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CIV/APN/400/93
IN THE HIGH COURT OF LESOTHOIn 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.
The decision of respondent's sidemanager at 'Muela Intake one Mr.KEN SHORT to suspend theapplicant from his duties andwithout pay shall not be reviewedand set aside as null and voidand of no force and effect.
The respondents shall not bedirected to pay the applicantforthwith his salary for August,1993 in the sum of M1700-00.
The respondents shall not berestrained from interfering withthe rights of the applicant tojoin a trade union of his ownchoice.
The respondents shall not bedirected to produce the minutesof the disciplinary Enquiry heldat 'Muela Intake on the 6th and7th September, 1993 upon serviceof this application upon them.
Directing the respondents to pay the costs ofthis application, and in the event of theiropposition such costs to be paid on attorney andclient's scale.
Granting the respondents such further and/oralternative relief as this court may deem fit.
That prayer 2(c), (d) and (e) shall operate withimmediate effect as interim orders pending theoutcome 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 wasemployed for as long as his services wererequired "
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:-
This matted is transferred to theLabour Court or a tribunal thatis presently in place of theLabour Court.
The Rule Nisi is discharged.
There is no order as to costs.
W.C.M. MAQUTU ACTING JUDGE 17th December,1993
For Applicant: Mr. Mphutlane For Respondents: Mr. Geldenhuys