HIGH COURT OF LESOTHO
EXECUTIVE COMMITTEE OF
OF ALLIED WORKERS UNION
Applicants : Mr. T. Mahlakeng
Respondent: Mr. T. Monyako
by the Honourable Mr. Justice T. Monapathi on the 9th day of
proceedings urgent orders were sought by the two Applicants as can be
seen from page two of the notice of motion. Therein a rule nisi was
sought calling upon the Respondent to show cause if any why:
shall not be ordered forthwith to refrain from remaining and
visiting, and/or being at premises frequenting the offices of the
Second applicant pending the determination of these proceedings.
shall not be interdicted forthwith from unlawfully interfering with
and/or dealing with the property of the Applicants pending the
finalization of these proceedings.
shall not be directed to refrain from unlawfully interfering with
the officers and employers of the Applicants in the execution of
their duties in any manner whatsoever pending the determination of
shall not be ordered to pay the costs of this application.
shall not be granted such further and/or alternative relief. The
position had been that when argument was first before Court on the
8th September 2000 there had been an interim order made by my
brother Mofolo J substantially directing in terms as prayed for,
subject to confirmation or discharge of the rule.
filed of record an answering affidavit the Respondent. It was that
process which had had an annexed letter dated the 21st August 2000.
This I have extensively commented on in my ruling of the 31st August
2000. I thereby granted the Respondent leave to have filed an
additional/ supplementary affidavit in which he would speak about the
circumstances of the writing of the letter and its contents in
relation to the alleged resolution of the Central Committee of the
Second Applicant. This was particularly to explain to the Court what
transpired in the Central Committee meeting in connection reasons for
what appeared to have been an intention to withdraw the proceedings
before this Court.
affidavit in support of the application has been a very brief one.
not go over it except to say amongst others that it spoke about a
meeting at which this Respondent was suspended and that the meeting
seems to have been premised on there being a need or attempt or
procedurally to have the decision dealt with by the Central
Committee. It noted that the Committee would decide whether to
suspend or remove or do anything by way of ratification or
disapproval of the decision taken by the National Executive
Committee. More about it follows.
from the outset I was convinced that the Central Committee did sit
and that it had to deal with the matter of the resolution (against
the Respondent) of the National Executive Committee because it was
tabled. However I am satisfied and it was unanswerable that the
Central Committee ended up not dealing with the matter but reached a
resolution that effectively side-stepped the matter.
I am also
satisfied that there had been, as one of the matters that caused the
Central Committee not to resolve the matter, the substance or
contents of the letter dated the 17th August 2000 from Attorneys A.T.
Monyako & Co. The terms of the letter were very clear. It was
addressed to the Secretary of the Executive Committee of the
Applicants. Its words were clear and it said:
"We represent Tsele Moeko who received a notice to appear at
IEMS on "19/08/00". He has passed this notice to us for
attention and reply direct while preparing for attendance thereat, he
brought to us an application in the High Court concerning him and the
matters pertaining to the charge against him. In the circumstance our
instruction is to request you as we hereby do by this letter to
postpone the hearing pending the outcome of the matter in the High
Court" (My underlining)
is not on all fours and even contradicts what had been urged to be
common cause namely that the suspension was made pending a decision
situation as I find it, is an anomalous one in which a Central
Committee which had an obligation to deal with the Respondent's
suspension with all the necessary speed, was prevented from doing so
by a letter from the Respondent's Attorneys, for the most spurious of
reasons. I go on to say for the most nonsensical reason because
whether the High Court was seized with the matter or not the Central
Committee would still have to deal with the Respondent's suspension
and charges against him. This was the understanding. Mr. Mahlakeng
conceded as much that despite that there was no direct provisions in
the Constitution stipulating the procedures following on or pending
of the suspension, it appeared to have been the practice and
tradition of the said Applicants which no one seemed to question,
that the Central Committee would deal with the matter. It also made
sense that there had to be a forum for reviewing suspensions which
might after all have been irregularly arrived at or which might have
no good reasons behind them.
to see any grounds for opposing the application. Circumstances showed
clearly that there was a suspension which was brought before the
Central Committee as said hereinbefore. In addition there were so
many things that I found to have been common cause. Firstly, the
proceedings which resulted in the Respondent's suspension were
brought by the National Executive Committee as I did find. This was
unanswered by the Respondent in his answering affidavit. This was
confirmed by the placing of such a suspension before the Central
that the First Applicant held a meeting of the Second Applicant on
the 5th August 2000 and furthermore the Respondent was in attendance.
This again was not denied.
that the Respondent failed to account to the National Executive
Committee when called upon to do so on certain charges or challenges.
Instead he staged a walkout. This again was not answered.
that the National Executive Committee took a decision to suspend
Respondent pending the hearing of proceedings by the Central
Committee. This again was not denied.
believed that the position as I found was that there has been a valid
suspension of the Respondent pending a disciplinary proceedings. I
was not persuaded that because this Respondent at some other time
attended an arbitration award by Union (Second Applicant) it meant
that his suspension could have been removed by implication or
otherwise by the Central Committee. If that was so there should have
been credible evidence before this Court that the suspension was
removed even indirectly. I therefore rejected as baseless the
submission that Respondents' attendance at the arbitration award
showed that he was not suspended or his suspension was removed. This
matter of the Respondent having been involved in an arbitration award
as said above can clearly be characterized as irregular underhand and
breach of the decisions of the Second Applicant due to wilful
disobedience of the same.
Respondent was invited by this Court on the 9th September 2000 to
specifically deal with the problems of the alleged removal of the
expulsion and the intention to remove the case from the High Court.
See my ruling of the 31st August, 2000. In response to my directive
of the 31st August 2000 the Respondent filed an additional affidavit.
What he did most unfortunately was to execute an affidavit which
dealt with so may irrelevancies and not about the circumstances of
the letter TM "4". Not only that. He again made no comment
about that letter.
have been a cardinal error in the beginning. It was a cardinal sin
once it was repeated. There had been no comment either by reference
or otherwise to the contents of the letter. The Respondent was intent
on rambling from left right and centre. For instance he digressed in
paragraph 4 to speak about missing property, handing over and finally
that the matter before Court".......has been brought not to a
proper forum, as there appear to be a friction in the Union see
Sec.24 of the Labour Code No.24 of 1992." I have never seen any
response by a deponent bent on distraction and obfuscation of issues.
I say so bearing in mind what my directive of the 31st August, 2000
to the Respondent had been.
probabilities I did not find that anything stood in favour of the
Respondent in seeking to indirectly remove his suspension. Neither
was he able to fight the prayers in the notice of motion which were
based on the suspension. It was because he did not have any good
I had one
remark to make. It was in connection to the nature or behaviour of
some officials of the Second Applicant which showed that they were
complete strangers to the truth. I need not now point to specific
document except that which was amply shown by Mr. Mahlakeng. It
appeared that the President of the said Applicant was the chief
culprit. He is in the habit of committing errors of getting involved
in contradicting decisions which would amount to perjury if they were
made under oath. He was seen to be in one document (contrary to
Respondent's suspension) and in another document seeking to remove
that suspension by telling a blatant untruth the National Executive
Committee had not sat to decide the Respondents' suspension. Again he
appended his signature to the letter of the 20th August 2000 which
recorded mat the Executive Committee had instructed Mr. Moeko
(Respondent) to resume his duties (having been suspended) as if that
had been the decision of the Central Committee. He went on to sign to
the letter that
about withdrawal of the case from the High Curt whereas the true
position, as appeared in the said Attorneys letter of the 17th August
2000, was to postpone the proceedings of the Central Committee and
not to withdraw the case.
conclusion my understanding was that the suspension of the Respondent
had been valid. Furthermore it was premised on a resolution of the
National Executive Committee as aforesaid, there being a need to
charge the Respondent or remove that suspension if the Central
Committee saw fit to do so. My order was that the Respondent should
be charged and brought before Committee within thirty (30) days if he
was charged. The suspension would stand in the meantime. The
suspension could only be effective if it was complied with hence the
prayers in the notice of motion.
suspensions are disregarded, as it is alleged Respondent did, there
will be indiscipline, disorganisation and chaos in every association
in this country. It is a good policy and is in pursuit of good order
to be fostered that lawful orders or decisions of associations acting
in their committees should not be flouted with impunity. I have found
as proved serious circumstances and mischief on the part of the
Respondent which call for the validation of the suspension and
granting the prayers in the notice of motion. I do this with an award
of costs to the Applicants.
issued out a warning. It was that Orders of the Court were to be
obeyed and complied with. Be they temporary or final. I surely will
not take it lightly that the Respondent is reputed to have gone
against the interim order. He can be assured that proper action will
be taken in appropriate circumstances. Prayers 1, 2 (a) (b) (c) and
(d) of the notice of motion were granted.
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