Shuai Lin V President, Labour Court & 5 Others (CC/0004/2023) [2024] LSHC 112 (19 July 2024)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

 

 

 

 

 

IN THE HIGH COURT OF LESOTHO

(Sitting in its Constitutional Jurisdiction)

 

HELD AT MASERU                                                    CONST/CASE/0004/23

 

In the matter between

 

SHUAI LIN                                                                     1^st APPLICANT

LIN QIFA                                                                        2^nd APPLICANT

 

And

 

PRESIDENT, LABOUR COURT                                 1^st RESPONDENT

LABOUR COMMISSIONER                                        2^nd RESPONDENT

MINISTRY OF LAW AND                                           3^rd RESPONDENT

CONSTITUTIONAL AFFAIRS                                     

KARIBU WHOLESALERS (PTY) LTD                      4^th RESPONDENT

ATTORNEY GENERAL                                                5^th RESPONDENT

LIAKO NTSOELE                                                          6^th RESPONDENT

 

Neutral Citation: Shuai Lin and another v. President, Labour Court and 5 others [2024] LSHC 112 Const. (26^th June 2024)

                                       

 

JUDGMENT

 

Coram:  Hon. Justice KL Moahloli

               Hon. Justice FM Khabo

               Hon. Justice MS Kopo

Heard          :   17 March, 7 & 16 June, 29 September and 2 November 2023

Delivered     :  19 July 2024

         

 

SUMMARY

Constitutional law - Legislation - Validity of - Section 34 of the Labour Code Act 1992, providing for detention in prison of a party against whom the Labour Court has given a judgment to pay a sum under the provisions of the Code for failure to satisfy the President of that Court that such failure was due to no fault on the party’s part, is not unconstitutional because it violates such party’s right to personal liberty enshrined in Section 6 (1) of the Constitution

 

                                                   ANNOTATIONS

Cases:

Blandina Lisene v Lerotholi Polytechnic and Tsietsi Lebakae LC/13/2013

Chinamora v Angina Furnishers (Private) Ltd [1997] 1 LRC 149

Coetzee v Government of the Republic of South Africa, Matiso and Others v Commanding Officer Port Elizabeth Prison and Others 1995 (4) SA 631(CC)

 

Geoffrey Opio v Felix Obote and Others 2018 UGHC

 

 

Statutes:

Constitution of Lesotho 1993

Labour Code Act No. 24 of 1992

South African Abolition of Civil Imprisonment Act No. 2 of 1977

 

International Instruments:

The African Charter on Human and Peoples’ Rights, Adopted 1981

Fourth Protocol 4 to the European Convention on Human Rights, Adopted 1963. In force 1968

International Covenant on Civil and Political Rights, Adopted 1966 

 

Books:

David Harris et al, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights, 5^th Ed., 2023 (OUP)

 

Sarah Joseph & Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary. 3^rd Ed., 2013 (OUP)

 

Rachel Murray, The African Charter on Human and Peoples’ Rights: A Commentary. 2019 (OUP)

 

 

 

Kopo and Moahloli, JJ (Khabo J concurring)

 

[A] INTRODUCTION

 

1. This matter concerns the constitutionality of the enforcement of payment of a judgment debt through imprisonment by the Labour Court President on the strength of Section 34 of the Labour Code Act 1992[1]. The Applicant seeks to have declared as unconstitutional the above-mentioned section on the ground that civil imprisonment is unconstitutional.

 

[B] BACKGROUND

 

2. The 4^th Respondent, a family - owned and run Company, and its Managing Director were sued in the Labour Court for compensation for unfair dismissal by one Ms. Liako Ntsoele (6^th Respondent herein). On 22 February 2021, the respondents were ordered by the Court to pay the said Ms. Ntsoele a total amount of Seventy - One Thousand Maloti (M71, 000. 00). Respondents applied for rescission of this order, but their application was dismissed.

 

3. Thereupon, in an endeavour to enforce the said judgment, Ms. Ntsoele applied to the President or Deputy President of the Labour Court to invoke the provisions of Section 34 of the Labour Code to enforce compliance of the 4^th Respondent with the said judgment. The Labour Court duly summoned the Directors of the debtor company (the present Applicants) to appear before its President or Deputy to explain their failure to comply with the court order. The summons warned the Applicants that failure to attend could result in a warrant of detention being issued against them without any further reference to them. The Labour Court then, pursuant to the said summons and after their appearance before it, issued a Warrant of Arrest against the Applicants herein.

 

4. It is because of the said Warrant of Arrest that the Applicant instituted the present matter. This application was initially against only the 1^st to the 5^th Respondent, but the 6^th Respondent was subsequently granted leave to intervene in the main.

 

5. In this constitutional application, the Applicants moved the court for the following reliefs that:

 

“Rule nisi be issued and made returnable on a time and date to be determined by this Honourable court, calling the Respondents to show cause if any, why the following orders shall not be made:

1. Rules pertaining to mode of service shall not be dispensed with on account of urgency of this matter;
2. The warrant of arrest issued against the Applicants be stayed pending finalisation of the matter hereof;
3. The Provisions of Section 34 of the Labour Code Order no: 24 of 1992 be declared as unconstitutional to the extent that it violates the Applicants’ right to liberty as entrenched in the constitution of Lesotho;
4. The Applicants be granted costs of this application in the event of the opposition hereof;
5. The Applicants be granted further and/or alternative relief….”

 

6. On the 17^th day of March 2023, counsel for the Applicants appeared before our Sister Justice Khabo and was granted the interim reliefs sought (viz. stay of the warrant of arrest pending finalization of the constitutional motion).

 

[C] APPLICANTS’ CASE

 

7. The Applicants contend that section 34 of the Labour Code is contrary to Section 6 (1) of the Constitution of Lesotho[2] and argue that protection against civil imprisonment is provided for under that section.

 

8. The Applicants further argue that the dispute between an employer and employee is a labour-related matter and therefore purely a civil matter. They therefore argue that in this country, a person can only be committed to prison and/or sentenced if that person has committed a criminal offence. Their contention is premised on the reasoning that a civil debt is satisfied through a writ of execution for attachment and sale of their property if they do not have money to satisfy the judgment debt.

 

9. It is on the strength of the above reasons that the Applicants argue that Section 34 of the Labour Code[3] is unconstitutional. They further argue that imprisonment for inability to fulfil a contract [i.e. civil imprisonment] has been abolished and prohibited as it is undesirable and incompatible with civilised democratic society. As authority for this, Advocate Mohapi for the Applicants relied upon Article 11 of the International Convention on Civil and Political Rights[4] (“the ICCPR”), Article 1 of The Fourth Protocol to the European Convention on Human Rights[5] (“the ECHR”), as well as the South African Abolition of Civil Imprisonment Act[6] that prohibits imprisonment merely on the reason of failure to fulfil a debt or civil obligation.

 

[C] THE 1^ST, 2^ND, AND 5^TH RESPONDENTS’ CASE.

 

[10] The 1^st, 2^nd and 5^th Respondents initially challenged the locus standi of the Applicants. Secondly, they argued that the 4^th Respondent was cited wrongly since the company should have been cited as one of the Applicants. They argued that this is Misjoinder. Both these points were never pursued during arguments and therefore, We will not go into them.

 

[11] Another issue raised by the 1^st, 2^nd, and 5^th Respondents as a preliminary point but one which actually addresses the merits of this matter is that Section 34 of the Labour Code does not unduly infringe Section 6 (1) of the Constitution. They argue that Section 6 (1) (c) allows deprivation of liberty when it is through the execution of an order of court.

 

 [D] 6^TH RESPONDENT’S CASE

 

[12] During arguments, the parties (The Applicants and the 6^th Respondent) agreed to pursue the constitutionality or otherwise of Section 34 and abandon their other contentions. We will therefore deal with the case of the 6^th Respondent only in as far as it relates to the constitutionality or otherwise of the said Section 34.

[13] Like the 1^st, 2^nd, and 5^th Respondents, the 6^th Respondent argues that when Sections 6 (1) and 6 (1) (c) are read together, it is obvious that civil imprisonment in execution of an order of court is permissible.

 

[E] ANALYSIS

 

[14] The issue before this court is simple and clear; is Section 34 of the Labour Code unconstitutional vis-à-vis Section 6 (1) of the Constitution?

 

[15] It is apposite that we reproduce the impugned Section 34 and the relevant provisions of the Constitution for ease and flow of the reading of this analysis.  Section 34 of the Labour Code reads thus:

 

34. Enforcement of payment

Where the Court has given judgment against a party to pay any sum under a contract of employment or under the provisions of the Code and the Party fails to make such payment within the time specified in such judgment, the President of the Court may, on the application of a party or a labour officer acting on behalf of any person to whom such sums are due, summon such party to appear before the President of the Court to answer why payment has not been made.

If such party fails to satisfy the President of the Court that the failure to make payment was due to no fault on his or her part, the President of the Court may order the party’s detention in prison until the payments mentioned in the order are made or for a period of six months, whichever be the shorter period. The person entitled to enforce the judgment shall not be responsible for the expenses of such detention.

 

[16] Section 6 (1) and (1) (c) on the other hand read as follows:

 

6 (1) Every person shall be entitled to personal liberty, that is to say, he shall not be arrested or detained save as may be authorised by law in any of the following cases, that is to say –

1. …
2. …
3. In execution of the order of the court made to secure the fulfilment of any obligation imposed on him by law;

 

[17] Advocate Mohapi quotes only the first part of Section 6 of the Constitution. He further supports his argument with Article 11 of the United Nations International Covenant on Civil and Political Rights that provides that “No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation” [emphasis added]. In our view, the imprisonment envisaged under Section 34 is not merely for failure to fulfil a contractual obligation. It is for failure to satisfy the President of the Labour Court that failure to make payment [i.e. to obey a court order] was due to no fault of the summoned party.

 

[18] The true import of Article 11 is explained as follows by Joseph and Castan:[7]

“The reference to ‘inability’ indicates that the person must be incapable of fulfilling the relevant contractual obligation, rather than simply unable to do so. The word ‘merely’ indicates that the guarantee does not protect people who have committed some other offence over and above the contractual breach. For example, if one intentionally manufactures one’s ‘inability’ and commits fraud, one is not protected from imprisonment by Article 11.

[19] It follows then that Article 11 will not protect someone who fails to pay court ordered compensation out of intention to frustrate the order rather than, say, impecunity. It must also be noted that the present case, stricto sensu, concerns a failure to meet not a contractual obligation but a legal obligation. Consequently, the Applicants’ defence is incompatible ratione materiae with Article 11 of the Covenant.

 

[20] Harris et al interpret Article 1 of the Fourth Protocol, which provides that “No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation”, in the same way as Joseph and Castan. They state that -

 

 “Article 1 is limited in its application by the words ‘merely on the ground of inability to fulfil’ an obligation. It applies to failure to fulfil a contractual obligation of any kind. It may thus include non-delivery, non-performance, and non-forbearance, as well as the non-payment of debts. It ‘prohibits imprisonment for debt solely when the debt arises under a contractual obligation’. That is, deprivation of liberty is not forbidden if there is some other factor present, as where the detention is because the debtor acts fraudulently or negligently of for some other reason refuses to honour an obligation that he is able to comply with… Under Article 5 (1) (b) of the Convention, a person may be deprived of his liberty for ‘non-compliance with a lawful order of a court’. This could include a court order that results from failure to fulfil a contractual obligation.”[8]

 

[21] I accept that Section 34 seems to put the burden of proof on the party who has been called upon to answer as to why the payment has not been made. However, that is another argument altogether. There can even be an argument that what that party has is the evidential burden as opposed to the reverse burden. That is in fact the correct approach as Mosito AJ (as he then was) expertly illustrated in Blandina Lisene v Lerotholi Polytechnic and Tsietsi Lebakae[9]. The South African case of Coetzee v Government of the Republic of South Africa, Matiso and Others v Commanding Officer Port Elizabeth Prison and Others[10] provided a similar guide. I am of the view that the party who has called or caused the calling of the judgment debtor before the President of the Labour Court bears the burden to prove that there is an order and that it has not been complied with. Once that has happened, then the evidential burden will shift to the judgment debtor to show that it is not through his fault that payment has not been effected. As to whether this should be an exercise undertaken for a judgment sounding in money is an argument for another day. The point is that this is what the legislature has provided for in the proceedings before this court. The point before this court is whether Section 34 infringes Section 6 of the Constitution.

 

[22] Section 6 (1) (c) of the Constitution permits the arrest or detention of a person in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law. What makes this permissible, is the order of court that has already been granted and the said detention or arrest is for execution of that order. In fact, in Blandina Lisene[11], Mosito AJ came to the same conclusion that this section empowers the court to punish contemnors in order to protect its integrity.

 

[23] In casu, there has been an order of court. To execute that order, the Legislature has created, through the Labour Code, a procedure in which the court presides over and decides on whether the judgment debtor can be committed to prison or not. The committal is not arbitrary. Section 34 of the Labour Code[12] cannot, therefore, be said to be unconstitutional when the very constitution provides for the very procedure.

 

[24] In other words, it is difficult to see how imprisonment made under Section 34 can be said to be unconstitutional when it is authorized by both the Labour Code and Section 6 (1)(c) of the Constitution itself. Moreover, such imprisonment is clearly not arbitrary. This question of arbitrary detention features prominently in Article 6 of the African Charter on Human and Peoples’ Rights, which provides as follows –

 

“Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”  

 

In her discussion of Article 6, Rachel Murray[13] highlights the following crucial points –

1. “The right to liberty and security is not absolute and can be restricted under certain circumstances. It ‘does not grant complete freedom from arrest or detention’, and ‘the African Charter allows the deprivation of this right through lawful means’.”[14]
2. “Similar to other international instruments, arrest and the subsequent detention must be ‘carried out in accordance with the procedure established by domestic law’ or ‘prescribed by law’ in order not to be arbitrary. The law must be ‘clear, accessible and precise, consistent with international standards and the rights of the individual’.”[15]

 

In our view, the impugned Section 34 ticks all these boxes.

 

[25] In some jurisdictions in our region, civil imprisonment is permitted under carefully controlled circumstances. The rationales for this were set out in the Ugandan case of Geoffrey Opio v Felix Obote and Others[16] as being twofold. On one hand, it enables the judgment-creditor to realise the fruits of the award passed in his favour; while on the other hand, it protects the judgment-debtor who is not in a position to pay the dues for reasons beyond his control or is unable to pay. If the judgment-debtor has the means to pay and still refuses or neglects to honour his obligations, he can be imprisoned.

 

[26] In Chinamora v Angina Furnishers (Private) Ltd, the Supreme Court of Zimbabwe[17] held that a court should not order civil imprisonment if the debtor proved inability to pay. The court should order imprisonment only if it is established positively that the debtor could but would not pay.             

 

[27] For fear that there may be a perception, wantonly or unwantedly, that Section 6 (1) (c) is referring to a criminal situation and could not refer to an execution of a civil order, it may be apposite that it is analysed further. Section 6 (1) (a) expressly refers to a criminal process. That inclusion of Section 6 (1) (c) therefore was not an accident and could not have been meant for criminal process when (1) (a) has already catered for the criminal process. The only reasonable conclusion therefore can be that it catered for civil process.

 

[F] DISPOSITION

 

[28] Section 34 of the Labour Code expressly provides for enforcement of payment imposed by the order of court through imprisonment. Section 6 of the Constitution has catered for and allowed committal to prison in execution of an order of court. It is our considered view that such enforcement is not arbitrary and therefore is not and cannot be declared unconstitutional.

 

[29]The International Instruments relied upon by Advocate Mohapi prohibit imprisonment for failure to fulfil a contractual obligation. The spirit of Section 34 is not only to enforce a judgment but to also protect the integrity of the court. It is therefore my considered view that the said section is not unconstitutional. However, the power of civil imprisonment must be exercised circumspectly and should be a remedy of last resort.

 

 

[G] COSTS

 

[30] In principle, this court is usually reluctant to award costs so as not to dissuade the litigants from advancing complex but important issues concerning the development and clarification of our constitutional jurisprudence. However, this is one case that involves not only the individual who is the judgment creditor, but it also affects the integrity of the court. This is a case fitting for the award of costs.

 

ORDER

The application is dismissed with costs.

 

 

________________

Moahloli J

 

                                             ____________________

                                                         Kopo J

 

                                             ______________________

                                                           Khabo J.

 

 

For Applicant           :       Adv. M. Mohapi

For 6^th Respondent   :       Mr. T. Makhethe