LLCJ Volume 2 Issue 1 PDF

LESOTHO
LABOUR
COURT
JUDGMENTS
A compilation
Vo lum e 2 (201 3 Judge m e nt s)
I ssue 1
LESOTHO LABOUR
COURT JUDGMENTS
A COMPILATION
2013 JUDGMENTS
Volume 2
Issue 1
Before
His Worship, Advocate Thato Charles Ramoseme
Lecturer
Book author
Judge of the Labour Court of Lesotho
ii
ABOUT THE AUTHOR

Biography
Advocate T. C. Ramoseme is a holder of a
Bachelor of Arts degree in Public
Administration and Political Science. He
also holds a Bachelor of Laws Degree and
two masters of laws, one in Labour Law and
Social Security Law, and the other in the
Law of Business Entities.
He has over10 years of experience in the
practice of law. He is a Lecturer in Business
and Management studies, a book and
article Author and a Judge of the Labour
Court of Lesotho. He has published two
monograph books, in the fields of Labour
Law and Company Law, and a chapter on Arbitration Law in Lesotho in a
book by Lise Bosman.
Works
Published Books
(2012) The Impact of Closed Shop Agreements: A Critical and Comparative
Analysis of South Africa and Germany Lambert Academic Publishing:
Germany.
(2012) The Rights of the Minority Against Majority Rule: A Critical Analysis of
South African Companies Act 71 of 2008 Lambert Academic Publishing:
Germany.
Arbitration Law in Lesotho in Bosman L (2013) Arbitration in Africa: A
Practitioners Guide Alphen aan den Rijn, The Netherlands: Kluwer Law
International.
Published Articles
Maternity Protection under the Labour Code Wages Order: A Source for
Discrimination (2011) Vol. 28, No. 1, Transformation Resource Centre Work
for Justice Journal.
The Effect of Dismissal for Misconduct on the Right to Severance Payment
(2012) Vol. 12, Issue 2, DDPR Information Bulletin.
The Right of the Employer to Dismiss an Employee for Contravention of
Unwritten Rules of Standards (2012) Vol. 12, Issue 3, DDPR Information
Bulletin.
The Exclusion of the Right to a Fair Hearing in Dismissal for Misconduct
The Right of the Employer to Refuse Reinstatement: The Need for a
Corresponding Right for the Employer. (2012) Vol. 12, Issue 5, DDPR
Information Bulletin.
The Protection of Probationary Employees Against Dismissal for Incapacity
iii
PREFACE
Labour Law is a specialised field within our jurisdiction, as is the case in
many other jurisdictions. There are specified forum and courts of law that
have been specifically established to interpret and apply labour laws. This
compilation is intended to guide labour law practitioners towards the correct
application of the labour laws of Lesotho.
This volume is a sequence to the first volume which contained the
judgments of the Labour Court of Lesotho before His Worship Advocate
Thato Charles Ramoseme, from early in the last quarter of 2012 to December
of that year. This Volume covers the whole of the year 2013, that is, from
January to December. It contains 73 judgments, all issued in 2013, and is
composed of two issues. Issue one, on the one hand, runs up to page 180
while issue two, on the other hand, runs from page 181 to page 361.
This is just a compilation of the judgments in the form in which they were
issued. No modification has been made to suit this purpose both in terms of
content and styling. The only modification has been in so far as the font and
pagination are concerned. Even then the modification has been done for
purposes of standardising the document.
Emphasis is made that some of the recorded judgments herein, may have
been appealed against, some successfully and others otherwise. As a result,
it is the responsibility of the practitioner to make sure, before relying on any
of the judgments contained herein, to verify that they have not been
reversed.
T. C. Ramoseme
Maseru
September 2015
iv
TABLE OF CONTENTS
PARTICULARS
About the Author
Preface
Table of Contents
List of authorities
Cases
Legislation
Books and Journals
PAGE NUMBER
iii
iv
v - ix
xi - xvi
xvii
xvii
ISSUE 1
Tanki Monye v Mamojalefa Maphokoane & others..
Reinstatement
Refiloe Okello v The Principal Secretary Ministry of
Tourims, Enviroment and Culture..
Interdict
Tholoana Matsoso v Photo and Gift Galaxy (Pty) Ltd
and another
Condonation; and review
Thabelo Kebise v Lesotho Brewing Company (Pty) Ltd
and another
Review; exclusion of a representative; and
recusal of presiding officer
Limkokwing University of Creative Technology
v Tebello Mothabeng and another..
Review
Thabo Matamane v DDPR and another ..
Review; and dismissal of review for non-prosecution
Mahoko Setipe v Nien Hsing International (Pty) Ltd and
Others.
Review; condonation for late filing of answer.
Lesotho Freight Bus Service Corporation v DDPR and
Others.
Review; jurisdiction of the court.
Ellerines Furnishers Lesotho (Pty) Ltd v DDPR
and others..
Review.
Lesotho Electricity Company (Pty) Ltd v Mphaiphele
Maqutu & others.
Review; dismissal for non-prosecution
Lepekola Molieleng and another v Paballo
Ramochele and Another.
Rescission; jurisdiction of the court.
Mohau Rasephali v Tai Yuan Garments (Pty) Ltd
and another...
Review.
13
4 11
12 -15
16 - 21
22 26
27 29
30 34
35 - 38
39 - 44
45 47
48 50
51 57
Nokoane Mokhatla v Lesotho Brewing Company

and others..
Contempt.
Factory Workers Union v Crabtree (Pty) Ltd .
and another...
Declaratory; jurisdiction of the court.
Security Lesotho (Pty) Ltd v Lesia Nkalosi and another
Review.
Makhale Leoatle v G4S Cash Solutions
Lesotho (Pty) Ltd and another
Review.
Standard Lesotho Bank v Raphael Mphezulu
and another.
Review.
Thabo Mosao t/a Mosao Wood and Coal v Neo
Mokebe and nother..
Review; dismissal for non-prosecution.
Fahhida Cash and Carry (Pty) Ltd v Lebohang
Maruoa and others...
Review; dismissal for non-prosecution.
Emma Sehlabaka and others v City Express
Store (Pty) Ltd and another...
Review.
Mosiuoa Molatoli v CGM Industrial (Pty) Ltd.
Review; jurisdiction of the court.
Khauhelo Moeno v Security Lesotho (Pty) Ltd
and another...
Strike related dismissal; judgment by default.
Factory Workers Union o.b.o Thandiwe Labane
and others v Tai Yuan Garments (Pty) Ltd.
Operational requirements related dismissal;
locus standi of union in disputes of right.
FAWU o.b.o Moto-Moto and 18 others.
Unfair dismissal related to insubordination and strike;
res judicata; jurisdiction of the court.
Futho Hoohlo v DDPR and another.....
Lesotho Workers Union v Zinyathi Trading (Pty)
Ltd t/a Jikelele Services and another..
Interdict; courts jurisdiction
Bofihla Makhalane v Leteng Diamonds (Pty) Ltd
and others
Contempt; recusal; withdrawal
Hlalele Hlalele v Women Working Worldwide
Lesotho and another.
Interdict
Mohau Rasephali v Global Garments (Pty) Ltd
and another.
Review; authority to represent.
vi
58 65
66 68
69 72
73 79
80 85
86 - 87
88 - 89
90 93
94 98
99 103
104 107
108 - 112
113 114
115 - 118
119 125
126 - 128
129 132
Manapo Ramaisa and others v Nien Hsing

International (Pty) Ltd..
Discrimination; strike related dismissal;
jurisdiction of the court
Mapaballo Mokuoane v Care Lesotho.
Retrenchment related dismissal; jurisdiction of the court
Moeketsi Moroka v Frasers Lesotho (Pty) Ltd
and another
Review; postponement
T & T Security Services (Pty) Ltd v Samuel Pea Pea..
Set off; jurisdiction of the court
Lebohang Matsapa v Cashbuild Ltd Mafeteng
Reinstatement; jurisdiction of the court
Security Lestoho (Pty) Ltd v Lebohang Moepa
and another..
Rescission
Shahid Hassan and others v Legal Voice (Pty) Ltd.
Retrenchment based dismissal and other claims;
misjoinder
Nthati Mokitimi v Central Bank of Lesotho..
interdict
Nedbank Lesotho Ltd v Setsabe Lefosa and others...
Review; distinction between review and appeal
133 - 139
140 - 145
146 - 150
151 - 154
155 - 159
160 - 162
163 - 166
167 - 173
174 - 180
ISSUE 2
Tepang Kolisang v Sun Textile (Pty) Ltd and another.
Discrimination; locus standi of applicant
Mission Aviation Fellowship v Lineo Hlalele and another
Review of DDPR ruling; jurisdiction of the court
Makamohelo Molefi and others v Tai Yuan
Garments (Pty) Ltd and others..
Review
Michael Fako v Lesotho Brewing Company (Pty) Ltd
and another...
Review
Lesotho Precious Garments (Pty) Ltd v DDPR
and others
Review; defence improperly raised as point of law
South Asia International (Pty) Ltd v Neo Mojalefa
and another.
Review; dismissal for non-prosecution; postponement
Maisanokeng High School and another v Makamohelo
Mokone and another...
Review; additional grounds raised from the bar
Phakiso Ranooana v Lesotho Flour Mills (Pty) Ltd
vii
181 - 183
184 - 187
188 - 191
192 - 196
197 203
204 - 208
209 - 214
and another.
Review; failure to attend proceedings
Eclat Evergood Textile v Malefane Nthontho and others
TEBA Limited (Pty) Ltd v DDPR and another.
Review
Thabo Moleko v Jikelele Services...
Dismissal related to poor work performance;
jurisdiction of the court
Sefatsa Mokone v G4S Cash Solutions (Pty) Ltd
Discrimination in payment of wages; courts jurisdiction
Libe Motholo and others v Thetsane Hardware
and Building Material (Pty)
Ltd.
Operational requirements related dismissal
Khauhelo Moeno v Security Lestoho (Pty) Ltd...
Rescission
Paballo Khoete and another v Supreme Motor
Spares and another.
Contempt
Molahli Edwin Molahli v Morija Press Board
and another....
Review; condonation for late filing of answer from the bar
Mabokang Mohafa v Good Trading Supermarket (Pty)
Ltd and another....
Khoase Pali v First National Bank and another.
Review
Lesotho Electricity Company (Pty) Ltd v Mphaiphele
Maqutu & others.
Review; recusal of presiding officer
Mantepi Mofihli Monti v Ministry of Public Works
and Transport and others
Contempt
Nthabiseng Mokoena v Lesotho Post Bank (Pty) Ltd..
Declaratory order; effect of serving notice
Lesotho Freight and Bus Service Corporation v DDPR
and another.
Review
Thapelo Ntoko v Jikelele Services (Pty) Ltd.
and unlawful deductions
Thabo Makhalane v Ministry of Law and
Constitutional Affairs and others....
Appeal; non joinder
Lesotho Revenue Authority v Mamonyane Bohloko
and others.
Review
viii
215 - 221
222 - 224
225 - 230
231 - 233
234 - 238
239 - 242
243 - 245
246 - 248
249 - 255
256 - 259
260 - 267
268 - 276
277 - 281
282 - 286
287 - 294
295 - 298
299 - 306
307 - 317
Pope John Paul XXIII and another v Tabang

Telukhunoana and others
Reinstatement; record of proceedings
Eclat Evergood Textile Manufacturers (Pty) Ltd v Lefu
Molefi and others
Review; postponement; dismissal for non-prosecution
Kopano Textiles v DDPR and another
Review
Liketso Mokubung v AON Lesotho (Pty) Ltd
and another..
Review
Fahhida Supermarket (Pty) Ltd v Ikhetheleng Sibolla
and another.
Review
Tlali Lefeta v Arbitrator T. C. Thamae and another..
Review; right of a party to argue
Seitebatso Seeiso and another v DDPR and another...
Boliba Multipurpose Cooperative v Sekoala
Motsoasele and another..
Review; dismissal for non-prosecution; failure to
attend hearing
Lehlohonolo Ntholeng and another v DDPR
and another..
Review; condonation
C & Y Garments (Pty) Ltd v DDPR and another..
ix
318 - 321
322 - 325
326 - 329
330 - 335
336 - 340
341 - 348
349 - 351
352 - 355
356 - 359
360 - 361
LIST OF AUTHORITIES
Cases
National
Loti Brick v Thabiso Mphofu & others 1995-1996 LLR-LB 447
Phetang Mpota v Standard Lesotho Bank LAC/CIV/A06/2008
Lesotho (Pty) Ltd vs. Stanley Maitse Moloi and Another C of A CIV/01/2006
Matsaseng Ralekoala v Ministry of Justice, Human Rights and Constitutional
Affairs C of A (CIV/116/2012)
Ramochela v Moshoeshoe and others CIV/APN/172/1987
Lithebe Makhutla and another v Mamokhali Makhutla and Another C of A
(CIV) 7 of 2002
Maneo Moremoholo v Mantsupi Moremoholo and Others CIV/APN/135/2010
Tsepiso Baholo v Loti Brick (Pty) Ltd & another LC/REV/386/06
Director Teaching Service Department & others v Mamoletsane Makhakhe &
others LC/REV/45/2009
Lenka Mapiloko v The President of the Labour Court & another
LAC/REV/05/2007
Bofihla
Makhalane
v
Leteng
Diamonds
(Pty)
Ltd
&
others
LAC/CIV/APN/04/2011
Lesotho Highlands Development Authority v Thabo Mohlobo & Others
LC/REV/09/2012
Lesotho Delivery Express Services (Pty) Ltd v DDPR and another
LC/REV/18/2010)
Khutlang Mokoaleli v Standard Lesotho Bank & DDPR LC/REV/21/07)
Thabo Mohlobo & others v Lesotho Highlands Development Authority
LAC/CIV/A/02/2010
Pascalis Molapi v Metro Group Limited & others LAC/CIV/R/09/2003
Frasers Lesotho Limited v Hata Butle (Pty) Ltd LAC (1995-199) 698
WASA v Moramane Mabina & another LC/REV44/2008
Moonlite Taxis v Phomolo Seboka C of A 06/2007
JDG Trading (Pty) Ltd t/a Supreme Furnishers v M Monoko & 2 others
LAC/REV/39/04
Teaching Service Commission & 3 others v The Judge of the Labour Appeal
Court and 4 others C of A (CIV) 21/2007
Tepang Manyeli & Another vs. DDPR & another LC/REV/49/2008
Maholomo Mpali v The learned Magistrate Mrs Nthunya & 2 others
CIV/APN/269/2011
Eclat Evergood Textile (Pty) Ltd v Mohau Rasephali LC/REV/64/2007
LAC/CIV/A/02/2010
Lesotho National Federation of Organisations for the Disabled v Mojalefa
Mabula and another LAC/CIV/A/07/10
Mateliso Matsemela v Naleli Holdings LAC/CIV/A/02/07
Central Bank of Lesotho v Phoofolo LAC (1985-1989) 253
Lesotho Revenue Authority & others v Olympic off sales C of A (CIV) 13/2006
Commissioner of Police & Another v Ntlo-Toeu (2005-2006) LAC 156
Lerotholi polytechnic & another v Blandina Lisene C of A (CIV) 25/2009
xi
Thuso Motlalentoa and another v Motsoalipakeng Tlokotsi C of A (CIV)

28/1991
Seboloki Leleka v LTA Group 5 (Mohale Joint Venture) LC/131/1996
Montoe Mphaololi v Unity English Medium School and Others LC/150/1995
Puleng Mathibeli v Sun International CIV/APN/411/1996
Theko v Commissioner of Police & another 1991 1992 LLR LB 239
Seotlong Financial Services v Makhomari Morokole LC/REV/32/2009.
Lucy Lerata & others v Scott Hospital 1995-196 LLR-LB 6
Central Bank of Lesotho v DDPR & others LC/REV/216/2006
Sole Masupha v LHDA C of A (CIV) NO. 26 of 1999
Lesotho Evangelical; Church v John Mataba Bokako Nyabela
CIV/APN/150/1980
Nalane & others v Molapo & others LAC (2007-2008) 457
Lethoko Sechele v Lehlohonolo Sechele C of A (CIV) No. 6 of 1988
Lesotho Highlands Development Authority v Mantsane Mohlolo & others
LAC/CIV/07/2009
Lepolesa & others v Sun International of Lesotho (Pty) Ltd t/a Maseru Sun and
Lesotho Sun (Pty) Ltd [2011] LSLAC 4
Monti v Commissioner of Customs and Excise & another CIV/APN/521/2010
Bofihla Makhalane v Leteng Diamonds (Pty) Ltd C of A (CIV) 14/2010
Sole v Cullinan NO & others LAC (2000-2004) 572
R. v Manyeli LAC (2007-2008) 377
Makhanya v Pheko CIV/T/313/2011
Likotsi Makhanya v Malefetsane Pheko & others C of A (CIV) 20/2012
Mathabelo Mbangamthi v Puleng Sesing-Mbangamthi C of A (CIV) 06/2005
Lesotho Electricity Corporation v Ramoqopo and others LAC/REV/121/2005
CGM v DDPR and another LC/REV/88/2006
Factory Workers Union v TZICC LC/20/2004
Muyanja & others v Labour Commissioner o.b.o Samuel Mokhethi C of A (CIV)
40/2011
Nokoane Mokhatla v Lesotho Brewing Company LC/REV/65/2010
CGM Garments v DDPR & another LC/REV88/2006
Monahali Construction (Pty) Ltd v Thabang Ngaka LC16/2009
Open Bible Ministries & another v Ralitsie Nkoroane & another 1991 1992
LLR & LB 112
Thamae & another v Kotelo & another LAC 2005 at 583
Senone & another v Senone C of A (CIV) 48/2011
Thabo Teba & 31 Others v LHDA LAC/CIV/A/06/09
Tsabane v Caba & another CIV/APN/218/2000
BP Lesotho v Moloi & another C of A (CIV) 01/2006
Koatsa v NUL C of A (CIV) 15/1986
Limkokwing University of Creative Technology (Pty) Ltd v Tebello Mothabeng &
another LC/REV/88/2011
Mokhokhoba v The Manager Malea-lea Secondary School & others
LC/4/1995
Security Unlimited (Pty) td v Lesotho Security and Allied Workers Union &
others LC/REV/05/2006
Khajoe Makoala v Masechaba Makoala C of A (CIV) 04/2009
CGM Industrial (Pty) Ltd v Nkalitsoe Molieleng & another LC/REV/61/2007
xii
MDA & another v DPP 2000 2004 LAC 850

Mokone v Attorney General & others CIV/APN/232/2008
Leoatle v G4S Cash Solutions & another LC/REV/57/2010
Molatoli v CGM Industrial (Pty) Ltd & another LC/REV/56/2011
Leteng Diamonds (Pty) Ltd v DDPR & others LC/REV/111/2005
Blandina Lisene v DDPR & Lerotholi Polytechnic LC/REV/122/2007
Tumo Lehloenya and Others v Lesotho Telecommunications Corporation
LC/20/2000
Lerotholi v Tau & others CIV/APN/338/2012
The Liquidator Lesotho Bank v Flora Selloane Seleso CIV/T/58/2002
Thabo Phoso v Metropolitan Lesotho LAC/CIV/A/10/2008
Kopano Textiles (Pty) Ltd v Moteare Qokolo & Others LC/REV/19/09
Lesotho Express Delivery Services (PTY) LTD v The Arbitrator DDPR &
another LC/REV/18/2010
Puleng Mathibeli v Sun International 1999-2000 LLR-LB 374 (CA)
Kobese Hlatsi v Teba LC/02/1998
Mohapi Khaile v Lesotho Electricity Corporation LC/REV/63/2010
Remaketse Molaoli & 9 others v Lesotho Highlands Development Authority
LAC/A/06/2005
Keneiloe Matela & another v Principal Officer, Public Officers Defined
Contribution Pension Fund & others LC/28/2012.
Mohapi Khaile v Lesotho Electricity Corporation LC/REV/63/2010
Remaketse Molaoli & 9 others v Lesotho Highlands Development Authority
LAC/A/06/2005
Tsotang Ntjebe & others v LHDA and Teleng Leemisa & others v LHDA
LAC/CIV/17/2009
Mantsoaki Malakane v Standard Lesotho Bank LC/REV/525/2006
Thapelo Ntoko v Jikelele Services LC/42/2013
Standard Lesotho Bank v Tsietsi Polane & DDPR LC/ REV/77/07
LEWCAWU & 35 others v Metcash Trading Limited CIV/APN/38/99
George Kou v Labour Commissioner LC/13/1994
LEWCAWU & 33 others v Metcash Lesotho Limited & another LC/44/1999
Thabo Moleko v Jikelele Services LC/40/2013
Kopano Textiles v DDPR & another LC/REV/101/2007
Sefatsa Mokone v G4S Cash Solution (Pty Ltd LC/31/2012
Lesotho Electricity Company (Pty) Ltd v Mpaiphele Maqutu & others
LAC/CIV/A/01/2013
Lesotho Bank v Khabo LAC (2000 2004
Namane Zacharia Khotle v Security Lesotho (Pty) Ltd LC 44/1998
Motumi Ralejoe v Lesotho Highlands Development Authority LC/36/2006
Selloane Mahamo v Nedbank Lesotho Limited LAC/CIV/04/2011
SOS Children Village v DDPR & another LC/REV/82/2009
Albert Makhutla v Lesotho Agricultural Development Bank 1995-1996 LLR-LB
191
Lesotho Brewing Company t/a Maluti Mountain Brewery v Lesotho Labour
Court President & another CIV/APN/435/1995
Bofihla Makhalane v Leteng Diamonds (Pty) Ltd LAC/CIV/A/09/1999
Rakhoboso v Rakhoboso LAC (1995-1999) 331
Matebesi v Director of Immigration & others LAC (1995-1999) 616
xiii
Nedbank Lesotho Limited v Lefosa & others LC/REV/01/2011

Thabo William Van Tonder v Lesotho Highlands Development Authority
LAC/CIV/APN/06/2004
Kopano Textiles v DDPR and another LC/REV/101/2007)
Molahli v Morija Press Board & another LC/REV/25/2012
Molefi & others v Tai Yuan Garments (Pty) Ltd & others LC/REV/119/2011
Boliba Multipurpose v Kubutu Makara
Koatsa v National University of Lesotho 1991-1992 LLR-LB 163
Maisaaka Mote v Lesotho Flour Mills LC/59/1995
Montoe Mphaololi v Unity English Medium and others LC/150/1995
Makhoabe Mohaleroe v Lesotho Public Motor Transport Company (Pty) Ltd C of
A CIV/06/2009
Mathiba Malothoane v Commissioner of Police & another C of A CIV/18/2009
Eclat Evergood Textile Manufactures (Pty) Ltd v Molefi & others
LC/REV/99/2012
Boliba Multipurpose corporative v Motsoasele & another LC/REV/95/2012
C & Y Garments (Pty) Ltd v The DDPR & another LC/REV/98/2012
Eclat Evergood Textile v Nthontho & others LC/REV/54/2011
Napo Thamae & another v Agnes Kotelo & another LAC 2000-2004
Lesotho Brewing Company t/a Maloti Mountain Brewery v Lesotho Labour
Court President & Another CIV/APN/435/95
Foreign
Simon No v Air Operations of Europe AB and Others 1999 (1) SA 217 (SCA).
Setlogelo v Setlogelo 1914 AD 221
Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A)
President of the Republic of South Africa & others v South African Rugby
Football Union & others 1999 (4) SA CC at 177B-D
Pretorius v Sasol Polymers [2008] 1 BALR 10 NBCCI,
Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 1988 (3) SA 132
Consolidated Frame Cotton Corporation LTD v President of the Industrial Court
and others 1985 ZASCA 54
Consolidated Woolwashing and Processing Mills Ltd v President of the
Industrial Court and others 1986 ILJ 489 (A)
SADTU & others v Head of the Northern Province Department of Education
[2001] 7 BLLR 829 (LC)
Fackie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326
Smith v Smith 1954 (3) SA 434
Pillay v Krishna 1946 AD 946 at 951
S v Roberts 1999 (4) SA 915 (SCA)
Moloi v Euijen & another (1997) 8 BLLR 1022 (LC)
National Education Health and Allied Workers Union & Others v Director
General of Agriculture & Another (1993) 14 ILJ 1488
The Amalgamated Engineering Union vs. Minister of Labour 1949 (3) SA 631
United Watch & Diamond (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C)
President of the Republic of South Africa & others v South African Rugby
Football union & others 1999 (4) SA (CC)
Hamilton v Van Zyl 1983 (4) SA 379 (ECD)
Ford v Austen Safe Co. (Pty) Ltd (1993) 14 ILJ 751
xiv
Standard Bank of South Africa Limited v Efroiken and Newman 1924 AD 171
Casa v Tao Ying Metal Industries & 3 others 2009 (2) SA CC
Great North Farms (EDMS) BPK v RAS 1972 (4) SA 7
Harris v Tancred N.O. 1960 (1) SA 839
Postmaster-General v Taute, 1905 TS 582
Director Hospital Services v Mistry 1999 (1) SA 626 (A)
Darries v Sherriff, Magistrates Court, Wynberg & another 1998 (3) SA 34
(SCA)
Webster v Mitchell 1948 (1) SA 1186
Duncan v Minister of Environment Affairs & Tourism 2010 (6) SA 374 (SCA)
Administrator Transvaal & others v Traub & others 1989 (4) SA 731
Muller & Others v Chairman of Ministers' Council, House of Representatives &
Others (1991) 12 ILJ 761
Coetzee v Lebea NO & another (1999) 20 ILJ 129 (LC)
CEPPWAWU & others v Metrolife (Pty) Ltd [2004] 2 BLLR 103 (LAC
SRV Mills Services (Pty) Ltd v CCMA & others [2004] 2 BLLR 184 (LC)
Cape Town City Council v Masitho (2000) 21 ILJ 1957 (LAC)
Standard Bank of Bophuthatswana Ltd v Reynolds NO (1995) 3 BCLR 305
Carephone (Pty) Ltd v Marcus NO & 7 others (1998) 11 BLLR 1093 (LAC)
Real Estate Services (Pty) Ltd v Smith (1999) 20 ILJ 196
Allen v Sir Alfred McAlpine & Sons [1969] 1 All ER 543
South African Veterinary Council & another v Szymanski 2003 (4) SA 42 (SCA)
R v Secretary of State for the Home Department Ex parte Ruddock & others
(1987) 2 ALL ER 518 QB
Schmidt & another v Secretary of state for Home Affairs (1969) 1 ALL ER 904
Lloyd v Powell Duffryn Steam Coal Co. Ltd 1914 AC 733
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER
935
SAR & H v Dhlamini 1967 (2) SA 203 (D)
Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A)
Caswell v Powell Duffryn Association Collieries 1940 AC 152 at 169
AA Onderlinge Assuransie Bpk v De Beer 1982 (2) SA 603 (A)
Govan v Skidmore 1952 (1) SA 732 (N)
Garton v. Hunter [1969] 1 All ER 451, [1969] 2 QB 37
Thoroughbred Breeders Association of South Africa v Price Waterhouse 1999
(4) SA 968 (W)).
Mondi Craft v PPWAWU & others 1999 (10) BLLR 1057
SALDCAWU v Advance Laundirs t/a Stork Napkins 1985 ILJ 544 (IC)
Evans v CHT Manufacturing (Pty) Ltd 192 ILJ 585 (IC)
Phutiyagae v Tswaing Local Municipality (2006) 27 ILJ 1921 (LC)
FAWU & others v Amalgamated Beverage Industries Ltd (1992) 13 ILJ 1552
(IC)
East London Transitional Council v MEC for Health, Eastern Cape & others
2001 (3) SA 1133
SALSTAFF obo Bezuidenhout v Metrorail [2001] 9 BALR 926
Ellies v Morgan, Ellies v Desai 1909 TS 576
Napolitano v Commissioner of Child Welfare, Johannesburg 1965 (1) SA 742
(A)
Attorney-General Eastern Cape v Blom 1988 (4) SA 645 (A)
xv
Cheall v Association of Professional Executive, Clerical and Computer Staff

(1983) QB 126 (CA)
Firestone South Africa (Pty) Ltd v Genticuro A.G. 1977 (4) SA 298 (A)
National Director of Public Prosecutions v Phillips and others 2002 (4) SA 60
(w)
Diereks v University of South Africa (1999) 20 ILJ 1227 (LC)
South African Clothing & Textile Workers Union v Cadema Industries (Pty) Ltd
[2008] ZALC 5
Mediterranean Woollen Mills (Pty) Ltd v S. A Clothing & Textile Workers Union
(1998) 19 ILJ 731 (SCA)
Solomon & another NNO v De Waal 1972 (1) SA 575 (A)
Real Estate Services (Pty) Ltd v Smith (1999) 20 ILJ 196
National Union of Security Officials and Guards v Minister of Health and
Social Services 2005 (4) BLLR 373
R. v Susses Justices, ex parte McCarthy [1924] 1 KB 256
General Medical Council v Spacman [1943] AC 627
Standard Bank of Bophuthatswana Ltd v Reynolds NO and Others 1995 (3)
BCLR 305 (B)
Kaone Leoifo v Bokailwe Kgamena & another CA/048/2007
Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA
623
Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd, 1957 (4) SA
234 (C)
xvi
Legislation
National
Public Service Act of 2007
Constitution of Lesotho of 1996
Labour Code Order 24 of 1992
Legal Practitioners Act of 1993
Labour Code Amendment Act 3 of 2000
Labour Code (DDPR) Regulations of 2001
Labour Code (Conciliation and Arbitration Guidelines) Notice of 2004
Labour Code (Wages Order) of 2012
Labour Court Rules of 1994
Labour Code (Codes of Good Practice) of 2003
Labour Appeal Court Rules 2002
Education Act of 2010
Codes of Good Practice of 2005
Public Service Act 1 of 2005
Foreign
Labour Relations Act of 1995
Books and Journals

Baxter L, (1984) Administrative Law
Schwikkard P. J, et al, (2nd Ed.), Principles of Evidence
Daniels H., (2002) (6th ed.) Becks Theory and Principles of Pleadings in Civil
Actions Durban: Butterworths Civil Practice of the Magistrates Court in South
African, Vol. 1, 9th Ed.
LCT Harms in Civil Procedure in the Superior Courts
Herbstein & Van Winsen, The Civil Practice of the Supreme Court of South
Africa, 4th Ed.
LTM Harms in Civil procedure in the Supreme Court: Student Edition, 2nd Ed
Becks Theory and Principles of Pleadings In Civil Actions, Butterworths, 5 th
edition
De Smith Woolf Jowell, Judicial Review of Administrative Action (5 ed, 1995)
Judge Edwin Cameron The Right To A Hearing Before Dismissal, Part 1
(1986) 7 ILJ 183
xvii
IN THE LABOUR COURT OF LESOTHO

HELD AT MASERU
LC/25/11
In the matter between:

TANKI MONYE
APPLICANT
And
MAMOJALEFA MAPHOKOANE
MALEBEA MOROLONG
BOITELO ENGLISH MEDIUM
PRIMARY SCHOOL BOARD
BOITELO ENGLISH MEDIUM
PRIMARY SCHOOL
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
Application for the reinstatement of a claim dismissed for want of prosecution.
Requirements for reinstatement being similar to those of a rescission of
judgment namely sufficient explanation for the default in attendance and bona
fide defence or prospects of success Applicant failing to meet these
requirements - explanation being grossly insufficient by reason of a
misrepresentation of certain facts material to the determination of the matter
Court finding it unnecessary to consider prospects of success. Application for
reinstatement being dismissed. No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is an application for the reinstatement of LC/25/2011. It was head
on this day and judgment was reserved for a later date. Facts
surrounding this application are essentially that Applicant referred a
claim for unfair dismissal with the DDPR. Conciliation having failed, the
matter was referred to this Court in terms of section 225 (7) for
adjudication. It was duly lodged with this Court and when all pleadings
had closed it was set down for hearing. It was then dismissed for want of
prosecution on the 20th November 2012.
2. An application for reinstatement of the main application was lodged by
Applicant on the 17th January 2013 and served upon the Respondents on
the same day. Respondent having failed to oppose the matter and the
time periods for filing the opposing papers having lapsed, Applicant then
applied for judgment by default. It is in this application that Applicant
seeks to have the dismissal of the matter set aside and for the matter to
be heard in the merits. At the commencement of the proceedings,
Applicant indicated that they stood and fell by their pleadings as they felt
that they were self-explanatory. He indicated that he wished for the Court
Page 1 of 361
to consider them and its records in making its finding. Applicants

pleadings, Our ruling and reasons on this application are in the following.
SUBMISSIONS AND ANALYSIS
3. It was averred on behalf of Applicant that this matter was first heard on
the 10th November 2011 before the late President of the Labour Court,
Judge President L. A. Lethobane. It was thereafter postponed to the 17th
April 2012, on which date the evidence of Applicant and his witnesses
was led. Subsequently, it was postponed to the 28th August 2012 but
could not proceed on that day due to the illness of the learned presiding
Judge. As a result, it was then postponed to the 7th November 2012.
Before the date of postponement, the matter was again postponed to the
20th November 2012, on the ground that there was no presiding officer to
preside over the matter.
4. However, it later transpired that the 20th November 2012 was not suitable
for both parties and as a result, they both approached the Registrar of
this Court to have the matter postponed to another date. The matter was
then further postponed to the 6th March 2013. As a result, Applicant was
surprised when he learned that the matter had proceeded on the 20th
November 2012 despite the fact that they had already had it postponed.
Applicant thus submitted that their default was not deliberate and
further that they had good prospects of success in that Respondents had
already admitted some of their allegations in the main application. He
prayed that this application for reinstatement be granted as prayed.
5. An application for the reinstatement of a matter dismissed for want of
prosecution is similar to an application for rescission of a matter granted
in default of the other party. As a result, the requirements of the two are
similar. These principles were outlined in the case of Loti Brick vs.
Thabiso Mphofu & others 1995-1996 LLR-LB 447 as follows,
a) A reasonable explanation for the default, and
b) The existence of a bona fide defence or prospects of success.
On the basis of these above principles, We shall now proceed to deal with
the Applicant arguments.
6. We have considered the arguments of Applicant as appears in his
pleadings. However, We have found his explanation to lack sufficient
merit in relation to the postponement from the 20th November 2012 to the
6th March 2013. It is not clear from the pleadings when exactly it is that
the postponement was sought. As a result, We perused the Courts record
and, and in particular the notification of hearing, and discovered that the
postponement to the 6th March 2013 was only sought on the 15th
February 2013 whereas the matter was dismissed on the 20th November
2012 for want of prosecution. Clearly, by the time that the postponement
was sought, the matter had already been disposed of.
7. In Our view, Applicant ought to have approached this Court to seek a
postponement of the matter before the date of hearing. Applicants failure
Page 2 of 361
to have the matter postponed before the set date of hearing demonstrates
a deliberate act on his part not to attend the proceedings of the 20th
November 2012. Consequently, the explanation given by Applicant for his
failure to attend the proceedings of the 20th November 2012 is not
sufficient to justify the granting of this application.
8. We have also found the explanation given to be grossly insufficient. We
say this because We have discovered and noted the existence of a gross
misrepresentation of facts on the part of Applicant. Applicant has
attempted to lead this Court to the view that the postponement was
sought before the 20th November 2012 whereas the actual position is that
it was only sought after the matter had been disposed of, which was on
the 15th February 2013. Consequently, We will not consider the prospects
of success and We accordingly refuse this application for lack of a
sufficient explanation alone. Our finding is based on the decision of the
Labour Appeal Court in Phetang Mpota vs. Standard Lesotho Bank
LAC/CIV/A06/2008, where the Labour Appeal Court held that where the
explanation given is grossly insufficient, it is not necessary to consider
the prospects of success no matter how strong they may be.
AWARD
Having heard the submissions of parties, We hereby make an award in the
following terms:
a) That this application is dismissed; and
b) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 18th DAY OF MARCH
2013.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mr. S. KAO
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENTS:
ADV. MOELETSI
NO APPEARANCE
Page 3 of 361

HELD AT MASERU
LC/46/2012

REFILOE LUCY OKELLO
APPLICANT
And
THE PRINCIPAL SECRETARY MINISTRY
OF TOURISM, ENVIRONMENT AND CULTURE
THE HUMAN RESOURCE OFFICER MINISTRY
OF TOURISM, ENVIRONMENT AND CULTURE
THE ATTORNEY GENERAL
DIRECTORATE OF DISPUTE PREVENTION
AND RESOLUTION
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
Claims for stay of transfer and interdiction from removal on urgent basis. On
return day, Respondent raising four preliminarily issues of jurisdiction,
urgency and ex parte basis of the matter and the locus standi of Applicant
representative. All preliminary points failing to sustain and matter being
considered on the merits. Respondent failing to establish a clear right. Court
finding that other elements of a final interdict depend on the existence of a
clear right. Court not finding it necessary to consider other elements of a final
interdict - Court dismissing application.
1. This matter was heard over a series of dates from the 31st October 2012
to the 29th November 2012 and judgement was deferred. Applicant made
an application in the following;
1. Dispensing with the Rules of Court pertaining to period and modes of
service of process owing to the urgency of this matter.
2. That a Rule Nisi be and is hereby issued returnable on a date and time
to be determined by this Honourable Court calling upon the Respondents to
show cause (if any) why:
a) The respondents decision to transfer the applicant to the position of
district tourism officer, Maseru shall not be stayed pending finalisation
of the matter in A1147/2012.
b) The respondents shall not be ordered to interfere with and/or remove
the applicant from the position of principal licensing Officer which she is
currently occupying.
c) The fourth respondent shall not be directed to dispense with the
matter in A1142/2012 owing to urgency of the matter.
Page 4 of 361
d) The respondent herein shall not be directed to pay the costs of this
application in the event of opposing same.
e) Granting applicant such further and/or alternative relief.
3. That prayers 1 and 2 (a) and (b) operate with immediate effect as an
interim order.
2. This matter was duly opposed by Respondent. Respondents had also
raised four preliminary issues against which they sought the dismissal of
Applicant claims. These points were based on jurisdiction; the
proceedings being referred ex parte; Urgency of the matter; and locus
standi of Applicant representative in the matter. Both parties were given
the opportunity to make representation both on these points and in the
merits. They were also advised in the event that this Court found in
favour of Respondent on the preliminary issues, it would not bother to
consider the merits. It was on this basis that this matter proceeded over
the said dates. The ruling and reasons are henceforth.
SUBMISSIONS
Preliminary issues
Jurisdiction
3. It was submitted on behalf of Respondent that this Court lacked
jurisdiction to entertain this matter. It was argued that Applicant is a
public officer as defined in the Public Service Act of 2007. Further that in
terms of section 30 of the Act, the Labour Code does not apply over
Applicant. It was furthermore submitted that as a result, this Court has
no primary jurisdiction to entertain Applicants claim unless this claims
was brought as an appeal to this Court. It was further argued that
primary jurisdiction over Applicants claim lies with the High Court of
Lesotho in terms of section 119 of the Constitution of Lesotho of 1996.
4. In response, Applicant argued that this Court has jurisdiction over this
claim as the relief sought is interlocutory to the matter before the DDPR.
It was argued that the fact that the Labour Code Order 24 of 1992 does
not apply to public officers cannot be used to oust the jurisdiction of this
Court in this matter. It was further argued that in any event this is not
the proper forum to raise this point as the DDPR is the one that is seized
with the main case.
5. We are in agreement with Respondent that this Court has no primary
jurisdiction over disputes involving public officers unless such matters
are appeals. However, the matter before us is not a primary claim but
rather a claim that is incidental to the proceedings before the DDPR,
which claim the DDPR has no jurisdiction to determine. Rather, it is this
Court that is seized with such jurisdiction in terms of section 228 of the
Labour Code Order (supra) as amended, under the heading Urgent
proceedings. As a result, We agree with Applicant that this Court has
jurisdiction over the current claim as the order sought relates to the
proceedings before the DDPR. Consequently this point fails and We
reserve our comment on the rest of the issues.
Page 5 of 361
Exparte Proceedings
6. It was argued this matter was not urgent and that an interim relief ought
not to have been granted in favour of Applicant on an ex parte basis. It
was submitted that the Court can only be approached in this fashion if
service of the application would defeat its purpose. It was further
submitted that, without admitting that there was urgency, any possible
urgency was brought about by the Applicant herself in that she waited for
three months before she could protect or enforce her rights. Further that
given this said, Applicant had no reason to move this application without
notice to the other party. Reference was made to the case of BP Lesotho
(Pty) Ltd vs. Stanley Maitse Moloi and Another C of A CIV/01/2006 in
support.
7. In response, it was submitted that the Respondents were first served with
the application before it was moved before this Court. It was argued that
this Court has already granted an order for the dispensation of the
ordinary periods and modes of service. In their opinion, this means that
the issue is now academic particularly in the absence of any prejudice
that has been or is being suffered by the Respondents.
8. We have taken notice of the arguments raised by Respondent in relation
to the circumstances under which a Court may be approached on an ex
parte basis. We are in agreement with Respondent that the principles are
as they have submitted. However, from our observation of the
circumstances surrounding this matter, the application was first served
upon the Respondents before the Applicant could approach this Court for
the remedy sought. According to the records, the application was served
upon Respondents at around 10:33 in the morning and only moved later
that day in the afternoon. As a result, it cannot be accurate that this
application was moved on an ex parte basis. Consequently, this point
does not hold water.
Urgency
9. It was submitted that this matter is not urgent contrary to Applicant
assertion. In support, Respondent submitted that the very the office that
Applicant wishes to be protected against eviction from, has already been
filled. Reference was made to Applicant averments in her founding
affidavit, in particular paragraph 4.7. In terms of this paragraph
Applicant averred that someone had already been appointed to the same
position at least three months before this matter was referred to this
Court. They maintain that the matter lost urgency when Applicant
delayed to enforce or protect her alleged rights.
10.
In response, it was submitted that the issue of urgency has been
addressed under paragraph 6 of the Applicant founding affidavit. In terms
of this paragraph Applicant was in fear of eviction which was to take
effect on the 1st November 2011, just a day from the date that this
application was moved. It is further argued that given the short notice, it
would be difficult for Applicant to comply with the directive to transfer,
Page 6 of 361
something that would lead to a disciplinary action begin taken against

her and thus cause irreparable harm on her. It was further argued that
the said transfer would undermine Applicants efforts to secure
confirmation in the same position as she had already commenced the
necessary processes for same. It was further argued that the letter of
transfer was only given to Application on the 29th October 2012 when the
matter was moved on the 31st of the same month, hence why the Court
was approached in this manner.
11.
In our view, the question of whether or not this matter was urgent
ought to have been canvassed before the interim relief was granted. As
indicated above, We have noted from the notice of motion that this
application was served upon the Respondents before it was moved. As a
result, they were given the opportunity to appear and contest the issue of
urgency as per the dictates of the audi alteram partem rule. However,
Respondents did not attend the proceedings and as a result the interim
relief was granted on the basis of the unchallenged submissions of
Applicant. Had they attended the proceedings on that day, they would
have had the opportunity to argue this point on the basis of the
arguments they have raised herein. As it is, this issue has been overtaken
by events as an order has already been made and as such We see no need
to deliberate any further on it.
Locus standi
12. It was submitted that Adv. Rafoneke from KEM chambers was not
properly before court both at the time that he moved the interim
application and even in these proceedings. Reference was made to section
6(2) of the Legal Practitioners Act of 1993 in support of this argument. It
was argued that in terms of this section an advocate can only appear in
court if instructed by an attorney admitted to practice in the courts of law
of Lesotho. The case of Matsaseng Ralekoala vs. Ministry of Justice,
Human Rights and Constitutional Affairs C of A (CIV/116/2012) was also
cited in support. It was thus argued that KEM chambers had not right to
appear on behalf of the Applicant as it was not instructed in terms of the
Legal Practitioners Act (supra). In response, it was briefly argued by
Applicant that they have been instructed by T. Maieane to appear in the
mater as it appears in their notice of motion.
13.
We are conscious of section 6 (2) of the Legal Practitioners Act (supra)
safe to add that the correct year for the Act is 1983 and not 1993. We
wish to highlight that the terms of this Act are as per Respondent
submissions. However, the said Act does not make it a mandatory
requirement that the names of the appearing advocate be reflected in the
notice of motion. The mere fact that the names of the appearing advocate
are not reflected on the notice of motion does not mean that they have not
been properly instructed to appear. We are inclined to this view by the
fact that in his presentation of the case, Adv. Rafoneke seems to have a
thorough knowledge of the matter which he can only be expected to have
if properly instructed. We do acknowledge that it is an established
Page 7 of 361
practice that both names of the instructing attorney and practicing

advocate appear on the notice of motion. However, in our view the
omission to do so cannot vitiate the entire proceedings and warrant the
dismissal of a referral. Rather, there has to be more than just that
omission for this prayer to succeed.
The Merits
14.
Applicant submitted that sometime in 2009, she was appointed to act
in the position of Principal Licensing Officer until the incumbent of the
office came back to her post. When the incumbent of the office did not
come back, she was told that the position would be advertised and that
she would have an opportunity to apply for it. After some she made
inquiries about the position and was told that someone had already been
appointed into the position. She then engaged into some extensive
negotiations with the Respondent about the position and how it could
have been filled without her knowledge.
15.
To her surprise, rather than being addressed on the issue, she
received a letter of transfer from her substantive position to another other
than the position of Principal Licensing Officer. She argued that by their
conduct, Respondent is trying to irregularly remove her from the office of
the Principal Licensing Officer which she has been occupying since 2009
to date, by way of transfer. According to her, in terms of the Public
Service Regulations, she was supposed to have long been confirmed into
the said position. She further submitted that notwithstanding the new
appointment of a candidate into the said position, she is still executing its
functions as the new candidate never took over from her.
16.
In response, Respondent denied that Applicant had been acting in the
position of Principal Licensing Officer to date as she was only temporarily
assigned and that the position has since been filled by a qualified
candidate. The new candidate was promoted into the position after having
been interviewed by the public service commission. It was denied that
Applicant is executing the responsibilities of the Principal Licensing
Officer as they are now being done by the new incumbent of the office.
Further that Applicant had no right to be confirmed as her confirmation
would depend on her meeting the requirements of the position which in
the period of her acting she failed to meet. It was denied that the transfer
is intended to irregularly remove Applicant as her substantive position of
Senior Hotels and Restaurant Officer has been phased off after the
process of restricting which gave birth to the new position of District
Tourism officer to which she is being transferred. It was concluded that
Applicant had thus failed to establish a clear right and that this
application should be dismissed. Reference was made to the case of
Simon No vs. Air Operations of Europe AB and Others 1999 (1) SA 217
(SCA).
17.
It was further submitted on behalf of Applicant that she stands to
suffer irreparably in the event that she is not granted the relief sought in
Page 8 of 361
that she has been given a very short space of time to move to her new
location. Given the short space of time, she will not be able to comply
with the directive the result of which may be herself being subjected to
disciplinary proceedings and being eventually dismissed from her
employment. Further that if transferred, her efforts to fight for her
confirmation into the position of Principal Licensing Officer will be
rendered academic and ineffective. In response, it was submitted that
Applicant will not suffer any harm as the position that she seeks
protection for, has already been filled by another person.
18.
It was furthermore submitted that Applicant has no other remedy
against the interference with her clear right by Respondent. It was
maintained that there is no other way that Applicant could have
approached this court for a remedy other than in this fashion as she only
received the letter of transfer on the 29th October 2012 requiring her to
relocate by the 1st November 2012.
ANALYSIS
19.
In an application of this nature, there are three main pre-requisites
that must be met by the applying party. These principles were established
in the case of Setlogelo vs. Setlogelo 1914 AD 221 and cited with approval
by our courts in a number of cases (see Ramochela vs. Moshoeshoe and
others CIV/APN/172/1987; Lithebe Makhutla and another vs. Mamokhali
Makhutla and Another C of A (CIV) 7 of 2002; Maneo Moremoholo vs.
Mantsupi Moremoholo and Others CIV/APN/135/2010 ). The principles
are as follows;
1. That Applicant has a clear right that they seek to protect;
2. That there has been an act of interference with the said right by
Respondent; and
3. That Applicant must have no other remedy against the interference
with their clear right.
In view of the above principles, we shall proceed to deal with the
submissions of parties.
20.
From a simple reading of prayer 2 (b) of the Applicants notice of
motion as quoted in paragraph 1 above, it is clear that she seeks the
protection of her right not to be removed from the office of the Principal
Licensing Officer. As a result, the key issue is whether Applicant has a
right to the said office as she alleges. From the evidence adduced,
Applicant held the substantive position of senior Hotels and Restaurant
Officer before she was temporarily placed into the position of Principal
Licensing Officer, whether by assignment or on acting appointment as
parties have put differently. Clearly, from the onset, Applicant was aware
that her appointment was only temporary and subject to a condition. In
our view, the condition imposed did not in any way vest a right unto her
that the position would later become hers when its original incumbent did
not come back.
Page 9 of 361
21.
Fortifying our above view is the fact that it was communicated to
Applicant that the position would be advertised for everyone to apply,
including herself. At this stage, it was clear to Applicant that the position
of Principal Licensing Officer was not her position. We are in agreement
with Respondent that the discretion on how to have it filled laid with the
employer. This was clear from the communication made to Applicant
about the position being advertised. As a result, it cannot be accurate for
her to claim the right to be in that position particularly because she had
not even referred this Court to a specific provision in Public Service
Regulations which supported her augment. What makes Applicants case
worse is the fact that she has acknowledged that the position has already
been filled by someone else.
22. The fact that Applicant was transferred at the time that she was trying
to have her grievance addressed, does not in any way prove that she had
a right to the position of the Principal Licensing Officer. Rather, at best
Applicant can raise the issue to argue an unfair labour practice on the
part of the Respondent against herself. The contention that the transfer is
intended to remove her from the said office cannot hold water as by her
own evidence, she stated that the position has already been filled by
someone else. We also hold the same view in relation to the argument
that she is still executing the functions of the said office despite the new
appointment having been made. The argument does not in any way
advance Applicant case as far as establishing a clear right is concerned.
We therefore find that Applicant has failed to make out a case for a clear
right over the position of the Principal Licensing Officer.
23.
In view of this said above, We are of the view that it would only be an
academic exercise to deal with the rest of the requirements for a final
interdict, for the reason that they depend on the existence of a clear right.
We hold that without a clear right, one cannot contest its interference by
a third party in as much as without a clear right, one cannot claim
prejudice or a remedy. We therefore find for the Respondent and dismiss
this application.
Page 10 of 361
AWARD
Having heard the submissions of parties, and having considered all evidence
in support, We hereby make an award in the following terms:
a) That this application is dismissed;
b) That the interim rule is discharged; and
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 28th DAY OF JANUARY
2013.
T. C. RAMOSEME
LABOUR COURT OF LESOTHO
Mrs. M. MOSEHLE
Mr. L. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. RAFONEKE
ADV. TAU and
ADV. MOSHOESHOE.
Page 11 of 361

HELD AT MASERU
LC/REV/99/11
A0647/2009

THOLOANA MATSOSO
APPLICANT
And
PHOTO AND GIFT GALAXY (PTY) LTD
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of an arbitral award. Review application being made
out of time without a formal application for condonation Applicant being
given an opportunity to formally move an application for condonation.
Applicant arguing - that the delay was occasioned by lack of sufficient funds
to instruct a lawyer Court not finding this a sufficient ground to justify the
delay Court finding delay to be inordinate and explanation inadequate.
Court finding delay and explanation thereof so unsatisfactory that it is
unnecessary to consider the prospects of success. Condonation being refused
and the review application being dismissed for want of jurisdiction.
1. This is an application for the review of an arbitration award of the DDPR
which was handed down on the 11th June 2011 in referral A0129/2011.
Realising that the review application had been lodged out of time, the
Court called on parties to argue the issue of condonation as a
precondition for the matter to be determined in the merits. Both parties
were given time to make proper preparations and to make their
presentations in Court in respect of both the condonation application as
well as the review application. They were informed that the review
application would only be considered in the event that the Court found in
favour of Applicant on his application for condonation. The ruling and
reasons are therefore as follows.
SUBMISSION OF PARTIES
Condonation
2. Applicant submitted that he received the arbitral award dismissing his
unfair dismissal claim on the 12th November 2010. At that time that he
received the arbitral award, he was unemployed, which still is the
position to date, and that as a result he had no money to pay for the legal
services to have this matter intimated on his behalf. He stated that he
has struggled to get employment but to no avail. He has even gone to the
Page 12 of 361
extent of physically going to the Republic of South Africa for some time to
seek employment but to no avail. He is the bread winner at his home and
he has been providing for his family through earnings from piece jobs
that he has done.
3. Applicant further stated that it was only sometime in September 2011
that he had collected enough money, and to be specific M500.00, to be
able to instruct a lawyer to lodge this application on his behalf. As a
result this application was lodged in October 2011. He stated that
although he was aware that the Legal Aid and Labour Departments were
there to assist people in his position, he decided not to approach them for
assistance. He indicated that he did not seek assistance from the Legal
Aid because he had an impression that they only dealt with matters
instituted in the ordinary civil and criminal courts and not the Labour
Court. He did not approach the Department of Labour because they told
him that they could not assist him with his DDPR case and he felt that he
would get the same reaction from them.
4. He further stated that he has prospects of success in the matter in that
the learned Arbitrator committed some gross irregularities that warrant
interference with the award. He made reference to the fact that the 1st
Respondent did not give evidence and was also not cross examined.
Further that the learned Arbitrator relied on unsubstantiated facts to
dismiss his unfair dismissal claim.
5. 1st Respondent replied that not having money was not a valid excuse
given that there are government agencies that have been established for
the purposes of assisting people in the position of Applicant. It was
further submitted that from the piece jobs that Applicant worked he could
have used his earning to finance the institution of the matter if he was
really serious about it. It was further submitted that Applicants
explanation for the delay is just a lame excuse to justify his lateness.
6. 1st Respondent further submitted that Applicant had no prospects of
success as the arguments raised hereunder are a compete
misrepresentation of what took place in the DDPR proceedings. It was
stated that all parties gave evidence and were cross examined and that all
relevant documents in support of their defence were tendered as evidence
during the proceedings.
ANALYSIS
7. In an application for condonation, there are certain requirements that
must be met. These requirements were laid out in the case of Melane vs.
Santam Insurance Co. Ltd 1962 (4) SA 531 (A) as follows;
1. The degree of lateness and an explanation thereof;
2. The prospects of success in the main claim; and
3. The importance of the case.
The dictates of this authority have been adopted and cited with approval
by our Courts in a plethora of cases (see Phetang Mpota vs. Standard
Page 13 of 361
Lesotho Bank LAC/CIV/A06/2008; Tsepiso Baholo vs. Loti Brick (Pty) Ltd
& another LC/REV/386/06; Director Teaching Service Department &
others vs. Mamoletsane Makhakhe & others LC/REV/45/2009).
8. Upon our analysis of the submissions of 1st Respondent, We noted that a
period of almost 1 full year nearly went by before 1st Respondent could
react to the DDPR award after receiving it. Applicant took this time to
lodge this application notwithstanding his knowledge that the law is clear
that an application for review must be lodged within a period of 30 days
from the time that a party becomes aware of the arbitral award. In our
view, this period is quite inordinate and would depend of a very strong
and sufficient explanation in order to render it ordinate. We found the
explanation proffered by Applicant for delay in lodging the review
application on time to lack in several respects.
9. Firstly, We find it difficult to believe that it took Applicant almost a year
to come up with M500.00 to be able to instruct a lawyer to file this
application for him. The difficultly in believing this is borne by the fact
that he testified that he worked during the entire period in issue. Further
that at some time, he went and lived in the Republic of South Africa in
search for employment. in our view, given the picture that he has
attempted to craw for the Court, we find it difficult that he could have
been able to afford to abandon his family for some time and stay in South
Africa if he was rally as indigent as he led this Court to believe.
10. Secondly, the reasons that Applicant gave for not seeking the
assistance of the either the Legal Aid and the Labour Departments are
not satisfactory. From his submissions, he failed to inquire from the Legal
Aid if they would be able to assists him because he concluded on his own
that they could not help him. He also failed to seek the assistance of the
Labour Department because they said they could not assist him with his
DDPR case. In our view whatever prejudice that he stands to suffer is
self-imposed particularly as he had options which he deliberately omitted
to explore. He relied on speculation to deny himself the privileges
intended for people in his position.
11. All these factors led us to conclude that the explanation given by 1st
Respondent lacks merit and as such it is insufficient to render the period
of delay ordinate. It is Our view that the explanation given for the delay is
so inadequate that it rendered the degree of lateness so gross that this
application ought to fail on this ground alone. In view of Our conclusion,
We deem it unnecessary to even consider the prospects of success as to
do so would only be an academic exercise for which this Court was not
established. We are influenced by the view of the Labour Appeal Court in
the
case
of
Phetang
Mpota
vs.
Standard
Lesotho
Bank
LAC/CIV/A06/2008, where it had the following to say,
it is worth noting however that, exceptionally, the degree of noncompliance may be so gross and the explanation thereof so inadequate that
Page 14 of 361
the court may be moved to refuse condonation, regardless of the prospects

of success in the main proceedings.
Consequently, this application is dismissed.
AWARD
following terms:
a) That the application for condonation is dismissed;
b) That the review application is dismissed for want of jurisdiction; and
2013.
T. C. RAMOSEME
Mrs. R. MOTHEPU
Mr. S. KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
IN PERSON
MS. WANDA SALEEM
Page 15 of 361

HELD AT MASERU
LC/REV/93/11
A0355/2011

THABELO KEBISE
APPLICANT
And
LESOTHO BREWING COMPANY (PTY) LTD
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant raising a preliminary
issue towards the exclusion of Respondent representative from the
proceedings Court finding no merit and dismissing the preliminary point.
Applicant asking for recusal of the presiding Judge from the proceedings
Applicant failing to meet the requirements of a recusal application application
being refused. Applicant seeking a review on the following grounds,
- Challenging the decision of the learned Arbitrator to allow Mr. Ntaote to
appear for Respondent.
- Contesting that the Respondent representative convinced the learned
Arbitrator into finding their evidence more probable than his.
Court not finding both grounds valid review grounds and dismissing the
review application.
which was handed down on the 5th September 2011 in referral
A0355/2011. It was heard on the above stated dates and judgement was
reserved for a later date. Two grounds of review were raised by Applicant
in this matter in terms of which he prayed that the DDPR award be
reviewed, corrected and set aside.
2. However, at the commencement of the review proceedings, Applicant
raised a preliminary issue to the effect that Mr. Ntaote, who had appeared
on behalf of the Respondent, be excused from the proceedings. He argued
that Mr. Ntaote was learned in law and that as a result, he would not be
able to argue with him at the same level. Further that he was not able to
afford legal representation in order to be at par with Respondent, as he
had no sufficient financial muscle. Applicant had made reference section
28(1) (b) of the Labour Code Order 24 of 1992 as amended and to the
Labour Appeal Court authority in Lenka Mapiloko vs The President of the
Labour Court & another LAC/REV/05/2007, in support of his argument.
Page 16 of 361
3. Mr. Ntaote had argued that the fact that he was a legal practitioner was
not sufficient justification for his exclusion from these proceedings. He
stated that although he was a lawyer by profession, he was appearing in
terms of section 28 (1) (a) of the Labour Code Order (supra), as an officer
of the employers organisation to which Respondent is a member. He
stated that his representation and its capacity was known to applicant as
far as when he was served with the opposing affidavits. He stated that
Applicant ought to have taken reasonable steps to ensure that he was
also equally represented in these proceedings.
4. He submitted that the Lenka Mapiloko vs The President of the Labour
Court & another (supra) was misplaced as it did not bar legal
representation before this Court totally. He stated that rather, the
authority provides that an unrepresented party must be afforded the
opportunity to seek legal representation with the view to balance the scale
of arms. As a result, in failing to exercise his right to legal representation
from the time he became aware of Respondent representation, that does
not take away the Respondent right to be legally represented.
5. Having considered all the submissions of parties, We then came to the
conclusion that We would not exclude Mr. Ntaote from the proceedings
but rather to give Applicant the opportunity to seek legal representation
in order to balance the scale of arms. In reaching Our conclusion, We had
considered all the authorities cited by the parties in support of their
submissions. We were satisfied that Adv. Ntaote was appearing as an
officer of an employers association appearing on behalf of the
Respondent, as reflected in their authority to represent. This in effect
meant the applicable section in his case was section 28 (1) (a).
6. Further, in considering the Lenka Mapiloko vs The President of the Labour
Court & another (supra), We noted that legal representation was not
totally barred as put by Respondent. What the Court had simply said was
that where one of the parties could not afford legal representation or
where it was impossible for the unrepresented party to acquire legal
representation, then presiding Judge may exclude legal representation on
behalf of the other party that is represented. In casu, affordability was not
an issue as there were several options available to Applicant.
7. The 1st option was the offices of the Labour Commissioner which has
legally trained staff, who often appear on behalf of indigent Applicants
before this Court. The 2nd option is the offices of the Chief Legal Aid
Counsel, which equally provides similar services with legally trained staff,
which has also made appearances before this Court. Now both offices
offer their services free of charge and as a result Applicant could and can
afford to secure himself legal representation. As a result, Applicant was
advised to seek assistance from these offices and the matter was
postponed by almost 2 months to 21st February 2013.
Page 17 of 361
8. On the return date, Applicant had now applied for the recusal of the
learned Presiding Judge (myself) over these proceedings. In amplification
of his application, he had submitted that he had no faith that the learned
Presiding Judge would be impartial. He stated that his fears were born by
the fact that contrary to clear provisions of the Labour Code Order (supra)
as well as the authority of Lenka Mapiloko vs The President of the Labour
Court & another (supra), the Court had decided against him on his
application for the recusal of Mr. Ntaote. He stated that this was proof
that the learned Presiding Officer was inclined to agree with Mr. Ntaote on
every submission he made. To further fortify his fear of impartiality,
Applicant submitted that after his application for the exclusion of Mr.
Ntaote was refused, the learned Presiding Judge advised him to withdraw
the matter and that this was said on record in court.
9. Respondent replied that the grounds for recusal raised by Applicant were
not valid grounds. Mr. Ntaote maintained that in an application of this
nature, a party making this application had to show that there is a
reasonable apprehension of bias on the part of the Presiding Judge. It
was submitted that contrary to these requirements, Applicant had based
his application on the fact that the learned Presiding Judge had ruled
against him on his preliminary issue.
10. Mr. Ntaote for Respondent further argued that the fact that the leaned
Presiding Judge gave Applicant the opportunity to seek legal
representation, it was an indication that the learned Judge was fair and
impartial. It was furthermore submitted on behalf of Respondent that it
would set a very bad precedent in law, if a party were to obtain recusal
simply because a decision on a preliminary issue had been entered
against them. It was denied that the learned Presiding Judge advised
Applicant to withdraw the matter. Having advised Applicant to seek legal
representation, there would be no basis for such advice. Mr. Ntaote
submitted that the allegation of Applicant was serious and that it
bothered around him being contemptuous particularly because he had
bare allegation of facts against the Court.
11. Having considered all representation made by both parties, We came
to the conclusion that the application for recusal could not stand and it
was accordingly dismissed. Our conclusion was based on the fact that, as
rightly pointed out by Respondent, there are certain requirements that
must be met by the applying party. These were outlined in the case of the
President of the Republic of South Africa & others vs. South African Rugby
Football Union & others 1999 (4) SA CC at 177B-D and cited with approval
by the Labour Appeal Court in Bofihla Makhalane vs. Leteng Diamonds
(Pty) Ltd & others LAC/CIV/APN/04/2011.
12. In the dismissing an application for recusal on a similar ground to the
one in casu, the Labour Appeal Court outlined the requirements for a
recusal application as follows,
Page 18 of 361
The question is whether a reasonable objective and informed person

would, on the correct facts, reasonably apprehend that the Judge has not
or will not bring an impartial mind to bear on the adjudication of the case,
that is, a mind open to persuasion by the evidence and the submissions of
counsel.
In our view, Applicant was far from the dictates of the above cited
authority as he relied on the mere fact that a ruling was made against
him on an earlier occasion. We found the objection raised by Applicant to
be without merit.
13. Applicant had also alleged that the Court had advised him to withdraw
the matter. On this issue We decline to react thereto for a simple reason
that this Court is not on trial. However, We came to the conclusion that
Applicants allegation was without merit, for a simple reason that he had
made an allegation without supporting proof. It trite in law that he who
alleges bears the onus of proof. No proof was put by Application in
support of his allegation and this rendered it unsatisfactory and
unconvincing. Consequently, the application for recusal was denied and
the matter proceeded in the merits
14. Applicant had raised several review grounds spanning from paragraph
4 to 11 of his founding affidavit. When asked to motivate his grounds of
review, he submitted that in effect he had only two grounds of review,
namely that the learned Arbitrator misdirected herself by deciding to
allow representation of Respondent by Mr. Ntaote. Secondly, that the
learned Arbitrator misdirected herself by finding Mr. Ntaotes case more
probable than his, especially when he felt that his case was much
stronger. Applicant further submitted that his second ground of review
grounds was squarely derived from the 1st ground of review.
15. In amplification of his review grounds, Applicant argued that it was
irregular for the learned Arbitrator to have refused his application to have
Mr. Ntaote excluded from the proceedings. Having been allowed to stand
in the proceedings, Mr. Ntaote confused the learned Arbitrator by
convincing her to find in favour of Respondent. He argued that Mr. Ntaote
through his skills was able to convince the learned Arbitrator that his
evidence was more probable than his notwithstanding the fact that
Applicant felt that his case was much stronger. As a result, he argued
that this was a gross irregularity which warrants interference with the
DDPR award.
16. In response, Mr. Ntaote submitted that from the submissions of
Applicant, he was clearly unhappy with the decisions of the learned
Arbitrator. It was argued that none of the grounds raised by Applicant
were valid review grounds as they challenged the merits of the matter. Mr.
Ntaote pointed out the fact that Applicant was not arguing that his
evidence was not considered or a breach of any of the rules of procedure
Page 19 of 361
of the DDPR proceedings. He thus prayed that this review application be

dismissed.
ANALYSIS
17. The principles applicable in an application for review have been stated
by this Court in a plethora of cases. We have said that a review is made
only where the intention is to challenge the means by which those in
authority have come to their conclusion (see Lesotho Highlands
Development Authority vs. Thabo Mohlobo & Others LC/REV/09/2012;
Lesotho Delivery Express Services (Pty) Ltd vs. DDPR and another
LC/REV/18/2010). As a result, where the cause of complaint is the
conclusion itself, then a proper approach is an appeal and not a review.
In the light of this background, We will now proceed to deal with the
submissions of the parties.
18. On the first ground of review raised by Applicant, he has clearly stated
that he is unhappy with the decision of the learned Arbitration in allowing
Mr. Ntaote to continue to appear on behalf of Respondent despite his
objection thereto. It is without doubt, and as the submissions of
Applicant reflect, that what he seeks to do in these proceedings is to have
the conclusion of the learned Arbitrator reversed and replaced with a
different conclusion. The remedy that Applicant seeks is one that can
only be provided through the mechanism of an appeal and not a review.
Consequently, this ground is not a valid review ground and it accordingly
cannot stand.
19. On the second ground of review, which is said to derive from the 1st
ground of review, it is Our opinion that Applicant is similarly unhappy
with the decision of the learned Arbitrator. It is Our view that Respondent
is right that Applicant challenges the decision of the learned Arbitrator in
finding the evidence and submissions of Mr. Ntaote more probable than
his and thus finding in favour of Respondent herein.
20. Applicant has not alleged any procedural irregularity committed on the
art of the learned Arbitrator in coming to the conclusion that
Respondents case was much stronger than his. Consequently, and in the
same vein, We find that this ground is not a valid review ground and thus
it is accordingly dismissed. What Applicant has only succeeded to
establish is that, Mr. Ntaote has been able to execute his mandate to
defend Respondent case very well.
Page 20 of 361
AWARD
following terms:
a) That this review application is refused;
b) The award in A0355/2011 remains in force; and
2013.
T. C. RAMOSEME
Mrs. M. MOSEHLE
Mr. S. KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
IN PERSON
MR. NTAOTE
Page 21 of 361

HELD AT MASERU
LC/REV/88/2011
A0332/2011

LIMKOKWING UNIVERSITY OF
CREATIVE TECHNOLOGY (PTY) LTD
APPLICANT
And
TEBELLO MOTHABENG
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. Applicant raising two grounds of
review in the following,
- learned Arbitrator failing to consider all requirements of the doctrine of
legitimate expectation Court find that all requirements for legitimate
expectation in terms of section 68 of the Labour Code Order 24 of 1992 were
considered.
-learned Arbitrator ignored evidence material to the Applicant defence in the
DDPR proceedings Court finding that the learned Arbitrator ignored certain
facts and not all of them.
Court finding that the ignored facts were material to the Applicants defence
and thereby committing an irregularity warranting interference with the
arbitral award. Review application being granted and the matter being
remitted to the DDPR to be heard de novo before a different Arbitrator. No
order as to costs being made.
1. This is an application for the review of the DDPR arbitral award in referral
A0332/2011. It was heard on this day and judgment was reserved for a
later date. Facts surrounding this application are basically that 1st
Respondent referred a claim for unfair dismissal on the ground of nonrenewal of fixed term contract with the 2nd Respondent. The matter was
heard over a series of dates from the 3rd May 2011 to the 20th July 2011.
Judgment was granted in favour of 1st Respondent on the 22nd August
2011. Thereafter, the Applicant lodged the present application.
2. In this application, the Applicant seeks to have the award of the DDPR
reviewed and set aside on two grounds namely that,
The learned Arbitrator therein erred and misdirected herself by in law
finding that 1st Respondent had legitimate expectation on the basis of a
Page 22 of 361
mere allegation contrary to the requirements of the law relating to that

principle.
The learned Arbitration erred and misdirected herself by ignoring evidence
of the applicant to the effect that 1st Respondents conduct indicated clearly
that her legitimate expectation, if any, had been extinguished, a factor
which if considered would have led to a different finding in law and or
such failure to consider the said evidence led to a wrong conclusion in
law.
SUBMISSIONS
3. It was submitted on behalf of the Applicant that the learned Arbitrator
failed to apply her mind to the legal requirements in a claim for unfair
dismissal based on a legitimate expectation of the renewal of a fixed term
contract. Advocate Macheli for Applicant, submitted that the doctrine of
legitimate expectation is an administrative law principle which has been
extended to the arena of labour law and that its requirements apply
similarly. He submitted that it was irregular for the learned Arbitrator to
have relied merely on the fact that a clause in the contract provided for
the possibility of renewal. He argued that this is nothing but a mere base
and cannot be taken as conclusive of a legitimate expectation.
4. In response, Advocate Russell for 1st Respondent argued that there was
no irregularity on the part of the learned Arbitrator. She stated that the
learned Arbitrator observed all the requirements of a claim for nonrenewal of a fixed term contract in the light of legitimate expectation for
renewal. In particular, she submitted that the claim was based on the
provisions of the Labour Code and the contract of employment of 1st
Respondent. Reference was also made to the case of Pretorius vs. Sasol
Polymers [2008] 1 BALR 10 NBCCI, where the Court was faced with
similar circumstances to the case at hand, and it came to a conclusion
that a reasonable expectation for renewal of fixed term contract existed.
Advocate Macheli rejected these arguments and contended that this case
was not applicable as it concerned an employee who was on a fixed term
contract who wanted to be placed on a permanent position, which is not
the case in casu.
5. We have gone through all documentation presented before this Court and
have noted a number of factors. Firstly, We have noted that the claim
before the DDPR was made in terms of section 68 of the Labour Code
Order 24 of 1992, and to be specific subsection (b) thereof. The provision
of this section are as follows,
For the purposes of section 66 dismissal shall include
... (b) the ending of any contract for a period of fixed duration or for the
performance of specific task or journey without such contract being
renewed, but only in cases where the contract provided for the possibility
of renewal; and ...
6. In Our view, this section governs the issue of legitimate expectation in the
labour law of Lesotho and as such was applicable to the 1st Respondents
Page 23 of 361
case. As a result, anyone determining whether or not a party had a

legitimate expectation of a renewal of their contract, is bound in law to
consider the factors outlined in the provisions of section 68 (b) of the
Labour Code Order (supra). We have noted that in making her arbitral
award, the learned Arbitrator premised her decision on the provision of
this section in line with a clause in the contract that there was a
possibility of renewal.
7. In paragraph 8 of the arbitral award, at page 3 thereof, the learned
Arbitrator had the following to say,
... Your appointment is for a period of 4 January 2010 to 4 January 2011,
subject to renewal based on performance review. Now, this underlined part
falls squarely within the confines of section 68 (b) of the Code. On the
balance of probabilities, I can safely conclude that, applicant has managed
to substantiate her legitimate expectation.
As a result, We do not find how the learned Arbitrator could have
misdirected herself as She simply acted on the basis of the law applicable
to the claim before Her and facts presented before Her as well.
Consequently, We are in agreement with Advocate Russell that there was
no irregularity on learned Arbitrators part. However, We do note that the
circumstances of the case of Pretorius vs. Sasol Polymers (supra) differ
from those in casu and as such it is inapplicable.
8. It was further argued by Advocate Macheli that Applicant is also seeking
a review of the DDPR arbitral award for the reason that the learned
Arbitrator, in her analysis, ignored certain evidence that was adduced
during the arbitration proceedings. Advocate Macheli argued that this
evidence was very crucial as it formed the crux of their defence against
the 1st Respondent claim. He argued that if such evidence had been
considered, then the learned Arbitrator would have come to a different
conclusion or that She would not have come to the wrong conclusion in
law. The evidence was said to include certain admissions by Applicant
which extinguished her legitimate expectation as well as the letter of
complaint about her performance which was written to the HR.
9. In support of the above arguments, reference was made to the DDPR
record of proceedings where the following exchange was recorded, in
relation to first argument,
Mr. Macheli: You said you knew that your contract was expiring on the
04th of January, 2011, correct?
TM: Correct.
Mr. Macheli: So it is right to say [that] the letter you received in December
(to remind you that your contract is ending) also told you what you could do
if you wish to be re-employed.
TM: Correct.
Mr. Macheli: so you filled a form for re-employment?
TM: Correct.
Mr. Macheli: it wasnt renewal but re-employment application form.
TM: You are correct
Page 24 of 361
Mr. Macheli: So applied to be re-employed [and] not renewal of your

contract?
TM: Yes
Mr. Macheli: You wanted a new contract when you applied.
TM: you are right.
Mr. Macheli: Do you agree with me that it is the decision of the employer
whom she calls for interview [and] whom she doesnt?
10. Advocate Macheli argued that clearly from the above exchange, 1st
Respondent was not desirous to be renewed but that she wanted to be reemployed. He maintained that had the learned Arbitrator considered this
exchange in analysing the matter in her arbitral award, She would not
have come to a correct conclusion in law. He stated that the learned
Arbitrator would have realised that 1st Respondent legitimate expectation
had been extinguished so that she could not later claim to have had any
such expectation.
11. Reference was also made to the record of proceedings where the
following exchange was recorded, in relation to second argument,
If the court could wish to know how her performance was before when she
went on maternity leave, we will show that her boss had complaints about
her and [d]oing her work properly, that is when two days before her leave,
her boss asked that she is leaving a lot of work undone and such matters
were passed on to the HRs office which I am in charge, an example is for
the past four months where have not been financial reports and stock
taking, there were the core of her daily work I think that is all my lord.
Thank you.
12. Advocate Macheli argued that the above exchange indicates that 1st
Respondent performance was in question so that at that stage she was
aware of the possibility that her contract might not be renewed on
account of her performance. He maintained that in the same vein, the
question of her performance extinguished her legitimate expectation of
renewal. It was stated that this evidence was ignored by the learned
Arbitrator in analysing the matter and that in so doing She ignored facts
material to the matter which conduct warrants interference with Her
award.
13. In Response, Advocate Russell submitted that the learned Arbitrator
did not ignore any evidence at all. She referred the Court to page 3 of the
DDPR arbitral award at paragraph 6 and stated that all the evidence that
Applicant alleges was ignored is infact reflected in that paragraph. She
further argued that it cannot be accurate that all the evidence led
extinguished the 1st Respondents legitimate expectation for the reason
that Applicant failed to renew 1st Respondents contract contrary to the
provision of the Labour Code Order (supra).
14. We have gone through the DDPR arbitral award and have made the
following observations. In relation to the first argument on this 2nd
Page 25 of 361
ground, We have noted that there is nowhere in the arbitral award where
these issues were considered. What simply transpired is that on
paragraph 6 of the Arbitral award, the learned Arbitrator only made
reference to these issues for purposes of providing the summary of the
evidence presented before Her. However, She did not take them into
consideration in making her final arbitral finding as her analysis of the
facts only starts from paragraph 7.
15. We are of the view that these issues were very material to the case of
Applicant as it denied the existence of a legitimate expectation on its part.
We share a similar sentiment with Applicant that these issues had the
possibility of influencing the learned Arbitrator to a different conclusion.
In law this mere possibility is sufficient to warrant the review and setting
aside of an arbitral award if facts carrying such weight are ignored.
16. In relation to the 2nd argument, We have noted that the relevant
evidence was not ignored but rather considered and given less weight.
Paragraph 12 of the arbitral award deals with that evidence and the
learned Arbitrator pronounced Herself on the arguments then raised. She
came to the conclusion that the manner in which Applicant treated 1st
Respondents case was inconsistent with how he treated other employees.
In our view, what the learned Arbitrator did was well within the confines
of her discretion and that she cannot be held against conduct. However,
in view of our finding on the first leg of the second ground of review, this
application for review succeeds.
AWARD
following terms:
a) That the application for review is granted;
b) That the mater in referral A0322/2011 be heard de novo before a different
Arbitrator; and
2013.
T. C. RAMOSEME
Mrs. N. THAKALEKOALA
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. MACHELI
ADV. RUSSELL
Page 26 of 361

HELD AT MASERU
LC/REV/85/2008
A0845/2007

THABO MATAMANE
APPLICANT
And
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. 2nd Respondent applying for
dismissal of review application for want of prosecution. Applicant not
opposing the application Applicant also failing to attend proceedings despite
proof of service of notification of hearing. Application proceeding in default of
Applicant Applicant having not taken any steps to have the matter finalised
application not reacting to the application for dismissal for want of prosecution
Court finding conduct of Applicant demonstrative of lack of interest. Court
granting application for dismissal for want of prosecution and awarding costs
as prayed by 2nd Respondent against Applicant.
1. This is an application for the dismissal of an application for review of an
arbitration award of the DDPR, for want of prosecution. It was heard on
this day and judgment was reserved for a later date. Facts surrounding
this application are basically that Applicant 2nd Respondent referred a
claim for unfair dismissal with the DDPR under referral A0845/2007. The
matter was heard on the 4th and 22nd July 2008 and judgment was
granted in favour of 2nd Respondent on the 20th August 2008. Thereafter,
Applicant lodged the present application on the 31st October 2008. On the
24th January 2013, 2nd Respondent lodged an application for the
dismissal of the review application for want of prosecution.
SUBMISSIONS
2. It was submitted on behalf of 2nd Respondent that Applicant instituted
review proceedings of the DDPR arbitral award in referral A0845/2007 on
the 9th October 2008. It was further submitted that since then to date, no
further steps have been taken by Applicant to prosecute and bring this
matter to finality. 2nd Respondent submitted that as a result, it initiated
the current proceedings and served same on the Applicant. Despite
service of the application, Applicant has neither opposed nor attended
these proceedings. It was argued that from the conduct of Applicant, it is
Page 27 of 361
clear that he is not interested in prosecuting this matter to finality and

that this is prejudicial to the 2nd Respondent. It was thus prayed that the
review application be dismissed with costs of suit for abuse of court
process by Applicant.
3. This Court is a specialised forum for both employers and employees to
seek the protection and/or enforce their labour rights. This process is
done by giving both parties to a dispute a fair chance to make
representation. However, this opportunity can only be granted in favour
of a party that is willing to utilise it. This court has pronounced itself on
this issue before in the case of Khutlang Mokoaleli vs. Standard Lesotho
Bank & DDPR LC/REV/21/07) as follows,
The court can only give effect to the right to be heard to a party that is
willing and does utilise the opportunity to exercise its right to be heard. As
a result, a party that fails to prosecute its case without a reason summarily
waives their right to be heard.
4. In casu, Applicant has been given the opportunity to be heard. However,
he has through conduct demonstrated his unwillingness to make use of
this opportunity. Evident to this is the fact that to date he has not taken
any steps to have this matter finalised. Further evident to this is the fact
that he has not reacted to the present application for dismissal for want
of prosecution, yet it has been served upon him. We are inclined to agree
with 2nd Respondent in their submission the Applicant is not interested in
this matter anymore. We are convinced that the conduct of Applicant is
an abuse of court processes, so extreme that it warrants the granting of
an award of costs against him.
Page 28 of 361
AWARD
following terms:
a) That the application for dismissal of the review application for want of
prosecution is granted;
b) That the review application is accordingly dismissed; and
c) An order of costs of suit is made against Applicant and must be complied
within 30 days of receipt of this judgment.
2013.
T. C. RAMOSEME
Mrs. N. THAKALEKOALA
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
NO APPEARANCE
ADV. PULE
Page 29 of 361

HELD AT MASERU
LC/REV/62/11
A0129/2011

MAHOKO SETIPE
APPLICANT
And
NIEN HSING INTERNATIONAL (PTY) LTD
THE DDPR
ARBITRATOR M. MASHEANE NO
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for the review of an arbitral award. 1st Respondent failing to file its
answer in time application for condonation being made. 1st Respondent
failing to explain the delay satisfactorily Court finding delay to be inordinate
condonation being dismissed and the matter proceeding unopposed.
Applicant raising two review grounds,
- learned arbitrator erred in basing her decision on irrelevant considerations
Court finding facts considered relevant to the matter.
- learned arbitrator erred in failing to apply her mind to the peculiar facts
placed on record Court finding that this point is an appeal disguised as a
review.
Application for review being dismissed and no order as to costs being made.
which was handed down on the 11th June 2011 in referral A0129/2011.
It was heard on this day and judgement was reserved for a later date. Two
grounds of review were raised by Applicant in this matter in terms of
which he prayed that the DDPR award be reviewed, corrected and set
aside. These grounds were in the following,
The learned arbitrators decision was in error and or misdirected owing to
the fact that it almost entirely premised on irrelevant considerations in that
it relied holus bolus on the logic that the respondents evidence is more
probable than the applicants witnesses owing to the fact that other
witnesses were in close proximity to the incident.
The learned arbitrator erred by failing to apply the mind to peculiar facts
allured to and appreciating the fact that the last witness of the applicant
gave evidence to the effect that a brawl ensued as between the applicant
Page 30 of 361
and her complainant colleague which was at the instance of the

complainant colleague.
2. Facts surrounding this matter are basically that Applicant had referred a
claim for unfair dismissal with the DDPR. An award was issued in favour
of 1st Respondent herein on the 11th June 2011. Thereafter, Applicant
lodged the present application with this Court on the 28th July of 2011
and service of application was made on 1st Respondent on the same date.
The matter was then set down for hearing on the 14th February 2013 and
the date of hearing was made known to all parties. On the date of
hearing, the 1st Respondent was not in attendance. However, the matter
did not proceed as it was postponed to this day. It was only on this day
that the 1st Respondent filed their answer to the review application
accompanied by an application for condonation.
3. The condonation application was not opposed by Applicant. Rather, both
parties suggested to the Court that the condonation be granted by
agreement and further that 1st Respondent pay the costs of the day. Both
parties were however informed that an application for condonation is
granted on merit and not per an agreement of parties. As a result, 1st
Respondent was given the opportunity to motivate its application
unopposed. Its submissions and Our ruling are in following.
SUBMISSIONS AND FINDINGS
Condonation
4. It was submitted on behalf of 1st Respondent that they were served with
the review application on the 28th July 2011. Further that at the time that
they were served with the application, they were in the process of
changing their legal representatives. In the end of the process, an
instruction was issued by the Human Resources Manager to his assistant
to instruct then the newly appointed legal representatives to oppose the
matter and to forward to them all relevant documentation including the
record of proceedings before the DDPR.
5. The 1st Respondent was only surprised when they discovered on the 11th
February, just 2 days before the date of hearing, that they had not
opposed the matter. Upon this discovery efforts were made to oppose the
matter hence why they were only able to file their answer on the 28th
February 2013, together with this application. They stated that their
delay in filing an answer was not wilful but due to the negligence of their
Assistant Human Resources Manager, who unfortunately was no longer
working with them.
6. It was further submitted that there are high prospects of success in that
there was a clear breach of the rules of this Court evident from the
founding papers of Applicant. Further, that the grounds raised by
Applicant were appeal and not review grounds which in effect meant that
this Court had no jurisdiction to entertain this matter. It was furthermore
Page 31 of 361
argued that Applicant had no case as the learned Arbitrator had made a
valid ruling.
7. In an application for condonation, there are certain requirements that
must be met. These requirements were laid out in the case of Melane vs.
Santam Insurance Co. Ltd 1962 (4) SA 531 (A) as follows;
4. The degree of lateness and an explanation thereof;
5. The prospects of success in the main claim; and
6. The importance of the case.
The dictates of this authority have been adopted and cited with approval
by our Courts in a plethora of cases (see Phetang Mpota vs. Standard
Lesotho Bank LAC/CIV/A06/2008; Tsepiso Baholo vs. Loti Brick (Pty) Ltd
& another LC/REV/386/06; Director Teaching Service Department &
others vs. Mamoletsane Makhakhe & others LC/REV/45/2009).
8. Upon our analysis of the submissions of 1st Respondent, We noted that a
period of almost 3 years nearly went by before 1st Respondent could react
to this matter, since receiving both the application for review as well as
the DDPR record of proceedings. In Our view, this period is quite
inordinate and would depend of a very strong and sufficient explanation
in order to render it ordinate. We found the explanation proffered by 1st
Respondent to lack in several respects.
9. Firstly, the explanation given did not explain the entire period of delay
from the 28th July 2011 to the 11th February 2013 as they simply stated
that they changed representative and gave instructions to have the matter
opposed. Secondly, there was nothing in their submissions to suggest
that the 1st Respondent took any action in the interim to inquire about
the status of the matter, if indeed they are or were interested in seeing it
to finality. Thirdly, the matter was set down for hearing on the 14th
February 2013 and no appearance was made on the side of 1st
Respondent. What was striking in this is that they acknowledged that
they were aware of the 14th February being the date of hearing but
nonetheless failed to attend.
10. All these factors led us to conclude that the explanation given by 1st
Respondent lacked merit and as such it was insufficient to render the
period of delay ordinate. It is Our view that the explanation given for the
delay was so inadequate that it rendered the degree of lateness so gross
that this application had to fail on this ground alone. In view of Our
conclusion, We deemed it unnecessary to even consider the prospects of
success as to do so would only be an academic exercise for which this
Court was not established.
11. In view of this said above, We accordingly made a ruling that the
application for condonation was refused and that the matter would
proceed unopposed. We were influenced by the view of the Labour Appeal
Court in the above referred case of Phetang Mpota vs. Standard Lesotho
Bank LAC/CIV/A/06/2008, where it had the following to say,
Page 32 of 361
it is worth noting however that, exceptionally, the degree of noncompliance may be so gross and the explanation thereof so inadequate that
the court may be moved to refuse condonation, regardless of the prospects
of success in the main proceedings.
The Merits
12. It was submitted on behalf of Applicant that the learned Arbitrators
decision was in error and misdirected in so far as the logic that she
employed in making her conclusion. It was stated that she had made
irrelevant considerations in coming to her conclusion in that it was sorely
based on the pretext the evidence of the witness who was closest to the
incident was more probable than that of other witnesses who were farther
away. It was argued that the credibility of a witness is not based on
proximity but to the truthfulness of their assertions.
13. The phrase irrelevant considerations suggests that rather than to
take into account issues relevant for purposes of making their decision,
the decision maker took into account other issues not related to the issue
that the decision is being made on. In the DDPR proceeding, the issue
was whether the Applicant had fought at work contrary to the rules of the
employer. Evidence of several witnesses for each side was led and it
heavily contradicted each leading to a stalemate. If the matter had ended
at a stalemate, then 1st Respondent would have lost the battle as the
evidentiary burden was on them to prove that the dismissal was fair.
14. However, the witnesses of Applicant then discredited their own
evidence by admitting that the evidence of the witnesses of 1st
Respondent was more probable since they were closest to the incident.
This issue in Our opinion was very relevant towards the determination of
the matter and given the circumstances of the case at the time. In a
situation of a stalemate, the issue of credibility plays a very crucial role as
it aids the decision maker in attaching weight to the evidence of
witnesses. We do not fully agree with Applicant that proximity may not be
used as a tool to determine credibility. Our position is that it cannot on
its own as it would have to be supported by certain facts. In the present
case, the issue of proximity was supported by an accession of Applicant
witnesses that the evidence of 1st Respondent witnesses was more
credible than theirs. Consequently, this point cannot succeed.
15. It was further submitted that the learned Arbitrator failed to apply her
mind to the set of facts placed before her in that she rejected the evidence
of one of the witnesses to the effect that there was a brawl between the
Applicant and his colleague. It was stated that the learned Arbitrator
ought to have detected that there was an element of provocation that
prompted the brawl. It was argued that in failing to apply her mind to
these facts, the learned Arbitrator committed a gross irregularity in
exercising her judicial powers.
Page 33 of 361
16. The phrase failure to apply one mind was explained by the court in
Johannesburg Stock Exchange vs. Witwatersrand Nigel Ltd 1988 (3) SA
132 AD at 152 C-D as follows,
Proof, inter alia, that the decision was arrived at arbitrarily or capriciously
or mala fides or as a result of unwarranted adherence to a fixed principle
or in order to further an ulterior or improper purpose; or that the
[commissioner] misconceived the nature of the discretion conferred upon
him and took into account irrelevant considerations or ignored relevant
ones; or that the decision of the [commissioner] was so grossly
unreasonable as to warrant the interference that he had failed to apply his
mind to the matter in the manner aforestated.
17.
There is nothing contained in the averments of the Applicant on his
second ground of review that meets the above stated test. In his
illustration of how the leaned Arbitrator failed to apply her mind,
Applicant seems to contest the merits of the matter. Our understanding
of his contention is that given the evidence that was led during the
arbitration proceedings, the learned Arbitrator ought to have come to a
conclusion that Applicant was provoked by the complainant and that this
led to the alleged assault.
18. The averments made do not suggest any failure on the part of the
learned Arbitrator to apply her mind to the facts. In fact they suggest that
the facts were considered safe that it was not properly by reason of the
fact that the learned Arbitrator failed to detect that Applicant was
provoked and as such came to a wrong conclusion. This in our view is not
a valid review grounds and it accordingly fails.
AWARD
following terms:
a) That this application is refused;
b) This award of the DDPR in A0129/2011 remains in force; and
2013.
T. C. RAMOSEME
Mr. L. MATELA
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. RASEKOAI
ADV. KAO
Page 34 of 361

HELD AT MASERU
LC/REV/53/11
A0640/2010(a)

LESOTHO FREIGHT AND BUS
SERVICE CORPORATION
APPLICANT
And
THE DDPR
M. MASHEANE (ARBITRATOR)
THABISO MOERANE
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of arbitration award. Court acting on own motion to
raise a point of law Courts jurisdiction to entertain a review of an earlier
decision while the latter decision still stands Both parties being given the opportunity to make formal presentations. Court
finding that it is improper to review an earlier decision while the latter decision
still stands application for review being dismissed for want of jurisdiction
and no order as to costs being made.
which was handed down on the 20th January 2011 in referral
A0647/2010(a). It was heard on this day and judgement was reserved for
a later date. Two grounds of review were raised by Applicant in terms of
which it prayed that the DDPR award be reviewed, corrected and set
aside. However, at the commencement of the proceedings, the Court
raised the issue of its jurisdiction to entertain this application. Both
parties were given the opportunity to make their addresses after which
the Court then declined to hear the merits before pronouncing itself on
this issue first.
2. Facts surrounding this matter are basically that 1st Respondent had
referred claims for unfair dismissal and unlawful deductions with the
DDPR. The matter was duly set down for hearing and on the date of
hearing, the Applicant failed to attend. As a result, the matter proceeded
and an award was issued in default and in favour of 1st Respondent
herein. Then the Applicant lodged a rescission application seeking a
rehearing of the matter granted in default. The rescission application was
refused and the initial default award remained in force.
Page 35 of 361
3. Dissatisfied with the arbitral award, Applicant then lodged the current
application for review in which it sought to review the initial arbitral
award A0640/2010(a). At the commencement of these proceedings, We
mero muto raised a preliminary point concerning this Courts jurisdiction
to entertain a review of the initial award in the subsistence of the latter
award that dismissed the rescission application. In raising this point, We
acted on the basis of the authority in Thabo Mohlobo & others vs. Lesotho
Highlands Development Authority LAC/CIV/A/02/2010, that the Court
has the power to raise a point of law on its own motion. The submissions
of the parties, ruling and reasons are recorded in the following.
4. It was submitted on behalf of Applicant that although they had applied
for the review of the referral A0640/2010(a), notwithstanding the fact that
the latter decision on the matter in A0640/2010(b) was still in force, the
Court should look at the substance and not the form. It was stated that
substance of the review is the same for both the review of the initial
award and the rescission arbitral award. It was stated that they would
have relied on same grounds to have the rescission award review,
corrected and set aside.
5. Applicant pleaded with the Court to excuse the form and consider the
substance. In support of this argument, reference was made to rule 27 of
the Labour Court Rules, that this Court may condone any failure to
adhere to its Rules. Applicant further submitted that they are unhappy
with the initial decision which the rescission application has confirmed
hence their approach. It was argued that notwithstanding their position,
there is no rule or principle of law that this Court should first review that
rescission arbitral award before the initial arbitral award.
6. 1st Respondent replied that in motion proceedings, a party stands and
falls by their papers. As a result, this Court cannot entertain what is not
reflected on the papers of the Applicant. 1st Respondent averred that
according to the affidavits of Applicant, what they seek is the review of the
initial award and not the latter rescission arbitral award. As a result,
neither the Rule of this Court that has been cited nor any augment raised
by Applicant can exonerate them from the irregular procedure that they
have adopted. It was thus prayed that this review application be
dismissed on this ground alone.
ANALYSIS
7. We wish to start by giving a proper interpretation and the right invocation
of Rule 27 of the Rules of this Court, for purposes of addressing a request
for condonation of non-adherence to the Rules. Rule 27 may be
successfully invoked where non adherence to the Rules relates to issues
that do not go to the root of the claim or issues for determination. As a
result, where the non-adherence is material to the determination of a
claim or issues before Court, then Rule 27 cannot be successfully
invoked.
Page 36 of 361
8. In casu, Applicant has attempted to invoke Rule 27 to influence this

Court to condone the form that they adopted in the present application
and argued that the substance is of paramount importance. It is Our view
that their non-adherence relates to an issue that is material to the
determination of this matter. Applicant has applied the review of the
initial award and not the rescission application. for this Court to allow
them to amend their pleadings under the guise of Rule 27, in the fashion
that they propose, is tantamount to allowing them to refer a fresh matter
altogether from the bar. As a result, this is one of the situations under
which Rule 27 cannot be successfully invoked to excuse the form.
9. We agree with 1st Respondent that it is trite that in motion proceedings,
parties must stand and fall by their pleadings (Pascalis Molapi vs. Metro
Group Limited & others LAC/CIV/R/09/2003). This principle essentially
means that a party cannot go beyond their pleadings in presentation of
their case in Court (Frasers Lesotho Limited vs. Hata Butle (Pty) Ltd LAC
(1995-199) 698 at 702). Pleadings are meant to clarify all the issues
between the parties that are going to be the subject of argument in court.
As a result, a party cannot be allowed to plead one thing and then
canvass the other during presentation of their case. If one of the parties
were to be allowed to plead one thing and canvass another during the
presentation of their case, that would cause great prejudice and
unfairness on the other party.
10. In casu, the Applicant seeks to challenge the arbitral award of the
DDPR in A0640/2010(a). Reacting to the Courts remark, they then
somersaulted against their pleading to argue that they are no longer
challenging arbitral award A0640/2010(a) but arbitral award
A0640/2010(b). Clearly their conduct is contrary to the dictates of the
principle in pleadings that parties must stand and fall by their pleadings.
In our view to allow Applicant to change as it seeks to, would bring great
prejudice and unfairness upon them. Consequently, Applicants are held
to their pleadings.
11. Applicant has also argued that there is no rule that a Court must first
review a rescission arbitral award before it could proceed to deal with the
initial arbitral award. In our view this augment is neither logically nor
legally valid. We hold this view for the reason that in not challenging the
rescission arbitral award, Applicant implies that it accepts it as valid. If
this is the case, then they cannot challenge the initial arbitral award
because the rescission arbitral award, which they have no quarrel with,
has confirmed the initial arbitral award as valid. As a result for as long as
the rescission arbitral award remains in force, the initial arbitral award
cannot be subjected to any challenge.
12. In view of this said above, We have come to the conclusion that this
Court has no jurisdiction to determine a review of the initial award in the
subsistence of the rescission arbitral award.
Page 37 of 361
AWARD
following terms:
a) That this review application is dismissed for want of jurisdiction;
b) The award in A0640/2010(a) remains in force; and
2013.
T. C. RAMOSEME
Mr. S. KAO
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MR. N. T. NTAOTE
MR. L. MOLEFI
Page 38 of 361

HELD AT MASERU
LC/REV/40/11
A0804/2010

ELLERINES FURNISHERS
LESOTHO (PTY) LTD
APPLICANT
And
THE DDPR (M. MONOKO)
ATANG RABOSHABANE
PALESA KESWA
PATRICIA MOSHABESHA
JOHN LESHOTA
MAMOIPONE NTSHIHLELE
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
5th RESPONDENT
6th RESPONDENT
JUDGMENT
Application for review of arbitration award. Court finding that the learned
arbitrator ignored facts which were common cause in making his finding.
Court finding that the grounds raised were review and not appeal grounds but
dismissing them for want of merit. Court granting the review application on the
basis of the first ground of review alone and remitting the matter to the DDPR
to be heard de novo before a different arbitrator. No order as to costs being
made.
which was handed down on the 22nd March 2011 in referral A0804/2010.
It was heard on this day and judgement was reserved for a later date.
Four grounds of review had been raised by Applicant in this matter in
terms of which they pray that the DDPR award be reviewed, corrected and
set aside. At the commencement of the proceedings, this Court sought the
position of parties in relation to the preliminary issues raised. Both
parties agreed that these issues went into the merits of the matter and as
a result they wished to argue them together. Pursuant to their agreement,
they both made representation on the entire matter and the ruling and
reasons are contained herein.
2. Facts surrounding this matter are basically that Applicants contracts of
employment terminated. They were thereafter paid their pensions except
their severance payments. As a result, they lodged their claims of
severance pay with the DDPR. At the DDPR, they prepared pre-arbitration
conference minutes in terms of which they agreed as follows:
Page 39 of 361
1.1 The Respondent herein is Ellerines Furnishers Lesotho (Pty) Ltd.

1.2 Ellerines Furnishers Lesotho (Pty) Ltd is a registered company in
Lesotho.
1.3 Applicants signed their employment contracts with Ellerines Holdings
Limited.
1.4 Ellerines Holdings Limited is a South African Company
1.5 Ellerines Holdings Limited is duly exempted in terms of section 79 (3) of
the Labour Code, 1992.
3. Parties had further agreed that the following issues were in dispute:
2.1 Whether Applicants were employed by Respondent. (Applicants to
prove same)
2.2 Whether Ellerines Holdings Limited which is a foreign company can be
granted exemption.
2.3 Whether Ellerines Furnishers Lesotho (Pty) Ltd is a subsidiary of
Ellerines Holdings Limited as Applicant content.
2.4 Whether the exemption granted to Ellerines Holdings Limited applies to
Ellerines Furnishers Lesotho (Pty) Ltd.
4. It was furthermore agreed by parties that on the basis of the prearbitration minutes, they would only address the Learned Arbitrator on
issues of law and that no evidence would be led. Pursuant to the
agreement, the mater proceeded and an award was issued in favour of 2nd
to 6th Respondent herein. Applicant then lodged this matter in which it
raised four grounds of review against the award of the DDPR as follows;
13.3.1 he failed to apply the facts the parties agreed to when he ignored
the fact that Respondents were not employed by Applicant;
13.3.2 by considering submissions by counsel for Respondents on matters
which were not agreed upon such as;
13.3.2.1 where[ther] the labour Commissioner had jurisdiction or
authority to exempt an employer who was not a Lesotho company;
13.3.2 .2 that Applicant should have applied for exemption even when it
common cause that Applicant was not the employer;
13.3.2.3 that Applicant was not exempted.
13.3.3 he went outside the agreed pre-arbitration minutes by for instance
finding that Applicant never denies services were rendered from their
premises when this was neither in dispute nor relevant to the case nor to
the claim for severance pay.
13.3.4 he ignored the fact that the Labour Commissioner granted exemption
which decision or authority to grant the exemption was never challenged by
Respondent.
SUBMISSIONS OF PARTIES
5. In amplification of its grounds of review, it was
Applicant that there was no evidence to the
Respondent were employees of Applicant but
learned Arbitration went ahead and concluded
doing, he ignored the facts as agreed upon in the
Page 40 of 361
submitted on behalf of
effect that 2nd to 6th
that despite this, the
that they were. In so
pre-arbitration minutes
that these Respondents were employed by Ellerines Holdings Limited and

not Ellerines Furnishers Lesotho (Pty) Ltd.
6. Further, it was submitted that the learned Arbitration went beyond the
agreed pre-arbitration minutes and considered issues not included in the
pre-arbitration minutes such as the authority of the Labour
Commissioner to grant exemption to Ellerine Holdings Limited; that
Applicant was not exempted and that as a result, it ought to have applied
for same; and that it was not denied that services were rendered by the
Respondents at the premises of Applicant. It was argued that the above
issues were never in issue and that they had no bearing on the claim that
was before the learned Arbitrator.
7. It was furthermore argued that the amounts that were awarded as
severance payment to the Respondents were done so unilaterally as no
evidence of any kind was let in relation thereto. It was prayed that on
these basis, this application ought to be granted with costs. Reference
was made to the case of WASA vs. Moramane Mabina & another
LC/REV44/2008, where the Court stated that the test in a review is
whether the learned Arbitration applied his/her mind to the case
beforehand. It was maintained that the learned Arbitrator had failed in
this regard and as such the award warranted interference with.
8. In response, Respondents submitted that there was ample evidence in the
form of documents which were tendered that reflected that Ellerines
Furnishes Lesotho (Pty) Ltd was the employer. As a result, it was
maintained that no facts were ignored. Respondents replied that there
was no error on the part of the learned Arbitrator in unilaterally awarding
severance pay amounts. It was argued that the amounts were never
contested by Applicant and as such they were taken to have been
admitted as they appeared in the referral forms. Reference was made to
the case of Moonlite Taxis vs. Phomolo Seboka C of A 06/2007 where the
Court concluded that there was no misdirection where the magistrate had
granted a default judgment over a claim that had been proven.
9. Respondent further submitted all the issues raised therein for review are
appeal grounds disguised as review grounds in that they challenged the
merits and not the procedure. Reference was made to the cases of JDG
Trading (Pty) Ltd t/a supreme furnishers vs. M Monoko & 2 others
LAC/REV/39/04; Teaching Service Commission & 3 others vs. The Judge
of the Labour Appeal Court and 4 others C of A (CIV) 21/2007 and Tepang
Manyeli & Another vs. DDPR & another LC/REV/49/2008 to make
highlight the distinction between a review and an appeal. Respondents
thus prayed that Applicants case be dismissed. Reference in support was
made to the case of Maholomo Mpali vs. The learned Magistrate Mrs
Nthunya & 2 others CIV/APN/269/2011.
Page 41 of 361
ANALYSIS
10. It has become a common practice for parties to argue new issues not
canvassed in their founding documents when making their verbal
submissions. The proceedings in this matter are not exception to this as
both the Applicant and Respondent have done so. We have deliberately
shown the submissions on the issue of unilateral award of severance
payment under paragraph 8 above to illustrate our contention as this
issue was never canvassed in the founding papers. As a result, in our
analysis We have only focused on submissions of parties that address the
averments as appears in their founding papers. The premise of this
approach is simply that in motion proceedings, one stands and falls by
their papers.
11. Before we proceed to deal with the merits of the matter, We wish to
highlight from the word go that in Our opinion, the grounds raised by
Applicant are review and not appeal grounds as suggested by
Respondents. These ground sound in procedure contrary to Respondents
suggestion that they attach the merits of the matter. Consequently, this
suggestion cannot hold. However, We further wish to highlight that we
acknowledge the dictates of the principle in Moramane Mabina & another
vs WASA (Supra)) and many other authorities cited by Respondents.
12. In our analysis of the first review ground, We have noted that at
paragraph 4 on page 5 of the DDPR award, the learned Arbitrator has
stated in clear terms that His analysis would be solely based on the issue
of whether the exemption granted to Ellerine Holdings Limited applies to
Ellerines Furnishers (Pty) Ltd. We have gone through the award of the
Learned Arbitrator and have satisfied ourselves that indeed this is what
He did. He then made the determination that the latter was not exempt
and further that the two were separate entities. As a result, He ruled that
the latter was liable to Applicants to pay them their severance payment.
13. This being the case, He clearly ignored some of the facts which parties
had agreed upon, at least as appears in their pre-arbitration minutes.
Particular reference is made to point 1.3, that Applicants signed their
employment contracts with Ellerine Holdings limited. This point was of
particular importance as it went to the root of 2nd to 6th Respondents
case. A claim for severance payment depends upon the existence of the
employment relationship between parties so that in the absence of same,
such a claim cannot be made. Point 1.3, which was clearly agreed upon
by parties as common cause, suggests that a contractual relationship
existed between 2nd to 6th Respondents with Ellerine Holdings Limited
and not Ellerines Furnishers Lesotho, against which they are making
their claim. Consequently, in ignoring this issue, the learned Arbitrator
committed a gross irregularity that warrants interference with this award.
14. On the second ground of review, and in particular point 13.3.2.1
thereof, We are of the view that there is no irregularity on the part of the
learned Arbitrator. Upon our inspection of His award, We have not found
Page 42 of 361
anywhere where He considered this issue to make his determination.

What he simply did was to reiterate the submissions of the parties on the
issue. Even assuming he had, it was a term within the pre-arbitration
minutes that it was in dispute whether Ellerine Holdings Limited being a
foreign company could be granted exemption. This in essence put the
authority of the Labour Commissioner to grant same exemption and by
necessity the investigation as to whether She had such powers.
15. In relation to points 13.3.2.2 and 13.3.2.3, having formed an opinion
that the exemption related to Ellerine Holdings Limited and not Ellerines
Furnishers Lesotho (Pty) Ltd, it went without saying that to be exempt
they would have to have applied. It was common cause that the
exemption related to Ellerines Holdings Limited and not Ellerines
Furnishers Lesotho which in effect meant that the latter was not exempt.
Consequently, in the premise of His findings that the exemption related to
the former and not the latter, We do find how the learned Arbitrator could
have misdirected himself as far as the grounds of review under point
13.3.2 are concerned.
16. On the third ground of review, We hold the view that the learned
Arbitrator did not go outside the pre-arbitration minutes. In our view this
issue is related to point 2.1 of the pre-arbitration minutes on whether
Applicant were employed by Respondent (Applicant to prove). As a result,
it cannot be accurate that this issue was not in dispute or relevant to the
case at hand. We have already pronounced ourselves that to claim
severance payment, there has to be an employment relationship between
parties. Consequently, there is no irregularity on the issue.
17. On the fourth point, in the award of the learned Arbitrator, it has been
clearly stated and conceded to that the Labour Commissioner did grant
exemption to Ellerine Holdings Limited, which issue was common cause
to both parties. This is reflected under point 1.5 of the pre-arbitration
minutes where parties have declared it common cause that Ellerine
Holding Limited is duly exempted in terms of section 79 (3) of the Labour
Code, 1992. As a result, nothing has been ignored except that the
learned Arbitrator went further to pronounce Himself that the exemption
granted to Ellerine Holdings did not apply to Applicant herein.
Consequently, this point falls away.
COSTS
18. Applicant prayed that this review application be granted with costs.
We decline to make an award of costs. Our view is based on the fact that
costs are awarded in extreme circumstances. The intention behind
making an award of costs is not to intimidate parties away from enforcing
or defending their rights but mainly to discourage abuse of court
processes. We do not find the current circumstances to justify an award
of costs, more so in the light of the fact that Applicant has not given this
Court enough justification to awards costs in their favour.
Page 43 of 361
AWARD
following terms:
a) That this application is granted;
b) This matter be heard at the DDPR before a different arbitrator; and
THUS DONE AND DATED AT MASERU ON THIS 13th DAY OF FEBRUARY
2013.
T. C. RAMOSEME
Mr. L. MATELA
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MPAKA
ADV. LESAOANA
Page 44 of 361

HELD AT MASERU
LC/REV/41/12
A0734/2011

LESOTHO ELECTRICITY COMPANY (PTY) LTD
APPLICANT
And
MPAIPHELE MAQUTU
ARBITRATOR SENOOE
DIRECTORATE OF DISPUTE PREVENTION
AND RESOLUTION
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of arbitration award. 1st Respondent applying for
dismissal of review application for want of prosecution Court finding that the
period of delay and the circumstances surrounding the delay were
unreasonable. Court granting application and dismissing review. No order as
to costs being made.
which was lodged with this Court on the 4th June 2012. On the 23rd
August 2012, 1st Respondent lodged an application for dismissal of the
review application for want of prosecution. Both applications were duly
opposed by parties. However, on this day the Court only heard the
application for dismissal for want of prosecution and declined to entertain
the review application before pronouncing itself on the dismissal
application. For purposes of convenience, the parties have been cited as
appear in the main review application. The ruling and reason are herein
contained.
2. It was argued on behalf of 1st Respondent that an award was issued by
the DDPR on the 20th April 2012. Almost two months later, on the 4th
June 2012, Applicant lodged an application for review of the said award
with this Court. After almost three months since referral of the review
application, no further processes were advanced by Applicant and as a
result, 1st Respondent filed an application for dismissal of the review
application for want of prosecution. According to 1st Respondent, to date
no further processes have been taken by Applicant as the record of
proceedings has not been transcribed. It was further argued on behalf of
1st Respondent that the conduct of Applicant is indicative of the fact that
Page 45 of 361
they have no interest in pursuing the matter to finality but rather to

circumvent the execution of the award of the DDPR.
3. Furthermore, it was submitted that the delay in transcribing the record of
proceedings of the DDPR and in prosecuting this matter, is causing great
prejudice on the 1st Respondent as the judgment creditor. 1st Respondent
thus prayed for the dismissal of this application on these grounds.
Reference was made to the case of Eclat Evergood Textile (Pt) Ltd vs.
Mohau Rasephali LC/REV/64/2007 where the Court confronted with the
same situation and dismissed an application for want of prosecution. It
was argued that this case satisfied the requirements for dismissal for
want of prosecution as outlined in the above referred case, namely the
delay and the reason for the delay.
4. Applicant replied that it is not accurate that they have no interest in
prosecuting this matter to finality. It was submitted that the record of
proceedings had been transcribed in part and the reason is that one of
the Compact discs containing the record of proceedings was inaudible
and had to be returned to the DDPR for rectification. Although, Applicant
could not tell how far they were with the processes of transcribing the
record of proceedings or to even show how far they had gone with the
transcription, they submitted that the transcription had still not finalised
on this day. They denied that the prejudice that is being suffered by 1st
Respondent was attributable to them but to the ordinary cause of events.
It was further argued that the facts of the cited case in support were
different from the current facts and thus inapplicable to this case.
Consequently, they prayed that this application be dismissed and that
the matter be heard in the merits.
5. In a claim for dismissal for want of prosecution, there are two main
considerations that must be met. These considerations are the length of
the delay in having the matter finalised and the circumstances that
caused the delay. This Court has made reference to these considerations
in a plethora of cases including the above referred case of Eclat Evergood
Textile (Pty) Ltd vs. Mohau Rasephali (supra)). We feel that it is important
to make a comment that although the circumstances in the above case
are not totally similar with the current case, the principle still applies
equally. The purpose for which this matter was cited was to illustrate the
principle applicable in dismissing an application for want of prosecution.
6. In view of the submissions of the parties, We have come to the conclusion
that the Applicant has been very tardy in dealing with this matter. We are
drawn to this conclusion by the fact that almost full 8 months have
passed since this matter was first lodged with this Court. In this period
nothing concrete has taken place towards the advancement of these
proceedings as there is neither a record of proceedings nor a reasonable
explanation for the lack nor absence thereof.
Page 46 of 361
7. Applicant has attempted to argue that the record has been done in part.
However, they have not produced anything before this Court as proof of
their argument but have rather made a bare submission about the
existence of same. This was particularly important as 2nd Respondent has
in clear terms denied the existence of the transcribed record. Even a few
pages of the transcription would have gone a long way to illustrate that
they are candid in the submission that the transcription is under way.
Even when asked about the progress of transcription in the proceedings,
they were in no position to respond with a clear and solid answer. This
goes on to fortify the argument of 2nd Respondent about the lack of
intention to prosecute the mater and also shows the level of carelessness
with which they approach this matter. This leads us to agree with 2nd
Respondent and conclude that Applicant has no intention to prosecute
the matter to finality but merely to circumvent the execution of the
judgment obtained in favour of 2nd Respondent.
8. Clearly the approach adopted by Applicant towards this matter has
caused great prejudice upon 2nd Respondent being the judgment creditor.
The argument that prejudice, if any, is due to the ordinary cause of
events cannot sustain. Applicants being the complainants are the main
drivers in ensuring that an application of this nature reaches finality.
Failure on their part to ensure that the record of proceedings is
transcribed expeditiously cannot be attributed to the ordinary cause of
events but to them. In our view, both the period of delay and the
circumstances surrounding same are unreasonable and warrant the
dismissal of the review application for want of prosecution.
AWARD
following terms:
d) That the applicant for dismissal of the review application is granted; and
e) That there is no order as to costs.
2013.
T. C. RAMOSEME
Mr. S. KAO
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. M. MABULA
ADV. N. T NTAOTE.
Page 47 of 361

HELD AT MASERU
LC/REV/16/08
A0251/2005

LEPEKOLA MOLIELENG
M-ACTION SECURITY SERVICES (PTY) LTD
1st APPLICANT
2nd APPLICANT
And
PABALLO RAMOCHELE
THE LEARNED ARBITRATOR DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the rescission of the DDPR arbitral award. Court acting on own
motion to raise a point of law Courts jurisdiction to entertain a rescission of
the DDPR arbitral award. Matter being stayed to afford Applicant the
opportunity to prepare presentations Applicant failing to attend at agreed
time matter proceeding in default of Applicant - Court finding that it has no
jurisdiction to rescind the DDPR arbitral award. Court dismissing the
application for want of jurisdiction. No order as to costs being made.
1. This is an application for the rescission of the DDPR arbitral award
A0251/2005 which was handed down on the 31st March 2005. It was
heard on this day in default of the Applicants and a ruling was delivered
on the same day dismissing the application for want of jurisdiction. The
full written Judgment on the matter is in the following.
2. Facts surrounding this matter are basically that 1st Respondent had
referred claims for unfair dismissal, unpaid wages, underpayments,
unpaid rest days, unpaid public holidays and unpaid leave with the
DDPR. The matter proceeded in arbitration on the 29th March 2005 in
default of 2nd Applicant. An award was issued in favour of 1st Respondent
on the 31st March 2005. Thereafter, the Applicants lodged this application
on the 26th February 2008. Pleadings having been closed, the matter was
accordingly set down for hearing on this day.
3. At the commencement of these proceedings, We mero muto raised a
preliminary point concerning this Courts jurisdiction to entertain a
rescission application of the DDPR arbitral award. In raising this point,
We acted on the basis of the authority in Thabo Mohlobo & others vs.
Lesotho Highlands Development Authority LAC/CIV/A/02/2010, that the
Court has the power to raise a point of law on its own motion. The matter
Page 48 of 361
was then stood down by 2 hours, and in agreement with both parties, to
enable them to make proper preparations to argue this point. At the
return time, the Applicants were not in attendance and a further 2 hours
grace period was given. Despite this indulgence, Applicant still failed to
attend. As a result the matter proceeded in default. The submissions of
1st Respondent, Our ruling and reasons are recorded in the following.
4. It was submitted on behalf of 1st Respondent that the jurisdiction of this
Court derives from section 38A (b) (iii) of the Labour Code Amendment Act
3 of 2000. Further that in terms of Regulation 29 of the Labour Code
(DDPR) Regulations of 2001, DDPR awards are rescindable before the
arbitrator who issued them within a period of 10 days of the award being
known to the party applying. It was submitted therefore that it is only the
DDPR that has jurisdiction to hear this matter. 1st Respondent thus
asked that the matter be dismissed for want of jurisdiction.
5. We wish to start by straightening the legal position regarding the
jurisdiction of the Court. This Courts jurisdiction derives from section 24
of the Labour Code Order 24 of 1992 as amended. Section 38A deals with
the jurisdiction of the Labour Appeal Court and not this Court, so that it
is not relevant for purposes of this matter. Having cleared this issue, We
shall now proceed to deal with rest of the 1st Respondent arguments and
submissions.
6. We are in agreement with 1st Respondent that the rescission of the DDPR
arbitral awards is governed by Regulation 29 of the DDPR Regulations. In
terms of these Regulations, a rescission must be made before the
arbitrator who issued the arbitral award. As a result, it is irregular for the
Applicants to have approached this Court for this remedy. Reference is
drawn to Regulation 29(3) which reads as follows,
... the arbitrator who issued the arbitration award or ruling shall hear the
application for variation or rescission.
Consequently, We decline jurisdiction to entertain this application.
Page 49 of 361
AWARD
following terms:
a) That this application is dismissed for want of jurisdiction;
2013.
T. C. RAMOSEME
Mr. S. KAO
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
NO ATTENDANCE
MR. LETSIKA
Page 50 of 361

HELD AT MASERU
LC/REV/04/11
A0857/2010

MOHAU RASEPHALI
APPLICANT
And
TAI YUAN GARMENTS (PTY) LTD
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Three grounds of review having
been raised in the following,
- failure to appreciate that contract was for without limit of time Court finding
ground to constitute and appeal;
- reliance by Learned Arbitrator on hearsay to make conclusion Court finding
that conclusion was based on substantial facts; and
- failure to appreciate that there is no section 64(4) in the Labour Code Order
Court finding that this was a typographic error and thus not reviewable.
All grounds failing to sustain. Review application being dismissed. The award
of the DDPR remaining in force and no order as to costs being made.
which was handed down on the 26th November 2010 in referral
A0857/2010. It was heard on this day and judgement was reserved for a
later date. Only one ground of review has been raised by Applicant in this
matter in terms of which He prayed that the DDPR award be reviewed,
corrected and set aside. Both parties made their representations on the
matter and the ruling and reasons are contained herein.
2. Facts surrounding this matter are basically that Applicants contract of
employment was terminated by 1st Respondent. Applicant then referred a
claim for unfair dismissal with the 2nd Respondent which claim was
decided in favour of 1st Respondent. As a result, Applicant then lodged
the current application in terms of which he sought the review of DDPR
award in the following,
...2nd Respondent had no judicial discretion to (b) deal with, an relies on
hearsay for its decision in A857/10 and (a) disregard the peremptory
provision of Regulation 18.(2) of Labour Code (DDPR) Regulation 2000.
Page 51 of 361
3. In amplification of his ground of review, Applicant submitted that in
terms of Regulation 18.(2) of the Labour Code (DDPR) Regulation of 2001,
the learned Arbitrator was enjoined in law to take into account the
provisions of the Labour Code Order 24 of 1992 as amended and the
Labour Code (Conciliation and Arbitration Guidelines) Notice of 2004. It was
argued that She failed to do so and in so failing, She failed to appreciate
that in terms of the law, a contract without limit of time is terminable on
notice. It was submitted that the learned arbitrator failed to appreciate
that Applicants contract with Respondent was without the limit of time
as She came to the conclusion that it was a fixed term contract.
4. It was further argued that as a result of the disregard of the said
Regulations, the learned Arbitrator also failed to appreciate that the law
deprived her of the right or discretion to rely on hearsay evidence to make
her conclusion. Similarly reference was made to Regulation 18 (2) that it
bound the learned Arbitrator to consider the provisions of section 228C
(1) of the Labour Code Order (supra) that ... the arbitrator... shall deal
with the substantial merits of the dispute ... It was argued that in relying
in hearsay, the learned Arbitrator had committed a gross irregularity
against the dictates of the said section in that she had failed to consider
this provision.
5. Reference was also made to the case of Lesotho National Federation of
Organisations for the Disabled vs. Mojalefa Mabula and another
LAC/CIV/A/07/10 in support. Specific reference was made to the
conclusion of the court that the DDPR is a creature of statute and that it
was bond by the provisions of the state that created it. It was maintained
that section 228C is a section within the crating statute and as such it
was binding to the letter upon the learned Arbitrator.
6. Applicant maintained that he had testified during the arbitration hearing
that he was terminated by one Malerato who just told him not to report
for duty anymore. However, Mr. Moshoeshoe, who admitted that he was
not present when Applicant was terminated, testified that Applicants
contract terminated because the job that he had been hired to had come
to an end. It was maintained that there is no way that he could have
known this if he was not present when Applicant was terminated and that
this is what made his testimony hearsay.
7. It was furthermore argued that, again due to the disregard of the same
Regulations, she failed to appreciate that there was no section 64(4) in
the Labour Coder Order (supra). Applicant thus prayed that this Court
ought to interfere with the decision of the learned Arbitrator by
substituting it with that of its own and make an award in his favour in
terms of section 73 of the Labour Code Order (supra). Reference was made
to the case of Mateliso Matsemela vs. Naleli Holdings LAC/CIV/A/02/07
where the Court stated that the Labour Court has the authority to correct
the DDPR award. It was argued in the alternative that if having found for
Page 52 of 361
Applicant, should this Court decide not to correct the award, that it remit
the matter to the DDPR to be heard de novo.
8. In response, 1st Respondent argued that Applicant had failed to
demonstrate how the provisions of Regulation 18(2) were disregarded by
them. It was argued that both the averments and submissions by
Applicant were so vague that they failed to make a clear case. It was thus
prayed that this review application ought to fail on account of this alone.
1st Respondent then went further to address the merits of the matter in
the event that this point was not up held.
9. 1st Respondent conceded that a contract without the limit of time was
terminable on notice as put by Applicant, but argued that the contract in
issue was for a specific task which ended when the task was complete.
Reference was made to section 62 (4) of the Labour Coder Order (supra)
that a contract for a specific job ends when the job ends and that no
notice is required. It was argued that the style that Applicant had been
hired to do was no longer made and that meant that his contract had
ended.
10. It was also denied that the learned Arbitrator relied on hearsay to
make Her decision to dismiss Applicants claim. It was argued on behalf
of 1st Respondent that hearsay refers to,
statement of fact made by a party who is not before court, which
statement is tendered to prove the truthfulness of that statement.
It further argued that assuming that the said evidence of Mr. Moshoeshoe
was hearsay, Section 228C would only come into the picture and not as
suggested by Applicant. It was submitted that in terms of section 228C,
the DDPR does not adhere strictly to the rules of procedure.
11. 1st Respondent argued that there is nowhere where Mr. Moshoeshoe in
his statement, at least on record, where he said that he was told by
someone that Application was terminated because the job that he had
been hired for had ended. He argued that as a result, it cannot be
accurate that his evidence was hearsay and therefore that it ought to
have been disregarded. It was maintained that Mr. Moshoeshoe being the
Human Resources Manager had first-hand knowledge that the job that
Applicant had been hired for had come to an end that therefore that his
contract had terminated.
12. It was argued that the Lesotho National Federation of Organisations for
the Disabled vs. Mojalefa Mabula and another case was not applicable in
this case as it involved the power of the learned Arbitrator to turn a
settlement agreement into an award. It was further argued that the case
beforehand deals with the issue of hearsay which issue is totally different
from the issue in the said case.
13. In relation to the issue on validity of section 64(4), 1st Respondent
replied that this was clearly a typographic error as the content of the
Page 53 of 361
argument related to section 62(4) of the same law. It was maintained that
in the Labour Code Order (supra), the only section dealing with contracts
for a specific task is section 62(4). It was thus prayed that this applicant
be dismissed and that if the Court held otherwise, that the matter be
remitted to the DDPR to be heard de novo. It was argued that it would be
absurd and a given error if this court were to replace the decision of the
DDPR with that of its own.
ANALYSIS
14. In our view, unorthodox and farfetched as it may seem, Applicant has
to some extent attempted to link Regulation 18 (2) of the DDPR
Regulations (supra) with his submissions. However, what remains is
whether there is merit in his arguments. As a result, this matter cannot
be dismissed on this ground alone. We therefore proceed to consider the
merit of this review application.
15. We have observed and noted that although Applicant argues that that
he has only one review ground, there are in fact three grounds that derive
from a misdirection in respect of one rule of procedure. The rule in issue
is Regulation 18 (2) of the Labour Code (DDPR) Regulation of 2001. We
have gone through the said Regulation and confirm that indeed it enjoins
the learned Arbitrator to consider the provisions of both the Labour Code
Order (supra) and the Conciliation and Arbitration Guidelines (supra) in
conducting the arbitration proceedings. This is the background against
which We will do our analysis of the parties submissions.
16. Applicant has attempted to argue that learned Arbitrator failed to
appreciate that in terms of the Labour Code Order (supra), his contract of
employment was without the limit of time and not for a specific task as
She concluded. From his submission, it is clear that according to him,
the learned Arbitrator would have been right if she had found that his
contract was without the limit of time. In our view, Applicants
submissions on this issue are concerned with the merit of the learned
Arbitrators decision and not so much about Her breach of any rule of
procedure.
17. Although, Applicant has attempted to demonstrate a reviewable
irregularity on the part of the learned Arbitrator, We do not find any
direct link between regulation 18 (2) and the alleged act of misdirection
on the part of the learned Arbitrator. The inference that Applicant seeks
to have drawn is too far to lead to a single conclusion in his favour. It
does not follow that because the learned Arbitrator did not find that his
contract was for a specific task meant that the She had failed to consider
the provisions of the Labour Code (supra) and by necessity a breach of
procedure in terms of the DDPR Regulations (supra). Consequently, We do
not see how Regulation 18 (2) was breached in this regard.
18. On the second ground of review, Applicant has attempted to argue that
the learned Arbitrator relied on hearsay evidence to come to the
Page 54 of 361
conclusion that his dismissal was fair. We have noted the submissions of
Applicant as well as the authorities that he has cited in support and We
agree with him in principle tat hearsay evidence is inadmissible. As a
result, if this Court finds in his favour that the learned Arbitrator relied
on hearsay evidence to make Her conclusion, then her conduct was so
irregular that it warrants interference with Her award.
19.
We have gone through both the record of proceedings before the
DDPR as well as the arbitral award and have made two major discoveries.
Firstly, that the learned Arbitrator relied on the evidence of Applicants
contract of employment to come to the conclusion that he had been hired
for a specific task, which was to sew style 8884A. Secondly, the learned
Arbitrator relied on the knowledge of Mr. Moshoeshoe, witness for 1st
Respondent in his position as the Human Resources Manger that the
style that Applicant had been hired for had since been completed hence
his termination from employment.
20. The presence or the absence of Mr. Moshoeshoe when Applicant was
terminated by the said Ms. Malerato, or what is alleged to have been said
to Applicant by Malerato when she terminated Applicant, does in any way
make his testimony hearsay. The logic behind Our reasoning is that, and
as rightly argued by 1st Respondent, Mr. Moshoeshoe neither relied on
what was told to him or what he had heard from a third party. His
evidence was based on his knowledge and what was contained in the 1st
Respondent official records, namely the Applicants contract of
employment. This is the same contract that Applicant neither denied ever
being a party to either during the DDPR proceedings or even during
proceedings before this Court.
21. In essence, We are in agreement with the 1st Respondent that the
evidence that the Learned Arbitrator relied on in coming to her conclusion
was not hearsay. However, We fail to appreciate how its reference to
section 228C of the Labour Code Order (supra) to the effect that the
learned Arbitrator was not bound to stick strictly to the rules of
procedure could have advanced its case. In Our opinion, the existence of
this provision does not in any way permit the learned Arbitrator to rely on
same to make her conclusion.
22. Where or not the learned Arbitrator was correct in coming to Her
conclusion is not a matter for this Court to make a determination on.
What matters is whether the manner in which the decision was reached
was well in line with the rules of procedure (see JDG Trading (Pty) Ltd t/a
Supreme Furnishers vs. M. Monoko & 2 Others LAC/REV/39/2004; also
Teaching Service Commission & others vs. The learned Judge of the Labour
Appeal Court & others C of A (CIV) 21/2007). In Our opinion, the learned
Arbitrator observed the relevant procedural rules in this respect.
Consequently, We find that the learned Arbitrator did not rely on hearsay
evidence to come to Her conclusion.
Page 55 of 361
23. In relation to the third ground of review, We are of the opinion that it
is clearly a typographic issue. We agree with 1st Respondent that it is a
typographic error for a simple reason that it is deducible from the content
of the argument of the learned Arbitrator the She meant to refer to section
62(4) of the Labour Code Order (supra) as this is the only section that
relates to contracts for specific tasks. As a result, this point cannot be a
valid review ground as it does event hint a suggestion that there was a
procedural flaw on the part of the Learned Arbitrator. Consequently, it
cannot hold.
24. On the basis of the above analysis, We find it unnecessary to consider
the parties submissions on the issue of the remedy sought. In Our view,
to do so would only serve academic purposes, the purpose of which this
Court was not established
COSTS
25. Applicant prayed that this review application be granted with costs. He
argued that the 1st Respondent has defended a defenceless case which
amounted to their conduct being frivolous. It was admitted that this is a
clear case of hearsay evidence which was erroneously admitted and
considered by the learned Arbitrator in finding against Applicant. 1st
Respondent argued that an award of costs is made in extreme
circumstances where the Court finds that one of the parties was so
unreasonable in continuing with the proceedings. 1st Respondent
submitted that an award of costs should in fact be made against
Applicant for the reason that he ought to have known from start that he
has no case but is simply wasting the Curts time.
26. We decline to make an award of costs. Our view is based on the fact
that costs are awarded in extreme circumstances. The intention behind
making an award of costs is not to intimidate parties away from enforcing
or defending their rights but mainly to discourage abuse of court
processes. We do not find the current circumstances to justify an award
of costs against either party. To make such an award in the current
circumstances would be to undermine the spirit and purport for making
an award of costs.
Page 56 of 361
AWARD
following terms:
a) That this application is refused;
THUS DONE AND DATED AT MASERU ON THIS 25nd DAY OF FEBRUARY
2013.
T. C. RAMOSEME
Mrs. R. MOTHEPU
Mr. L. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
IN PERSON
ADV. MOHAPI
Page 57 of 361

HELD AT MASERU
LC/APN/56/2012

NOKOANE MOKHATLA
APPLICANT
And
THE MANAGING DIRECTOR - LBC
THE HUMAN RESOURCE MANAGER - LBC
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for contempt of Court and committal Respondents failure to
honour judgment in LC/REV/04/2012. Applicant raising preliminary issue
questioning,
right of Human Resources Manager to depose to affidavit without authority
to represent Court finding that an authority to represent was not necessary
given deponents position further finding that there were sufficient facts to
lead to the conclusion that she was duly authorised court furthermore
finding it farfetched that deponent was on a self-serving mission in defending
the matter- Court dismissing preliminary issue.
In the merits, Court finding that failure to comply with the DDPR award and
judgment of this Court is not wilful and/or mala fides Court finding
reinstatement to be impracticable and ordering the determination of
compensation in terms of section 73 before the DDPR.
1. This is an application for contempt of Court and Committal to jail of the
Respondents for failure to honour the judgment of this Court in
LC/REV/04/2012. This judgement was effectively giving effect to the
award of the DDPR in A0932/2009. The application was heard on this
day and judgment was reserved for a later date.
2. At the commencement of the proceedings, Applicant raised a preliminary
issue to the effect that the deponent to Respondents opposing affidavit
had no right to depose thereto for the reason that she was not authorised
to do so. Applicant prayed that on this basis, the Court should declare
the matter unopposed and proceed on the basis of submissions of
Applicant alone. Both parties made representations on the preliminary
issue and then further proceeded to argue the contempt application. The
Court in the end made them aware that it would not consider the
submissions of Respondents in opposition in the event that It found in
favour of Applicant on the preliminary point.
Page 58 of 361
3. Facts surrounding this case are basically that Applicant was dismissed
from employment sometime in October 2009. He thereafter referred a
claim for unfair dismissal with the DDPR, and obtained an award in his
favour on the 28th December 2011. Thereafter, 1st Respondent referred an
applicant for review of the DDPR award with this Court. On the 26th
September 2012, the review application was heard and judgment was
delivered on the 31st October 2012 in favour of Applicant herein. The
effect of the judgment was that the DDPR award remained in force. It is
this judgment that Applicant seeks to enforce through this application.
4. In casu, Applicant has approached this Court for a remedy in the
following,
1. That 2nd and 3rd respondent be committed to prison for such period as
may be determined by this Honourable Court for contempt of court and/or
for such period as they may have complied with the award of the
Directorate of Dispute Prevention and Resolution in A0932/2009.
2. That respondents pay costs hereof.
3. That applicant be granted such further and/or alternative relief as this
Honourable Court may deem meet.
ALTERNATIVELY;
1. That respondents pay applicant compensation as determined by this
Honourable Court in accordance with evidence herein and before the
Directorate of Dispute Prevention and Resolution in A0932/2009.
2. That respondents pay costs hereof.
3. That applicant be granted such further and/or alternative relief as this
Honourable Court may deem meet.
SUBMISSIONS
Preliminary issue
5. It was submitted on behalf of Applicant that Ms. Maleshoane Kemeng, the
Human Resources Manager of first respondent, who had deposed to the
affidavit in opposition of this application was not duly authorised to
depose thereto. The reason behind that contention was that there was
nothing authorising her to defend the review proceedings on behalf of the
Respondent Company. It was further argued that in spite of the absence
of such authority, she had not even alleged in her affidavit that she had
such authority.
6. Furthermore, it was argued that the Court should be careful not to
interpret the phrase that I am duly entitled to depose hereto, per
paragraph 1 of the founding affidavit to mean that she had such
authority. It was submitted that the word entitled did not carry the said
meaning in this instance, particularly because the deponent had an
interest in the matter. It was argued that she is the 3rd Respondent in this
matter and that the issues revolve around her decision surrounding the
dismissal of Applicant at the plant level. It was thus prayed that on
account of these, the Court ought to declare that the matter has not been
opposed.
Page 59 of 361
7. Respondent replied that the deponent was duly authorised to depose to

the opposing affidavit to the claim by Applicant. It was submitted that
given her position, it was not necessary in law for her to bring a copy of
the resolution of the board of directors. It was further argued that
contrary to Applicant suggestion that she had not even alleged
authorisation, she had and that this is contained in paragraph 1 of the
Respondent opposing affidavit. Particular reference was drawn to the last
line read as I am therefore duly entitled to depose hereto. It was further
argued that in law, the word entitled carried the same meaning as the
word authorised. Reference was made to the decision of this Court in
the case of Water and Sewage Authority vs. Moramane Mabina
LC/REV/44/08, where it was held that these two words carried the same
meaning.
8. It was further argued that on the issue of the resolution of the Board of
Directors, there is no legal requirement for a resolution to be filed on
behalf of a juristic person to render its representation duly sanctioned.
Reference was made to the decision of the Labour Appeal Court in Central
Bank of Lesotho vs. Phoofolo LAC (1985-1989) 253 at pages 258 259. It
was furthermore argued that the fact the deponent was cited as 3rd
Respondent did not make her a party in the matter. It was submitted that
she had been cited in her official and not personal capacity and that as a
result, it cannot be accurate to suggest that she was on a self-serving
mission. Respondent concluded that above all, there was no substance in
the claim of lack of authority as Applicant had simply and barely denied
such authority being in existent. It was argued that a bare allegation
without supporting facts was insufficient to lead to the granting of a
remedy sought. Reference was made to the case of Lesotho Revenue
Authority & others vs. Olympic off sales C of A (CIV) 13/2006, in support.
9. We have perused the opposing affidavits filed on behalf of Respondents
and have noticed that the only documents relating to authorisation to
represent, concern the Respondent representative. As a result, We
confirm that there is no formal resolution authorising the deponent to
either oppose the matter or to appoint someone to act on behalf of
Respondent. However, We cannot ignore the authoritative nature of the
conclusion of the Labour Appeal Court in the above referred case of
Central bank of Lesotho vs. Phoofolo. In this case, the Court had the
following to say in relation to a resolution authorising an employee to
depose to an affidavit,
There is no invariable rule which requires a juristic person to file a formal
resolution, manifesting the authority of a particular person to represent it in
any legal proceedings, if the existence of such authority appears from other
facts.
10. Clearly while there is no invariable rule, the dictates of the above
authority suggest that the need to produce a formal resolution depends
on the possibility that the existence of such authority may be deduced
from other facts in the affidavits and whether there are such facts. In Our
Page 60 of 361
view, the use of the words entitled suggest that authorisation has been
obtained by the deponent from the relevant authorities to defend the
matter in their place. This Court has pronounced itself over this issue in
several cases before the present matter, among which is the Water and
Sewage Authority vs. Moramane Mabina (supra).
11. We are further inclined to maintain the position in the above cited case
by the fact that in casu, Applicant has not presented anything
substantive to support his argument that the deponent is not authorised
to defend the matter. Applicant has simply relied on the absence of the
resolution as well as the fact that the deponent has been cited as 3rd
Respondent in the matter. We have already disqualified the argument
about the absence of the resolution and thus will not go any further.
12. About the deponent being a party in the matter, We do not find any
merit in the argument for the simple reason that she is cited in her
official capacity. Further, the contents of her opposing affidavit address
the entire matter on behalf of the Respondent and are not intended to
dissociate herself from the proceedings and/or from any liability arising
therefrom. As a result, We find it very farfetched that she could have a
personal interest and thus act in the proceedings without authorisation.
Consequently, We find that the deponent is duly authorised to represent
and depose to all documentation on behalf of Respondent in these
proceedings.
The merits
13. It was submitted on behalf of the Applicant that following the
judgment of this Court in LC/REV/04/2012, Respondents failed to
honour both the award and judgment of this Court. It was argued that
rather than to reinstate Applicant, they sought to negotiate him on an
alternative remedy arguing that reinstatement had since become
impracticable. The negotiations did not bear fruit as Respondents offer
was unacceptable to Applicant. Applicant is thus asking that
Respondents be compelled to comply with both the DDPR award and the
order of this Court, which they have clearly wilfully and mala fides failed
to comply with.
14. According to Applicant the wilful and mala fides on the part of
Respondent, is further demonstrated by the fact that the said position
remained open for about 2 years and was only filled after the award in
favour of Applicant was issued by the DDPR. According to them, the
conduct of Respondent was intended to frustrate the execution of the
DDPR award and accordingly the judgment of this Court. Applicant
submitted that clearly the position was capable of being kept open until
the matter had finalised, so that Respondent was unreasonable in filling
it before then.
15. Applicant further argued that Respondent is a big company with 4
depots in Lesotho and that as such it was possible for them to find a
Page 61 of 361
suitable position for him at other depots other than the Maseru depot. It
was argued that the latter alternative would have been valid because the
word reinstate does not mean to the same exact position but to a similar
position that does not make Applicant worse off. Reference was made to
the cases of Commissioner of Police & Another vs. Ntlo-Toeu (2005-2006)
LAC 156 at 159; Consolidated Frame Cotton Corporation LTD vs. President
of the Industrial Court and others: Consolidated Woolwashing and
Processing Mills Ltd vs. President of the Industrial Court and others 1986
ILJ 489 (A) 494H-I; 1986 (3) SA 786; SADTU & others vs. Head of the
Northern Province Department of Education [2001] 7 BLLR 829 (LC) 836
para 23; and Lerotholi polytechnic & another vs. Blandina Lisene C of A
(CIV) 25/2009.
16. It was further submitted that in the event that this Court found that
reinstatement was not practical, that it may make an award for payment
of Applicants 12 years emoluments, which include his salaries and
bonus from the date of his dismissal, with interest at the rate of 6% per
annum. Applicant argued that this Court is seized with such power and
authority in terms of sections 73 read with section 24 (2) (e) and (i) of the
Labour Code Order 24 of 1992 as amended.
17. In response, Respondent replied that indeed after the delivery of the
judgment in LC/REV/04/2012, Applicant was invited to negotiations
with a view to find an alternative solution, as his former position had
since been filled. It was submitted that another driving factor behind that
invitation to negotiate was that, there was nowhere within Respondent
company where Applicant could be placed. Respondent further submitted
that in the negotiations Applicant, who is now 45 years of age, made an
unrealistic and unreasonable demand as he wanted the Respondent to
compensate him with his salaries from date of termination up to his
retirement age of 60 years.
18. Respondent submitted that they have not been contemptuous contrary
to Applicant argument as they tried all reasonable efforts to give effect the
award of the DDPR and the order of this Court, but for the unreasonable
conduct on the part of Applicant. They submitted that the fact that they
took about 2 years to fill the position does not mean that it was capable of
being kept open beyond that time and that as a result they were wilful
and mala fides, in failing to comply with the award and judgment of this
Court. They stated that in law, they have a right to fill a vacant position
when the need arises, as they did, or when they can no longer keep it
open. Reference was made to the case of Lerotholi Polytechnic & another
vs. Blandina Lisene C of A (CIV) 25/2009. Respondents prayed that this
Court remit this matter to the DDPR for purposes of determining
compensation as they have been able to illustrate that reinstatement is
not practical. They maintained that they had been able to demonstrate
that they were not wilful or malicious in failing to comply with the award
of the DDPR to reinstate Applicant.
Page 62 of 361
19. It was further submitted that the existence of the undeniable fact that
the position of Applicant had already been filled goes on to forty their
argument of the lack of wilfulness and mala fides. It was argued that in
law, where there is no wilfulness and mala fides in failing to comply with
a order of court, then failure to abide would not constitute contempt.
Reference was made to the case of Fackie NO vs. CCII Systems (Pty) Ltd
2006 (4) SA 326 in support. It was also argued that it would be improper
for this Court to determine compensation as it was only called to
determine whether Respondents were contemptuous or not and not for
purposes of reviewing and correcting the decision of the learned
Arbitrator in A0932/2009.
ANALYSIS
20. In an application for contempt of court and committal, there are two
main requirements that must be met by the applying party. These
requirement were outlined in the old Court of Appeal case of Thuso
Motlalentoa and another vs. Motsoalipakeng Tlokotsi C of A (CIV) 28/1991,
as follows,
Contempt of court flowing from disobeying its order requires a wilful
disregard and a deliberate flouting thereof.
It would seem that in principle, these are the same requirements that
Respondent has referred to in the above cited case of Fackie NO vs. CCII
Systems (Pty) Ltd. In the light of this basis, We will now proceed to deal
with the merits of the matter.
21. It is undisputed from the submissions of parties that the order of this
Court dismissing the review application, and giving effect to the award of
the DDPR granted in favour of Applicant herein, was disobeyed.
Respondents have attempted to explain their disobedience by pleading
impracticality to comply with the court order. It is said that the said
impracticality owes from the fact that the position that Applicant was to
be resorted to, had already been filled and further that there was nowhere
where Applicant could be placed within Respondent Company. It is not
denied by Applicant that the position has been filled. Neither is the
authority of Lerotholi Polytechnic & another vs. Blandina Lisene (supra),
that Respondent could not be expected to keep the position open
indefinitely, challenged.
22. However, Applicant only attempts to contradict the issue of keeping
the space open until the matter has finalised by relying on the past
conduct of Respondent. In Our view it does not necessarily follow that
because the post was kept open in the past then it should continue to
remain open, especially where it is argued that it was necessary to have it
filled. On the issue of the availability of alternative space, Applicant has
attempted to contradict same by barely arguing that given the size of
Respondent Company, it should be able to find alternative space. This
argument is not supported by substantial evidence safe to say that it is a
mere hunch on the part of the Applicant, which has been rejected as
being far from accurate by Respondents.
Page 63 of 361
23. This Court has stated in a plethora of cases that unsubstantiated

allegations of facts cannot be relied upon as conclusive of a fact. There
rationale behind this view is that such allegations are unsatisfactory and
not convincing, more so where they are denied. The undeniable fact that
the said position has been filled as well as the efforts taken by
Respondent to attempt to comply with the DDPR award and the order this
Court, lead us to conclude that there was no wilfulness and mala fides,
respectively on the part of Respondent in failing to comply with the DDPR
award and the order of this Court. Consequently, We find that
Respondent is not contemptuous as reinstatement was not practical
under the circumstances.
24. Applicant had also asked that in the event of this Court finding that
Respondent is not contemptuous on account of impracticality, that that it
make an alternative award in terms of section 73 (2) read with section 24
(2) (e) and (i). In Our view and as rightly argued by Respondent, We
decline to make such a determination as it would be improper. Firstly,
The dictates of section 73(2), on the one hand, apply to this Court only in
respect of claims that were heard in their merits before this Court and not
in respect of those from other forums, such as the DDPR. Section 24 (2)
(e) is specific as it relates to claims concerning contracts of employment
while (i) thereof relates to matters that this court has primary jurisdiction
over. The latter subsection will not be applicable in casu as the issue is
contempt and not a review of the DDPR award. In contempt proceedings,
the available remedy is enforcement of the judgment as issued and not its
variation.
25. Secondly, the order sought is one which would be proper to grant in
the case of a review application because this is the only point at which
this Court is vested with the power to vary an award of the DDPR by
correcting it. As rightly pointed out by Respondent, this Court has in this
instance been called to determine contempt and not to review the DDPR
proceedings. Consequently, We declined to make an award of
compensation. The proper forum to motivate compensation is at the
DDPR which is the forum that awarded reinstatement.
Page 64 of 361
AWARD
Having heard the submissions of parties, and having considered all evidence
in support, We hereby make an award in the following terms:
a) That the application for contempt of court and committal is refused;
b) That the enforcement of an award for reinstatement is not practical;
c) That referral A0932/2009 is remitted to the DDPR to determine an
alternative relief under section 73 of the Labour Code Order 24 of 1992;
and
d) That there is no order as to costs.
2013.
T. C. RAMOSEME
Mrs. M. MOSEHLE
Mr. L. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. THULO
ADV. NTAOTE.
Page 65 of 361

HELD AT MASERU
LC/04/13

FACTORY WORKERS UNION
APPLICANT
And
CRABTREE (PTY) LTD
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Claim for an order declaring the conduct of the 2nd Respondent ultra vires. 1st
Respondent neither opposing the matter nor attending despite notification.
Applicant proceeding by way of default. Court acting on own motion to raise a
point of law Courts jurisdiction to declare the conduct of the learned
conciliator ultra vires Applicant relying on sections 24 (2) (i) and (m) to
establish the Courts jurisdiction Court finding the former to relate to matters
already within the jurisdiction of this Court Court finding that the said
section does not establish jurisdiction on its own. Court finding the latter
section to relate to powers sanction by the Labour Code or any written law
Applicant not referring to any law as sanctioning the alleged powers. Court
dismissing the matter for want of jurisdiction and making no order as to costs.
1. This is an application for an order declaring the conduct of the 2nd
Respondent ultra vires. It was heard on this day and judgment was
deferred for a later date. The mater was not opposed and 1st Respondent
did not attend. As a result it proceeded in default of 1st Respondent. Facts
surrounding this application are essentially that Applicant referred a
dispute of interest before the 2nd Respondent, in terms of section 225 of
the Labour Code Order 24 of 1992 as amended. Conciliation was duly
conducted and parties failing to settle the matter, a deadlock was
declared. Thereafter the Applicant communicated its intention to embark
on a strike action.
2. As a matter of procedure, and in terms section 40 of the Labour Code
(Codes of Good Practice) of 2003, the 2nd Respondent commenced the
process of assisting parties to draw up and agree on the rules of the
strike action. It is these rules that form the subject of this matter as
Applicant contents that they amount to an award. Applicant contents
that the learned conciliator exceeded his conciliatory powers by making
an award in the matter. It is thus asking for an order declaring that
conduct ultra vires.
Page 66 of 361
3. Acting on our own motion, We raised a preliminary point concerning this

Courts jurisdiction to declare the conduct of the learned conciliator ultra
vires. We led to this view by the fact that this Court is a creature of
stature and as such it is bound by the four corners of the statute that
created it, for purposes of its jurisdiction on any matter referred to it. In
raising this point mero muto, We acted on the basis of the authority in
Thabo Mohlobo & others vs. Lesotho Highlands Development Authority
LAC/CIV/A/02/2010, that the Court has the power to raise a point of law
on its own motion. Applicant made its submissions both on the point of
law and in the merits and they were advised that this Court would only
consider the merits if it found that it had jurisdiction to grant the relief
sought. Applicants submissions, Our ruling and reasons on this
application are in the following.
4. It was submitted on behalf of Applicant that this Courts jurisdiction is
based on the provisions of the Labour Code Order 24 of 1992 as
amended, and in particular sections 24 (2) (i) of the, read with (m) which
read as follows,
(i) to make any appropriate order, including an order of costs;
... (m) to perform such acts and carry out such duties as may be prescribed
under the Code or any other written law.
5. Applicant submitted that the order sought is within the above provisions
and as such this Court has jurisdiction to make the order sought. It was
specifically argued that the principle of ultra vires and its consequent
relief are within the purview of administrative law and as such in terms of
the two sections this Court has the power to make an order as prescribed
under administrative law.
6. The jurisdictional powers of this Court are derived from section 24 of the
Labour Code Order (supra). We have gone through the cited provisions
and We differ with Applicant in terms of its interpretation of the sections.
Firstly, section 24 (2) (i) relates to orders made in relation to matters that
this Court has jurisdiction over. As a result, this section does not on its
own establish this Courts jurisdiction to grant the relief sought but
rather directs the Court in relation to orders that it can make in respect
of matter on which it has jurisdiction.
7. Secondly, section 24 (2) (m) relates to acts sanctioned by the Code or any
other written law. Applicant has not made reference to any provision of
the Labour Code Order (supra) or any written law. Applicant has only
referred this Court to the general principles of administrative law to the
effect that this Court has jurisdiction to grant the relief sought. In our
view Applicant has failed to show that this Court has jurisdiction to
declare the conduct of the learned Arbitrator ultra vires in this instance
and We accordingly dismiss this application for want of jurisdiction.
Page 67 of 361
AWARD
following terms:
a) That this application is dismissed for want of jurisdiction; and
2013.
T. C. RAMOSEME
Mr. .L. MATELA
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENTS:
ADV. RASEKOAI
NO APPEARANCE
Page 68 of 361

HELD AT MASERU
LC/REV/134/2011
A0393/2011

SECURITY LESOTHO (PTY) LTD
APPLICANT
And
LESIA NKALOSI
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. Applicant arguing that the
conclusion of the learned Arbitrator was so unreasonable that no reasonable
Court could have arrived at 1st Respondent arguing that the argument
constitutes an appeal and not review ground. Court finding the argument to
constitute a review ground - Court further finding the conclusion to be
reasonable and dismissing review applicant. Respondent praying for costs
Court declining to make such order.
later date. Facts surrounding this matter are basically that 1st
Respondent referred a claim for unfair dismissal with the DDPR. The
matter was decided in favour of 1st Respondent which award lead to the
current application for review. Only one ground of review has been raised
in terms of which Applicant seeks to have the said arbitral award
reviewed, corrected and set aside. Our judgment on the matter is in the
following.
erred in that His decision is grossly unreasonable to an extent that no
reasonable man could have arrived at the same conclusion. In
amplification of this ground, reference was drawn to page 3 of the award,
and in particular paragraphs 2 and 3, lines 3 to 5; and 5 to 7,
respectively. These read as follows,
Paragraph 2
It should be noted that in the employment arena a charge sheet does not
have to be couched in legal and precise terms as indictments of a fully
fleshed court of law, ...
Paragraph 3
Page 69 of 361
It is my considered view that the applicant could not have been

reasonably expected to answer the charge due to the ambiguous nature of
the charge sheet.
3. Advocate Mohapi for Applicant submitted that in the matter before the
DDPR, 1st Respondents case was that his dismissal was unfair because
the charge against him was so ambiguous that he was not able to
respond to. He argued that in terms of paragraph 2 of the arbitral award,
the learned Arbitrator made a legal conclusion that the said charge did
not need to be precise. Advocate Mohapi stated that this legal conclusion
is supported by a number of legal authorities. He referred this Court to
the cases of Seboloki Leleka vs. LTA Group 5 (Mohale Joint Venture)
LC/131/1996 and Montoe Mphaololi vs. Unity English Medium School and
Others LC/150/1995.
4. He argued that despite the above legal conclusion, the learned Arbitrator
went ahead to find that the dismissal of Applicant was unfair, on account
of the fact that his charge was ambiguous. He stated that in his view, the
factual conclusion made was not supported by the legal conclusion that
was earlier made by the learned Arbitrator. He stated that in his opinion,
the factual conclusion made was so unreasonable that no reasonable
Court could have come to the same conclusion.
5. In response, Mr. Mahlehle argued that the ground raised by Applicant
was in fact an appeal and not a review ground. He argued that Applicant
challenged the conclusion made by the learned Arbitrator in finding that
the charges against 1st Respondent were so unclear that they vitiated his
entire dismissal. Mr. Mahlehle further submitted that there is no
irregularity on the part of the learned Arbitrator as he acted within the
confines of the law. He prayed that this application ought to be dismissed
with costs as it is an abuse of court process.
6. In reply, Advocate Mohapi submitted that although this ground may
sound like an appeal, it was in fact a review. He further submitted that
the ground raised related to the unreasonableness in the conclusion of
the learned Arbitrator, which in law is a valid ground of review. Reference
was made to Baxter L, (1984) Administrative Law at page 343 in support.
He also argued that should this Court find that his review ground is valid,
it ought to take the Applicants pleadings as unchallenged and thus a true
and accurate reflection of what took place. His argument was based on
the fact that 1st Respondent only challenged the validity of the review
ground and not the merits of the matter. Reference was made to the case
of Smith vs. Smith 1954 (3) SA 434 in support.
7. 1st Respondent defence is preliminary in nature. What this essentially
means is that a determination should be made on it before We proceed to
consider the merits of the review application. He essentially argues that
Applicants case is an appeal disguised as a review while Applicant argues
on the contrary. We are in agreement with Applicant that
Page 70 of 361
unreasonableness is a valid review ground. Other than the authority

relied upon by Applicant, this principle also finds support in our case
law. Reference is drawn to the case of JD Trading (Pty) ltd t/a Supreme
Furnishers vs. M. Monoko and others LAC/REV/39/2004. In view of Our
finding, We shall now proceed to deal with the merits of the application.
8. Before We deal with the actual merits of the matter, We find it prudent to
address Applicants request for this Court to make a finding solely on the
basis of his submissions. Applicants argument in support of his request
suggests that this Court should make a finding without investigating the
validity of the claims that it makes. It Our opinion that it would be grossly
irregular if this Court were to adopt this approach. It is this Courts duty
to determining the substance of a claim placed for its consideration.
9. The fact that 1st Respondent has not opposed the merits of the review
application does not mean that the onus on the part of Applicant to prove
entitlement to the remedy sought falls off. It is trite that one making a
claim against the other has the duty to satisfy the Court that he is
entitled to that claim (see Pillay vs Krishna 1946 AD 946 at 951).
Consequently, Applicant is duty bound to substantiate its claim and it is
on this basis that We will proceed to analyse the merits of the matter.
10. In support of its claim, Applicant had made reference to certain
paragraphs of the arbitral award. We have considered these paragraphs
and have noted a problem in Applicants argument. The quoted extract
from paragraph 2 is incomplete. Fully quoted, the said extract proceeds to
add that ... however a charge sheet should be drafted in such a way as to
allow the other party to come prepared to answer the allegation that he
knows. When read with the extract that Applicant relies on for its claim,
it essentially says that although a charge need not be couched in legal
and precise terms, it should be clear enough to allow a party to answer it.
11. If the extract from paragraph 2 is read in full, and together with the
extract from paragraph 3, there is a link between a legal conclusion
drawn from paragraph 2 and the factual conclusion from paragraph 3. At
paragraph 3, the learned Arbitrator makes the conclusion that the charge
was not clear enough to allow 1st Respondent to respond to. This being
the case, both the legal conclusion and the following factual conclusion
negate the argument raised by Applicant that the learned Arbitrators
conclusion was unreasonable. Consequently, We find that the learned
Arbitrator did not err.
12. On the issue of costs, 1st Respondent had premised his request on the
idea that these proceedings were an appeal disguised as a review.
Although We have dismissed Applicants claim, We see no reason to
award costs as prayed by 1st Respondent. We found against Applicant on
account of its failure to substantiate its claim, a ground that is materially
distinct from the ground against which 1st Respondent had based his
request. Consequently, We declined to make an order of costs. We are
Page 71 of 361
inclined to this finding by the fact that We also do not find the
circumstances of this matter befitting of an order for costs.
AWARD
following terms:
a) That this application for review is refused;
b) The Arbitral award of the DDPR in referral A0393/2011 remains in force;
and
THUS DONE AND DATED AT MASERU ON THIS 6th DAY OF MAY 2013.
T. C. RAMOSEME
Ms. P. LEBITSA
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MOHAPI
MR. MAHLEHLE
Page 72 of 361

HELD AT MASERU
LC/REV/57/2010
A0753/2009

MAKHALE ELLIOT LEOATLE
APPLICANT
And
G4S CASH SOLUTIONS
LESOTHO (PTY) LTD
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the DDPR arbitral award. Several grounds being
raised and only one succeeding. Ground found to be sufficient to justify
interference with the DDPR award. Court finding that the leaned Arbitrator
relied on a ground different from that on which Applicant relied upon to
dismiss 1st Respondent. Applicant having dismissed for misconduct, the
learned Arbitrator confirming dismissal on the ground of poor work
performance. Court finding this conduct to amount to a gross irregularity and
granting the review application. No order as to costs being made.
A0753/2009. It was heard on the 13th March 2013 and judgment was
reserved for a later date. Facts surrounding this matter are basically that
Applicant referred a claim for unfair dismissal with the DDPR. An award
was entered against Applicant leading to the current review application.
Several grounds of review have been raised by the Applicant in terms of
which he seeks to have the arbitral award reviewed, corrected and set
aside.
2. Within this review application, is an application to have the matter
dismissed for want of prosecution. However, at the commencement of the
proceedings, parties informed the Court of their agreement to abandon
the application for dismissal for want of prosecution and to proceed into
merits of the matter. This agreement was accepted by the Court and the
matter proceeded into the merits. Our judgment on the matter is thus
follows.
3. Applicants first ground of review is that the learned Arbitrator erred in
law and misdirected himself by ruling that Applicant admitted that he did
Page 73 of 361
not sign for the money that he collected from Metro Cash & Cash in
Mohales hoek. The Court was referred to paragraph 4 of the arbitral
award for this conclusion. It was submitted that Applicant had testified
that he signed for the money collected and that this evidence was ignored,
hence the conclusion that he did not sign. Reference was made to pages
43 to 44 and 75 to 76 of the DDPR record of proceedings.
4. It was further submitted on behalf of Applicant, that no one testified to
the effect that Applicant did not sign. In reply, 1st Respondent submitted
that there is nowhere in the arbitral award where a conclusion was made
that Applicant did not sign. It was submitted that in fact, it is not denied
and has never been denied that Applicant signed. As a result, there was
no misdirection on the part of the learned Arbitrator as suggested by
Applicant.
5. We have examined both the record of proceedings and the arbitral award.
We have confirmed that indeed, Applicant eventually signed for the
money collected after a lengthy struggle with one Mamoji. This is
reflected in pages 43 44. However, pages 75 76 of the record bear no
relation at all, to the issue of whether or not Applicant singed. These
pages relate to whether Applicant was aware about the procedures of
handling a receipt book and if anyone has been charged in the past, for
not signing for money collected. They are thus irrelevant as they do not
address the real issue.
6. We have also inspected the arbitral award, specifically at page 2 on
paragraph 4. We have noted a few points worthy of mention from the
arbitral award. We have noted that the arbitral award is divided into
sections. There is a section on Introduction at paragraph 1; Preliminary
issues at paragraph 2, Facts and evidence from paragraphs 3 to 9,
Finding from paragraphs 10 to 14; and the award at paragraph 15. The
portion that Applicant seeks to rely on for his argument is paragraph 4.
This portion falls under the summary of facts and evidence. It therefore
cannot be accurate to rely on this portion of the award to argue that the
learned Arbitrator made a factual conclusion that Applicant did not sign
for the money collected. This paragraph merely summaries the claims
and/or defences of parties and does not contain any factual conclusions.
Consequently, this ground fails.
7. The second ground of review was that the learned Arbitrator misdirected
himself by admitting that Applicant was given a internal transfer and
trained for the job of a crew member. In amplification of this ground,
Applicant submitted that there was no evidence to this effect during the
hearing. In reply, 1st Respondent submitted this was not the issue for
determination before the 1st Respondent. It was added that the issue was
whether Applicant breached the rules of the employer or not. It was
further added that even the decision of the learned Arbitrator to dismiss
Applicants referral was not based on the issue of whether Applicant was
transferred or trained for the job of a crew member. 1st Respondent
Page 74 of 361
concluded that in view of his submission, there is no way that the learned
Arbitrator can be accused of any misdirection.
8. Having read the arbitral award, We have not found anywhere in the
award where the learned Arbitrator admitted that Applicant was given an
internal transfer and trained for the job of a crew member. This is
perhaps the reason why Applicant could not direct this Court to a specific
portion of the award where this is alleged to have taken place, or even in
the DDPR record of proceedings. As rightly pointed out by 2nd
Respondent, the issue for determination before the DDPR, was whether
Applicant breached the rules of the 2nd Respondent.
9. Consequent to the issue for determination, the leaned Arbitrator come to
the conclusion that Applicant had indeed breached the 2nd Respondent
rules and confirmed the dismissal. In essence, the issue of whether
Applicant was trained or not, or whether he was transferred or not, did
not pay a role in the finding of the learned Arbitrator, at least as
paragraph 10 to 14 indicate. On these bases, Applicants argument
cannot succeed.
10. The third ground of review is that the learned Arbitrator confirmed
Applicants dismissal without considering that 1st respondent confirmed
Applicants dismissal before the appeal hearing had finalised. In
motivation, Applicant submitted that the learned Arbitrator did not
consider their procedural argument that Applicants appeal did not
complete. Reference was made to page 132 at the third paragraph under
the evidence of one Matomaneng and under the Applicants opening
statements on page 2. In reply, 1st Respondent submitted that this was
not part of the Applicants case before the DDPR. It was added that this
argument is only coming up for the first time on review.
11. Upon perusal of the record of proceedings, We have noted that page
132 of the record does not indicate that the appeal hearing was never
finalised. What the evidence contained in therein shows is that the matter
was adjourned so that the presiding office could consult about his conflict
of interest in the same matter. Similarly, page 2 of the record does not
paint the picture suggested by Applicant. In that page, Applicant had
merely stated in his opening statement that he was unhappy with both
the substantive and procedural fairness of his dismissal.
12. In view of this said, the argument that the learned Arbitrator failed to
consider that the appeal hearing did not finalise cannot hold. Applicant
has simply failed to prove that he testified to that effect as well as how the
learned Arbitrator could have failed to consider his evidence that the
appeal hearing did not finalise. This leads us to conclude that 1st
Respondents evidence is more probable that this argument was never
part of the Applicants case before the DDPR and that it is only coming up
for first time on review. Our superior Courts have expressed their
discounted towards issues being raised for first time on review. It has
Page 75 of 361
been held that this is contrary to the rules of natural justice, as the
practice denies the inferior Courts the opportunity to address these
issues (see Puleng Mathibeli .v. Sun International CIV/APN/411/1996). We
accordingly dismiss this ground.
13. The fourth ground of review is that the learned Arbitrator issued an
award after 120 instead of the 30 days, as required by the law and the
rules of the 2nd Respondent. It was argued that in releasing the award
late, no extension had been sought and the learned Arbitrator became
biased as he was under the pressure of his supervisors when he issued
the award. In reaction, 1st Respondent submitted that the above
averments do not illustrate biasness on the part of the learned Arbitrator.
It was added that the averments made do not meet any of the legal
requirements for a claim of bias.
14. Whenever an allegation of judicial biasness is made, there is a
presumption that in one way of another that the judicial officer will or is
likely to be partial in adjudication of a matter. The test to be applied is an
objective one and its elements were laid out in the case of S vs Roberts
1999 (4) SA 915 (SCA) at 924E 925D where the Court had the following
to say,
... (2)The suspicion [of bias] must be that of a reasonable person in the
position of the accused or litigant.
(3)The suspicion must be based on reasonable grounds.
(4)The suspicion is one which the reasonable person referred to would, not
might, have.
This authority has been cited with approval in the Labour Appeal Court
decision
of
Makhalane
vs.
Leteng
Diamonds
&
others
LAC/CIV/APN/04/2011.
15. Based on the reasoning proposed by Applicant for his fear of or actual
apprehension of bias, his argument falls short of the standard set in the
above case. We do not find how a late issuance of an award could
reasonable cause the learned Arbitrator to exercise his judicial discretion
with partiality. There are no reasonable grounds within the averments of
Applicant that connect the lateness of the award with the likelihood of
partiality on the part of the learned Arbitrator. Applicant merely argues
that there was no application for extension and that the learned
Arbitrator was under pressure. It is not clear how the absence of an
application for extension and that barely alleged pressure could possibly
result in bias. These arguments do address the issue or establish the link
required to establish bias. Consequently, this point cannot succeed.
16. The fifth ground of review was that the learned Arbitrator failed to
consider Applicants evidence of his job description and contract of
employment as evidence that he was dismissed for the job that he was
not hired for. In support, Applicant submitted that he was a vehicle guard
and not a crew member, in terms of his contract. He stated he was
dismissed for the duties of a crew member. He argued that had the
Page 76 of 361
learned Arbitrator considered both his evidence at page 69 of the record

and his contract, he would have realised that he was dismissed for the
job that he was not hired for.
17. Respondent submitted that prior to Applicants dismissal, he had
since been promoted into the position of a crew member. He stated that
Applicant was dismissed for misconduct relating to his position as a crew
member. He submitted that that there is evidence at page 43 44 of the
record that shows why Applicant was charged and dismissed. It was said
that this evidence will show that Applicant had been doing the job of a
crew member for a long time prior to his dismissal. It was further
submitted that the argument that he was dismissed for the job that he
was not hired for, is only coming up for the first time on review as it was
never contested by Applicant before the DDPR.
18. The evidence of Applicant at page 69 of the record merely shows that
he was an employee of 1st Respondent. This is the context within which
his contract of employment was tendered and accepted as part of the
evidence. This evidence does not even allude to the position of Applicant,
even at the time of his employment. Whereas, the contract might state the
position of Applicant, but in terms of the evidence on page 69, that was
not the issue when the contract was tendered.
19. In essence, this confirms 1st Respondent argument that this issue is
only coming up for the first time on review. We have already expressed
our attitude towards issues that are raised for the first time on review and
we see no reason to deliberate on the issue any further. Consequently, We
find that there is no irregularity on the part of a the learned Arbitrator as
he could not consider an issue not raised by the parties. We reserve Our
comment on the rest of the issues.
20. The last ground of review is that the leaned Arbitrator did not consider
the fact that 1st Respondent had not tendered its disciplinary rules, to
prove the existence of the rule that Applicant was charged with and
dismissed for. In motivation of this ground, Applicant submitted that 1st
Respondent had stated that it had dismissed Applicant for contravention
of section 4.7 of its disciplinary code but that the said rules were never
tendered as evidence.
21. Applicant submitted that he had denied the existence of the rule for
which he was charged and dismissed. He stated that if the learned
Arbitrator had considered this, He would have realised that there was no
rule that Applicant is alleged to have breached. Applicant further
submitted that rather than to require the production of the rules of the
employer, the learned Arbitrator relied on Clause 12 of the Codes of Good
Practice to find the dismissal of Applicant to be fair and that this is a
gross irregularity.
Page 77 of 361
22. In reply, 1st Respondent submitted that failing to produce a copy of

their disciplinary codes in the proceedings, does not and cannot
invalidate the entire proceedings. It was further submitted on behalf of 1st
Respondent, that there was no problem in the learned Arbitrators
reliance on the provisions of the Codes of Good Practice to justify his
decision. It was argued that the 1st Respondent disciplinary codes are
merely illustrative and cannot cater for each and every misconduct.
23. It is Applicants case that he was dismissed for contravention of the
employers disciplinary code and that this was the 1st Respondents case
before the 2nd Respondent. Although no specific reference has been made
by Applicant to the record of proceedings where this was said, the
averment has not been denied by 1st Respondent. It is also not denied
that the disciplinary code was not tendered as part of the 1st Respondent
evidence, before the DDPR. It is trite law that what has not been denied
ought to be taken as true and accurate and We accordingly uphold the
averments as such (see Theko vs. Commissioner of Police & another 1991
1992 LLR LB 239 at 242).
24. This leads Us to Applicants compliant that the Arbitrator ignored the
fact that disciplinary rules, which form the basis of his dismissal, were
not tendered yet their very existence was highly contested. Further that
rather, the learned Arbitrator relied on the Codes of Good Practice to
confirm his dismissal. In Our opinion, the learned Arbitrator clearly relied
on an authority that was not the basis of the dismissal of Applicant when
he premised his decision on the Codes of Good Practice. In effect, the
conduct of the learned Arbitrator is tantamount to a substitution of the
charge that Applicant faced at the plant level, with a new one for which
the learned Arbitrator found him guilty.
25. Essentially, the learned Arbitrator ignored the fact that there was no
evidence of the existence of the rule and relied on the Codes of Good
Practice to convict Applicant. It was particularly important that this be
considered as the very existence of the rule was challenged by Applicant.
This is a gross irregularity that warrants interference with the arbitral
award. What makes this irregularity so gross as to justify interference
with the award, is the fact that the clause relied upon, which is clause 12
of the Labour Code (Codes of Good Practice) of 2003, relates to a dismissal
based on poor performance whereas Applicant was dismissed for
misconduct. Consequently, this ground succeeds.
Page 78 of 361
AWARD
following terms:
a) That the application for review is granted;
b) That the mater in referral A0753/2009 be heard de novo before a different
Arbitrator; and
THUS DONE AND DATED AT MASERU ON THIS 24th DAY OF JUNE 2013.
T. C. RAMOSEME
Mr. L. MATELA
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MR. MASOEBE
ADV. MABULA
Page 79 of 361

HELD AT MASERU
LC/REV/87/2011
A0288/2010

STANDARD LESOTHO BANK
APPLICANT
And
RAPHAEL MPHEZULU
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. Applicant raising three grounds of
review that 2nd Respondent granted the relief not sought by 1st Respondent;
that 2nd Respondent failed to apply its mind on all evidence presented; and
that 2nd Respondent awarded an inappropriate relief. Court not finding merit
in all review grounds and dismissing application. No order as to costs being
made.
later date. Three grounds of review have been raised in respect of which
Applicant seeks to have the said DDPR arbitral award reviewed, corrected
and set aside. Having heard the presentations of parties, Our judgment is
in the following.
2. Advocate Rafoneke submitted on behalf of the Applicant that the learned
Arbitrator erred in law by granting a remedy that was not sought by the
1st Respondent. He stated that the learned Arbitrator granted 1st
Respondent reinstatement without loss of earnings when 1st Respondent
had not asked for such a remedy. He stated that in term of the referral
form, 1st Respondent only wanted to be reinstated. Reference was drawn
to page 5 of the referral document. It was further submitted that it is the
duty of the party to seek a specific remedy, as 1st Respondent had done,
and not for the Court to grant a party what they had not asked for.
Reference was made to the authority in Phetang Mpota vs. Standard Bank
LAC/CIV/A/06/2008 in support.
3. In the above authority, the learned Dr. K. E. Mosito AJ, held at paragraph
20 of the typed judgment that,
Page 80 of 361
The Court of Appeal and this court have on several occasions deprecated
the practice in terms of which the courts grant order that nobody has asked
for. In several of its decisions the Court of Appeal has deprecated the
practice of granting orders which are not sought for by the litigants.
4. In reply, Advocate Monesa submitted that the Phetang Mpota vs.
Standard Bank (supra) authority was misplaced and inapplicable in casu.
He argued that in that case, Appellant had asked for payment of his
salaries without complaining about his dismissal. He stated that the
Court had then said that the Appellant was asking for an ancillary relief
without a substantive remedy. He submitted that it was within that
context that the Labour Appeal Court held that Mpota could not be
granted what he had not asked for. Advocate Monese argued that in the
present case, the learned Arbitrator was enjoined in terms of section 73 of
the Labour Code Order 24 of 1992, to award reinstatement together with
lost earnings.
5. Remedies for an unfair dismissal are provided for under section 73 of the
Labour Code Order (supra). Of relevance to the case at hand is section 73
(1) thereof, which provides as follows,
(1) if the Court holds the dismissal to be unfair, it shall, if the employee
wishes, order the reinstatement of the employee in his or her job without
loss of remuneration, seniority or other entitlements or benefits which the
employee would have received had there been no dismissal...
6. In addressing Applicants first ground of review, We wish to start with the
authority cited in support. We have gone through it and have noted a
number of aspects that distinguish it from the case at hand. As rightly
pointed out by Advocate Monesa, in that case, Appellant had asked for
salaries as damages for his termination without challenging the fairness
of his dismissal. In essence, Applicant had asked for the ancillary relief
without a substantive remedy. He wanted a relief that flows from the
substantive issue without contesting the substantive aspect of his
dismissal.
7. In casu, 1st Respondent had asked for both the substantive remedy and
the ancillary relief, which are the declaration of the dismissal as unfair
and an order for reinstatement, respectively. In Our view Applicant has
been specific as to the remedy that he sought in redress of his complaint.
Clearly the circumstances of the cases are different and as such the
authority that Applicant seeks to rely upon is not only inapplicable but
also misplaced in casu.
8. Assuming that the issue was the principle enunciated, that a Court,
which in this case would be the 2nd Respondent, has no competence to
grant an order not sought, Applicants argument would still not hold
water. In casu, 1st Respondent had asked for his dismissal to be declared
as unfair and that he be reinstated. In Our opinion, 1st Respondent was
granted exactly what he sought and in terms of the applicable provisions
Page 81 of 361
of the law. The issue of the lost wages, seniority and other entitlements or
benefits is ancillary to the order sought and the granting thereof is
mandatory, in terms section 73 of the Labour Code Order (supra).
9. In essence, given the position of the law, it followed that where
reinstatement is granted under section 73, it must be without loss of
remuneration, seniority or other entitlements or benefits which the
employee would have received had there been no dismissal. The
construction of the provisions of this section is not permissive and cannot
in any way be interpreted to mean that they may be varied as Applicant
suggests. Consequently, this point fails.
10. It was further submitted that the learned Arbitrator erred in law by
failing to apply her mind to the evidence from the disciplinary hearing. It
was submitted that this evidence was intended to establish what had
transpired during the disciplinary hearing. It was argued that had the
learned Arbitrator applied her mind to the said evidence, She would have
come to the conclusion that the dismissal of Applicant was fair.
11. In reply, Advocate Monesa submitted that the learned Arbitrator
applied her mind to all the evidence that was before her. He submitted
when a case for unfair dismissal has been brought before the DDPR, it is
heard de novo. He stated that this essentially means that Respondent to
an unfair dismissal case, is expected to lead evidence to show that the
dismissal was fair and not to rely on what is contained in the initial
disciplinary hearing record for its evidence.
12. Advocate Monesa submitted further that in any event where certain
evidence has been ignored, then that conduct is not reviewable. He made
reference to the case of Moloi vs. Euijen & another (1997) 8 BLLR 1022 (LC)
where the Court stated that disregarding certain evidence did not warrant
a review. In reply, Advocate Rafoneke argued that this case is in conflict
with section 73 (1) and further that even if it is not, it is persuasive and
not binding upon this Court.
13. We have gone through the DDPR arbitral award, and in particular on
the learned Arbitrators analysis of evidence, from paragraphs 8 to 11. We
do concede that no mention has been made about the record of
proceedings as Applicant suggests. This essentially implies that the
evidence of the record of proceedings of the initial hearing was ignored.
However, We also wish to comment that it is also true, as suggested by 1st
Respondent at least to some extent, that the mere ignorance of certain
evidence in reaching a conclusion does not necessarily warrant
interference with a decision so made (See JD Trading (Pty) Ltd t/a
Supreme Furnishers vs. M. Monoko & others LAC/REV/39/2004).
14. Essentially, from the above said, where an allegation of ignorance of
evidence has been made, the alleging party must go beyond just that
mere allegation to state such evidence and show how it being ignored has
Page 82 of 361
affected the decision reached. Put differently, the alleging party must
state the evidence and show the probative effect of the ignored evidence
towards influencing the decision maker to a desired conclusion. To
support this suggestion is the principle of law that he who alleges bears
the onus of proof (see Schwikkard P. J, et al, (2nd Ed.), Principles of
Evidence, at page 536). In casu, Applicant has not stated what this
evidence was as well as the effect in that it has barely alleged that, in
ignoring evidence of the record of proceedings the learned Arbitrator
committed an irregularity.
15. We wish to further comment on a few issues raised by parties in
arguing this point. We do not see how the authority in Moloi vs. Euijen &
another (supra) is in conflict with section 73 (1) of the Labour Code Order
(supra). This section deal with an award of the remedy of reinstatement
while the authority cited was meant to support the principle that
ignorance of certain evidence does not warrant interference with an
award. Whilst We do concede that the said authority is only of persuasive
value to this Court, the argument raised against it does not hold water.
16. Furthermore, We confirm that claims of unfair dismissal are indeed
heard de novo before the DDPR, at least on the merits. The effect of this
position is that, the one making a positive assertion will have to discharge
their burden by leading evidence in support of their assertions. If this is
the case, clearly what happened in the initial disciplinary hearing cannot
be used to determine the substantive fairness of dismissal of an applicant
party before the DDPR. Rather, the evidence of the record of proceedings
may be used to illustrate a procedural unfairness of the dismissal at the
plant level.
17. It was furthermore submitted that the learned Arbitrator erred in law
by ordering that 1st Respondent be reinstated. Advocate Rafoneke argued
that reinstatement as a remedy, is in law determined by the evidence
before Court. Reference was made to the case of Seotlong Financial
Services vs. Makhomari Morokole LC/REV/32/2009. Advocate Rafoneke
submitted that the learned Arbitrator awarded reinstatement on the
ground that Applicant had failed to lead circumstances that make
reinstatement impractical, when She was never addressed on the issue of
practicality of reinstatement. He submitted that worse still is the fact
that no evidence was led by Applicant to prove that reinstatement was
practical.
18. In reply, Advocate Monesa submitted that contrary to what Applicant
suggests, there was evidence on the issue of reinstatement. He
specifically referred the court to paragraph 7 of the arbitral award, under
the learned Arbitrators summary of evidence where it is reflected that
Applicant wants to be reinstated of the unfair dismissal. He submitted
that under the circumstances, it was the duty of Applicant to lead
evidence to show that the remedy sought would not be practical.
Page 83 of 361
19. Upon inspection of the DDPR arbitral award, We have noted that 1st
Respondent did pronounce himself in relation to the remedy that he
sought from 2nd Respondent. In fact this is not in dispute that 1st
Respondent did pray for the remedy of reinstatement. In view of this said,
We do not see what could have prevented Applicant from leading evidence
about the impracticality of reinstatement as a remedy especially when it
was known to them what remedy 1st Respondent sought. Further,
Applicant has not even alleged anything on the part of the learned
Arbitrator that could have caused them not to lead such evidence.
20. In law, reinstatement is the principal remedy in cases of unfair
dismissal. This basically means that it should be granted at all times
where a dismissal has been found to be unfair, unless a dismissed
employee does not wish to be reinstated or unless the employer has
shown that it is not practical to reinstate. As a result, it was the
obligation of Applicant, given the nature of the claim being argued, to lead
evidence to show that reinstatement was not the suitable remedy.
Applicant has clearly failed to do so and the 2nd Respondent cannot be
held to its omission. In line with the dictates of the principle enunciated
in Seotlong Financial Services vs. Makhomari Morokole (supra), the
learned Arbitrator made a determination on the basis of the available
evidence, which in this case is the 1st Respondents unchallenged claim
for reinstatement. Consequently, this ground cannot succeed.
COSTS
21.
Advocate Rafoneke asked for costs on the ground that Applicants
concerns with the arbitral award are obviously valid. Further, that 1st
Respondent is aware that there is an obvious irregularity in the arbitral
award in that he was granted the remedy that he did not seek. He
submitted that as a result, 1st Respondent ought not to have opposed this
matter and that in so doing, he is guilty of frivolity. 1st Respondent replied
that an order of costs should be made against Applicant for the reason
that their case is frivolous as their grounds are not valid. 1st Respondent
prayed for costs at a higher scale.
22. We decline to make an award of costs. Our view is based on the fact
that costs are awarded in extreme circumstances where a party totally
has no basis for a claim or defence. The intention behind making an ward
of costs is not to intimidate parties away from enforcing or defending their
rights, but mainly to discourage abuse of court processes. We do not find
the current circumstances to justify an award of costs against either
party. To make such an award in the current circumstances would be to
undermine the spirit and purport for making an award of costs.
Page 84 of 361
AWARD
following terms:
c) Applicant must comply with the said award within 30 days of receipt
herewith; and
T. C. RAMOSEME
Ms. P. LEBITSA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1ST RESPONDENT:
ADV. RAFONEKE
ADV. MONESA
Page 85 of 361

HELD AT MASERU
LC/REV/13/2010
A0031/2009

THABO MOSAO T/A MOSAO WOOD & COAL
APPLICANT
And
NEO MOKEBE
THE ARBITRATOR, DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of the DDPR arbitral award in referral A0031/2009.
1st Respondent applying for dismissal for want of prosecution. Applicant not
answering application. Matter being set down for hearing and Applicant failing
to attend the hearing. Hearing proceeding unopposed Court granting
application and dismissing this review application. No order as to costs being
made.
1. This is an application for the dismissal of this review application in
LC/REV/13/2010 for want of prosecution. Parties herein are cited as
appear in the main review application for purposes of convenience. This
matter was heard on this day in default and a ruling was delivered
immediately thereafter in Court. Our full written judgment on the matter
is thus in the following.
2. Facts surrounding this matter are basically that 1st Respondent referred a
dispute for unpaid monies with the DDPR under referral number
A0031/2009. An award was thereafter issued in favour of the 1st
Respondent. Thereafter, on or around the 17th March 2010, Applicant
herein referred a review application with this Court. It is this application
that the 1st Respondent wishes to have dismissed for want of prosecution.
3. 1st Respondent submitted that he aligned himself with his averments in
his notice of motion and founding affidavit save to add that the fact that
Applicant is not in attendance today, and that he has not filed any
opposing documents to his application, is an indication that he has no
interest in the matter. He thus prayed that this application be dismissed
for want of prosecution.
Page 86 of 361
4. In terms of his affidavit, 1st Respondent had averred that since this
matter had been lodged by Applicant, no further steps were taken to have
it finalised. On account of the prejudice that he was suffering due to the
delay, he then served Applicant with answering affidavit and filed same
with this Court. Notwithstanding receipt of the answering affidavit,
Applicant took no steps to have the matter enrolled for hearing. As a
result, 1st Respondent then filed this application and had it set down.
5. It is trite law that the right to be heard is only given to a party that is
willing to utilise it (see Lucy Lerata & others vs. Scott Hospital 1995-196
LLR-LB 6 at page 15). It is clear from the submissions of 1st Respondent
that Applicant has been given all the opportunities to prosecute and
finalise his case. 1st Respondent answered his claims, notwithstanding
the fact that he had not complied with Rules 16 of the Rules of this
Court. Further, Applicant was served with an application for dismissal for
want of prosecution well in time. The Records of this Court reflect that
Applicant was served with the application on or around the 30th April
2012. This is well over a year from this date and yet Applicant has not
even bothered to answer the said application.
6. From these said above, it is Our opinion that in failing to exhaust the
availed avenues, Applicant has by conduct demonstrated in clear and
certain terms, his intension to waive his right to be heard. We agree with
1st Respondent that Applicant is clearly not interested in having the
matter finalised. His non-attendance today, notwithstanding notification
about the date of hearing, goes a long way to further fortify 1st
Respondent suggestion of his lack of interest in the matter. Consequently,
the application for dismissal for want of prosecution is granted.
AWARD
We hereby make an award in the following terms:
a) That LC/REV/13/2010 is hereby dismissed for want of prosecution; and
T. C. RAMOSEME
Mrs. M. MOSEHLE
Mr. S. KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1ST RESPONDENT:
NO ATTENDANCE
IN PERSON
Page 87 of 361

HELD AT MASERU
LC/REV/25/2007
A0856/2006

FAHHIDA CASH AND CARRY (PTY) LTD
APPLICANT
And
LEBOHANG MARUOA
RAMOTHABENG SEMOKO
THE DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
1st and 2nd Respondent applying for dismissal for want of prosecution.
Application not being opposed and Applicant failing to attend the hearing.
Hearing proceeding unopposed Court granting application and dismissing
this review application. No order as to costs being made.
1. This is an application for the dismissal of this review application in
LC/REV/25/2007 for want of prosecution. Parties herein are cited as
appear in the main review application for purposes of convenience. This
matter was heard on this day in default and a ruling was delivered
immediately thereafter in Court. Our full written judgment on the matter
is thus in the following.
2. Facts surrounding this matter are basically that 1st and 2nd Respondents
referred a dispute for unfair dismissal with the DDPR under referral
number A0856/2006. An award was thereafter issued in favour of the 1st
and 2nd Respondents. Thereafter, on or around the 27th March 2007,
Applicant herein referred a review application with this Court. It is this
application that the 1st and 2nd Respondents wish to have dismissed for
want of prosecution.
3. Advocate Russell submitted on behalf of the 1st and 2nd Respondents that
after the matter had been referred with this Court, Applicant was notified
by the Registrar to collect the audio record of the DDPR proceedings in
referral A0856/2207 for transcription. This letter was followed by another
letter from Advocate Russell to remind Applicant about the record of
proceedings. The two letters form part of the record as annexes A and
B. Notwithstanding the said notices, Applicant failed to collect same to
Page 88 of 361
date. She further submitted that this is causing great prejudice on the 1st
and 2nd Respondents who are still waiting for the execution of their
award.
4. Advocate Russell furthermore submitted that it is clear from the conduct
of Applicant that it does not have the serious or solid intention of having
the matter finalised. Advocate Russell argued that the conduct of
Applicant is rather meant to frustrate and delay the execution of the
DDPR award issued in favour of 1st and 2nd Respondents. Moreover, she
submitted that the fact that Applicant has made appearance today, is an
indication that it has also lost interest in the review application. She thus
prayed that the review application be dismissed.
LLR-LB 6 at page 15). It is clear from the submissions of Advocate Russell
that Applicant has been given all the opportunities to prosecute and
finalise its case. As a result, it is Our opinion that in failing to exhaust
the availed avenues, Applicant has by conduct demonstrated in clear and
certain terms, its intension to waive its right to be heard. We agree with
Advocate Russell that Applicant is clearly not interested in having the
matter finalised. Consequently, the application for dismissal for want of
prosecution is granted.
AWARD
a) That LC/REV/13/2010 is hereby dismissed; and
T. C. RAMOSEME
Mrs. L. RAMASHAMOLE
Mr. S. KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1ST RESPONDENT:
NO ATTENDANCE
ADV. RUSSELL
Page 89 of 361

HELD AT MASERU
LC/REV/19/2010
A0352/2009

EMMA MALISEMA SEHLABAKA
NTEBO ELIZABETH MASITHELA
TANKISO MAKO
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
And
CITY EXPRESS STORE (PTY) LTD
THE LEARNED ARBITRATOR
L. L. SHALE - DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the DDPR arbitral award. One ground of review
raised that the learned Arbitrator did not pronounce himself on the
procedural fairness or unfairness of Applicants dismissals. Court finding that
the learned Arbitrator did not pronounce himself on procedural aspect of
Applicants dismissals. Applicants failing to justify that the irregularity
warrants interference with the arbitral award. Review application being
dismissed. No order as to costs being made.
A0352/2009. It was heard on the 19th March 2013 and judgment was
Applicant referred claims for unfair dismissal and unpaid monies with the
DDPR. An award was entered against Applicant leading to the current
review application. Only one ground of review has been raised in terms of
which Applicant seeks to have the DDPR arbitral award reviewed,
corrected and set aside. Both parties made their presentations and Our
judgment on the matter is thus follows.
2. Advocate Matooane for Applicant submitted that the learned Arbitrator
erred in law in that, He did not make a finding on the procedural aspects
of the Applicants dismissals. He submitted that Applicants had
challenged both the procedural and substantive aspects of their
dismissals. He stated that the learned Arbitrator acknowledged the
procedural challenge but did not pronounce himself on same. Reference
was drawn to paragraph 9 of the arbitral award.
Page 90 of 361
3. It was further submitted that Applicants hearing was conducted contrary

to the employers disciplinary code in that all Applicants were grouped
and charged together for the same offence. It was added that in terms of
the disciplinary code, the lowest levels of employees upwards, should be
charged by the next level of authority. In that case, employees were of
different levels but were charged by one person contrary to the
disciplinary code. Reference was made to the employers disciplinary code
which had been tendered as evidence in the DDPR proceedings, and
formed part of the record.
4. It was argued that had the learned Arbitrator considered the procedural
aspects of the Applicants dismissals, he would have realised that the
employer did not consider who was responsible for the offence and the
level of their fault. Advocate Matomaneng further argued that had the
procedure been followed, the outcome might have different as offences
differ by departments. He stated that each supervisor knows what an
offence is and what is not an offence in their individual departments.
5. In reply, Advocate Nono for 1st Respondent submitted that it is incorrect
that the learned Arbitrator did not pronounce himself on the issue of
procedure. He stated that the learned Arbitrator stated that Applicants
were jointly responsible and were therefore properly charged. He made
reference to paragraph 10 of the arbitral award. He stated that this
paragraph was addressing the issues raised under paragraph 9 of same
in relation to procedure.
6. Advocate Nono further submitted that he conceded that Applicants were
not charged by their individual senior officers. He stated that they were
all charged for a similar offence and that they all appeared before the
same chairperson. He admitted that this was contrary to the 1st
Respondent disciplinary codes. He explained that if the codes had been
followed in the strict sense, only one of the Applicants would have been
charged. He went further to state that the three Applicants were at
different levels of authority within the 1st Respondent employ, which
would have meant that they would have had to charge each other for the
misconduct that they orchestrated together. Advocate Nono further
submitted that even if the procedure had been followed, the outcome
would still be same.
7. It was further submitted that the fact that Applicants were not charged by
their individual senior officers does not warrant the setting aside of the
arbitral award. Advocate Nono argued that it is now an established
principle of law that a mere breach of the employers disciplinary codes
does not warrant interference with the arbitral award. He made reference
to the case of Central Bank of Lesotho vs. DDPR & others
LC/REV/216/2006, where the Court quoted an extract
from the
judgment in Landman P. in National Education Health and Allied Workers
Union & Others .v. Director General of Agriculture & Another (1993) 14 ILJ
1488 at 1500, had the following to say,
Page 91 of 361
... a move should be made away from strict legality to the equitable, fair
and reasonable exercise of rights. We believe that our jurisprudence has
strayed too far away from this path and that the time has come when we
should turn our backs on a legalistic interpretation and insistence on
uncompromising compliance with a code and ask a general question: Was
what the employer did substantially fair, reasonable and equitable? If the
answer is positive that will ordinarily be the end of the matter.
8. Advocate Nono further argued that the issue about Applicants being
grouped together is new altogether. He stated that this issue was never
the issue before the DDPR but only coming up for the first time on review.
He stated that claim before the DDPR was that the procedure was flawed
as Applicants were not charged by their individual senior officers.
Reference was made to page 56 of the record.
9. Paragraph 9 of the arbitral award relates to a summary of the evidence
before the DDPR proceedings. In this paragraph, Applicants raised their
complaint about the procedural unfairness of their dismissals.
Applicants argument is that they were charged by the wrong person
contrary to the employers disciplinary codes. We have gone through
paragraph 10, which 1st Respondent has attempted to argue that it
addresses the issue of procedure. In Our view, paragraph 10 does not
address the issue of the procedural fairness or unfairness of the dismissal
of Applicants.
10. In fact, nothing is said in that paragraph about whether or not it was
procedurally correct that Applicants were not charged according to the
employers disciplinary codes. In fact there is nowhere in the arbitral
award where the learned Arbitrator has pronounced himself on the issue
of the procedural aspect of the dismissal of Applicants. At paragraph 10,
the learned Arbitrator merely alluded to the issue of the collective
responsibility of all Applicants in relation to the misconduct they were all
charged for. In essence, the learned Arbitrator has not pronounced
himself on the procedural aspect of the dismissals of Applicants and has
thus erred in law.
11. In view of Our finding above, the next issue is whether this procedural
irregularity warrants interference with the arbitral award. The answer to
this question lies into whether the outcome would have been different had
the learned Arbitrator considered and pronounced himself on the issue of
procedural fairness or unfairness of the Applicant dismissals. Advocate
Matooaness augment that offences differ by departments does not
sustain. Applicants were charged by 1st Respondent for an offence
emanating from their departments. We do not see how being charged by
their supervisors per the code, would alter the attitude of 1st Respondent
as the employer against the conduct of Applicants.
12. Further, We acknowledge and accept 1st Respondents argument that if
the learned Arbitrator had considered the procedural aspect of the
Page 92 of 361
dismissals of Applicants, his conclusion would not have changed. He

would indeed have been bound by the principle enunciated in the Central
Bank of Lesotho vs. DDPR & others (supra) that 1st Respondent has rightly
stated. That judgment is the decision of this Court and is binding upon
the 2nd Respondent. This authority is both applicable and relevant to the
case in casu in that both cases relate to the situation in which the people
who were supposed to chair the disciplinary hearings were compromised
and someone had to stand in for them.
13. It is Our opinion that Applicants, in accordance with their differing
levels authority, could not have been expected to charge each other. We
say this because, it was the opinion of the 1st Respondent that they were
jointly or collectively responsible for the loss suffered and thus needed to
be dealt with together. That being the case, there was no other way that
1st Respondent could have dealt with them. Consequently, We find that
the procedural irregularity on the part of the learned Arbitrator does not
warrant interference with the arbitral award.
AWARD
following terms:
a) That the application for review is refused;
b) That the award in referral A0352/2009 remains in force; and
T. C. RAMOSEME
Mr. S. KAO
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MATOOANE
ADV. NONO
Page 93 of 361

HELD AT MASERU
LC/REV/56/2011
A0876/2010

MOSIUOA MOLATOLI
APPLICANT
And
CGM INDUSTRIAL (PTY) LTD
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. Respondent challenging the
jurisdiction of this Court to entertain Applicants claim 1st Respondent relying
on the Labour Appeal Court decision in Lesotho National Federation of
Organisations of the Disabled & another vs. Mojalefa Lobhin & another - Court
finding a distinction between the two cases Court finding that it has
jurisdiction. Applicant raising four grounds of review in the following all
grounds failing to sustain and review application being dismissed. No order as
to costs being made.
A0876/2010. It was heard on the 13th February 2013 and judgment was
Applicant referred a claim for unfair dismissal with the DDPR. The matter
was finalised through a settlement agreement, in terms of which 1st
Respondent was to pay certain amounts of money to Applicant.
Thereafter, Applicant approached the 2nd Respondent to have the
settlement agreement turned into an award on the ground that 1st
Respondent had failed to fully comply therewith. Applicant argued that an
amount in the sum of M3,711.41 was still outstanding. The application
was refused leading to the current application for review.
2. Four grounds of review were raised on behalf of the Applicant in terms of
which he sought to have the arbitral award review, corrected and set
aside. However at the commencement of the proceedings, 1st Respondent
raised a preliminary issue to the effect that this Court had no jurisdiction
entertain this matter. Both parties were then given the opportunity to
make their addresses on the preliminary issue. Having heard their
submissions, the Court then ruled that it had jurisdiction to entertain
this matter. Parties were thereafter promised the full reasons in the full
Page 94 of 361
written judgment. The matter was then heard in the merits and Our full
judgment on all issues is in the following.
Preliminary issue
3. It was submitted on behalf of the 1st Respondent that this Court had no
jurisdiction over this application in that it involved a settlement
agreement which was concluded before the DDPR. Advocate Matooane for
1st Respondent argued that through this process, Applicant was in effect
seeking to enforce the settlement agreement made before the 2nd
Respondent. It was further argued that this Court had no jurisdiction to
enforce a settlement agreement made before the DDPR. Reference was
made to the Labour Appeal Court case of Lesotho National Federation of
Organisations of the Disabled & another vs. Mojalefa Lobhin & another
LA/CIV/A/07/2010, in support.
4. Advocate Matooane furthermore argued that the authority in the above
matter applied retrospectively over the Applicants claim in as much as
this issue was dealt with an finalised before the DDPR prior to the
delivery of the above cited judgment. He indicated that the Court of
Appeal of Lesotho has on a prior occasion ruled in favour of retrospective
application of the law. In support of this argument reference was made to
the case of Sole Masupha vs. LHDA C of A (CIV) NO. 26 of 1999.
5. Advocate Rasekoai for Applicant, replied that this court had jurisdiction
over this matter in that what they sought was not the enforcement of the
settlement agreement, as put by 1st Respondent. He submitted rather
that they only sought to review the award of the DDPR on the ground of it
being irregular, in terms of the procedure that was followed in its making
and not its substantive content. He argued that the authority in Lesotho
National Federation of Organisations of the Disabled & another vs.
Mojalefa Lobhin & another (supra) was misplaced and inapplicable to the
present case.
6. Advocate Rasekoai further replied that assuming, without admitting, that
this application sought to enforce the settlement agreement of the DDPR,
the authority in Sole Masupha vs. LHDA (supra) does not apply to this
case in that sense. He argued that in the same authority the Court ruled
that retrospectivity undermines legality, particularly in the case where it
affects the substantive rights of a party concerned. He confirmed that the
award being reviewed was issued before the Lesotho National Federation
of Organisations of the Disabled & another vs. Mojalefa Lobhin & another
(supra) and that in view of the Sole Masupha vs. LHDA (supra), the former
authority would not apply.
7. Having considered the submissions made and authorities referred to by
the parties, We came to the conclusion that this Court had jurisdiction to
entertain this review application. We had considered the fact that a review
application, as a matter of principle, deals with the procedure that was
Page 95 of 361
adopted by a lower court in reaching its decision. As a result, We in effect

agree with counsel for Applicant that this application is not concerned
with the substance of the matter before the DDPR but rather the
procedure adopted to make the conclusion. As a result, it cannot be
accurate that Applicant seeks to enforce the settlement of the DDPR.
8. In our view, the authority in Lesotho National Federation of Organisations
of the Disabled & another vs. Mojalefa Lobhin & another (supra) does not
apply to this case to divest it of the jurisdiction to entertain this review
application. Our opinion is fortified by the distinctions that lied between
the above case and in casu. In the above case, the matter involved an
enforcement of the award of the DDPR before this Court, which had
turned a settlement agreement into an award. In casu, Applicant seeks to
review the award of the DDPR on the alleged grounds of irregularity
stated in their notice of motion. As a result the two cases are totally
distinct. In view of our conclusion, We find it unnecessary to consider and
comment on the rest of the argument of the parties on this preliminary
point.
The Merits
relied on unsubstantiated facts to come to a conclusion that an amount
to the tune of M3,711.41 was diverted to tax payment. He argued that
there was no evidence placed before court to the effect that tax was
deducted and that, if so, it was in the stated amount. It was submitted on
behalf of 1st Respondent that there was evidence and that it has been
annexed to the record of proceedings. It was stated that the evidence
consists of a letter from the Lesotho Revenue Authority to the Accountant
of the 1st Respondent, in terms of which 1st Respondent was being
authorised to deduct an amount of M3,711.41 as tax from Applicant
settlement amount.
10. We have gone through the record of proceedings and have made the
following discoveries. At page 5 of the record, evidence has been led to the
effect that the Lesotho Revenue Authority had authorised the deduction
of an amount of M3,711.41 by 1st Respondent. Secondly, there is also a
copy of the letter annexed to record which was from the Lesotho Revenue
Authority to both the Applicant and 1st Respondent. This letter authorises
the 1st Respondent to deduct an amount of M3,711.41 as income tax. It
letter reads as follows,
Please deduct the sum of M3,711.41 being tax charged in accordance with
section 18 of the Income Tax Order No. 9 of 1993 ...
In Our opinion, and given the fact that this letter forms part of the record
of the DDPR proceedings, there was supporting evidence led and tendered
to justify the tax deduction made contrary to the argument of Applicant
that there was none. Consequently, the argument about the absence of
supporting evidence cannot succeed.
Page 96 of 361
11. It was further submitted that the learned Arbitrator failed to apply her
mind to the facts placed before her and that she also failed to appreciate
the dynamics of tax regulations. It was argued that in law the obligation
to pay taxes is not on the employee but on the employer so that the
employer is not in law empowered with the right to deduct monies for tax
purposes from the employees salary without their consent and
authorisation. It was also submitted that the learned Arbitrators decision
is flawed in that he failed to apply his mind to the fact that a settlement
agreement cannot be subjected to tax. In response, 1st Respondent
submitted that it is in law incumbent upon the employer to pay income
tax on behalf of its employees and that this is called pay as you earn
(PAYE). As a result, 1st Respondent maintained that there was no
irregularity on the part of the learned Arbitrator as His conclusion was
sanctioned by law.
12. Upon consideration of the arbitral award and in particular under
paragraph 10 and 11, the learned Arbitrator has stated why He came to
the conclusion that tax had to be paid on the settlement amount. He
stated that in law, all income is subject to tax hence the deduction of
M3,711.41 from the Applicants settlement amount. He also considered
the evidence of the 1st Respondent to the effect that the amount of
M3,711.41 was deducted upon the advice of the Lesotho Revenue
Authority. This is in Our view demonstrates that the dynamics of tax
regulation were considered by the learned Arbitrator and that he applied
his mind to the facts placed before him.
13. It was furthermore submitted that the learned Arbitrators decision is
misdirected and that He failed to apply his mind to the facts placed before
him in so far as they relate to the prejudice suffered by Applicant
resulting from the deduction or non-payment of the balance of
M3,711.41. It was submitted in response, that there was no such
evidence before the 2nd Respondent. It was stated that the issue of
prejudice is only coming up for the 1st time on review and that it should
not be entertained. It was further submitted that the learned Arbitrator
could not have been expected to pronounce himself or consider an issue
that was not raised by either of the parties. In reply this was admitted by
Applicant that they did not raise this issue as it was clear from the facts
that Applicant was being prejudiced and as such they did not need to
argue it.
14. This court has pronounced itself before over issues raised for the first
time on review. We have said over and over again that the presiding
officer of a lower court cannot be held to an issue in respect of which
s/he was denied the opportunity to consider. It is common cause and as
admitted by counsel for Applicant, that this issue was not raised before
the DDPR. As a result and in view of Our attitude, it cannot be proper to
allege a wrong doing either by act or omission on the part of the learned
Arbitrator over an issue that was not argued in the proceedings over
which He presided.
Page 97 of 361
15. Lastly, it was submitted that the learned Arbitrator erred law in that
He delved into the merits of the matter whereas He was just called to turn
the settlement agreement earlier reached, into an award. In response, it
was argued that given the nature of the claim before the learned
Arbitrator, there was no way that it could have been determined without
going into the merits. It was argued that a settlement agreement could
only be turned into an award if one of the parties had failed to comply
with it without a justifiable course. As a result, it was necessary for
evidence to be led on the circumstances that led to the failure on the part
of the 1st Respondent to fully comply, in order for the learned Arbitrator
to make His decision.
16. We have noted that there is a term in the settlement agreement to the
effect that in the event that there is a dispute arising in the application of
the settlement agreement, then an aggrieved party may approach the 2nd
Respondent for a remedy. In our view, in order to resolve a dispute the
parties concerned must lead evidence to prove failure to comply. This is
intended to aid the one presiding to come to a fair and equitable
conclusion. In the case before the 2nd Respondent, there was no way that
the determination over the dispute between the parties could be resolved
blindly without considering the circumstances that led to it arising.
Consequently, the merits of the matter were material towards such
determination as they were the basis of the claim. This point accordingly
fails.
AWARD
following terms:
and
T. C. RAMOSEME
Mrs. P. LEBITSA
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. RASEKOAI
ADV. MATOOANE
Page 98 of 361

HELD AT MASERU
LC/58/12

KHAUHELO MOENO
APPLICANT
And
RESPONDENT
JUDGMENT
Claim for unfair dismissal for participation in an unlawful strike. Respondent
failing to oppose the claim Applicant filing an application for default
judgment. Application not being opposed Court proceeding on the basis of the
unchallenged evidence of Applicant Court finding merit in the matter and
granting judgment. No order as to costs being made.
8. This dispute involves a claim for unfair dismissal for participation in an
unlawful strike. It was heard on the 7th May 2013 in default and
judgement was reserved for a later date. Facts surrounding this mater are
basically that Applicant referred a dispute with the DDPR, in terms of
section 227(5) of the Labour Code (Amendment) Act 3 of 2000. Conciliation
having failed, the matter was then lodged with this Court for
determination. A copy of the conciliation certificate forms part of the
record as NP3
9. In this application, Applicant seeks to have her dismissal declared unfair
on both procedural and substantive grounds. She is asking for
compensation of 24 months wages from the time of her dismissal.
Respondent having failed to file its intention to oppose the originating
application and the time limits having lapsed, Applicant filed an
application for default judgment. This application has similarly not been
opposed and was as such heard on this basis.
10. Advocate Nono submitted on behalf of Applicant that she was
employed on the 21st January 1998 in the position of a Security Guard,
until her dismissal on the 22nd February 2011. A copy of the letter of
dismissal is annexure NAP1 to the originating application. At the time of
her dismissal, she earned a monthly wage of M1,193.00.
11. Circumstances leading to her dismissal are that sometime in
December of 2010, they were informed, as staff, that they would not be
Page 99 of 361
paid their December wages in time. In reaction to this notice, all

employees arranged to meet the Respondent management to both seek
clarity on the matter as well as to demand immediate payment of their
wages. On the appointed day, she could not join her fellow employees as
she was on duty. A copy of the clock sheet was annexed to the originating
application as NAP4.
12. Notwithstanding her non-participation in an attempt to meet
Respondent management, she was called to a hearing on charges of
participation in an unlawful strike. A copy of the charge letter was
annexed to the originating application as NAP2. When the letter was
handed over to her, she indicated that certain issues were not clear and
requested that they be clarified. However, her request was ignored as the
matter proceeded in her absence and a decision was taken to dismiss her.
On the day of the hearing, she had been placed on duty and thus could
not attend her hearing. In view of her situation, a recommendation was
made by an unnamed person at the hearing that it be postponed.
However, the recommendation was unfortunately rejected by the
chairperson. A copy of the recommendation is annexed as NAP6.
13. Advocate Nono submitted that the dismissal of Applicant was unfair
as she was clearly dismissed for something she had not done. Further,
that she was denied the opportunity to defend herself as on the date of
hearing she was placed on duty. Furthermore, Advocate Nono submitted
that the person who presided over Applicants case and the person who
charged her were one and the same as annexure NAP2 and NAP5 bear
reference. He argued that this is irregular and unfair.
14. It is trite law that where one of the parties has not challenged the
evidence of another, then the unchallenged evidence is to be taken as
true and an accurate narration of what took place (see Theko vs. The
Commissioner of Police & another 1991 1992 LLR-LB 239 at 242). From
the unchallenged evidence of Applicant, it is clear that it could not be
valid to conclude that she was part of the group that downed tools to
compel the employer to pay their wages. The uncontroverted evidence
shows that she was on duty at the time of the incident.
15. Further, Applicant could have been expected to attend her hearing as
Respondent had placed her on duty on the said day, at a post at
Evergreen. This is reflected in NAP6. It is clear from the conduct of
Respondent that its intention was not to afford Applicant a hearing.
Applicants failure to attend was wholly attributable to Respondent and
as such Applicant cannot be held to acts not of her making or those
beyond her control.
16. Furthermore, it is trite law that a man cannot be a judge in his own
cause. This is commonly known as the Nemo judex in casu sua (see
Lesotho Evangelical; Church vs. John Mataba Bokako Nyabela
CIV/APN/150/1980). This essentially means that one complaining cannot
Page 100 of 361
be the trier in their own complaint. In casu, We have satisfied ourselves

that the person who signed as the charging officer and the presiding
officer in the actual hearing are one and the same person. The signatures
on NAP2 and NAP5 bear proof. That being the case, a breach of the
above principle occurred as the complaint in Applicants case was also
the trier. In Our opinion, this also explains the keenness on the part of
the presiding officer in Applicants case to have the matter proceed in her
absence despite the fact that she was on duty. Consequently, this was
indeed an irregularity on the part of the Respondent.
FORMULATION OF AWARD
17. In view of our findings above, We shall now deal with the remedy
sought. Applicant had requested payment of her 24 months wages for
both the procedural and substantive unfairness of her dismissal. In
justification of her prayer, it was submitted that she struggled to secure
employment which she was only able to secure after May 2011. Even
then, in her new employment, she is earning below what she earned with
the Respondent as she is being paid at a minimum wage rate for security
officers. It was further submitted that this Court order payment of the full
compensation amount in four instalments commencing July, and payable
on or before the end of every month until the whole amount is fully paid
up. The rationale behind this request was that the 24 moths wages may
be too much for Respondent to pay in full within 30 days, given its
current financial status.
18. The 24 months period claimed runs from the date of dismissal, which
is February 2011 to February 2013. It is clear from the submissions of
Applicant that she was fully out of employment for at least 2 months from
February to April 2011. This being the case, We award her the full wages
for this time. From May 2011 to February 2013, We will only award her
the difference between her current wages and the wages that she earned
while in the service of Respondent, if any. The intention in awarding the
difference is that, in terms of section 73 of the Labour Code Order 24 of
1992, compensation is not intended to unfairly enrich either party, but
rather to restore a party to their initial position but for the dismissal.
19. Our computation of the Applicants entitlement for the unfairness of
her dismissal is as follows,
2 months salary = M1,193 X 2 = M2,386.00
In terms of the Labour Code (Wages Order) of 2012, the current minimum
wage rate for security officers is M1,474.00. This amount is far above the
Applicants last wages with the Respondent. This being the case, it is
clear that Applicant has not lost out on any income safe for the two
months period between February and April 2011. Consequently, We make
an award of 2 months wages in the sum of M2,386.00.
20. It is the obligation of this Court to ensure that the rules of procedure
are followed in dealing with labour disputes. Failing to do so would be
tantamount to condoning a breach of both the labour laws as well as the
Page 101 of 361
rules of natural justice. These rules are intended to guide proceedings of

this nature. As a result, We find it imperative to punish those who
contravene the procedural requirements. The aim is to discourage that
behaviour from continuing.
21. From our analysis above, We have found that the Respondent has
acted in breach of the procedural rules in dismissing Applicant. This has
been clearly reflected by evidence in two instances, that is, denying her
the right to be heard and acting contrary to the principle of Nemo judex in
casu sua. As We have already indicated, the intention behind awarding
compensation for procedural irregularity in an unfair dismissal claim, is
preventative in nature.
22. In Our view, the observance of the rules of natural justice is
paramount to the attainment of fairness and equity which this Court
jealously protects. As a result, failure to recognise the right to a hearing
and the observance of the nemo judex principle is an obstruction to the
attainment of fairness and equity. Consequently, We find that an award
of 3 months salary would be sufficient punishment to discourage
Respondent from ever contravening the procedural requirements imposed
by law in cases of this nature. The computation of the 3 months salary is
as follows,
M1,193.00 X 3 = M3,579.00.
23. Although Applicant had prayed that the judgment amount be payable
in four instalments, We direct that it be paid in full within 30 days of
receipt of this judgment. Our conclusion is based on the fact that a
request for instalment payment was made in anticipation of the Court
making an award of 24 months wages which would have been about four
times the amount ordered in favour of Applicant. Having refused to award
24 months compensation, We feel that it would be fair and equitable if
payment is made as directed.
Page 102 of 361
AWARD
following terms:
a) That the dismissal of Applicant is unfair both substantively and
procedurally;
b) That Respondent pay Applicant an amount of M2,386.00 being
compensation for lost earnings;
c) That Respondent pay Applicant an amount of M3,579.00 being
compensation for the procedural unfairness of his dismissal;
d) That this order be complied with within 30 days of receipt of the
judgment; and
e) That there is no order as to costs.
T. C. RAMOSEME
Mr. S. KAO
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. NONO
NO APPEARANCE
Page 103 of 361

HELD AT MASERU
LC/52/12

FACTORY WORKERS UNION O.B.O
THANDIWE LABANE & 23 OTHERS
APPLICANT
And
TAI YUAN GARMENTS (PTY) LTD
RESPONDENT
JUDGMENT
Claim for dismissal on the ground of operational requirements. Court having
earlier intimated its intention to raise a preliminary issue of locus standi of the
Applicant union in a dispute of right. Matter being postponed under request of
Applicant to be given time to attempt to cure the defect. Applicant applying for
joinder of the affected employees to the proceedings. Court finding that joinder
depends on existence of locus standi on the part of initiator of the matter.
Court finding that the initiator has no locus standi - application for joinder
being declined Court finding it improper to join parties to a party lacking
capacity. Applicant applying for substitution from the bar in breach of the
Rules of this Court Court refusing to condone the breach of its rules
Application for substitution being dismissed. The main claim being dismissed
on account of lack of locus standi on the part of the Applicant.
1. This dispute involves a claim for unfair dismissal on the ground of
operational requirements. It was heard on the 4th April 2013 and
judgment was deferred for a later date. The matter was initially scheduled
to proceed on 28th February 2013 but was postponed. The postponement
was occasioned by the fact that on the date of hearing, the Court had
brought it to the attention of both parties that it intended to raise a
preliminary issue on locus standi of the Applicant union. In raising this
point, We acted on the basis of the authority in Thabo Mohlobo & others
vs. Lesotho Highlands Development Authority LAC/CIV/A/02/2010, that
the Court has the power to raise a point of law on its own motion.
2. Parties had then agreed on the postponement to allow Applicant to
exercise the choice of either curing the defect in their pleadings by
substituting the Applicant union with the affected employees to the
proceedings or for both parties to prepare their addresses on the issue.
On this day, Applicant moved an application for joinder of the affected
employees to the proceedings, instead. This application was opposed by
Page 104 of 361
Respondent. Both parties made their submissions and Our judgment is

thus in the following.
3. Advocate Rasekoai submitted on behalf of Applicant union that they
applied for the joinder of the affected employees as Applicants in the
matter. It was submitted that they are affected in the sense that their
dismissal forms the subject matter of these proceedings. He submitted
that the effect of the joinder, if granted, would be that the Applicant
union would take the place of a nominal Applicant in the proceedings. He
maintained that the union had locus standi in that it had a substantive
interest in the matter. He submitted that the unions locus standi arose
from the fact that its members had been affected by the decision of the
Respondent to dismiss.
4. Advocate Rasekoai furthermore, submitted that in the event that this
Court finds that their application for joinder stands to be dismissed, he is
asking for the substitution of the affected employees in the place of the
union. He submitted that although this application is made from the bar,
this Court nonetheless has the power to condone breach of its procedural
rules, provided that the breach is in good faith. He submitted that this
will not prejudice Respondent in any way and that it would be in the
interests of justice if the breach is condoned.
5. In response, Advocate Nono submitted that in terms of section 28 of the
Labour Code Order 24 of 1992, a trade union can only appear in a dispute
of right as a representative and not a party. He submitted that contrary to
the provision of section 28, the Applicant union is cited in these
proceedings as a party. He argued that on the premise of the above
provision, the union has no locus standi in these proceedings. He
maintained that from this logic, it would thus be improper to join the
affected parties to a party that has not been properly cited in the
proceedings.
6. Advocate Nono further submitted that in the present circumstances, the
proper route whole have been for the Applicant union to have been
substituted with the affected employees. He further submitted that it is
unprocedural for an Applicant to apply for substitution from the bar and
that this Court should not allow this approach. Respondent prayed that
both the application for joinder and substitution be dismissed and that
the main claim be dismissed on the ground of lack of locus standi of the
Applicant union.
7. The general rule in application for joinder was outlined in the case of The
Amalgamated Engineering Union vs. Minister of Labour 1949 (3) SA 631 at
637, where the Court had the following to say,
If a party has a direct and substantial interest in the order the court might
make in proceedings, or if such order cannot be sustained or carried into
Page 105 of 361
effect without prejudicing that party, he is a necessary party and should

the joined in the proceedings.
This principle was cited with approval and authority in Nalane & others
vs. Molapo & others LAC (2007-2008) 457.
8. It is without doubt that in casu, the parties who seek to be joined into the
proceeding as co-applicants have a direct and substantial interest in the
matter. These are the dismissed employees on behalf of whom this matter
has been lodged. By virtue of their attributes, they fall within the
requirements for a joinder to be made. An application for joinder, by its
nature, assumes that there is an applicant party to whom those applying
to be joined wish to join as co-applicants or co-defendants, whatever the
case may be.
9. Essentially, in joinder application proceedings, the assumption is that the
main party has locus standi in the proceedings before court. In casu, the
issue of locus standi of the main party to the proceedings, being the
Applicant union, has been placed under challenge. Under the
circumstances, the presumption can no longer stand but must rather be
established before dealing with the issue of joinder of the affected parties.
The logic is that, if it is found that the main party has no locus standi, a
joinder application would not sustain.
10. The principle of locus standi in judicio essentially relates to the right or
legal capacity of a party to sue or be sued. The test in determining this
right or legal capacity was outlined in the case of United Watch &
Diamond (Pty) Ltd vs. Disa Hotels Ltd 1972 (4) SA 409 (C) at 415A. The
Court stated that to establish that one has locus standi in judicio, one
must show,
... that he has an interest in the subject matter of the judgment or order
sufficiently direct and substantial...
11. In casu, the Applicant union does not have a sufficiently direct and
substantial interest in the matter. We say this because the dismissals
have only directly and substantially affected the employees who were
dismissed. The effect on the union, is not of the dismissal itself but rather
of the effect of the dismissal on its members. This is the extent to which
its interest lies in this matter. It is Our view that the nature of the
interest that the Applicant union has, incapacitates it from being an
initiator of these proceedings. The Applicant unions interest does not and
would not entitle it to bring this clam on its own and thus it lacks locus
standi. In view of this said, there is no applicant in this matter and by
necessary implication there is no application before court. Consequently,
there can be no joinder.
12. Our conclusion leads us to the Applicants prayer for the alternative
relief of substitution. In terms of the rules of this Court, all applications
must be in writing and must be served on the party respondents to the
proceedings. Further, such a party/parties must be given sufficient time,
Page 106 of 361
as determined by the rules of the Court, to react thereto in writing (see

Rules 3, 4 & 5 of the Labour Court Rules of 1994). In casu, there is no
such application as Applicant seeks substitution from the bar. If this is
the case, clearly the rules of this court have been breached.
13. In view of this breach, Applicant union has invoked the provisions of
Rule 27 and in particular (1) and (2) thereof, that this Court may condone
a breach of its rules. In Our view, the moment condonation becomes an
issue, it is the responsibility of an Applicant party to satisfy its
requirement, namely the explanation for failure to comply with the rules
and Prospects of success (see Phetang Mpota vs. Standard Lesotho Bank
LAC/CIV/A/06/2008) . In casu, neither of these requirements has been
met as no averments were in that sense. Applicant has simply alleged
lack of prejudice and that it would be in the interest of justice to grant
condonation. Consequently, We decline to condone failure to comply with
the rules and dismiss the application for substitution.
AWARD
following terms:
a) That the both the applications for joinder and substitution are hereby
dismissed;
b) The main claim is dismissed on account of lack of locus standi of the
union in these proceedings; and
T. C. RAMOSEME
Mr. L. MATELA
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. RASEKOAI
ADV. NONO
Page 107 of 361

HELD AT MASERU
LC/40/12

FAWU O.BO. MOTO-MOTO
& 18 OTHERS
APPLICANT
And
ECLAT EVERGOOD TEXTILE
COMPANY (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unfair dismissal for insubordination and for participation in a
strike. Applicant applying for the substitution of Applicant union with the
dismissed employees Respondent not objecting to the substitution. Court
finding merit in the application for substitution and granting same.
Respondent raising a preliminary issue of res judicata. Court also on own
motion raising two preliminary issues lack of jurisdiction over claims of
dismissal for insubordination lack of jurisdiction on account of noncompliance with section 227 (5) r/w (9) of the Labour Code (Amendment) Act 3
of 2000. Court finding that claims are not res judicata further that all claims
fall under section 226 (1). Court dismissing claims on the basis of non
compliance with the provision of section 227 (5) r/w (9). No order as to costs
being made.
1. This dispute involves claims for unfair dismissal for insubordination and
for participation in a strike. The matter was set down for hearing on the
21st March 2013 but was only finalised on the 16th May 2013, with
judgment being deferred for a later date. The background of this matter is
essentially that from the 18 dismissed employees, some were dismissed
for participation in a strike while others were dismissed for misconduct.
Thereafter they lodged a claim with the DDPR in their individual
capacities. In the end the DDPR declined jurisdiction to determine the
matter, leading to the referral of the claims with this Court.
2. On the 21st March 2013, the Court had intimated to the parties that it
intended to raise three preliminary issues relating to the locus standi in
judicio of the Applicant union in this matter; lack of jurisdiction over
claims of dismissal for insubordination; and lack of jurisdiction on
account of non-compliance with section 227 (5) read with (9) of the
Labour Code (Amendment) Act 3 of 2000. Advocate Rasekoai and Mr.
Bohloko, who were appearing for the Applicant Union, had then
Page 108 of 361
requested a postponement to allow them to address the Courts concerns.

The matter was accordingly postponed to the 16th May 2013.
3. On the return day, Applicant Union had filed an application for the
substitution of the Applicant union with the dismissed employees. The
application was unopposed. Having satisfied itself that there was merit in
the application, the Court duly granted it. The effect of granting this
application was that, Applicant now had to address the Court on the two
remaining preliminary points of jurisdiction. In addition to the two,
Respondent had also raised a preliminary point that this matter was res
judicata. Both parties were then given the opportunity to make their
addresses on all the points raised and Our judgment is thus in the
following.
4. Advocate Klass for Respondent submitted that this matter is res judicata
in that it has been decided upon by the DDPR. He submitted that this
being the case, this matter cannot be placed before this Court as a court
of first instance. He stated that rather, Applicant ought to have
approached this court by way of a review of the DDPR award that has
been issued. He submitted that the claims before this Court are the same
claims as those that were referred before the DDPR. He submitted that
Applicants are complaining about the fairness of their dismissals in both
cases. As to the other preliminary points, Advocate Klass submitted that
he aligned himself with the concerns of the Court.
5. In response, Mr. Bohloko for Applicants submitted that this matter is not
res judicata in that in the award, the learned Arbitration simply declined
jurisdiction but did not deal with the merits of the matter. He stated that
the award issued was rightly so, given the then circumstances of the
case. He stated that in that case, the learned Arbitrator had heard the
matter and only discovered that there was an issue of jurisdiction when
he was preparing His arbitral award. He them called both parties to
address Him on the issue of His jurisdiction to determine the claims in
the merits. He thereafter issued an award in terms of which he declined
jurisdiction.
6. For a claim of res Judicata to succeed, there are a number of
requirements that must be met. These requirements were outlined in the
case of Lethoko Sechele and Lehlohonolo Sechele C of A (CIV) No. 6 of 1988
as thus,
...the judgement in the prior suit had to be:
a) With respect to the same subject matter;
b) based on the same ground;
c) between the same parties.
7. According to H. Daniels in Becks Theory and Principles of Pleading in Civil
Actions (6th Ed.) , at p. 164, the above three requirements assume that the
Court before which the proceedings took place, was a Court of competent
Page 109 of 361
jurisdiction over the matter and that the matter was determined by a
judgment which was final in nature. We agree with this suggestion for the
reason that a court lacking jurisdiction over a particular claim cannot
make a final determination, as it lacks such the jurisdiction.
8. In casu, the DDPR had no jurisdiction over this claim and was thus not a
court of competent jurisdiction. Further, the award of the DDPR does not
finalise the matter as the learned Arbitrator merely declined to determine
its merits. This in essence means that parties are at liberty to approach
the appropriate forum for relief. Although, the three requirements for a
plea of res judicata to succeed have been satisfied by Respondent, this
matter cannot be dismissed on account of the absence of these above
assumptions as outlined by H. Daniels in Becks Theory and Principles of
Pleading in Civil Actions (supra).
9. On the issue of the jurisdiction of this Court over claims of dismissal for
insubordination, Mr Bohloko submitted that when the matter was
referred with the DDPR, all Applicants had been joined in the same
referral but with their claims separated. In that case, it was Respondents
defence that all Applicants had been dismissed for participation in a
strike, as the award bears testimony. As a result when the DDPR issued
an award, jurisdiction was generally declined in respect of all Applicants
claims hence why they approached this Court for relief. In reply,
Respondent submitted that it was not accurate that they raised that
defence in respect of all Applicants but some.
10. In terms of section 226 (1) () (i) of the Labour Code (supra), a claim for
unfair dismissal for participation in a strike falls within the exclusive
jurisdiction of the Labour Court for adjudication. In our view, the DDPR
was right in declining jurisdiction over claims that fall under section 226
(1) (i). When Respondent raised a defence under section 226 (1), the
DDPR ceased to have jurisdiction to determine the matter in the merits,
including to determine the validity of the defence raised by Respondent,
as the matter now fell squarely within the exclusive jurisdiction of this
Court.
11. Although Respondent has attempted to deny ever raising this defence
before the DDPR in respect of all the Applicants, We find the version of
Applicant to be more probable. We say this because Applicants
averments are supported by the arbitral award under paragraph 8 where
the leaned Arbitrator stated that Respondent claimed to have dismissed
Applicants for engaging in a strike. We consequently find that this is a
dispute that falls under section 226 (1) of the Labour Code (supra).
However, our stance on the issue of this Courts jurisdiction in respect of
this claim and the rest, will depend on Our determination of the
subsequent preliminary point.
12. On the issue of the jurisdiction of this Court over all claims for noncompliance with the provision of the Labour Code (supra), Mr. Bohloko
Page 110 of 361
submitted that the award issued served the purpose of a certificate or

report of non-resolution. He admitted that though an award and the
certificate or report are two different documents, the award was a clear
indication that the matter had been before the DDPR and has thus
complied with the provisions of the Labour Code (supra).
13. In the case of Lesotho Highlands Development Authority vs. Mantsane
Mohlolo & others LAC/CIV/07/2009, the Court stated that all disputes
that must be resolved by adjudication before this Court, must first be
referred for conciliation before the DDPR. Where an attempt at
conciliation has failed, the conciliator must issue a report indicating that
dispute an attempt to resolve the matter, it remains unresolved. These
legal conclusions are reflected under section 227 (5) of Labour Code
(supra) read with (9) (a).
14. The two above referred sections are couched in the following,
(5) If the dispute is one that should be resolved by adjudication in the
Labour Court, the Director shall appoint a conciliator to attempt to resolve
the dispute by conciliation before the matter is referred to the Labour Court.
(9) If a dispute contemplated in subsection (5) remains unresolved after 30
days from the date of referral
(a) the conciliator shall issue a report that the dispute remains
unresolved;
15. It is clear that a party referring a matter to this Court for adjudication
must be armed with the conciliators report as proof that the provisions of
section 227 (5) read with (9) have been complied with. In the absence of
such a report, there is no evidence that the matter has been conciliated
upon and as such this Court lacks jurisdiction over such a claim. The
provision of section 227 (5) read with (9) are peremptory and must be
complied with to the letter failing which the jurisdiction of this Court will
not have been founded over the referred claims.
16. Our view above finds support in the Labour Appeal Court decision in
Lepolesa & others vs. Sun International of Lesotho (Pty) Ltd t/a Maseru
Sun and Lesotho Sun (Pty) Ltd [2011] LSLAC 4, the Court had the following
to say,
... disputes that are subject to resolution by the Labour Court must first be
referred to the DDPR for settlement before being taken to the Labour Court
for adjudicative resolution (See Lesotho Highland Development Authority v
Mantsane Mohlolo & 10 Others LAC/CIV/ 07/2009). Failure to do so
renders the Labour Court to lack jurisdiction to entertain the matter.
17. In casu, Applicants are armed with an award instead. Sections 227 (5)
and (9) are clear on the requirement and an award is not one of them.
Awards are provided for under section 228E and 228F and they render
the matter final on the issue for determination which determination is
only reviewable before this Court. What makes the Applicants case worse
is the fact that even the award alleged to represent a certificate does not
Page 111 of 361
make reference to an attempt at settlement through the process of

conciliation before the DDPR. Consequently, We find that the provisions
of section 227 (5) and (9) have not been complied with and therefore this
Court lacks jurisdiction over all claims.
AWARD
following terms:
a) That this matter is dismissed for want of jurisdiction; and
THUS DONE AND DATED AT MASERU ON THIS 3rd DAY OF JUNE 2013.
T. C. RAMOSEME
Mr. S. KAO
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
ADV. RASEKOAI
MR. BOHLOKO
ADV. KLASS
FOR RESPONDENT:
Page 112 of 361

HELD AT MASERU
LC/REV/02/2011
A0848/2009

FUTHO HOOHLO
APPLICANT
And
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Applicant failing to attend the hearing despite notification having been duly
made - 2nd Respondent applying for dismissal for want of prosecution Court
granting application and dismissing this review application. Court awarding
costs of suit in favour of 2nd Respondent.
1. This is an application for review of the DDPR arbitral award in referral
A0848/2009. It was set down hearing on this day at 09:00 am. When
Applicant failed to make appearance, 2nd Respondent applied for the
dismissal of the review application for want of prosecution, with costs of
suit. 2nd Respondent submissions were heard and a ruling granting the
application was made in Court. Our full judgment is thus in the following.
2. Advocate Loubser for 2nd Respondent, submitted that this matter was
duly set down with this Court by both parties. However, in spite of this,
Applicant has failed to make appearance. He added that almost an hour
has gone by from the time that this matter was initially set down to
proceed. Notwithstanding, the grace period granted, Applicant has failed
to attend. He prayed for the dismissal of the review application with costs,
for want of prosecution.
3. Advocate Loubser submitted that Applicant is clearly not interested in
pursuing this matter to finality. He further added that, the attitude of
Applicant is unbecoming in a number of respects. Firstly, Applicant was
informed about the date of hearing and has failed to attend. Secondly
assuming he was aware but unable to come for reasons beyond his
control, no communication has been made to inform the Court. He
prayed that the attitude of Applicant in these proceedings, be punished
with costs.
Page 113 of 361
LLR-LB 6 at page 15). It is Our view the conduct of Applicant is clear
indication of his unwillingness to utilise this right. We agree with 2nd
Respondent that if Applicant was serious about this matter, then he
would have taken any necessary measures to ensure that he was
represented on this day. Having failed to do so, and without
communicating the reasons behind such failure, We find it probable that
Applicant never really intended to prosecute the matter.
5. In view of this said above, We dismiss this matter for want of prosecution
and award costs of suit in favour of 2nd Respondent. We are driven into
making an award of costs, by the apparent undesirable attitude of
Applicant towards this matter. We are of the view that he must be
punished with costs to discourage him from further conducting himself in
this fashion. This is also intended to further discourage the similar
behaviour from other potential Applicants. This is an abuse of the
processes of this Court which should not be allowed.
AWARD
a) That LC/REV/02/2011 is hereby dismissed for want of prosecution; and
b) That an order of costs of suit is made in favour of Respondent.
T. C. RAMOSEME
Mrs. L. RAMASHAMOLE
Ms. P. LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
NO ATTENDANCE
ADV. LOUBSER
Page 114 of 361

HELD AT MASERU
LC/28/13

LESOTHO WORKERS UNION
APPLICANT
And
ZINYATHI TRADING (PTY) LTD T/A
JIKELELE SERVICES
THE D.D.P.R
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Urgent applicant for a mandatory interdict to compel the 2nd Respondent to
hear and determine a matter and issue an award expeditiously - dispensing
with its rules and regulations as to the manner of service before the 2nd
Respondent. Matter not being opposed and Court proceeding on the basis of
the unchallenged averments of Applicant. Court finding that it has no
jurisdiction to order the 2nd Respondent to make and issue an award earlier
than the time periods stipulated in by law. Court refusing to grant all prayers
and application being dismissed.
1. This dispute involves a claim for mandatory interdict against the 2nd
Respondent. It was heard on this day and judgment was reserved for a
later date. Although both parties were present, the application was
nonetheless unopposed. In fact, 1st Respondent had pronounced its
deliberate intention not to oppose the matter on the ground that it stood
to benefit from the expeditious finalisation of the main claim referred with
the 2nd Respondent.
2. In this claim, Applicant seeks final order in the following,
1) That 2nd Respondent be ordered to hear and determine referral
A0444/13 as soon as it be heard on or before the 10th May 2013 and
award be released as soon as possible.
2) That the 2nd Respondent be ordered to dispense with its rules adn
regulations as to the manner of service.
3) Granting the Applicant further and or alternate relief.
3. In essence, Applicant is seeking an order for five prayers as thus,
a) That the 2nd Respondent be ordered to hear its case no later than the
10th May 2013;
b) That the 2nd Respondent be ordered to make an award in its case no
later than the 10th May 2013;
Page 115 of 361
c) That the 2nd Respondent be ordered to issue an award as soon as

possible;
d) That 2nd Respondent be ordered to dispense with its rules and
regulations as far as service of process is concerned; and
e) That any further and/or alternative relief as the court may deem fit.
4. Having broken down the remedies sought, We mero muto raised a
preliminary issue in relation to the jurisdiction of this Court in respect of
prayers b) and c) of Our breakdown and requested Applicant to make its
addresses. In raising this issue, We had considered the fact that section
228E (3) of the Labour Code (Amendment) Act 3 of 2000 gives the 2nd
Respondent arbitrators a period of 30 days within which to issue an
award. Further, section 228E (4) thereof, provides for an open extension
of the 30 days period on good cause being shown to the Director of the
2nd Respondent.
5. This in our opinion means that the speed with which an award may be
issued depends among others, on the circumstances of the case, the time
needed to prepare the award as well as the complexities of the issues
raised. We had also considered the fact the process of making an award
requires a certain level of research and analysis, irrespective of whether
the matter being determined has been opposed or not. In view of Our
concerns, Applicant made its addresses after which We declined to make
a ruling on the preliminary point, on the ground that it will be reflected in
the final judgment together with Our decision on the merits of the matter.
Our ruling and the reasons are thus in the following.
Preliminary issues
6. It was submitted on behalf of Applicant this Court has jurisdiction to
order the 2nd Respondent to make and issue an award no later than the
10th May 2013. In support, Mr. Masoebe for Applicant submitted that the
remedy that they sought is provided for under section 228 (1) an (2) of the
Labour Code (Amendment) Act 3 of 2000. These sections read as follows,
(1) Any party to a dispute that has been referred in terms of section 227
may apply to the Labour Court for urgent relief, including interim relief
pending the resolution of a dispute by arbitration.
(2) Notwithstanding the provisions of this Part, if the Labour Court grants
urgent interim relief in terms of subsection (1), the Court shall give
directions on the conduct of the conciliation or, if applicable, the arbitration
of the dispute as may be appropriate.
7. It is Our opinion that the above sections do not vest Us with the
jurisdiction to compel that Learned Arbitrator to make an award in
referral A0444/2013 and issue it no later than the 13th of May 2013.
However, what We do agree on, is that section 228 (1), give us the
authority to make interim court orders. This section and its applicability
is not in dispute and reference to it does not address the issue of whether
Page 116 of 361
We have the authority to order the DDPR to make and issue an award no
later than the 13th May 2013, as Applicant has prayed.
8. Secondly We also agree with Applicant that section 228 (2), gives this
Court the authority to give direction on the conduct of arbitration
proceedings, if applicable. However, the order sought under b) and c) does
not relate to arbitration proceedings but to the point after the arbitration
proceedings have been concluded. At this instant, We wish to comment
that even assuming that this section was applicable beyond arbitration
proceedings, it has a qualifier to effect that if applicable. We maintain
that it is not applicable for the reasons advance in the foregoing. Our
stance thus remains unchallenged that We do not have jurisdiction to
compel the arbitrator to make and issue an award earlier than the times
stipulated under section 228E.
The merits
9. Mr. Masoebe for Applicant submitted that on or around June 2012, an
agency shop agreement was concluded between Applicant union and the
1st Respondent. Thereafter, the said agreement was put into effect as
agency fees were deducted from the employees monthly wages. On or
around March 2013, the 1st Respondent unilaterally stopped making the
said deductions from its employees on the ground that it had been
advised to desist from making such deductions. In reaction to this act,
Applicant union referred a claim with the DDPR to enforce the said
agency shop agreement. The said referral has been set down for hearing
on the 29th May 2013.
10. In support of the application, Mr. Masoebe submitted that since the
time that the deductions were stopped, they have already lost out on two
months subscriptions and that they will lose more if the matter does not
finalised expeditiously. He further submitted that although they have an
alternative remedy of recovering the lost union fees from the concerned
employees, they are worried about the impact of such a recovery upon the
already meagre wages of the 1st Respondent employees. Further, that they
are pressed by the fact that they have been reliably informed that the 1st
Respondent intends to start its retrenchment processes by September
2013.
11. In an application for a final interdict, there are three main
requirements that must be met by an applicant party. These
requirements were laid out in the case of Setlogelo vs. Setlogelo 1914 AD
221 at 227 as follows,
a) The existence of a clear right;
b) The existence reasonable or actual apprehension of harm; and
c) The non-existence of an alternative remedy.
These principles have been accepted and cited with approval in a number
of cases within our jurisdiction (see Moremoholo vs. Moremoholo & others
CIV/APN/135/2010; Monti vs. Commissioner of Customs and Excise &
Page 117 of 361
another CIV/APN/521/2010; Makhutla & another vs. Makhutla & another

C of A CIV/07/2002).
12. In casu, We are satisfied that the former two requirements have been
satisfied in that a clear right has been established to emanate from the
existence of the an agency shop agreement. Secondly, harm has already
been suffered as the Applicant union has missed out on two months
subscriptions and is likely to continue to lose out even more with the
matter remaining pending. However, Applicant has not been able to
discharge last requirement. They have not only failed to do so but have
accepted that they have an alternative remedy which they can employ to
recover the lost subscriptions. This being the case, they have clearly
failed to meet the full requirements of a final mandatory interdict.
13. Assuming that this application was to be granted in terms of the
prayers over which We have jurisdiction, it would not deliver the desired
impact by Applicant. We say this because in issuing a mandatory
interdict against the 2nd Respondent to hear a matter urgently, It must be
given some reasonable time within which to rearrange its affairs in order
to comply with the order of this Court. This Court has ruled in a number
of cases before that a period of 14 days, in circumstances of this nature,
is a reasonable time.
14. It therefore follows that if this order is issued on this day, then it
would only bring the date of hearing forward by just 2 days to the 27th
May 2013. This period would not have much of an impact to address the
pressures that Applicant faces. Clearly, the desire to have the matter
heard no later than the 13th May 2013 will not have been addressed. If
the worry relates to the retrenchments in September, the 2 days period
brought forward would not add much value in comparison to the 19 days
sought. Consequently, this application fails.
AWARD
following terms:
a) The application for a final mandatory interdict is refused; and
T. C. RAMOSEME
Mr. S. KAO
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR 1ST RESPONDENT:
MR. MASOEBE
MR. HORN
Page 118 of 361

HELD AT MASERU
LC/68/10

BOFIHLA MAKHALANE
APPLICANT
And
LETENG DIAMONDS (PTY) LTD
GERALD BOUTING
JOHN HOUGHTON
MAZVIVAMBA MAHARASOA
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
Dispute involving claim committal for contempt of the Order of the Labour
Appeal Court. Respondent claiming costs following the notification of
withdrawal of the matter by Applicant. Applicant applying for recusal of the
learned Deputy President in the matter Court not finding merit in the
application and dismissing it. Applicant arguing that matter has not been
withdrawn further arguing that an award of costs would not be appropriate
in the circumstances. Court finding that the matter has been withdrawn and
ordering costs as prayed by Respondent.
1. This is a dispute involving a claim for committal of the Respondents for
contempt of the Order of the Labour Appeal Court. It was heard on the 7th
March 2013 and judgement was reserved. The background of the matter
is essentially that Applicant obtained an award in his favour before the
DDPR. In terms of the award, he was to be reinstated to his former
position in terms of section 73 (1) of the Labour Code Order 24 of 1992.
The said award was however reversed on review. Applicant then filed an
appeal with the Labour Appeal Court where the award of the DDPR was
reinstated.
2. It is this judgment of the Labour Appeal Court that Applicant sought to
enforce through an order for committal. However, on the16th March 2012,
Applicant wrote a letter the Registrar of this Court, forwarding a copy
thereof to the Respondent, informing her of his intention to withdraw the
matter. In that letter, Applicant had also requested the Registrar to strike
the matter off the roll. Following the withdrawal letter, Respondent had
the matter set down for hearing to request that an order of costs be made
against Applicant.
Page 119 of 361
3. Applicant thereafter filed an application for the recusal of the learned

Deputy President from these proceedings on the ground of bias. This
application was accompanied by an application for the reinstatement of
the withdrawn application for committal. However, there was a condition
on the reinstatement application, to the effect that it would only be moved
before a different presiding judge, other than the learned Deputy
President. On this day both parties made their presentations on both the
application for recusal and an award of costs. Our judgement on the
issues is thus in the following.
Recusal application
4. Mr. Makhalane submitted that he sought the recusal of the learned
Deputy President on the ground of bias. He submitted that that his fear of
biasness stems from the fact that the learned Deputy President made a
decision in LC/16/2012, which in his opinion was contrary to the
judgment of the Court of Appeal in Bofihla Makhalane vs. Leteng
Diamonds (Pty) Ltd C of A (CIV) 14/2010. He argued that the decision of
the Learned President was wrong and that it illustrates bad faith on his
part, as a thoughtful observer. He made reference to the case of Sole vs.
Cullinan NO & others LAC (2000-2004) 572 at 576G-F.
5. Mr. Makhalane further stated that following the judgment in
LC/16/2012, he wrote a letter to the learned Deputy President dated 31st
October 2012, which communication has been ignored by the learned
Deputy President to date. He furthermore stated that his fear is further
elevated by the fact that the learned Deputy President seems to take to
the influence of Respondent in making His Judgments. Reference was
made to the judgment in LC/16/2012 at paragraphs 15 and 16 thereof.
6. In reply, Advocate Woker submitted that all the averments made, do not
evidence biasness on the part of the learned Deputy President in this
matter. He submitted that if indeed the learned Deputy President had
gone against the judgment of the Court of Appeal, then Applicant ought to
have either reviewed or appealed against the judgment of the Court in
LC/16/2012. Further, that the learned Deputy President was not obliged
to respond to a letter by Applicant the moment the matter was finalised.
He stated that in law, once a matter is final, then the presiding judge
becomes functus oficio.
7. Advocate Woker added that the legal requirements in case of recusal were
outlined in R. vs. Manyeli LAC (2007-2008) 377 at 382F, where the Court
had the following to say,
Regard must also be had to the fact that there exists a presumption
against partiality of a judicial officer.
Advocate Woker submitted that this presumption exists because judicial
officers are people who are judges due to their training and integrity and
are subject to a judicial oath.
Page 120 of 361
8. Advocate Woker added that in order to discharge the presumption against

partiality, Applicant must lead evidence to prove his allegations. He
submitted that in law, he who alleges bears the onus of proof and the test
to be applied is a double standard. Reference was made to the case of
Sole vs. Cullinan NO & others (supra) at 587A. He submitted that the
double standard referred to means that there has to be a suspicion of a
reasonable person and that the suspicion entertained must be based on
reasonable grounds. A further reference was made to the case of R. vs.
Manyeli (supra) at 381H- J. He argued that this said the test to be applied
is objective.
9. Advocate Woker submitted that all the augments of Applicant are what he
thinks. In his view Applicant is proposing that this Court adopt a
subjective test contrary to the dictates in the authorities cited above. He
added that in terms of these authorities, and given the standard that is
used, it is irrelevant what Applicants thinks about the learned Deputy
President. He argued that what Applicant thinks cannot preclude a judge
from sitting in any given case. He argued that in fact, a judge has the
duty to sit in any case. Reference was made to the case of Sole vs.
Cullinan NO & others (supra) at page 586G-F. He prayed that this
application be dismissed with costs as it is frivolous and devoid of merit.
In reply, Mr. Makhalane submitted that costs should not be made in this
case as he is enforcing his right to a fair hearing.
10. In determining whether or not to grant an application for recusal
based on bias, the test to be applied is an objective test. Indeed as both
parties have submitted, the elements of the test are to be found in the
case of Sole vs. Cullinan NO & others (supra). At page 586, the Court
quoted with approval the following passage from the case of President of
the Republic of South Africa & others vs. South African Rugby Football
union & others 1999 (4) SA (CC) at 177B-D,
The question is whether a reasonable objective and informed person
would on the correct facts, reasonably apprehend that the judge has not or
will not bring an impartial mind to bear on adjudication of the case, that is,
a mind open to persuasion by the evidence and submissions of counsel.
11. Whereas the test that is to be applied in determining biasness is an
objective one, it is Our view that the test that Applicant seems to rely
upon is a subjective one. Applicants complaint of biasness against the
learned Deputy President is solely based on his subjective perception of
the learned Deputy President in handling LC/16/2012. Clearly, the crux
of Applicants case does not relate to the facts in issue but rather to facts
from another case. This being the case, the test suggested by Applicant is
not only inappropriate but his ground for recusal of the learned Deputy
President is not valid in law.
12. We say this because Applicant has failed to link the facts in casu with
the alleged conduct of the learned Deputy President in LC/16/2012. It is
not clear how the alleged conduct is likely to affect the matter in casu
Page 121 of 361
such that it will blind the learned Deputy President from exercising His
impartiality in casu, and thus discharge the double standard of proof.
While We note and acknowledge the authorities suggested by Respondent
on the requirements in an application for recusal, We further add that
Applicant has not presented any valid evidence of bias in these
proceedings. It is thus Our view that this matter ought to be dismissed on
this ground alone. However, We will proceed to address the Applicants
individual grounds of recusal, which are three pronged in nature.
13. Firstly, Applicant argues that his fear of biasness derives from the fact
that the learned Deputy President ruled against him in LC/16/2012,
contrary to the decision of the Court of Appeal. He says that he considers
this an act of bad faith as a thoughtful observer. While We note and
acknowledge the view of the thoughtful observer, it is Our opinion that
Applicant is using these proceedings to express his feeling of discontent
towards the learned Deputy President in LC/16/2012.
14. If indeed all these above allegations of contravention of the decision of
the Court of Appeal and mala fides on the part of the learned Deputy
President in LC/16/2012 are valid, then there are established procedures
that Applicant must invoke to vindicate his rights. As rightly pointed out
by Respondent, these procedures include either a review or an appeal
with the Labour Appeal Court. It is our view that Applicant is in effect
attempting to have the judgment in LC/16/2012 either reviewed or
appealed against through these proceedings. The mode chosen is not a
proper one and cannot sustain.
15. Secondly, Applicants argues that his fear of biasness stems from the
fact that the learned Deputy President did not reply to his letter in
relation to LC/16/2012. In Our view, the conduct of the learned Deputy
President in not reacting to the said letter, does not in any way suggest
biasness on His part. In fact, Respondent is right that in law, the learned
Deputy President was not obligation to respond to Applicants letter, as
He had become functus officio.
16. The authority of Makhanya vs. Pheko CIV/T/313/2011 is both
informative and authoritative on the principle of functus officio. In that
case, the Court stated that where the Court has made a final ruling on an
issue, then it becomes functus officio and cannot revisit the matter. In
casu, this Court had made a judgment in respect of that matter and was
thus functus officio. This meant that the matter had been finalised and
that the Court could not entertain it any further in any way, including
responding to a letter by Applicant.
17. The third leg of Applicants fear of bias arises from the fact that the
learned Deputy President acknowledged some of the submissions of
Respondent when making his judgment in LC/16/2012. It is not clear
how acknowledgement the submissions of a party could cause one to
apprehend a fear of biasness. In fact, it is Our opinion that failure to
Page 122 of 361
acknowledge submissions of parties could result in the judgment being

subjected to review for ignoring same. It could well be a ground for fear of
apprehension of bias, depending on the circumstances of a case in issue.
18. What makes Applicants case worse is the fact that he has not even
cited any authority to support his argument that acknowledgement of
parties submissions may give rise to an argument for bias. The lack of
merit in this argument clearly fortifies Our view that Applicant is
discontent with the conclusion of the Court in LC/16/2012.
Consequently, this point cannot succeed as well. Respondents had asked
that this application for recusal be dismissed with costs on account of it
being frivolous and devoid of merit. We will address this prayer in dealing
with the application for costs of the withdrawal hereunder.
Application for Costs
19. Advocate Woker submitted that he is asking for costs of the main
claim on account of the matter being vexatious. He submitted that it is
his view that Applicant withdrew this claim because he knew that he had
no prospects of success. He stated that this application was clearly a
waste of time from the onset hence the withdrawal. As a result of a
vexatious matter, Respondent has been caused to incur expenses in order
to avoid being committed to jail and to pay the stated amounts in the
notice of motion.
20. Advocate Woker further argued that with the matter being withdrawn,
all the expenditure has been incurred for nothing thus resulting in
wastage on the part of Respondent. He argued that in such cases, the
Courts have held that such a litigating must pay his opponents costs
upon withdrawal. Reference was made to the case of Likotsi Makhanya vs.
Malefetsane Pheko & others C of A (CIV) 20/2012. He thus prayed that an
award of costs be made against Applicant.
21. In reply, Applicant argued that the matter had not been formally
withdrawn as yet. He stated that in terms Rule 10 of the Rules of this
Court, when a matter has been withdrawn, the Court must dismiss it to
make the withdrawal formal. He maintained that the fact that the Court
has not dismissed the matter, then withdrawal is not final and the matter
is still in subsistence. He stated that in fact, he was withdrawing his
withdrawal from the bar.
22. The fair and equitable determination of this application for costs lies in
Our conclusion in relation to the withdrawal of the matter. This is
essentially because Respondents claim for costs is based on the
withdrawal whereas Applicants defence is based on an argument that
there is no withdrawal. As rightly pointed out by Applicant, matters
withdrawn are dealt with in terms of the Rule 10 of the Rules of this
Court. Rule 10 provides as follows,
Page 123 of 361
if an applicant shall at any stage give written notice to the Registrar of the
withdrawal of his originating application, the Court shall dismiss such
application.
23. It is without doubt that Applicant did write a notice contemplated
under Rule 10. If this is the case, then his notice should and ought to be
recognised as his withdrawal of the matter. In fact, his subsequently
application for reinstatement of the matter and his intention to withdraw
the withdrawal notification from the bar, goes to fortify Our view that the
matter is indeed withdrawn. The withdrawal of the notice of withdrawal is
tantamount to an application for reinstatement of the matter. Applicant
stated in the beginning of the proceedings that he will only move such an
application before a different presiding judge. Given his initial stance, We
cannot comment on the issue of the withdrawal of the notice of
withdrawal.
24. Applicants argument that there is no withdrawal because it has not
been dismissed in terms of Rule 10, cannot sustain. We say this because
Rule 10 does not make a withdrawal valid only if the matter has been
dismissed. Rule 10 simply gives the learned presiding officer direction as
to how to deal with a situation where a matter has been withdrawn.
Applicants argument assumes that where a party wishes to withdraw a
matter, such withdrawal may be refused.
25. It is Our view that the withdrawal of a matter solely depends on the
wishes of the party on whom the choice lies. It is a unilateral act that
does not require the acceptance or rejection by the other party. What is
necessary is that it be communicated in clear and no uncertain terms. In
casu, Applicant has been clear of his intention to withdraw and to have
the matter struck off. This is clear enough not be interpreted to mean
anything other than a withdrawal. Consequently, We find that Applicant
did indeed withdraw LC/68/2010.
26. Respondents submissions for the award of costs have not be
challenged, as Applicant merely pleaded non-withdrawal as his defence to
the claim for costs. We are convinced in the unchallenged submissions of
Respondent that Applicant has been vexatious in these proceedings. This
is clear from his conduct of referring a claim and later withdrawing it,
only to later argue that it has not been withdrawn when he is faced with a
possible award of costs for the withdrawal. It is probable that the
withdrawal was occasioned by his realisation that he had no prospects of
success, as suggested by Respondent.
27. Further, it is also probable that the application for recusal of the
learned Deputy President from the main claim was nothing but an
attempt to divert the attention of the court away from the real issues. The
claim that Applicant was enforcing his right in applying for the recusal of
Learned Deputy President cannot hold as a valid defence. We say this
because Applicant has no valid grounds for same to be granted. He used
Page 124 of 361
this process to question the decision of this Court in another case, thus
abusing its processes.
28. Furthermore, it is also probable that a defence of non-withdrawal and
his attempt to withdraw the withdrawal application were merely intended
to defeat the claim for costs. In our view, the conduct of Applicant has
again been an abuse of the processes of this Court and thus vexatious.
He has indeed caused the Respondent to incur the unnecessary costs
over a matter that He clearly never had the real intention of pursing to
finality. Consequently, We make an award of costs as prayed.
AWARD
following terms:
a) That the application for recusal is dismissed;
b) That LC/68/2010 has been withdrawn;
c) That an award of costs of suit is made against Applicant in respect of
both the recusal application and the main claim;
d) That this order must be complied with within 30 days of receipt herewith.
T. C. RAMOSEME
Mrs. THAKALEKOALA
Mrs. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
IN PERSON
ADV. WOKER
Page 125 of 361

HELD AT MASERU
LC/26/13

HLALELE HLALELE
APPLICANT
And
WOMEN WORKING WORLDWIDE LESOTHO
THE D.D.P.R
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Urgent applicant for a mandatory interdict to compel the 2nd Respondent to
hear and determine referral A0354/2013 on or before the 26 th April 2013, that
the award be released expeditiously and that 1st Respondent be ordered to
comply with it before winding-off the project. Matter proceeding unopposed.
Court raising a preliminary issue on its jurisdiction to grant the prayers
sought. Court finding that It has no jurisdiction and dismissing the application
for want of jurisdiction.
1. This dispute involves a claim for mandatory interdict against the 2nd
Respondent. It was heard on this day in default and judgment was
reserved for a later date. Facts surrounding this application are basically
that Applicant referred a claim for unfair dismissal with the 2nd
Respondent under referral A0444/2013, on the 3rd April 2013. This claim
was set down for hearing on the 7th May 2013. In casu, Applicant seeks a
final order in the following,
1) That 2nd Respondent be ordered to hear and determine referral
A0444/13 as soon as it be heard on or before the 26th April 2013 and
award be released as soon as possible.
2) That the 1st Respondent be ordered to honour the award before winding
off the project.
3) Granting the Applicant further and or alternate relief.
2. In essence, Applicant is seeking an order for four prayers broken down as
follows,
f) That the 2nd Respondent be ordered to hear its case no later that the
26th April 2013;
g) That the 2nd Respondent be ordered to make an award in its case no
later than the 26th April 2013;
h) That the 2nd Respondent be ordered to issue an award as soon as
possible thereafter;
Page 126 of 361
i) That 1st Respondent be ordered to comply with the award of the DDPR
before winding-off the project; and
3. Realising that prayers a) and b) had been overtaken by events, Applicant
withdrew them and remained with prayers c) and d). We then mero muto
raised a preliminary issue in relation to the jurisdiction of this Court in
respect of the remaining prayers of Our breakdown and requested
Applicant to make his addresses. In raising this issue, We had considered
the fact that section 228E (3) of the Labour Code (Amendment) Act 3 of
2000 gives the 2nd Respondent arbitrators a period of 30 days within
which to issue an award.
4. Further, We had section 228E (4) thereof, which provides for an open
extension of the 30 days period on good cause being shown to the
Director of the 2nd Respondent, irrespective of the urgency of the matter.
Furthermore, We had considered the provision of section 228F of the
Labour Code (Amendment) Act (supra) on the right of a party to review the
award of the DDPR within 30 days of being aware about its issuance and
beyond the 30 days on good cause being shown. In Our view, the prayers
sought by Applicant were in effect requesting this Court to vary the
provisions of the law as opposed to simply applying them. Applicant was
given the opportunity to make presentation and Our judgment on the
matter is in the following.
Preliminary issue
5. Applicant submitted that this Court had jurisdiction to grant prayers c)
and d). His argument was premised on section 228 (1) an (2) of the
Labour Code (Amendment) Act 3 of 2000. These sections read as follows,
(1) Any party to a dispute that has been referred in terms of section 227
may apply to the Labour Court for urgent relief, including interim relief
pending the resolution of a dispute by arbitration.
(2) Notwithstanding the provisions of this Part, if the Labour Court grants
urgent interim relief in terms of subsection (1), the Court shall give
directions on the conduct of the conciliation or, if applicable, the arbitration
of the dispute as may be appropriate.
6. It is Our opinion that the above sections do not vest this Court with the
jurisdiction to either direct Learned Arbitrator as to when to issue an
arbitral award or to compel a party to comply with an award in ignorance
of the provision of section 228F. To be specific section 228 (1), on the one
hand, give this Court the authority to make interim court orders. This
section and its applicability is not in dispute and reference to it does not
address the issue of whether the Court has the authority to order the 2nd
Respondent to issue an award on or before a particular date or if It can
compel compliance contrary to the provision of section 228F.
7. On the other hand, section 228 (2), gives this Court the authority to give
direction on the conduct of arbitration proceedings, if applicable.
Page 127 of 361
However, the orders sought under c) and d) do not relate to arbitration

proceedings but to the point after the arbitration proceedings have been
concluded. Consequently, We find that the authorities cited by Applicant
are misplaced and inapplicable to the issues arising herein. It is Our
opinion that Our initial position on the lack of jurisdiction remains
unchallenged and We accordingly find that this Court has no jurisdiction
to grant the prayers sought.
AWARD
following terms:
a) That the application is dismissed for want of jurisdiction; and
T. C. RAMOSEME
Mr. S. KAO
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR 1ST RESPONDENT:
MR. HLALELE
NO APPEARANCE
Page 128 of 361

HELD AT MASERU
LC/REV/06/2013
A0834/2012

MOHAU RASEPHALI
APPLICANT
And
GLOBAL GARMENTS (PTY) LTD
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. Applicant requesting the exclusion
of Advocate Kao from the proceedings Court finding that Advocate Kao was
not authorised to appear in the matter and excluding him Court further
finding that the matter was not opposed and directing that it proceed in
default. Applicant raising four grounds of review Applicant withdrawing one
ground and remaining with three. Review grounds being that the learned
Arbitrator rejected his evidence; that the learned Arbitrator based Her
conclusion on issue not raised by parties; and that the learned Arbitrator
duplicated the process that took place at the plant level. Court finding no merit
on all grounds raised Court refusing the application. No order as to costs
being made.
A0834/2012. It was heard on the 24th April 2013 and judgment was
Applicant referred a claim for unfair dismissal with the DDPR. An award
was entered against Applicant leading to the current review application.
Four grounds of review have been raised by the Applicant in terms of
which he seeks to have the arbitral award reviewed, corrected and set
aside.
2. At the commencement of the proceedings, Applicant raised a preliminary
issue to the effect that Advocate Kao had no locus standi to appear on
behalf of the 1st Respondent in this matter. He submitted that there was
neither an authority to represent nor any documents purporting to
oppose this application that have been filed of record on behalf of 1st
Respondent, by either Advocate Kao or 1st Respondent itself. He thus
prayed that Advocate Kao be excused from the proceedings as he clearly
had not been authorised to defend the matter.
Page 129 of 361
3. Advocate Kao admitted, in response, that he had neither the authority to

represent nor had they filed any opposing papers. He infact requested a
postponement to seek mandate from the 1st Respondent. In the light of
Mr. Kaos admission that he had not as yet been instructed to represent
Respondent in the matter, We ruled in favour of Applicant in that We
refused the application for postponement and excused him from
appearing in the proceedings. In our view, he was not the right party to
seek a postponement on behalf of a party that had not given its authority
to do so. We then directed that the matter proceed in default as 1st
Respondent was clearly not interested in defending it.
4. Pursuant to Our ruling, the proceedings commenced with Applicant
withdrawing one his review grounds. The three remaining grounds are
thus in the following,
That the learned Arbitrator erred in that She,
Rejected the facts in both above subparagraphs 6.1 and 6.2 without being
disproved and disputed,
Based itself on version not contended by either party before it, namely that
i failed to it (her) certified letter, and,
Duplicated the process for establishing M896.00 rate by requiring me a
certified letter.
Our judgment on the matter is thus follows.
5. Applicants 1st ground of review is that the learned Arbitrator committed
an irregularity by rejecting his undisputed and disproved evidence. He
stated that in his evidence, he had testified that there was an agreement
between himself and 1st Respondent for him not to report for work and
that he would be paid despite the fact that he would not be working. He
stated that he had also handed in a copy of the agreement which was
accepted as conclusive of its contents by the learned Arbitrator. Reference
was made to paragraph 5, lines 13 to 16 of the arbitral award. He stated
that in the light of this acceptance of his evidence, the learned Arbitrator
ought to have found his favour. He argued that in finding otherwise, the
learned Arbitrator had clearly rejected this evidence.
6. We have gone through the arbitral award and in particular the portion
referred to. Upon inspection, We have noted that the portion that
Applicant is referring to, relates to the learned Arbitrators summary of
evidence and not Her finding in the matter. As a result, it cannot be
accurate in paragraph 7 of the arbitral award, that the learned Arbitrator
was in fact accepting the said evidence as conclusive of entitlement of
Applicant to his wages claim. Further, having captured this evidence in
the summary, it did not necessarily follow that judgment would be
entered in favour of Applicant more so given that the matter was opposed.
7. It is trite that one making a claim against the other has the duty to satisfy
the Court that he is entitled to that claim (see Pillay vs Krishna 1946 AD
946 at 951). As a result, the fact that judgement entered was against
Page 130 of 361
Applicant, does not mean that his evidence was rejected but rather that
he had failed to satisfy the learned Arbitrator that he was entitled to his
claim for unpaid wages. The Applicants claim of irregularity is based on
an assumption that his evidence was rejected and thus too feeble to lead
this Court to conclude that an irregularity exists on the part of the
learned Arbitrator. Consequently this ground of review fails.
8. In amplification of his 2nd ground of review, Applicant submitted that it
was wrong for the learned Arbitrator to have relied on the absence of the
certificate of service when it was not the defence of the 1st Respondent. He
stated that 1st Respondent claim was simply that Applicant was not
underpaid as he was a trainee with less than 6 months in employment. In
his opinion, it was wrong for the leaned Arbitrator to have based her
decision on a defence not raised by 1st Respondent, it being the absence
of the certificate of service. In support of this argument, reference was
drawn to the case of Mathabelo Mbangamthi vs. Puleng SesingMbangamthi C of A (CIV) 06/2005. The attention of the Court was further
drawn to paragraph 7, lines 10 to 12 of the arbitral award.
9. We have gone through the stated portion of the arbitral award which read
as thus,
The applicant testified that he was a certified machine operator and as
such was supposed to be paid M896.00 but he did not produce any
certification of this nature to the tribunal, he just made an averment.
10. Our understanding of the above extract is that the Applicants claim
was dismissed for a simple reason that he just made an averment without
any proof to back it up with. Applicants case was that he was entitled to
be paid at the rate of M896.00 because he was a certified machine
operator with a certificate to that effect. The issue of the presence of the
certificate was raised by Applicant and also formed the basis of his claim.
This being that case, it is Our strong view that the learned Arbitrator had
to comment on the issue in making Her finding, whether for or against
Applicant. If She had not considered this issue, She might have run the
risk of ignoring facts relevant to the claim before Her and thus
committing a gross irregularity (See Lesotho Electricity Corporation vs.
Ramoqopo and others LAC/REV/121/2005) .
11. In respect of his 3rd ground of review, Applicant submitted that at the
plant level, he had handed over his certificate of service to the 1st
Respondent as proof that he was a certified machine operator and thus
entitled to the pay rate of M896.00. He stated that the certificate was
rejected by 1st Respondent who then underpaid him. According to
Applicant, by requiring him to tender that certificate in proof of his claim,
the learned Arbitrator duplicated the process of establishing the rate of
M896.00, which he claimed. He argued that in so doing, the learned
Arbitrator committed a gross irregularity. In his view, all that the learned
Arbitrator had to do was to determine if the process of underpaying him
was right or not.
Page 131 of 361
12. From the submissions of Applicant on this point, he seems to harbour

under the impression that all trade disputes, including his current claims
of underpayments and unpaid wages are brought on review before the
DDPR. This is not accurate as the only claims that are subject to review
before the DDPR are unfair dismissal claims as far as the procedure
adopted in dismissing an employee is concerned. As a result, as far as
other claims are concerned, they are heard before the DDPR as the forum
of first instance. This in essence means that all other claims, including
Applicants claims and except the procedural fairness of a dismissal, are
heard and determined on their substance and not procedure contrary to
Applicants suggestion.
13. In view of the above background, it is Our opinion that by requiring
Applicant to produce the certificate of competence as a machine operator,
the learned Arbitrator was acting well within the bounds of Her authority.
In terms of section 25 (3) of the Labour Code Conciliation and Arbitration
Guidelines of 2004, the proceedings before the DDPR are by nature
inquisitorial. This in essence gives the learned Arbitrator the right to
seeks clarity from both parties or to require certain information or
documents to aid in making a fair and equitable determination. This is
irrespective of whether the same thing may have been done at the plant
level where the dispute arose or not. Consequently, the learned Arbitrator
cannot at any point be validly said to duplicate the plant level
proceedings. We therefore find no merit in this ground.
AWARD
following terms:
and
T. C. RAMOSEME
Ms. P. LEBITSA
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
IN PERSON
NO APPEARANCE
Page 132 of 361

HELD AT MASERU
LC/13/12

MANAPO MAISA & 142 OTHERS
APPLICANT
And
NIEN HSING INTERNATIONAL (PTY) LTD
RESPONDENT
JUDGMENT
Claims for discrimination and unfair dismissal for participation in a strike.
Respondent filing its answer out of time together with an application for
condonation Court granting condonation and admitting Respondent answer.
Respondent raising three preliminary points of law and withdrawing two
Respondent contesting jurisdiction of this Court over claim Respondent
arguing that claim arises from a settlement agreement - Court not finding merit
on argument and dismissing preliminary point. Court raising preliminary issue
on own motion Courts jurisdiction over a claim not conciliated upon. Parties
conceding to lack of jurisdiction and discrimination claim being withdrawn.
Applicant claiming not to have engaged in a strike further that their union
was not involved prior to their dismissal - Court finding that Applicants were
not only on a strike but an unlawful strike further that the union was
involved in all steps. Court dismissing the matter and no order as to costs
being made.
1. This dispute involves claims for discrimination and unfair dismissal for
participation in a strike. The matter heard on over a series of dates and
finalised on the 25th March 2013, with judgment being deferred for a later
date. The background of this matter is essentially that originating
application was served upon the Respondent on the 2nd April 2012.
Realising that they had failed to file their answer within the stipulated
time periods, Respondent applied for condonation for the late filing of its
answer, which application was not opposed. In fact, not only was the
application unopposed, parties had also agreed that the application be
granted. Notwithstanding the parties agreement for automatic granting,
We having satisfied ourselves of the merit in the application granted it
and admitted Respondents answer.
2. In its answer, Respondent had raised three preliminary points of law in
terms of which it sought the dismissal of the Applicants claim. However,
two were withdrawn leaving only one couched in the following,
Page 133 of 361
The Honourable Court lack jurisdiction to entertain the matter as the

dismissal was as a consequence of an agreement that was reached
between management of Respondent Company and Applicants trade
unions.
Both parties made their submissions and the preliminary point was
dismissed. The submissions of parties and reason for the ruling are in the
following.
3. It was submitted by Advocate Kao, on behalf of Respondent that
Applicants were dismissed from employment by Respondent. Subsequent
thereto, an agreement was reached between the Applicants unions
namely FAWU and LECAWU to the effect that out of the total number of
all dismissed employees, only 130 would be reinstated. It was argued that
this meant that the rest would remain dismissed. The agreement forms
part of the record as annexure A to the Applicants originating
application. It was argued that based on the agreement, this Court had
no jurisdiction over this claim as it been rendered res judicata by the
agreement. Reference was made to cases of CGM vs. DDPR and another
LC/REV/88/2006 and LNFOD vs. Mojalefa Mabula LAC/A/07/2010.
4. In response, Advocate Rasekoai for Applicants submitted that the two
authorities are distinct from the case at hand in that Applicants are
neither attempting to enforce the settlement agreement nor to challenge
it. It was argued that this Court would only be divested with the
jurisdiction to entertain this claim if Applicants were part of the
settlement agreement and they were attempting to enforce it. Advocate
Rasekoai argued that in casu, Applicants are not enforcing the agreement
as they were not part of it, but are rather enforcing their right not be
unfairly dismissed on the ground of participation in a strike.
5. Having considered these above submissions, We came to the conclusion
that this Court had jurisdiction over this claim. In Our view, the
agreement concluded between the trade unions concerned and the
Respondent was in relation to those employees who were reinstated back
to work. We had considered the simple reading of the settlement
agreement which bears no reference to the Applicants. It only provides as
far as those who were reinstated are concerned and as such it is only
binding upon them alone. Consequently, the matter is not res judicata.
6. We are in agreement with Applicants that the claim before Court is not
about the settlement agreement but rather arises out of the settlement
agreement reached between the Respondent and the two unions.
Consequently, the authorities cited by Respondent are not applicable in
this matter as they concern a situation involving the enforcement of
settlement agreements.
7. Before We proceed to deal with the evidence of the parties in the main
claim, We wish to highlight two major developments that occurred in
Page 134 of 361
these proceedings after all evidence had been led. Firstly, there are 143
Applicants in this matter and from them only 2 Applicants testified.
Parties agreed that the remaining Applicants would file affidavits
confirming the evidence of the 2 Applicants as far as it related to them.
This proposition was accepted by the Court and parties duly complied.
Secondly, the Court noted that the claim for discrimination had not
complied with the provision of section 227 (5) of the Labour Code
(Amendment) Act 3 of 2000, in that it had not been conciliated upon. The
implication of this was that this Court had no jurisdiction to entertain
that claim. As a result both parties were called in to address the Court on
this issue.
8. Before Court, the parties informed Us that they had agreed on the
withdrawal of the claim for discrimination on the ground that they had
also realised that it had not complied with the said section. They then by
agreement requested the Court to disregard all evidence and submissions
concerned with the claim for discrimination and to concentrate only on
the evidence relating to the dismissal for participation in a strike. It is on
this basis that Our judgment is in the following.
FACTS AND EVIDENCE
Respondents case
9. 1st witness was Seabata Matela, the Human Resources Manager at the
Respondent Company. He stated that on the morning and again on
evening of the 24th November 2011, his office received reports that some
employees in the packing and washing departments were refusing to
work. Upon inquiry, they met with the Shop Stewards who told them that
the employees were on a work stoppage, because they wanted a wage
increment. They then advised the shop stewards to meet with the
employees to elect a team of representatives who would discuss their
demand with their employer while they continued to work.
10. However, the employees, refused to work and this resulted in the
issuance of their 1st ultimatum by Respondent. Notwithstanding the
ultimatum, they continued with their stoppage of work, the consequence
of which was another ultimatum, about 30 minutes later. In spite of the
2nd ultimatum, they persisted with their stoppage of work. A third
ultimatum was thus issued another 30 minutes later, followed by their
dismissals. 3 days after their dismissals, the Union officials approached
them for negotiations with the view to resolve the issue of the dismissals.
11. 2nd witness was Daniel Bo, and he is part of management of
Respondent. His account of the incidents that led to the dismissal of
Applicants was similar to the narration given by 1st Witness. He testified
that he was part of the team that met with the shop stewards when the
incidents started up to the dismissals of Applicants. He stated that he
was also part of the negotiations with the Union after the dismissals. He
added that Applicants were fairly dismissed as they were on an unlawful
Page 135 of 361
strike. He further stated that their Union was involved in all the processes
that led to their dismissals.
Applicants case
12. 1st Witness was Tanki Sepamo, who is one of the Applicants and a
shop steward. He testified that on the day in issue, the employees of
Respondent in both the washing and packing departments, including
himself, downed tools. The purpose was to talk to their employer about
their wage increment. When the employees down tools, he left with his
fellow shop stewards to meet with management to communicate the
desire of the employees. However, in reaction to their work stoppage, the
Respondent issued an ultimatum. After the 1st ultimatum, all employees
resumed their duties. Witness later changed to testify that, After the 1st
ultimatum, the employees did not resume duty as they continued with
their work stoppage. Witness further stated that, it was only after the 2nd
ultimatum had been issued that the employees resumed their duties up
to their lunch break.
13. Furthermore, witness testified that, after lunch all employees went
back to their departments but did not resume work. The Respondent then
reacted by issuing a 3rd ultimatum which was followed by their
dismissals. When asked where the employees were when the last
ultimatum was issued, witness then changed to say they were working
but that they only stopped when the 3rd ultimatum was issued. He stated
that thereafter all the dismissed employees were told to leave the firm. He
testified that this happened during both the day and night shifts. He
stated that they were not on strike and that the union was not involved
before they were dismissed. He prayed that the Court find their
dismissals to have been unfair.
14. The 2nd witness was Sam Mokhele, the union organiser. He testified
that he received a report that there was a problem about work stoppage
at the Respondent firm. As the Union, they went to meet with the
Respondent management to inquire about the situation. They were told
that the dismissed employees had stopped working because they wanted
the Respondent to increase their wages. He stated that prior to the
dismissals of the Applicants, the Union had not been involved in the
matter. They then attempted to negotiate with Respondent about the
reinstatement of all the dismissed employees. However, only a portion
was reinstated in the end. He stated that the Applicants were not on
strike but were rather on a work stoppage.
15. 3rd witness was Manapo Maisa. She testified that prior to the date in
issue, they as employees had written to the Respondent requesting a
forum to negotiate their wages. During cross examination, witness sated
that this letter was written by their union, Factory Workers Union. She
stated that by its conduct, the Union had initiated the work stoppage and
that it was fully aware about the events that took place. She stated that
when Respondent did not reply to their letter, they then resolved to stop
Page 136 of 361
working on the day in question. Respondents reaction was a 1st

ultimatum. When they did not react to the 1st ultimatum, a 2nd one was
issued.
16. It was only after the 2nd ultimatum that they resumed their duties up
to their lunch time. After lunch, they all came back to their workstations
but did not resume their duties with the intention to make the
Respondent management to change its position to meet them. The
Respondent then issued a third ultimatum which was later followed by
their dismissals. She stated that under normal circumstances, before the
ultimatums are issued, their shop stewards are usually called in to
intervene. She stated further that they were not on strike but rather on a
work stoppage and prayed that their dismissals be declared as unfair and
that they be reinstated to their work positions.
ANALYSIS
17. In essence, it is the Applicants case, on the one hand, that they did
not engage in a strike action and that even assuming that they did, the
Respondent did not involve their union in the matter before resolving to
dismiss them. On the other hand, it is the Respondents case that
Applicants were on an unlawful strike and that their union was involved
in all steps leading to their dismissal. In view of this highlight, We shall
not proceed to deal with the first issue of whether or not Applicants were
on strike.
18. The authority in Factory Workers Union vs. TZICC LC/20/2004
provides the legal definition of a strike. In defining a strike, this authority
echoes the provision of section 3 of the Labour Code Order 24 of 1992. In
terms of the said section a strike is defined as follows,
Strike means the act of any number of employees who are or have been in
the employment of the same employer or of different employers, done in
contemplation of a trade dispute:
(a) In discontinuing that employment whether wholly of partially;
(b) In refusing or failing after any such discontinuance to resume or return
to their employment;...
Such act being due to any combination, agreement, common understanding
or concerted action, whether express or implied, made or entered into by
any employees with intent to: (i) Compel or induce any such employer to agree to terms and conditions of
employment or comply with any demands made by such or any other
employees ...
19. From the above extract of the law, the argument that Applicants were
not on strike on the day in question does not hold water. It is clear from
all the evidence adduced that the Applicants had stopped work on the day
in issue because they wanted to compel their employer to come and
negotiate their wage increment. Both Matsela and Bo have testified that
they received reports that Applicants had downed tools with the intention
Page 137 of 361
to negotiate wage increment with Respondent management. This has

been corroborated by the evidence of Sepamo who testified that he was
part of those who informed the management about the cause of the work
stoppage, it being to negotiate a wage increment. He also added that he
was part of the employees who had downed tools.
20. The evidence of Maisa has further reinforced the position in that she
did not only corroborate the evidence on the intention behind the work
stoppage, but went to say that a letter had been written requesting a
forum for such negations. She stated that they stopped work because the
employer was not taking heed to their request. Essentially the conduct of
Applicants was intended to compel the employer to concede to their
demands. In law that conduct amounted to a strike as it is consistent
with the legal definition of a strike under section 3 of the Labour Code
Order (supra), as highlighted above. Given the claim of Applicants that
they were not on strike, it follows that if the Court finds that they
participated in a strike, then it was an unlawful strike.
21. We now turn to deal with the second issue about the involvement of
the union. In terms of Code 18 (1) (d) of the Labour Code (Codes of Good
Practice) Notice of 2003, before an employer decides on the cause of action
to take against striking employees, such must first be communicated to
the union of the concerned employee. This Code provides as follows,
(c) ... Prior to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action it intends to
adopt.
22. According to the evidence of both parties it is clear that the Union was
involved in throughout the incidents up to the dismissals of Applicants.
From the evidence of both Matsela and Bo, shop stewards were involved
with the view to attempt to resolve the matter at its early stages.
Respondent witnesses have testified that they sought the intervention of
the shop stewards before issuing their 1st ultimatum. However, this
attempt failed as the employees, continued with their work stoppage.
Further, the evidence of Sepamo confirms this as he has testified to the
effect that he was part of the striking employees.
23. Sepamo had further stated that he was part of the team of shop
stewards who communicated to the Respondent management that the
stoppage was a result of the desire of the employees to negotiate wage
increment with their employer. The evidence of Maisa, further affirms the
involvement of the Union in that she testified that the stoppage followed a
written request from the Union for a forum to negotiate the wage
increment. She also made concession to the effect that the Union was
fully conscious of all the events that took place on that day.
24. Although Sam Mokhele who is the organiser in the Union claimed no
knowledge of all the events, this cannot be taken to mean that the Union
was not involved at all. It may well be that Mr. Mokhele was not aware
Page 138 of 361
but his unawareness does not mean that the rest of the members of the
Union were neither aware nor that they did not take part. We say this
because not only the employer has claimed its involvement but also the
two Applicants who testified in these proceedings. Consequently, We find
that the Union, at least through its officials namely the shop stewards,
was involved in the events leading to the dismissals of Applicants. It was
aware about all the ultimatums issued as well as the ultimate intentions
of the Respondent about the striking employees.
25. Although much evidence led touches on the issue of ultimatums
issued by Respondent, We decline to pronounce Ourselves over the issue
for the reason that it is the not the Applicants case. We accordingly find
that the dismissal of Applicants were fair.
AWARD
following terms:
a) That the dismissal of Applicants was fair;
b) That the Applicants claims are dismissed; and
THUS DONE AND DATED AT MASERU ON THIS 3rd DAY OF JUNE 2013.
T. C. RAMOSEME
Miss P. LEBITSA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. RASEKOAI
ADV. KAO
Page 139 of 361

HELD AT MASERU
LC/25/12

MAPABALLO MOKUOANE
APPLICANT
And
CARE LESOTHO
RESPONDENT
JUDGMENT
A claim for a unfair dismissal owing to the retrenchment of Applicant.
Respondent raising a preliminary point of preclusion to bring a claim by
Applicant. Court further raising a point of jurisdiction over the matter, on own
motion. Court finding that Applicant is precluded from bringing this claim.
Court further finding that it has no jurisdiction over Applicants claim. No order
as to costs being made.
1. This is a claim for unfair dismissal owing to the retrenchment of
Applicant. It was heard on this day and judgment was reserved. The
background of the matter is essentially that Applicant concluded a
settlement agreement with Respondent in terms of which his contract of
employment was terminated and certain monies were paid to her in full
and final settlement of the matter. It was a term of the contract that both
parties were barred from instituting any proceedings in respect of the
issues settlement by the conclusion of the said agreement.
2. Subsequent thereto, Applicant referred the current claim with this Court
and claimed to have been unfairly dismissed. Respondent then raised a
preliminary point that Applicant was barred from instituting these
proceedings by virtue of the agreement. The Court also mero muto raised
the issue of its jurisdiction over the claim on the ground that the matter
had been settled. We were also of the view that bringing this claim
contrary to the settlement agreement, was tantamount to disputing the
same agreement, which this Court also lacked jurisdiction to entertain.
Both parties were given the opportunity to make their addresses and Our
judgment is thus in the following.
3. Advocate Malebanye for Respondent submitted that this Court has no
jurisdiction over the Applicants claim in that the matter was finalised
through settlement. He referred the Court to annexure c to Respondent
answer. He submitted that bringing this claims amounts to disputing the
Page 140 of 361
terms of the agreement. He added that the settlement agreement finalised

the matter and Applicant is disputing same. He further submitted that in
terms of the authority in Muyanja & others v Labour Commissioner o.b.o
Samuel Mokhethi C of A (CIV) 40/2011, all disputes against settlement
agreements are not adjudicable before this Court as it lacks such
jurisdiction.
4. Advocate Malebanye further submitted that according to the terms of the
said agreement, and in particular clause 9 thereof, all parties are barred
from instituting proceedings in respect of issues settled upon. He added
that a settlement agreement is a binding compromise between parties,
whose legality does not depend on there being a prior cause of action or
the existence of a legal right pre-existing said settlement. He made
reference to the authority in Hamilton v Van Zyl 1983 (4) SA 379 (ECD). He
concluded by adding that the settlement agreement concluded still stands
and for as long as it does its terms, particularly clause 9, operate against
Applicant. He prayed for the dismissal of this matter with costs. He added
that an award of costs was appropriate in the circumstances, in that
Applicant had strongly opposed the matter thus causing Respondent to
incur further costs.
5. Advocate Rafoneke submitted that Applicant is not disputing the
settlement agreement. He stated that Applicant is merely enforcing her
rights that flow from the provisions of the Labour Code against an unfair
dismissal. He stated that Applicant is challenging the substantive element
of the retrenchment process and not the settlement agreement. He argued
that on these bases, the authority in Muyanja & others v Labour
Commissioner o.b.o Samuel Mokhethi (supra), is inapplicable in her case.
He added that the above authority deals with settlement agreements
concluded before the DDPR whereas the settlement agreement in issue
was concluded outside the DDPR.
6. Advocate Rafoneke further submitted that even this so called settlement
agreement is not so much an agreement, but an account of what took
place in the pre-retrenchment consultative negotiations, as contemplated
by the law. Advocate Rafoneke further submitted that the fact that a
settlement agreement was concluded, does not in any way preclude
Applicant from instituting these proceedings. He added that the Court is
bound in law to hear evidence to establish circumstances behind the
settlement agreement before concluding that it acts as a bar from the
institution of further proceedings.
7. Advocate Rafoneke made reference to the case of Nokoane Mokhatla v
Lesotho Brewing Company LC/REV/65/2010 in support of the above
argument. He prayed that this matter proceed into the merits so that
Applicant may lead evidence to establish to circumstances that led to the
conclusion of the settlement agreement. He added that they will show
through evidence that the agreement was induced by misrepresentation,
in that Respondent had informed Applicant that it had no funds.
Page 141 of 361
Advocate Rafokene argued in conclusion that the point about Applicant

being excluded from instituting these proceedings, is not properly raised
as a preliminary point. He added that it ought to have been raised as a
defence to Applicants claim. He concluded by opposing an award of
costs.
8. In reply, Advocate Malebanye submitted that while the facts in Muyanja &
others v Labour Commissioner o.b.o Samuel Mokhethi (supra) may be
dissimilar with the facts in casu, the principle enunciated therein was
equally applicable to the case in casu. He stated that in the said authority
no distinction is made in relation to the forum in which the settlement
agreement is concluded. He further submitted that, although Advocate
Rafoneke claims that Applicant is not disputing the settlement
agreement, the fact that he intends to lead evidence to prove that the
agreement was induced by misrepresentation proves contrary to his
suggestion.
9. It was added that to argue that Applicant is not disputing the settlement
agreement but merely seeks to enforce her rights, is tantamount to
requesting this Court to ignore the very existence of the settlement
agreement. It was further submitted that the Nokoane Mokhatla v Lesotho
Brewing Company (supra) is both distinguishable and inapplicable in
casu. He added that, in casu there is an agreement about the termination
of the employment relationship, which factor was no-existent in that case.
10. As both the pleadings and submissions of parties reflect, it is not
disputed that a settlement agreement was reached in respect of the
termination of the employment of Applicant. Our law is clear in respect of
disputes resolved in this fashion. In Ford v Austen Safe Co. (Pty) Ltd
(1993) 14 ILJ 751, the Court had the following to say with regard to
settlement agreements,
The settlement agreement constitutes an extra-judicial compromise of the
respective claims of the parties... Such a compromise has the effect of res
judicata...
11. The principle in Ford v Austen Safe Co. (Pty) Ltd (supra) has been
accepted and interpreted by Our Courts to mean that once a settlement
has been reached, it puts an end to the matter (see CGM Garments v
DDPR & another LC/REV88/2006). This principle was approved in the
Court of Appeal decision in Muyanja & others v Labour Commissioner
o.b.o Samuel Mokhethi (supra), wherein the Court also extended the
application of the principle to outs the jurisdiction of the Labour Court in
respect of matters resolved by settlement.
12. From the authorities in Ford v Austen Safe Co. (Pty) Ltd (supra) and
Muyanja & others v Labour Commissioner o.b.o Samuel Mokhethi (supra),
Our understanding is that for as long as the settlement is in its
subsistence, this Court would have no jurisdiction to entertain a claim in
respect of issues resolved by settlement, unless the said settlement
Page 142 of 361
agreement has been vitiated. It is therefore Our attitude that any attempt
by this Court to resolve issues that have been resolved by the said
agreement, such amounts to a disguised attempt to dispute the terms of
the settlement agreement.
13. In is an established principle of law that this Court lacks the
jurisdiction to entertain disputed settlements. Our view finds support in
Muyanja & others v Labour Commissioner o.b.o Samuel Mokhethi (supra),
where the Court stated as thus,
[7] Now, the material sections insofar as the present dispute is concerned
are undoubtedly sections 226 (2) and 228 F of the Labour Code
(Amendment) Act 2000..... [8] It is apparent, as it seems to me, that none of
the foregoing sections gives either the DDPR or the Labour Court jurisdiction
to determine disputed settlement agreements, as opposed to awards.
14. Whereas, Applicant argues that the above authority is inapplicable to
the case in casu, We hold a different opinion for the obvious reason that,
the Court of Appeal has stated in no uncertain terms that neither this
Court nor the DDPR have jurisdiction to deal with disputed agreements.
In Our view, the authority is applicable at least to this extend. In fact, We
agree with Advocate Malebanye that the principle enunciated in the said
authority is fully applicable as it does not make any distinction in respect
of where the settlement agreement has been concluded, for purposes of
the jurisdiction of this Court.
15. It cannot be accurate that Applicant is not disputing the settlement
agreement but rather enforcing her rights that flow from the provisions of
the law. In terms of the settlement agreement, a compromise was reached
in respect of the rights that Applicant purports to be enforcing, the result
of which was the mutual termination of her contract of employment with
Respondent. In essence, that claim that Applicant is attempting to
enforce was dealt with to finality through the said settlement agreement.
16. Applicants reference to the authority in Nokoane Mokhatla v Lesotho
Brewing Company (supra) and the supporting submissions do not support
her case in two major respects. Firstly, the authority is inapplicable in
that there was no settlement agreement, whereas there is one in casu.
Secondly, they fortify Our attitude that Applicant is attempting to dispute
the settlement agreement through these proceedings. Clearly, if Applicant
is asking the Court to allow her to lead evidence that will expose the
circumstances under which the settlement agreement was reached, she
evidently seeks to challenge same. The arguments raised there seem to
imply that the contract was contra bonos mores or unlawful.
17. On the second preliminary point, a challenge has been placed
regarding its competence. We find it apposite to set the record straight on
this issue. A point of law becomes preliminary if, among others, the
authority to deal with merits of the matter depends on it being addressed
first. In Our view, the point raised by Respondent qualifies as a
Page 143 of 361
preliminary point for the reason that its determination ascertains whether
or not this Court will proceed to deal with the merits of the matter.
Consequently, the Applicants argument does not hold water.
18. In Our view, the fact that the existence of the settlement agreement is
acknowledged by both parties brings its provisions into the picture.
Clause 9 of the settlement agreement, as rightly stated by Advocate
Malebanye, clearly precludes Applicant from instituting any proceedings
against Respondent in respect of issues resolved by the said agreement.
The issue of termination of the employment of Applicant has been
resolved through the said settlement agreement. Essentially, clause 9 of
the settlement agreement precludes Applicant from instituting the
current proceedings.
19. As Suggested by Advocate Malebanye, Applicants submissions seem
to suggest to the Court to ignore the existence of the settlement
agreement. Applicant is in effect asking this Court to make a conclusion
that she is not barred or precluded from instituting these proceedings.
This is a matter that both parties agreed upon in terms of the settlement
agreement. It would thus be erroneous for this Court to ignore same,
particularly when the said settlement agreement has not been set aside.
For this Court to attend to the school of thought advocated by Applicant,
that would be tantamount to nullifying the settlement agreement, which
jurisdictions We have already indicated that this Court lacks.
20. It is Our view that each one of the preliminary the points raised is
sufficient to warrant the dismissal of the Applicants claim. Consequently,
We find that this Court has no jurisdiction to entertain this matter as it
has been disposed of by agreement and that Applicant is precluded from
instituting the current proceeding by clause 9 of same.
21. On the issue of costs, it is Our view that costs are awarded in the most
extreme circumstances where the Court finds that a party has abused its
processes and to the prejudice of the other party. Advocate Malebanye
argued that by strongly opposing the preliminary point, Applicant has
occasioned costs on the part of Respondent. Essentially Advocate
Malebanye is requesting that the costs should follow the event, so that if
Respondent wins on the points raised, then an award of costs should be
made against Applicant.
22. This Court is a court of equity and fairness and an award of costs
cannot be made solely on the basis of who appears victorious in a matter.
As early indicated, an award of costs is made in extreme circumstances
because an award of costs is not intended to bar or discourage parties
from attempting to enforce their rights. Circumstances contemplated as
extreme may include where parties have brought or defended frivolous
claims or where parties have engaged in vexatious conduct during the
proceedings. We do not find the circumstances of the present matter to
Page 144 of 361
qualify as being extreme. Consequently, We decline to make an award of

costs.
AWARD
We therefore make an award in the following terms:
a) That this matter is dismissed; and
THUS DONE AND DATED AT MASERU ON THIS 12th DAY OF AUGUST
2013.
T. C. RAMOSEME
Mr. M. MOSEHLE
Mrs. M. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. RAFONEKE
ADV. MALEBANYE
Page 145 of 361

HELD AT MASERU
LC/REV/09/2013
A0111/2010

MOEKETSI MOROKA
APPLICANT
And
FRASERS LESOTHO (PTY) LTD
THE ARBITRATOR (MR. KALAKE) DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. Applicant having raised only
ground of review. 1st Respondent requesting postponement of the matter
Court refusing to grant postponement 1st Respondent having not filed an
intention to oppose matter proceedings unopposed. Court not finding merit in
Applicants claim Court dismissing the review application. No order as to
costs being made.
A0111/2010. It was heard on the 27th August 2013 and judgment was
reserved for a later date. Only one ground of review was raised, in terms
of which Applicant sought the review, correction and/or setting aside of
the arbitral award of the 2nd Respondent.
2. The facts surrounding this matter are basically that, Applicant was an
employee of the 1st Respondent until his dismissal on the 2nd December
2009. At the time that Applicant was dismissed from employment, the 1st
Respondent business was owned by Metcash Africa Limited. Subsequent
to his dismissal, Applicant then referred a claim for unfair dismissal with
the 2nd Respondent, sometime in February of 2010.
3. The matter was conciliated upon in terms of section 227 (4) of Labour
Code Amendment Act 3 of 2000 and conciliation having failed, it
proceeded into arbitration. At the commencement of the arbitration
proceedings, 1st Respondent raised a preliminary point arguing that it
was the wrong party to be sued. In motivation, it had been argued that,
on or around the 2nd November 2010, Metcash Africa Limited sold 1st
Respondent business as a going concern to Moosa Cash and Carry.
Further that it was a material term of the sale that all liabilities of 1st
Respondent business while under the ownership of Metcash would
Page 146 of 361
remain with Metcash. It was 1st Respondents case that Applicant having
been dismissed before the sale, his claim laid with Met cash.
4. Applicants argument was that the mere fact that 1st Respondent
business was sold as a going concern, meant that it was still liable for the
debts of its predecessor. It was argued that this argument found support
in the agreement of the sale of 1st Respondent business to Moosa Cash
and Carry, and in particular clause 9 thereof. The said clause provided
that the agreement shall be governed by the laws of the Republic of South
Africa. On that note, Applicant had argued that the particular law
applicable to their case was section 197 of the South African Labour
Relations Act of 1995. In terms of the said section, where a business is
sold as a going concern it carries all the assets and liabilities of its
predecessor.
5. The learned Arbitrator issued an award on the 14th December 2012, in
favour of 1st Respondent. In the award, He had found that the South
African law was inapplicable to Applicants case and concluded that 1st
Respondent was not properly sued. It is this award that Applicant seeks
to have reviewed, corrected or set aside. It is Applicants argument in casu
that, the learned Arbitrator committed an irregularity by refusing to apply
the law of contract chosen by parties.
6. The matter was not opposed as no formal intension to oppose, in terms of
the Rules of this Court, had been filed. Rather, at the commencement of
the review proceeding, 1st Respondent through its Human Resources
Manager, Ms. Nkuebe, sought a postponement of the matter. She had
argued that they had initially instructed the Association of Lesotho
Employers to represent them in the proceedings. However, they had later
withdrawn as their counsel of record.
7. Ms Nkuebe further stated that they had then instructed one Mr. Mohapi
Motlere, who had just informed them that he would not be able to
represent them. She stated that they were all along under the impression
that both the former and latter representatives had duly filed all relevant
papers in the matter. They were thus asking for an indulgence to find a
new representative to carry over. She concluded that the interests of
justice demanded the granting of the application for postponement.
8. Advocate Mohau (KC) was strongly against the postponement. He argued
that the matter had dragged for a very long time and that this was
prejudicial to Applicant. He specifically pointed out the fact that this
matter stems from as far back as in 2009. Further, that after the
withdrawal of the initial representative of 1st Respondent in March 2013,
nothing was done by 1st Respondent to advance the mater. He added that
both prior to its withdrawal and thereafter, no intention to oppose was
ever filed on behalf of 1st Respondent, to indicate is willingness to defend
the matter.
Page 147 of 361
9. Furthermore, Advocate Mohau (KC) stated that there was no proof that 1st
Respondent had instructed Mr. Mohapi Motlere, to represent them. He
maintained that in the absence of such proof, Mr. Mohapi Motlere was
never appointed to act and that failure by 1st Respondent to oppose the
matter is inexcusable. He concluded in the light of this said above, the
interests of justice demanded that the mater proceed as it stood, that is
without further delay and unopposed.
10. We refused the application for postponement mainly on three grounds.
Firstly, that the matter was unopposed in terms of the Rules of this Court
and that nothing justified the condonation for the breach of the rules in
as much as no such application was made. Having not opposed the
matter, it would have been illogical to grant a respondent party the
postponement of a matter that is not opposed. Secondly, explanation
given for the request was not satisfactory. There was no proof that after
the withdrawal in March 2013, attempts were made to advance the
matter. Having failed to provide such proof, 1st Respondent failed to
explain why they could not find a representative in the period between
March 2013 and this day. Thirdly, given the circumstances of the matter,
its history in particular, the principles of justice demanded that it proceed
without further delay. We then directed that it proceed unopposed. Our
judgment in the merits of the matter is thus as follows.
11. Advocate Mohau (KC) submitted that the learned Arbitrator was
obliged in law to apply the law as agreed upon by the parties. Having
failed to do so, He committed a grave irregularity warranting the review of
His arbitral award. The Court was referred to the case of Standard Bank
of South Africa Limited v Efroiken and Newman 1924 AD 171 at 185,
where De Villiers J held that that in a contract, the law applicable is
ordinarily that of the country where the subject of agreement is situated.
The learned judge went further to say that where parties agree that the
law applicable will be that of the country where the agreement was
concluded, then the latter will prevail. He added that the agreement
concerned was concluded in Bloemfontein in the Republic of South
African and that in terms of the agreement of parties, the law applicable
is that of the country in which the agreement was concluded.
12. He further submitted that in terms of the agreement of parties, the law
applicable was section 197 of the South African Labour Relations Act
(supra), which provided that, a business that has been sold as a going
concern, carries along the assets and liabilities of its predecessor. He
furthermore submitted that the learned Arbitrator ought to have found
that 1st Respondent was properly sued and proceed to deal with the
merits of the matter. He submitted that at best, the learned Arbitrator
ought to have declined jurisdiction and referred the matter to the Labour
Court, if He felt that He had no authority to apply the laws of the
Republic of South Africa, rather than to dismiss the matter. He prayed
that this Court review the said arbitral award and to order that this
Page 148 of 361
matter be recommenced before the Labour Court and no longer the 2nd
Respondent for reasons of jurisdiction.
13. Having heard the full submissions of Advocate Mohau (KC) on
matter, We suggested to him that he seemed to place a challenge on
conclusion of the learned Arbitrator, as opposed to the procedure that
learned Arbitrator adopted in coming to His conclusion. He rejected
suggestion and argued that the learned Arbitrator erred in that
refused to interpret and apply the law as agreed upon by the parties.
the
the
the
the
He
14. It is Our view that a single point, my stand as either a review or an

appeal ground, depending on how it is both framed in pleadings as well
as how it is argued during submissions. The distinction between an
appeal and a review lies in the nature of the challenge itself. By this We
mean that, if a challenge is placed against the procedure, then it is a
review and if the challenge is placed against the conclusion, then it is an
appeal (see J. D. Trading (Pty) Ltd t/a Supreme Furnishers vs. M. Monoko
& others LAC/REV/39/2004). Where the former prevails, this Court has
jurisdiction and if the latter prevails, the contrary holds.
15. The essence of the arguments by Advocate Mohau (KC), is essentially
that the learned Arbitrator ought to have found that the 1st Respondent
was properly sued in referral A0111/2010. He premises his argument on
clause 9 of the agreement of sale of 1st Respondent to Moosa Cash and
Carry, as well as the finding of the Court of Appeal in the South African
appeal judgment of De Villiers J in Standard Bank of South Africa Limited
v Efroiken and Newman (supra).
16. In Our view, Advocate Mohau (KC) is essentially saying that given the
circumstances of the matter, a different conclusion ought to have been
reached by the learned Arbitrator. Advocate Mohau (KC), has gone further
to prescribe possible alternative conclusions that the learned Arbitrator
could have made at best. These are, to find that 1st Respondent was
properly sued and proceed into the merits, or to decline jurisdiction and
refer the matter to the Labour Court as a court of first instance, in terms
of section 227(5) of the Labour Code (Amendment) Act 3 of 2000.
17. Nothing in either the pleadings as they prima facie appear or in the
submissions in amplification thereof, sounds in a procedural irregularity
on the part of the learned Arbitrator, in the manner in which the award
was made. Having made this finding, We find that the Applicant has
failed to establish a reviewable irregularity on the part of the learned
Arbitrator. In fact, We are of the view that the challenge is nothing but an
appeal disguised as a review, as it directly challenges the conclusion of
the leaned Arbitrator. Each of Our findings in the aforementioned is
sufficient to warrant the refusal of the review application.
Page 149 of 361
AWARD
a) The review application is refused;
b) The award of the 2nd Respondent in A0111/2010 remains in force;
THUS DONE AND DATED AT MASERU ON THIS 2nd DAY OF SEPTEMBER
2013.
T. C. RAMOSEME
Mr. KAO
Mrs. MALOISANE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. MOHAU (K.C)

MS. NKUEBE - HR
Page 150 of 361

HELD AT MASERU
LC/29/12

T & T SECURITY SERVICES (PTY) LTD
APPLICANT
And
SAMUEL PEAPEA
RESPONDENT
JUDGMENT
A claim for a set off against an amount awarded by the DDPR. Court on own
motion raising two points of law premised on its jurisdiction over Applicants
claim. Firstly, jurisdiction of the Court over a claim for set off as an
independent claim secondly, jurisdiction of the Court over Applicant claim in
the light of non-compliance with section 227 (5) of the Labour Code
(Amendment) Act 3 of 2000. Applicant failing to prove that the Court has
jurisdiction over its claim and matter being dismissed for want of jurisdiction.
No order as to costs being made.
1. This is a claim for the set off in respect of an alleged debt owing to
Applicant by Respondent, against an amount awarded to the Respondent
by the DDPR. The matter was heard on this day and judgment was
reserved for a later date. The background of this matter is essentially that
Respondent was employed by Applicant as a security guard. After
termination of Respondents employment contract, he referred a claim for
unfair dismissal claim with the DDPR. An award was issued in his favour,
in terms of which Applicant was to pay him an amount to the tune of
M12, 535.30.
2. In casu, it is applicants argument that during the employ of Respondent,
he caused Applicant to incur certain pecuniary loss. It is said that the
loss was occasion by Respondents failure to discharge his obligations to
protect the property to the clients of Applicant effectively. At the
commencement of the proceedings, We raised two preliminary points,
both of which were premised on the jurisdiction of this Court in respect of
the Applicants claim.
3. In raising the above points of law, We were guided by the authority in
LAC/CIV/A/02/2010, where the Court relied on a quotation from Casa v
Tao Ying Metal Industries & 3 others 2009 (2) SA CC, in the following,
Page 151 of 361
where a point of law is apparent on the papers, but the common approach
of the parties proceeds on a wrong perception of what that law is, a court is
not only entitled, but is in fact also obliged, mero muto to raise that point of
law and require parties to therewith.
4. The firstly point relates to the jurisdiction of this Court to hear and
determine Applicants claims as a court of first instance without a report
in terms of section 227 (5) of the Labour Code Order 24 of 1992 as
amended. Secondly, the jurisdiction of this Court to hear and determine a
claim for set off as an independent claim pursuant to the provisions of
section 24 (2) (h) of the Labour Code Order (supra). Both parties were
given the opportunity to make addresses on both points and Our
5. Advocate Mohanoe for Applicant submitted that section 24 (2) (h) of the
Labour Code Order (supra), vests this Court with jurisdiction to entertain
a claim for set off as an independent claim. He added that this Court has
heard claims of this nature before and reference was made to the case of
Monahali Construction (Pty) Ltd v Thabang Ngaka LC16/2009. Further,
that it is acceded that in order to have jurisdiction to sit as a court of first
instance, a claim must have gone through the process of conciliation.
Advocate Mohanoe prayed that this matter be removed from the roll to
enable Applicant to comply with the provision of section 227 (5), by
referring this claim for conciliation with the DDPR.
6. Mr. Letsie submitted in reply that a claim for set off is normally pleaded
as a defence to a claim that is before court for determination. He argued
that on this basis, that this Court has no jurisdiction over Applicant
claim for a set off, as a set off cannot be brought as an independent
claim. On the issue of non-compliance with the provisions of section 227
(5), he submitted that if the Court finds that it has jurisdiction in terms of
section 24 (2) (h), he had no objection to the matter being removed from
the roll for purposes of compliance with the said section 227 (5).
7. As rightly pointed out by Applicant, the jurisdiction of this Court over a
set off is established by section 24 (2) (h) of the Labour Code Order
(supra). The provisions of section 24 (2) (h) are as follows,
to adjust and set off against all other claims on the part either of the
employer of the employee arising out of or incidental to such relation
between them as the Court may find, whether such claims are liquidated or
unliquidated or are for wages, damage to person or property or for any
other cause, and to direct payment of the balance found due by one party
to the other.
8. Our interpretation of the section 24 (2) (h) is that in as much as it vests
this Court with the jurisdiction to entertain a claim of set off, such
depends on there being a claim against which a set off is sought. By this,
We mean that a set off cannot be referred as an independent claim, for
Page 152 of 361
without a claim there is nothing to set off from. This is clear from the
opening lines of section 24 2) (h) which read as follows,
to adjust and set off against all other claims
9. Our interpretation finds support in the Transvaal Provincial Division
decision in Great North Farms (EDMS) BPK v RAS 1972 (4) SA 7, at page
8E where the learned Justice Margo quoted the learned Judge Rosenow J
in Harris v Tancred N.O. 1960 (1) SA 839, where the learned Judge had
stated as thus,
There appears to be some confusion amongst the authorities as to whether
set-off operates entirely automatically, or whether it has to be specifically
invoked as a defence to a claim.
10. At page 9E-F of the same judgment, the learned Judge continues to
quote Innes C J again in Postmaster-General v Taute, 1905 TS 582 at
p.590, where the learned Chief Justice stated as thus,:
set-off, like payment, should be pleaded and proved, so that the court may
give effect to it, but its operation dates back to the moment when the two
persons concerned were reciprocally liable to one another. At that moment
in intendment of the law they are regarded as having paid cash to the
others claim with his own, so far as it would go.
11. The above quotations are clear that a set of should be pleaded as a
defence. This essentially means that a set off is a secondary claim, which
depends on the existence of a primary claim. Even so, the said primary
claim must be before a court in which a set off is being pleaded. In casu,
there is no claim before this Court against which a plea of set off is being
raised. This means that in order for a claim of a set off to have been
rightly raised, Applicant ought to have pleaded it as a defence to
Respondent claim for unfair dismissal before the DDPR.
12. About the authority in Monahali Construction (Pty) Ltd v Thabang
Ngaka LC16/2009, the circumstances of that case differ from the
circumstances in casu. In that case, Applicant had sought the review of
the DDPR arbitral award before this Court, under LC/REV/48/08. The
review application was dismissed. In dismissing the said application, the
Court had further gone to reduce the amount which had initially been
awarded to the Respondent. Applicant had then applied for a set off of the
amount determined by this Court against the debt it claimed was owing
by Respondent. Clearly the circumstances of both cases are not of
sufficient similarity and cannot be compared.
13. Even assuming that the circumstances of the two cases were
comparable, this Court is not bound by its own decisions. The principle of
judicial precedent operates in respect of the decisions of superior courts
in relation to those of the lower courts. Even if the principle was to be
applied in casu, the fact that the circumstances between the two cases
differ, disqualifies its application. While it is true that Courts must strive
towards the maintenance of consistency and predictability in their
Page 153 of 361
decisions on similar matters, such cannot be at the expense of legality.

Consequently, We find that this Court has no jurisdiction to entertain a
set off as an independent claim.
14. On the issue of non-compliance with section 227 (5), parties have both
acceded that it has not been complied with. This clearly means that this
Court has no jurisdiction over Applicants claim as it stands. In view of
the fact that this is a Court of equity and fairness, had Applicant
succeeded to show that this Court has jurisdiction over a set off as an
independent claim, We would have been inclined to remove the matter
from the roll, to allow Applicant to comply with the provisions of section
227 (5). However, given Our attitude in respect of the first aspect of the
points of law, We see no need to grant the indulgence sought.
AWARD
a) That this application is dismissed for want of jurisdiction; and
2013.
T. C. RAMOSEME
Miss M. THAKALEKOALA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. MOHANOE
MR. LETSIE
Page 154 of 361

HELD AT MASERU
LC/22/11

LEBOHANG PAUL MATSAPA
APPLICANT
And
CASHBUILD LTD (MAFETENG)
RESPONDENT
JUDGMENT
Application for reinstatement of a matter dismissed for want of prosecution.
Applicant succeeding to meet the requirements for reinstatement of the matter.
Court finding that due to legislative changes, it has no jurisdiction as the
matter now falls within the jurisdiction of the DDPR. Court remitting the matter
to the DDPR for Determination. No order as to costs being made.
1. This is an application for the reinstatement of LC/78/1996. The matter
was heard on this day and judgment was reserved for a later date. The
background of this matter is essentially that Applicant instituted an
unfair dismissal claim with the Labour Court in 1996, under case
number LC/78/1996. The Labour Court had then dismissed the
Applicants claim, leading the institution of review proceedings before the
High Court, under CIV/APN/362/1998.
2. On the 6th August 2008, the High Court issued and order reviewing and
setting aside the judgment of the Labour Court in LC/78/1996, and
directing that the matter be commenced afresh. Subsequent thereto, the
matter was reinstituted before the Labour Court but dismissed on the
22nd April 2010, for want of prosecution. Thereafter the current
proceedings were instituted. The matter was opposed and both parties
were given the opportunity to make representation.
3. We wish to note that during the proceedings, some of the submissions of
the parties were outside their pleadings. However, on the premise of the
rule in motion proceedings that parties must stand and fall by their
pleadings, We will only consider the submissions of the parties to the
extent that they relate and support their submission. This issue was also
raised by Advocate Mpaka in his heads of argument and he supported it
with two authorities in Open Bible Ministries & another v Ralitsie
Nkoroane & another 1991 1992 LLR & LB 112 at 118; and Director
Hospital Services v Mistry 1999 (1) SA 626 (A) at 635H 636B. Our
Page 155 of 361

4. It was submitted on behalf of Applicant that following the High Court
Judgment, his then legal representative, Advocate Nathane, failed on his
responsibility to have the matter set down for hearing. The result of the
delay was the development of an acrimonious relationship between
Applicant and his then representative. This led to Applicant taking his file
and switching to his current representative, Advocate Nthontho.
Applicant was only able to instruct his current representative sometime
in June 2011. It was added that upon perusal of the Courts record,
Advocate Nthontho discovered that the matter was dismissed on the 22nd
April 2010 for want of prosecution.
5. Another discovery that was made by Advocate Nthontho, was that after
the set down had been served upon Advocate Nathane, he had made
communication to the Registrar of the Labour Court to inform her that
his representation had been withdrawn by Applicant. Notwithstanding,
the withdrawal advice, no steps were taken to ensure that service of the
notification of hearing was made on Applicant, as the matter was rather
dismissed for want of prosecution. The Court was referred to annexure
LM1, being an order reviewing the judgment of the Labour Court in
LC/78/1996, LM2 being the notice of set down and LM3 being the notice
of withdrawal.
6. Advocate Nthontho argued that on the basis of the above, the failure to
prosecute the matter on the part of Applicant was not intentional, as he
was clearly not aware that it was scheduled to proceed on the day in
question. He added that it would be unfair to punish Applicant for the
negligent conduct of his former representative. Reference was made to the
case of Thamae & another v Kotelo & another LAC 2005 at 583, for the
proposition. It was further submitted that the interest of justice favour
the granting of this application in that Applicant was unfairly dismissed.
It was added that as a result of the dismissal, Applicant lost out on his
benefits and income, which he used to support and maintain his family.
He thus prayed for the granting of this application.
7. In reply, Advocate Mpaka for Respondent submitted that it is clear from
the submissions of Applicant that he blames his representative for the
dismissal of the matter. He stated that there are circumstances under
which a party cannot be allowed in law to place the blame on their
representative. He submitted that the circumstances in casu are as such.
He made reference to the cases of Senone & another v Senone C of A (CIV)
48/2011 and Darries v Sherriff, Magistrates Court, Wynberg & another
1998 (3) SA 34 (SCA) at 44 B-G. Advocate Mpaka submitted that in this
case, Respondent had been in wilful default and the Court stated that
there is a limit on legal representative negligence.
8. It was further submitted that Applicant had failed to meet the
requirements for an application for reinstatement. It was submitted that
Applicant had not set out the prospects of success and that the above
Page 156 of 361
given explanation for failure to prosecute was not satisfactory. It was

argued that the averments made in relation to the prospects of success
are not sufficient to warrant the granting of the order sought. Advocate
Mpaka further argued that the averments do not make out a clear case,
as they do not set out the details of the dismissal of Applicant.
9. Further, it was submitted that even assuming that the matter was to be
reinstated, there is an issue of jurisdiction of this Court over the said
matter. Advocate Mpaka argued that claims for unfair dismissal are
arbitrable before the DDPR and not the Labour Court, in terms of section
226 (2) (d) of the Labour Code (Amendment) Act 3 of 2000. Furthermore, it
was submitted that if this matter is to be properly placed before the
DDPR, then the issue of prescription will take effect, in that claims for
unfair dismissal must be referred within 6 months of the cause of action
arsing.
10. In reaction to Respondents reply, Advocate Nthontho submitted that
the issue of prescription cannot hold as the matter was already
proceeding before this Court. On the issue of the prospects of success, it
was argued that Court has a wide discretion on the issue, which
discretion must be based on all the facts presented. On the issue of
jurisdiction of the Court in this matter, Advocate Nthontho argued that
the Court had jurisdiction at the time that it dismissed the matter. He
added that given the current position of the law, having granted the
reinstatement order, the Court has a wide discretion to give the
appropriate remedy on what route to be followed by parties. On the issue
of negligence of the legal representative, Advocate Nthontho argued that
the authority cited was misplaced and inapplicable in that, in casu it is
not the party that was negligent.
11. The principles applicable in an application for reinstatement of a
matter dismissed for want of persecution are similar to the principles
applicable in an application for rescission. The principles applicable in an
application for rescission were laid out in the case of Melane v Santam
insurance Company Ltd 1962 (4) SA 531 and adopted by our Courts in a
plethora of cases. In adopting these principles, the Court in Loti Brick v
Thabiso Mphofu & others 1995 -1996 LLR-LB 447, held that a party to a
rescission application must show the following,
a) That there is a reasonable explanation for the default; and
b) That there are bona fide prospects of success.
12. Flowing from these above principles, what is of prime importance, from
the submission of Applicant, is why he failed to attend the matter on the
scheduled date of hearing. It is Our opinion that the explanation he has
provided, is reasonable enough to satisfy the first requirement. Clearly
the notification of hearing was not communicated to him, but to his
former representative and nothing was done after Applicants former
representative had communicated his withdrawal to the Registrar of this
Page 157 of 361
Court, to make Applicant aware that his case had been set down for
hearing.
13.
Obviously, Applicant failed to attend because the date of hearing was
not brought to his attention. Thus, it cannot be accurate that he blames
his former representative for failure on his part to attend the hearing. We
do concede that an element of negligence of the former representative
comes into play, but in a very limited sense that does not dilute the fact
the he was not notified about the date of hearing. We are of the view that,
under the circumstances, Applicant could have been expected to have
turned up for the proceedings of the 22nd April 2010.
14. This is clear from LM2 and LM3. LM2, on the one hand, is the
notification of hearing which was served on Advocate Nathane on the 19th
March 2010. LM3, on the other hand, is the letter from Advocate Nathane
to the Registrar of this Court. None of these letters were sent to Applicant
for him to react, hence why he did not. It would thus be unfair to hold
Applicant at fault over something that was never brought to his attention.
Had he at least been aware about the date of hearing, this Court would
not hesitate to find him in wilful default. We also note and acknowledge
the authority in Thamae & another v Kotelo & another (supra), and agree
with Applicant that it would be unfair to punish him by refusing this
application under the circumstances.
15. On the issue of prospects of success, We are convinced from the
submissions of Applicant that he has good prospects. His averments
establish a valid claim of unfair dismissal. It is not necessary for
Applicant to set out the details of his dismissal. Applicant has also been
able to illustrate the prejudice suffered and that which he continues to
suffer as a result of the dismissal that he seeks to challenge. In law, once
this is the case, then this application must be granted (see Loti Brick (Pty)
Ltd v Thabiso Mphofu and Others 1995 LLR-LB 447.
16. On the issue of jurisdiction, We acknowledge that this Court may not
have jurisdiction over Applicants claim, owing to the changes in
legislations. However, what remains is that at the time it was dismissed,
this Court had jurisdiction. The changes in legislation have not affected
Applicants right over the claims but have rather changed the forum in
which such rights may be enforced. As rightly pointed out by Advocate
Nthontho, having granted reinstatement, the Court will use its discretion
and give parties direction on how to proceed further with the matter.
17. However, giving such direction depends on the subsistence of the
mater and by necessary implication, its reinstatement. What were are
saying in essence is that, We cannot give parties direction on how to deal
with the matter before we reinstate it. In relation to the issue of
prescription of the matter, We agree with Applicant that it cannot sustain.
The fact that this matter is continuing before this Court, breaks the effect
Page 158 of 361
of prescription. Consequently, the argument that this matter is prescribed

does not hold water.
AWARD
a) That the application for reinstated is granted;
b) The matter is remitted to the DDPR for determination; and
THUS DONE AND DATED AT MASERU ON THIS 22nd DAY OF JULY 2013.
T. C. RAMOSEME
Miss P. LEBITSA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. NTHONTHO
ADV. MPAKA
Page 159 of 361

HELD AT MASERU
LC/REV/21/2011

APPLICANT
And
LEBOHANG CLEMENT MOEPA
RESPONDENT
JUDGMENT
Application for the rescission of a judgement of this Court. There are two major
requirements that must be met in application of this nature - Applicant failing
to meet the requirements for a rescission application the rescission
application being dismissed. The initial judgment of this Court being reinstated
and no order as to costs being made.
1. This is an application for rescission of the judgment of this Court issued
on the 30th November 2012. It was heard on this day and judgement was
reserved for a later date. The background of the matter is essentially that
Respondent filed an application for review with this court sometime on
the 14th March 2011. On the 28th of the same month, Applicant filed a
counter claims in terms of which it also sought the review of the same
award of the DDPR. The matter was thereafter set down for hearing on
the 28th November 2012.
2. On that day, only Respondent was in attendance and the Court
proceeded in default, dismissing the counter claim and proceeding with
the Respondents review application. The review application was granted
and the matter was remitted to the DDPR for hearing de novo. However,
on the 12th December 2012, Applicant instituted the current proceedings.
The matter was unopposed and it proceeded in that fashion on the 2nd
May 2013. Our judgment on the matter is thus in the following.
3. Advocate Mohapi for Applicant, submitted that on the date of hearing, he
was seized with another matter before the High Court. He stated that he
had sent his clerk to court to request a postponement on account of his
engagement elsewhere. However, he was later informed by his clerk that
by the time he arrived at the Labour Court, the matter had already been
finalised. He submitted that his default was not wilful. He added that at
best, the Court can only find that Applicant has been negligent which is
short of the required element of wilfulness. Advocate Mohapi further
Page 160 of 361
submitted that Applicant has prospects of success in the main review

application in that the decision of the learned Arbitrator is without any
irregularities.
4. In an application of this nature, there are two main requirements that
must be met and these are a satisfactory explanation for the default and
the prospects of success in the main claim (see Loti Brick v Thabo Mphofu
1995- 1996 LLR, 446 at 450). In view of the requirements set above, We
wish to comment that while wilfulness in the default may render the
explanation given unreasonable, it is however not a requirement for the
granting of a rescission application.
5. In Our analysis, We find that explanation given is not satisfactory for a
number of reasons. Firstly, it is clear from the submissions of Applicant
that the decision not to attend the proceedings was wilful in that it was
the result of a choice to proceed with the case before the High Court and
not the one before this Court. Secondly, failure to make appearance at
the time that the matter was scheduled to proceed portrays either
negligence on the part of Applicant or the lack of seriousness with which
Applicant approaches this Court and its processes. This behaviour cannot
be condoned by this Court as it would set a very ruinous precedence for
this Court and those inferior to it.
6. Thirdly, Mr. Mohapi has made bare allegations of facts that he was
engaged in the High Court on the day on question. He has not tendered
any supporting evidence to corroborate his allegations. Although, these
allegations have not been challenged by Respondent, We remain doubtful
about their veracity. Assuming that it is true that Mr. Mohapi was
engaged elsewhere, no explanation has been given as to why the clerk
from his office could not arrive at the Labour Court in time to seek the
postponement before the matter proceeded. Had they done so, this would
have demonstrated willingness on their side to be heard, in which case
the matter would possibly not have proceeded in default on that day.
7. On the prospects of success, it is a trite principle of law that the good
prospects of success may compensate the unsatisfactory explanation
given by an applicant party (see Melane v Santam Insurance Co Ltd 1962
(4) SA 531 (A) at 532.) We have underscored the word may for the reason
that the presence of good the prospects of success, as is the case in casu,
does not necessarily mean the more indulgently this tribunal will regard
the explanation of the default. An inadequate explanation will always
remain so, irrespective of the strength of the prospects of success. The
absence of a reasonable explanation causes the prospects of success to
ample into insignificance, as is the case in casu (see Thabo Teba & 31
Others vs. LHDA LAC/CIV/A/06/09).
8. The above notwithstanding, We have indicated in Our background of the
matter that, Applicant has filed a counter claim in terms of which it seeks
the review, correction and/or setting aside of the award of the DDPR.
Page 161 of 361
While they may appear to have good prospects of success in their defence
to the Respondents review application, and assuming We felt inclined to
grant this application, there would be no reason to do so. We say this
because, in the judgment of the 30th November 2012, We have granted
what Applicant seeks in their counterclaim.
9. Further, the said counterclaim has not been withdrawn, so that the effect
of the granting of this rescission application would be that the said claim
would be before this court for determination. If granted, the effect would
be similar to that created by the judgment of the 30th November 2012
against which this rescission application is made. The continued
existence of the counter claim, renders this rescission application
superfluous.
AWARD
a) That the application for rescission is dismissed;
b) The judgment of this Court issued on the 30th November 2012 is
reinstated;
c) That the said judgment must be complied with within 30 days of receipt
herewith; and
2013.
T. C. RAMOSEME
Ms. P. LEBITSA
Mr. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MOHAPI
MR. MAHLEHLE
Page 162 of 361

HELD AT MASERU
LC/07/13

SHAHID HASSAN
SEMAKALENG LIPHAPANG
MAMMUSA MAEMA
MOTSEKO MOTSEKO
MAMOSEMBO MPHEPHOKA
MOHLALEFI KHASU
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
And
LEGAL VOICE (PTY) LTD
RESPONDENT
JUDGEMENT
Claims for unfair dismissal based on retrenchment, in respect of all
Applicants. Additional claims for underpayments based on unfair demotion,
unlawful deductions, unpaid leave and unpaid severance payment, in respect
of 1st Applicant only. Court mero muto raising two preliminary points of
misjoinder and want of jurisdiction. Parties making their addresses on the
matter and Court finding a misjoinder and ordering the separate referral of 1 st
Applicants claim. Court directing parties to have the matter set down in
respect of 2nd to 6th Applicants claims. Court finding it unnecessary to
pronounce itself on its jurisdiction over claims that are no longer for its
determination. No order as to costs being made.
1. Applicants have referred claims for unfair dismissal occasioned by their
retrenchment from employment. In addition to the retrenchment claim,
1st Applicant has also referred claims for underpayments occasioned by
an alleged act of unfair demotion, unlawful deductions, unpaid leave and
unpaid severance payment. In view of these additional claims, the Court
then raised two preliminary points. Firstly, that 1st Applicant had been
improperly joined in these proceedings. Secondly, the lack of jurisdiction
in respect of 1st Applicants claims for unlawful deductions, unpaid leave
and unpaid severance payment, as they did not comply with section 227
(5) of the Labour Code Order 24 of 1992, as amended.
2. In raising these points, We relied on the authority in Thabo Mohlobo v
LHDA LAC/CIV/A/02/2010, that a court does not only have a right, but
is in law obliged, to raise a point of law where it is apparent on the
pleadings. Both parties were given the opportunity to make
representation on the issue. Applicants were represented by Advocate
Page 163 of 361
Mosuoe while Respondent was represented by Advocate Nyapisi. Our

ruling is thus in the following.
3. On the issue of misjoinder, it was submitted on behalf of 1st Applicant
that he had been properly joined as an applicant to these proceedings. It
was stated that the main claim is that of unfair dismissal due to an act of
retrenchment and that the rest of the Applicants claims are ancillary
thereto. It was added that these claims arose simultaneously with other
applicants claims and are between the same Respondent, which is the
employer of all Applicants. It was maintained that on these premises, the
joinder is proper.
4. In reply, Advocate Nyapisi submitted that in terms of the originating
application, 1st Applicant referred two different claims. It was said that
the first claim is the unfair dismissal claim, while the second one is
unpaid monies claim, which relates to underpayments, unlawful
deduction, unpaid leave and unpaid severance payment. It was argued
that it cannot be accurate that these additional claims are ancillary to the
retrenchment, as they do not arise from the retrenchment of applicants.
The Court was referred to paragraphs 4 and 10, of the originating
application, where the claims have been explained. It was argued that it
is thus improper to join 1st Applicant in these proceedings, even if the
respondent party is the same.
5. On the issue of jurisdiction, Advocate Mosuoe submitted that the claims
must be taken holistically and not individually. On this premise, he
argued that having referred the main claim with the DDPR for
conciliation, it was not necessary to refer the other claims, particularly
because they are ancillary to the main claim. In reply, Advocate Nyapisi
submitted that it was clear that section 227 (5) had not been complied
with. He submitted that in the circumstances, 1st Applicant can apply for
a separation of his claim from the rest of the Applicants. He added that
this will not be prejudicial to Applicant in any way, as his claims will still
be entertained.
6. In law, there are three scenario in which applicants may be joined in the
same proceedings and these are,
Where their claims arise out of the same transaction or occurrence; or
Where a common question of law or fact may arise in the proceedings;
or
If it appears that their joining in the same proceeding may promote
the convenient administration of justice.
7. We agree with Respondent that the 1st Applicant has referred two distinct
and independent claims, namely those of retrenchment and unpaid
monies. If these claims are both distinct and independent, it cannot be
accurate that the unpaid monies claims are ancillary to the main claim of
retrenchment. A claim is said to be ancillary to another if it arises out of
Page 164 of 361
that other claim or is a consequence of the same claim. In essence, it is a

claim that is dependent upon the primary claim. In Our view, these
circumstances are not present in casu.
8. We say this because, it is reflected in the originating application, in
particular, at paragraphs 4 and 10, that the two claims are distinct and
independent of each other. While, paragraph 4, on the one hand, relates
to all applicants claims for retrenchment, paragraph 10, on the other
hand, relates to 1st Applicants claims for unpaid monies. Clearly, these
are two different claims whose basis is also different. A retrenchment
claim arises out of the termination of an employment contract due to the
operational requirements of the employer, while an unpaid monies claim
arises out of failure on the part of the employer to pay the monies to an
employee, when due. These claims arise out of dissimilar causes of
action.
9. Further, even the questions of law or fact that may arise in the
proceedings are different in both claims. In respect of a claim for
retrenchment, the issue would relate to the fairness or otherwise of the
termination of the contract of employment, while in respect of a claim for
unpaid monies, the issue would relate to the entitlement of the concerned
employee to the monies claimed. Given the distinct nature of the two
claims, it would not only be improper to join 1st Applicant to the current
proceedings, but also inconvenient on the part of the Court to hear and
determine claims arising from different occurrences in one suit.
Consequently, We find that 1st Applicant has been improperly joined in
these proceedings.
10. According Jones and Buckle in Civil Practice of the Magistrates Court in
South African, Vol. 1, 9th Ed., at page 180,
when a plea (of joinder/misjoinder) is upheld the main action is not
dismissed, but is stayed until the proper party has been joined. In the case
of misjoinder the court strikes out the unnecessary party or cause.
In view of this authority, and Our finding above, 1st Applicant has been
misjoined in these proceedings and he must be separated from the
proceedings in casu. Given Our decision in the first preliminary point, it
is not necessary for us to consider the preliminary point of jurisdiction.
We say this because the 1st Applicants claims are no longer before Us for
determination.
Page 165 of 361
AWARD
a) That the 1st Applicant has been improperly joined in these proceedings;
and
b) That 1st Applicant is hereby removed as a party to these proceeding;
c) That this matter will proceed in respect of the 2nd to 6th Applicants claims
on the scheduled date of hearing; and
THUS DONE AND
SEPTEMBER 2013.
DATED
AT
MASERU
ON
THIS
23rd DAY
T. C. RAMOSEME
Mr. S. KAO
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MOSUOE
ADV. NYAPISI
Page 166 of 361
OF

HELD AT MASERU
LC/23/13

NTHATI MOKITIMI
APPLICANT
And
CENTRAL BANK OF LESOTHO
RESPONDENT
JUDGMENT
Application for an interlocutory interdict pending finalisation of claims per the
originating application. Applicant failing to establish a prima facie right to a
final relief. Respondent going beyond merely casting doubt to the existence of
a prima facie right to a final relief. Court finding that the prima facie right is
primary to the determination of other requirement. Court finding it
unnecessary to consider other requirements on the premise of the absence of a
prima facie right. An order for an interlocutory interdict pending finalisation of
the main claim refused. No order as to costs being made.
1. This is an application for an interlocutory interdict pending finalisation of
the several claims per the originating application in LC/23/2013. The
matter was heard on this day and judgment was reserved for a later date.
The background of this application is basically that Applicant is an
employee of the Respondent. She was employed in the position of Section
Head Insurance and Other Licensed Institutions. She was later
appointed to act in the position of Head Supervisory, Policies and
Regulatory Division, whose mandate was later transferred to the Legal
Service Division. Applicant acted in this position for over five years, until
she was transferred to a different division.
2. It was the above said transfer that gave birth to both the main claim and
this interlocutory interdict application. In the main claim Applicant is
asking for a declaratory order that she has been tacitly promoted;
alternatively that she be reinstated to the position of Head Legal Services
Division; and alternately that the recruitment process for the said
position be set aside. The interlocutory application essentially seeks an
order halting the recruitment process for the position of Head Legal
Service, pending finalisation of the main claim. An interim interdict was
granted in favour of Applicant pending finalisation of this application.
3. On this day, both parties addressed the Court on whether or not the
interim order granted earlier, should be made final pending finalisation of
Page 167 of 361
the main claim as reflected in the originating application. Both parties

were present and/or represented, and they duly made their presentations
on the matter. Applicant was represented by Advocate N Moshoeshoe
while Respondent was represented by Advocate PJJ Zietsman. Our
4. Applicant started by laying out the legal requirements applicable in a
claim for an interlocutory interdict. These were identified as follows,
a) a prima facie right;
b) a well-grounded apprehension of harm;
c) the balance of convenience; and
d) the absence of other satisfactory remedy.
The Court was referred to LCT Harms in Civil Procedure in the Superior
Courts, at page 40 and the case of Tsabane v Caba & another
CIV/APN/218/2000.
5. On the first requirement, it was submitted that a prima facie right
essentially relates to prima facie proof of the facts that establish the
existence of a right, in terms of the substantive law. Reference was drawn
to the case of Webster v Mitchell 1948 (1) SA 1186 at 1189. It was added
that in terms of the authority in BP Lesotho v Moloi & another C of A (CIV)
01/2006, where the Court cited with approval the holding of the Court in
Setlogelo v Setlogelo 1914 AD 221 at 227, a prima facie right need not be
without doubt to sustain.
6. On the premise of the above principles of law, it was submitted that
according to facts that are common cause, Applicant acted in the position
of Head Legal Services for over five years. It was further submitted that
Applicant was made to act for the stated period, notwithstanding that the
policies of the Respondent provide that an acting appointment shall not
exceed a period of 12 months. Having acted beyond the period stipulated
in the rules of the Respondent, Applicant was tacitly promoted to the
position in question.
7. It was further submitted that the length of the period that Applicant took
in the acting position, together with the fact that it was never suggested
to her that she would neither be confirmed nor promoted into that
position, gave her the legitimate expectation that she would acquire the
position. It was added that the decision to remove Applicant from the
position that she had occupied for over 5 years, to which she clearly had
a right to, was unfair. It was said that in law, an employer is bound by its
policies and is further enjoined to act fairly towards its employees.
Reference as made to the case of Koatsa v NUL C of A (CIV) 15/1986.
8. When asked which of the four requirements is key to the granting of an
interlocutory interdict, Applicant submitted that it is the balance of
convenience. He made reference to the authority in Tsabane v Caba &
Page 168 of 361
another (supra), where the Court stated that the balance of convenience is
the core test.
9. In reply, Respondent submitted only on two of the requirements, namely
the prima facie right and the balance of convenience. It was submitted
that the alleged prima facie right is based on the principle of legitimate
expectation and an alleged act of discrimination or victimisation. It was
argued that it is not accurate that Applicant had legitimate expectation
over the position in issue. It was submitted that in the year 2010,
Applicant had applied of the position in issue but was unsuccessful
during interviews. Again in 2012, she applied and was similarly
unsuccessful. It was argued that the fact that she applied for the position
on more than one occasion, clearly showed the absence of a legitimate
expectation that she would acquire it and as well as the absence of a tacit
promotion.
10. It was further argued that, the above submissions notwithstanding,
the Lesotho Labour Laws, in particular the Labour Code Order 24 of 1992
as amended and the Labour Code (Codes of Good Practice) Notice 4 of
2003, do not recognise the principle of legitimate expectation in contracts
of employment. It was argued that at best, it could be argued that these
laws recognise the doctrine vis-a-vis substantive rights to the extent that
they related to the termination of an employment contract where the
contract provided for the possibility of renewal. It was further submitted
that even assuming so, the Labour Code (supra) does not create a
substantive cause of action based on legitimate expectation.
11. It was submitted that the doctrine of legitimate expectation is an
administrative law principle which is not applicable in the law of contract.
It was argued that the principle merely applies to require that before an
adverse action is taken against someone, they must be heard first. It was
said that this essentially limits the application of the principle to
procedural and not substantive rights. Reference was made to the South
African Supreme Court of Appeal case in Duncan v Minister of
Environment Affairs & Tourism 2010 (6) SA 374 (SCA) at para 13 on page
308A-G; and Administrator Transvaal & others v Traub & others 1989 (4)
SA 731 at 748.
12. In relation to allegation of discrimination or victimisation, Respondent
submitted that no basis has been laid against which discrimination is
claimed. It was added that none of the averments made illustrate how the
conduct of Respondent amounted to either a discriminatory act or
victimisation. It was concluded that on the basis of the above said,
Applicant had failed to establish a prima facie case. In reaction to the
aspects on discrimination and victimisation, Applicant answered that
these are addressed under paragraphs 11 to 13 of her founding affidavit.
13. Before we deal with the merits of the matter, We wish to address the
issue of the doctrine of legitimate expectation in labour matters. While We
Page 169 of 361
acknowledge that the doctrine has its origin in the English Law and that
it is an administrative law principle, its scope of coverage has been
extended over time through case law, to apply in labour matters. To
illustrate this point, section 68 (b) of the Labour Code (supra), provides as
follows,
For the purposes of section 66 dismissal shall include
(a) ...
(b) the ending of any contract for a period of fixed duration or for
performance of a specific task or journey without such contract being
renewed, but only in cases where the contract provided for the possibility
of renewal; and ...
14. Over time, this section has been interpreted to mean that where a
contract provides for the possibility of renewal, then this creates a
legitimate expectation on the part of the non-renewed employee that the
contract would be renewed. A clearer illustration of this point is to be
found in the case of Limkokwing University of Creative Technology (Pty)
Ltd v Tebello Mothabeng & another LC/REV/88/2011, where the Court
held as thus,
In Our view, this section governs the issue of legitimate expectation in the
labour law of Lesotho and as such was applicable to the 1st Respondents
case. As a result, anyone determining whether or not a party had a
legitimate expectation of a renewal of their contract, is bound in law to
consider the factors outlined in the provisions of section 68 (b) of the Labour
Code Order (supra).
15. While the above extract relates to the application of the principle in
respect of unfair dismissal claims, where there is a possibility of renewal,
the doctrine applies generally in all labour matters, alongside the maxim
of audi alteram partem. In the case of Mokhokhoba v The Manager
Malea-lea Secondary School & others LC/4/1995, the Court relied on a
quotation from the case of Muller & Others v Chairman of Ministers'
Council, House of Representatives & Others (1991) 12 ILJ 761 to come to
the conclusion that the doctrine of legitimate exception is part of the
Labour Laws of Lesotho.
16. In coming to the above conclusion, the Court made reference to page
769 of the Muller & Others v Chairman of Ministers' Council, House of
Representatives & Others judgment where Howie J held that:
When the statute empowers a public body or official to give a decision
prejudicially affecting an individual in his liberty, property, existing rights
or legitimate expectations, he has the right to be heard before that decision
is taken unless the statute expressly or impliedly indicates the contrary ....
17. In view of this said above, We now proceed to deal with the merits of
the matter. The principles underlying an application for an interdict are
as parties have outlined them. On the first requirement, it is without
doubt that Applicant acted in the position of Head Legal Services for a
period over five years. This period is far above the acting period
Page 170 of 361
anticipated by the rules of the Respondent. We say this because in terms

of the rules, an acting appointment is fixed at 12 months. Ordinarily, this
would create a valid expectation on the part of Applicant that she would
eventually hold that position on a permanent basis, it being by way of a
promotion or confirmation.
18. However, the above position is subject to the circumstances
surrounding the whole acting appointment, as they may intervene against
the expectation. In looking at the circumstances of the case in casu
closely, it is not in dispute that during the period of Applicants acting as
the Head Legal Services, she had applied more than once for the said
position. In Our view, the fact that she applied, more than once for that
matter, intervenes against the alleged expectation of either confirmation
or even tacit promotion into the position.
19. In applying for the position, Applicant indicated her awareness and
acceptance that she had not right over the said position. It did not only
show that, but it also counteracts the argument that she was tacitly
promoted for if she had this impression, she would not have applied even
for once. Had Applicant raised this claim immediately when the position
was first advertised in the year 2010, the circumstances would have been
different to possibly influence this Court to find the existence of a prima
facie right, based on either a tacit promotion or a legitimate expectation of
either confirmation or promotion.
20. Further, We are in agreement with Respondent that Applicant has
failed to establish the grounds for alleging either victimisation or
discrimination. Even in looking at paragraphs 11 to 13 of her founding
affidavit, nothing therein supports the grounds for either of the two. At
best, are the contents of paragraph 13 which also fall short to the extent
that they illustrate a distinction between Applicant and others who were
shortlisted with her. The moment a distinction is made between parties, a
claim for discrimination is extinguished.
21. A claim for discrimination or victimisation is based on the existence of
similar circumstances followed by unjustifiable dissimilar treatment. If
the circumstances of Applicant were dissimilar to those of her
competitors, then there was no way that she could have expected to have
been accorded a similar treatment to them. According to the presentation
made by Applicant, in the said paragraphs, her circumstances were
different from those of other candidates. The circumstances pleaded do
not present prima facie right but the contrary as they explain the
differential treatment.
22. It is thus Our view that Applicant has failed to establish a prima facie
right over the position of Head Legal Services in the employ of
Respondent. The averments that she has set out, taken together with
facts by Respondent which Applicant has not disputed, all amount to the
non-existence of a prima facie right. The averments and submissions in
Page 171 of 361
totality point beyond a mere doubt, but to the total lack of the alleged
right. While We acknowledge the principle in Koatsa v NUL (supra), about
the obligation of the employer to act fairly, no unfairness has been
perpetuated against Applicant, owing to her failure to establish a prima
facie right.
23. During the proceedings, Applicant was given the opportunity to
address the Court on the key requirement for the granting of an interdict.
She had submitted that it was the balance of convenience and she based
her submission on the authority in Tsabane v Caba & another (supra). We
have thoroughly gone through the authority as it is the basis of the
question that we posed to Applicant. In terms of the said authority, the
learned Lehohla stated as thus,
I accept Mr. Phafane's submission that in a case of interlocutory interdict
such as the one under consideration the threshold test has with
development of our law shifted from prima facie right that it used to be. The
balance of convenience has since been elevated to being the core test.
24. Looking at this extract alone, one is quickly drawn to the conclusion
that once the balance of convenience has been established, the
application should be granted. However, the Court further goes on to
state as thus,
A critical look at the requirements to be satisfied before an application for
a temporary interdict can be granted presents one with amazing though
educative revelations. For instance with regard to prima facie right that
should first be satisfied before the relief can be granted, it is further stated
that the Court will be enjoined to grant the relief sought even if such a right
is open to some doubt.
25. On the basis of the above extracts, it is Our view in as much as the
Court accepted that the balance of convenience is the core test, it further
acknowledged that there must exit a prima facie right prior to the
consideration of any other requirements for an interim interdict even if it
is doubtful. This essentially means that the other requirements flow
directly from the existence of the prima facie right. That is to say, where
there is no right, an applicant party cannot complain of injury. Similarly,
without the existence of a prima facie right, there balance of convenience
favours the refusal to grant the remedy sought, in as much as without an
existing right, a party has no right to any remedy in law. It is thus Our
view that Applicant having failed to establish a prima facie right, it is not
necessary to consider the rest of the requirements but to refuse the entire
application on these bases alone.
Page 172 of 361
AWARD
a) That the application for an interim interdict pending finalisation of the
main claim is refused; and
THUS DONE AND DATED AT MASERU ON THIS 2nd DAY OF SEPTEMBER
2013.
T. C. RAMOSEME
Mr. L. MATELA
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. N. MOSHOESHOE
ADV. PJJ ZIETSMAN
Page 173 of 361

HELD AT MASERU
LC/REV/01/2011
A0420/2009

NEDBANK LESOTHO LIMITED
APPLICANT
And
SETSABE LEFOSA AND 17 OTHERS
THE DDPR (ARB. LEBONE-MOFOKA
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. Three grounds of review raised.
1st Respondents arguing that grounds are appeal disguised as review. Court
finding that grounds are prima facie review grounds. Court finding no merit in
all the grounds raised. Review application being dismissed. No order as to
costs being made.
later date. Three ground of review were raised in terms of which Applicant
sought the review, correction and/or setting aside of the arbitral award of
the 2nd Respondent.
2. The background of the matter is essentially that, 1st Respondents were
employees of the Applicant until their dismissal for participation in an
illegal strike. After their dismissals, they referred a claim for pension
against the Applicant with the 2nd Respondent. 2nd Respondent made an
award in their favour on the 3rd December 2010. It is the said award that
Applicant seeks to have reviewed. In their opposing affidavits, 1st
Respondent have pleaded to the effect that the grounds raised by
Applicant in appeal disguised as a review and have asked that they be
dismissed. Both parties were given the opportunity to make presentation
and Our judgment is thus in the following.
Appeal disguised as a review
3. Advocate Ntaote for 1st Respondent, submitted that the grounds raised by
Applicant are appeal and not review. His argument was based on the
book by Herbstein & Van Winsen, The Civil Practice of the Supreme Court
of South Africa, 4th Ed., where the following are identified as valid review
grounds,
Page 174 of 361
a) absence of jurisdiction on the part of the court;

b) interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
c) gross irregularity in the proceedings; and
d) the admission of inadmissible or incompetent evidence, or the rejection of
admissible or competent evidence.
4. Advocate Ntaote added that the grounds raised by Applicant are not the
recognised grounds of review, at least as suggested by the authors above.
It was added that all the grounds raised are in effect appeal grounds as
they are aimed at challenging the decision or the conclusions made by the
learned Arbitrator. It was said that the complaints merely demonstrate a
mere unhappiness on the part of Applicant about the decision reached in
the arbitral award. The Court was referred to the authority in JDG
Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004, where the learned Judge Dr. Mosito K had the
following to say,
Where the reason for wanting to have the judgment set aside is that the
court came to the wrong conclusion on the facts or the law, the appropriate
remedy is by way of appeal. Where, on the other hand, the real grievance
is against the method of the trial, it is proper to bring a case on review. An
appeal is thus in reality a re-evaluation of the record of proceedings in the
court a quo.
5. Further reference was made to Herbstein & Van Winsen (supra) at page
932-933, where the learned authors observed in the following,
The first distinction depends, therefore, on whether it is the result only or
rather the method of trial which is to be attached ......... The giving of a
judgment not justified by the evidence would be a matter of appeal and not
of review, upon this. The essential question in review proceedings is not the
correctness of the decision under review but its validity.
6. Furthermore, reference was also made to the LTM Harms in Civil
procedure in the Supreme Court: Student Edition, 2nd Ed., at page 313,
footnote 4, where the learned authors wrote as thus,
An incorrect judgment is not an irregularity; an irregularity refers to the
method of conducting the trial...
On the basis of the above said, 1st Respondents prayed that the
application be dismissed.
7. Advocate Phafane for Applicant, submitted that no details have been set
out for the contention that the grounds are appeal and not review.
Without advancing this point further, Advocate Phafane added that, that
notwithstanding this said, the contention is untenable on the ground that
section 228F of the Labour Code (Amendment) Act 3 of 2000, vests this
Court with the jurisdiction to set aside an arbitral award on the grounds
permissible in law and any mistake of law that materially affects the
decision.
Page 175 of 361
8. He went on to submit that the review grounds are that the learned
Arbitrator committed an irregularity by failing to apply her mind to the
evidence before her, which lead her to come to an unreasonable
conclusion. It was added that the ignorance of material evidence
constitutes a ground for review. Advocate Phafane went on to submit that
the second ground of review is that the learned Arbitrator failed to
consider the uncontroverted evidence before her, while the third one is
that the learned Arbitrator awarded a remedy that was not sought. He
argued that these are grounds of review.
9. Advocate Phafane made reference to the case of Coetzee v Lebea NO &
another (1999) 20 ILJ 129 (LC) at page 130, wherein the Court stated that
failure to apply ones mind constitutes a ground for review. He stated that
the Court went on to state that the best way of applying ones mind is
whether the outcome can be sustained by the facts found and the law
applied. He added that this authority was cited with approval in the case
of Security Unlimited (Pty) td v Lesotho Security and Allied Workers Union
& others LC/REV/05/2006(unreported), wherein the Court held that
failure by the arbitrator to appreciate the issue before her, constituted a
ground for review. Further reference was made to the authorities in
Mohlobo & others v Lesotho Highlands Development Authority
LAC/CIV/A/2/2010; and Johannesburg Stock Exchange & another v
Witwatersrand Nigel & another 1988 (3) SA 132 (A) at 152A-E, in support.
10. It is Our opinion that the grounds suggested by Herbstein & Van
Winsen are merely illustrative and not conclusive. Evident to this is a
plethora of authorities cited by Advocate Phafane in substantiation of his
argument, that the grounds raised are review and not appeal grounds.
This said notwithstanding, We wish to comment that We do note and
accept the principles cited in the many authorities that Advocate Ntaote
has referred to, other than Herbstein & Van Winsen. It is Our opinion
that they only go to the extent of demonstrating the circumstances under
which review proceedings are a proper procedure.
11. However, where a challenge of this nature has been placed, the test to
be applied can be found in Khajoe Makoala v Masechaba Makoala C of A
(CIV) 04/2009 at page 4 thereof, where the Court had the following to say,
... whether the applicants affidavits make out a prima facie case.
Consequently the applicants affidavits alone have to be considered and
the averments contained therein should be considered as true for the
purpose of deciding upon the validity of the preliminary point.
12. It is Our opinion that the Applicants averments prima facie make out
a clear case of review. The grounds raised relate to the procedure that
was adopted in reaching the conclusion and are not so much concerned
with the conclusions, as 1st Respondent would like to suggest. While it
may be true that all allegations of irregularity touch on the conclusion,
this in Our opinion is the extend that the conclusion is affected by the
irregularities alleged. Conclusions are therefore secondary and not the
Page 176 of 361
primary question in these proceedings. The grounds raised find support

under section 228F of the Labour Code (Amendment) Act (supra), and the
several other legal authorities cited by Applicant, to qualify as prima facie
review grounds. In view of this finding, We now proceed to deal with the
merits of the review application.
Merits of review
13. On the first ground of review, Advocate Phafane for Applicant
submitted that the learned Arbitrator ignored material evidence showing
that payment of pensions was made to employees and certainly not to
persons dismissed as a result of malfeasance. It was added that as a
result, the learned Arbitrator failed to appreciate that she could not draw
a comparison between dismissed employees and those that had been reengaged. It was added that there is a distinction between employees and
non-employees. It was said that this was more so given that it was
common cause, per the pre-arbitration conference minutes, that an
employee dismissed for malfeasance would not be entitled to payment. He
further submitted that it was irrational for the learned Arbitrator to have
applied the principle of inconsistency where the circumstances of the two
classes of employees were distinct.
14. In reply, Advocate Ntaote submitted that no evidence was ignored by
the learned Arbitrator. He stated that in fact the learned Arbitrator did
not only consider all material evidence, she applied her mind to all
evidence. He referred the Court to paragraph 12 of the DDPR arbitral
award. He added that, having considered and applied he mind to all
evidence, the learned Arbitrator held that the fact that the employees who
received their pensions had been re-employed did not act as a
distinguishing factor that disentitled 1st Respondents from payment of
same. He added that this was the basis of the conclusion of the learned
Arbitrator that Applicant had been inconsistent in the application of its
rules.
15. We have perused paragraph 12 of the DDPR arbitral ward. We have
observed that this is the key paragraph in the award as it addresses the
bulk of the parties case and defence, respectively. We have noted that the
learned Arbitrator has considered all the evidence material towards the
determination of the matter, contrary to the Applicants suggestion. The
learned Arbitrator acknowledged that some of the employees were paid on
the basis of the fact that they had been re-employed but disqualified that
as a distinguishing factor. The comparison made in the award was not
between the dismissed employee and those re-employed by but rather the
entitlement of some to the exclusion of others, yet all employees had been
dismissed for malfeasance.
16. In coming to Her conclusion, the learned Arbitrator had relied on the
legal principle from a plethora of authorities that She cited. She made
reference to the cases of CGM Industrial (Pty) Ltd v Nkalitsoe Molieleng &
another LC/REV/61/2007, CEPPWAWU & others v Metrolife (Pty) Ltd
Page 177 of 361
[2004] 2 BLLR 103 (LAC; SRV Mills Services (Pty) Ltd v CCMA & others
[2004] 2 BLLR 184 (LC); and Cape Town City Council v Masitho (2000) 21
ILJ 1957 (LAC). The principle relied upon is record as thus,
Consistency is not a rule as such but a principle of fairness. Where two
employees have committed the same misconduct and there is nothing to
distinguish them, they should be generally dealt with in the same way.
17. From the above legal conclusion, the learned Arbitrator came to the
following recorded factual conclusion,
The respondent has dismally failed to present factors distinguishing
applicants from all other employees who got paid their pensions moneys.
The fact that some were re-employed is not a distinguishing factor at all.
In Our view, the conclusion of the learned Arbitrator is sustained by the
facts presented and the law that she applied. As a result, neither the
attack that She failed to apply her mind to the evidence before Her or that
Her conclusion was irrational, can sustain. There is a necessary link
between the facts, the law and the conclusion that She made.
18. On the second ground of review, Advocate Phafane submitted that the
learned Arbitrator committed an irregularity in that She failed to consider
the uncontroverted evidence of parties, that those who received pensions
did so on the basis of their new contracts. He added that this issue was
common cause between parties per the minutes of the pre-arbitration
conference.
19. To support the above argument, reference was drawn to the case of
Standard Bank of Bophuthatswana Ltd v Reynolds NO (1995) 3 BCLR 305
(B) at 318G, where the court held that where a decision maker ignores
uncontroverted evidence, then the decision is null and void. Further
reference was made to the case of Carephone (Pty) Ltd v Marcus NO & 7
others (1998) 11 BLLR 1093 (LAC) at 1103, where the Court held that
there must be a rational objective justifying the connection made by the
decision-maker between the material available and the conclusion made.
20. Advocate Ntaote submitted that the learned Arbitrator considered the
alleged evidence. He again made reference to paragraph 12 of the arbitral
award. It was his case that the learned Arbitrator considered the evidence
alleged to have been ignored in that, She stated that while it is alleged
that those who received their pensions did so on the basis of their new
contracts, that was not a distinguishing factor. He added that this is
indicative of the fact that that common cause issue was considered.
21. While We acknowledge the principle laid out in Standard Bank of
Bophuthatswana Ltd v Reynolds NO (1995) 3 BCLR 305 and Carephone
(Pty) Ltd v Marcus NO 7 others (1998) 11 BLLR 1093 (LAC), We are in
disagreement with Applicant on this ground. We have stated in Our
analysis on the first ground of review that all material evidence was
considered. We even went to the extent of quoting a portion in the arbitral
award where such evidence was considered. We therefore reiterate the
Page 178 of 361
contents of paragraph 17 of this Judgment and find that all material

evidence was considered including evidence that forms the subject of the
second ground of review. Consequently, it cannot sustain as well.
22. Lastly, Advocate Phafane submitted that it was irregular for the
learned Arbitrator to have awarded the 1st Respondent a relief that was
not sought in their referrals. Reference was made to annexure NBIII.
Advocate Phafane submitted that this was sufficient cause to have the
entire award set aside.
23. Advocate Ntaote replied that the learned Arbitrator granted what was
sought, at least in terms of prayers (b) and (c) of the award. He added that
at best, the learned Arbitrator can only be accused against further
directing that Applicant submit that names and all necessary documents
in respect of the applicants to Alexander Forbes Financial Services for
processing of Applicants pension monies, as this was not part of the relief
sought. He prayed that the Court should correct the award by setting
aside the award number (a) and not entire the arbitral award.
24. In terms of section 228F of the Labour Code (Amendment) Act (supra)
and the authority in Mohlobo & others v Lesotho Highlands Development
Authority (supra), a review is granted when the court finds that the
mistake committed is of such a material nature that it vitiates the entire
decision. It is undisputed that the learned Arbitrator committed a mistake
in the sense that She awarded a prayer not sought. We have perused
annexure NBIII and have made a discovery to the effect that the only
prayer granted, which was not sought is prayer (a) in the award. What
remains is whether the award would still stand had the mistake not been
committed. This analogy is drawn from the legal conclusion in Mohlobo &
others v Lesotho Highlands Development Authority (supra).
25. It is Our view that that award would still stand, which is to the effect
that Applicant must pay all the 1st Respondents within 30 days of receipt
of the award. Further, We are of the opinion, notwithstanding the
apparent mistake of law in the final award, that what the learned
Arbitrator awarded in award (a), was intended to give direction to parties
on how to execute both awards (b) and (c). Consequently, this ground is
not sufficient to warrant the review of the arbitral award as prayed by
Applicant. We decline to correct and substitute award (a) of the arbitral
award as that would be irregular under the current circumstances.
Page 179 of 361
AWARD
a) The review application is refused;
b) The award of the 2nd Respondent remains in force;
c) That the said award must be complied with within 30 days of receipt
herewith; and
2013.
T. C. RAMOSEME
Mr. KAO
Mrs. MALOISANE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. PHAFANE
ADV. NTAOTE
Page 180 of 361

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LESOTHO

Vo lum e 2 (201 3 Judge m e nt s)

ABOUT THE AUTHOR

Nokoane Mokhatla v Lesotho Brewing Company

Manapo Ramaisa and others v Nien Hsing

Pope John Paul XXIII and another v Tabang

Thuso Motlalentoa and another v Motsoalipakeng Tlokotsi C of A (CIV)

MDA & another v DPP 2000 2004 LAC 850

Nedbank Lesotho Limited v Lefosa & others LC/REV/01/2011

Cheall v Association of Professional Executive, Clerical and Computer Staff

Books and Journals

IN THE LABOUR COURT OF LESOTHO

In the matter between:

to consider them and its records in making its finding. Applicants

IN THE LABOUR COURT OF LESOTHO

In the matter between:

something that would lead to a disciplinary action begin taken against

practice that both names of the instructing attorney and practicing

IN THE LABOUR COURT OF LESOTHO

In the matter between:

the court may be moved to refuse condonation, regardless of the prospects

IN THE LABOUR COURT OF LESOTHO

In the matter between:

The question is whether a reasonable objective and informed person

of the DDPR proceedings. He thus prayed that this review application be

IN THE LABOUR COURT OF LESOTHO

In the matter between:

mere allegation contrary to the requirements of the law relating to that

case. As a result, anyone determining whether or not a party had a

Mr. Macheli: So applied to be re-employed [and] not renewal of your

IN THE LABOUR COURT OF LESOTHO

In the matter between:

clear that he is not interested in prosecuting this matter to finality and

IN THE LABOUR COURT OF LESOTHO

In the matter between:

and her complainant colleague which was at the instance of the

IN THE LABOUR COURT OF LESOTHO

In the matter between:

8. In casu, Applicant has attempted to invoke Rule 27 to influence this

IN THE LABOUR COURT OF LESOTHO

In the matter between:

1.1 The Respondent herein is Ellerines Furnishers Lesotho (Pty) Ltd.

that these Respondents were employed by Ellerines Holdings Limited and

anywhere where He considered this issue to make his determination.

IN THE LABOUR COURT OF LESOTHO

In the matter between:

they have no interest in pursuing the matter to finality but rather to

IN THE LABOUR COURT OF LESOTHO

In the matter between:

IN THE LABOUR COURT OF LESOTHO

In the matter between:

IN THE LABOUR COURT OF LESOTHO

In the matter between:

7. Respondent replied that the deponent was duly authorised to depose to

23. This Court has stated in a plethora of cases that unsubstantiated

IN THE LABOUR COURT OF LESOTHO

In the matter between:

3. Acting on our own motion, We raised a preliminary point concerning this

IN THE LABOUR COURT OF LESOTHO

In the matter between:

It is my considered view that the applicant could not have been

unreasonableness is a valid review ground. Other than the authority

IN THE LABOUR COURT OF LESOTHO