IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 115/00

HELD
AT MASERU

IN
THE MATTER OF:

MATEE
PHATELA APPLICANT

AND

LESOTHO
HIGHLLANDS DEVELOPMENT

AUTHORITY(LHDA)
RESPONDENT

JUDGMENT

This
judgment is signed by only two of the original panel of three. This
is purely for reasons of convenience because the learned
member Mr.
Lieta, has been unwell for quite a while and there is no indication
that he will be well soon. We felt that we should
not delay the
litigants any further in knowing the final outcome of this case. To
this end, we resolved to take full responsibility
for this judgment
in terms of rule 25(2) of the Labour Court Rules 1994. The learned
member who has not appended his signature
is, however, to all intends
and purposes part of this judgment in as much as he took part in its
deliberations.

The
applicant was employed by the respondent corporation in its
Procurement Department. He was responsible for making purchases
on
behalf of the respondent. It is alleged that between April 1998 and
October 1998 the applicant entered into a deal with a South
African
company called M.E.T. Med. Supplies owned by one Pretorius. In terms
of the deal the applicant ordered supplies from M.E.T.
without
following LHDA procurement rules such as obtaining three quotations,
and buying from the least quote. Purchases were made
on M.E.T.
quotation alone.

Where
three quotations had allegedly been obtained it turned out that they
were infact from one supplier namely M.E.T. This again
was contrary
to the procurement rules as the quotations have to come from
different suppliers. These purchases were for substantial
amounts,
but in some instances deliveries were not made, or where they had
been made it was not complete delivery. As a result
of this scam the
respondent was defrauded of money to the tune of M310528-00, while
the applicant in turn was enriched by M19500-00
by way of bribes he
received from Pretorius for his part in the deal.

Respondent
commissioned an investigation by a reputable firm of investigators,
Pricewater House Coopers. Following the report of
the investigators
the applicant was charged with several misconducts relating to his
acceptance of bribes; and irregular purchases.
He was found guilty
and dismissed on the 20^th
March 2000. On the 15^th
September 2000 he launched the present proceedings challenging both
the procedural and substantive fairness of his dismissal.
Pleadings
were closed and the case was scheduled for hearing on the 24^th
October 2001.

At
the start of the hearing counsels indicated that they had agreed not
to go into the substantive fairness of the case as yet.
They had
agreed that they address the point of law which though not appearing
in the papers was being taken as such by the applicant
as a point in
limine, which if successful would rest the case. The point concerned
the composition of the committee which conducted
the applicant’s
disciplinary hearing.

Mr.
Phafane for the applicant argued that the committee was not properly
constituted because contrary to the rules the person chairing
it was
not the Branch chairman and the Human Resources Manager had not been
in attendance but had purported to delegate a Mr. Lebona.
He
submitted that the respondent’s Personnel Regulations constitute
delegated legislation in as much as they owe their existence
to an
Act of Parliament namely, the Lesotho Highlands Authority Order 1986.
He contended therefore that persons delegated to exercise
certain
powers under the rules cannot as a rule further delegate. He argued
that the disciplinary proceedings were therefore null
and void and
that they should be set aside. He referred us to the case of Mpho
Qhobela .v. Attorney General and PS Agriculture
CIV/APN/229/85.

Ms
Matshikiza for the respondent argued that the applicant suffered no
prejudice as a consequence of the composition of the committee
as
indeed none was shown. He contended that on the contrary the
respondent would have been prejudiced if it were to delay the
holding
of the inquiry until Mr. Russell the Human resources Manager was able
to attend as he indicated that on that particular
day (date of
hearing) he already had interviews scheduled for that day. She
contended further that it is infact not the personality
that is
important but the office so that if the office is represented that
should suffice. Finally, she averred that the applicant
never in any
event objected to the composition of the committee at the hearing.
It is however, evident at page 2 of the record
of the disciplinary
proceedings that applicant’s representative questioned the
chairmanship of the meeting.

With
the consent of both counsels an agreed copy of the personnel
regulations of the respondent was handed in. It was agreed by
both
counsels that the applicant is governed by clause 13.2.2.3 of the
regulations which says the committee to investigate the
employees of
applicant’s category namely; section head and below shall be
composed as follows: Chairperson, Branch Manager;
Members, Human
Resources Manager; Secretary, Section Head Industrial Relations or
his representative and the representative of
Legal Branch.

It
is common cause between the Parties that the relevant Branch Manager
was a Mrs. Kao. It is further common cause that the Human
resources
Manager at the material time was a Mr. Russell. The committee was
chaired by one Mr. Mapetja instead of Mrs. Kao and
no explanation was
advanced for this. Mr. Russell specifically noted on the letter
inviting him to attend the disciplinary hearing
that he would like
Mr. Lebona to stand in for him as he was attending an interview.
Quite clearly therefore, the committee was
improperly constituted in
as much as it was not in compliance with the Personnel Regulations.
The issue is whether that impropriety
can be excused for any of the
reasons that Ms Matshikiza presented before the court.

The
view that we hold is that the question of prejudice whether to the
applicant or the respondent is irrelevant. There is nothing
in the
regulations either direct or implied suggesting that depending on the
prejudice likely to be suffered the rules may be abridged.
In the
same manner if regulations required the participation of the office
as opposed to the incumbent occupying the position,
they would have
made that clear as they have indeed done in the cases of Industrial
Relations and the Legal Branch. There the
regulations clearly state
that it will be the head of the Industrial Relations or his
representative. In the case of the Legal
Branch no incumbent is
specified meaning anybody from that branch would be suitable. But in
the case of the chairperson and the
Human Resources the regulations
have singled out officers who would participate in the disciplinary
hearing and these are the Branch
Manager and the Human Resources
Manager respectively. The regulations make no provision for
delegation in the case of these two.

In
the case of Mpho Qhobela supra to which we were referred by Mr.
Phafane, the High Court held the interdiction of the applicant
to be
invalid because she had been interdicted by a person other than the
officer authorised by the Public Service Commission Rules
1970 to
interdict public officers. It was further found that even that
officer who is authorised by the rules to interdict could
not
lawfully delegate that power because there was nothing in the
enabling legislation empowering him to delegate his powers to
others.

In
the often quoted case of National Education Health & Allied
Workers’ Union & Others .v. Director General of Agriculture
&
Another (1993) 14 ILJ 1488 at 1500 C-G Landman P and De Kock S.M. as
they then were laid the following principle:

“It
has become the practice of the court in dealing with the private
sector to hold an employer to his unilateral or negotiated code

including a retrenchment code. There is merit in this. An employer
should live up to the expectations created amongst his staff
by his
unilateral code.”

This court has
in the past basing itself on this passage held employers to their
rules. Even in casu we believe the respondent
must be held to these
regulations.

For
these reasons we are of the view that the impropriety cannot be
excused. The applicant’s dismissal was accordingly unfair
in the
circumstances, having come about as a result of disciplinary
proceedings conducted by an improperly constituted committee.

Counsels agreed that the applicant will no longer be seeking
reinstatement and that the question of quantum be left open for them

to negotiate.

When
agreement is reached such agreement will be made an order of court.
In the circumstances the question of quantum is left for
the
negotiation of the parties as agreed. There is no order as to costs.

THUS
DONE AT MASERU THIS 23RD DAY OF NOVEMBER, 2001.

L.A
LETHOBANE

PRESIDENT

G.K.
LIETA

MEMBER I
AGREE

M.
MAKHETHA

MEMBER I
AGREE

FOR
APPLICANT : MR PHAFANE

FOR
RESPONDENT: MS MATSHIKIZA