CIV/APN/153/95 IN THE HIGH COURT OF LESOTHO
In the Application of:
GEORGE KOU Applicant
PRESIDENT OF LABOUR COURT.... 1st Respondent
COMMISSIONER 2nd Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
10th day of August. 1995.
The applicant herein seeks an order directing, inter
alia, that the decision of the court of the 1st Respondent, in which
declined to rescind its own default judgment be reviewed,
corrected and set aside.
Only the 2nd Respondent has intimated intention to
oppose. The 1st Respondent has not. It can safely be assumed,
therefore, that he
is prepared to abide by whatever decision will be
arrived at by this court.
It may, perhaps be necessary to mention at this stage,
that the proceedings purported to be an urgent application,
the provisions of rule
8(22) of the High Court Rules. 1980. That being
so, paragraph (c) of subrule (22) of rule 8 of the High Court
Rules, supra, clearly provides:
"(c) Every urgent application must be
accompanied by a cerificate of an Advocate or Attorney which seta out
that he has considered the matter and that he bona fide
to be a matter for urgent relief." (my underlining)
I have underscored the word "must" in the
above cited paragraph (c) of subrule (22) of rule 8 of the High
Court Rules. 1980 to indicate my view that the provisions thereof
are mandatory. In the present case there was, however, no certificate
accompanying the application, as required by the
provisions of paragraph (c) of subrule (22) of rule 8 of the High
Court Rules, supra. The purported urgent application was, for
that reasons, irregular.
Notwithstanding the irregularity, the record shows that
on 8th May, 1995 Mr. Mathe, for the applicant, moved, exparte. the application in terms of prayer 3, viz. stay of
execution, which was granted as an interim order operating with
The return day was fixed as 22nd May, 1995. There
is, however, no indication, in the record, that on the return day the
brought before a judge to have the interim order extended.
The order accordingly lapsed and was, to date, never revived.
On 23rd May, 1995 the matter was placed before me for
hearing. It is common cause from the record of proceedings, in the
the let Respondent, that originating applications numbers LC
8/94 and LC 13/94 were instituted on 17th November, 1994 and 18th
1994, respectively, agaiant the applicant by the 2nd
Respondent acting on behalf of Boliba Mabuse and Lehlohonolo
employees of the applicant. The applications
were instituted pursuant to the provisions of the Labour Code Order.
1992 of which section
"(16) For the purpose of enforcing or administering
the provisions of the code, a labour officer may
(b) institute and carry on civilproceedings on
behalf of anemployee, or the employee'sfamily or
representative, againstany employer in respect of anymatter
or thing or cause ofaction arising in connection withthe
employment of such employeeor the termination of
In application LC.8/94, the 2nd Respondent moved the
court for an order directing the applicant, a businessman trading as
to pay R1216-30 being overtime money due to Boliba
Mabuse; M148-71 being wages owing to Boliba Mabuse; M300-00 being the
of money which the applicant had unlawfully deducted
from the wages of Boliba Mabuse
4 and costs of suit.
In application LC.13/94, the 2nd respondent moved the
court for an order directing the applicant, trading as Kou Transport,
M500-00 in lieu of notice which the latter had failed to give
to Motlomelo upon termination of his contract of employment; M875-00
being seven weeks' wages which the applicant had unlawfully not paid
to Motlomelo; and costs of suit.
The two applications, L.C. 8/94 and LC.13/94, were sent
to the applicant by registered mail number 19303-10 under cover of
of the Labour Court's letter, dated 22nd November,
1994, which read, in part:
"G. Kou Transport, P.O. Box 1651 Tsautse WorkshopMASERU
re: Labour Commissioner vs George Kou
Kindly take notice that applicant in the above
referenced matter has initiated proceedings against you before us as
per the enclosed
You are required in terms of rule 5 of the Labour Court
Rules to have lodged an answer
within fourteen (14) days of receipt hereof. Your answer
should be in accordance with LC.2 contained in Fart A of schedule to
Rules and should be forwarded to the Registrar of this court with
a copy to the applicant.
Your attention is drawn to rule 14 according to which
judgment by default may be entered against you upon failure to answer
the stipulated fourteen (14) days.
F. KHABO (Mrs) Registrar of the Labour Court"
According to the 2nd Respondent, on 7th December, 1994,
the applicant did receive, at Maseru Post Office, the registered mail
the above cited Registrar of the Labour Court's letter,
together with its enclosures viz. applications numbers LC.8/94 and LC
a fact which was, however, denied by the applicant.
It is worth noting that although the applicant denied
that he ever received the registered mail containing the originating
LC.13/94, together with the above cited letter from
the Registrar of the Labour Court, in the contention of
the 2nd Respondent he did receive the registered mail. As proof of
the 2nd Respondent annexed duplicate receipt slips
numbers 27573 and 27577 clearly bearing the rubber stamp impression
the applicant's business "Kou's Transport" and
signed, at Maseru Post Office on 7th December; 1994, by a certain
presumably an employee of the applicant. In my view, the 2nd
Respondent has, on a balance of probabilities, proved his contention
that the applicant did, indeed, receive the registered mail and was,
therefore, duly notified of the originating application L.C.
It is common cause from the proceedings of the court of
the 1st Respondent, that the applicant failed to file an answer to
Respondent's originating applications LC.8/94 and LC.13/94.
On 3rd January, 1995 the 2nd Respodnent filed, with the Registrar of
the Court of the 1st Respondent, application for judgment by default
which judgment was, on 9th January, 1995, granted pursuant to
provisions of the Labour Court Rules. 1994 of which rule 14
"14. whenever a respondent fails to file an answer
to an originating application, the court may, upon application in
. by the applicant, being satisfied as to receipt of the
originating application by the Respondent, enter judgment for the
or make such other order or determination as it considers
On 16th February, 1995, the applicant filed, with the
Registrar of the Court of the 1st Respondent a
notice of motion in which he moved the court for an
order, inter alia, rescinding the default judgment and stay of
execution pending the finalisation of the application for rescission
of the judgment.
The application for rescission was opposed by the
2nd Respondent. The court of the 1st Respondent heard the application
and, on 29th
March, 1995, dismissed it, on the ground that it (the
court) had no jurisdiction to entertain the matter. .
On 24th April, 1995 the applicant instituted, before the
High Court, the present proceedings viz, application for review. The
and answering affidavits were duly filed on behalf of the
applicant and the 2nd Respondent, respectively. No replying affidavit
however, filed. It is clear from the affidavits that the ground
upon which the applicant seeks an order for review ie that the court
of the 1st Respondent did have jurisdiction to rescind its own
judgments and in dismissing, as it did, the application for
on the ground that it had no jurisdiction to entertain the
matter, the court, therefore, acted irregularly, a fact which is,
disputed by the 2nd Respondent.
It is significant to observe that the court of the let
Respondent is established by the Labour Code Order. 1992
of which subsection (1) of section 22
"(1) There is hereby established the Labour
Court, hereinafter referred to as "the Court"."
The Labour Court is, therefore, a creature of statute.
As such it cannot do things for which it is not empowered by the
legislation or statute. Section 24 of the Labour Code Order,
1992 clearly sets out the powers of the Court. Nowhere in the
is the court empowered to rescind its own judgments. If it
did so, in the present case, the court would have acted, in my
opinion,ultra vires, and, therefore, unlawfully.
From the foregoing, it is obvious that the view that I
take is that the decision of the court of the 1st Respondent,
application for rescission on the ground that it had
no jurisdiction to entertain the matter, cannot be faulted.
application to review, correct and set aside the
decision ought not to succeed. It is accordingly dismissed with
JUDGE 10th August, 1995.
For Applicant :Mr. Mathe
2nd Respondent: Mr. Mohapi.
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