CIV/APN/230/83 IN THE HIGH COURT OF LESOTHO

In the Application of :

LESOTHO FEDERATION OF TRADE UNIONS Applicant

v

1. 
   RAYMOND MOTHEPU 1st Respondent

   
   

2. 
   PHILLIP PAMA 2nd Respondent

   
   

3. 
   SIMON MOLETSANE JONATHAN 3rd Respondent

   
   

4. 
   ROSE MALERATO MOTSETA 4th Respondent

   
   

5. 
   LESOTHO COUNCIL OF WORKERS 5th Respondent

   
   

JUDGMENT

Delivered by the Hon. Chief Justice, Mr. Justice T.S.
Cotran on the 3rd day of November

1983

It is
common cause that prior to, at any rate the 23rd January 1983, there
existed in Lesotho two federations of Trade Unions, viz,
the Lesotho
Federation of Trade Union (LFTU) and the Lesotho Council of Workers
(LCW), Each federation has its own constitution
by which terms it Is
of course bound. A federation is defined in s.2 of the Trade Unions
and Trade Disputes Law 1964 (Vol X Laws
of Lesotho p 283) as "any
combination or association of two or more trade unions which has a
separate legal existence from the
trade unions of which it is
comprised".

The papers before me make it clear that since the year
1977 if not before (see Annexure B of the Founding affidavit and
Annexures
SMJ 1 2 and 3 of the answering affidavit) the leadership of
the two federations were anxious to close ranks and several meetings
of both federations had taken place with the object of creating one
federation to which all the various

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trade unions comprising each would belong. The desire to
unite culminated In a meeting on the 23rd January 1983 at Mafeteng
(Annexure
A to the founding affidavit) in which the leadership of the
two federations declared that "we symbolically bury the Lesotho
Council of Workers and the Lesotho Federation of Trade Unions and
upon it erect the foundation of the Lesotho Federation of Free
Trade
Unions". It should be noted that the unified name of the
proposed new entity was the same as one (LFTU) of the two federations
with the addition of the word "Free". The paragraph is
drafted in the present tense and a new "foundation" was
yet
to be erected.

The Trade Union and Trade Disputes Law 1964, supra,
gives rights to, and imposes obligations upon, trade unions, which
include inter alia, the right of two or more to form a
federation (s.30) and the obligation to register with (and be
recognised by) the Registrar of
Trade Unions (s,7 et seq). No
legal obligation to register apparently falls upon a federation but
it is Incumbent upon the individual trade unions in the
event of two
or more of them forming (or I suppose joining) a federation to comply
with the provisions of the law. A federation
cannot by law be formed
unless each trade union meets, a ballot is taken in accordance with
Regulation 12 of the Trade Union Regulations
and a specified majority
is obtained in each. (s.30(3)). When this event occurs the trade
unions concerned must notify the Registrar
of this fact giving him
the name and the purpose of the federation (s.3l(4)) on Form "O".
A federation of trade unions
is only then said to be in existence but
not otherwise. It must be assumed for the purpose of this Judgment,
and indeed it was not
suggested otherwise, that the individual trade
unions that formed the LFTU and LCW have complied with the provisions
of the law prior
to the dispute subject matter of these proceedings
and that the Registrar is aware of their existence.

The applicant, LCTU, sought and was granted a Rule
Nisi calling upon the respondents(LCW and four of its officers
)to show cause why all should not be directed, inter alia, to
stop

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holding themselves as the Lesotho Federation of Free
Trade Unions and stop representing themselves as such. A
plethora of documents (Annexures A B C D E F G in the founding
affidavit and Annexures J K L in the replying affidavit) were
annexed. The first four respondents (and by implication the fifth
respondent) also appending many documents, contend that a "merger"
was completed on the 23rd January 1983 by the Mafeteng declaration
previously referred to (Annexure A) and that the applicant, and
indeed the fifth respondent, have now "ceased to exist" and
that (if I understand Mr. Sello correctly) even if they did
not cease to exist the applicant is not entitled to the relief
claimed because it has no locus standi and no copyright to the
new name.

The affidavits and other papers show that the leadership
of the two federations were not entirely sure if the proposed
"merger"
under one name will succeed in practice but were
willing to try an experiment. On 14 November 1982 the "Action
Committee"
recommended 6 months for the preparation of a
constitution and 12 months trial period ('Annexure B) and the
declaration of Mafeteng
followed. Each federation however was to keep
its own premises, its own post office box number, its own finances,
and its own office
bearers and staff. Executive decisions however
were to be taken jointly. With this end in mind the name of the
proposed single federation
was circulated to various organisations
and institutions, locally and internationally, as if everything was
in fact accomplished.
A constitution (Annexure E) was drafted with a
number of matters left in abeyance. It was to be submitted for
approval at a "delegates
conference" to be held presumably
within the 12 months trial period that is, by 23rd January 1984.

The final breach occurred at the end of August 1983 when
the President and Secretary of LFTU wrote to LCW to say that they
could no
longer cooperate but left it to its individual trade unions
to decide whether or not to leave LFTU and join LCW. That was well
before
the trial period agreed upon ended. The attitude of the LCW
leadership was that the new federation was "already in
existence"

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subject only to the approval of the "delegates"
of the draft constitution in conference. There is nothing to support
this
stand. A conference was called for the 25th September (Annexure
F) under the name of the new federation signed by the secretary of
LCW on behalf of its leadership and an officer of LFTU (the only one
who defected) was sent to trade unions to send delegates to
a meeting
point from whence they were to be taken to another venue. It was not
disclosed where that venue was or which trade union
was invited,
which attended,and by whom.

It is my opinion that the Lesotho Council of Free Trade
Unions does not exist either on the facts or in law : on the facts
because
the declaration of 23rd January 1983 (Annexure A) was no more
than a statement of intent. The events that followed constituted a
concerted attempt to work out a scheme that did not materialise: in
law because a federation called the Lesotho Federation of Free
Trade
Unions can come about by statute only when two or more Trade Unions
resolve to form a federation bearing that name after complying
with
Regulation 12 and notifying the Registrar which, if it happened,
would be a different federation from the two federations LFTU
and
LCW. There is no evidence that this happened. If it did happen it is
open to the federation with a similar name(undissolved
or its
constituent trade unions withdraw and fall below two) to object and
to contest the choice of name by resort to the law. The
statute law
does not provide for the steps to be taken when two federations, as
existing legal entities distinct from their constituent
trade unions,
wish to "merge". If, as Mr. Sello submits, these
two federations are voluntary associations at common law, and can
merge themselves under another name, the committee
or executive body
of each must abide by its constitution. What is certain is that the
constitutions of neither federations provide
for this possibility.
It is not within the express or implied powers of their executive
bodies which means that in the final analysis
the leadership of the
federations be they regarded as a creatures of statute or common law
voluntary associations had first to go
to their own constituent Trade
Unions or members as the case may be for authority. This was not done
certainly as far as the applicant

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is
concerned. The individual trade union of each federation or

the members of the associations hold the trump cards -
not the federation's or association's leadership.

The Rule must be confirmed as prayed in terms of prayer
l(a)(b) and (d). I do not find it necessary to issue an order in
terms of
(c). No doubt as a news item it may be reported but there is
the sanction of punishment for contempt of court if the respondents
do not abide by the order.

CHIEF JUSTICE 3rd November 1983

For Applicant : Mr. Gwentshe

For Respondents: Mr. Sello