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:

1. 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.

2. 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 25^th 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.

3. 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.

4. 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.

   
   

5. 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 25^th
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.”

6. 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-

   
   

1. That it was a labour matter
   which fell within the exclusive jurisdiction of the Labour Court.

   
   

2. That the respondent had not
   complied with the requirement that the certificate of urgency must
   set out the alleged grounds of urgency.

   
   

7. 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.

   
   

8. 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.

   
   

9. 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.
   

   
   

10. 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-

1. …….

   
   

2. 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;
   

   
   

3. ………”

   
   

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:-

1. …….

   
   

2. …….

   
   

3. 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:

1. 
   subject to subsection (2), the application or
   interpretation of any provision of the Labour Code, or any other
   labour law;

   
   

2. 
   ………..

   
   

3. 
   an unfair dismissal if the reason for the dismissal is-

   
   

(i) ……..

(ii) ……...

3. 
   related to the operational requirements of the
   employer.”

   
   

13. 
    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.

13. 
    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.)

    
    

13. 
    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.”

13. 
    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-

1. 
   Subject to the Constitution and section 38 A; and

   
   

2. 
   Notwithstanding section 6 of the High Court Act, 1978
   (Act No.13 of 1973).”
   

   
   

(Emphasis added.)

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.

13. 
    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.

    
    

13. 
    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 11^th day of October
2002.

__________________

F.H.
GROSSKOPF

Judge
of Appeal

I
agree: ____________________

J.H.
STEYN

President

I
agree: _____________________

M.E.
KUMLEBEN

Judge
of Appeal

For
the Applicants : Adv. M. Mosae

For
the Respondent: Adv. T. Mahlakeng