Labour Court Of Lesotho

IN THE LABO U R COU R T OF LESO T H O

CA S E NO LC 121/01 HELD AT MA S E R U IN THE MATT E R OF:

MA M O S H E LIME M A

APPLI C A N T

AND THE DIRE C T O R OF DISP U T E PRE V E N T I O N AND RE S O L U T I O N RE S P O N D E N T

JUDGMENT

The applicant is one of a member of persons who were appointed by the Minister of Labour and Employment under the Labour Code (Amendment) Act No 3 of 2000 to be Arbitrators in the new Directorate of Dispute Prevention and Resolution. The letter of appointment specifically provided in paragraph 2 that; “your appointment is subject to gone successful completion of a legal foundation course to be held in Maseru as well as successful

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completion of a two months post-graduate Diploma (Conciliation and Arbitration) tenable at the University of Namibia starting 1st April, 2001.” It is common cause that the applicant’s appointment was also effective from the 1st April 2001. It is not disputed that the respondent was also appointed as the Director of the Directorate on similar conditions regarding the successful completion of a Post graduate Diploma course. Upon their return from Namibia the respondent who in terms of the parent legislation is the Chief Accounting Officer of the Directorate (Section 46 b (8)) officially learned the applicant had failed to complete the Post-graduate Diploma course which they had all attended in Namibia. The respondent then terminated the applicant’s contract pursuant to Clause 4.4 of the contract which she had signed with the respondent representing the Directorate. The conclusion of the contract between the applicant and the respondent is said by the respondent to have been done pursuant to the last paragraph of the letter of the Minister appointing applicant as arbitrator which stated that; “your other terms and conditions will be stipulated in the contract you will be expected to sign during the week of 5 March 2001.” Clause 4.4 in terms of which applicant’s contract was terminated provides as follows: “It is an express term of this contract that the Directorate shall have the right to terminate the contract on one week’s notice should the employee not successfully graduate in the post- graduate diploma in law (conciliation and arbitration ) to be offered at the University of Namibia in the second quarter of 2001.” Following termination her contract on the 21st June 2001 the applicant sought the intervention of some other structures of government short of launching a claim in a court of law. However, on the 13 th December 1001 the applicant finally caused to be issued out of the Registry of this court an originating application in which she challenged her dismissal by the respondent on a number of grounds. On the 31 st December 2001

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the respondent filed his answer to the applicant’s originating application in which he raised a point in limine that this court does not have jurisdiction to entertain this matter in terms of the Labour Code (Amendment) Act 2000. The respondent also pleaded over in the merits outlining what his account of events would be in the event of the point in limine not being upheld. The matter was scheduled to be heard on the 6th June 2002. It turned out on the date of hearing the applicant had on the 30th April 2002, filed a notice of application in terms of which she was asking the court to condone her institution of these proceedings before this court and in turn praying the court to grant her leave to prosecute her case before this court. This application was opposed by the respondent . However, on the date scheduled for the hearing the application was abandoned, in our view wisely so, albeit for different reasons. We say this was a wise move because there is no procedure in the rules of this court in terms of which this court can be moved to grant the relief sought by the applicant. It was accordingly ruled by the court that the respondent proceed with his point in limine. By arrangement with both counsels it was agreed that counsels should adopt a holistic rather than a piecemeal approach. Accordingly, counsels addressed both the point in limine and the merits of the case all at once. It follows therefore, that we must start first by determining the point of law in limine and in the vent of it being successful that will be the end of this matter. The court will only consider the merits if the point of law is not successful. In our view the determination of the point taken in limine lies on three grounds. The fist is estoppel, the second, is whether the jurisdiction of the Labour Court in matters such as the present is excluded and finally assuming the answer is in the affirmative, is the instant matter the one falling under the excluded categories. Starting with estoppel the rule as stated by Schalk Van Merwe et al; Contract: General Principles 1st Ed. Juta & Co, p.23 would seem to be as follows: “In terms of estoppel someone who has been brought under an incorrect impression (in other words who has been misled) by another and who in reliance on that impression has acted to his

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detriment, may prevent (estop) the other person from relying on the correct state of affairs before a court of law. If estoppel is raised successfully it has the effect the incorrect impression is maintained as if it were correct. Estoppel thus functions by means of a fiction.” Before the start of the proceedings Mr. Mohapi for the respondent was called into chamber with Ms Tau for the applicant. The purpose was to remind Mr. Mohapi in the presence of his opponent that the office of the Directorate of Dispute Prevention and Resolution represented by the respondent and himself have an arrangement whereby cases already filed with this court must not be referred back to the Directorate but this court must remain seized with them through to finality. Mr. Mohapi however, insisted that the point being raised is a legal one and it cannot be compromised by administrative arrangements. This much he was correct. We considered whether he may not be estopped from insisting that the case be referred to the Directorate as a forum if competent jurisdiction but came to a negative conclusion. This in our view would not be a suitable case to apply the principle because there is no party who has relied on that administrative arrangement to his or her prejudice. The arrangement is known peculiarly between the institutions and no one can claim to have been prejudiced by reliance on it. On the other hand Ms Tau for the applicant averred albeit from the bar and the court was prepared to condone this anomaly because it represented consultations made in good faith between counsels. She averred that when she realised that the claim of her client was running the risk of being time barred she approached Mr. Mohapi and asked what should happen in the light of the fact that the logistics for the start of the registration of complaints were lagging behind. Mr. Mohapi had informed her that she should file her case with this court. This she did on the 13th December 2001. It was only following the publication of Legal Notice No.4 of 2002 dated 11th January 2002 that it was possible to lodge claims with the Directorate.

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Mr. Mohapi, in response stated that even if he may have said so it was already possible to lodge claims with the Directorate after publication of Legal Notice No. 103 of July 2000. This is totally incorrect. All the functional sections relevant for the referral of cases i.e. section225 and those that govern the settlement of disputes by the Directorate namely; Section 226 and 227 were left suspended by Legal Notice No.103 of 2000. They were only brought into operation by Legal Notice No.4 of 2002 approximately a month after the applicant filed her claim with this court. Reliance was sought to be placed on the decision of this court in Ntjolo Leuta & Another .V. Lesotho Brewing Company (Pty) Ltd. LC 81/00 (unreported) in which this court held that in terms of Section 16 (b) of the Interpretation Act 1977 the Labour Code (Amendment) Act 2000 which is the law establishing the Directorate, came into operation on the eve of the day next preceding the day of its publication in the Gazette namely 24th April, 2000. Mr. Mohapi argued that as of then it was theoretically possible to file cases with the Directorate and the applicant should have done likewise. Despite the court holding that the Act had commenced operation as it did, that did not mean that institutions envisaged by the Act for smooth implementation of the Act were in place to accept referrals of disputes. By Mr. Mohapi’s own admission the logistics were behind hence why he referred Ms Tau to this court. It is clear therefore, that the applicant could not be expected to file a case with an institution that had not yet commenced operation. Having referred the applicants to this court as an institution in which they could seek relief in the absence of the Directorate than the respondent cannot be heard to say today that the applicant has brought her case to a wrong forum. This is a proper case where the respondent must be estopped from relying on the inappropriateness of the forum no matter how valid that argument may be. We come now to the issue whether it is correct that the amendment excludes the jurisdiction of the Labour Court as alleged or at all. Ms Tau argued that this is a case of rescission of contract combined with the claim that the dismissal is unfair. She referred us to Section 24 (2) (e) which provides that the Labour Court shall have the power ;

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“(e) to rescind any contract of employment and make such consequential orders as may be just in the circumstances.” It is common cause that nowhere in the enabling stature is the Directorate clothed with powers to rescind contracts. Such is the power of this court. In the contrary Section 226 (3) provides that; “Notwithstanding the provisions of this Section, the Director may refer a dispute contemplated in sub-section (2) to the Labour Court for determination if the Director is of the opinion that the dispute may also concern matters that fall within the jurisdiction of the court.” (Emphasis added). The phrase highlighted above is meant to underscore that the legislature does not anticipate the splitting of claims where two claims or more fall in two different jurisdictions. The entire dispute would have to be referred. Accordingly we do not see this as a case that would qualify as falling outside the jurisdiction of this court because in the end the director assuming he properly inform his opinion would still refer it to this court. It was further argued by Ms Tau that in any event the statute in question does not exclude the jurisdiction of the Labour Court as alleged. Indeed it seems to us that there is merit in this argument. Out attention as never drawn to a particular section and we could not find one either which ousts the jurisdiction of this court and in turn vests exclusive jurisdiction in the Directorate. Where exclusivity is intended the legislature expressly says so in the statute as it did in Section 25 (1) of the Labour Code Order, 1992 as amended by Section 9 of the Labour Code (Amendment) Act 2000 as well as in Section 226 (1) of the Amendment. For these reasons we are of the view that the point of law in limine must be dismissed and it is accordingly dismissed. Coming now to the merits, the first ground on which the applicant founds her challenge to her dismissal is that the contract in terms of which the applicant was purportedly dismissed was void ab initio in as much as it was signed by a person who did not have authority and it was not properly executed as it was not initialed on every page. The

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legislation in terms of which the app0licant was appointed is silent in regard to the manner in which the contract must be executed. Similarly the letter of appointment as well as the contract are silent. We are unaware of an invariable rule of law and we are of the view that there is none, which requires that to be valid a contract has to be signed on each and every page. It may be a practice but it has not been incorporated into our law. The second leg of her contention is that the contract is void because the Director who signed it did not have power to do so in as much as his appointment at the time was provisional. Upon his successful completion of the Diploma course. Again there is nothing in the law to support the contention that the conditionality of the respondent’s appointment in any way incapacitated him from concluding valid contract on behalf of the Directorate. Indeed it would appear even his letter of appointment made no reservations in regard to his power to enter into binding contracts on behalf of the Directorate. It was further contended that the contract ought to have been signed by the Minister before witnesses. Furthermore, it was argued that the enabling statute does not give the Director power to hire and dismiss staff he did not appoint. The staff, applicant included, were appointed by the Minister and in terms of Section 46B (4) it is the Minister who must determine the terms and condition of the persons appointed under Section 46 B (3) (a) it was contended. Just like the signing each page of contract document there is no rule of substantive law which suggests that a contract particularly a contract of employment must be signed before witnesses in order for it to be valid. The law says the Minister shall determine the terms and conditions. That is not the same as signing. Accordingly the Minister may determine the terms and conditions but have tem signed by somebody else and not himself as such. There is nothing to suggest that the terms and conditions which the applicant signed for with the respondent were not determined by the Minister. Indeed the letter of appointment which applicant was written by the Minister already stated in the last paragraph “your other terms and conditions will be stipulated in the contract you will be expected to sign during the week of 5 March 2001.” Clearly the Minister is not in any way disowning

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authorship of the said terms and conditions. The onus was on the applicant to show that the terms and conditions were not determined by the Minister and she has not discharged that onus. It is true that the principal law does not give the Director power to hire and dismiss. Equally true is the averrement that it also does not give him the power to dismiss the staff appointed by the Minister. However, such powers need not necessarily be stipulated in the enabling statute. They may as it is the case in casu be stipulated in the contract of employment itself. It is further argued that in terms of Clause 1.1 of the contract the Directorate purported to appoint the applicant as an arbitrator when the principal law provided that applicant would be appointed by the Minister. Two things need be noted in this regard. Firstly, putting aside symantics the Minister’s letter of appointment clearly stated that applicant’s other terms and conditions would be governed by a contract that she would sign in due course. The heading of the document Clause 1.1 of which is being attacked clearly state that the document is a “contract of employment between the Directorate of Dispute Prevention and Resolution and Mamoshe Limema.” It does not purport to be a letter of appointment. Secondly even assuming this was indeed a letter of appointment by the Directorate it would seem that would be quite in lime with Section 46 B (2) which provides that ; “(2)

The Directorate shall be; (a) a juristic person; and (b) independent of the government, any political party, trade union and employer or employers’ organisation.”

If the directorate is a juristic person and is independent as stated it ought to be able to appoint its own members of staff. Lastly it was contended that the dismissal of the applicant was wrongful and unfair in that; she was dismissed by a person who did not have powers to dismiss her, she was dismissed without a hearing and lastly she was dismissed on a basis of provision results. Firstly we have already stated that the respondent’s powers to dismiss applicant are spelt out in the contract between applicant end the directorate.

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According to annexure “DDPR 5” of the answer the applicant was given an opportunity to make representation regarding whether she has passed. That is what a hearing in an employment context entails. We were availed copies of the results ships from the University of Namibia and the National University of Lesotho. The former says it is a provisional results slip and understandably so because the result still needed the endorsement of the Faculty of Law and the Senate of the National University of Lesotho. Substantively however, there was no change. The final results slip issued by the National University of Lesotho still carried the same result as those that were issued by the University of Namibia in that the applicant had still not been successful in the course that she had to pass in order to be confirmed. The court sought to find out if the applicant could avail a result slip other than the provisional one which would show that she had passed. She did not have such a result slip. In our view this was clearly an academic argument which could not advance applicant’s case any further because in the end of it all the applicant had still not passed. In the premises we came to the conclusion that there in no merit in this application it is accordingly dismissed. Given the success and failure of both sides in the argument on the point in limine and the merits of the case itself we find it only fair that each party should bear its own costs. It is accordingly so ordered.

THU S DON E AT MA S E R U THI S 1 st DAY OF JUL Y, 2002.

L.A LETHO B A N E PRE S I D E N T

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C.T.POOP A ME M B E R

I AG R E E

M. MA K H E T H A ME M B E R

I AG R E E

FOR APPLI C A N T : FOR RE S P O N D E N T:

MS. TAU MR. MOH A P I