IN THE
LABOUR COURT OF LESOTHO

LAC/REV/31/03

LC/REV/82/06

HELD AT
MASERU

IN THE
MATTER BETWEEN

FRASERS
LESOTHO

AND

THE DIRECTORATE OF DISPUTES

PREVENTION AND RESOLUTION 1^ST
RESPONDENT

FRANCIS LEKAU 2^ND
RESPONDENT

JUDGMENT

Date of
hearing : 14/11/06

Referral
of disputes to the DDPR must be made in the regions in which the
dispute arose – The Director may permit that a dispute
be referred
in a district other than the one in which it arose.

1. 
   The applicant filed a notice of motion on the 16 July
   2004 seeking an order in the following terms:

   
   
   
   

   1. 
      Calling upon the respondents to show cause why the
      decision or proceedings in arbitration case No. 0349/03 shall not
      be reviewed
      corrected and set aside.

      
      

   2. 
      Calling upon the 1^st
      respondent to deliver the record of proceedings in Arbitration Case
      No. 0340/03 and any other reasons which it wishes to give
      to the
      Registrar within fourteen (14) days hereto.

      
      

   3. 
      That the respondents pay costs of this application in
      the event that they oppose this application.

      
      

   4. 
      Granting applicant such further and/or alternative
      relief.

      
      
   
   

2. 
   This application arises out of an award of the
   arbitrator of first respondent in which she found that the 2^nd
   respondent, who had been employed and worked in the district of
   Mafeteng could file a referral arising out of that employment
   in any
   one of the various regional offices of the Directorate of Disputes
   Prevention and Resolution (DDPR).

   
   

3. 
   The 2nd respondent referred a dispute concerning unpaid
   wages, leave pay, notice severance pay, overtime and pension. As
   said
   2^nd
   respondent was employed and worked at applicant’s store at
   Malea-lea, which is in the district of Mafeteng.

   
   

4. 
   At the hearing a representative for the applicant
   Advocate Sephomolo raised an objection to the filing of the referral
   in Maseru
   whilst the 2nd respondent worked in Mafeteng district
   which falls in the southern region whose head office is at Mohole’s
   Hoek.
   She contended that the referral ought to be filed in Mafeteng
   which is where all the records pertaining to 2^nd
   respondent’s employment can be found. She was overruled, hence
   this review application.

   
   

5. 
   None of the respondents filed any opposing papers.
   Even at the hearing hereof none attended. Only Ms Sephomolo for the
   applicant
   attended. She pointed out that they have referred this
   case as a special case and review on a point of law, in particular
   whether
   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.

   
   

6. 
   It is common cause that the DDPR has been established
   under section 46B of the Labour Code (Amendment) Act 2000 (the Act),
   as
   a national dispute prevention and resolution body. However in
   order to facilitate its service delivery, the directorate
   decentralized
   its offices by establishing three regional offices.

   
   

7. 
   The central region covers the districts of Berea,
   Maseru and Thaba-Tseka. The Northern region covers the districts of
   Leribe,
   Butha-Buthe and Mokhotlong. Lastly, it established the
   Southern Region which is responsible for Mafeteng, Mohale’s Hoek,
   Quthing
   and Qacha’s Nek districts.

   
   

8. 
   The intention for the establishment of these regional
   offices was as said to decentralize, service delivery so that
   disputes arising
   in those regions can be resolved right there where
   they arose. These offices were established by administrative
   decree. The
   arrangement has functioned smoothly since inception to
   this day.

   
   

9. 
   Decision making is the heart of administration. Except
   where directly instructed by statute, administrative decision making
   is
   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
   mind in
   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
   .v. Witwatersrand
   Nigel Ltd & Another 1988 (3) SA 132(A) at 152 A-E).

   
   

10. 
    Once an administrative action/decision has been taken
    it is binding and it must be followed unless its legality is
    challenged
    on any of the following grounds:

    
    

1. 
   That the perpetrator of the action in question is not
   legally empowered to perform the act.

   
   

2. 
   That the decision has not been taken by a lawfully
   constituted authority.

   
   

3. 
   The decision/act was performed without due regard to
   circumstantial and procedural prerequisites prescribed by the
   empowering
   legislation.

   
   

4. 
   The decision/act was exercised unreasonably.

   
   

5. 
   The decision/act was not taken in a fair manner.

   
   

(See
L. Baxter, Administrative Law 1996 Juta & Co. p.301).

11. 
    In terms of section 46B(9) of the Act, the Director is
    responsible for the proper management and functioning of the DDPR.
    It
    follows therefore that the Director has the requisite authority
    and power to act and make binding administrative decisions on behalf

    of the DDPR.

    
    

12. 
    Such decisions and actions ought to be followed and
    given effect to unless, they are declared illegal by a review court
    of competent
    jurisdiction.

    
    

13. 
    The effect of the above remarks is that, in deciding as
    she decided, the learned arbitrator, effectively ignored the
    Director’s
    decision that there will be such regional offices which
    will be responsible to handle disputes arising in their respective
    area
    of jurisdiction.

    
    

14. 
    It cannot be correct that notwithstanding the existence
    of the regional offices, claims may be referred in any district that
    one
    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,
    unless
    that administrative decision is changed.

    
    

15. 
    There is no allegation that the decision has been
    changed. It must therefore be implemented and followed. (See
    Attorney General
    and 3 Others .v. M.S. Makesi & 85 Others C. of
    A. (CIV) No.3 of 2000 unreported), in which the Principal Secretary
    for the
    Public Service deposed to an affidavit that the decision of
    Cabinet to upgrade the positions of Local and Central Courts
    Presidents
    had been changed hence why it was not effected.

    
    

16. 
    The Court of Appeal found that the statement that the
    relevant Cabinet decision was changed was not supported by evidence.
    The
    court went on to endorse the proposition that a decision maker
    may cancel it as follows:

    
    

“There
can be no dispute that a policy-maker is entitled to change policy
decisions. The importance of an unfettered power to change
policy
has been stressed …..But this does not mean that the power of the
courts to intervene in appropriate circumstances has
removed.”
P.12 of typed judgment.

17. 
    Policy decisions create expectations and as such they
    must not only be followed they also cannot be changed willy-nilly
    especially
    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 [1972] 2 ALL ER 589 where
    the
    learned Lord Justice pointed out that “a person or public body
    entrusted with powers for public purposes cannot divest
    themselves
    of those powers e.g. by contract.” Lord Denning went further to
    point out that;

    
    

“….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
honour it.”

18. 
    By the same token the litigants referring disputes to
    the DDPR must do so in accordance with administrative arrangements
    put in
    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
    arose.

    
    

19. 
    For these reasons the statement of the arbitrator that
    “….all the DDPR offices have jurisdiction to hear and determine
    any
    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.

    
    

THUS
DONE AT MASERU THIS 11^TH
DAY OF DECEMBER 2006

L.
A. LETHOBANE

PRESIDENT

M.
THAKALEKOALA I CONCUR

MEMBER

D.
TWALA I CONCUR

MEMBER

FOR
APPLICANT: MS SEPHOMOLO

FOR
RESPONDENT: NO APPEARANCE