IN THE LABOUR COURT OF LESOTHO
HELD AT MASERU LC/REV/155/13 A0855/2013
IN THE MATTER BETWEEN
PUSELETSO MAFATLE APPLICANT
J & S FASHION (PTY) LTD 1st RESPONDENT
DDPR 2nd RESPONDENT
Applicant for review of arbitration award. Several grounds of review raised. 1st Respondent raising two points in limine against the additional review grounds – non-compliance with the Rules and Lack of relevance of averments. Points being upheld and additional grounds being struck off. Applicant proceedings with two grounds. Court not finding merit in them and dismissing the review application. Distinction between and appeal and review being considered. No order as to costs being made.
BACKGROUND OF THE DISPUTE
SUBMISSIONS AND ANALYSIS
Points in limine
Non-compliance with Rule 16 (6)
“(2) A party wishing to review a decision shall file a notice of motion with the registrar....
(3) The Notice of Motion shall –
(c) be supported by an affidavit setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings corrected or set aside.”
“The applicant shall, within 7 days after the Registrar has made the record available, either -
(a) by delivering a notice and accompanying affidavit, amend add to or vary the terms of the notice of motion and supplement the supporting affidavit; or”
Lack of relevance
“7(1) Subject to sub-rule (3), the Court may, at any stage of proceedings, of its own motion, order to be struck out any document filed in the proceedings or anything contained therein, on the grounds that it is scandalous, vexatious, frivolous, irrelevant or an abuse of the process of Court.
In view of this said, We find in favour of 1st Respondent that the point is properly raised.
“Applicant is challenging the dismissal on the ground that the sanction to dismiss her was too harsh.”
Clearly, there was acceptance of misconduct for if there had been none, Applicant would have questioned the substantive aspect of her dismissal, namely that she was charged and dismissed for what she had not done.
“The Court of Appeal and this court have on several occasions deprecated the practice in terms of which the courts grant order that nobody has asked for. In several of its decisions the Court of Appeal has deprecated the practice of granting orders which are not sought for by the litigants.”
At paragraph 22, the Learned Dr. K. E Mosito went on to say,
“Similar, the Court of Appeal and this Court have more than once deprecated the practice of relying on issues which are not raised or pleaded by the parties to litigation.”
On the strength of this authority and the above reasons the argument of Applicant fails.
“Where the reason for wanting to set aside judgment is that the court came to wrong conclusion on the facts or the law, the appropriate remedy is by way of appeal. Where, on the other hand, the real grievance is against the method of the trial, it is proper to bring the case for review.”
“The learned arbitrator erred and or misdirected herself by holding that the applicant was guilty of misconduct.”
Clearly, this is challenge against the conclusion and not the method. Applicant is merely asking this Court to make a finding on the basis of the evidence he alleges to have been presented, that Applicant was not guilty of misconduct. She wants Us to substitute the decision of the learned Arbitrator with Our own, as would be in an appeal situation.
For the above reasons, We find as follows,
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY, 2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU I CONCUR
MRS. THAKALEKOALA I CONCUR
FOR APPLICANT: ADV. LEBAKENG
FOR 1st RESPONDENT: ADV. ‘NONO
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