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IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/0028/2023
In the matter between:
MOTS`EOA PULE AND 90 OTHERS APPLICANTS
and
MINISTRY OF TOURISM, ENVIRONMENT 1st RESPONDENT
AND CULTURE
LESOTHO HIGHLANDS DEVELOPMENT 2nd RESPONDENT
AUTHORITY
ATTORNEY - GENERAL 3rd RESPONDENT
Neutral citation : Mots`eoa Pule and 90 Others v Ministry of Tourism, Environment and Culture [2023] LSHC … (04th December 2024)
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CORAM : KHABO J.,
HEARD : 13th JUNE, 2024
DELIVERED : 04th DECEMBER, 2024
SUMMARY
Civil practice and procedure - Jurisdiction - Determination of an appropriate forum where employees are seeking the review of their employer’s decision to terminate their contract of employment - 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 outside the purview of the High Court as remedies stipulated by the parties are purely contractual - jurisdiction of court ousted due to need to respect binding arbitration agreements in contracts.
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ANNOTATIONS
Statutes and subsidiary legislation
Constitution of Lesotho, 1993
Cases cited
Lesotho
Other jurisdictions
South Africa
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JUDGMENT
KHABO J.,
Introduction
[1] Applicants are employees of the Ministry of Tourism, Environment and Culture, 1st Respondent herein. They were assigned to work at Tséhlanyane National Park, Liphofung Heritage Site and Bokong Nature reserve. They entered into individual three - year fixed - term contracts1 commencing 01st April 2024 and ending 31st March 2025.
1 1st Applicant’s contract attached as annexure ‘B’ to the Notice of Motion
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[2] Applicants’ services were terminated by the acting Principal Secretary of the Ministry of Tourism, Environment and Culture through a letter dated 16th January 2023,2 which read:
(Name of employee)
(Position occupied)
Dear Sir/Madam
TERMINATION OF ENGAGEMENT WITH THE MINISTRY
Your engagement in terms of the contract of employment which you signed on the 17/03/22 was done in contravention of the laws and policies that govern employment into the public service, to wit;
137 of the Constitution read with;
i) Sections 6 of the Public Service Act
2 Annexure ‘H’ to the Notice of Motion
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ii) Section 25 read with section 29
iii) Section 8 of the Public Service Act 2005
iv) Section 9(1), (3), (6) and Sections 20-26 of the Public Service Regulations 2008;
v) Sections 3(1), and 5 of the Basic Conditions of Employment for Public Officers Notice 2011.
The Authority or person who engaged you did not have power nor authorized to engage you to work for the Ministry. Further, your engagement did not follow the procedure prescribed in the above pieces of legislation. I have therefore decided to terminate your engagement, as I hereby do, with immediate effect.
Yours Sincerely,
(signed)
________________________
`MABATAUNG KHALANE (MRS)
PRINCIPAL SECRETARY (a.i)
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[3] Applicants were aggrieved by this letter. They approached this court on an urgent basis before my brother Mokoko J., and the urgency was not granted, and the matter proceeded ordinarily. . The gist of their complaint is that this termination be declared null and void, and of no force or effect as they were not afforded a pre - termination hearing.
[4] They are seeking the following prayers:
[5] Respondents are opposing this application and have raised a point in limine of lack of jurisdiction on the basis that Clause 10 of Applicants’ contracts of employment contracts of employment provide that any dispute arising from the implementation or execution of the contract be referred to binding arbitration.
[6] Jurisdiction can be dispositive. The court in Motlatsi Pelesa v Ngaka Molouoa3 stated that where jurisdiction does not exist,
3 C OF A (CIV) 36/20
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the court cannot proceed any further. The learned judge of Appeal, Musonda, AJA., relied on the Kenyan Court of Appeal decision of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited 4 in arriving at this conclusion. The court stated therein that:
It is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceeding… A court of law downs tools in respect of the opinion that it is without jurisdiction … Where the Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing …
[7] In determining whether this court has jurisdiction in the matter regard is had to the cause of action and the nature of the reliefs sought by the Applicants. Applicants’ cause of action is the review of 1st Respondent’s decision to terminate Applicants’ engagement.
4(1989) KCR 19
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[8] Section 119 (1) of the Constitution of Lesotho, 1993 the 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 terminating the Applicants was the exercise of a ‘public administrative function’ anticipated by Section 119 (1) .
What constitutes a public administrative function?
[10] In Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others5 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
5 2005 (6) 313 (SCA) at pp. 322G- 323A
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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…
[11] The Constitutional Court in President of the Republic of South Africa v South African Rugby Football Union6 admitted the difficulty in determining what is and what is not 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.”
6 2000 (1) SA 1 (CC) at para. 143, p. 67
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[12] Having analysed the concept of ‘administrative action,’ the court in Transnet Ltd v Goodman Brothers (Pty) Ltd 7 stated that the concept cannot be defined with precision but: 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.
[13] This case was cited with approval in the Labour Appeal Court’s
decision of Thato Putsoa v Standard Lesotho Bank 8 which
underscored the principle that it is the function rather than the functionary that is important in classifying an action.
7 2001 (1) SA 853 (SCA) at 864
8 LAC/REV/03/07
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Applying the principles to the facts
[14] Clause 10 reads:
SETTLEMENT OF DISPUTES
it is specifically recorded that any claim or dispute relating to the interpretation or execution of this agreement which cannot be settled amicably , shall be settled by binding arbitration.”
[15] The word “shall” is peremptory in nature. In N.T Mtshiya in Bataung Chabeli Constructions (Pty) Ltd v Road Fund9 urged courts to respect arbitration clauses in contracts. He cited with approval the case of Zhongii Development Construction Enginnering Company Ltd v Kamoto Copper Company SARL: [2014] 4 AII SA 617 (SCA) Gouern, AJA, in which it was stated that:
9 (C of A (CIV) 34 of 2020) [2021] LSCA 17 (14 May 2021)
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This Court has said that parties who refer matters to arbitration “implicitly, if not explicitly … abandon the right to litigate in courts of law and accept that they will be finally bound by the decision of the arbitrator”. The Constitutional Court dealt with the question whether section 34 of the Constitution applied directly to arbitrations. In finding that it did not do so, O’ Regan ADCJ said: “The decision to refer a dispute to private arbitration is a choice which, as long as it is voluntarily made, should be respected by the courts. Parties are entitled to determine what matters are to be arbitrated; the identity of the arbitrator, the process to be followed in the arbitration, whether there will be an appeal to an arbitral appeal body and other similar matters.
[16] In Aveng (Africa) Ltd (formerly Grinaker - LTA Ltd) t/a Grinaker - LTA Building East v Midros Investments (Pty) Ltd10 Wallis J., had this to say that:
I am fortified in this approach to clause 40 by the fact that the modern approach to arbitration clauses is to respect the parties’ autonomy in concluding the arbitration agreement, and to minimise the extent of judicial interference in the process. The historical
10 2011 (3) SA 631 (KZD)
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desire of courts to protect their own jurisdiction, and their consequent suspicion of arbitration as a means of resolving disputes, has been replaced by a recognition that arbitration is an acceptable form of dispute resolution with which the courts should not interfere.
[17] Ngcobo J., stated in Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC) that:
Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom and a vital part of dignity. The extent to which the contract was freely and voluntarily concluded is clearly a vital factor as it will determine the weight that should be afforded to the values of freedom and dignity…’ Courts should not be quick to intervene in contractual agreements unless their adherence would be inter alia unfair, contrary to public policy or unconstitutional. The sanctity of contracts should be respected.
[18]Principles of law enunciated in the above cases underscore the point that where arbitration agreements exist, courts should not be quick to intervene unless the agreements offend public
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policy. To this end, courts are obliged to respect the sanctity of contracts.
[19]The Arbitration Act 1980,11 makes provision for arbitration agreements between the parties. Section 4 thereof is titled effect of arbitration agreements and provides on the:
Binding effect of arbitration agreements and power of court in relation thereto that
(1) Unless the agreement otherwise provides, an arbitration agreement shall not be capable of being terminated except by consent of all the parties thereto,
(2) The court may at any time on the application of any party to an arbitration agreement, on good cause shown –
(a) Set aside the arbitration agreement; or
11 Act No.
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(b) Order that any particular dispute referred to in the arbitration agreement shall not be referred to arbitration; or
(c) Order that the arbitration agreement shall cease to have effect with reference to any dispute referred.”
[20] Guided by the parties’ own agreement, the Act and the persuasive case authorities cited above, I have no hesitation in concluding that by opting for arbitration, the parties voluntarily selected a dispute resolution mechanism as an alternative to litigation. That choice ought to be respected by the courts. Indeed, if a party wishes to abandon an arbitration agreement, it is at liberty to do so as provided for under Section 4 (2) of the Act quoted above. That is not the case in casu.
[21]The parties are still bound by the arbitration agreement in as far as any disputes arising under the contract are concerned. Admittedly in casu no dispute was ever declared. It goes without saying that a matter can only be referred to arbitration
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upon a declaration of a dispute. It is only after the declaration of a dispute that the arbitration processes will then be triggered.
[22] The foregoing leads me to the conclusion that, as long as arbitration remains the declared route of resolving disputes under the contract, it is not proper for the Applicants to change course and follow the litigation route through the courts. As already pointed out above, without jurisdiction, this court cannot consider the merits of this case. I, therefore, wish to respect the contractual arrangement between the parties.
ORDER
]23] Now, therefore, the following order is made:
This application is dismissed for want of jurisdiction with costs on an ordinary scale.
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______________
F.M. KHABO
JUDGE
For the Applicants : Adv., C.L. Lephuthing
For the Respondents : Adv., P.T.B.N Thakalekoala
Cited documents 1
Judgment 1
| 1. | Bataung Chabeli Constructions (Pty) Ltd v Road Fund (C of A (CIV) 34 of 2020) [2021] LSCA 17 (14 May 2021) | 5 citations |