IN THE
LABOUR COURT OF LESOTHO

LC/31/05

HELD AT
MASERU

IN THE
MATTER BETWEEN

LABOUR
COMMISSIONER (OBO

DECEASED
MOTLALEPULA

CHARLES
RAKHOBA’S FAMILY) APPLICANT

AND

LETA SECURITY SERVICES (PTY) LTD RESPONDENT

JUDGMENT

Date
: 26/07/06

Workmen’s
Compensation Act 1977 – Workman fatally shot by robbers – Late
filing of claim for compensation – condonation
– sec. 13(b) –
Applicant to prove delay was caused by mistake or other reasonable
cause – Reasons not showing that delay
was caused by mistake or
other reasonable cause – Delay of three years inordinate – Ex
facie pleadings, claim not having prospects
of success – Deceased
did not die on duty – section 14(3)(a) and sec. 11(1) and (3) –
Labour Commissioner made no determination
if there are dependants
left by deceased – In absence of dependants no compensation is
payable – Application for condonation
dismissed – claim
prescribed.

The
applicant is the Labour Commissioner suing on behalf of the family of
a deceased workman Mr. Motlalepula Charles Rakhoba pursuant
to
section 16(b) of the Labour Code Order 1992. The said section
provides that a Labour Officer may:-

“(b)
institute and carry on civil proceedings on behalf of any employee,
or the employee’s family or representative, against any
employer in
respect of any matter or thing or cause of action arising in
connection with the employment of such employee or the
termination of
such employment.”

The
respondent is a registered security company which employed the
deceased at the time of his untimely death.

The
deceased was employed by the respondent as a security guard. He was
assigned to guard a supermarket at Motimposo in Maseru.
On the 29^th
March 2002 at around 1900 hours, he was fatally shot through the head
by suspected robbers. Agreed facts are that at the time
of the
incident the deceased was not at the supermarket that he was employed
to guard. He was some one kilometer away escorting
the Chinese owner
of the supermarket who was apparently going home after closing the
shop. He had handed over the guard duty to
another security guard at
18.00 hours.

It is
further an agreed fact that contrary to section 14(1) of the
Workmen’s Compensation Act 1977 (the Act), which requires an

employer to report an accident that results in the death or absence
of a workman from work for three days or more, to the Labour

Commissioner within three days of the accident, the respondent herein
reported the deceased’s death after two months and two
weeks of the
occurance of the accident. In his report the employer specifically
recorded that the deceased was not on duty at
the time of accident.
The report is dated 12^th
June 2002.

Following
the report of the employer the Labour Commissioner assessed the
compensation payable at M25,440.00. The assessment was
done on the
16^th October 2002.
It is not clear when the assessment was communicated to the
employer. However, on the 24/03/03 which is just five
days short of
a full year from the date of the accident, a reminder was sent to the
respondent to pay compensation in respect of
the death of the
deceased. They (respondent) were given fourteen (14) days within
which to act. On the 23^rd
April 2003 the section dealing with Workmen’s Compensation
transferred the claim to the Legal Section of the Department. They

specifically informed the Legal Section that their “…office (had)
made several attempts to recover the compensation payable
to the
workman including written and telephonic reminders which were
fruitless.”

We mention
these dates to underscore the dilatory conduct of the applicants
herein. It was only on the 24^th
March 2005 that the Legal Section filed a claim for compensation in
this court. This was five days short of three years since
the
workman died. Section 13 of the Workmen’s Compensation Act 1977
(the Act) provides in part that:

“13
Proceedings for the recovery under this Act of compensation for an
injury shall not be maintainable unless notice of the accident
has
been given either orally or in writing to the employer or to any
foreman or other official under whose supervision the workman
is
employed, by or on behalf of the workman as soon as practicable after
the happening thereof and before the workman has voluntarily
left the
employment in which he was injured, and unless the claim for
compensation with respect to such accident has been made
within six
months from the occurance of the accident causing the injury or in
the case of death, within six months from the time
of death:

Provided
that :

“(a)
…

“(b)
the failure to make a claim for compensation within the period above
specified shall not be a bar to the maintenance of such
proceedings
if it is found that the failure was occasioned by mistake or other
reasonable cause,

“but
no proceedings for the recovery of compensation shall be maintainable
unless the claim is made within a period of three years
from the date
of the accident.”

Quite
clearly the applicants filed the claim after the lapse of six months
but before the expiry of three years. It follows that
the
applicants’ default falls within a condonable delay provided that
the applicant proves that their delay was occasioned by
mistake or
other reasonable cause. As it would be expected the applicants made
an application for condonation, in which they proffered
the reasons
that have caused the delay.

Applicants’
first reason is that the respondent delayed to report the accident,
and that delay had an adverse effect on the timeous
filing of the
claim. As mentioned above, the respondent admitted that they made
the report on the 12^th
June 2002, which was two months and two weeks after the deceased’s
death. Obviously the applicant had two months and two weeks
to
compute the claim and file it in court. We say they should have
filed it in court within the time available because in their
report
the respondent had already made it clear that as far as they were
concerned the deceased’s death had neither arisen out
of, nor in
the course of employment. Accordingly, all that the applicant had to
do was to assess the compensation payable, communicate
it to the
employer and initiate legal proceedings for the recovery of that
compensation because the respondent’s attitude was
already known.
Two and a half months was sufficient for the applicant to have
fulfilled the above functions and they would have
remained within the
prescribed time frame.

Applicants’
second reason is that they are a busy office as such they were only
able to compute the compensation due on the 23^rd
October 2002. This was some three weeks after the lapse of six
months. We have already shown that applicants ought to have been

able to process the assessment of compensation and filed same in
court within the time available from the 12^th
June 2002 when they received the report. Their failure to do so
could only be attributable to applicants’ generally lax and

dilatory conduct. It is significant to note that the applicants are
the office entrusted with the administration of the act under

discussion. They are therefore the people best placed to know that
the act has time frames that have to be complied with. The
lame
excuse that they are a busy office, is a clear case of a litigant who
manufactures his inconvenience and later plead it in
court. The
court will not countenance such conduct.

Applicants’
third reason for the delay is that since the time stipulated by the
Act had already lapsed when the computation was
completed on the
23/10/02, they decided to seek an amicable settlement of the dispute.
Obviously in applicant’s own words, the
delay was worsened by
their free choice not to approach the court for relief, but to repeat
the efforts of the workmen’s compensation
section of seeking an
amicable settlement which had already failed. If applicants had
lodged the claim on the 23^rd
October when the assessment was completed, or soon thereafter, the
delay would at that time have been reasonable. There is no
doubt
that the delay being sought to be condoned is an ordinate one.
Furthermore, as Mr. Teele for the respondent submitted, applicant’s

explanation shows that the delay was willful. If they could not seek
the court’s indulgence only three weeks after the lapse
of the
statutory time frame, because they felt at that time that they were
out of time; they should be even more reluctant to approach
the court
almost three years late. The view that we hold is that the delay is
not only inordinate, even the cause therefor is
neither occasioned by
mistake nor other reasonable cause.

PROSPECTS
OF SUCCESS

Mr.
Moshoshoe for the applicants argued that the applicants had good
prospects of success on the merits. He argued that there is
evidence
that the injury causing the deceased’s death arose out of and in
the course of employment. He referred us to section
5(1)(b) which
provides that:

“(b)
if it is proved that the injury to a workman is attributable to the
serious and willful misconduct of that workman, any compensation

claimed in respect of that injury shall be disallowed:

Provided
that where the injury results in death or serious and permanent
incapacity, the court, on
consideration of all the circumstances may award the compensation
provided by this Act or such part thereof as it
shall think fit.”
(emphasis added).

The
highlighted phrase refers to a workman who sustains injury in the
course of employment whilst such accident is not necessarily
arising
out of employment or vice-versa. In terms of the act, compensation
is payable if the accident arises out of and in the
course of
employment. Both facts must exist contemporaneously.

If one of
the two facts is missing compensation is not payable. However, if
the accident results in death or serious permanent
incapacity, the
curt may in its discretion upon consideration of the relevant facts
award full compensation in terms of the Act
or part thereof. The
admitted facts of this case do not fit into the above scenario. The
respondents’ contention is that both
qualifying facts do not exist.
In other words the accident neither arose out of, nor in the course
of the deceased’s employment.

In the
accident report form the employer furnished the following as the
description of the accident:

“The
deceased was not on duty at the time of accident. His duty was at
Great Sentuary Supermarket. He is alleged to be killed at
about 1 km
away from his duty place …. After he had knocked off from duty, he
took another duty beside the one on contract (of
escorting) the
Chinese…..”

This
report is clear regarding the circumstances in which the deceased
died. In terms of section 14 (1) of the Act an accident
which
results in death of a workman must be reported to the Labour
Commissioner. Section 14(3) provides that:

“(3)
on the receipt of a notice under subsection (1) or (2) the Labour
Commissioner may make such investigations as he may think
fit and if
it appears to him that a claim for compensation may lie under this
Act in respect of the death of the workman he shall
take steps;

1. 
   to ascertain whether there are any dependants of the
   deceased workman and if so the degree of their dependency; and

   
   

2. 
   to inform such dependants if any of the reported
   cause and circumstances of the death of the workmen and to ascertain
   whether
   such dependants intend to make a claim for compensation or
   wish a claim to be made on their behalf.”

   
   

In the
light of the report of the employer that the deceased did not die on
duty, one would have expected the Labour commissioner
to have invoked
section 14(3) to enable the department to make an informed decision
whether a claim for compensation could lie
under the act. No
investigation was made, as a result, ex facie
the papers there is nothing to support counsel’s ipse
dexit that the applicant has a good case on
the merits. The only facts we have are the undenied report of the
employer that the deceased
did not die on duty. We cannot in the
circumstances share counsels’ submission that the applicants have
good prospects of success.

In
paragraph 5 of their Answer the respondent raised a further point
that there are no prospects of success not only because the
deceased
did not die on duty, but there is a further factor that the “deceased
had no known dependants to his employers. When
deceased was buried
respondent’s employees performed all the duties from cooking,
assisting in the digging and collecting deceased
from the mortuary.”
Indeed in terms of section 14(3)(a) after receipt of the report of
the death of a workman one of the functions
of the office of the
Labour commissioner is to ascertain whether there are any dependants
of the deceased workman and if so the
degree of their dependency.
This duty does not seem to have been carried because the Originating
Application does not disclose
any dependant(s) of the deceased on
behalf of whom this action is brought. Indeed when the court
enquired from Mr. Moshoeshoe
who the dependant(s) of the deceased are
he said they are as yet unknown and it is only after the compensation
would have been
paid that the Labour Commissioner would make
enquiries who the beneficiaries are; and then distribute the money to
them.

In terms
of the Act investigations must precede the lodging of the claim.
When the dependants have been found it is them who decide
whether
they make a claim for compensation or they would want a claim to be
made on their behalf. When Mr. Moshoeshoe realized
the weakness of
his response to the court’s question, he changed and said they are
acting on behalf of an uncle of the deceased,
a Mr. Rakhoba whose
first name he did not even know. This was of course a fierce attempt
at salvaging the situation for two reasons.

In the
first place this Mr. Rakhoba is not alleged anywhere in the papers.
Secondly, assuming the truthfulness of the existence
of this Mr.
Rakhoba, Mr. Moshoeshoe could validly, but not necessarily correctly
say he is instructed by an uncle of the deceased
because his
Originating Application says they are acting on behalf of the family
of the deceased. Whilst an uncle is a member
of the family of the
deceased, he is not necessarily his dependant.

In this
connection we were referred to section 11(1) and (3) of the Act which
provides that:

“11(1)
The compensation shall be payable to or for the benefit of the
workman, or where death results from
the injury to or for the benefit of his dependants
as provided by this Act. (emphasis added).

“(2)
….

“(3)
Where a dependant dies before a claim in respect of death is made
under this Act, or if a claim has been made, before an order
for the
payment of compensation has been made, the legal personal
representative of the dependant shall have no right to payment
of
compensation and the claim for compensation shall be dealt with as if
that dependant had died before the workman.”

We have
emphasized the words that the compensation is payable to or for the
benefit of the dependants of the deceased workman precisely
to show
that it is not every relative who can just claim compensation for the
death of a workman. The Act defines a dependant
as :

“…those
members of the family of a workman….who were wholly or in part
dependant upon his earnings at the time of his death, or
would but
for the incapacity due to the accident have been so dependant….”

It goes
further to provide that a person shall not be deemed to be a partial
dependant of another person unless he was dependant
partially on
contributions from that other person for the provision of the
ordinary necessaries of life.

For Mr.
Rakhoba to qualify to claim or for a claim to be made on his behalf
he ought to have been either wholly or partially dependant
on the
deceased for the provision of the basic necessities of life. That
could only be determined if the office of the Labour
Commissioner had
invoked the powers vested in it by section 14(3)(a) of the Act i.e.
if it had investigated the existence or other
wise of dependants of
the deceased and the extent of their dependency. In the absence of
that determination section 11(3) of the
Act applies and no
compensation is payable to the Labour Commissioner as the legal
personal representative of the dependants of
the deceased. Assuming
condonation were to be granted it would be a worthless exercise as
there are no prospects of success in
the light of the sections of the
Act referred to in the body of this judgment. It is assumed that no
dependants were left by the
deceased and pursuant to section 11(3) no
compensation is payable in the circumstances. Accordingly there will
be no point in
condoning the late filing of this matter, it is
therefore dismissed on account of being out of time. There is no
order as to costs.

THUS
DONE AT MASERU THIS 3RD DAY OF AUGUST 2006

L.
A. LETHOBANE

PRESIDENT

J. M.
TAU I CONCUR

MEMBER

D.
TWALA I CONCUR

MEMBER

FOR
APPLICANTS: MR. MOSHOESHOE

FOR
RESPONDENT: MR. TEELE