IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 111/00

LC112/00

LC125/00

LC140/00

LC141/00

HELD
AT MASERU

IN
THE MATTER OF:

J.
KNESL APPLICANT

J.J.
NORTJE APPLICANT

JOHAN
NIEMAN APPLICANT

ANTHONIE
DE WIT APPLICANT

G.G.
GEORGIOU APPLICANT

AND

MOHALE
MATSOKU CONTRACTORS RESPONDENT

JUDGMENT

The
five applicants filed separate applications in which they sued the
respondent Joint Venture for an alleged unfair retrenchment.
The
applicants are all male South Africans who were employed to work in
the Lesotho Highlands Water Project under the respondent
Joint
Venture. They were employed in senior and/or specialist positions.
All the five Originating Applications were presented
to the Court
outside the six months time limit prescribed by section 70(1) of the
Labour Code Order 1992 (The Code). They were
thus each accompanied
by a condonation application in terms of rule 30 of the Labour Court
Rules 1994 (the rules).

It
is trite law that in terms of section 70(2) of the Code, this Court
may allow presentation of a case outside the six months period

prescribed in sub-section(1) if it is satisfied that the interests of
justice so demand. In applying this section to the facts,
this Court
has held that in order for it to satisfy itself as to the demands of
justice in each case, there must be good cause
shown by the
defaulting party. (see Khotso Sonopo .v. Lesotho Telecommunications
Corporation LC67/95 (unreported). The Court
has further adopted the
principle that in showing good cause, the defaulting party must
explain his delay, show the prospects of
success as well as that the
delay is not inordinate (see Melane .v. Santam Insurance Ltd 1962(4)
SA 530). We will consider the
applications case by case.

1. J. Knesl
   LC111/00

   
   

This
applicant was retrenched on the 22^nd
March 1999. He filed his Originating Application with the Registry
of this Court on the 11 September 2000, some one and a half
years
after his termination. This represents a delay of one year. There
is no doubt in our minds that it is an inordinate delay.
All five
applicants give the same explanation for their delay. It will
therefore be convenient to deal with that reason all at
once.

On
the prospects, the applicant avers that he was retrenched without
consultation. He avers further that the respondent took no
steps to
avoid retrenching him and that the reason that the project is
finished is a disguise because he was replaced. In short
the
applicant contends that the respondent has not followed the
retrenchment guidelines. It may be true that the retrenchment

guidelines were not followed as alleged, but that in itself would not
entitle the applicant to the relief sought namely, reinstatement.

In
his article Retrenchment: The New Guidelines (1985) 6 ILJ 127
Professor Cheadle aptly states:

“these
guidelines are not absolute rules of law – they are no more than
canons of good industrial relations practice which change
with
circumstances.....should an employer deviate from the principles laid
down, it will not mean that the employer necessarily
acted
unreasonably.”

In the letter
of termination the employer put it to the applicant herein that “all
employees are certainly aware that the initial
phase of mobilization
of the three projects is about to be completed. As a result of
operational requirements it has therefore
become necessary for
management to review its employee complement in view of its
adaptation to the new situation.” In the letter
that applicant
wrote to the respondent as well as in his founding papers he has not
denied this averrement, but he claims that
he was not consulted.
That does not make sense.

Applicant’s
claim that he was immediately replaced by a Mr. Janson cannot advance
his contention that he was unfairly retrenched
any further. His
departure for operational reasons clearly did not mean immediate
closure of the project. Depending on the criteria
used to retrench
there would be some persons left who would continue with what may be
termed mopping up operations. With regard
to alternatives to
retrenchment, the project applicant was working for was contracted to
perform a specific work. In terms of
section 62(4) of the Code “a
contract to perform some specific work....shall terminate upon the
completion of the work...”

In
our view there can be no talk of alternatives to retrenchment in such
a situation. As to when the particular phases of the work
end
thereby necessitating the periodic scaling down of particular
sections of the work force as was apparently the case in casu,
is
within the peculiar knowledge of the management concerned. We
therefore, find that this applicant has no prospects of success
on
the merits.

1. 
   

2. 
   

3. J. J.
   Nortje LC112/00

   
   

This
applicant was employed as the Workshop Foreman. He was retrenched
on the 8^th
March 1999. He launched these proceedings on the 11^th
September 2000, which was one and a half years after the termination
of his contract of employment. This again in an inordinate
delay.

On
the prospects, the applicant says he has prospects because
respondent misrepresented facts to him. Looking at the proposed

originating application it is apparent that applicant’s grounds
for relief are similar to those of Mr. Knesl. This applicant
says he
was not consulted; secondly he says he was not furnished with the
reasons for termination. Lastly he says he had a legitimate

expectation to work for a longer period and this expectation was
arbitrarily ended.

Individually
the employees may not have been consulted, but overall it seems the
respondent’s attitude is that the employees knew
that certain
phases of the project were being completed as a result of which
workforce reductions would have to be done. As indicated
these
applicants were employed in reasonably senior positions where they
would in the normal course of things get to know the
progress of the
project and its timing. We are not therefore, persuaded that the
retrenchment took the applicant by surprise.
The letter of
termination is curt. It merely states “please
note that your services with MMC are no longer required with effect
from 9^th
March, 1999”. No
reason(s) are given.

However in
their answer the respondents say the reason was redundancy. This
reason, cannot ex facie the papers be disputed.
In any event in
terms of the Code failure to give reasons for termination does not
nullify the termination. It is an offence
punishable by
imposition of a fine. It does not affect the fairness or otherwise
of the dismissal. (See Section 69 (4) of the
Code). Regarding the
expectation to work for a longer period the applicant does not show
the basis on which he bases this expectation
to work for the period
required by the project. The preamble to his letter of appointment
clearly states that the duration of
his appointment will be as per
the Joint Venture’s requirements. Furthermore, clause 12.2.1
provides that either party may
terminate the contract upon giving
thirty days notice. The view that we hold is that there cannot be
talk of legitimate expectation
to work for the life of the project in
the face of such clear clauses which show that the contract may be
terminated prior to
the end of the project. Accordingly, we are not
satisfied that even this applicant has prospects of success.

Johan
Nieman LC 125/00

This
applicant was employed as a Senior Surveyor. He was terminated on
the 16^th
July 1999. He launched his originating application on the 11^th
October, 2000, some one year and three months after his dismissal.
Once again this is an unreasonable delay, given that according
to the
code the case must have been presented to court within six months of
the dismissal. This applicant’s reasons for challenging
his
termination are the same as those of the previous two applicants.
Accordingly the reasons for not finding any prospects of
success in
respect of those two apply with equal force to the present applicant.

1. Anthonie
   De Wit LC140/00

   
   

This
applicant was retrenched on the 11^th
August 1999. He launched his application on the 2^nd
November 2000. This was one year and five months after the
termination, a delay of eleven months. This was clearly an
unreasonably
long delay. The reason advanced for challenging the
retrenchment is that the applicant was replaced by some two persons
and
that he had a legitimate expectation that his contract would
last until August 2002. Furthermore, no steps were taken to avoid

retrenchment.

Quite
clearly the circumstances in which applicants were employed were not
such as would allow the application of the retrenchment
guidelines
without a variation. Applicant’s letter of termination clearly
says the respondent is undergoing reorganisation
and this does not
mean total phasing out of operations. Some persons may be retained
as respondent says, with lower qualifications
to finish off the job.
Therefore, the fact that some persons continued to do the job
applicant was doing does not necessarily
mean that his retrenchment
was unfair. With regard to legitimate expectation there is nothing
in the contract of employment that
can give rise to the expectation
that applicant’s contract would last until August, 2002.

1. G.G.
   Georgiou LC 141/00

   
   

This
applicant was employed as a Quantity Assurance Manager. He says he
was employed in Sandton South Africa on the 18^th
March 1998. He was allegedly told that his contract would be for
fifty-two months. In April, 1998 he was transferred to Lesotho.
He
was issued with a letter of appointment for his Lesotho
assignment. On the 2^nd
July he was presented with a letter of retrenchment. The applicant
avers that as the Quantity Assurance Manager he expected to
be the
last to leave site and that he expected to be given a hearing before
his expectation to work for the remainder of the
period he did not
serve was taken away.

This
application was launched on the 2^nd
November 2000. Like all the others this application was hopelessly
out of time as it was filed one year and four months after
the
termination. With regard to prospects, other than his ipse dexit ,
there is nothing in his contract of employment to support
applicant’s
averrement that he was told that his contract of employment would be
for forty-two months. We have already observed
that when a company
winds down it does not mean that operations come to an abrupt halt.
Accordingly the claim that a Mr. Begg
and Mr. Dixen continued to do
applicant’s work cannot be conclusive proof that there was no need
to retrench. Similarly, as
to who would be the last to leave site,
is not capable of being determined by anybody else, least of all this
court, other than
the respondent through their lawful
representatives. Accordingly this applicant too has no prospects of
success.

1. Explanations
   for the Delay

   
   

All
five applicants have furnished the same reason as being the cause of
their delay. That is that they relocated to their country,
the
Republic of South Africa; where after obtaining legal advise they
took their cases to the South African Commission for Conciliation,

Mediation and Arbitration (CCMA). The Commission dismissed their
claim on the ground that it had no jurisdiction to hear the
matters
as they originate in Lesotho. They aver further that their RSA
Attorney briefed their present attorneys of record, but
during the
exchange of instructions the firm of T. Makeka & Associates
approached their RSA attorney saying that they represented
the
respondents. Messrs T. Makeka then allegedly asked that all those
former employees’ claims be compiled and sent to him so
that both
parties could consider settlement. They state further that their RSA
attorney duly compiled the claims and sent same
to Messrs Makeka’s
office on the 5^th
June 2000. Despite repeated reminders nothing was heard from Mr.
Makeka until this day. Applicants submit that it is for these

reasons plus the fact that they are hindered by distance to consult
and instruct counsel effectively that they have delayed to
launch
these proceedings.

A
satisfactory explanation leaves no questions lingering in the mind of
the person to whom it is furnished. Furthermore, where
reliance is
made on a person as a cause of the delay like in casu, evidence must
be availed to support the allegations. The contracts
of all the five
applicants clearly point out that they were employed to work for the
Joint Venture in Lesotho. There is no explanation
why they decided
to take their cases to the South African courts. We do not know if
it was a result of ignorance, misunderstanding
or anything.
Secondly, the applicants are not specific when they took their cases
to the CCMA. This is important because they
may have approached even
the CCMA after the six months had already lapsed.

It
is significant that the respondents deny ever briefing Messrs T.
Makeka to represent them in this matter. Despite this denial
the
applicants place heavy reliance on the fact that they lodged their
claims with Messrs T. Makeka who has allegedly never responded
until
today. No affidavit was obtained from Mr. Makeka by the applicants
to confirm their averrements in this regard. Accordingly,
their
claim that their cases delayed due to false promises by Messrs Makeka
& Associates is not sustainable. As regards distance
we are in
full agreement with respondents’ counsel that the applicants cannot
be heard to blame distance in this modern systems
of communication.
In any event the applicants were themselves to blame because they
failed to brief counsel while still in Lesotho.
For these reasons we
are not satisfied with the explanations given. Accordingly the
condonation applications are refused with
costs.

THUS
DONE AT MASERU THIS 5TH DAY OF DECEMBER, 2001.

L.A
LETHOBANE

PRESIDENT

A.T.
KOLOBE

MEMBER I
AGREE

S.
MAKHASANE

MEMBER I
AGREE

FOR
APPLICANTS: MS MAHASE

FOR
RESPONDENT: MR LOUBSER