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CIV/APN/400/93

IN THE HIGH COURT OF LESOTHO
In the
Matter between:
POTLAKO MAKOA Applicant

and

LESOTHO HIGHLANDS PROJECT CONTRACTORS 1st Respondent

SPIE BATIGNOLLES (PTY) LTD 2nd Respondent

BALFOUR BEATY (PTY) LTD 3rd Respondent

CAMPENON BERNARD (PTY) LTD 4th Respondent

L.T.A. (PTY) 5th Respondent

ED ZUBLIN A.G. 6th Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice W.C.M. Maqutu Acting
Judge, on the 17th day of December,

1993.

On the 21st September, 1993 in which applicant filed an
urgent application ex parte in which he asked for a Rule Nisi in the
following
terms:

"2. That a Rule Nisi do issue and it is hereby
issued returnable on the 20th day of September at 9.30 a.m. calling
upon the respondents
to show cause (if any) why:

(a) The purported decision of the respondents through
the agency of

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Mr. P. Bourgeois dated the 18th August 1993 and by which
the applicant would have been retrenched on the 20th August, 1993 by
reviewed
and aside as null and void and of no force and effect.

2. 
   The decision of respondent's side
   manager at 'Muela
   Intake one Mr.
   KEN SHORT to suspend the
   applicant from his
   duties and
   without pay shall not be reviewed
   and set aside as
   null and void
   and of no force and effect.

   
   

3. 
   The respondents shall not be
   directed to pay the
   applicant
   forthwith his salary for August,
   1993 in the sum of
   M1700-00.

   
   

4. 
   The respondents shall not be
   restrained from
   interfering with
   the rights of the applicant to
   join a trade
   union of his own
   choice.

   
   

5. 
   The respondents shall not be
   directed to produce
   the minutes
   of the disciplinary Enquiry held
   at 'Muela Intake
   on the 6th and
   7th September, 1993 upon service
   of this
   application upon them.

   
   

2. 
   Directing the respondents to pay the costs of
   this
   application, and in the event of their
   opposition such costs to
   be paid on attorney and
   client's scale.

   
   

3. 
   Granting the respondents such further
   and/or
   alternative relief as this court may deem fit.

   
   

4. 
   That prayer 2(c), (d) and (e) shall operate
   with
   immediate effect as interim orders pending the
   outcome of
   this application."

   
   

On
the 18th October, 1993 a Rule Nisi was issued

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returnable on the 1st November, 1993. The Rule Nisi has
been extended from time to time until it was urgued on the 9th
December, 1993
and judgment reserved until 17th December, 1993.

Respondents filed a notice of intention to oppose on the
28th October, 1993, Because of the apparent urgency of the matter,
Applicant
was served with the Respondent's Opposing Affidavit on the
12th October, 1993 before it was sworn to. Respondents were
vigorously
criticised by the Applicant. This criticism is technically
correct by not fair because service of the unsigned affidavits was
meant
to expedite the matter. This would have enabled applicant to
reply timeously.

I am of the view that proceeding ex parte in this matter
was not justified and fair. Founding papers were filed 27 days before
the
Rule nisi was issued. That being the case, Respondents could have
been served with this urgent application before the Rule Nisi was
issued. It is possible to have the rules dispensed with and still to
have an urgent application on notice heard in a very short time.

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The application was intended to restrain respondents
from taking unilateral decisions prejudicial to applicant, contrary
to the Labour
Code of 1992. At the time this happened, the Labour
Court did not exist. The court is advised that this court will only
come into
existence early in 1994 almost ten months after the Labour
Code came into operation.

Meanwhile all existing Labour Legislation has been
repealed in terms of Section 241 of the Labour Code of 1992. This
Labour Code was
brought into operation and took effect on the 1st
April, 1993 in terms of Legal Notice No. 25 of 1993 dated 26th
February, 1993.
Whether the old machinery for enforcing rights under
old laws, is still in operation remains open to debate because
Section 241 of
the Labour Code of 1992 has repealed old laws. Legal
Notice No. 25 of 1993 suspends the operation of the enforcement
machinery for
the enforcement of rights without putting anything in
its place. The court finds it unnecessary to decide the effect of
this confusion.

When the respondents filed their opposing papers they
did not file the resolution in terms of which the

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opposition to this application was authorised. This was
done on the 6th December, 1993. While criticism could be legitimately
levelled
at this and the fact that there is only the resolution of
First Respondent. The court feels it should bend rules up to a point.
After
all, this is the machinery whose authority applicant normally
accept.

Floods of typing ink were expended challenging the locus
standi of one or other of the respondents. It seemed common cause
that all
six respondents trade as first respondent. First respondent
is something like a loose partnership or what is styled a joint
venture.
It is trite law that if a partnership is sued all partners
should be individually cited. This has been done. It seems this
challenge
does not help the resolution of this dispute because in the
court's view there has been substantial compliance.

In my view applicant is asking this court to declare:

1. What he styles "purported decision of the
respondents ...by which applicant would have been retrenched ....
null and void

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2. The decision to suspend applicant without pay null
and void so that applicant would continue receiving his pay. For this
to happened,
respondents had to be directed to produce minutes of a
disciplinary enquiry held on 7th September, 1993.

The court was also called upon to restrain respondents
to restrain respondents from interfering with applicant's freedom to
join a
trade union of his choice. In the event of respondents
opposing this application (as respondents have in fact done) the
court is
being asked to award costs on an attorney and client scale.

The remedies that are being sought are all
discretionary. Their granting depends inter alia upon a balance of
convenience in a situation
such as this one. Section 6 of the High
Court Act of 1978 provides that this court should only entertain
matters for which there
could be ventilated in other forums upon
application. In the past labour disputes of one kind or the other had
to be brought before
the Magistrate's Court. With the coming into
effect of the Labour Code on 1st April, 1993 which repealed all
previous labour legislation
including the one that provided for the
ventilation of grievances, there is confusion. As

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already stated, the fact that Part III (D) of the Labour
Code has not been brought into operation compounds confusion.

The court has in its discretion could have decided to
hear the matter because the problems surrounding the coming into
effect of the
Labour Code are not of the applicant's making -
Secondly, the court has over the years been making declaratory orders
in matter relating
to matters of master and servant although these
have been statutory bodies. The matters involving master and servant
though often
brought on application are not suited for application
proceedings. The reason being that from their very nature they
involve a dispute
and disputed facts. Where there is no real and
substantial dispute despite differences here and there, this court
may hear the matter.

The applicant's case is briefly that the respondents are
abusing the retrenchment mechanism to victimise him for refusing to
join
a trade union of respondents' choice known as CAWULE.
Respondents sometimes allege he has been retrenched but at other
times say
he has not been retrenched when they hold

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disciplinary enquiries against him. Applicant further
says Mr. Ken Short who is a section engineer of respondents is out to
get him
because he and other objected to the way Mr. Ken Short
treated one employee on grounds of race. Applicant has referred to
annexure
"D" a letter written a year before the events that
gave rise to this application.

The respondents do not seem to have understood that in
legal proceedings of this nature evidence is never given in a
representative
capacity. While Mr. David Peter Darcy could have no
problems in relying on records but he must precisely state how he
knows other
facts contained in his affidavit. The court must know
what he saw, heard and did as opposed to what he was told or was his
belief.
In respect of what transpired at the disciplinary hearing in
September, 1993, Mr. Darcy could not have had any personal knowledge.
Consequently the contents of his affidavit in respect of this hearing
are hearsay. Unfortunately, Mr, Short and Mr. Voster who were
present
(and have actual knowledge) have made no affidavits which give
evidence on the point. They merely associated themselves with
Mr.
Oarcy's affidavit. That unfortunately does not convert inadmissible
hearsay evidence into proper

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evidence. The serious allegations made against
respondents about Mr. Short's conduct stand unrebutted when Mr. short
who knows the
fact could dealt with them.

The crisp point for determination is whether there was a
genuine retrenchment and what the contract between applicant and
respondents
was. It is common cause that applicant and the respondent
entered into a written contract that began on 18th June, 1991 and
terminated
on the 18th August, 1992. See annexure "A4" to
respondent answering affidavit.

Applicant says at the end of the contract in August,
1992, the parties agreed that applicant's contract with respondents
would continue
for the duration of respondent's contract with the
Lesotho Government. This second contract appears not to have been
written. Respondents
dispute this verbal contract.

The Respondents through the affidavit of Mr. Darcy say
that at the end of the first contract, applicant's contract was
extended by
two months to October 1992. Thereafter applicant was
re-employed

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for no fixed term. Respondents deny that applicant was
ever employed for the duration of the respondents' contract with the
Lesotho
Government in 1996. Mr. Darcy put respondents' view of the
terms of the subsequent contract as follows:

"Respondent acknowledges that applicant
was
employed for as long as his services were
required "

There is no clarity on the part of the respondents as to
when this indefinite open ended type of contract of employment began.
Nevertheless
Respondents chose to terminate applicant's employment
according to annexure "A2" and paragraph 10 of Mr. Darcy's
affidavit
"the tunnelling is complete." I particulary quote
from annexure "A2" the following:

"Darcy said some jobs will be lost and the
workforce had understood this. It was later confirmed by a South
African Water Affairs
and Forestry Source that 35 people would lose
jobs as result of the project's completion."

It seems to the court that if the project is at an end
because the job is completed as respondents claim, then applicant has
not grounds
of complaint, If, however, work is continuing then
respondents were not acting in good faith in terminating
applicant's

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employment as if he was being legitimately retrenched.

Mahomed J.A. (as he then was) in K. Koatsa v. National
University of Lesotho C. of A (CIV) No. 15 of 1986 (unreported) at
page 11
dealing with private employers said:

"A private employer exercising a right to terminate
a pure master and servant contract is not, at Common Law obliged to
act fairly.
As long as he gives the requisite notice required in
terms of the contract, he can be as unfair as he wishes. He can act
arbitrarily,
irrationally or capriciously."

If allegations that in essence make this a case of
unfair Labour practices had not been made and Respondents reply was
simply that
he terminated applicant's application at will after
giving him the requisite notice, there would be no grounds to enquire
into the
matter further. The court is not ordinarily empowered to do
so, but the Labour Court and tribunals of that specific type are
empowered
to deal with such matters.

This court has its traditional work. Its approach to
matters of master, servant and employment generally, probably does
not fit in
with the times. The ways that employers treat employee,
direct,

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indirect and subtle ways employers ill-treat and
discriminate against works who claim their rights are not an area
that this court
can claim expertise. In any event, the legislature
has seen fit to provide appropriate forums in which grievances of
this nature
can be ventillated.

Among the grievance of the applicant is the accusation
against some of the senior staff of the respondents who (according to
applicant)
gave unfair performance rating against him such as that
"he is too big for his boots" and that his work is below
average.
Respondents at paragraph 18 speak of subjectivism in work
assessment and has filled Mr. Ken Short's assessment of applicant.
The
notable thing about annexure 3 of respondents is that M. Darcy
claims Mr. Short is fair to applicant when on 9th August, 1993 the
applicant diligence was said to be above average and yet his interest
in the work he does is below average. It seems to the court
a worker
who has no interest in his work can never be diligent. Mr. Short
unfortunately never dealt with this matter in his affidavit,
consequently he has not explained himself.

In the case of Metedad v. National Employers

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General Insurance 1992 (1) S.A. 494 at page 501 Van
Schalkwyk J. dealing with a situation where a party fails to provide
evidence
quoted with approval from Galante v. Dickson 1950 2 S.A. 450
at 465 where Schreiner J.A. said;-

"The court is entitled in the absence of evidence
from the defendant to select out of

two alternative explanations which are

more or less equally open on the evidence, the one that
favours the plaintiff as opposed to the defendant."

This is the approach, the court in its discretion might
have been obliged to take but for the jurisdictional constraints that
are
hard to overlook.

Applicant alleges he is a victim of a witch-hunt because
he is among the champions of workers right. Is he of the calibre of a
trade
union leader? That is not clear. Probably he falls within the
class of persons protected by the unfair labour practices provisions
of the Trade Unions and Trade Disputes Law II of 1964 or Part XV of
the Labour Code of 1992. This court cannot say. This court is
not
steeped in the atmosphere, standards and practices of the work­place.
Application proceedings are dealt with on papers, therefore,
it is
not possible to create an

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atmosphere in which facts can be determined. This has
been assigned to specialist tribunals. Section 25(1) of the Labour
Code has
given the Labour Court (to be established) exclusive
jurisdiction in matters provided for by the code. In fact, the
legislature has
underlined the exclusion of the courts jurisdiction
as follows:

"No ordinary or subordinate court shall exercise
its jurisdiction in regard to any matter provided for in this code."

The court is, therefore, obliged to decline to enter
into the merits of applicant's complaints. What this court might
provide is interim
relief pending the hearing by the appropriate
tribunal. Until the Labour Court begins functions, it could be
suggested that the court
still has the appellate jurisdiction it had
in terms of the Trade Unions and Trade Disputes Law II of 1964. Even
if this is so that
jurisdiction does not coincide with that of the
Labour Court. In any event this court never had any original
jurisdiction in matters
such as this one.

In as much as this matter raises, matters of practice
and the understanding of contracts of employment which (in the courts
view)
ought to require

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viva voce evidence, the court has no option but to refer
this dispute over the verbal extension of applicants's contract from
1992
to 1996 to evidence. In so deciding the court is fortified by
Section 62(4) of the Labour Code of 1992 which provides:

"A contract to perform some specific work or to
undertake a specified journey shall terminate upon the completion of
work or
jeorney. No notice of termination shall be required to either
party, but an employer who terminates such a contract shall pay the
employee all wages ., that would having been owing to the employee
... if he or she had continued work until the completion of the
contract."

Is the applicant who belongs to the clerical or
administrative cadre covered in a tunnelling and building contract?
These are matters
that require extensive evidence whose
interpretation and terms express or implied depend on the practices
in that industry.

Paragraph 20 of the founding affidavit in which
applicant states that he would settle for damages which would
comprise a salary up
to the end of 1996 is indicative of the fact
that it would be unwise to determine this matter on papers.
Application proceedings
are not designed for matters of this

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The Court has on the 18th October, 1993 specifically
refused to allow any of prayers in the rule to operate with immediate
effect.
Consequently I feel the real teeth and potential prejudice
this Rule Nisi had, have in fact been taken out.

The court, therefore, makes the following order:-

1. 
   This matted is transferred to the
   Labour Court or a
   tribunal that
   is presently in place of the
   Labour Court.

   
   

2. 
   The Rule Nisi is discharged.

   
   

3. 
   There is no order as to costs.

   
   

W.C.M. MAQUTU
ACTING JUDGE
17th December,1993

For Applicant: Mr. Mphutlane
For Respondents: Mr.
Geldenhuys