CIV/APN/89/2000

IN THE HIGH COURT OF LESOTHO
In the
Application of:

THE EMPLOYMENT OF AFRICA LTD Applicant

VS
L.A. LETHOBANE AND 3 OTHERS Respondent

JUDGMENT

Delivered by the Honourable Mrs Justice KJ. Guni on the
5^th day of June 2001

In this application, the court is being asked to review
and set aside, in terms of Rule 50(1) (b) HIGH COURT RULES, Legal
Notice N0.9
of 1980, the judgment and an award of LABOUR COURT. That
judgment and an award were made by THE LABOUR COURT on the 16th
SEPTEMBER
1999 and 26th DECEMBER 1999, respectively. The Labour Court
consisted of The PRESIDENT and two members [i.e. 1st respondent, 2^nd
respondent and 3^rd respondent in this application. The
judgment and an award which this court is asked to review and set
aside, were

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made by the said court in favour of the 4^th
respondent. The 4^th respondent was at

all material time an employee of this applicant.

The applicant is The EMPLOYMENT BUREAU OF AFRICA LTD. It
is a South African Company, duly incorporated in terms of the company
law
of The republic of South Africa. This company conducts its
business of employment agency all over Southern Africa. Here in
LESOTHO,
the principal office of business of the applicant company is
situated in the Industrial Area of the city of MASERU.

The brief history of this case, as put together from the
facts gleaned from the papers filed of record, is as follows:- On the
morning
of Friday 29^th August 1997, there was a noisy
disturbance at this applicant's offices. Apart from the officials or
workers of this applicant company,
there were, in that office about
three hundred or so mineworkers who were being served or processed at
the time of that noisy disturbance.
Apparently, the noise was being
made by only three of those mineworkers who were seeking services in
that office at that time. Appeals
were made to the noisy mineworkers
to calm down and behave orderly while waiting their turn to be
served. These appeals were ignored.
The noisy disturbance continued
unabated. The three mineworkers who were responsible for the fracas
were also drunk. The 4th respondent
herein advised the drunken and
disorderly

3 individuals to behave orderly. Nevertheless they
persisted uncontrollably with

their bad behaviour. The 4^th respondent
appealed directly to one of those three disorderly mineworkers, to
calm down and behave in an orderly fashion. This particular
individual took exception to the 4^th respondent's appeal.
His reaction was to directly insult the 4th respondent. Provoked by
the insult, the 4^th respondent attempted to push that
individual out of the office. Having failed to evict him, the 4^th
respondent then told him that he was not going to serve him unless
and until he behaved in an orderly fashion whereupon that mineworker
then and there left that office on his own accord.

The occurrence of the said fracas came to the knowledge
of the applicant later. There were two other employees besides the
4^th respondent in the office where the noisy disturbance
occurred. Those were Mr Ntlhakana and Mrs Masithela. Their written
reports were
made on 29^th August 1997 and 30^th
August 1997. [KH2, KH3. Page 87,88 of the record]. The 4th respondent
submitted his written report on 1^st September 1997.

As a result of the incident of the 29th August 1997, the
4th respondent was charged with a number of offences in terms of the
applicant's
disciplinary code thus:-[KH4, Page 91 of the record]

4

1. 
   a charge of assault alternatively disorderly conduct

   
   

2. 
   a charge of threatening violence alternatively
   intimidation

   
   

3. 
   a charge of abuse of privileged position and

   
   

4. 
   a charge of breach of domestic rules.

   
   

He was found guilty of misconduct as charged and
summarily dismissed. He availed himself with all the internal appeal
procedures provided
for in the applicant's code of conduct without
success.

On the 1st January 1998, the 4^th respondent
instituted proceedings in THE LABOUR COURT challenging his dismissal
by the applicant. He sought the following relief:
-

1. 
   that the purported dismissal by the applicant herein be
   set aside.

   
   

2. 
   that he be reinstated with payment of all his
   emoluments and benefit.

   
   

3. 
   costs of suit

   
   

Alternatively

4. 
   that the applicant be ordered to pay such damages and
   terminal
   benefits as THE LABOUR COURT might deem fit.

   
   

5. 
   costs of suit.

   
   

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The 4^th respondent had raised two
points of law as regards the propriety of the

disciplinary hearing by and at the applicant company
which was concluded with his summary dismissal at this applicant
company. The
first legal point raise on behalf of the 4^th
respondent was that the Disciplinary proceedings conducted at the
applicant company against the 4^th respondent, had in terms
of the company code of conduct established by the applicant company,
prescribed. In its rules of conduct
the applicants company has
specified the period within which the charges preferred against any
employee must be proceeded with. The
second point of law raised was
that the presiding officer at the Disciplinary hearing had been "a
judge in his own cause".

The legal points had to be dealt with first, before
going into merits of the case. The Counsel for both parties agreed
that those
points raised in limine go to the heart of the matter and
that the determination of those points put an end to the matter. The
LABOUR
COURT found that the legal points were properly raised and
must succeed. The court's finding on these points is not challenged.
Mr
K.S. TIP SC Counsel for the applicant has conceded and in my view
properly so that there were procedural shortcomings in the
disciplinary
process as conducted at the applicant company against
the 4^th respondent. There was no evidence to support the
alleged charges against the 4^th respondent. The reports
submitted by those

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members of staff of the applicant company, who
were present in the office at the

time the noisy disturbance took place, contained
exculpatory evidence.

Technological advancement in communication, such as
E-mail, fax and telephone,

should have assisted the search for the complainant in
the mines of South Africa.

The delay, was therefore unwarranted. The applicant was
obliged in terms of the

provisions in its code of conduct to merely inform the
4^th respondent that the

investigations are still continuing and as a result
there will be a delay in the

proceedings against him. That was not done. There was no
explanation, why the

4^th respondent was not advised that there was
going to be a delay. The proceedings

of the disciplinary hearing were in terms of the
applicant company code to be

conducted within a specified period. That the presiding
officer in the Disciplinary hearing was the investigator of the case
against
the 4^th respondent and the person who preferred
the alleged charges against him, was one of the grounds on which the
LABOUR COURT found that
he had been "a Judge in his own cause".
In its judgment THE LABOUR COURT found the dismissal of the 4th
respondent in those
circumstances procedurally and substantively
unfair.

THE LABOUR COURT is a creature of statute. Its powers
and directives are found within the relevant statutes. The Decisions
of THE
LABOUR COURT are final [section 38 LABOUR CODE 1992]. This
court can only interfere with the

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Decisions of THE LABOUR COURT by way of review.
The review of the

proceedings of THE LABOUR COURT, must also be brought
upon competent grounds. Such grounds are listed at page 326,
Paragraph 176 BECK'S
Theory and Principles of pleading in Civil
Actions. They are:-

1. 
   "Incompetency of the court in respect of the cause
   of action such as absence
   of jurisdiction.

   
   

2. 
   Incompetency of the court in respect of the judicial
   officer such as that he
   or a near relative had an interest in the
   cause

   
   

3. 
   Malice or corruption on the part of the Judicial
   Officer.

   
   

4. 
   gross irregularity in the proceedings

   
   

5. 
   The admission of evidence which should not have been
   admitted or
   rejection of evidence which should have been
   admitted"

   
   

The present application for review of THE LABOUR COURT
JUDGMENT and AWARD contains none of the above mentioned grounds upon
which
inferior court's proceedings may be subjected to a review. It
is contended that THE LABOUR COURT failed to apply itself in the
required
manner to the question of the appropriate relief. [my
underlining] In other words, the judgment is accepted and there is no
complaint
of any impropriety as regards the procedure adopted leading
up to that judgment. What the applicant does not like is the award.

8

The remedies, in matters of this nature, are provided
for by section 73 LABOUR CODE ORDER, 1992. "Remedies

1. 
   If the Labour Court holds the dismissal to be unfair,
   it shall, if the employee so wishes, order the reinstatement of the
   employee
   in his or her job without loss of remuneration, seniority
   or other entitlements or benefits which the employee would have
   received
   had there been no dismissal. The Court shall not make such
   an order if it considers reinstatement of the employee to be
   impracticable
   in light
   of the circumstances.

   
   

2. 
   If the Court decides that it is impracticable in light
   of the circumstances of the employer to reinstate the employee in
   employment,
   or if the employee does not wish reinstatement, the
   Court shall fix an amount of compensation to be awarded by the
   Labour Court
   shall be such amount as the court considers just and
   equitable in all circumstances of the case. In assessing the amount
   of compensation
   to be paid, account shall also be taken of whether
   there has been any breach of contract by either party and whether
   the employee
   has failed to take
   such steps as may be reasonable
   to mitigate his or her losses."

   
   

THE LABOURCOURT, being a creature of statute, regarded
itself as being bound by the provisions of the section cited above.
The Labour
Court had found that it was in the common cause that the
dismissal of the 4^th respondent was both procedurally and
substantively unfair. This must be so because there was no evidence
to support the charges against
the 4^th respondent. It is
argued on behalf of this applicant, that THE LABOUR COURT and this
court should note the very grave nature of those
charges. The nature
of the unsupported charges is irrelevant. The court a cquo made an
award in accordance with the dictates of the
law as annunciated in
the statute and the cases cited in the reasons for the said award.

9
[Section 73 Labour Code Order 1992 and East Rand
Proprietary Mines LTD V

United people's Union of SA (1996) 171LJ 1135]. Justice
and fairness demanded by the law in order to redress an employee who
has been
unfair dismissed, is nothing short of full restoration of
the position the employee enjoyed before dismissal.

There is no impropriety that can be levelled against the
procedure adopted by The labour Court and leading up to the judgment
and
the consequential award complained of There are therefore no
grounds for review of this award. In this circumstances this
application
must fail.

This application for review and setting aside the
judgment and an award of the Labour Court is oppose by the 4^th
respondent. The 4^th respondent has raise once again in
Limine point, being his defence of delay and giving the following

reasons:-

"A.
DEFENCE OF DELAY

(i) Judgment the subject matter of this proceedings was
handed down on the 2lst Septemberl999 and the award was handed down
on the
26^lh November 1999.

(ii) The applicant did not perform any of its
obligations in terms of the judgment and award. Thus I have remained
out of employment
since the 1997 when I unlawfully and unfairly
dismissed.

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(iii) I have been without my salary which salary is a
constitutional right since the said unfair dismissal.

(iv) Despite the fact that both the judgment and the
award were handed down as and when they were, the applicant has sat
back all
along and only instituted these review proceedings on the
15^th March 2000.

Before instituting disciplinary hearing at the applicant
company, this applicant breached its own code of conduct and
unreasonably
delayed to proceed against the 4th respondent. Once
again at this instant, the applicant has delayed to bring under
review the proceedings
of the Labour Court.

There is no specified time limit before whose expiration
the proceedings of the inferior court, could be brought under review
of the
superior court. It is the court before which such review
proceedings are brought that makes the decision whether or not
depending
on the facts of the particular case that such proceedings
are brought out of time WOLGROEIERS AFSLAERS V MUNISIPALITEIT VAN
KAAPSTAD
1978 (1) SA 13 at 14 E. Even where the court has found that
there has been a delay in the bringing under review the proceedings
of
the inferior court, the superior court has a discretion to condone
such a delay where the delay is not unreasonable. RADEBE V GOVERNMENT
OF THE REPUBLIC OF SOUTH AFRICA and OTHERS 1995 (3) sa 787.

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The judgment was delivered on 21^st of
September 1999. An award which this applicant does not accept was
made on 26^th November 1999. It was only on 15^th March
2000 that this application for review and setting aside the said
judgment and an award, was made before this court. The letter
and
spirit of the Labour Code Order 1992 is that the industrial disputes
must be expeditiously determined by the LABOUR COURT for
the
convenience of all concerned. [i.e. workers and management]. That is
why the decisions and Awards of THE LABOUR COURT are final.
Section
38 LABOUR CODE ORDER, 1992. The Labour Court is not bound by the
rules of evidence,[express or implied] in civil or criminal
proceedings, and it shall be the chief function of the court to do
substantial justice between the parties before it [my underlining].
Section 27 (2) LABOUR CODE ORDER, 1992. Even though the dispute
between the parties in this case, was disposed of purely on the
points
of law without going into the merits, there was no merit in
the dismissal of the 4^th respondent because of lack of
evidence. The applicant in this matter took well over three months to
bring this award under review.
This period of three months in my view
constitute undue delay HEPWORTHS LTD V THORNLOE AND CLARKSON,LTD 1922
TPD. 336

The next question is whether or not the three months
delay in the circumstances of this case, was unreasonable. The
explanation given
by the applicant in this case

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for this delay, when examined in its totality,
consists in the main with seeking of legal advise. For the whole
period consultations
were being held with various legal practitioner.
The applicant is entitled to seek and obtain as much legal advice as
it can afford.
But it can not do so to the prejudice of the other
party. For the said period of three months and more, this applicant
had not complied
with the judgment and the award of the LABOUR COURT.
Furthermore, there has been no application for stay of the execution
of the
said judgment and the award. It should have been still the
paramount consideration of the applicant to bring the matter to a
finality
without further delays. The period of more than one month
was in the circumstances unreasonable delay. In PATEL v Ismail Mia &
Co 1912 TPD 650 at 652, it was held that a delay of two months in
launching a review of taxation was unreasonable, having regard
to the
fact that the case was a simple one. Our present case is also a
simple one. It is straight forward to determine whether
or not there
are grounds in our case, to bring it under review. The
consultations with various legal practitioners should have
been done
within a reasonable period of time without prejudicing the other
party. HEPWORTH LTD V THORNLOE and CLARKSON LTD 1922 TPD
336. The
fact that an intimation was made to the 4th respondent that the
matter might be taken on review does not entitle the applicant
to an
unreasonable delay. For these reasons this application must fail and
it is dismissed with costs.

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K.J. GUNI
JUDGE

For Applicant: Harley & Morris
For Respondent:
Mr Phafane