Whether s 6 of the High Court Act 5 of 1978 grants the High Court jurisdiction in respect of labour-related disputes when regard is had to the jurisdiction provisions of the Labour Code Order 1992 (as amended).
Held that the Labour Code Order ousts the jurisdiction of the High Court in respect of labour-related disputes.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO.: 9/2020
In the matter between:
MBELE HOOHLO APPELLANT
LESOTHO ELECTRICITY COMPANY
(PTY) LTD RESPONDENT
CORAM: DR MOSITO P
DR VAN DER WESTHUIZEN AJA
HEARD: 14 OCTOBER 2020
DELIVERED: 30 OCTOBER 2020
P T Damaseb AJA
(b) a civil suit instituted against him for the recovery of moneys he allegedly defrauded LEC of (and against which he brought a counterclaim); and
(c) proceedings pending at the labour dispute resolution process under ss 226 and 227 of the Labour Code Order 1992 (the Labour 1992 Code)-Mr Hoohlo having instituted a complaint of unfair labour practice against LEC.
"No civil cause or action within the jurisdiction of a subordinate court shall be instituted in or removed into the High Court save by a Judge of the High Court acting on his own motion; or with leave of a Judge upon application made to him in chambers and after notice to the other party." (My underlining for emphasis)
The High Court
“1. The judicial power shall be vested in the courts of Lesotho which shall consist of--
a. a Court of Appeal;
b. a High Court;
c. Subordinate Courts and Courts-martial;
d. such tribunals exercising a judicial function as may be established by Parliament.’’
‘establish courts subordinate to the High Court, courts martial and tribunals, and any such court or tribunal shall, subject to the provisions of this Constitution, have such jurisdiction and powers as may be conferred on it by or under any law’.
The scheme of the Labour Code Order
‘the Labour Court has jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other Labour law are to be determined by the Labour Court.’
Subsection (2) (a) of s 24 in turn stated:
The Labour Court shall have power to inquire and decide the relative rights and duties of employees…in relation to any matter referred to the Court under the provisions of this Code and to award appropriate relief in case of infringement’.
The jurisdiction of the Labour Court is exclusive and no court shall exercise its civil jurisdiction in respect of any matter provided for under the Code …notwithstanding section 6 of the High Court Act 1978.
‘Subject to the Constitution and section 38A, the Labour Court has jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other labour law are to be determined by the Labour Court.’ (My emphasis).
The 2000 amendment also deleted the old s 25 and replaced it with a new s 25 in the following terms:
‘(1) The jurisdiction of the Labour Court is exclusive and no court shall exercise its civil jurisdiction in respect of any matter provided for under the Code-
(2) The Minister, the Labour Commissioner, the Director of Dispute Prevention and Resolution and an aggrieved party shall have the right to present a claim to the court as provided under the Code.’ (Emphasis supplied).
Notwithstanding the provisions of subsection (1), the judge of the Labour Appeal Court may direct that any matter before the Labour Court or a matter referred to the Directorate for arbitration in terms of s 227 be heard by the Labour Appeal Court as a court of first instance.’ (My underlining)
‘Subject to the Constitution of Lesotho, no appeal lies against any decision, judgment or order given by the Labour Appeal Court.’
The appellant’s submission on exclusive jurisdiction
Parliament is presumed to legislate with full knowledge of the common law and when it enacts legislation, relevant common law principles, including that relating to interpretation of statues, remain in force and operate in conjunction with a new statute in the absence of a clear indication to the contrary. As Du Plessis correctly writes:
‘Legislation must, in other words, be interpreted in the light of the common law, must as far as possible be reconciled with related precepts of the common law and must be read to be capable of co-existing with the common law in pari materia.’
‘The High Court shall have full power, jurisdiction and authority to review the proceedings of all subordinate courts of Justice within Lesotho, and if necessary to set aside or correct the same.’ (Emphasis supplied).
‘The application is dismissed and there is no order as to costs’.
ACTING JUSTICE OF APPEAL
DR K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
DR J VAN DER WESTHUIZEN
For the Appellant: Mr M.S. Rasekoai
For the Respondent: Adv S. Phafane KC
 The other is Civ 05 of 2020.
 See ss 226(1)(a) and 226 (2)(b)(ii) and 226 (2)(c).
 CGM Industrial (Pty) Ltd v Lesotho Clothing and Allied Workers’ Union and Others LAC (1995-99) 79 at 79A-D; Attorney- General v Lesotho Teachers Trade Union LAC (1995-99) 119 at 132A-E; Tlali v Attorney-General LAC (2000-2004) 510 at 512D-F; Vice –Chancellor of the national University of Lesotho and Another v Lana LAC (2000-2004) 527 at 532A-E – 533-534A-J; LHDA v Mohlolo C of A (Civ) No. 7 of 2009; Lesotho Revenue Authority and Others v Dichaba and Others C of A (Civ) No. 21 of 2018; Mokhali Shale v ‘Mamphele Shale and Others C of A (Civ) No. 35 of 2019.
 Mokhali Shale v ‘Mamphele Shale and Others C of A (Civ) 35 of 2019.
 SA 67/2018 (8 September 2020) para 59.
 Du Plessis Interpretation of Statutes at 160.
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