HIGH COURT OF LESOTHO
HIGHLANDS PROJECT CONTRACTORS 1st Respondent
BATIGNOLLES (PTY) LTD 2nd Respondent
BEATY (PTY) LTD 3rd Respondent
BERNARD (PTY) LTD 4th Respondent
(PTY) 5th Respondent
A.G. 6th Respondent
by the Hon. Mr. Justice W.C.M. Maqutu Acting Judge, on the 17th day
of December, 1993.
21st September, 1993 in which applicant filed an urgent application
ex parte in which he asked for a Rule Nisi in the following
"2. That a Rule Nisi do issue and it is hereby issued returnable
on the 20th day of September at 9.30 a.m. calling upon the
respondents to show cause (if any) why:
purported decision of the respondents through the agency of
Mr. P. Bourgeois dated the 18th August 1993 and by which the
applicant would have been retrenched on the 20th August, 1993 by
reviewed and aside as null and void and of no force and effect.
decision of respondent's side manager at 'Muela Intake one Mr. KEN
SHORT to suspend the applicant from his duties and without
not be reviewed and set aside as null and void and of no force and
respondents shall not be directed to pay the applicant forthwith his
salary for August, 1993 in the sum of M1700-00.
respondents shall not be restrained from interfering with the rights
of the applicant to join a trade union of his own choice.
respondents shall not be directed to produce the minutes of the
disciplinary Enquiry held at 'Muela Intake on the 6th and
September, 1993 upon service of this application upon them.
the respondents to pay the costs of this application, and in the
event of their opposition such costs to be paid on
the respondents such further and/or alternative relief as this
court may deem fit.
prayer 2(c), (d) and (e) shall operate with immediate effect as
interim orders pending the outcome of this application."
18th October, 1993 a Rule Nisi was issued
on the 1st November, 1993. The Rule Nisi has been extended from time
to time until it was urgued on the 9th December,
1993 and judgment
reserved until 17th December, 1993.
filed a notice of intention to oppose on the 28th October, 1993,
Because of the apparent urgency of the matter, Applicant
with the Respondent's Opposing Affidavit on the 12th October, 1993
before it was sworn to. Respondents were vigorously
criticised by the
Applicant. This criticism is technically correct by not fair because
service of the unsigned affidavits was meant
to expedite the matter.
This would have enabled applicant to reply timeously.
I am of
the view that proceeding ex parte in this matter was not justified
and fair. Founding papers were filed 27 days before the
Rule nisi was
issued. That being the case, Respondents could have been served with
this urgent application before the Rule Nisi
was issued. It is
possible to have the rules dispensed with and still to have an urgent
application on notice heard in a very short
application was intended to restrain respondents from taking
unilateral decisions prejudicial to applicant, contrary to the
Code of 1992. At the time this happened, the Labour Court did not
exist. The court is advised that this court will only
existence early in 1994 almost ten months after the Labour Code came
all existing Labour Legislation has been repealed in terms of Section
241 of the Labour Code of 1992. This Labour Code
was brought into
operation and took effect on the 1st April, 1993 in terms of Legal
Notice No. 25 of 1993 dated 26th February,
1993. Whether the old
machinery for enforcing rights under old laws, is still in operation
remains open to debate because Section
241 of the Labour Code of 1992
has repealed old laws. Legal Notice No. 25 of 1993 suspends the
operation of the enforcement machinery
for the enforcement of rights
without putting anything in its place. The court finds it unnecessary
to decide the effect of this
respondents filed their opposing papers they did not file the
resolution in terms of which the
to this application was authorised. This was done on the 6th
December, 1993. While criticism could be legitimately levelled
this and the fact that there is only the resolution of First
Respondent. The court feels it should bend rules up to a point.
all, this is the machinery whose authority applicant normally accept.
typing ink were expended challenging the locus standi of one or other
of the respondents. It seemed common cause that
all six respondents
trade as first respondent. First respondent is something like a loose
partnership or what is styled a joint
venture. It is trite law that
if a partnership is sued all partners should be individually cited.
This has been done. It seems
this challenge does not help the
resolution of this dispute because in the court's view there has been
view applicant is asking this court to declare:
he styles "purported decision of the respondents ...by which
applicant would have been retrenched .... null and void
decision to suspend applicant without pay null and void so that
applicant would continue receiving his pay. For this to happened,
respondents had to be directed to produce minutes of a disciplinary
enquiry held on 7th September, 1993.
was also called upon to restrain respondents to restrain respondents
from interfering with applicant's freedom to join
a trade union of
his choice. In the event of respondents opposing this application (as
respondents have in fact done) the court
is being asked to award
costs on an attorney and client scale.
remedies that are being sought are all discretionary. Their granting
depends inter alia upon a balance of convenience in a situation
as this one. Section 6 of the High Court Act of 1978 provides that
this court should only entertain matters for which there
ventilated in other forums upon application. In the past labour
disputes of one kind or the other had to be brought before
Magistrate's Court. With the coming into effect of the Labour Code on
1st April, 1993 which repealed all previous labour legislation
including the one that provided for the ventilation of grievances,
there is confusion. As
stated, the fact that Part III (D) of the Labour Code has not been
brought into operation compounds confusion.
has in its discretion could have decided to hear the matter because
the problems surrounding the coming into effect of
the Labour Code
are not of the applicant's making - Secondly, the court has over the
years been making declaratory orders in matter
relating to matters of
master and servant although these have been statutory bodies. The
matters involving master and servant though
often brought on
application are not suited for application proceedings. The reason
being that from their very nature they involve
a dispute and disputed
facts. Where there is no real and substantial dispute despite
differences here and there, this court may
hear the matter.
applicant's case is briefly that the respondents are abusing the
retrenchment mechanism to victimise him for refusing to join
union of respondents' choice known as CAWULE. Respondents sometimes
allege he has been retrenched but at other times say
he has not been
retrenched when they hold
enquiries against him. Applicant further says Mr. Ken Short who is a
section engineer of respondents is out to get
him because he and
other objected to the way Mr. Ken Short treated one employee on
grounds of race. Applicant has referred to annexure
letter written a year before the events that gave rise to this
respondents do not seem to have understood that in legal proceedings
of this nature evidence is never given in a representative
While Mr. David Peter Darcy could have no problems in relying on
records but he must precisely state how he knows other
contained in his affidavit. The court must know what he saw, heard
and did as opposed to what he was told or was his belief.
of what transpired at the disciplinary hearing in September, 1993,
Mr. Darcy could not have had any personal knowledge.
contents of his affidavit in respect of this hearing are hearsay.
Unfortunately, Mr, Short and Mr. Voster who
were present (and have
actual knowledge) have made no affidavits which give evidence on the
point. They merely associated themselves
with Mr. Oarcy's affidavit.
That unfortunately does not convert inadmissible hearsay evidence
The serious allegations made against respondents about Mr. Short's
conduct stand unrebutted when Mr. short who knows the
dealt with them.
point for determination is whether there was a genuine retrenchment
and what the contract between applicant and respondents
was. It is
common cause that applicant and the respondent entered into a written
contract that began on 18th June, 1991 and terminated
on the 18th
August, 1992. See annexure "A4" to respondent answering
says at the end of the contract in August, 1992, the parties agreed
that applicant's contract with respondents would continue
duration of respondent's contract with the Lesotho Government. This
second contract appears not to have been written. Respondents
this verbal contract.
Respondents through the affidavit of Mr. Darcy say that at the end of
the first contract, applicant's contract was extended
by two months
to October 1992. Thereafter applicant was re-employed
fixed term. Respondents deny that applicant was ever employed for the
duration of the respondents' contract with the Lesotho
1996. Mr. Darcy put respondents' view of the terms of the subsequent
contract as follows:
"Respondent acknowledges that applicant was employed for as long
as his services were required ......"
no clarity on the part of the respondents as to when this indefinite
open ended type of contract of employment began. Nevertheless
Respondents chose to terminate applicant's employment according to
annexure "A2" and paragraph 10 of Mr. Darcy's affidavit
"the tunnelling is complete." I particulary quote from
annexure "A2" the following:
"Darcy said some jobs will be lost and the workforce had
understood this. It was later confirmed by a South African Water
Affairs and Forestry Source that 35 people would lose jobs as result
of the project's completion."
to the court that if the project is at an end because the job is
completed as respondents claim, then applicant has not
complaint, If, however, work is continuing then respondents were not
acting in good faith in terminating applicant's
as if he was being legitimately retrenched.
J.A. (as he then was) in K. Koatsa v. National University of Lesotho
C. of A (CIV) No. 15 of 1986 (unreported) at page 11
private employers said:
"A private employer exercising a right to terminate a pure
master and servant contract is not, at Common Law obliged to act
fairly. As long as he gives the requisite notice required in terms of
the contract, he can be as unfair as he wishes. He can act
arbitrarily, irrationally or capriciously."
allegations that in essence make this a case of unfair Labour
practices had not been made and Respondents reply was simply that
terminated applicant's application at will after giving him the
requisite notice, there would be no grounds to enquire into
matter further. The court is not ordinarily empowered to do so, but
the Labour Court and tribunals of that specific type are
deal with such matters.
court has its traditional work. Its approach to matters of master,
servant and employment generally, probably does not fit
in with the
times. The ways that employers treat employee, direct,
and subtle ways employers ill-treat and discriminate against works
who claim their rights are not an area that this court
expertise. In any event, the legislature has seen fit to provide
appropriate forums in which grievances of this nature
grievance of the applicant is the accusation against some of the
senior staff of the respondents who (according to applicant)
unfair performance rating against him such as that "he is too
big for his boots" and that his work is below average.
Respondents at paragraph 18 speak of subjectivism in work assessment
and has filled Mr. Ken Short's assessment of applicant. The
thing about annexure 3 of respondents is that M. Darcy claims Mr.
Short is fair to applicant when on 9th August, 1993 the
diligence was said to be above average and yet his interest in the
work he does is below average. It seems to the court
a worker who has
no interest in his work can never be diligent. Mr. Short
unfortunately never dealt with this matter in his affidavit,
consequently he has not explained himself.
case of Metedad v. National Employers
Insurance 1992 (1) S.A. 494 at page 501 Van Schalkwyk J. dealing with
a situation where a party fails to provide evidence
approval from Galante v. Dickson 1950 2 S.A. 450 at 465 where
Schreiner J.A. said;-
"The court is entitled in the absence of evidence from the
defendant to select out of two alternative explanations ..... which
are more or less equally open on the evidence, the one that favours
the plaintiff as opposed to the defendant."
the approach, the court in its discretion might have been obliged to
take but for the jurisdictional constraints that are
alleges he is a victim of a witch-hunt because he is among the
champions of workers right. Is he of the calibre of a trade
leader? That is not clear. Probably he falls within the class of
persons protected by the unfair labour practices provisions
Trade Unions and Trade Disputes Law II of 1964 or Part XV of the
Labour Code of 1992. This court cannot say. This court
is not steeped
in the atmosphere, standards and practices of the workplace.
Application proceedings are dealt with on papers,
therefore, it is
not possible to create an
in which facts can be determined. This has been assigned to
specialist tribunals. Section 25(1) of the Labour Code has
Labour Court (to be established) exclusive jurisdiction in matters
provided for by the code. In fact, the legislature
has underlined the
exclusion of the courts jurisdiction as follows:
"No ordinary or subordinate court shall exercise its
jurisdiction in regard to any matter provided for in this code."
is, therefore, obliged to decline to enter into the merits of
applicant's complaints. What this court might provide is
relief pending the hearing by the appropriate tribunal. Until the
Labour Court begins functions, it could be suggested
that the court
still has the appellate jurisdiction it had in terms of the Trade
Unions and Trade Disputes Law II of 1964. Even
if this is so that
jurisdiction does not coincide with that of the Labour Court. In any
event this court never had any original
jurisdiction in matters such
as this one.
much as this matter raises, matters of practice and the understanding
of contracts of employment which (in the courts view)
evidence, the court has no option but to refer this dispute over the
verbal extension of applicants's contract from 1992
to 1996 to
evidence. In so deciding the court is fortified by Section 62(4) of
the Labour Code of 1992 which provides:
"A contract to perform some specific work or to undertake a
specified journey shall terminate upon the completion of work
jeorney. No notice of termination shall be required to either party,
but an employer who terminates such a contract shall pay
all wages ., that would having been owing to the employee ... if he
or she had continued work until the completion
of the contract."
applicant who belongs to the clerical or administrative cadre covered
in a tunnelling and building contract? These are matters
extensive evidence whose interpretation and terms express or implied
depend on the practices in that industry.
20 of the founding affidavit in which applicant states that he would
settle for damages which would comprise a salary
up to the end of
1996 is indicative of the fact that it would be unwise to determine
this matter on papers. Application proceedings
are not designed for
matters of this
has on the 18th October, 1993 specifically refused to allow any of
prayers in the rule to operate with immediate effect.
feel the real teeth and potential prejudice this Rule Nisi had, have
in fact been taken out.
court, therefore, makes the following order:-
matted is transferred to the Labour Court or a tribunal that is
presently in place of the Labour Court.
Rule Nisi is discharged.
is no order as to costs.
Applicant: Mr. Mphutlane
Respondents: Mr. Geldenhuys
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