitration, all that parties
needed to do was to make legal submissions over both the agreed and
disputed facts. It was added that Applicants had a chance to make
submissions and that this is reflected from pages 3 to 5 of the DDPR
record of proceedings.
15. We have perused the said record of proceedings in the above referred
pages. Although the quoted extract on page 3 of the record suggests that
parties would not lead any evidence but only submissions, the
subsequent parts of the record that run up to page 5, indicate that
Applicant lead evidence, and not only so but without any interruptions on
the part of either the learned Arbitrator or Respondents. Further, it is not
Applicants case that it had referred other claims other than an unfair
dismissal claim. The statement of the learned Arbitrator would be found
to be restrictive, in the sense suggested by Applicant, if it had referred
other claims other than an unfair dismissal claim. As a result, We are
inclined to agree with Respondents that Applicant was not denied the
opportunity to lead evidence.
16. The fourth ground of review is that the learned Arbitrator erred and
misdirected herself by not taking into consideration the evidence of
Applicant that parties had agreed that workers should work for more
than 5 continuous hours without a break and why such agreement was
reached. It was said that this evidence was not included in the prearbitration conference minutes and further that the learned Arbitrator
disallowed Applicant from leading same. It was added that the said

Page 58 of 265

evidence is in the form of a collective agreement and is annexed as exhibit


ZT2 to the notice of motion.
17. Respondent replied that it is inaccurate that Applicant was disallowed
from leading any evidence at all. It was added that even if ZT2 had been
led, the learned Arbitration would have found that the said agreement
was unlawful as it was contrary to the provisions of the Labour Code. As
a result, the said evidence, even if considered, would not have advanced
the Applicants case at all. It was further submitted that the said evidence
would have been irrelevant as it was meant to explain why the agreement
to work for more than 5 hours was reached, whereas the case for
determination was an unfair dismissal claim.
18. We have already made a determination that Applicant was not
prevented from leading any evidence at all, to support its defence. What is
clear is that the evidence in issue, i.e. annexure ZT2, did not form part of
the evidence before the learned Arbitrator. What is further clear is that
the learned Arbitrator did not consider that evidence, as it was not led
before Her. It is Our view that the learned Arbitrator was right in not
considering the said evidence. She could not have been expected to
consider what was not brought before Her for consideration.
Consequently, she did not commit any irregularity.
19. We wish to state that We agree with Respondent that even if the
agreement had been tendered as part of the Applicants case, it would
have been irrelevant to Applicants case, specifically in the light of the
purpose for which it was meant. Further, assuming that it were tendered
and considered, the learned Arbitrator would have been bound by the
provisions of section 118(2) of the Labour Code Order 24 of 1992, to find
the said agreement invalid. The said section provides as follows,
No employee shall be required to work continuously for more than five
hours without being given a rest period from work of not less than one hour
during which time he or she shall not be required or permitted to perform
any work.
20. The fifth ground of review is that the learned Arbitrator erred in
awarding six months wages, when Respondent did not ask for same. It
was said that Respondent just asked for compensation and not the
wages. It was said that in giving six months wages, the learned Arbitrator
awarded Respondent what they had not asked for and that She did so on
Her own motion. It was argued that in so doing, the learned Arbitrator
committed a grave irregularity.
21. In answer, Respondents submitted that they had sought compensation
in terms of section 73 of the Labour Code and that this is what the
learned Arbitrator awarded. It was said that the six months wages were
what the learned Arbitrator considered to be just fair and equitable under
the circumstances of the case before Her. It was added that in making

Page 59 of 265

this award, the learned Arbitrator exercised the discretion duly conferred
upon Her by the law, judiciously.
22. Section 73 of the Labour Code Order (supra) makes provision for
remedies that are available to parties in a claim for unfair dismissal.
There are two remedies namely reinstatement or compensation. The said
section specifically provides as follows,
(1) If the Labour Court holds the dismissal to be unfair, it shall, if the
employee so wishes, order the reinstatement of the employee in his or her
job without loss of remuneration, seniority or other entailments or benefits
which the employee would have received had there been no dismissal. The
Court shall not make such an order if it considers reinstatement of the
employee to be impractical in the light of the circumstances.
(2) If the Court decides that it is impracticable in the light of the
circumstances for the employer to reinstate the employee in employment, or
if the employee does not wish reinstatement the Court shall fix an amount
of compensation to be awarded to the employee in lieu of reinstatement.
The amount of compensation awarded by the Labour Court shall be such
amount as the court considers just and equitable in all circumstances of the
case.
23. The provisions of section 73, vest a wide discretion on the learned
Arbitrator to determine the amount of compensation, where it is clear
that reinstatement is not practical or is not desired. This essentially
means that the learned Arbitrator can fix any amount as compensation
provided that Her discretion in so doing is exercised judiciously. In casu,
the learned Arbitrator has, in Her own wisdom, decided to award to
Respondents compensation equal to six months wages of Respondents.
She clearly exercised Her discretion in making this award. We therefore
find that She acted within Her scope of authority and that there is no
irregularity committed.
24. The last ground of review was that the learned Arbitrator erred by
allowing hearsay evidence. In amplification, it was submitted that the
learned Arbitrator allowed one Hlalefang Seoa-Holimo to lead evidence of
what he had been told, something in respect of which he had no firsthand knowledge. The Court was referred to page 7 of the record where the
said witness is said to have lead evidence. It was submitted in addition
that, it is clear from the evidence contained at that page that Seoa-Holimo
testified to what he had been told. It was said that the evidence was
considered by the learned Arbitrator in making Her award at page 5 of the
arbitration award, specifically at paragraph 12.
25. In answer, Respondent submitted that it led no evidence at all during
the arbitration proceedings. Rather, Respondent stated that what it did
was to make legal submissions over the facts, i.e. both accepted and
disputes facts, as contained in the pre-arbitration conference minutes.
The Court was referred to page 3 of the record of DDPR proceedings to the
Page 60 of 265

effect that at arbitration, all that parties had to do was to make legal
submissions. At page 3 of the record, the Court was specifically referred
to the following record,
What is going to happen is that the parties are going to give their
submission to the court as to whether the dismissal was fair or not.
26. We wish to state that the admission of hearsay evidence is a
reviewable irregularity. However, upon Our perused page 7 of the record
and We have not found anywhere where what is said, whether in
submission as Respondent alleges or as evidence, indicates hearsay. We
say this because, hearsay evidence relates to statement of fact that is
made by a party who is not before court, which statement is tendered by
a party that is before court, to prove the truthfulness of that statement
(see Schwikkard & van Der Merwe (2009), Principles of Evidence, Juta &
Co.).
27. Our perusal of the record has revealed that Mr. Seoa-Holimo was
relating what he knows as in some instances he uses the first person, in
which case he refers to himself as having taken part, or the second
person, in which case he refers to himself as having taken part with
others. We do confirm that this said at page 7 of the record, has been
considered by the learned Arbitrator in Her arbitration award. However,
in view of Our finding that it does not constitute hearsay, We do not find
any irregularity on the part of the learned Arbitrator, at least as
suggested by Applicant.
AWARD
Our award is therefore in the following terms:
a) That the application for review is refused;
b) The award in referral A0896/2012 remains in effect; and
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 19th DAY OF MAY 2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. MALOISANE
Mr. MATELA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 2nd TO 8th RESPONDENTS:

ADV. TOLO
MR. SESINYI

Page 61 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/30/2013
A0735/2012

In the matter between:


LITEBOHO PHAILA
RETSELISITSOE NTEPELLE
RETSELISITSOE MABETHA
THABISO MAKOSHOLO

1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT

And
STALLION SECURITY (PTY) LTD
DDPR-ARBITRATOR N. MOSAE

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. One ground of review having been
raised that the learned Arbitrator ignored the evidence of Applicant. Court
finding that the learned Arbitration ignored the evidence of Applicant.
However, Court finding that even if considered, the ignored evidence would
not influence the finding of the learned Arbitrator in favour of Applicant. Court
dismissing the review application. No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for the review of the 2nd Respondent arbitration
award in referral A0735/2012. Only one ground of review has been raised
on behalf of the Applicants. The matter was heard and finalised on the
scheduled date of hearing and both parties were in attendance and/or
represented.
2. The background of the matter is that Applicants had referred claims for
underpayments, non-payment of night shift allowance and unpaid public
holidays. An award was issued by the learned Arbitrator on the 28th
January 2013, in terms of which the first two claims of Applicants were
dismissed while the last one was granted. It is this award that Applicants
wish to have reviewed, corrected and/or set aside.
3. We wish to note at this stage that at the commencement of the
proceedings, We mero muto indicated to parties that We had realised that
Applicants had raised a new review ground for the first time in reply to
Respondents answer. We directed parties to address Us as to whether it
was proper to do so. Both parties made presentations but in the end
agreed that the concerned ground would not be pursued, and rather that
Applicants would only proceed on the basis of the grounds as appear in
Page 62 of 265

their founding affidavit. It is in the light of this background that We now


proceed to deal with the matter.
SUBMISSIONS OF PARTIES
4. It was Applicants case that the learned Arbitrator erred in that He
disregarded their evidence establishing that the exemption certificate
granted to Leteng Diamond Mine (Leteng) by the Minister of Labour and
Employment (the Minister), was also applicable to the Respondent as a
subcontractor to Leteng. Specific reference was made to annexure A to
the Applicants founding affidavit, which is a copy of the minutes of the
meeting between Leteng and the Minister, in support.
5. Further reference was made to annexure B, which is an affidavit by the
Labour Commissioner wherein she is alleged to have clarified the
application of the exemption certificate to extend to Respondent company.
It was argued that the affidavit of the Labour Commissioner contained
facts drawn from the meeting that lead to annexure A. Further that the
effect of the said affidavit was to correct the exemption certificate by
extending its application to Applicants.
6. It was argued that having disregarded this evidence, the learned
Arbitrator made a wrong conclusion that the exemption certificate did not
apply to Respondents company and therefore to Applicants. It was
submitted that if the learned Arbitrator had not disregarded the said
evidence, He would have found that the exemption certificate applied to
Applicants. It was prayed on these bases that the Court find the learned
Arbitrator to have erred and to consequently grant the review application
and remit the matter to the DDPR to be heard de novo.
7. Respondents case was that the learned Arbitrator did not disregard the
evidence of Applicants at all. It was submitted that the evidence relating
to Annexures A, was considered but rejected by the learned Arbitrator for
want of merit. It was argued that the said minutes (annexure A), did not
vary the exemption certificate hence the decision of the learned Arbitrator
to reject it. Specific reference was made to annexure SS1 to the
Respondents answer, which is the exemption certificate, and to the
arbitration award, which is annexure D to the Applicants founding
affidavit.
8. It was further Respondents case that the Labour Commissioner was a
witness in the proceedings before the 2nd Respondent and that She either
testified as to the contents of the said affidavit and/or ought to have
testified as to same, if at all such evidence was important to the
Applicants case. It was argued that even if the Court were to find that the
affidavit was ignored, its contents were a mere opinion of the Labour
Commissioner regarding the application of the exemption certificate,
which would not in any way be binding on the learned Arbitrator.

Page 63 of 265

9. It was submitted that on the basis of the above arguments, the learned
Arbitrator was right in making a conclusion that the exemption certificate
was not applicable to Respondent and therefore Applicants. The Court
was referred to the said certificate, annexure SS1f, in particular to clause
3.1, which the learned Arbitrator relied upon in making a conclusion that
the certificate was not applicable to Applicants. It was concluded that on
the basis of this clause the learned Arbitrator was bound to make a
conclusion that the exemption did not apply to Applicants. It was prayed
that on these bases, the review application be dismissed.
ANALYSIS
10. We have gone through the arbitration award and have noted that there
is nowhere in the award where the learned Arbitrator appears to have
considered both annexure A or B. The conclusion that the certificate of
exemption does not apply to Applicants is based on the fact that clause
3.1 of the said certificate expressly provides that the said certificate
applies to Leteng. This is captured under paragraph 8 of the arbitration
award. We are therefore drawn to agree with Applicants that their
evidence was disregarded as they allege.
11. The next issue is whether the failure by the learned Arbitrator to
regard the evidence of the applicants warrants the review and setting
aside of the arbitrator award. To answer this question, We must consider
the probative effect of the disregarded evidence on the conclusion made.
Put differently, if considered, would this evidence have bound the learned
arbitrator to make a different conclusion, as Applicants argue (See JD
Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004). If the answer is in the affirmative, then the conduct
of the learned Arbitrator will not only have amounted to an irregularity
but one that is reviewable.
12. We have gone through annexure A and have noted that there is
nowhere in the said document where it purports to either vary or amend
the exemption certificate. In fact, the said document, relates to a meeting
between Leteng and the Minister in relation to a company called
Matekane Mining and not Respondent. Consequently, the content of the
minutes would not have advanced the Applicants case in the sense
suggested.
13. We have also gone through annexure B and have noted that this is a
document that was made in support of a case that was pending between
Matekane Mining and its employees and not specifically for the case of
Applicants. As Respondent has rightly put the said document is the
opinion and/or the understanding of the Labour Commissioner regarding
the application of the exemption certificate. This is not only clear from the
content of the affidavit (annexure B) itself, but also clear from annexure
A.

Page 64 of 265

14. In the affidavit, the labour Commissioner states that,


I wish to aver that the exemption that was issued by the Honourable
Minister to Leteng Diamond Mines against the provisions of S117 and
S118 of the Labour Code Order 1992 was meant to apply to all contractors
operate under Leteng Diamond Mines. The exemption was issued from
28th July 2009.
15. On the minutes (annexure A) the following is recorded,
The meeting resolved that the Labour Commissioner will provide an
affidavit with which she will testify to the understanding of the application
of the exemption as well as the consultations that were held with the
workers.
16. Consequently, the said affidavit, even if considered, would not have
bound the learned Arbitration to find that the certificate of exemption
applied to Applicants. We wish to comment that the argument that the
Labour Commissioner testified or ought to have testified as to the
contents of the affidavit, does not advance the Respondents case as it is
speculative.
AWARD
Our award is therefore in the following terms:
a) That the application for review is refused; and
b) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 25th DAY OF APRIL
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. THAKALEKOALA
Mrs. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

ADV. T. MAPETLA
ADV. M. MABULA

Page 65 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/43/2010
A0546/2009

In the matter between:


TEBOHO THATHO

APPLICANT

And
SECURITY NORTH
DDPR

1ST RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. Applicant raising three grounds of
review as follows,
-failure to keep a complete record of proceedings;
-failure to apply mind to the provision of the law; and
-failure to make a determination on issues before the arbitrator. Only two
grounds sustaining. Review application being granted. Court finding it
inappropriate to grant consequential relief sought. Court directing that the
matter be remitted back to the DDPR for determination of the jurisdictional
point. No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for the review of the 2nd Respondent arbitration
award in referral A0546/2009. The matter was heard and finalised on the
appointed date of hearing. Both parties were in attendance and/or made
representation.
2. The brief background of the matter is that Applicant was an employee of
the 1st Respondent until he resigned from employment. He thereafter
referred claims for unpaid weekly rest days, underpayments and unpaid
public holidays with the 2nd Respondent. At the hearing, Applicant was
advised by the learned Arbitrator that some of his claims had lapsed and
that he had to apply for condonation in order for the 2nd Respondent to
have jurisdiction to hear and determine them. Thereafter the said
application was made but was however unsuccessful. It is this award that
Applicant wishes to have reviewed, corrected and/or set aside.
Specifically, Applicant seeks an order granting the application for
condonation and directing that the matter be heard in the merits.
3. Several grounds of review had been raised initially but were later reduced
to only three namely that,
Page 66 of 265

a. The learned Arbitrator failed to keep a complete record of


proceedings contrary to Regulation 30 of the DDPR Regulations;
b. That the learned Arbitrator failed to apply Her mind to the
provisions of the statute on prescription of claims; and
c. That the learned Arbitrator failed to make a finding on the issues
before Her.
4. We wish to note that Applicant had raised a point of law in his heads of
arguments wherein he had argued that the record of proceedings was not
accurate and/or complete. Whereas, We had then questioned the
properness of that approach, by agreement of the parties, We condoned
this irregular step and allowed for the point to be argued as an additional
ground of review. In the light of this background, Our judgment is in the
following.
SUBMISSIONS OF PARTIES
5. On the first ground of review, it was argued that the record of proceedings
that had been submitted did not truly reflect what took place in the
arbitration hearing. It was submitted that when the learned Arbitrator
directed Applicant to file an application for condonation to found
jurisdiction, Applicant had argued that his claims were well within time.
Applicant claims to have argued that the dispute arose only after the end
of his contract of employment after the Respondent had failed to pay the
owed monies contrary to his promise to do so.
6. Applicant argued that he had relied on the provisions of section 227(1) of
the Labour Code (Amendment) Act 3 of 2000, for his argument. It was
stated that the prepared record does not reflect this. It was argued that
failure to keep a complete record is a breach of Regulation 30 of the
Labour Code (DDPR) Regulations of 2001. Specific reference was made to
the following extract of the Regulation,
30 (1) The Directorate shall keep a record of
(a) any evidence given in an arbitration hearing; and
(b) any arbitration award or ruling made by an arbitrator.
(2) The record kept may be by hand-written notes or by means of an
electronic recording.

(6) The transcript of the hand-written notes or electronic record so


certified as correct shall serve as proof of its correctness unless the
Labour court decides otherwise.
It was prayed that on the strength of this point alone, the matter ought
to be reviewed.
7. Respondent answered that the learned Arbitrator complied with the
provisions of the DDPR Regulations (supra). It was submitted that the said
Regulations prescribe the keeping of the record of proceedings in any of
the two formats namely, an electronic record and a handwritten record. It
was argued that the submitted record, brief as it is, reflects both the
evidence and the award.
Page 67 of 265

8. Our perusal of the record reflects that there is a record that the learned
Arbitrator kept that complies with the provisions of the DDPR Regulations
(supra), at least to some extent. We say this because We have noted that
there is a record that reflects the submissions of Applicant in an
application for condonation and an arbitration award which is subject of
review. However, the record only reflects the actual condonation
application and not the arguments of Applicant on the jurisdictional point
that was mero muto raised by the learned Arbitrator.
9. The above being the case, We are in agreement with Applicant that the
learned Arbitrator failed to keep a complete record. This notwithstanding,
We decline to grant a review just on these bases. It is Our view that in
order for a breach of procedure to warrant the review of an arbitration
award, an applicant party must demonstrate the full effect of the breach
on the decision made (See JD Trading (Pty) Ltd t/a Supreme Furnishers v
M. Monoko & others LAC/REV/39/2004). In casu, Applicant has done no
more than to demonstrate a breach.
10. The second and third grounds of review were argued together. It was
submitted that the learned Arbitrator had failed to apply Her mind to the
provisions of section 227(1) of the Labour Code Act (supra). It was argued
that in terms of the said section, a claim sounding in money must be
referred to the 2nd Respondent within 3 years of the dispute arising. It
was stated that in casu, it had been argued that the dispute arose after
the resignation of Applicant as Respondent had promised to pay at
termination.
11. On the basis of the above arguments, Applicant claimed the 2nd
Respondent had jurisdiction over his claims and that an application for
condonation was not necessary. This notwithstanding, the learned
Arbitrator nonetheless directed Applicant to file an application for
condonation which was eventually dismissed. It was added that in issuing
this directive, the learned Arbitrator did not pronounce herself on the
submissions of Applicant and therefore failed to make a decision on the
issues before Her. It was prayed that the Court find that learned
Arbitrator to have erred in a manner that materially affects Her decision
by failing to apply her mind. The Court was referred to the section
228F(3) and the authority in JDG Trading (Pty) Ltd t/a Supreme furnishers
v Monoko & others LAC/REV/39/2004 and the authorities cited therein,
in support of the suggestion.
12. It was submitted in answer that Applicant acted on the directive of the
learned Arbitrator to file an application for condonation. It was added
that, in directing Applicant to apply for condonation, the learned
Arbitrator had relied on the law to determine if Applicant had to apply for
condonation or not. Having filed same, the learned Arbitrator had to
consider it and make a finding. It was argued that this point has no merit
and stands to be dismissed.

Page 68 of 265

13. We wish to start by commenting that We acknowledge the authorities


cited by Applicant to demonstrate the powers of this Court to review
arbitration awards. We have observed from submissions of parties that it
is not disputed that Applicant addressed the Court on the necessity to
make an application for condonation. This being the case, We accept this
is as a true reflection of what took place (see Theko v Commissioner of
Police and Another 1991-1992 LLR-LB 239 at 242; and Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623). As We
have already determined, there is no record of what took place at this
stage of the proceedings either in the form of the actual record or an
award of ruling. We are therefore drawn to agree with Applicant that the
learned Arbitrator did not apply Her mind to the provisions of section
227(1), as Applicant had argued them, as well as the submissions of
Applicant, in support of that jurisdictional point.
14. In fact, it is Our view that the learned Arbitrator did not only fail to
apply Her mind but that She also failed to consider both the submissions
of Applicant and the provision of section 227(1). In Our view, this is a
material error as the defence raised by Applicant, namely that of a
promise to pay, and again if well argued, could have the effect of breaking
prescription from taking effect, and consequently affect the decision of the
learned Arbitrator. Consequently, the learned Arbitrator erred failing to
consider and apply Her mind to these issues and summarily directing
that Applicant apply for condonation. This is an error that warrants
interference with the arbitration award.
15. We wish to comment that in as much as the decision to require
Applicant to apply for condonation may have been influenced by the
provisions the law, that neither precluded nor excused the learned
Arbitrator from considering and applying Her mind to the arguments of
Applicant before She made a decision to require him to apply for
condonation. Further, the fact that Applicant applied for condonation, in
line with the directive of the learned Arbitrator, does not in any way cure
the error committed.
16. The second leg of this ground of review was that the learned Arbitrator
failed to apply Her mind to the provisions of Regulation 26 of the DDPR
Regulation (supra). It was argued that the learned Arbitrator made a
conclusion that it was not allowable for Applicant to apply to amend his
founding affidavit to the condonation application. It was submitted that
this is contrary to the provision of Regulation 26 in that it allows for
same. It was argued that had the learned Arbitrator applied Her mind to
this Regulation, She would have come to the conclusion that an
amendment was allowed.
17. It was answered that the DDPR Regulations (supra) do not provide for
an amendment of an affidavit. It submitted that an affidavit is a sworn
statement and cannot be amended as that would amount to perjury. It
was added that although the learned Arbitrator has not relied on perjury
Page 69 of 265

in refusing the amendment, Her award is well reasoned and this Court
cannot meddle with it. It was concluded that the learned Arbitrator has
fully applied her mind on this issue.
18. We agree with 1st Respondent that Regulation 26 does not provide for
an application to amend an affidavit as Applicant likes to suggest. Rather,
the Regulation merely lays down a guideline on what form an application
must take as well as the procedure in dealing with applications. As a
result, the said Regulation does not apply to Applicants argument nor
does it advance his case. Consequently, this review grounds fails. As for
the rest of the arguments of 1st Respondent on this point, We reserve Our
comment.
19. In view of Our finding on the first leg of the second and third grounds
of review, the application for review must succeed. However, We decline to
grant the consequential relief sought, that the condonation be granted
and the matter be heard in the merits. Our reason is simply that the
arguments for review are not based on the merits of the condonation
application itself, but on whether the 2nd Respondent had jurisdiction to
hear and determine the Applicants claims without a condonation
application being made. Further, by granting the condonation
application, We would be implying that the learned Arbitrator was right to
require Applicant to apply for same, yet We have found Her conduct to do
so without considering the arguments of Applicant, to be irregular. This
would be an irrationality worthy of a review of Our judgment.
AWARD
Our award is therefore in the following terms:
a) That the application for review is granted and the award in referral
A0546/2009 is set aside;
b) The matter is remitted to the DDPR for determination of the jurisdictional
point mero muto raised by the learned Arbitrator;
c) Applicant must obtain a date of hearing with the DDPR within 30 days of
receipt herewith; and
d) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 25th
2014.

DAY OF APRIL

T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Ms. LEBITSA
Mrs. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

MR. MOLEFI
ADV. MATOOANE
Page 70 of 265

IN THE LABOUR COURT OF LESOTHO

LC/REV/101/12
A0242/2011

HELD AT MASERU
In the matter between:
St. JAMES ACL HIGH SCHOOL
SCHOOL BOARD St. JAMES
HIGH SCHOOL

1st APPLICANT
2nd APPLICANT

And
THATO MOKHOBO MOELETSI
ARBITRATOR DDPR M. KETA

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. Several grounds of review being
raised. Applicant only motivating one. Respondents withdrawing their
opposition. Matter proceedings on the basis of the unchallenged averments of
Applicants. Court finding merit in the ground raised. Court granting the
application for postponement and directing that the mater be set down in the
merits. Further that Applicants be properly informed about the date of hearing.
No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for the review of the 2nd Respondent arbitration
award in referral A0242/2011. The facts surrounding the application are
that 1st Respondent was an employee of the 1st Applicant school until her
resignation. Following the resignation, she then lodged a claim for
severance payment, unpaid leave and underpayments with the 2nd
Respondent. The matter was then set down for hearing before the 2nd
Respondent, but was postponed on a number of times until the 23rd
February 2012.
2. On the above date, one Mr. Qhobela appeared to seek a postponement of
the matter on behalf of the Applicants. He had stated that he no longer
had the mandate to defend the matter as he had since resigned from the
employment of Applicants. He sought the postponed to allow for the
summoning on the proper parties to defend the matter. The prayer for
postponement was refused and the matter proceeded undefended. An
award was subsequent thereto issued in favour of 2nd Respondent. The
award directed the Applicants to pay to 2nd Respondent an amount of M8,
605.53, in satisfaction of his claims. It is the said award the Applicants
wish to have reviewed, corrected and/or set aside.
Page 71 of 265

3. At the commencement of the proceedings before Us, parties noted an


agreement that they wished to have made an order of court. The
agreement was to the effect that 2nd Respondent withdrew its opposition
to the matter and that it be determined on the basis of the pleadings and
heads of argument filed record, on behalf of Applicants alone. The
agreement was accordingly noted and made an order court. Our
judgment on the matter is thus in the following.
SUBMISSIONS OF PARTIES
4. It was Applicants case that the learned Arbitrator ignored relevant issues
to the matter. In amplification, it was said that the learned Arbitrator
ignored the evidence of Mr. Qhobela that the board of Respondent school
was not aware about the matter proceeding on that day. It was submitted
that if the learned Arbitrator had considered this evidence, He would have
granted the postponed and directed that proper service be made on the
right parties. It was argued that in so doing, the learned Arbitrator failed
to consider relevant facts and that this is a reviewable irregularity.
5. In support of the above argument, the Court was referred to the
authorities of Johannesburg Stock Exchange & another v Witwatersrand
Nigel Ltd & another 1988 (3) SA 132 (A), where the following is recorded,
Broadly, in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues in accordance with
the behests of the statute and the tenets of natural justice. Such failure
may be shown by proof, inter alia that the decision was arrived at
arbitrarily or capriciously or mala fide or as a result of unwarranted
adherence to a fixed principle or in order to further an ulterior or improper
purpose; or that the president misconceived the nature of the discretion
conferred upon him and took into account irrelevant considerations or
ignored relevant ones; or that the decision of the president was so grossly
unreasonable as to warrant the inference that he had failed to apply his
mind to the manner aforestated.
6. It was further argued that, if the learned Arbitrator was in doubt about
the resignation of Mr. Qhobela, He ought to have requested that Mr.
Qhobela furnish proof of his resignation to properly ascertain if he lacked
the mandate. It was said that in the alternative, the learned Arbitrator
ought to have postponed the matter to ascertain the issue of
representation. It was concluded that having failed to explore these
options, the learned Arbitrator conducted the proceedings contrary to
section 12 of the Constitution of Lesotho of 1993, regarding the right of a
party to a fair trial. It was concluded that this is evidence of a grave
irregularity warranting the review and setting aside of the arbitration
award.
ANALYSIS
7. It is a trite principle of law that whenever a party either withdraws its
opposition to a matter before court or has not opposed same, the Court
will accept the factual averments of the other party as true and accurate
Page 72 of 265

and then proceed to analyse them against the applicable principles of law
(see Theko v Commissioner of Police and another LAC (1990-94) 239 at
242; and Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd
1984 (3) SA 623).
8. We have considered both the arbitration award and the record of
proceedings. We have noted that in the record, Mr. Qhobela did indeed
inform the learned Arbitrator that the School Board was not aware about
the proceedings. This is reflected on the first page of the record as thus,
Arb: When did you resign
Res rep: last week Friday
Arb: by then the board was aware of this case
Res rep: I was aware but the board was not aware.
9. We have noted that this evidence was not considered in the arbitration
award as Applicants have suggested. We are of the view that if
considered, this evidence would have influenced the learned Arbitrator
into postponing the matter rather than to elect to proceed with it
undefended. In so doing, the learned Arbitrator also denied the
Applicants their constitutional right to a fair trial as provided for under
section 12 of the Constitution of Lesotho (supra). We therefore find that the
learned Arbitrator committed a grave irregularity warranting the review
correction and/or setting aside of His award.
1. However, We wish to comment that the learned Arbitrator was not under
any obligation to require parties to present evidence. It is the
responsibility of parties to present evidence that advances their claims.
More relevant to the point, it is Our finding that the learned Arbitrator
had no obligation to demand proof of resignation from Mr. Qhobela, as it
was his responsibility to present same, if he felt it was material to his
case. To expect the learned Arbitrator to involve in the proceedings in that
fashion would be to descend him into the arena of dispute. This approach
is highly shunned by Our Courts (see Kopano Textiles v DDPR and
another LC/REV/101/2007).
10. As the reviewing Court, once We have determined that the matter
before Us is worthy of a review, We have two options open to Us. We can
either remit the matter back to the initial trier for a hearing de novo or We
can correct the noted irregularity. This approach finds support in the
decision of Dr. Mosito AJ in the case of Matsemela v Nalidi Holdings (Pty)
Ltd t/a Nalidi Service Station LAC/CIV/A/02/2007, where he had the
following to say,
When reviewing an award from the DPPR, Labour Court should also
correct it ....
11. We only correct the award where We are seized with enough facts to
enable us to do so and vice versa where such are absent. In casu, We
have sufficient facts to enable us to correct the 2nd Respondent

Page 73 of 265

arbitration award. Consequently, We accordingly grant the application


and correct the award of the 2nd Respondent.
AWARD
Our award is therefore in the following terms:
a) That this application is granted;
b) The award in A0242/2011 is reviewed and corrected in the following;
a. That the application for postponement is granted; and
b. The matter must be set down in the merits and Applicants must
be properly notified of the date of hearing.
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 14th DAY OF FEBRUARY
2013.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. L. RAMASHAMOLE
Mr. S. KAO

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR RESPONDENTS:

ADV. N. S. MOLAPO
ADV. P. NTENE

Page 74 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/09/2010

In the matter between:


PHOLE NTENE

APPLICANT

And
HIGHLANDS NATURAL RESOURCES
AND RURAL INCOME ENHANCEMENT
PROJECT (HNRRIEP)
LESOTHO HIGHLANDS
DEVELOPMENT AUTHORITY (LHDA)
MINISTRY OF TOURISM,
ENVIRONMENT AND CULTURE (MTEC)
ATTORNEY GENERAL

1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT

JUDGMENT
Claims for unfair dismiss and underpayments. 2nd Respondent claiming that it
has been wrongly sued as it is not the employer of Applicant. Parties
addressing the Court on the issue. Court finding that no employment
relationship exists between Applicant and 2nd Respondent. Court dismissing
claims against 2nd Respondent for want of jurisdiction. Court directing that the
matter be set down for hearing with the remaining parties. No order as to costs
being made.
BACKGROUND OF THE ISSUE
1. This is a dispute involving claims for unfair dismissal and
underpayments. The history of this matter is rather unusual, so to say.
Applicant had initially referred three claims namely, unfair dismissal,
unpaid salaries and underpayments. Realising that he had not complied
with section 227(5) of the Labour Code (Amendment) Act 3 of 2000, which
requires that all claims that fall within the jurisdiction of the Labour
Court must first be conciliated upon, Applicant withdrew the matter and
referred his claims with the DDPR.
2. On the date of the conciliation before the DDPR, only Applicant was in
attendance and the matter proceeded into arbitration by default,
notwithstanding the fact that the DDPR did not have such jurisdiction.
An award was thereafter issued in favour of Applicant. Then 2nd
Respondent initiated review proceedings with this Court and obtained
judgement. The matter was then remitted to the DDPR. It was conciliated
upon and having failed to reach settlement, it was referred to this Court
for adjudication. In view of the fact that the matter had since been
Page 75 of 265

withdrawn, Applicant then applied for its reinstating which was duly
granted, hence the current position.
3. Whereas, Applicant had referred three claims, he withdrew the unpaid
salaries claim leaving both the unfair dismissal and underpayments
claims. It is Applicants case that he was an employee of the 2nd
Respondent under the 1st Respondent project, until his retrenchment. He
further claims that he was underpaid during the period of his
employment with the 2nd Respondent. 2nd Respondent rejected all the
claims of Applicant and argued that it had no employment relationship
with him at the time that they all accrued.
4. In Our view, the defence raised by the 2nd Respondent goes to the
jurisdiction of this Court over the Applicants claims. The jurisdiction of
this Court is limited to claims that arise out of the employment
relationship. As a result, where there is no employment relationship
between parties, then this Court would lack jurisdiction to hear and
determine the lodged claim. Consequently, We directed the parties to
address this issue before We could proceed into the merits of the matter.
Pursuant to Our directive, both parties led evidence and made
submissions on the issues. Our judgment is therefore in the following.
FACTS AND EVIDENCE
5. Applicant testified under oath that he was first employed by the 2nd
Respondent in February 2005 as an accountant. His contract was verbal
as no written contract was concluded and signed. In April 2007, he was
laterally transferred to the 1st Respondent project. According to him, the
1st Respondent project is owned and run by the 2nd Respondent. He
stated that his transfer was also verbal. He worked under the 1st
Respondent project until he was retrenched. He therefore claims that the
2nd Respondent was his employer at the time that his claims arose.
6. During cross examination, Applicant conceded that the 1st Respondent
project was owned by the 3rd Respondent and not 2nd Respondent.
Further that, at the end of the 1st Respondent project, himself together
with the rest of the 1st Respondent employees, were paid their terminal
benefits. He stated that he was involved in the calculations of these
benefits as an accountant.
7. Respondent led the evidence of one Palesa Nkofo who testified that she
was the acting special projects manager in the 2nd Respondent Authority.
She was charged with the responsibility to administer special projects like
the 1st Respondent project, which she did on behalf of the 3rd
Respondent. She stated that Applicant was not an employee of the 2nd
Respondent, but of the 1st Respondent project. She added that the 1st
Respondent project is owned by the 3rd Respondent and only
administered by the 2nd Respondent.

Page 76 of 265

8. It was conceded that Applicant was employed by 2nd Respondent but that
his contract with 2nd Respondent terminated before he worked in the 1st
Respondent project, in April 2007. It was said that evident to the
termination was the fact that he was paid his terminal benefits. Witness
further testified that Applicant had a written contract with 2nd
Respondent and that he also has a written one with the 1st Respondent.
The Court was referred to pages 45 to 49 of the pleadings bundle for the
copy of the unsinged contract of employment between Applicant and 1st
Respondent. It was stated that the signed contract had gone missing from
the 2nd Respondent records.
SUBMISSIONS
9. Applicant submitted that there is ample evidence that he was an
employee of the 2nd Respondent, placed in the 1st Respondent project. It
was argued that evident to this is the admission on the part of
Respondent that it employed him in February 2005. It was added that
although 2nd Respondent alleges that it terminated his contract of
employment and that he subsequent thereto signed a new contract with
1st Respondent, no evidence has been placed before Court in support. He
argued that 2nd Respondent relied on an unsigned contract of
employment bearing his names, which he categorically denied knowledge
of. He submitted that as a result, his evidence of continued employment
with the 2nd Respondent remains unrebutted.
10. In support of his agreements, Applicant referred the Court to the case
of United Clothing v Phakiso Mokoatsi & another LAC/REV/436/2006,
where the principle of the onus of proof was explained as the duty that is
cast upon a litigant to adduce evidence that is sufficient to persuade the
court, at the end of the trial that claim or defence as the case may be
should succeed. It was argued that in casu, 2nd Respondent has failed to
prove that it ended its contract with Applicant or that Applicant signed a
new contract with 1st Respondent.
11. Further reference was made to the book of Schwikkard, Principles of
Evidence, 2nd Ed. At page 538, where the author stated that he who
makes a positive assertion is generally called upon to prove it with the
effect that the burden of proof generally lies on the person who seeks to
alter the stasu quo. Thus he who asserts the positive is the one with the
burden of proof. It was argued that 2nd Respondent had failed to
discharge its burden as it sought to alter the status quo that Applicant
was an employee of the 2nd Respondent until his retrenchment.
12. Applicant further made reference to the case of Pillay v Krishna 1946
AD 946 at 951-952 to the effect that where the person against whom the
claim is made relies on a special plea he is regarded quad that defense to
be the claimant and for the defence to be upheld he must satisfy the court
that he is entitled to succeed on it. It was argued that 2nd Respondent
relied on a special plea that it was not the employer of Applicant as it
terminated his contract of employment in 2007. Having raised this special
Page 77 of 265

plea, 2nd Respondent failed to show any evidence of either a written


contract or termination thereof, except for the uncorroborated evidence of
its sole witness.
13. Further reference was made to the case of R. v Pitso Matobo
CRI/T/18/1993. It was submitted that in terms of this authority,
evidence ought not to be accepted merely because it is not contradicted. It
was argued that in casu, Applicant denied that he was ever terminated by
2nd Respondent. It was added that the fact that Applicant has not
contradicted the evidence of 2nd Respondent regarding his termination,
does not in any way discharge its burden of proving its allegations,
especially where there is testimony by Applicant that he was never
terminated.
14. 2nd Respondent submitted that evidence shows that Applicant was
engaged under 1st Respondent contract in terms of the contract appearing
on pages 45 to 49, earlier referenced. It was argued that there is credible
evidence to the effect that the 1st Respondent project is owned by 3rd
Respondent. It was added that further fortifying this position is the
concession of Applicant to this position during cross examination. It was
also submitted that there is credible evidence that the 1st Respondent
project ended and that all its employees including Applicant were paid
their terminal benefits.
15. It was argued that in the light of the above credible facts, it cannot be
disputed that 1st Respondent project was owned by the 3rd Respondent
and that the role of the 2nd Respondent was merely to administer it. It
was argued that if Applicant was an employee of 2nd Respondent, he
would not have been paid his terminal benefits but would still have his
contract with 2nd Respondent. Consequently, the fact that he was paid his
terminal benefits by 1st Respondent demonstrates the existence of an
employment relationship between them, at least as at the time.
16. It was further argued that Applicant cannot be described as a truthful
witness for the reason that, he denied that he signed the contract of
employment with 1st Respondent, when he did. It was added that evident
to this is the fact that the evidence of 2nd Respondent witness was never
challenged in that regard. It was said that another incident illustrative of
untruthfulness is the fact that Applicant denied having a written contract
but admitted that he knew no one with an oral contract in the 2nd
Respondent employment. It was argued that on these bases, Applicants
evidence cannot be relied upon to decide this matter.
17. Furthermore, it was argued that in terms of the Labour Code Order 24
of 1992, an employer is defined as follows,
any person or undertaking, corporation, company, public body or body of
persons who or which employs any person to work under a contract and
includes:

Page 78 of 265

(a) any agent, representative, foreman, manager of such person,


undertaking, corporation, company, public authority or body of persons
who is placed in authority over the employee.
18. It was argued that for purposes of the case in casu, the word employer
means and undertaking. It was submitted that 1st Respondent is the
trading name of the 3rd Respondent. It was argued that the 2nd
Respondent is merely an administrator and neither an agent, foreman nor
a representative of the 3rd Respondent. It was added that in view of this
said, the 2nd Respondent has been sued in error. It was prayed that the
Applicants claims against the 2nd Respondent should be dismissed on
this ground.
ANALYSIS
19. Applicants case is premised on the argument that his contract, which
began in February 2005, was never terminated until his recent
retrenchment. Although the 2nd Respondent has not placed any evidence
of communication of termination to Applicant, We are inclined to agree
with Respondent that Applicant was indeed terminated, before he worked
under the 1st Respondent project. We say this because, it has been
suggested by 2nd Respondent that Applicant was paid his terminal
benefits as a consequence of his termination. This has not been denied or
challenged by Applicant.
20. It is a trite principle of law that what has not been denied is taken to
have been accepted as true and accurate (see Theko v Commissioner of
Police and Another 1991-1992 LLR-LB 239 at 242 ). This being the case,
coupled with the fact that where payment of terminal benefits has be
made, it signifies the end of the employment relationship, We find it more
probable that Applicant was terminated prior to joining the 1st
Respondent project. Consequently, it is inaccurate that Applicant was
laterally transferred from the 2nd Respondent authority to the 1st
Respondent project.
21. In view of Our finding above, the next issue for determination relates
to the status of 1st Respondent in relation to the 2nd Respondent.
Applicant alleges that 1st Respondent is a project that is run and owned
by the 2nd Respondent. No further evidence was led on behalf of the
Applicant to support this allegation, safe for the allegation that he was
laterally transferred to 1st Respondent project by the 2nd Respondent. The
rules of evidence dictate that he who alleges must proof their claim.
Authoritative in this regard is the appeal decision of United Clothing v
Phakiso Mokoatsi & another (supra), as cited by Applicant above.
22. It is Our view that Applicant has therefore failed to discharge his
obligation to prove his claim, particularly because his allegations have
been vehemently denied by 2nd Respondent. We have already made a
determination that there was no transfer as the employment relationship
between the parties, terminated before the 2nd Respondent joined the 1st
Page 79 of 265

Respondent project. Consequently, Applicants argument does not sustain


the point being made.
23. We wish to add that evidence that has been led, only goes to confirm
that the 1st Respondent project is not owned by the 2nd Respondent but
the 3rd Respondent. This is not only clear from the evidence of the 2nd
Respondent, but also from that of the Applicant himself. He conceded
during cross-examination that the 1st Respondent project was owned by
the 3rd Respondent and not 2nd Respondent. Another factor evidencing
this was his concession that at the end of the 1st Respondent project, his
terminal benefits were paid by the 1st Respondent and not the 2nd
Respondent. As a matter of principle, terminal benefits are only paid by
an employer in acknowledgement the services and contribution of the
employee concerned and to compensate an employee for the loss of
seniority and job-related benefits. Essentially, terminal benefits are paid
where there was an employer and employee relationship between parties.
24. Further, We concede that whereas the 2nd Respondent has alleged that
it terminated its contract with Applicant and further that Applicant
concluded a new contract with the 1st Respondent, no evidence has been
placed before this Court to substantiate the claim. However, the fact that
Applicant has not denied that he was paid his terminal benefits, which
We have taken to signify the ending of this contract with 2nd Respondent
in April 2007, strengthens the 2nd Respondent case of absence of an
employment relationship between them, at least as at the time of accrual
of the referred claims.
25. Further, while 2nd Respondent sought to rely on an unsigned contract
between the Applicant and 1st Respondent, to argue that Applicant was
an employee of 1st Respondent, the said contract does not advance his
case at all. We say this because, not only is the contract unsinged, but
Applicant vehemently denies knowledge thereof. This being the case, 2nd
Respondent having raised a special defence, was in law obliged to go
further to prove same. This is clear from the authority of Pillay v Krishna
(supra), as referenced by Applicant. Having failed to do so, Applicants
position that he did not sign a contract with 1st Respondent sustains. It
must however, be noted that this is not conclusive that there was no
employment relationship between 1st Respondent and Applicant.
26. We acknowledge all the authorities cited by the Applicant in support of
his case, save to say that the 2nd Respondent has succeeded to prove that
it ended its employment ties with Applicant, before he joined the 1st
Respondent project in April 2007. Further that while 2nd Respondent may
have failed to prove that Applicant was an employee of the 1st
Respondent, it has nonetheless been able to establish that Applicant was
not its employee at the time of the accrual of the claims before this Court.
Furthermore, that the special plea raised by 2nd Respondent, about the
termination of the Applicants contract, has been substantiated with the

Page 80 of 265

unchallenged evidence of payment of terminal benefits, which as We have


said signifies termination.
27. We wish to comment that although Applicant denied ever being
terminated in a general manner, it was his duty to contradict the
evidence of 2nd Respondent that he was terminated. Applicant has
attempted to rely on the case of R. v Pitso (supra) to argue that the fact
that he has not contradicted the evidence of 2nd Respondent, regarding
termination of his contract, it should not be accepted as true and
accurate. This argument cannot hold for two reasons.
28. Firstly, the authority that Applicant relies upon for his argument is a
criminal trial. It is trite that the standards of proof in criminal and civil
proceedings are different. In criminal proceedings, the standard is beyond
reasonable doubt, whereas in civil proceedings it is on the balance of
probabilities. As a result, the requirements of proof in both procedures
differ. Secondly, We have stated that authorities in civil proceedings,
dictate that what has not been denied should be taken to have been
admitted (see Theko v Commissioner of Police and Another (supra)).
29. Regarding the reliability of Applicant as a witness, We do not find the
cited incidents to be conclusive of such. Rather, the incidents referenced
merely illustrate points of difference between Applicant and 2nd
Respondent. We say this because, as we have already stated, no evidence
has been presented to prove that Applicant actually signed a contract
with 1st Respondent. Secondly, the fact that Applicant was not aware of
any one without a written contract within 2nd Respondent authority other
than himself, does not make him an unreliable witness. Consequently,
the issue of the unreliability of Applicant as a witness falls off.

Page 81 of 265

AWARD
We therefore make an award in the following terms:
a) That the 2nd Respondent is not the employer of Applicant;
b) That the 2nd Respondent has been sued in error;
c) That the claims against the 2nd Respondent are therefore dismissed for
want of jurisdiction;
d) That the matter must be set down with the remaining parties; and
e) That no order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 28th DAY OF FEBRUARY
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. THAKALEKOALA
Mrs. L. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. MOKEBISA
ADV. WOKER

Page 82 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/77/2013
LC/83/2013

In the matter between:


TIU MOSALA
NKATANA PHATELA
THAPELO KOALI
MAPHALALI PHAMOTSE
MAMPINANE MASUPHA
MATANKI MOHLAKANA
MAMASHEANE MATELA

1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT

And
DIRECTOR DEPARTMENT OF
RURAL WATER SUPPLY
P.S MINISTRY OF ENERGY,
METEOROLOGY & WATER AFFAIRS
MINISTER OF ENERGY,
METEOROLOGY & WATER AFFAIRS
ATTORNEY GENERAL

1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT

And in the matter between


SHOTOPA MOTLOI

APPLICANT

And
DIRECTOR DEPARTMENT OF
RURAL WATER SUPPLY
P.S MINISTRY OF ENERGY,
METEOROLOGY & WATER AFFAIRS
MINISTER OF ENERGY,
METEOROLOGY & WATER AFFAIRS
ATTORNEY GENERAL

1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT

JUDGMENT
Hearing Date: 3rd December 2013
Application in terms of section 24(2)(e) of the Labour Code Order 24 of 1992,
as amended. Applicant claiming duress and misrepresentation on the part of
the Respondent to induce them to sign new contracts of employment. Applicant
requesting the rescission of the said contract and consequential thereto
payment of monetary differences between new and old contract. Court finding
that Applicants were not duressed into singing the new contract of
Page 83 of 265

employment. Further finding that Respondent made no misrepresentation to


induce Applicant to sign the new contracts. Court declining the consequential
relief on account of the dismissal of the primary claim. Applicants claim being
dismissed and the interim order granted being discharged. No order as to
costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for the rescission of the contract of employment of
the Applicants. It was made in terms of section 24(2)(e) of the Labour
Court Order 24 of 1992, as amended. The said section provides as follows,
(2) The Court shall have the power

(e) to rescind any contract of employment and make such consequential


orders as may be just in the circumstances.
The application was made on urgent basis.
2. Applicants sought the following substantive relief,
a) That the 2013 employment contracts unlawfully imposed by duress and
consented to by misrepresentation on applicants be declared unlawful and
rescinded.
(b) That consequential to the declaratory order under 2 (a), applicants be
paid the monetary differences in amounts withheld as a result of unlawful
imposed contracts.
(c) That respondents pay costs on attorney and own client scale only in the
event of opposition.
3. The facts surrounding this application are that Applicants were employed
by Respondent on the 2nd May 2006 on a month to month basis. On or
around the 2nd May 2013, Applicants were called to a meeting where they
were informed that they would be offered new contracts of employment. It
was added that those who would not accept the new contracts would not
be paid any salaries from June 2013, as their old contracts would have
lapsed by the end of May 2013.
4. Thereafter, Applicants were paid their terminal benefits for the period that
they served from 2006 to 2013. Further, those who did not accept the
new contracts of 2013, were not paid salaries in June and were also
returned from work when they reported. Faced with the reality of loss of
salaries, Applicants then singed the new 2013 contracts and were
thereafter paid their salaries. On the basis of these facts, it is Applicants
case that they were made to sign the new contracts of 2013 under duress
and a misrepresentation of facts. Further that the new contracts were an
unfavourable unilateral variation of the old 2006 contracts and thus
claimed to be paid the difference in salaries between the new and the old
contracts.
5. Respondent rejects the Applicants claims on the grounds that Applicants
were not made to sign the new contracts under duress. In fact,
Respondent claims that Applicants did so out of their own volition, as
Page 84 of 265

their old contracts had expired. Further, that the old 2006 contracts
ended in May 2013 and that as a result, the new contracts of 2013, could
not have been a unilateral variation of the old ones. Furthermore, that
owing to the fact that the old 2006 contracts had ended, there can be no
claim for the difference in salaries between the old and the new contract.
6. On the first day of the hearing of this application, having determined that
the matter was urgent, We made an order, at the request of and by
agreement of the parties, that Applicants continue to be regarded as
employees of Respondent with full benefits under their old 2006 contracts
of employment, pending finalisation of this application. We wish to
highlight that these two applications (LC/77/2013 & LC/83/2013) were
initially referred separately, but that by agreement of parties both matters
were consolidated, hence Our present approach. In the light of this order,
parties made their presentations on the matter and Our judgment is
therefore in the following.
SUBMISSIONS AND ANALYSIS
7. Applicants claim they signed the new contracts of employment out of fear
of being without a salary and not out of their own volition. They added
that harm was not only imminent towards them but had actual
materialised as they had not been paid in June 2013, following their
failure to sign the new 2013 contracts.
8. Applicants further claimed that their old 2006 month to month contracts,
were without limit of time and that the new contracts unilaterally varied
the old ones. It was added that in varying the old 2006 contracts, the new
2013 contracts introduced new terms which were less favourable than
those contained in the old contracts. They claimed that the conduct of the
Respondent constituted a unilateral variation of their contracts as no
prior consultations were conducted and further that their consent to the
variation was never obtained. It was added that the fact that Applicants
received their terminal benefits, is not conclusive that the old contracts
ended.
9. They furthermore argued that according to R. H. Christie in The Law of
Contract in South Africa (2nd Ed.) at page 367, a contract which has been
entered into as a result of duress, is voidable at the instance of the
duressed party. Further reference was made to the case of Smith v Smith
1948 (4) SA 61 (N) at pages 67 to 68; and the book by A. J. Kerr in The
Principles of the Law of Contract (4th Ed.) at page 238, in support.
10. It was furthermore argued that the facts pleaded have established a
case for actual threat that was caused by the Respondent. It was added
that the said threat was unlawful as it was based on a misrepresentation
of facts that the old contracts of 2006 would end in May 2013, while in
actual effect they were without the limit of time. It was further argued
that as a result of the actual threat of loss of salaries and the
misrepresentation of facts, they signed the new contracts of 2013.
Page 85 of 265

11. It was submitted that the circumstances of the case in casu meet the
requirements to sustain a claim for duress, in signing the contracts of
employment on the part of Applicants. The Court was referred to the
following authorities in support of the alleged requirements; Broadry v
Smuts NO 1942 TPD 47 at page 52; R. H. Christie (op cit) at page 368-377;
and Arend & another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C).
12. Further reference was made to the cases of Bundach v United Tobacco
Co. Ltd (2000) 21 ILJ 2241 at 2246-2247J-AB; and Leloko Selebalo v
Stallion Security Lesotho (Pty) Ltd LC/15/2010, for a principle that a party
cannot be held to a contract that was made as a result of
misrepresentation of facts or circumstances. It was concluded that the
new contracts of 2013 are therefore not binding upon Applicants as they
were induced by a misrepresentation.
13. It was furthermore argued that the conduct of the Respondent to vary
the contracts of Applicants without their consent is a prohibited practice
in law. The Court was referred to the cases of La Vita Boymans Clothiers
(Pty) Ltd (2001) 22 ILJ 454 at 461; Leloko Selebalo v Stallion Security
Lesotho (Pty) Ltd (supra); Makhobotlela Nkuebe v Metropolitan Lesotho Ltd
LC/79/2006; and Lesotho Highlands Development Authority v Motumi
Ralejoe LAC/CIV/A/03/2006. It was submitted that in these cases, the
Court expressed their discontent against a unilateral variation of a
contract of employment and the right of a party to refuse to be bound by
the imposed terms of the contract.
14. It was prayed that on the basis of the above submissions and
authorities, the Court find that the new 2013 contract have been
concluded under duress and that they be rescinded. Further that the
Court find that the conduct of the Respondent is a unilateral variation of
the old 2006 contracts as Applicants were never terminated and that the
said variation be held not to be binding upon Applicants. Lastly that,
consequential to the primary relief sought, Respondent be ordered to pay
the difference in salaries between the old 2006 contracts and the new
2013 contracts.
15. It is Respondents case that the Applicants did not sign the new 2013
contracts of employment under duress. The Court was referred to the
book of C. G Van der Merwe & J. E. Du Plessis entitled Introduction to the
Law of South Africa, 2004, found in Kluwer Law International, at page
248, where duress is defined as follows,
Duress consists of an unlawful threat of harm which induces another to
contract.
16. Respondent argued that Applicants were not duressed but merely
warned that their old 2006 contracts were ending and that for them to
continue to receive salaries, they would have to sign the new 2013
contracts. It was stated that evident to the fact that the old 2006
contracts had ended, was the fact that Applicants were paid and they
Page 86 of 265

received their terminal benefits for the years 2006 to 2013, in June 2013.
Respondent further submitted that even assuming that their conduct of
warning Applicants about the lapse of their old contract and the
introduction of the new contracts, amounted to threat, which they
disputed, that was neither an unlawful threat nor a misrepresentation of
facts as their old contracts had ended.
17. It was argued that for a claim of misrepresentation to sustain, an
applicant party must establish the following requirements,
A representation;
By a contracting party;
Representation must be false, inaccurate or contra bonos mores;
Representation must have induced the other party to contract; and
Representation must have caused damage to the other party.
The Court was referred to the cases of Bayer South Africa (Pty) Ltd v Frost
1991 (4) SA 559 (A) at page 568B; Van Der Merwe (op cit) at page 92; and
Absa Bank v Fouche 2003 (1) SA 178 (SCA) at 180, in support.
18. It was further submitted that even assuming that the Applicants were
correct that the old contracts were concluded out of duress, which was
equally disputed, the Applicants would be out of employment. It was said
that the effect of a rescission of the new contracts of employment claimed
by Applicants, is to restore them to the previous state. The Court was
referred to the book by C. G Van der Merwe & J. E. Du Plessis (op cit) at
page 155, in support. It was said that the previous state in this instance
is that of being unemployed, as their old 2003 contracts had already
lapsed at the time that they signed the new 2013 contracts. It was argued
that the situation would have been different had Applicants prayed for
the reinstatement of the old 2006 contracts, which they have not done.
19. It was argued that the requirements for a claim for misrepresentation
to sustain, have not been met in that the representation about the
contracts ending was not false or inaccurate or contra bonos mores. It was
further argued that, in fact the representation about the contracts ending
and the fact that they would not be paid beyond May 2013, if they did not
sign the new contracts, was true, accurate and in favour of public
morality, as they were indeed not paid when they failed to sign the new
contracts. It was submitted that Applicants had failed to discharge the
onus on their claim for misrepresentation.
20. It was furthermore submitted that Applicants claims cannot sustain,
as by accepting their terminal benefits in June 2013, they signalled their
acceptance of the ending of their 2006 contracts and therefore that put
the entire matter at rest. The Court was referred to the case of Teliso
Moiloa v Total Print House (Pty) Ltd & others LC/REV/524/2006, where
the Court stated as thus,
It suffices to say that the applicant cannot approbate in other words
approve termination and reprobate or disapprove of it at the sametime.
Page 87 of 265

It was submitted that by accepting the terminal benefits, Applicants are


barred from claiming that the 2006 contracts were not terminated but
varied. It was prayed that on these basis this claim be dismissed.
21.
Regarding the claim for payment of the differences in salaries in the
old 2006 and the new 2013 contracts, Respondent submitted that
Applicants are not entitled to any monetary difference, on account of the
fact that the old 2006 contracts no longer exist by virtue of their
termination in May 2013. It was submitted that the main premise behind
this claim, seems to be that Respondent varied the contracts of
employment of Applicants unilaterally. It was argued that this is not part
of the substantial claims of Applicants. It was added that the claim for
monetary differences is based on finding of the Court that the new
contracts are rescinded.
22. In the proceedings before this Court, the standard of proof is on the
balance of probabilities. It is the Applicants case that they were never
terminated from their old 2006 contracts. However, that notwithstanding,
they do not deny that they were paid their terminal benefits. In Our view,
this tilts the balance of probability in favour of the Respondent that
indeed the Applicants were terminated in May 2013, as alleged.
Supportive of Our finding, is the attitude of the Court in the case of
Teliso Moiloa v Total Print House (Pty) Ltd & others (supra), cited by
Respondent, that acceptance of terminal benefits signifies termination of
a contract of employment.
23. If this is the case, then there was no misrepresentation on the part of
the Respondent when informing the Applicants that their contracts would
end in May 2013, as they in fact did. We are, in fact, in agreement with
Respondent that the representation was merely made to warn them about
non-payment if they did not accept to be contracted. Therefore the
representation made by Respondent lacks sufficient merit to render it a
misrepresentation. It simply does not fit within the requirements of
misrepresentation as outlined in the authorities cited by both parties, for
the reason that it misses the key element of contra bonos mores and/or
inaccuracy.
24. While we concede that a contract that is entered into out of duress
stands to be voided, it is Our opinion that the conduct of the Respondent
in casu, does not amount to duress. The communication made is not an
unlawful threat, as Applicants have attempt to suggest. Rather the
communication was lawful given the fact that the old 2006 contracts were
not only due to end but veritably ended. According to both case law and
text book authors reference by both parties, the lawfulness and otherwise
of a threat, is a vital elements in the classification of conduct as
amounting to duress (see Smith v Smith (supra); A. J. Kerr (op cit); and C.
G Van der Merwe & J. E. Du Plessis (op cit)).

Page 88 of 265

25. In Our view, the absence of both duress and misrepresentation


towards the conclusion of the 2013 contracts, means that the said
contracts are binding upon the Applicants for their entire period of
existence. However, this is not to suggest that Applicants are bound to
continue with them despite their clear and unequivocal discontent about
them. They have an option to terminate them, if they so wish. An election
has always been open to them from the moment that they were given the
new 2013 contracts, to either accept or reject them. Moreover, if
Applicants are unhappy about the manner in which their old 2006
contracts ended, they have a cause in law.
26. Regarding the issue of the unilateral variation of the contracts of
employment, We agree with Respondent that this is not part of the claims
of Applicants and cannot therefore be the basis of the claims for the
monetary differences. Applicants have stated in their pleadings that they
seek the monetary differences in consequence of a finding that the new
contracts were either due to misrepresentation or duress or both. Given
Our finding regarding the principal claims, the consequential relief
accordingly fails as its basis has failed to sustain.
27. We wish to comment that even if the issue of a unilateral variation was
part of the substantial claims of Applicants, it would not hold as there is
clear evidence of the termination of the old 2006 contracts, as We have
already shown. However, for purposes of emphasis, We wish to highlight
that Applicants have accepted that they were told about the ending of
their old 2006 contracts but rather refuse to accept the termination and
elect to tag it a misrepresentation. Further, Applicants accept that they
received their terminal benefits but rather attempt to argue that such was
not conclusive of a termination of employment.
28. In Our view, the above evidence and concessions are sufficient to lead
to a conclusion that the old 2006 were terminated at the time that the
new contracts came into place and therefore there was no variation. There
simply cannot be a variation of a lapsed contract of employment.
Applicants cannot accept terminal benefits and claim that their contracts
have not terminated. We wish to add that We acknowledge and accept the
principles in the authorities cited by Applicant on the issue of unilateral
variation of contracts of employment, which regrettably have not been
helpful to them.
29. Finally, We wish to comment that it cannot be accurate that if We were
to find in favour of Applicants, that would render them destitute. We say
this because, a finding in their favour would mean that the initial
contracts never ended, that there is a misrepresentation of facts which
induced Applicants to sign the new contracts. That being the case, the
effect would be that the Applicants old 2006 contracts would continue to
operate. However, We have not found this to be the case and We
accordingly reiterate Our finding above.

Page 89 of 265

COSTS
30. It was further submitted that whereas, Applicants had prayed for
costs, they have not bothered to motivate their claim. Further that
whereas Applicants had claimed an award for costs on attorney and client
basis, they have not provided any justification as such an award is made
in exceptional circumstances. The Court was referred to the cases of Nel v
Waterberg Landbouwers Co-operative Vereeniging 1946 AD 597 at 607;
and Swiss borough Diamond Mines (Pty) Ltd & another v Lesotho
Highlands Development Authority LAC 1995 1999 87.
31. Respondent prayed that under the circumstances, the prayer for costs
and the main application, be dismissed with costs in favour of
Respondent as being frivolous and vexatious. In reply Applicants
submitted that the decision to award costs is the sole discretion of the
Court. They nonetheless stated that they have not been vexatious or
frivolous, as Respondent alleges and that therefore that an award of costs
against them would not be appropriate.
32. It is Our view that Applicants have not made out a case for an award
of costs at all. No averments or motivation of any form has been advanced
in support of the award. In the same vein, it is also Our attitude that
Respondent has also failed to make out a case for an award of costs
against the Applicants. Respondent had barely alleged frivolity and
vexatiousness without illustration in specific terms how Applicants have
acted in that fashion. It is trite law that bare allegations are
unsatisfactory and unconvincing, and cannot thus not be relied upon to
make a substantive conclusion (see Mokone v Attorney General & others
CIV/APN/232/2008). Consequently, no order as to costs is made.
AWARD
We therefore make an award in the following terms:
a) That this application is refused; and
b) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 13th DAY OF FEBRUARY
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. M. THAKALEKOALA
Mrs. M. MOSEHLE

I CONCUR
I CONCUR

FOR APPLICANTS:

ADV. TLHOELI AND


ADV. MASHAILE
ADV. MOSHOESHOE

FOR RESPONDENTS:

Page 90 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU
K010/2011

LC/REV/19/2013

In the matter between:


MAKHUMALO EVELYN HLEKWAYO

APPLICANT

And
MOUNTAIN STAR LODGE (PTY) LTD
ARBITRATOR DDPR (LLJ SHALE)

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award accompanied by an application for
condonation. Only one ground of review raised. Matter not opposed and no
appearance made on behalf of 1st Respondent. Court granting the condonation
but not finding merit in the review ground. Review application being refused.
No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for the review of the DDPR arbitration award in
referral K010/2011. Only one ground of review has been raised in terms
of which Applicant seeks the review, correction and/or setting aside of the
2nd Respondent arbitration award. The matter is unopposed and no
appearance has been made on behalf of the 1st Respondent,
notwithstanding the fact that 1st Respondent was served with the
notification of hearing of this matter for this day.
2. The brief background of the matter is that Applicant had referred claims
for severance payment, unpaid public holidays, overtime, and weekly rest
days. On the 16th May 2012, the matter was heard in default of the 1st
Respondent. Thereafter an award was issued on the 8th June 2012,
wherein Applicant was awarded severance payment while the rest of her
claims were dismissed. It is this award that Applicant seeks to have
reviewed, corrected and/or set aside.
3. Realising that the referral of the review application was out of time,
Applicant also applied for the condonation of the late referral of her
review application. Having heard the submissions of Mr. Mosuoe on
behalf of Applicant, on the question of condonation, We granted same and
directed that Mr. Mosuoe proceed to address the court on the merits of
the review application. Our judgment on the merits is therefore in the
following.
Page 91 of 265

SUBMISSIONS OF PARTIES
4. Applicant submitted that the learned Arbitrator erred in that He
proceeded to hear the merits of the matter notwithstanding the fact that
the matter had been unopposed and further that there had been no
appearance for 1st Respondent on that day. It was argued that in terms of
section 227(8) of the Labour Code (Amendment) Act 3 of 2000, the learned
Arbitrator had three options namely to dismiss the referral; postpone it;
or to grant an award by default.
5. It was added that having elected to grant the award by default, the
learned Arbitrator was precluded from hearing the evidence of Applicant
but to proceed to grant her claims as they appear in the referral form. It
was argued that the conduct of the learned Arbitrator was a
misconception of the provisions of section 227(8) and that this led Him
into making a wrong conclusion. It was said that in terms of section
227(8), the learned Arbitrator had no authority to hear evidence once He
had elected to grant the award by default.
6. We confirm the content of section 227(8) of the Labour Code Act (supra),
save to say that We differ with Applicant in terms of the interpretation
advanced. The said section provides as follows,
If a party to a dispute contemplated in subsection (4) fails to attend the
conciliation or hearing of an arbitration, the arbitrator may
(a) postpone the hearing;
(b) dismiss the referral; or
(c) grant an award by default.
7. We wish to comment that from the simple reading of the above quoted
section, it neither requires the leading of evidence in either of the three
scenario presented nor does it preclude the leading of same. As a result,
the interpretation of section 227(8) that has been advanced by Applicant
is not only narrow and self-suited, but also assumes that section 227(8)
operates in a vacuum from other principles of law, and in particular the
principles of evidence. This assumption must be discarded as being
inaccurate.
8. It is a trite principle of evidence that he who alleges, bears the onus of
proof. In the case of United Clothing v Phakiso Mokoatsi & another
LAC/REV/436/2006, We explained the principle of the onus of proof in
the following,
the duty that is cast upon a litigant to adduce evidence that is sufficient to
persuade the court, at the end of the trial that claim or defence as the case
may be should succeed.
This essentially means that claimant must lead evidence to substantiate
his/her claim and that this obligation remains irrespective of whether the
claim in issue is opposed or not.
9. What would rather prevail in the end is that if there is no evidence to
contradict the evidence of the claimant, then the court must proceed to
Page 92 of 265

make a decision on the basis of the unchallenged evidence of the claimant


and make an appropriate order (see Theko v Commissioner of Police and
Another 1991-1992 LLR-LB 239 at 242; and Plascon-Evans Paints (TVL)
Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623). For purposes of the
case in casu, an appropriate order may be the dismissal or granting of the
award by default. On the basis of this said, it cannot be accurate that the
learned Arbitrator was precluded from requiring the leading of evidence
and as such there is no irregularity on His part.
AWARD
Our award is therefore in the following terms:
a) That the application for review is refused; and
b) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 20th DAY OF MARCH
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. THAKALEKOALA
Mr. MOTHEPU

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

MR. MOSUOE
NO APPEARANCE

Page 93 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/21/2013

In the matter between:


MATOKELO SETEMERE
MASECHABA NOVEMBER
MAMOLIEHI PHAPHATHISA
LINEO LESAOANA
KHAUHELO MAPITSI
RETHABILE RAMAROU
MAMOLEBOHENG MAHASE
MASEBABATSO MANYARELA
LIMAKATSO MALEKE
MALITABA LEKHORO

1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT

And
MEDIGUARD WIC CLEANING
SERVICES (PTY) LTD

RESPONDENT

JUDGMENT
Claims for dismissal for participation in an unprotected strike. Respondent
failing to both oppose the matter and to attend the hearing. Court proceedings
on the basis of the unchallenged factual averments of the Applicants.
Applicants claiming an unfair dismissal both procedurally and substantively.
Applicants case being that Respondent has not been consistent in disciplining
its employees and further claiming the breach of the maxim nemo judex in
causa sua. Court finding no inconsistency and further that the principle of
nemo judex in causa sua was not breached. Applicants case being dismissed
and no order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is a claim for unfair dismissal for participation in an unlawful strike.
It was heard on this day and judgment was reserved for a later date.
There are 10 Applicants in all and they were all represented by Mr.
Hlalefang Seoa-Holimo from the Lesotho Workers Association. There was
no appearance for the Respondent. The matter was heard in default
following a successful application by Applicants for judgment in default.
From the 10 Applicants only two testified and these were Matokelo
Setemere and Limakatso Maleke, who are the 1st and 9th Applicants,
respectively. Affidavits were filed in respect of the Applicants who did not
testify. The content of the said affidavits was simply for those applicants
to affirm and align themselves with the evidence of the 1st and 9th
Applicants to the extent that it related to them.
Page 94 of 265

2. It was the Applicants case that on the day in issue, some of them,
including other employees of Respondent who are not party to these
proceedings, were leaving their work premises at Tepong Hospital, after
their night shift while others were coming in for the morning shift. They
were 16 in number. When both groups approached the gates to the
Tepong premises, they noticed that the Tepong striking employees had
barricaded the exit/entrance point. They then waited to observe if it was
safe to both exit and make entrance.
3. After a while, only Applicants proceeded on their separate quests as those
who were coming in did and went to their respective duties, while those
who were leaving left for their individual homes. The 6 other employees
stayed behind and joined in the strike action. All the 16 employees were
later charged for participation in an unprotected strike. From the 16, only
the 10 Applicants were found guilty and dismissed from employment,
while the others were not and continue to remain in employment to this
day.
4. Applicants claim that the Respondent has been inconsistent in
disciplining its employees in that all the 16 were charged of a similar
offence but that the sanctions imposed upon them were different. It was
further argued that, in so doing, the Respondent acted unfairly and thus
committed a substantive breach towards their dismissal. Reference was
made to section 10(1)(iv) of the Labour Code (Codes of Good Practice)
Notice of 2003, in support.
5. Applicants further testified that in the hearing that led to their
dismissals, the complainant was one Mr. Khotso Hlehlisi, who is also the
manager of the Respondent Company. Following the finalisation of their
hearing, the execution of the recommendation, of the chairperson of the
hearing, for their dismissal was done by Mr. Hlehlisi, in that he is the one
who wrote their letters of termination. The said letters were handed in
and exhibited. It was argued that this was a grave irregularity as Mr.
Hlehlisi was then a judge in his own cause.
6. It was prayed that on the basis of the above, their dismissals were unfair
both procedurally and substantively. Applicants prayed for an order of
their reinstatement in terms of section 73 of the Labour Code Order 24 of
1992. In the alternative, Applicants claimed compensation of 36 months
salaries in the event that reinstatement is found to be impracticable. They
testified that they remain unemployed since their dismissal and that they
have made several efforts to find employment but without success.
7. It is trite law that the unchallenged evidence of one of the litigants in any
proceedings before Court must be accepted as the true and accurate
narration of what factually transpired (see Theko v Commissioner of Police
and Another 1991-1992 LLR-LB 239 at 242 ). Once this is done, what
remains is for the Court to determine if the said evidence sustains the
claims. By this We mean that, whether the facts presented meet the legal
Page 95 of 265

requirements for the claim and consequently the relief sought. We will
first deal with the substantive issues of the claims of Applicants.
8. A claim for an unfair dismissal that is based on inconsistency, is a
species of discrimination. It is premised on the assumption that the
circumstances prevailing between different employees were similar, but
that the employer dealt with them differently and without a justifiable
course. In support of this proposition is the finding of the South African
Labour Appeal Court in Gcwensha v CCMA & Others (2006) 3 BLLR 234
(LAC), where the Court made the following finding,
Disciplinary consistency is the hallmark of progressive labour relations
that every employee must be measured by the same standards.
Essentially, where a discrepancy in treatment is absent, then a claim for
inconsistency cannot sustain.
9. In casu, the evidence presented by the Applicants clearly and out rightly
establish a difference in the circumstances of the groups involved, with
the first group being those who were dismissed and those who remained
and continue to remain the employees of Respondent. The Applicants
have stated that they simply stayed at the entrance to observe if it was
safe to pass, while the other employees actually joined the strike. If ever
there is to be a claim, it cannot be one that is premised on inconsistency
but on something else.
10. Further, Applicants seem to harbour under the impression that once
they are all charged for the same offence, then the finding from the
individual hearings that follow must be same. This is totally inaccurate as
every case is dealt with on the basis of its own merits. While at times the
findings in one case may influence those in another bearing similar
circumstances, that it is not a binding precedent. Consequently, the
Applicants have failed to establish a case of inconsistency in their
discipline.
11. The Applicants claim on the procedural aspect of their dismissal is
premised on the maxim of nemo judex in causa sua. This maxim relates to
a situation in which a complainant is also a trier of facts. In the case of
the Lesotho Evangelical Church v John Nyabela CIV/APN/150/1980, the
Court had the following to say on the principle,
It is a known principle of law that no man may be a judge in his own
Court. A party may be disqualified from chair ship on the grounds of
identification with one of the parties or an indication of partisanship in
relation to the issue. If one has taken an active part in instituting the
proceeding or has voted in favour of a decision for proceedings to be
instituted, this makes such a person both a judge and the jury in the case.
12. In casu, the complainant and the trier of facts are totally different
persons. Rather, the complainant by virtue of his position in the
Respondent employ, executed the already made decision for the dismissal
of the Applicants. This cannot render the dismissals of Applicants unfair,
Page 96 of 265

at least on its own, more so because not even the independence of the
chairperson of the hearing has been put into question. To sustain,
Applicant must go beyond the facts that they have presented.
Consequently this claim does not hold.
AWARD
We therefore make an award in the following terms:
a) That the Applicants claims fail;
b) That this matter is dismissed; and
c) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Ms. P. LEBITSA
Mrs. L. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR RESPONDENT:

MR. H. SEOA-HOLIMO
NO APPEARANCE

Page 97 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/30/2014

In the matter between


ABIEL MASHALE

APPLICANT

And
LESOTHO REVENUE AUTHORITY

RESPONDENT

JUDGMENT
Claim for an anticipated breach of contract brought on urgent basis.
Respondent raising two points of law relating to the jurisdiction of the Court
over the claim and the lack of urgency of the application. Court further mero
muto raising another point of law relating to its jurisdiction to grant the relief
sought. Court finding that it has jurisdiction to determine a claim for an
anticipated breach. Court, however, finding that Applicant has failed to
establish urgency of the matter. Court further finding that it has no jurisdiction
to grant the relief sought. Court dismissing the application. No order as to
costs made.
BACKGROUND OF THE ISSUE
1. This is an application for prayers in the following,
(a) That respondent be interdicted from unlawfully and prematurely
terminating the applicants contract of employment which applicant
legitimately expects to terminate in July 2016.
(b) That in the alternative to prayer (a) above the respondent should
terminate applicants contract on condition that applicant is paid out the
benefits and emoluments he stands to earn until July 2016.
(c) That pending finalisation of this application the respondent is
interdicted from terminating or engaging into any process intended to affect
applicants emoluments and benefits.
2. The matter was initially scheduled to proceed on the 22nd January 2014,
but was postponed to this day to allow Respondent to file its opposition.
An interim order was granted temporarily staying the retrenchment
process against Applicant pending finalisation of this application.
Respondent did indeed file its opposition and in opposing the matter, it
raised two preliminary points. These points form the subject matter of
arguments in this judgment. In addition to these points, We also raised a
preliminary point on jurisdiction. We will deal with these points later.
3. The background of this matter is that Applicant is an employee of
Respondent in the position of Assistant Commissioner Large Tax Payers
Unit. Sometime in January 2012, Respondent commenced the process of
Page 98 of 265

restructuring positions within its structure, under a project called


Organisational Structure Alignment to Strategy (OSAS). The purpose of
the project was to align the structure of the Respondent positions to the
strategy in place.
4. Several consultations were conducted between Respondent and its
employees, including Applicant. In the consultations it was made clear to
all concerned, and that includes Applicant, that the restructuring process
would not culminate into job losses. Subsequently to thereto, Respondent
informed Applicant of its intention to retrench him, on the ground of
operational requirements. Based on the earlier made promise, Applicant
claims an anticipated breach of contract. His argument is premised on
the following,
(i) That Respondent had promised that the restructuring processes would
not culminate into job losses;
(ii) That the above notwithstanding, Respondent has indicated its
intention to retrench him; and
(iii) That this is contrary to his contract of employment which will only
end in July 2016, hence the claim for an anticipated breach.
5. Respondent seeks to have Applicants claim dismissed on the basis of the
preliminary points raised. Having heard the submissions of both parties,
Our judgment is therefore in the following.
SUBMISSIONS AND ANALYSIS
6. It was Respondents case that this Court has no jurisdiction to entertain
Applicants claim in that if falls within the exclusive jurisdiction of the
DDPR, as it involves a claim for breach of contract. Reference was made
to section 226(2)(b)(ii) of the Labour Code Order 24 of 1992, as amended.
The said section reads in the following,
The Following disputes of right shall be resolved by arbitration
(a)
(b) a dispute concerning the application or interpretation of
(i)
(ii) a breach of a contract of employment;
(iii).
7. It was added that not only is the claim a section 226(2)(b)(ii) claim, it was
brought prematurely before this Court. It was argued that Respondent
has not terminated the Applicants contrary of employment, but has
merely pronounced its intention to retrench him.
8. The second point was that this matter is not urgent as Applicant has
barely alleged urgency of the matter, without stating the factors that
make it urgent. It was specifically argued that the legal requirements for
an urgent application had not been met. It was then prayed that this
application be dismissed for lack of urgency. The Court was referred to
the judgement of the Constitutional Court of Lesotho in The President of
the Court of Appeal v The Prime Minister (Dr. Motsoahae Thomas Thabane
Page 99 of 265

& others CC/11/2013. It was argued that in this case, when addressing
the issue of urgency of the matter before Court, the Court stated that a
matter that has been brought on urgent basis, but fails to establish
urgency must be dismissed.
9. The third point, which We mero muto, raised was that the ultimate effect
of the prayers sought by Applicant was the permanent stay of the
retrenchment process, in respect of Applicant. In raising this point We
were guided by the authority in Thabo Mohlobo & others v Lesotho
Highlands Development Authority LAC/CIV/A/02/2010, where the
following was said,
Where a point of law is apparent on the papers, a court is not only
entitled but is in fact also obliged, mero muto, to raise that point of law and
require parties to deal therewith:
In view of the above authority, the issue was therefore whether this Court
had jurisdiction to make such an order, in the light Our retrenchment
law. Respondent did not have much to add save to align himself with the
attitude of the Court.
10. Applicant answered that in as much as the claim is based on a breach
of contract, it relates to an anticipated beach and not the actual breach.
It was argued that it cannot be accurate that the claim is premature, by
the mere fact that an actual breach has not occurred. The Court was
referred to the judgment of the Labour Appeal decision in Tumelo
Monyane v National University of Lesotho LAC/CIV/A/23/2013, in
support. It was submitted that in the said judgment, the Court made a
finding that a decision taken but not yet implemented, which has a
prejudicial effect on another upon implementation, may be interdicted
from being actually implemented.
11. Further, that even assuming it was entirely a breach of contract claim,
it involves issues that do not fall within the jurisdiction of the DDPR,
namely the issue of retrenchment. It was added that if this matter had to
be determined by the DDPR, it would have to delve into the matters over
which it has no jurisdiction to determine. It was argued that on the
contrary, the Labour Court has jurisdiction over retrenchments.
12. On the second preliminary point, it was argued that the issue of
urgency has been overtaken by events. It was said that in terms of the
Court of Appeal of Lesotho authority in Makhoabe Mohaleroe v Lesotho
Public Motor Transport Company (Pty) Ltd & another C of A (CIV) 16/2010,
once the matter has been postponed to allow a respondent party to plead,
the requirements for an urgent interdict application pale into
insignificance and failure to plead them cannot lead to the dismissal of
the claim. Specific reference was made to the following comment,
The point that the proceedings should not have been instituted as matters
of urgency and accordingly the point based on High court rule 8 (22) cannot
be raised at this stage on appeal where the applications were disposed of

Page 100 of 265

in the Court a quo after the appellant had been given a full opportunity to
put his case:
13. On the last point, it was argued that this Court has jurisdiction to
entertain a claim for a permanent stay of the retrenchment process, if it is
carried out in an illegal manner as Respondent is attempting to. It was
argued the jurisdiction to do so arises from sections 24(2) (a) (g) (h) and (i)
of the Labour Code Order (supra). It was added that these sections expand
the jurisdictional scope of the powers of this Court to include the claim in
casu.
14. We are in agreement with Applicant that this Court has jurisdiction to
determine an anticipated breach of contract claim. Applicants argument
finds support in the Labour Appeal Court decision in Tumelo Monyane v
National University of Lesotho (supra). Further, contrary to Respondent
suggestion that this is claim is arbitrable in terms of section 226(2)(b)(ii),
it is not. The said section relates to claims for breach of contract whereas
the claim in casu relates to a breach that is yet to occur. Therefore this
point is dismissed.
15. However, we wish to comment that assuming that this matter was
entirely a breach of contract claim, it cannot be accurate that in
determining it, the DDPR would have to delve into issues over which it
has no jurisdiction. The tribunal would only have to determine the basis
of the alleged breach of contract. Even if the DDPR would have to delve
into the issues of retrenchments as suggested by Applicant, it would be
seized with an incidental jurisdiction to do so.
16. Regarding the issue of urgency, it is trite law that an application
purporting to be urgent but lacking sufficient arguments to substantiate
that claim, stands to be dismissed on that point alone. This finds
support in the above cited Constitutional Court decision in The President
of the Court of Appeal v The Prime Minister (Dr. Motsoahae Thomas
Thabane & others (supra) and the several authorities referenced in the
judgment. We wish to add that the Court of Appeal authority in
Makhoabe Mohaleroe v Lesotho Public Motor Transport Company (Pty) Ltd
& another (supra), does not advance Applicants case at all.
17. In the Makhoabe Mohaleroe v Lesotho Public Motor Transport Company
(Pty) Ltd & another (supra) authority, the issue of urgency was raised for
the first time on appeal and it related to the proceedings not before the
Court of Appeal, but the court a quo. The finding of the Court of Appeal
was that the issue of agency cannot be pleaded for the first time on
appeal especially where the application had been disposed off, without
any challenge to the issue of urgency. Consequently, We reject the
Applicants interpretation of the Makhoabe Mohaleroe v Lesotho Public
Motor Transport Company (Pty) Ltd & another (supra) authority and
uphold Respondents argument.

Page 101 of 265

18. On the third point, it is Our opinion that this Court cannot
permanently prevent an employer from going on with its retrenchment
processes, either against a single employee or all of its employees. To do
so would be for the Court to unduly encroach into the domain of the
employer. At best this Court can halt the retrenchment process pending
the execution of an order to cure an illegality or a default in the
processes. This is not the case in casu as the order sought carries a
permanent effect as far as Applicant is concerned. This we have no
jurisdiction to do and therefore it would be pointless to grant a rule,
whose substantive relief We cannot confirm.
19. We have carefully considered the decision in 24(2) (a) (g) (h) and (i) of
the Labour Code Order (supra), in this regard. They are couched in the
following,
(2) The Court shall have the power
(a) to inquire into an decide the relative rights and duties of employees and
their respective organisations in relation to any matter referred to the Court
under the provisions of the Code and to award appropriate relief in case of
infringement.

(g) to fix an amount of compensation for loss of or damage to the property of


an employer where such loss has been occasioned by the wrongful act or
omission of his or her employee.
(h) to adjust and set off one against the other all claims on the party of
either the employer or employee arising out of incidental to such relation
between them as the Court may find, whether such claims are liquidated or
unliquidated or are for wages, damage to person or property or for any
other cause, and to direct payment of the balance found due by one to the
other;
20. The above provisions do not in any way open doors for this Court to
permanently halt a retrenchment process. While subsection 2(a) provides
room for this Court to deal with an anticipated breach of contract claim,
both subsections (2)(g) and (2)(h) depend on there being a breach to
sustain. In casu, no such claim has arisen as Respondent has not
terminated Applicants contract. Further, Applicant has not illustrated
how the communication of the intention to retrench him has resulted in
there being loss to him. Consequently, Applicants claim and arguments
do not hold.
COSTS
21. Respondent had prayed that this application be dismissed with costs.
It was argued that this application is an abuse of court process as it is
premature and does not establish urgency. Reference was made to the
Constitutional Court judgment in The President of the Court of Appeal v
The Prime Minister (Dr. Motsoahae Thomas Thabane & others (supra),
where the Court stated that a claim that has been brought on urgent
basis but fails to establish urgency may be dismissed with costs. No

Page 102 of 265

submissions were made on behalf of Applicant either in favour or against


the prayer for costs.
22. In Our view, the authority cited by Respondent leaves it in the
discretion of the Court to make an award of costs and as such it is not
binding to the letter. We have stated before that this Court is not bound
by the practices of ordinary courts in dealing with the issue of costs (see
Teba Ltd v DDPR & another LC/REV/38/2012; Kopano Textiles v DDPR &
another LC/REV/101/2007; Mapaballo Mokuoane v Care Lesotho
LC/25/2012). We only award them in extreme circumstances of frivolity
and vexatious conduct during the proceedings. The circumstances of the
case in casu are not so extreme as to warrant an award for costs.
Consequently We decline to make same.
AWARD
We therefore make an award in the following,
a) That this application is dismissed for the reasons stated above;
b) The interim order granted on the 22nd January 2014 is discharged; and
c) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 7th DAY OF FEBRUARY
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mr. S. KAO
Mrs. L. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. MOLATI
ADV. MANYOKOLE

Page 103 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU
A0951/2011

LC/REV/36/2012

In the matter between:


MASEKHANTO SEKHANTO

APPLICANT

And
MALUTI MOUNTAIN BREWERY
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. Applicant raising three grounds of
review. 1st Respondent raising two points of law namely that grounds raised
are appeal and not review grounds; and that the grounds of review are so
vague that it is difficult to determine the issues. Court finding that the grounds
raised are prima facie review grounds. Further that the point relating to the
vagueness of the pleadings has been overtaken by events. Court further
finding merit in only one ground and dismissing the other two. Court granting
the review and remitting the matter to the DDPR to be heard de novo before a
different arbitrator. No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for the review of the DDPR arbitration award in
referral A0951/2011. Three grounds of review have been raised in terms
of which Applicant seeks the review, correction and/or setting aside of the
2nd Respondent arbitration award. The matter was opposed and both
parties were in attendance throughout the review proceedings. Applicant
was represented by Adv. Thabane while 1st Respondent was represented
by Adv. Loubser.
2. 1st Respondent had two points of law on the basis of which it sought the
dismissal of the review application. The first point related to grounds
raised being appeal disguised as review. The second point related to the
alleged review grounds being so vague that it is difficult to identify the
issues. We wish to highlight that at the commencement of the
proceedings, parties indicated to the Court that they wished to adopt a
holistic approach to the matter. Specifically, they stated that they would
argue the points of law together with the merits. We agreed with the
parties wishes and accordingly directed that they proceed to address Us.
Our judgment is therefore in the following.

Page 104 of 265

SUBMISSIONS OF PARTIES
3. The first ground of review is that the learned Arbitrator failed to apply Her
mind to the totality of facts before Her. It was submitted in amplification
that Applicant had testified that she was not the custodian of the policies
of the 1st Respondent. Further, that the policies of 1st Respondent were
kept and stored at a document centre and that the custodian was one of
the employees of the 1st Respondent Company, called the document
controller. It was added that Applicant had testified that she only had a
read only access, like any other employee of the 1st Respondent, unlike
the document controller who had full access to the policies.
4. Applicant argued that this notwithstanding, the learned Arbitrator made
a conclusion that Applicant was the custodian of the policies of the 1st
Respondent and on this basis, She made a conclusion that a
manipulation of the policies of the 1st Respondent and failure by
Applicant to report such manipulation to the management of 1st
Respondent, amounted to a dereliction of duty on her part. It was argued
that in making this conclusion, the learned Arbitrator did not apply Her
mind to the above evidence of Applicant. The Court was referred to pages
30 to 31 and 45 to 47 of the record of proceedings before the 2nd
Respondent and paragraph 17 of the arbitration award. It was further
argued that failure to consider this evidence led to the wrong conclusion
being made.
5. The second ground of review is that Applicant had testified that she only
became aware about the manipulation on the policy after she had sent it
out for legal opinion. She argued that this notwithstanding, the learned
Arbitrator made a finding that Applicant sent a manipulated policy for
external opinion, without alerting the external lawyers that the said policy
had been manipulated. It was argued that this finding was unreasonable.
The Court was referred to paragraph 17 of the arbitration award for this
finding.
6. The third ground of review is that Applicant led evidence to explain why
she could not collect the minutes of the initial hearing on time, but that
this notwithstanding, the learned Arbitrator made a finding, on
paragraph 21 of the arbitration award, that she did not give any
explanation at all. It was argued that in so doing, the learned Arbitrator
distorted the evidence of Applicant and that this constitutes an
irregularity.
7. In answer, 1st Respondent submitted that the grounds raised by
Applicant are review disguised as appeal. It was argued that Applicant is
merely dissatisfied with the arbitration award as the grounds raised do
not refer to any irregularity in the process of the hearing of her
application. Reference was made to section 228F(34) of the Labour Code
Amendment Act 3 of 2000, in support. It was added that the grounds
raised are so vaguely stated that it is difficult to determine the issues

Page 105 of 265

that Applicant is complaining about. It was prayed that on the bases of


these two points, that the matter be dismissed with costs.
8. On the first ground of review, Respondent submitted that the case before
the learned Arbitrator was not over custodianship but dereliction of duty
on the part of Applicant. It was added that Applicant was dismissed for
dereliction of duty, in that she failed to report a manipulation on the
policy to management, contrary to her obligations to do so. The Court was
referred to pages 25 to 27 of the record of proceedings, for evidence on the
duties of Applicant. It was highlighted that among the duties, is to report
to management on any issues that relate to the policies of the 1st
Respondent. It was argued that the finding of the learned Arbitrator was
based on the totality of evidence before Her and that She properly applied
Her mind to all facts before Her. It was concluded that Applicant was
clearly unhappy with the award of the learned Arbitrator.
9. On the second ground, Respondents answer was that Applicant had
testified that the very same document which she sent for external legal
opinion, was at face value obviously manipulated. It was argued that as a
result, the only conclusion that the learned Arbitrator could made was
that Applicant sent a manipulated document well aware that it was
manipulated and without alerting the external lawyers about it. It was
added that on these bases, the conclusion of the learned Arbitrator is
reasonable.
10. We wish to comment that the approach agreed upon by parties has to
a large extend been to the benefit of the Applicant. We say this because in
taking this approach, Respondent opened doors for Applicant, not only to
establish that the grounds raised are prima farcie review grounds, but
also argue with the reference to the record in support of her defence. With
due regard to the submissions made above, We are in no doubt that the
grounds raised are review and not appeal grounds as claimed by the 1st
Respondent. Essentially, the above grounds sound in procedure. What
therefore remains is whether, they have enough merits to sustain the
relief sought.
11. On the issue of the review grounds being vague, We also find no merit
in the argument. The premise of Our finding is basically that 1st
Respondent has been able to plead in defence to the Applicants grounds
of review, without even indicating any difficulty to do so. This essentially
means that 1st Respondent is clear on the case of Applicant. If 1st
Respondent truly found the review grounds vague, the proper procedure
would have been to raise a point of law prior to filing its answer. We
therefore find that this point of law has been overtaken by events and as
such it is not competent at this stage. In the light of this finding, We
make no order as to costs and proceed to deal with the merits of the
review.

Page 106 of 265

12. On the first ground of review, the issue relates to the finding of the
learned Arbitrator at paragraphs 17 and 18 of the arbitration award. It is
under these paragraphs that She made a finding that Applicant was
guilty of dereliction of duty. We have carefully considered these two
paragraphs, in line with the submissions of parties and the referenced
portions of the record of proceedings. We wish to confirm that pages 25 to
27 relate to the duties of Applicant, while pages 45 to 47 relate to the
evidence in relation to there being a documents centre and Applicants
access. In essence, the content of these pages is as parties have put.
13. However, upon careful considerations of the award, the conclusion
that Applicant had derelicted seems to flow from an earlier finding that
Applicant had conceded that she was the custodian of the policies of 1st
Respondent. Applicant has denied that she ever made such a concession,
but rather says that the learned Arbitrator failed to apply Her mind to her
evidence refuting this suggestion. This has not been denied by 1st
Respondent. Rather, 1st Respondent has reacted by simply arguing that
custodianship was not the issue.
14. It is trite law that where there is no evidence to contradict the evidence
of a party to proceedings, then the court must proceed to make a decision
on the basis of the unchallenged evidence of that party and then make an
appropriate order (see Theko v Commissioner of Police and Another 19911992 LLR-LB 239 at 242; and Plascon-Evans Paints (TVL) Ltd. v Van
Riebeck Paints (Pty) Ltd 1984 (3) SA 623). As a result, We accept the
Applicants version that she never made such a concession but refuted it,
as she alleges and the record reflects.
15. We have also noted from Our perusal of the record that the learned
Arbitrator did not apply her mind to the evidence of Applicant challenging
the alleged custodianship to the policies of 1st Respondent. In fact, Our
observation is that the learned Arbitrator did not consider this issues at
all and consequently could not apply her mind to what had not been
considered. It is Our view that the evidence of Applicant challenging her
custodianship to the policies of 1st Respondent was material to the
determination of the issue of dereliction. Diffidently put, the learned
Arbitrator ought to have considered and applied Her mind to that
evidence. In failing to do so, She erred.
16. Regarding the second ground of review, it is an established principle of
law that whenever the conclusion of the trier of facts is termed
unreasonable, the basic principle is that there should be no link between
the accepted facts by the trier of facts and the final conclusion made.
Supportive of Our view is the authority in Carephone (Pty) Ltd v Marcus
NO & 7 others (1998) 11 BLLR 1093 (LAC) at 1103, where the Court held
that there must be a rational objective justifying the connection made by
the decision-maker between the material available and the conclusion
made, in order for the conclusion to pass the test of being reasonable.

Page 107 of 265

17. In casu, Applicant alleges unreasonableness on the part of the learned


Arbitrator without laying its basis. Applicant only makes reference to the
conclusion without stating the accepted facts, or even referring the Court
to the accepted facts on record, that make the conclusion unreasonable.
We therefore find that Applicant has failed to establish unreasonableness.
18. 1st Respondent has not reacted to the third ground of review at all. As
a result, We proceed on the basis of the acceptance of the factual
averments of Applicant, that she gave evidence of an explanation, as
correct. We have already stated the principle involved and see no need to
reiterate. We wish to confirm that the finding of the learned Arbitrator is
that Applicant failed to provide an explanation for failure to collect the
minutes of the initial hearing on time. In fact, the learned Arbitration has
made reference to specific scenario of failure to provide an explanation.
However, in Our view, this is a case for failure to consider evidence on
record. A claim for distortion of evidence is not recognised as a review
ground in Our law.
19. Our Courts have stated the recognised grounds review in Our
jurisdiction in several cases. Authoritative in this regard is the authority
in Johannesburg Stock Exchange & another v Witwatersrand Nigel Ltd &
another 1988 (3) SA 132 (A). This authority has been cited with approval
by Our courts with specific reference to page at 152 A-E, where the
following is recorded,
Broadly, in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues in accordance with
the behests of the statute and the tenets of natural justice. Such failure
may be shown by proof, inter alia that the decision was arrived at
arbitrarily or capriciously or mala fide or as a result of unwarranted
adherence to a fixed principle or in order to further an ulterior motive or
improper purpose; or that the president misconceived the nature of the
discretion conferred upon him and took into account irrelevant
considerations or ignored relevant ones; or that the decision of the
president was so grossly unreasonable as to warrant the interference that
he had failed to apply his mind to the manner aforestated.
20. Consequently, this ground stands to be dismissed on these basis.
However, given Our earlier finding on the first ground of review, the
review succeeds.

Page 108 of 265

AWARD
Our award is therefore in the following terms:
a) That the application for review is granted;
b) The matter is remitted to the DDPR to be heard de novo before a different
arbitrator;
c) Applicant must have the matter set down for hearing within 30 days of
receipt herewith; and
d) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 31st DAY OF MARCH
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. RAMASHAMOLE
Mr. MATELA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

ADV. N. G. THABANE
ADV. P. J. LOUBSER

Page 109 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/07/13

In the matter between:


SEMAKALENG LIPHAPANG
MAMMUSA MAEMA
MOTSEKO MOTSEKO
MAMOSEMBO MPHEPHOKA
MOHLALEFI KHASU

1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT

And
LEGAL VOICE (PTY) LTD

RESPONDENT

JUDGEMENT
Claims for unfair dismissal based on retrenchment. Respondent not attending
the matter despite directive to attend and matter proceedings in its default.
Court on own motion raising a point law concerning the initiation of the
proceedings. Court finding a procedural irregularity which cannot be cured by
a condonation and dismissing the originating application without prejudice to
the rights of Applicants. Court further giving direction to parties. No order as to
costs being made.
BACKGROUND OF THE ISSUE
1. These are claims for unfair dismissal based on the retrenchment of
Applicants. This matter has a rather involved history. Briefly, this matter
initially had six Applicants. On the 23rd September 2013, We made an
order to the effect that one Shahid Hassan, who was 1st Applicant then,
be removed from these proceedings on account of a misjoinder. We had
then ordered that this matter proceed on this day in respect of the
remaining applicants. This notwithstanding, Respondent failed to attend
the hearing. As a result, we directed that the matter proceeded in its
absence.
2. At the commencement of the proceedings, We mero muto raised a point of
law that the Applicants claims had been improperly referred with this
Court. We explained that the originating application did not comply with
Rule 3, of the Labour Court Rules of 1994, in that it was not signed by the
Applicants. We went further to explain that this being the case, there had
been an improper procedure. Mr Mosuoe, who appeared for the
Applicants rejected the suggestion and claimed to have fully complied
with the Rules of this Court. We then directed that he address Us on the
issue.
Page 110 of 265

SUBMISSIONS AND ANALYSIS


3. Mr. Mosuoe acknowledged that he had signed the originating application
on behalf of the Applicants. He however, argued that this did not
constitute a procedural irregularity. He stated that he had been
authorised to do so in terms of the authority to represent filed of record.
He added that in terms of the said document, he had been authorised by
Applicants to act on their behalf and in their place, and that this included
signing the originating application on their behalf. He further argued that
the fact that the Applicants have not personally singed the originating
application did not prejudice anyone, including the Court.
4. We wish to note that the Rules of the Court are made for the Court and
not the Court for them. This essentially means that the Court can
condone a breach of its rules. However, this is only limited a breach of the
Rules that does not go to the root of the claim referred. In a case where
the breach goes to the root of the claim before court, the Court has an
obligation to uphold its rules lest it set a very ruinous precedence. In
essence, failure to comply with the rules in the latter instance is
prejudicial to the very existence of this Court.
5. In casu, the provisions of Rule 3 of the Rules of this Court provide that an
originating application must be signed by an applicant party. Specific
reference is made to Rule 3(h), which provides as follows,
3. Proceedings for the determination of any matter by the Court shall be
instituted by any interested person or persons presenting, or delivering by
registered post, to the Registrar an originating application, which shall be
in writing in or substantially in accordance with Form LC 1 contained in
Part A of the Schedule and shall

(h) be signed and dated by the applicant


6. Mr. Mosuoe does not deny the fact that it is himself who has signed the
originating application. If this is the case, and in view of the above
provisions, clearly there is no doubt that the provisions of Rule 3 have
been flawed. This is a breach that goes to the competence of the claim
before this Court. We say this because, the referred claims against
Respondent have been made by Mr. Mosuoe and not the Applicants.
Consequently, Applicants have no claims before this Court.
7. Even if We were to take the argument of Mr. Mosuoe, that where an
authority to represent have been filed, it authorises him to institute
claims on behalf of Applicants, that cannot hold for two reasons. Firstly,
an authority to represent authorises representation where a claim has
already been referred with the Court. In essence the institution of a claim
is the condition for the authority to represent. This is different from a
special power of attorney which authorises the agent to act in the place of
the principal even before a claim can arise.

Page 111 of 265

8. Secondly, an authority to represent that has been filed of record, on


behalf of the Applicants, does not authorise Mr. Mosuoe to appear on
their behalf. We say this because it is phrased as follows,
BE PLEASED TO TAKE NOTE THAT the Applicant in this matter has
chosen the offices of Attorneys, Mosuoe & Associates, Room 31,
Tradorette Mini-Top Adjacent to Ackermans, Kingsway Maseru as
the address at which she will receive all notice and service of process in
this matter.
This document merely introduces Mr. Mosoues addresses as the
addresses where Applicants will receive all process in this matter.
Consequently, We maintain Our stance that this matter has been
improperly referred and that it amounts to no claim at all.
AWARD
We therefore make an award in the following terms:
a) That claim before Court is dismissed without prejudice to the rights of the
Applicants;
b) Applicants may refer a claim with this Court in line with Rule 3 of the
Rules of this Court, if they so wish;
c) Should Applicants elect to refer a claim, they must do so within 30 days
of receipt herewith; and
d) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 18th DAY OF MARCH
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. M. THAKALEKOALA
Mr. R. MOTHEPU

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. MOSUOE
NO ATTENDANCE

Page 112 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/40/2014

In the matter between:


NKATANA PHATELA
TIU MOSALA
THAPELO KOALI
MAPHALI PHAMOTSE
MAMPINANE MASUPHA
MATANKI MOHLAKANA
MAMASHEANE MATELA

1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT

And
DIRECTOR DEPARTMENT OF RURAL
WATER SUPPLY
P. S MINISTRY OF ENERGY,
METEOROLOGY & WATER AFFAIRS
MINISTER OF ENERGY,
METEOROLOGY & WATER AFFAIRS

1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT

JUDGMENT
Application for a declaratory order made on urgent basis. Court requiring
parties to make addresses on the urgency of the matter. Court considering the
two requirements for urgency. Applicant succeeding to establish inconvenience
but failing to establish that they would not obtain substantive relief if heard on
ordinary modes and period. Court finding that the matter is not urgent and
ordering that it be heard through normal modes and periods. No order as to
costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for a declaratory order in the following terms,
1. That the rules of this Honourable Court pertaining to normal modes and
periods of service be dispensed with in account of urgency hereof.
2. A rule nisi be and is hereby issued returnable on the date and time to be
determined by this Honourable Court calling upon the respondents to show
cause (if any) why an order in the following terms shall not be made final: (a) That the 1st Respondents act of renewing/extending daily paid
employees contracts that ended on 31st December 2013, to the exclusion of
the applicants herein is declared unfair discrimination and therefore
unlawful.
(b) That the 1st Respondent be ordered to continue to receive applicants into
service and to pay their salaries accordingly pending finalisation of this
matter.
Page 113 of 265

(c) That the 1st Respondent consequent to order under 2 (a) above be
ordered to pay applicants salaries for the month of January 2014.
(d) That respondents pay costs of suit only in the event of opposition.
(e) That applicants be granted such further and/or alternative relief.
3. That prayer 1 and 2 (b) operate with immediate effect as interim order.
2. On the 21st February 2014, both Applicants and Respondents appeared
before this Court. They indicated to the Court that they had agreed on the
granting of the interim order but only wished for the Court to put them to
terms regarding the filing of other court processes. That notwithstanding,
We indicated to parties that We wished to be addressed on the issue of
urgency. We then postponed the matter to this day for addresses on the
issue.
SUBMISSIONS
3. It was Applicants case that the matter is urgent for the reason that
Respondents are not paying their salaries on account of an illegality. It
was argued that in terms of annexure C, Respondent claims that it is not
paying the Applicant salaries because they have no contracts of
employment, as they were not renewed. It was further argued that the act
of non-renewal of the Applicants contracts, which is the main premise for
non-payment of their salaries, is discriminatory as therefore illegal. It was
submitted that the non-payment of the Applicants salaries on these
bases, is a continuing illegality which this Court cannot turn a blind eye
to.
4. The Court was referred to the case of Best Boxers Club v Lesotho Amateur
Boxing Association CIV/APN/97/2003. It was argued that in this case,
the learned Judge stated that a continuing illegality coupled with extreme
unreasonableness warrants that the matter be treated with urgency. The
Court was referred to the following passage of the judgment,
Mr. Phoofolo contended that if he had resisted the application he would
have succeeded in proving that the whole application would have to be
dismissed on account of lack of urgency. I would not have entirely agreed.
In viewing the prayers 1(a) and 1(b) one need not forget that what are
being applied for are discretionary remedies.
5. It was submitted that in this same case, the Court further went on to say,
I would have viewed the basis of the prayer 1(a) as being that a
continuing wrong was taking place to the detriment of the Applicant's
interests. Despite the lardiness of the Applicant a case of continuing
prejudice and extremely unreasonable conduct on the part of the
Respondent always cried out for urgent treatment and relief by the Courts.
This was very compelling and overwhelming. It could even explain the
reason why the Respondent itself decided not to oppose the whole
application.
It was argued that the conduct of Respondents constitutes both a
continuing illegality and unreasonable conduct and that this renders the
hearing and determination of this mater urgent.
Page 114 of 265

6. It was further submitted that a salary is the right of an employee and a


source of livelihood. As a result, where the matter involves the
intervention of the Court against the denial of the means of livelihood, the
Court is inclined to treat the matter as urgent. The Court was referred to
the case of Seeiso Leche v Telecom Lesotho & others LAC/REV/26/2009.
It was submitted that this case merely illustrates that a salary is the
property right of an employee. The Court was further referred to the case
of Standard Lesotho Bank Limited v T. J. Construction (Pty) Ltd & others
CIV/APN/592/2012. It was submitted that in this authority the Court
made a finding that any matter involving money, which is the right of
parties, must be heard on urgent basis.
7. It was furthermore submitted that Applicants would have no alternative
remedy if the matter is to be heard through normal modes and periods of
this Court. It was argued that this claim can only be heard and
determined to finality by this Court, as the Directorate of Dispute
Prevention and Resolution (DDPR) would have no jurisdiction to hear and
determined a claim that is based on discrimination. It was added that
given that the relief sought depends on the declaration of the conduct of
Respondent as being discriminatory, then this Court is the proper forum
of referral.
8. It was argued that the Applicants have acted swiftly in bringing this
matter to Court. It was said that in employment law, the rule is that
parties must explore and exhaust all local remedies before they proceed
to the Courts. It was argued that this is what Applicant did in the period
between the time that the dispute arose and its referral with this Court.
The Court was referred to several correspondence between Applicants and
Respondents, and in particular annexures B and C.
9. It was Respondents case that the matter is not urgent. It was submitted
in support, that Applicants have no right to the salaries in issue as their
contracts have ended. It was further submitted that Applicants have
failed to act swiftly in bringing this matter before this Court, as they
waited for 6 days before they could seek the intervention of this Court. It
was argued that this illustrates that the matter is not urgent and must
therefore be heard in terms of the ordinary modes and period of this
Court. The Court was referred to the cases of Mahlakeng and Others v
Southern Sky (Pty) Ltd and others CIV/APN/240/2003; and Commander of
LDF and Another v. Matela LAC (1995-99) 799, in support.
ANALYSIS
10. Where a matter is brought on urgent basis before this Court, the
applicant party must establish the following,
That the circumstances of the matter require that it be heard and
determined on urgent basis; and
That if the normal modes and periods of the Court are followed, an
applicant party will not obtain the substantial relief sought.
Page 115 of 265

(see Aroma Inn v Hypermarkets & Another 1981 (4) SA 108 at pp 110-111,
cited with approval in Motemoka Mokabe v Security Lesotho (Pty) Ltd
LC/98/1995)
11. In casu, Applicants have attempted to illustrate that there are pressing
circumstances that render the matter worthy of being heard on urgent
basis. We wish to note that We acknowledge the authorities cited in
support of the arguments raised by Applicants. In Our view, the
Applicants case is premised on that fact that they have not received
salaries in January 2014 and that they are in fear that they will not get
paid in February as well. While Respondents argue that Applicants have
not right to the salaries and therefore not entitled to payment, We are of
the view that this is an issue mainly for determination in the merits of the
matter.
12. What is clear to Us and relevant for purposes of determining the issue
of urgency is the fact that the claim involves the non-payment of salaries.
Under the circumstances, We are of the view that this is pressing for the
Applicants, particularly as they alleged that their livelihood is derived
from their salaries. In essence, Applicants have been able to establish
that the non-payment of salaries are an inconvenience to them. We wish
to add that We are convinced that Applicants have acted swiftly in
bringing this matter before this Court. The time taken to refer this matter
is reasonable given the circumstances placed before Court.
13. However, this fact alone is not sufficient justification for the matter to
be heard and determined on urgent basis. The reason is not hard to find
as almost all, if not all, of the employment disputes centre around the
livelihood of applicant parties. As a result, if this Court were to determine
this issue solely on the basis of the first requirement, it would set a very
ruinous precedent which would open up a can of worms as each and
every employment dispute would be referred to this Court on urgent
basis.
14. In addressing the second requirement, Applicants claimed that there
would be no other remedy available to them, as the DDPR would not have
jurisdiction to hear and determine their claim. We agree with Applicants
that the DDPR has no jurisdiction to entertain a claim that is based on
discrimination and that as a result, it would not have jurisdiction over
their claim. However, the issue under the second requirement is whether
or not Applicants would obtain their substantial relief if heard in terms of
the ordinary modes and period of this Court.
15. There is nothing in the submissions of Applicants that suggests that
they would not. Rather, their submissions simply attempt to justify why
they approached this Court and do not in any way justify the approach
adopted. We therefore find that the test for urgency is not met. Supportive
of Our finding is the authority in Authoritative in this regard is the

Page 116 of 265

authority in Makhuva v Lokoto Bus Service (Pty) Ltd 1987 (3) SA 376, at pp
389-390, where the Court held as follows,
"I am not persuaded that the matter was so urgent that anything more
drastic than enrolment on the motion roll even in the ordinary way, even if
that were on short notice, was required. In the present case some financial
loss to applicants is alleged, albeit faintly, but there is no suggestion that it
would be irrecoverable. Certainly the reasons which Fagan J. gave in
Aroma Inn case cannot rescue the present applicants in the sense that they
would be sustaining losses which they could not possibly recover by
'remedy in due course'."
AWARD
We therefore make an award in the following terms:
a) That this matter is not urgent;
b) The prayer for dispensation is refused;
c) That the matter must follow the ordinary procedures pertaining to the
times, filing and allocation of dates for hearing; and
d) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 26th DAY OF FEBRUARY
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mrs. THAKALEKOALA
Mrs. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR RESPONDENTS:

ADV. TLHOELI
ADV. MOHAPI

Page 117 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/161/2013

In the matter between:


MAPESELA MOEJANE

APPLICANT

And
ELLERINES FURNISHERS (PTY) LTD

RESPONDENT

JUDGMENT
Application in terms of section 37 of the Labour Code Order 24 of 1992.
Applicant approaching the Court on urgent basis. Respondent challenging the
urgency of the matter and asking for the dismissal of the matter with costs.
Respondent further challenging the reasonableness of the harm feared by
Applicant. Court finding that the matter is not urgent. Court further finding that
the fear of harm is not reasonable and dismissing the application.
Furthermore, Court not finding the circumstances of the matter warranting an
award of costs and therefore declining to make an award of costs.
BACKGROUND OF THE ISSUE
1. This is an application that has been made in terms of section 37 of the
Labour Court Order 24 of 1992. The said section provides as follows,
Where it appears to the President of the Court that an employer against
who proceedings have been instituted under the provisions of the Code is
likely to abscond to avoid payment of wages or other sums of money owed
to any of his or her employees, the President may order such employer to
post a bond until the hearing of the proceedings or until earlier payment of
such wages has been made in full.
2. In the light to the above section, Applicant prays for an order in the
following,
a) That this matter be heard in terms of the provisions of the Labour Court
Rules for an urgent interlocutory relief
b) That the respondent be ordered to post a bond with the Honourable
Court equivalent to the amount awarded in favour of applicant,
M374 328.00 in C0035/13 pending finalisation [of] the review proceedings
main hereto.
c) Costs only in the event of opposition hereto.
3. The facts surrounding this application are that, Applicant was an
employee of the Respondent until his dismissal for misconduct on the
26th September 2012. He thereafter referred a claim for unfair dismissal
with the DDPR, wherein an award was issued in his favour. In terms of
Page 118 of 265

the said award, Respondent was ordered to pay to Applicant, the amount
of M374,328.00 as compensation for the unfair dismissal.
4. Respondent then initiated review proceedings on the 17th December 2013,
wherein it sought the review, correction and/or setting aside of the said
award. The said application was however, only served upon Applicant ton
the 7th January 2014. On the 29th January 2014, Respondent appeared
before this Court for an order of stay of the enforcement of the said
arbitration award and the dispatch of the record of proceedings in the
same referral. There being no opposition to the prayers sought, they were
accordingly granted and an order was made to that effect.
5. On the 4th February 2014, Applicant initiated the current proceedings
and had them set down for hearing on the 7th February 2014, for the
granting of prayer a). On this day, both parties appeared before this Court
and it was agreed that the matter be postponed to the 19th February
2014, for argument and to allow Respondent to file its opposition. In
opposing the matter, Respondent denied that the matter is urgent or that
there was reasonable apprehension of danger. On the basis of this, it
sought the dismissal of the application with costs as amounting to an
abuse of the processes of this Court.
6. During the hearing, Respondent argued that Applicant should not be
allowed to make submissions in reply for the reason that he has failed to
formally reply to Respondents answer. It was submitted that it is a rule
in motion proceedings that parties must stand and fall by their pleadings
so that what was not pleaded cannot be argued. The court was referred to
the case of Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd
1984 (3) SA 623. In reply, Applicant submitted that there is no rule of this
Court that makes a reply mandatory. Further that failure to formally
reply does not mean that the averments contained in the answer are
admitted.
7. On the first issue, We are in agreement with Respondent that where a
party has not formally pleaded, they have no basis against which to make
submissions. Authoritative and supportive of Our finding is the decision
of Ramodibeli AJ in Kaone Leoifo v Bokailwe Kgamena & another
CA/048/2007, where he make the following remark,
It is trite that a case can only be decided by the court on the pleadings and
evidence before it. It is not for the court to make out a case for the
litigants. Nor can this Court properly decide the matter on the basis of
what might or should have been pleaded but which was not pleaded.
8. The principle in Kaone Leoifo v Bokailwe Kgamena & another (supra)
forms part of Our law and has been applied by Our Labour Appeal Court
in the case of Tsotang Ntjebe & others v LHDA and Teleng Leemisa &
others v Lesotho Highlands Development Authority LAC/CIV/17/2009. We
wish to add that while there is no rule that makes the filing of a reply
mandatory, that option is left at the behest of the parties. The Court
Page 119 of 265

simply cannot compel any of the parties to plead where they have no
desire to do so, in as much as the Rules of this Court cannot purport or
attempt to do so.
9. Regarding the second issue, it is an established principle of law that what
is pleaded in affidavits but not contradicted, should be taken as true and
accurate. Authoritative in this regard in the authority in Plascon-Evans
Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd (supra). This authority and
the principle enunciated, have been cited with approval by Our Court of
Appeal in the cases of Makhoabe Mohaleroe v Lesotho Public Motor
Transport Company (Pty) Ltd C of A CIV/06/2009; Mathiba Malothoane v
Commissioner of Police & another C of A CIV/18/2009.
10. On the basis of this said above, We find that Applicant has no right of
audience to submit in reply and further that what is contained in the
Respondent answer is accepted as unchallenged. Consequently, We will
only consider the submissions of Applicant to the extent that they relate
to his pleadings in chief. In view of this finding, We now proceed to deal
with the merits of the matter.
SUBMISSIONS
11. It was Applicants case that since his dismissal on the 26th September
2012 to date, Respondent Company has closed down two of its branches,
at Hlotse in the Leribe district and at Sefika complex in the Maseru
capital. It was submitted that these branches were closed down on the
ground of what was termed trading at severe loss. The Court was
referred to annexure MM1 in support. It was added that this is indicative
of the fact that Respondent is undergoing a serious financial strain that is
headed towards the full closure of its business in Lesotho.
12. Applicant further submitted that he is thus in fear of the likelihood
that Respondent will have closed down all of its branches in Lesotho by
the time that the review application is heard and finalised. He argued that
should closure occur as anticipated, he will suffer irreparable harm, as
this Honourable Court will not be able to enforce his award, should the
review application fail. Applicant added that an order in terms of section
37, will guarantee that his right to the awarded amount is protected.
Further, that Respondent will not suffer any prejudice from the granting
of the order sought, as the posted amount will be returned should the
review application succeed.
13. It was argued that the right that Applicant seeks to have protected
accrued the moment that an award was made in his favour. It was further
argued that the order for stay of enforcement, which was granted on the
29th January 2014, has merely postponed the implementation of the
award to a future date and that it did not extinguish it altogether. It was
submitted that as such, the circumstances surrounding this application,
call for urgent attention to the matter. It was added that, it would also be
in the interest of both parties if this matter is dealt with on urgent basis
Page 120 of 265

before the review application is heard and finalised. It was prayed that
this application be granted as prayed.
14. It was Respondents case that the fear of harm on the part of Applicant
is not reasonable. It was stated whereas two branches has since closed
down, Respondent still has eighteen branches that are up and running
around Lesotho. It was submitted that the closure of the said branches
was due to the inability to make profits. It was added however, that all
the employees of the closed down stores have been absorbed into other
operating branches. It was argued that this a clear indication that
Respondent is not undergoing any financial strain at all.
15. It was further submitted that Respondent does not intent to close
down its business in Lesotho. It was added that evident to this are
annexures EF2 and EF3, which are sublease agreements in respect to the
Leribe and Butha-Buthe branches of Respondent. It was submitted that
although the said sublease contracts will expire in 2016 and 2015,
respectively, they contain the Respondent desire to extend them by three
and two more years, respectively. It was concluded that if anything at all,
the contracts evidence that Respondent is far from closing down.
16. It was argued that even assuming that the fear of apprehension of
harm was reasonable, Applicant has no right to protect. It was submitted
that the moment an order for stay of enforcement was granted, it took
away the said right. It concluded that in the absence of a right to any
claim, nothing is owing to Applicant. It further argued that the amount in
issue is neither certain nor ascertainable as it is based on what the
learned Arbitrator considered fair and equitable. Reference was made to
the case of First National Bank of South Africa Ltd v Myburgh & another
2002 (4) SA 176 (C) at 181F-H.
17. Regarding the issue of urgency, it was argued that this matter is not
urgent and that as such it must be dismissed with costs as an abuse of
court processes. It was argued that Applicant had failed to act swiftly in
that this Court was only approached on the 7th February 2014, after an
order for stay and dispatch of the record of proceedings had already been
granted. It was added that this was about a month from the time that
Applicant became aware of the review proceedings. It was submitted that
above narration merely illustrates that if at all there is to be any urgency,
it was self-created. It was argued that in law, this warrants the dismissal
of the matter. The Court was referred to the case of B. P. Lesotho (Pty) Ltd
v S. M. Moloi LAC (2005-2006) 429, in support.
ANALYSIS AND FINDINGS
18. The facts presented established that whereas only two branches were
closed down in the period between Applicants dismissal and the initiation
of the current proceedings, all the employees of Respondent who were
based in the closed branches were absorbed into other branches of
Respondent that are up and operating. In Our view this contradicts
Page 121 of 265

Applicants claim that Respondent is undergoing a financial strain. In


fact, it suggests that Respondent is free of strain.
19. We are of the view that the Respondent business will not close down,
at least anytime soon as facts before us lean towards longevity. As a
result, the fear of closure on the part of Applicant is not reasonable. While
We agree with Applicant that he has a right to the awarded amount, at
least until the award has been set aside, he has however failed to
convince Us that his right needs to be protected. Closure of 2 out of 20
stores simply cannot hold as sufficient and reasonable ground of fear of
harm.
20. We wish to comment that the argument about the awarded amount
not being liquidated, payable or ascertainable, just cannot sustain.
Applicants claim has been liquidated by the DDPR in clear and certain
terms. Further, the authority in First National Bank of South Africa Ltd v
Myburgh & another (supra), does not advance Applicants case in any way.
That authority deals with an application for a summary judgment.
21. Regarding the issue of urgency, We are in agreement with Respondent
that this matter is not urgent at all. There is no reasonable fear of harm
that Applicant is facing. In fact, Applicant will still have a remedy even if
the ordinary periods of this Court are observed. In addition, Applicant has
failed to act swiftly in bringing this application to this Court. Whereas he
became aware of the review application on the 7th January 2014, he only
approached this court about a month later. In Our view, if at all there is
to be any urgency, it is one that is self-created and where this is found to
be the case, Our law provides for the dismissal for such a matter (see B.
P. Lesotho (Pty) Ltd v S. M. Moloi (supra).
22. Regarding the issue of costs, Respondent relies on the authority in B.
P. Lesotho (Pty) Ltd v S. M. Moloi (supra). We have gone through this
authority and it provides that where urgency is alleged but not
established, the application in issue will be taken to be an abuse of court
process and a Court may order costs against an applicant party. In Our
view, this leaves it within the discretion of the Court that is seized with
such a matter to or not make such an award.
23. We have stated before that this Court only makes an award of costs in
extreme circumstances that involve frivolity and vexatious conduct (see
Teba Ltd v DDPR & another LC/REV/38/2012; Kopano Textiles v DDPR &
another LC/REV/101/2007; Mapaballo Mokuoane v Care Lesotho
LC/25/2012; Abiel Mashale v Lesotho Revenue Authority LC/30/2014).
Neither of these grounds have been alleged by Respondent against
Applicant, nor have We found them to exist in casu. It is in fact Our
opinion that, while Applicant has failed to make out a case for the relief
sought, the circumstances of the case in casu are not so extreme as to
warrant an award for costs. Consequently We decline to make same.

Page 122 of 265

AWARD
On the basis of the above reasons, We therefore make an award in the
following terms:
a) That the application is dismissed; and
b) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 25th DAY OF FEBRUARY
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mr. MATELA
Mrs. L. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. MACHELI
MISS. CHOBOKOANE

Page 123 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/76/2013

IN THE MATTER BETWEEN


MAKAMOHELO MAKAFANE

APPLICANT

AND
ZHONGTIAN INVESTMENT (PTY) LTD
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Claim for unfair dismissal based on the employers operational requirements.
Respondent representative withdrawing in the course of the proceedings
Court finding withdrawal to be malicious and directing that the matter proceed
uncontested. Court finding that dismissal of Applicant to have been unfair
and ordering reinstatement in terms of section 73(1) of the Labour Code order
24 of 1992. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal based on the operation requirements
of the employer. The claim was initially referred to the Directorate of
Dispute Prevention and Resolution (DDPR) for resolution. Conciliation
having failed the matter was referred to this Court for resolution by
adjudication. On the first date of hearing, the matter was postponed to
make room for the subpoena of witnesses to come and testify on the real
reason for the dismissal of Applicant. It had appeared that whereas
Respondent had claimed operational requirements, Applicant claimed to
have been dismissed due to her pregnancy.
2. On the next date of hearing, neither of parties nor the witnesses turned
up. As a result, We dismissed this matter for want of presentation.
Subsequent thereto, Applicant filed an application for reinstatement of
the matter, and had the matter set down for hearing on this day. Both
parties were in attendance and they presented their agreement to the
effect that the reinstatement application be granted and that the Court
hear the matter in the merits. Having considered the application, We
found merit in it and granted same. Thereafter, We directed parties to
proceed to address the merits.
3. At the commencement of the hearing in the merits, Advocate Monate for
Respondent indicated that he would be withdrawing from these
proceedings as Respondent representative, if Applicant was no longer
going to call his witnesses from the Labour Department in Qachas Nek.
Page 124 of 265

He stated that he only came prepared to deal with the evidence of these
witnesses and nothing further.
4. Mr. Letsie for Applicant, responded that the Labour officers were not his
witnesses and as such he did not need them for his case. He indicated
that if Advocate Monate withdrew his representation, he insisted on the
matter proceeding mainly for two reasons. Firstly, that Applicant, who is
still unemployed to this day, travelled all the way from Mokhotlong to
attend these proceedings. Secondly, that Respondent had failed to attend
these proceedings yet they are trial proceedings.
5. On the strength of the submissions of Applicant We noted the withdrawal
and directed that the matter proceed into the merits. We also concluded
that the withdrawal was malicious and only meant to frustrate the
proceedings.
The reason behind the withdrawal was that because
Applicant would no longer call witnesses from Labour Offices in Qachas
Nek, Advocate Monate was withdrawing. The reason was not that
Respondent needed those witnesses and/or their testimony in its defence.
If this had been the case, We may have been influenced to postpone the
matter, which in this case was not even the Respondents wish. In view of
this said the matter proceeded unopposed in the merits.
MERITS
6. Applicant testified that she was employed by Respondent on the 1st
November 2007 until her dismissal on the 24th October 2012. At the time
of her dismissal, she earned M1,366.00 per month. She claims that she
was unfairly dismissed on account of her pregnancy. She testified that
prior to her termination, she had handed over to Respondent a letter from
the Qachas Nek Hospital. The contents of the letter were that Applicant
had been diagnosed pregnant and that she would be required to attend
monthly clinics until she delivered. The letter was handed in and marked
A1.
7. Thereafter, on the 24th October 2012, Respondent dismissed her, claiming
that it would not work with her on account of her pregnancy. Since her
employer dismissed her, she has remained unemployed to date. She
asked for reinstatement without loss of earnings or alternatively
compensation of 12 months wages, in the event of the Court finding her
reinstatement impractical.
SUBMISSIONS
8. Mr. Letsie submitted that the evidence had established that the dismissal
of Applicant was unfair, in that she was retrenched on account of her
pregnancy and not on account of the operational requirements of the
business, as the Respondent has attempted to suggest. He argued that
the laws of Lesotho prohibit termination of employment on account of
pregnancy. He prayed that the dismissal of Applicant be found to have
been unfair and that she be reinstated or compensated as she had
prayed.
Page 125 of 265

ANALYSIS
9. The Labour Code Order 24 of 1992, provides for circumstances under
which an employee may be dismissed. Section 66(1) thereof provides that,
(1) An employee shall not be dismissed, whether adequate notice if given
or not, unless there is a valid reason for termination, which reasons is
(a) Connected with the capacity of the employee to do the work the
employee is employed to do (including but not limited to an
employees fraudulent misrepresentation of having specific skills
required for a skilled post);
(b) Connected with the conduct of the employee at the workplace; or
(c) Based on the operational requirements of the undertaking,
establishment, or service.
10.
The above notwithstanding, subsection (3)(d) thereof provides that,
The following shall not constitute valid reasons for termination of
employment
(a)
(b)
(c)
(d) Race, colour, sex, marital status, pregnancy,
11. In essence, section 66(1) r/w (3)(d) provide that whereas an employer
may terminate an employee due to operational requirements of its
business, but such reasons should not be premised on the pregnancy of
an employee. In other jurisdictions, this type of dismissal is tagged an
automatically unfair dismissal and is equally shunned upon. The reason
is not hard to find as this type of dismissal carries an element of
discrimination, the freedom against which is protected by the supreme
law of this Kingdom, the Constitution of the Kingdom of Lesotho. In view
of this said above, We find that the dismissal of Applicant was unfair.
12. Applicant has asked to be reinstated back to her former position
without loss of earnings, entitlements, seniority or other benefits, which
she would have received had there been no dismissal. She has therefore
asked for a remedy in terms of section 73(1) of the Labour Code Order
(supra). This remedy is awarded,
if the employee so wishes, . The Court or arbitrator shall not make
such an order if it considers reinstatement of the employee to be
impracticable in light of the circumstances.
In casu, Applicant wishes to be reinstated. Further no evidence has been
presented by Respondent to show impracticality of reinstatement.
Consequently, We award reinstatement without loss of earnings.
COMPUTATION OF AWARD
Salary per month:
Date of termination:
Date of reinstatement:
Period of lost earning:
Entitlement:

OF LOST EARNINGS
M1,366-00
24/10/2012
01/09/2014
22 months
M1,366.00 X 22 = M30,052-00
Page 126 of 265

AWARD
We therefore make an award as follows:
a) The dismissal of Applicant is unfair;
b) The Applicant be reinstated back to her former position, with effect from
1st September 2014, without loss of earnings, entitlements, seniority or
other benefits she would have received had there been no dismissal.
c) Respondent to pay Applicant lost earnings in the sum of M30,052-00
within 30 days of receipt herewith.
d) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF JULY 2014
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MISS. LEBITSA
MRS. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

MR. LETSIE
ADV. MONATE

Page 127 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/67/2011
C092/2010

IN THE MATTER BETWEEN


SHOPRITE CHECKERS (PTY) LTD

APPLICANT

AND
MAPASEKA RANTSANE
SEITEBATSO CHAKA
DDPR

1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT

JUDGMENT
Two grounds of review having been raised. One ground being withdrawn.
Applicant citing seven incidents of errors of law in support of remaining
ground. Court finding merit in the first incident. Court further finding that the
other incidents are premised on the first one. Court finding it unnecessary to
consider other incident having determined that the learned Arbitrator erred in
law on the first one. Review application being granted, matter being remitted
to the DDPR for a hearing de novo and no order as to costs being made.
BACKGROUND TO THE DISPUTE
1. This is an application for the review of the arbitration award in referral
C092/2010. Two grounds of review had initially been raised in the
following:
I aver that the arbitrator in the above mentioned case erred and
misdirected himself in first stating that he had jurisdiction to have
entertained this matter and this matter shall be addressed at the hearing
on a point in limine.
I further aver that the arbitrator erred and misdirected himself in
interpreting the law pertaining to written contracts, collective agreements,
as well as the Labour Code and amendments thereto as applicable to the
minimum wages and ignored the dire consequences of his interpretation to
the whole economy of Lesotho.
2. The first ground of review was withdrawn and consequent thereto, We
were addressed only in respect of the second review ground. Both parties
were present and/or represented and they duly made their presentations.
Having heard their presentations, Our judgement therefore follows.

Page 128 of 265

3. Before We deal with the matter, We wish to note that in support of the
remaining ground of review, seven incidents of errors of law were argued.
These can be summarised as follows:
a) Arbitrator erred in adopting the literal interpretation of the wages
order that the wages orders applied to Respondents and that resulted
in absurd results.
b) In adopting the literal interpretation, arbitrator ignored the purposive
interpretation and thus committed an error of law.
c) Having concluded that the wages order applied to respondents,
arbitrator erred in concluding that the wages orders make no reference
to the number of hours an employee has to work prior to earning
monthly, weekly or daily wages.
d) Arbitrator erred in concluding that respondents were entitled to the
statutory minimum wages stipulated in the wages order on the ground
that the parties had bargained for a higher standard.
e) Having concluded that the minimum wages applied to respondents,
arbitrator erred in concluding that respondents were entitled to full
monthly wages prescribed in the wages orders, relying on the common
law principle that employees are paid against tender of services and
not actual performance.
f) Having concluded that the wages orders applied to respondents,
arbitrator erred in concluding that the hourly rates in the daily, weekly
and monthly wages in the minimum wage orders are themselves
different.
g) Having concluded that the wages orders applied to respondents,
arbitrator erred in finding that wages orders take precedence over a
lesser contractual provision.
Having summarised the grounds that form the basis of the alleged error
of law, we shall now proceed to deal with them.
SUBMISSION AND ANALYSIS
4. Applicants case in the first incident of errors of law is that the learned
Arbitrator erred by interpreting the 2007, 2008 and 2009 wages orders
literally, to the effect that they applied to Respondents and that they
should be paid monthly wages irrespective of the actual hours worked. It
was submitted that the result is absurd and could not have been
intended by the legislature. It was added that Respondents worked 100
hours per month and can thus not be paid similar to those who work 195
hours, as the literal interpretation suggests. It was further added that the
interpretation adopted implies that even an employee who has worked
only for an hour in a given month will be entitled to the full month wages
merely because they are paid on a monthly basis.
5. It was further argued that the learned Arbitrator should have adopted an
interpretation tool that would avoid absurdity and give meaning to the
intention of the legislature. It was submitted that the proper tool of
interpretation would have led to the interpretation that the minimum
wage rates did not simply apply to employees who are paid on a monthly,
weekly and daily basis. It was argued that rather, the learned Arbitrator
Page 129 of 265

ought to have found that in addition, the said employees must work full
time basis in the specified periods in order for the wage rates to apply to
them.
6. Respondents answered that as a general rule, the literal interpretation
should be adopted as a first step in the process of interpretation.
Further, that a departure from the literal interpretation, may only be
made if there is an ambiguity in the statute or if the literal interpretation
could lead to absurd results, which could not have been intended by the
legislature. The Court was referred to the book by Du Plessis L.M. (2002)
Interpretation of Statutes, Butterworths, in support of the argument.
7. It was argued that the language in the statute is clear and unambiguous
and that no absurd results are reached by literally interpreting the wages
orders. It was submitted that interpreting the wages orders otherwise
than literally would affront the provisions of section 4(a) of the Labour
code Order 24 of 1992, that the standards laid down in the Labour Code
are the minimum legally obligatory standards which are without any
prejudice to the rights of workers to bargain for and contract for higher
standards.
8. It was argued that to further demonstrate the appropriateness of the tool
of interpretation used by the learned Arbitrator, the Wages Orders and
the Labour Code do not refer to the number of hours that an employee
has to work before earning the monthly weekly or daily wages. It was
added that the wages orders merely state the amounts to be paid and/or
earned on monthly, weekly or daily.
9. We wish to note that We accept the principle that the literal interpretation
is the first step, and that a departure from the literal interpretation can
only be made where there is an ambiguity in the statute or if the results
borne by the literal interpretation are absurd. In Our view, there is no
question of ambiguity in the statute in as much as no such has been
pointed out by either of the parties. We will therefore deal with the
second ground of exception, namely the presence of an absurdity in the
results.
10. The Labour Code Wages Orders provide for payment of employees
wages under three classifications namely those paid on a monthly, weekly
and daily basis. There are specific amounts prescribed under each
classification. It is neither disputed nor doubtful that Respondents were
paid monthly. This being the case, in terms of the literal interpretation of
the Wages Orders, they are applicable to Respondents and they are
therefore entitled to be paid the full minimum prescribed monthly wages
applicable to their sector.
11. The above notwithstanding, it is also undisputed that Respondents
worked 100 hours per month. In terms of the Labour code Wages
Amendment Order of 1995, an employee is expected to work 195 hours
Page 130 of 265

per month. The literal interpretation of the Wages Order in issue, is to


effect that both employees who work 100 hours and 195 hours are
entitled to the same wages.
12. In Our view the above results are absurd and could not have been
intended by the legislature. If the literal interpretation were to apply it
would mean, and as put by Applicant, that an employee who worked for
an hour in a month and received their wages on a monthly basis would
be entitled to the full monthly wages due to an employee who worked 195
hours.
13. Clearly, the learned Arbitrator used the wrong tool in determining the
applicability and otherwise of the minimum Wages Orders to the
Respondents and thus committed a grave mistake of law. In the case of
J.D. Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko and others
LAC/REV/39/2004, the learned Dr. K. Mosito cited with approval the
authority in Hira & another v Booysen & another 1992(4) SA 69 (A), where
the Court was explaining the ambit of review for an error of law.
14. In the above authority, the learned Corbett CJ had the following to
say,
....by reason of its error of law, the tribunal asked itself the wrong
question, or applied the wrong test, or based its decision on some matter
not prescribed for its decision, or failed to apply its mind to the relevant
issues in accordance with the behest of the statute, and that as a result
its decision should be set aside on review.
In Our view, the decision of the learned Arbitrator warrants a review as
He applied the wrong test to the Applicants case. He should have
considered other tests other than the one that He adopted.
15. In view of Our finding on the first incident of error of law, We find it
unnecessary to deal with the rest of the incidents. Our basis for the
conclusion is not hard to find. All other incidents are premised on the
conclusion that the Wages Orders are applicable to Respondents. The
fact that the wrong tool and/or test was used, makes the other incidents
immaterial for determination by this Court, at least for purposes of this
review.
16. A similar approach was adopted by the learned Dr. K. Mosito in T & T
Security Services (Pty) Ltd v Samuel Peapea LAC/CIV/A/21/2013. In that
authority there were three complaints that had been levelled against the
decision of the learned Deputy President of the Labour Court. The Court
determined that the other two derived from the first complaint and having
dismissed same, the Court deemed it unnecessary to determine the other
two complaints.

Page 131 of 265

AWARD
We therefore make an award as follows:
a) The application for review is granted;
b) The award in referral C092/2010 is reviewed and set aside;
c) The matter is remitted to the DDPR to be heard de novo before a different
Arbitrator;
d) This order must be complied with within 30 days of issuance herewith;
and
e) There is no order as to costs.
THUS DONE AND
SEPTEMBER 2014.

DATED AT

MASERU ON THIS

15th

DAY OF

T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MRS. LEBITSA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st AND 2nd RESPONDENTS:

ADV. MYBURG
ADV. LIMEMA

Page 132 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/79/2013

IN THE MATTER BETWEEN


LESOTHO WORKERS ASSOCIATION

APPLICANT

AND
TEPONG (PTY) LTD
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for a declaratory order that not all 1st Respondent employees are
essential employees in terms of section 232(1), and consequential relief. 1st
Respondent raising three points of law namely, res judicata; litis pendentia;
and improper procedure. Court dismissing the first two points of law and
upholding the third one. On strength of third point, Court dismissing
application. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for a declaratory order in the following terms:
(1) Determining and making a pronouncement on whether all Tepong
employees are essential employees.
(2)
Determining whether or not such employees who are not essential
employees or who do not render essential services within 1st
respondents workplace have a right to strike.
(3)
Ordering the 2nd respondent to issue the applicant herein with a set
down for conducting a strike ballot for those non-essential employees
within 1st respondent employment.
(4)
Pay the costs of this application.
(5)
Granting the applicant further and or alternative relief.
2. The brief background of the matter is that Applicant had referred a
dispute of interest with the Directorate of Dispute Prevention and
Resolution (DDPR) sometime in October 2013.
Conciliation was
conducted and in the end the dispute remained unsolved. The learned
Arbitrator then issued a report of non-resolution and referred the matter
for compulsory arbitration.
3. On the date of compulsory arbitration, Applicant raised a point of law. It
argued that the DDPR did not have jurisdiction to proceed with the
matter into compulsory arbitration, in respect of all its members as some
did not render essential services. Having heard the arguments of parties,
the learned Arbitrator issued an award in terms of which He made a
Page 133 of 265

finding that Respondent fell under essential services. The premise of the
learned Arbitrators decision was that, the Labour code (Essential
Services) Regulation of 1997, does not categorise essential services in
terms of occupation. He thereafter ruled that the DDPR had jurisdiction
in respect of all Respondent employees and directed that the matter
proceed into arbitration.
4. Before the date of hearing of the compulsory arbitration, Applicants
referred the current application with this Court for a declaratory order as
quoted above. On the date of hearing, Respondent raised three points of
law on the basis of which it sought the dismissal of this application. Both
parties were heard and Our judgment follows.
SUBMISSIONS AND ANALYSIS
5. Respondent submitted that this matter is res judicata in that it was dealt
with and finalised by this Court in LC/57/2014. It was argued that in
LC/57/14, parties were the same, the issues for determination were the
same and that this Court was competent to determine the said matter. It
was added that in LC/57/14, this Court made a determination that all
Respondent employees offered essential services and could therefore not
engage in a strike.
6. Applicant answered that the plea of res judicata does not hold in casu, for
the reason that while parties are the same, the issues differ and
consequently the determinations made. It was argued that in LC/57/14,
the issue was the legality of the strike action and that it was not a
declaratory order that is sought in casu. It was added that the matter in
LC/57/14, was initiated by Respondent and not Applicant. On these
bases it was submitted that a plea of res judicata does not sustain.
7. In order for a plea of res judicata to sustain, there are a number of
requirements that must be met. These are that,
(a) both matters must be between the same parties;
(b) both matters must be based on the same cause of action; and
(c) both matters must concern the same subject matter or thing.
(see Sechele v Sechele C of A (CIV) 06/1998; Mohai and another v Lesotho
Electricity company and others LAC/CIV/A/13/13).
8. It is without doubt that parties are the same in both cases, save that in
this matter Applicant was Respondent in LC/57/2014 and vice versa.
What is left for the determination is whether, the rest of the requirements
have been met. In order to effectively make the determination, it is
necessary to refer back to LC/57/2014. To avoid confusion, We will refer
to parties as cited in these proceedings.
9. LC/57/2014 was an application that was made for two substantive
prayers namely;
(1) That the strike intended by the Applicant and its members be declared
illegal; and
Page 134 of 265

(2) That Applicant and its members be interdicted from embarking on a


strike intended to start on 30th April 2014.
10. These prayers were premised on two grounds namely that the learned
Arbitrator who was seized with the dispute at conciliation, made a
pronouncement that Respondent was an essential service and She had
referred their unresolved dispute to arbitration for resolution. Secondly,
that the learned Arbitrator who was seized with the dispute at arbitration,
had made a determination that Respondent was essential services and
that the unresolved dispute had to go for compulsory arbitration.
11. In casu, Applicant is asking the Court to determine if all employees of
Respondent provide essential services and that if judgment is entered in
the negative, the Court should direct that a strike ballot be conducted to
determine if there will be a strike action or not. Clearly, the 2nd and 3rd
requirement have not been met, at least with regard to the claims before
Us. If at all the claim of res judicata is to sustain, it will be in relation to
another matter other than this one. We say the above because, in
LC/57/2014, Respondent had asked for a declaration that the strike was
illegal. The issues are clearly different.
12. Further, in LC/57/14, Applicant had threatened to commence a strike
contrary to the award and certificate of non-resolution, while in casu
there is no threat to commence a strike and there is no award or
certificate of non-resolution directing that the matter proceed into
arbitration. Rather, Applicant in casu intends to follow due processes of
the law to embark on a strike, in the event of a determination being made
in its favour. For these reasons, We dismiss this point.
13. The second point of law was that an appeal has been made against the
judgement in LC/57/2014 and that as a result, the matter is litis
pendentia.
It was added that it would be an unnecessary journey to
take for this Court to determine a matter that is going to be determined
by the Labour Appeal Court. Applicant answered that this matter is not
litis pendentia as the appeal is against a judgement which is not fit to
render the application in casu res judicata.
14. The second point of law is clearly premised in the assumption that We
would have upheld the first point of law on res judicata. It is more of an
alternative claim to the first point of law, at least by its nature and
content. That notwithstanding, having made a determination that there
is no relationship between LC/57/14 and the claim in casu, a plea of litis
pendentia cannot sustain. What is left for determination by the Labour
Appeal Court is distinct from what is to be determined in casu.
Consequently, this point fails.
15. The third point of law is that it is improper to bring this matter before
this Court as a determination has already been made on it under referral
A1095/13. It was submitted that in the said referral, Applicant had
Page 135 of 265

raised a point of law that the DDPR did not have jurisdiction to arbitrate
over all its members as not all of them offered essential services. It was
added that an award was issued declaring Respondent an essential
services and further that the DDPR had jurisdiction to hold compulsorily
arbitrator over all its employees, who are also members of Applicant. It
was argued that the effect of the award was to declare all members of
Applicant essential employees, which is what Applicant had objected to.
It was argued that Applicant is attempting to have that determination set
aside through these proceedings and that this is improper. It was
submitted that the proper procedure is by way of review.
16. Applicant answered that the arbitration award does not hold because
it was issued by an incompetent court. It was added that the DDPR has
no inherent powers to interpret the Labour Code as such powers lie with
this Court.
17. We have gone through the arbitration award and have noted that
indeed Applicant herein contested the jurisdiction of the DDPR over all its
members, to arbitrate their unresolved dispute.
This clear from
paragraph 4 of the arbitration award. This is captured as thus,
The applicant raised a preliminary issue that the conciliator ought not to
have referred the matter to arbitration as the respondent herein does not
wholly fall under essential services as defined by section 232(1) .... He
stated that not all personnel of the respondent provide essential services
.
18. In order for the learned Arbitrator to determine this issue, He had to
first determine if all employees of Respondent offer essential services.
This is coincidentally that which Applicant is asking the Court to
determine in casu. The determination has already been made by the
DDPR that all members of Applicant fall under essential services. In
arriving at the determination, at paragraphs 7 and 8 of the arbitration
award, making reference to section 232 (1), the learned Arbitrator is
recorded as thus,
7. The above section does not categorise an essential service in terms of
occupation but in terms of the service provided by the organisation. it is my
considered opinion that applicant did not have the opportunity to peruse
the Labour Code (Essential Services) Regulations of 1997, the said
regulations list the institutions that provide nowhere do they categorise
essential services in terms of occupation.
8. . On the basis of the above said the respondent herein falls under the
definition of essential services.
19.
The above being the case, there cannot be two determination on a
single issue, between the same parties and based on the same set of facts
and/or cause of action. We therefore agree with Respondent that the
matter having already been determined by the DDPR, the proper route is
to go by way of review, especially since Applicant claims that the DDPR
Page 136 of 265

had no jurisdiction to make such a determination. The fact that the


DDPR has been cited as a 2nd Respondent to the proceedings in casu,
further fortifies the view that Applicant is attempting to alter its decision.
As We have already said, the way to go is by review and not a declaratory
order. We consequently uphold this point of law and dismiss this
application.
AWARD
On the strength of the above reasons, We make an award in the following:
a) That this application is dismissed; and
b) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 4th DAY OF JULY 2014
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR KAO

I CONCUR
I CONCUR

FOR APPLICANT:

MR. SESINYI
Assisted by
MR. SEOA-HOLIMO
ADV. TOLO

FOR RESPONDENT:

Page 137 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/60/2014
A0034/2014

IN THE MATTER BETWEEN


MOTEBANG LELIMO
t/a SUBWAY FIX IT

APPLICANT

AND
SEISA SHAKHANE
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. 1st Respondent noting on record
that review is not opposed. Applicant raising only one ground of review.
Applicant arguing that, notwithstanding its failure to attend the hearing,
Arbitrator erred in proceeding to hear a mater which had already been
finalised settlement. Court finding that in failing to attend hearing, Applicant
failed to bring this issue to the attention of the Arbitrator and that as such
Arbitrator committed no irregularity in hearing the matter as he was not
conscious of the issue. Review application being refused and no order to costs
being made.
BACKGROUND TO THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0034/2014. Only one ground of review was raised on behalf of the
Applicant. The review application was unopposed and was accordingly
heard as such. Mr. Masoebe for 1st Respondent was in attendance to
confirm this.

2. The brief background of the matter is that 1st Respondent had referred
claims for unfair dismissal, unpaid leave, unpaid wages, underpayments
and unpaid leave, with the 2nd Respondent. The matter was arbitrated
upon in default of Applicant after which an award was made in favour of
1st Respondent. In terms of the award, Applicant had been ordered to pay
1st Respondent the sum of M7,299-00 IN satisfaction of his claims. It is
this award that Applicant wishes to have reviewed and set aside. Having
heard the submissions of Applicant, Our judgment follows.

SUBMISSIONS AND ANALYSIS


3. It was Applicants case that he did not attend the arbitration proceedings
in the referral in issue. His reason for failure to attend was that he had
Page 138 of 265

fairly dismissed 1st Respondent and further that the matter had been
finalised by settlement, which was concluded at the Maseru Labour
Department. The Court was referred to annexure A to the founding
affidavit, which was said to be the settlement agreement reached between
parties.

4. Applicant argued that the matter having been finalised by settlement, 1st

Respondent ought not to have referred it to the 2nd Respondent and that
similarly, the 2nd Respondent ought not to have entertained it. The
matter having been referred and the 2nd Respondent having entertained
same, He committed a gross breach of procedure which warrants
interference with the arbitration award made.

5. It is clear from the submissions of Applicant that he failed to attend the


arbitration proceedings in the referral in issue. Having failed to attend
the arbitration proceedings, he denied himself the opportunity to raise
these issues in defence of the claim. As a result, the learned Arbitrator
cannot be held at fault over issues which were never argued before Him.
In the case of Khutlang Mokoaleli vs. Standard Lesotho Bank & DDPR
LC/REV/21/07, the Court held that
The court can only give effect to the right to be heard to a party that is
willing and does utilise the opportunity to exercise its right to be heard. As
a result, a party that fails to prosecute (in our case to defend) its case
without a reason summarily waives their right to be heard.
In the light of the circumstances, We find no irregularity on the leaned
Arbitrators part and consequently dismiss this ground.

6. We wish to comment that the arguments raised by Applicant in these

proceedings, seem to justify his failure to attend the proceedings before


the court a quo, more than to point to a breach of procedure on the part
of the learned Arbitrator. In view, of the fact that the award in issue was
obtained in applicants default, he is at liberty to approach the 2nd
respondent for a rescission of His arbitration award, if he may so wish,
rather than to attempt to argue a rescission on review.

Page 139 of 265

AWARD
On the strength of the reasons advanced above, We make an award in the
following:
a) That this application is refused.
b) The award in referral A0034/14 remains in force; and
c) No order as to costs is made.
THUS DONE AND
SEPTEMBER 2014

DATED AT

MASERU ON THIS

15th

DAY OF

T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS. MOSEHLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1ST RESPONDENT:

ADV. MAKARA
MR. MASOEBE

Page 140 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/44/2012
A0912/2011

IN THE MATTER BETWEEN


NAZARETH SUPERMARKET (PTY) LTD

APPLICANT

AND
MITA LESAOANA
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Two grounds of review being raised. Applicant arguing that Arbitrator erred in
not finding an interpreter for parties as the DDPR is obliged to find an
interpreter for parties. Court finding that neither the DDPR Regulations nor the
Labour Code Order 24 of 1992 as amended, impose such an obligation.
Applicant further arguing that it was denied the right to be heard by being
excluded in the proceeding. Court finding that in refusing to find an interpreter,
Applicant excluded itself from the proceedings. Court refusing to grant the
review and reinstating the arbitration award. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0912/2011. Only two grounds of review have been raised on behalf of
Applicant, in terms of which the review, setting aside and/or correction of
the award in issue is sought. The matter was opposed and both parties
made their representation. Having heard the parties presentations, Our
judgment follows.
SUBMISSIONS
2. Applicants first ground of review is that the learned Arbitrator erred by
requiring Applicant to find an interpreter who would interpret his
evidence from Chinese into any of the official languages, namely Sesotho
or English. It was argued that it is the responsibility of the DDPR to
provide parties to proceedings before it, with interpreters.
It was
submitted that this proposition finds support in the Labour Court
decision in the case of Afro Asia Engineering (Pty) Ltd v Ntsoaki Matela
and another LC/REV/65/2006. It was added that it is the practice in all
courts of law, for the courts to provide parties with interpreters and that
this ought to have influenced the DDPR to do the same.
3. The second ground of review was that Applicant was denied the
opportunity to state his case in defence to the 1st Respondents claim. It
Page 141 of 265

was submitted that the learned Arbitrator disallowed Applicant


representative and witness who was of Chinese origin, from testifying and
putting his case to 1st Respondent. It was argued that this was contrary
to the principle of audi alteram partem. The Court was referred to pages
5, 6 and 10 of the record of proceedings before the DDPR.
4. In answer, 1st Respondent submitted that there is no obligation on the
part of the DDPR to provide parties with an interpreter. It was added that
the DDPR is a creature of statute and that its powers are within the four
corners of the statute that created it. It was submitted that the parent
statute does not give the DDPR such powers and that as such it clearly
lacks the authority and obligation claimed by Applicant.
5. It was further argued that the authority in Afro Asia Engineering (Pty) Ltd
v Ntsoaki Matela and another (supra) does not impose any obligation on
the DDPR as claimed. Further that while it may be practice in the
ordinary courts of law, that they provide interpreters for parties, that
practice is not binding upon the DDPR. It was argued that the DDPR is
not a court of law but a tribunal with its own procedures which are not
the same as those of courts of law.
6. Regarding the second review ground, it was submitted that Applicant was
not denied the opportunity to be heard. It was stated that in fact the
opportunity was availed but that he rejected it. It was submitted that
Applicant was given an opportunity to find an interpreter who would
interpret its evidence from Chinese to any of the official languages, when
the learned Arbitrator learned that the witness would not be able to use
any of the official languages.
7. It was added that whereas the matter had initially been scheduled to
proceed on 28th November 2011, it only did on 20th February 2012 and
so, after endless postponements to allow Applicant representative and
witness to obtain an interpreter. It was said that from the 28th November,
the matter was postponed to the 1st February 2012 and then the 20th
February 2012. It was argued that this is evidence that Applicant was
given the opportunity to be heard.
8. It was further submitted that notwithstanding, Applicants resistance to
find an interpreter, the learned Arbitrator attempted to give him the
opportunity to take part in the proceedings. However, that witness was
speaking an unknown language which was neither Sesotho nor English,
which no one could understand. It was concluded that the learned
Arbitrator, under the circumstances, had no options but to disallow
Applicant from continuing in the proceedings in the manner he did and
given the history of the matter. The Court was referred to pages 9 and 10
of the record of proceedings, for the attempts by the learned Arbitrator to
give Applicant an opportunity to take part in the proceedings.

Page 142 of 265

ANALYSIS
9. We have gone through the authority in Afro Asia Engineering (Pty) Ltd v
Ntsoaki Matsela and another (supra). We wish to confirm that the said
authority does not impose an obligation on the DDPR to provide parties
with interpreters. Rather, even though the absence of an interpreter was
an issue, no finding was made that it is the obligation of the DDPR to
provide one for parties. The authority is therefore inapplicable for
purposes of the case at hand.
10. Regarding the practice in the ordinary courts of law to provide
interpreters for parties, We agree with 1st Respondent that the DDPR is
not a court of law but a tribunal and that as such it is not bound by the
practices of courts of law. The DDPR has its enabling act and the rules of
procedure, and these instruments determine its practices. Both of these
instruments do not impose any obligation on the DDPR to provide parties
with an interpreter in as much as no suggestion has been made by
parties that they do. We therefore find that the learned Arbitrator
committed no irregularity in not providing parties with an interpreter and
in requiring Applicant to find one.
11. On the second ground of review, We wish to note that as both parties
have put, the record reflects that Applicant wanted to defend the matter
and that it was given the opportunity to do so but that the learned
Arbitrator later repudiated same. This is clear from the referenced pages,
namely pages 5, 6, 9 and 10 of the record of proceedings.
12. At pages 5 to 6;
Arbitrator:
So Sir, we cant keep on postponing the case endlessly. So
today I make a ruling that I go on with this case. We are
going to proceed with this case, but then we wont allow
you to speak, because you are not able to speak Sesotho
and you are not able to speak English....
Mr. Chen:
I know Sesotho a little bit, speak properly is present
Arbitrator:
If you dont hear what I say then it is not my problem. If
you dont get what I mean then it is not my problem.
Mr. Chen:
Yes then I talk whats the problem and then....
Arbitrator:
I request that you should keep quiet. I am the one who will
control you. Mum explain where you were working and
what your position was.
13. At page 9 to 10;
Arbitrator:
I will allow you to speak here if you say something which I
will be able to hear, because here we only allow Sesotho and English. If
you speak Sesotho you should speak Sesotho and if you speak English you
should only speak English on the issues which the lady said.
Mr. Chen:
Yes
Arbitrator:
Yes, the lady indicates that she has been unfairly
dismissed, she wants notice, she wants the severance pay
and she wants twelve months salary.
Page 143 of 265

Mr. Chen:
Arbitrator:
Mr. Chen:
Arbitrator:
Mr. Chen:
Arbitrator:
Mr. Chen:
Arbitrator:

Listen to me, is never office...


Are you going to speak English or are you going to speak
Sesotho?
Ke bua Sesotho
Okay
Yes, only banyane, katseba banyane Sesotho. Never
office is talk, salary is one month.
Sir
Yes
I request that you should excuse me, really we shall
carry on with this case and you will remain silent I will
not allow you to speak.

14. It is without doubt from the above extracts that the learned Arbitrator
did attempt to hear Applicant but that She was prevented from doing so
by the language barrier. In Our view, the language barrier was selfinflicted prejudice by Applicant as it failed to bring an interpreter
notwithstanding the many and several opportunities that were availed to
it to do so.
The witness was clearly aware that the mode of
communication in the proceedings would be either Sesotho or English
and not in the language that he spoke. Under the circumstances, the
learned arbitrator had no option but to disallow Applicant from taking
part in the proceedings.
15. It is Our view that at the time that the learned Arbitrator took the firm
decision to disallow Applicant to take part in the proceedings, Applicant
had already disallowed himself to participate in the hearing by not
meeting the requirements set for him. It is trite law that the The court
can only give effect to the right to be heard to a party that is willing and
does utilise the opportunity to exercise its right to be heard (see Khutlang
Mokoaleli v Standard Lesotho Bank & DDPR LC/REV/21/07). It would
thus not be accurate to place the blame on the learned Arbitrator, given
the circumstances.

Page 144 of 265

AWARD
We therefore make the following award:
a) That the review application is refused;
b) The award in referral A092/2011 remains in force;
c) The award to be complied with within 30 days of issuance herewith; and
d) No order as to costs is made.
THUS DONE AND
SEPTEMBER 2014

DATED AT

MASERU ON THIS

15th

DAY OF

T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

ADV. SETLOJOANE
ADV. NONO

Page 145 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/32/2011
C059/2010

IN THE MATTER BETWEEN


ELLERINES FURNISHERS (PTY) LTD

APPLICANT

AND
DDPR
SOPHIE MOSOANG

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of the arbitration award. 2nd Respondent raising two
points of law that the review application has been filed out of time; and that
this is an appeal disguised as a review. Court not finding merit in the points of
law and dismissing them. Applicant abandoning other review grounds and
proceedings on the basis of just one unreasonableness. Court finding merit
on the ground raised and granting the review. Matter being remitted before the
DDPR for a hearing de novo before a different Arbitrator. No order as to costs
being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the 1st Respondent arbitration
award in referral C059/2010. On the first date of hearing of this matter,
the 2nd Respondent had objected to the representation of Applicant by one
Adv. Mbana. Adv. Mbana claimed that she was an employee of Ellerines
Holdings (Pty) Ltd, a South African Company based in Johannesburg,
Gauteng.
She had claimed that Ellerines Lesotho (Pty) Ltd was a
subsidiary of Ellerines Holdings and that by virtue of that relationship,
she was entitled to represent Applicant herein. We upheld the Applicants
objection and ruled that Adv. Mbana was not an employee of Ellerines
Lesotho, as contemplated by section 28 of the Labour Code Order 24 of
1992. She was thus excluded from appearing and the matter was
postponed to enable Applicant to secure a proper representative.
2. On the return date of hearing, and section 28 of the Labour Code Order
(supra) having been complied with, the matter proceeded. However, at
the commencement of the proceedings, 2nd Respondent raised three
points of law, on the premise of which she sought the dismissal of the
review application. Parties duly made their addresses, after which We
reserved Our judgement and directed them to address the Court on the
merits as well. Having heard parties holistically, Our judgement follows.
Page 146 of 265

SUBMISSIONS
Points of law
3. 2nd Respondent claimed that the review had been filed out of time. In
amplification, she argued that she was served with the arbitration award
5 days after its issuance. She submitted that it cannot be accurate that
Applicant only received the award 5 months later. She relied on the
provisions of section 228E (3) of the Labour Code (Amendment) Act 3 of
2000, to the effect that an award must be served upon parties within 30
days of the conclusion of arbitration proceedings. She argued that the
Court must assume that the award was served upon Applicant in line
with section 228E(3), and find that the review is out of time.
4. Applicant answered that the claim is based on speculation as 2nd
Respondent has not placed anything tangible to support her argument.
Further that Applicant had alleged specific dates on which it received the
award, which averments have not been specifically challenged, safe for
the speculation made. It was argued that on these bases, the matter is
well within time and that there is no need for a condonation application
to be made. It was added that the provisions of section 228E(3), do not
mean that the award was reviewed as provided. It was further added that
the Court take note of the fact that the argument about receipt of the
award 5 days later, claimed by Respondent is not even pleaded.
5. We have perused the 2nd Respondent pleadings and wish to confirm that,
the claim that she received the arbitration award 5 days later is not
pleaded. Relying on the authority of Plascon-Evans Paints (TVL) Ltd v Van
Riebeck Paints (Pty) Ltd 1984 (3) SA 623, We have stated before that the
rule in motion proceedings is that one stands and falls by their pleadings.
We have gone further to explain that this means that one cannot be
allowed to submit beyond what they have pleaded (see Masechaba
Mothibeli & others v Lesotho Precious Garments (Pty) Ltd & another
LC/REV/140/2013).
Consequently, this reduces 2nd Respondent
pleading in submission on the issue, to a mere afterthought.
6. Further, We acknowledge the provisions of section 228E (3) of the Labour
Code Act (supra). In terms of that section,
Within 30 days of the conclusion of the arbitration proceedings
(a) the arbitrator shall issue an award with brief reasons signed by that
arbitrator;
(b) the Director shall serve a copy of that award to each party to the
dispute or the person who represented the party in the arbitration
proceedings; .
However, We agree with Applicant these provisions do not necessarily
mean that service was affected as provided, in as much as the above
provision does not provide for the period within which service must be
effected. For Us to conclude as sought by Applicant, would be nothing
less than speculation of service of the award upon Applicant.

Page 147 of 265

7. It is trite law that decisions must be based on and be supported by facts


as opposed to assumptions. In the authority of Pascalis Molapi v Metcash
Ltd Maseru LAC/CIV/REV/09/2003, the Court stated that,
The Decision maker cannot be guided by a gut feeling or speculation.
As a result, a decision that is premised on speculated facts would amount
to a gross misdirection that warrants the review and setting aside of the
decision so made. Consequently, We find that there is no merit in the
objection raised by 2nd respondent accordingly dismiss it.
8. 2nd Respondent further claimed that Applicant is unhappy with the
conclusion of the learned Arbitrator and that as a result, the grounds
raised are review disguised as appeal. In amplification, it was submitted
that Applicant raised as one of its review grounds a point that it was not
served with the arbitration award. Further that contrary to this, the
record reflects that they were indeed served with same. It was added that
this is a clear dissatisfaction with the arbitration award.
9. In answer, Applicant submitted that it claimed unreasonableness on the
part of the learned Arbitrator, in that He made a decision that was not
supported by facts before Him. It was submitted the learned Arbitrator
made a finding that there was proof of service on record, but that none
forms part of the record. It was argued that the mere absence of the said
record, of proof of service, makes His decision unreasonable. The Court
was referred to the case of Thabo Mohlobo and others v Lesotho Highlands
Development Authority LAC/CIV/A/2/2010, where the above principle
was enumerated. Further reference was made to section 228E(3) of the
Labour Code Act (supra) where grounds of review were laid out, which
grounds were explained and expanded in the Thabo Mohlobo and Lesotho
Highlands Development Authority (supra) case.
10. We wish to note that in the Labour Appeal Court authority cited above,
the circumstances under which a review may be made are outlined.
Section 228E (3), makes general provision for review grounds, which are
then unpacked in the case of Thabo Mohlobo and Lesotho Highlands
Development Authority (supra). In this authority, the Court earmarks
unreasonableness to be one of the lawful grounds against which a party
may seek the review, correction and/or setting aside of a decision made.
This being the case, and 2nd Respondent having not disputed that
Applicant has claimed unreasonableness on this ground, and the Court
having confirmed same, We find that this is prima facie a review ground
and accordingly dismiss the 2nd Respondent argument that this is a
disguised appeal.
11. 2nd Respondent also argues that this review has been improperly filed
in that the proceedings in the court a quo, having proceeded by default,
Applicant ought to have rescinded them rather than to proceed by way of
review. It was argued that review under these circumstances, is made
where there are special circumstances, which circumstances must be
pleaded and established. In answer, Applicant submitted that there is
Page 148 of 265

nothing in law that prohibits them from reviewing an award obtained in


default. It was argued that whereas the DDPR regulations may provide
for a rescission where an award has been obtained in default, it is not
every rule of procedure that must be complied with. It was added that
one has options, hence the election to go by way of review.
12. In Lephele Mpheu v Tseko Machaha and others CIV/APN/197/2007,
Guni J laid down a principle that while default judgments are
rescindable, those which have been obtained irregularly are reviewable.
This authority fortifies the Applicants argument that nothing in law
prohibits them to review an award obtained in default, but that they in
fact have an option to either review or rescind same.
13. We wish to comment it is not accurate that not every rule of procedure
must be complied with. This submission is terribly misplaced. Rather
the true position is that some rules are permissive while others are
mandatory. In the former case one has an option to either follow the
prescribed procedure, while in the later one is bound by the prescribed
procedure.
14. On the basis of the above arguments, the points of law are dismissed.
We shall now proceed to address the merits of the matter. We wish to
note that whereas several grounds of review had been raised on behalf of
applicant, only one was argued while the rest were abandoned. Our
judgment on the merits of the matter therefore follows.
Merits
15. Applicants case is that the learned Arbitrators decision was
unreasonable in that it was not based on any factual or evidential proof.
Whereas it is said at paragraph 9 of the arbitration award, that there was
proof that Applicant had been served with the notice of set down, such
notice is not part of the record of the DDPR proceedings. As a result, in
the absence of the record, there was no basis against which the decision
was made.
This was said to have made the decision reached
unreasonable.
16. It was further argued that assuming that there was such a notice and
that the record before Court was incomplete, that would also warrant the
review of the award in issue. The Court was referred to its earlier
decision, per Lethobane P in Leteng Diamonds (Pty) Ltd v DDPR & others
LC/REV/397/2006, wherein he is said to have ordered the remittal of the
matter back to the DDPR on the ground that the record was incomplete.
17. 2nd Respondent answered that paragraph 9 of the arbitration award is
enough evidence that there was proof of service of the set down. It was
added that assuming that the record is incomplete, the Court could only
order that the missing parts of the record be dispatched to this Court,
rather than to dismiss the matter altogether. It was argued that to do so

Page 149 of 265

would be to unduly prejudice the interests of 2nd Respondent, who has


obtained judgment in her favour before the DDPR.
18. It is trite law that an award may be reviewed and set aside if it is
unreasonable. Unreasonableness has been explained to mean that there
is no connection between the factual and legal conclusion made in the
decision being reviewed. Put differently, the admitted facts and applied
law do not lead to the conclusion made. In casu, there is no prove of
service of notice of set down, yet the learned arbitrator made a conclusion
that service was affected. There is simply nothing that supports the
conclusion made.
As a result this makes the decision reached
unreasonable as no reasonable court would have made a similar decision,
under the prevailing circumstances at the time.
19. Regarding an incomplete record, these can only be one record of
proceedings before the DDPR, particularly where same has been certified
as such and further accepted by parties. In casu, the record beforehand
has been accepted as correct and complete, and neither Applicant nor 2nd
Respondent have challenged its authenticity. In the light of this above,
We cannot demand another record in addition to the one already
dispatched. We wish to comment We note the authority of this Court per
Lethobane P, in Leteng Diamonds (Pty) Ltd v DDPR & others (supra).
AWARD
We therefore make an award in the following:
a) That the review is granted;
b) The matter is remitted back to the DDPR to be heard denovo before a
different arbitrator;
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF JULY 2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 2nd RESPONDENT :

MISS TOHLANG
ADV. NONO

Page 150 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/29/2013
A0904/2012

IN THE MATTER BETWEEN


SEVILLE FOODS (PTY) LTD

APPLICANT

AND
SENATE MAKHAOLA
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of the arbitration award. Applicant having raised two
grounds of review and later withdrawing one. In the remaining ground,
Applicant claiming that Arbitrator heard a matter in respect of which He had
no jurisdiction, given its defence of a set off. Court finding the defence was
not raised and that Arbitrator was right to proceed to hear the matter. Review
application being dismissed and no order as to costs being made.
BACKGROUND TO THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0904/12. 1st Respondent had initially referred claims for severance
payment and unpaid overtime with the DDPR. The unpaid monies claim
was resolved by settlement and parties went into arbitration with the
severance payment claim. In the end, an award was issued in favour of
the 1st Respondent. In terms of the award Applicant was to pay 1st
Respondent severance payment in the sum of M18,858-00. It is this
award that Applicant wishes to have reviewed, corrected and/or set aside.
2. Initially two grounds of review had been raised in the following:
I aver that the learnt arbitrator failed to take into consideration some of
the evidence I placed before him thereby committing an irregularity that
warrants review of this award in that he failed to consider our evidence to
the effect that 1st respondent never resigned but only stormed out of the
meeting she was called to account for the money she had failed to deposit.
I aver that the arbitrator committed an irregularity by ignoring the
applicants defence of set-off which was clear from the opening statement
and throughout the proceedings.
3. At the commencement of the proceedings, Applicant withdrew the first
ground of review and only proceeded with the second one relating to a set
Page 151 of 265

off.
Having heard and considered both parties submissions, Our
judgment follows.
SUBMISSION AND ANALYSIS
4. Applicants case was that 1st respondent had committed fraud which led
to Applicant losing an amount to the tune of M32,000.00. As a result, in
the proceedings before the 2nd Respondent they had raised the defence
that they were not paying severance payment because of the fraud and
the amount that they lost. The Court was referred to pages 2 and 3 of the
arbitration award at paragraphs 5 and 6 respectively.
5. At paragraph 5, the court was referred to the following recording:
The respondent adduced quite substantial evidence through its two
witnesses, Mr. Leonn De Kock, its Management Consultant and Me Guida
Tayob, its Store Manager, with an object of proving and establishing that
the applicant was responsible for the disappearance of M32,000.00 of the
respondent, hence, the respondents refusal to give applicant her severance
pay.
6. At paragraph 6, the Court was referred to the following recording:
Now, the main issue that has to be looked into, be it is true or not that
applicant did cause the disappearance of the M32,000.00 in question, is
whether the applicant ended up being dismissed or not by the respondent
for the misconduct of theft that the respondent alleges in evidence and
argument.
7. It was argued that it is clear from these extracts that Applicant had raised
the defence of a set off, though not in the strict legal terms, for the reason
that the people who appeared before the DDPR were lay in law. It was
added that this defence having been raised, the learned Arbitrator ought
to have declined jurisdiction over the matter, as it is one that falls within
the jurisdiction of the Labour Court in terms of section 24(b). Having
ignored the Applicants defence, the learned Arbitrator heard a matter in
respect of which he had no jurisdiction, thereby committing an
irregularity. It was prayed that the matter be reviewed.
8. In answer, 1st Respondent submitted that set off was never raised at the
DDPR. Rather, Applicants defence before the DDPR, was that 1st
Respondent had been dismissed for the misconduct of causing the
disappearance of M32,000.00 and thus forfeited his severance pay. It
was argued that even assuming without conceding, that Applicant had
the defence of a set off, it would have clearly made a concession that it
owed 1st Respondent severance pay, but that it be set off against the
claimed fraud money. It was submitted that in casu, no such concessions
were made as Applicant was adamant that 1st Respondent forfeited her
entitlement to severance pay due to the act of misconduct that she
committed.

Page 152 of 265

9. We have considered both the submissions of parties and the arbitration


award. We have noted that indeed it was never the Applicants case that
the claim of severance payment, be set off against the amount alleged to
have been lost through 1st respondent alleged fraud. Rather, Applicants
case was that it refused to pay because 1st Respondent had committed
misconduct. This is clear from paragraph 6 of the arbitration award
which is recorded as follows:
The respondents case on the other hand, is that the applicant ought to
forfeit her severance pay for the reason that she resigned from the employ
of respondent having committed an act of misconduct of causing the
disappearance of a sum of M32,000-00 by fraudulent means.
In our view this is nowhere near the defence of a set off.
10. Further, the reference portion at pages 2 and 3 of the arbitration
award and in particular at paragraphs 5 and 6, only go on to confirm Our
attitude.
At paragraph 5, the recording merely demonstrates that
Applicant brought evidence to demonstrate misconduct on the part of 1st
Respondent, while the extract on paragraph 6 shows the issues for
determination and these are reflected as whether fraud was committed
and if 1st Respondent was dismissed for same.
11. We therefore agree with the 1st Respondent that a set off was never the
issue before the 2nd Respondent and that the learned Arbitrator was right
to proceed to arbitrate over the matter. We further wish to confirm the
principle as suggested by 1st Respondent that it is a requirement of a
defence of a set off that at least one of the claims should not be disputed,
which was not the position in casu. We further wish to comment that
even if Applicant had raised the defence of a set off, the learned
Arbitration would still have had incidental proceedings to determine the
matter. The claim of set off, would have been incidental to the
proceedings in respect of which the learned Arbitrator was originally
seized with jurisdiction to hear and determine.

Page 153 of 265

AWARD
We therefore make an award in the following:
a) That the review application is refused;
b) The award in referral A0904/2012 remains in force;
c) The said award must be complied with within 30 days of issuance
herewith;
d) There is no order as to cost.
THUS DONE AND DATED AT
SEPTEMBER, 2014.

MASERU ON THIS

15th

DAY OF

T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. KAO
MRS. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. NONO
MR. LETSIE

Page 154 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/66/2013

IN THE MATTER BETWEEN


ALEC RALPH THABISO RAMOKOENA

APPLICANT

AND
NEDBANK LESOTHO LTD
NEDBANK LESOTHO PENSION FUND

2nd

1st RESPONDENT
RESPONDENT

JUDGMENT
Claims for payment of interest accrued on pensions benefits and
reimbursement of finance charges on loan facilities. Court making a
determination that the former claim is an unpaid monies claim which should
be heard before the DDPR in terms of section 226(2) of the Labour Code
(Amendment) Act 3 of 2000. Further, that the latter claim is a purely
commercial claim which this Court has no jurisdiction over. Court rejecting
argument that section 227(9)(b) gives an applicant party the option to
approach the Court for adjudication of matter without a report of nonresolution having first been issued. Court declining to make an award of costs.
BACKGROUND OF DISPUTE
1. Applicant has referred claims for payment of interest accrued on his
pension benefits, and the reimbursement of finance charges on loan
facilities advanced to him by the 1st Respondent. The matter had initially
been referred to the Directorate of Dispute Prevention and Resolution
(DDPR) for resolution by conciliation and arbitration. It is alleged that
the matter was conciliated upon but that before a certificate anticipated
under section 227 of the Labour Code (Amendment) Act 3 of 2000 could be
issued, Applicant approached this Court for resolution of the dispute by
adjudication.
2. In an answer to Applicants originating application, 1st Respondent had
raised several points of law, all of which challenged the jurisdiction of this
Court in the matter. In view of the points of law raised, and in particular
the one relating to the competence of the 1st Respondent to be sued in
casu, Applicant applied for a joinder of Nedbank Lesotho Pension Fund as
2nd Respondent. The joinder was granted by agreement of parties.
Parties thereafter filed their heads of argument and the matter was then
set down for hearing. Having heard the submissions of parties in the
points of law, Our judgment is therefore as follows.

Page 155 of 265

SUBMISSION AND ANALYSIS


3. 1st Respondent argued that Applicant had taken an irregular step in these
proceedings. In amplification, it was submitted that these are trial
proceedings which have been initiated in terms of Rule 3 of the Rules of
this Court.
That notwithstanding, Applicant has replied to 1st
Respondents answer with an affidavit. It was argued that in trial
proceedings, affidavits are not allowed.
4. In answer, Applicant submitted that while he may have filed an affidavit
contrary to the Rules of Court, this Court is the master of its own rules
and as such it can condone the irregularity committed. It was added that
the contents of the said affidavit are similar to those that they could have
pleaded in the reply. Applicant prayed that the Court to condone the
irregular step.
5. In terms of Rule 27(1) and (2) of the Rules of this Court;
(1)
Failure to comply with any requirements of these rules shall not
invalidate any proceedings unless the court
directs.
(2) Notwithstanding anything contained in these Rules, the court may in its
discretion, in the interest of justice, upon written application, or oral
application at any hearing, or of its own motion, condone any failure to
observe the provisions of these Rules.
6. It is evident from the above provisions that not only will an irregularity
not invalidate any proceedings, but also that this Court can condone the
breach of its rules. This is in line with the submissions of Applicant that
this Court is the master of its own Rules. We have considered the reply
filed on behalf of Applicant had determined that, at least, materially its
content would still be the same even if it were a reply filed in terms of
Rule 3. Further, no prejudice has been alleged on the part of Respondent
that has been occasioned by this breach. We therefore find that it would
be in the best interest of justice to condone this irregular step.
7. It was further 1st respondents case that this Court has no jurisdiction
over both Applicants claims. It was argued in amplification that the one
of the claims concern the non-payment of monies allegedly due out of the
employment relationship, while the other concerns payment of monies
arising outside the employment relationship.
8. It was submitted that the first claim falls within the jurisdiction of the
DDPR in terms of section 226(2) of the Labour Code Act (supra). It was
added that the sound claim falls within the jurisdiction of ordinary civil
courts as it arises out of contractual relationship between the 1st
Respondent as a bank and Applicant as its customer. It was said that
the claim arises out of a loan extended to Applicant by the 1st Respondent
bank, and therefore purely contractual in nature.
9. Applicant answered that this Court has jurisdiction over both claims as
they both arise out of the employment relationship. In relation to the 2nd
Page 156 of 265

claim, it was submitted that it was a staff loan and not a bank loan as 1st
Respondent suggests to the Court. On the premise of this said, it was
argued that section 227(9)(b) of the Labour Code Act (supra), gives this
Court the power to hear both claims if after 30 days from the date of
referral, the DDPR will still have not resolved them. 1st Respondent
replied that the averments that the loan was staff loan is an afterthought,
as it had not been pleaded in reply, and as such should be disregarded.
10. We have gone through the Applicants reply and wish to confirm that
indeed he has not averred that the loan was a staff loan as opposed to a
bank loan. As a result, this is an afterthought and We accordingly
disregard it.
The effect of this is to render the averments of 1st
Respondent unchallenged. It is trite law that what has not been
challenged, stands to be taken as true and accurate (see Theko v
Commissioner of Police and Another 1991-1992 LLR-LB 239 at 242). On
these bases, the Applicants second claim is reduced to nothing but a
purely commercial loan that has been extended to a customer by a bank,
the dispute over which We lack jurisdiction. We say this because the
jurisdiction of this Court is limited, by the statute that created it, to
matters that arise out of the employer-employee relationship (see LHDA v
Mantsane Mohlolo LAC/CIV/07/2009).
Consequently, We decline
jurisdiction over same.
11. In relation to the first claim, We are in agreement with 1st Respondent
that it is a claim for unpaid monies. That being the case, it falls under
section 226(2)(c) of the Labour Code Act (supra). Section 226(2)(c)
provides that
(2) The following disputes of right shall be resolved by arbitration

(c) a dispute concerning the underpayment or non-payment of monies due


under the provisions of this Act;
12. Applicant has in defence of this argument attempted to suggest that
section 227(9)(b), gives him the option to approach this Court for a
remedy, where the DDPR has failed to resolve a dispute referred before it,
within 30 days of referral. The said section provides that,
(9) If a dispute contemplated in subsection (5) remains unresolved after 30
days from the date of referral

(b) any party to the dispute may make an application to the Labour Court.
13. The above interpretation of section 227(9)(b), provided by Applicant,
does not hold for a number of reasons. Applicant is interpreting section
227(9)(b) in isolation of the rest of the subsections in that section.
Subsection 9(b) has to be read together with subsection 5, 6 and 9(a).
These subsections provide as follows,
(5) If the dispute is one that should be resolved by adjudication in the
Labour Court, the Director shall appoint a conciliator to attempt t resolve the
dispute by conciliation before the matter is referred to eh labour Court.
Page 157 of 265

(6) If the dispute is resolved


(a) the conciliator or arbitrator shall issue a report; and
(b) the settlement agreement shall be reduced to writing and signed by
parties to the dispute.

(9) If a dispute contemplated in subsection (5) remains unresolved after 30


days from the date of referral

(a) the conciliator shall issue a report that the dispute remains unresolved;
14. In terms of these subsections an arbitrator shall attempt to resolve the
dispute by conciliation and where successful, there shall be a report and
a settlement agreement. However, where unsuccessful, there shall be a
report that it remains unresolved, after which any party may then
approach this Court. Consequently, it is incorrect that subsection 9(b)
gives this Court jurisdiction to hear a claim which has not gone through
all the steps under subsection 5, 6 and 9.
15. It was further, 1st Respondents argument that it had been wrongly
sued in these proceedings. It was argued in support that both Applicant
and 1st Respondent are members of 2nd Respondent and that 1st
Respondent contributes to 2nd Respondent fund like Applicant. Further
that at the end of the employment relationship between Applicant and 1st
Respondent, 2nd Respondent pays Applicant his benefits that derive from
both his contribution and 1st Respondent contribution on his behalf into
the 2nd Respondent fund. It was submitted that this is clear from the
constitution of 2nd Respondent, which is a distinct legal pension from 1st
Respondent.
16. In answer, Applicant submitted that 2nd and 1st Respondents are one
and the same thing.
It was added that whereas a certificate of
registration (Constitution) of 2nd Respondent, presents it as a separate
legal person, Applicant has contributed into 2nd Respondent fund as far
as since his employment in 1974, together with 1st Respondent. As a
result, Respondents have in the past been one and the same thing and
continue to be the same hence why they have been joined as respondents
in this matter. It was added that to further fortify this argument, 1st
Respondent did not oppose the joinder application because it new that
2nd Respondent is part of it.
17. We note that there is a constitution in respect of 2nd Respondent
which separates it from 1st Respondent. While that is the case, We
cannot ignore the unchallenged fact that the fund operated long before
the 2nd Respondent was established. We have stated before that in law
what has not be challenged is taken to have been admitted (see Theko v
Commissioner of Police and Another 1991-1992 LLR-LB 239 at 242). As a
Page 158 of 265

result, We are of the view, and in agreement with Applicant, that 1st and
2nd Respondent are one and the same, at least up to the point which 2nd
Respondent was established as a separate legal person. Consequently,
1st Respondent has been properly sued in these proceedings.
18. We wish to add that We agree with Applicant that the fact that 1st
Respondent did not oppose the joinder application demonstrates that 1st
Respondent accepted liability at least to an extent. We say this because
joinder can only be appropriately made to a party that is right before
court (see FAWU o.b.o Labane & others v Tai Yuan Garments (Pty) Ltd
LC/52/2012). Where the situation is on the contrary, the proper route is
substitution. In acceding to the joinder being made, Applicant was by
conduct also acceding to being the right party to be sued.
19. 1st Respondent prayed for costs mainly on two grounds. Firstly that a
wrong party has been sued and secondly that costs follow suit. Applicant
objected to an order of costs on the ground 1st Respondent had been
properly sued and in turn counter applied for costs to follow suit in his
favour.
20. Evidently, the claim for costs on the ground of a wrong party being
sued falls off due to Our finding above. Regarding the second ground and
the counter claim, We have stated before that costs normally follow suit
in ordinary civil courts. This Court is a Court of equity and fairness and
only awards costs in extreme circumstances of abuse of its process. We
have said this to be the case, where there is frivolity and/or vexatious
conduct (see Mokone v G4S Cash Solutions (Pty) Ltd LC/31/2012; Thabo
Makhalane v The Ministry of Law and Constitutional Affairs & others
LC/PS/A/02/2012; Thabo Moleko v Jikelele Services LC/40/2013;
Kopano Textiles v DDPR & another LC/REV/101/2007; Sefatsa Mokone v
G4S Cash Solution (Pty Ltd LC/31/2012). In casu, none of the two
circumstances has been established by either of the two parties. We
accordingly decline to award costs.

Page 159 of 265

AWARD
We therefore make an award as follows:
a) This court has no jurisdiction over Applicants claims; and
b) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF JULY 2014
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. MARITI
MS. TOHLANG

Page 160 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/33/2011
A0632/2010

IN THE MATTER BETWEEN


ACTION STATISTICAL INVESTMENT
(PTY) LTD t/a PICK N PAY

APPLICANT

AND
LESIA MONANABELA
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. Six grounds of review being raised
on behalf of Applicant. Only four being pursued. 1st Respondent raising a point
of law that grounds raised are appeal disguised as review. Court not finding
merit in the point of law and dismissing same. Court finding merit in the some
of the review grounds and granting the review. No order as to costs being
made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0632/10. Six grounds of review had been raised on behalf of Applicant
but only four were argued. In answer to the Applicants review grounds,
1st Respondent raised a point of law that the grounds raised are appeal
disguised as review. Both parties made presentations in the matter
holistically, and Our judgment follows.
POINT OF LAW
Submissions
2. 1st Respondent submitted that the grounds raised by Applicant are
appeal and not review grounds, at least as contemplated in the authority
of Thabo Mohlobo & Others v LHDA LAC/CIV/A/02/2010.
It was
submitted that in this authority, the Court made the distinction between
an appeal and a review. It was argued that from the distinction made, it is
glaringly clear that the grounds raised in casu are appeal and not review.
The Court was further referred to the authority of J.D. Trading t/a
Supreme Furnishers v M. Monoko and others LAC/REV/39/2004, in
support.
3. In answer, Applicant submitted that the grounds raised are in line with
the authority of J.D. Trading t/a Supreme Furnishers v M. Monoko (supra).
It was argued that in that authority, disregard of evidence and failure to
Page 161 of 265

apply ones mind to evidence are recognised grounds of review, as they


sound in procedure and/or relate to the method of trial. It was prayed
that on these bases, the point of law be dismissed.
Analysis
4. In the case of J.D. Trading t/a Supreme Furnishers v M. Monoko (supra),
relying on the South African court decision in Johannesburg Stock
Exchange and another v Witwatersrand Nigel Ltd and another 1988 (3) SA
132, the court laid out the test for review as follows,
Broadly, in order to establish review grounds, it must be shown that the
president failed to apply his mind to the relevant issues in accordance with
the of the statute and the tenets of natural justice.....Such failure may be
shown by proof, inter alia, that .... ignored relevant ones ... failed to apply
his mind .....
5. In view of the above extract, it is Our opinion that the grounds raised by
Applicant pass the test set in the above authority as they relate to
disregard of evidence and failure to apply ones mind. We are of the view
that these grounds challenge the procedure as they are not concerned
with the conclusion of the learned Arbitrator, but with how He dealt with
evidence before Him.
6. Our conclusion above also falls in all four corners within the distinction
made in the J.D. Trading t/a Supreme Furnishers v M. Monoko (supra)
between an appeal and a review. In that authority the Court made the
distinction between the two in the following:
The reason for bringing proceedings on review is the same as the reason
for taking them on appeal, namely to set aside a judgment already given.
Where the reason for wanting to set aside a judgment is that the court
came to the wrong conclusion on the facts or the law, the appropriate
remedy is by way of an appeal. where on the other hand, the real
grievance is against the method of the trial, it is proper to bring the case for
review.
Consequently, the objection by 1st Respondent is dismissed.
MERITS
Submissions
7. The first ground of review was that the learned Arbitrator disregarded
evidence that demonstrated that 1st Respondent was not a credible
witness. It was submitted that evidence was led, which evidence was
unchallenged, that 1st Respondent had claimed that one Teliso Matela
had implicated him, at the initial hearing. Further, notwithstanding this
evidence, 1st Respondent changed his claim to argue that it was the
Managing Director of Applicant, one Mr. Mphana, who implicated him
when he testified before the DDPR.
8. The second ground of review was that the learned Arbitrator had failed to
apply Her mind to the evidence before Her that demonstrated that 1st
Respondent received the money from one Mamalebanye in exchange for a
Page 162 of 265

place in employment within Applicant. It was submitted that during the


cross examination of one Mamalebanye, 1st Respondent had put it to her
that she gave the money to 1st Respondent voluntarily. It was argued
that this was contrary to 1st Respondent defence that he did not know
Mamalebanye and that he also did not receive any money from her. It
was argued that if considered this evidence should have influenced the
learned Arbitrator into finding that 1st Respondent was guilty of
fraudulently and/or dishonestly receiving money from a person that he
promised a job at Applicant business. The Court was referred to page 71
of the record.
9. Thirdly, it was argued that the learned Arbitrator erred by disregarding
circumstantial evidence which showed that 1st Respondent knew
Mamalebanye as he did not deny knowledge of her, when called to the
Managing directors office to answer allegations against him. It was
submitted that the Managing Director gave this evidence, and if
considered the learned arbitrator would have found that denial of
knowledge of Mamalebanye was only conveniently raised at the DDPR
arbitration proceedings. The Court was referred to pages 14 to 15 of the
record.
10. Lastly, it was Applicants case that the learned Arbitrator disregarded
its evidence which showed that the conduct of 1st respondent warranted
dismissal. It was submitted that Applicant gave evidence that the
conduct of 1st Respondent, if known to the outside world, would tarnish
its reputation by painting a wrong picture that Applicant hires its
employees by first making them pay. It was argued that given the gravity
of the conduct of 1st Respondent and the possible consequences, the
learned Arbitrator would have been influenced into find that dismissal
was justified in the circumstances.
11. In answer, 1st Respondent submitted that all evidence was considered
and that the learned Arbitrator duly applied Her mind to same. It was
added that it would be absurd to expect the learned Arbitrator to jot down
every word uttered in the evidence of Applicant in order to be considered
to have regarded the evidence of Applicant. It was added that in
analysing evidence, what matters is the subject matter and the totality of
evidence relevant hereto.
12. Further, it was submitted that the argument regarding circumstantial
evidence does not hold. It was argued in support that the inference that
Applicant is attempting to draw is not the only one that was plausible
from the events of that day. The Court was then referred to the record of
proceedings at pages 14 and 15, where the following exchange was
recorded.
Adv. Ntaote:
Did he show any sign of knowing the lady, that is
Malebanye?
Mr. Mphana:
At that time when I was talking to him, he did not
indicate that he did not know the lady. He even said
Page 163 of 265

to me that he took the ladys CV and brought it here


in the office like he does to anybody else.
13. It was argued that the above extract does not indicate or lead to the
inference that 1st Respondent knew the lady. It was added that there is a
distinction between knowing and recognising someone when reminded. It
was submitted that in casu, 1st Respondent remembered taking
Mamalebanyes CV when reminded about her which means he recognised
her and but did not have knowledge of her. It also denied that 1st
Respondent made any inconsistent statements regarding the persons who
implicated him.
14. Regarding the evidence that showed that the conduct of 1st
Respondent warranted dismissal, it was argued that the evidence was
considered and disqualified. It was submitted that the learned Arbitrator
had already made a conclusion that 1st Respondent was not guilty of the
charge laid against him.
It was added that by considering the
appropriateness of the sanctions, the learned Arbitrator was going an
extra mile, which She did not need to do. It was submitted that clearly,
the issue was addressed and whether the verdict given was right or
wrong, is something else.
15. Regarding the statement that was put to Mamalebanye by 1st
Respondent representative, it was argued that it was mere naivety on the
part of the 1st Respondent representative.
It was argued that 1st
Respondent was represented by a mere union official who lacked
knowledge in law and also did not understand and appreciate the
implication of that statement made.
Analysis
16. On the first review ground, it has been alleged that evidence was lead
on record, in the proceedings before the DDPR, where certain two
inconsistent statements were made.
While We acknowledge that
inconsistencies in evidence suggest a fabrication of facts, no reference
has been to the alleged record where such inconsistent statements were
made. That being the case, the allegations of irregularities in dealing with
these two alleged statements, are no more than bare allegations,
particularly because the alleged inconsistency has been denied by 1st
Respondent.
17.
It is trite that bare allegations without supporting facts or evidence
cannot be relied upon to make a definitive decision (see Mokone v
Attorney General & others CIV/APN/232/2008). Further, We have stated
before that the record of proceedings in the court a quo serves a very
paramount purpose in review proceeding, particularly in relation to the
claims of irregularities. The record serves as supporting evidence to the
alleged irregularities, particularly where such irregularities are alleged to
appear on the record. This being the case, this ground fails.

Page 164 of 265

18. We have considered page 71 of the record and have noted the following
exchange between Mamalebanye and the 1st respondent representative:
Mr. Mokaoane:
In this issue of money, I put it to you that you are the
one that had volunteered to give him the money he
did not ask for it.
Mrs. Malebanye:
I didnt volunteer.
19. In Our view, this was clear evidence of acknowledgement of receipt of
the money by 1st Respondent from Mrs. Malebanye. We have also gone
through the arbitration award and have noted that this evidence has not
been considered. It is Our view that if considered and given a thought,
this evidence would have led to a different conclusion being made. It is
neither disputed nor it is doubtful, from the record, that 1st Respondents
case was denial of knowledge of Mamalebanye and receiving anything
from her.
This statement was important on it contradicted 1st
Respondent earlier pleaded case. It demonstrates both knowledge and
receipt of something from Mamalebanye.
20. Regarding the argument about the naivety of 1st Respondent
representative at the DDPR proceeding, the argument cannot stand to
excuse the statement made. In making that statement, 1st Respondent
representative put Applicants case per his instructions. That statement
was what 1st Respondent, is in law presumed to have told his
representative as what accurately took place, contrary to what witness
had said. Therefore the statement stands.
21. On the third, review ground, We have also considered the record of
proceedings before the DDPR and the arbitration award. Within the
record, We have specifically focused on evidence on pages 14 to 15, which
both parties have referenced. We wish to confirm and agree with
Applicant that the only plausible inference that can be drawn from the
referenced evidence, is that 1st Respondent was not candid with the Court
when he denied knowledge of Mamalebanye and claimed to be seeing her
for the first time at the DDPR, and in the proceedings.
22. The word knowledge derives from the word know. Know means to
understand; be familiar with; remember someone for something.... (See
Angus Stevenson, (2010) Oxford Dictionary of English, Oxford University
Press). This being the case Applicants argument and an attempt to draw
a distinction between to know someone and to recognise them do not aid
their case. Within the definition from the word know is recognition which
is the same as remembering someone for something, at least in this
context.
23. From Our inspection of the record, We have noted that this evidence
has not been considered, yet it is important as it directly places an attack
on the case of 1st Respondent, at least before the DDPR. We are of the
view that if considered, it may have influence the learned Arbitrator into

Page 165 of 265

making a different conclusion. Consequently, the learned Arbitrator


erred grossly and Her award warrants a review.
24. On the last ground of review, We wish to reiterate Our sentiments with
regard to the first review ground. It is alleged that the learned Arbitrator
disregarded evidence on record without the Court being referred to any
part of the record where this is reflected.
The arbitration award
indicates that evidence concerning the appropriateness of the sanction
was considered and disqualified. There is evidence of both consideration
and the fact that the learned Arbitrator applied Her mind on same. As for
the bare allegations of facts, that evidence of possible damage to
reputation was led, We dismiss it as being unconvincing.
AWARD
On the basis of the above reasons, We make the following order:
a) That the review is granted;
b) The matter is remitted back to the DDPR to be heard de novo before a
different arbitrator;
c) The order to be complied with within 30 days of issuance herewith;
d) No order as to costs is made.
THUS DONE AND
SEPTEMBER 2014

DATED

IN

MASERU

ON

THIS

15th

DAY

T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MR. KAO

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

ADV. NTAOTE
MR. MAIEANE

Page 166 of 265

OF

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/05/2013
B020/2012

IN THE MATTER BETWEEN


NAPO MOEKETSI

APPLICANT

AND
EDCON T/A JET STORES
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review being filed out of time together with an application for
condonation. In determining the condonation application, Court finding the
explanation to be reasonable to explain the delay. However, Court finding that
prospects of success relied upon relate to the merits of the claim before the
DDPR. Court finding that Applicant has no prospect of success in the main
review application. Further, that the reasonable explanation given, does not in
any way augment the non-existent prospects of success in the review
application. Court refusing the condonation application and dismissing the
review application for want of jurisdiction. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
B020/2012. Applicant had initially referred a claim for unfair dismissal
with the 2nd Respondent. The matter was heard in default of 1st
Respondent. Nevertheless, Applicants referral and claims were dismissed
through an award issued on the 1st October 2012. It is this award that
Applicant wishes to have reviewed, corrected and/or set aside.
2. Several grounds of review have been raised on behalf of Applicant.
However, because the review application was filed out of time, it was
accompanied by an application for condonation. This application was
strongly opposed and having heard the submissions of both parties, Our
judgement follows.
SUBMISSIONS
3. It was Applicants case that he delayed by only two months in filing this
application. He argued that this delay is not inordinate and that it has
not and will not prejudice 1st Respondent in any manner. It was further
Applicants case that he failed to file the review application within the
prescribed time limits, because he had no money with which to instruct a
Page 167 of 265

lawyer to file this application on his behalf. He only had enough money
in January 2013, hence the late referral.
4. It was further Applicants case that compounding to his late filing, was
the fact that his letter of termination had referred him to the CCMA in
South Africa, for redress of his grievance against the decision of his
Respondent to dismiss him. He then spend a good amount of time
researching about the CCMA and its rights in Lesotho. Furthermore, that
regarding the time limits, he had a conflict with his initial union
representative who thereafter refused to assist him with the matter. He
thus had to wait until he had enough money to afford the services of a
lawyer.
5. Applicant further submitted that he had prospects of success in that the
learned Arbitrator had committed a serious mistake of law that materially
affected His decision and or failed to consider relevant facts, and or
considered irrelevant facts. It was submitted that the learned Arbitrator
erred in holding that Applicants dismissal was procedurally fair
notwithstanding the following:
i. That 1st Respondent had charged him under a South African
disciplinary policy;
ii. The review committee to which he was directed to appeal to was
constituted and indeed sat in South Africa and that this denied him
the right to a fair appeal hearing;
iii. That the same review committee which sat in south Africa made a
decision against him without giving him the hearing;
iv. The decision to dismiss him was made in South Africa;
v. He was not given the chance to mitigate his dismissal as he was not
able to attend the appeal hearing in South Africa;
vi. His letter of dismissal was made in South Africa and it refers him to
the CCMA for redress;
vii. The chairperson of his initial hearing was a South African and did
not have a work permit. As a result he had no right to work in
Lesotho and therefore that the decision he made was null and void;
viii. He was not terminated by his employer but by another company in
South Africa which did not employ him;
ix. After receiving his letter of termination he got another one, which
was still from South Africa, which purported to terminate his
employment.
x. The second letter did not even purport to cancel or withdraw the
first letter and that this prejudiced his legal rights.
6. It was further argued that this case is not only important to Applicant but
within Our jurisdiction as it will determine if it is proper for a foreign
company to dismiss someone working within this Courts jurisdiction.
7. 1st Respondent answered that it is not accurate that Applicant did not
have money as he had just been paid his terminal benefits. Further, that
over and above that, he earned M15,193.00 as his salary and could from
Page 168 of 265

that salary be able to pay for legal fees. Regarding the confusion created
by the letter of termination, it was argued that it could not have led to the
delay in filing a review. It was added that the letter relied upon, without
admitting, could at least be said to have caused a confusion in relation to
the DDPR case, which Applicant eventually lodged hence the review.
8. About conflict with the union representative, it was argued that the
explanation be found to be unreasonable as Applicant has not stated
what this conflict was, so that the Court could determine if it had a
bearing on the representations and consultations.
9. On the prospects of success, it was argued that these issues were never
the case before the DDPR and that as such they were never put before the
learned Arbitrator to consider. It was further argued that these issues
are being raised by Applicant for the first time on review. It was
submitted that in terms of the law on review, parties are confined to what
took place at the initial hearing in the court a quo.
10. It was further argued that Applicant is attempting to use these
proceedings to argue the legality of his dismissal which is matter that
falls to be determined by the 2nd Respondent. It was added that, this
being the case Applicant has no prospects of success in the review
application and that this coupled with the fact that there is no reasonable
explanation offered, the condonation application should be dismissed
with costs.
11. In reply, Applicant submitted that all submissions by 1st Respondent
in answer, have not been pleaded. It was argued that they are being
raised from the bar and that this is contrary to the rule in motion
proceeding that parties must stand and fall by their pleadings. Specific
reference was made to the argument relating to the salary of Applicant
and the fact that the issues on prospects of success were never raised
before the DDPR. It was argued that these are new issues altogether.
12. It was conceded by Applicant that the issues raised in the prospects of
success were never raised during the arbitration proceedings. It was
however argued that the law on reviews allows for parties to raise issues
which were never raised in the initial hearing on review. It was added
that the learned Arbitrator ought to have required parties to address
those issues during arbitration proceedings and that in failing to do so,
He committed a huge anomaly.
13. We have gone through the pleadings of parties and have confirmed
that most of the submissions made on behalf of 1st Respondent have not
been pleaded.
Regarding the issue of the reasonableness of the
explanation for the delay, 1st Respondent has only addressed the issue of
the letter of termination which is alleged to have raised confusion. We
confirm that the rule in motion proceedings is that parties are confined to
their pleadings. Instructive on this position is the authority of Netherburn
Page 169 of 265

Engineering CC t/a Netherburn Ceramics v Mudau No & Another (2009) 30


ILJ 279 LAC, where at paragraph 25 of the judgment, the Court held as
thus,
In my view it is not open to the appellant to now argue the case which it
did not foreshadow in its founding affidavit.
In view of the above principle, We will only confine Ourselves to the
submissions relating to the pleaded case of 1st Respondent.
14. In Our view, Applicant cannot rely on a letter that referred him to the
CCMA after having referred his claim to the DDPR. The argument has
simply and plainly been overtaken by events. Clearly, and as suggested
by 1st Respondent, if at all there was any confusion, it could at best have
served his case before the DDPR and not this court. As a result, We
dismiss that argument as being without merit.
20. However, Applicant explanation for the delay was not solely premised
on the confusion alleged to have been raised by letters of termination, but
also on the lack of knowledge about the time limits and the fact that he
had no money. While We accept these arguments as being unchallenged,
the argument about the lack of awareness about the prescribed time
limits cannot sustain. We say this because the time limits are prescribed
in the rules of this Court which are the law. It is trite that ignorance of
the law is no excuse in Our jurisdiction. As a result, the argument of
Applicant in this premise is inexcusable and therefore unreasonable. Our
attitude finds support in the High Court of Lesotho decision in Molapo v
Mphuthing & others CIV/APN/188/1994, where the learned Maqutu J
quoted an extract from the authority of Evans v Bartlam 1937 2 All ER
646 at 649GH, that
There is a rule that ignorance of the law does not excuse.
15. Regarding the lack of funds, unless otherwise shown, We accept as
being reasonable enough to justify the delay in the referral of this
application.
For this reason, We are therefore content with the
explanation given for the delay in filing this application.
16. Regarding the prospects of success, the 1st Respondent has addressed
them in its pleadings. This appears under para 6 of its answer, which
spans from paragraph 6.1 to 6.4. However, what has not been pleaded, is
the claim that all the arguments in support of the prospects of success
were not raised during the arbitration proceedings. This being the case,
the rule in motion proceedings, as cited from Evans v Bartlam 1937 2 All
ER 646 at 649GH by Maqutu J in Molapo v Mphuthing & others (supra),
equally applies against 1st Respondent on this point.
17. Nonetheless, We cannot ignore the concession made by Applicant that
he did not raise the issues before the 2nd Respondent but that they are
only coming up for the first time on review. We have stated before that
this practice is forbidden in review proceedings, as it is contrary to the
principle of audi alteram partem (see Phakiso Ranooana v Lesotho Flour
Page 170 of 265

Mills (Pty) Ltd & another LC/REV/59/2011; Zinyathi Trading (Pty) Ltd v
DDPR & others LC/REV/11/2013). The principle of audi alteram partem
applies both ways, that is, it must be afforded to all parties concerned
and that includes the learned Arbitrator. By this, We essentially mean
that the issues which are being raised for the first time on review, should
have been raised with the learned Arbitrator to give Him the opportunity
to address them..
18. In view of the circumstances of the case in casu, there are clearly no
prospects of success as issues claimed to serve that purpose, are
advanced in breach of the audi alteram partem rule. In Our view, it would
be baseless and a waste of time to condone a claim which clearly would
not have merit. Even though the explanation given is reasonable, it does
not in any way augment the prospects of success and as such it would
not be in the interests of justice to condone same. Consequently, the
condonation application is refused.
19. It is trite law that a court has no jurisdiction over a decision that has
been filed out of time unless the delay in filing such a claim has been
condoned. In essence, it is through the granting of condonation that the
court becomes seized with jurisdiction over a prescribed claim. In casu,
We have refused the Applicants condonation application. This being the
case, We remain deprived of jurisdiction to hear the review application as
it was filed out of time and continues to remain so.
20. In coming to the above conclusion, We have relied on the authority of
Lesotho Brewing Company t/a Maloti Mountain Brewery v Lesotho Labour
Court President & Another CIV/APN/435/95, where the Court had this to
say,
where a claim is presented to court outside the time allowed by the law,
the court to which such a claim is presented is deprived of the jurisdiction
to hear such a claim. The jurisdiction of the court will only arise from that
court exercising the discretion condoning the failure to comply with the
stipulated time, if the interest of justice so demand.

Page 171 of 265

AWARD
On the basis of the above reasons, we make the following award:
a) The condonation application is refused.
b) The review application is dismissed for lack of jurisdiction.
c) No order as to costs is made.
THUS DONE AND
SEPTEMBER 2014.

DATED

AT

MASERU ON THIS

15th

DAY OF

T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MRS. THAKALEKOALA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. SEKONYELA
ADV. RAMPHALILE

Page 172 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/54/2010
A0795/2008

IN THE MATTER BETWEEN


STEM (PTY) LTD

APPLICANT

AND
NTIUOA SEFALE
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for the review of the arbitration award. Applicant raising three
grounds of review unreasonableness; irrelevant considerations; and
ignorance of evidence. Court finding an irregularity in respect of the third
ground. However, Applicant failing to satisfy Court that irregularity warrants
review. Court refusing the review application and no order as to costs being
made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0795/2008. Applicant had referred claims for unfair dismissal, unpaid
leave and unpaid wages. The rest of the other claims were resolved at
conciliation, save for the unfair dismissal claim. It was duly arbitrated
upon at the end of which an award was issued, directing Applicant herein
to reinstate 1st Respondent and payment of lost earnings. It is this award
that Applicant wishes to have reviewed, corrected and/or set aside. We
wish to note that several grounds of review had initially been raised on
behalf of Applicant, but that only three were argued while the rest were
withdrawn.
Having heard the arguments of parties and having
considered their pleadings, Our judgement follows.
SUBMISSIONS
2. The first ground of review was that the learned Arbitrator had erred in
ordering reinstatement when no evidence had been led to show that it
was possible. It was added that over and above this, the Applicant had
led evidence that 1st Respondent had been dismissed for dishonesty and
that, this on its own ought to have influenced the learned Arbitrator not
to order reinstatement of 1st Respondent. The Court was referred to the
book by Hebsten entitled Civil Practice of Supreme Court, 3rd Edition at
page 751, where it was recorded that a judgment in support of which no
evidence has been led, is reviewable.
Page 173 of 265

3. In answer, 1st Respondent submitted that this is an appeal disguised as a


review. It was argued in support that Applicant is suggesting that the
learned Arbitrator cannot order reinstatement. Moreover, it was argued
that it was the Applicants responsibility to lead evidence of
impracticality, moreso given that it was aware of the remedy sought by 1st
Respondent, which was reinstatement.
4. We wish to confirm the principle laid in Hebsteins book above. However,
that principle is misplaced in casu. We say this because, and as 1st
Respondent has rightly pointed out, it was the responsibility of the
Applicant to lead evidence of impracticality of reinstatement, particularly
bearing in mind that 1st Respondent had claimed to be reinstated. In
terms of section 73 of the Labour Code Order 24 of 1992, in particular,
sub-section (1) therefore, where the court finds the dismissal of an
employee to have been unfair, the principal remedy is reinstatement.
5. A deviation from the provisions of section 73, that is, the award of the
principal remedy, occurs only where the Court is of the view that
reinstatement is not practical. This is elegantly captured under Subsection (2) therefore as follows,
(2) If the Court decides that it is impracticable in the light of the
circumstances for the employer to reinstate the employee in employment, or
if the employee does not wish reinstatement, the Court shall fix an amount
of compensation to be awarded to the employee in lieu of reinstatement.
In Our view, it is the responsibility of an employer party to the
proceedings to influence the Court to deviate from the principal remedy,
by pleading impracticality and supporting same with evidence.
6. We have perused the arbitration award and have confirmed that no
challenge was placed against the remedy of reinstatement. Rather the
evidence that Applicant is attempting to rely on, to justify the refusal of
reinstatement, was only led in opposition of 1st Respondent claim of
unfair dismissal. Clearly, what Applicant suggests that should have
happened is that the learned Arbitrator ought to have, on own motion
considered its unsuccessful defence of dishonesty to refuse the principal
relief sought by Applicant. Had the learned Arbitrator adopted that
approach, She would have been guilty of descending into the area of
dispute.
That approach is highly shunned upon as it is not the
responsibility of the learned Arbitrator to build a case for parties (see
Kopano Textiles v DDPR and another LC/REV/101/2007). We therefore
find that there was no irregularity on the part of the learned Arbitrator.
7. We wish to comment that this ground is a review and not an appeal
ground. We say this because, it challenges the reasonableness of the
decision of the learned Arbitrator to award reinstatement, where there
was no evidence to support an award. Our point is essentially that any
challenge against the decision which places an attack on the
reasonableness or otherwise of same, is a ground for review. Our view
finds support in the authority of Johannesburg Stock Exchange & another
Page 174 of 265

v Witwatersrand Nigel Ltd & another 1988 (3) SA 132 (A), which has been
cited with approval by Our courts with specific reference to page at 152
A-E. The Court explained the review grounds as follows,
Broadly, in order to establish review grounds it must be shown that or
that the president misconceived the nature of the discretion conferred upon
him and took into account irrelevant considerations or ignored relevant
ones; or that the decision of the president was so grossly unreasonable as
to warrant the interference that he had failed to apply his mind to the
manner aforestated.
8. The second ground of review was that the learned Arbitrator made
irrelevant considerations in two instances. Firstly, that She compared
the situation of Applicant to that of someone who absented themselves
from work on account of illness, which was not applicants case.
Secondly, She relied on the case of Edcon Ltd v Pillermer NO and others
(2009) 30 ILJ 2642 (SCA), to determine if the dismissal of 1st Respondent
was an appropriate sanction. It was added that the facts in both cases
are distinct and therefore cases are incomparable. 1st Respondent
answered that the learned Arbitrator relied on the principle outlined in
that authority and not on the facts. It was added that while the facts may
have been different, but the principle was nonetheless applicable as the
issues for determination were similar, namely the breach of trust
relationship.
9. We have perused the arbitration award and have confirmed that at
paragraph 15 of same, the learned Arbitrator made reference to the
situation of someone who is absent from work on account of illness. In
fact the statement is recorded as follows;
I see no direct link between applicants dishonesty about her absence and
the loss the respondent company alleges to have suffered. I do appreciate
the fact that she was trusted in this area of work; assuming that she had
been absent for any other justifiable reason like illness, would the
respondent be justified in blaming her for the loss it suffers due to her
absence? Definitely no.
In Our view, the hypothetical scenario was not presented as a deciding
factor in Applicants case, but to merely buttress the already made
decision that there was no link between the dishonesty about absence
from work and loss suffered. Consequently, Applicants argument cannot
hold.
10. On the second leg of the second review ground, We have perused the
authority in Edcon Ltd v Pillermer NO and others (supra), and have noted
that indeed facts are distinct. However, the issues in dispute are similar
as they relate to whether the conduct of the accused employee warranted
their dismissal. Therefore, the learned Arbitrator was right in relying on
this authority, as it concerned the issue that fell to be determined by Her.
We wish to comment at this stage, that We confirm that facts need not be
similar in order for an authority to be applicable to another case.

Page 175 of 265

11. The third ground of review was that the learned Arbitrator ignored the
evidence of contents of the letter written by 1st Respondent. It was said
that this letter showed that 1st Respondent was not trustworthy. It was
argued that had this evidence been considered, it would have influenced
the learned Arbitrator not to award reinstatement. The Court was
referred to paragraph 12 of the arbitration award where the letter is
mentioned. In answer, 1st Respondent submitted that the said letter was
considered by the learned Arbitrator in Her arbitration award. The Court
was referred to paragraph 10 of the arbitration award.
12. We have perused paragraph 10 of the arbitration award and have
noted that the letter in issue was the report that is alleged to have been
written by 1st Respondent, to explain the events of the day on which she
was absent from work. Our findings demonstrate that it was indeed
considered. However, although considered, nothing in the analysis of the
learned Arbitrator touches on the content of the letter. What the learned
Arbitrator simply does is to recount the reaction of the 1st Respondent to
allegation that she was the author of the said letter. It is recorded that,
She even denied the report which was alleged to have been written by her.
Despite the overwhelming evidence against her, she insisted that was not
her report.
13. Paragraph 12 of the arbitration award, further fortifies the Applicants
argument that the content of the letter was not considered. Rather, and
as recorded at paragraph 10 of the arbitration award, the learned
Arbitrator simply recited that evidence of parties that 1st Respondent
denied ever writing the said letter and concluded that on the basis of the
evidence of Applicant, She was convinced that Applicants denial was
bare. Evidently, nothing in Her analysis touched on the content of the
said letter.
14. However, neither the arbitration award, nor any of the parties have
dared to reveal the content of the letter to Us. Rather, Applicant merely
alleged that had the letter been considered, it would have demonstrated
that 1st Respondent was untrustworthy and thus impossible to reinstate.
We have often stated before that the mere fact that evidence was ignored
is not sufficient to justify the granting of a review application. Parties bear
the responsibility of demonstrating to the Court that had the evidence not
been ignored, it would have led to a different and perhaps correct
conclusion being made. This exercise involves an investigation into the
probative effect or the relevance of the evidence alleged to have been
ignored, in relation to the issue for determination.
15. In casu, and as We have stated, neither the parties nor the arbitration
award make reference to the content of the letter. As a result, it is
difficult, if not impossible, on Our part to determine either the relevance
or probative effect of the content of the concerned letter. Consequently,
We find that Applicant has failed to show that the irregularity complained
of warrants interference with the arbitration award. We wish to rely on
Page 176 of 265

the authority in Johannesburg Stock Exchange & another v Witwatersrand


Nigel Ltd & another (supra), to support Our finding.
AWARD
On the strength of the above reasons, We make an award in the following;
a) The review application is dismissed;
b) The award in referral A0795/2008 remains in force; and
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF JULY 2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MALOISANE

I CONCUR

MS LEBITSA

I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. MABULA
ADV. MOLEFI

Page 177 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/83/2011
A1113/2010

IN THE MATTER BETWEEN


WASHINGTON KOPANG THABANE
t/a PARADISE LODGE

APPLICANT

AND
MATHABO MOROKA
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. Applicant raising two points of
law that answer has been filed out of time; and absence of authority to
represent on behalf of 1st Respondent. Court finding that answer is within
time and further that Applicant is estopped from question the representation of
1st Respondent. Three grounds of review having been raised - that arbitrator
ignored evidence of Applicant; that arbitration entertained a claim in respect of
which She had no jurisdiction; and refusal to accept evidence of Applicant.
Court not finding merit in all claims and dismissing the review application. No
order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A1113/2010. Two points of law have been raised by Applicant. One
relates to the answer while the other relates to the authority to represent.
On the date of hearing, We adopted a holistic approach to the matter, in
that We were addressed in both the points of law and the merits of the
review application. We had promised parties that if We upheld the points
of law, We would not consider the submissions of 1st Respondent, but
that We would only do so in the event of points of law being dismissed.
Having heard the holistic submissions of parties, Our judgement is
therefore in the following.
SUBMISSIONS AND ANALYSIS
Points of Law
2. Applicant argued that 1st Respondents answer had been filed out of time
and that as a result, it should be excluded. Further that with the answer
being excluded, 1st Respondent should be denied the right of audience, as
the answer being the basis of the said right, will have been excluded. 1st
Respondent answered that the answer was well within time and that if at
all, it can best be termed premature. In support, it was submitted that
Page 178 of 265

Applicant had not filed a notice in terms of Rule 16 of the Rules of this
Court. It was added that this is the notice that advises 1st Respondent to
file her answer. Therefore, that without the notice, it cannot be said that
1st Respondents answer is out of time.
3. The procedure for filing of processes in review proceedings before this
Court is governed by Rule 16 of the Labour Appeal Court Rules of 2002.
Rule 16 (7) thereof, deals with the procedure for filing an answer to an
application for review. In terms of the Rule,
(7) Any person wishing to oppose the application for review shall, within
14 days of receipt of a notice referred to in sub-rule (6) deliver an affidavit
in answer to the allegations made by the applicant.
4. Sub-rule 6 provides as follows,
(6) The applicant shall, within 7 days after the Registrar has made the
record available, either
(a) by delivery of a notice and accompanying affidavit, amend, add to or
vary the terms of the notice of motion and supplement the supporting
affidavit; or
(b) deliver a notice that applicant stands by its notice of motion.
5. In the light of the above Sub-rules, We are in agreement with 1st
Respondent that her answer is not out of time. In order for the challenge
raised by Applicant to validly stand, he ought to have advised 1st
Respondent to file an answer, in terms of Sub-rule (6), and 1st
Respondent must have failed to do so within the 14 days period
prescribed under Sub-rule (7). Having failed to serve and file this notice,
any claim of against the breach of Sub-rule (7) cannot stand.
Consequently, Applicants point of law fails to sustain.
6. Applicant had also claimed that 1st Respondent representative, Mr.
Mosuoe was not properly before Court as he had not been duly
authorised to appear by 1st Respondent. Applicant argued that there was
no authority to represent that had been filed on behalf of 1st Respondent,
authorising Mr. Mosuoe to appear on her behalf. In answer, Mr. Mosuoe
argued that Applicant was estopped from raising this point, especially
after serving all
process in this matter at his office, and further
arranging the date of hearing with his offices. He added that he was duly
authorised to appear by 1st Respondent. It was added that on the
premise of these events, 1st Respondent formed the impression that the
subject of authorisation was not an issue. It was argued that Applicant
was blowing hot and cold and that this Court should not allow them to do
so. It was prayed that this point be dismissed.
7. Applicant did not deny any of the factual allegations made by Mr.
Mosuoe, that he has been corresponding with him (Mr. Mosuoe) in all
processes in this matter, including towards the allocation of the date of
hearing. This being the case, We find it startling that Applicant is now
questioning Mr. Mosuoe's authority to appear on behalf of Respondent.
Page 179 of 265

In Our view, the principle of estoppels operates against him. This


principle has been impeccably explained by Schalk Van Merwe et al;
st

Contract: General Principles 1 Ed. Juta & Co, p.23, as follows,


In terms of estoppel someone who has been brought under an incorrect
impression (in other words who has been misled) by another and who in
reliance on that impression has acted to his detriment, may prevent (estop)
the other person from relying on the correct state of affairs before a court of
law. If estoppel is raised successfully it has the effect the incorrect
impression is maintained as if it were correct. Estoppel thus functions by
means of a fiction.
On the premise of the above said, We also find it more probable that Mr.
Mosuoe has been properly authorised to appear I these proceedings.
Therefore, this point also fails.
Merits
8. The first ground of review was that the learned Arbitrator ignored the
evidence of Applicant to effect that 1st Respondent had refused to comply
with the laws of Lesotho, thus making the employment relationship
impossible, when awarding reinstatement.
It was said that 1st
Respondent had refused to sign a written contract of employment and to
undergo a medical examination, contrary to the directive of the Labour
Department. It was argued that had this evidence been considered, when
making the award, the learned Arbitrator would not have awarded
reinstatement. The Court was referred to pages 56, 53 and 61 and 62 of
the record of proceedings.
9. In answer, 1st Respondent submitted that no evidence was led on behalf
of Applicant to demonstrate impracticality of reinstatement, or the refusal
by 1st Respondent to comply with the Labour Laws of Lesotho. It was
submitted that the referenced pages do not advance Applicants case, as
they do not demonstrate what is alleged to have happened. It was argued
that Applicant, is merely unhappy with arbitration award, and that mere
unhappiness is not a valid review ground.
10. We have gone through the record of proceedings and have noted that
page 53 of the record deals with the evidence on under payments of 1st
Respondent.
Page 56 deals with the evidence on refusal of 1st
Respondent to sign a contract presented to her for signature. All these
appear to have been recorded during cross examination of 1st
Respondent. At pages 61 to 62, are submission of Applicant on the issue
of refusal to sign, wherein Applicant argues that 1st Respondent refusal to
sign the contract of employment, made the continued employment
relationship impossible, hence her dismissal.
11. We agree with 1st Respondent, only to the extent of the evidence on
page 53, that it does not advance Applicants case on this point. We
further agree with 1st Respondent that this evidence, that is, evidence on
page 56 was not lead to demonstrate the impracticality of reinstatement,
Page 180 of 265

in as much as it does not, but merely to justify the dismissal of 1st


Respondent. Therefore nothing on record shows any evidence on the
practicality or otherwise of reinstatement as a remedy. About pages 61
and 62, these are submissions of Applicant, as We have already shown,
they go nowhere near towards demonstrating that reinstatement was not
practical. They simply confine themselves to justifying the dismissal.
12. We therefore find that no evidence was led on impracticality, in as
much as the submissions do not address same and rightly so, as
submissions are based on evidence tendered. As a result, the learned
Arbitrator did not commit any irregularity. We are also drawn to
conclude that Applicant is merely unhappy with the conclusion of the
learned Arbitrator and is therefore unduly using this process to address
his discontent. It is trite law that grounds that place a challenge on the
conclusion are not for review but rather for appeal (see J. D. Trading (Pty)
Ltd t/a Supreme Furnishers vs. M. Monoko & others LAC/REV/39/2004).
This ground is therefore dismissed.
13. The second ground of review was that the learned Arbitrator erred in
that She entertained a claim in respect of which She had no jurisdiction.
It was argued that 1st Respondent claimed discrimination caused by the
Labour Laws of Lesotho and that as such the learned Arbitrator had no
jurisdiction over this claim. 1st Respondent answered that the claim of
jurisdiction was never raised during the arbitration proceedings. It was
argued that none of the referenced portions of the record of proceedings
evidence this.
14. We have perused the record of proceedings before the DDPR and have
noted that at page 52, 1st Respondent is recorded denying that she ever
claimed that she was being discriminated against. At page 54, 1st
Respondent is recorded refusing, to have his entitlements calculated on
the basis of the gazette produced by Applicant. At page 56, and as We
have already stated, Applicant is recording as refusing to sign a contract
presented to him by Applicant.
15. In view of Our findings, there is no evidence that 1st Respondent
claimed to have been discriminated against. Infact, the portions to which
We have been referred, reflect 1st Respondent refusing the said claim. We
therefore find that neither discrimination nor a challenge to jurisdiction
were claims before the learned Arbitrator, and that as such She cannot be
found to have committed an irregularity in entertaining 1st Respondents
claim. Had the learned Arbitration considered and pronounced Herself
on these issues, She would have exceeded her bounds of Authority by
considering claims not before Her.
16. The third ground of review was that the learned Arbitrator refused to
accept the evidence of Applicant that it had been declared a small
business, by both the licensing authority and the Labour Department.
As a result, the learned Arbitrator came to the wrong conclusion that
Page 181 of 265

there was no evidence challenging underpayments. It was stated that the


learned Arbitrator rejected Applicant traders licence. The Court was
referred to pages 30 and 35 of the record of proceedings before the DDPR.
17. 1st Respondent answered that Applicant attempted to hand in a copy
of the traders licence without presenting the original for verification.
Further that when the authenticity of the copy was challenged he
undertook to bring proof in the form of the original, on the next date of
hearing and that this he never did. It was added that the learned
Arbitrator had ruled that upon presentation of the original, the copy
would be accepted. The said document was refused when Applicant
failed on his undertaking. The Court was referred to page 37 of the
record where the undertaking is said to have been made.
18. Page 30 of the record of proceedings reflects the re-examination of
Applicant. Applicant is asked on the category of his business and the
question is objected to. Thereafter no answer is given on the question. At
page 35, the 1st Respondent representative is recorded as refusing and
objecting to the admission of a copy of the traders licence without
presentation of the original. From these pages of the record, nothing
turns on the refusal of the learned Arbitrator to accept evidence that
Applicants business had been declared as a small business.
19. However, at page 37, parties agree that the copy of the traders licence
will be accepted and admitted into evidence upon production of the
original, on the next date of hearing. Thereafter the learned Arbitrator
rules in favour of the agreement and directs parties to proceed to address
other issues. This is the only point in the referenced pages where the
learned Arbitrator makes a ruling. As a result, it cannot be accurate that
any of these referenced pages reflect the learned Arbitrator as wrongly
refusing to accept the evidence of Applicant. Consequently, this point
also fails.

Page 182 of 265

AWARD
On the basis of the above reasons, We make an award in the following,
a) That the review application is refused;
b) That the award in referral A1113/2010 remains in force; and
c) That no order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF JULY 2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR KAO

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

MR. T. MOHALEROE
MR. P. MOSUOE

Page 183 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/101/13
A1219/2012(b)

IN THE MATTER BETWEEN


ATLANTIC ENTERPRISES (PTY) LTD

APPLICANT

AND
MAKATLEHO LETLALO
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for the review of the arbitration award. Only one ground of review
being raised that Arbitrator denied Applicant the opportunity to motivate its
review application. Record no reflecting Applicant complaint Application
having not challenged authenticity of record - Court finding no merit in the
ground raised and dismissing the review application. Purpose of record of
proceedings in review proceedings being considered. Applicant asking for
costs - Court not finding merit in same Court declining to make an award of
costs.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A1219/2012(b).
The brief background of the matter is that 1st
Respondent had referred a claim for unfair dismissal with the 2nd
Respondent. An award was later issued in favour of 1st Respondent and
in default of Applicant.
Thereafter Applicant initiated rescission
proceedings with the 2nd Respondent against the default award. The said
proceedings were dismissed on account of non-attendance of the
Applicant. It is this award that Applicant wishes to have reviewed,
corrected and/or set aside as being irregularly obtained.
2. It is important to note at this stage that 1st Respondent had made an
application for the dismissal of this review application for want of
prosecution. However, this application was abandoned in favour of the
merits of the review proceedings. Having been duly addressed by both
parties, Our judgement in the matter therefore as follows.
SUBMISSIONS
3. Applicant claimed that the learned Arbitrator erred in denying it the
opportunity to motivate the rescission application. It was submitted in
amplification that whereas the arbitration award makes it appear like
Applicant was not in attendance, in fact it was in attendance but was
Page 184 of 265

denied the right of audience on the ground that it had not brought a
Chinese interpreter. It was argued that the conduct of the learned
Arbitrator was irregular and that at best She ought to have postponed the
matter to allow Applicant to obtain an interpreter.
4. It was further argued that this is a serious allegation of an irregularity on
the part of the learned Arbitrator. This notwithstanding, the learned
Arbitrator has not rebutted same. As a result, it was argued that the
Court should take the version put on record by Applicant as a true
reflection of what took place in the arbitration proceedings. The Court
was referred to the authority of Teliso Kabinye v The Clerk of Court
Magistrate court & others C of A CRI/06/2010, in support of the
argument. It was submitted that in this authority, the Court stated that
failure to rebut an allegation of fact, is to be taken to be an admission of
same.
5. It was prayed that the application be granted on the strength of the above
points with costs. It was submitted that the case is against the learned
Arbitrator and not 1st Respondent and that as a result, 1st Respondent
ought not to have answered same. In doing so, 1st respondent caused
applicant to incur unnecessary costs of dealing with and addressing her
answer.
6. 1st Respondent answered that it is inaccurate to suggest that Applicant
was denied the opportunity to initiate its rescission application. It was
submitted that on the contrary, Applicant failed to attend, not only the
main claim of 1st Respondent, but also the rescission application. The
Court was referred to both the record of proceedings in pages 2 and 4 and
the arbitration award, in support.
7. It was argued that on the basis of this above said, the learned Arbitrator
could not have denied Applicant the opportunity to make presentations in
as much none of what is alleged to have happened could have under the
circumstances. It was added that the record bears a true reflecting of
what took place. It was submitted that there is no irregularity committed
on the part of the learned Arbitrator.
8. On the issue of costs, it was submitted that 1st Respondent is an
interested party in these proceedings, in as much as the review is against
the award made in her favour. As a result, it was necessary that 1st
Respondent oppose the review.
ANALYSIS
9. We wish to highlight the purpose of the record of proceedings, in the court
a quo, for purposes of a review. The record is meant to reflect what took
place in the proceedings without the need to require the presiding officer
in the court a quo to take part in the review proceedings. As a result,
where a certified record is presented before Court and has not been
challenged, it is taken to be a true picture of what took place in the initial
Page 185 of 265

hearing. Our view finds support in the High Court of Lesotho authority in
Ramoroke v Director of Public Prosecutions & another CRI/APN/795/2010,
where the Court relying on the Court of Appeal authority of Teliso
Kabinye v The Clerk of Court Magistrate Court and others (supra) held
that,
The contents of their affidavits have not been rebutted by the applicant; as
such they stand as they are.
10. In casu, whereas, Applicant alleges that it was denied the opportunity
to motivate its rescission application, this is not reflected in the
undisputed record of proceedings before the 2nd Respondent. We say that
the record is not disputed in that no specific challenge has been made to
the record as a ground for review. Rather, Applicant makes reference to
the issue in passing and at submission stage. This is clear from the
Applicants argument that while it may seem that Applicant was not in
attendance from the arbitration award, he was.
11. In the light of this said above, We are inclined to agree with 1st
Respondent that Applicant was not denied the opportunity to motivate its
rescission application, as it was not in attendance on the date of the
hearing. The record bears prove of this in the cited pages. At page 4 of
the record, it is recorded as follows,
Arbitrator: welcome lady and gentleman, today is the 6 March 2013 this is
case number A1219/12 between Makatleho Letlalo and Atlantic Enterprise
where are the respondents?
TT: We still dont know where they are but we believe they found the
documents that we are supposed to be here.
12. At page 2, the following is recorded:
Arbitrator: Welcome lady and gentleman in this case of A1219 of 2012
between Atlantic Enterprise which is the applicant and Makatleho Letlalo
is the respondent. I only see the respondent in this matter, would you
happen to know where the applicant is?
TT: My Lord until this point when we are here I still dont know their
whereabouts.
13. The above extracts reflects on page 4, that Applicant was not in
attendance in the main hearing, while page 2 of the record reflects that
Applicant was also not in attendance in the rescission application
hearing. We therefore find that there is no irregularity on the part of the
learned Arbitrator in proceeding with the matter in default, and in
drawing the award in the manner She did. The record and arguments of
1st Respondent out-rightly controvert the insinuation of Applicant.
Consequently, this ground fails.
14. On the issue of costs, We differ with the argument presented by
Applicant. In Our view, 1st Respondent is an interested party in a
substantial capacity. As, 1st Respondent has rightly put, the award being
reviewed was issued in his favour and this not only makes him an
Page 186 of 265

interested party, but in a substantial capacity. Further fortifying Our


attitude is the fact that Applicant has cited him as 1st Respondent not 2nd
Respondent. 1st Respondent citation cannot have been in his nominal
capacity as Applicant wishes to imply. Consequently, it was necessary
that he react to the review application. Therefore We decline to grant an
award of costs.
AWARD
On the basis of the above said We make an award in the following,
a) That the review application is refused;
b) The arbitration award in referral A1219/12(b) remains in effect;
c) Applicant must comply with the award in referral A1219/12 within 30
days of issuance herewith; and
d) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF JULY 2014
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MRS THAKALEKOALA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1ST RESPONDENT:

ADV. MOHAPI
MR. LETSIE

Page 187 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/140/2013

IN THE MATTER BETWEEN


MASECHABA MOTHIBELI
& 120 OTHERS

APPLICANT

AND
LESOTHO PRECIOUS
GARMENTS(PTY) LTD
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for the review of arbitration award. Two grounds of review having
been raised Arbitration was held without the matter having first been
conciliated; and unreasonableness of an award of costs. Applicant attempting
to raise a new ground from the bar 1st Respondent objecting to the ground
and Court upholding objecting. Court dismissing the first ground and
upholding the second ground of review. Award being reviewed and corrected.
No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0183/2013. Applicants had referred claims for unfair dismissal with
the 1st Respondent. An award was issued on the 25th September 2013,
wherein their referral was dismissed. The dismissal was coupled with an
order for cost in the sum of M5,000.00, against the Applicants
representative for frivolity. It is this award that Applicants wish to have
reviewed, corrected and/or set aside. Having heard the submissions of
parties, Our judgement follows.
SUBMISSIONS
2. Applicants first review ground is that the learned Arbitrator erred by
proceeding to hear the matter in arbitration, without first having
conciliated same. It was submitted in support that if the learned
Arbitrator had held conciliation, it would have reflected on record, that is,
either in the arbitration award or in the record of proceedings. It was
added that having failed to hold conciliation, the learned Arbitrator acted
in breach of the Regulation 15 of the Labour Code (DDPR) Regulation of
2001, which makes it mandatory that conciliation be held.
3. In answer, 1st Respondent submitted that conciliation is an off the record
process, which is also confidential in nature. Further, that conciliation
Page 188 of 265

was conducted in the case under review and failed to yield results, hence
why the matter went to arbitration. It was argued that nothing in law
requires mention of conciliation having been undertaken, either in the
arbitration award or in the record of proceedings.
4. It was further argued that, if it was not held as Applicants suggest, they
should have raised it as an objection during arbitration proceedings. It
was concluded that having failed to do so, illustrates that all dispute
resolution procedures were adhered to, including conciliation. It was
added that Applicants have not shown how the alleged failure to hold
conciliation has prejudiced them, or put different, how the process may
have benefited them.
5. We wish to confirm that conciliation is an off the record process, which
even if recorded, such record cannot be used to the prejudice of either
party. This is clear from the Labour Code (Conciliation and Arbitration
Guidelines) Notice of 2004. Section 4(3) thereof provides that,
(3) Conciliation proceedings are private, confidential and without
prejudice.
This being the case, there is no obligation on the part of the learned
Arbitrator to maintain a record of the conciliation proceedings, or to
present same before Court as proof that conciliation was conducted.
6. We wish to further confirm that there is no law that compels the learned
Arbitrator to mention, either during arbitration proceedings or in the
arbitration award, that conciliation was held before proceeding into
arbitration. Rather, section 227(4)of the Labour Code (Amendment) Act 3
of 2000, r/w section 227(7) thereof, provide that,
(4) if the dispute is one that should be resolved by arbitration, the Director
shall appoint an arbitrator to attempt to resolve the dispute by conciliation,
failing which the arbitrator shall resolve the dispute by arbitration.

(7) if a dispute contemplated un subsection (4) remains unresolved after the


arbitrator has attempted to conciliate it, the arbitrator shall resolve the
dispute by arbitration.
In view of the above sub-sections, the argument that conciliation was not
held, merely on the premise that it was not mentioned either at the
arbitration proceedings or that it does not appear in the arbitration
award, does not and cannot hold.
7. We in fact agree with 1st Respondent that the odds are in favour of the
dismissal of this point. Our view is based on two basic arguments. Firstly
that no objection was ever raised on behalf of Applicants, during
arbitration proceedings, against the alleged omission to conduct the
conciliation proceedings. Secondly, there is no concrete evidence before
Us, that conciliation was not held before the matter proceeded into
arbitration. Rather, Applicant merely makes unsubstantiated allegations.
This makes it more probable that there was nothing irregular in the
proceedings. We therefore dismiss this review ground.
Page 189 of 265

8. The second ground of review was that the learned Arbitrator failed to
consider the evidence of a lay off agreement concluded between 1st
Respondent and Lesotho Clothing and Allied Workers Union (LECAWU).
It was argued had the learned Arbitrator considered this evidence, She
would have come to the conclusion that refusal by Applicants to work on
the 27th October 2012 and 3rd November 2012, was justified. The Court
was referred to the authority in National Union of Public Service & Allied
Workers Union & others v National Lotteries Board [2014] ZACC 10. In this
Authority the Court held that in determining insubordination, one had to
examine if the conduct of the employee objectively amounted to
insubordination. It was added that having made this conclusion, the
learned Arbitrator would have found that Applicants had not been
insubordinate.
9. In answer, 1st Respondent submitted this ground is being raised for the
first time from the bar. It was added that this ground is not one of review
grounds pleaded by Applicants. Further, that even before the DDPR, the
said lay off agreement was never tendered as evidence, as it was never the
issue before the learned Arbitrator. As a result, the learned Arbitrator
could not have considered what had not been placed before Her. It was
prayed that this point also be dismissed.
10. We have perused the parties pleadings and have noted that there are
only two grounds of review that have been pleaded by or on behalf of
Applicants. As a result, and as 1st Respondent has rightly put, this
ground is only coming up for the first time in submission. The two
grounds raised in pleadings are on conciliation and the award of costs.
Review proceedings are brought by way of motion. The rule in motion
proceedings is that parties stand and fall by their pleadings (see PlasconEvans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623).
This essentially means that they cannot be allowed to submit beyond
what they have pleaded. Consequently, We dismiss this ground on
account of it having not been pleaded and further decline to address the
rest of the submissions made on it.
11. The third ground of review is that the learned Arbitrator erred when
awarding costs of M5,000.00 against Applicants representative. It was
submitted in support that, there is no basis against which the said award
has been made in that the learned Arbitrator simply made an award
without justification. It was argued that the learned Arbitrators conduct
is arbitrary and capricious. The Court was referred to page 6 of the
arbitration award, where the issue of costs is reflected.
12. In answer, 1st Respondent submitted that there was no irregularity on
the part of the learned Arbitrator, in that Her award was based on the
history of the matter. It was stated that the Applicants representative
had also been involved in similar claims before the DDPR, wherein it was
held the employer has a right to call an employee to work if the
circumstances so required.
Further that, this notwithstanding the
Page 190 of 265

Applicants representative elected to proceed to prosecute the Applicants


case, thus causing 1st Respondent to incur unnecessary costs.
13. We have considered the arbitration award, in particular at page 6 from
paragraphs 14 up to the award. At paragraph 14, the learned Arbitrator
notes that 1st Respondent has made a prayer for costs premised on
frivolity. At para 15, the learned Arbitrator makes reference to section
228E (2) of Labour code Act (supra), which empowers Her to make an
award for costs due to frivolity and vexations conduct. Thereafter the
learned Arbitrator makes an award of costs in sum of M5,000.00 against
Applicants representative.
14. The above being the case, it is clear that 2nd Respondent did not lay a
factual basis for concluding that an award of costs was proper against
Applicants representative. Not only does the learned Arbitrator fail to
state the facts against which She based Her decisions, to award costs,
but She has also failed to justify the amount awarded. This makes Her
decisions arbitrary and therefore irregular and illegal. Our finding finds
support in the authority of Johannesburg Stock Exchange & another v
Witwatersrand Nigel Ltd & another 1988 (3) SA 132 (A) at 152 A-E, where
the following was recorded,
Broadly, in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues in accordance with
the behests of the statute and the tenets of natural justice. Such failure
may be shown by proof, inter alia that the decision was arrived at
arbitrarily or capriciously.
15. Further, the facts alleged to have been the basis of the award, by the
1st Respondent, have not been relied upon by the learned Arbitrator in
making this conclusion, and neither has the 1st Respondent relied on
same for asking for costs, at least as reflected at para 14 of the
arbitration award. In Our view, 1st Respondent is merely speculating the
basis of the learned Arbitrators for making an award of costs against
Applicants representative. Likewise, 1st Respondent wants Us to rely on
speculated reasons to concluded that the award for costs made against
Applicant representative was proper. The authority in Pascalis Molapi v
Metcash Ltd Maseru LAC/CIV/REV/09/2003 discourages this practice.
The Court held that,
The Decision maker cannot be guided by a gut feeling or speculation in
determining the practicality or impracticality of reinstatement but that the
evidence must be led to that effect.
Consequently, We find that the learned Arbitrators decision was arbitrary
and stands to be reviewed and corrected.

Page 191 of 265

AWARD
On the premise of the above reasons, We make an award in the following:
a) The first two grounds of review are dismissed.
b) The third ground of review succeeds and the award is corrected to read:
The Applicants referral is accordingly dismissed; and
There is no order as to costs.
c) No order as to costs in made in these proceedings.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF JULY 2014
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE

I CONCUR

MR KAO

I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. TLAPANA
ADV. LETSIE

Page 192 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/116/12
A0536/2012(b)

IN THE MATTER BETWEEN


TEACHING SERVICE COMMISSION
THE ATTORNEY GENERAL

1st APPLICANT
2nd APPLICANT

AND
SAMUEL TEBOHO MOKOBOCHO
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. Applicant raising one ground of
review and citing six incidents of irregularity. All incidents being based on
allegation that Arbitrator excluded both the pleadings and submissions of 1st
Respondent but relied on same to dismiss Applicants case. Court finding no
merit in all grounds raised. Court dismissing the review application and
reinstating the arbitration award. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0536/2012(b). Six grounds of review have been raised in terms of which
the review, correction and/or setting aside of the arbitration award in
issue is sought.
2. The brief background of the matter is that 1st Respondent had referred a
claim for unfair dismissal with the 2nd Respondent. In the matter, the
claim was made against the 1st Applicant herein as the 2nd Applicant was
not cited. The matter was heard in default of the 1st Applicant and an
award was issued in favour of the 1st Respondent.
3. Upon receipt of the default arbitration award, the Applicants initiated
rescission proceedings with the 2nd Respondent. The said application was
opposed by the 1st Respondent but his answer was filed out of time. On
the date of hearing this issue was raised by the Applicants. The learned
arbitrator having been addressed on the issue decided to adopt a holistic
approach to the matter. He resolved that he would only consider the
submissions and pleadings of 1st Respondent if He resolved to accept the
late answer filed on behalf of the 1st Respondent.
4. On the 17th October 2012, an arbitration award was issued in terms of
which the learned Arbitrator had decided not to accept the answer filed
Page 193 of 265

on behalf of the 1st Respondent and further dismissing the rescission


application. It is this award that Applicants wish to have reviewed,
corrected and/or set aside. Essentially only one ground of review has
been raised as all the grounds raised relate to the allegation that the
learned Arbitrator considered the averments of 1st Respondent, yet he had
decided not to accept his late answer. Our judgment therefore follows.
SUBMISSIONS
5. The first incidence of irregularity was that the learned Arbitrator erred in
dismissing Applicants explanation that they failed to attend the hearing
because they had neither been cited in the matter nor served with both
the referral and the notice of set down of the matter. It was submitted
that in dismissing the said explanation, the learned Arbitrator relied on
the 1st Respondent submission that it was the 1st Applicants
responsibility to inform its representative, 2nd Applicant, about the matter
and the date of hearing.
6. The Court was referred to page 5 of the record of proceedings before the
2nd Respondent, where the following submissions of 1st respondent are
recorded:
Why, because, it is immediately apparent that [was] the attorney generals
office was aware that there was such a matter scheduled to take place on
that particular date.
7. 1st Respondent answered that the learned Arbitrator did not rely on the
submissions and/or pleadings of the 1st Respondent to dismiss the
Applicants argument. It was submitted that these in fact were not his
submissions but the individual opinion of the learned Arbitrator. It was
added that given the submissions of Applicant, the learned Arbitrator was
bound to the decision made.
8. We have considered page 5 of the record of proceedings together with the
arbitration award, specifically at paragraph 15, which deals with the
explanation for the default. At page 5 of the record, the 1st Respondent
merely points out that it is apparent from the submissions that the offices
of the 2nd Applicant were aware of the matter and the date of hearing. At
paragraph 15 of the arbitration award, the learned Arbitrator makes a
definitive conclusion that:
With due respect, this explanation is feeble in several respects, it was
already clear per the referral form and notice of set down that respondent
had preferred lodging his claim only against 1st applicant. This therefore
means that it was imperative for the 1st applicant to have made its
representatives aware of the referral form and the notice of set down.
9. In Our view, what is contained at page 5 of the record of proceedings is in
all respects distinct from the reasoning of the learned Arbitrator, at
paragraph 15 of the arbitration award. At page 5 of the record, 1st
Respondent submits that the offices of the 2nd Applicant were aware of
the matter, while the learned Arbitrator at page 5 says it was the
Page 194 of 265

responsibility of the 1st Applicant to make 2nd Applicant aware.


being the case this ground fails.

This

10. The second ground of review was that the learned Arbitrator relied on
the evidence of 1st Respondent that there was no single averment on the
type of misrepresentation alleged to have been made, and further that
there was a clear letter of recommendation of 1st Respondent from the
school board into the position in issue. It was argued that this evidence
was relied upon to dismiss the Applicants argument that 1st Respondent
was employed under a misrepresentation and that there was no
recommendation from the board for his appointment. It was added that
this was done contrary to the principle in the authority of Kaone Leoifo v
Bokailwe Kgamena & another CA/048/2007, that a case be decided on
the basis of the pleadings. It was added that the learned Arbitrator erred
as He went beyond the pleadings, having resolved to exclude 1st
Respondent pleadings in the matter.
11. In answer, 1st Respondent submitted that Applicants merely made
bare allegations of misrepresentations without stating the type
committed. It was argued that this made their argument of prospects of
success bare hence the conclusion that applicants had no prospects of
success.
It was denied that the learned Arbitrator relied on the
averments of 1st Respondent to make this decision, that is, to dismiss the
argument for prospects of success.
12. The prospects of success are addressed at paragraph 16 of the
arbitration award. We confirm that the learned Arbitrator made a
conclusion that:
There is no single averment in applicants founding affidavit which
touches on the type of alleged misrepresentation. It leaves one with having
to speculate on the nature of such misrepresentation alleged by applicants.
There is a clear letter of recommendations for respondent into the clearly
defined position per the secular.
13. That notwithstanding, 1st Respondent denies that the above decision
was reached in reliance of his submissions. This being the case, it
remains the responsibility of the Applicants to go further to show that
what 1st Respondent claims or disowns is not true. This would be done
by among others referring the Court to the record. Our view is premised
on the principle that in law, he who makes a positive assertion is
generally called upon to prove it with the effect that the burden of proof
generally lies on the person who seeks to alter the status quo. Thus he who
asserts the positive is the one with the burden of proof (see Schwikkard,
Principles of Evidence, 2nd Ed. At page 538).
21. Further fortifying Our attitude is the authority of Kriegler v Minitzer &
another 1949 (4) SA 821 (A) at page 828, where the learned Greenberg JA,
relying on a statement from Phipson Evidence, 8th Ed. At page 27, stated
as thus,
Page 195 of 265

The burden of proof rest upon the party, whether plaintiff or defendant
who substantially asserts the affirmative of the issue.
Applicants have in casu has not discharged this burden. This is evidence
from their submission that they cannot refer the Court to any specific
portion of the record where this was recorded as the evidence of 1st
Respondent.
14. This being the case, We have no option but to take on 1st Respondent
argument that the learned Arbitrator did not rely on his submissions but
on the Applicants pleadings. In view of this finding the rule in the Kaone
Leoifo v Bokailwe Kgamena and another (supra) has been complied with.
In that authority the Court stated that:
It is trite that a case can only be decided by the court in the pleadings and
evidence before it. It is not for the court to make out a case for litigation.
Nor can this court properly decide the matter on the basis of what might or
should have been pleaded but which was not pleaded.
15. We also wish to comment that the legal requirement in respect of the
prospects of success in an application for rescission, is that the allegation
of prospects of success must prima facie establish a case in the main.
The phrase prima facie case means that on the face of pleadings it must
be evident that there is a case to answer. As a result, a mere allegation
that does not meet this requirement is competent to be classified on bare.
16. The authority in Mokone v Attorney General & others
CIV/APN/232/2008, is very instructive in dealing with bare allegations.
In this authority, the court made the following remark,
As can be seen respondents have just made a bare denial. It would not be
enough to just make a bare denial .... If one does not answer issuably then
his defence will be considered no defence at all,
It is Our view that this principle equally applies in relation to claim by
parties. As a result, where a party has barely alleged a claim, that is not
enough for the court to make a finding in their favour. Consequently,
where a bare claim has been made, it becomes both unsatisfactory and
unconvincing and should be considered no claim at all. This being said
We wish to highlight that contrary to 1st Respondent suggestion that he
learned Arbitrator dismissed the arguments for prospects of success as
being bare is not accurate. The reasons advanced are poles apart from
those suggested by 1st Respondent.
17. The third ground of review was that the learned Arbitrator erred in
holding that 1st Respondent was denied a hearing prior to his dismissal.
It was submitted that the learned Arbitrator relied on the evidence of 1st
Respondent to come to this conclusion. However, the Applicants could
not refer the Court to the record of proceedings at the initial hearing,
where the alleged irregularity is alleged to stem from.
18. In answer, 1st Respondent submitted that it is inaccurate to suggest
that the learned Arbitrator relied on his evidence. It was argued that the
Page 196 of 265

learned Arbitrator relied solely on the evidence of Applicant to come to


this conclusion. It was said that evident to this is the fact that there is
nowhere in the record where reference has been made to the 1st
Respondent by the learned Arbitration in His analysis of the evidence and
submissions in the matter.
19. This issue has been addressed at paragraph 17 of the arbitration
award. In that paragraph the learned Arbitrator makes reference to a
document labelled AG1 and referenced by the Applicant.
Having
considered that document, he makes a conclusion that:
It was also alleged with reference to AG1, which was said to be the
minutes of the disciplinary hearing that applicant was afforded a hearing
before his dismissal. I have had some time to go through the said
document in its entirety, specifically from its very title and the paragraph
reading welcome remarks, with due respect this does not suggest there to
have been held a hearing as anticipated by the Labour Code and Labour
Code (Codes of Good Practice) of 2003.
20. Clearly, the above extract corroborates the argument of 1st Respondent
that the learned Arbitrator relied solely on the evidence of Applicants.
This has the effect of making the 1st Respondent claim more probable
than that of Applicants as it reduces the risk of being wrong. Our view is
influenced by the attitude of the Court of Appeal in Molupi Piti & another v
Rex CRI/A/36/91, where the court had this to say,
Some form of corroboration becomes necessary to reduce the risk of wrong
conviction
21. As the record reflects AG1 was referenced by Applicants and on its
basis, the learned Arbitrator made the conclusion that no hearing was
held prior to the dismissal. We further confirm that there is nowhere in
the record where reference has been made by the learned Arbitrator to
the 1st Respondent. This further fortifies the argument of 1st Respondent
with which We agree. Consequently this point also fails to sustain.
22. The fourth ground of review was that the learned Arbitrator erred by
dismissing the Applicants case that 1st Respondent had not exhausted
the local remedies before bringing the matter before the 2nd Respondent.
It was submitted that in dismissing this argument, the learned Arbitrator
relied on the evidence and submissions of 1st Respondent that a dispute,
under the Education Act of 2010, can only go for arbitration by agreement
of parties and that where there is no agreement the 2nd Respondent is the
proper forum.
23. The Court was referred to page 8 of the record of proceedings where
this evidence and submissions are reflected. The Court was specifically
referred to the following extract:
In terms of that Act e bontsa feela hore a dispute of dispute of right
joaloka ena ea applicant should only be referred to arbitration if parties
agree, arbitration ea bona mono mohlomphehi if parties agree, not this one,
Page 197 of 265

if the parties agree. So there was no agreement between the parties hore
lets refer the matter to arbitration. So what do you mean that the
respondent has not exhausted the local remedies? What local remedies
were there in place for him to exhaust? The matter is properly before the
DDPR.
24. In answer, 1st Respondent submitted that the Applicants failed to
prove the existence of the Teaching Service Tribunal before the learned
Arbitrator.
In view of this failure, the learned Arbitrator made a
conclusion that the DDPR was the proper forum. It was denied that the
learned arbitrator relied on the referenced evidence and submissions of
the 1st Respondent, particularly because no reference was made to 1st
Respondent.
25. As rightly referenced by Applicants, this issue is addressed at
paragraph 17 of the arbitration award. In that paragraph, the following
conclusion is made:
In terms of the Education Act of 2010, it clearly specifies that dispute of
right should be referred to arbitration if parties agree..... It is further
material to note that for a party to lodge his or her referral before this
tribunal, exhaustion of local remedies is not a prerequisite in terms of the
Labour Code.
26. We wish to note that indeed the finding of the learned Arbitrator
echoes similar sentiments to those expressed by 1st Respondent, in his
submissions which were disregarded. However, We are inclined to agree
with 1st Respondent that the learned Arbitrator did not rely on the
submissions of 1st Respondent to dismiss the applicants arguments. We
say this because as rightly pointed out by 1st Respondent no reference
has been made by the learned Arbitrator to him.
27. Further fortifying Our attitude is the fact that the learned Arbitrator
relied on the Education Act to come to the conclusion that He made. This
Act was introduced and relied upon by the Applicants. Further the
learned Arbitrator relies on the Labour Code and the Labour Code (Codes
of Good Practice) of 2003 for His conclusion that the issue of exhaustion
of local remedies does not bar the referral of the dispute to the DDPR.
This was infact the learned Arbitrators view which was not said in the
submissions of the 1st Respondent, at least in the referenced portion.
Consequently, this point also fails.
28. The fifth review ground was that the learned Arbitrator erred by
dismissing the argument of Applicants that it would be prejudicial to
them if 1st Respondent were to be reinstated per the award in issue, as
the 1st applicant intended to downgrade the position of 1st Respondent. It
was submitted that in dismissing this argument the learned Arbitrator
relied on the evidence of 1st Respondent that its argument was
speculative. The Court was referred to page 9 of the record where the
said evidence and submissions are recorded:
Page 198 of 265

They are saying they are going to downgrade batla suffera prejudice.
Somebody says we are intending to downgrade the position, that would
not prevent them to reinstate him to his position as he has pointed out, he
has averred in his affidavit that the issue of downgrading of my position
can be done anytime if the employed deem that proper and would be an
operational requirement matter, mohlang ba etsang hore joale re etsa
downgrade the position ho tla bonahala mohla ba etsang joalo
mohlomphehi, haeba ho tla hlokahala hore ba etse joalo, they would justify
that haeba etlaba ntho e tlaba justifiable by then but cannot hona joale
nthoe eo bae intenda hoetsa in future bare etlaba sufarisa prejudice if
ntate a khutlisetsa mosebetsing oa hae.
29. In answer, 1st Respondent submitted that whereas the Applicant had
claimed prejudice on account of impracticality of 1st Respondent
reinstatement because 1st respondents position faced a future
downgrade, the learned Arbitrator found this to be speculative. It was
denied that this was the argument of 1st Respondent as 1st Respondent
did not say that which is alleged.
30. We have considered both the reference part of the record and the
portion of the arbitration award dealing with prejudice. We do confirm
that in the award the learned Arbitration dismissed the Applicant claim
for prejudice as being speculative. Speculation, in this sense, entails the
Court relying on what may or might happen to make a conclusion and
this is highly shunned upon (see Pascalis Molapi v Metcash Ltd Maseru
LAC/CIV/R/09/2003).
31. The issue of speculation is however not the evidence of the 1st
Respondent as the extract from the record echoes something different
altogether. In that extract, 1st Respondent argues that Applicants should
reinstated and that when the time for downgrading comes, they will
downgrade 1st Respondent position, and that in the process they would
not be prejudiced. 1st Respondent does not ague speculation at all but
rather Applicants seem read it into his arguments. Consequently this
point also fails.
32. On the last ground of review, it was submitted that the learned
Arbitrator erred by bringing into the application for rescission evidence
from the main case. It was submitted that in so doing the learned
Arbitrator was relying on the evidence and submission of 1st Respondent
yet both were excluded by order of the learned Arbitrator. The said
evidence was an alleged letter of recommendation of 1st Respondent into
the position in issue.
33. 1st Respondent answered that the learned Arbitrator was right to rely
on the evidence from the main rescission application. It was argued that
the letter in issue had been admitted into evidence and that the learned
Arbitrator was bound to consider it.

Page 199 of 265

34. In law, the Court is bound to make a decision on the basis of the
evidence and pleadings before it (see Kaone Leoifo v Bokailwe Kgamena
and another (supra). We are of the view that the learned Arbitrator erred
as suggested in that he acted contrary to this principle. The evidence of
the letter of recommendation was not part of the Applicants evidence in
the rescission application and therefore could not be relied upon to make
a conclusion that matter. It clearly did not form part of the record, it
being the pleadings of Applicants. Therefore the learned Arbitrator erred
in this respect.
35. In view of Our finding above, We shall now determine the effect of the
irregularity complaint of, on the decision made. To answer this question,
We must consider the probative effect of the considered evidence of 1st
Respondent, on the conclusion made. Put differently, if not considered,
would the learned Arbitrator have made a different conclusion, as
Applicants argue (See J.D. Trading (Pty) Ltd t/a Supreme Furnishers v M.
Monoko & others LAC/REV/39/2004). If the answer is in the affirmative,
then the conduct of the learned Arbitrator will not only have amounted to
an irregularity but one that is reviewable.
36. In the proceedings before the 2nd Respondent, the dismissal of the
application for rescission was not only based on the letter of
recommendation. There were other factors considered such as the
conclusion that Applicant was not afforded a hearing, that Applicant
failed to show the type of misrepresentation committed, and that the
issue of exhaustion of local remedies does not apply to the case at hand.
This being the case We find that the irregularity committed does not
warrant interference with the award in issue.
AWARD
We therefore make an award in the following:
a) The review application is dismissed;
b) The award in referral A0536/12(b) is reinstated;
c) The award to be complied with within 30 days of Issuance herewith; and
d) There is no order as to cost.
THUS DONE AND
SEPTEMBER 2014

DATED AT

MASERU ON THIS

15th

DAY OF

T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MR. MATELA

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR 1st RESPONDENT :

ADV. MKHENA
ADV. NTAOTE

Page 200 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/75/2013
A0370/2013

IN THE MATTER BETWEEN


JIKELELE SERVICES

APPLICANT

AND
PUTSOE BOSULE
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Applicant for review of arbitration award. several grounds raised. All but one
failing to sustain. Court finding that the irregularity committed does not
warrant interference with the arbitration award. Court dismissing the review
application and reinstating the arbitration award. no order as to costs being
made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0370/2013. Several grounds of review have been raised on behalf of
Applicant, all of which are based on failure to consider evidence. Parties
were both present and duly made their presentations. Our judgement is
therefore in the following.
SUBMISSIONS
2. First ground of review is that the learned Arbitrator failed to consider the
evidence of Applicant that 1st Respondent was suspended on 17th October
2012. Having failed to consider this evidence, She made the wrong
conclusion that it was common cause that 1st Respondent had been
suspended on 27th October 2012. This evidence was said to appear at
pages 3 and 4 of the record of proceedings before the DDPR and on
annexure A1 and A2 to same.
3. Respondent answered that the learned Arbitrator considered all evidence
and that in fact the evidence that suspension started on 27/10/2012 was
not challenged by Applicant hence the finding by the learned Arbitrator
that it started on 27th October 2012.
The Court was referred to
paragraph 5 of the arbitration award.
4. We have considered pages 3 and 4 of the record of proceedings and
annexures A1 and A2. At page 3 and 4, which was the examination in
chief of 1st Respondent, he is recorded testifying to the effect that he was
Page 201 of 265

suspended on 17th October 2012. At page 4, he tendered documents


which were marked A1 and A2. These documents are notifications of
hearing for the 29th October 2012 and the 2nd November 2010. Both
documents reflect the date of misdemeanour as 17th October 2012.
5. We do confirm that the learned Arbitrator appears to have failed to
consider the evidence of the date of suspension of 1st Respondent
(Applicant before DDPR).
We say this because no mention or
consideration of some sort to same, has been made in Her arbitration
award. This is perhaps why She made a factual conclusion that it is
undisputed that 1st Respondent was suspended on the 27th October
2012, when it was in fact on the 17th October 2012. This is reflected
under paragraph 5 of the arbitration award as thus,
It is common cause that applicant was suspended from duty on the 27 th
October 2012 and was expected to attend his hearing on the 2nd November
2012.
We therefore find that the learned Arbitrator acted irregularly by not
considering this evidence.
6. The second and third grounds of review were argued together. It was
submitted that the learned Arbitrator failed to consider the evidence of
Applicant that the 1st Respondent suspension, which started on 17th
October 2012, ended on 27th October 2012 when his fixed term contract
ended. It was argued that evidence had been led that suspension started
on 17th October 2012 and that the fixed term contract ended on 27th
October 2012. The Court was referred to page 7 of the record of
proceedings. It was added that having failed to consider this evidence,
the learned Arbitrator concluded wrongly that 1st Respondent continued
to be on suspension beyond the date of expiry of the contract.
7. In answer, 1st Respondent submitted that when one is placed on
suspension, they remain employees until such suspension has been
uplifted. It was added that in casu, 1st Respondent remained an employee
of Applicant beyond 27th October 2012, as he was still under suspension.
It was argued that the learned Arbitrator justified Her decision on
paragraph 5 of the arbitration award. It was strongly denied that the
learned Arbitrator ignored any evidence.
8. We have already held that the learned Arbitrator ignored the evidence of
Applicant concerning the commencement of 1st Respondent suspension.
Regarding the ending of the suspension period by lapse of contract, the
learned Arbitrator is recorded as follows, at paragraph
5 of Her
arbitration award,
His contract of employment expired on the 27th October 2012, it does seem
that after that October, 2012 applicants contract was extended because he
continued in employment and waited for his disciplinary hearing.
9. We confirm that Applicant gave evidence of the ending of the contract of
employment of 1st Respondent and the fact that it did not have automatic
Page 202 of 265

renewal. However, the learned Arbitrator disqualified this evidence and


made a conclusion that the 1st Respondents contract was extended
beyond 27th October 2012.
Premised on this finding, the learned
Arbitrator made a conclusion that 1st Respondent remained on
suspension and an employee of Applicant. Therefore, We find that no
evidence was ignored but rather that it was considered and disqualified.
Consequently no irregularity has been committed.
10. The fourth ground of review was that having held that 1st Respondent
was on suspension beyond the 27th October 2012, the learned Arbitrator
made a wrong conclusion that 1st Respondent was entitled to be paid
wages and leave days.
It was argued that the period of alleged
entitlement was beyond 27th October 2012 which was date of termination
of 1st Respondent contract. It was added that at termination of contract
of employment parties duties and obligations towards one another cease
and this includes the duty to pay wages and the right to accrue leave
days.
11. In answer, 1st Respondent submitted that Applicant was still in
employment beyond 27th October 2012 and was thus entitled to be paid.
It was argued that in law, when an employee is under suspension, they
must be paid. The Court was again referred to the decision of the learned
Arbitrator on paragraph 5 of the arbitration award where the learned
Arbitrator made reference to the book of Grogan J. 10th Ed., Workplace
Law, at page 140.
12. This ground of review dependent on the second and third ground
sustaining. In fact in Our view, it is more of a consequential relief than a
primary relief. On its own, it an appeal as opposed to review ground as it
is concerned with the conclusion rather than the method of reaching the
conclusion. In the case of J. D. Trading (Pty) Ltd t/a Supreme Furnishers v
M. Monoko & others LAC/REV/39/2004, the Court explained the
distinction between an appeal and a review as follows,
The reason for bringing proceedings on review is the same as the reason
for taking them on appeal, namely to set aside a judgment already given.
Where the reason for wanting to set aside a judgment is that the court
came to the wrong conclusion on the facts or the law, the appropriate
remedy is by way of an appeal. where on the other hand, the real
grievance is against the method of the trial, it is proper to bring the case for
review.
13.
This above said notwithstanding, We have already dismissed the
second and third grounds of review on account of their failure to disclose
any irregularity on the part of the learned Arbitrator. Consequently, this
ground must also fail. Even if this ground was to be taken as an
independent review ground, it would still fail to sustain as it also does not
disclose any irregularity on the part of the learned Arbitrator, but rather
Her conclusion as being wrong.

Page 203 of 265

14. We wish to comment that it is the correct position of the law that an
employee who has been suspended, particularly one who has suspended
been pending a disciplinary case, as in casu, remains an employee until
terminated. As a result, in the period of being an employee, they are
entitled to the full rights of other employees including the right to be paid
and to accrue leave days. Our view finds support in the conclusion of the
Court of Appeal of Lesotho in Masefabatho Lebona v Director of Public
Prosecutions C OF A/CIV/34/1995, where the Court explained
suspension as follows,
Suspension may be effected on an employee under two circumstances.
Firstly, pending a disciplinary inquiry in which case an employee must
continue to receive his/her salary. Secondly, as a punitive measure after
an employee has been found guilty of a workplace office, in which case it
may be without pay.
15. The last ground of review was that the learned Arbitrator ignored the
evidence of Applicant that the deductions were lawful. It was submitted
that Applicant had been ordered in referral A0444/13 to deduct certain
monies from salaries of its employees. It added that these monies were
agency union fees, payable under a collective agreement between a
representative trade union, within the Applicant employment, called
LEWA and Applicant. The Court was referred to the said arbitration
award. The award is annexed to the Applicant Notice of Motion and
Founding Affidavit, and marked LFM2. Further reference was made to
page 9 of the record of proceedings.
16. 1st Respondent answered that the award notwithstanding, the
deductions were unlawful as he had not authorised them. Further that it
was denied that any evidence was ignored, but rather that the learned
Arbitrator addressed the Applicants case on paragraph 5 of the
arbitration award.
17. Annexure LMF2 is an arbitration award which was obtained by
Lesotho Workers Associations (LEWA) in default of Applicant herein. In
terms of the said award, Applicant was
to deduct amounts in the sum
of M20.00 from all of its employees, as agency fees and to deposit same
into the account of LEWA. By this We confirm the existence of the said
order.
18. However, upon Our perusal of page 9 of the record of proceedings
where the evidence of this above referred award and its dictates is alleged
to have been led, We noted the contrary. We say this because at page 9,
the evidence is recorded as follows.
RW1: only thing I can say is that applicant was a member because at the
Labour Department, he said that (inaudible) was not representing him
because as the employer, we employed (inaudible) under Jikelele Services.
ARB: So?
RW1: Si he was a member of Labour. Thats why the money was deducted
from his salary. M10 per month.
Page 204 of 265

19. Clearly nothing in the above quoted extract touches on the arbitration
award. What merely reflects is the evidence that Applicants salary
underwent a deduction of M10 per month because he was a member of
labour. It is without doubt that there was no evidence on record that the
deduction was made pursuant to an arbitration award. Therefore the
learned Arbitrator cannot be found to have faulted by not considering
what was not before Her. Consequently, this point fails also.
20. In view of Our finding on the first ground of review, We shall now
determine the effect of the ignored evidence on the decision made. To
answer this question, We must consider the probative effect of the
disregarded evidence on the conclusion made. Put differently, if
considered, would this evidence have bound the learned Arbitrator to
make a different conclusion, as Applicants argue (See J.D. Trading (Pty)
Ltd t/a Supreme Furnishers v M. Monoko & others LAC/REV/39/2004). If
the answer is in the affirmative, then the conduct of the learned
Arbitrator will not only have amounted to an irregularity but one that is
reviewable.
21. In the proceedings before the DDPR, 1st Respondent claim was nonpayment of wages, leave days and unlawful deductions. Applicants case
was that he was suspended indefinitely from the 17th October 2012 and
that his suspension went beyond the period of his employment.
Applicants defence was that the expiry of the contract of employment,
extinguished the suspension and any duties and obligations that existed
between the parties, including the referred claims. As We have already
shown, the learned Arbitrators conclusion was that 1st Respondent was
entitled to the claims made for the reason that the contract went beyond
its expiry date.
22. Clearly, the premise of the finding of the learned Arbitrator was not the
actual commencement of the strike, but the fact that it ran beyond the
date of expiry of the contract. We are therefore of the view that even if
considered, the evidence of the commencement of the suspension of 1st
Respondent would not have led the learned Arbitrator to find that the
suspension ended with the lapse of the contract of employment of 1st
Respondent.

Page 205 of 265

AWARD
We therefore make an award in the following:
a) That the review application is refused;
b) The arbitration award in referral A0370/2013 remains in force; and
c) There is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF JULY 2014
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MRS. THAKALEKOALA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. TOLO
MR. MOKHAHLANE

Page 206 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/110/12
A0183/2011

IN THE MATTER BETWEEN


G4 SECURICOR SECURITY
SERVICES (PTY) LTD

APPLICANT

AND
MAKHALA MOFUBE
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for the review of the arbitration award. Applicant raising only one
ground of review. 1st Respondent raising a point of law from the bar, that
pleadings do not contain sufficient averments to enable her to plead. Court
finding that this point should have been pleaded as it amounts to an ambush
upon Applicant. Further that having pleaded 1st Respondent cannot raise this
point. Court dismissing the point of law. 1st Respondent claiming that
Applicant is arguing what is not pleaded and as such is making out a case
from the bar. Further that Applicant review ground does not disclose the
irregularity and as such is bare. Court finding upholding 1st Respondent
arguments and dismissing the review application. Court declining to make an
award of costs.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0183/2011. Only one ground of review was been raised on behalf of the
Applicant. The review application was opposed by the 1st Respondent
who had also raised a point of law. In terms of the point of law, 1st
Respondent claimed that the Applicants pleadings did not contain
sufficient averments to enable her to plead in defence. On this premise,
she prayed that the review application be dismissed with costs. We then
directed parties to address Us on the whole matter holistically, first
starting with the point of law. Having heard the parties submissions,
Our judgment follows.
SUBMISSIONS AND ANALYSIS
Point of law
2. 1st Respondents case was that Applicant had failed to set out sufficient
facts to both support its claim and to enable her to plead issuably in
answer. It was submitted that Applicant had simply averred that the
learned Arbitrators decision was grossly unreasonable without indicating
Page 207 of 265

how this is so. As a result, 1st Respondent had to speculate the basis of
the alleged unreasonableness and this had greatly prejudiced her.
3. In answer, Applicant submitted that this kind of argument was addressed
by this Court in the case of Masekhanto Sekhanto v Maluti Mountain
Brewery & Others LC/REV/36/2012. It was submitted at paragraph 11 of
the judgment, the Court had the following to say,
On the issue of the review grounds being vague, We also find no merit in
the argument. The premise of Our finding is basically that 1st Respondent
has been able to plead in defence to the Applicants grounds of review,
without even indicating any difficulty to do so. This essentially means that
1st Respondent is clear on the case of Applicant.
4. It was argued that the circumstances of the case in casu, are similar to
those in the above referred authority, in that 1st Respondent has
answered the Applicants case without indicating any difficulty to do so
and that as such this point should be dismissed. Applicant prayed for
costs on the ground that the point was meant to waste this Courts time
and delay justice.
5. It was further Applicants case that it is improper for 1st Respondent to
have raised a point of law for the first time in her heads. It was
submitted that this point ought to have been pleaded and linked to the
facts pleaded.
The Court was referred to the case of Mathabelo
Mbangamthi v Puleng Sesing Mbangamthi C. Of A (CIV) 06/2005, where
the Court, relying on the decision in case of Teaching Service Commission
and Others v St. Patricks High School & another C of a (CIV) 26/2004,
concluded that it was both irregular and without merit to attempt to raise
a point of law on the date of hearing.
6. Further reference was made to the case of Margret Tuane & Others v
National Executive committee & Others CIV/APN/61/12, where the
learned Moiloa J stated in dictum, that it is wrong for litigants to raise
points in limine for the first time in their heads of argument, but that they
must be pleaded and linked to the facts of the matter.
7. We have perused the authorities cited by parties in support of their
arguments. We are persuaded by this authority to agree with Applicant
that 1st Respondent had pleaded in defence to the Applicants claim
without indicating any difficulty to do so. This being the case, We see no
reason to deviate from Our earlier decision in the case of Masekhanto
Sekhanto v Maluti Mountain Brewery (supra).
There no factors
influencing such deviation.
We are infact satisfied that the
circumstances of the two cases are similar enough to warrant the
maintenance of the principle in place.
8. On the 2nd issue, We also are in agreement with Applicant that 1st
Respondent should have pleaded this point of law. We say this because it
related to the merits of the Applicants claim in a direct manner. The
Page 208 of 265

situation may have been different if the circumstances were different, in


which case an indulgence would be granted. This view finds support in
the Court of Appeal decision in the case of Mathabelo Mbangamthi v
Puleng Sesing Mbangamthi (supra), where the court had stated that;
Counsel submitted that he was entitled to do so "because a point of law
could be raised at any time, even for the first time on appeal". There are
circumstances in which such an indulgence will be granted, however, only
in circumstances where it would be fair and proper to do so.
9. On the basis of the above reasons, We find no merit in the point of law
raised on behalf of 1st Respondent and dismiss same. Both parties had
asked for an award of costs. We will address it at a later stage. We now
proceed to address the merits of the main review application.
The merits
10. It was Applicants case that the learned Arbitrator had made a grossly
unreasonable decision which no reasonable man could have made. It
was submitted in support that Applicant had been charged and dismissed
for breach of offence number 5.10, in the Applicants disciplinary code.
In terms of the said code, an offence under 5.10 is a dismissible offence.
It was argued that having accepted that 1st Respondent committed an
offence under 5.10, the learned Arbitrator made a conclusion that 1st
Respondent should have been given a final written warning. It was argued
that this decision was contrary to the disciplinary code, which provides
for the punishment of dismissal. It was argued that as a result, the
learned Arbitrators decision was unreasonable. The Court was referred
to paragraph 9 of the arbitration award and page 44 of the record of
proceedings.
11. In answer, 1st Respondent argued that Applicant did not plead all the
issues advanced in its submissions and that it is attempting to make out
its review case from the bar. It was added that review proceedings are
brought by way of motion and that the rule in motion proceedings is that
parties are bound by their pleadings. It was submitted that to allow the
practice adopted by Applicant, would be to offend the audi alteram partem
rule. The Court was referred to the case of Netherburn Engineering CC t/a
Netherburn Ceramics v Mudau No & Another (2009) 30 ILJ 279 LAC, at
paragraph 25, in support.
12. It was furthermore argued that the pleadings of Applicant do not make
out a case for review in that they barely allege unreasonableness on the
part of the learned Arbitrator, without indicating how this is so. It was
added that even if the Court were to dismiss this claim, it would find that
the learned Arbitrators decision was not unreasonable, but that it was
rather premised on the evidence before Her. It was submitted that in
terms of the disciplinary code, 1st Respondent ought to have been given a
final written warning as the learned arbitrator correctly found.

Page 209 of 265

13. We are in agreement with 1st Respondent that Applicant has not
pleaded any of the facts and arguments raised in submissions but is in
fact attempting to plead from the bar. Applicant has merely pleaded in
the following, at paragraph 6 of its founding affidavit,
The following are the grounds of review:
6.1
The decision made by the learned Arbitrator is grossly
unreasonable to an extent that no reasonable man could have
arrived at the same decision.
6.2
The Applicant reserves the right to include and/or add further
grounds of review upon the receipt of the record.
14. In view of the above extract and on the premise of the principle in
motion proceedings, We are persuaded to agree with 1st Respondent that
it is improper approach for Applicant to attempt to argue what was not
pleaded.
We infact agree with 1st Respondent that Applicant is
attempting to make out its case on submission and from the bar. It is
without doubt that this is an ambush against the 1st Respondent, which
should not be taken lightly. It is therefore Our view, and as the
authorities dictate, that Applicant is confined to its pleadings.
15. Our view finds support in the above referenced authority of Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau No & Another (supra).
At paragraph 25, the Court had the following to say,
In my view it is not open to the appellant to now argue the case which it
did not foreshadow in its founding affidavit. If after reading the
applicants papers, you conclude that there is absolutely no case for you to
answer in the light of the contentions or grounds of the application as
disclosed in the founding affidavit and you decide to abide by the decision
of the court, you would feel legitimately aggrieved if you subsequently
learned that the award was aside by the court not on the grounds
contained in the founding affidavit but on grounds that were advanced in
oral argument which were not foreshadowed in the founding affidavit and
without you being afforded an opportunity to oppose the new case. on my
understanding the rule that in motion proceedings the applicant must make
his case in his founding affidavit and that you stand or fall by your papers
has not been abolished and still applied.
16. Further supporting Our view, is the authority of Thabo Phoso v
Metropolitan Lesotho LAC/CIV/A/10/2008, where the Court had the
following to say,
In several of its decisions the Court of Appeal of Lesotho has more than
once deprecated the practice of relying on issues which are not raised or
pleaded by the parties to litigation.
Consequently, We find that Applicant is attempting to make out a case
from the bar, as it has not pleaded any of the averments made, and is
therefore bound to what has been pleaded.
17. Regarding the second issue raised by 1st Respondent, and in view of
Our conclusion above, We in agreement with her that the Applicants
Page 210 of 265

pleadings are bare as they lack supporting facts. Applicant has merely
pleaded that the learned Arbitrator made an unreasonable decision
without stating how this is so. In law where there are no facts to support
a claim in the pleadings, such pleadings pale into the status of being bare
allegations. It is trite law that bare allegations are unconvincing and
cannot be relied upon to make a decisive conclusion in favour of the party
making such allegations (see Mokone v Attorney General & others
CIV/APN/232/2008).
18. We therefore find that the pleadings of Applicant, as they stand, do not
make out a case for review as they do not indicate how the learned
Arbitrator has actually erred. As a result, there is nothing to review. In
view of this finding, We find it unnecessary to even consider the rest of
the submissions on the point. Consequently, the review ground is
dismissed.
COSTS
19. Regarding the issue of costs, the prayer for costs in the merits falls off
on account of Our decision to dismiss the review application. With regard
to the point of law taken by 1st Respondent, the circumstances in Our
view do not warrant the granting of costs against 1st Respondent. We say
this because 1st Respondent has successfully relied on the same
argument raised as point in limine, to argue for the dismissal of the
review. The fact that she has succeeded demonstrates that there is merit
in her argument and that it was not merely raised to delay the ends of
justice or to waste the Courts time. We therefore decline to make an
award of costs.
AWARD
We thus make an award as follows:
a) The review application is refused.
b) The award in referral A0183/2011 remains in effect and must be
complied with within 30 days of issuance herewith;
c) No order as to costs is made.
THUS DONE AND
SEPTEMBER 2014

DATED AT

MASERU ON THIS

15th

DAY OF

T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS. MOSEHLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. MATEE
ADV. TUMAHOLE

Page 211 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/129/11
A0767/2011

IN THE MATTER BETWEEN


THABISO RALETHOKO

APPLICANT

AND
LESOTHO STEEL PRODUCTS
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for the review of the arbitration award. 1st Respondent arguing
that the grounds raised are appeal and not review. Court finding merit only in
respect of three of the grounds and declining jurisdiction over them. Applicant
only arguing one out of the two grounds remaining. Applicant arguing
unreasonableness of the decision of Arbitrator. Court not finding any
irregularity in the decision of the learned Arbitrator and refusing the review
application. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for review of the DDPR arbitration award. Five
grounds of review have been raised on behalf of Applicant in the
following:
6.1 The decision made by the learned madam arbitrator is grossly
unreasonable to an extent that no reasonable man could have arrived at
the same decision.
6.2 The learned arbitrator erred and misdirected herself in holding that the
applicant had taken the grinder without informing his supervisor.
6.3 The learned arbitrator erred and misdirected herself in failing to take
into consideration that there was a store man when the applicant took the
grinder.
6.4 The learned arbitrator erred and grossly misdirected herself in holding
that the applicant had lied that his grinder of which he had replaced the 1st
respondents belonged to the 1st respondent.
6.5 The learned arbitrator erred and grossly misdirected she in holding that
the applicant has confirmed that there was a valid reason and evidence for
his dismissal.
2. In reaction to those grounds of review, 1st Respondent raised a point of
law in terms of which it sought to challenge the jurisdiction of this Court.
The argument was essentially that the grounds raised were appeal and
Page 212 of 265

not review grounds. Parties were heard on both the point of law and the
merits of the matter, with the rider that We would only consider the
merits of the matter if We dismissed the point of law. Having heard the
submissions of parties, Our judgement follows.
SUBMISSIONS AND ANALYSIS
Point of law
3. 1st Respondent argued that the grounds raised relate to, and place a
challenge to the factual conclusions of the learned Arbitrator, without
highlighting any procedural irregularities.
It was added that the
recognised grounds of review are irregularity, illegality and irrationality
and that these have not been alleged by the Applicant.
4. In answer, Applicant submitted that all the grounds raised are review and
not appeal. He stated that the main complaint against the award is that
the learned Arbitrator has failed to appreciate the facts before Her and
that this led Her into making an unreasonable and wrong conclusion of
facts. It was added that even assuming that the grounds raised are
appeal and not review, section 226 of the Labour Code Order 24 of 1992,
gives this Court jurisdiction to entertain and determine them.
5. Where a preliminary point of this nature is raised, the question to ponder
upon is if the grounds raised prima facie establish any reviewable
irregularities. The test was laid down in the case of Khajoe Makoala v
Masechaba Makoala C of A (CIV) 04/2009 as follows,
... whether the applicants affidavits make out a prima facie case.
Consequently the applicants affidavits alone have to be considered and
the averments contained therein should be considered as true for the
purpose of deciding upon the validity of the preliminary point.
6. We have analysed all the five grounds pleaded by Applicant and have
found that at least only two of them meet the requirement. By this we
mean that only two of them sound in procedure and therefore make out a
case for review. As for the other three grounds namely 6.2, 6.4 and 6.5,
they are all levelled against the learned Arbitrators factual conclusions.
This being the case, they are appeal as opposed to review grounds. We
therefore decline jurisdiction over them.
7. Our conclusion above finds support in the Labour Appeal Court decision
in J. D. Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004, where the Court in explaining the distinction
between an appeal and a review had the following to say,
The reason for bringing proceedings on review is the same as the reason
for taking them on appeal, namely to set aside a judgment already given.
Where the reason for wanting to set aside a judgment is that the court
came to the wrong conclusion on the facts or the law, the appropriate
remedy is by way of an appeal. Where on the other hand, the real
grievance is against the method of the trial, it is proper to bring the case for
review.
Page 213 of 265

In the light of these reasons, We now proceed to deal with the merits of
the matter in respect of the two remaining grounds.
8. However, before We proceed to do so, We wish to note that during
submissions, Applicant did not address both remaining grounds but only
one. He only addressed the ground numbered 6.1. As a result, even Our
analysis will be limited only to the ground in respect of which
submissions were made.
Merits
9. It is Applicants case that the learned Arbitrators finding is so
unreasonable that no reasonable court could have come to the similar
conclusion. In amplification, it was submitted that the learned Arbitrator
made a finding that Applicant had taken the grinder belonging to 1st
Respondent without authorisation and therefore that his dismissal was
fair. It was said that this decision was contrary to the evidence place
before the learned Arbitrator, hence the argument that the decision was
unreasonable.
10. The Court was referred to page 5 of the record of proceedings, where
the following exchange is recorded:
AC:
Ntate, let us talk about the issues that have brought you before
this court. How do you operate when you borrow your work
equipment while you are going to deal with private arrangements?
AW1:
I borrow the equipment from my supervisor who is in charge of the
site where we are working.
AC:
And during that time, who was your supervisor whom you had
borrowed that equipment and what equipment did you borrow?
AW1:
Henry
AW1:
It was a grinder.
11. At page 6, the following is recorded:
AC:
Did Henry agree with you?
AW1:
Yes, he indicated that I could take it if we do not have much work.
AC:
Did you eventually take it?
AW1:
That is so?
12. It was argued that the above factual averments notwithstanding, at
page 20 of the award, the learned Arbitrator made a finding that
Applicant was not authorised to take the said grinder. It was submitted
that the finding is grossly unreasonable and stands to be reviewed and
annulled. Applicant specifically prayed that the Court find the dismissal
unfair and order 1st Respondent to pay him compensation of two years
salaries, unpaid overtime and Sundays pay as claimed in DDPR referral
forms.
13. In answer, 1st Respondent submitted that the learned Arbitrator has
not committed any unreasonableness at all. The Court was referred to
pages 5 and 6 of the record of proceedings, at the above quoted extracts.
Page 214 of 265

It was suggested that the said extracts only demonstrate that 1st
Respondent manager, one Henry, was only informed of the decision to
borrow the equipment and that no authorisation was given thereafter.
14. It was further submitted that, fortifying the argument that Applicant
was not authorised to take the grinder, is the fact that one Mafethe of 1st
Respondent asked Applicant about the grinder claiming that it was
missing. The Court was referred to page 6 of the record where the
following exchange was recorded:
AC:
When did you return it?
AW1:
I returned it to Lesotho Steel after Mr. Mafethe had come and
indicated that there is a missing grinder.
15. It is trite law that where, on the one hand, a challenge is levelled
against the method of trial, the proper route is by way of review. Where,
on the other hand, the challenge is levelled against the conclusion of the
arbitrator, the proper route is by way of appeal (see J. D. Trading (Pty) Ltd
t/a Supreme Furnishers v M. Monoko & others (supra). However, where a
challenge in the conclusion is premised on irrationality or
unreasonableness, a review is the proper route. This in Our view is an
exception to the general rule in reviews and appeals.
16. Supportive of Our conclusion above, is the Labour Appeal court
decision in Thabo Mohlobo and Lesotho Highlands Development Authority
LAC/CIV/A/2/2010. In this authority, the Court had an occasion to
unpack and explain the scope of section 228E(3) of the Labour Code
(Amendment) Act 3 of 2000. In explaining the scope of section 228E(3),
the Court earmarked unreasonableness to be one of the lawful grounds
against which a party may seek the review, correction and/or setting
aside of a decision made.
17. For a claim of unreasonableness or irrationality to sustain, a litigant
must successfully establish that there is no rational connection between
the law, facts and the conclusion made (see Carephone (Pty) Ltd v Marcus
NO & 7 others (1998) 11 BLLR 1093 (LAC) at 1103). Put different and in
simple terms, such a party must successfully show that on the basis of
the facts accepted by the learned Arbitrator and the law applied, the
conclusion made does not follow. That is to say, that the conclusion
made is illogical or that it totally defies the rules of logic.
18. In casu, Applicant claims that there was evidence of authorisation but
that in spite of same, the learned Arbitrator made a conclusion that he
was not authorised to take the grinder in issue. Clearly, his protestation
is not premised either on irrationality or unreasonableness for he does
not claim that such evidence was considered and accepted but that the
conclusion made thereafter does not go with the law applied. In Our
view, there is no evidence of unreasonableness or irrationality, at least
from both the pleadings and submissions of Applicant.

Page 215 of 265

19. The above notwithstanding, We wish to note that it is not accurate


that the dismissal was confirmed as fair on the ground that Applicant
had taken a grinder without authorisation. Rather the learned Arbitrator,
at paragraphs 5 and 6 of his arbitration award finds that:
.........applicant through his testimony went an extra mile to show that he
was dismissed for taking and using respondents grinder for personal gain.
He confirmed that when he took it he no longer informed his supervisor as
he had previously been given permission to take it. He further agrees that
instead of returning it, he replace it with his old one and lied that it was
respondents grinder.
20. At paragraph 6, the learned Arbitrator further states:
Surely, applicant himself confirms that under such circumstances there
was a valid reason and evidence for his dismissal and this make the
dismissal substantively fair.
21. Clearly, the finding of the learned Arbitrator was premised on other
grounds other than the one suggested by Applicant. The decision of the
learned Arbitrator is based on the fact that Applicant did not inform his
supervisor that he was taking the grinder and not that he was not
authorised. The learned Arbitrator accepted that authorisation had been
made earlier. Further, the decision was premised on the fact that
Applicant had taken and used the Respondents grinder for personal gain
and that he lied about his old grinder being Respondents.
22. We wish to further comment that it is inaccurate to suggest that the
evidence shows that Applicant was not authorised to take the grinder. In
fact in Our view, the evidence, as appears on pages 5 and 6, shows that
Applicant was authorised to take the grinder, but that he did not take it
immediately. Further, the fact that Applicant returned the grinder after it
was sought by one Mafethe does not go anywhere to support the
suggestion made by 1st Respondent. This notwithstanding, and premised
on the reasons advanced in earlier, We find no reviewable irregularity.

Page 216 of 265

AWARD
We therefore make an award as follows:
a) That the review application is refused.
b) The award in referral AO767/11 remains in force.
c) That there is no order as to costs.
THUS DONE AND
SEPTEMBER 2014.

DATED AT

MASERU ON

THIS

15th

DAY OF

T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MRS. THAKALEKOALA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

ADV. KUMALO
MR. MATEISI

Page 217 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/10/2010

IN THE MATTER BETWEEN


MAMATELISO TOANA & 61 ORS

APPLICANTS

AND
NIEN HSING INTERNATIONAL (PTY) LTD

RESPONDENT

JUDGMENT
Claims for unfair dismissal for participation in a strike. Applicants arguing
that their dismissal was unfair due to non-compliance with section 18(a) of the
Labour Code (Codes of Good Practice) Notice of 2003 and section 66 (4) of the
Labour Code Order 24 of 1992. Court finding in favour of Respondent that
both sections were complied with and that the dismissals of Applicants were
therefore fair. Applicants clams being dismissed. No order as to costs being
made.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal for participation in an unlawful
strike/work stoppage.
There are 62 Applicants in all against the
Respondent. Parties have prepared pre-trial conference minutes wherein
they have recorded issues that are common cause and those in dispute.
The terms of the pre-trial conference minutes are as follows:
COMMON CAUSE
There was an illegal strike/work stoppage at the premises of the
respondent.
The applicants were dismissed allegedly for participating in an illegal
strike/work stoppage.
It is impracticable to seek reinstatement, applicants no longer seek
reinstatement.
ISSUES IN DISPUTE
Procedural fairness of the dismissal
Compensation of applicants, affidavits will be filed in relation to the
issue of compensation.
2. The minutes were signed by both parties and have been filed with the
Court. At the commencement of the proceedings, they were read into the
record and We also endorsed them. On the basis of these recorded above,
We proceeded to hear the merits of the matter. Our judgment is therefore
in the following.
Page 218 of 265

EVIDENCE
3. Respondents case was that on the 11th December 2009, Applicants went
on an illegal strike/work stoppage. They had just come back from their
lunch break. Contrary to Respondents expectation and the usual
practice that they would commence work, they broke into three no
working groups. One of the groups sang as it moved on the firm floor, the
other just stood in smaller groups chatting, while the last one sat at their
work stations but without working.
4. Respondent then sent a team composed of part of its management, and
officials from the representative union in its employ to the employees.
The team to find out why the employees were not working. These were
one Molapo and Ntlhabo (witness), Matobako and Sehlabaka, respectively.
Unfortunately the team came back empty handed, reporting that the
employees had ignored them while one group had said that they were not
working because they were tired and the other that they were happy.
5. In reaction to these responses, Respondent issued out an ultimatum that
if employees did not return to work within 30 minutes of the ultimatum,
they would be dismissed. The ultimatum was communicated through a
60cm wide notice board which was mounted to a stick and held high in
the air, and moved through the work station lines for every employee to
see.
6. At the end of the ultimatum period, the Applicants had still not resumed
duty. As a result, the second and third ultimatums followed, all with a 30
minutes gap and all couched in the same manner but with each
indicating its number in the sequence. In the 30 minutes gaps between
the ultimatums, the team earlier composed, would move along the floor
lines and plead with the Applicants to resume duty.
7. At the end of the last ultimatum passed, Mr. Ntlhabo (witness) addressed
all employees through a public address device to tell them that they had
all been dismissed and that they should pack up their belongings and
leave the factory premises. He also told them to come on Monday of the
following week to come and collect their terminal benefits.
8. Applicants case was that when they came from their lunch break into the
factory floor, the machines at their work stations were not working due to
power cut. They then started singing, as they usually do when there is a
power cut at work. Prior to their singing, they had informed their
supervisors about the power cut, who had in turn promised to meet
management about the issue and then revert to them.
9. After a few minutes, they noticed a board being passed in front of them
with the words first warning. About five minutes later, another board
was passed in front of them with the message second warning, which
about five minutes later was followed by a third one, with the message
final warning. Then about 5-10 minutes later, the supervisor came to
Page 219 of 265

them to tell them to come collect their termination benefits on Monday of


the following week.
10. When they came on the following Monday, they were paid their monies
and given letters of termination. They testified that they were surprised
to learn at that stage that they had been terminated from employment.
They were never given a hearing prior to their termination. They prayed
that their dismissal be declared unfair.
11. Safe for putting their case to Respondent, the cross examination of
Respondent, one the one hand, revealed that the ultimatums were written
in both the official languages of Lesotho, that is in Sesotho and English.
The cross examination of Applicants, on the other hand, revealed that
Applicants did not inquire about the power cut from shop stewards
because they did not know them. Further, that that notwithstanding,
Applicants referral of this matter at the Directorate of Dispute Prevention
and Resolution (DDPR), was made by Factory Workers Union (FAWU),
which is a union with majority representation at Respondent employ.
12. Furthermore, cross examination of Applicants revealed that Applicants
continued to sing notwithstanding warnings that were being passed in
front of them. Moreover, it also revealed that Applicants did not ask their
supervisors both at the time they were told to go home and come back on
Monday and during the passing of the warnings, what the warnings were
for. Lastly that, Applicants did not ask for the reason for their dismissals
when handed the letters of termination.
SUBMISSIONS OF PARTIES
13. Respondent submission was that the dismissal of Applicants was
procedurally fair in that prior to their dismissals, Applicants were given
ultimatums which were clear and unambiguous and stating what was
required of them and the sanction that would follow. It was submitted
that the ultimatums gave applicants sufficient time to reflect as they were
three in number and were well spaced by at least 30 minutes. It was
added that evident to this is the fact that, whereas Applicants claim that
the ultimatums were not clear as contemplated by section 18(a) of the
Labour Code Codes of Good Practice Notice of 2003, they did not at any
point attempt to enquire about their purpose or meaning. It was argued
in view of this there is evidence of full compliance.
14. In relation to the hearing, it was submitted that the ultimatums, in
law, constituted a hearing as Applicants were given the chance to explain
their behaviour before the harsh step to dismiss could be taken against
them. It was argued the hearing in the conventional sense could not be
given, considering the circumstances of the matter. It was submitted that
the provision of section 66(4) of the Labour Code Order 24 of 1992, has
been complied with.

Page 220 of 265

15. The Court was referred to the case of Matekane Mining and Investment
company (Pty) Ltd v Retelisitsoe Ralikhomo and others C of A (CIV)
52/2013, that ultimatums amount to a hearing. It was argued that in
casu, when ultimatums were issued, Applicant did not state their
problems but they were nonetheless given a hearing nonetheless.
16. Applicant submitted that the Court of Appeal Decision referenced by
Respondent is misplaced. They argued that in that case, the Court states
in clear terms that a hearing and ultimatums are two different things and
should not be confused. It was argued that in casu, Applicants were not
given a hearing as not even a charge was made against them.
17. It was submitted that evidence has shown that the ultimatums did not
comply with section 18(a) in that they were not clear, did not
communicate what they expected and that they did not disclose the
sanctions, as they were merely written first, second and final warnings. It
was added it was possible to hold hearings for Applicants through the use
of the public address system which Respondent alleges to have used to
disperse Applicants after the issuance of the last ultimatum. It was
prayed that the Court find for Applicants.
ANALYSIS
18. We wish to comment that there is an evidence balance in the evidence
of parties, at least in so far as their evidence in chief is concerned.
Ordinarily, We would have been drawn to conclude that the one bearing
the burden has failed to sustain it and consequently find in favour of the
other. However, in casu, the cross examination of parties has shaken the
balance by tilting the scale towards Respondent favour. In essence, when
considering the evidence of both parties, both in chief and under cross
examination, We have found the version of Respondent to be more
convincing than that of Applicants. Below is a demonstration of how We
came to this conclusion.
19. Firstly, the fact that Applicants did not enquire about the reasons
behind the issuance of the ultimatums which they claim were written
warning, implies that they were aware of their nature and intent. They
had a number of opportunities during which they could have made the
enquiry. First, it was during the passing of the ultimatums, secondly
when told to go home by supervisors and when given letters of
termination on the following Monday. The explanation given for failure to
inquire are just feeble and insufficient, and cannot be relied upon as
presentation of what they claim to have happened.
20. What further strikes Us in the fact that, assuming that they did not
know the reasons for the issuance of the warnings, as they claim, why did
they not alter their behaviour at the time. They evidently did not as they
continued to sing and not work, which was the only conduct that was in
direct violation of their contractual obligations as employees, and in
particular, employees of Respondent firm. In Our view, this only leads to
Page 221 of 265

one reasonable conclusion, which is that they were aware of the warning
and that their conduct to refrain from work was calculated.
21. We are also stunned by the fact that Applicants claimed not to have
asked the shop stewards about both the power cut and warning because
they did not know them. This is particularly surprising because their
referral to the DDPR was lodged by the very union whose officials they
claim not have known. In Our view this finding, We are of the view that
all Applicants arguments that ultimatums were short and that they did
not contain sufficient information, is shift for convenience which lacks a
tint of truthfulness in it. The huge gap of unexplainable conduct on the
part of Applicants puts their evidence into question. It is therefore Our
view that the Respondent fully complied with the provisions of section
18(c) of the Codes of Good Practice (supra).
22. Regarding a hearing in the misconduct of this nature, We are in
agreement with Respondent that conventional disciplinary hearings were
not necessary. It was enough that Respondent issued ultimatums as
they served that particular purpose. This is anticipated by section 66(4)
of the Labour Code Order (supra) that there are circumstances under
which a hearing may not be given prior to dismissal. In fact, it is Our
attitude that by asking Applicants to resume duty failing which they
could be dismissed, Respondent was in effect giving them an opportunity
to show cause why they should not be dismissed and therefore giving
them a hearing notwithstanding the provisions of section 66(4).
23. In not resuming duty or attempting to explain their conduct,
Applicants denied themselves the exercise of the right to be heard in
terms of section 66(4) of the Labour Code Order (supra) as referenced in
the case of Matekane Mining and Investment company (Pty) Ltd v
Retelisitsoe Ralikhomo and others (supra). We have stated a number of
times that the right to be heard can only be given to a party that is willing
to utilise it. In failing to use the opportunity when given, Applicants
waived the right.

Page 222 of 265

AWARD
We therefore make an award as follows:
a) That the dismissals of applicants were fair, and
b) No order as to costs is made.
THUS DONE AND DATED IN MASERU ON THIS 3rd DAY OF DECEMBER
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
LABOUR COURT OF LESOTHO
MRS. MATELA
MRS. RAMASHAMOLE

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR RESPONDENT:

ADV. PHEKO
ADV. KAO

Page 223 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/02/2009

IN THE MATTER BETWEEN


MOLOUOE LETSAE & 42 ORS

APPLICANT

AND
J.W. INTERNATIONAL (PTY) LTD/
JONSSON MANUFACTURING (PTY) LTD

RESPONDENT

JUDGMENT
Claim for unfair dismissal for participation in a strike. Court mero motu raising
three points of law namely non joinder, breach of rules, and absence of a
substantive relief. Matter being postponed to allow parties to address points
raised. Applicant filing an application for joinder at return date to address
non-joinder. Non-joinder falling off. Respondent taking a point of law that
application is improperly made. Parties addressing the Court on the remaining
points. Court finding that application is improperly made and that the Rules of
Court have been breached. Court declining to consider the prayer for
amendment of pleadings to include substantive relief on account of its finding
on the other two points of law raised. Court dismissing Applicants claims. No
order as to costs being made.
BACKGROUND TO THE DISPUTE
1. This is a claim for unfair dismissal for participation in a strike. From the
citation of the matter there are forty three (43) Applicants, with the main
Applicant being Molouoe Letsae, against J.W. International (Pty) Ltd,
which has now changed its name to Jonnson Manufacturing (Pty) Ltd.
The matter was initially before the late President of the Labour Court,
Lethobane L.A., and was being heard in the merits. With His untimely
passing, the matter had to be reallocated and with the reallocation, it has
had to be recommenced.
2. On the first day of hearing, We mero motu raised three points of law for
parties to address Us on. The first point, related to the fact although the
citation reflected forty three (43) Applicants, but the forty two (42) had not
been joined to the matter. Secondly, that the application did not comply
with Rule 3 of the Rules of this Court in that he had initiated motion
instead of trial proceedings, and thirdly that there was no substantive
prayer but only the consequential prayer in the application. After raising
these points, We postponed the matter, at the request of parties, to allow
them to prepare their addresses.
Page 224 of 265

3. In an effort to address the issue of non-joinder, the other forty two


Applicants filed an application for joinder to the matter as co-Applicants.
In reaction to point on joinder, Respondent raised a point of law to the
effect that the application for joinder is not properly made and sought the
dismissal of the said application on this ground. We were addressed by
both parties on the issue, but reserved Our judgment and directed them
to address Us on the other points of law which We had initially raised
mero motu. Having heard the presentations of parties, Our judgment
follows.
SUBMISSIONS
Improper application
4. Respondent argued that in the main claim, there is only one Applicant,
namely, Molouoe Letsae. Further that the application for joinder is made
by Molouoe Letsae, which in view of the matter, meant that it was
Molouoe Letsae who was applying to be joined to the proceedings, where
he is already a party. It was added that the supporting affidavits filed by
the other forty two (42) Applicants were meant to support and align
themselves with Molouoe Letsae in his application to be joined.
5. It was argued that the approach adopted by Applicants is improper, as
Molouoe Letsae cannot seek to be joined to the proceedings instituted in
his name. It was added that this being the case, the application is
improper and should be set aside. Further that the above being the
position, the supporting affidavits should follow suit for the reason that
without the main application, there is nothing to support.
6. Applicants answered that it was a genuine error on their part to have
included Molouoe Letsae as the main Applicant in the joinder and
condonation applications. It was submitted that the intention was to
have the first supporting Applicant as the main Applicant in that the
averments contained in the application relate to her. It was prayed that
the Court condone this error and take the main application to be that of
the first supporting Applicant by the names of Makamohelo Mokhathali.
7. It is clear and unquestionable that the applications for joinder and
condonation have been improperly made. What Applicants are asking Us
to do is to remove Molouoe Letsae and substitute him with Makahomelo
Mokhathali. This process, in Our view, amounts to an amendment and
substitution in the affidavit of Molouoe Letsae. The question that
confronts Us, is whether it would be proper to do so. An affidavit is a
sworn statement of facts which prior to its commissioning is read and
explained to a party deponent.
8. The party deponent to an affidavit deposes to the affidavit by attaching
his/her signature as confirmation that he/she knows and understands
the contents of the document and that they relate to him/her. In essence
an affidavit is the sworn evidence of the deponent party and the evidence
contained in it relates only to that party. Therefore, it goes without
Page 225 of 265

saying that it would be improper to amend and make substitution in the


affidavits of Molouoe Letsae and Makamohelo Mokhathali, in an effort to
regularise them (see Lesao Lehohla v National Executive Committee of the
Lesotho Congress for Democracy and others CIV/APN/160/1998).
9. In view of Our finding above, the affidavit of Molouoe Letsae is set aside
as being an irregular step. Further that the supporting affidavits of the
forty two Applicants are redundant on account of the fact that the
affidavit in respect of which they were meant to support has been set
aside. We therefore find that there is no application for joinder and
condonation.
Breach of Rules of the Court
10. Regarding the second point of law, Applicant submitted that while he
concedes that a notice of motion is an irregular step, the improper
procedure has been condoned by all stakeholders. It was submitted in
amplification that Respondent has filed an opposing affidavit instead of
an answer hence why Applicants also filed replying affidavits. It was
added that further compounding the situation was the fact that the
matter was heard in the merits, notwithstanding these apparent
irregularities, by the late Lethobane L.A, though not to finality. It was
argued that this is clear evidence that the stakeholders have condoned
the irregular step.
11. It was argued that in law, where all stakeholders have condoned an
irregular step, they are not entitled to later take any step to set aside the
proceedings on account of that irregularity. The Court was referred to the
case of Thabo Motseki v Lesotho Agricultural Development Bank
CIV/T/54/1994, where the learned Judge Monapathi, quoted the
provisions of Rule in the following,
Where a party to a case takes an irregular or improper proceeding or
improper step any other party to such a cause may within fourteen days of
the taking of such step or proceeding apply to Court to have it set aside:
Provided that no party who had taken any further step in the case with
knowledge of the irregularity or impropriety shall be entitled to make such
application.
12. It was prayed in the event that this Court feels strong not to adopt the
attitude of the initial court, that Applicants be given the chance to make
proper amends to their pleadings.
13. In answer, Respondent submitted that Applicants have breached the
procedure of this Court. Further that the fact that Respondent filed an
answering affidavit does not mean it condoned the breach. Rather,
Respondent reacted in line with the procedure already adopted by
Applicant. It was argued that given the procedure adopted by Applicant,
this Court has no option but to decide this matter on the strength of the
pleadings of parties and not allow for the leading of evidence. It was
furthermore submitted that it is inaccurate to suggest that the Court also
Page 226 of 265

condoned the irregularity. It was submitted that the pleadings were


drafted by Applicant and not the Court and thus the Court cannot be said
to have played a role in the improper procedure. It was added that in any
event every Court in its sitting views each situation differently in
comparison to another.
14. It is similarly clear that there is a breach of procedure, at least as
contemplated by Rule 3 of the Rules of this Court. This breach cannot be
cured by the mere fact that Respondent also filed an affidavit in answer
or that the initial Court did not pick it or ignored it in favour of the merits
of the matter. This Court is not that Court and neither is that Court this
Court. Each Court therefore has its own opinion which may be different
to that of the other court, as is the case in casu. In essence the principle
in Thabo Motseki v Lesotho Agricultural Development Bank (supra) does
not and cannot apply in casu. In addition, the application of the principle
is limited to the proceedings before the High Court as it is an extract from
Rule 30 of the High Court Rules.
15. The breach in issue, and as We have said, relates to the Rules of this
Court. In terms of Rule 27 of the Labour Court Rules of 1994, this Court
has the power to condone the breach of its Rules. However, such breach
may only be condoned upon application by the party that is in breach. In
casu, Applicants have not made an application for condonation and
therefore the exercise of Our powers in terms of rule 27 is ousted.
16. Rather than to apply for condonation of this admitted breach,
Applicants ask to be given the opportunity to amend their pleadings. In
seeking this opportunity, Applicants do not disclose the nature of the
amendment that is sought. This makes it difficult for the Court to
determine the merit of their request, particularly at this stage where
pleadings have been closed. This being the case We refuse to grant the
indulgence sought.
17. We wish to comment that Respondent has also breached the
procedure of this Court by its own conduct of filing an affidavit.
Respondent cannot rely on an initial breach on the part of Applicant to
justify its subsequent breach. Respondent ought to have filed an answer
wherein it would raise a point of breach of procedure on the part of
Applicant.
18. Regarding the alleged contribution on the part of the Court, We are in
agreement with Respondent that it would be inaccurate to suggest that
the breach was condoned by the initial Court. We have stated before that
condonation of a breach of the rules must be sought and be expressly
granted. Any action short of that does not amount to condonation but to
something else. Applicant does not say he sought condonation or that it
was given but merely relied on the fact that the matter proceeded in the
merits notwithstanding this breach.

Page 227 of 265

Absence of substantive relief


19. On the last point of law, Applicant submitted the substantive relief
was omitted by error. It was added that the initial draft of the pleadings
was a mere union official who is lay in law. It was submitted that this
Court is a court of equity and fairness and that in view of this said, the
Applicant be given the opportunity to amend his pleadings to include the
substantive relief, so that justice may be dispensed.
20. In answer, Respondent submitted that there being no substantive
relief, this Court has no jurisdiction to grant the consequential relief. It
was added that the remedy of reinstatement, which Applicant is seeking,
can only be granted where the Court has declared the dismissal of
Applicants unfair. It was argued that in the absence of the substantive
relief, it would be baseless to seek reinstatement.
It was further
submitted that if this Court were to proceed to hear this matter as it
stands, the Court would have to first find the dismissal unfair in order to
grant reinstatement, which remedy has not been sought by applicant. It
was argued that it is trite law that the Court can only grant the remedy
that has been sought.
21. Both parties seem to agree, at least in principle that there is no
substantive relief sought and that this Court cannot grant what has not
been sought. This brings Us to issue of an amendment sought by
Applicant. It is trite law that pleadings can be amended any time, even at
the hearing (see Tsotang Ntjebe & Others v LHDA and Telang Leemisa &
Others v LHDA LAC/CIV/A/12/2004).
22. However, in view of Our decision to refuse to allow an amendment of
the pleading in an attempt to cure the breach of Rule 3 of the Rules of
this Court, We deem it unnecessary to
consider the question of the
amendment of the remedies sought. The final effect of Our judgment on
the issue is that the proceedings have been improperly made. As a result
unless the impropriety has been cured, then there are no proceedings the
before us and if there are no proceedings, the issue of amendment of
same cannot be considered.

Page 228 of 265

AWARD
We therefore make an award as follows:
a) The application for joinder is dismissed;
b) The applicants claim is dismissed as having followed an improper
procedure; and
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 3rd DAY OF DECEMBER,
2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOSEHLE
MR KAO

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR RESPONDENT:

ADV. MAIEANE
ADV. NTAOTE

Page 229 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/PS/A/05/2013

IN THE MATTER BETWEEN


TEBOHO MAFEREKA

APPELLANT

AND
MINISTER OF PUBLIC
WORKS AND TRANSPORT
PUBLIC SERVICE TRIBUNAL
CHAIRPERSON (NT NTAOTE)
ATTORNEY GENERAL

1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT

JUDGMENT
Appeal against the finding of the Chairperson of the Public Service Tribunal.
Matter not being opposed and therefore being heard in default. Eleven grounds
of review having been earlier raised, Appellant proceeding on some of them,
but not all. Court finding merit in the grounds raised and granting the appeal.
Court ordering the reinstatement of Appellant without loss remuneration. No
order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an appeal against the finding of the 2nd Respondent in case
number PST/7/2011.
The brief background of the matter is that
Appellant was employed by 1st Respondent in the position of driver until
his dismissal on 1st April 2010, for misconduct. He was dismissed on the
ground that the motor vehicle that he was in charge of, bearing
registration number Y3631, had unjustifiable and recurring high petrol
consumption, in the period between 1st March 2010 and 14th April 2010.
2. Following Appellants dismissal, he appealed to the Public Service
Tribunal, 2nd Respondent herein. He had raised several grounds of
appeal, which unfortunately were unsuccessful. Armed with the decision
of 2nd Respondent, and dissatisfied with same, Appellant initiated the
current proceedings. This appeal was not opposed and no appearance
was made on behalf of Respondents and therefore, the matter was heard
both unopposed and in default of Respondents. We wish to note that
about eleven grounds of review were raised on behalf of Appellant.
However, on the date of hearing only a few were canvassed and these will
form the basis of Our judgment.

Page 230 of 265

SUBMISSIONS AND ANALYSIS


3. Appellant claimed that the charges against him did not disclose the cause
of action, but that they were rather vague and embarrassing. It was
argued that at page 9 of the record, it is recorded that Appellant was
charged with breach of clause 3(1)(f) of the Codes of Good Practice (Public
Servants) of 2005. It was submitted that nothing further is stated
regarding what Appellant was alleged to have done in contravention of
this clause. It was argued that 2nd Respondent should have dismissed
the charges at the onset.
4. We have gone through the record, and in particular page 9 thereof. It is
the letter of charge against Appellant. As appellant has rightly pointed
out, that letter states that:
You are charged with contravention of the following clauses of Code of
Good Practice; Clause 3(1)(f).
Nothing further is said in so far as how clause (3) is alleged to have been
contravened.
5. A sufficiently set out cause of action must have the following,
i)
Facts
ii)
The law; and
iii)
The conclusion that is drawn from the application of the law
to the facts.
(see Lesotho National General Insurance Company v Alfa Plan Hire &
another C of A (CIV) 24/2005)
These requirements are non-existent in the case of Appellant. Therefore,
the charges did not disclose the cause of action.
6. It is further Appellants case that on the 4th June 2010, his disciplinary
hearing was postponed to an indefinite date. The Court was referred to
page 6 of the record where Appellants representative had argued on
appeal, before the 2nd Respondent, that the matter had been postponed
sine die.
The Court was further referred to 1st Respondent
representatives representation where he also confirmed this position.
Specific reference was made to paragraph 1 at page 7 of the record. It
was argued that given those complementing presentations, the 2nd
Respondent ought to have concluded that the matter was postponed sine
die and could therefore have not been validly heard without notice to
Appellant thereafter.
7. We have again perused the record, in particular, paragraphs 6 and 7 as
referenced. We wish to confirm that at page 6, the following is recorded:
He pointed out that after the hearing had initially proceeded on the 4 th day
of June 2010, it was postponed to an indefinite date.
At page 7, the following is recorded,
Adv. Kotelo submitted that the respondent Ministry gave appellant an
opportunity to be heard as he was present on the initial date of the hearing
wherein the matter was heard and postponed to a later date on which
appellant failed to attend the hearing.
Page 231 of 265

8. Clearly no mention of the next date and/or time of hearing was made
after the postponement of the 4th June 2010. As a result the matter was
postponed without mention and consequently sine die. Therefore, We are
in agreement with Appellant that it could not have been proper that this
matter was heard without notice to him subsequent to the date of a sine
die postponement. Consequently, the 2nd Respondent ought to have
found that it was improper to have heard the matter without notice to
Appellant following the sine die adjournment.
9. Appellant further argued that after the sine die adjournment, when the
matter reconvened, the record reflects that he could not attend because
he was sick. If this was the case the 2nd Respondent ought to have found
that it was improper for the matter to have proceeded in the light of the
Appellants health situation that had been presented. The Court was
referred to page 13 of the record where the chairperson of the initial
hearing recorded this acknowledgement.
10. At the referenced page, the following is recorded:
The hearing was reconvened on June 4th for determination, but Mr.
Mafereka did not show up. When called on his cellphone he said he was
sick.
Clearly, the chairperson in the initial hearing was fully appraised of the
health situation of appellant. Illness is a condition in respect of which no
one has control. In Our view, a reasonable person seized with the
information that one of the parties is ill, must stay the proceedings. To
act otherwise is tantamount to undermining the rules of natural justice.
AWARD
On the basis of the above reasons, We make an award as follows:
a) That the appeal succeeds,
b) Respondent is ordered to be reinstated to his position without loss of
remuneration, and
c) The order is to be complied with within 30 days of issuance herewith.
THUS DONE AND DATED AT MASERU ON THIS 3rd DAY OF DECEMBER,
2014.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MALOISANE
MISS LEBITSA

I CONCUR
I CONCUR

FOR APPELLANT:
FOR RESPONDENT:

MR. MOSUOE
NO ATTENDANCE

Page 232 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/31/2014

IN THE MATTER BETWEEN


THABISO MOLETSANE

APPLICANT

AND
MINISTRY OF PUBLIC
WORKS AND TRANSPORT
CHAIRPERSON OF THE BOARD OF LESOTHO
FREIGHT BUS SERVICE CORPORATION
THE BOARD OF LESOTHO
FREIGHT BUS SERVICE CORPORATION
LESOTHO FREIGHT BUS SERVICE
CORPORATION
ATTORNEY GENERAL

1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
5th RESPONDENT

JUDGMENT
Claim for an interdict to compel Respondent to pay Applicant his terminal
benefits in terms of his contract of employment. Respondent raising a point of
law that this court has no jurisdiction over the clam as it falls within the DDPR
jurisdiction. Court finding the Applicant claim is a breach of contract claim
and that it falls within jurisdiction of the DDPR. Court declining jurisdiction
and dismissing claim for want of jurisdiction. Court awarding costs to
Respondent on account of frivolity on the part of Applicant.
BACKGROUND OF THE DISPUTE
1. This is a claim for an interdict in the following terms:
(a) That the respondents be interdicted from withholding payment of
applicants terminal benefits.
(b) That the respondents be ordered to release applicants terminal benefits
forthwith with interest thereof.
(c) That the respondents be ordered to pay costs of suits in the event of
opposition of this application.
(d) Further and/or alternative relief.
2. The brief background is that Applicant was employed by Respondent on a
three year contract, from 15th November 2010 to 14th November 2013. At
the end of his contract, he was not paid his terminal benefits, in
particular his gratuity, arrear salaries and board attendance fees, as well
as his unpaid leave. All these amount to the sum of M288,786-73.

Page 233 of 265

3. Owing to the continued failure to pay these benefits, Applicant wrote to


Respondents a series of letters to demand the said payment. Despite
demand, Respondent failed to pay hence the current application. In its
answer, Respondent has raised a point of law wherein, it challenges the
jurisdiction of this Court over the Applicants claim. Both parties were
given the opportunity to address the Court on the issue and having heard
them, Our judgment follows.
SUBMISSIONS AND ANALYSIS
4. Respondent argued that this matter falls within the jurisdiction of the
Directorate of Dispute Prevention and Resolution (DDPR) in that it
involves a claim for breach of contract. It was submitted that claims arise
from the contract of employment between Applicant and Respondents,
which contract has been annexed to the Applicants founding affidavit
and marked M1.
5. It was argued that in terms of section 226(2) of the Labour Code
Amendment Act 3 of 2000, claims for breach of contract fall squarely
within the jurisdiction of the DDPR. It was on this basis prayed that this
matter be dismissed with costs. In support of the prayer for costs, it was
argued that costs must follow the event and further that Applicant was
advised about the lack of jurisdiction from as far as in January when he
initiated these proceedings, but that he nonetheless elected not to take
heed to the warning but to proceed with the matter.
6. Applicant answered that he is complaining about the unlawful conduct of
Respondents to continue to withhold his terminal benefits. It was argued
that this can only be cured by an order for an interdict. It was added that
the DDPR has no jurisdiction to grant such an order but this Court. It
was further submitted that if Applicant had referred the claim with the
DDPR, it would have been referred back to this Court on similar grounds
of lack of jurisdiction.
7. It was argued that unlike the DDPR, the powers of this Court have been
widened by section 24 of the Labour Code Order 24 of 1992, as amended
by section 8 of the Labour Code Act (supra), to include the power to grant
the relieve sought. The Court was referred to sections (2) (a) and (b)
thereof in support of the argument.
8. Further reference was made to the Court of Appeal decision in the case of
Letsie Mamasupha v Nthabeleng Ntekhe C of A (CIV) 27/2009. It was
argued that in this case, it had been claimed that the High Court of
Lesotho had no jurisdiction over a spoliation claim, as it fell within the
jurisdiction of the Magistrate Court. The Court of Appeal held that the
High Court had broad powers including to determine spoliation claims.
9. It furthermore was argued that in casu, this Court has similarly has
broad powers given under section 24 of the Labour Code Order (supra) as
amended, in as much as there is nothing that excludes it from hearing
Page 234 of 265

and determining the claim referred. It was prayed that this application be
granted with costs in terms of section 24(2)(1) of the Labour Coder Order
(supra), as amended.
10. In reply, Respondent submitted that the claim is bad in law as the
appropriate claim should be a breach of contract. Further that a breach
of contract claim falls within the jurisdiction of the DDPR. Furthermore,
that it is not accurate that the powers of this Court are as broad as
Applicant has attempted to suggest. It was said that the powers of this
Court are limited by the enabling Act.
11. We have gone through both the pleadings of Applicant and annexure
M1. We do confirm that monies claimed are part of Applicants contract
with Respondent. Indeed the illegality or unlawfulness complained of
relates to failure by Respondents to pay the terminal benefits due to
Applicant, by virtue of his contract of employment, M1. In essence,
Applicant is complaining about the continued breach of contract by
Respondent and is asking that Respondent be ordered to comply with the
terms of contract by paying the terminal benefits.
12. In Our view, this is a clear case for breach of contract which ordinarily
falls within the exclusive of the DDPR, in terms of section 226(2) of the
Labour Code Act (supra). In terms of this section:
The following disputes of right shall be resolved by arbitrationa)
b)
(i)
(ii) a breach of a contract of employment;
13. We wish to comment that a claim can be phrased in many ways to
simply found jurisdiction of the court to which it has been referred. This
however is not enough to vest the concerned court with jurisdiction. In
order to truly determine the court with proper jurisdiction, consideration
has to be placed on the effect of the order sought. We have already
determined the effect of the order sought in casu and We continue to
maintain that it is not one in respect of which We have jurisdiction. We
simply do have the authority to determine a breach of contract of
employment.
14. We wish to further comment that there is a general confusion over
section 226 and section 24 of the Labour code Act (supra). We wish to
clarify it in this fashion. Section 226 lays down the jurisdiction of both
Labour Court and the DDPR. Jurisdiction of Labour court is limited to
section 226(1) and (3) unlike that of the DDPR is limited to 226(2).
Section 24, relates to the powers of the Labour Court and not its
jurisdiction. Put differently, section 24 relates to the powers of the
Labour Court in respect of matters where it has jurisdiction. Therefore
for the exercise of powers under section 24, the Court must have first had

Page 235 of 265

jurisdiction over a claim. Therefore it is improper to argue jurisdiction of


the Court by reference to its powers.
15.
Applicant has made reference to the Court of Appeal decision in
Mamasupha Letsie v Nthabeleng Ntsekhe 9 (supra). We have gone
through the authority and have found it inapplicable for a number of
reasons. Firstly, the High Court of Lesotho has unlimited jurisdiction
while the jurisdiction of the Labour Court is limited to claims under
section 226(1) and (3) of the Labour Code Act (supra). Secondly, while the
claim for spoliation in the Magistrate Courts is subject to certain limits,
in which case it is to be referred to the High Court, there is no such
limitations, as the DDPR has exclusive jurisdiction over breach of
contract claims or even claims for unpaid monies. Further in referenced
authority, the Court found the value of the property in issue to have
exceeded the jurisdictional power of the Magistrate, which is not the case
in casu. Consequently, the argument is dismissed.
16. We wish to add that We agree with Respondent that the claim of
Applicant is bad in law. Rather than to seek to enforce a breach,
Applicant claims an interdict. In effect, this makes applicants claim a
breach of contract claim disguised as a claim for an interdict. We simply
cannot allow this practice as it would set very ruinous precedent where
parties would tweak their claims for own convenience contrary to the
principles of law.
17. On the issue of costs, We have stated before that this is a court of
equity and fairness. Owing to this position We only make an award for
costs in extreme circumstances of either frivolity or vexations conduct or
both (see(see Mokone v G4S Cash Solutions (Pty) Ltd LC/31/2012; Thabo
Makhalane v The Ministry of Law and Constitutional Affairs & others
LC/PS/A/02/2012; Thabo Moleko v Jikelele Services LC/40/2013;
Kopano Textiles v DDPR & another LC/REV/101/2007; Sefatsa Mokone v
G4S Cash Solution (Pty Ltd LC/31/2012). As a result, the argument for
costs to follow suit cannot and will not sustain.
18. Regarding the second leg of Respondents argument for costs, We are
inclined to agree with it that Applicants claim is frivolous. We say this
because not only has Applicant been earlier warned by Respondents, but
it is also clear even from his pleadings that what he seeks is an order to
compel Respondent to comply with the contract of employment by paying
his terminal benefits. This as We have said, is a claim that falls within
the exclusive jurisdiction of the DDPR.

Page 236 of 265

AWARD
We therefore make an award as follows:
a) That Applicants claim is dismissed for want of Jurisdiction;
b) Applicant is at liberty to refer his claim with the DDPR within 30 days of
issuance of this order; and
c) Respondent is granted costs as prayed which must also be paid within
30 days of issuance herewith.
THUS DONE AND DATED AT MASERU ON THIS 3rd DAY OF DECEMBER,
2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS. MOSEHLE

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENTS:

ADV. MOLATI
ADV. MOSOTHO

Page 237 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/99/2014

IN THE MATTER BETWEEN


MOEPI KOBO
MOSITO LISENE

1st APPLICANT
2nd APPLICANT

AND
G4S CASH SOLUTIONS (PTY) LTD
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for an interdict on urgent basis. 2nd Applicant applying to be joined
into the proceedings. Joinder being granted. Two points in limine being raised
in the matter. Applicant challenging the right of Respondent representative to
appear. Court also question the propriety of the procedure adopted by
Applicants. Court not finding merit in Applicant point in limine. Court further
finding that the procedure adopted is improper as it amounted to an
application for a review under the guise of an interdict. Court dismissing the
claim. No order as to costs being made.
BACKGROUND OF DISPUTE
1. This is an application for interdict in the following terms:
1. Dispensing with ordinary rules pertaining to the modes and periods of
service.
2. A rule nisi be and is hereby issued [returnable] on the date and time to
be determined by this honourable court calling upon the 2nd respondent
to show cause (if any) why an order in the following terms shall not be
made final.
(a)
That the dismissal of the applicants representative Mr. Masoebe
in A0664/14 cannot be declared unlawful.
(b)
That Mr. Masoebe cannot be allowed to continue to represent the
applicants as per their authority to represent and their membership
payment to Lesotho Workers Association (LEWA) trade union.
3. Cost in the event of opposition.
4. Further and/alternative relief.
5. That prayers 1, 2, (1) (b), and 3 hereof operate with immediate effect on
interim relief.
2. The application is accompanied by an application for the joinder of one
Mosito Lisene to the proceedings as co-Applicant. The application was
not opposed and having considered it, We found merit in it and granted
it. In its answer to the Applicants claims, Respondent had raised two
Page 238 of 265

points in limine relating to the lack of urgency of the matter and failure by
the Applicants to establish the necessary elements in this type of
application. In reply, Applicants had also raised a point in limine, relating
to the right of Respondent representative, one Adv. Tolo, to appear in the
proceedings as a legal practitioner against Applicants representative, one
Mr. Masoebe. It was contented that Applicants representative is mere a
trade union official who lacks legal training.
3. In addition to this ground, We also mero motu raised a point in limine
regarding the procedure adopted by Applicants. We were of the view that
Applicants were in effect asking Us to review the decision of the learned
Arbitrator in referral AA0664/2014, to exclude Mr. Masoebe from the
proceedings through the interdict mechanism, which in Our view was
improper. Having explained the nature of Our legal point, We invited
parties to address Us only on the last two points in limine, namely the one
We meru motu raised and the one relating to right of appearance, raised
by Applicants. Having heard parties, Our judgment follows.
SUBMISSIONS AND ANALYSIS
Right of appearance
4. Applicants submitted that although Respondent representative appeared
in his capacity as an official of an employers organisation, he was
nonetheless a legal practitioner admitted to practice as such in terms of
the laws of Lesotho. They added that their representative was a mere
union official without any legal training and therefore that there was no
equity of arms between them as representatives of parties. It was prayed
that Advocate Tolo be excluded from the proceedings.
5. Applicants referred the Court to section 28 of the Labour Code Order 24 of
1992, that a legal practitioner is only allowed to appear in the
proceedings where both parties are legally represented, which was not the
case in casu. The Court was further referred to the case of Lenka
Mapiloko v President of the Labour Court & Others LAC/REV/05/2007, to
demonstrate that legal representation is not allowed where one of the
parties is not legally represented.
6. Furthermore, the Court was referred to the case of Queen Komane &
Another v City Express LAC/CIV/A/5/2002, that in the same vein, the
Court stated legal representation is prohibited before the Labour Court
when one of the parties is not legally represented. In addition, the Court
was also referred to the case of Thabelo Kebise v Lesotho Brewing
Company (Pty) Ltd & another LAC/CIV/A/04/2013, to support the
argument.
7. In answer, Respondent submitted that section 28(1)(a) of the Labour Code
Order (supra), provides for the representation of parties by union officials
and/or employers organisation officials. It was argued that Adv. Tolo
was appearing in that capacity. It was added that the said section does
not even make reference to the credentials of both union officials and/or
Page 239 of 265

employers organisation officials, as Applicants want to suggest to this


Court.
8. It was further argued the right to be represented is enshrined in the
constitution of Lesotho and can therefore not be lightly taken. It was
argued that this is why in the case of Thabelo Kebise v Lesotho Brewing
Company (Pty) Ltd & another (supra), the Court stated that the party who
is not legally represented must be given the chance to find legal
representation. Further, that in the Lenka Mapiloko v President of the
Labour Court & Others (supra), the Court stated that legal representation
can only be excluded where a party to the proceedings cannot get legal
representation. It was added that in casu, Adv. Tolo is not appearing
with Applicant and as such the principle in Lenka Mapiloko v President of
the Labour Court & Others (supra), does not apply.
9. Furthermore, it was argued that in Lenka Mapiloko v President of the
Labour Court & Others (supra), no reference is made to employers
association. It was added that if Advocate Tolo were to be excluded,
Respondent would have to be represented by its officer who is less, both
in terms of exposure and experience, than Mr. Masoebe and that this
would create yet another imbalance of arms which Mr. Masoebe is
complaining about.
10. The provisions of section 28(1) of the Labour Code Order (supra), are as
follows:
(1)
At any hearing before the court, any party may appear in person
or be represented;
(a)
By an officer or an employee of a trade union or of an employers
organisation;
(b)
By a legal practitioner, but only when all parties, other than the
Government, are represented by legal practitioners.
11. We must say that We agree with Respondent that section 28(1) of the
Labour Code Order (supra), in particular subsection (a) thereof provides
for the appearance of employer organisation official, which capacity
Advocate Tolo is appearing in before this Court. It has claimed that
Advocate Tolo is appearing in his capacity as an officer of an employers
association, which claim was not challenged. Infact it was conceded to by
Applicants, safe to argue that this officer is a legal practitioner.
Consequently, Applicants argument must fail.
12. Regarding both the Lenka Mapiloko v President of the Labour Court &
Others (supra) and Queen Komane & Another v City Express (supra)
authorities, We are of the view that they are not suited for the
circumstances of the case in casu. We say this because while We admit
that they deal with section 28 of the Labour Code Order (supra), they only
do so in so far as representation by a legal practitioner is concerned.
They do not in any way address representation by a union official or an

Page 240 of 265

employers association as appears under subsection (a)


Consequently, and in the same vein, this argument must fail.

thereof.

13. About the authority in Thabelo Kebise v Lesotho Brewing Company


(Pty) Ltd & another (supra), the Court does not deal with the issue of
representation. Rather, in that authority, parties presented an agreement
that the matter be remitted to the Directorate of Dispute Prevention and
Resolution (DDPR) to be heard de novo as they felt that Applicant
(Thabelo Kebise) was wronged by both the Labour Court and the DDPR.
The Court in this case merely enclosed the parties agreement and
remitted the matter to the DDPR to be heard de novo. Therefore, this
authority has no place in casu and the Applicants argument must also
fail.
Improper procedure
14. Applicant conceded that they were in effect asking this Court to review
the decision of the learned Arbitrator to exclude Mr. Masoebe from the
proceedings. It was argued that the procedure adopted was well in order,
given the wide powers that the Labour Court has. It was argued that the
Labour Court is seized with exclusive powers to review decisions of the
DDPR, including the ruling to exclude Mr. Masoebe.
15. In answer, Respondent submitted that the procedure adopted is
improper. It was added that Applicants should lodge a review in terms of
the law as it is their right. It was argued that in the alternative,
Applicants could have waited for the matter to finalise and for an award
to be issued so that they review the whole matter. It was argued that this
interdict application is a disguised review and that this is improper.
16. The powers of this Court to review the decisions of the DDPR derive
from section 228F of the Labour Code (Amendment) Act 3 of 2000, as
amended by section 5 of the Labour Code (Amendment) Act 5 of 2006 and
Rule 16 of the Labour Appeal Court Rules of 2002, as amended by the
Labour Court (Amendment) Rules, 2006. In terms of the amendment to the
Labour Court Rules, Rule 16 of the Labour Appeal Court Rules (supra), is
now Rule 27A of the Labour Court Rules of 1994.
17. Section 228F of the Labour Code (Amendment) Act (Supra) as amended,
on the one hand, provides that:
(1)
Any party to a dispute who seeks to review any arbitration award
issued under this part shall apply the Labour Court for an order setting
aside the award.
18. Clearly this Court has the power to review the decisions of the DDPR.
However in terms of Rule 27A of the Labour Court Rules (supra), as
amended, there is a procedure that is to be followed. In terms of the
prescribed procedure,
(2)
A party wishing to review a decision shall file a notice of motion
with the Registrar and ...
Page 241 of 265

(3)
(a)
(b)

The notice of motion shallCall upon the decision maker to show cause why the decision or
proceedings should not be reviewed and corrected or set aside;
Call upon the decision maker to deliver to the Registrar within 14
days of service of notice of motion on the decision maker(i)
The record of proceedings; and
(ii)
Any reasons that decision maker is required to give or
wishes to give; and

19. The procedure adopted by Applicants in casu is undoubtedly distinct


from the one prescribed in the Labour Court Rules (supra), as amended.
The extract from the Applicants Notice of Motion quoted under paragraph
1 of this judgment is clearly different from what is required under Rule
27A. Consequently, We find that Applicants have invoked an improper
procedure to seek redress.
AWARD
We therefore make an award as follows:
a) That this application is dismissed.
b) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 3rd DAY OF DECEMBER,
2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MR TEUOA

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR RESPONDENT:

MR. MASOEBE
ADV. TOLO

Page 242 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/12/2013

IN THE MATTER BETWEEN


SEKONYELA MOKHOSI & 41 ORS

APPLICANTS

AND
LESOTHO FLOUR MILLS (PTY) LTD

RESPONDENT

JUDGMENT
Claims for unfair dismissal due to operational reasons. Court mero motu
raising four points of law. Respondent in addition thereto raising a point of
law from the bar. Court upholding only one of the points raised and finding
that Applicants have adopted an improper procedure in instituting this matter.
Court dismissing the matter. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal due to operational reasons of the
employer and other relief. The matter is quite old as will be reflected in
its history. This matter was initially lodged before the High Court of
Lesotho in 1999 under case number CIV/APN/45/99. On or around the
23rd May 2000, the High Court, per Justice Mofolo as he then was, made
a determination that the Applicants claim fell within the jurisdiction of
this Court and then directed that the matter be transferred to this Court.
2. Pursuant to the said order, the matter was transferred to this Court and
given a new number LC/12/2013. After the transfer, its first date of
hearing before this Court was 20th August 2014. On this day, We meru
motu raised four points in limine in respect of which We wished to be
addressed before We could hear the matter in the merits. These points
were as follows:
i. Non-compliance with Rule 3 of the Rules of this Court by bringing
motion instead of trial proceedings.
ii. Non-compliance with section 227(5) of the Labour Code
(Amendment) Act of 2003, by not referring the matter for
conciliation before bringing it for adjudication.
iii. Superannuation of the order of the High Court transferring this
matter to the Labour Court in that the said order was only enforced
in 2013, which was over 12 years later.
iv. That there were only two Applicants in that only two out of the 43
applicants had deposed to affidavits in support of the claims.

Page 243 of 265

3. However, on this day, the matter was not heard but rather postponed to a
later date to allow Advocate Mabula for Respondent, who had just been
appointed in the matter to learn and acquaint himself with it. On the
next scheduled set of sittings, it was further postponed and again and
again until this day. We wish to note that on the day preceding this day,
parties were before court where Respondent indicated its intention to
raise a point in limine relating to its locus standi to be sued in these
proceedings. It was agreed that this point, together with those early
raised by the Court, would be argued on this day. In the light of this
background, Our judgement follows.
SUBMISSIONS AND ANALYSIS
Non-compliance with Rule 3
4. Applicants argued that they could not comply with Rule 3 due to the
unique nature of this matter. It was argued this matter was not initiated
before this Court but was rather transferred from the High Court where
the procedure allowed for it to be instituted by way of motion as opposed
to trial procedure provided for under Rule 3 of the Rules of this Court. It
was argued that in this instance Rule 3 does not apply in casu for the
above reasons.
5. In answer, Respondent submitted that the order of the High Court did not
excuse Applicants from compliance with the Rules of this Court. It was
argued that this Court is not the High Court and that it has its own rules
and procedure to be followed. It was submitted that procedure under
Rule 3 is clear that this matter must be lodged by way of an originating
application and not motion proceedings. It was prayed that this matter
be dismissed.
6. We are in agreement with Respondent that Applicants were not excused
from following the Rules of this Court, by the order of the High Court
which transferred the matter to this Court. In fact, as Respondent has
rightly put, each court has its own procedures and as such no court is
bound by the procedure of the other. Therefore, Applicants have failed to
observe the provisions of Rule 3 of the Rules of this Court in bringing
their claims.
Non-compliance with section 227(5)
7. Applicants argued that the order of the High Court was specific on the
approach to be adopted. It was argued that the order specifically directed
that the matter be heard at the Labour Court which excluded referral to
the DDPR in terms of section 227(5). Further that in the Court of Appeal
decision in Lesotho Highlands Development Authority v Tsotang Ntjebe &
Others C of A (CIV) 7/2012, the Court held that section 227 was not
binding on claims referred in terms of section 226(1) as is the case in
casu.
8. In answer, Respondent submitted that section 227(5) states that matters
that come to Court for adjudication, must first be conciliated and to only
Page 244 of 265

come to this court where conciliation been failed to resolve them. It was
argued that the Court of Appeal authority referenced relates to section
227(1) and 226(1) and not section 227(5), and thus inapplicable in casu.
9. We have perused the authority of Lesotho Highlands Development
Authority v Tsotang Ntjebe and others (supra). We have noted that at
paragraph 24 of the judgment, the Court states that:
Section 227(1) applies when a dispute of right is referred to the
Directorate. Where the dispute is one that falls to be resolved under section
226(1), as must be taken to have been the case in the present matter, there
is no obligation on any of the parties involved to refer the dispute to the
Directorate.
10. It is clear from the attitude of the Court in the above authority that
claims under section 226(1) of the Labour Code Act, such as in casu, do
not have to go to the DDPR for conciliation, as the provisions of section
227 are permissive and not mandatory. Consequently, Applicants are not
guilty of non-compliance with section 227(5) of the Labour Code Act
(supra).
Superannuation of the order of the High Court
11. Applicants case was that superannuation in relation to orders of the
High Court is governed by Rule 57 of the High Court Rules of 1980. It was
argued on their behalf that in terms of that Rule, an order of the High
Court superannuates after three years only where there is a writ to be
executed. It was argued that in casu, there is no writ and therefore that
superannuation does not apply.
12. In answer, Respondent answered that while it conceded that there is
no writ to execute, the matter has been dormant for over 12 years since
the order of the High Court, which is an unreasonably long time. It was
added that this notwithstanding no explanation has been given by
Applicants for their 12 years delay in prosecuting their claim, after the
order of the High Court was issued in 2000. Respondent argued that by
conduct, Applicants have deprived themselves of the right of enforcement
of the High Court Order. It was added that the law is clear that an unfair
dismissal claim must be lodged within 6 months which Applicants have
not.
13. According to Rule 57, of the High Court Rules (supra),
After the expiratory of three years from the date on which a judgment or
order was pronounced, no writ of execution may be issued pursuant of
such judgment or order the debtor consents to the execution of a writ or the
judgment has been received by the court.
14. Clearly, and as Applicants have put, superannuation only applies
where a writ of execution is involved, which is not the case in casu. As a
result, the order of the High Court has not superannuated. While We
note the attitude of Respondent, its position cannot alter the trite position
Page 245 of 265

of the law. The law of Lesotho as it stands does not state the period
within which an order or judgment has to be enforced, safe under Rule 57
of the High Court Rules (supra). Further the six months prescription
period for referral of unfair dismissal claims is applicable only in respect
of claims referred to the DDPR. Prescription of claims before this Court
was provided for under section 71 of the Labour Code Order 24 of 1992,
which has since been repealed.
There being only two applicants
15. Applicants case is that at paragraph 1(b) of their Founding Affidavit, it
is alleged that all other Applicants have authorised the main deponent to
depose to his affidavit on their behalf. It was argued that this has not
been challenged by Respondent as it has expressly pleaded that the
allegation is not denied.
16. It was argued that this approach by Applicant is supported by the
authority in Lesotho Telecommunications Corporation and another v
Makhobotlela Nkuebe and others C of A (CIV) 5/1998; C of A (CIV)
12/1998. It was submitted that in this authority the Court held that
where authority to depose to an affidavit on behalf of many applicants by
only one, has not been challenged then it is sufficient evidence of such
authority.
17. In answer, Respondent submitted that they have not challenged the
allegation that 1st Applicant has been authorized to depose to the affidavit
on behalf of other Applicants. It was argued that this notwithstanding,
the other Applicants should have filed supporting affidavits to indicate
their intention to be bound by the contents of the affidavit of 1st
Applicant. It was argued that this being the case, the Court should only
consider the affidavits of the 1st and 2nd Applicants only and consider only
them to be Applicants herein.
18. We have considered the authority in Lesotho Telecommunications &
another v Makhobotlela Nkuebe and others (supra). Indeed as Applicants
have put, it is not necessary to file additional or supporting affidavits by
the other Applicants. It is sufficient that where an Applicant main
deponent has alleged that he/she has full authorisation to depose on
behalf of others, to show the existence of such authorisation. We
therefore find that there are forty two Applicants in casu.
Respondent being wrongly sued
19. Respondent case is that in terms of the agreement of sale between the
Government of Lesotho and Seaboard Overseas Limited and Saxonvale
Investments Limited, it was a material term of the agreement that the
Government of Lesotho would be liable to terminal benefits of retrenched
employees within 12 months of the conclusion of the agreement. It was
submitted that Applicants were retrenched within this period and that as
such they should be suing the entity liable in terms of the agreement,
which in this case is the Government of Lesotho.
Page 246 of 265

20. It was added that though Respondent would not with certainty commit
that Applicants had been fully paid but that they were paid as annexure
C reflects. It was submitted that in terms of the agreement of sale,
liability would only shift to Respondent if after 12 months from
conclusion of the agreement, there were monies lawfully due to nonaffected employees as a result of the retrenchments.
21. Applicant answered that in terms of the Privatisation Act 9 of 1995, all
the liabilities of the former Lesotho Flour Mills were transferred to the
new one and that Respondent cannot claim to be wrongly sued. Specific
reference was made to section 22 of the Act. It was argued that the
agreement of parties cannot supersede the Act. Applicants further
argued that Respondent should be barred from raising this point in limine
at this stage. It was submitted that Respondent should have pleaded this
point specifically because the position of Our law prohibits the practice.
22. We wish to confirm the legal position that a point in limine must be
pleaded, and that a deviation from this position can only occur in special
circumstances. Authoritative in this regard is the case of Margret Tuane
& others v National Executive Committee & other CIV/APN/61/2012,
where the Court held that it is wrong for litigants to raise a point in limine
in argument but that it must be pleaded and linked to the facts.
23. Further in the authority of Mathabelo Mbangamthi v Puleng
Mbangamthi C of A (CIV) 06/2005, the Court of Appeal went on to add
that a deviation from the general rule may occur where there are
compelling circumstances. In casu, there are none stated. Rather the
prevailing circumstances point to the need to have pleaded the points of
law. We say this because the point relates in a direct manner to the
merits as it is based on the averments of parties and the annexed
documents to their affidavits. Consequently, Respondent is barred from
raising this point in limine at this stage of the proceedings. We therefore
see no need to consider its merit.
24. In view of Our finding on the first point in limine, and in the absence of
an application to condone the breach of the Rules of this Court, for the
irregular procedure adopted by applicants, We are left with no option but
to dismiss this matter. We say this because We have an obligation to
ensure that the Rules of this Court are observed. We can only, through
Rule 27, condone the deviation where an application for condonation has
been made and substantiated with reasons for the deviation.

Page 247 of 265

AWARD
We therefore make an award in the following:
a) That this application is dismissed for non-observance with the Rules of
this Court.
b) Applicants are at liberty to reinstitute this matter in line with the Rules of
this Court, if they so wish.
c) This order is to be complied with within 30 days of its issuance.
d) No order as to costs.
THUS DONE AND DATED IN MASERU ON THIS 3rd DAY OF DECEMBER
2014.

T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MRS. THAKALEKOALA

I CONCUR
I CONCUR

FOR APPLICANTS:
FOR RESPONDENT:

ADV. PHEKO
ADV. TOLO

Page 248 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/29/2007

IN THE MATTER BETWEEN


GOODWILL AUTO CLINIC

APPLICANT

AND
SENG MASENKANE
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Applicant for rescission of judgment granted by default. Applicant establishing
a reasonable explanation but failing to demonstrate prospects of success on
review. Court finding that a rescission is not due where there are no prospects
of success and refusing same. Court further considering the prejudice of its
decision on Applicant and finding none. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for review and rescission of judgment dismissing
the review application for want of prosecution. This is a very old matter
that emanates from events that occurred on 30th December 2006, when
the 1st Respondent was dismissed from employment.
Prior to
termination, 1st Respondent was in the position of Manager.
2. Dissatisfied with the dismissal, 1st Respondent referred an unfair
dismissal claim with the DDPR wherein he claimed payment of remainder
of his fixed term contract. The DDPR found in his favour and awarded
him the sum of M84,000-00, which was to be paid within 30 days of
receipt of the award by Applicant. The award was issued on 31st January
2007, in default of Applicant.
3. Armed with the default award, Applicant lodged a rescission application
against the default award. Sadly, the rescission application was refused
and the initial award reinstated. This award was issued on 16th March
2007 and it is the very same award that led to the current review
application in respect of which a rescission is sought.
4. The circumstances leading to the current application for rescission are
that, sometime on or around the 27th January 2010, 1st Respondent
made an application for the dismissal of the review application for nonprosecution. The application was not opposed and what followed was 1st
Respondent applying for judgment by default. The matter was then set
Page 249 of 265

down for hearing on 8th November 2012. On this day Applicant did not
attend and the dismissal application was granted in its default. In
reaction to the default award, Applicant has initiated the current
rescission application. The matter was set down for this day.
5. On the date of hearing, 1st Respondent was neither in attendance nor
represented. Rather, one Advocate Mothibeli came before Court to seek a
postponement of the matter on account of unavailability of Mr. Mosotho,
1st Respondent counsel of record from Mosotho Attorneys. He claimed
that Mr. Mosotho came late last night from the United States of America
and that he was resting after the long trip. The postponement was
sought in chambers. We wish to note Advocate Mothibeli is not from
Mosotho Chambers, but rather a legal officer at the Lesotho National
Development Corporation (LNDC). He was just appearing at the instance
of Mr. Mosotho to seek the postponement. The relevance of this will
become clearer in due course.
6. When parties could not agree in the postponement, We directed them to
formally address Us on the issue in an open Court. In Court, Adv.
Mothibeli appraised Us of his new mandate, which was no longer to seek
a postponement but to ask the Court to consider the affidavits of 1st
Respondent together with the Applicant case and arguments. Having
heard the addresses of both parties, Our judgment follows.
SUBMISSIONS AND ANALYSIS
7. Applicant submitted that Advocate Mothibeli had no right to argue as he
did that the Court consider the 1st Respondent affidavits. He argued that
when authority to represent is filed on behalf of a party, from an office of
Attorneys such as Mosotho Attorneys in casu, no other legal practitioner
who is not from the authorised office has a right to come and present
arguments or make submissions. He added therefore that Advocate
Mothibelis mandate terminated when the request for postponement was
withdrawn and not beyond that. He prayed to the Court not to consider
the submissions of Advocate Mothibeli, but to hear the matter in default
and that the rescission be granted.
8. In addition, Applicant argued that they have raised a point in limine in
their reply that the answer filed on behalf of 1st Respondent is out of time
and that it is not accompanied by an application for condonation. It was
added that in reply, it had been specifically pleaded in reply that
Applicant would on the date of hearing seek the exclusion of the answer.
It was argued that 1st Respondent having neither filed arguments nor the
application for condonation, the answer should not be considered and
that the matter be treated as if it has not been opposed.
9. On the rescission application, Applicant submitted that a reasonable
explanation had been given that on the date of hearing one Advocate
Mabula, who was seized with the matter, was due to sit for his final
examinations in Bloemfontein. This he had communicated with 1st
Page 250 of 265

Respondent counsel at least 14 days before the date of hearing by a letter,


wherein he had asked for the matter to be postponed. Proof that
Advocate Mabula was due to take an exam on the date of hearing and a
letter to 1st Respondent counsel have been annexed to the record in the
form of annexures 1-4.
10. Regarding the prospects of success, it was argued that 1st
Respondents contract of employment was terminated after he failed his
probation. It was claimed that 1st Respondent had credited the wrong
supplier with an amount of M17,000-00 and the correct supplier
demanded same from Applicant.
11. We wish to note that We agree with Applicant that the mandate given
to a specific office of attorneys does not extend to another unless the
previous mandate is withdrawn and a new one made in its place.
However, a legal practitioner can stand in for another only to relate a
message and not to argue or make submissions in the matter. As We
have already stated, Advocate Mothibeli is not from Mosotho Cambers,
who are the duly instructed office. Consequently, We exclude the
submissions made by advocate Mothibeli as they went beyond his
mandate to seek a postponement.
12. Regarding the late filing of an answer, We have noted that a point in
limine has been taken against the late filing of an answer with specific
intentions of Applicant against same. We agree that 1st Respondent
having failed to either file an application for condonation, when given the
opportunity to do so, and again having failed to file heads of argument in
reaction to the points raised and/or the matter as a whole, it is proper to
treat the matter as being unopposed. In view of this said above, We
exclude the answer filed on behalf of 1st Respondent.
13. On the rescission application, there are two major requirements for
consideration.
These are the explanation for the default and the
prospects of success. We wish to add that in law, while these elements
must be considered together, the weak or absence of prospects of success
may warrant the dismissal of an application for rescission no matter how
good the explanation for default is. Bearing in mind this principle, We
wish to state that We are satisfied with the explanation for the default.
14. However, on the second major element, We find that the Applicant has
no prospects of success on review. We say this because Applicant has
merely canvassed the prospects of success in the main hearing before the
DDPR, which is not the case before Us. The prospects of success must
relate the matter in respect of which the rescission is sought, which
matter must also be within the jurisdiction of the court granting the
rescission. Consequently, Applicant has not stated prospects of success
on review and We find that it has none. Without the prospects of
success, there is no reason to open the matter for a re-hearing as that
would amount to no more than a waste of time and an undue prejudice to
another.
Page 251 of 265

15. Our attitude finds support in the Case of Moshoeshoe v Seisa & others
CIV/T/596/2004, where in dealing with the requirements for a rescission
application, the Court made the following remark,
In this regard, Respondents Counsels correctly referred the court to
Jerome Ramoriting & Another vs Lesotho Bank-National Development Bank
(CIV/APN/136/87 (unreported) at page 6, where the court had the
following to say;
It is not sufficient if only one of this(sic) two requirements is met, for
obvious reasons a perty (sic) showing no prospects of success on the merits
will fail in an application for rescission of judgement no matter how
reasonable and convincing the explanation of his default. Moreover, a perty
(sic) which simply disregards the courts procedural rules with no
explanation cannot be permitted to have a judgement against him
rescinded merely because he had reasonable prospects of success on the
merits.
16. We find confidence in Our finding due to the fact Applicant is and will
not be prejudiced by same. We say this because in submission, there is
only one ground of review.
In terms of this ground Applicant
representative by the names of Advocate Thabo Makeka was excluded
from the proceedings on account of him being a legal practitioner. The
matter was then heard in default of Applicant on whose behalf he had
appeared. Thereafter, an application for rescission was filed wherein it
had been explained that Applicant had defaulted due to exclusion of
Advocate Thabo Makeka from the proceedings.
17. On review, it is argued that the learned Arbitrator erred in dismissing
the explanation given as it was reasonable. In Our view, this challenge is
placed on the decision to dismiss the rescission without highlighting any
procedural irregularity. The law is clear that mere unhappiness with the
decision is a ground for appeal, which this Court has no jurisdiction over.
For a review to succeed, an applicant party must demonstrate an
irregularity in the method of trial.
18. Our conclusion finds support in the authority of JDG Trading (Pty) Ltd
t/a Supreme Furnishers v M. Monoko & others LAC/REV/39/2004, where
the learned Judge Dr. Mosito K had the following to say,
Where the reason for wanting to have the judgment set aside is that the
court came to the wrong conclusion on the facts or the law, the appropriate
remedy is by way of appeal. Where, on the other hand, the real grievance
is against the method of the trial, it is proper to bring a case on review. An
appeal is thus in reality a re-evaluation of the record of proceedings in the
court a quo.
It is thus Our view that even if We were to determine the matter on the
basis of arguments on review, it would not succeed.

Page 252 of 265

AWARD
We therefore make an award as follows:
a) The rescission application is refused.
b) The judgment of this court dated 8th November 2012 is reinstated.
c) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 3rd DAY OF DECEMBER,
2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MR TEUOA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

ADV. RAFONEKE
NO APPEARANCE

Page 253 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/141/13
A0887/2013

IN THE MATTER BETWEEN


FORMOSA TEXTILE

APPLICANT

AND
LEBOHANG HEISI
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for the review of the arbitration award. Three grounds of review
having been raised. Only two being argued together. Applicant arguing that
Arbitrator was wrong to determine the matter without sworn evidence. Court
finding that facts agreed upon in the pre-arbitration minutes constituted
evidence. Court not finding error on the part of Arbitrator. Review being
dismissed and no order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0887/2013. Initially three grounds of review had been raised on behalf
of Applicant in the following.
5.1 No evidence was led in the proceedings in A887/13. The matter
proceeded only on submissions, which was highly irregular in statements
made were not sworn to and in some cases were hearsay and untrue.
5.2 It was therefore improper for the arbitrator to claim as she did in the
award that there was evidence before this tribunal.
5.3 The arbitrator considered the validity of a formal written warning which
was not challenged by the 2nd respondent and relied on the said warning
when making her decision that if the said warning was unprocedural then
the said dismissal was unfair, I submit that this was highly irregular.
2. On the date of hearing, Applicant proceeded only on the basis of grounds
5.1 and 5.2, which were argued together. Both parties were heard and
having heard them, Our judgment follows.
SUBMISSIONS AND ANALYSIS
3. Applicant argued that it is a legal requirement that evidence must be
sworn in if it is to be regarded as such. It was submitted that in casu, no
evidence was led but that rather that the learned Arbitrator relied on
statements contained in the pre-arbitration minutes, which were not
Page 254 of 265

sworn evidence, to make Her conclusion that the reinstatement of


Applicant was not practical.
4. It was argued that in terms of section 73 of the Labour Code Order 24 of
1992, the law requires that the learned Arbitrator look at circumstances
to determine if reinstatement is practical. It was submitted that the
circumstances could only be deduced from the evidence of parties and
that there having been no evidence led, the decision to award
reinstatement was contrary to section 73 and thus wrong. It was prayed
that the review be granted as prayed in the Notice of Motion.
5. In answer, 1st Respondent submitted that prior to the arbitration
proceedings, parties had prepared pre-arbitration conference minutes. In
terms of the minutes all facts surrounding the dismissal of 1st
Respondent were common cause and agreed upon by both parties. What
was left was for the parties to make submissions and for the learned
Arbitrator to make Her determination.
6. It was argued that the facts contained in the pre-arbitration conference
minutes were evidence which was not disputed. This being the case, it
was not necessary to have parties takes an oath and regurgitate the
contents of the pre-arbitration conference minutes, moreso when they
had both signed for them. It was denied that there was no evidence
before the learned Arbitrator, but that there was and that it did not need
to be sworn.
7. It is without doubt that there were pre-arbitration conference minutes in
respect of which the learned Arbitrator made Her conclusion. The issue
in whether these minutes constituted evidence that the learned Arbitrator
could rely on. Put different, the question is whether the minutes, signed
by both parties, carry the same weight as sworn evidence. This can be
best answered by looking into the purpose of a pre-arbitration conference.
8. The purpose of a pre-arbitration conference is two pronged. Firstly, it is
intended to aid parties to settle the matter and secondly, to set out facts
which are common cause and those which are in dispute. Regarding the
former, if a matter is settled at this stage, then that is the end. If not the
latter takes effect, in which case, evidence will only be led in respect of
matters that are in dispute. The basic idea behind the latter approach is
to shorten the process of trial (see section 22 of the Labour Code
(Directorate of Dispute Prevention and Resolution) Regulations 2001).
9. Essentially, matters which are detailed in the minutes as common cause
facts, carry the same weight as sworn evidence hence why sworn evidence
is only led in respect of disputed facts. Consequently in casu, the
admitted facts in the pre-arbitration conference minutes are evidence and
did not need to be first sworn. This being the case, the learned Arbitrator
did not err in proceeding to hear submissions in respect of evidence

Page 255 of 265

before Her, which in this case was the statements of parties as appear in
the pre-arbitration conference minutes.
AWARD
We therefore make an award in the following:
a) That the review application is refused.
b) The award in referral A0887/2013 remains in force.
c) The award is to be complied with within 30 days of issuance of the order.
d) No order as to costs.
THUS DONE AND DATED IN MASERU ON THE 3rd DAY OF
DECEMBER 2014
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR. KAO

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

ADV. RAFONEKE
ADV. KOTO

Page 256 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/35/2010
A0771/2009

IN THE MATTER BETWEEN


NALEDI LESALA

APPLICANT

AND
LESOTHO REVENUE AUTHORITY
THE DDPR
THE LEARNED ARBITRATOR NTENE

1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT

JUDGMENT
Application for the review of arbitrator award. five grounds being earlier
raised. Court finding that one ground constitutes a disguised appeal and
dismissing same. Applicant only proceeding on the basis of two and
abandoning the rest of the grounds. Court finding that Arbitrator failed to treat
evidence of a single witness with caution. Court further finding that Arbitrator
was wrong to rely on contents of an untendered document. Court granting the
review application and remitting the matter to the DDPR to be heard de novo.
No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitral award in referral
A0771/2009. Initially five grounds of review had been raised. On the
earlier date of hearing of this matter, it had been argued on behalf of the
1st Respondent that all the grounds raised were appeal disguised in
review. Having listened to the arguments of parties on the issue, We
issued a written ruling that only one of the grounds was appeal and
accordingly dismissed it.
2. On this day, out of the remaining review grounds, Applicant opted only to
proceed on the basis of two in the following:
The learned arbitrator erred and misdirected herself in failing to treat the
evidence of the single evidence of Ms Kose with caution more so when the
learned arbitrator finds as a fact that respondent is therefore relying in on
the single evidence of Kose to show that applicant was involved in the
dishonest conduct.
The learned arbitrator erred and misdirected herself in admitting the
evidence of Ms Kose that she observed applicants signature on a pro-forma
invoice which pro-forma invoice was not tendered in as evidence. It is
Page 257 of 265

submitted that the truth of the contents thereof are hearsay and then
inadmissible.
3. Both parties were given the opportunity to address Us on the remaining
grounds and having heard them, Our judgement follows.
SUBMISSION AND ANALYSIS
4. On the first review ground it was argued that the learned Arbitrator had
declared one Ms. Kose, witness for 1st Respondent, a single witness. That
notwithstanding, the learned Arbitrator relied on Ms. Kose evidence to
conclude that Applicant had signed the pro-forma invoice. This was said
to be particularly irregular in that the learned Arbitrator failed to treat the
said evidence with caution more so given that witness was not sure in
certain facts. It was added that during the witness evidence, she testified
that the signature of Applicant was on top of the document, but later
during cross examination changed to say it was on the bottom of the
document.
5. In answer, 1st Respondent submitted that Ms. Kose was not the single
witness as there were other witnesses namely one Dlamini and
Toanamatsie. It was submitted that it is this inaccurate to suggest that
Ms. Kose was the only witness on whose evidence the learned Arbitrator
had relied upon to make Her conclusion. It was further argued that
assuming that Ms. Kose was the only witness and that the learned
Arbitrator solely based her conclusion on Ms Koses evidence, the
evidence of a single witness in law sufficient to secure a conviction. It
was added that this is where that evidence is so clear and satisfactory in
every material respect. The court was referred to the authority of R. v
Mokuena 1932 OPD 79 at page 80.
6. It was also argued that the evidence of Ms. Kose was clear that Applicant
had signed on the pro-forma invoice. The Court was referred to page 22
of the record. In addition, it was argued that even in the disciplinary
hearing, Applicant did not deny signing the pro-forma invoice. It was
concluded that, as a result it was not necessary for the learned Arbitrator
to say that She cautioned Herself. It was said that it is enough that She
satisfied herself that Ms Kose evidence was sufficient and then make Her
conclusion.
7. Respondent does not refute the argument that the learned Arbitrator
declared Ms Kose a single witness in relation to the evidence relating to
the signature on the pro-forma invoice. In fact, We confirm that at page 4
of the arbitration award the learned Arbitrator made this conclusion.
This is recorded as follows:
Respondent is therefore relying on the single evidence of Ms Kose to
show....
8. We wish to confirm the rule, in relation to the evidence of a single
witness, that courts should generally not be ready to rely on the evidence
Page 258 of 265

of a single witness. However, as 1st Respondent has rightly put, there is


an exception to this rule. The exception was clearly laid out in the case of
R. v Mokoena (supra) to which We have been referred as thus,
Evidence of a single competent and credible witness is no doubt declared
to be sufficient for a conviction by ....., but in my opinion that .... should
only be relied on where the evidence of a single witness is clear and
satisfactory in every material respect.
9. According to Applicant, this requirement to the exception was not totally
met. We share similar sentiments with Applicant for the reason that
when the witness was asked about the signatures on the document in
issue, she gave contradictory evidence.
At some stage, she said
signatures were on top and later changed to say there were at the bottom.
In law, contradiction in evidence suggest fabrication and such evidence
cannot be relied upon. As a result, and in general, the learned Arbitrator
should not generally have relied on the single evidence of Kose to find
Applicant guilty of misconduct.
10. Having elected to do so, the learned Arbitrator ought to have treated
that evidence with caution. Considerations are thoughts unless expressly
spelled out. By this We simply mean that for Us and all interested parties
to know that the learned Arbitrator had treated the evidence of Ms Kose
with caution, She ought to have expressly said so in Her award.
Otherwise, it is difficult, if not impossible, to determine if She did or did
not. Failure to expressly say so leads to the conclusion that She did not.
We therefore find that having declared Ms Kose a single witness, the
learned Arbitrator failed to treat her evidence with caution.
11. On the second review ground, it was argued that the learned
Arbitrator erred by admitting the evidence of Ms. Kose that she observed
the Applicants signature on pro-forma incoice which was never tendered
as evidence. It was argued that the truth of the contents in the said
invoice and the observation of Ms Kose on the contents were hearsay and
therefore inadmissible.
12. It was added that exhibit 3, which was tendered by Respondent, was a
sample of the invoice and not the actual invoice. Further that no
explanation was given when the original document containing the
signature could not be tendered. It was argued that it was thus irregular
for the learned Arbitrator to have admitted and relied on such evidence.
The Court was referred to the case of Seisa Nqojane v National University
of Lesotho LAC (1995-1999) 369 373, in support.
13. In answer, 1st Respondent argued that Applicant neither denies that
he signed on the pro-forma invoice nor does he challenge the credibility of
the evidence of Ms. Kose. It was submitted that what is not challenged in
law is taken to have been admitted.
It was added that, that
notwithstanding, the DDPR is not a court of law and is as such not
bound by the strict rules of procedure. In reply, Applicant rejected the
Page 259 of 265

suggestion that he never denied signing on the pro-forma invoice. The


Court was referred to pages 37 55 of the record in support and page 4 of
the award.
14. It is without doubt that the pro-forma invoice that Applicant is alleged
to have signed was not tendered as part of the evidence. Further, that no
explanation was given to the learned Arbitrator why the document was
not and could not be tendered. The issue is whether it was necessary to
submit a copy of the actual pro-forma invoice or not.
15. We agree with 1st Respondent that what is admitted cannot amount to
hearsay. However, in casu the record reflects that Applicant denied
signing the pro-forma invoice. In fact this evidence, which appears from
pages 37 55, and has been summarised at page 4 of the arbitration
award as thus:
His denial of his involvement before this tribunal is an afterthought.
16. Clearly, Applicant denied signing the pro-forma invoice. This being the
case it was necessary that 1st Respondent bring in the document in issue
for the learned Arbitrator to make it her assessment.
This was
st
particularly important because the case of 1 Respondent for dishonesty
was based on this document. Having failed to tender same, all challenged
evidence relating to the documents becomes hearsay and is therefore
inadmissible.
17. We wish to note that in certain instances, the Court may consider
evidence relating to documents not tendered before it. However, there
has to be an explanation for unavailability of the documents. In addition
thereto, there has to be further evidence that demonstrates the
truthfulness of the contents alleged to have been on the unavailable
document. We wish to further note that while the DDPR is not a court of
law, it is nonetheless bound by at least the basic principles of procedure.
By this We mean that parties must lead evidence both in support and/or
in defence of their case.

Page 260 of 265

AWARD
We therefore make an award as follows:
a) That the review application is granted,
b) The matter is remitted to the DDPR to be heard de novo before a different
arbitrator,
c) That there is no order as to costs, and
d) That the order be complied with within 30 days of issuance herewith.
THUS DONE AND DATED AT MASERU ON THIS 3rd DAY OF DECEMBER,
2014.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOSEHLE
MR MATELA

I CONCUR
I CONCUR

FOR APPLICANT:
FOR RESPONDENT:

ADV. TLAPANA
ADV. MANYOKOLE

Page 261 of 265

IN THE LABOUR COURT OF LESOTHO


HELD AT MASERU

LC/REV/59/13
A0854/2012

IN THE MATTER BETWEEN


MATANKI TOEUNYANE

APPLICANT

AND
HONG DA LESOTHO (PTY) LTD
DDPR

1st RESPONDENT
2nd RESPONDENT

JUDGMENT
Application for review of arbitration award. Two grounds of review having
been raised. 1st Respondent raising a point in limine that the application does
not comply with the Rules of this Court. Court finding merit in the point in
limine raised and upholding it. Court dismissing the review application.
Having heard the matter holistically, Court further finding that the decision to
dismiss application on point in limine does not prejudice Applicant Court
finding that even review in the merits was bound to fail. No order as to costs
being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0854/12. The brief background of the matter is that Applicant was
dismissed from employment by 1st Respondent. Dissatisfied with the
award, she referred a dispute to the 2nd Respondent. On the 26th October
2012, an award was issued in her favour wherein, 1st Respondent was
ordered to pay her an amount equal to four months wages as
compensation.
2. Dissatisfied with the award, Applicant initiated these proceedings,
accompanied by an application for condonation. She has raised only two
grounds of review on the basis of which she sought the review and setting
aside of the award in issue. Thereafter, 1st Respondent filed an answer
accompanied by an application for condonation for its late filing.
3. At the commencement of the proceedings We intimated to parties that We
were of the view that a condonation for the late filing of an answer was
not necessary. We based Our view on the fact that Applicant had not
served 1st Respondent with a notice to file an answer, which notice is
made in terms of Rule 16(6) of the Rules of this Court. Both parties
conceded to Our view and We ruled that condonation for the late filing of
an answer was not necessary.
Page 262 of 265

4. In its answer, 1st Respondent had raised a point in limine to the effect
that there had been non-compliance with Rule 16(3)(c) of the Labour
Appeal Court Rules of 2002, which are now the Rules of this Court on
reviews. We invited both parties to address Us on the point in limine and
then proceeded to hear the merits of the matter and the condonation for
late filing of the review, with the condition that We would only consider
the condonation and merits if We dismissed the point in limine. Our
judgment therefore follows.
SUBMISSIONS AND ANALYSIS POINT IN LIMINE
5. 1st Respondent argued that the review application is not supported by an
affidavit contrary to Rule 16(3)(c) of the Rules of this Court. It added that
the Rules of this Court are clear that there has to be an affidavit that
states the review grounds. It was submitted that the document styled
grounds of review is not known to this Court or even to 1st Respondent. It
was prayed that the Court find that there is no Founding Affidavit to the
review application and dismiss the application.
6. Applicant answered that she has complied with Rule 16(3)(c), in that she
has attached a Founding Affidavit to the Notice of Motion. She argued
that the Founding Affidavit details the review grounds. Further that
regarding the heading on the document headed Grounds of Review, it is
an annexure to the founding affidavit and thus part of it. Further that
she has also made reference to it at paragraph 4.4 of her Notice of
Motion. It was argued that this shows that its part of her affidavit and
consequently of her Notice of Motion.
7. The provisions of Rule 16(3) of the Rules of this Court are clear. In terms
of that Rule:
(3) The notice of motion shall(a)
..
(b)
..
(c)
Be supported by an affidavit setting out the factual and legal
grounds upon which the applicant relies to have the decision or
proceedings corrected or set aside.
8. An affidavit is sworn statement of allegations and evidence of a party,
against which they rely for the relief sought. Therefore it is material that
for a document to constitute an affidavit must among others contain
sworn statements and evidence. In casu, the document filed, and alleged
to contain both the legal and factual grounds of review is not sworn and
thus lacks the material element of an affidavit. The document claimed to
be an affidavit has been annexed to the Founding Affidavit to the Notice of
Motion and cannot therefore be elevated to the status of an affidavit when
it is merely an annexure. We are therefore of the view, and in agreement
with 1st Respondent that Applicant has failed to comply with Rule 16(3)(c)
of the Rules of this Court and that her application stands to be dismissed.
There is basically no application for review before Us and there is
accordingly none to consider.
Page 263 of 265

9. We find confidence in Our decision mainly from the fact that even if We
were to consider the merits of the review application, assuming We had
also granted the condonation for the late filing of same, the review
application would not sustain. We say this because while Applicant
claims that the learned Arbitrator considered her stubbornness to
conclude that reinstatement was not practical, which consideration was
according to her irrelevant, that is not accurate.
10. As 1st Respondent has argued in answer, We have found that the
decision to conclude that reinstatement was not practical was based on
the attitude of the 1st Respondent that it no longer wished to work with
Applicant. This is reflected at para 19 of the arbitration award as follows:
The respondent showed no intention of ever working with the applicant
and therefore I cannot order that applicant be reinstated. Therefore she
will be awarded compensation but this amount must be equitable and fair
in the circumstances.
11. On the second review ground, Applicant would equally not succeed as
We find the ground raised to be an appeal and not review. It challenges
specifically the decision of the learned Arbitrator to award only four
months compensation when She had found the dismissal of Applicant to
be both substantively and procedurally unfair. In Our view, as an
authorities show, where a litigant challenges the allegedly incorrect
decision on the facts or law, that is an appeal, whereas where the
challenge is on the procedure for reaching the decision, it is a review.
(See Teaching Service Commission & Others v Learned Judge of the Labour
Appeal Court and others C of A (CIV) 21/2007).
12. We are therefore of the view that Our finding on the point in limine
does not in any way prejudice Applicant given the conclusion would have
been bound to make, had We dismissed the point in limine and decided
the merits.

Page 264 of 265

AWARD
We therefore make an award that:
a) The matter is dismissed for non-compliance with the Rules of this Court;
b) No order as to costs is made;
c) The award of the DDPR remains in force; and
d) The award must be complied with within 30 days of issuance herewith.
THUS DONE AND DATED IN MASERU ON THIS 3rd DAY OF DECEMBER
2014
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR. KAO

I CONCUR
I CONCUR

FOR APPLICANT:
FOR 1st RESPONDENT:

ADV. LEBAKENG
ADV. LEPHOTO

Page 265 of 265