HIGH COURT OF LESOTHO
SERVICE COMMISSION 1st APPLICANT
SERVICE DEPARTMENT 2nd APPLICANT
MINISTRY OF EDUCATION 3rd APPLICANT
GENERAL 4th APPLICANT
LEARNED JUDGE OF
APPEAL COURT 1st RESPONDENT
APPEAL COURT 2nd RESPONDENT
APPEAL COURT 3rd RESPONDENT
ARBITRATOR DIRECTORATE OF
PREVENTION & RESOLUTION 4th RESPONDENT
LELIMO 5th RESPONDENT
by the Honourable Madam Justice N. Majara on the 3rd October 2007
This is a
review application for an order in the following terms:-
and ordering that proceedings in LAC/A/04/05 a matter of the Labour
Appeal Court and a subsequent order of the Labour
Court be reviewed
and corrected or set aside.
and ordering stay of execution of the awards granted by fourth
respondent pending the finalization of this application.
the Second Respondent to dispatch the record of proceedings to the
Registrar of the above Honourable Court within fourteen
and to inform the Applicant's Attorney that she has done so.
Respondents to pay costs hereof only in the event of opposition.
Applicants further and/or alternative relief.
respondent filed an answering affidavit in opposition wherein he also
raised some points in limine. When the matter was
before me and after reading the pleadings, I directed Counsel to
address me on the point of jurisdiction only
as I believed it was the
most pertinent, with the likelihood that this matter might be
disposed of on it alone.
duly prepared written submissions and filed them of record. On the
date of hearing of this matter, I was engaged in a trial
matter, as a result both of them agreed with the leave of this Court
to submit their written heads without making verbal
the rider that in the event that the Court might need any
clarification, it would duly notify them so that they
could come and
address it on the relevant points as the case might be.
find it apposite to mention at this stage that this matter dates as
far back as 2003 and it is unfortunate that it has not
finality to date. However, suffice it to say that it is against this
backdrop that at this stage the only issue for determination
Court is whether the High Court has jurisdiction to review judgments
of the Labour Appeal Court.
heads of argument, Mr. Kgoadi who appeared on behalf of 5th
respondent made the submission that this Court has no jurisdiction
review matters from the Labour Appeal Court, nor from any court that
falls under the Labour Code Order No. 24 of 1992 as amended
Labour (Amendment) Code No. 3 of 2000. To this end, he made reference
to the case of The Attorney General and Others v Kao
656 and other authorities referred to therein.
for 5th respondent added that in that case, the court might as well
have been referring to the "merits of this review"
the learned Ramodibedi JA had stated that :-
''Referring now to the merits of this appeal, I should state at the
onset that the question whether the Labour Court enjoys exclusive
jurisdiction is one that has engaged the attention of the court for
some time now."
Kgoadi went further to quote the Court at p664 thereof where it
"ln all of those cases referred to in the preceding paragraph it
has now consistently been held that in matters provided for
Code the High Court has no jurisdiction and that only the Labour
Court has jurisdiction. This court reached that conclusion
in question after painstakingly reviewing the relevant provisions of
the Code. It is strictly unnecessary for me therefore
to traverse the
same field again."
addition, Mr. Kgoadi referred the Court to the case of The Vice
Chancellor of the National University of Lesotho v Lana LAC 2000-
especially the decision of the Court of Appeal which he submitted is
on all fours with the present application.
response, Ms Nkaota who appeared on behalf of applicants made the
submission that the High Court does have the power to review
decisions or judgments of all courts subordinate to it which include
the Labour Appeal Court. Counsel added that this is in accordance
with Section 119 (1) of the 1993 Lesotho Constitution which
established the High Court.
It was Ms
Nkaota's further submission that the Labour Appeal Court was
established by Section 38 (1) of the Labour Code (Amendment)
2000 and that since this latter law is inferior to the Constitution
the submission by respondents that they enjoy the same
incorrect. She added that this is the position even though decisions
or judgments of the Labour Appeal Court cannot be
appealed against in
accordance with section 38A (4) of the Amendment.
that even the same Act does not provide that the decisions or
judgments of the Labour Appeal Court cannot be reviewed.
that a reading of the two instruments, i.e. the Constitution and the
Code leads one to the conclusion that the High Court
to also review decisions of the Labour Appeal Court which (so she
contended) falls under courts that are inferior
to the High Court.
proceed to deal with this question of jurisdiction of the High Court
to review decisions of the Labour Appeal Court.
the constitutional provision Section 119 (1) which established the
High Court provides as follows:-
"There shall be a High Court which shall have unlimited original
jurisdiction to hear and determine any civil or criminal
and the power to review the decisions or proceedings of any
subordinate or inferior court, court-martial, tribunal,
officer exercising judicial, quasi-judicial or public administrative
functions under any law and such jurisdictions and
powers as may be
conferred on it by this Constitution or by or under any other law."
powers are also provided for under Section 7 of the High Court Act of
1978 which reads as follows:-
"The High Court shall have full power, jurisdiction and
authority to review the proceedings of all subordinate courts of
justice within Lesotho, and if necessary to set aside or correct the
same. " (my underlining)
basis of the above two provisions, it is without doubt that this
Court has powers of review of proceedings emanating from
subordinate and/or inferior courts. This in turn begs the question,
does the Labour Appeal Court fall within the definition
subordinate or inferior courts as referred to under the two
Labour Appeal Court was established by the Labour Code (Amendment)
Act of 2000 (hereinafter referred to as the Amendment) under
Section 38 (1) which provides that there shall be a Labour Appeal
Court. Subsection (2) thereof reads as follows:-
"The Labour Court is the final Court of appeal in respect of all
judgments and orders made by the Labour Court. "
same section the composition of the Court is provided for and in
terms of paragraph (a) it consists of a Judge of the
High Court who
is to be nominated by the Chief Justice and two assessors chosen by
38A of the Amendment in turn provides that the Labour Appeal Court
shall have exclusive jurisdiction. Over and above this,
(2) provides as follows:-
the provisions of any other law, the Labour Appeal Court may hear any
appeal or review from a decision of
any subordinate Court concerning
an offence under this Code and any other labour law. " (my
for me to determine what is meant by subordinate and or inferior
courts vis-a-vis the Labour Appeal Court, I find it imperative
should examine all the relevant provisions which I have quoted above.
A reading of the provisions of section 119 of the
reveals that there is no comma between the terms subordinate or
inferior whereas immediately after, there is a comma
between all the
other courts, bodies or tribunals that are listed therein. In my
view, this denotes that under this section, the
terms subordinate or
inferior are used interchangeably whereas the rest are regarded as
on the basis of the above position, the Amendment as quoted above in
turn empowers the Labour Appeal Court to hear any
appeal or review
from the decision of any subordinate court. In my opinion, when these
two provisions are read together, it cannot
be correct to argue that
the intention of the Legislature was to place the Labour Appeal Court
subordinate or inferior courts whose decisions are subject to review
by the High Court.
further argument by Ms Nkaota that nowhere in the provisions of the
Amendment section in its subsection (4) does the law
decisions or judgments of the Labour Appeal Court cannot be reviewed
my understanding of Counsel's contention is
that the operative word
is review and not appeal because the word review is not mentioned
subsection provides as follows:-
"Subject to the Constitution of Lesotho, no appeal lies against
any decision, judgment or order given by the Labour Appeal
both appeals and reviews as they are referred to in this context, are
processes whereby proceedings of inferior courts
of justice both
civil and criminal are brought before the higher courts where in the
case of review, it is in respect of grave
during the course of such proceedings whereas with appeal, it is in
respect of the merits of the case.
See Isaacs in Beck's Theory and
Principles of Pleading in Civil Actions 5th Edition pp 319-325.
light of this position, I cannot conjure up a situation wherein the
Legislature could have meant that the Labour Appeal Court
jurisdiction to hear appeals and reviews from inter alia, any
subordinate court, only for it to be regarded as an inferior
subordinate court in so far as its own decisions being reviewed (and
not appealed) is concerned. In my view, this would
result in an
It is my
further view that in light of all the above considerations, the fact
that the term review was left out of this provision
was just an
oversight on the part of the drafters of the statute. On that basis,
the submission made by Ms Nkaota might have held
some water if the
other legal provisions which I have already made reference to did not
above this, the Labour Appeal Court also enjoys exclusive
jurisdiction and this is in terms of Section 38A of the Amendment.
The section reads in parts:-
Labour Appeal Court has exclusive jurisdiction-fa) to hear and
determine all appeals against the final judgments and the final
orders of the Labor Court;
meaning and effect of the term exclusive jurisdiction has been dealt
with in many cases that have come before the superior Courts.
them is the Kao Case (Supra).
case the respondents had instituted an application in the High Court
for payment of arrears of salary arising from his dismissal
appellants and the application was granted with costs. The appellants
appealed against the decision on the ground that the High
no jurisdiction in the matter and that the Labour Court enjoys
exclusive jurisdiction in such matters.
the facts are a bit different in that therein the High Court had been
approached to deal with the matter in its original
instead of respondents instituting proceedings in the Labour Court
whereas in casu applicants are seeking a review
of the decision of
the Labour Appeal Court,
it is my
view that the reasoning of the Court of Appeal per the judgment of
the learned Ramodibedi J applies in this case nonetheless.
10-11 of his judgment, he stated in parts and in so far as it is
relevant in casu as follows:-
"...it has now consistently been held that in matters provided
for under the Code, the High Court has no jurisdiction and
the Labour Court has jurisdiction. This Court reached that conclusion
in the cases in question after painstakingly reviewing
provisions of the Code. "
enough, the above quoted portion was stated with regard to the
exclusive jurisdiction of the Labour Court. However, I have
shown that in terms of Section 38A of the Amendment, the Labour
Appeal Court is also cloaked with exclusive jurisdiction.
understanding of the position in the Kao Case (Supra) is that the
High Court has neither the original jurisdiction to hear matters
fall under the Labour Code of 1992 (as amended) nor the power to hear
any matters emanating from that court either by way
of review and/or
result, if the Court of Appeal found that despite reference to the
Constitution per the provisions of Section 25(1) (a) of
Code of 1992 (as amended) to wit, 'the jurisdiction of the Labour
Court is exclusive and no court shall exercise its
in respect of any matter provided for under the code- subject to the
Constitution...' (my underlining), no other
court has jurisdiction to
deal with matters that fall within its exclusive jurisdiction, then
by the same analogy, it is only logical
to find that no other court
has jurisdiction to deal with matters that fall
the exclusive jurisdiction of the Labour Appeal Court despite the
provisions of section 38A (4) of the Amendment whose first
read, 'Subject to the Constitution....'
addition, it is also my considered opinion that if the Labour Appeal
Court was meant to be subordinate or inferior, it would
not have been
constituted with inter alia, a judge of the High Court who sits on it
on a permanent basis, only to subject its decisions
to review by
another judge(s) of the High Court who enjoy the same status as he.
In my view, that would constitute a serious anomaly
which cannot have
been intended by Parliament. This is especially the case when this
factor is taken in conjunction with the statutory
provisions I have
made reference to above.
these reasons, I find that this Court does not have the jurisdiction
to review matters that emanate from the Labour Appeal
accordingly dismiss this application on this point alone with costs.
applicants : Ms Nkaota
respondents : Mr. Kgoadi
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