LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD IN MASERU C of A (CIV)/72/2022 LAC/A/05/2020 & LAC/CIV/APN/04/21
In the matter between –
SENTS’O RAMOCHELA APPELLANT
AND
VODACOM LESOTHO (PTY) LTD 1ST RESPONDENT
DDPR ARBITRATOR KALAKE 2ND RESPONDENT
CORAM: DAMASEB AJA
CHINHENGO AJA
VAN DER WESTHUIZEN AJA
HEARD: 7 APRIL 2025
DELIVERED: 2 MAY 2022
FLYNOTE
Appeal – Labour law – Application for leave to appeal – Labour Appeal Court having granted appellant full relief sought – Whether remittal to DDPR justified – No reasonable
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prospects of success shown – Application dismissed with costs.
The appellant, a legally qualified former intern of Vodacom Lesotho (Pty) Ltd, sought leave to appeal to the Court of Appeal from a judgment of the Labour Appeal Court which had upheld his appeal against the Labour Court and remitted his unfair dismissal claim to the Directorate of Dispute Prevention and Resolution (DDPR) for re-hearing before a different arbitrator. The appellant had initially prayed for such remittal but later sought to challenge it, contending it was inconsistent with the evidence and that he was entitled to a final determination of unfair dismissal. He also raised technical objections concerning the authority of the respondent's legal representation under the Labour Code. The Court observed that the Labour Appeal Court had granted the very relief the appellant had previously sought, and that no cogent basis had been established to disturb the exercise of its discretion to remit the matter. The Court emphasised that shifting of pleadings’ boundaries post-judgment was impermissible and that no reasonable prospects of success on appeal had been shown.
Held, application for leave to appeal dismissed with costs.
JUDGMENT
J VAN DER WESTHUIZEN, AJA
Introduction
[1] In this and other Courts one sometimes wonders why appellants appeal. In fact, it is not always clear why people litigate at all. Human beings are complex creatures, though. Litigation may be driven by a range of motivating factors, from revenge to money, or indeed a thirst for justice. The question why some people appear to love courtrooms is one for another day. Important to
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state is that every matter must be taken seriously and duly given the complete and thorough attention of the court.
[2] This is an application for leave to appeal to this Court against a decision of the Labour Appeal Court. The applicant, Mr Sents’o Ramochela, a qualified lawyer, represented himself.
Factual background
[3] The applicant worked for the first respondent as a graduate trainee, after they had entered into an agreement in June 2015. He was a paid intern, under Vodacom’s social responsibility programme. The contract was for six months and expired on 30 December 2015. By a letter dated 3 December 2015 his internship was extended to 31 January 2016. At the end of the extended term, the applicant was informed that he had completed his internship and that his relationship with the first respondent had ended.
Arbitration
[4] Claiming that he had been dismissed unfairly, the applicant referred the matter to the second respondent, the Directorate of Dispute Prevention and Resolution (DDPR), for arbitration. The referral was dismissed.
Labour Court
[5] The applicant approached the Labour Court, applying for an order that –
“1. the … (DDPR’s) decision … shall be reviewed, corrected and set aside;
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2. this matter be remitted to the DDPR to proceed before another Arbitrator;
3. the 2nd Respondent Arbitrator be ordered to produce the record of proceedings … before the above Honourable Court within fourteen … days of receipt thereof;
4. the Respondents be ordered to pay costs only in the event of their opposition …”.
[6] On 24 June 2020 the Labour Court dismissed the application. No costs were ordered.
Labour Appeal Court
[7] The applicant appealed to the Labour Appeal Court. In his grounds of appeal he stated that the Labour Court had “ignored in entirety to decide the matter in question before Court and thereby appeared to reformulate the issue which fell to be decided, namely whether or not there existed an employment relationship at the Appellant alleges to have been dismissed”.
[8] He furthermore submitted that the Labour Court erroneously “reaffirmed the arbitrator’s decision to cherry pick and therefore zero in on a provision in an agreement whose admissibility was subject of objection by the Appellant and solely premise his decision thereupon being so very much so to the total disregard of all other relevant evidence and facts adduced in relation of the issue in question. In doing so he disregarded he disregarded the following facts which were put before him:” (sic).
[9] He then listed in ten numbered paragraphs the facts that – in his view - were relevant. In his third and final ground of appeal he
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argued that the Labour Court “grossly neglected to apply the law to real question in issue”).
[10] On 22 March 2021 Moahloli J in the Labour Appeal Court ordered:
“1. The Appeal is upheld with costs.
2. The matter is remitted to the DDPR to be considered de novo by a different arbitrator.”
This Court
[11] Despite the fact that the Labour Appeal Court appeared to have decided in Mr Ramochela’s favour, he wished to appeal to this Court against the decision of the Labour Appeal Court. The Notice of Appeal is dated 12 October 2022.
[12] In his grounds of appeal, dated 10 October 2022, he states, inter alia, that the Labour Appeal Court erred in holding that the merits of the claim for unfair dismissal had never been canvassed or dealt with. It is also submitted that the Labour Appeal Court entirely ignored the record of the proceedings before the DDPR. He furthermore submits that the Labour Appeal Court “erred on the facts in holding that at the relevant time the Appellant was a student”.
[13] In the fourth ground of appeal it is submitted that the “court a quo erred in holding that the matter be remitted back to the DDPR”. According to the fifth ground, the Labour Appeal Court “erred by not deciding that the Labour Court should have reviewed and set aside the decision of the DDPR and consequently by not deciding that the Appellant was unfairly dismissed”.
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[14] The remarkable aspect of the above is that the Labour Appeal Court indeed upheld the appellant’s appeal against the Labour Court. It indeed ordered what the appellant had asked the Labour Court to order.
[15] Under Rule 4 of the Rules of this Court leave to appeal is required. Realising this, Mr Ramochela applied. Consequently, he ended up applying to this Court for leave to appeal against the Labour Appeal Court’s decisions under case numbers LAC/A/5/20 and LAC/CIV/APN/04/21.
[16] In the Notice of Motion five points are raised. These include the allegation that Vodacom as the first respondent had never been properly authorised in terms of section 228 of the Labour Code, read with the Rules of the Labour Appeal Court, Labour Court and DDPR; as well as – again – that the Labour Appeal Court ultimately erred in remitting the case back to the DDPR to be heard de novo. In the founding affidavit supporting the Notice of Motion for leave to appeal, consisting of nine pages, a wide range of issues are addressed. The affidavit concludes (in paragraph 16 thereof) as follows:
“The Applicant/Appellant’s contention is that the actual resolution/documented decision duly signed by those constituting the governing body of the 1st Respondent, being the entire board of directors or the majority thereof and not a declaration merely signed by its chairman, nor a purported Authority to Represent signed by the Managing Director, nor even an averment in an affidavit by anyone holding themselves out as representing the 1st Respondent shall suffice as proper authority to represent as envisaged under the
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Act. It is also specifically on this point that the Appellant/Applicant wishes to appeal.”
[17] The meaning of the above paragraph is not entirely clear. The appellant is aggrieved though by his failure to obtain default judgment against the first respondent, being not legally present before court. In my respectful view this point does not show reasonable prospects of success on appeal.
[18] In his written and oral arguments the applicant devoted considerable attention to the allegation that the Labour Appeal Court erroneously regarded him as a student, whereas he was a trainee. The relevance of this distinction, if any, is also unclear. It seems to make little or no difference to the core issue at stake in this application.
[19] The puzzling question at the heart of this application is why Mr Ramochela wishes to appeal against the judgment of the Labour Appeal Court. In everyday language, he “won his case”. The Labour Appeal Court upheld his appeal against the Labour Court’s judgment. It gave him exactly the relief he asked for in the Labour Court, which that Court refused.
[20] In (paragraph 5.1 of) the above-mentioned founding affidavit the applicant attempts to explain why he wishes to appeal against the Labour Appeal Court’s remittal of the matter to the DDPR, after having asked for it in the Labour Court:”(T)he Court a quo committed several omissions the net effect of which is that a significant aspect of this decision was so inconsistent and perverse to the evidence that no reasonable Court could have arrived at such
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a decision. This aspect being to remit the matter to the DDPR to be heard de novo.”
[21] The legal significance of alleged “perversity to the evidence” has, to my mind, not been established in statutory or case law. It is understandable that the applicant wanted the Labour Appeal Court to finalise his complaint in his favour. The fact remains though that in the Labour Court he asked for remittal.
[22] In (paragraph 5.2) of the affidavit he admits this:
”I wish to bring this Honourable Court into confidence that indeed a prayer for the remittal back to the DDPR was indeed included in my Notice of Application before the Labour Court.”
[23] Then, based on having brought this Court into his confidence, he explains further: “However, that application was filed before the record of proceedings was dispatched from the DDPR, hence upon being furnished with such it became clear that such an order is appropriate in the circumstances of this case. The record proceedings, which will be put before this Honourable Court, reveals that all the claims I made in my referral, attached here as Annexure 1, were scrutinized by both parties at length and that on a proper application of the law remittal of this matter back to the DDPR is unnecessary.”
[24] The contents of this paragraph are fully based on the late availability of the record of the DDPR proceedings. The date is not provided in the mentioning of the record. Whether this aspect is related to the Labour Appeal Court’s alleged “several omissions” resulting in its decision being “inconsistent and perverse” is not entirely clear.
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[25] In summary, Mr Ramochela was unhappy with the termination of his internship with Vodacom. He referred his concerns to the DDPR. The referral was dismissed. He had a right to approach the Labour Court, as the appropriate forum, with a review application. This he did. In straightforward prayers, he asked that the Court set aside the DDPR’s decision and remit his case to the DDPR, to be heard de novo before another arbitrator. His application was dismissed, without a cost order against him.
[26] Against that very decision he appealed against to the Labour Appeal Court. From [7] to [9] above it appears that he did not raise the issue of remittance. He was fully successful. The Labour Appeal Court gave him the relief he had been seeking since the outcome of the DDPR proceedings.
[27] Yet, his total success was not sufficient. Because he thought that he could have gained more, he now wants more than he asked for. The proverbial “shifting of the goalposts” is as inappropriate during legal proceedings as it is during a soccer or rugby match. Pleadings are supposed to establish a claim before a court and lay down its boundaries. This his Notice of Motion before the Labour Court did. The Labour Appeal Court took it from there.
[28] In any event, it is trite that a review court has a discretion whether or not to refer a matter back to the authority that made the reviewable decision, for proper consideration. (As authority, counsel for the first respondent referred in his heads of argument to page 909 of the 4th edition of Herbstein and Van Winsen’s The Civil Procedure of the Supreme Court of South Africa,) Remittal is warranted especially when there is a need to adduce further
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evidence. On behalf of Vodacom it is submitted that this is the case in this instance.
[29] In view of the review court’s discretion, Mr Ramochela’s above-mentioned assertion that remittal to the DDPR was “unnecessary” (in [23] above) is not determinative of the issue at all.
[30] Vodacom’s counsel furthermore argued that remittal would not prejudice Mr Ramochela. He is available to give evidence and – as repeatedly stated above – requested remittal. By no means has he reached the end of the road.
[31] Written reasons for the order of the Labour Appeal Court were not available to this Court. On the papers before us, as well as on the applicant’s submissions, there is no reason for this Court to interfere with the decision of the Labour Appeal Court on the remittal.
[32] The age-old principle that one may not be a judge in your own case is worth mentioning. One reason underlying it is, of course, fairness. Another is that any normal human being’s rationality may be affected by one’s subjective personal perceptions, needs and emotions. This also applies to lawyers’ handling of their own case. Mr Ramochela’s wish to see his case resolved in his favour without further ado is understandable. The lengthy submissions and robust statements in his pleadings and written argument seem to result from personal emotions, perhaps including anger.
[32] For example, I have never experienced either a litigant, or a legal representative, accusing a superior court – or, for that matter, any court – of being “perverse”. The mere concept evokes images
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of, for example, addiction to pornography, masochism, or Brussel sprouts.
Conclusion
[33] For leave to appeal to be granted, Mr Ramochela’s intended appeal against the Labour Appeal Court’s judgment must bear reasonable prospects of success. Such prospects have not been established. The application for leave cannot succeed.
Costs
[34] In the Labour Appeal Court, costs followed the result. The appeal against the judgment of the Labour Court was upheld, with costs. There is no reason why the same should not apply here.
Order
[35] In view of the above –
the application for leave to appeal is dismissed with costs.
___________________________
J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL
I agree
________________________
PT DAMASEB
ACTING JUSTICE OF APPEAL
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I agree:
_________________________
M CHINHENGO
ACTING JUDGE OF APPEAL
FOR THE APPELLANT: IN PERSON
FOR THE 1ST RESPONDENT: ADV S PHAFANE