HIGH COURT OF LESOTHO
BATIGNOLLES 1st Respondent
MANAGER (KATSE AREA) 2nd Respondent
COMMANDING - MASERU 3rd Respondent
GENERAL 4th Respondent
by the Honourable Mr. Justice J.L. Kheola on the 3rd day of July,
to the amended Notice of Motion the applicant is now applying for an
order in the following terms:
as null and void the summary dismissal of the applicant's members by
the first respondent.
applicant further and/or alternative relief.
common cause that on the 10th April, 1990 the applicant declared a
trade dispute in terms of the Labour Laws of this country
was a deadlock in the negotiations between the applicant and the
Ministry of Labour appointed two conciliators, Mr. Khotle as the
chairman and Mr. Tau as a member. At the conciliation
there were eight matters that were to be discussed and at the end of
the meeting only three matters remained unresolve
. Mr. Khotle did
ask the parties as to what their attitude was to arbitration. The
first respondent's attitude was that if the
Minister's decision was
that the matter be referred to arbitration they would accept the
Minister's decision and go to arbitration.
Furthermore if the
arbitrator then made an award in excess of their proposed 12%
increase across the board the first respondent
would have no choice
but to pass it to the client. The representative of the applicant
declined to accept arbitration and made
it clear that they would opt
for a strike action. The conciliation meeting took place on the 7th,
8th and 9th May, 1990.
15th May, 1990 the applicant gave notice to the Labour Commissioner
in terms of section 58 of the Trade Unions and Trade
1964 that the members of the applicant would go on strike in four
weeks' time. The letter reads as follows:
Labour Commissioner, Labour Department, Private Bag A 116, MASERU 100
NOTICE OF A LEGAL STRIKE
reference to the deadlocked negotiations between the Construction and
Allied Workers Union of Lesotho and Spie Batignolles,
we hereby wish
to take this opportunity to clarify the position of the said Union as
1. The Union is now giving four weeks notice in
terms of section 58 of the Trade Union and Trade Disputes Law of
1964. The reasons for this notice are as follows:
1.1 Spie Batignolles management clearly
stated that they would not make any move.
1.2 They said they would not change their position unless they are
told by the government or The Arbitrator to offer better wage
1.3 They requested that the matter should be referred to arbitration
because they would claim that from the government.
1.4 The Union does not see any possibility of making any other
settlement through further conciliation mettings with Spie
as the company is no longer prepared to proceed with
negotiations in good faith.
1.5 They in most cases state that they want to offer wages in
accordance with the minimum wage scale as set out by the government.
has because of these reasons been mandated by the members to give
this notice in support of the three outstanding issues
increment, accommodation allowance and monthly transport to and from
Justice Sello Tsukulu, General Secretary.
c.c Spie Batignolles."
it is convenient at this stage to set out in some detail those
sections of the Trade Unions and Trade Disputes Law of 1964
which deal with strikes and lockouts.
55 (1) and (2) provide that:-
within two weeks of the appointment of a conciliator under the last
foregoing section an agreement has not been reached on
matters in dispute, or if, before that time the conciliator considers
that there is no prospect of reaching an agreement,
shall submit a report to the Member setting out the facts and stating
far, if at all, agreement has been reached; and
are in his opinion the issues which remain in dispute; and
arguments used for and against the contentions of the parties.
Member, on receipt of a report under sub-section (1) of this section
shall either proceed to serve on the parties a notice
under the next
following section or appoint the Labour Commissioner or some other
person to act as additional conciliator and
make further endeavours
to arrive at an agreement."
56 (1) provides that:-
notice mentioned in the last foregoing section to be served by the
Member shall be a notice –
what are in his opinion the issues between the parties; and
the parties whether they agree to those issues being referred to and
determined by arbitration."
58 (1) and (2) provide that:
the Member has, under section fifty-five of this Law, served notice
on the parties to a trade dispute either party may'
arbitration or may serve on the Member and on the other party a
notice refusing consent to arbitration.
notice refusing consent to arbitration may also contain a statement
of intention to declare, at the expiration of four weeks
service of such notice, a strike or as the case may be a lockout in
furtherance of the dispute."
59 provides that:-
"A strike or lockout carried out in accordance with a statement
of intention notified under the last foregoing section is
other strike or lockout is unlawful."
quite clear that the notice given to the Labour Commissioner on the
15th May, 1990 was premature. At that time the Minister
considering the report of the conciliators and had not yet given
notice to the parties in terms of section 56 of the
applicant could not give notice to take a strike action before the
Minister had given them notice and asked them whether
accept arbitration. On the 21st May, 1990 the Labour Commissioner
warned the applicant that in his opinion the notice
was premature and
not in accordance with section 58 (2) of the Law. He advised the
applicant not to call a strike unless and until
the lawful machinery
to settle trade disputes has been completely exhausted.
be said that on the 15th May, 1990 when the applicant purported to
give notice to the Minister in terms of section 58
(2) of the Law all
lawful machineries to settle trade disputes had been completely
exhausted. The Minister was still entitled under
section 55 (2) of
the Law to appoint the Labour Commissioner or some other person to
act as an additional conciliator and make
further endeavours to
arrive at an agreement or to refer the dispute to arbitration.
applicant's notice of the 15th May, 1990 was premature, unprocedural
31st May, 1990 the Minister indicated that he had received the report
of the conciliators and noted that out of issues which
dispute a deadlock was reached on three or He asked the parties
whether they agreed that the remaining issues should be
arbitration in terms of section 56 (a), (b) of the Law.
paragraph 3 (g) of his affidavit Sello Tsukulu who is the
General-Secretary of the applicant deposes that on the 4th June, 1990
the Minister wrote to the parties to the dispute and asked them
whether they would consent to arbitration or not. He deposes that
applicant reiterated its earlier position that it would go on a
applicant ought to have realized when it received the Minister's
notice that its own notice was premature. A new notice ought
been issued by the applicant on the 4th June, 1988 and the four weeks
period prescribed by the Law would expire on the
2nd July, 1990.
Instead of issuing a new notice the applicant merely reiterated
what it had already said. That reiteration
had no effect on the
earlier notice which was null and void. The strike action which
followed that notice was also unlawful and
premature. As I have
already said above the applicant ought to have issued a new notice on
the 4th June, 1990 when it received
the notice of the Minister.
founding affidavit Sello Tsukulu stated in no uncertain terms that on
the 15th June, 1990 the workers went on strike. He
paragraph (j) that –
"On the 15th June, 1990 workers decided to stop working in
pursuant of the strike declaration made. I saw senior staff members
of the 1st respondent leaving the KATSE area. The Project Manager
said they had no mandate to talk to us. I however told MR. MOLAO
if he brought supervisors who hold work permits the workers may
paragraph (n) he deposes that –
"I further submit that since the notice of intention to declare
a strike was not nullified the workers were entitled to proceed
the strike and further the workers could not be forced to obey orders
from unlawfully employed supervisors."
I am surprised that his so-called supplimentary affidavit Sello
Tsukulu now gives the impression that the workers were prepared
to work on the 15th June, 1990 but that Warrant Officer Motenalapi
told him "that management had requested him to stop
getting into the office site as there might be a strike and so police
must stop any person from getting inside the
13th June, 1990 the workers unanimously decided that they would
proceed with the strike if management did not negotiate in
with the applicant and also if the management did not bind itself
that it would discipline or dismiss supervisors who
It will be realized that these new demands by the applicant's members
were not covered by the unresolved issues
which were contained in the
Minister's notice namely, 1. Monthly transport to and from Maseru, 2.
Accommodation allowance and 3.
Wage increase demand.
strike was on on the 15th June, 1990 is confirmed by the applicant in
its letter of the 16th June, 1990 addressed to the
(This letter is on page 74 of the record). In that letter the
applicant strongly warned the first respondent not
to_ employ scab
labour. It was alleged that such a move would be met with the utmost
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