The appellants who were appointed on contract in the Lesotho public service in terms of a written contract agreed to refer any dispute arising from the implementation or execution of the employment contract to binding arbitration in terms of the provisions of the Public Service Act 2005 as amended. When the Crown determined that the contracts had terminated, they approached the High Court to seek declaratory and review relief instead of asking the court under s 4 of the Arbitration Act 12 of 1980 to not bind them to the arbitration agreement. The High Court declined jurisdiction because the appellants were bound by the agreement to refer the dispute to arbitration. Appeal against the High Court’s judgment dismissed, with costs.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV) 43B/2021
In the matter between:
TSOKOLO FRANZ KOMPI 1ST APPELLANT
MPHO SILVIA MOHLOAI 2ND APPELLANT
MAKHAUHELO SUZAN LEISANYANE 3RD APPELLANT
MABATLOKOA LETSATSI 4TH APPELLANT
MAPOSSA POSSA 5TH APPELLANT
CHOBOKOANE SEHLOMENG 6TH APPELLANT
MATHAPELO LEBINA 7TH APPELLANT
MAKORI POSHOLI 8TH APPELLANT
MATHAPELO LEFENYA 9TH APPELLANT
MATHSETSO RAMORUTI 10TH APPELLANT
PASEKA MOAHLOLI 11TH APPELLANT
MAMPHO MOEKO 12TH APPELLANT
MOTHETHI SEHLAHLA 13TH APPELLANT
GOVERNMENT OF THE KINGDOM OF LESOTHO 1ST RESPONDENT
MINISTRY OF FINANCE 2ND RESPONDENT
P.S. MINISTRY OF FINANCE 3RD RESPONDENT
P.S. MINISTRY OF SOCIAL DEVELOPMENT 4TH RESPONDENT
MINISTRY OF SOCIAL DEVELOPMENT 5TH RESPONDENT
PUBLIC SERVICE COMMISSION 6TH RESPONDENT
MINISTRY OF PUBLIC SERVICE 7TH RESPONDENT
THE ATTORNEY GENERAL 8TH RESPONDENT
CORAM: KE MOSITO P
PT DAMASEB AJA
MH CHINHENGO AJA
Heard: 19 April 2022
Delivered: 13 May 2022
PT DAMASEB, AJA:
‘Thus, if an employee in the public service is dissatisfied with the outcome of a disciplinary process or entertains a grievance, he or she must appeal to the Tribunal. A party wishing to challenge the finding of the Tribunal must approach the Labour Court. Under the Public Service Act 2005 (as amended) the legislature has not granted the High Court jurisdiction over such a dispute’
‘It is specifically recorded that any claim or dispute relating to the interpretation or execution of this Agreement which cannot be settled amicably shall be settled by binding arbitration according to the provisions of the Public Service Act 2005 as amended’.
Common cause facts
‘"public officer" means a person holding or acting in any public office’.
‘The above subject matter refers.
You will recall that your contract is coming to an end on . . . as per CIV/APN/12/2019 dated 25/01/2018. To that effect, you will be engaged on another contract from . . . up to 31/08/2021, pending finalization of the OAP transfer from the Ministry of Finance to Ministry of Social Development.’
The High Courts’ approach
‘. . . if an employee in the public service is dissatisfied with the outcome of a disciplinary process or entertains a grievance, he or she must appeal to the Tribunal. A party wishing to challenge the finding of the Tribunal must approach the Labour Court. Under the Public Service Act 2005 (as amended) the legislature has not granted the High Court jurisdiction over such a dispute.’
Issues on appeal
‘4. Binding effect of arbitration agreement and power of court in relation thereto-
‘the arbitration clause constitutes a self-contained contract collateral or ancillary to the [underlying] contract itself’.
‘An arbitration clause is a written submission, agreed to by the parties to the contract, and, like other written submissions to arbitration, must be construed according to its language and in the light of the circumstances in which it is made. If the dispute is as to whether the contract which contains the clause has ever been entered into at all, that issue cannot go to arbitration under the clause, for the party who denies that he has ever entered into the contract is thereby denying that he has ever joined in the submission. Similarly, if one party to the alleged contract is contending that it is void ab initio (because, for example, the making of such a contract is illegal), the arbitration clause cannot operate, for on this view the clause itself is also void.
If, however, the parties are at one in asserting that they entered into a binding contract, but a difference has arisen between them as to whether there has been a breach by one side or the other, or as to whether circumstances have arisen which have discharged one or both parties from further performance, such differences should be regarded as differences which have arisen 'in respect of', or 'with regard to', or 'under' the contract, and an arbitration clause which uses these, or similar, expressions, should be construed accordingly.’
‘Where a contract is dissolved or cancelled by mutual consent, the rights and obligations of both parties to the contract are brought to an end and neither party is left with any claim against the other arising from the contract.Any submission to arbitration contained in the contract is generally speaking also dissolved or cancelled. However, even in the case of consensual termination of a contract which includes an arbitration clause, the arbitration clause will still be operative in relation to disputes which arose out of or in relation to the agreement, and where both parties had intended that the arbitration clause should operate even after the agreement itself was at an end in relation to that class of dispute.
(2) If on any such application the court is satisfied that there is no sufficient reason why the dispute should not be referred to arbitration in accordance with the agreement, the court may make an order staying such proceedings subject to such terms and conditions as it may consider just’.
‘Section 18 of the Public Service Act 2005 specifically do (sic) away with the obligation to refer to arbitration any dispute of right, unless parties have agreed. Consequents, if (sic) flies in the very face of section 4 (1) of the Arbitration Act 1980 which obligates settlement of disputes by arbitration. As a corollary, the High Court’s powers under section 4(2) of the Arbitration Act 1980 do not arise, and the desirability of the stay application under section 7 of the Arbitration Act is of no moment’.
Validity/existence of contract vs implementation or execution
Agreement to refer to arbitration absent
The High Courts’ jurisdiction cannot be ousted by private treaty
The appeal is dismissed, with costs.
ACTING JUSTICE OF APPEAL
PRESIDENT OF COURT OF APPEAL
For the Appellants: Adv S.T Maqakachane
For the Respondents: Adv P.T.B.N Thakalekoala
 C of A (CIV) 27/2021 (14 May 2021).
 Compare: Altech Data (Pty) Ltd v MB Technologies (Pty) Ltd 1998 (3) SA 748 (W) at 752-4 and authorities cited there.
 Bremer Vulkan Scffbau Und Maschinenfabrik v. South India Shipping  A.C. 980.
 Heyman v Darwins Ltd (1942, A.E.R. 337).
 For an example, see Prima Paint Corp v Flood & Conklin Mfg Co. 388 U.S. 395, 87 S.Ct.1801 (1967).
 Nolde Bros., Inc v Bakery Workers Union, 430 U.S. 243, 250 (1977),
 Opuwo Town Council v Doly Investments CC  NAHCMD 389 (23 November 2018).
 Scriven Bros v Rhodesioan Hides & Produce Co. Ltd & Others 1943 AND 393 at 401.
 Ramsden, P. 2009. “The Law of Arbitration: South African & International Arbitration”. Cape Town: Juta.
 Ramsden (2009: p. 47).
 Atteridgeville Town Council and Another v Livanos t/a Livanos Brothers Electrical 1992 (1) SA 296 (A).
 Gardens Hotel (Pty) Ltd and Others v Somadel Investments (Pty) Ltd 1981 (3) SA 911 (W).
 Ramsden, P. 2009. “The Law of Arbitration: South African & International Arbitration”. Cape Town: Juta at 46.
 Public Service Act 2005, s18.
 Also applicable to Namibia as a former colony of South Africa.
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