C OF A
(CIV) NO.1 OF 1995
LESOTHO COURT OF APPEAL
LITHEBE MAKHUTLA APPELLANT
AGRICULTURAL DEVELOPMENT BANK RESPONDENT
appellant took up employment with the respondent on 6 December 1987
as a security guard. On the 19 November 1992 he was dismissed.
appellant thereupon instituted action in the Labour Court challenging
the legality of his dismissal on the following grounds:-
(i) That he was not given a hearing before the dismissal was
(ii) That his employment was terminated by a
who had no authority to do so.
consideration of the evidence both oral and as deposed to in the
affidavits and annexures thereto filed on behalf of the parties,
appellant's application was dismissed by the Labour Court and costs
were awarded against him.
appellant then filed a notice of application dated 29 August 1995 in
the High Court in which he asked that the decision of the
Court be reviewed and set aside. In accordance with the rules
relating to review the rule nisi sought was also to include
on the Labour Court to dispatch the record , of the proceedings to
the High Court for purpose of review within a specified
1st September 1995 i.e. before the parties had even joined issue Mr
Justice M. Lehohla in the presence of only the Appellant's
gave what purports to be a judgment in the following terms:-
4th September, 1995.
declines hearing of matter for lack of jurisdiction" There
follows the signature of the learned Judge. Apart from the
surprisingly terse nature thereof the judgment gives no indication
that the matter was argued before Lehohla J. nor, of , course,
any reasons given for the decision.
against that decision that this appeal is brought.
As I see
the position the questions for this Court to decide are (a) whether
the High Court has jurisdiction to hear review proceedings
respect of a judgment of the Labour Court and (b) Whether the
Application was in fact an application for review and
not an appeal
in disguise. The respondent's Counsel has submitted that Section 38
of the Labour Code, 1992 applies and that that
section ousts the High
Court's jurisdiction to consider review proceedings. Section 38 (1)
reads as follows:-
"38. Awards, decisions final; notice
(1) An award or decision of the Court on any matter referred to it
for its decision or on any matter otherwise falling within its
jurisdiction shall be final and binding upon the parties thereto and
on any parties affected thereby, and such award or decision
be the subject of an appeal in any proceedings or Court."
be readily observed that the section has no bearing on this matter
since it deals specifically with appeals. It is a well
principle of our law that there is a strong presumption that the
legislature does not intend to oust the jurisdiction
of Courts of law
and that a provision in a statute which is to be construed as ousting
such jurisdiction must be clear and unambiguous
in that regard.
Interference with the High Court's jurisdiction can only be effected
by express provision or by necessary implication
and any provision
which purports to limit the jurisdiction of the High Court will be
See Minister of Law & Order v Hurley 1986 (3) SA 568 (A) at 584
A-B, Lenz Township (Pty)Ltd v Lorentz N.O. 1961 (2)
SA 450 (A) at
inherent right of review which is vested in the High Court is well
illustrated in the case of Photocircuit SA (Pty) Ltd v. De
and De Swart No and others 1989 (4) SA 209. In his judgment in the
Cape Provincial Division Friedman J (as he then was)
despite the fact that the Labour Apeal Court had been empowered to
review proceedings of the Industrial Court this did
not deprive the
Supreme Court of its inherent powers of review..
The High Court Act lays down in Section 2(1) that the High Court of
Lesotho shall have "unlimited jurisdiction to hear and
any civil or criminal proceedings under any law in force in Lesotho"
That certainly does not support the submission
made on behalf of the
Constitution in Section 119 (1) provides as follows:-"119, (1)
There shall be a High Court which shall have unlimited original
jurisdiction to hear and determine any civil or criminal proceedings
and the power to review the decisions or proceedings of any
subordinate or inferior court, court-martial, tribunal, board or
officer exercising judicial, quasi-judicial or public administrative
functions under any
such jurisdiction and powers as may be conferred on it by this
Constitution or by or under any other law"
opinion this section puts beyond doubt that the High Court has the
power to review a decision of the Labour Court-whether
that Court be
a subordinate or inferior court properly so called or a tribunal
exercising judicial or quasi-judicial functions.
issue raised by Ms Chimombe on behalf of the respondent is that the
application brought before the Court a quo was really
an appeal from
the Labour Court's decision. She referred to points raised in the
founding affidavit such as the alleged failure
by the 2nd Respondent
to give him a hearing before dismissing him; that he was not given an
opportunity by his employer to prepare
his defence; that he was
dismissed by a person who had no authority to do so. All these
matters were dealt with by the Labour Court,
so Mrs Chimombe
submitted, and therefore to raise them again could only be construed
as an appeal. There seems to me to be substance
in that submission.
What is not characteristic of an appeal, however, is the allegation
in the Appellant's founding affidavit that
the judgment of the Labour
Court went beyond the scope of the issues which, by agreement; it was
called upon to decide and, perhaps
more importantly, that the Labour
Court found facts proved - and specific reference were made to the
recital by the Court in its
of what was referred to as "the saga that led to his dismissal"
- without evidence of such facts having been
led before the Labour
Court. If that is so, and I make no comment thereon, then it was a
misdirection and a procedural irregularity
which were properly matter
for review. This is in contradistinction to issues which are
raised by way of appeal and which
cannot legitimately be considered
under the guise of a review application.
judgment therefore Lehohla J erred in holding that he had no
jurisdiction to hear the review proceedings that were before
that therefore the matter should be remitted to the High Court to
enable that Court to consider the review application
brought by the
appellant. We wish to make it clear that when the matter is heard by
the High Court its jurisdiction is limited
to review the matters set
forth at the foot of page 5 and the first paragraph of page 6 hereof.
result I would make the following order.
appeal is upheld with costs.
matter is remitted to the High Court to enable that Court to hear
and determine the review proceedings brought before it by
Maseru this 19th day of January, 1996.
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