IN THE
LABOUR COURT OF LESOTHO LC/16/03

HELD AT
MASERU

IN THE
MATTER BETWEEN

THEBE
NTHO APPLICANT

AND

C & Y GARMENTS RESPONDENT

JUDGMENT

Date
06/07/06

Settlement
– applicant denying attorney was authorized to settle – applicant
alleges non-consultation – Evidence – authority
and consultation
occurred – Rescission only proper where decision was made in the
absence of another party – Application dismissed.

This case
arises out of the dismissal of the applicant and sixteen others on
the 23^rd August
2002 for allegedly embarking on a go slow. The applicant filed the
present application on the 19^th
May 2003 challenging the propriety of his dismissal on the ground
that evidence led did not support the finding that he participated
in
a go slow. The respondents answered in accordance with the rules and
the pleadings closed. The matter was set down for the
26^th
August 2003. On the 18^th
July, Counsels were advised that the matter would not proceed and
they were invited to approach the Registrar for allocation of
a new
date.

The matter
was rescheduled to be heard on the 7^th
October 2003. By consent of Counsels for both sides the matter was
postponed to 28^th
October 2003. On that date i.e. 28^th
October, Messrs Matooane for the applicant and Kao for the respondent
appeared before the President and reported that they had
reached a
settlement which was to the effect that applicant be paid severance
pay and one month’s notice in full and final settlement
of the
dispute. They requested that the agreement be made an order of Court
which was done. This understandably closed the matter.
Surprisingly
however, on the 5^th
November 2003 Mr. Matooane purported to file a notice of withdrawal
as applicant’s attorney of record. In a similarly bizarre
turn of
events on the 28^th
January 2004, Messrs Ntlhoki & Co. were appointed as applicant’s
new attorneys of record.

On the
12^th February
2004, the then Registrar wrote a letter to Mr. Ntlhoki alerting him
to the settlement agreement which was reached and
made an order of
Court on the 28/10/03. There is no evidence of any response, suffice
it to say on the 22^nd
October 2004 the new attorneys of the applicant filed a Notice of
Application seeking an order condoning the late filing of the

application and an order rescinding the settlement agreement that was
made an order of Court on the 28^th
October 2003. On the 19^th
October 2005 the Court granted an order condoning the late filing of
the rescission application and directed that the respondent
in
reconvention should file its answer if any to the Notice of
Application for rescission in accordance with the rules of the court.

The
respondent in reconvention duly answered and the applicant in
reconvention filed a Reply. Pleadings closed and the rescission

application was heard on the 6^th
July 2006. The thrust of the applicant’s case is that the Court
should rescind the settlement agreement because his then attorney
of
record did not consult him and that he had infact not instructed him
to enter into any settlement on his behalf. The gravement
of the
respondent’s Answer is contained in the supporting affidavit of Mr.
Matooane who avers that having considered all facts
and circumstances
of the case he advised applicant and his colleagues to settle and
that he then proceeded to negotiate with their
mandate.

He averred
that it was only when he advised them to go and collect their
payments that the applicant complained that the amounts
were too
small. He averred further that when he told him that that was the
best he could do in the circumstances he then said
he would go it
alone. He specifically denied that applicant and his colleagues were
not consulted. He stated that applicant consented
to the settlement
in the presence of his father.

In his
reply applicant repeated his denial that he was consulted on the
settlement or that he authorized Mr. Matooane to negotiate
a
settlement on his behalf. At the hearing, Counsel for the applicant
applied to lead oral evidence and applicant took the witness
stand in
order to prove that he was not consulted. His testimony in a way
confirmed the supporting affidavit of Mr. Matooane.
He said that
when the matter was about to proceed in Court Mr. Matooane told him
that the respondents wanted to negotiate a settlement.
He stated
further that while he awaited the negotiations he was presented with
a settlement agreement. He goes further to say
that he told Mr.
Matooane that he wanted to meet face to face with respondent’s
negotiators. Instead of doing that Mr. Matooane
made him a cheque in
the amount of two thousand Maluti (M2,000.00) which represented the
settlement. Under cross-examination Ms
Thabane for the respondent
asked applicant if he agreed when Mr. Matooane told him that the
respondent wanted to negotiate. He
said he agreed to talk with them.
It was put to him that he sought the assistance of a lawyer so that
he could with his expertise
get him his dues, he agreed. He was then
asked, why do you refuse to accept what he presented to you as being
what he was able
to get on your behalf? His answer was that he
should have been present. Applicant’s evidence does not show
someone who was
not consulted. On the contrary it shows that he was
consulted and he duly authorized Mr. Matooane to go ahead with the
negotiations.

Applicant’s
major concern from his evidence is that he was not personally
involved in the negotiations. Indeed Mr. Matooane does
not pretend
that applicant was present. However, not being personally present
does not mean that the attorney was not authorized
or that he did not
consult. Infact when he was asked why he refused to accept the
cheque for the money which he authorized the
attorney to get from his
employer as is stated in paragraph 6(c) of the Originating
Application, applicant could only say Mr. Matooane
did not explain to
him clearly that the money was what he had authorized him to obtain
from the respondent on his behalf. We entirely
agree with the
applicant that this is simply a case of misunderstanding not lack of
authority or non-consultation. Evidence of
applicant shows clearly
that authority existed and consultation occurred. That applicant
felt he had to be personally present
is again a misunderstanding
because he has appointed an attorney precisely to represent him in
such matters. His personal presence
was therefore not necessary.

Quite
clearly this application cannot succeed on the grounds of; lack of
authority and consultation. There is however, another
grounder on
which this applicant was bound to fail. The applicant approached
this Court by way of rescission. In terms of section
24(2)(c) of the
Labour Code (Amendment) Act 2000 the Court is empowered to:

“rescind
any decision made in the absence of a party to the litigation.”

It is
common cause that the applicant was duly represented on the 28^th
October 2003 when the settlement was recorded and made an order of
Court. Once so recorded the settlement represented a final
judgment
which can be appealed against. To seek to reopen it by way of a
rescission application was clearly irregular in as much
as both
applicant and the respondent were represented. For this reason the
application was again bound to be dismissed. It is
accordingly
dismissed with costs.

THUS
DONE AT MASERU THIS 14^TH
DAY OF JULY 2006

L.
A. LETHOBANE

PRESIDENT

R.
MOTHEPU I CONCUR

MEMBER

J. M.
TAU I CONCUR

MEMBER

FOR
APPLICANT: MS LEKALAKALA WITH MS NKOE

FOR
RESPONDENT: MS THABANE