Constitutional Court Case No.4/2005
IN THE HIGH COURT OF LESOTHO (sitting as the Constitutional Court)
Held at Maseru
'MUSO TSEUOA APPLICANT
and
THE MINISTER OF LABOUR AND
EMPLOYMENT 1st RESPONDENT
THE SPEAKER OF THE NATIONAL
ASSEMBLY 2nd RESPONDENT
THE ATTORNEY GENERAL 3rd RESPONDENT
THE LESOTHO PRECIOUS GARMENTS P&T TEXTILES 4th RESPONDENT
CORAM: HONOURABLE JUSTICE T MONAPATHI
HONOURABLE JUSTICE GN MOFOLO
HONOURABLE MADAM JUSTICE N MAJARA
Heard : 29.10.2007
Delivered : 27.11.2007
JUDGMENT SUMMARY
Constitutionality of section 38 A (4) of the Labour Code (Amendment) Act 3, 2000 granting final powers of appeal to the Labour Appeal Court. Whether provision denies litigants right to equality and the equal protection of the
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law and the right to a fair trial. Whether provision is discriminatory. Section 38 A (4) declared unconstitutional - Application granted.
MAJARA J
The applicant has filed an application before this Court wherein he is seeking an order stated in the following terms:-
Declaring Section 38 A (4) of the Labour Code (Amendment) Act 3 of 2000 to be unconstitutional.
Declaring that the Applicant has a right of Appeal to the Court of Appeal of Lesotho.
Directing the Respondents to pay costs hereof only in the event of their opposition.
Granting Applicant further and/or alternative relief.
In his founding affidavit, applicant avers that he has had a long drawn out labour dispute with the fourth Respondent herein that culminated in an application for leave to appeal to the Court of Appeal in C of A (CIV) NO 27 of 2004 wherein, had he been granted such leave, he intended to challenge the decision of the Labour Appeal Court in the matter. That the Court of Appeal in its judgment in C of A (CIV) No 27 of 2004 on the 20th October 2005, dismissed his application on the ground that in terms of section 38 A (4) of the Labour Code (Amendment) Act 3 of 2000, no appeal lies against any decision of the Labour Appeal Court.
It is applicant's case that the said section undermines the Rule of Law by denying him and other litigants in a similar position the right to appeal to the Court of Appeal. Further that, this unfairly deprives him of the opportunity of accessing justice at the highest level of precedence making in Lesotho; that such denial neither serves nor is rationally connected to any legitimate governmental purpose and as such, is not fair. That in addition, the section is inconsistent with the provisions of section 4 (1)
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(h) and 12 (8) of the 1993 Constitution of Lesotho in that it deprives him of the right to a fair trial which, so he contends, entails the right of appeal to the highest Court.
He continues as follows at paragraph 6 of his founding affidavit:-
"I verily aver that section 38 A (4) of the Labour Code (Amendment) Act 2000 is invalid for being unconstitutional in the following respects:
6.1. Section 38 A (4) is inconsistent with section 19 of the Constitution of Lesotho in that by depriving me of the right to appeal the decision of the Labour Appeal Court,... has violated my right to equality and equal protection of the law. I aver in this regard that other parties before the ordinary court structure have the opportunity of ventilating and having their grievances settled at the highest level of Lesotho's court structure... without any reasonable and constitutionally legitimate justification at all"
Applicant contends further that in precluding the Court of Appeal from moderating and guiding the development of the jurisprudence of the Labour Appeal Court "a very real possibility exists that, parties before the Labour Appeal Court will get justice that is not equivalent to the justice dispensed by the ordinary courts."
With regard to issues of expedition and simplification, Applicant avers as follows in his affidavit: -
"Indeed, any concerns about expediting and simplifying the finalisation of labour disputes could be taken care of by prescribing appropriate times and procedures in terms of which such appeal could be prosecuted, instead of barring appeals completely."
Only 1st, 2nd and 3rd respondents oppose this application. Having filed their notice of intention to oppose, the 1st respondent the Honourable Minister of Employment and Labour, Mrs Mpeo Mahase- Moiloa (as she then was) has deposed to an affidavit in which she vehemently denies
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that Section 38 A (4) of the Labour Code (Amendment) Act 2000 is unconstitutional. She also denies that the section is inconsistent with section 19 of the Constitution of Lesotho. She further states as follows:-
"This section ensures that parties involved in a Labour dispute have the opportunity of ventilating and having their grievances settled at the highest level of the Labour Courts ie. the Labour Court of Appeal, without any discrimination at all. I contend that the applicant has no legal basis and cannot be allowed to presume that the justice meted out by the Labour Appeal Court is not equivalent to that dispensed by the ordinary Courts, without any proof Section 18 (3) of the Constitution defines the term "discriminatory."
It is also the contention of the 1st respondent that section 38 A (4) does not deprive applicant of the opportunity of accessing justice. She also denies that it is not rationally connected to any legitimate governmental purpose as the intention of the legislature in enacting the section was to 'expedite and simplify the finalization of Labour disputes.' She further adds that the Labour Appeal Court, being in itself an appellate Court in its own right, is empowered to deal with Labour disputes to finality and that such finalization is rationally and directly connected to a legitimate governmental purpose of ensuring and promoting the rule of law.
1st respondent further denies that the section in question is inconsistent with the provisions of Section 4 (1) (h) and 12 (8) of the Constitution or that the right to a fair trial entails the right of appeal to the Court of Appeal. To this end she asserts as follows:-
'The right to a fair trial as envisaged by Section 4 (1) (h) and 12 (8) goes towards the independence and impartiality of the Courts of Law together with a fair hearing within a reasonable time, and not to the question of the right to appeal"
In his reply applicant states that the crux of his case is that by not allowing litigants before the Labour Appeal Court access to the Court of Appeal which has the authority to lay down binding precedent and, so to
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speak, harmonises the Lesotho jurisprudence, "litigants before the Labour Court are deprived, without reasonable Justification of an opportunity that is availed to all other litigants in other courts." He continues as follows:-
"The said section is in that respect not affording litigants before the Labour Appeal Court equal protection of the Law with all other litigants who are able to pursue their disputes to the highest court of the land. The law consequentially accords differentiated treatment under circumstances that are not justifiable. "
Applicant contends that simplicity and expedition could well be attained otherwise, and through less intrusive means into his rights than by totally barring him from appealing to the Court of Appeal. He continues in these words:-
"Indeed, I deny that appealing to the Court of Appeal could cause any undue delay in the finalisation of Labour matters as that could be taken care of through the making of appropriate rules as to timeous (sic) prosecution of appeals. Furthermore, there is no way allowing for an appeal to the Court of Appeal could make those cases to be complex when the appeal would be based on the record as it was from the lower tribunals.
I deny that there is any rational connection between the purpose of expediting finalization of labour disputes, as well as their simplicity, with the denial of appeal to the Court of Appeal."
Against this backdrop, two fundamental issues are raised in this application. The first one is whether section 38 A (4) of the Labour Code (Amendment) Act of 2000 denies applicant the right to equality and to the equal protection of the law as it is enshrined and guaranteed in the Lesotho Constitution of 1993 in terms of Sections 4(1) (h) section 12(8) and section 19, and is as such, unconstitutional. The second question is whether the section is inconsistent with the provisions of section 19 of the Constitution which guarantees freedom from discrimination.
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In his submissions Mr. Mohan stated on behalf of applicant that the Labour Code (Amendment) section is inconsistent with section 4 (1) (h) and section 12 (8) of the Constitution in that Section 118 of the Constitution deliberately places the Lesotho Court of Appeal at the apex of the judicial structure in Lesotho so as to enable it to moderate and guide development of all of Lesotho's jurisprudence. He added that by denying litigants the right of appeal from the Labour Appeal Court, section 38 A (4) unduly undermines the assurance to equality and the equal protection of the law that the right of appeal to the Court of Appeal ensures.
It was Mr. Mohau's further submission that the net effect of the section is to afford litigants before the Labour Appeal Court the type of justice that is incapable of being equated to litigants before other Courts in as much as its litigants are deprived of the right to approach the Court of Appeal for the moderation and correction of judgments made by the Labour Appeal Court whereas litigants before other Courts enjoy that benefit.
Counsel for applicant pointed out that over and above this, the provisions of the section also empower the Labour Appeal Court to can sit as a Court of first instance. In this regard Mr. Mohau made the submission that the right of appeal is an integral part of the right of access to justice that is administered fairly, impartially and equally. He added that it is through the appeal procedure that the correctness of a decision in law and fact can be tested and that by denying applicant this right, section 38 A (4) deprives him of equity and just treatment.
Counsel for applicant added that it is important to note that in Lesotho, there are two streams of labour dispute settlement mechanisms, the one
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being that which may either begin at the Directorate of Dispute Prevention and Resolution (DDPR), proceed to the Labour Court on review and ultimately end up in the Labour Appeal Court, or begin in the Labour Court and end up in the Labour Appeal Court depending on the prevalent circumstances in each case. That it is this stream of disputes only, which is governed by the provisions of the Labour Code.
On the other hand, the other stream (of labour disputes) is that which involves public servants and can either begin at the various government departments, proceed to the High Court on appeal or review and end up in the Court of Appeal as the case may be. Alternatively, this stream can also begin in the High Court and end up in the Court of Appeal and that this position was created by the passing of Legal Notice 22 of 1995 wherein the Minister exempted public officers from the provisions of Part III, Division D and Part V of the Labour Code as amended. Since we are not concerned with these latter provisions, it is not important to list them and/or consider what they entail. Suffice it to say that the fact of the exemption by the Minister is common cause.
It is within this scenario that Mr. Mohan submitted that section 38 A (4) accords to litigants in the first stream less favourable treatment than that which is accorded to other similarly circumstanced litigants in the second stream for the reason that, those in the first stream are denied the opportunity to appeal further to the Court of Appeal while the other is allowed such access and that this differentiation in treatment is discriminatory and as such not justifiable.
Mr. Mohau made the further submission that it is trite that a constitution is an instrument sui generis that calls for a purposive interpretation as opposed to applying a the austerity of tabulated legalism". To this end, he referred the Court to the case of Minister of
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Home Affairs (Bermuda) v Fisher (1980) AC 319 (PC) at 328 quoted with approval by the Court of Appeal in the case of LNGIC v Nkuebe LAC (2000-04) 876 at 883. Counsel for applicant submitted that since section 38 A (4) is a limitation provision, this Court has to take into account several factors in determining whether it should be permissible and that these include;
The nature of a right;
The importance of the purpose of the limitation;
The nature and extent of the limitation;
The relation between the limitation and its purpose; and
The existence of less restrictive means to achieve the same purpose.
In this regard, Counsel referred this Court to the case of Moise v Greater Germiston TLC 2001 (4) SA 491 CC Paras 7, 16, 17 and 18. Lastly, Mr. Mohau submitted that an absolute bar to appeal to the Court of Appeal cannot be justified, especially when there are less restrictive means of attaining expedition in Labour disputes and even more so when considering that the Labour Appeal Court is not just an appellate Court but also has powers to sit as a Court of first instance.
On the side of the respondents, Mr. Letsie made the following submissions; firstly, that section 19 of the Constitution of Lesotho which provides for the right to equality before the law and the equal protection of the law, ensures that parties involved in a Labour dispute are afforded an opportunity of ventilating and having their grievances settled at the Labour Courts without any discrimination. He added that the term discrimination as it is defined in section 18 (3) of the Constitution does not extend to the right to appeal for the reason that the essential notion of equality jurisprudence is that persons similarly circumstanced should be similarly treated'.
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With regard to the right to a fair trial as it is guaranteed under section 4 (1) (h) and 12 (8) of the Constitution respectively, Counsel for respondents submitted that this right presupposes the independence and impartiality of the Courts of law, coupled with a fair hearing within a reasonable time. He added that the prohibition of an appeal in terms of section 38 A (4) of the Labour Code (amendment) is expressly made "subject to the Constitution of Lesotho" and that as such, it is not unconstitutional.
He further contrasted the statutory position of South Africa with that of Lesotho wherein he pointed out that the Labour Relations Act 66 of 1995 of South Africa contains a similar provision namely, that subject to the Constitution, no appeal lies against any judgment or order given or made by the Labour Appeal Court. In this regard he referred the Court to the case of Chevron Engineering (Pty) Ltd v Nkambule 2003 (5) SA 206 (SCA) to which the Court of Appeal of Lesotho made reference in the case of Muso Elias Tseuoa v the Labour Appeal Court of Lesotho C of A (CIV)No.27of 2OO4.
Counsel for respondents added that in terms of the constitutional sections which deal with the jurisdiction of the Lesotho Court of Appeal, its jurisdiction is more circumscribed that that of the Supreme Court of Appeal of South Africa and that as such, a similar conclusion as in Nkambule's case (Supra) cannot be arrived at in this matter. To this end, Mr. Letsie made reference to sections 123 (1) and (4), section 129
(2) of the Lesotho Constitution as well as section 18 of the Court of Appeal Act.
He further submitted that the jurisdiction of the Court of Appeal in Lesotho is determined essentially by Parliament which decided that no
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appeal shall lie against any decision, judgment or order given by the Labour Appeal Court. He added that the intention of the legislature in enacting section 38 A (4) was to expedite and simplify the finalization of labour disputes and that the Labour Court being an appellate court in its own right is empowered to deal with labour disputes to finality thus ensuring effectiveness of the rule of law.
To support his point, he made reference to paragraph 6 of the 1st respondent's answering affidavit wherein she avers as follows:-"In the Labour Appeal Court the legislative (sic) created a specialist tribunal, functioning in a specialized area of the law.
The Labour Appeal Court and the Labour Court were established by Parliament specifically to administer the Labour Relations Act (Labour Code in Lesotho). They are charged with the responsibility for (sic) overseeing the ongoing interpretation and application of the Labour Relations Act and the development of labour relations policy and precedent. Through their skills and experience, Judges of the Labour Appeal Court and the Labour Court accumulate the expertise which enables them to resolve labour disputes speedily.
By their very nature, labour disputes must be resolved expeditiously and be brought to finality so that the parties can organize their affairs accordingly. They affect our economy and labour peace. It is in the Public interest that labour disputes be resolved speedily by experts appointed for that purpose. "
Counsel for respondents also submitted that the respondents have shown before this Court, the reason why the Legislature decided that the Labour Appeal Court should be the final Court in determining labour-related matters and that this reason is neither arbitrary, unfair nor is it based on irrational considerations and as such, passes the test that was laid down by Dickson CJC in the case of R v Oakes (1986) 26 DRL 200 (SCC) at 226-7.
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Lastly, Mr. Letsie submitted that it is a principle of statutory interpretation not only that all legislation must be interpreted in the light of the Constitution, but that "legitimate interpretive aids" must where possible, be employed to avoid a finding of unconstitutionality and that only if this is not possible should a statutory provision be found unconstitutional. In this regard, Counsel referred this Court to the South African case of National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1.
Prelude
It is trite that the 1993 Constitution of Lesotho is the supreme law of the land and as such, all other laws must be consistent with it otherwise they shall be deemed to be null and void to the extent of such inconsistency. This is provided for in section 2 thereof. This Constitution also contains in it Chapter II Lesotho's justiciable Bill of Rights which is more or less based and/or styled along internationally guaranteed basic rights and fundamental freedoms.
Lesotho is also a state party to several rights instruments and these include inter alia, what is commonly known as the International Bill of Rights which comprises the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and its Optional Protocol. For this reason, she has the duty and/or obligation to promote and protect all rights guaranteed therein.
In the present case, the bone of contention is not whether or not applicant herein is entitled to all these rights as they are enshrined in the Lesotho Constitution's Bill of Rights and indeed the International Bill of Human Rights since this is common cause. Rather, the main issue is
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premised on a proper interpretation of the relevant constitutional sections aforementioned. Put differently, what does the right to a fab-trial; the right to equality and the equal protection of the law; and freedom from discrimination, encompass and/or entail?
The Right to a Fair Trial
The right to a fair trial is provided for under Article 10 of the 1948 Universal Declaration of Human Rights which instrument pioneered and codified the concept of human rights. The article provides as follows: -
"Everyone is entitled in full equality to a fair trial and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. * (my underlining)
In turn, Article 14 (1) of the Covenant on Civil and Political Rights provides in parts and insofar as is relevant to the present case as follows: -
"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law...."{My underlining)
At the domestic front this right is provided for under both section 4 (1) (h) and 12 (8) of the Lesotho Constitution. Thus in terms of section 4 (1) (h) the right to a fair trial is guaranteed in the following words:-
"Whereas every person in Lesotho is entitled, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to fundamental human rights and freedoms, that is to say, to each and all of the following-
................;
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................
the right to a fair trial of criminal charges against him and to a fair determination of his civil rights and obligations.''
Whereas under Section 12 (8) it is provided as follows:-
"Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or any other adjudicating authority, the case shall be given a fair hearing within a reasonable time."
As a starting point, I find it apposite to mention at this stage that indeed, it is now generally accepted in our jurisdiction that in interpreting constitutional provisions, the Courts should adopt a generous and purposive approach. For instance, in the case of Khathang Tema Baitsokoli & Ano v Maseru City Council & 3 Ors C of A (CIV) No 4/05 Const./C/1/2004 the Court of Appeal stated that:-
"it is well-established now as a principle of constitutional interpretation that a fundamental right entrenched in this way in a justiciable Bill of Rights should be given a generous interpretation."
This position has been reiterated in subsequent decisions of both the Court of Appeal and the High Court sitting as a Constitutional Court, including that in the case of The Judicial Officers' Association of Lesotho & Ano. v the Right Honourable the Prime Minister and 4 Ors Const. Case No.3/2005 p 20 (unreported) and other authorities referred to therein. Since these rights though related are not the same, I intend to deal with them separately.
In casu, it is applicant's case on the one hand that by being denied access to the highest Court of the land in terms of section 38 A (4) of the Labour Code (Amendment) Act which right is open to all other litigants,
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he is being denied a fair hearing, which per the submission by his Counsel includes the right to appeal. On the other hand, respondents contend that a fair hearing connotes independence and impartiality of the Courts and affording a litigant a hearing within a reasonable time and does not include the right to appeal.
In my view, that the right to appeal is one of the fundamental methods of checks and balances in the proper and effective day to day dispensation of justice is not a debatable point. It is this process that. gives any litigant who is unhappy with the finding of a court of first instance an opportunity to test the correctness thereof by appealing that decision and needless to state, with the relevant mechanisms in place to guard against possible abuse and/or laxity on the part of litigants, as well as to ensure finality and closure of proceedings including but not limited to prescribed time periods, and procedures to be followed thereof.
It is therefore my opinion that the submission advanced on behalf of respondents gives too restricted a meaning to the provisions of section 4 (1) (h) of the Constitution in that it fails to take into account the fact that a fair trial and/or determination of a litigant's civil rights and obligations entails all those stated factors, i.e. independence and impartiality of the Courts, being heard within a reasonable time, as well as the right to appeal in the event a litigant is dissatisfied with the decision of a trial court.
In this regard, I do not think that in light of the now well established approach to the interpretation of constitutional provisions, it would be prudent to limit the meaning of fairness to impartiality, independence of the Court and speediness of a trial without including the right to appeal as constituting an integral part thereof. This is especially so when account is taken of the fact that the right to a fair trial has not been
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accorded any particular definition. For this reason and for the fact that it is a justiciable constitutional right, it should be generously and broadly construed. To this end, the case in point is that of Lesotho National General Insurance v Nkuebe LAC 2OOO-2OO4 p 875 at 885 and other authorities referred to therein, quoted to this Court wherein, although the Court was considering the right to equality before the law, His lordship Melunsky JA stated that:-
"On a proper interpretation of the Constitution, it is clear that there are significant differences between freedom from discrimination and the right to equality before the law. The expression "discrimination" is carefully defined in s 18(3) but no meaning has been assigned to the phrases "equality before the law" and "equal protection of the law". Moreover it is apparent from s 18(8) that the equality provisions have a wider connotation and are to be given a more extensive application than those relating to discrimination. While the two sections might overlap in some respects, they generally require different treatment...."
It is by the same token, that I am of the view that in the absence of any definition of the phrase "right to a fair trial and a fair determination of civil rights and obligations', the relevant constitutional section should be widely interpreted. For these reasons, I find that by totally barring applicant herein and other similarly circumstanced litigants from accessing the Court of Appeal as opposed to all other litigants across the legal spectrum, Section 38 A (4) treats him unfairly and derogates from the provisions of Section 4 (1) (h) of the Constitution thus rendering it inconsistent with the said provision.
While I appreciate the argument that the rationale behind the Legislature's enactment of section 38 A (4) was to ensure simplicity and expedition, and also with the utmost respect, note the noble intentions of this branch of government, I am of the view that when everything is considered, it does not justify the resultant dissimilar treatment the
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section has on litigants. This is because this submission fails to take into account the fact that but for the fact that some fall under the private sector whereas others fall under the public sector, these litigants are otherwise similarly circumstanced. Thus, to permit the said enshrined constitutional provisions to be invalidated by the subsequent Labor Code (Amendment) Act would be to render ineffective and impotent its guarantees and specific purpose.
Moreover, I do not think that the expression'within a reasonable time' as it is contained in section 12 (8) of the Constitution, is necessarily synonymous with a litigant traversing fewer tiers of the Court structure. Rather, it is my view that it denotes as little delay as possible from commencement of proceedings to their finality as well as delivery of judgments throughout all the tiers, to the very last one. In other words, it does not follow that barring litigants from access to the Court Appeal per se guarantees them a speedy trial which is an important component of the right to a fair trial in those other Courts.
My reasons are that it is possible for a matter to take an unreasonably long time before it is finalized even where there are fewer tiers for a litigant to traverse which can be due to other circumstances including but not limited to, inadequate resources, unnecessary postponements, laxity on the part of either the litigants and or their legal representatives or I might add, the Court itself. At any rate, it cannot be denied that all litigants are entitled to have their matters speedily disposed of regardless of under which area of the law they may fall. Thus in my view, respondents' submission does not take their case anywhere.
Over and above this, and as Mr. Mohau correctly pointed out in his submissions, it is only litigants in the position of applicant herein that are denied access to the Court of Appeal yet all other litigants are
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accorded this opportunity. This includes litigants in other specialised branches of the law such as those in commercial disputes, customary disputes, and indeed even those labour disputes that involve public servants. If all these groups are accorded the opportunity to appeal to the Court of Appeal why should only applicant and litigants in his position be denied this access? In my view, I do not think the justification of simplicity and expedition is sufficient for the reason it is not peculiar to applicant only but applies to everyone who is involved in an industrial dispute. Hence my finding that section 38 A (4) effectively results in inequity and unfairness and should not be sanctioned by this Court.
Accordingly, I wish to respectfully adopt the sentiments that were expressed by the Court of Appeal when considering the consequences of an inconsistency between the Revocation Order and the Human Rights Act per the judgment of Mohamed P (as he then was) in the case Attorney General & Ano v Swissbourgh Diamond Mines (Pty) Ltd & 5 Ors. 1991-1996 (1) LLR 27, at 33. In that case, the former learned Judge President had this to say:-
"...the latter Act is sui generis. It is enacted to express in a codified form the fundamental premises and parameters of a civilized society based on the rule of law; it enacts a form of statutory discipline against which executive and legislative action has to be measured. To permit it to be invalidated with impunity by subsequent instruments...would be to subvert its purposes, render quite abortive its guarantees and trivialize its objectives"
The Right to Equality and the Equal Protection of the Law Article 7 of the Universal Declaration of Human Rights provides as follows: -
"All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled
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to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination" (my underlining)
The same right is contained in Article 26 of the Covenant on Civil and Political Rights which reads in parts as follows:-
"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law...."
At the national front, the relevant section which enshrines this right is section 19 of the Constitution. It reads:-
"Every person shall be entitled to equality before the law and to the equal protection of the law."
As it is the case with the right to a fair trial, this right has not been accorded any definitive meaning and in my view should likewise, be given a broad interpretation. I have already shown that the provisions of Section 38 A (4) of the Amendment have created a bifurcation of labour disputes, with the one section of litigants being heard exclusively by the Labour Courts without any access to the Court of Appeal while the other sector can be heard by the High Court and the Court of Appeal as the case may be. In light of the fact that save that these two groups fall under the private and public sector respectively, they are otherwise similarly circumstanced, it is my view that section 38 effectively derogates from their right to equality before the law and the equal protection of law and as such discriminates them in the sense contained by the provisions in the above quoted international instruments.
Further, it is obvious that the pioneers of these rights regarded the right of equality and the right to a fair trial as complimentary and necessary ingredients of each other hence the word equality appears under the same provisions that guarantee the right to a fair trial under the International Bill of Rights. Whilst I am well aware that these rights are
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provided for under different sections of the Lesotho Constitution, I am of the view that this factor notwithstanding, it would be a difficult task for anyone to surmount in trying to successfully argue that people can be accorded a fair trial under unequal terms. Fairness in itself contains equity.
In addition, the fact that the Labour Appeal Court also has powers to sit as a Court of first instance with its decisions are not subject to appeal means that litigants in such a situation have no recourse at all in the event that they are dissatisfied with the decision of the Court when compared with the others. This undoubtedly exclusively affects and without doubt prejudices them in that they are the only litigants who can never get such a decision tested and possibly overturned as may be necessary. The resultant effect is discriminatory treatment of litigants who otherwise fall under the same position and which in my opinion cannot have been foreseen and as such, intended by Parliament.
Furthermore, as I have already stated above, the Court of Appeal found in the case of LNGIC v Nkuebe (supra) that the right to equality and to the equal protection of the law has not been accorded a definition and that being a justiciable right under the Bill of Rights, it should be broadly interpreted. This in turn brings me to the issue concerning freedom from discrimination.
Freedom from Discrimination
This freedom is guaranteed under Article 2 of the International Declaration of Human Rights which reads in parts and insofar as it is relevant herein:-
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status."
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Under Article 2 of the Covenant on Civil and political Rights this right is couched in the following terms:-
"Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth of other status."
Section 18 of the Constitution in turn provides as follows:-
"Subject to the provisions of subsections (4) and (5) no law shall make any provision that is discriminatory either in itself or in its effect.
Subject to the provisions of subsection (6), no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
In this section, the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or accorded privileges or advantages which are not accorded to persons of another such description."
I do not think it can be disputed that the main objective of all these provisions is to guard against differentiated treatment of persons based mainly on irrational and unjustifiable factors such as those listed therein. At first blush, especially insofar as our constitutional section is concerned, these provisions are fairly straight forward when applied to the present case in that not only is the term discrimination defined in subsection (3) thereof, but also because, the resultant different treatment of applicant is not based on any of the criteria as set out therein.
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Therefore it cannot be properly said that applicant herein is subjected to discrimination as envisaged by these provisions.
However, it should be kept in mind that section 38 A (4) of the Amendment applies exclusively to applicant and those litigants who fall under the private sector, as opposed to those in the public sector as well as those whose disputes fall under the other specialized areas of the law. As such, its net effect is discriminatory in this regard. It is therefore my view that the submission that was made on behalf of respondents that the section does not discriminate because applicant herein does not fall within the said criteria or along the same lines is flawed on account of its failure to address the fact that it results in a differential treatment of litigants because it only imposes a limitation to a select few and, a limitation of a very essential ingredient of the right to a fair trial as already discussed above.
Consequently, the next issue for determination is whether this limitation is justifiable. In this regard, Counsel for respondents submitted that the limitation is justified for the reason that the industrial Courts are specialized and staffed with judicial officers who possess expertise and experience in that area. That may very well be so, however, this in turn begs the question, why should it only be applicable to these particular litigants yet other litigants who are similarly circumstanced save for the fact that they do not fall under the private sector, are not subject to it?
Further, assuming this submission to be correct, why does the same limitation not cut across all other specialized areas of the law? It is my opinion that in response to these questions, this submission does not pass muster for the fact that whether or not this discriminatory effect was intended, it does exist. The other provisions of S 18 of the
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Constitution which is the one that guarantees freedom from discrimination read as follows :-
"Subject to the provisions of subsections (4) and (5) no law shall make any provision that is discriminatory either of itself or in its effect."
Subject to the provisions of subsection (6), no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office of any public authority."
Whereas s 18 (8) in turn provides:-
"The provisions of this section shall be without prejudice to the generality of Section 19 of this Constitution."
While admittedly, the resultant discriminatory effect of Section 38 A (4) does not fall within the definition provided for under subsection (3) of section 18 of the Constitution, it is nonetheless discriminatory in its effect for the reason of its being prejudicial to a select few such as applicant in casu. For this reason, it is not justifiable. That may well be why even the definition itself contains the phrase "or other status" which in my opinion, was meant to cover other criteria not listed therein or which might not have been foreseeable at the time the definition was given. In this case, the status is that of applicant falling under the private sector in contrast with litigants falling within the public sector.
It is my further opinion that the present case exemplifies the kind of connection that can exist between section 18 and 19 of the Constitution whilst admittedly, they are not the same. In other words, even though it is argued that section 38 A (4) does not discriminate as envisaged in section 18 (3), the fact that the Legislature found it important to unequivocally state under section 18 (8) that its provisions shall be without prejudice to the generality of section 19 was to avoid as much as possible an unbalanced position that might result to similarly
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circumstanced persons, if its section was too narrowly interpreted insofar as the right to equality before the law and to the equal protection thereof goes.
In the case of Moise v Greater Germiston TLC: Minister of Justice Intervening 2001 (4) SA 491 quoted to this Court, in determining whether a limitation is justifiable in terms of section 36 (1) of their Constitution, the In the Constitutional Court of South Africa had this to say at page 498:-
"The balancing of different interests must still take place. On the one hand there is the right infringed; its nature; its importance in an open and democratic society based on human dignity, equality and freedom; and the nature and extent of the limitation. On the other hand, there is the importance of the purpose of the limitation. In the balancing process and in the evaluation of proportionality one is enjoined to consider the relation between the limitation and its purpose as well as the existence of less restrictive means to achieve this purpose."
To this end, the Court therein stated that 'the weighing up exercise is ultimately concerned with the proportional assessment of competing interests but, to the extent that the justification rests on factual and/or policy considerations, the party contending for justification must put such material before the Court.' In the present matter, Mr. Letsie made the contention that expedition and simplicity justify the limitation. However, in light of the fact that this limitation fetters the rights of one section only and as such derogates from the notion of equality, not to mention that labour law is not the only specialized branch, and that all other litigants have access to the Court of Appeal where precedence that is binding on all Courts is made, I do not think that respondents successfully placed before this Court factual material and policy considerations to back up their contention.
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In any event, I do not think that respondents can say with certainty that for the reason that the Court of Appeal deals with all areas of the law, it is not competent to deal with issues emanating from the labor Courts. Further, as Mr. Mohan correctly submitted, the higher a case goes up the entire court structure, the more the issues become crisper and clearer for the appellate courts to determine. This Court should therefore be wary of too readily allowing restrictions to the exercise by any person, of his justiciable basic right and/or fundamental freedom. Needless to mention the rights I have been referring to fall within that class both at the national and international arenas.
Furthermore, in light of the position stated in the Moise's case (supra), the fact that there are other less restrictive means of ensuring expedition and simplicity of these matters such as the requirements to satisfy the rules and procedures of appeal including prescription of the time periods, circumstances under which a litigant may appeal, which issues can be appealed etc, it is my view that this purpose can still be achieved.
Lastly, the submission that was made by Counsel for respondents that, in terms of the constitutional sections which deal with the jurisdiction of the Lesotho Court of Appeal, its jurisdiction is more circumscribed than that of the Supreme Court of Appeal of South Africa and that as such, a similar conclusion as in Nkambule's case (Supra) cannot be arrived at in this matter is correct. However, it is my view that this is so, only as far the fact of the circumscription of the jurisdiction goes. Otherwise the issues for determination are not similar.
In the Nkambule case, the main issue for determination by the Court was whether, on a proper determination of item 22(6) of schedule 7 to the South African Labour Relations Act (LRA) of 1995, an appeal lies to the Supreme Court of Appeal from all decisions by the Labour Appeal Court
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given in terms of item 22 (5). Whereas in the present case, the Court of Appeal has already considered and found that in terms of the law, no appeal lies to it against the decisions of the Labour Appeal Court. In other words, the present case has already gone past that stage and is at the point where the only issue for the determination by this Court is whether or not within this scenario, section 38 A (4) is unconstitutional.
To put this beyond doubt, I proceed to quote a passage from the judgment wherein the court stated as follows:-
"If it were not for the inclusion of the words 'subject to the Constitution the wording of sub-item (6) would impel one to the conclusion that the drafters of the sub-item did not intend to permit such appeals. This would raise starkly the question whether the sub-item could with stand constitutional scrutiny...."
I have already found that there is merit in this application for the reason that by denying applicant herein access to the Court of Appeal in stark contrast with all other litigants, section 38 A (4) is inconsistent with the aforementioned constitutional and international instruments in that it exclusively restricts his right to a fair trial, does not accord him equality before the law and is also discriminatory against him in its effect.
For all the above reasons I find the section unconstitutional and accordingly grant the application in terms of prayer 1), 2) and 3) as they are stated in the notice of motion.
N Majara
JUDGE
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I agree:
T. MONAPATHI
N.MOFOLO
For applicant : Mr. K. Mohau
For respondents : Mr. L. Letsie
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