CIV/APN/218/98
IN THE HIGH COURT OF LESOTHO

In the matter between:

LESOTHO CLOTHING AND ALLIED WORKERS UNION 1ST APPLICANT

MAMONYANE TS'EPHE (duly assisted by her husband) 2ND APPLICANT

& 2,479 OTHERS

AND
C.G.M. INDUSTRIAL (PTY) LTD RESPONDENTS

JUDGMENT

Delivered by the Honourable Mr. Justice WCM Maqutu on the 16th April, 1999

On the 26th May 1998 an application was filed in which Mamonyane Tsephe was the first applicant and there were other 2478 other applicants. The list of applicants alone took 53 pages of the Notice of Motion.

The matter was not treated as urgent. Perhaps that is because the events which were the cause of the complaint of the applicants had taken place between the 11th and the 13th February 1998, over three months before the application was brought.

2 Applicants were asking for an order in the following terms:-

An Order:

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

2. Directing respondent to:-

(i) reinstate applicants or alternatively

(ii) pay applicant damages in the sum of monthly salary from

purported date of dismissal to date of reinstatement or

payment.

3. In the event that this court does order reinstatement, respondent
   be directed to pay applicants their notice money.

4. Further and/ or alternative relief.

5. Costs of suit.

For convenience, the dismissed workers will be called applicants. The respondent who is a company will be called he where it is not called respondent.

The affidavit of Macaefa Billy was to be used in support of the application of applicants. In Macaefa Billy's affidavit, it appeared that some organisation of which Macaefa Billy was the General Secretary had in fact resolved to bring this application. I did not see a copy of that resolution. Whether it was ever

/

3

there I do not know. It was common cause that the first applicant is the Lesotho Clothing and Allied Workers Union. Respondent did not object to the papers as they originally stood until an unopposed amendment was made making the Lesotho Clothing and Allied Workers Union (hereinafter called LECAWU) the first applicant.

This application had jurisdictional and procedural preliminary objections which were argued at length. The first issue that this court dealt with was that of jurisdiction. Procedural issues were dealt with along with the merits. The court raised the issue of inordinate delay both in the bringing of this application and in the finalisation of this application. Although I disposed of the jurisdictional objection first, for convenience I will deal with issues that were raised or that cropped during argument in the following order:-

1. Title to sue

2. Effect of delay on the proceedings and the parties

3. Procedural and evidential issues.

4. Jurisdiction.

5. Whether a hearing before dismissal was impossible.

6. Whether the court should make a declaration.

Argument on the point of jurisdiction began on the 16th March 1999 without a paginated record. There was no respondent's answering affidavit,

4

to it that all court process filed of record are before the court was that of the applicants. The matter was postponed to the 24th March 1999. On that day the record was paginated but the application for joinder of Lesotho Clothing and Allied Workers Union (LECAWU) as first applicant was by mistake left out. It was later supplied. It had been made on the 2nd September 1998 and apparently granted. This fact was revealed by Mr Matsau counsel for respondent who accepted that the Lesotho Clothing and Allied Workers Union had become first applicant. Mr Matsau made this concession and revelation during argument. This document which was styled Notice in terms of Rule 33(1) amendment to the notice of motion was handed in by consent. Only then was the record probably complete. The court had to be indulgent on account of the political disturbances that led to the burning of the civil registry of the court. Records were being reconstructed and problems were bound to arise.

1. TITLE TO SUE

The title to sue on behalf of the applicants was challenged. In my view the challenge was successful in respect of people who could not have authorised LEGAWU the (now) first applicant. LECAWU is a trade union. It can therefore sue or be sued, see Section 222 of the Labour Code. It can sue to promote the interests of its members. Respondent can never be in a position to dispute that the rest of the two thousand four hundred applicants had

5

authorised the attorney to bring these proceedings. Normally the applicant files a Power of Attorney to put this fact beyond dispute in action proceedings. In the Magistrate's Court an application can even be brought without an affidavit. Although I have already said I am critical of the entire papers of applicants I cannot go so far as to say all of them did not authorise the institution of these proceedings.

The Court of Appeal in Lesotho Telecommunications Corporation v Nkuebe and 313 Others C of A (CIV) Nos. 5 and 12 of 1998 (unreported) found nothing wrong with Monapathi J's reasons for being satisfied with the title to sue of applicants who had made no affidavits but the Notice of Motion having been signed by an attorney. The fact that the sole affidavit filed did not disclose that other applicants had authorised the institution of the proceedings invited the following remark from Browde JA:

"It is noteworthy that the learned judge came to the conclusion that both applicants were properly before court without insisting on the ritual incantation of the phrase "duly authorised by" the other person named by the attorney as one of the principals."

In this case the applicants' deponent claims to have been "duly authorised" to give the hearsay evidence he proceeded to give, which in my view is most unlikely. No litigant in his right senses can authorise someone to give evidence that will not promote his case from the start because it is not

6

evidence. He was authorised to make the founding affidavit but not to give the hearsay evidence as well.

It seems to me that applicants can be deemed to be properly before court but their attorney has handled this application untidily, consequently it is full of mistakes. I note it is the same attorney that handled the case of Lesotho Telecommunications Corporation v Nkuebe & 313 Others.

2. EFFECT OF DELAY ON PROCEEDINGS AND PASTIES

It is regrettable that an application that should have been finalised in June 1998 is only being heard at the end of March 1999. Nevertheless the fault and the cause of delay is not mainly this court and its problems. The applicants delayed in bringing this application. Macaefa Billy's affidavit (which is the sole founding affidavit of applicants') was sworn to on the 25th May 1998. This was about three and a half months after the dismissal of applicants which is being challenged.

Kotze JA in Lesotho Bank V Maitse Moloi C of A (CIV) No 31 of 1995 (unreported) dealing with reinstatement where the employees' dismissal is invalid said:

"In such an event, the party wronged is obliged to decide within a reasonable time how he intends to react; accepts the repudiation and sue for damages, or sue for specific performance. What he

/

7

cannot do is do nothing for an unreasonable time, and then sue specific performance in a matter of this kind.... The longer he postpones deciding on specific performance by the employer, the more one sided and inequitable his insistence becomes: it goes without saying that he himself can neither perform his obligations towards the employer whom he seeks to hold bound, as here, in the time irrevocably gone by ..."

I note there is no affidavit from any of the actual victims of the dismissal explaining why they delayed for over three months. It is not illogical to expect that after three months a reasonable employer, (even where he had expected his dismissal of the employees to be challenged) to conclude that the employees have accepted the repudiation of contract (which that dismissal from the contractual angle in effect amounts to).

It was argued that in terms of Section 70(1) of the Labour Code six months is the reasonable minimum allowed for a delay in taking action. This applies to the exercise of a broad equitable discretion that the Labour Court has which does not make reinstatement the only option. Any delay is prejudicial to the other side and must be satisfactorily explained away before this court or the Labour Court can order reinstatement. In this court reinstatement in general is likely to be disputed by an employer, consequently it is a matter that should normally be ventilated through pleadings and full evidence.

Between the 26th May and 2nd September 1998 the status of Macaefa Billy and the other applicants was not clear. All Macaefa Billy stated was that

9

In these proceedings none of the deponents who are dismissed workers made any affidavits. As I have stated Macaefa Billy's affidavit made on behalf of the Lesotho Clothing and Allied Workers Union that was not a party at that stage was initially unintelligible as to his right to make the founding affidavit. His entire affidavit was hearsay from beginning to end. Hearsay evidence is not permitted except in cases where urgent relief is sought and proper evidence cannot be readily available. Even when this happens it is accepted temporarily, when evidence becomes available after interim relief is granted it has to be made available to the court. See Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa 4th Ed at page 370. In the case before me, as I have already stated no such urgency was claimed, nor was the matter treated as urgent. All the evidence was available, but it was not brought in proper form before court.

The respondent did not ask Macaefa Billy's affidavit to be struck out. This was the correct thing to do because not only was it inadmissible hearsay, it had been made on behalf of a body that was not a party in the proceedings. The respondent had three months during which to do so. What respondent did was to allow the Lesotho Clothing and Allied Workers Union to become a party and then file an affidavit in which he admitted most of what is alleged and give direct evidence of what actually happened.

The scope of application proceedings has over the years widened. "When

/

10

trial proceedings are replaced by motion proceedings the affidavits are also pleadings" - Diamond Workers Union v Master Diamond Cutters Association of SA 1948(2) P H A83 per Millin J at page 283. There are no hard and fast rules that govern acceptability of affidavits as pleadings except the fact that disputed matters should never be brought by way of application. It is therefore not always that affidavits will take the place of pleadings without causing the other party prejudice of a procedural or evidenciary nature. This is especially so in cases specially suited for trial proceedings such as where permanent interdicts are sought and where discovery of documents and other court process might be necessary for the proper ventilation of the dispute. Goldstone J found that in applications a respondent is called upon not only to plead but to place his evidence before court. See Saunders Valve Co. Ltd. v Insamacor (Pty) Ltd. 1985(1) SA 144 at 149C. Sometimes as Miller observed in Hart v Pinetown Drive-in Cinema (pty Ltd. 1972(1) SA 464 at 469 CD a petition or an affidavit might not be an equivalent of a pleading such as a declaration in resisting "an objection that a case has not been adequately made out". This so for chiefly evidenciary reasons.

In the case before me there are no procedural reasons for finding what was said in the affidavit of Macaefa Billy is not equivalent to what was placed before court by way of a declaration or particulars of claim in a summons. It seems to me that the hearsay evidence contained in the affidavit of Macaefa Billy disclosed to the respondent the case of applicants which respondent was

/

12

discharges a judicial function. Kloof Gold Mining Co V National Mine Workers Union 1987 (1) SA 598. Although our courts handle litigation in a manner that is equitable, their jurisdiction is not that equity in the sense of having wide powers of discretion to see that fairness is achieved. Our court deal with equity in the traditional manner as part and parcel of the dispensation of justice according to law.

Section 31 of the Constitution which is part of the Principles of State Policy puts the State under an obligation not only encourage the formation of trade unions to protect workers' rights and interests but to "promote sound labour relations" and fair employment practices. This puts the State under a duty to make laws that "promote sound labour relations." Courts also under a duty be aware of these principles in the way they interpret the labour laws that exist or will in future be enacted. This is because principles of State Policy are "the public policy of Lesotho. See Section 25 of the Constitution. In doing this sight should not be lost of the "economic capacity and development of Lesotho".

In determining whether this court has jurisdiction the court should be mindful of Section 66 (1) of the Labour Code which unambiguously provides that:-

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

/

13

Section 66 (4 of the Labour Code goes further and gives the employee a right to be heard in the following words:-

"Where an employee is dismissed Tinder Section (1) (a) or (b) of this Section, he or she shall be entitled to have an opportunity to defend himself against the allegations made, unless, in the light of the circumstances, and reason for dismissal, the employer cannot reasonably be expected to provide this opportunity."

The court found that there was an admission that the right given to applicants to be heard was not in issue. Consequently whether it was reasonably possible to give them a hearing was a question of law that should be decided in the light of surrounding fact. Therefore I ruled that:

"The question of absence of hearing is one of law. Consequently this court has jurisdiction. The issue of whether circumstance permitted of a hearing is one of the merits which shall be determined after argument on the merits."

In Solomon Masiu v Agricultural Development Bank CIV/APN/361/94 (unreported) this court noted that a dismissal without a hearing is also unfair. Consequently it is not unlawful but unfair, indeed in Section 66 (2) of the Labour Code it is actually called unfair. Since Section 24 (1) (i) of the Labour Code provides that the Labour Court shall have power to :-

/

14

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

It will be observed that what Section 24 (1) (i) caters for is much broader than absence of a hearing which is unlawful. It deals largely with lawful dismissal that the employee feels have been unfair. Employers are not expected to break the law, but it is recognised that they might act lawfully and yet within the culture of master and servant be found to have acted unfairly. To put this in the words of Steyn J A (as he then was) in Attorney General V Lesotho Teachers Trade Union & Others 1991 - 1996 LLR 16 at page 24:

"In essence, the Labour court is a court of equity enjoined to keep the scales of justice between the conflicting demands of employer and employee. Disputes that come before it are not "civil proceedings" as provided for in either Section 2 of the High Court Act or the Constitution ... Our courts should be astute to ensure that the powers Labour Court... are strictly confined to "trade disputes" stricto sensu.

Breaches of the law are not "trade dispute" ordinarily speaking, but there can be overlapping as a grievance or dispute sometimes cuts across boundaries. The jurisdiction of this court is not excluded merely because the illegality complained of has created unfairness in its consequences. Indeed Van den Heever A J A in Lucy Lerata v Scott Hospital 1991 - 96 LLR 315 at page 321 interpreting the jurisdiction of the Labour Court:-

/

16

It is the defence of respondent that he had to dismiss the applicants in that manner because in the circumstances that existed at that time, a hearing before a dismissal was impossible. The crisp point for determination concerning a hearing is "whether in the light of the circumstances and the reason for dismissal the employer cannot reasonably be expected to provide this opportunity." Section 66 (4) of the Labour Code.

I have already stated that the only admissible evidence on record is that of the respondent. It is on that evidence that this court has to rely. The facts are as follows:-

1. At 8.30 a.m. on the 11th January 1998 Matanki Mokhantso who
   is not a shop steward brought a letter listing grievances and a
   demand that these grievances should have been addressed by the
   morning of 12th February 1998 failing which action will be taken
   taken.

2. The authors of the letter brought it to the attention of the Labour
   Commissioner to deal with "the dispute which they perceived they
   had with first respondent."

3. The Labour Commissioner sent a Labour Officer to enquire into
   the causes and circumstances of the dispute. The time when the
   Labour Officer came is not specified, save that it was on the 11th

/

17
January, 1998.

4. It is not clear whether the Labour Officer came before or after
   respondent and his Personnel Manager (Mr Kolobe) had been to
   see the Labour Commissioner. But at 11 a.m. on the 11th
   February 1998 respondent went to the Labour Commissioner
   where he brought to the Labour Commissioner's attention the fact
   that the letter annexure "B" containing the grievances was
   anonymous and unsigned.)

5. On the 12th February 1998 at 7 a.m. the workers came to work
   but did not work. Respondent between 8.30 a.m. to 9 a.m. called
   the workers supervisors and the Workers Committee to
   respondent. They said that they knew nothing about the letter of
   grievances annexure "B". Respondent was told applicants wanted
   a reply to their grievances. Respondent told the Workers
   Committee and the Supervisors that the workers were embarking
   an illegal strike and that they should resume work immediately.

6. At about 9 a.m. respondent issued an ultimatum that unless the
   workers resume work they would be dismissed.

7. At 10 a.m. two female employees and eighteen men stormed into

/

18

the office. None of these people were members of the Workers's Committee. They demanded to talk to respondent who was with Mr Moodley and Mr Naidoo. Respondent refused to talk to them and advised them that he could only talk to the Worker's Committee. Bespondent says one of the workers who had a knife was chased away by a police woman. Respondent again told the group that he would only talk to the Workers Committee. The Workers Committee did not come and work was not resumed. Respondent admits telling these 20 people that their grievances were being looked at by the Labour Department after its intervention.

(h) At 10.30 a.m. respondent called supervisors and the Workers Committee through his secretary using the public address system but none came. Respondent caused the second ultimatum which he had written to be announced over the public address system. It was to the effect that workers should resume work or face dismissal.

(i) At 4 p.m. respondent caused the final warning to be broadcasted over the public address system. There is no evidence that the circulars whose contents were broadcasted over the public address were not delivered to the applicants. There is no dispute that they

/

19

applicants heard what was said over the public address system. After 4 p.m. the workers restive and some of them armed themselves and became threatening. Some of the staff did not go home for fear of some of the workers who had stationed themselves outside the factory.

0) The following day the 13th February 1998 the applicants were dismissed.

Respondent in his affidavit does not state the role the Labour Officer played when she had come. At paragraph 14 of the affidavit he only says the Labour Officer arrived at the premises and he says:-

"I admit that I would not speak with the Labour Officer in the presence of Mokhantso as Mokhantso was not in the Workers Committee. I deny I refused to join the Labour Officer for the reason that the Firm Committee had shown threats. The Labour Officer did not ask me to join her in her discussions with Mokhantso."

I am a bit puzzled by respondents behaviour. He states he refused to talk to the Labour Officer on account of the fact that Mokhantso was not a member of the Worker's Committee. Yet he expected to be invited to the talks between the Labour Officer and Mokhantso. I also find the signal that he sent to the

/

21

disputes. In Schoeman & Another v Samsung Electronics (Pty) Ltd. 1999(2) ILJ 200 at page 209 Landman J noting this fact said:

"Nevertheless, even though applicants were mistaken, they were
entitled to pursue their legal remedies, even if only to find they
had no case. They cannot be dismissed merely for pursuing their
legal remedies even if they are mistaken. However, where the
pursuit of their rights lead to operational dislocation it may, in
appropriate circumstances, give rise to a situation where
dismissal, for operational requirements, as opposed to dismissal
for the exercise of rights becomes permissible. The occasions are
liable to be extremely rare. Genuine operational requirements will
have to be shown."

The papers in this application leave a lot to be desired. The translation of the letter of grievances annexure "B" is not even the reconstructed file. The original file was burnt in the political disturbances that took place in Maseru in September 1998. It becomes difficult therefore to blame applicant for the reconstructed file unless respondent made an objection. The list of grievances is in the Sesotho language. The rules of this court are that proceedings should be in English. Respondent did not object to annexure "B" which is untranslated, therefore I will assume it was translated. As I wanted this matter to be finalised, I asked the Registrar to have annexure "B" translated. Both Counsel and the Court are Sesotho speaking, therefore they understood annexure "B" throughout the proceedings.

In perusing annexure "B" I noted the following:

10. The 9% increase is not being given.

11. A worker remains casual even after a year.

12. We are not satisfied to be forced to work on Saturdays and
    Sundays and that if we do not turn up our wages are deducted or

/

22

we are given a warning.

16. We are not satisfied because maternity leave is too short.

17. The money that is gazetted is not there.

20. The probation period we serve is longer than what the law

provides.
24. The Committee of LECAWU should be permitted to operate within

the factory.

26. Workers are not consulted before decisions are made.
28. The LECAWU trade union is not allowed to deal with matters

concerning us within the firms.
34. There should be paid sick leave as the law provides.

36. Management should stop taking our Ids in order to force us to do
    overtime.

37. Our wages should be paid as soon as the month ends not a week
    later.

If some of these grievances, which include wages, welfare at work, hours of work and overtime, employment of women and trade union activity are in fact based on fact, the respondent might be guilty of massive violations of Parts IV to IX of the Labour Code and Part XIII of the Labour Code on trade union activity. Some action was called for in order that respondent should comply with contracts of employment and obey the law where he allegedly did not. In order that these allegations and complaints should be investigated and if necessary Respondent cleared of wrong-doing, no obstacles should have been put in the way. If the workers committee, on which Respondent was relying, had allowed these alleged breaches of contract and the law, it was not

/

23

advancing the workers interests. The Respondent, as employer, probably did not see things that way because the status quo suited him. He might not even have found a change desirable at all.

While respondent's version is unchallenged, what happened to the office staff is in many ways hearsay. The alleged violent behaviour of more than two thousand four hundred workers seems exaggerated. If they were bent on violence and threatening behaviour, it is most improbable that more than two thousand four hundred men and women could have been controlled by only one police woman. Indeed respondent denies the allegation that he did not talk to the labour Officer because (as was alleged) respondent claimed to have been threatened. There were therefore no threats when he refused to talk to the Labour Officer.

In Coin Security (Cape) (Pty) Ltd. v Vukani Guards and Allied Workers Union & Others 1989(4) SA 234 the workers refused to work because the employer was refusing to perform its obligations in terms of the contract. They were also being unlawfully denied statutory allowances. Friedman J held that the workers could not be said to be on strike. The dismissal of those workers in such circumstances was unlawful. The employees were entitled to receive everything due to them under the contract. By this I understand Friedman J to have meant, the employer must perform his side of the bargain before it can insist on the workers providing their services.

/

24

Whether applicants were right or wrong, Section 225 of the Labour Code permits the Labour Commissioner to intervene instantly in order to see whether there is a dispute resolution machinery. If there is none, "to take such steps as seem expedient to promote a settlement of the dispute" Section 225(2)(b) of the Labour Code. The next question for determination is whether respondent had a right to prevent the legal machinery for ventilating applicants' grievances from operating?

In answering this question, it should be borne in mind that in terms of Section 4 (a) of the Labour Code "the standards laid down in the Code are "the minimum legally obligatory standards and are without prejudice to the right of workers individually or collectively...to contract for higher standards..." This means what is laid down in the Labour Code in respect of contracts, conditions of employment and labour relations generally is implied in all contracts of employment. A breach of the provisions of the Labour Code is by implication a breach of the contract of employment by any side, be it the employer or the worker.

In order to have legal justification to have denied applicants a hearing before dismissing them, respondent must prove that he was acting reasonably and within the law throughout. In other words, he is not in breach of the implied conditions of every contract of employment that the Labour Code imports into in every contract. He must show that despite his acting lawfully

/

25

and reasonably and also creating conditions in which a hearing could take place, applicants denied themselves a hearing or acted in a manner that made a hearing impossible.

To determine what is expected of both sides so as to answer the question of reasonableness, reference has to be made to the Labour Code.

The Constitution has gone out of its way to make it State policy to take into account the rights of workers. Like all law, the Constitution (although the supreme law) must be interpreted reasonably and remedially. See Section 15 of the Interpretation Act 1977. Section 16 (1) of the Constitution entitles every person to "unhindered enjoyment of freedom to associate freely with other persons for...labour...and similar purposes". Even so in terms of Section 16(2) (b) of the Constitution this right is restricted by fact that there are other laws "protecting the rights and freedoms of other persons". Courts in judicial proceedings enjoined in Section 16 (3) of the Constitution to see that whatever law exists "does not abridge rights and freedoms guaranteed under subsection (1) to a greater extent than is necessary in a practical sense in a democratic society". In short, the freedom of association in labour matters has to take account of the existing legal rights of employers as well. Parts XIII to XV of the Labour Code give effect to these rights of the employee.

The militancy, the short time given and the suddenness with which the

/

26

applicants as workers confronted respondent (their employer) with demands about their working conditions was precipitate. If there was no legal machinery for maintaining the balance and promoting dialogue, their conduct could be seen as very unreasonable. However Section 225 of the Labour Code make such conduct permissible and provides that when a trade dispute of this nature comes before the Labour Commissioner he should see to it that an existing machinery for dispute resolution is invoked and the dispute settled. If there is no machinery for dispute resolution or the existing one fails, the Labour Commissioner inquires into the causes and circumstances of the dispute immediately and take any expedient means of promoting a settlement of the dispute.

It is important to note that there is a procedure that is laid down in the Labour Code before employees can with hold their labour. This procedure binds both the employer and the employees. Workers are not supposed to strike before avenues for negotiations have been exhausted. The employer is obliged to negotiate until an impasse is reached. Only then can a notice to strike be given. The employer also will have a right to lock-out workers in turn. In National Union of Mine Workers v East Rand and Uranium Co. Ltd. 1992(1) SA 700 at page 733 I goldstone JA said:

"The fundamental philosophy of the Act is that collective bargaining is the means preferred by the legislature for the maintenance of good labour relations and for the resolution of

/

27 disputes."

The same could be said of the Labour Code 1992 of Lesotho. In South Africa and in Lesotho although the laws are not identical, it is necessary in both countries to go through some negotiations and even some conciliation before a strike can be embarked upon. Indeed some notice must be given to the employer before strike action is undertaken. Otherwise such a strike might be declared unlawful. See Firestone SA (Pty) Ltd. v National Union of Metalworkers of SA 1992(3) SA 218 and CAWULE v Spie Batignolles & Others 1993-94 LLE, & Bulletin 33. In the light of the provisions of the Labour Code, this would be true of Lesotho.

For the dispute resolution machinery provided for in the Labour Code to work the employer is obliged at the behest of the Labour Commissioner to sit down with employees to resolve a trade dispute.

It seems to me respondent should have realised that his workers had a right to democratically change their representatives. Section 168 of the Labour Code while encouraging trade unions, leaves freedom of choice unimpaired. It seems obvious that they had a workers committee which according to respondent was the agreed channel of communication. It also seems logical for the employer to have expected all grievances to be initially channelled through the workers committee. Indeed the employee had a legitimate expectation to

/

28

be informed of a change in the machinery of communication. But in all democratic and mass representations, the employer should have expected sudden changes or even in-fighting for leadership. The workers committee told respondent that they were no more in control. It seems to me unreasonable for respondent to have used the internal affairs and in-fighting among workers not to talk to them or respond to their grievance. After all one of the demands was that LECAWU, a trade union, should do this work as the law provides.

On the 11th February, 1998, Respondent refused to co-operate with the Labour Officer sent by the Labour Commissioner to put everything back on track. Respondent's own affidavit shows he was determined to use the problems of representation among workers to frustrate the legal machinery of settling trade disputes in Part XVIII of the Labour Code. If respondent felt he was entitled to more time, that should have been communicated through the Labour Officer to the workers.

Similarly, if the employer felt the workers committee was according to respondent the appropriate channel, he should have agreed to sit down with Mokhantso and the Labour Officer to resolve the issue so that talks could begin and the dispute could be resolved if possible. Two of the demands of the applicants concerned trade union activity, which respondent was accused of obstructing. Section 198 of the Labour Code obliges the employer to permit and provide facilities for workers and trade unions to confer on matters

/

29 affecting the employer and those members. Section 31 of the Constitution

encourages the State to make laws for the formation of "independent trade unions to protect workers' rights and interests". For respondents to insist that things should be done his way even on the employees side, gives the impression that he did not want workers' grievances to be addressed and good labour relations be advanced in line with State policy.

Respondent through his actions of refusing the services of the Labour Commissioner precipitated the downing of tools to compel compliance with the law on the side of respondent. Their objective became "to take action to persuade or restrain an unwilling employer by force". (Discipline and Dismissal 2nd Edition by Mathew Grosset. page 211). Had respondent co­operated with the Labour Commissioner on the 11th February, 1998, the unspecified action might not have been a sit down strike of the 12th February, 1998. Respondent is obliged to demand the services that are his due and to take action for non-compliance if he has fulfilled his part of the bargain whether express or implied.

Respondent appears unintentionally or deliberately to have obstructed trade union activity and insisted on workers committees which the workers no more wanted. If they were wrong, the Labour Commissioner was the appropriate person to tell them. Respondent refused to allow the Labour Commissioner to intervene and thereby obstructed the legal machinery for

/

30

dispute resolution. On the 12th February, 1998, applicants turned out for work but with-held their labour.

Section 225 of the Labour Code gives the Labour Commissioner broad powers. The Labour Commissioner does not have to wait before he intervenes. Act he did, but was obstructed by respondent. The 14 days that respondent claims were available to him in terms of Section 226 only apply to the machinery of conciliation that has to follow where the labour Commissioner has failed to resolve the dispute. Respondent's behaviour in my view was unnecessarily obstructive and unreasonable. This court therefore sees it as a breach of Labour Code.

The term "trade dispute" is broad enough to cover even the issue of representation that respondent put forward as a stumbling block to the talks. In Section 3 of the Labour Code it means:

"Any dispute or difference between employers or their organisation and employees or their organisations, or between employees and employees, connected with the employment or non-employment, or terms of the employment, or the conditions of labour, of any person."

Although ceasing work in not a criminal offence in terms of Section 251. it does fall within the meaning of a strike in terms of Section 3 of a Labour Code. Mr. Mosito's The argument that applicants were not on strike might

/

31
well be untenable because they were refusing or felling to engage in any work

for which they were employed in furtherance of a trade dispute. In such a case, the assumption being that the employer is doing what is expected of him. This was in terms of Section 230 an unlawful strike as the procedure laid down in Section 229 of the Labour Code had not been followed. There can therefore be no doubt (but for what was expected of respondent) that applicants were providing respondent with a valid reason for terminating employment for a reason connected with conduct at the work place, within the meaning of Section 66 (1) (b) of the Labour Code. The conduct of respondent made the conduct of applicants lawful in as much as they were holding respondent to their contract of employment which respondent was unilaterally abrogating by refusing to negotiate. In Coin Security (Cape) Pty. Ltd. v Vukani Guards and Allied Workers Union (supra) Friedman J held such conduct did not amount to a strike. It seems to me therefore that applicants were merely insisting on negotiations and compliance with the term of their employment (impliedly introduced by the Labour Code), which respondent was unilaterally trying to get out of.

Mr. Matsau for respondent argued that this case is on all fours with the case of Tseuoa Tsekoa v General Manager Flour Mills, Lesotho Appeal Cases (1985-89) 300 where workers refused to return to work when they were on a similar strike and were subsequently dismissed without any hearing. Mr. Justice Aaron of the Court of Appeal at page 334 I found:-

/

32

"In the circumstances, I consider that the appellants and other employees were given adequate notice of the intended action against them, and had a fair opportunity to make representation to management if they so wished."

Mr. Matsau conceded that the Labour Code had not yet been enacted at the time. There seems to me other differences between this case and the Tseuoa Tsekoa v General Manager Flour Mills, which are:

(i) The respondent was violating the provisions of the Labour Code in refusing the intervention of the Labour Officer that the Labour Commissioner had sent to look into the matter and probably to resolve the trade dispute.

(ii) The respondent's objection to the representation of applicants was a matter that might have been ventillated and resolved by and before the Labour Officer.

(iii) Respondent admits that he told the twenty people sent by applicants that he was waiting for the Labour Commissioners intervention even as he was issuing the threats of dismissal to applicants if they did not return to work.

(iv) Respondent was frustrating the lawful dispute resolution

/

33

machinery that is the corner-stone of labour relations in this country by refusing the Labour Officer's intervention. He could not act illegally himself by breaking an implied term of applicant's contract of employment and then accuse applicants of violating the Labour Code in holding him to the contract and the law by withdrawing their labour temporarily.

It should be noted that labour relations are no more governed by the common law alone. The employer's common law rights have been modified by the Labour Code. When the conduct of both respondent and applicants is being scrutinized for reasonableness, it must be in the light of Section 66(4) of the Labour Code which we are interpreting.

I have noted that among the applicants demands were those that clamoured for favourable conditions of work and trade union activity that seemed to be impeded. Sections 30 and 31 of the Constitution on State Policy obliges the State and other organs to promote favourable working conditions for employees and trade unions so that workers rights are protected and there can be "sound labour relations and fair employment practices". Parts VI, VII, VIII, XIII and XIV of the Labour Code endeavour to promote these objectives of State Policy. It seems despite the applicants confrontational approach they were within the law. Respondent misconstrued the relevant provisions of the law, raising mistaken and non-existent technicalities, thereby obstructing the

/

34 Labour Commissioner's efforts to investigate and probably settle the dispute.

In the light of what I have said above I find the respondent to be the one who acted unreasonably. He may have been bona fide, but his errors of judgment in the way he handled the trade dispute and his misinterpretation of the law led to an unreasonable situation in which applicants were denied a hearing before a dismissal. It is not applicants who were obstructing dialogue but rather the respondent. He refused to allow the Labour Office who had been sent by the Labour Commissioner, in terms of Section 225 of the Labour Code to promote dialogue as the law requires. Respondent cannot be allowed to shift his own wrong doing to the applicants.

It follows therefore the applicants were unlawfully dismissed without a hearing. Respondent's property or the other workers not with-holding their services were not in any danger, because one police woman could not (as I have already stated) have protected respondent's property against the thousands of applicants that were in the premises. The three ultimatums issued against applicants within a period of six hours, strike me as an attempt to avoid hearing applicants individually before dismissal and excluding the grievance ventillating machinery that the Labour Commissioner had lawfully set in motion.

/

35
6. WHETHER A DECLARATION SHOULD BE MADE

I have already dealt with the effect of the delay in instituting these proceedings. I have also shown that as reinstatement or claims of damages depend on hearing both parties fully, they are potentially contentious and therefore are unsuitable for application proceedings especially if a period of three to ten months has elapsed. Evidence specifically dealing with issues of reinstatement damages per se is absent in these proceedings. It should also be noted applicants have not put any admissible evidence before this court, therefore there is no evidence before this court to guide this court in exercising its discretion on damages or the issue of reinstatement. Reinstatement and damages can therefore not be decided because they have not at all been ventillated.

Section 2 of the High Court Act 1978 makes it permissible for this court to issue declarations at its discretion although declarations in the abstract are still frowned upon. In this case applicants have also in the alternative applied for the consequent relief of being given their terminal benefits in the event of their dismissal being found unlawful. Indeed references are often sought by future employers, if applicants are branded turbulent employees who just stop work at will their prospects of future employment will be diminished.

Prayers 1 and 3 of the Notice of Motion are granted in a modified form

as follows:

/

36

1. 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.

W.C.M. MAQUTU

JUDGE

For applicant : Mr KE Mosito

For respondents : Mr MT Matsau