IN THE LABOUR COURT OF LESOTHO                                      LC 18/08

HELD AT MASERU

In the matter between:

SELLO MATEKASE                                                                    APPLICANT

and

LETS`ENG DIAMONDS                                                          RESPONDENT

        JUDGMENT

________________________________________________________________

DATE: 12/08/15

Practice and procedure - Application to strike out applicant’s action for want of prosecution in terms of Rule 7(2) of the Labour Court Rules, 1994 - Respondent arguing that the delay in prosecuting the matter is long, inexcusable and prejudicial to it - Claimant failing to defend such - Prayer for striking out granted as prayed.

1. This is an application brought by the respondent in terms of Rule 7 (2) of the Labour Court Rules, 1994 in which it prayed that applicant’s action be struck out for want of prosecution. For ease of reference, and the fact that this application bears the same reference number as the main application, the Court has referred to the parties as in the main application, much as the respondent is an applicant in casu.

BRIEF BACKGROUND TO THE DISPUTE

2. The applicant has referred a claim of unfair dismissal in terms of Section 226 (1) (c) (i) of the Labour Code (Amendment) Act, 2000 following his dismissal on 19^th April, 2008 from the respondent’s employ over an alleged participation in an illegal strike. The alleged strike purportedly occurred on 10^th April, 2008. The matter was scheduled for hearing before this Court on 24^th March, 2009 wherein the applicant was represented by a trade union official, Mr Zuma from the Mining and Construction Workers’ Union (MICOWU) and the respondent by Mr Loubser of Webber Newdigate Attorneys.

3. The former objected to the respondent being represented by a legal practitioner basing himself on Section 28 (1) (b) of the Labour Code Order, 1992 which provides that:-

1.  At any hearing before the Court, any party may appear in person or be represented -

 

1. by an officer or an employee of a trade union or of an employers’ organisation;

 

2. by a legal practitioner, but only when all the parties, other than the Government, are represented by legal practitioners (underlining mine).

4. Relying on the above Section, and the decision of the Labour Appeal Court in Lenka Mapiloko v Pannar Seed Lesotho (Pty) Ltd[1] in which the Court held that legal representation is only permissible where both parties are represented by lawyers, this Court upheld this objection. The union had argued that it did not have sufficient funds to engage the services of a lawyer. Dissatisfied with the Court’s ruling, the respondent approached the Constitutional Court challenging the constitutionality of this Section and insisting that it had a right to legal representation entrenched in Chapter 11 of the Constitution of Lesotho,  Sections 4 (1) (h) and 12 (8).

5. The matter was then held in abeyance pending the determination of the constitutionality or otherwise of Section 28 (1) (b) of the Labour Code Order, 1992 by the Constitutional Court. The latter handed down its judgment in Constitutional Case No. 4 of 2009 on 15^th October, 2010 declaring the said Section unconstitutional and further that the respondent had a right to legal representation. This ruling was confirmed by the same Court in its later decision of  Security Lesotho (Pty) Ltd v Lebohang Moepa and 4 Others[2] where it held that:-

by permitting a party to a hearing before the Labour Court to be represented by a legal practitioner only when all parties are represented by legal practitioners, Section 28 (1) (b) of the Labour Code Act, 1992 is inconsistent with Section 12 (8) of the Constitution of Lesotho, 1993 which entrenches the right to a fair civil trial.

6. Respondent’s attorneys alerted applicant’s representatives to the judgment by a letter dated 25^th October, 2010 (Annexure “AB 2” to respondent’s papers in this application). Applicant’s union representatives duly signed it to acknowledge receipt thereof. This notwithstanding, there was no reaction from them. Desirous of getting finality to this dispute, the respondent approached this Court with an application to have his claim struck out for want of prosecution pursuant to Rule 7 (2) and (3) of the Labour Court Rules, 1994 which provides that:-

(2) Subject to sub-rule (3), the Court may upon application by the respondent, or of its own motion, order any originating application to be struck out for want of prosecution.

(3) Before making an order under sub-rules (1) or (2), the Court shall send notice to the party against whom it is proposed that any such order shall be made, giving him an opportunity to show cause as to why such an order should not be made.

7. The applicant was duly served with Court processes initiating the application for non - prosecution dated 10^th November, 2014 at the offices of his union which were signed for by a union representative on 11^th November, 2014. Respondent’s Counsel informed the Court that in an effort to have the matter heard and finalised, his office served the applicant’s union with a letter dated 9^th April, 2015, in which they invited them to approach the Registrar of this Court for a date of hearing, but they never pitched up. This was despite them not being dominus litis. He indicated further that they made two other attempts to persuade the applicants to have the matter set-down for hearing through two more letters 17^th February, 2015 and 27^th February, 2015, and still no response was forthcoming.

8. The respondent ultimately filed an application for the striking out of applicant’s action for want of prosecution, which is the subject of the present application. The Registrar through a “Notice of Hearing” dated 13^th April, 2015 informed both the applicant and the respondent that the application to strike out would be heard on 19^th May, 2015, about one month’s notice and still there was no reaction on applicant’s part.

STRIKING OUT FOR WANT OF PROSECUTION - THE LEGAL TEST

9. The leading case on want of prosecution is a British  Court of Appeal decision of Allen v Sir Alfred McAlpine & Sons[3] which laid out three requirements for an application for want of prosecution to succeed as:-

1. an inordinate delay;

 

2. that this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable; and that

 

3. the defendants are likely to be prejudiced by the delay - Birkett v James.[4]

 

This judgment was cited with approval by Lyons AJ in the decision of the High Court in The Liquidator, Lesotho Bank v Flora Selloane Seleso.[5]

 

10. It was respondent’s case that the applicant failed to take steps to prosecute its case from 15^th October, 2010 when the Constitutional Court delivered its judgment to the date of hearing of the application to strike out on 19th May, 2015. This they contended represented a delay of five years, which they considered unreasonable, and brought them to the conclusion that the applicant had lost interest in the matter. They pointed out further that the uncertainty continues to prejudice them, and therefore prayed that the lawsuit instituted against them by the applicant be struck out for want of prosecution.

 

11. The principle underlying procedures such as striking out for want of prosecution or default judgments is that there should be finality to litigation. Hence the maxim, interest reipublicae ut sit finis litium (Latin word meaning that in the interest of society as a whole, litigation must come to an end).[6] Matters should be proceeded with within a reasonable time. At the end of it all, it is a question of fairness to all parties to the dispute. In the employment context, every applicant would want to have his or her case disposed of as expediently as possible so as to know whether he or she would have to look for another job if he or she has been dismissed.

12. From the point of view of the employer, it is important to know as early as possible whether he or she could be required to reinstate an employee whose employment has been terminated so as to prepare himself or herself for that eventuality. Again, for smooth operations, employers cannot leave positions vacant for a very long time. Speedy resolution of disputes is therefore very critical in facilitating such orders as an order of reinstatement.

13. In order to guarantee speedy dispensation of justice, the Constitution of Lesotho[7] provides:-

 Right to fair trial

Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within reasonable time (emphasis added).

14. The words of Justice Gow in the Canadian case of Lindholm v Pollen[8] are inspirational when he wrote that:- 

 

The animating principle lying back of any system of administration of justice is that litigation be proceeded with diligence and expedition. This principle is expressed in (the rules of court) that the object of the Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits and echoed in s. 11 of the Charter of Rights and Freedoms, which speaks of the right to be tried within a reasonable time. A just determination can only be attained if an action is tried while the facts are still within the recollection of the witnesses (emphasis added).

 

15. The respondent contended that they were highly prejudiced by the delay and they want to put the matter behind them. It is significant to note that the applicant has prayed for reinstatement and salary arrears dating as far back as April, 2008 to the date of judgment. As aforementioned, the Constitutional Court delivered its judgment on Section 28 (1) (b) of the Labour Code Order, 1992 on 15^th October, 2010 and the respondent filed the current application on 10^th November, 2014 when this matter was heard on 19^th May, 2015. In our opinion, this gave the applicant an ample opportunity to prosecute its case. Besides its failure to prosecute its case, the applicant did not seize the opportunity to defend himself against the application to have his matter struck out despite being duly served with a notice to that effect.

 

16. As a rule, until a credible excuse is made out, the natural inference is that the delay is inexcusable, and as such the applicant bore the onus of proving that the delay in prosecuting his case was reasonable in his circumstances. In arriving at its decision, the Court also considered the numerous letters that the respondent wrote to the applicant’s union requesting it to approach the Court for a date of hearing, but to no avail. Parties’ delays in prosecuting their cases also frustrate the Court’s endeavour to have cases disposed of expeditiously.

 

17. In our view, the applicant denied himself the right to be heard. The Court remarked in the case of Khutlang Mokoaleli v Standard Lesotho Bank and DDPR [9] that:-

 

The court can only give effect to that right in respect of a party that is willing and does utilise its opportunity to exercise its right to be heard.

 

COURT’S RULING

 

Having considered papers filed of record and respondent’s Counsel’s submissions the Court comes to the following conclusion:-

 

1. Applicant’s claim for unfair dismissal is struck out for want of prosecution;

 

2. Costs were only sought in the event of the applicant opposing this application. The applicant having not opposed the application, there is no order as to costs.

 

THUS DONE AND DATED AT MASERU THIS 12^th DAY OF AUGUST, 2015.

 

 

                                           F.M KHABO

                PRESIDENT OF THE LABOUR COURT (a.i)

 

 

•                                                                                I CONCUR
•  

 

 

 

•                                                                         I CONCUR
•  

 

 

FOR THE APPLICANT               :   NO ATTENDANCE

 

FOR THE RESPONDENT           :  ADV., P.P. TS`OSANE - MESSRS WEBBER NEWDIGATE

 

73416623241357.  

 

CITED CASES

 

Allen v Sir Alfred McAlpine & Sons [1969] 1 All ER 543

Lenka Mapiloko v Pannar Seed LAC/REV/153/05

Security Lesotho (Pty) Ltd v Lebohang Moepa and 4 Others Constitutional Case No. 12 of 2014

Birkett v James 1978 A.C 297

The Liquidator Lesotho Bank v Flora Selloane Seleso CIV/T/58/2002

Lindholm v Pollen [1986] 3 BCLR 23

Khutlang Mokoaleli v Standard Lesotho Bank and DDPR LC/REV/21/07

 

150451029943.  

 

Sections 4 (1) (h) and 12 (8) - Chapter 11 of the Constitution of Lesotho

Section 28(1) (b) of the Labour Code Order, 1992

Section 226 (1) (c) (i) of the Labour Code (Amendment) Act, 2000

Rule 7 (2) of the Labour Court Rules, 1994