LABOUR COURT OF LESOTHO
THE DIRECTORATE OF DISPUTES
PREVENTION AND RESOLUTION 1ST
FRANCIS LEKAU 2ND
hearing : 14/11/06
of disputes to the DDPR must be made in the regions in which the
dispute arose The Director may permit that a dispute
in a district other than the one in which it arose.
The applicant filed a notice of motion on the 16 July
2004 seeking an order in the following terms:
Calling upon the respondents to show cause why the
decision or proceedings in arbitration case No. 0349/03 shall not
corrected and set aside.
Calling upon the 1st
respondent to deliver the record of proceedings in Arbitration Case
No. 0340/03 and any other reasons which it wishes to give
Registrar within fourteen (14) days hereto.
That the respondents pay costs of this application in
the event that they oppose this application.
Granting applicant such further and/or alternative
This application arises out of an award of the
arbitrator of first respondent in which she found that the 2nd
respondent, who had been employed and worked in the district of
Mafeteng could file a referral arising out of that employment
one of the various regional offices of the Directorate of Disputes
Prevention and Resolution (DDPR).
The 2nd respondent referred a dispute concerning unpaid
wages, leave pay, notice severance pay, overtime and pension. As
respondent was employed and worked at applicants store at
Malea-lea, which is in the district of Mafeteng.
At the hearing a representative for the applicant
Advocate Sephomolo raised an objection to the filing of the referral
whilst the 2nd respondent worked in Mafeteng district
which falls in the southern region whose head office is at Moholes
She contended that the referral ought to be filed in Mafeteng
which is where all the records pertaining to 2nd
respondents employment can be found. She was overruled, hence
this review application.
None of the respondents filed any opposing papers.
Even at the hearing hereof none attended. Only Ms Sephomolo for the
attended. She pointed out that they have referred this
case as a special case and review on a point of law, in particular
it is correct that a claimant can refer their dispute to any
one of the regional offices of the DDPR irrespective of the region
in which it arose.
It is common cause that the DDPR has been established
under section 46B of the Labour Code (Amendment) Act 2000 (the Act),
a national dispute prevention and resolution body. However in
order to facilitate its service delivery, the directorate
its offices by establishing three regional offices.
The central region covers the districts of Berea,
Maseru and Thaba-Tseka. The Northern region covers the districts of
Butha-Buthe and Mokhotlong. Lastly, it established the
Southern Region which is responsible for Mafeteng, Mohales Hoek,
and Qachas Nek districts.
The intention for the establishment of these regional
offices was as said to decentralize, service delivery so that
in those regions can be resolved right there where
they arose. These offices were established by administrative
arrangement has functioned smoothly since inception to
Decision making is the heart of administration. Except
where directly instructed by statute, administrative decision making
essentially an exercise of a discretion, in order to give effect
to the object and intention of the statute they are implementing.
Such discretion must as a rule be exercised judicially. In other
words the decision maker must act reasonably and apply his
accordance with the behests of the statute viz. the act. (see JDG
Trading (Pty) Ltd t/a Supreme Furnitures .v. M. Monoko,
N.O and 20
others LAC/REV/39/04 (unreported) and the cases therein cited in
particular Johannesburg Stock Exchange and Another
Nigel Ltd & Another 1988 (3) SA 132(A) at 152 A-E).
Once an administrative action/decision has been taken
it is binding and it must be followed unless its legality is
on any of the following grounds:
That the perpetrator of the action in question is not
legally empowered to perform the act.
That the decision has not been taken by a lawfully
The decision/act was performed without due regard to
circumstantial and procedural prerequisites prescribed by the
The decision/act was exercised unreasonably.
The decision/act was not taken in a fair manner.
L. Baxter, Administrative Law 1996 Juta & Co. p.301).
In terms of section 46B(9) of the Act, the Director is
responsible for the proper management and functioning of the DDPR.
follows therefore that the Director has the requisite authority
and power to act and make binding administrative decisions on behalf
of the DDPR.
Such decisions and actions ought to be followed and
given effect to unless, they are declared illegal by a review court
The effect of the above remarks is that, in deciding as
she decided, the learned arbitrator, effectively ignored the
decision that there will be such regional offices which
will be responsible to handle disputes arising in their respective
It cannot be correct that notwithstanding the existence
of the regional offices, claims may be referred in any district that
deems convenient to them. That would make a mockery of the
whole field of administration and administrative law. Disputes must
be referred in accordance with that administrative arrangement that
they will be made in the regions/districts where they arose,
that administrative decision is changed.
There is no allegation that the decision has been
changed. It must therefore be implemented and followed. (See
and 3 Others .v. M.S. Makesi & 85 Others C. of
A. (CIV) No.3 of 2000 unreported), in which the Principal Secretary
Public Service deposed to an affidavit that the decision of
Cabinet to upgrade the positions of Local and Central Courts
had been changed hence why it was not effected.
The Court of Appeal found that the statement that the
relevant Cabinet decision was changed was not supported by evidence.
court went on to endorse the proposition that a decision maker
may cancel it as follows:
can be no dispute that a policy-maker is entitled to change policy
decisions. The importance of an unfettered power to change
has been stressed
..But this does not mean that the power of the
courts to intervene in appropriate circumstances has
P.12 of typed judgment.
Policy decisions create expectations and as such they
must not only be followed they also cannot be changed willy-nilly
where such decision creates rights. Thus in the case of
Makesi supra the learned Judge of Appeal referred to the remarks of
Lord Denning MR in Reg. .v. Liverpool Corporation Ex parte Liverpool
Taxi Fleet Operations Association  2 ALL ER 589 where
learned Lord Justice pointed out that a person or public body
entrusted with powers for public purposes cannot divest
of those powers e.g. by contract. Lord Denning went further to
point out that;
principle does not mean that a (public) corporation can give an
undertaking and break it as they please. So long as the performance
of the undertaking is compatible with their public duty they must
By the same token the litigants referring disputes to
the DDPR must do so in accordance with administrative arrangements
place by the Director. One thing good about administrative
decisions is that as pointed out in paragraph 16 above, they are not
immutable. Thus if the circumstances of a case so require, the
Director may vary that a particular case be referred in a district
other than the one in which it arose. But the general rules remains
that they must be referred in the district in which they
For these reasons the statement of the arbitrator that
.all the DDPR offices have jurisdiction to hear and determine
referral whose cause of action occurred anywhere in Lesotho
to the extent that it declared a general rule and not an exception,
duly authorised by the Director, is reviewed, corrected and set
aside. There is no order as to costs.
DONE AT MASERU THIS 11TH
DAY OF DECEMBER 2006
THAKALEKOALA I CONCUR
TWALA I CONCUR
APPLICANT: MS SEPHOMOLO
RESPONDENT: NO APPEARANCE
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