LAC/REV/74/05

IN THE
LABOUR APPEAL COURT OF LESOTHO

HELD AT
MASERU

In the
matter between

LESOTHO
HIGH LANDS DEVELOPMENT AUTHORITY APPLICANT

AND

THE
DIRECTORATE FOR DISPUTE

PREVENTION
AND RESOLUTION 1st RESPONDENT

MATS'ELISO
MAKHALEMELE 2nd RESPONDENT

CORAM:
THE HON. MR. ACTING JUSTICE K.E. MOSITO

ASSESSORS:
MR J. Tau

MR M. Makhetha

HEARD: 30
August 2006

DELIVERED:
5 SEPTEMBER 2006

SUMMARY

Review of
Arbitral proceedings - Labour and employment matters -Application
Absolution from instance -Arbitrator Not appreciating
the

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nature of
matter her - Effect thereof - Court having not been addressed on
costs - Application dismissed - no order as to costs.

JUDGEMENT

This is
an application for an order in the following terms:

1. Directing
   and Ordering the 1st respondent to dispatch a record of proceedings
   (both the manuscript and tape recorded proceedings)
   in the case
   A0343/04, a matter of the Directorate of Dispute Prevention and
   Resolution, to the Registrar of the above Honourable
   Court within
   fourteen (14) days hereof.

   
   

2. Directing
   and Ordering the 1st respondent to dispatch the decision on the
   merits canvassed by both the applicant and the 2nd respondent
   in the
   proceedings.

   
   

3. Declaring
   that the decision of the 1st respondent in A0323/04 delivered on the
   19th April 2005 as an interlocutory decision warranting
   that the
   decision on the merits canvassed be delivered.

   
   

4. Declaring
   that the decision of the 1st respondent in A0323/04 to refer the
   matter to the Labour Court to decide issues that deal
   with
   discrimination and victimisation irregular without delivering a
   decision on the issue of underpayments as a result 1st respondent's

   decision should be reviewed and set aside.

   
   

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5. That
   the 2nd respondent pay costs hereof in the event of opposition.

   
   

6. That
   the applicant be granted such further and / or alternative relief.

   
   

The facts
of this application are straightforward and are not in dispute. They
are as follows:

1. On
   or about the 24th March 2004, 2nd respondent filed a claim of
   underpayments under case number AO323/2004 with the 1st respondent.

   The matter was scheduled for hearing before Arbitrator Monoko.

   
   

2. 2nd
   respondent later filed an application for the Recusal of Arbitrator
   Monoko, claiming that Monoko showed glimpses of bias against
   her and
   had prejudiced the issues in her case. That, she (2nd respondent)
   became apprehensive that the Arbitrator would not have
   an open mind
   on the issues of underpayments brought before him, and shall stand
   no chance of succeeding in the matter.

   
   

3. On
   the 24th November 2004, the award in the application for Recusal was
   entered in favour of the 2nd respondent.

   
   

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4. At
   the time when applicant had prepared itself, to defend and argue the
   merits on the issues of underpayments, 2nd respondent
   filed yet
   another application under the same case number. This time around she
   filed and application for Joinder of Issues. '
   The source of
   complain in the application was underpayments being borne out of
   discrimination mated out against her by the applicant
   and thus
   charged that applicant was involved in Unfair Labour Practices
   against her. In essence she complained that she was being
   underpaid
   as a result of discrimination practices against her.

   
   

5. Applicant
   opposed the application and the matter was argued before Arbitrator
   Malebanye on the 05th March 2005. Applicant's Counsel
   argued that
   the DDPR had no jurisdiction to entertain or to hear an application
   that dealt with issues of Discrimination and
   of Unfair Labour
   Practice. That the right forum was the Labour Court of Lesotho. The
   DDPR upheld this. objection, (see page 10
   of the record)

   
   

6. The
   Arbitrator (Malebanye) immediately after dismissing the application,
   demanded the parties to proceed on the merits of the
   main case of
   underpayments. Applicant's Counsel applied for postponement and
   asked the Arbitrator to give this matter a chance
   for negotiations
   for amicable settlement out of Court, the application was granted,
   (see pages 10 and 33 of the record)

   
   

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7. The
   negotiations for amicable settlement failed and on the 24th March
   2005 the matter was heard before Arbitrator Malebanye.

   
   

8. 2nd
   respondent evidence was challenged and the defence of estoppel was
   put to her. It was put to her that she was estopped from
   filing a
   claim of underpayments a year after she had been offered, accepted
   and enjoyed the fruits of payments by the applicant
   that were meant
   to remedy and settle the issue of underpayments. It was put to her
   that by her conduct she had acquiesced the
   payments made to her
   after one year period and that the filing of the claim was improper.

   
   

9. On
   or about March 2005, Arbitrator Malebanye on resuming the
   proceedings asked Counsel for applicant to lead applicant's defence.

   An application for absolution from the instance was filed. It was
   argued that the 2nd respondent had failed to prove that applicant

   had underpaid her. The DDPR's attention was brought to the fact that
   no evidence was brought to its attention proving underpayments.
   It
   was argued that 2nd respondent failed to discharge the evidential
   burden that reposed on her. The onus of proof was not discharged

   either.

   
   

10. The
    Arbitrator was also requested to look into the issue of estoppel as
    an objection (see page 65 of record) The matter was adjourned
    and
    the Arbitrator said that she was going to consider the application
    for absolution from the instance and

    
    

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the objection of estoppel, and that she would deliver the judgement
in due course.

11. On
    the 17th day of April 2005 applicant received a copy of an award
    from DDPR. Arbitrator Malebanye had delivered the award. This
    award
    dismissed 2nd respondent's application on the issue of
    discrimination and Unfair Labour Practice. No ruling on the merits

    of the matter of underpayments had been made. In other words the
    application for absolution from the instance and objection on
    the
    issue of estoppel had not been considered. The award gives the 2nd
    respondent an opportunity to file a case of underpayments
    again in
    the Labour Court, this was an irregularity committed by the
    Arbitrator.

    
    

11. Section
    228F (3) provides that, the Labour Appeal Court may set aside an
    award on any grounds permissible in law and any mistake
    of law that
    materially affects the decision. The phrase, "any grounds
    permissible in law " is not defined in the Act.
    Against this
    background it is necessary to consider what this phrase entails for
    purposes of this Court, thereby determining
    the grounds upon which
    the Labour Appeal Court is empowered to review the proceedings of
    the DDPR (and also those of the Labour
    Court).

    
    

In JD
Trading (PTY) LTD t/a Supreme Furnishers v M. Monoko and two Others
LAC/REV/39/04, (delivered on the

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same date
as the present judgement), this Court considered the sources and the
extent of its power of review. It pointed out inter
alia that,
Section 228F (3) provides that, the Labour Appeal Court may set aside
an award on any grounds permissible in law and
any mistake of law
that materially affects the decision. It went on to considered a
number of authorities such as, Johannesburg
Stock Exchange and
Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 (A) at
152A-E , and held in line therewith that,
in order to establish
review grounds it may have to be shown that the tribunal failed to
apply its mind to the relevant issues
in accordance with the "behests
of the statute and the tenets of natural justice" (see National
Transport Commission
and Another v Chetty's Motor Transport (Pty) Ltd
1972 (3) SA 726 (A) at 735F-G; Johannesburg Local Road Transportation
Board and
Others v David Morton Transport (Pty) Ltd 1972 (3) SA 726
(A) at 895B-C; Theron en Andere v Ring van Wellington van die NG
Sendingkerk
in Suid-Afrika en Andere 1972 (3) SA 726 (A) at 14F-G).
Thus in Johannesburg Stock Exchange and Another v Witwatersrand Nigel
Ltd
and Another 1988 (3) SA 132 (A) at 152A-E.

13. We
    now turn to the merits of the present case. This is a typical
    example of such a case. The arbitrator simply failed to appreciate

    the nature of the issue she had to decide, and consequently, she
    failed to apply her mind to the relevant

    
    

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issues in accordance with the "behests of the statute and the
tenets of natural justice". This was a clear misdirection.

13. We
    do not believe that the justice of this matter can be met by
    referring the matter to the same arbitrator again.

    
    

1. The
   awards of the arbitrator are consequently hereby reviewed and set
   aside.

   
   

2. This
   Court orders that, the matter is sent back to the DDPR for
   consideration de novo by a different arbitrator.

   
   

3. We
   do not believe that the second respondent is to blame for the
   arbitrator's misdirection to warrant being punished with costs.

   
   

4. Costs
   will be costs in the cause.

   
   

K. E.
MOSITO

JUDGE OF
THE LABOUR APPEAL COURT

Mr. J.
Tau I agree

Mr. M.
Makhetha I agree

DATED AT
MASERU THIS 5th DAY OF SEPTEMBER 2006

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For the
applicant: Advocate. S. Mathe

For the
first and second respondents: Advocate. B. Thabane