CTV/APN/248/84

IN THE HIGH COURT OF LESOTHO
In the
Application of :

LESOTHO CONGRESS OF FREE TRADE UNIONS Applicant

V

TSELISO RAMOCHELA 1st Respondent

SEABATA LEKHABANE 2nd Respondent

AGNES LIMEMA 3rd Respondent

HAPE TSAKATSI 4th Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice J.L. Kheola on the
25th February, 1985.

This is an application for an order in the following
terms;

1. A Rule Nisi calling on the Respondents on a date to
be determined by the above Honourable Court to show cause, if any,
why:

1. 
   All the Respondents should not be
   directed to
   desist from holding
   themselves out as Office Bearers of
   the
   L.F.T.U.

   
   

2. 
   L.F.T.U. should not be declared as
   having been
   dissolved by its Extra­
   ordinary Conference held on the
   14th
   October, 1984:

   
   

3. 
   The assets which Lesotho Congress
   of Free Trade
   Unions received in
   terms of the Resolution of 14th
   October,
   1984 should not be declared
   legitimate property belonging to
   the
   Lesotho Congress of Free Trade
   Unions,

   
   

4. 
   All the Respondents should not be
   directed to
   produce the keys to the
   cabinets in the office formerly used

   
   

by the said Moreke in the former offices

/of the

-2-

of the L.F.T.U. and hand them over to Applicant.

5. 
   All Respondents should not be
   directed" to pay
   the costs of this
   application.

   
   

6. 
   The above Court should not grant such
   further and
   or alternative relief the

   
   

/
above Court deems fit.

On the 8th November, 1984 the Rule Nisi was granted and
the return day was fixed as the 26th November, 1984, After several
postponements
the matter was finally heard on the 28th and 29th
January, 1985. The issues that have to be resolved by the Court may
be summarized
as follows:

(a) Was the purported dissolution
of L.F.T.U. which
took place on

the 14th October, 1984 in accordance with the
provisions of the constitution of the said L.F.T.U.;

2. 
   Was the purported transfer of the
   property of
   L.F.T.U. to the Applicant
   in accordance with the provisions
   of
   the constitution of the L.F.T.U.,

   
   

3. 
   Was the calling off of the Extraordinary
   Conference
   by the First Respondent on
   the 14th October, 1984 justified in
   terms
   of the constitution; and

   
   

4. 
   Has the Applicant been properly or legally
   registered
   as a federation pursuant to
   section 30 (6) of the Trade Unions
   and
   Trade Disputes Law of 1964.

   
   

I shall deal with the issues by starting, with

(d) above because at the hearing of this Application
Mr, Mphutlane. for the Respondents, raised a point in limine that
the Applicant
has no locus standi in .judicio. He submitted that
Applicant is not a registered federation within the meaning of the
Trade Unions
and Trade Disputes Law No. 11 of 1964, in that there
has been no compliance with sections,

/30

-3-

30 (3) and 31 (4) thereof and Regulation 12 made
thereunder. He referred to the case of Lesotho Federation of Trade
Unions v.
Raymond Mothepu and 4 Others, CIV/APN/230/83 (Unreported)
where Cotran, C.J., said at p. 2'

"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
in 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
(5)). When this event occurs the trade unions concerned must notify
the
Registrar of this fact giving him the name and purpose of the
federation, (S. 31(4)) on Form "0". A federation of
trade
unions is only then said to be in existence but not otherwise."

I entirely agree with the learned Chief Justice on his
interpretation of sections 30(3), 31(4) and Regulation 12 but I an
not so
sure that no legal obligation to register apparently falls
upon a federation because section 31(4) (5) provide:

(4) Notice in writing containing such particulars as may
be prescribed shall be given to the Registrar of every amalgamation
and federation
effected after the coming into force of this.Law,
signed by the Secretary and at least six members of each registered
trade union
which is a party thereto. The notice shall be given
within one month of the amalgamation or federation.

(6) If the Registrar is satisfied that the provisions
of this Law in respect of federation have been compiled with and that
the combination
formed thereby is a trade union within the meaning of
this Law and that the trade union is entitled to be registered under
this Law,
he

/shall

shall register the trade union in the prescribed manner
and the federation shall have effect from the date of registration.
Provided
that if the combination so formed by federation is not a
trade union within the meaning of this Law it shall have effect from
the
time when the federation took place."

It seems to me that a federation of trade unions must
register in terms of sub-section (6) while an amalgamation of trade
unions must
register under sub-section (5). The Applicant was
registered by the Registrar of Trade Unions on the 12th October,
1984 and
a "Certificate of Registration" duly signed by him
is annexure "1" to the Replying affidavit by Mr. Raymond
Mothepu. Now the question is whether the Respondents have placed
before this Court any evidence of fraud on the pert of the Applicant
by which the registration was obtained. There is not a scintilla of
evidence of fraud except an unsubstantiated statement that there
was
no compliance with the provisions of sections 30(3), 31(4) and
Regulation 12 of the Trade Unions and Trade Disputes Law of 1964.
Section 10 of the Law provides:

"The Registrar on registering a trade union shall
issue to the trade union a certificate in the prescribed form and
that certificate,
unless proved to have been cancelled or withdrawn,
shall be conclusive evidence for all purposes that the trade union
has been duly
registered under this Law." (My underlining).

I have already stated that the Respondents have failed
to prove fraud and it also seems that they could succeed to have the
"Certificate
of Registration." set aside if they proved
that it had been cancelled

/or withdrawn

-5-

or withdrawn but there is no such evidence. In
Glenfield & Others v. Zedediela Employees' Co-op. Socy. &
Another, 1950
(2) S.A. 155 it was held that 'when a certificate is
said to be conclusive of a fact, it must surely be the last word on
the subject
- finally decisive of the matter in issue. ' But this
does not mean that the certificate cannot itself be attacked on the
ground
of fraud in its procurement. (See Registrar of Asiatics v
Salajee, 1925 T.P.D. 71). Irregularities or errors of whatever
character
or degree of seriousness are insufficient to deprive the
certificate of its conclusiveness so long as they do not amount to
fraud
(Glenfield's case, supra).

Mr. Mphutlane argued that the national unions failed to
take the ballot in accordance with the Law but this allegation is not
supported
by any evidence in the form of an affidavit from any member
of the 26 national unions which formed the federation (Applicant) on
the 27th May, 1984 at the Airport Hotel. It is not clear how the
Respondents would have known that the ballot was not taken at the
various offices of the 26 national unions which are scattered all
over this country. What little evidence there is in the papers
shows
that after the election of the interim committee at Airport Hotel on
the 27th May, 1984 the committee sent "Form 0"
(prescribed
by section 31(4) and Regulation 13) to all the trade unions in
Lesotho. (See Annexure 'E' and "E" to the founding
affidavit). This evidence comes from the Secretary -General of

/L.F.T.U.

—6—

L.F.T.U. The Respondents cannot be heard to say no
ballot was taken by the national unions when their own
Secretary-General says
the ballots were taken. After the ballots were
taken by the national unions in accordance with the Law the forms
(Forms 0) were sent
to the Registrar by the unions themselves (see
annexure "J" to the replying affidavit). I am pointing
out these pieces
of evidence to show the Respondents that there was
no element of fraud in the registration of the Applicant.

I may add that even if the Applicant were not a
registered trade union the proviso to section 31(6) of the Trade
Unions and Trade
Disputes Law of 1964 makes it quite clear that if
the combination so formed by federation is not a trade union within
the meaning
of this Law it shall have effect from the time when
federation took place. In other words, where the federation is not a
trade union
it shall be presumed to have come into being on the day
it was formed. It seems to me that even if the 'Applicant had not
been properly
registered it would still be presumed to have come
into existence on the 27th May, 1984 when the national unions formed
it. It
was common cause that the Applicant is a trade union within
the meaning of this Law and I have not found it necessary for me to
decide
this point. Even the Registrar registered the Applicant on
the assumption that it was a, trade union.

For the reasons I have attempted to summarize above I
came to the conclusion that the point raised

/in limme

—7—

in limme by Mr. Mphutlane that the Applicant has no
locus standi in judicio because it is not a registered federation,
must fail.

The second leg of the point raised in limine was that
the provisions of section 23 (2) of the Trade Unions and Trade
Disputes Law
of 1964 relating to capacity to sue or to be sued by
unregistered trade unions do not help the Applicant in that there is
no corresponding
provision as far as a federation is concerned. I do
not agree with this submission for the reasons I have already given
above that
in terms of the proviso to section 31(6) supra, a
federation which is not a trade union comes it existence on the day
the federation
takes place.

I shall now deal with issue (c) above; Whether the
calling off of the Extraordinary Conference by the First Respondent
was constitutional
or not. However, I must make it quite clear that
this issue has nothing to do with the fact that the Applicant is a
legally registered
federation of trade unions in Lesotho endowed with
powers to sue and to be sued. In his opposing affidavit the First
Respondent deposes
that the decision to hold the Extraodinary
Conference was taken by the Executive Board of L.F.T.U, on or about
the 12th August,
1984 at a properly constituted meeting and the
Executive Board would meet on subsequent occasions to decide on the
Agenda for the
said Extraordinary Conference. At all such subsequent
occasions the Executive Board could not meet or decide on any Agenda
for lack
of quorum in terms of the

/constitution

-8-

constitution of L.F.T.U. viz. three-fifths of the
members in terms of Article VI (2) and the credentials committee
could not be appointed
for the same reason. This allegation that the
Executive Board could not meet to draw up the Agenda for lack of
quorum is totally-untenable
for the following reasons:

(a) On the 8th October, 1984 the Executive Board
circulated a document called the Agenda (Lenane la Tsebetso) (see
annexure "C"
to the founding affidavit, C" purports
to be the English translation of "C" but is inaccurate).
Ex facie this document
is for all intents and purposes a proper
agenda but the First Respondent is now saying that that document "was
nothing else
but proposals which were to be submitted to the
Executive Board which could not meet or take any decisions for lack
of quorum."
This allegation does not make sense and appears to
me to be untrue. It does not explain why proposals which were
intended for the
Executive Board could be circulated to all the
national unions which are members of L.F.T.U. It does not even
explain why the document
was called the Agenda and not the proposed
Agenda. The allegation sounds so hollow that no Court can believe
it. The most probable
thing is that for reasons best known to them
the Respondents decided at the last moment to frustrate the members
of the national
unions in their endeavour to form one federation of
trade unions in this country by calling off the conference. I am of
the opinion
that the document was an agenda properly drawn up by the
Executive Board for the consideration of the

/Extraordinary

-9-Extraordinary Conference.

(b) Mr. Gwentshe for the Applicant has submitted
that
First Respondent's act of dismissal of Extra­
ordinary
Conference was unconstitutional and therefore
of no legal effecb.
He ha3 contended that once the
Extraordinary Conference is proved
to have formed a
quorum terms of Article V (b) there is no
further
additional requirement for the Executive Board to

form a quorum too. The Respondents have not averred
that the Extraordinary Conference could not form a quorum. I think
there is
some substance in this submission because Article V (6)
reads:

"Three-fifths (3/5) of the National Unions of the
Federation shall form a quorum at the opening of every conference. In
the
course of the Conference half of the delegates shall form a
quorum at every session."

It seems to me that once the delegates from various
national unions of the federation had arrived and a quorum of
three-fifths had
been formed there was no requirement that the
Executive Board should also form a quorum. The Executive Board must
form a quorum
(Article VI (2)) when it is carrying out its duties
and functions specified under Article VI (3). At the Extraordinary
Conference
only the delegates from the national unions are expected
to form a quorum. There is no averment that the Extraordinary
Conference
could not form a quorum.

(c) The last point raised by Mr. Gwentshe is that
there
is a presumption of regularity of administrative
acts of the
Executive Board. He has submitted that the
Applicant did not
know that the Executive Board could not

/form

-10-

form a quorum in order to carry out its duties. In
dealing with this presumption in the Mine Workers Union v. Greyling,
1948 (3)
S.A. 831 (A.D.) at p. 849 Greenberg, J.A., is quoted as
having said:

"It seems to me that the true position is that the
necessary acts of internal management are presumed to have been
performed
and not that a particular person is entitled to assume that
they have. (See also per Scrutton, L.J., in the Kredit Bank Cassel
case
at pp. 837/8). I have already said that this presumption does
not arise when the other contracting party knows that the acts have
not been performed."

In the present case the Applicant did not know that the
Executive Board could not form a quorum and as I have already pointed
out
on the face of it the agenda circulated by the Executive Board is
a proper document. I am of the opinion that The Respondents are
estopped from saying that Agenda was not an agenda at all. Even the
delegates who attended the Extraordinary Conference refused
to
disperse because they believed that the Agenda was in order. The
Respondents have failed to prove that the Executive Board could
not
form a quorum. If their story were true no agenda would have been
circulated to the various national unions of the federation.
I have
come to the conclusion that the calling off of the Extraordinary
Conference by the Respondents was unconstitutional and that
when they
unlawfully left the meeting the delegates had every right to appoint
another chairman and to carry on with the business
of the
Extraordinary Conference. It was the First Respondent who behaved in
such an unconstitutional manner that his attempt to
call

/of the

-11-

off the conference was of no legal effect and could not
in any way invalidate the proceedings that followed after he and his
colleagues
had left the conference.

I have been referred to the case of Nqojane v Liphoto &
others 1980 (1) LLR. 51. In my view that case is not on all fours
with
the present case. In that case it was common cause that there
was rowdiness during a conference of the members of club and the
chairman decided to close the conference. A group of certain members
refused to disperse and purported to continue the conference
after
the chairman had left and they subsequently passed certain
resolutions. The Court held that such resolutions were null and
void because the conference was constitutionally called off by the
chairman. In the present case there was no rowdiness. The chairman
wrongly and unconstitutionally tried to dismiss the conference. He
had no valid reasons to disperse the delegates after he and the
Executive Board had convened the conference pursuant to the
provisions of the constitution of L.F.T.U. He acted arbitrarily and
wanted to frustrate the delegates whose clear intention was to form a
single federation of trade unions in this country. In his
remarks
at the conference the Secretary-General of L.F.T.U. pointed out
'that the L.F.T.U. has been the protagonist which has
spearheaded
the idea of forming one national centre, though most unfortunately,
in the process, some misunderstanding and confusion
emerged owing to
power-hunger amongst L.F.T.U. Leadership.' (Annexure D & D').

/The members

-12-

The members of the Executive Board knew very well that
at that conference their future was coming to be decided. They were
to resign.
It seems to me that these power-hungry men (as described
by their own Secretary-General) will cling to their positions for as
long
as they can.

It is true that in terms of Article V (7) (c) (1) (11)
of the constitution when the extraordinary conference is convened at
the instance
of the Executive Board only matters laid down in
paragraph 5 of Article V may be included in the agenda. However, the
Executive Board
shall have the power whenever it deems it necessary
to convene an extraordinary conference to deal with any contingency
that may
arise and to arrange the agenda for such conference. If a
contingency arises the Executive Board is authorized to convene an
extraordinary
conference and to prepare an agenda accordingly. Such
agenda shall be submitted for approval by the Extraordinary
Conference.
(Article V (7) (c) (111). The conference held on the
14th October, 1984 had to deal with the dissolution of L.F.T.U.
This was
a contingency for which the conference was called and the
agenda was approved by the conference.

Mr. Mphutlane has submitted that there has been no

compliance with the provisions of section 38 of the

Trade Union and Trade Disputes Law of 1964. The
section
provides.

"When a trade union is dissolved, notice,
containing such particulars as may be prescribed, of the
dissolution, signed

/by at

-13-

by at least six members and the secretary of the' trade
union shall, within fourteen days of the dissolution, be sent to the
Registrar
and shall be registered by him if he is satisfied that the
dissolution has been effected in accordance with the rules of the
trade
union. The dissolution shall have effect from the date of
registration of the notice.'' (My underlining)

I have found no evidence or any document in the file
indicating that the Registrar was notified of the dissolution.
Annexure "F"
to the founding affidavit was a notice to the
Applicant that L.F.T.U, had been dissolved. The Law makes it quite
clear that the
dissolution shall have effect from the date of
registration of the notice. It seems to me that the dissolution
resolved on the
14th October, 1984 has now elapsed because the
Registrar was not given a notice of such dissolution within fourteen
days after the
resolution. This means that the national unions of
L.F.T.U. must again convene a conference if they still wish to
constitutionally
dissolve their federation. They cannot now try to
inform the Registrar of the dissolution which took place four months
ago. The
Law requires them to have acted within fourteen days after
the dissolution. For this reason the rule nisi cannot be confirmed.
It follows that the rule obtained by the Applicant on the 8th
November, 1984 must be discharged with costs to the Respondents.

JUDGE.
25th February, 1985.

For the
Applicant : Mr. Gwentshe

For
the Respondents. Mr. Mphutlane.