CIV/APN/181/98

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

JAMES A.
INGRAM APPLICANT

and

TRAINING
AND RURAL DEVELOPMENT

CONSULTANTS
(PTY) LTD 1ST RESPONDENT

LOXTON
VENN ASSOCIATES 2ND RESPONDENT

JUDGMENT

Delivered
by the Honourable Mrs. Justice K.J. Guni on the 27th day of April
1999

The
applicant in this matter, seeks the Review and setting aside of the
decision of the Labour Court in Case No LC. 23/97. L.C.
23/97 was an
application made by this applicant, to the Labour Court. In that
application he sought to be reinstated to his position
in the
employment of INTER-SCIENCE SERVICES (PTY) LTD t/a LOXTON VENN and
ASSOCIATES. This applicant had an Employment Agreement
with INTER

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SCIENCE
SERVICES (PTY) LTD (Annexure 'A' at Page 8 of the record). It was
entered into in the Republic of South Africa. INTER-SCIENCE
SERVICES
(PTY) LTD is a South African company. It is registered in South
Africa in accordance with South African law. It operates
in South
Africa needless to say that it must be operating in accordance with
South African law. In terms of the said agreement
between the parties
the contract was to be performed at THABA-TSEKA in Lesotho -(clause
14 which deals with place where the duties
are to be performed). The
Employment agreement was signed on 13/04/95: Applicant commenced work
as a centre supervisor at THABA-TSEKA
on 1st March 1995 as appears on
that Annexure ' A' [at page 8 of the record].

The
dispute arose between the parties perhaps early 1996. Applicant
herein was given notice to attend disciplinary hearing at the
offices
of L.V.A. MIDRAND on 4th July 1996. The disciplinary proceedings did
take place. Applicant was found guilty of misconduct
and his
dismissal recommended. He appealed to the disciplinary appeals
tribunal - whose decision

3

applicant
alleges has not been made known to him. All attempts to reach a
settlement on the question of discipline have failed.
Finally the
applicant's contract was terminated. It is this termination of his
contract which he challenges. This applicant came
to Labour court to
seek reinstatement or payment of compensation in the form of salary
as from the date of the purported termination
to the date when the
contract comes to an end.

The
point-in-limine was raised on behalf of respondents. It was an attack
on the jurisdiction of the Labour court to entertain and
determine
the matter before it. It was submitted that Labour court lacked
jurisdiction on the following grounds [as alleged on
respondent's
papers at page 188 of the record].

"4.2.1 The Applicant was at all relevant times employed by
INTER-SCIENCE SERVICES (PTY) LTD, South African Company incorporated

in terms of the South African Companies Act, 1964 and domiciled in
Gauteng Province, South Africa;

4.2.2 The Applicant was initially

4

appointed with effect from 7 January 1991 by INTER-SCIENCE SERVICES
(PTY) LTD and seconded to WESTERN DEVELOPMENT COMPANY. The
Applicant
was situated in Ovambo, Namibia.

4.2.3 The employment contract entered between the Applicant dated 17
March 1995 explicitly stipulates that INTER-SCIENCE SERVICES
(PTY)
LTD will be the Applicant's employer;

4.2.4 The Applicant was seconded to THABA-TSEKA, Lesotho. The
Applicant reports to a Supervisor situated in South Africa.

4.2.5 The Applicant was dismissed through a disciplinary process held
in South Africa.

4.3 It is therefore pleaded that the above Honourable Court has no
jurisdiction to entertain this matter in that in fact and in
law the
South African law has application relating to the dispute."

Applicant
is very happy to a very great extend with the judgment of the Labour
Court except where that court held that it lacked
jurisdiction on the
ground

5

that the
parties have chosen South African law to be the proper law governing
their contract. The question of the autonomy of the
contracting
parties in this jurisdiction to choose the proper law governing all
aspects or some parts of their contract, is not
an issue. What must
be determined is the question of whether or not there was express or
tacit choice of applicable law made by
the parties. Most legal
systems allow parties to choose the law, usually by means of a
"choice of law clause" which governs
their contract. This
view is expressed in International Contracts 111 and International
Contracts 1V in (1990) 20 by ELLISON KAHN.

There is
no "choice of law" clause in the Employment Agreement
between this applicant and his employer. The question of
which law
should be applied to determine the rights and obligations of the
parties must be determined by the court which must then
asign such
law. The objection to the jurisdiction of The Labour Court in Lesotho
is to the effect that the contract was entered
into in South Africa
and for all those other reasons, it was submitted that the law

6

that must
be applied is South African. Although the employer is in South Africa
the contract was to be performed in Lesotho and
the applicant was
carrying out the terms of the said contract at THABA-TSEKA in Lesotho
at the time the dispute which resulted
in the termination of his
contract arose.

Where
there is a conflict of laws there are established and accepted
principles which must be followed. One of such principles has
been
annunciated by De Villiers JA in Standard Bank of S.A. LTD v Efroiken
and Newman 1924 AD 171 in the most straightforward and
simple terms
at page 188 as follows:-

"The business sense of all business men has come to this
conclusion, that if a contract is made in one country and is to be

carried out between the parties in another country, either in whole
or part, unless there appear something to the contrary, it
is to be
concluded that the parties must have intended that it should be
carried out in accordance

7

with the law of that other country otherwise a very strange state of
affairs would arise, for it is hardly conceivable that persons
should
enter into a contract to be carried out in a country contrary to the
laws of that other country".

There is
no specific clause in the employment Agreement between the parties,
which deals specifically with the choice of law. The
clause on which
The Labour Court relied when concluding that South African Law must
be applied, does not directly deal with the
question of law that is
to govern the whole contract. It governs only certain aspects of the
contract if they can be found. That
clause reads as follows:-

"24. If any condition are inconsistent with or contrary to any
South African Rule of Law or Act presently in existence or

promulgated from time to time, such Rule of Law or Act shall
prevail."

To me
this clause seems to deal solely with the

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conditions
contained in the Agreement of Employment. It is somehow speculative.
It contemplates a search for conditions which are
contrary to the
Rule of Law or Act. The parties wanted to be seen to be complying
with the law of the land where the contract was
being made. Any
condition that is contrary to South African Rule of Law or Act must
fail while that Rule of Law or Act prevails.
According to Mr.
Mosito's argument there is a prerequisite that there be a finding of
a specific condition that is contrary to
South African Rule of Law or
Act. The South African law was to be applied in the search. Once such
condition is found -that is
where the South African law can be
applied. That is not what the Labour Court was asked to determine in
the matter before it. The
conditions of employment are not being
questioned or challenged in any way. If anything reliance was being
placed on those conditions
and terms of the agreement by the parties.

There is
no need for the application of South African Rule of Law or Act.
Having found that the parties did not include a specific
clause -
dealing with the whole

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Employment
Agreement between them, the court has a duty to assign such a
governing law. "Central Rule generally followed in
assigning the
appropriate law is that the loci contractus governs unless the
contract is to be performed elsewhere, in which case,
lex loci
solutions is applied." This point has been clearly stated in
PRIVATE INTERNATIONAL LAW

THE
MODERN ROMAN-DUTCH LAW including the JURISDICTION OF THE SUPREME
COURT. Third Edition - CF Forsyth. See also Standard Bank of
SA Ltd v
Efroiken and Newman 1924 AD 171 at 185 by De Villiers JA.

In terms
of Employment Agreement it was to be performed in Lesotho. [Clause 14
of the Employment Agreement Annexure 'A']. Applicant
has been working
in Lesotho in accordance with that agreement. The dispute which arose
and resulted with the disciplinary hearing
at Midrand in Republic of
South Africa concerned the applicant's performance of his duties at
THABA-TSEKA here in Lesotho where
the contract was being performed.
The law that was to apply is that of Lesotho. Labour Code Order No.24
of 1992. Section 242 (2)
The section provides thus:-

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"In any case where both the Laws of Lesotho and the laws of
another State could be applied in regard to the rights or
entitlements
of employees, their survivors or heirs, a court shall be
bound to apply the laws of Lesotho."

This
application before the Labour court is not a search for a condition
that is contrary to South African Rule of Law. It is the
matter for
determination of the rights and entitlements of the parties to the
contract. The question to be asked is - was what
was done to this
applicant in conformity with their agreement and most of all, in
accordance with the laws of this Kingdom? No
condition in the
employment agreement between the parties, is alleged to be contrary
to any Rules of Law of South Africa or Act.
What falls for
determination are the rights or entitlements of the employee, this
applicant.

The
Employment Agreement between these two parties seems to have close
connections with both systems of law. That is South Africa
where the

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contract
was entered into and Dissciplinary proceedings conducted and also The
Kingdom of Lesotho where the contract was to be
performed. But
nevertheless only one of the two systems can be applied in this
instance. The system that has the closest and real
connection with
the contract. That contract had to be performed in accordance with
the laws of Lesotho as the place where the duties
of the employee,
this applicant were to be performed in terms of their agreement of
employment. GUGGENHEIM V ROSENBAUM (2) 1961
(4) SA 15 (W). That is
the system that has the closest and real connection with the
contract. The only inference, that can be drawn
from the provisions
of the agreement in the absence of specific clause dealing with the
choice of law, as regards the question
of which law should govern
their Agreement, is that the law of the land of that country where
the contract is carried out, must
apply. The law of the land cannot
be excluded from application by the contracting parties. People who
commit certain acts which
affect individuals in this country

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must
answer for those actions to the laws of this country. The Labour
Court had jurisdiction to hear the matter and determine the
parties
rights and entitlements as required of it by section 242 of Act No.
24 of 1992 by applying the laws of this Kingdom.

As a
result, the decision of Labour Court in L.C. 23/97 is reviewed and
set aside. It is ordered that The Labour Court must hear
the merits
of the application and determine it accordingly.

K.J. GUNI

JUDGE

27th
April 1999

For
applicant: Mr. Mosito

For
respondent: Mr. Buys