LABOUR COURT OF LESOTHO
BANK OF LESOTHO APPLICANT
AND RESOLUTION 1ST RESPONDENT
Court is empowered to review DDPR awards Only material canvassed
before the DDPR can be taken on review to the Labour
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
respondent had no right in terms of the staff rules and regulations
to have access to the minutes The award reviewed and set
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
respondent but found his dismissal procedurally flawed. The DDPR
respondent awarded the 3rd
respondent compensation of three (3) months wages in the amount of
M27 727.00 for the alleged procedural impropriety. Applicant
the review and setting aside of the order that it pays 3rd
respondent the aforesaid compensation.
A brief summary of the facts will suffice. The 3rd
respondent was employed by the applicant bank on the 15th
January 2001 as a banking officer. In October 2003 some M595 000.00
was disbursed irregularly and without proper authority.
The irregular disbursement was investigated and the
respondent was found to have played a role. The 3rd
respondent was then subjected to disciplinary proceedings in terms
of the Staff Rules and Regulations of the bank.
The applicant duly appeared before a disciplinary
committee which recommended after the hearing that applicant be
of some of the charges and be found not guilty of some.
The committee further recommended that the 3rd
respondent be suspended for a period of one month without pay.
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.
common cause that the Director of Administration decided that
the applicant was guilty on all the charges and that the
penalty was dismissal which he communicated to the
applicant in terms of the rules on the 14th
The applicant lodged an appeal to the Governor of
the bank. He personally appeared before the Governor to motivate
of appeal on the 11th
February 2004. On the 19th
February, 2004 he was informed that his appeal had not been
He then filed a referral for unfair dismissal with
the DDPR which was heard on the 17th
June 2004. Evidence was heard on both sides and on the 3rd
August, 2004 the 2nd
respondent issued an award in terms of paragraph 1 above.
The applicants have sought the review of the award
of compensation on the grounds that:
(a). the 2nd
respondent awarded compensation on the single argument that the
applicant refused to make minutes of the disciplinary committee
available to 3rd
respondent for the purpose of his appeal to the Governor.
respondent based his views on a misinterpretation of evidence before
him in as much as the minutes of the disciplinary proceedings
not assist the 3rd
respondent in his appeal. Only the written decision of the Director
of Administration which he had in his possession could help
(c). The disciplinary procedure of the applicant
does not mandate the availing of minutes of disciplinary proceedings
to an employee.
respondent suffered no prejudice as a result of unavailability of
the minutes as annexure D shows that he was quite capable
formulating his grounds of appeal notwithstanding that minutes were
The review application was issued out of the
Registry of this court on the 2nd
September 2004, which was well within thirty (30) days as provided
by section 228 F (1) (a) of the Labour Code (Amendment) Act
It was only on the 22nd
June 2005 that the 3rd
respondent filed opposing affidavits which were accompanied by an
application for condonation of the late filing of the same.
significant to note that Rule 16 (7) requires any person who intends
to oppose an application for review to deliver
affidavits within fourteen (14) days after receipt of notice either
amending the applicants ground of review
or a notice that the
applicant stands by its notice of motion.
It is not clear from the record if the 3rd
respondent was ever served with the notice aforesaid. We cannot
therefore say by how much time he was late. However, at the
hereof the condonation of the late filing of opposing affidavits was
In his answering affidavits the 3rd
respondent raised some four points in limine. These were the
(a). the alleged investigation report on which the
Director of Administration relied when dismissing 3rd
respondent is unsigned and therefore constitutes inadmissible
(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 3rd
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
Except for the fourth point, all the other in
limine points relate to the substantive attack on the manner the
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.
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
to go beyond the record to establish the illegality or
irregularity complained of.
However, to constitute reviewable material, the
issues ought to have been raised before the body whose decision is
to be reviewed. This court is empowered to review
awards of the DDPR on any ground recognizable in Law. (See Section
(3) of the Act as amended by Act No. 5 of 2006).
The issues being raised as points in limine, are
not in our view reviewable by this court in as much as they were
by the DDPR whose decision this court is empowered
to review and correct where necessary.
It is worth mentioning that the 3rd
respondents 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.
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 2nd
respondent by the 3rd
respondent. As earlier pointed out an application for review of the
decision of the DDPR ought to be made within thirty (30)
one receives the award. Whilst 3rd
respondent applied for condonation of late filing of the answering
affidavits he did not apply for condonation of late filing
Assuming he had properly applied for such
condonation applicants 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
(d). if a party to the dispute is a juristic
person, by a director, officer or employee.
The two persons who represented the applicant were
admittedly employees of high standing within the applicants
namely; Director of Administration and the Secretary
of the Board.
Coming now to the applicants ground of review, we
need mention that 3rd
respondents only direct response to them was that he was indeed
denied access to the minutes and that the applicant conceded
same. The applicant contends that the 2nd
respondent based his finding on that single argument that the
applicant was denied a copy of the minutes.
Looking at the record it was not even the
applicants 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
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.
By so saying 3rd
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
litigant what they have not asked for. Nowhere in that record did
respondent put the issue of the minutes as a complaint for which he
Assuming he had indeed sought for relief, Mr.
Fischer submitted correctly that 3rd
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.
At page 255 B-D of the judgment the learned Judge
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.
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
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.
No evidence of prejudice suffered by the 3rd
respondent as a consequence of being denied access to the minutes
was tabled before the 2nd
respondent. As a result the applicant did not lead any evidence
in rebuttal. But before this court, Mr. Fischer for the
contended that had that been necessary they would have shown that
respondent suffered no prejudice as he was able to formulate
comprehensive grounds of appeal despite not being given access
the minutes. This contention was not contradicted.
It was contended further that the 2nd
respondent misinterpreted the evidence before him in as much as the
minutes sought by the 3rd
respondent were superfluous because only the reasons contained in
the letter of the Director of Administration could effectively
him to formulate the grounds of appeal as he indeed was able to do.
Furthermore, it was contended that the Staff Rules
of the applicant make no provision for the availing of the minutes
of the disciplinary committee to the aggrieved
Indeed according to annexure D, page 55 of the
paginated record, 3rd
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
were superfluous and that their non-availability to applicant did
not cause him any prejudice.
It is equally true that the Staff Rules and
Regulation on which 3rd
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
affected staff member in writing. This the Director did.
If the Director had failed to communicate his
decision in writing as aforesaid, 3rd
respondent would have a case. Since the rules are silent on whether
a staff member should be availed the copy of the minutes
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
For these reasons we have come to the conclusion
that the 2nd
respondents decision to find that applicant committed a
procedural irregularity and consequent awarding of three months
compensation to 3rd
respondent for not availing minutes of disciplinary proceedings to
respondent was irregular.
The award of the 2nd
respondent that the 3rd
respondent be paid M27 729.00 representing three months salary as
compensation is accordingly reviewed , corrected and set aside.
application for review accordingly succeeds as prayed in the notice
of motion. There is no order as to costs.
DONE AT MASERU THIS 11TH
DAY OF DECEMBER 2006.
MATELA I AGREE
MOTHEPU I AGREE
APPLICANT: ADVOCATE FISCHER
RESPONDENT: ADVOCATE MAKKHOLELA
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law