REPORTABLE

C of A
CIV/10/99

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between

CGM
INDUSTRIAL (PTY) LIMITED APPELLANT

and

LESOTHO
CLOTHING AND ALLIED WORKERS

UNION AND
OTHERS RESPONDENTS

Held at :

Maseru

Coram;

Friedman JA

Steyn P Kheola JA

JUDGMENT

Friedman
JA:

Appellant
is a company with its headquarters at the Thetsane Industrial Estate
in Maseu where it conducts a clothing factory. Appellant
employs some
1500 employees. On 11 February 1998 one 'Matanki Mokhantso,
purporting to act on behalf of the employees, handed appellant's

managing director, Adrian Chang, a document containing a list of 37
"grievances". The document ended as follows:

"The grievances have been compiled at one place by all employees
of the

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firm. We have noted that these grievances may destruct good relations
if they are not attended to immediately. We therefore request
that
these problems be attended to and resolved by the 12/2/99 in the
morning. If they are not resolved we will take further action
after
lunch."

On 12
February 1998 the employees arrived at the factory at the normal time
but did not commence work. Three warnings were given
to the employees
to return to work or face dismissal. These warnings went unheeded. On
13 February 1998 appellant terminated their
services on the grounds
that they had participated in an illegal strike and had refused to
resume work despite repeated warnings.

On 14 May
1998 an application on notice of motion was launched in the High
Court by Lesotho Clothing and Allied Workers Union (LECAWU)
as first
applicant and 2480 further applicants, all of whom were alleged to be
employees of appellant. Chang's statement that appellant
employed
only 1500 employees and that of the 2480 applicants 16 had resigned
and a further six were not in the employ of appellant,
was not
refuted. It is consequently impossible to determine which of the 2480
applicants were in fact employed by appellant. They
will nevertheless
be referred to herein collectively as respondents. Nothing, however,
turns on this point except in regard to
costs which is dealt with at
the end of this judgment.

In the
application launched in the High Court an order in the following
terms was sought:

"1. Declaring the purported dismissal of applicants to have been
unfair, unlawful and null and void and of no force and effect.

2. Directing
   the respondent to (I) reinstate applicants or alternatively (ii) to
   pay applicants damages in the sum of monthly salary
   from the
   purported date of dismissal to date of reinstatement or payment.

   
   

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2. 3.
   In the event that this Honourable Court does not order reinstatement
   respondent be directed to pay applicants their notice
   money.

   
   

2. Further
   and/or alternative relief.

   
   

2. Costs
   of suit."

   
   

The Court
a quo (Maqutu J) made the following orders:

"(a) It is declared that the dismissal of applicants was
unlawful and respondent is directed to pay them notice money to
regularise their termination of employment.

2. There
   will be no order as to costs on account of the state of applicant
   papers and the delay in bringing this application."

   
   

Against
these orders appellant noted an appeal on a number of grounds. For
the purposes of this judgment it is necessary to consider
only one of
those grounds, namely that the matter was one which fell within the
exclusive jurisdiction of the Labour Court and
that the court a quo
consequently had no jurisdiction to make the orders which it did. The
alleged lack of jurisdiction of the
court a quo was raised as a point
in limine which was dismissed by Maqutu J in his judgment.

Respondents
noted a cross appeal on the grounds that the court a quo erred in not
awarding costs to them and in not ordering their
reinstatement or
alternatively payment of their salaries until the date of their
reinstatement.

Section
22(1) of the Labour Code Order, 1992 ("the Code")
established a Labour Court. The court is presided over by a
president
or deputy president appointed by the Minister, who shall be persons
qualified in law with experience in labour relations.
(Section
23(1)). For the rest the court is composed of an equal

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number of
representatives of employers and employees as well as an equal number
of persons having experience or knowledge of labour
relations from an
employee's and a management point of view respectively. (Sections
23(5) and (6)).

In
section 24 the "power, authority and civil jurisdiction" of
the Labour Court is set out. In terms of section 24(1 )(i)
the Labour
Court is given the power:

"To determine whether an unfair dismissal has occurred and if
so, to award appropriate relief."

Section
25(1), at the time of the enactment of the Code, read as follows:

"The jurisdiction of the Labour Court shall be exclusive as
regards any matter provided for under the Code, including but
not
limited to trade disputes. No ordinary or subordinate court shall
exercise its civil jurisdiction in regard to any matter provided
for
under the Code."

By
section 4 of the Labour Code (Amendment) Act 1977, Act No.9 of 1997,
section 25(1) was amended by the deletion from the second
sentence of
the words "ordinary or".

Mr.
Mosito. who appeared for respondents, submitted that respondents'
dismissal was unlawful, as opposed to unfair, and that the
question
of the lawfulness or otherwise of the dismissal was one on which the
High Court was empowered to adjudicate. He based
his submission that
the dismissal was unlawful on the allegation that respondents were
not given an opportunity of defending themselves
prior to their
dismissal. In developing this submission he referred to section 66 of
the Code which deals with the dismissal of
employees. Section
66(l)(b) reads as follows:

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"An employee shall not be dismissed, whether adequate notice is
given or not. unless there is a valid reason for termination
of
employment, which reason is -

2. connected
   with the conduct of the employee at the workplace "

   
   

Section
66(2) reads as follows:

Any other dismissal will be unfair unless, having regard to all the
circumstances, the employer can sustain the burden of proof
to show
that he or she acted reasonably in treating the reason for dismissal
as sufficient grounds for terminating employment."

The
relevant portion of section 66 (4) reads as follows:

"Where an employee is dismissed under subsection (1)(a) or (b)
of this section, he or she shall be entitled to have an opportunity

at the time of dismissal to defend himself or herself against the
allegations made, unless, in light of the circumstances and reason

for dismissal, the employer cannot reasonably be expected to provide
this opportunity."

Mr.
Mosito submitted that an employee acquired a right, in terms of
section 66 (4), to be given an opportunity of defending him
or
herself, subject to the qualification which follows the word
"unless". That right, being a legal right, was -so he

submitted - justiciable by the High Court. The High Court's
jurisdiction in such a case, so it was argued, was concurrent with

that of the Labour Court. The Labour Court's power, in terms of
section 24(l)(i) of the Code, to determine whether a dismissal
is
unfair, did not, according to Mr. Mosito's argument, exclude the High
Court's concurrent jurisdiction to determine whether the
dismissal is
unlawful.

I do not
agree. Section 25(1) of the Code confers exclusive jurisdiction on

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the
Labour Court '"as regards any matter provided for under the
Code, including but not limited to trade disputes". The

determination of the question whether a dismissal is unfair involves
inter alia a consideration of whether the provisions of section
66(4)
have been complied with. If those provisions have not been complied
with, the dismissal would be unfair. The consideration
of the
compliance or otherwise with section 66(4) involves a factual
determination, namely whether the employer has been given
an
opportunity of defending himself, and if not, whether the
circumstances and the reasons for dismissal relieve the employer of

the duty to give the employee a hearing before dismissing him. The
issues dealt with in section 66 are all matters"provided
for
under the Code" (section 25(1)) and are thus matters in respect
of which the Labour Court has exclusive jurisdiction.

In any
event, the fact that the determination of whether a dismissal was
unfair involves a consideration of the lawfulness or otherwise
of the
conduct of the employee, does not serve to remove the question from
the ambit of what is meant by an unfair dismissal. See
National Union
of Metal Workers of SA v Vetsak Co-operative Ltd 1996 (4) SA 577 (A)
at 593 B-C where Nienaber JA, in dealing with
the question of
fairness in relation to the dismissal of striking employees, stated:

"The ultimate determinant is therefore fairness and not the
lawfulness of either the dismissal or the strike. That does not
mean
that the lawfulness or otherwise of the conduct of either party or of
the strike is irrelevant. These can be very real factors
in the
determination of what is fair in the circumstances".

In regard
to the exclusivity of the Labour Court's jurisdiction as provided for
in section 25( 1) Mr. Mosito argued that that section
could not oust
the jurisdiction of the High Court which, so he contended, had
concurrent jurisdiction with the Labour Court once
a dismissal
involved both unfairness and unlawfulness. For this

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argument
he relied on section 119(1) of the Constitution of Lesotho which
reads as follows:

"There
shall be a High Court which shall have unlimited original
jurisdiction to hear and determine any civil or criminal proceedings

and the power to review the decisions or proceedings of any
subordinate or inferior court, court-martial, tribunal, board or
officer
exercising judicial, quasi-judicial or public administrative
functions under any law and such jurisdiction and powers as may be

conferred on it by this Constitution or by or under any other law.1'

This
section must, however, be read together with section 118 of the
Constitution. Section 118(1) provides that the judicial power
shall
be vested in the courts of Lesotho which shall consist of, inter
alia, "such tribunals exercising a judicial function
as may be
established by Parliament". (Section 118(l)(d)). The Labour
Court is a tribunal exercising a judicial function which
has been
established by Parliament. The manifest purpose of the legislature in
establishing the Labour Court was to create a specialist
tribunal
with expertise in labour matters. As Botha JA said in Paper.
Printing. Wood & Allied Workers' Union & Pienaar
NO 1993 (4)
SA 621 (A) at 637 A-B:

"The existence of such specialist Courts points to a legislative
policy which recognises and gives effect to the desirability,
in the
interests of the administration of justice, of creating such
structures to the exclusion of the ordinary Courts."

See also
Amalgamated Clothing & Textile Workers Union v Veldspun Ltd 1994
(1) SA 162 (A) at 173 G-H.

That is
precisely what the legislature sought to achieve by the enactment of
the Code. Its power to do so emanates from section
118(1) of the
Constitution.

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That the
Labour Court which was so established, was intended to function in
terms of the legislation by which it was established,
is recognised
in section 118(2) of the Constitution. That section reads as follows:

"The courts shall, in the performance of their functions under
this Constitution or any other law, be independent and free
from
interference and subject only to this Constitution and any other
law", (emphasis supplied).

The words
"any other law" relate to the law by which the court or
tribunal in question (in the present case, the Labour
Court), was
established.

Section
119(1) of the Constitution cannot be interpreted in isolation. It
must be construed in the light of the Constitution as
a whole, but
particularly in the light of section 118. Thus construed, the
original jurisdiction vested in the High Court in terms
of section
119, does not detract from the exclusive jurisdiction conferred by
Parliament, in terms of the Constitution, on the
Labour Court
established in terms of the Code.

In the
present case what was sought in paragraph 1 of the notice of motion
was a declaration that the dismissal of respondents was
"unfair,
unlawful and null and void and of no force and effect". From the
affidavit in support of the notice of motion
it is clear that
respondents' complaint was that their dismissal was "precipitate"
and that they were not afforded "an
opportunity at the time of
dismissal to defend themselves against any allegations made."
These are matters which the Labour
Court is empowered to determine
when it decides whether a dismissal was unfair. Despite the
terminology used in paragraph 1 of
the notice of motion in describing
the relief sought, what respondents were in fact seeking was a
declaration that their dismissal
was unfair. That is a matter in
respect of which the

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Labour
Court has exclusive jurisdiction and in regard to which remedies are
prescribed which the Labour Court may impose should
it find that the
dismissal was unfair. See section 73 of the Code.

Mr.
Mosito sought to rely on a passage from the judgment of van den
Heever AJA in Lucy Lerata and 26 others v Scott Hospital (C
of A)
1991-1996 Vol1 LLR 315 at 321 in support of his argument that the
Labour Court's jurisdiction did not include the power to
decide on
the lawfulness or otherwise of a dismissal. In the passage relied on
the learned judge said that the Labour Court had
no power "to
determine whether dismissal was lawful (as distinct from having been
unfair)". That case was an appeal from
a judgment of the High
Court in a review of a decision of the Labour Court which had held
that the employees' dismissal was "ineffective"
in that the
employer (the Hospital Board) had not validly resolved to dismiss
them. (The Labour Court had refrained from deciding
whether the
dismissal was unfair.) The High Court held, in the review, that the
Labour Court had no jurisdiction to give the decision
it did because
that was a matter of law which did not fall within its jurisdiction.
The High Court's decision was upheld on appeal.
The passage from the
Lucy Lerata case does not detract from the construction placed on the
Labour Court's jurisdiction in this
judgment.

It is
important to emphasise that in matters provided for under the Code,
the High Court has no jurisdiction and that only the Labour
Court has
jurisdiction. See in this regard Attorney General v Lesotho Teachers
Trade Union & Others (C of A) 1991-1996 Vol.1
LLR 16 at 25.
Failure to recognise the exclusivity of the Labour Court's
jurisdiction in matters provided for under the Code, would
inevitably
lead to the unsatisfactory practice of what has been termed "forum
shopping". C f the Paper. Printing. Wood
& Allied Workers'
case, supra, at 640 G-H.

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In the
light of the conclusion I have reached on the jurisdictional issue,
it is unnecessary to consider any of the further grounds
on which the
appeal was noted. For the reasons stated herein, the appeal must
succeed and the cross appeal must fail.

I turn
now to the question of costs. In view of the multitude of respondents
it would, in my judgment, be both impractical and unreasonable
to
simply make an order that respondents are to pay the costs. Such an
order could create insuperable problems in regard to taxation
and
execution. It would, in the circumstances, be fair and reasonable to
order the costs to be paid by respondents jointly and
severally, thus
leaving the successful appellant with a choice when seeking to
recover its costs.

The order
which I make is as follows:

1. The
   appeal is upheld with costs.

   
   

2. The
   cross appeal is dismissed with costs.

   
   

3. The
   costs are to be paid by respondents jointly and severally, the one
   paying the others to be absolved.

   
   

G.
FRIEDMAN

JUDGE OF
APPEAL

I agree :

PRESIDENT

I agree :

J.L.
KHEOLA

JUDGE OF
APPEAL

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Delivered on this the 15th day of October, 1999.

For
Appellant : Mr. M.T.Matsau

For
Respondents : Mr. K. Mosito