HIGH COURT OF LESOTHO
POLYTECHNIC 1st RESPONDENT
POLYTECHNIC 2nd RESPONDENT
by the Honourable Madam Justice N. Majara on the 22nd August 2006
application came before me on the 7th August 2006 wherein applicant
was seeking relief in the following terms:-
decision by the second respondent to dismiss the applicant shall not
be reviewed corrected and set aside.
disciplinary proceedings held by and on behalf of the 1st Respondent
on the 14th and 17th September shall not be reviewed,
2nd respondent shall not be ordered to dispatch the record of
proceedings to this Honourable Court within 14 days from receipt
hereof and notify applicant of the same.
of suit at client and own attorney scale.
and/or alternative relief.
founding affidavit applicant avers that disciplinary proceedings were
conducted against her and she was found guilty as charged
having been dissatisfied with the outcome she was advised by her
counsel to approach this Court for relief. She continues
at paragraph 7:-
"First and foremost, I submit before this Honourable Court that
I was denied my constitutional right to legal representation
choice. In the letter by the Director calling me for a disciplinary
hearing I was informed that I am free to be represented
by any person
of my choice who should be a Lerotholi Polytechnic staff This conduct
by the director is contrary to my constitutional
right to legal
representation and also in violation of Section 18 (3) of the
Lerotholi Polytechnic Statutes and ordinances....
That notwithstanding even in the conduct of disciplinary proceedings
against me I was not advised of my right to legal representation
any other rights I need be advised of."
goes on to challenge her conviction which she avers was based on
hearsay evidence by the Director as well as the fact
that the panel
acted as both judge and prosecutor in the proceedings to her
opposing papers per the affidavit deposed to by one Moroka Hoohlo,
respondents raised a point in limine challenging the
this Court to entertain this matter. It was the deponent's contention
that in terms of the Labour Code of 1992
(as amended) the matter
falls squarely within the jurisdiction of the Labour Court.
in turn contends that this Court has jurisdiction to entertain this
matter for the reason that it has review powers over
each and every
tribunal in terms of High Court Rule 50.
heads of argument, Mr Letsika Counsel for respondents submitted that
the determination whether the disciplinary proceedings
were fair or
not and whether the dismissal was fair revolves around the
interpretation and application of the provisions of section
(a), (2) and (4) of the Labour Code as amended.
proceed to deal with the said point in limine.
view, in order to determine this question, it is important to firstly
determine whether the issues flowing from applicant's
averments are matters which fall under the Code.
24 of the Labour Code of 1992 provides for instances over which the
Labour Court shall have the power, authority and civil
Section 25 in turn confers the Court with exclusive jurisdiction as
regards any matter provided for under the Code,
including but not
limited to trade disputes. The section further provides:-
"No ordinary or subordinate court shall exercise its civil
jurisdiction in regard to any matter provided for under the Code."
applicant is seeking review for the reason that inter alia she was
denied her right to representation in the disciplinary
hearing. In my
opinion, the fact that the issues raised herein are termed
irregularities does not detract from the one that they
provided for under the Code for the reason that applicant is
challenging her dismissal on the basis of what she avers
at the disciplinary hearing. At paragraph 5 of the founding affidavit
she avers that:-
"Disciplinary proceedings against me were conducted and I was
found guilty as charged. A report was issued with recommendations
the Chairman of Council to have me dismissed form my employ. And this
was done as shown above....
Having been so dismissed and dissatisfied I approached my counsel of
record for advise and briefed him that appropriate action
to (sic) be
24 (1) (i) of the Code provides as follows:-
"The Court shall have the power, authority and civil
jurisdiction to determine whether an unfair dismissal has occurred
if so, to award appropriate relief;"
It is my
view that when ones looks at the wording of the above section and
applicant's averments as contained in paragraph 7 of
affidavit quoted above, this matter falls within the provisions of
section 24 for the reason that the relief she is
seeking is based on
the fact that as she avers, she was denied the right to legal
representation resulting in her unfair dismissal.
the prayer sought is titled review, this is just a question of
terminology and/or nomenclature. See my comments in Refuoe
National University of Lesotho CIV/APN/182/06 (unreported) at p 5-6.
applicant is seeking as a matter of fact is for this Court to
determine the fairness or otherwise of her dismissal as a result
the alleged flawed disciplinary proceedings per her averments. Indeed
prayer (1) in her notice of motion is that the decision
by the second
applicant to dismiss her should be reviewed corrected and set aside
again, I wish to respectfully tap on the words of the Court of Appeal
in the case of CGM v LECAWU & Others 1999-2000 LLR/LB
1 where the
Court held that the consideration of the compliance or otherwise with
section 66 (4) involves a factual determination.
Likewise in casu, a
determination of whether applicant was denied the right of
representation is a question of fact regarding what
transpired in the
disciplinary hearing which resulted in her dismissal.
my opinion is covered under the provisions of section 66 of the
Labour Code and as a result falls within the exclusive jurisdiction
of the Labour Court when the said section is read together with
sections 24 and 25 (1) of the Code (as amended).
25 (as amended) unequivocally provides that no Court shall exercise
its civil jurisdiction in regard to any matter provided
for under the
Code. For further comments see Motaung's Case (supra) p 7.
addition, whilst I agree with Mr Molati for applicant that Rule 50 of
the High Court Rules confers powers of review on the High
is important to note that this rule cannot be read in isolation form
all other laws. In casu, it should be read
with sections 118 and 119 of the Constitution and Sections 24 and 25
of the Labour Code.
It is for
the above reasons that I accordingly uphold respondents' point in
limine with costs and direct applicant to institute
the proper forum.
applicant : Mr Molati
respondents: . Mr Letsika
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