C. of A.
(CIV) No.2 Of 1985

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

LESOTHO
CONGRESS OF FREE

TRADE
UNIONS Appellant

and

TSELISO
RAMOCHELA 1st Respondent

SEABATA
LEKHABANE 2nd Respondent

AGNES
LIMEMA 3rd Respondent

HAPE
TSAKATSI 4th Respondent

HELD AT
MASERU

CORAM:

Schutz P.

Aaron
J.A.

Wentzel
J.A.

JUDGMENT

Aaron
J.A.

The
background to the present dispute is to be found in the attempts that
have been made over the years in this country to establish
one
federation of all the trade unions. These attempts have already led
to litigation in the High Court between two factions (Lesotho

Federation of Trade Unions v. Raymond Mothepu and 4 Others,
CIV/APN/230/83 (unreported)). It is advisable, before I come to set

out the issues in the present litigation, briefly to summarize the
facts which constitute this background as they appear from the

affidavits which have been filed herein, and the annexures thereto.

1. Prior
   to 1984 there existed two federations of trade unions, viz. the
   Lesotho Federation of Trade Unions (LFTU) (which had previously
   been
   called the

   
   

2

Basutoland Federation of Labour), and the Lesotho Council of Workers
(LCW). It appears from the papers that the former body was

established in 1962. At that date the law in force was the Trade
Union and Trade Disputes Proclamation No.17 of 1942, together
with
the Trade Union Registration Regulations of 1949 which were
promulgated thereunder. These laws, although providing for the

registration of individual trade unions, made no statutory provision
for a federation. It follows that when the Basutoland Federation
of
Labour (BFL) was formed, it had no statutory recognition, although it
existed as a voluntary association.

There is nothing on the papers to indicate when the LCW was formed,
but its status appears to have been no different from that
of the
LFTU.

2. In
   1965, a new statute came into operation, namely the Trade Unions &
   Trade Disputes Law, No.11 of 1964. This introduced for
   the first
   time the concept of a federation of trade unions. (See the
   definition in s.2, and the provisions of ss.30 and 31).
   It would
   seem, however, that the status of neither the LFTU nor the LCW was
   regularized under the new law.

   
   

3. During
   1983, negotiations were conducted with a view to establishing one
   umbrella organization to which all the trade unions could
   affiliate.
   In January 1983, a meeting was held between the LFTU and the LCW,
   which was regarded by some as having brought about
   a merger of the
   two bodies. This view was not shared by the LFTU, and this led to
   the litigation referred to above, in which
   COTRAN, CJ held that no
   effective merger had taken place.

   
   

4. Thereafter
   a fresh attempt to create an umbrella organization was made. On 11th
   December 1983 a meeting was held at the Roman
   Catholic Centre,
   attended by 58 delegates, representing 14 trade unions, at which a
   decision was taken to establish a new federation
   of trade unions, to
   be known as the Lesotho Congress of Free Trade Unions (LCFTU). It
   was decided to apply for registration of
   the federation under the
   law, to establish a provisional committee, and to call

   
   

a fuller conference during 1984, which it was hoped would be attended
by all the trade unions.

The larger conference was in due course held at the Airport Hotel.
This was on 27th May 1984. It was attended by 230 delegates

representing

3

26 trade unions. This conference affirmed the decision to establish
the LCFTU, adopted a constitution, and agreed that the provisional

committee remain in office for a further period of time.

5. Decisions
   taken at this conference could of course not in themselves put an
   end to the existence of the LFTU or the LCW. That
   would require
   action by those bodies themselves.

   
   

This appeal has to do with the action subsequently taken in the case
of the LFTU.

There are 8 trade unions affiliated to the LFTU. 6 of these applied
for affiliation to the LCFTU, but the remaining 2 - the Lesotho

General Workers Union and the Lesotho Typographical Workers Union
-did not.

On 14th August 1984, the Executive Committee of the LFTU sent a
circular notice to its affiliated members calling an extraordinary

conference on 14th October 1984. This circular stated, inter alia,
that "the objective of this conference is to come and solve

problems the LFTU is faced with, and the amalgamation of trade unions
in Lesotho".

5. (f)
   It appears that the Extraordinary Conference duly convened on 14th
   October 1984, but that matters did not go smoothly. The
   meeting was
   due to start at 9 a.m., but in fact it commenced only at

   
   

11 a.m. At that point in time, there were 73 delegates present,
representing 8 unions. Soon after the meeting had started, the

chairman, Mr. Ramochela, adjourned the conference, and together with
other members of the executive committee left the meeting.
Those who
remained behind considered that the chairman was not justified in
closing the meeting; they decided to elect a new chairman,
to adopt
an amended agenda, and to proceed with the meeting. At the end of
this meeting, a number of resolutions were taken by
the persons
remaining. Included amongst the resolutions were the following:-

3. "Resolve
   that in terms of Lesotho Federation of Trade Unions (LFTU)
   constitution Article 17, we meeting here today 14th October
   1984, do
   formally dissolve the Lesotho Federation of Trade Unions (LFTU);

   
   

4. Resolve
   that all national unions formerly affiliated to Lesotho

   
   

4

Federation of Trade Unions which have not as yet registered with the
mother organization namely Lesotho Congress of Free Trade
Unions, are
kindly requested to affiliate with immediate effect;

3. Resolve
   that ail assets and liabilities movable and immovable property owned
   by Lesotho Congress of Trade Unions be forfeited
   to Lesotho Congress
   of Free Trade Unions (LCFTU)".

   
   

5. Subsequent
   to this meeting, the General Secretary of the LFTU, Mr Sabbath
   Moreke, handed over certain property of the LFTU to
   the LCFTU. This
   was mainly office furniture and equipment and included a filing
   cabinet.

   
   

Against
this background, I now come to deal with the issues raised in the
present proceedings. These proceedings were instituted
because the
four respondents, who were all office bearers of the LFTU, did not
accept the validity of the resolutions passed at
the continuation of
the meeting of 14th October 1984. They hold the keys to the cabinets
which were in Mr. Moreke's office, and
refused to hand them over to
the LCFTU.

The
appellant, which is the Lesotho Congress of Free Trade Unions, then
applied to the High Court for a rule nisi calling upon the
four
respondents to show cause, if any, why –

1. they
   should not be directed to desist from holding themselves out as
   office bearers of the LFTU;

   
   

2. the
   LFTU should not be declared as having been dissolved by its
   Extraordinary Conference held on 14th October 1984;

   
   

3. the
   assets which the LCFTU received in terms of the resolution passed on
   14th October 1984, should not be declared legitimate
   property
   belonging to the LCFTU;

   
   

5

4. the
   respondents should not be directed to produce the keys to the
   cabinets in the office formerly used by Monske, and hand them
   over
   to applicant;

   
   

5. the
   respondents should not be ordered to pay the costs of the
   application.

   
   

The
founding affidavit was comparatively short. It was made by one
Mothepu, as a duly authorized representative of the LCFTU. He
deposed
that he had attended the Extraordinary Conference of the LFTU held on
14th October 1984, as an observer. He related what
had happened
there, and annexed the minute of the meeting to his affidavit. In
effect, applicant asked the High Court to give effect
to the
resolutions passed at the meeting.

The main
opposing affidavit was filed by first respondent, Mr. Ramochela, who
was the President of the LFTU. Basically the defences
taken in the
opposing affidavit were the following:

1. he
   denied that the appellant is a federation registered in terms of Law
   11 of 1964, and accordingly denied that it is a legal
   persona
   capable of passing resolutions to institute legal proceedings;

   
   

2. he
   denied that the LFTU had ever been dissolved. While admitting that
   the Executive Board decided to hold a conference, he went
   on to
   state that it was necessary in terms of the constitution for the
   Executive Board to meet thereafter in order to decide
   on the agenda
   for the extraordinary conference. He stated that no valid meeting of
   the Executive Board could be held because
   no quorum was present. He
   explained that the document annexed to the founding affidavit, which
   had been sent out on 8 October
   1984, and which is alleged to have
   been the agenda, was nothing else but a proposed agenda which was to
   have been submitted to
   the Executive Board, but which it did not
   adopt;

   
   

3. he
   went on to state that although a number of people assembled with a
   view to holding the

   
   

6

extraordinary conference on the 14th October 1984, he as Chairman had
no alternative but to declare that the conference could not
proceed,
because the Executive Board had failed to decide on an agenda to
submit to the meeting;

4. he
   stated that he was not able to deal with what had happened at the
   meeting after he had left it, but referred to Article 17
   of the
   Constitution, and averred that the conference and its decisions,
   including those for the dissolution of the LFTU and for
   the transfer
   of its assets to the applicant, were invalid and of no legal force
   and effect in the circumstances.

   
   

When the
matter came before the High Court on the return day of the rule nisi,
the point in limine relative to the legal personality
of the
applicant was dismissed. The learned judge next dealt with the
question whether the first respondent had acted constitutionally
in
calling off the Extraordinary Conference. In doing so, he considered
whether the document circulated on 8th October 1984 was
in fact an
agenda, or merely a proposal for an agenda. He found that it was an
agenda, properly drawn up by the Executive Board
for the
consideration of the Extraordinary General Conference, and that the
calling off of the conference by first respondent had
been
unconstitutional.

He went
on to hold that the meeting was entitled to carry on after first
respondent and the other members of the Executive Board
had walked
out, and to pass the resolutions which were passed. But
notwithstanding these findings, he dismissed the application.
He did
so on the ground that there had been non-compliance with the
provisions of s.38 of the Trade Unions & Trade Disputes
Law,
1964. This section requires that when a trade union is dissolved,
notice

7

of such
dissolution shall within fourteen days of the resolution, be sent to
the Registrar of Trade Unions, and that the dissolution
shall be
registered by him if he is satisfied that the dissolution has been
effected in accordance with the rules of the trade
union. As there
was no allegation that notice of the dissolution of the LFTU had been
sent to the Registrar, the learned judge
held that the resolution had
lapsed and was no longer effective.

Against
this decision, the applicant appealed, contending that as the LFTU
had never registered under the Trade Union & Trade
Disputes Law
of 1964, s.38 of that law did not apply to it. On 26th July 1985 this
Court dismissed the appeal, indicating that
its reasons for so doing
would be given later. These are the reasons.

When the
matter came before us on appeal, it was pointed out to Mr. Gwentshe
who appeared for the appellant, that although it appeared
prima facie
that there was substance in this particular ground of appeal, there
appeared to be a number of other grounds on which
the High Court
could have dismissed the application, and he was invited to deal with
these. In view of the decision to which we
have come, it is not
necessary to deal with all these points. I shall deal only with those
which are necessary for a determination
of this appeal.

The first
point relates to the locus standi of the applicant to apply for the
relief claimed in the application. 1 do not use locus
standi in the
sense of whether appellant is a duly registered federation, it has
the right to intervene in the affairs of another
federation of trade
unions. The extraordinary conference of the LFTU held on 14th October
1984 was a meeting of the 8 trade unions

8

affiliated
to that body. They were bound together by a constitution, which
regulated their relationship inter se. When these 8 trade
unions met
together in conference, and passed resolutions (assuming for the
moment that the resolutions were duly and validly passed),
they were
regulating their internal affairs, and instructing their officials
and affiliates as to what they should do. They were
not binding any
outside bodies, nor were they contracting with any outside bodies.

If the
proceedings at the Extraordinary Conference were irregular in any
way, then any member of the LFTU had a legal right to take

appropriate action including, if necessary, the institution of legal
proceedings. But no outside body, which was not a member or
affiliate
of the LFTU, could take such action. Mr. Gwentshe conceded in
argument that as an observer, Mr. Mothepu had no right
to vote at the
conference. Similarly, he would have had no right to object to
anything which was done at the meeting. Assuming
that he was entitled
to be present as an observer (a point not conceded by respondents),
all he would have been entitled to do
was to watch and listen.

When a
dispute arose as to whether the chairman was within his
constitutional rights in purporting to close the meeting, or as to

whether the meeting was entitled to carry on and pass resolutions, or
whether the resolutions passed by the meeting were validly
passed, no
person or body which was not a member of the LFTU was legally
entitled to take any action in connection therewith. The
appellant is
not a member of the LFTU; it is a rival federation. In the
circumstances, it had no legal right to apply to the High
Court for

9

the
relief set out in prayers (a), (b) or (d) of the Notice of Motion.
These prayers in effect seek orders implementing the resolutions

passed at the Extraordinary Conference, and involve the question
whether the resolutions were validly passed. Appellant's interests

may be affected by a decision on these matters, but it has no legal
rights capable of enforcement arising therefrom.

Mr.
Gwentshe urged two points upon us. First, he contended that a number
of trade unions which had been affiliated to the LFTU were
now
affiliated to the appellant and he claimed that appellant was
protecting their rights in coming to court. It is correct that
these
individual trade unions would have the necessary locus standi had
they moved the court in their own names; but the mere fact
that they
have now affiliated to appellant does not give appellant any right of
its own to apply to court. It does not claim to
do so as an agent on
behalf of certain named trade unions which are members of the LFTU.
This argument accordingly does not assist.

The
second argument advanced by Mr. Gwentshe was that the resolution
which dealt with the transfer of the assets and liabilities
of LCTU
to appellant was a stipuiatio alteri, a contract for the benefit of a
third party, namely, appellant, and that appellant
was accordingly
entitled to enforce it, and to claim delivery of the assets. The
fallacy in this argument is that a resolution
passed at a meeting is
not a contract. It is merely a private and domestic procedure, a
decision which determines what action is
to be taken in the future.
It is not intended that the decision itself will confer any
enforceable rights upon persons not

10

present
at the meeting or who are not members of the association. This
argument therefore also fails. It follows that appellant
should not
have succeeded on claims (a), (b) or (d) of the notice of motion.

The
position as far as claim (c) is concerned is somewhat different,
inasmuch as certain action was taken by the general secretary
of the
LFTU pursuant to the resolution. Applicant in this case was not
seeking to enforce any resolution, it was merely seeking
adeclaration
that ownership of the assets has vested in it. This involves an
enquiry into whether the resolution to transfer the
assets was
validly passed.

Article
V(7) of the constitution of the LFTU regulates the calling of an
extraordinary conference. This may be called either in
the discretion
of the Executive Board, or at the request of at least three of the
national unions affiliated to the LFTU. Sub-article
V(7)(c) provides
that when an extraordinary conference is called at the discretion of
the Executive Board, the agenda shall not
include any matters other
than those laid down in para.5 of Article V. The matters listed in
para.5 do not include the distribution
of assets of the federation
upon dissolution. In fact, they do not even include dissolution. It
follows that it is not competent
to deal with a proposed dissolution
or the distribu­tion of assets at an extraordinary conference
called at the discretion
of the Executive Board. If it is desired to
take a decision on these matters, then the extraordinary conference
must be called
at the request of at least three of the affiliated
national unions. It follows that even if the agenda was decided

11

upon by
the Executive Board, and even if the extraordinary conference was
validly convened, it could not validly in terms of the
constitution
proceed to consider the dissolution of the federation, and the
consequential distribution of its assets, and accordingly
the
resolutions that it purported to pass in this connection were not
valid. Applicant was accordingly not entitled to relief in
terms of
prayer (c) either. This ground also constitutes another reason why
prayers (a), (b) and (d) should not have been granted.

It
follows that the High Court made the correct Order in dismissing the
application, although it may have done so for wrong reasons.
The
appeal was accordingly dismissed with costs.

Respondents
filed a notice of cross-appeal. There was however no order made
against respondents against which they could appeal.
Analysis of the
notice of cross-appeal shows that respondents were really seeking
thereby to dispute the reasons advanced by the
learned judge for
dismissing some of the points argued by them. But an appeal is not a
procedure whereby reasons or decisions on
particular points are
attacked; an appeal can only be noted against an order, or part
thereof. It follows that the cross-appeal
is an irregular procedure.
No order need be made in respect thereof.

(Sgd) .S.AARON....

S. AARON

Judge of Appeal

I agree
(Sgd) W.P. Schutz

W.P.SCHUTZ

President

I agree
(Sgd) E.M. Wentzel

E.M.WENTZEL

Judge of Appeal

Delivered
on this 26th day of July 1985 :at MASERU.

For
Appellant : Mr. Gwentshe

For
Respondents : Mr. Mphutlane