IN THE
LABOUR COURT OF LESOTHO

LC
/REV/ 233/06

(LAC/REV/103/04)

HELD AT
MASERU

IN THE
MATTER BETWEEN

CENTRAL
BANK OF LESOTHO APPLICANT

AND

DIRECTORATE
OF DISPUTES

PREVENTION
AND RESOLUTION 1^ST RESPONDENT

C.T.
THAMAE 2^ND
RESPONDENT

MEREKI
MONKU 3^RD
RESPONDENT

JUDGMENT

Date of
hearing: 09/11/06

Labour
Court is empowered to review DDPR awards – Only material canvassed
before the DDPR can be taken on review to the Labour
Court.
Application for review must be filed within 30 days of the receipt of
the award – Procedure - To be able to succeed on
the complaint that
he was refused permission to see the minutes to enable him to
formulate grounds of appeal a litigant must prove
that he suffered
prejudice- 3^rd
respondent had no right in terms of the staff rules and regulations
to have access to the minutes – The award reviewed and set
aside.

1. 
   The applicant has applied for the review of the
   decision of the Directorate of Disputes Prevention and Resolution
   (DDPR) in which
   the latter had confirmed the substantive dismissal
   of 3^rd
   respondent but found his dismissal procedurally flawed. The DDPR
   per 2^nd
   respondent awarded the 3^rd
   respondent compensation of three (3) months wages in the amount of
   M27 727.00 for the alleged procedural impropriety. Applicant
   seeks
   the review and setting aside of the order that it pays 3^rd
   respondent the aforesaid compensation.

   
   

2. 
   A brief summary of the facts will suffice. The 3^rd
   respondent was employed by the applicant bank on the 15^th
   January 2001 as a banking officer. In October 2003 some M595 000.00
   was disbursed irregularly and without proper authority.

   
   

3. 
   The irregular disbursement was investigated and the
   3^rd
   respondent was found to have played a role. The 3^rd
   respondent was then subjected to disciplinary proceedings in terms
   of the Staff Rules and Regulations of the bank.

   
   

4. 
   The applicant duly appeared before a disciplinary
   committee which recommended after the hearing that applicant be
   found guilty
   of some of the charges and be found not guilty of some.
   The committee further recommended that the 3^rd
   respondent be suspended for a period of one month without pay.

   
   

5. 
   In terms of the Staff Rules and Regulations the
   recommendations together with the record of proceedings must be
   forwarded to the
   Director of Administration who after considering
   them is empowered to make a decision on what action should be taken.
   It is
   common cause that the Director of Administration decided that
   the applicant was guilty on all the charges and that the
   appropriate
   penalty was dismissal which he communicated to the
   applicant in terms of the rules on the 14^th
   January, 2004.

   
   

6. 
   The applicant lodged an appeal to the Governor of
   the bank. He personally appeared before the Governor to motivate
   his grounds
   of appeal on the 11^th
   February 2004. On the 19^th
   February, 2004 he was informed that his appeal had not been
   successful.

   
   

7. 
   He then filed a referral for unfair dismissal with
   the DDPR which was heard on the 17^th
   June 2004. Evidence was heard on both sides and on the 3^rd
   August, 2004 the 2^nd
   respondent issued an award in terms of paragraph 1 above.

   
   

8. 
   The applicants have sought the review of the award
   of compensation on the grounds that:

   
   

(a). the 2^nd
respondent awarded compensation on the single argument that the
applicant refused to make minutes of the disciplinary committee

available to 3^rd
respondent for the purpose of his appeal to the Governor.

(b). 2^nd
respondent based his views on a misinterpretation of evidence before
him in as much as the minutes of the disciplinary proceedings
could
not assist the 3^rd
respondent in his appeal. Only the written decision of the Director
of Administration which he had in his possession could help
him.

(c). The disciplinary procedure of the applicant
does not mandate the availing of minutes of disciplinary proceedings
to an employee.

(d). 3^rd
respondent suffered no prejudice as a result of unavailability of
the minutes as annexure “D” shows that he was quite capable
of
formulating his grounds of appeal notwithstanding that minutes were
not available.

9. 
   The review application was issued out of the
   Registry of this court on the 2^nd
   September 2004, which was well within thirty (30) days as provided
   by section 228 F (1) (a) of the Labour Code (Amendment) Act
   2000
   (the Act).

   
   

10. 
    It was only on the 22^nd
    June 2005 that the 3^rd
    respondent filed opposing affidavits which were accompanied by an
    application for condonation of the late filing of the same.
    It is
    significant to note that Rule 16 (7) requires any person who intends
    to oppose an application for review to deliver
    his opposing
    affidavits within fourteen (14) days after receipt of notice either
    amending the applicant’s ground of review
    or a notice that the
    applicant stands by its notice of motion.

    
    

11. 
    It is not clear from the record if the 3^rd
    respondent was ever served with the notice aforesaid. We cannot
    therefore say by how much time he was late. However, at the
    hearing
    hereof the condonation of the late filing of opposing affidavits was
    granted unopposed.

    
    

12. 
    In his answering affidavits the 3^rd
    respondent raised some four points in limine. These were the
    following:

    
    

(a). the alleged investigation report on which the
Director of Administration relied when dismissing 3^rd
respondent is unsigned and therefore constitutes inadmissible
evidence.

(b). The authors of that report were neither called
to testify on it nor required to file supporting affidavits.

(c). The Director of Administration did not have
power to dismiss 3^rd
respondent without first consulting with the Deputy Governor
responsible for administration.

(d). The two representatives of the applicant before
the DDPR namely Mr. Makara and Ms Guni did no have requisite
authority to do
so.

13. 
    Except for the fourth point, all the other in
    limine points relate to the substantive attack on the manner the
    disciplinary proceedings
    against the applicant were conducted by
    the disciplinary committee. It is common cause that they were not
    raised at the DDPR
    proceedings. They arise for the first time
    before this court.

    
    

14. 
    It is trite that in a review, the court is not
    confined to the record of the administrative process because the
    legality of the
    process may itself be the issue. (See Baxter,
    Administrative Law 1996 Juta & Co., P.307). Sometimes it may be
    necessary
    to go beyond the record to establish the illegality or
    irregularity complained of.

    
    

15. 
    However, to constitute reviewable material, the
    issues ought to have been raised before the body whose decision is
    being sought
    to be reviewed. This court is empowered to review
    awards of the DDPR on any ground recognizable in Law. (See Section
    228 F
    (3) of the Act as amended by Act No. 5 of 2006).

    
    

16. 
    The issues being raised as points in limine, are
    not in our view reviewable by this court in as much as they were
    never considered
    by the DDPR whose decision this court is empowered
    to review and correct where necessary.

    
    

17. 
    It is worth mentioning that the 3^rd
    respondent’s answering affidavit did no more than repeat the
    foregoing points in limine as his substantive defence to the main

    application. Accordingly the comments made with regard to the
    points raised in limine apply similarly to them.

    
    

18. 
    The last point raised in limine concerned
    representation. Counsel for the applicants correctly pointed out
    that this amounts
    to a belated attempt at seeking a counter review
    of the decision of the 2^nd
    respondent by the 3^rd
    respondent. As earlier pointed out an application for review of the
    decision of the DDPR ought to be made within thirty (30)
    days after
    one receives the award. Whilst 3^rd
    respondent applied for condonation of late filing of the answering
    affidavits he did not apply for condonation of late filing
    of the
    review application.

    
    

19. 
    Assuming he had properly applied for such
    condonation applicant’s point was still bound to fall away
    because the applicant’
    representation at the DDPR complied with
    Section 228 A of the Act which provides:

    
    

“(1). In any proceedings under this part, a
party to the dispute may appear in person or be represented only by

(a)

(b)

(c)

(d). if a party to the dispute is a juristic
person, by a director, officer or employee.”

20. 
    The two persons who represented the applicant were
    admittedly employees of high standing within the applicant’s
    establishment
    namely; Director of Administration and the Secretary
    of the Board.

    
    

21. 
    Coming now to the applicant’s ground of review, we
    need mention that 3^rd
    respondent’s only direct response to them was that he was indeed
    denied access to the minutes and that the applicant conceded
    the
    same. The applicant contends that the 2^nd
    respondent based his finding on that single argument that the
    applicant was denied a copy of the minutes.

    
    

22. 
    Looking at the record it was not even the
    applicant’s argument that he was denied the minutes of the
    proceedings and as such
    he suffered a prejudice in formulating his
    appeal. What is clear at page 66 of the paginated record, is that
    applicant informed
    the arbitration as part of the summary of his
    case that he was not allowed to have access to the minutes when he
    asked for them.

    
    

23. 
    By so saying 3^rd
    respondent was clearly not asking for any relief as a result of that
    denial of the minutes. It is trite that the court may not
    give a
    litigant what they have not asked for. Nowhere in that record did
    3^rd
    respondent put the issue of the minutes as a complaint for which he
    sought relief.

    
    

24. 
    Assuming he had indeed sought for relief, Mr.
    Fischer submitted correctly that 3^rd
    respondent would have to prove that he had suffered prejudice as a
    consequence of that denial. That this is the applicable principle

    is aptly captured by Trollip J. in Geidel .V. Bosman No and Another
    1963 (4) SA 253.

    
    

25. 
    At page 255 B-D of the judgment the learned Judge
    states:

    
    

“Section 24 (1) of the Supreme Court Act
provides that the proceedings of an inferior court may be reviewable
on the ground, inter alia,
of a “gross irregularity” in the proceedings.” This was the
same ground as was previously contained in Section 19 of the

Transvaal Proclamation, 14 of 1902, now repealed. According to the
decisions given under the latter and similar statutes a
“gross irregularity” in civil
proceedings means an irregular act or omission by the magistrate or
(possibly some other officer
or official of the court) in respect of
the proceedings of so gross a nature that it was calculated to
prejudice the aggrieved
litigant on proof of which the court would
set aside such proceedings unless it was satisfied that the litigant
had infact not
suffered any prejudice.”

26. 
    Further down the same page the learned Judge state
    further in paragraph H;

    
    

“In regard to onus
of proof in such proceedings, it is clear from the authorities that
the plaintiff or applicant …. must first prove the existence
of the
irregularity and that it was so gross that it was calculated to
prejudice him, and if he discharges the onus,
then his adversary or opponent must satisfy the court that he infact
suffered no prejudice.”

27. 
    No evidence of prejudice suffered by the 3^rd
    respondent as a consequence of being denied access to the minutes
    was tabled before the 2^nd
    respondent. As a result the applicant did not lead any evidence
    in rebuttal. But before this court, Mr. Fischer for the
    applicant
    contended that had that been necessary they would have shown that
    the 3^rd
    respondent suffered no prejudice as he was able to formulate
    comprehensive grounds of appeal despite not being given access
    to
    the minutes. This contention was not contradicted.

    
    

28. 
    It was contended further that the 2^nd
    respondent misinterpreted the evidence before him in as much as the
    minutes sought by the 3^rd
    respondent were superfluous because only the reasons contained in
    the letter of the Director of Administration could effectively
    help
    him to formulate the grounds of appeal as he indeed was able to do.
    Furthermore, it was contended that the Staff Rules
    and Regulations
    of the applicant make no provision for the availing of the minutes
    of the disciplinary committee to the aggrieved
    employee.

    
    

29. 
    Indeed according to annexure “D”, page 55 of the
    paginated record, 3^rd
    respondent was able to formulate comprehensive grounds of appeal on
    the basis of the dismissal letter of the Director of Administration

    alone. He has not suggested which other ground remain that he would
    have raised if the minutes were availed to him, now that
    he has seen
    both the minutes and the report of the investigation committee.
    This lends credibility to the contention that the
    minutes sought
    were superfluous and that their non-availability to applicant did
    not cause him any prejudice.

    
    

30. 
    It is equally true that the Staff Rules and
    Regulation on which 3^rd
    respondent places heavy reliance throughout his case, do not
    entitle him to the minutes of the proceedings of the disciplinary

    committee. Rule 12 of the Staff Rules and Regulations require the
    Director of Administration to communicate his decision to
    the
    affected staff member in writing. This the Director did.

    
    

31. 
    If the Director had failed to communicate his
    decision in writing as aforesaid, 3^rd
    respondent would have a case. Since the rules are silent on whether
    a staff member should be availed the copy of the minutes
    of the
    proceedings, it was irregular for the arbitrator to have made a
    pronouncement that it was improper for the applicant
    not to avail
    them without first pronouncing the rules and regulations themselves
    as unfair for not making such a provision.
    The act of the
    arbitrator in the circumstances amounted to legislating for the
    applicant. This is an arena into which a court
    must avoid to be
    drawn.

    
    

32. 
    For these reasons we have come to the conclusion
    that the 2^nd
    respondent’s decision to find that applicant committed a
    procedural irregularity and consequent awarding of three months

    compensation to 3^rd
    respondent for not availing minutes of disciplinary proceedings to
    the 3^rd
    respondent was irregular.

    
    

33. 
    The award of the 2^nd
    respondent that the 3^rd
    respondent be paid M27 729.00 representing three months salary as
    compensation is accordingly reviewed , corrected and set aside.
    The
    application for review accordingly succeeds as prayed in the notice
    of motion. There is no order as to costs.

    
    

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

L.
A. LETHOBANE

PRESIDENT

L.
MATELA I AGREE

MEMBER

R.
MOTHEPU I AGREE

MEMBER

FOR
APPLICANT: ADVOCATE FISCHER

FOR
RESPONDENT: ADVOCATE MAKKHOLELA