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:
All the Respondents should not bedirected to desist from holdingthemselves out as Office Bearers ofthe L.F.T.U.
L.F.T.U. should not be declared ashaving been dissolved by its Extraordinary Conference held on the14th October, 1984:
The assets which Lesotho Congressof Free Trade Unions received interms of the Resolution of 14thOctober, 1984 should not be declaredlegitimate property belonging to theLesotho Congress of Free TradeUnions,
All the Respondents should not bedirected to produce the keys to thecabinets in the office formerly used
by the said Moreke in the former offices
/of the
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of the L.F.T.U. and hand them over to Applicant.
All Respondents should not bedirected" to pay the costs of thisapplication.
The above Court should not grant suchfurther 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 dissolutionof 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.;
Was the purported transfer of theproperty of L.F.T.U. to the Applicantin accordance with the provisions ofthe constitution of the L.F.T.U.,
Was the calling off of the ExtraordinaryConference by the First Respondent onthe 14th October, 1984 justified in termsof the constitution; and
Has the Applicant been properly or legallyregistered as a federation pursuant tosection 30 (6) of the Trade Unions andTrade 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
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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
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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
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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 submittedthat First Respondent's act of dismissal of Extraordinary Conference was unconstitutional and thereforeof no legal effecb. He ha3 contended that once theExtraordinary Conference is proved to have formed aquorum terms of Article V (b) there is no furtheradditional 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 thatthere is a presumption of regularity of administrativeacts of the Executive Board. He has submitted that theApplicant did not know that the Executive Board could not
/form
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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
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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
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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 sectionprovides.
"When a trade union is dissolved, notice, containing such particulars as may be prescribed, of the dissolution, signed
/by at
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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.