IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 137/00

HELD
AT MASERU

IN
THE MATTER OF:

MOFO
NKHELOANE APPLICANT

AND

HOU
LEI SHOP RESPONDENT

JUDGMENT

This
matter was heard on Tuesday 11^th
September 2001. At the close of the hearing a finding in favour of
the applicant was orally pronounced but the reasons for that
finding
were reserved. These are now the reasons.

The
applicant assisted by the National Union of Retail and Allied Workers
issued the Originating Application on the 1^st
November 2000. The Originating Application was served on Mr. Zhou Y.
M. personally who is said to be the proprietor of the respondent
on
the 2^nd
November 2000. Mr. Zhou duly signed as an acknowledgment of receipt.
An official of the union Mr. Letlala who had effected the
service
also filed return of service confirming that he had served the
Originating Application on Mr. Zhou. The Registrar of the
this court
also caused to be sent by registered mail another copy of the
Originating Application to the respondent on the 1^st
November 2000. There is nothing to suggest that this was not
received by the respondent as it was never returned to the sender
by
the post office. Our conclusion is therefore, that even this other
copy of the Originating Application was received by the
applicant.

The
respondent never filed its Answer in terms of rule 5 of the rules of
the court. Consequently, the applicant filed a request
for default
judgment in terms of rule 14 of the rules. According to the letter
written to the Registrar by Mr. Thamae of the National
Union of
Retail and Allied Workers dated 18^th
December 2000 Mr. Zhou refused to accept receipt of the application
for default judgment when it was served on him. As a result
the
Registrar asked that the request for default judgment be returned so
that the court can assist the union in effecting its service.
It is
not clear from the record if the Registrar’s office was able to
serve the request for default judgment or not. We are
however,
satisfied that the respondent was aware of the applicant’s move to
have judgment entered against him in default of appearance,
even
though he chose not to accept the process.

The
matter was enrolled for hearing of the application for default
judgment on the 11^th
September 2001, where the respondent’s manager was in attendance
accompanied by his legal representative. Mr. Thamae on behalf
of the
applicant, in motivating the application for default judgment,
brought to the attention of the court the foregoing facts.
In
response Ms Ndumo on behalf of the respondent said that their client
only came to their offices on Thursday 6^th
September with only the copy of the notice of hearing. She said
further that the respondent’s manager may not have appreciated
the
Originating Application and its implications because he has
difficulty with the English language. Finally, she showed us a
piece
of paper where it had been recorded that the applicant had been paid
in lieu of notice and leave and said, because of that
Mr. Zhou
thought the matter was closed, especially because the payments were
made at the instruction of the Labour Office.

The
first contention that the manager of the respondent came only with
the notice of hearing cannot hold. The applicant was served
with two
copies of the Originating Application. One by hand and the other one
by post. The court asked if the manager of the
respondent was
disputing the signature on the Originating Application, the answer
was that he confirms that the signature is his.
Now if he came to
the office of his attorneys without the Originating Application which
he clearly received he is the one to shoulder
the blame, not the
court or the applicant.

With
regard to the second one that Mr. Zhou does not fully understand
English, as such he may not have understood the Originating

Application, this was clearly speculation because this was neither
deposed to in an affidavit nor given under oath. Secondly,
as it
will appear later in this judgment he infact dismissed applicant
herein for allegedly not knowing English which was supposed
to be the
medium of communication between them (applicant and the manager). We
are convinced therefore, that the respondent does
not only understand
English, he also fully appreciated the contents of the Originating
Application and its implications, hence
why he rejected further
processes when they were served on him.

Lastly,
it was said that the applicant might have thought that the matter was
closed because he had paid applicant notice and outstanding
leave.
Again this being tendered from the bar, cannot constitute a valid and
admissible reason for not complying with the rules
of the court.
Furthermore, even if it may be true that the respondent thought the
matter was closed he should have filed the Answer
and therein averred
that as far as he is concerned the matter is closed. In other words
that would constitute a defence to the
applicant’s claim not an
excuse for non-compliance with the rules. For these reasons the
applicant’s request for the default
judgment was granted.

However,
the applicant still had to get into the witness box to substantiate
his claim. His case was that he was unfairly dismissed
by the
respondent on the 31^st
July 2000. He had gotten into the section of the shop where Mr. Zhou
was . He was looking for something, but due to inadequacy
of
expression he had a problem communicating with Mr. Zhou. There and
then the latter said he must leave and go to school and
learn
English. Ms Ndumo had no cross-examination to make and as such the
applicant’s case was closed with his evidence uncontradicted.

In
terms of section 66(1) of the Labour Code Order 1992 (the Code);

“An
employee shall not be dismissed whether adequate notice is given or
not unless there is a valid reason for the termination of

employment...”

The Code goes
further to say, for such reason to be valid, it must be connected
with the capacity of the employee to do the work
he is employed to
do, the conduct of the employee or the operational requirements of
the undertaking. The employer bears the onus
to prove that he acted
reasonably in treating any other reason as sufficient ground for
dismissal.

The
applicant has not been dismissed for any of the reasons listed in
section 66(1) of the Code. The employer has not discharged
the onus
to show that he acted reasonably in treating applicant’s inability
to express himself in English as sufficient ground
for dismissal.
Similarly, there does not seem to have been any semblance of
compliance with section 66(4) of the Code which requires
that an
employee must be given the opportunity at the time of dismissal to
defend himself. Accordingly we found that applicant’s
dismissal
was unfair in as much as it contravened section 66(1) and (4) of the
Code.

The
applicant averred that he was no longer interested in reinstatement.
He sought payment of eight months salary as compensation
and payment
of salary from date of dismissal to the date of judgment. No
evidence was led as to the size of the respondent, but
from the look
of things it is a relatively small enterprise which we must be
careful what kind of monetary award we make against
it. Furthermore,
no evidence was lead nor any indication made as to what steps the
applicant took to mitigate his loss. Accordingly
we ordered that the
respondent pays four months salary as compensation and no order was
made in regard to costs.

THUS
DONE AT MASERU THIS 12TH DAY OF SEPTEMBER, 2001.

L.A
LETHOBANE

PRESIDENT

G.K.
LIETA

MEMBER I
AGREE

M.S.
MAKHASANE

MEMBER I
AGREE

FOR
APPLICANT : MESSRS THAMAE & LETSIE OF NURAW

FOR
RESPONDENT: MS NDUMO