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IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/0347/22
In the matter between:
PALO MOSHOESHOE APPLICANT
and
LIMKOKWING UNIVERSITY OF RESPONDENT
CREATIVE TECHNOLOGY
Neutral citation : Palo Moshoeshoe v Limkokwing University of Creative Technology [2022] LSHC Civ 148 (20 August 2024)
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CORAM : KHABO J.,
HEARD : 15 JUNE 2023
DELIVERED : 20 AUGUST 2024
SUMMARY
Civil practice and procedure - Jurisdiction - Determination of an appropriate forum where an employee is seeking the review of his employer’s decision to suspend him from work - Whether such decision is reviewable by this court under Section 119 (1) of the Constitution which confers unlimited original jurisdiction on the High Court to, among others, review decisions of officers exercising public administrative functions - Respondent contending that the matter falls squarely within the purview of labour fora not the High Court as it is employment related;
ANNOTATIONS
Statutes and subsidiary legislation
Constitution of Lesotho, 1993
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Cases cited
Lesotho
Director of Public Prosecutions v Pitso Ramoepana C of A (CIV) 49 of 2020
`Mamarame Matela v Lesotho Communication Authority and 13 Others
Mokhali Shale v `Mamphele Shale and 3 Others C of A (CIV) No. 35/19
Peete Molapo and 16 Others v Government of the Kingdom of Lesotho and 6 Others C of A (CIV) 20/2022
Thato Putsoa v Standard Lesotho Bank LAC/REV/03/07
Lesotho Revenue Authority v Moutloatsi Dichaba C of A (CIV) 21/2019
Other jurisdictions
South Africa
Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) 313 (SCA)
President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC)
Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA)
Books
Grogan J - Workplace Law, 11th ed., JUTA, 2014
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JUDGMENT
KHABO J.,
Introduction
[1] The Applicant is herein seeking the review of Respondent’s decision to suspend him from work as the acting Information Technology Executive for a year without remuneration and prays that the decision be set aside as being ultra vires and irregular. He challenges the procedural impropriety of the suspension on the basis that he was not afforded a hearing prior thereto.
[2] In reaction, Respondent’s Counsel raised several points of law including that of lack of jurisdiction, contending in this regard that Applicant’s case involves an employer’s decision to suspend an employee, a matter falling squarely within the purview of labour fora. He argued that the employers’ power to discipline is a power implicitly recognised in labour legislation.
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[3] Relying on Section 119 (1) of the Constitution of Lesotho, 1993 (the Constitution) Applicant’s Counsel opposed this objection. She argued that the High Court is a court of unlimited jurisdiction and as such it has jurisdiction to entertain this application which challenges an administrative decision. She cited Peete Molapo and 16 Others v Government of the Kingdom of Lesotho and 6 Others1 for support.
[4] It is settled law that where the competence of a court to hear and determine a dispute is challenged, the challenge must first be addressed and disposed of.2 The court will, therefore, proceed to determine whether it has jurisdiction.
On jurisdiction
[5] In determining whether this court has jurisdiction in the matter regard is had to the cause of action and the nature of
1 C of A (CIV) 20/2022
2 Director of Public Prosecutions v Pitso Ramoepana C of A (CIV) 49 of 2020 and Mokhali Shale v `Mamphele Shale and 3 Others C of A (CIV) No. 35/19 at para. 8
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the reliefs sought by the Applicant.3 Applicant’s cause of action is the review of Respondent’s decision to suspend him from his duties, and the relief he seeks is an order for the payment of all his salary arears from the date of suspension to the date of judgment with 12.5 % interest per annum.
[6] Section 119 (1) of the Constitution confers unlimited original jurisdiction on the High Court to, among others, review decisions of public officers exercising “public administrative functions.” The answer to whether this court has jurisdiction to entertain this matter lies in whether Respondent’s conduct in suspending the Applicant was the exercise of a ‘public administrative function’ anticipated in the Section 119 (1).
3 Peete Molapo and 16 Others v Government of the Kingdom of Lesotho and 6 Others C of A (CIV) 20/2022
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What constitutes a public administrative function?
[7] In Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others4 administrative action was defined as:
… any decision of an administrative nature made … under an empowering provision [and] taken … by an organ of State, when exercising a power in terms of the Constitution or a provincial constitution, or exercising a public power or performing a public function in terms of any legislation, or [taken by] a natural or juristic person, other than an organ of State, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect…
[8] The Constitutional Court in President of the Republic of South Africa v South African Rugby Football Union5 admitted the difficulty in determining what is and what is not
4 2005 (6) 313 (SCA) at pp. 322G- 323A
5 2000 (1) SA 1 (CC) at para. 143, p. 67
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administrative action. It, however, offered the following as relevant considerations:
the source of the power, the nature of the power, its subject matter, whether it involves the exercise of a public duty, and how closely it is related to policy matters – which are not administrative - or to the implementation of legislation, which is characteristic of administrative action.
The court went further to point out that the decision of what is administrative action should be done “on a case-by-case basis.”
[9] Echoing the above sentiments on the concept of ‘administrative action,’ the court in Transnet Ltd v Goodman Brothers (Pty) Ltd6 stated that the concept cannot be defined with precision but:
6 2001 (1) SA 853 (SCA) at 864
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By and large, the criteria [has] usually been that an administrative action requires a decision (or resultant action) taken in the exercise of a public power or the performance of a public function, affecting the rights, interests or legitimate expectation of others.
[10] This case was cited with approval in the Labour Appeal Court’s decision of Thato Putsoa v Standard Lesotho Bank7 which underscored the principle that it is the function rather than the functionary that is important in classifying an action.
Whether the Respondent in suspending the Applicant exercised a public administrative function?
[11] The employer has a right under the common law to prescribe standards of conduct and to initiate disciplinary proceedings in the event of any transgressions by the employee. Suspension is one of the forms disciplinary penalties. “The employee’s duty to obey lies at the heart of the employment relationship. Obedience implies discipline, discipline implies
7 LAC/REV/03/07
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rules, and rules, to be effective, imply the power to impose sanctions on those who break them. Employers have a right, and indeed a duty, to maintain discipline in the workplace.”8
[12] On the strength of the above arguments, the court finds Respondent’s decision to suspend the Applicant not to constitute an administrative decision but rather to be a decision in exercise of a managerial prerogative to discipline in terms of laws regulating labour relations. It was not an exercise of any public function.
[13] This case is distinguishable from `Mamarame Matela v Lesotho Communication Authority and 13 Others9 in which the Court of Appeal confirmed the Labour Appeal Court’s decision in LAC/REV/O3/2021 that the Minister had exercised powers conferred on him by the Communications Act and not labour legislation. Further that the Minister’s source of power was not the employment contract, but a statute, and moreover that the decision he made was not the
88 Grogan J - Workplace Law, 11th ed., JUTA, 2014 at p. 149
9 C of A (CIV) 35/2021
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exercise of power in the performance of a function in terms of labour law.
]14] In Lesotho Revenue Authority v Moutloatsi Dichaba10 the apex court confirmed the High Court decision that the Labour Court had jurisdiction to determine a dispute in which fairness of a suspension was challenged on the basis that an employee’s suspension is a matter arising out of employment and industrial relations. In my opinion, the source of Respondent’s power to discipline the Applicant was a purely managerial function arising out of the employment relationship. As to the propriety or otherwise thereof is an enquiry that will be determined by the appropriate labour forum.
10 C of A (CIV) 21/2019
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Conclusion
[15] In suspending the Applicant, the Respondent exercised a duty which is its managerial prerogative to carry out under the common law. Suspension is a form of a disciplinary sanction short of a dismissal. It being a managerial prerogative, any decision taken in that respect falls to be determined under labour legislation. In the circumstances, the application stands to be dismissed for want of jurisdiction.
ORDER
[16] The court makes the following order:
(a)
The preliminary point on lack of jurisdiction raised by Respondent’s Counsel is upheld;
(b)
This court declines jurisdiction to hear and determine this matter; and
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(c)
Costs will follow the event.
_________________
F.M. KHABO
JUDGE
For the Applicant : Adv., T.G. Nqhae
For the Respondent : Adv., R. Setlojoane