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

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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

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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

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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

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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...."

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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 :-

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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:-

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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

   
   

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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

   
   

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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

    
    

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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

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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

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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

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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

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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

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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:-

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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

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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

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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.

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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:

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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