C. of A
.(CIV.No . 15of 1984

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of:

LESOTHO
UNION OP BANK EMPLOYEES

(LUBE)
(BAHLAKOANA MOLIKO) Appellant

and

STANDARD
BANK LIMITED Respondent

HELD AT
MASERU

Coram:

MAHOMED
J.A.

AARON
J.A.

WENTZEL
J.A.

JUDGMENT

Wentzel
J.A.

The
appellant Trade Union seeks leave to appeal to this Court against the
judgment of Molai J in the High Court, in which the learned
Judge
upheld respondent's appeal against an order made by the Unfair Labour
Practices Tribunal. ("the Tribunal").

Mr. B.
Moliko ("Moliko") was employed as an Assistant Manager by
the respondent. His services were terminated on 31st
May, 1982.
Moliko was a member of the appellant, which then brought an
application to the Tribunal, in which it alleged that the
termination
was an act of victimization by virtue of that membership, and
constituted an unfair labour practice as is defined in
Section 61(2)
of the Trade Unions and Trade Disputes Act 11 of 1964. ("the
Act").

2

The
issues was very fully canvassed in the Tribunal. The proceedings
there started by way of three sets of affidavits, as in motion

proceedings, and thereafter evidence was given viva voce. In the
result the Tribunal, by a majority, made an order that

1. "Respondent
   must restore the position of Mr. Moliko, i.e. Mr. Moliko must be
   reinstated to the position he held before he
   was dismissed. It was
   made clear at the beginning of these proceedings in July last year
   that Mr. Moliko was still unemployed
   and awaiting the outcome of
   this case. His reinstatement is not going to force him to leave
   another job.

   
   

2. Compensation:
   Respondent must pay Mr. Moliko the sum of M14,640.32 being loss of
   earnings from 1st June, 1982 to 14th April, 1933,

   
   

3. Respondent
   must pay costs on the High Court Scale."

   
   

Unfair
Labour Practices are dealt with in Part XI of the Act, The relevant
provisions are these –

"Section 61(1) If a person discriminates against any person, as
respects the employment or conditions of employment which
he offers,
because that person is a member or officer of a trade union, he is
guilty of an unfair labour practice,

2. If a
   person seeks by intimidation, by dismissal, by threat of dismissal,
   or by any kind of threat, by imposition of a penalty,
   or by giving
   or offering to give a wage increase or any other means, to induce an
   employee to refrain from becoming or continuing
   to be a member or
   officer of a trade union he is guilty of an unfair labour practice.

   
   

Section
66(1) There shall be a tribunal, to be called the Unfair Labour
Practices Tribunal, and the provisions of the Second Schedule
to this
Law shall have effect as respects its constitution and proceedings

2. The
   Tribunal shall have jurisdiction to enquire and determine, in cases
   brought before it in accordance with its rules of procedure,
   whether
   a person has. engaged in any unfair labour practice as defined in
   this part of this law, and to make such orders as are
   provided for
   by this Part of this law.

   
   

3

Section
67(1) Where the Tribunal finds that a person has engaged in an unfair
labour practice, they may, if they think fit, make
an order
forbidding him to engage in any such activities as they may specify
in the order as being a continuance or repetition
of the unfair
labour practice.

2. Where
   the Tribunal finds that a person has engaged in an unfair labour
   practice under section sixty-one of this law which
   involves the
   termination of employment of an employee or the alteration of his
   employment or of the conditions of his employment,
   the Tribunal
   may, if it thinks fit, make an order requiring his employer –

   
   

1. to
   take such steps as may be specified in the order to restore the
   position of the employee; and

   
   

2. to
   pay to the employee a sum specified in the order by way of
   compensation for any loss of earnings attributable to the
   contravention.

   
   

4. An
   order of the Tribunal under this section shall have effect as if it
   were a judgment of a Subordinate Court and may be enforced

   accordingly in proceedings in a Subordinate Court notwithstanding
   the amount involved.

   
   

Section
68 A person against whom the Tribunal makes an order under the last
foregoing section may, within twenty-one days of making
of the order,
appeal to the

High
Court –

1. on
   the ground that there was

   
   

no evidence before the Tribunal to support a finding of an unfair
labour practice; or

2. on
   the ground that the order was not justified;

   
   

Appellant's case was based specifically on S.61(2). To succeed,
appellant had to prove before the Tribunal that

1. there
   had been either intimidation, dismissal, a threat of dismissal, or
   any kind of threat, the imposition of a penalty, the
   giving or
   offering to give a wage increase, or any other means, and

   
   

2. the
   respondent sought to use the aforegoing means to induce an employee
   to refrain from becoming or continuing to be a member
   or officer of
   a trade union.

   
   

(Holiday
Inn vs Makhooane & Others 1976 LLR.225)

4

From a
reading of the Tribunal's judgment, it appears very doubtful whether
the Tribunal sufficiently appreciated that appellant
had to prove the
two separate elements in Sec. 61(2) to which I have just referred. Be
that as it may, the Tribunal came to the
conclusion that the
respondent had engaged in an unfair labour practice, and made the
consequential order referred to above. The
respondent appealed to
Molai J who upheld the appeal on the ground "that there was no
evidence to support the finding of unfair
labour practice". In
doing so Molai J brought his findings on appeal within the
terminology of Section 68 of the Act; I shall
ever hereunder,
however, to the approach and reasoning of the learned Judge.

The
appellant now seeks the leave of this Court to appeal against the
High Court's judgment. To do so appellant must have the leave
of the
High Court or of this Court, and the appeal must be on a question of
law and not on a question of fact (Court of Appeal
Act No.10 of 1978
Section 170.

A
reference to the affidavit of Mr. Ntabeni on behalf of the appellant
in support of the appellant's application for leave to appeal
is
revealing. The grounds of appeal are tabulated. They start with what
can be called the traditional one, namely?

"No reasonable Court properly directed would have found for the
respondent"

Thereafter,
however a are a list of complaints which effectively invite this
Court to rehear the matter on the facts asif it were
a first appeal.

During
this session in a number of matters, this Court has had occasion
pertinently to refer to Section 17 and to the limits it
places on the
ambit of second appeals (see Matooane vs Phillip C of A. (CIV)/APN
No.10 of 1984; Molapo v.Rex, C. of A. CRI/APN
No.5 of 1984).

5

The Court
raised the issue with Mr. Kuny S.C., who with Mr. Sello appeared for
the appellant and invited them to formulate precisely
the question of
law. After an adjournment he did so and Mr.Beckley (who appeared for
the respondent) agreed with the question as
stated to us by Mr.Kuny.

The
question as formulated by Mr.Kuny was –

"Whether any reasonable appellate Court properly directed as to
its powers in terms of Section 68(a) of Act 11 of 1964, should,on
the
evidence before the Labour Relations Tribunal, have come to the
conclusion to which the High Court came, namely that there
was no
evidence before the Tribunal to support a finding of unfair labour
practice in terms of Section 61(2}".

During
argument that was somewhat modified to two related questions namely –

1. did
   the learned Judge misdirect himself in the appeal? and if so

   
   

2. whether
   a reasonable Court properly directed should have found, on the
   evidence before the Tribunal, that there was no evidence
   to support
   the finding that there was an unfair labour practice in terms of
   Sec, 61(2)?

   
   

I proceed
to consider first whether the Judge a quo. misdirected himself. The
power of the Court a quo to hear an appeal derives
from Sec. 68 of
the Act, This specifies only two grounds upon which an appeal can be
brought. The second of these is "that
the order was not
justified". If this is to be given a wide and unrestricted
meaning, it would make the first ground redundant.
Obviously some
limitation is necessary. The nature of this limitation appears from
the words of Sec. 37(1). This provides that
the Tribunal must first
make a finding that a person has engaged in an unfair labour
practice, and may thereafter make an order.
This gives a clue to the
construction of Sec.68. The ground mentioned in paragraph (a) relates
to the Tribunal's finding, while
the ground mentioned in paragraph
(b) is confined to the consequential order.

6

It
follows that in relation to the Tribunal's finding, the High Court
was confined by Section 68(a) to the question whether there
was no
evidence to support the Tribunal's finding. "No evidence",
as Roper J pointed out at p.403 F in R. vs Kritzinger
& Others
952 (2) SA 401, does not mean no . Scintilla of evidence, but no
evidence upon which a reasonable man might make the
finding.

A fair
reading of Molai J's judgment indicates to me that he, in fact,
retried the facts presented to the Tribunal I do not consider
that it
is necessary for me to analyse this judment in detail, but, by way of
example, on the question as to who was to be believed
on the issue of
whether Bedingham (the Manager) asked Moliko whether he was on the
side of the union or the management, (whether
it was, essentially the
word of the one against the word of the other), the learned Judge
puts it thus –

"One should, therefore, be rather reluctant to be too quick to
interfere with the finding of the Tribunal".

That is
the approach to be adopted in a full appeal on facts, but the
question which ought to have been present to the mind of Molai
J was
simply whether there was "no evidence" to support the
finding.

The High
Court, moreover did not confine itself to a consideration of the
conflicting versions of the faces presented to the Tribunal.
Molai J
examined the issue whether Moliko's participation in a ban on
overtime was lawful because, so he reasoned, if it was, the

respondent was entitled to dismiss him. The learned Judge after
considering the provisions of the Essential Service Arbitration
Act
No.34 of 1975 concluded that the ban on overtime was an illegal
strike in which Moliko had participated and that the respondent
was
entitled to dismiss him.

7

Whether
that be so or not as a legal proposition (and I am not called upon to
decide it) this was not the respondent's case before
the Tribunal, It
is true that, in its answering affidavits, the respondent averred
that the banning of over­time was a breach
of the law (The
Essential Services Arbitra­tion Act and the Employment Act), and
the respondent claimed that the termination
of appellant's services
was in accordance with the terms of the agreement between appellant
and respondent, and also in accordance
with the Laws of Lesotho.
However, in presenting respondent's case, Mr. Bedingham took the
stance that Moliko was not dismissed
simply for refusing to work
overtime or participating in the ban on so doing, but because he was
not completing his duties and
was not cooperating with management.
Respondent was at pains to stress that Moliko's adherence to the
appellant's decision to ban
overtime was not the reason for his
dismissal,

The
Tribunal considered this evidence and the The Essential Services
Arbitration Act, and it came to the conclusion that the reasons

advanced by the respondent for the dismissal, involving as they did a
criticism of Moliko'o performance as an employee, were nothing
more
than a charade, and that the real reason why Moliko was dismissed was
his membership of appellant.

The
question which the High Court was empowered in law to ask was whether
there could be said to be no evidence to support that
finding. That,
however, was not Molai J's approach. I find, therefore, that he
misdirected himself in his approach to the Tribunal's
finding.

We are
next put to the task of determining whether there was evidence upon
which a reasonable man night have found an unfair labour
practice in
terms of Section 61(2) of the Act as I have analysed it.

8

In the
first place, I see no room for holding that the inducement by threats
and the like must be directed at the very same employee
who may be
induced to refrain from becoming or continuing to be a member of a
union Thus I consider that to make an example of
A, by dismissing
him, in order to induce B,C, & D., falls within the terms of
Section 61(2). The words are wide (cf. "any
other cleans"),
the statute is conceived in the public interest, and is remedial in
scope. We should not be astute to cut
down the remedy. Kinekor Films
(Pty)Ltd. vs Dial -A- Movie 1977 (1) SA 450 AD (at 461 B -D).

Evidence
was placed before the Tribunal to the effect that

1. During
   February, March and April 1982 there was industrial action taken by
   appellant Union against the banks;

   
   

2. Moliko
   was an active member of the Union and participated in the February
   strike;

   
   

3. He
   was thereafter elected to a panel of Union members to negotiate with
   the management of the two banks on salary increases;

   
   

4. The
   Management of respondent refused him permission to attend the
   negotiations;

   
   

5. On
   the 8th of April 1982 Mr. Bedingaam asked Moliko whether he was on
   the side of the Union or on the side of management. Moliko
   said he
   was on the side of the Union;

   
   

6. It
   was after this meeting that he began to receive letters of complaint
   about the performance of his work;

   
   

7. In
   his oral evidence (as recorded on p.56 of the record before the
   Tribunal) he said

   
   

"The main case was to build a case for my dismissal and to force
me to resign from the Union...... .".

It is
open to some doubt whether all the evidence before the Tribunal
established, on a balance of probabilities, that

9

there had
been an unfair labour practice within the meaning of Section 61(2),
but that is not the enquiry before an appellate Court.
It is confined
to the question whether a reasonable man might have found, on the
basis of such evidence, that an unfair labour
practice within the
terms of Section 61(2) had been established. On this test, the answer
must be in the affirmative,

I
therefore conclude that the High Court erred in upsetting the
Tribunal's finding.

The next
issue related to the consequential order made by the Tribunal.

We have
decided that we are not entitled to disturb the Tribunal's findings
that the unfair labour practice has been established.
Ordinarily that
might imply that its compensatory order should stand. However, the
order was made for the period 1.6.82 to 14.4.83.
We do not know what
has happed since then namely whether Moliko has been re-employed or
not and whether the respondent has filled
the position or not. It
would not be appropriate for Moliko to be prejudiced by the delay
caused by an appeal in which the appellant
has succeeded. The
remedies provided in Section 67 are equitable and the discretion
given is a wide one. Reference may be made
here to the criteria
referred to by Cotran, C J in Holiday Inn v Makhooane & others,
1976 LLR 225. We are not in possession
of the facts in their entirety
as they now are, and thus cannot form a view as to whether
rein­statement is still appropriate,
and whether the order for
monetar compensation made by the Tribunal fits the situation. The
Tribunal is the appropriate body to
decide these matters.We propose
therefore to refer the matter back to the Tribunal to consider again
the order it made, both as
to compensation and as to reinstatement.
Naturally the fact that apppellant has

10

succeeded
must imply that the reconsideration by the Tribunal should not result
in an order less favourable to Moliko but the issues
of whether
reinstatement is Still appropriate and if so whether M14 640,32 is
then the appropriate monetary compensation, should
be considered
afresh, and if reinstatement is than held not to be appro­priate
the Tribunal should consider what sum for compensation
is in that
event fitting.

In the
result

1. The
   appeal is allowed with costs, including costs in the High Court.

   
   

2. The
   order made by the Tribunal as to rein­statement and compensation
   is set aside and the matter is remitted to the Tribunal,
   for
   reconsideration in the light of the remarks made in this judgment.

   
   

Signed : E.M.Wentzel

E.M. WENTZEL

Judge of Appeal

I agree
Signed : I.Mahomed

I, MAHOMED

Judge of Appeal

I
agree Signed : S.Aaron

S. AARON

Judge of Appeal

Delivered
this 29th day of January 1905 at MASERU.

For
Appellant : D. Kuny and K. Sello

For
Respondent : A. Beckley