Thabang Jack & 3 Others V Lesotho Revenue Authority & 2 Others (CIV/APN/0105/2022) [2023] LSHC 208 (10 November 2023)

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                                CIV/APN/0105/2022

 

 

In the matter between

THABANG JACK                                                            1^ST APPLICANT

NTELLANG MOTSAMAI                                                2^ND APPLICANT

MATAU MAFA                                                               3^RD APPLICANT

TŠEPO RAMOKONE                                                      4^TH APPLICANT

AND

                                                           

LESOTHO REVENUE AUTHORITY                               1^ST DEFENDANT

TEBOHO MOSITO                                                         2^ND DEFENDANT

QEEKA CHOPHO                                                          3^RD DEFENDANT

 

 

Neutral Citation: Thabang Jack and three others v Lesotho Revenue Authority and two others [2023] LSHC 208 CIV (10^th  November 2023)

 

CORAM                :         HLAELE J.

HEARD                 :         26^TH SEPTEMBER 2023

DELIVERED               :              10^TH NOVEMBER 2023

 

SUMMARY: Jurisdiction of the court challenged in that the matter falls within section 38A of the Labour Code (amendment) Order. The court finds that it has jurisdiction.

 

ANNOTATIONS:

CITED CASES:

1. Director of Public Prosecutions V Ramoepana C of A CRI/49/2020
2. Vice Chancellor of NUL v Lana LAC (2000-2004) 527 at 532
3. Lesotho Revenue Authority V Dichaba C of A (CIV)21 of 2018
4. Minister of Trade and Industry v Seleke
5. Peete Molapo and 16 Others v The Government of Lesotho and 6 others C of A (CIV) 20/2022
6. CGM Industrial (Pty) Limited V Lesotho Clothing and Allied Workers Union & Others C OF A (CIV) 10/99
7. Mbele Hoohlo V Lesotho Electricity Company C OF A (CIV) NO: 9/2020
8. Tsepo Mokotjo v Miles Kennedy, Chairman of the Board [of Mothae Diamonds (Pty) Ltd] (C of A (CIV) 19/2020) [2021] LSCA 10 (14 May 2021)
9. Motaung V NUL CIV/APN/182/06.
10. Khabo v Lesotho National Development Corporation (CIV/APN 64 of

13 [2013] LSHC 97 (8 July 2013)

11. National University of Lesotho Thabane (C of A (CIV) 3 of 2008) [2008]

     LSCA 26(17 October 2008 page 17paragraph24

12. Motlatsi Thabane v National University of Lesotho
13. The Government of the Kingdom of Lesotho v Matela (CIV/APN 85; C

Of A (CIV) 2020 LSCA 48 (30 October 2020)

14. Revenue Services of Lesotho v Baile Dube and 7 others LAC/CIV/

A/15/2023).

15. Mokhotho v The Learned Magistrate and 4 Others. C of A (CRI)/10/

2008.

16. Joy to the World v Malefane C of A (CIV) 9 2016

 

 

STATUES

1. Labour Code (amendment) Act 2000
2. Lesotho Revenue Authority Act No. 14 of 2001

 

 

 

 

 

JUDGMENT

 

HLAELE J

[1] RULING OF POINTS IN LIMINE

1.1 This is a case in which the applicants have sought a review against a decision not to confirm them to certain positions. More will be said about this later in the judgement. Suffice to say that the applicants drafted their petitions I the following manner:

1. The 1^st Respondent shall not be ordered and directed to dispatch the record or minutes that give birth to a decision not to automatically confirm the Applicants in the managerial positions they had acted (if any) to the Registrar of this High Court and Applicant’s Attorney within Fourteen (14) days hereof;
2. An order reviewing, correcting and setting the 1^st Respondent decision not to automatically confirm the Applicants in the managerial positions they have acted as irregular and wrongful thus null and void ab initio and of no force and effect;
3. An order directing the 1^st Respondent comply with the terms of its Administration Manual for Non-Contract Staff and confirm the Applicants in managerial positions they have acted;
4. Alternative to prayer 3 above, an order directing the 1^st Respondent to pay the Applicants compensation in an amount of Three Millions, Five Hundred and Twenty Four Thousand, Nine Hundred and Thirty Six Maloti and Twenty Eight Cent (M3,524,934,28) in terms of calculation per annexure ML7 herein;
5. An order for Costs in the event of opposition;
6. Granting Applicant such further and or alternative relief.

1.2 In their response, the respondents have in turn raised preliminary points which have to be determined before the courts determine the main merits of the case. I will deal with each point as it was raised individually.

1.3 I must state that the court decided to approach this application piecemeal as opposed to holistically so much so that the outcome or the ruling of the court will determine the way forward.

The points taken are

1. Jurisdiction
2. Inordinate delay
3. Res judicata

1.4 I commence with jurisdiction. If the courts finds that it has no jurisdiction to deal with this matter, then this lays the matter to rest, meaning the court will not delve into the other pleaded points.

[2] FACTS OF THE CASE

2.1 A brief outline of the facts of this case which are not disputed are the following. The Applicants are all employees of the Respondent in different departments. Only the third Applicant has since ceased being one.  On different occasions and in their various different departments, they were appointed to act in managerial positions. It is common cause that they acted in these managerial positions for a period exceeding six (6) months. Whether this was by consent or not, and the consequences thereof, is not the subject matter for the determination of this court at this stage. At the hub of the current ruling is whether this court has jurisdiction to determine the final outcome in relation to the dispute the parties have brought before it.

[3] ISSUES FOR DETERMINATION

3.1 The issues for this court to determine at this stage are as appears in paragraph…above.

[4] JURISDICTION OF THE COURT TO DETERMINE THE OUTCOME OF THE CASE

4.1 The jurisdiction of the court is the power of a court to determine the outcome of a case. Once a court lacks jurisdiction it cannot entertain a matter. [1] In the case of Director of Public Prosecutions v Ramoepana[2] where the competence of a court to hear and determine a dispute is challenged, the challenge must first be addressed and disposed of.  I have therefore adopted this approach. This was also stated in the case of Motlatsi Thabane v NUL that once the jurisdiction of a court is ousted it ceases to have power to determine any other issue raised before it. 

4.2 The respondents structured their point as follows:

1. The Honourable Court does not have power to entertain this matter as the present matter is justiciable in the specialized tribunals or courts namely of Directorate of Dispute Resolution, alternatively the Labour Court and Labour Appeal Court. [3]

4.3 To motivate his point, Advocate Mofilikoane during the proceedings, submitted that what the Applicants have claimed in the present application falls within the ambit of Section 68 of the Labour code (amendment) Act 2000, in that the claim of the Applicants is a dispute of right as defined in the provisions of the quoted section. He relied on the Section 226 which reads;

226 Dispute of right

1.  The Labour Court has the exclusive jurisdiction to resolve the following disputes:

1. Subject to subsection (2), the application or interpretation of any provision of the Labour Code or any other Labour law;
2. An unfair Labour practice.
3. An unfair dismissal if the reason for the dismissal is—

1. For participation in a strike
2. As a consequence of a lockout, or
3. Related to the operational requirement of the employer.

2. The following disputes of right shall be resolved by arbitration-

1. A dispute referred by agreement
2. A dispute concerning the application or interpretation of

1. A collective agreement;
2. a breach of a contract of employment
3. a wages order contemplated in section 51;

3. a dispute concerning the underpayment of any monies due under the provisions of the Act;
4. an unfair dismissal for any reason other than a reason referred to in subsection (1)(c).

4.4 From the above cited statutes, the argument continues that this case falls squarely within the jurisdiction of the specialized courts and not the High Court exercising its original or inherent jurisdiction.  The special Courts he said, are either the Labour Court or the Labour Appel Court.

4.5 His argument was also based on section 38A (1) of the Order to provide that the Labour Appeal Court has the power to review administrative decisions.

4.6 To seal his argument, he relied on the dictum in the case of Vice Chancellor of NUL v Lana.[4] He cited the following quotation

In my view the legislation referred to above clearly shows that the Labour Court had exclusive jurisdiction in the present case to resolve the dispute as to whether the Respondent was dismissed (as defined in section68(b)), in this case (as to whether the first respondent has breached its policy or not) and whether the reason for his dismissal was based on the operational requirements” of the second appellants as required by section66(1) for the fair dismissal.

4.7 He relied also on the case of Lesotho Revenue Authority v Dichaba[5] he relied on the following quotation

It has to be borne in mind that the Labour Court and Labour Appeal Court are specialist courts in Labour matters. Section 8 … Act provides for the jurisdiction of the Labour Court in respect of not only labor and trade disputes, but, also, any other written law. the purpose of this provision is to extend the jurisdiction of the Labour Court to disputes which arise from employment and labour relations such as suspension. The power of the labour court is essential to its role as a specialist court that is charged with the responsibility to develop a coherent and evolving employment and labour relations jurisprudence. The Labour court and Labour Appeal Court were designed as specialists that would be steeped in workplace issues and be best able to deal with complaints relating to labour practices.

4.8 To crown his argument his argument, he provided that this case revolved around internal policies, information notes, internal manuals which he said constitute the terms and conditions of the applicant’s employment contract as opposed to administrative action.

[5] APPLICANTS REPLY TO THE COURT’S LACK OF JURISDICTION.

5.1 On the flip opposite end of the coin, the Applicants were of the view that this court has jurisdiction to entertain this matter. Their grounds for this submission were premised on the arguments discussed below.  Advocate Masoeu during the hearing of this case made the following case;

5.2 He premised his argument on the fact that the case of the applicants was solely based on requesting the Respondents to comply with what is termed the ‘Administration Manual for Non-Contract Staff.’ He submitted that this manual does not from part of the employment contract of the Applicants. He therefore argued that the Applicants were in this case challenging an administrative action by a public officer and not a contractual relationship between them and the Respondents. In essence he was arguing that if that were indeed challenging a contractual relationship, the matter would correctly fall under labour law as was argued by the Respondents.

5.3 He continued to state that the application before court, is a review challenging the decision not to automatically confirm the Applicants into the positions they had acted in for the period prescribed in the manual. Advocate Masoeu directed the court to paragraph 8 of the founding affidavit in totality to argue the case of the Applicant’s is based on principles of administrative law namely, legitimate expectation, natural justice, and principles of legality.

 

5.4 The nail to which he pinned his mast confirm the jurisdiction of the court was the case of Minister of Trade and Industry v Seleke[6] and cited the following quotations.

[19] Cause of action was defined by Lord Esther, MR in to be “every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgement of the Court. It does not comprise every piece of evidence to be proved.’’ As Gardiner, JP once (sic)[a] cause of action accrues, when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.’’

[20] It follows therefore that, there are two components to a cause of action in law. First, there must be a set of facts sufficient to justify suing. The second component is the legal theory … upon which a party brings a suit.  Thus, to pursue a cause of action, pleads or alleged facts in the pleading that initiates a lawsuit…. A cause of action generally encompasses both the legal theory…. And the remedy… often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action.

5.5 The Applicants directed the court to the argument that jurisdiction is founded on the course of action. Meaning that the court should read how the case is founded and the prayers sought. In the case of Peete Molapo and 16 Others v The Government of Lesotho and 6 others[7]

 

[6] ANALYSIS

6.1 The erstwhile predictability created by cases such as Nala above and CGM Industrial (Pty) Limited Vs Lesotho Clothing and Allied Workers Union & Others[8], in as far as demarcating labour matters from ordinary litigation in relation to this court’s jurisdiction was shaken by case of The Ministry of Trade and Industry and others v Mohato Seleke.

6.2 This predictability was expressed in cases such as Mbele Hoohlo Vs Lesotho Electricity Company[9],  where the Court of Appeal was crystal clear that;

I see no reason to overrule the long line of cases in which this court has held that the High Court has no jurisdiction even under s 6 of the High Court Act to entertain labour disputes”.[10]

6.3 Other such cases that reaffirmed the position in Lana[11] are Tsepo Mokotjo v Miles Kennedy, Chairman of the Board [of Mothae Diamonds (Pty) Ltd][12], Motaung V NUL[13], Khabo v Lesotho National Development Corporation .[14]

 

6.4 In the case of Khabo v LNDC above, counsel for the applicant had sought to argue that the cause of action she had brought before court was strictly within the confines of Rule 50 of the High court Rules, therefore as such the court should determine their case in terms of the cause of action and not the subject- matter. The court captured her argument as follows;

 

Applicant’s counsel reacting to the points raised in limine primarily founded her response upon Rule 50(1) of the rules of this court. The rule in paraphrased terms provides for the reviewing machinery in which the High Court may review the proceedings from the subordinate courts and administrative tribunals which have the authority to exercise quasi-judicial powers. The impression she gave was that the Applicant has basically approached the court through that rule.

 

6.5 Despite this submission, in the final analysis, this is what the court concluded;

       

In the final analysis, the court resolutely classifies the Applicant’s case to fall within the Labour Law province, finds that it is governed by the Labour Code and, therefore, lies within the exclusive jurisdiction of the Labour Court. It is, for emphasis’s sake, reiterated that the finding is attributable to the fact that the dispute is rooted in the employer and employee contractual relationship; the impugned disciplinary proceedings are sequel to the work performance-based charges preferred by the Respondent against the Applicant.

 

6.6 From Makaja J’s perspicuous analysis in the Khabo case, it is apparent that the mere filing of an application in terms of Rule 50 does not automatically place what is strictly a labour matter in the purview of the jurisdiction of this court. There was no reference to the Labour Appeal Court and it’s provision on reviews. The court only made reference to the Labour court and its lack of jurisdiction to hear reviews.

6.7 The ruling in Khabo directs this court not to be blindsided by an application brought in terms of Rule 50.

6.8 In my view, the case of Peete Molapo and 16 Others V Government of The Kingdom of Lesotho[15] clarified the position of the courts in relation to the proposition that the pleadings, not the substantive merits of a case, determine jurisdiction. The court stated that:

The High Court correctly stated that specialist courts created by the legislature for the specific purpose of dealing with stated specialized areas of law must be utilized. However, the original inherent jurisdiction of the High Court must not be forgotten. It cannot easily be ousted by the hasty categorization of an issue as a labour matter, only to be heard by the Labour Court and Labour Appeal Court.[16]

6.9 It continued its line of reasoning by stating;  

The affidavit, particularly by mentioning procedural unfairness and the absence of a proper hearing, strengthens the impression created by the express wording of the prayers in the Notice of Motion that the application was one for administrative review. It must be remembered that, as stated in Tau Makhalemele and Gcaba referred to above, that the pleadings and not the substantive merits of the case are determinative of jurisdiction. For example, whether the appellants were indeed entitled to a hearing and whether they were given one must be interrogated when the substantive merits are considered. The allegation of the absence of a hearing is fundamental to the appellants’ argument that the decision was irregular and procedurally unfair, a concern regularly raised in administrative review applications.[17]

6.10 The same view was expressed in the case of The Ministry of Trade and Industry v Seleke[18]

Subject-matter jurisdiction is the requirement that a given court have power to hear the specific kind of claim that is brought to that court. While litigating parties may waive personal jurisdiction, they cannot waive subject-matter jurisdiction. The requirement that a court have [sic] subject-matter jurisdiction means that the court can only assume power over a claim which it is authorized to hear under the laws of the jurisdiction. The High Court has a constitutional and an inherent power to issue review orders unless expressly forbidden to do so, by the words of the law. Review available in case of non—performance or wrong performance of statutory duty or power, where duty/power essentially decision— making one and body or person concerned made decision.

6.11 What becomes apparent from the cited cases is that, the subject matter of the proceedings brought before court determines the jurisdiction of the court. I therefore ask, what is the subject matter of the proceedings before me? For an answer to this I have to scrutinize the Notice of Motion and the affidavits filed of record.

6.12 For the analysis of the definition of Public Functionary, administrative action, subject-matter litigation I turn to the cases below to unravel and ultimately determine whether the pleadings comply the established law.

[7] WHAT CONSTITUTES AND ADMINISTRATIVE DECISION THAT FOUNDS JURISDICTION IN THE LAC OR HIGH COURT?

7.1 In the case of Motlatsi Thabane v NUL[19] the jurisdiction of the Labour Court to determine review applications was dependent on three grounds. The court stated these grounds as follows;

It is therefore axiomatic that to qualify for review by the LAC the action concerned must be (a) an administrative action (b) taken in the performance of a function (c) in terms of the Labour Code or other labour law.[20] 

7.2 I therefore ask myself the same question that Chinhengo AJA asked himself, that is

The question here is whether the decision of the University to put out the internal advertisement was an administrative act taken in the performance of a function in terms of the Labour Act. I think not.[21]

7.3 Our courts have relied on the case of Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC) to determine the answer to this question. At paragraph 56, in that case, the court said:

“The legislature is sometimes specifically mandated to create detailed legislation for a particular area, like equality, just administrative action (PAJA) and labour relations (LRA). Once a set of carefully crafted rules and structures has been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system.”

 

7.4 Thus, the question this court has to ask is whether the subject matter of the case, as disclosed in the cause of action, places this case under administrative law or labour law. the devil is in the draftsmanship.

7.5 As stated above, the Notice of Motion is carefully crafted and the draftsmanship is intentional. The Applicants specifically seek the 1^st Respondent to “comply with the terms of its Administration Manual for Non- Contract Staff.’’ Expounding this prayer, they have in their affidavit stated that what they precisely mean is that the decision of Respondents is “wrongful and liable to be set aside.” Further that “we perceive a legitimate expectation that we should be confirmed into the managerial positions.” They go on to state that “the decision of the 1^st Respondent …is contrary to the principles of natural justice.”

[My emphasis].

7.6 There is a differentiation between the draftsmanship herein and that in the case of Khabo v LNDC[22] wherein Makara J stipulated that the applicants relied reliance of Rule 50 did not bring the matter within the inherent powers the High court has, due to the fact that the prayers sought were purely labour law related. In the present application, the Applicants have premised their application of legitimate expectation, Natural justice, Irregular decision which all fall within administrative action.

7.7 That a case can be founded on these administrative grounds was confirmed in the case of The Government of the Kingdom of Lesotho v Matela[23] where Mosito JP stated

The pleadings disclosed substantive legitimate expectation in that there was a promise made to the applicants. The government's promise contained in the agreement was the kind of promise that would typically receive protection under the doctrine of substantive legitimate expectation.7 Indeed, the express promise and an established practice of making payment, would also typically secure at least procedural protection under the doctrine of legitimate expectation. The issue was therefore canvassed in the papers.

7.8 Whilst in agree with the definition of Khabo J of what constitutes “industrial relations” in the case Revenue Services of Lesotho v Baile Dube and 7 Others[24] the Applicants herein are not seeking to challenge the policy per se, but rather a decision founded on the said policy.

7.9 Having established that the cause of action falls within an administrative action, the next step would be to determine whether such administrative decision was (b) taken in the performance of a function (c) in terms of the Labour Code or other labour law, so as exclude the jurisdiction of this court as stated in the Labour Code (amendment) 2000 section 38 (1) A in that it clothes the LAC with exclusive jurisdiction to hear and determine;

A(iii) of any administrative action taken in the performance of any function in terms of the Labour Code or any other Labour Law.

7.10 The case of Mamarane Matela v the board of LAC Banyane J contended that it is of paramount importance to ascertain the source of power of the decision maker. Was it from the Labour law or from other labour laws? In their affidavit, the applicants have stated that they are seeking an order “correcting and setting aside the decision of the 1^st Respondent.”

It is perhaps prudent to determine who the first Respondent is. The law creating the 1^st Respondent being Lesotho Revenue Authority Act[25] states as follows:

Establishment of the Authority

 4. (1) There is established a body to be known as the Lesotho Revenue Authority which shall be – 

a) a body corporate with perpetual succession and a common seal;

(b) in its corporate name, capable of suing and being sued; 

(c) capable of holding, purchasing and otherwise acquiring and disposing of any property, moveable and immovable, for purposes of, or in the course of carrying out its functions; and 

(d) doing or performing all such acts and things as bodies corporate may by law do or perform.

On the issue of the authority which this body posses the Act states

5 (2) The Authority shall, upon the commencement of this Act, replace the existing revenue departments. 

It continues to outline the functions of the Authority as follows:

Functions of the Authority 

5. (1) The Authority shall be an agency of the Government responsible for the assessment, collection and receipt of specified revenue and shall operate under the general supervision of the Minister.    

(2) Without prejudice to the generality of subsection (1), the functions of  the Authority shall be- 

(a) to administer and enforce the laws set out in the Schedule; 

(b) to promote voluntary compliance with tax laws;

(c) to take such measures as may be required to improve the standards of service given to taxpayers with a view to improving efficiency and effectiveness and maximising revenue collection;

(d) to take such measures as may be required or necessary to counteract tax fraud and other forms of fiscal evasion; 

(e) to advise the Minister on matters of revenue policy and matters relating to the administration and collection of revenue under the laws listed in the Schedule; and 

(f) to perform such other functions, in relation to revenue, as the Minister  may direct.      

(3)  The Minister may, by notice published in the Gazette, amend the Schedule. 

On the powers of the Authority, the Law states

Powers of the Authority

6. The Authority shall, in the discharge of its functions, have power-  (a) to study revenue laws and propose any suitable changes to the Minister, which may be made to any law for the purpose of improving the administration of, and compliance with, revenue laws; 

(b) to calculate the administrative costs, compliance costs and the operational impact of intended legislative changes, and to advise the Minister accordingly; 6

(c) to collect and process statistics needed to provide forecasts of revenue receipts and the effect on yield of any proposals for changes in revenue laws, and to advise the Minister accordingly; and 

(d) to take such other measures as it deems necessary or desirable for the achievement of the purposes or provisions of this Act.  Tax payer identification and exchange of information 

7. (1) The Authority shall, with the approval of the Minister, by notice in the Gazette, provide for the establishment, maintenance, and application of systems for the convenient and effectual identification of taxpayers for the purpose of co-ordinated administration of the revenue laws of Lesotho.

 (2)  Without prejudice to subsection (1), it shall be lawful for officers in the revenue departments of the Authority to exchange or furnish each other with information or documents concerning any taxpayer and for the purposes of the discharge of functions under this Act.

Nowhere in this act does the law establish the 1^st respondent as an exerciser of Labour Law or under the Labour Code. In line with the decision In Mamarane Matela above, I conclude that when it made the decision which the Applicants intend for the court to reviews, the Respondents decision is not one envisaged in the Labour Code Section 38A.

Indeed, in the case of The Government of the Kingdom of Lesotho v Matela[26] the court of appeal also shared the sentiments.

[8] CONCLUSION

8.1 On the strength of the cases discussed herein and having found that the commissioner exercised an administrative action. Upon microscopic examination, it appears from these pleadings that the case of the applicant is based on challenging an administrative decision by an administrative functionary who is exercising his power as such.

8.2 Also having gleaned the prayers of the applicants, I conclude that their prayers are premised purely on a review of an administrative action which falls within the inherent jurisdiction of this court. 

[9] INORDINATE DELAY

9.1 On the strength of the decision in Ramoepana cited above herein, having conformed jurisdiction of this court, I proceed to determine the other points in limine that have been raised herein.

9.2 The Respondents have also raised a point that the applicants have taken a period culminating to five years to institute the present proceedings. From a cursory look it does indeed seem that the applicants have taken an exceedingly long time to institute the present proceedings.

9.3 A small dip into the facts reveal that the applicants took the following intervention to have their matter resolved. They exhausted internal remedies through their trade union, they filed a matter in the DDPR, which also suffered delays and they thereafter filed the matter before this court.

9.4 I am alive to the views expressed in the case of Mokhotho v the Learned Magistrate and 4 others.[27] where the court sternly shunned the practice of bringing reviews after an unexplainably long period. 9.5 Indeed, inordinate delays in bringing reviews before the court can attract all sought of dilemma.

9.6 I however find that the Applicants have given a reasonable explanation to the delay in prosecuting the review of the administrative decision. This matter is therefore properly before the court as the delay, inordinate as it is, is justiciable considering the step taken. The Applicants have never rested on their laurels concerning this matter. Some delays were even beyond their control.

[10] RES JUDICATA

10.1 The Respondents have relied on the dictum in Joy to the World v Malefane[28] to postulate that the matter cannot be heard as another court have reached a final determination and has thus laid the litigation to rest.

10.2 Generally, res judicata is the principle that a cause of action may not be relitigated once it has been judged on the merits. "Finality" is the term which refers to when a court renders a final judgment on the merits.[29] The issue of the finality of the matter of the matter is crucial.

10.3 The question here was whether the DDPR had laid the matter to rest, there being no official ruling attached by any party relating to the outcome of the decision of the DDPR, the version of the respondents that the matter was dismissed has to carry the day these being motion proceedings. The however have failed to bring satisfactory evidence that the matter was dismissed on the merits. On a balance of probabilities, it could not be that the matter was dismissed in the light of the facts outlined by both parties in relation to the outcome of the DDPR matter.

 

 

 

 

[11] RULING

I therefore make the following ruling:

1. The court has jurisdiction to entertain this matter.
2. There is a reasonable explanation for the delay in filing the review.
3. The matter is to be set down for hearing on the merits.

 

------------------------------

M. G. HLAELE

JUDGE

 

For Applicant:  Adv. Masoeu

For Respondent: Adv. Mofilikoane