LABOUR APPEAL COURT OF LESOTHO
HIGH LANDS DEVELOPMENT AUTHORITY APPLICANT
DIRECTORATE FOR DISPUTE
AND RESOLUTION 1st RESPONDENT
MAKHALEMELE 2nd RESPONDENT
THE HON. MR. ACTING JUSTICE K.E. MOSITO
MR J. Tau
MR M. Makhetha
5 SEPTEMBER 2006
Arbitral proceedings - Labour and employment matters -Application
Absolution from instance -Arbitrator Not appreciating
matter her - Effect thereof - Court having not been addressed on
costs - Application dismissed - no order as to costs.
an application for an order in the following terms:
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
fourteen (14) days hereof.
and Ordering the 1st respondent to dispatch the decision on the
merits canvassed by both the applicant and the 2nd respondent
that the decision of the 1st respondent in A0323/04 delivered on the
19th April 2005 as an interlocutory decision warranting
decision on the merits canvassed be delivered.
that the decision of the 1st respondent in A0323/04 to refer the
matter to the Labour Court to decide issues that deal
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.
the 2nd respondent pay costs hereof in the event of opposition.
the applicant be granted such further and / or alternative relief.
of this application are straightforward and are not in dispute. They
are as follows:
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.
respondent later filed an application for the Recusal of Arbitrator
Monoko, claiming that Monoko showed glimpses of bias against
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.
the 24th November 2004, the award in the application for Recusal was
entered in favour of the 2nd respondent.
the time when applicant had prepared itself, to defend and argue the
merits on the issues of underpayments, 2nd respondent
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
charged that applicant was involved in Unfair Labour Practices
against her. In essence she complained that she was being
as a result of discrimination practices against her.
opposed the application and the matter was argued before Arbitrator
Malebanye on the 05th March 2005. Applicant's Counsel
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)
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 amicable settlement out of Court, the application was granted,
(see pages 10 and 33 of the record)
negotiations for amicable settlement failed and on the 24th March
2005 the matter was heard before Arbitrator Malebanye.
respondent evidence was challenged and the defence of estoppel was
put to her. It was put to her that she was estopped from
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.
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.
was argued that 2nd respondent failed to discharge the evidential
burden that reposed on her. The onus of proof was not discharged
Arbitrator was also requested to look into the issue of estoppel as
an objection (see page 65 of record) The matter was adjourned
the Arbitrator said that she was going to consider the application
for absolution from the instance and
the objection of estoppel, and that she would deliver the judgement
in due course.
the 17th day of April 2005 applicant received a copy of an award
from DDPR. Arbitrator Malebanye had delivered the award. This
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
issue of estoppel had not been considered. The award gives the 2nd
respondent an opportunity to file a case of underpayments
the Labour Court, this was an irregularity committed by the
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.
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
Trading (PTY) LTD t/a Supreme Furnishers v M. Monoko and two Others
LAC/REV/39/04, (delivered on the
as the present judgement), this Court considered the sources and the
extent of its power of review. It pointed out inter
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
and Another v Chetty's Motor Transport (Pty) Ltd
1972 (3) SA 726 (A) at 735F-G; Johannesburg Local Road Transportation
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
in Suid-Afrika en Andere 1972 (3) SA 726 (A) at 14F-G).
Thus in Johannesburg Stock Exchange and Another v Witwatersrand Nigel
and Another 1988 (3) SA 132 (A) at 152A-E.
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
issues in accordance with the "behests of the statute and the
tenets of natural justice". This was a clear misdirection.
do not believe that the justice of this matter can be met by
referring the matter to the same arbitrator again.
awards of the arbitrator are consequently hereby reviewed and set
Court orders that, the matter is sent back to the DDPR for
consideration de novo by a different arbitrator.
do not believe that the second respondent is to blame for the
arbitrator's misdirection to warrant being punished with costs.
will be costs in the cause.
THE LABOUR APPEAL COURT
Tau I agree
Makhetha I agree
MASERU THIS 5th DAY OF SEPTEMBER 2006
applicant: Advocate. S. Mathe
first and second respondents: Advocate. B. Thabane
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law