HIGH COURT OF LESOTHO
Application of :
TSEKOA 1st Applicant
MATSABA 2nd Applicant
GREEN 3rd Applicant
MOCHESANE 4th Applicant
GENERAL MANAGER LESOTHO
MILLS 1st Respondent
CHAIRMAN OF BOARD OF GOVERNORS
FLOUR MILLS 2nd Respondent
FLOUR MILLS 3rd Respondent
OF AGRICULTURE CO
AND MARKETING 4th Respondent
ATTORNEY GENERAL 5th Respondent
by the Hon. Mr, Justice M.L. Lehohla on the 7th day of November,
application has been moved on behalf of applicants in terms of Rule
50. It was brought on an urgent basic in terms of a certificate
urgency signed by the applicants' attorney who solemnly and
sincerely declared that this is a matter calling for urgent
application was nevertheless on notice to the respondents on behalf
of all of whom service was effected on 4th and 5th respondents
18th October 1988, and scheduled for hearing on 28th October 1988 at
agreement between parties counsel the application was heard on 31st
the applicants representing some upwards of three hundred fellow
employees of 3rd respondent sought
of this Court for :-
with the forms and service provided for in the Rules of Court;
review and setting aside of the decision of 1st respondent summarily
dismissing applicants and fellow employees of 3rd
reinstatement of all employees who were summarily dismissed; and the
consequent re-engagement in the employment of 3rd respondent
for settlement of the trade dispute between the employees and 3rd
respondent to a tribunal in terms of sections 54 -
57 of Part (9) IX
of the Trade Unions and Trade Disputes Law - 1964;
of costs of this application by 1st 2nd and 3rd respondents.
was further given that 1st respondent was to bo called upon and
required to dispatch to the Registrar, within 7 days of that
the record of his decision to dismiss applicants and other employees
of 3rd respondent on 10th October 1988.
response to the first prayer Mr. Tarn-pi for the respondents
submitted that nothing is urgent about this application and that
there was no need therefore for applicants' attorney to have signed
and filed a certificate enabling this application to pass for
that is genuinely urgent. He deplored the levity with which such
certificates are issued and invited the Court to comment
state of affairs. He relied for his submissions on Rule 8 (22) (b)
(mistakenly in his submission cited as Rule 9(22)) providing
"In any petition or affidavit filed in support of an urgent
application, the applicant shall set forth in detail the
which he avers render the application urgent and also
the reasons why he claims that he could not be afforded substantial
in a hearing in due course if the periods presented by this
Rule were followed."
relying on the above rule submitted that this is a case of some
workmen in a commercial concern who were dismissed. Had
they a case
they could have
damages for unlawful dismissal or re-instatement. So if these
remedies could be afforded in ordinary proceedings, he
that there cannot be any palpable reason why they did not follow
such a procedure. He buttressed his argument by
submitting that the
Court cannot scramble an omelet.
drew respondents' counsel to a case CIV/APN/402/86 Khoboko vs Khoboko
and 2 others (unreported) at 7 where this court
quoted with approval
the dictum in Emiran Pty (Ltd) vs New Woodhole Hotel 1967(2) 3A.
where Eksteen J. said at 493 :-
"I regard it as desirable that an applicant seeking to dispense
with the ordinary procedure should set out in his affidavit
regards the matter as one of urgency and should refer explicitly to
the circumstances on which he bases this allegation
and the reasons
that he claims he could not be afforded substantial relief at the
hearing in due course."
paragraph 15.2 at page 15 of the record the first applicant Tseuoe
Tsekoa says :-
"I have been informed by certain employees of the Third
Respondent who are still in the employ of the 3rd Respondent and I
verily believe the same to be true and correct that the 1st
respondent is attempting to fill the vacancies that have been created
by the aforesaid unlawful dismissals. I humbly submit that the
abovementioned applicants have to bring this application as
matter of urgency in order to secure the reinstatement of the
locked-out employees. I submit further that this is a matter that
warrants urgent relief."
averment cannot be said to be at variance with provisions of Rule
8(22) and less still with the dictum by Eksteen J. referred
Taken along with the fact that notice was served on respondents it
would seem to me that Mr. Tampi's objections are not
in the right
ballpark. To this extent applicants are therefore safely in the bosom
of the court.
have been a different story perhaps, if his disapproval was based on
Rule 8(23) which provides that
respective periods allowed in an application against a Minister
etc..... shall not be less than fourteen days after service
of motion unless the court shall have specially authorised a shorter
period. In the instant application no authorisation
for a shorter
period was sought or granted in a manner that reconciles itself with
my understanding of the purport of this rule.
The fact that the
notice of application craves for leave to dispense with the forms of
service provided for in the Rules of Court
does not free an applicant
from doing more in order to receive special authorisation by the
court. Such authorisation can only
be obtained following a special
application. Special in the sense that it does not fall to be treated
as an application envisaged
under the provisions of sub rule (8). As
it stands this application though brought against persons specified
in sub rule 23 bears
no distinction from one brought under sub rule
(8). I think that is wrong. But as sub-rule (23) was not invoked
anywhere in these
proceedings nothing much turns on it except that it
is worth bearing in mind in similar applications. Sub-rule (22) is an
to sub-rule (8) but sub-rule (23) is not. It best (23) and
(8) exist side by side.
argued for applicants that with regard to their status the employees
of Lesotho Flour Mills i.e. 3rd respondent are public
servants and as
such are employed in the public service of the Lesotho Government.
definition of "the public service" I was referred to the
interpretation Part 1 of Order No. 21/1970 section 2(1)
where it is
rendered as "subject to the provisions of this section,"
meaning "service in respect of the Government
Further the phrase "Public officer" is said to mean a
person holding or acting in any public office.
further referred to Basutoland Pensions Proclamation No. 4 of
1964 section 2(1) of which says "Public Service"
service in a civil capacity under the Government of Basutoland or any
other country or territory in the Commonwealth. Under
2.2 of his
heads Mr. Matsau however has mode reference to Lesotho
of Basutoland and conveniently cut out words which follow the name
these definitions he submitted that employees of 3rd respondent are
public servants for they are people in the public
service of Lesotho.
Further that it makes no difference that 3rd respondent is a trading
account, because persons employed therein
are public servants paid
from funds of the Lesotho government;
argued that the relationship between applicants and 3rd respondent is
not one of "purely master-servant" type.
Mr. Matsau urged
that they should be looked upon as two private individuals and
reinstatement in this instance is appropriate.
For this submission he
relied on remarks appearing in Barclays Bank P L C vs. LUBE and
Standard Bank P L C vs. LUBE CIV/A/12/87
- CIV/A/13/87 (unreported)
at 16 - 18; where argument was rejected that because the relationship
was that of Master and servant
between the parties reinstatement
would not be appropriate. Relying on authorities cited in support of
the above view Mr. Matsau
submitted that courts can in certain and
appropriate circumstances order reinstatement in an employment
contract. That they can
order specific performance.
important to observe that 3rd respondent is a trading account formed
in terms of sections 13 and 19 of finance Acts 1973 and
respectively, the actual wording of which is almost identical and
"The minister may by warrant under his hand authorise the
operation from the Consolidated Administration Account of specific
trading accounts within an amount appropriated for this purpose where
necessary and shall issue such directions regarding
operation of, and account for, such accounts as he considers
Act of 1978 has been repealed by Order No. 6 of 1988 section 38(1).
But (2), provides that :-
"Notwithstanding the repeal effected by subsection (1) the
Financial Regulations 1973 shall continue in force until replaced
regulations made under .
It may be
difficult to understand how financial regulations relating to a
defunct Act can remain in force. Finance Act 1973 was
Finance Act 25 of 1978.
subsection (3) provides that
"......... Trading Accounts existing before the commencement of
this order shall continue to exist and shall be deemed to
established under this Order"
was published on 5th August 1988 but in terms of section 1 shall be
deemed to have come into operation on 1st April 1988.
So clearly 3rd
respondent owes its creation to subsection (3).
exposition should suffice to dispel applicants' uncertainty about
which of the two repealed Acts is applicable. Furthermore
Appendix Vll and acting under powers conferred on him by section 13
of finance Act 1973 the minister of Finance issued directions
which was the establishment of a trading account entitled the Mill
Trading Account the purpose of which "shall be to
Mill on commercial lines."
his argument and pointing out that applicants and the employees of
3rd respondent on being dismissed tenets of natural
justice were not
observed Mr. Matsau raised the question whether in exercise of his
powers the General Manager was not required
to act fairly. He
accordingly submitted that the modern trend of thought is that the
former distinction between acting administratively
judicially is no longer valid. For this submission he relied on Ridge
vs Baldwin 1923(2) All E.R. 66 in which Ridge,
the Chief Constable of
Brighton, was tried for conspiring to corrupt the course of justice
but was acquitted. The Brighton Watch
Committee then dismissed him
from his office as Chief Constable under the Act entitling them to
dismiss any constable "whom
they think negligent in the
discharge of his duty." The court of Appeal endorsed the
Committee's finding for it maintained
Committee had acted only in on administrative capacity. The House of
Lords however overturned this view on the grounds that
holder of office from which he was removable only for cause could not
validly be dismissed by local police authority
in the absence of
notification of the charge and an opportunity to be heard in his
defence. The decision was rendered void
as the House of Lords had
taken the view that the Rules of Natural justice had not been
referred to Foulks' Administrative Low 233-234 where it is stated :
"Procedures cannot in fact be easily classified into the
judicial on the one hand and the administrative on the other."
234 the learned author reports
"The question was tackled head-on in Re (H). K (an infant) 1967
All E.R. 266. K was entitled to enter the UK if he satisfied
immigration officer that he was under sixteen. The officer took the
view that K was at least sixteen. K sought to quash the
refusing him admission, arguing that the officer was acting in a
judicial capacity. Lord Parker C.J., after saying that he
that the officer was not acting in a judicial or quasi-judicial
capacity said that even if he were not he still had to
act fairly. In
this case this meant giving K an opportunity of satisfying him as to
his age and for that purpose he had to let
K know what his immediate
impression was so that K could disabuse him of it............."
learned author proceeds as follows
"We find in that bold decision both a refusal to be
strait-jacketed in the judicial-administrative dichotomy and the
introduction (or reintroduction (of) or emphasis on) the idea of
fairness. In Schmidt vs Secretary of State for Home Affairs (1969)
All. E.R. 904 5, a US citizen had been allowed into the UK for a
limited period to study at the College of Scientology. He applied
the Home Secretary for an extension of his stay. His application was
rejected without giving him a hearing. Lord Denning said
former distinction between acting administratively and acting
judicially was no longer valid. And in R vs Gaming Board
Britain (1970) 2 ALL E.R. 528 his Lordship categorised as heresy the
view that the principles of natural justice apply only to judicial
and not to administrative proceedings".
the liberty to browse on page 235 to which I was not referred and
found that in a later decision R vs Commission for Racial
(1980) All E.R. 265 Lord Lane C.J. said
"It does not profit one to try to pigeon-hole the particular set
of circumstances either into the administrative pigeon-hole
judicial pigeon-hole. Each case will inevitably differ, and one
must ask oneself what is the basic nature of the proceeding
going on here?"
Caiman vs National Association for Mental Health (1971) 2 All E.R.
362 where G was expelled from the association........,
held he was not entitled
hearing. The power of expulsion being, by the rules, unrestricted.
See page 237 of Foulkes' book.
referred to the suggestion by Lord Reid in Ridge above, that the duty
to restore the Rules of Natural justice should be inferred
nature of the power conferred upon the authority. It was further
submitted that it is useful to consider in any particular
whether a person has acquired a right, interest or "legitimate
expectation of which it would not be fair to deprive him
hearing what he has to say." See Schmidt above at 909.
dictum earned the approval of Fagan J. in Everett vs Minister of the
Interior 1981(2) S.A. 453. It was further endorsed in
Antonio Mario Florio vs Minister of the Interior CIV/APN/293/88
(unreported) at page 9 where Kheola J. said
"According to the principles enunciated in Everett's cose
(supra) the applicant in the present case has acquired a right
consisting of a legitimate expectation of being allowed to stay in
Lesotho for an indefinite period ...."
Longeni and Others vs Minister of Health and Welfare and Others
1984(4) SA at 97 Goldstone J said
"I would add the example of a public official who would become
entitled to a substantial pension benefit if he remains in
position for a further 12 months. An official or board has the power
to terminate his employment on six months' notice. Such
clearly has no legal right or interest in remaining in his employment
for any period after the expiry of a six month
notice period. In my
judgment, however, he might have acquired a legitimate expectation or
a legitimate claim of entitlement
to remain in such employment
in the absence of some good and sufficient reason to dismiss him.
Even if he has no right to the reasons
for the termination of his
employment, it would be unfair and unjust to terminate his employment
without giving him the elementary
right to be heard."
examination of authorities considered in Langeni case above at 98
leads to a passage extracted from Judicial Review of Administrative
Action 4th Ed. by De Smith at 227 where the following words appear:-
'First, in "a pure case of master and servant," dismissal
was legally effective, although the servant had been given
opportunity to be heard, that the facts might show breach of contract
entitling the servant to damages. special considerations
where the power to dismiss a servant was fettered in certain ways.
Secondly, where the occupant of an office was removable
he had no right to apply for a hearing and no remedy for dismissal.
Thirdly, where the occupant of an office was removable
only for a
cause, e.g. inability or misbehaviour, he had an implied right to
prior notice and opportunity to be heard.'
an example of the first category i.e. a pure case of master and
servant was Grundling vs Beyers and Others 1967(2) SA 131
Trolip J said
"As he was employed by the executive committee on a contract
that was terminable on a month's notice, and which did not oblige
Union to permit him to work during the notice period, it could
lawfully and immediately have dismissed him in the latter way
having to give him any reasons or hearing."
submitted that the relationship between the main disputant parties in
this application is not one
master and servant Mr. Matsau argued that the summary dismissals were
the examination of factual issues which form the basis of this
application one would have to refer to the parties' affidavits..
terms of the main affidavit by the 1st applicant it seems that
conditions of employment are spelt out in annexure "G"
otherwise referred to by respondents as Employee Hand-book marked.
applicant avers that salary increments of every employee of 3rd
respondent occur annually at the beginning-of the month of October
and that these increments range from 6% to 15% depending on the
salary of the employee.
further averred at page 7 of the record that he. was advised on 30th
September of salary increase due to him for the year commencing
1st October 1988. He was dissatisfied with it because it was not on
par with what is applicable in the civil service yet by
virtue of the
fact that 3rd respondent is a creature of the Ministry of Agriculture
there ought not to have been any such disparity
which naturally would
invoke indignation. It riled him that not only were salaries reviewed
in the Civil service in April 1988
but that other parastatal
organisations in Lesotho followed suit.
response to this averment the General Manager Paul Stephen Banford
averred at page 60 that
"salary revisions are undertaken by the Government on an ad hoc
basis often after several years. In the Lesotho Flour Mills,
into account the inevitable inflation, salaries are reviewed on an
annual basis .......... It is totally unwarranted
employees to demand that their wages should be commensurate with the
salary structure of, the public service."
accordingly referred me to his annexure "A" or else
applicants' G i.e. the Employee Handbook with a rider that
"This fact is known to every employee of Lesotho Flour Mills. I
was referred to page 16 para 2
of this booklet reading "Hourly wage rates will be reviewed
annually to take account of changes in the cost of living effective
from 1st October of each year."
thereof under the rubric salary Reviews :-
"Staff employees will be notified of the lower and upper limits
of the salary range applicable to their particular job. A
cost of living and merit review will be undertaken annually ........"
response to Banford's averment and against the clear reading
contained in this booklet at the relevant paragraphs referred to
above 1st applicant at page 75 says :
"I deny that salaries are reviewed on annual basis at the
Lesotho Flour Mills,"
further to explain as follows:-
"The salaries are increased annually at the beginning of
October. The salary structure has never been reviewed, but we have
had annual increments at a fixed percentage rate. The word "review"
at page 16 of Annexure "G" means increments
indicated above salaries have always been increased annually."
the view that the above exposition is evidence of a layman affected
by his involvement in the case I sought for a clearer
view from his
counsel; first whether he associated himself with this obvious
inaccuracy but to my greatest amazement he replied
affirmative. I do however realise that the Sesotho version may be
misleading but on all accounts would have expected counsel
the difference especially when the context shows that in the
commercial world the revenue generated does not increase
at a uniform
or predictable rate. Indeed if I may venture to illustrate it is
hot-unthinkable that an occasion may arise when the
state of funds at
the time of effecting reviews may be such that salaries may just be
frozen instead of being increased or worse
still the management may
have to retrench staff because of financial constraintsin a
commercial concern during a particular year.
Needless to say the
substance of the explanation sought to be given in connection with
applicant's averment loco citato escapes me. Indeed if at the end of
the financial year. there happens to be no profits generated
business with what funds and from what source would one be able to
effect salary increases for staff?
A look on
the reverse of the medal shows that, assuming it is correct that the
increase is at fixed percentage rate, employees stand
to lose out in
an occasion where profits are enormous and the inflation rate has
swollen by a large proportion. In such circumstances
to the fixed percentage rate advocated by applicants would be as
illusory and as unwise as following a friar's lantern.
therefore of the firm view that the words review and increment are
not synonymous. The context in which they have been used
make them approximate each other in meaning. Finally whatever
likeness can be discerned between the two is the same
between chalk and cheese. Therefore no amount of boxing the compass
can lead to any other conclusion than that a review
is a review and
an increment is an increment; although that is not to say a salary
review may not result in a salary increment.
But this contigent
result docs not necessarily turn one into the other. Similarly, the
fact that a turkey can stand on one foot
does not entitle one seeing
a goose standing on one foot to say that goose can after all be a
light of the contention held by applicants as outlined in the last
but 2 paragraphs back, it is to be observed therefore
at page 3(b) of his heads of arguments Mr. Tampi has given a correct
interpretation of salary reviews and wage rate
reviews as they appear
in the employee handbook he has nonetheless betrayed an over-optimism
by including (b) among what he refers
to as agreed facts.
Matsau further submitted that even assuming that the terms and
conditions of employment are governed
employee handbook the General Manager acted ultra vires the powers
conferred on him by Regulation 2 of Rules and procedure
conditions of Employment (page 53 of the Record) in that he has not
shown that he dismissed the employees by agreement
departmental head or personnel manageress.
submission overlooks the requirement in the preceding paragraphs that
an onus is placed on an employee to talk informally
to his or her
superiors in reverse fashion of their pecking order till applying
verbally or in writing to the Personnel Manager
for an independent
opinion about his or her grievance.
to the next leg of his argument Mr. Matsau stated that on 6th October
1988 the management of Lesotho Flour Mills instituted
Ref. 5.3.1 of his heads of arguments.
humbly asked to consider the meaning of a lock-out the definition of
which appears in the interpretation section 2(1) of the
and Trade Disputes Law 11 of 1964 as follows :-
means an act of an employer done in consequence of a trade dispute
closing his place of business or suspending or discontinuing this
business or any branch thereof;
discontinuing the employment of any employees, whether wholly or
breaking his contract of service; or
refusing or failing to engage employees for any work for which he
usually emloys workers, with intent to -
(i) compel or induce employees to agree to terms of employment or
comply with any demands made upon them by such or other employer;
(ii) cause loss or inconvenience to the employees employed by him or
to any of them;
(ill) ............ or;
(iv) assist any other employer (to realise results spelt out in
"To lock out" has been defined as meaning "to become
party to a lock-out".
it was submitted that a lock-out has to be in consequence of a trade
dispute and with intent to compel or induce employees
to agree to
terms of employment or to comply with any demand made upon them by
applicant averred on page 9 that on 5th October employees reported
for work; assembled inside the premises of 3rd respondent
the reply from the management. (Be it remembered that they had
expressed dissatisfaction with contents of letters advising
increments dispatched to employees late in September). At about 9.
am. the General Manager, Mr. Kao and their personel
other members of the management team came to the gathering of the
employees. The General Manager addressed the assembly.
applicant points out that the General Manager did not discuss the
employees' grievances; but instead gave a directive that
should go to their respective positions of work.
applicant does not say whether the directive was complied with save
that it was a matter of surprise to the gathering since
was waiting to hear the management's response to the grievance
concerning the "review" of salaries.
safely be assumed the directive was not complied with because in the
next paragraph i.e. 10-2 he proceeds
"At about 10.30 am. the General Manager returned to the
gathering, however he still did not open the discussion pertaining
the said grievances of the employees. He merely repeated that our
gathering was illegal."
It is to
be gathered from this applicants' averment in para 10.3 at page 9 of
the record that the arrival of the Principal Secretary
things to some semblance of order and normality because after the
P.S. left the gathering with an undertaking that
the employees' grievances he would return at 2.00 pm. this applicant
says "The employees resumed work as soon
as Mr. Ntokoane left."
But strangely in para 11.1 he proceeds to say
"Immediately after the departure of Mr. Ntokoane certain two
uniformed members of the Royal Lesotho Mounted Police came to
gathering about our assembly. The gathering spoke at random and set
out the grievances of the employees ........."
thus left in a quandary to establish where the truth lies in these
two sets of contradictory averments by one and the same
saying work was resumed by employees as soon as the P.S. left and in
the same breath saying the gathering was enquired
after the P.S.'s departure.
However he proceeds in para 12.1 that
"the following day i.e. 6th October I and the applicants herein
and all other employees of 3rd respondent reported for duty
the start of business. The main and only gate and entrance was
locked. The said entrance had hitherto been left open at
One Roger Hutton, John Wescott both in the employ of 3rd respondent
in different specialised capacities and a security
standing at the gate inside the premises."
1st applicant concluded "The 3rd respondent had apparently
instituted a lock-out......"
"Westcott and Hutton. were manning the gate and the keys were
being handled by one of them. There were certain employees that
Westcott allowed inside the premises and all others he refused to let
65 of the record in response to the above averments (See para 20 ad
paras 12.1, .2, .3 and .4) Banford avers "The first
this paragraph contains an averment which is a distortion of the true
circumstances. On the previous day i.e. 5th October,
there were clear
indications that the striking workers had by their action determined
to prevent the normal
of the operations of the mill. That day in the afternoon a truck
arrived from Astoria Bakery with a loading crew of
about 4 or 5 men.
a firm of bakers who get their supplies from the mill and are one of
our biggest customers. The strikers shouted and made
a lot of
disturbance, and in fact assumed a threatening and menacing attitude
to the loading crew of the bakery vehicle. Some of
shouted "get away". The loading crew who were obviously
frightened for their lives deserted the truck. As
a cumulative result
of these various acts of indiscipline the management team had a
genuine apprehension that if the striking
workmen were left at large
within the mill premises the tense situation which was inexorably
building up would degenerate
into acts of violence causing danger to
life and property."
should not be lost of the averment in the 3rd paragraph that
"The current investment in the enterprise is to the tune of
M50,000,000 which by any token is the most substantial capital
investment by the Government of Lesotho." Ref. pg. 59.
to the charge Banford further avers pg.66 that
"The management also apprehended that should any damage be
caused to the plant a national investment could have been
out. Such a scenario demanded emergent and deterrent action by the
management to prevent such a danger.
On the material day 50 to 60 workers got on the premises and
positioned themselves around the roadways. They did not proceed to
their work places as they should have. I observed them and was
satisfied that they had no intention of working but were congregating
on the premises with the intention of impeding and obstructing the
normal operations of the mill. I was seriously concerned about
security situation and I therefore instructed my team to close the
main gates and only allow those workers who gave clear indication
that they were willing to work. At no time did the management have
any intention of instituting a lock out.
The police who were at the mill on Wednesday returned on Thursday
morning on their own and instructed those workers who were idling
the premises to leave the mill premises. The visit of the
Commissioner of Police was just a normal follow up action."
Matsau submitted that the retiring of police on their own and the
normal follow up action by the Commissioner of Police are
of the fact that there was no cause for alarm in the mill premises.
But this submission ignores the fact that before
so retiring the
police who had been on the premises for a period spanning the
afternoon, night of the previous day and the following
satisfied themselves that by expelling men who were idling on the
premises normality would be, as indeed it was restored.
significance could therefore turn on the visit of the Commissioner of
Police which was as has been stated a normal follow
up action after
his men had been on the spot to restore order and normality.
proceeded as follows on page 67 :-
"On Friday October 1988 in the morning Mr. Kao told the
gathering on my instructions that the workers who deliberately
their labour and took part in an unlawful strike were
thereby in breach of their contract of employment, Mr. Kao in no
terms ordered them to report to work immediately, and warned
them for the last time, that should they fail to do so immediately
they should consider themselves to have been summarily dismissed in
terms of F read with G of Employees Handbook".
"An employee found to be guilty of any of the following offences
will be summarily dismissed. Payment in lieu of normal notice
not be made."
"Wilful disobedience of a lawful order" constitutes one of
the offences spelt out in F.
Banford further averred
"The Personnel Department were instructed to note the names of
people who did not report to work and formal
letters of dismissal were to be issued to all workers who did not
report for work. As a result of the foregoing, 14 of the striking
workers reported for work and performed their normal duties. It
should be pointed out that 98 employees never took part in the
unlawful strike ........ The action of management in refusing entry
to the premises to those who did not want to work was activated
solely by security considerations. It could not in the eye of the law
or in common sense be construed as a lockout."
79 the allegation that the Astoria Bakery crew were threatened is
denied by 1st applicant. He sets out the procedure that
is to be
followed by vehicles coming into the premises of 3rd respondent to
load. Among other things this involves the alighting
of the crew at
the gate letting the vehicle to be driven to the weighbridge by the
driver. When the loading is complete the vehicle
is driven out of the
gate by the driver.
this applicant chose not to address himself to any other
averments,besides the loading procedure made by Banford in
paragraph in question despite that Bandford's other averments are
telling against the conduct of the employees who were there
constitute what he terms an unlawful strike.
paragraph 24 at page 68 Banford says that the respondents' contention
is that the dismissal of striking employees was lawful
of being impugned. He further states that the dismissals were made in
pursuance of provisions of section 15(3)(b)
and (d) of the Employment
Act 1967. Section 3(b) lays down that
"An employer may dismiss an employee summarily ........ for
wilful disobedience to lawful orders given by the employer (d)
habitual or substantial neglect of his duties."
sections read exactly the same as sections G(10) and (14) of the
employee handbook which sets out, conditions of employment
translation of a letter C1 at 34 addressed to personnel Manager reeds
"We are not satisfied with the increments to our salaries for
the following reasons :-
Servants salaries were reviewed in April. We expected that our
salaries would be reviewed in October as well because we
living under similar hardships
find it difficult to survive in the . present rise of the cost of
therefore that until we shall have received a satisfactory answer we
will suspend our day to day work."
letter is signed by a good number of persons.
stressed that the argument that the management of 3rd respondent
started the strike and perpetuated it by means of a lockout
merit because the employees in their own papers attached to the
foundin affidavit of 1st applicant have clearly stated that
withholding their services in contravention of their contract of
employment terms. See G(10) and (14) above.
regard to the complaints raised in para 8.4 at page 7 Banford has
replied as follows :-
"My comments are that should any discontent have existed amongst
the applicants it was solely due to a misunderstanding of
position of Lesotho Flour Mills as a commercial enterprise. At
no point during the existence of the Lesotho Flour Mills
account taken of the salary structures of the Public services or of
Parestatals for that matter, in fixing the salary structure
employees. It is rather strange that in the applicants' complaint
about their salaries not being adjusted according to Government
they are conveniently ignoring the fact that all along they have been
the recipients of the several 'perks' not available
Transport to and from work
supply of 50 kg of flour at cost price
contribution to the Pension Fund by the employer.
payment in December each year.
site medical facility to ensure health and safety e.g. full time
Review of Wages and salaries."
applicant has counted some of the items set out above at page 75
where he has pointed out that employees contribute 5% of their
salaries towards their pension scheme. He has, indicated that an
employee is entitled to participate in this scheme only if he
permanent employment. Further, that the retiring age is 65 years.
Consequently he contends that employment on permanent basis
constitutes legitimate expectation that it would subsist till
attainment of on employee's retiring age. Thus 1st respondent was
obliged to observe the Rules of Natural Justice especially the Audi
Alterem Partem rule.
response Mr. Tampi submitted that at common law the relationship of
master and servant is governed by a development of the branch
law of letting and hiring. Thus an employee may be discharged without
notice. See South African Mercantile and Company Law
by J.T. Gibson 5
Ed. at page 229 where the learned author has illustrated that wilful
disobedience of a lawful order within the
scope of his appointed
duties may result in an employees's dismissal without a hearing.
further submitted that indeed while to an increasing extent
legislation governs service contract statutes do not provide
contract for the parties. See S. vs Prefabricated Housing Corporation
Pty Ltd. 1974(1) SA. 553 (AD).
referred to Act 22 of 1967 i.e. the Employment Act and to Trade
Unions and Trade Disputes Law of 1964 in volume X at 282.
question whether there was a strike I think abundant evidence is to
be found in Annexure C to the founding affidavit read
15 and 16.
of Law 11/1964 sets out the entire procedure for settlement of trade
disputes. Section 56(1) sets
a matter in dispute should be referred for settlement to arbitration.
58 provides that if one of the parties refuses to consent to
arbitration he may serve a notice to declare a strike at the
expiration of 4 weeks from service of such notice.
of section 59 only if a strike or lockout is carried out in
accordance with a statement of intention notified under section
it lawful. "Any other strike or lockout is unlawful."
Section 64 of Law 11/64 holds guilty of an unfair labour
any employee who carries on any activity intended to cause a serious
interference with the business of his employer.
Mr. Tampi thus
submitted that it is the worst form of interference with supplies and
services to threaten, intimidate and scare
submitted that because no notice of intention to strike was given,
nor had 4 weeks elapsed from date of notice were it there,
strike was unlawful.
to the complaint that the management's actions constituted a lock out
Mr. Tampi submitted that the management had a duty
to protect public
property which represented an investment of M50,000,000;,and that the
management excluded only those workers
who were not working but were
bent on creating chaos. Therefore the exclusion of workers carrying,
on an unlawful strike was aimed
at protection of public property and
thus falls out of the purview of section 2 of Law 11/64. He thus
indicated that the question
of lock out raised by applicants is a
mere red herring drawn across the trail.
pointed out on behalf of respondents that with regard to the summary
dismissal the contractual position is governed by Employee's
handbook. At page 2 under the rubric Introduction the handbook reads
"This booklet......in conjunction with the details contained in
your appointment letter and the details about yourself .....
basis of your contract of employment with Lesotho Flour Mills."
provides in that contract that wilful disobedience of a lawful order
entitles the management to summarily dismiss a defaulting
under this section. Thus Mr. Tampi submitted that in this case
employees were ordered several times to desist from their
strike and to resume duty. They however disobeyed that order. In
terms therefore of the contract of agreement they were
liable to be
further drew attention to sub-section 4 of section 15 of the
Employment Act 1967 which says :
"An employee may refuse to continue to work for an employer if
he has been ill-treated by that employer. The question whether
ill-treatment has taken place may be referred to a labour officer
under the provisions of section . 81". ,
Tampi indicated that there hasn't been any complaint to a labour
officer. Thus it can be inferred that no " employee
ill-treated by his employer. He held in question the appearance for
the first time of a fleeting reference to failure by the
to observe the audi alteram partem rule before the summary dismissal
of employees. He explained that the factual position
was that on no
less than six different occasions the strikers were warned that the
strike action was unlaw-,ful, and that they
were ordered to resume
their normal work,coupled with an expression of willingness to
discuss their grievances. This indeed
is amply borne out in the
affidavits sworn to by deponents on behalf of respondents. The
September issue of De Rebus shows at 626
under the rubric 'Mass
dismissals as a result of industrial unrest' that :-
"In the case of industrial unrest which justifies dismissal, for
example a strike, employees can be dismissed en masse provided
are given adequate warnings (ultimalums) and the dismissal is
fair. A major difference between a mass dismissal and
dismissal is that a mass dismissal is virtually never intended to be
permanent and re-instatement
in one or other form is almost always offered to the dismissed
employees. This should be, borne in mind whenever mass dismissal
contemplated as a remedy."
factors that the Court considered relevant to determine whether the
dismissal was fair or not in Die Read van Mynvakbonde
vs Die Kamer
van Mynvese van SA. (1984) 5 IL J 344 were
cause, nature, extent and purpose of the strike.
of employee and of employer
of the strike
and result of the strike
purposes of Labour Relations Act (Our unfair Labour Practices Act)
and principles of collective bargaining.
or absence of negotiations in good faith
provisions of the relevant contracts of employment particularly
those provisions that deal with the employees' participation
in which employer and employee conducted themselves during the
applicants' response to the management's efforts and attempts to
restoration of normality was continued defiance thereof.
on Grundling vs Beyers above Mr. Tampi argued that under the common
law there is no obligation on the employer to afford
his servant a
hearing before dismissing him.
reference in Langeni (above) to a passage at 99 to 100 by Lord
Wilberforce may be helpful
"....... in master and servant cases, one is normally in the
field of the common law of contract inter partes, so that principles
administrative law including those of natural justice, have no part
to play,............... in pure master and servant cases, the
that can be obtained is damages, if the dismissal is wrongful: no
order for reinstatement can be made, so no room exists
remedies as administrative law may grant, such as a declaration that
the dismissal is void."
to National Union of Textile Workers vs Stage Packings Pty Ltd &
Another 1982(4) SA. 151(T) shows that in the words
of Roger W.
Rideout in The Principles of Labour Law 3rd Edition at 83 :
"There is no general principle which precludes an order of
specific performance for an employment cotract. However, there
weighty practical considerations which militate against such orders
being granted in the general run of cases......"
of Lord Lane referred to earlier in this judgment continue to give a
lasting note namely "what is the basic nature
of the proceeding
which was going on here."
I have no
doubt that it was an unlawful strike that defied lawful orders in
consequence of which the strikers were lawfully dismissed.
relied on by Mr. Matsau is proper and interesting but the facts seem
not to fit in with it. Thus like Prince Rupert's drops
disintegrate at a mere touching.
uphold the first prayer and award 2½% costs to applicants but
dismiss all other prayers with costs to respondents.
Applicants : Mr. Matsau
Respondents : Mr. Tampi.
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