IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/0203/2023
In the matter between:
REALEBOHA NKUATSANA 1st APPLICANT
MASILO MAPHALLA 2nd APPLICANT
and
MINISTER OF JUSTICE, LAW AND 1st RESPONDENT
PARLIAMENTARY AFFAIRS
MINISTER OF PUBLIC SERVICE 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
Neutral citation : Realeboha Nkuatsana and Another v Minister of Justice, Law and Parliamentary Affairs and 2 Others [2023] LSHC 09 CIV (06 February 2025)
CORAM : KHABO J.,
HEARD : 11 JUNE 2024
DELIVERED : 06 FEBRUARY 2025
SUMMARY
Discrimination - In the workplace - Where Applicants engaged as High Court Interpreters allege differentiation in pay between them and their counterparts in the National Assembly - On the basis that this pay differentiation constitutes discrimination which violates Sections 18 (2) and 19 of the Constitution of Lesotho - Court finds that Applicants’ job titles and responsibilities differ with those of National Assembly interpreters and that the disparity in pay does not constitute discrimination - Discrimination having not been established, the application is dismissed.
ANNOTATIONS
Statutes and subsidiary legislation
Constitution of Lesotho, 1993
Cases cited
Lesotho
The Principal Secretary, Ministry of Public Service and 2 Others v `Makhahliso Ts`upane and 15 Others C of A (CIV) No. 11/2020
Other jurisdictions
Eswatini
Swaziland Government v Swaziland National Association of Civil Servants on behalf of Hospital Orderlies and Auxiliary Staff and 2 Others Civil Appeal Case No. 84/2015
South Africa
Transport and General Motors Union and Another v Bayete Holdings (1999)20 ILJ 1117 (LC)
Literature
D. Du Toit Labour Relations Act, 1995 2nd ed., Butterworths Publishers, 1998
ILO - Robert Heron and Caroline Vandenabeele - Labour Dispute Resolution - An Introductory Guide, 1999
J. Grogan - Workplace Law 7th ed., JUTA, 2007
J. Grogan - Workplace Law, 11th ed., JUTA, Cape Town, 2015
JUDGMENT
KHABO J.,
Introduction
[1] Applicants are engaged by the High Court of Lesotho. They claim to have been unfairly discriminated against by being accorded remuneration and salary grading different from officers holding the same position of Principal Interpreter at the National Assembly. They contend that the salary grade attached to Principal Interpreters in the National Assembly is Grade G when they hold the same position but are graded differently at Grade F.
[2] Applicants claim that this constitutes discrimination in two respects, firstly, that they hold the same position as them, and secondly, that their workload is more than theirs. They regard the differentiation as unjustified, and in contravention of Sections 18 (2) and 19 of the Constitution of Lesotho, 1993 (the Constitution) which provide, respectively, that:
18 (2) Subject to the provisions of subsection (6), no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority;
19 Every person shall be entitled to equality before the law and to the equal protection of the law
[3] They have approached this court to seek the following reliefs:
- That the decision of the Respondents in terms of which they have unfairly discriminated against [them] by according them remuneration and grades different from officers holding the same position of Principal Interpreter be declared invalid and of no force or effect and therefore null and void in that it contravenes provisions of Section 19 of the Constitution;
- That it shall be ordered that the Applicants be graded and remunerated at the appropriate grades equivalent to grades held by Principal Interpreters placed at Parliament;
- That it shall be declared that Applicants should be accorded the same remuneration, benefits and other privileges enjoyed by other officers holding similarly graded positions of Principal Interpreters;
- That the Respondent be ordered to pay to the Applicants the arrear balances which were supposed to have been paid to them since December 2002 in terms of the decision of the 2nd Respondent;
- That the respondents pay costs of this application;
- Further and/or alternative relief.
Respondents’ case
[4] The application is opposed with Respondents contending that Applicants were not discriminated against. Justifying this stance, Respondents contend that positions of Principal Interpreters at the National Assembly were upgraded and re - designated following a job evaluation exercise[1] undertaken by the Ministry of Public Service. That the position of Principal Interpreter in the National Assembly was abolished in 2002 and re - designated to Interpreter as reflected in annexure “HC1” to the notice of motion. They submit that it, therefore, no longer exists in the organisational structure of the National Assembly.
[5] It is further argued on behalf of the Respondents that entry requirements of positions of Principal Interpreter in the High Court and that of Interpreter at the National Assembly differ. That the entry level requirement for the position of Interpreter is a Master’s Degree in Linguistics, with a major in English Language and Sesotho/Literature/Arts.
[6] It is also Respondents’ case that the position of Principal Interpreter in the High Court has now been re - designated to Court Interpreter at Grade F.[2] The specifications for this position are a Bachelor’s Degree in Translation or Interpretation.[3] That Applicants can, therefore, not be remunerated like Interpreters in the National Assembly as their qualifications differ.
Principles regulating equality in pay
[7] The basic rule against discrimination in wages flows from the premise that all employees doing the same work should be similarly rewarded[4] emanating from the principle: ‘equal pay for equal work.’ The principle applies to work that is: the same, substantially the same or of equal value.
[8] However, there may be salary differentiations for people who do a similar job. Various factors such as expertise, skill, experience, responsibility, and the organisational structure may influence disparity in pay. It, therefore, follows that salary differentiation does not automatically provide a ground for a discrimination claim.[5] Confirming, this basic principle, the Supreme Court of Swaziland (then) stated in Swaziland Government v Swaziland National Association of Civil Servants on behalf of Hospital Orderlies and Auxiliary Staff and 2 Others:[6]
An employer may pay different wages to employees who perform the same type of work, provided there are certain justifiable variables that inform the disparity, such as expertise, skill and experience etc.
[9] This case involved a claim for discrimination over pay differentials between Hospital Orderlies at psychiatric hospitals and Hospital Orderlies at non - psychiatric hospitals. The court in this case found the Respondents to have established that the differentiation in pay between Hospital Orderlies in psychiatric and in non – psychiatric hospitals constituted discrimination and the judgment of the court a quo was upheld.
The court in Transport and General Motors Union and Another v Bayete Holdings[7] quoting with approval from D. Du Toit in Labour Relations Act, 1995,[8] from held that:
However, the mere fact that an employer pays one employee more than another does not in itself amount to discrimination.
[10] Anyone, complaining of discrimination in the area of wages and cash benefits must be able to show that they are not receiving dues accorded to others doing like work. They must prove that work done by the comparator is the same as theirs, and that there is a difference between their salary and that of the comparator. The test was aptly captured by J. Grogan, in his work Workplace Law[9] when he stated claimants must establish that “their counterparts, who they cite as comparators, are performing work of a similar nature, and that there is no rational explanation for the difference in pay.”
Whether the pay differentiation between High Court Interpreters and those of the National Assembly constitutes discrimination
[11] The issue for determination is crisp, and it is whether pay differentiation between High Court Interpreters and those of the National Assembly constitutes unfair discrimination. In terms of the Ministry of Public Service circular dated 03rd December, 2002, the position of Principal Interpreter in the National Assembly was regraded and re-designated to Interpreter, at Grade G.[10] The savingram is reproduced for a better appreciation of the issue at hand (quoted verbatim):
|
POSITION |
GRADE |
NEW GRADE |
REMARKS |
|
Hansard Editor |
F |
H |
Regrade and re designate - Senior Editor |
|
Assistant Hansard Editor |
F |
G |
Regrade and re -designate Hansard Editor |
|
Principal Interpreter |
F |
G |
Regrade and re - designate Interpreter |
|
Senior Interpreter |
F |
F |
Re - designate Assistant Interpreter |
|
Chief Recorder |
E |
F |
Re - graded and re - designate Senior Recorder |
|
Senior Recorder |
E |
E |
Re - designate – Recorder |
|
Recorder |
D |
D |
Re designate Recording Assistant |
Applicants compare themselves with Principal Interpreters above.
Differing job titles and grades
[12] As reflected above, the position of Principal Interpreter which was graded at F (where Applicants are as Court Interpreters) has been abolished, and re - designated to Interpreter and re - graded to G at the National Assembly. It is also extinct in the High Court as per annexure ‘ML 2.’ According to the learned author D. Du Toit (supra)[11] discrimination in respect of pay occurs when two ‘similarly circumstanced’ individuals are treated differently. The question to ask at this juncture is whether Applicants are similarly circumstanced with National Assembly Interpreters.
[13] Annexure ‘ML 2,’[12] a savingram from PS Ministry of Public Service dated 10th November 2023 to the Registrar of the High Court clearly states at para. 3 that twelve (12) positions of Court Interpreters at Grade F have been created, and at para. 4 explicitly that positions of Assistant Interpreter and Principal Interpreter will automatically be abolished once they become vacant effective from 1st January 2013.
[14] On the same date, 10th November 2020, the Judicial Service Commission resolved to, among others, promote the 1st Applicant, Realeboha Nkuoatsana, from Principal Interpreter, then Grade E, to Court Interpreter at Grade F effectively from 23 April 2015 and the 2nd Applicant, Masilo Maphalla from Assistant Interpreter, Grade F to Court Interpreter, same Grade F as depicted by ‘ML 3’ to Respondents’ answering affidavit.
[15] Clearly, Applicants are now Court Interpreters graded at F, the title they seem to want to avoid. The court finds it very difficult to fathom which position Applicants are comparing themselves with in the National Assembly. This enquiry is necessitated by the need to answer the forestated test in claims of disparity in pay, namely, that persons who complain of pay differential must establish that their counterparts who they cite as comparators are performing work of a similar nature, and that there is no rational explanation for the difference in their pay.
[16] As explained above, Applicants are now styled ‘Court Interpreters’ and no similar position exists in the National Assembly. The now extinct position of Principal Interpreter was graded at ‘F’ in the National Assembly, and it has been re - designated and regraded to Interpreter at grade G as aforestated.
[17] The position of Principal Interpreter at the High Court was graded at E as evidenced by ‘ML 14’ (job description for the position), ‘ML 9’ (1st Applicant’s promotion to the position of Principal Interpreter), and ‘ML 10’ (1st Applicant’s offer of appointment on probation for the position of Principal Interpreter). Conversely, the position was graded at F in the National Assembly then. Had the Applicant lodged this discrimination complaint at the time, it could have perhaps seen the light of day. It is now water under the bridge because the position has since been changed.
Differing responsibilities
[18] Respondents further averred that responsibilities attached to positions of High Court Interpreters and those of the National Assembly are different as borne out by ‘ML 14’ (job description of Principal Interpreters of the High Court and Court of Appeal), title now extinct, and that of Court Interpreter (also annexure ‘ML 14’ compared with ‘ML 5’ Principal Interpreter at the National Assembly are different. According to ‘ML 14’ High Court Interpreters’ main duties include:
(a) Interpretation of court proceedings in both official languages, namely, Sesotho and English; and
(b) Translation of records and correspondence submitted in court into both languages.
[19] When National Assembly’s Interpreters’ include:
(a) Performance of oral translation of Ministerial statements and speeches, questions, answers when Parliament is in session;
(b) Writing translations of the Members/Senators’ questions, motions, and amendments;
(c) Production of the Hansard when Parliament is not is session by the translating and editing typed scripts of the Senators
[20] Much as both jobs relate to interpretation in a lot of respects, the court finds them different, not even similar because they are not ‘similarly circumstanced’ with National Assembly Interpreters.
[21]Faced with a similar case in The Principal Secretary, Ministry of Public Service and 2 Others v `Makhahliso Ts`upane and 15 Others[13] in which Respondents, High Court Executive Secretaries claimed to be discriminated against Ministerial Secretaries, who held the same job title as them, but were graded higher, the apex court held that much as both are Executive Secretaries, their conditions of employment are different in that High Court Executive Secretaries are permanent and pensionable when Ministerial Secretaries are contractual with contracts terminable with the termination of a Minister’s position in Government or a regime change.
[22] The court further observed that Ministerial Secretaries do not enjoy the degree of job security that High Court Executive Secretaries do. The apex court found the differentiation in grades between the two categories not to constitute discrimination because of the difference in the conditions of service and upheld the appeal. In the same vein, the court discerns no discrimination in casu in that Applicants’ job titles and responsibilities differ from those of National Assembly Interpreters, thereby, rendering the disparity in pay not to constitute discrimination.
[23] Applicants compared things that were not similar. It, therefore, finds Applicants’ argument to be moved from Grade F to G in line with National Assembly Interpreters to have no basis. The issue raised by the Applicants that the workload of High Court Interpreters is heftier than that of National Assembly Interpreters can only be ascertainable by a job evaluation exercise, hence, the court cannot address it.
Disputes of right v disputes of interest
[24] The Court observes that Applicants seem not to appreciate the difference between a “dispute of right’ and a ‘dispute of interest.’ A ‘dispute of right’ “involves the interpretation or application of an existing right, as laid down in labour legislation, a collective agreement, an individual labour contract, or an existing practice.”[14] While a ‘dispute of interest’ concerns disputes concerning matters of mutual interest to workers about future terms or conditions, where parties are negotiating to establish new rights or modify existing ones, often arising during collective bargaining. Normally ‘disputes of interest’ are subject of negotiation and do not fall within the purview of courts.
Conclusion
[25] The court finds Applicants to have failed to substantiate their claim, on a balance of probabilities, that the disparity in grades between them and National Assembly Interpreters constitutes discrimination. Discrimination having not been established, the application is dismissed. All the prayers sought by the Applicants are untenable.
Costs
[26] On the question of costs, there seems to be nothing to persuade the court to deviate from the general rule that “costs follow the result,” and the rule shall, therefore, apply.
ORDER
[27] In the result, the court makes the following order:
The application is dismissed with costs.
_________________ F.M.KHABO
JUDGE
For the Applicants : Adv., L.D. Molapo
For the Respondents : Adv., L. Tau
[1] Annexure ‘ML 4’ to the answering affidavit
[2] Annexure ‘ML 2’ to the answering affidavit
[3] Annexure ‘ML 14’ to the answering affidavit
[4] J. Grogan supra Note 3 at p. 130
[5] J. Grogan - Workplace Law 7th ed., JUTA ,2007 at p. 263.
[6] Civil Appeal Case No. 84/ 2015 at para.10
[7] (1999) 20 ILJ 1117 (LC)
[8] 2nd ed., Butterworths Publishers, 1998 at p. 436
[9] 11th ed., JUTA, Cape Town 2015 at p. 131
[10] ‘HC 1”to the notice of motion
[11] Supra at p. 436
[12] Annexed to Respondents’ answering affidavit
[13] C of A (CIV) No. 11/2020
[14]ILO - Robert Heron and Caroline Vandenabeele - Labour Dispute Resolution - An Introductory Guide, 1999