C OF A (CIV) NO.10/2002
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
In the matter between:-
VICE CHANCELLOR OF NUL FIRST APPELLANT
NATIONAL UNIVERSITY OF LESOTHO SECOND APPELLANT
and
PROFESSOR ALAN FEMI LANA RESPONDENT
CORAM:-
Steyn P.
Kumleben J.A.
Grosskopf J.A.
Labour law – dismissal – whether Labour Court
has exclusive jurisdiction
JUDGMENT
GROSSKOPF JA:
The respondent was employed by the second appellant for a fixed period of four years as a director of the second appellant’s Bureau of Projects, Training and Consultancy Services (“NUL- CONSULS”). His term of service was due to expire on 10 May 2002. He was a so-called expatriate member of the staff. His contract of employment provided for a possible extension on the following terms in paragraph 8 (iii) thereof:-
“Six months before the expiry of the contract of an expatriate member, he may request or be given an extension of his contract by the University.”
The respondent applied in writing for an extension of his contract on 29 October 2001, which was more than six months before the expiry of the contract.
In a letter dated 31 October 2001 the Senior Assistant Registrar (Appointments) of the second appellant informed the respondent-
“that [at] the last meeting of the Academic Staff Appointments Committee [“ASAC”] held on the 25th October 2001, it was decided that your contract will not be extended.”
In terms of Statute 21.1(c) of second appellant’s Statutes ASAC had the right only “to recommend [to the Council] the extension or non-renewal of contracts of members of the academic staff.” Thereafter the chairman of the Council had to approve appointments on behalf of the Council. It is the respondent’s case that his employment was terminated by ASAC before the recommendation of non-renewal had been approved by the chairman of the Council in terms of Statute 21.2.
The respondent further submits that the appellants failed to comply with the alleged peremptory provisions of paragraph 2.1. of Ordinance no.11 of the second appellant’s Ordinances which required the Registrar to issue a reminder to each employee of the expiry date of his contract “at least seven months before that date” and to inform the employee whether the contract was open for renewal. Paragraph 2.1 further provided-
“If the employee wishes to extend or renew his contract of employment, he shall, not later than six months before the expiry date of his contract, apply for renewal or extension in writing.”
I have pointed out in paragraph 1 above that the respondent had complied with this provision in time despite the Registrar’s failure to issue the required reminder.
The respondent was informed on 27 November 2001 that ASAC had decided on 26 November 2001 not to accept his plea for an extension of one year. The respondent lodged an appeal against ASAC’s decision of 26 November 2001, whereupon the first appellant warned the respondent in writing on 4 December 2001 not to frustrate the handing-over process.
The next step taken by the respondent was the launching of an urgent ex parte application in which he applied to the High Court for a rule nisi. On 6 December 2001 the Court a quo issued a rule nisi calling upon the appellants to show cause why:
“2.(a) Respondents shall not be interdicted forthwith from interfering with the Appellant in any manner whatsoever in the execution of his duties pending the determination of this application.
(b) The decision of the Academic Staff Appointments
Committee of the 25th October 2001 shall not be set aside
and/or declared a nullity.
(c) The Respondents shall not be ordered to comply with the peremptory requirements of Ordinance No.11 read together with Statute 21 of the Second Respondent.”
The first appellant and the Registrar of the second appellant filed answering affidavits and when the matter was eventually heard the appellants raised two points in limine, namely-
That it was a labour matter which fell within the exclusive jurisdiction of the Labour Court.
That the respondent had not complied with the requirement that the certificate of urgency must set out the alleged grounds of urgency.
The respondent on the other hand asked the Court a quo to review the decision of ASAC not to renew his contract and to set it aside as ultra vires Statute 21 and Ordinance 11. The Court a quo held that the Labour Code Order, 24 of 1992, (“Labour Code”) did not give the Labour Court powers of review, while the High Court could competently review ASAC’s decision.
The learned judge decided that this was indeed a review application and held that the High Court had jurisdiction to entertain the review application, seeing that it enjoyed unlimited jurisdiction under section 119 of the 1993 Constitution of Lesotho (“the Constitution”). The Court a quo concluded that the decision of ASAC was ultra vires and of no force and effect. In the result the Court a quo confirmed prayers 2(b) and 2 (c) of the rule and ordered the appellants to pay the costs of the application.
The appellants lodged an appeal on a number of grounds, inter alia on the ground that the respondent’s application was not brought before the Court in the first instance as a review application and that the correct procedure, prescribed by Rule 50 of the High Court Rules for review proceedings, had not been followed. The main ground of appeal however remained the first point which the appellants had raised in limine in the Court a quo, i.e. that this was a labour matter which fell within the exclusive jurisdiction of the Labour Court. I now turn to deal with this jurisdictional issue.
It is common cause that the respondent entered into a contract of
employment with the second appellant for a fixed period of four years which expired on 10 May 2002. The contract provided for a possible extension, but it came to an end without being renewed by the second appellant as the employer. The termination of the contract in these circumstances resulted in a “dismissal” in terms of the definition of “dismissal” in section 68 of the Labour Code. Section 68 provides as follows:-
“For the purposes of section 66 ‘dismissal’ shall include-
…….
The ending of any contract for a period of fixed duration or for the performance of a specific task or journey without such contract being renewed, but only in cases where the contract provided for the possibility of renewal;
………”
11. Section 69 (1) of the Labour Code requires the employer to provide a written statement of the reason for “dismissal”( as defined in section 68) to any employee who is so dismissed. In the present case the following reason for the “dismissal” was given in the letter of 31 October 2001 (referred to in paragraph 2 above):
“… it was decided that your contract will not be extended. This decision has been taken to accommodate the latest sentiments expressed within the context of the Transformation Action Plan 2000 and Beyond, which envisages a redefined and reconfigured NUL-CONSULS.”
According to this letter the reason for the termination of the respondent’s employment was based on what could be described as the “operational requirements” of the second appellant as the employer. Section 66 of the Labour Code deals in subsection 1 (c) with dismissal (as defined in section 68) where the reason for the termination is based on the “operational requirements” of the employer.
Section 66 (1) and (2) provide as follows:-
“(1) An employee shall not be dismissed, whether adequate notice is given or not, unless there is a valid reason for termination of employment, which reason is:-
based on the operational requirements of the undertaking, establishment or service.
(2) Any other dismissal will be unfair unless, having regard
to all the circumstances, the employer can sustain the
burden of proof to show that he or she acted reasonably
in treating the reason for dismissal as sufficient grounds
for terminating employment.”
12. Section 226 of the Labour Code, introduced by section 25 of the Labour Code (Amendment) Act, 3 of 2000, (“Labour Code Amendment Act”), provides that the Labour Court has the exclusive jurisdiction to resolve disputes relating to “dismissal” (as defined in section 68) where the reason for the dismissal is related to the “operational requirements” of the employer (as provided for in section 66 (1) (c) referred to above). The relevant portion of section 226 reads as follows:-
“(1) The Labour Court has the exclusive jurisdiction to resolve the following disputes:
subject to subsection (2), the application or interpretation of any provision of the Labour Code, or any other labour law;
………..
an unfair dismissal if the reason for the dismissal is-
(i) ……..
(ii) ……...
related to the operational requirements of the employer.”
In my view the legislation referred to above clearly shows that the Labour Court had exclusive jurisdiction in the present case to resolve the dispute as to whether the respondent was dismissed (as defined in section 68 (b)), and whether the reason for his dismissal was based on the “operational requirements” of the second appellant, as required by section 66 (1) for a fair dismissal.
The respondent however submitted that the Labour Code did not oust the jurisdiction conferred on the High Court in terms of section 2 of the High Court Act 5 of 1978 (“High Court Act”), and entrenched in section 119 of the Constitution. The respondent therefore maintained that the High Court had at least concurrent jurisdiction to deal with the present matter, either as a review application or otherwise.
It has been decided by this Court in the past that interference with the “unlimited original jurisdiction” of the High Court, as provided for in section 119 (1) of the Constitution, can only be effected by express provisions and that labour law provisions which purport to limit the jurisdiction of the High Court will be strictly construed. (See A. Makhutla v Lesotho Agricultural Development Bank 1995-1996 LLR-LB 191 at 194; Attorney General v Lesotho Teachers Trade Union and Others 1995-1996 LLR-LB 345 at 359-360.)
More recently, and after the 1997 amendment to the Labour Code mentioned in paragraph 16 hereunder, this Court held in CGM v Lecawu and Others 1999-2000 LLR-LB 1 at 7 that section 119 (1) of the Constitution cannot be interpreted in isolation and that it must be construed in the light of the Constitution as a whole, but particularly in the light of section 118. “Thus construed, the original jurisdiction vested in the High Court in terms of section 119, does not detract from the exclusive jurisdiction conferred by Parliament, in terms of the Constitution, on the Labour Court established in terms of the Code.”
The learned judge in the CGM case further remarked at 6-7:
“Section 118 (1) provides that the judicial power shall be vested in the courts of Lesotho which shall consist of, inter alia, ‘such tribunals exercising a judicial function as may be established by Parliament’. (Section 118 (1) (d)). The Labour Court is a tribunal exercising a judicial function which has been established by Parliament. The manifest purpose of the legislature in establishing the Labour Court was to create a specialist tribunal with expertise in labour matters. As Botha JA said in Paper, Printing, Wood & Allied Workers’ Union & Pienaar NO 1993 (4) SA 621 (A) at 637 A-B.
‘The existence of such specialist Courts points to a legislative policy which recognises and gives effect to the desirability, in the interests of the administration of justice, of creating such structures to the exclusion of the ordinary Courts.’
See also Amalgamated Clothing & Textile Workers Union v Veldspun Ltd 1994 (1) SA 162 (A) at 173 G-H.
That is precisely what the legislature sought to achieve by the enactment of the Code. Its power to do so emanates from section 118 (1) of the Constitution.”
The intention of Parliament to confer exclusive jurisdiction on specialist tribunals with expertise in labour matters and the aim of the legislature to refer all matters concerning industrial relations to the Labour Courts become apparent when the 2000 amendments to the Labour Code are considered. I have already referred to section 226 of the Labour Code which was introduced by section 25 of the Labour Code Amendment Act of 2000. Section 226 confers exclusive jurisdiction on the Labour Court to resolve certain specific disputes. The substitution of section 25 (1) of the Labour Code is another example of the legislature’s intention to grant exclusive jurisdiction to the Labour Court in specific instances.
The old section 25 (1) of the Labour Code provided as follows after the 1997 amendment:
“(1) 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 subordinate court shall exercise its civil jurisdiction in regard to any matter provided for under the Code.”
(Emphasis added.)
Reference was then still made to a “subordinate court”.
The following new section 25 (1) was however substituted by section 9 of the Labour Court Amendment Act of 2000, and reference was now made to “court”:
“(1) The jurisdiction of the Labour Court is exclusive and no court shall exercise its civil jurisdiction in respect of any matter provided for under the Code-
Subject to the Constitution and section 38 A; and
Notwithstanding section 6 of the High Court Act, 1978 (Act No.13 of 1973).”
The following remarks on the wording of section 25 (1) are however pertinent:
1. Section 38A referred to in subsection 1(a) deals with the jurisdiction of the Labour Appeal Court.
2. The reference to “Act No.13 of 1973” in subsection 1 (b) of the above quoted published version of the Labour Code Amendment Act is a patent error since Act 13 of 1973 is the Veterinary Surgeons Act.
3. The reference to “section 6 of the High Court Act, 1978” in subsection 1(b) of the quoted published version of the Labour Code Amendment Act was probably intended to be a reference to section 2 of the High Court Act which provides for the “unlimited jurisdiction” of the High Court.
For the reasons set out above I am of the view that the present matter fell squarely within the exclusive jurisdiction of the Labour Court and that the High Court had no jurisdiction to hear the matter. In the light of the conclusion I have reached on this jurisdictional issue, it is unnecessary to consider any of the further aspects raised by the appellants.
In the result the following order is made:-
1. The appeal is upheld with costs.
2. The order of the Court a quo is set aside and the following order is substituted therefor:
“The rule is discharged and the applicant is to pay the
costs of the application.”
Delivered at Maseru this 11th day of October 2002.
__________________
F.H. GROSSKOPF
Judge of Appeal
I agree: ____________________
J.H. STEYN
President
I agree: _____________________
M.E. KUMLEBEN
For the Applicants : Adv. M. Mosae
For the Respondent: Adv. T. Mahlakeng