CIV/APN/301/2001

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between

NTSEPE
KALI Applicant

And

LESOTHO
TELECOMMUNICATIONS 1st Respondent

THE
PRESIDENT 2nd Respondent

For the
Applicant : Mr Putsoane

For the
Respondents : Mr M Mpobole

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi On the 3rd day of June
2004

Applicant
filed an application before this Court on the 10th August 2001
praying inter alia for the following remedies:

1. That
   the Second Respondent's decision to dismiss Applicant's case in LC
   140/95 in terms of Rule 16 of the Labour Court Rules be
   reviewed,
   corrected and set aside.

   
   

2. The
   Second Respondent be ordered to dispatch the record of proceedings
   in LC 140/95 to this Honourable Court within 14 days of
   service
   herein.

   
   

3. That
   the Respondents be ordered to pay costs herein only in the event of
   opposition.

   
   

4. Granting
   Applicant further and or alternative relief.

   
   

2

It was
almost after a year that the Registrar succeeded to secure the case
file, which was sought to be reviewed, from the Labour
Court. Thanks
for the intervention of Mrs M Khabo the Labour Commissioner. Most
misguidedly Counsel had thought a whole sense in
the matter could
have been seen without that valuable file. I doubted that from the
onset.

The
background is that the Applicant together with one Khaufane Mofokeng
had been employees of the First Respondent as security
guards. They
had both filed an application before the Labour Court against the
Respondent for unlawful dismissal. For this purpose
the Applicant had
instructed Chief Legal Aide Counsel to represent him.

When this
claim was ripe for hearing, that is, when pleading were closed in
terms of the procedures of the Labour Court the Applicant
instructed
his Counsel to withdraw as Counsel of record. It appears that this
was done by a notice dated the 20th October 1996.
Subsequent thereto
a notice of hearing was issued for the 30th day of April 1997 at 0900
hours.

This
notice of withdrawal was addressed to Legal Aide Counsel and to M.T.
Matsau & Co. It appears that it is the procedure of
that Court
that the Registrar of that Court can mero motu appoints date of
hearing which he only has to communicate to involved
Counsel and or
litigants. On the 30th April 1997 the matter was before the
Commissioner and was postponed to a date to be arranged,
perhaps due
to absence of the Applicant. The reason for the postponement is not
stated, neither is it pleaded before this Court.

3

A letter
was written by the Registrar of the Labour Court as she was entitled
to do on the 25 March 1998 gave warning that the matter
be set down
for hearing lest it be struck off the roll for lack of prosecution.
This letter was addressed to Chief Legal Aide Counsel
and copied to
M. T. Matsau & Co. Subsequent thereto another letter seeking
reaction of the Chief Legal Aide Counsel to the
former letter was
written by the Registrar. There seemingly was no reaction to both
letters. Consequently, after several postponements
the matter was set
down for the 1st June 1999, on which day the matter was dismissed for
lack of prosecution. Notice of the present
application was filed on
the 24th September 1999.

The basis
for this review application is an irregularity allegedly committed by
the Labour Court. Applicant claims that he was not
heard for the
reason that he was not informed of the date of hearing which fact as
he submitted constitutes a serious irregularity
such as to warrant
redress by way of reinstating the claim onto the roll of the Labour
Court. Before this Court Counsel for both
parties appeared. Mr.
Mpobole for the Respondents took certain points-in-limine. But it was
agreed that those be argued at the
same time together with other
points.

Mr
Mpobole contends that whereas Applicant's services were terminated in
1993, they only brought their application before Court
in October
1995, some two years later. That in terms of the Labour Code Order
No. 24 of 1992 the Applicants ought to have brought
the application
six months after dismissal. That in fact neither an application for
condonation was made, nor was condonation granted
mero mutu by the
Labour Court.

4

Mr.
Mpobole noted that the claim by the Applicants had prescribed by the
time it was brought before Court. Indeed in terms of Labour
Code
Order No.24 of 1992, section 17(1) thereof, a claim, such as the
Applicants, ought to have, been brought within six months
of the
termination of employment. But to decide this question more fully the
Court must address itself to this question whether
this Court is
competent to decide the question of prescription. Mr. Putsoane has
sought to argue that this Court ought not to go
into the question of
prescription which, as he submitted, is solely within the
jurisdiction of the Labour Court.

Ramodibedi
J (as he then was) had occasion to deal with this issues of
prescription in Lesotho Brewing Company t/a Maluti Mountain
Brewing v
Lesotho Labour Court President and Another CIV/APN/435/95
(unreported) I fully agreed with respect with what the learned
Judge
pronounced on the question of prescription, which is this that,
failure by the Applicant to apply for condonation ousts the

jurisdiction of the Labour Court. It is noteworthy that Applicant
waited for some twenty two months after his former attorneys
had
withdrawn before seeking to proceed with the matter. This is
presently unacceptable and does not augur well for success of
this
application.

It is
trite law that unlike in appeal matters there is generally no time
limits stipulated within which to apply for reviews, the
only
exception being review of taxation which must be within 14 days of
the allocatur. See Rule 49(1). However review proceedings
must be
brought before Court within a reasonable time. In the

5

absence
of precise time limits in the High Court Rules it can only be
concluded that what is reasonable must be judged on the circumstances

of each case.

South
African cases have variously defined reasonable time in the contexts
as one month, two months in some cases three months and
so forth.
(See Hanaker v Minister of the Interior 1965(1) SA 372( c ) at 380B;
Stoner v S.A.R. & H 1933 TPD 265; Chesterfield
House Pty (Ltd) v
Administrator of the Transvaal & Others 1951(4) SA 421 T at 424
D-E, and a host of other authorities. It
is inexcusable for the
Applicant to have brought this review application a full two years
after he was aware that his application
had been dismissed. But what
could be the effect of delay in bringing review proceedings on the
Respondent?

In order
to decide the reasonableness of time after which the review
application is brought before Court. We must investigate (in
the same
manner as for a jurisdictional fact) whether there is prejudice as a
result of the delay. I must state right at the onset
that inordinate
delay does not in itself render an application of this nature invalid
without there being prejudice to the other
side.

Mr.
Mpobole for the Respondent quite correctly argued that the
application by the Applicant which is that of reinstatement, and

which was brought after so long a time, causes prejudice to the
Respondent if the net result turns out to be an order of
reinstatement
and payment of salary in lieu thereof. On this aspect
of the Court of Appeal made apposite remarks in Lesotho Bank v Maitse
Moloi
C of A (CIV) 31/95 which are relevant in this case that is, as
it was said:

6

"Assuming that the Court appreciated that it had a discretion in
the matter, it misdirected itself, in the first instance,
in having
no regard to time already elapsed but merely speculating about the
future - without, in turn, affording the appellant
a proper
opportunity of being heard as to the effect an order of reinstatement
would have had at that stage - two years on.....
The respondent did
not, give any acceptable reason for his inordinate delay."

In the
present case the Applicant has not furnished to the Court with goods
reasons that justify the delay. Nor was an application
for
condonation of the late filing of the review filed. Perhaps that
application would disclose such reasons. Neither was condonation
by
this Court granted.

Where the
applicant fails to explain away a questionable delay, he cannot be
heard to claim that the delay was reasonable without
good reasons. In
the premises the Court is left with no option therefore but to decide
if there was inordinate delay merely by
looking at the length of time
before bringing up the review proceedings. In the absence of an
application for condonation the inevitable
conclusion is that there
was delay. See also cases of Visser & Du Toit v Union Government
1943 CPD 297 and Policansky Bros
v Hernann and Canard 1911 TPD 319.

Before
this Court the Applicant sought to rely on the failure by the
Registrar to notify him of the date of hearing as an irregularity

that justify his applying for review. Mr Mpobole contended that even
if it was to be accepted or even if for argument's sake it
was a
mistake that the Applicant was not informed of the date of hearing
and if that constitutes impropriety, the right remedy
would be that
of rescission because then the decision to dismiss it for lack of
prosecution amounted to absolution from the instance.
That therefore
the Labour Court remained seized of the matter. I agreed with
respect.

7

Mr.
Mpobole defends the failure of the Labour Commissioner to have
informed the Applicant of the date of hearing on the basis that
the
Applicant was enjoined to appoint an address for service. Indeed
prima facie the notice of withdrawal it appears, there is
an address
for the Applicant, but the address is only a postal address.

A postal
address is not very helpful because it is not physical address as is
required, for service in terms of the rule. See High
Court Rules
15(2) (b); 18(6) and or 19(4)). It was insufficient if a box number
262, Maseru 0100 only was appointed without having
set out a physical
address at least 5 kilometres from the Court.

I must
however, add that it does not appear as if enough was done by way of
trying to locate and or serve the Applicant. For instance
the
Applicant's physical address does appear in the Notice of Motion as
Motimposo. Be that as it may the law enjoins the Applicant
himself to
have provided a physical address for service, having withdrawn his
mandate from Chief Legal Aid Counsel.

In the
circumstances I am inclined to hold that Applicant has shown no
interest to have this matter finalized each time that the
ball was in
his court, even up to the stage when he now sought for review.
Needless to say, it is now judicial precedent that matters
of
substantial nature belong to the Labour Court exclusively See
Attorney General v Kao C of A (CIV) No. 26 of 2002, M M Ramodibedi

JA, 14th April 2003.

8

In the
circumstances the application fails with costs to Respondents.

T.
Monapathi

Judge

3rd June
2004