IN THE HIGH COURT OF LESOTHO In the
SPIE BATIGNOLLES 1st Respondent
PROJECT MANAGER (KATSE AREA) 2nd Respondent
OFFICER COMMANDING - MASERU 3rd Respondent
GENERAL 4th Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 3rd day of July, 1990
According to the amended Notice of Motion the applicant
is now applying for an order in the following terms:
Declaring as null and void the summarydismissal of
the applicant's members bythe first respondent.
Granting applicant further and/or alternativerelief.
It is common cause that on the 10th April, 1990 the
applicant declared a trade dispute in terms of the Labour Laws of
after there was a deadlock in the negotiations
between the applicant and the first respondent.
The Ministry of Labour appointed two conciliators, Mr.
Khotle as the chairman and Mr. Tau as a member At the conciliation
there were eight matters that were to be discussed and at the
end of the meeting only three matters remained unresolve . Mr. Khotle
did ask the parties as to what their attitude was to arbitration. The
first respondent's attitude was that if the Minister's decision
that the matter be referred to arbitration they would accept the
Minister's decision and go to arbitration. Furthermore if the
arbitrator then made an award in excess of their proposed 12%
increase across the board the first respondent would have no choice
but to pass it to the client. The representative of the applicant
declined to accept arbitration and made it clear that they would
for a strike action. The conciliation meeting took place on the 7th,
8th and 9th May, 1990.
On the 15th May, 1990 the applicant gave notice to the
Labour Commissioner in terms of section 58 of the Trade Unions and
Law 1964 that the members of the applicant would go on
strike in four weeks' time. The letter reads as follows:
C.A.W.U.L.E. P.O. BOX 4055, MASERU 100 15th May, 1990.
The Labour Commissioner, Labour Department, Private Bag
A 116, MASERU 100
re: NOTICE OF A LEGAL STRIKE
With reference to the deadlocked negotiations between
the Construction and Allied Workers Union of Lesotho and Spie
we hereby wish to take this opportunity to clarify
the position of the said Union as follows:
1. The Union is now giving four weeks notice in
terms of section 58 of the Trade Union and Trade
Disputes Law of 1964. The reasons for this notice are as follows:
1.1 Spie Batignolles management clearly
stated that they would not make any move.
They said they would not change theirposition
unless they are told by thegovernment or The Arbitrator to
offerbetter wage increments.
They requested that the matter should bereferred to
arbitration because they wouldclaim that from the government.
1.4 The Union does not see any possibility of
making any other settlement through further conciliation
wettings with Spie Batignolles as the company is no longer prepared
with negotiations in good faith.
1.5 They in most cases state that they want to offer
wages in accordance with the minimum wage scale as set out by the
The Union has because of these reasons been mandated by
the members to give this notice in support of the three outstanding
namely: wage increment, accomodation allowance and monthly
transport to and from Maseru.
Justice Sello Tsukulu, General Secretary.
c.c Spie Batignolles."
I think it is convenient at this stage to set out in
some detail those sections of the Trade Unions and Trade Disputes Law
(The Law) which deal with strikes and lockouts.
Section 55 (1) and (2) provide that:-
1. If within two weeks of the appointment of a
conciliator under the last foregoing section an agreement has not
been reached on
all the matters in dispute, or if, before that time
the conciliator considers that there is no prospect of reaching an
the conciliator shall submit a report to the Member
setting out the facts and stating -
how far, if at all, agreement hasbeen reached; and
what are in his opinion the issueswhich remain in
the arguments used for and againstthe contentions
of the parties.
2. The Member, on receipt of a report under sub-section
(1) of this section shall either proceed to serve on the parties a
under the next following section or appoint the Labour
Commissioner or some other person to act as additional conciliator
further endeavours to arrive at an agreement."
Section 56 (1) provides that:-
1. The notice mentioned in the last foregoing section to
be served by the Member shall be a notice -
stating what are in his opinion theissues between
the parties; and
asking the parties whether they agreeto those
issues being referred to anddetermined by arbitration."
Section 58 (1) and (2) provide that:
Where the Member has, under section fifty-fiveof
this Law, served notice on the parties to atrade dispute either
party may' consent to arbitration or may serve on the
Member and on theother party a notice refusing consent to
A notice refusing consent to arbitration may
alsocontain a statement of intention to declare, atthe
expiration of four weeks from the service ofsuch notice, a
strike or as the case may be alockout in furtherance of the
Section 59 provides that:-
"A strike or lockout carried out in accordance with
a statement of intention notified under the last foregoing section is
Any other strike or lockout is unlawful."
It is quite clear that the notice given to the Labour
Commissioner on the 15th May, 1990 was premature. At that time the
was still considering the report of the conciliators and had
not yet given notice to the parties in terms of section 56 of the
The applicant could not give notice to take a strike action
before the Minister had given them notice and asked them whether they
would accept arbitration. On the 21st May, 1990 the Labour
Commissioner warned the applicant that in his opinion the notice was
and not in accordance with section 58 (2) of the Law. He
advised the applicant not to call a strike unless and until the
to settle trade disputes has been completely
It cannot be said that on the 15th May, 1990 when the
applicant purported to give notice to the Minister in terns of
section 58 (2)
of the Law all lawful machineries to settle trade
disputes had been completely exhausted. The Minister was still
entitled under section
55 (2) of the Law to appoint the Labour
Commissioner or some other person to act as an additional conciliator
and make further endeavours
to arrive at an agreement or to refer the
dispute to arbitration.
The applicant's notice of the 15th May, 1990 was
premature, unprocedural and unlawful.
On the 31st May, 1990 the Minister indicated that he had
received the report of the conciliators and noted that out of eight
which were in dispute a deadlock was reached on three of them
He asked the parties whether they agreed that the remaining issue
be referred to arbitration in terms of section 56 (a), (b)
In paragraph 3 (g) of his affidavit Sello Tsukulu who is
the General-Secretary of the applicant deposes that on the 4th June,
the Minister wrote to the parties to the dispute and asked them
whether they would consent to arbitration or not. He deposes that
applicant reiterated its earlier position that it would go on a
The applicant ought to have realized when it received
the Minister's notice that its own notice was premature. A new notice
to have been issued by the applicant on the 4th June, 1990 and
the four weeks period prescribed by the Law would expire on the 2nd
July, 1990. Instead of issuing a new notice the applicant merely
reiterated what it had already said. That reiteration had no
on the earlier notice which was null and void. The strike action
which followed that notice was also unlawful and premature.
As I have
already said above the applicant ought to have issued a new notice on
the 4th June, 1990 when it received the notice of
In his founding affidavit Sello Tsukulu stated in no
uncertain terms that on the 15th June, 1990 the workers went on.
strike. He deposes
in paragraph (j) that -
"On the 15th June, 1990 workers decided to stop
working in pursuant of the strike declaration made. I saw senior
of the 1st respondent leaving the KATSE area. The
Project Manager said they had no mandate to talk to us. I however
told MR. MOLAPO
that if he brought supervisors who hold work permits
the workers may resume work."
In paragraph (n) he deposes that -
"I further submit that since the notice of
intention to declare a strike was not nullified the workers were
entitled to proceed
with the strike and further the workers could not
be forced to obey orders from unlawfully employed supervisors."
I am surprised that his so-called supplimentary
affidavit Sello Tsukulu now gives the impression that the workers
were prepared to
go to work on the 15th June, 1990 but that Warrant
Officer Motenalapi told him "that management had requested him
to stop workers
from getting into the office site as there might be a
strike and so police must stop any person from getting inside the
On the 13th June, 1990 the workers unanimously decided
that they would proceed with the strike if management did not
good faith with the applicant and also if the management
did not bind itself that it would discipline or dismiss supervisors
assault workers. It will be realized that these new demands by
the applicant's members were not covered by the unresolved issues
which were contained in the Minister's notice namely, 1. Monthly
transport to and from Maseru, 2. Accommodation allowance and 3.
That the strike was on on the 15th June, 1990 is
confirmed by the applicant in its letter of the 16th June, 1990
addressed to the
first respondent (This letter is on page 74 of the
record).In that letter the applicant strongly warned the first
to employ scab labour. It was alleged that such a move
would be met with the utmost resistance.
It is common cause that on the evening of the 14th June,
1990 the first respondent started to evacuate its supervisors from
camp because it was clear that there was going to be a
strike on the following day. The applicant cannot be heard to say
workers failed to work on the 15th June because supervisors
were not at the site. The strike had been planned over a very long
and as late as the 13th June, the workers made it quite clear
that the strike would take place.
I reject it as a pack of lies that on the 15th June,
1990 the workers were prepared to go on with their normal duties.
In terms of section 59 of the Law I find that the strike
On the 16th June, 1990 the first respondent summarily
dismissed the striking workers in terms of section 15 (3) (b) and (e)
Employment Act 1967. It seems to me that an employee who goes
on an unlawful strike is absenting himself or herself from work
the permission of the employer and without a reasonable
The workers who have been dismissed are not entitled to
a notice because they were being summarily dismissed for being
an unlawful strike.
The applicant is unhappy that the first respondent
empleys supervisors who have no valid certificates of employment
issued by the
Minister in terms of section 28A of the Employment Act
The workers are not prepared to obey orders of such
employees on the ground that their orders are not lawful. I am of the
the applicant and its members have totally misconstrued the
provisions of section 28A of the Employment Act 1967* The
of employment issued to supervisors who come from
outside Lesotho have nothing to do with the employees of the first
are under the supervision of such foreigners. The
orders given by such foreigners can be disregarded by workers only if
unlawful in the sense that they are outside the terms of
employment of the workers or to any law or regulation in force in the
The mere fact that such foreigners have no certificates of
employment cannot make their orders unlawful. If the applicant is
about the employees of the first respondent who have no
certificates of work, all it can do is to report than to the
authorities so that they can be prosecuted under
subsection (6) of section 28A of the Employment Act 1967.
It was submitted on behalf of the applicant that the
workers were not asked if they associated themselves with the strike.
I am of
the view that this submission is not sound. The workers
referred to are members of the applicant who had meetings at which it
agreed that a strike action should be taken. The applicant
represented all its members and informed the management of the first
that the workers would go on strike on the 15th June, 1990
and this is exactly what they did.
In the result the application is dismissed with costs.
J.L. KHEOLA JUDGE
3rd July, 1990.
For the Applicant - Mr. Rakuoane For 1st and 2nd
Respondents - Mr. Moiloa.
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