HIGH COURT OF LESOTHO
CLOTHING AND ALLIED WORKERS UNION 1ST APPLICANT
TS'EPHE (duly assisted by her husband) 2ND APPLICANT
C.G.M. INDUSTRIAL (PTY) LTD RESPONDENTS
by the Honourable Mr. Justice WCM Maqutu on the 16th April, 1999
26th May 1998 an application was filed in which Mamonyane Tsephe was
the first applicant and there were other 2478 other
list of applicants alone took 53 pages of the Notice of Motion.
matter was not treated as urgent. Perhaps that is because the events
which were the cause of the complaint of the applicants
place between the 11th and the 13th February 1998, over three months
before the application was brought.
were asking for an order in the following terms:-
the purported dismissal of applicants to have been unfair, unlawful
and null and void and of no force and effect.
applicants or alternatively
applicant damages in the sum of monthly salary from purported date
of dismissal to date of reinstatement or payment.
the event that this court does order reinstatement, respondent be
directed to pay applicants their notice money.
and/ or alternative relief.
convenience, the dismissed workers will be called applicants. The
respondent who is a company will be called he where it is
affidavit of Macaefa Billy was to be used in support of the
application of applicants. In Macaefa Billy's affidavit, it appeared
that some organisation of which Macaefa Billy was the General
Secretary had in fact resolved to bring this application. I did not
see a copy of that resolution. Whether it was ever
do not know. It was common cause that the first applicant is the
Lesotho Clothing and Allied Workers Union. Respondent did
to the papers as they originally stood until an unopposed amendment
was made making the Lesotho Clothing and Allied
(hereinafter called LECAWU) the first applicant.
application had jurisdictional and procedural preliminary objections
which were argued at length. The first issue that this
with was that of jurisdiction. Procedural issues were dealt with
along with the merits. The court raised the issue
of inordinate delay
both in the bringing of this application and in the finalisation of
this application. Although I disposed of
the jurisdictional objection
first, for convenience I will deal with issues that were raised or
that cropped during argument in
the following order:-
of delay on the proceedings and the parties
and evidential issues.
a hearing before dismissal was impossible.
the court should make a declaration.
on the point of jurisdiction began on the 16th March 1999 without a
paginated record. There was no respondent's answering
that all court process filed of record are before the court was that
of the applicants. The matter was postponed to the 24th
On that day the record was paginated but the application for joinder
of Lesotho Clothing and Allied Workers Union (LECAWU)
applicant was by mistake left out. It was later supplied. It had been
made on the 2nd September 1998 and apparently granted.
This fact was
revealed by Mr Matsau counsel for respondent who accepted that the
Lesotho Clothing and Allied Workers Union had
become first applicant.
Mr Matsau made this concession and revelation during argument. This
document which was styled Notice in
terms of Rule 33(1) amendment to
the notice of motion was handed in by consent. Only then was the
record probably complete. The
court had to be indulgent on account of
the political disturbances that led to the burning of the civil
registry of the court.
Records were being reconstructed and problems
were bound to arise.
to sue on behalf of the applicants was challenged. In my view the
challenge was successful in respect of people who could
authorised LEGAWU the (now) first applicant. LECAWU is a trade union.
It can therefore sue or be sued, see Section 222
of the Labour Code.
It can sue to promote the interests of its members. Respondent can
never be in a position to dispute that the
rest of the two thousand
four hundred applicants had
the attorney to bring these proceedings. Normally the applicant files
a Power of Attorney to put this fact beyond dispute
proceedings. In the Magistrate's Court an application can even be
brought without an affidavit. Although I have already
said I am
critical of the entire papers of applicants I cannot go so far as to
say all of them did not authorise the institution
of Appeal in Lesotho Telecommunications Corporation v Nkuebe and 313
Others C of A (CIV) Nos. 5 and 12 of 1998 (unreported)
wrong with Monapathi J's reasons for being satisfied with the title
to sue of applicants who had made no affidavits
but the Notice of
Motion having been signed by an attorney. The fact that the sole
affidavit filed did not disclose that other
applicants had authorised
the institution of the proceedings invited the following remark from
"It is noteworthy that the learned judge came to the conclusion
that both applicants were properly before court without insisting
the ritual incantation of the phrase "duly authorised by"
the other person named by the attorney as one of the principals."
case the applicants' deponent claims to have been "duly
authorised" to give the hearsay evidence he proceeded
which in my view is most unlikely. No litigant in his right senses
can authorise someone to give evidence that will not
promote his case
from the start because it is not
He was authorised to make the founding affidavit but not to give the
hearsay evidence as well.
to me that applicants can be deemed to be properly before court but
their attorney has handled this application untidily,
is full of mistakes. I note it is the same attorney that handled the
case of Lesotho Telecommunications Corporation
v Nkuebe & 313
OF DELAY ON PROCEEDINGS AND PASTIES
regrettable that an application that should have been finalised in
June 1998 is only being heard at the end of March 1999.
the fault and the cause of delay is not mainly this court and its
problems. The applicants delayed in bringing this
Macaefa Billy's affidavit (which is the sole founding affidavit of
applicants') was sworn to on the 25th May 1998.
This was about three
and a half months after the dismissal of applicants which is being
in Lesotho Bank V Maitse Moloi C of A (CIV) No 31 of 1995
(unreported) dealing with reinstatement where the employees'
dismissal is invalid said:
"In such an event, the party wronged is obliged to decide within
a reasonable time how he intends to react; accepts the repudiation
and sue for damages, or sue for specific performance. What he
cannot do is do nothing for an unreasonable time, and then sue
specific performance in a matter of this kind.... The longer he
postpones deciding on specific performance by the employer, the more
one sided and inequitable his insistence becomes: it goes
saying that he himself can neither perform his obligations towards
the employer whom he seeks to hold bound, as here, in
irrevocably gone by ..."
there is no affidavit from any of the actual victims of the dismissal
explaining why they delayed for over three months.
It is not
illogical to expect that after three months a reasonable employer,
(even where he had expected his dismissal of the employees
challenged) to conclude that the employees have accepted the
repudiation of contract (which that dismissal from the contractual
angle in effect amounts to).
argued that in terms of Section 70(1) of the Labour Code six months
is the reasonable minimum allowed for a delay in taking
applies to the exercise of a broad equitable discretion that the
Labour Court has which does not make reinstatement
the only option.
Any delay is prejudicial to the other side and must be satisfactorily
explained away before this court or the
Labour Court can order
reinstatement. In this court reinstatement in general is likely to be
disputed by an employer, consequently
it is a matter that should
normally be ventilated through pleadings and full evidence.
the 26th May and 2nd September 1998 the status of Macaefa Billy and
the other applicants was not clear. All Macaefa Billy
stated was that
proceedings none of the deponents who are dismissed workers made any
affidavits. As I have stated Macaefa Billy's affidavit
made on behalf
of the Lesotho Clothing and Allied Workers Union that was not a party
at that stage was initially unintelligible
as to his right to make
the founding affidavit. His entire affidavit was hearsay from
beginning to end. Hearsay evidence is not
permitted except in cases
where urgent relief is sought and proper evidence cannot be readily
available. Even when this happens
it is accepted temporarily, when
evidence becomes available after interim relief is granted it has to
be made available to the
court. See Herbstein & Van Winsen The
Civil Practice of the Supreme Court of South Africa 4th Ed at page
370. In the case before
me, as I have already stated no such urgency
was claimed, nor was the matter treated as urgent. All the evidence
but it was not brought in proper form before court.
respondent did not ask Macaefa Billy's affidavit to be struck out.
This was the correct thing to do because not only was it
hearsay, it had been made on behalf of a body that was not a party in
the proceedings. The respondent had three months
during which to do
so. What respondent did was to allow the Lesotho Clothing and Allied
Workers Union to become a party and then
file an affidavit in which
he admitted most of what is alleged and give direct evidence of what
The scope of application proceedings has over the years widened.
trial proceedings are replaced by motion proceedings the affidavits
are also pleadings" - Diamond Workers Union v Master Diamond
Cutters Association of SA 1948(2) P H A83 per Millin J at page 283.
There are no hard and fast rules that govern acceptability
affidavits as pleadings except the fact that disputed matters should
never be brought by way of application. It is therefore
that affidavits will take the place of pleadings without causing the
other party prejudice of a procedural or evidenciary
nature. This is
especially so in cases specially suited for trial proceedings such as
where permanent interdicts are sought and
where discovery of
documents and other court process might be necessary for the proper
ventilation of the dispute. Goldstone J
found that in applications a
respondent is called upon not only to plead but to place his evidence
before court. See Saunders Valve
Co. Ltd. v Insamacor (Pty) Ltd.
1985(1) SA 144 at 149C. Sometimes as Miller observed in Hart v
Pinetown Drive-in Cinema (pty Ltd.
1972(1) SA 464 at 469 CD a
petition or an affidavit might not be an equivalent of a pleading
such as a declaration in resisting
"an objection that a case has
not been adequately made out". This so for chiefly evidenciary
case before me there are no procedural reasons for finding what was
said in the affidavit of Macaefa Billy is not equivalent
to what was
placed before court by way of a declaration or particulars of claim
in a summons. It seems to me that the hearsay evidence
the affidavit of Macaefa Billy disclosed to the respondent the case
of applicants which respondent was
a judicial function. Kloof Gold Mining Co V National Mine Workers
Union 1987 (1) SA 598. Although our courts handle litigation
manner that is equitable, their jurisdiction is not that equity in
the sense of having wide powers of discretion to see that
achieved. Our court deal with equity in the traditional manner as
part and parcel of the dispensation of justice according
31 of the Constitution which is part of the Principles of State
Policy puts the State under an obligation not only encourage
formation of trade unions to protect workers' rights and interests
but to "promote sound labour relations" and fair
practices. This puts the State under a duty to make laws that
"promote sound labour relations." Courts also
under a duty
be aware of these principles in the way they interpret the labour
laws that exist or will in future be enacted. This
principles of State Policy are "the public policy of Lesotho.
See Section 25 of the Constitution. In doing this
sight should not be
lost of the "economic capacity and development of Lesotho".
determining whether this court has jurisdiction the court should be
mindful of Section 66 (1) of the Labour Code which unambiguously
"An employee shall not be dismissed, whether adequate notice is
given or not, unless there is a valid reason for termination
66 (4 of the Labour Code goes further and gives the employee a right
to be heard in the following words:-
"Where an employee is dismissed Tinder Section (1) (a) or (b) of
this Section, he or she shall be entitled to have an opportunity
defend himself against the allegations made, unless, in the light of
the circumstances, and reason for dismissal, the employer
reasonably be expected to provide this opportunity."
found that there was an admission that the right given to applicants
to be heard was not in issue. Consequently whether
it was reasonably
possible to give them a hearing was a question of law that should be
decided in the light of surrounding fact.
Therefore I ruled that:
"The question of absence of hearing is one of law. Consequently
this court has jurisdiction. The issue of whether circumstance
permitted of a hearing is one of the merits which shall be determined
after argument on the merits."
Solomon Masiu v Agricultural Development Bank CIV/APN/361/94
(unreported) this court noted that a dismissal without a hearing
also unfair. Consequently it is not unlawful but unfair, indeed in
Section 66 (2) of the Labour Code it is actually called unfair.
Section 24 (1) (i) of the Labour Code provides that the Labour Court
shall have power to :-
" determine whether an unfair dismissal has occurred and, if so,
to award appropriate relief."
be observed that what Section 24 (1) (i) caters for is much broader
than absence of a hearing which is unlawful. It deals
lawful dismissal that the employee feels have been unfair. Employers
are not expected to break the law, but it is
recognised that they
might act lawfully and yet within the culture of master and servant
be found to have acted unfairly. To put
this in the words of Steyn J
A (as he then was) in Attorney General V Lesotho Teachers Trade Union
& Others 1991 - 1996 LLR
16 at page 24:
"In essence, the Labour court is a court of equity enjoined to
keep the scales of justice between the conflicting demands
employer and employee. Disputes that come before it are not "civil
proceedings" as provided for in either Section
2 of the High
Court Act or the Constitution ... Our courts should be astute to
ensure that the powers Labour Court... are strictly
"trade disputes" stricto sensu.
of the law are not "trade dispute" ordinarily speaking, but
there can be overlapping as a grievance or dispute
across boundaries. The jurisdiction of this court is not excluded
merely because the illegality complained of has
created unfairness in
its consequences. Indeed Van den Heever A J A in Lucy Lerata v Scott
Hospital 1991 - 96 LLR 315 at page 321
interpreting the jurisdiction
of the Labour Court:-
It is the
defence of respondent that he had to dismiss the applicants in that
manner because in the circumstances that existed at
that time, a
hearing before a dismissal was impossible. The crisp point for
determination concerning a hearing is "whether
in the light of
the circumstances and the reason for dismissal the employer cannot
reasonably be expected to provide this opportunity."
(4) of the Labour Code.
already stated that the only admissible evidence on record is that of
the respondent. It is on that evidence that this court
has to rely.
The facts are as follows:-
8.30 a.m. on the 11th January 1998 Matanki Mokhantso who is not a
shop steward brought a letter listing grievances and a demand
these grievances should have been addressed by the morning of 12th
February 1998 failing which action will be taken taken.
authors of the letter brought it to the attention of the Labour
Commissioner to deal with "the dispute which they perceived
they had with first respondent."
Labour Commissioner sent a Labour Officer to enquire into the causes
and circumstances of the dispute. The time when the Labour
came is not specified, save that it was on the 11th
17 January, 1998.
is not clear whether the Labour Officer came before or after
respondent and his Personnel Manager (Mr Kolobe) had been to see
Labour Commissioner. But at 11 a.m. on the 11th February 1998
respondent went to the Labour Commissioner where he brought
Labour Commissioner's attention the fact that the letter annexure
"B" containing the grievances was anonymous
the 12th February 1998 at 7 a.m. the workers came to work but did
not work. Respondent between 8.30 a.m. to 9 a.m. called the
supervisors and the Workers Committee to respondent. They said that
they knew nothing about the letter of grievances
Respondent was told applicants wanted a reply to their grievances.
Respondent told the Workers Committee
and the Supervisors that the
workers were embarking an illegal strike and that they should resume
about 9 a.m. respondent issued an ultimatum that unless the workers
resume work they would be dismissed.
10 a.m. two female employees and eighteen men stormed into
the office. None of these people were members of the Workers's
Committee. They demanded to talk to respondent who was with Mr
Moodley and Mr Naidoo. Respondent refused to talk to them and advised
them that he could only talk to the Worker's Committee. Bespondent
says one of the workers who had a knife was chased away by a police
woman. Respondent again told the group that he would only talk
Workers Committee. The Workers Committee did not come and work was
not resumed. Respondent admits telling these 20 people
grievances were being looked at by the Labour Department after its
10.30 a.m. respondent called supervisors and the Workers Committee
through his secretary using the public address system but
Respondent caused the second ultimatum which he had written to be
announced over the public address system. It was
to the effect that
workers should resume work or face dismissal.
4 p.m. respondent caused the final warning to be broadcasted over
the public address system. There is no evidence that the
whose contents were broadcasted over the public address were not
delivered to the applicants. There is no dispute
applicants heard what was said over the public address system. After
4 p.m. the workers restive and some of them armed themselves
became threatening. Some of the staff did not go home for fear of
some of the workers who had stationed themselves outside
following day the 13th February 1998 the applicants were dismissed.
in his affidavit does not state the role the Labour Officer played
when she had come. At paragraph 14 of the affidavit
he only says the
Labour Officer arrived at the premises and he says:-
"I admit that I would not speak with the Labour Officer in the
presence of Mokhantso as Mokhantso was not in the Workers Committee.
I deny I refused to join the Labour Officer for the reason that the
Firm Committee had shown threats. The Labour Officer did not
to join her in her discussions with Mokhantso."
I am a
bit puzzled by respondents behaviour. He states he refused to talk to
the Labour Officer on account of the fact that Mokhantso
was not a
member of the Worker's Committee. Yet he expected to be invited to
the talks between the Labour Officer and Mokhantso.
I also find the
signal that he sent to the
In Schoeman & Another v Samsung Electronics (Pty) Ltd. 1999(2)
ILJ 200 at page 209 Landman J noting this fact said:
"Nevertheless, even though applicants were mistaken, they were
entitled to pursue their legal remedies, even if only to find
had no case. They cannot be dismissed merely for pursuing their legal
remedies even if they are mistaken. However, where the
their rights lead to operational dislocation it may, in appropriate
circumstances, give rise to a situation where dismissal,
operational requirements, as opposed to dismissal for the exercise of
rights becomes permissible. The occasions are liable
to be extremely
rare. Genuine operational requirements will have to be shown."
papers in this application leave a lot to be desired. The translation
of the letter of grievances annexure "B" is
not even the
reconstructed file. The original file was burnt in the political
disturbances that took place in Maseru in September
1998. It becomes
difficult therefore to blame applicant for the reconstructed file
unless respondent made an objection. The list
of grievances is in the
Sesotho language. The rules of this court are that proceedings should
be in English. Respondent did not
object to annexure "B"
which is untranslated, therefore I will assume it was translated. As
I wanted this matter to be
finalised, I asked the Registrar to have
annexure "B" translated. Both Counsel and the Court are
Sesotho speaking, therefore
they understood annexure "B"
throughout the proceedings.
perusing annexure "B" I noted the following:
9% increase is not being given.
worker remains casual even after a year.
are not satisfied to be forced to work on Saturdays and Sundays and
that if we do not turn up our wages are deducted or
we are given a warning.
are not satisfied because maternity leave is too short.
money that is gazetted is not there.
probation period we serve is longer than what the law provides.
Committee of LECAWU should be permitted to operate within the
are not consulted before decisions are made.
LECAWU trade union is not allowed to deal with matters concerning us
within the firms.
should be paid sick leave as the law provides.
should stop taking our Ids in order to force us to do overtime.
wages should be paid as soon as the month ends not a week later.
of these grievances, which include wages, welfare at work, hours of
work and overtime, employment of women and trade union
in fact based on fact, the respondent might be guilty of massive
violations of Parts IV to IX of the Labour Code and
Part XIII of the
Labour Code on trade union activity. Some action was called for in
order that respondent should comply with contracts
of employment and
obey the law where he allegedly did not. In order that these
allegations and complaints should be investigated
and if necessary
Respondent cleared of wrong-doing, no obstacles should have been put
in the way. If the workers committee, on
which Respondent was
relying, had allowed these alleged breaches of contract and the law,
it was not
the workers interests. The Respondent, as employer, probably did not
see things that way because the status quo suited
him. He might not
even have found a change desirable at all.
respondent's version is unchallenged, what happened to the office
staff is in many ways hearsay. The alleged violent behaviour
than two thousand four hundred workers seems exaggerated. If they
were bent on violence and threatening behaviour, it is
improbable that more than two thousand four hundred men and women
could have been controlled by only one police woman. Indeed
respondent denies the allegation that he did not talk to the labour
Officer because (as was alleged) respondent claimed to have
threatened. There were therefore no threats when he refused to talk
to the Labour Officer.
Security (Cape) (Pty) Ltd. v Vukani Guards and Allied Workers Union &
Others 1989(4) SA 234 the workers refused to work
employer was refusing to perform its obligations in terms of the
contract. They were also being unlawfully denied statutory
allowances. Friedman J held that the workers could not be said to be
on strike. The dismissal of those workers in such circumstances
unlawful. The employees were entitled to receive everything due to
them under the contract. By this I understand Friedman J
meant, the employer must perform his side of the bargain before it
can insist on the workers providing their services.
applicants were right or wrong, Section 225 of the Labour Code
permits the Labour Commissioner to intervene instantly in
see whether there is a dispute resolution machinery. If there is
none, "to take such steps as seem expedient to promote
settlement of the dispute" Section 225(2)(b) of the Labour Code.
The next question for determination is whether respondent
had a right
to prevent the legal machinery for ventilating applicants' grievances
answering this question, it should be borne in mind that in terms of
Section 4 (a) of the Labour Code "the standards laid
down in the
Code are "the minimum legally obligatory standards and are
without prejudice to the right of workers individually
collectively...to contract for higher standards..." This means
what is laid down in the Labour Code in respect of contracts,
conditions of employment and labour relations generally is implied in
all contracts of employment. A breach of the provisions of
Code is by implication a breach of the contract of employment by any
side, be it the employer or the worker.
to have legal justification to have denied applicants a hearing
before dismissing them, respondent must prove that he was
reasonably and within the law throughout. In other words, he is not
in breach of the implied conditions of every contract
that the Labour Code imports into in every contract. He must show
that despite his acting lawfully
reasonably and also creating conditions in which a hearing could take
place, applicants denied themselves a hearing or acted
in a manner
that made a hearing impossible.
determine what is expected of both sides so as to answer the question
of reasonableness, reference has to be made to the Labour
Constitution has gone out of its way to make it State policy to take
into account the rights of workers. Like all law, the Constitution
(although the supreme law) must be interpreted reasonably and
remedially. See Section 15 of the Interpretation Act 1977. Section
(1) of the Constitution entitles every person to "unhindered
enjoyment of freedom to associate freely with other persons
for...labour...and similar purposes". Even so in terms of
Section 16(2) (b) of the Constitution this right is restricted by
fact that there are other laws "protecting the rights and
freedoms of other persons". Courts in judicial proceedings
enjoined in Section 16 (3) of the Constitution to see that whatever
law exists "does not abridge rights and freedoms guaranteed
under subsection (1) to a greater extent than is necessary in a
practical sense in a democratic society". In short, the freedom
of association in labour matters has to take account of the existing
legal rights of employers as well. Parts XIII to XV of the
Code give effect to these rights of the employee.
militancy, the short time given and the suddenness with which the
as workers confronted respondent (their employer) with demands about
their working conditions was precipitate. If there
was no legal
machinery for maintaining the balance and promoting dialogue, their
conduct could be seen as very unreasonable. However
Section 225 of
the Labour Code make such conduct permissible and provides that when
a trade dispute of this nature comes before
the Labour Commissioner
he should see to it that an existing machinery for dispute resolution
is invoked and the dispute settled.
If there is no machinery for
dispute resolution or the existing one fails, the Labour Commissioner
inquires into the causes and
circumstances of the dispute immediately
and take any expedient means of promoting a settlement of the
important to note that there is a procedure that is laid down in the
Labour Code before employees can with hold their labour.
procedure binds both the employer and the employees. Workers are not
supposed to strike before avenues for negotiations have
exhausted. The employer is obliged to negotiate until an impasse is
reached. Only then can a notice to strike be given. The
will have a right to lock-out workers in turn. In National Union of
Mine Workers v East Rand and Uranium Co. Ltd.
1992(1) SA 700 at page
733 I goldstone JA said:
"The fundamental philosophy of the Act is that collective
bargaining is the means preferred by the legislature for the
of good labour relations and for the resolution of
could be said of the Labour Code 1992 of Lesotho. In South Africa and
in Lesotho although the laws are not identical, it
is necessary in
both countries to go through some negotiations and even some
conciliation before a strike can be embarked upon.
Indeed some notice
must be given to the employer before strike action is undertaken.
Otherwise such a strike might be declared
unlawful. See Firestone SA
(Pty) Ltd. v National Union of Metalworkers of SA 1992(3) SA 218 and
CAWULE v Spie Batignolles &
Others 1993-94 LLE, & Bulletin
33. In the light of the provisions of the Labour Code, this would be
true of Lesotho.
dispute resolution machinery provided for in the Labour Code to work
the employer is obliged at the behest of the Labour
sit down with employees to resolve a trade dispute.
to me respondent should have realised that his workers had a right to
democratically change their representatives. Section
168 of the
Labour Code while encouraging trade unions, leaves freedom of choice
unimpaired. It seems obvious that they had a workers
according to respondent was the agreed channel of communication. It
also seems logical for the employer to have
expected all grievances
to be initially channelled through the workers committee. Indeed the
employee had a legitimate expectation
informed of a change in the machinery of communication. But in all
democratic and mass representations, the employer should have
expected sudden changes or even in-fighting for leadership. The
workers committee told respondent that they were no more in control.
It seems to me unreasonable for respondent to have used the internal
affairs and in-fighting among workers not to talk to them
to their grievance. After all one of the demands was that LECAWU, a
trade union, should do this work as the law provides.
11th February, 1998, Respondent refused to co-operate with the Labour
Officer sent by the Labour Commissioner to put everything
track. Respondent's own affidavit shows he was determined to use the
problems of representation among workers to frustrate
machinery of settling trade disputes in Part XVIII of the Labour
Code. If respondent felt he was entitled to more time,
have been communicated through the Labour Officer to the workers.
if the employer felt the workers committee was according to
respondent the appropriate channel, he should have agreed
to sit down
with Mokhantso and the Labour Officer to resolve the issue so that
talks could begin and the dispute could be resolved
if possible. Two
of the demands of the applicants concerned trade union activity,
which respondent was accused of obstructing.
Section 198 of the
Labour Code obliges the employer to permit and provide facilities for
workers and trade unions to confer on
the employer and those members. Section 31 of the Constitution
the State to make laws for the formation of "independent trade
unions to protect workers' rights and interests".
respondents to insist that things should be done his way even on the
employees side, gives the impression that he did not want
grievances to be addressed and good labour relations be advanced in
line with State policy.
through his actions of refusing the services of the Labour
Commissioner precipitated the downing of tools to compel compliance
with the law on the side of respondent. Their objective became "to
take action to persuade or restrain an unwilling employer
(Discipline and Dismissal 2nd Edition by Mathew Grosset. page 211).
Had respondent cooperated with the Labour
Commissioner on the
11th February, 1998, the unspecified action might not have been a sit
down strike of the 12th February, 1998.
Respondent is obliged to
demand the services that are his due and to take action for
non-compliance if he has fulfilled his part
of the bargain whether
express or implied.
appears unintentionally or deliberately to have obstructed trade
union activity and insisted on workers committees which
no more wanted. If they were wrong, the Labour Commissioner was the
appropriate person to tell them. Respondent refused
to allow the
Labour Commissioner to intervene and thereby obstructed the legal
resolution. On the 12th February, 1998, applicants turned out for
work but with-held their labour.
225 of the Labour Code gives the Labour Commissioner broad powers.
The Labour Commissioner does not have to wait before
Act he did, but was obstructed by respondent. The 14 days that
respondent claims were available to him in terms
of Section 226 only
apply to the machinery of conciliation that has to follow where the
labour Commissioner has failed to resolve
the dispute. Respondent's
behaviour in my view was unnecessarily obstructive and unreasonable.
This court therefore sees it as
a breach of Labour Code.
"trade dispute" is broad enough to cover even the issue of
representation that respondent put forward as a stumbling
the talks. In Section 3 of the Labour Code it means:
"Any dispute or difference between employers or their
organisation and employees or their organisations, or between
and employees, connected with the employment or
non-employment, or terms of the employment, or the conditions of
labour, of any
ceasing work in not a criminal offence in terms of Section 251. it
does fall within the meaning of a strike in terms of
Section 3 of a
Labour Code. Mr. Mosito's The argument that applicants were not on
untenable because they were refusing or felling to engage in any work
for which they were employed in furtherance of a trade
such a case, the assumption being that the employer is doing what is
expected of him. This was in terms of Section
230 an unlawful strike
as the procedure laid down in Section 229 of the Labour Code had not
been followed. There can therefore
be no doubt (but for what was
expected of respondent) that applicants were providing respondent
with a valid reason for terminating
employment for a reason connected
with conduct at the work place, within the meaning of Section 66 (1)
(b) of the Labour Code.
The conduct of respondent made the conduct of
applicants lawful in as much as they were holding respondent to their
employment which respondent was unilaterally abrogating
by refusing to negotiate. In Coin Security (Cape) Pty. Ltd. v Vukani
and Allied Workers Union (supra) Friedman J held such conduct
did not amount to a strike. It seems to me therefore that applicants
were merely insisting on negotiations and compliance with the term of
their employment (impliedly introduced by the Labour Code),
respondent was unilaterally trying to get out of.
Matsau for respondent argued that this case is on all fours with the
case of Tseuoa Tsekoa v General Manager Flour Mills, Lesotho
Cases (1985-89) 300 where workers refused to return to work when they
were on a similar strike and were subsequently dismissed
hearing. Mr. Justice Aaron of the Court of Appeal at page 334 I
the circumstances, I consider that the appellants and other employees
were given adequate notice of the intended action
against them, and
had a fair opportunity to make representation to management if they
Matsau conceded that the Labour Code had not yet been enacted at the
time. There seems to me other differences between this
case and the
Tseuoa Tsekoa v General Manager Flour Mills, which are:
respondent was violating the provisions of the Labour Code in
refusing the intervention of the Labour Officer that the Labour
Commissioner had sent to look into the matter and probably to
resolve the trade dispute.
respondent's objection to the representation of applicants was a
matter that might have been ventillated and resolved by and
the Labour Officer.
admits that he told the twenty people sent by applicants that he was
waiting for the Labour Commissioners intervention
even as he was
issuing the threats of dismissal to applicants if they did not
return to work.
was frustrating the lawful dispute resolution
that is the corner-stone of labour relations in this country by
refusing the Labour Officer's intervention. He could not
illegally himself by breaking an implied term of applicant's contract
of employment and then accuse applicants of violating
the Labour Code
in holding him to the contract and the law by withdrawing their
be noted that labour relations are no more governed by the common law
alone. The employer's common law rights have been
modified by the
Labour Code. When the conduct of both respondent and applicants is
being scrutinized for reasonableness, it must
be in the light of
Section 66(4) of the Labour Code which we are interpreting.
noted that among the applicants demands were those that clamoured for
favourable conditions of work and trade union activity
that seemed to
be impeded. Sections 30 and 31 of the Constitution on State Policy
obliges the State and other organs to promote
conditions for employees and trade unions so that workers rights are
protected and there can be "sound
labour relations and fair
employment practices". Parts VI, VII, VIII, XIII and XIV of the
Labour Code endeavour to promote
these objectives of State Policy. It
seems despite the applicants confrontational approach they were
within the law. Respondent
misconstrued the relevant provisions of
the law, raising mistaken and non-existent technicalities, thereby
Commissioner's efforts to investigate and probably settle the
light of what I have said above I find the respondent to be the one
who acted unreasonably. He may have been bona fide, but
his errors of
judgment in the way he handled the trade dispute and his
misinterpretation of the law led to an unreasonable situation
which applicants were denied a hearing before a dismissal. It is not
applicants who were obstructing dialogue but rather the
He refused to allow the Labour Office who had been sent by the Labour
Commissioner, in terms of Section 225 of the
Labour Code to promote
dialogue as the law requires. Respondent cannot be allowed to shift
his own wrong doing to the applicants.
follows therefore the applicants were unlawfully dismissed without a
hearing. Respondent's property or the other workers not
their services were not in any danger, because one police woman could
not (as I have already stated) have protected
against the thousands of applicants that were in the premises. The
three ultimatums issued against applicants
within a period of six
hours, strike me as an attempt to avoid hearing applicants
individually before dismissal and excluding the
ventillating machinery that the Labour Commissioner had lawfully set
WHETHER A DECLARATION SHOULD BE MADE
already dealt with the effect of the delay in instituting these
proceedings. I have also shown that as reinstatement or claims
damages depend on hearing both parties fully, they are potentially
contentious and therefore are unsuitable for application
especially if a period of three to ten months has elapsed. Evidence
specifically dealing with issues of reinstatement
damages per se is
absent in these proceedings. It should also be noted applicants have
not put any admissible evidence before this
court, therefore there is
no evidence before this court to guide this court in exercising its
discretion on damages or the issue
of reinstatement. Reinstatement
and damages can therefore not be decided because they have not at all
of the High Court Act 1978 makes it permissible for this court to
issue declarations at its discretion although declarations
abstract are still frowned upon. In this case applicants have also in
the alternative applied for the consequent relief
of being given
their terminal benefits in the event of their dismissal being found
unlawful. Indeed references are often sought
by future employers, if
applicants are branded turbulent employees who just stop work at will
their prospects of future employment
will be diminished.
and 3 of the Notice of Motion are granted in a modified form as
is declared that the dismissal of applicants was unlawful and
respondent is directed to pay them notice money to regularise
termination of employment.
will be no order as to costs on account of the state of applicant
papers and the delay in bringing this application.
applicant : Mr KE Mosito
respondents : Mr MT Matsau
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