HIGH COURT OF LESOTHO
TIKOE MATSOSO APPLICANT
SEFATSA MAKHENE APPLICANT
TOURIST BOARD (LTB) 1st RESPONDENT
DIRECTORS (LTB) 2nd RESPONDENT
Applicants : Mr. K.T. Khauoe
Respondents : Mr. T. Makeka
by the Honourable Mr. Justice T. Monapathi on the 10th day of October
2000 (See last page)
applications were consolidated. They were heard together in two
stages. First, was two points-in-limine namely that there had been
material disputes of tact which could not be decided at on affidavit.
This point was
later by Mr. Makeka for Respondents.
point was that the matter fell the exclusive jurisdiction of the
Labour Court established in terms of the Labour Code No. 24 of 1992.
And that it mattered not that the main prayer in the notice of motion
may have been seeking for a declaration that the purported dismissal
of Applicants were null and void. That furthermore it did not matter
that in paragraph I9 of Second Applicant's founding affidavit he said
his case was "a proper case for review by this Honourable
Court". The main prayer had remained what it was.
Khauoe had made a point that once matter was not strictly a matter of
unfair dismissal then there was no need to argue about the High
Court's jurisdiction because it was not ousted. It was as he
submitted the High Court still reserved the right to deal with other
dismissals other than those challenge to have been unfair.
was application for amendment of notice of motion. The application
for amendment of the notice of motion has already been dismissed on
the 11th September 2000. Counsel had already addressed to completion
the points in limine and had even rejected the offer to address the
Court in connection with the remarks of Mofolo J in CIV/APN/226/94
MOSEHLE v LESOTHO BANK, 16th March 1999. I had considered the
judgment to be very instructive.
present matter dismissal of Applicants was being challenged.
Respondents' Counsel contended that the matter was no more governed
by common law but fell squarely within the Labour Code Order 1992.
Under common law Lt would have been as governed by the law of master
and servant which provides that if the contract is terminated that is
the end of the matter. Even capriciously so. The issue of fairness
does not arise. So that the dismissed servant had to resort to a
claim for damages. In terms of the new statutory order of the Labour
Code the issue of whether a dismissal was fair or not was a proper
To add on
to the introduction Mr. Makeka for Respondents contended that the
personnel regulations "BTM 3" at section article 3I
envisaged the termination of the service for amongst others
"misconduct." This section when read with section 32
stipulates the terminal benefits that are due under the
circumstances. Respondent contended that that those had been complied
with. Applicants were offered that leave pay as well as their
contribution to the Pension Fund. They did not accept.
pointed out that the dispute was a matter governed by the Labour Code
1992 and that is how the whole process was handled. They said the
dismissal of the Applicants had been in accordance with section
66(I)(b) of the Labour Code which provides that the dismissal must be
"connected with the conduct of the employee at the work place."
In the Respondents understanding the Applicants were not challenging
the substantive fairness of the dismissal
meant chat the Applicants were dismissed for a reason connected with
the conduct of the work place.
submitted further to say chat as the dismissals were being challenged
for procedural unfairness it fell squarely within the jurisdiction of
the Labour Court. Section 70(1) of the Code provides that the claim
for unfair dismissal must be presented before the Labour Court. This
section accorded with section 25(1) which provided that the
jurisdiction of the Labour Court shall be exclusive as regards any
matter provided for under the code including but not intend to trade
disputes. No ordinary or subordinate Court should exercise its civil
jurisdiction in regard co any matter provided for under the code.
Makeka submitted further chat section 24(I)(j) provided that the
Labour Court shall have power, authority and civil jurisdiction to
determine whether an unfair dismissal has occurred and if so award an
appropriate relief and that could be to declare the dismissal null
and void, or to be unlawful if contrary to sections of the Labour
Code, or rules of natural justice. He submitted correctly that the
issue before this Court was that of dismissal which fell squarely
within the four walls of the section.
24( I) of the Code provided that the Labour Court shall interpret the
terms of employment amongst others. These were matters raised in the
Applicants second prayer of the notice of motion. These issues fell
within the ambit of section 79 of the Code and as such "were not
common law principles".
words they were still to be determined by the Labour Court.
24 I (b) was said to reinforce the purview of section 25 (a) (j)
because it provides that the Labour Court shall have the power,
authority and civil jurisdiction to determine any dispute arising of
the terms of any contract or breach of any such terms and if so to
award an appropriate relief Applicants have challenged that the
regulations and conditions of service which govern their relations as
between employer and employees i.e. contractual terms and conditions
were breached by the Respondent. See para 5, 8, 9 of the founding
affidavit of First Applicant.
It is now
trite law that the High Court should not interfere with matters that
fall within the exclusive jurisdiction of the Labour Court which was
designed and was more suited to handle issued of labour relations and
handle the responsibility of discharging equity and fairness.. Mr.
Makeka said that the choice of a President and acting President in
terms of section 23 of the Code suggested a deliberate selection of
qualified and experienced. This underlined the importance of the
court as a specialized Court.
earlier contended by the Counsel Respondents had acted in accordance
with the Labour Code and the section 66(4) in particular which deals
with dismissals connected with an employee's conduct and an
employee's entitlement to defend himself against charges leading to
dismissal. This was strictly in conformity with the common law
principle of and alteram partem. In this case
were charged and heard and were afforded an opportunity to defend
themselves. They were found guilty on a balance of probabilities. On
dissatisfaction it became matter properly to be entertained by the
with Mr. Makeka that the High Court and the Court of Appeal have
previously addressed this issue of jurisdiction of the High Court on
dismissal cases in LESOTHO CLOTHING AND ALLIED WORKERS UNION v GCM
INDUSTRIAL (PTY) LTD CIV/APN/2I8/98 and the case of LESOTHO
WHOLESALERS AND CATERING WORKERS UNION AND OTHERS v METCASH TRADING
LTD AND OTHERS CIV/APN/38/99 Respondents accordingly finally
submitted that the Applicants should have lodged their cases before
the Labour Court. They have wrongly came to the High Court and were
"literally" forum shopping which was frowned upon by the
two highest Courts in the land as shown in the two cases just
mentioned. The jurisdiction of the High Court was thus by operation
of the Labour Code 1992 ousted in favour of the Labour Court and for
reasons which I accepted and which ought to apply to the present
claim. I accordingly decided that the point in limine about the High
Court's lack of jurisdiction succeeds.
that the matter should be referred to the Labour Court unless a
proper application for review is filed before the High Court. See
MOSEHLE case (supra). That application for review when properly made
will take into account the requirements of Rule 50 (about
dispatch/production of record of
unless there was condonation. There were various points of
disagreement in the previous hearing about the production or status
of the proceedings from the disciplinary hearing.
emphasized that that application for amendment of the notice of
motion by Applicants could only amount to an admission that the
application (for a declaration) had originally been irregular. For
the above reasons the application was dismissed with costs.
Peete J on 10th October 2000.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law