C of A
COURT OF APPEAL OF LESOTHO
INDUSTRIAL (PTY) LIMITED APPELLANT
CLOTHING AND ALLIED WORKERS
Held at :
Steyn P Kheola JA
is a company with its headquarters at the Thetsane Industrial Estate
in Maseu where it conducts a clothing factory. Appellant
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
firm. We have noted that these grievances may destruct good relations
if they are not attended to immediately. We therefore request
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
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)
applicant and 2480 further applicants, all of whom were alleged to be
employees of appellant. Chang's statement that appellant
only 1500 employees and that of the 2480 applicants 16 had resigned
and a further six were not in the employ of appellant,
refuted. It is consequently impossible to determine which of the 2480
applicants were in fact employed by appellant. They
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.
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.
the respondent to (I) reinstate applicants or alternatively (ii) to
pay applicants damages in the sum of monthly salary
purported date of dismissal to date of reinstatement or payment.
In the event that this Honourable Court does not order reinstatement
respondent be directed to pay applicants their notice
and/or alternative relief.
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.
will be no order as to costs on account of the state of applicant
papers and the delay in bringing this application."
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.
noted a cross appeal on the grounds that the court a quo erred in not
awarding costs to them and in not ordering their
alternatively payment of their salaries until the date of their
22(1) of the Labour Code Order, 1992 ("the Code")
established a Labour Court. The court is presided over by a
or deputy president appointed by the Minister, who shall be persons
qualified in law with experience in labour relations.
23(1)). For the rest the court is composed of an equal
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)).
section 24 the "power, authority and civil jurisdiction" of
the Labour Court is set out. In terms of section 24(1 )(i)
Court is given the power:
"To determine whether an unfair dismissal has occurred and if
so, to award appropriate relief."
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
limited to trade disputes. No ordinary or subordinate court shall
exercise its civil jurisdiction in regard to any matter provided
under the Code."
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
the words "ordinary or".
Mosito. who appeared for respondents, submitted that respondents'
dismissal was unlawful, as opposed to unfair, and that the
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
66(l)(b) reads as follows:
"An employee shall not be dismissed, whether adequate notice is
given or not. unless there is a valid reason for termination
employment, which reason is -
with the conduct of the employee at the workplace "
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
that he or she acted reasonably in treating the reason for dismissal
as sufficient grounds for terminating employment."
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
Mosito submitted that an employee acquired a right, in terms of
section 66 (4), to be given an opportunity of defending him
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
unfair, did not, according to Mr. Mosito's argument, exclude the High
Court's concurrent jurisdiction to determine whether the
I do not
agree. Section 25(1) of the Code confers exclusive jurisdiction on
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
have been complied with. If those provisions have not been complied
with, the dismissal would be unfair. The consideration
compliance or otherwise with section 66(4) involves a factual
determination, namely whether the employer has been given
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
under the Code" (section 25(1)) and are thus matters in respect
of which the Labour Court has exclusive jurisdiction.
event, the fact that the determination of whether a dismissal was
unfair involves a consideration of the lawfulness or otherwise
conduct of the employee, does not serve to remove the question from
the ambit of what is meant by an unfair dismissal. See
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
that the lawfulness or otherwise of the conduct of either party or of
the strike is irrelevant. These can be very real factors
determination of what is fair in the circumstances".
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
involved both unfairness and unlawfulness. For this
he relied on section 119(1) of the Constitution of Lesotho which
reads as follows:
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
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'
section must, however, be read together with section 118 of the
Constitution. Section 118(1) provides that the judicial power
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
established by Parliament. The manifest purpose of the legislature in
establishing the Labour Court was to create a specialist
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,
interests of the administration of justice, of creating such
structures to the exclusion of the ordinary Courts."
Amalgamated Clothing & Textile Workers Union v Veldspun Ltd 1994
(1) SA 162 (A) at 173 G-H.
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
Labour Court which was so established, was intended to function in
terms of the legislation by which it was established,
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
interference and subject only to this Constitution and any other
law", (emphasis supplied).
"any other law" relate to the law by which the court or
tribunal in question (in the present case, the Labour
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
119, does not detract from the exclusive jurisdiction conferred by
Parliament, in terms of the Constitution, on the
established in terms of the Code.
present case what was sought in paragraph 1 of the notice of motion
was a declaration that the dismissal of respondents was
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
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.
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
1991-1996 Vol1 LLR 315 at 321 in support of his argument that the
Labour Court's jurisdiction did not include the power to
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
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
important to emphasise that in matters provided for under the Code,
the High Court has no jurisdiction and that only the Labour
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
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.
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.
now to the question of costs. In view of the multitude of respondents
it would, in my judgment, be both impractical and unreasonable
simply make an order that respondents are to pay the costs. Such an
order could create insuperable problems in regard to taxation
execution. It would, in the circumstances, be fair and reasonable to
order the costs to be paid by respondents jointly and
leaving the successful appellant with a choice when seeking to
recover its costs.
which I make is as follows:
appeal is upheld with costs.
cross appeal is dismissed with costs.
costs are to be paid by respondents jointly and severally, the one
paying the others to be absolved.
I agree :
Delivered on this the 15th day of October, 1999.
Appellant : Mr. M.T.Matsau
Respondents : Mr. K. Mosito
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