C of A (CIV) No 27 of 2004
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
'MUSO ELIAS TSEUOA APPELLANT
AND
THE LABOUR APPEAL COURT OF LESOTHO FIRST RESPONDENT
THE DIRECTORATE OF DISPUTE PREVENTION SECOND RESPONDENT AND RESOLUTION
THE LESOTHO PRECIOUS GARMENTS/ THIRD RESPONDENT
P&T TEXTILE (PTY) LTD
Held at Maseru
CORAM : Steyn, P
Ramodibedi JA
Grosskopf JA
Smalberger JA
Melunsky JA
JUDGMENT
Appellant seeking leave to appeal from Labour Appeal Court to Court of Appeal -Section 38A(4) of Labour Code (Amendment) Act does not permit any appeal -Neither Constitution nor any other Act confers jurisdiction on Court of Appeal to hear applications for leave to appeal from Labour Appeal Court or to consider Labour Appeal Court appeals - Appellant relies on sections 4 to 21 of Constitution to overcome restriction of section 38A(4) - Such an application must be made to High Court in terms of section 22 of Constitution - Application for leave to appeal dismissed.
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GROSSKOPF JA
[1] Mr Tseuoa is an applicant before us, but he has throughout been described as the appellant in these proceedings and I shall therefore refer to him as the appellant. He claimed that he had been constructively dismissed in May 2002 by his employer, the third respondent, and that he was accordingly entitled to resign and claim damages. A dispute arose and the appellant referred the matter to the Directorate of Dispute Prevention and Resolution ("DDPR"). The appellant was unsuccessful in that tribunal. He thereupon brought an application in the Labour Appeal Court ("LAC") for a review of the award that had been made by the DDPR arbitrator, but the LAC dismissed the appellant's application on 10 May 2004 by a majority of two (the two assessors) to one (the judge).
[2] The judge who had presided in the LAC thereafter granted a so-called "Judges Certificate" on 25 October 2004 in which he certified "that the case is a fit case for an appeal". There is however no provision for such a certificate in the Labour Code (Amendment) Act 2000 or
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in the Labour Appeal Court Rules ("LAC Rules") and the appellant cannot therefore rely on this certificate to provide him with a right of appeal.
[3] The appellant eventually brought an application on 2 November 2004 for leave to appeal to this Court. He applied in terms of section 17 of the Court of Appeal Act, 10 of 1978, but that section provides for appeals against judgments of the High Court. It should be observed that section 16 of the Court of Appeal Act also provides only for appeals from judgments given in the High Court. Section 18 of the Court of Appeal Act further sets out which appeals shall lie to the Court of Appeal. It reads as follows:
"An appeal shall lie to the Court where provision is expressly made in any Act for such an appeal."
[4] As pointed out in paragraph [3] above, the Court of Appeal Act does not make provision for appeals from the LAC, but only from the High Court. We are not aware of any other act "where provision is expressly made" for an
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appeal from the LAC to the Court of Appeal. The very opposite is in fact the position. Section 38A(4) of the Labour Code (Amendment) Act expressly provides that no appeal shall lie from the decision, judgment or order of the LAC. The section reads as follows:
"Subject to the Constitution of Lesotho, no appeal lies against any decision, judgment or order given by the Labour Appeal Court."
Section 38(2) of the Labour Code (Amendment) Act is to the same effect. It provides that the LAC is the final court of appeal in labour related matters.
[5] The appellant, who is not a lawyer, appeared in person and presented a well-reasoned argument. There was no appearance on behalf of the three respondents, but Mr Mosito appeared as amicus curiae. We are indebted to him for his full and instructive written submissions and his assistance in this matter.
[6] The appellant referred us to rule 14(2) of the LAC Rules which provides as follows:
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"Any party who is dissatisfied with the decision or order of the court [i.e. the LAC] sitting as a court of first instance may appeal to the Court of Appeal of Lesotho and the Court of Appeal Rules 1980 shall mutatis mutandis apply."
This provision does not assist the appellant since the LAC was not sitting as a court of first instance in the appellant's case. It is in any event inconceivable that jurisdiction which is excluded by legislation can be conferred on the Court of Appeal by means of the LAC Rules.
[7] The appellant also pointed out that in England an appeal from a decision of the Employment Appeal Tribunal on a point of law lies to the Court of Appeal. That may be the position in England, but section 38A(4) of the Labour Code (Amendment) Act prohibits an appeal.
[8] The prohibition of an appeal by the terms of Section 38A(4) is expressly made "subject to the Constitution of Lesotho". The Labour Relations Act, 66 of 1995, of South Africa contains a similar provision in item 22(6) of Schedule 7 of that Act, namely that subject to the Constitution no appeal lies against any
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judgment or order given or made by the Labour Appeal Court. The Supreme Court of Appeal of South Africa held in Chevron Engineering (Pty) Ltd v Nkambule 2003 (5) SA 206 (SCA) that on a proper interpretation of item 22(6) an appeal does nevertheless lie to the Supreme Court of Appeal from all decisions of the Labour Appeal Court in view of the wide wording of section 168(3) of the South African Constitution which reads as follows:
"The Supreme Court of Appeal may decide appeals in any matter. It is the highest Court of Appeal except in constitutional matters........" (Emphasis added.)
I am however of the view that a similar conclusion is not possible in Lesotho, having regard to the more restricted wording of the relevant sections of the Lesotho Constitution which are set out in paragraph [9] hereunder.
[9] The jurisdiction of the Court of Appeal of Lesotho is more circumscribed than that of the Supreme Court of Appeal of South Africa. This is apparent from the wording of
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section 18 of the Court of Appeal Act quoted in paragraph [3] above, and from the provisions of the following sections of the Constitution which deal with the jurisdiction of the Court of Appeal:
123(1) "There shall be for Lesotho a Court of Appeal which shall have such jurisdiction and powers as may be conferred on it by this Constitution or any other law."
123(4) " The Court of Appeal shall be a superior court of record and, save as otherwise provided by Parliament, shall have all the powers of such a court."
129(2) " Subject to section 69 of this Constitution, the Court of Appeal shall have such other jurisdiction with regard to appeals as shall be determined by Parliament."
(Emphasis added.)
[10] It therefore appears that the jurisdiction of the Court of Appeal is determined essentially by Parliament, and Parliament decided that no appeal shall lie against any decision, judgment or order given by the LAC. The provision of section 38A(4) is of course "subject to the Constitution of Lesotho", but those sections of the Constitution which prescribe the jurisdiction of the Court of Appeal do not in my view permit an appeal from the LAC.
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[11] It is submitted by the appellant that the LAC is a creature of statute and that it was first established as a court after the Constitution had already been promulgated, with the result that the LAC was not properly provided for in the Constitution. That may be so, but It does not follow that we are entitled to assume jurisdiction and hear appeals from the LAC, especially where Parliament has determined that such appeals are not permitted.
[12] The appellant also relied on other provisions of the Constitution to overcome the restriction of section 38A (4) and to provide him with a right of appeal. He referred us in particular to sections 4 and 19 of the Constitution which provide for the right to equality before the law, and submitted that section 38A(4), which denies him a right of appeal, is contrary to that fundamental right.
[13] The problem facing the appellant in this regard is that the Court of Appeal has no original jurisdiction to determine whether the provisions of sections 4 to 21 of the
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Constitution have been contravened in relation to a particular person. It only has appeal jurisdiction. Section 22(2) of the Constitution provides that it is the High Court, and not this Court, that has original jurisdiction to hear and determine an application made in terms of section 22(1).
[14] All that is before us is an abortive application for leave to appeal to this Court. The Constitutional issues now introduced by the appellant have not been raised in that application. An application in terms of section 22 of the Constitution should in any event be brought in the High Court and not in this Court, and this Court should not express any views in regard to these Constitutional issues at this stage. It follows that the appellant's application for leave to appeal should be dismissed. None of the respondents opposed the application and it is not necessary therefore to make any order as to costs.
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[14] The following order is made:
The appellant's application for leave to appeal to this Court is dismissed.
I also agree with the FH Grosskopf
comments of Steyn P Judge of Appeal
I agree with the judgment
but wish to add the comments JH Steyn
annexed hereto. President of Court
of Appeal
and with the comments MM Ramodibedi
Judge of Appeal
and with the comments JW Smalberger
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and with the comments LS Melunsky
STEYN. P
I agree both with the reasoning and the order as reflected in the judgment of my brother Grosskopf. In view of the delays that have occurred in his attempts to obtain relief I would make the following comments for consideration by the appellant:
Should he seek to challenge the constitutionality of the creation of the Labour Appeal Court and/or the legitimacy of the ouster of the Court of Appeal's jurisdiction as a final arbiter in disputes falling under the jurisdiction of the Labour Appeal Court, he should consider doing the following:
He should engage if at all possible, the services of a competent legal adviser to draft founding papers for an appropriate application to the High Court for relief.
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He should file such papers with the Registrar as speedily as possible.
I have requested the Registrar, should such an application be made, to afford it priority in its enrolment on the roll of the Constitutional panel of the High Court and I have requested her to enroll the matter as one of urgency. The Registrar will communicate progress in respect of the hearing of such a matter to me.
The appellant would be wise not to infer from these comments that the Court is encouraging him to proceed. I make them because of the lengthy delays that have occurred in resolving his dispute and in honouring an undertaking I gave him at the hearing.
JH. STEYN
PRESIDENT OF THE COURT OF APPEAL
The appellant appeared in person.
No appearance for the respondents.
Mr K.E. Mosito appeared as amicus curiae.
