HIGH COURT OF LESOTHO
MOQENEHELOA KAO PLAINTIFF
by Honourable Judge M.L. Lehohla on 24 day of September, 2001
of the congestion on the roll the parties' respective Counsel Mr.
Ntlhoki and Mr. Matooane prayed that as their matter was crowded out
the court should accept their respective heads of arguments and
decide the matter without hearing oral submissions. While the Court
was sympathetic to their suggestion it nonetheless felt constrained
that justice would not have been done if even where it required
explanations surrounding a point in the issue it should be denied
benefit of counsel's usual helpful assistance. In short the court
while accepting the heads on the one hand, it insisted on the other
that respective counsel speak to them shortly.
by consent the parties dispensed with the necessity to have oral
evidence led but wished the matter to be determined on what appeared
to be points of law raised in the defendant's plea.
of the summons the plaintiff claims
of the sum of M30,210.00
at the rate of 18.5% per annum starting from 30th July 1999 to date
and/or alternative relief.
plaintiff's declaration by way of seeking to establish the cause of
action indicates in paragraph 4 that "at all relevant times
prior to 30th July 1999 defendant (sic) was an employee of defendant
and as at 30th July 1999 he held the position of Manager of
Defendant's Qacha's Nek branch".
declaration further sets out that on 30th July, 1999 the defendant,
in exercise of its powers and policies formally retrenched the
plaintiff and thus terminated his employment with it. The plaintiff
duly accepted the termination.
Plaintiff maintains that in being thus retrenched he placed the
defendant under the necessity to pay him all terminal benefits which
have accrued to him by virtue of his employment with the defendant
and therefore becoming due on termination of such employment.
plaintiff further sets out in his declaration that other terminal
benefits with the exception of severance pay were duly paid by the
defendant notwithstanding that severance pay was included as one of
items in the calculation constituting retrenchment package due to the
plaintiff. The net amount reached in the calculation was M30 210.00
due as severance pay.
plaintiff asserts that the defendant is liable to him in the amount
of the above sum which it however refuses to pay despite demand.
responding to the onslaught the defendant asserts that the matter in
dispute falls within the jurisdiction of the Labour Court and as such
should be removed from the High Court with costs.
defendant further denies liability for the nature of the amount
claimed (i.e severance pay) and asserts that the plaintiff was paid
gratuity which is a more lucrative benefit than severance pay.
earlier respective counsel submitted their heads of arguments, Mr.
Matooane's heads are in broad outline addressed to two issues i.e.
the law and jurisdiction.
learned counsel for the defendant submitted that facts are largely
common cause in this matter in that (a) plaintiff was employed by the
defendant Bank as Manager in Qacha's Nek until 30th July, 1999 when
he was retrenched and that (b) the plaintiff was given a retrenchment
package which included gratuity, hence the
plaintiff's complaint that he was not given severance pay in
accordance with the Labour Code Section 79.
learned counsel indicated further that the defendant's contention is
that it paid the plaintiff gratuity instead of severance pay as the
latter would have been a smaller amount than the former. It appears
that this assertion is not denied by the plaintiff who however
contends that despite this payment of gratuity he was still entitled
to severance pay.
set out factors which are said to be common cause above Mr. Matooane
set about the contention relating to the law by reference to section
4 (a) of the Labour Code Order No 24 of 1992 as follows:
"The standards laid down in the Code are the minimum legally
obligatory standards and are without prejudice to the right of
workers individually and collectively through their trade unions to
request, to bargain for and to contract for higher standards, which
in turn then become the minimum standards legally applicable to those
workers for the duration of the agreement".
Matooane submitted that because it is not denied that the plaintiff
received a higher sum than that prescribed under Section 79 of the
Labour Code Order he does not have any cause to complain. He demurred
at the fact that the plaintiff seems to be bent on receiving a double
benefit where one is only allowed which in any case is
smaller than the more lucrative one that he has received. Learned
Counsel thus challenged that if the plaintiff was dissatisfied with
the more lucrative amount granted him by the defendant he should have
refused it or only accepted the amount equal to severance pay while
tendering the balance back to the defendant.
severance payments the relevant subsections of section 79 of Order
24/92 provide that:
employee who has completed more than one year of continuous service
with the same employer shall be entitled to receive, upon
termination of his.........services, a severance payment equivalent
to two weeks' wages for each completed year of continuous service
with the employer.
no case, regardless of an employee's length of service, may the
amount of severance pay payable to an employee exceed a sum which
may be prescribed by the Minister from time to time after
consultation with the wages Advisory Board.
the purpose of subsection (1) the two weeks' wages referred to shall
be wages at the rate payable at the time the services are
right to severance pay in accordance with this section shall apply
as from the date of entry into force of this part of the code.
Rights to severance pay accrued under the Wages and Conditions of
Employment Order 1978 shall be enforceable under the terms of that
Order, notwithstanding its repeal".
purposes of completeness I wish to also place in view provisions of
Section 80 relating to penalty as follows:
"An employer who fails to make a severance payment in accordance
with section 79 shall be guilty of an offence and shall be liable on
conviction to a fine of six hundred Maloti or imprisonment for six
months or both".
been informed by both counsel that for purposes of subsection (1) the
plaintiff qualified to receive severance pay as he has been in
continuous service for more than the minimum period stipulated
coupled with the fact that he was not dismissed for misconduct;
further that for purposes of subsections (3) and (4) calculations,
for the amount a party in his boots is entitled to, have been made
and are determinable.
from section 6 set out above it appears to me that payment of
pay is obligatory in that it is specified that rights to severance
pay accrued under the Wages and Conditions of Employment Order 1978
shall be enforceable under the terms of that order, notwithstanding
its repeal" (emphasis supplied)
it seriously be contended that the provision referred to immediately
above applies in all circumstances without exception? While at first
blush it may seem the answer is in the affirmative, it becomes
doubtful whether the situation could be said to remain the same even
in circumstances where so-called severance pay has been effected
under the guise of gratuity which exceeds in extent the amount of
severance pay the party was entitled to on the one hand while on the
other hand the Code makes no provision for the species of benefit
known as gratuity whatsoever.
remains, if I am correct in assuming from the view point of the
defendant that the plaintiff has been paid more than was due to him
had what he received been properly been viewed as severance pay, is
to determine whether what he was paid in this connection can be
ignored. I think circumstances under which it can be ignored would be
if it could properly be said that the money which the plaintiff
received was a form of a bonus. But a bonus is payable at the end of
every year where applicable. In the present case what has been
calculated and determined is the exact amount of the severance pay
whose extent was exceeded in paying to the plaintiff an amount
constituting a species of payment that is unknown and therefore would
never have been enforceable if it was not paid i.e. gratuity.
being the case the provisions of section 4 (d) become of immense
importance as guidance and in my view should be applicable when read
under the provisions of any other legislation a person may have a
remedy as provided for in that legislation, that remedy shall be in
addition to and not in place of any remedy provided for by the Code.
in no case may there be double monetary recovery by the same person
based on the same set of facts ". (Emphasis supplied by me)
to reason that on the application of the above provision, and once by
judicial interpretation part of what was paid constitutes an amount
equal to severance pay, though labelled gratuity by the party paying
it, then the defendant should be freed from liability to pay
severance pay as this would amount to condemning it to effecting
double pay, a factor emphatically frowned upon by the code which lays
down that "..........................in no case may there be
double monetary recovery...............".
regard to jurisdiction Mr. Matooane relying on sections 24 and 25 (1)
as amended contended that payment of severance pay falls within the
purviews of section 24 (1) saying:
Court shall have power, authority and civil jurisdiction:
inquire into and to decide the relative Rights and duties of
employers, employees and their respective organizations in relation
to any matter referred to court under the
of the code". ( Court here refers to Labour Court). Section 25
(1) as amended reads as follows :
"The jurisdiction of the Labour Court shall be exclusive as
regards any matter provided for under the code including but not
limited to trade disputes. No ordinary courts shall exercise civil
jurisdiction in regard to any matter provided for under the Code".
Matooane thus submitted that bringing this action before the High
Court infringes not only provisions of section 4 of Labour Code
(Amendment) Act 9/97 but Section 6 of the High Court Act 1980. He
buttressed his submission by referring to the important decision by
Freidman J.A. in CGM Industrial (Pty) Ltd vs LECAWU & OTHERS C of
A (CIV)No 10 of 1999 (unreported) at page 7 to the following effect:
"The existence of such specialist courts points to a legislative
policy which recognises and gives effect to the desirability, in the
interests of administration of justice, of creating structures to the
exclusion of the ordinary courts".
this important dictum from a broad spectrum one would be readily
tempted to say the above decision marked a crucial departure from
earlier decision of Makhutle vs Lesotho Agricultural Bank C of A
(CIV) No 1 of 1995 where Browde JA said
"It is a well established principle of our law that there is a
strong presumption that the legislature does not intend to oust the
jurisdiction of courts of law and that a provision in a statute which
is to be construed as ousting such jurisdiction must be clear and
unambiguous in that regard".
on to say :
"Interference with the High Court's jurisdiction can only be
effected by express provision or by necessary implication and any
provision which purports to limit the jurisdiction of the High Court
will be strictly construed . See Minister of Law & Other vs Hurly
1986(3) SA 5568 (A) AT 584 A-B, Lenz TOWNSHIP (Pty) Ltd vs LORENZ
N.O. 1961 (2) SA 450 (A) at 455 B".
to say the above comments were buttressed in C of A (CIV) No. 29 of
1995 ATTORNEY-GENERAL vs LESOTHO TEACHERS TRADE UNION.
while one was blissfully extolling the welcome remarks of Friedman in
LECAWU above for sounding the last word on the issue that the purpose
for the existence of the Labour Court should not be side-stepped as
that would often amount to the demurred phenomenon of forum-shopping
that by subsequent legislation i.e. Labour Code (Amendment) Act 2000
all that had been achieved in LECAWU was swept aside by the repeal of
section 24 (1) (f) which was to beneficial effect insofar as concerns
the plaintiff that:
Court shall have the power, authority and civil jurisdiction to
determine any dispute arising out of the terms of any contract of
employment or the breach of any such terms and if so, to award
to say section 25 as to Labour Court's exclusive civil jurisdiction
has been amended by section 9 which in my view re-affirms that
jurisdiction by employment of different wording which happily does
not violate or do violence to the letter and spirit of the original
fact remains that the repeal of section 24 (1) (F) leaves the
plaintiff without a remedy which was available to him prior to that
repeal. It affords him no relief that penalties are exacted on a
Ntlhoki's argument has merit that with the demise of section 24 (1)
(f) the Labour Court's usefulness in affording relief to an aggrieved
plaintiff has been emasculated and since, like nature justice
countenances no vacuum, any other competent court can therefore
presently "determine any dispute arising out of the terms of any
contract of employment or the breach of any such terms and if so, to
award appropriate relief.
inclined to accept Mr. Ntlhoki's submission that the Appeal Court
decision in LECAWU above is not apposite to the present case because
remedy sought in the present case is not prescribed in the Labour
Code - i.e. enforcement of judgment sounding in money by issue of a
writ of execution.
[the Labour Court can only deal with the matter criminally and exact
a fine or penalty upon an employer]
To this extent it would seem that resort to the High Court by way of
action was justified because if successful, the plaintiff would be
able to enforce his claim by a writ of execution which is lacking in
the Labour Court.
matter is not provided for under the Labour Code. The Code does not
deal with gratuity nor that where gratuity and severance pay are in
issue, the higher of two is payable to the exclusion of the other.
[I accept submission (b) subject to what I have already determined in
regard to it earlier in this judgment.]
propriety of paying the higher of the two between gratuity and
severance pay gives rise to a determination of the dispute
arising out of the terms of a contract of employment. This is no
longer provided for under the Labour Code.
considered what I regard as of relevance for purposes of deciding the
matter before me I find on the one hand that the plaintiff has been
more than adequately paid what would be due to him as severance pay.
If he is not satisfied with the gratuity which was paid to him he can
either return it to the defendant so that the latter can disburse out
of it the severance pay, or the plaintiff can himself pay back to the
defendant the amount over and above the severance pay the exact
amount of which has already been determined and calculated. On the
other hand I find that the plaintiff has been successful in making a
good case for coming to this Court notwithstanding quality wisdom
that is above rubies in LECAWU.
plaintiff's claim for unpaid severance pay is dismissed.
defendant's objection to this Court's jurisdiction over this matter
each party has been successful to a substantial degree each party
will accordingly bear its own costs.
Plaintiff: Mr. M. Ntlhoki
Defendant: Mr. T. Matooane
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