LLCJ Volume 4

LESOTHO
LABOUR
COURT
JUDGMENTS
A compilation
Vo lum e 4 (2015 Judge m e nt s)
LESOTHO LABOUR
COURT JUDGMENTS
A COMPILATION
2015 JUDGMENTS
Volume 4
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 fourth sequence to the Lesotho Labour Court Judgment
Series. The first volume, on the one hand, contains judgments from early in
the last quarter of 2012 to December of that year. The second volume, on the
other hand, contains judgments issued in the year 2013, while the third
volume contains issued in the year 2014, which are 52 in number. This
volume contains judgments issued in the year 2015, from January to
October 2015, which are 54 in number.
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
October 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
x - xiii
xiv
xiv
Liteboho Mokobori v Edgars Stores Lesotho (Pty) Ltd

t/a Jet Mafeteng and another..
Review; administration of oath on witnesses;
admissibility of unsworn evidence; contradictory
evidence; unchallenged evidence
Keneuoe Molapo and others v Water and Sewage
Company.
Declaratory order; prescription; cause of action;
jurisdiction of the court
Lambert Tapotsa Lephuthing v Sun International
(Pty) Ltd and another..
Review; determination of common cause facts; the
right of parties to argue; waiver of the right to argue
Lesotho Consolidated Civil Contractors (Pty) Ltd v
Lekena Letsie and another
Review; admission of facts; costs awarded
Mantsane Rantekoa v Nedbank Lesotho and others..
Review; prerequisites in fair dismissal for misconduct
Ever Successful Textile (Pty) Ltd v Tajane Tajane and
another.
Review; costs; rule in motion proceedings;
unreasonableness as a review ground
Nkomo Mohlapisi and others v Examination Council
and another
Review; ignorance of evidence; reviewability
Koali Molapo v OK Bazaars Lesotho (Pty) Ltd t/a
Shoprite and another..
Review; condonation; res judicata
Matseliso Teiso v OK Bazaars Lesotho (Pty) Ltd t/a
Shoprite and another..
Review; irrationality; capriciousness; arbitrary;
correction of the award
Boliba Multi-Purpose Coop v Sekoala Motsoasele and
another.
Rescission; requirements
1-8
9 - 14
15 - 18
19 - 22
23 - 27
28 - 32
33 - 36
37 - 41
42 - 44
45 - 49
Sinohydro Corporation (Pty) Ltd v Hlalele Ralienyane

and another
Review; appeal and review distinguished
Weng Rong Enterprises (Pty) Ltd v DDPR and
another.
Rescission; requirements
Tepo Mokau v Liqhobong Mining Development (Pty)
Ltd and others..
Review; estopel; ultra vires; lis pendens
Lesotho Brewing Company (Pty) Ltd v DDPR and
others
Review
Retelisitsoe Makhooane and others v Jikelele
Services (Pty) Ltd..
Unfair dismissal; operational requirements
Kali Mofosi v Formosa Textile Co. (Pty) Ltd.
Unfair dismissal; participation in a strike; jurisdiction
declined
Thandiwe Labane and others v Tai Yuan Garments
(Pty) Ltd
Matepo Mohale and others v TZICC Clothing
Manufacturer (Pty) Ltd
Discrimination; failure to attend; unchallenged
evidence
National Union of Commerce, Catering and Allied
Workers v Sun International (Pty) Ltd and another.
Contempt; enforcement of DDPR awards
Mabokang Mohafa v Good Trading Supermarket
(Pty) Ltd and another..
Unfair dismissal; operational requirements;
condonation; jurisdiction to grant remedy sought;
matter improperly referred
Meditterean Shipping Company (Pty) Ltd v Thapelo
Khitane..
Stay of enforcement; stay improper; source of fear not
valid
Malineo Mafisa and others v Lesotho Flour Mills Ltd
and another
Review; condonation; dismissal for want of
jurisdiction
Presitex Enterprise (Pty) Ltd v Soai Letsie
Review; non-joinder; ignored evidence; reviewability
Rampar Trading (Pty) Ltd t/a Dodos Shoes v
Nthabiseng Joyce Seetsi and another
Review; condonation; distinction between review and
appeal; issues not canvassed rule
vi
50 - 54
55 - 58
59 - 62
63 - 68
69 - 71
72 - 75
76 - 80
81 - 83
84 - 87
88 - 91
92 - 96
97 - 101
102 - 107
108 - 112
Sobita Investment (Pty) Ltd t/a Lakeside Hotel v

DDPR and others.
Review; improper procedure
Puseletso Mafatle v J & S Fashion (Pty) Ltd and
another.
Review; non-compliance; lack of relevant facts;
distinction between appeal and review
Tai Yuan Garments (Pty) Ltd v Machere Leraisa and
another.
Review; point of law taken from the bar;
unreasonableness as a review ground
Ntoa Gerard Chabeli v Security Lesotho..
Workmens Compensation claim; requirements
considered
Lineo Bulane v New Star Supermarket (Pty) Ltd
unfair dismissal; unpaid overtime; unpaid weekly ret
days; failure to attend; unfair labour practice
Masilo Masilo v Naleli Supermarket (Pty) Ltd and
another.
Enforcement of DDPR award; jurisdiction of the court
to enforce DDPR awards; Sources of the labour Law of
Lesotho; interpretation of section 24 of the Labour
Code Order.
Koalepe Makatsela v Econet Telecom Lesotho
Lesotho Clothing and Allied Workers Union o.b.o
Maphokoane Nkoko and others v Jonsson
Manufacturing (Pty) Ltd
Unpaid union dues; jurisdiction of the Court;
incidental jurisdiction
Mothae Moletsane and another v Population Services
International .
Teboho Maema v The Rosehip Company.
postponement application; authority to represent;
importance of authority to represent; ignorance of the
law
Thabang Esaia Marley Thite v Mine Workers
Development Agency
Bokang Mokoena v Stallion Security
admissibility of documentary evidence
Boithatelo Ratoane v PACT Lesotho.
Matlalane Rapapa and others v Tepong (Pty) Ltd
Prohibitory interdict, declaratory order; specific
performance; settlement agreement
vii
113 - 115
116 - 121
122 - 124
125 - 126
127 - 132
133 - 135
136 - 142
143 - 146
147 - 155
156 - 164
165 - 176
177 - 185
186 - 190
191 - 196
Ntsukunyane Mokhotho and others v Mamohau

Hospital ..
Unpaid salaries; urgent application; requirements for
urgency; jurisdiction of the court
Mathabiso Sibolla and others v Tepo ea Sechaba
(Pty) Ltd t/a Pay Save Hyperstores (Pty) Ltd...
Unpaid maternity leave; unpaid notice; jurisdiction of
the court; principle of incidental proceedings
Sam Mokhele v Factory Workers Union ..
Enforcement of DDPR award; amalgamation of
unions; legal effect
Maseru Prep School and School Board v Mampho
Motusi and another..
Review
Ellerines Furnishers (Pty) Ltd v Mapesela Moejane
and others .
Review; distinction between appeal and review;
factors to consider in awarding just and equitable
compensation
Sinohydro Corporation (Pty) Ltd v Rorisang Moreki
and another
Review; failure to apply a mind
Eric Masara v Tepong (Pty) Ltd and another.
Review; finality to litigation; res judicata; once and for
all principle; effect of a settlement agreement in unfair
dismissal cases
National University of Lesotho v Pheello Nthakeng
Selinyane
Review; distinction between appeal and review
Makatleho Moleka v U Save Shoprite (Pty) Ltd and
another.
Review; breach of rules of the court; distinction
between appeal and review; jurisdiction of the court
Limkokwing University of Creative Technology (Pty)
Ltd v Malisema Makoa and others.
Review; rule in motion proceedings; legitimate
expectation; considerations in assessing
compensation
Sello Mphou v Boliba Multi-purpose Corporation and
another
Review; failure to consider evidence;
unreasonableness; arbitrariness
Reliable Transport Company v Tseko Kobile and
others ..
Review; failure to consider evidence;
unreasonableness; arbitrariness
viii
197 - 202
203 - 206
207 - 210
211 - 216
217 - 221
222 - 225
226 - 229
230 - 237
238 - 245
246 - 252
253 - 258
259 - 265
Mamosotho Moima v TFS Wholesale (Pty) Ltd and

another.
Review; failure to apply a mind; sections 227(8) and
228A interpreted
Thialala Security (Pty) Ltd v Matsietsi Ntsiki and
others
Review; opposition withdrawn
Mohapeloane Mohapeloa v Lesotho Electricity
Company (Pty) Ltd
Interdict; jurisdiction; failure to establish a right;
material non-disclosure
Kabelo Teisi v Minopex Lesotho (Pty) Ltd.
Underpayments; unfair dismissal; jurisdiction of the
court
ix
266 - 269
270 - 273
274 - 280
281 - 283
LIST OF AUTHORITIES
Cases
National
Mokone v Attorney General & others CIV/APN/232/2008
Lewis Stores (Pty) Ltd v Makhabane and Others LC/REV/387/2006
J.D. Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004
Theko v Commissioner of Police and Another 1991-1992 LLR-LB 239
Central Bank of Lesotho v DDPR & Others LC/REV/216/2006
Puleng Mathibeli v Sun International 1999-2000 LLR-LB 374 (CA)
Maleshoane Bohloa and Others v Jet Store Maseru (Pty) Ltd & Others
LC/REV/48/04
Thabo Phoso v Metropolitan Lesotho LAC/CIV/A/10/2008
Mokone v G4S Cash Solutions (Pty) Ltd LC/31/2012
Thabo Makhalane v The Ministry of Law and Constitutional Affairs & others
LC/PS/A/02/2012
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)
Molaoli v Lesotho Highlands Development Authority LAC/A/06/2005
Mantsane Mohlobo & Others v Lesotho Highlands Development Authority
(LAC/CIV/A/02/2010)
Lepolesa & others v Sun International of Lesotho (Pty) Ltd t/a Maseru Sun and
Lesotho Sun (Pty) Ltd [2011] LSLAC 4
Tsakatsi v Lesotho Electricity Company (Pty) Ltd LC/REV/36/2008
Motebang Ramahloko v Commissioner of Police & another C of A (CIV)
11/2008
Maliehe & Others v Rex 1995-1999 LAC 258 at 263
Pascalis Molapi v Metcash Ltd Maseru LAC/CIV/REV/09/2003
Ministry of Public Service & Another v Masefabatho Lebona C of A (CIV)
06/2012
Napo Thamae & another v Agnes Mokone & another C of A (CIV) 16/2005
Potlako Thabane & another v Workmens Compensation Trust Fund Committee
& two others LC/08/2009
Matsemela v Nalidi Holdings (Pty) Ltd t/a Nalidi Service Station
LAC/CIV/A/02/2007
Security Lesotho v Lebohang Moepa
Security Lesotho v Khauhelo Moeno
Ntseke Molapo v Mphuthing & Others 1995-1996 LLR-LB 576
Moshoeshoe v Seisa & others CIV/T/596/2004
Jerome Ramoriting & Another vs Lesotho Bank-National Development Bank
(CIV/APN/136/87
Thabiso Moletsane v Ministry of Public works and Transport LC/31/2014
Lesotho Precious Garments v DDPR & Others LC/REV/24/2012
Leteng Diamonds (Pty) Ltd v DDPR & Others LAC/REV/111/2015
Standard Lesotho Bank v Raphael Mphezulu LC/REV/87/2011
National Executive committee of the Basotholand Congress Party .v. Maholela
Mandoro CIV/APN/69/2004
Pascalis Molapi v Metcash Ltd Maseru, LC/06/1994

Lesotho Bank v Mahlomola Khabo C of A 21/99
Standard Lesotho Bank Ltd v Masechaba Ntihlele and another
LC/REV/28/12
Standard Lesotho Bank v `Nena and Another LAC/CIV/A/06/08
Lerotholi Polytechnic & another v Blandina Lisene C of A (CIV) 25/2009
Nokoane Mokhatla v Lesotho Brewing & others C of A (CIV) 35/2013
Phetang Mpota v Standard Bank LAC/CIV/A/06/2008
Astoria Bakery Lesotho (Pty) Ltd v Thabiso Mokhesuoe LC/59/2004
Selloane Mahamo v Nedbank Lesotho Limited LAC/CIV/04/2011
Letsosa Hanyane v Total Lesotho (Pty) Ltd CIV/APN/412/1997
Lesotho Brewing Company t/a Maloti Mountain Brewery v Lesotho Labour
Court President & Another CIV/APN/435/95
Nafisa Moosa & another v Directorate of Dispute Prevention and Resolution &
another LC/REV/570/2006
I. Kuper (Lesotho) (Pty) Ltd v Benjamin Maphate & others C of A (CIV) 40/2010
CGM Industrial (Pty) Ltd v Moliekeng LC/REV/61/2007
Nkopa Emmanuel Letuka v Yacoob Abubaker & Others C of A (CIV) 17/2012
Mokhethi v Matlole and others C of A (CIV) 03/2012
Makoala v Makoala C of A (CIV) 04/2009
Ever Successful Textile (Pty) Ltd v Tajane Tajane LC/REV/139/2013
Masekhanto Sekhanto v Maluti Mountain Brewery & Another
LC/REV/36/12
Lenka Mapiloko v Pioneer Seed (RSA) and others LAC/A/08/08
Standard Lesotho Bank v Lijane Morahanye & another LAC/CIV/A/06/08
Mocholo v Lesotho Bakery (Blue Ribbon) (Pty) Ltd LAC/A/04/04
Madibeng v Lesotho Bank 199 (Pty) Ltd LC/34/05
Mokhisa & Others v Lesotho College of Education LC/59/2005
Lesotho Highlands Development Authority v Tsotang Ntjebe C of A (CIV)
7/2012
Kabelo Teisi v Minopex Lesotho (Pty) Ltd LC/56/2013
Mathabiso Sibolla & others v Tepo ea Sechaba (Pty) Ltd t/a Pay n Save
LC/14/2015
Moleko Electrical Contractors v Labour Commissioner o.b.o Mokete Toeu
LC/REV/20/08
Mamateliso Toana & 61 Others v Nien Hsing International (Pty) & Another
LAC/REV/05/2011
Lesotho Highlands Development Authority v Motumi Ralejoe & Others
LAC/CIV/A/03/2006
Chun Chu Enterprises (Pty) Ltd v Seqokofa & Another LC/REV/532/2006
Factory Workers Union v Ever Unison Garments (Pty) Ltd LC/07/2004
Maphoto Machelo v Lesotho Bakery (Blue Ribbon) LAC/A/04/2004
Makhobotlela Nkuebe v Metropolitan Lesotho LC/79/2006
Lesotho National Olympic Committee v Morolong LAC (2000 2004) 49
Motemoka Mokaba v Security Lesotho (Pty) Ltd LC/98/1995
National University of Lesotho v Ntitsane & others CIV/APN/454/2012
Lepule v Lepule CIV/APN/193/13
Nthati Mokitimi v Central Bank of Lesotho LC/23/2011
Chen Yu Bo v Paballo Theko and others LAC/REV/08/2013
xi
Lehloenya
&
Others
v
Lesotho
telecommunications
corporation
LAC(CIV)4/2003
Lesotho Brewing Company v Labour Court President CIV/APN/435/95
Limkokwing University of Creative Technology (Pty) Ltd v Malisema Makoa &
Others LC/REV/109/2012
Khoai Matete v Institute of Development Management LC/46/2000
Thabo Mpakanyane v Ministry of Communications, Science and Technology
and the Attorney General LC/PS/A/01/2010
Thabo Teba & 31 Others v Lesotho Highlands Development Authority
LAC/CIV/A/06/09
Kule and Others v Lesotho Highlands Development Authority and another
LC/REV/77/2008
Thabo Mohlobo and 13 others v Lesotho Highlands Development Authority and
Another LC/REV/42/2009
Nien Hsing v Morero Mohlahatsa LC/REV/48/2011
Thandiwe Labane and others v Tai Yuan garments (Pty) Ltd LC/43/2013
LTC v Rasekila LAC (1990-1994) 261; Lesotho Bank v Moloi LAC (1995-1999
Limkokwing University of Creative Technology (Pty) Ltd v Tebello Mothabeng
LC/REV/88/2011
Telecom Lesotho (Pty) Ltd v Seqao Phenya LC/REV/10/2010
Pheko Mafantiri v Lesotho Revenue Authority LC/13/2008
Mahoko Setipe v Nien Hsing International (Pty) Ltd LC/REV/62/2011
National University of Lesotho & Another v Motlatsi Thabane C of A (CIV)
3/2008
Thabo Makenete v Major General Justin Lekhanya and others C of A (CIV)
17/1990
Tai Yaun Garments (Pty) Ltd v Machere Leraisa & Another LC/REV/17/2012
Action Statistical Investment (Pty) Ltd t/a Pick n Pay v Lesia Monanabela &
another LC/REV/33/2011
Presitex Enterprise (Pty) Ltd v Soai Letsie and another LC/REV/162/2013
Nko v Nko LAC 1990-1994 312
CGM Industrial (Pty) Ltd v Lesotho Clothing and Allied Workers Union and
Others C of A (CIV) 10/99
Attorney General v Lesotho Teachers Trade Union & Others C of A 1991-1996
Vol. 1 LLR 16
Mamahao Nkhasi v Lesotho Electricity Corporation and 4 Others
CIV/APN/36/08
Thabiso Moletsane v Ministry of Public works and Transport LC/31/2014
Foreign
Pillay v Krishna 1946 AD 946
Garton v Hunter [1969] 1 All ER 451, [1969] 2 QB 37
CASA v Tao Ying Metal Industries & others 2009 (2) SA CC
Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA
623).
Port Nolloth Municipality v Xhalisa and Lawalala v Port Nolloth Municipality
1991 (3) SA 98 (c) at 111 B21
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau No & Another
(2009) 30 ILJ 279 LAC
xii
Melane v Santam Insurance company Ltd 1962(4) SA 531 AD

Edcon Ltd v Pillemer No & Others 2010 BLLR ISCA
Sedumo v Platinum Mines Ltd & Others BLLR 2007 (12) 1097 (CC)
Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and
Another, 1988 (3) SA 132 (A)
Carephone (Pty) Ltd v Marcus NO & 7 others (1998) 11 BLLR 1093 (LAC)
Real Estate Services (Pty) Ltd v Smith (1999) 20 ILJ 196
Hohaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A)
RAS Liquor Licensing Board Area 11 Kimberly 1966(2) SA 232 (c)
SA Commercial Catering & Allied Workers Union and Another v ETA
Audiovisual (1995) 16 ILJ 925 at 930 E
Lead Melding Company v Richardson 1962 BLLR 341
Hlatswayo and Others v Hein (LCC31/96) [1997] ZALCC
Great North Falls v RAS 1972 (4) SA 7
National Union of Metal Workers of South Africa & Others v Cribard (Pty) Ltd
(2008) 29 ILJ 694
Rustenburg Platinum Mines Ltd .v. CCMA 2007 (1) SA 576 (SCA)
Attlantis Diesel (Pty) Ltd v Numsa 1995 (1) B4R (1) AD
Mirabel & Others v Manchu Consulting CC (1999) 20 ILJ 1718 (LAC)
BMD Knitting Mills (Pty) Ltd v SACTWU (2001) 22 ILJ 2264 (LAC)
Plascon Evans Paints (Pty) Ltd v van Riebeck Paints (Pty) Ltd 1984 (3) SA
623 (A)
Goosen v Caroline Frozen Yoghurt Parlor (Pty) Ltd & another (1995) 16 ILJ 396
(IC)
Carlill v Carbolic Smoke Ball Co. (1893) 1 QB 256
Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC)
Flyde v Wrench [1840] 49 ER 132
Francis v Canadian Imperial Bank (1994) 7 C.C.E.L. (2nd) 1 (Ont. C.A)
Solidarity & Another v SA National Parks (2008) 29 ILJ 2801 (LC)
East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd &
others [2011] ZAGPJHC 196
Aroma Inn v Hypermarkets & Another 1981 (4) SA 108
Setlogelo v Setlogelo 1914 AD 221
Makhuva v Lokoto Bus Service (Pty) Ltd 1987 (3) SA 376
Chief Constable of the North Wales Police v Evans [1982] 3 ALL ER 141
Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and
Another 1988 (3) SA 132 (A)
Rustenburg Platinum Mines Ltd v Crause 45/2004
S v Roberts 199 (4) SA 915 (SCA)
Bernet v ABSA Ltd (2010) ZACC 28
Kamogelo v Motlhagodi and Others 1997 BLR 216 (HC
Schlesinger v Schlesinger 1979 (4) SA 342
xiii
Legislation
National
Labour Code Order 24 of 1992
Labour Code Amendment Act 3 of 2000
Labour Code (Codes of Good Practice) Notice of 2003
Labour Code (DDPR) Regulations of 2001
Labour Court Rules of 1994
Labour Appeal Court Rules of 2002
Workmens Compensation Act of 1977
Labour Code Wages Order
Labour Code (Conciliation and arbitration) Guidelines of 2004
Subordinate Court Order of 1988
Foreign
Convention 156 of the ILO Standards
Books and Journals

Van Jaarsveld and Van Eck, 1998, Principles of Labour Law, Butterworths
Baxter, 1984, Administrative Law, Juta & Co.
H. Daniels, 6th Ed., Becks Theory and Principles of Pleading in Actions,
Butterworths
Schalk Van Merwe et al, 1st Ed., Contract: General Principles, Juta and Co.
Herbstein & van Winsen, 1997, 4th Ed., The Practice of the Supreme Court of
South Africa, Juta & Co.
Carolyn Edwards, Freedom of Contract and Fundamental Fairness for
Individual Parties: The Tug of War Continues, (2009) Law Review Vol. 77:3,
647 at 647-648
Briggs, The Incidental Jurisdiction of the International Court of Justice as
Compulsory Jurisdiction, 1960
Protection against Unjustified Dismissal, ILO, Geneva, 1995
xiv
IN THE LABOUR COURT OF LESOTHO

HELD AT MASERU
LC/REV/01/2010
E051/2008
IN THE MATTER BETWEEN

LITEBOHO MOKOBORI
APPLICANT
AND
EDGARS STORES LESOTHO (PTY) LTD
T/A JET MAFETENG
THE ARBITRATOR
Ms. M MASHEANE (DDPR)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Ten grounds of review raised and
two later withdrawn. Court not finding merit in the remaining grounds. Review
being refused and no order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
E051/2008. Ten grounds of review had initially been raised on behalf of
Applicant. However, on the date of hearing Applicant withdrew two
grounds, specifically the seventh and ninenth grounds, and only
proceeded on the basis of the remaining eight grounds.
2. The brief background of the matter is that Applicant was employed by the
1st Respondent until he was dismissed for misconduct. Unhappy with the
award, he initiated the current review proceedings. Having heard the
presentations of parties, Our judgment follows.
SUBMISSIONS AND ANALYSIS
3. The first review ground was that the learned Arbitrator erred by refusing
Applicant the opportunity to call his witness. It was submitted that
Applicant has sought the postponement of the matter to enable him to
secure the attendance of his witness. It was submitted that the evidence
of the witness was to prove that Applicant was not guilty of misconduct,
by corroborating his evidence.
4. Respondent answered that it is
point seek a postponement to
support that evident to this is
alleged events.
Further that
not accurate that Applicant did at some

secure his witness. It was argued in
the fact the record does not reflect the
given that the record has not been
Page 1 of 283
challenged but accepted as true and accurate, the argument by Applicant

be dismissed.
5. Applicant has not referred Us to any portion of the record where it is
recorded that a postponement was sought for the purpose canvassed and
refused. This being the case, We are inclined to accept the Respondent
argument that no such postponement was made, for a simple reason that
it is he who alleges that must proof. The principle was enunciated in the
case of Pillay v Krishna 1946 AD 946 at 952, where the court had the
following to say,
In my opinion, the only correct use of the word onus is that which I
believe to be its true and original sense (cf.D.31.22) namely the duty which
is cast upon the particular litigant, in order to be successful, of finally
satisfying the Court that he is entitled to succeed on his claim or defence as
the case may be
6. We wish to highlight the record of proceedings before the DDPR is meant
to serve as proof of what happened in the proceedings. Having been
accepted by both parties as accurate, We are bound to rely on it for Our
conclusion. Consequently, We find that no postponement was sought as
suggested by Applicant, for he has simply made a bare allegation without
factual support from the record. It is trite law that bare allegations
without supporting facts are both unsatisfactory and unconvincing (see
Mokone v Attorney General & others CIV/APN/232/2008). We therefore
find that no irregularity was committed by the learned Arbitrator.
7. The second ground of review was that the learned Arbitrator erred in
holding that Applicant was fairly dismissed. It was argued that in coming
to this erroneous decision, the learned Arbitrator relied on irrelevant,
hearsay, uncorroborated, self-contradictory and inadmissible evidence.
8. It was argued that Respondent witness by the name of Moipone gave
evidence without first taking an oath. The Court was referred to page 4 of
the record. It was submitted that as a result, the evidence of Moipone is
inadmissible and ought not to have been considered by the learned
Arbitrator. The Court was referred to the case of Lewis Stores (Pty) Ltd v
Makhapane and Others LC/REV/387/2006 ,in support of the argument.
9. It was further argued that the evidence of one Moliehi, witness for
Respondent, was self-contradictory. It was submitted that at one point
witness claimed that the window was not broken and at some point she
said she never saw the window. The Court was referred to pages 10 and
11 of the record, for the two incidents.
10. It was furthermore argued that was one Lerato, witness for
Respondent, gave contradictory account of the incident that led to the
dismissal of Applicant. It was submitted that Lerato gave the impression
that Applicant was the only user of the cards but later changed to say
Page 2 of 283
that all employees of Respondent had access. The Court was referred to
pages 25 and 27 of the record, for a record of the two incidences.
11. Moreover, it was argued that one Tlalane Toene had testified that
there was no crack on the window and that evidence corroborated that of
one Ngwenya. However, one Mrs. Moshe gave evidence that there was a
crack, thus corroborating the evidence of the Applicant. It was submitted
that the trio were the witnesses of Respondent, yet they gave
contradictory versions of what took place. The Court was referred to
pages 72, 85 and 67 of the record respectively.
12. It was argued that it was wrong for the learned Arbitrator to have
relied on the Respondents contradictory evidence. It was added that the
learned Arbitrator did not even address the contradictions, to justify Her
reliance on the evidence of the said witnesses. It was argued that clearly,
the learned Arbitrator simply did not apply Her mind to the facts before
Her and that this led Her into making the wrong conclusion.
13. Respondent answered that the learned Arbitrator addressed all the
issues complained of in Her award. It was added that Applicant is simply
unhappy with the decision and that this is an appeal disguised as a
review. However, Respondent conceded that the first witness by the
name of Moipone was not sworn in before She gave evidence, save to say
that even if ignored or disregarded, the evidence of other witnesses was
still strong enough to lead to a finding of guilt on the part of Applicant.
14. We have gone through the record of proceedings at page 4. We have
noted that there is no record of the administration of an oath on the
witness. This being the case and in the light of the finding of the Court in
Lewis Stores (Pty) Ltd v Makhabane and Others (supra), We find that it
was irregular for the learned Arbitrator to rely on evidence not taken on
oath.
15. However, We do take note that Moipone was not the only witness for
Respondent as there were other witnesses including one Ngwenya,
Tlalane and Moshe. This being the case and coupled with the fact that
Applicant has not shown the impact of the evidence of Moipone and how
declaring it inadmissible alters the conclusion made, We are inclined to
agree with Respondent that it does not nullify the award (see J.D. Trading
(Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004).
16. We have also considered the evidence of Moipone at pages 10 and 11
of the record. At page 10, the following is recorded:
Ntate:
Lets talk about Jets windows, what happened to them
when this incident occurred?
Moipone:
They were still well, nothing happened to them.
Page 3 of 283
At page 11, the following is recorded:

Ntate:
You saw the furniture shops window what about Jets
window afterwards?
Moipone:
I have never seen it.
Evidently, the evidence of Moipone was self-contradictory. At one point
she claimed to have seen Jets window in a well state and later changes to
claim that she never saw it.
17. About the evidence of Lerato, We have gone through the referenced
pages, that is 25 and 27. Whereas it is suggested that an impression was
created that Applicant was the only user of card and later changed to say
everyone had access, that is not accurate, at least to some extent. We do
confirm that evidence has been given at page 25 that everyone had access
but there is nothing in the two pages that suggests that an impression
was created as put by Applicant. We therefore find no contradiction
contrary to Applicants claim.
18. About the contradiction in the evidence of the three witnesses of
Respondent, We do confirm that out of the trio two witnesses gave
evidence that the window was not broken/cracked while the other said it
was broken. That being the Respondent case before the DDPR was
inconsistent, in that different and contradictory statements were made.
In law, inconsistence in evidence suggests fabrications of facts.
Fabricated facts cannot be relied upon.
However, there are
circumstances where inconsistencies may not nullify the decision made.
This happens where the magnitude is not so high as to render the
material evidence unreliable (see FAWU v Ever Unison Garments
LC/07/2004).
19. Either circumstances prevailing, the decision maker is cast with the
duty to address contradictions in evidence and justify the election made
to either consider the evidence or not. The rational is simply that failure
to consider evidence is a reviewable irregularity (see J.D. Trading (Pty) Ltd
t/a Supreme Furnishers v M. Monoko & others (supra). Whereas Applicant
claims that the contradiction was not addressed in the award,
Respondent rejects the suggestion.
20. We have gone through the arbitration award and have satisfied
Ourselves that the learned Arbitrator not only considered the evidence
but also applied Her mind to the contradictions in the evidence of
witnesses to the proceedings. She came to the conclusion that it was odd
for them to claim not to have seen the crack. This is reflected at page 10,
paragraph 43 of the award. The learned Arbitrator clearly found the
magnitude not to be so high as to nullify the award, hence Her conclusion
that there was a crack on the window. The learned Arbitrator applied Her
mind.
21. The third, fourth and tenth grounds of review were argued together.
Applicant argued that the learned Arbitrator erred in that She failed to
Page 4 of 283
apply Her mind to the findings of the inspection in loco. It was submitted
that at inspection in loco, it was found that there was a crack on the
window. This notwithstanding, the learned Arbitrator made a finding that
all witnesses did not see the crack. The Court was referred to paragraph
43 of the award.
22. Respondent answered that the learned Arbitrator had similarly
addressed the issue in Her arbitration award. It was submitted that the
learned Arbitrator applied Her mind to the evidence of the inspection in
loco. The Court was specifically referred to page 13 of the arbitration
award, where reference is also made to authorities on the issue.
23. We have already stated what is contained in paragraph 43 of the
arbitration award. What We found is contrary to what is suggested by
Applicant, as the learned Arbitrator does not make the suggested
conclusion, but rather that She finds it odd that some of the witnesses
claim not to have seen the crack when it was so visible. This being the
case all arguments raised in this ground fail as they are based on a nonexistent claim.
24. We wish to comment that We have also perused page 13 of the
arbitration award. Regrettably, We are in disagreement with Respondent
that it deals with the findings of the inspection in loco. The page focuses
on mitigating facts and the appeal hearing at the plant level. This
notwithstanding, We maintain Our finding as Respondent claim neither
aids its defence nor alters Our decision on the issue.
25. The fifth ground of review is that the learned Arbitrator failed to apply
Her mind to the unchallenged evidence of Applicant, in the form of
invoices. It was argued that having failed to consider the invoices, The
learned Arbitrator committed a reviewable irregularity. Respondent did
not comment on this argument.
26. In law, what is not challenged is taken to have been admitted (see
Theko v Commissioner of Police and Another 1991-1992 LLR-LB 239 at
242). In view of the Respondents behaviour on the issue, We are inclined
to accept the Applicants version of the events, and to conclude that the
learned Arbitrator did ignore the said invoices. However, We wish to note
that it is not every piece of evidence that must be considered in making a
conclusion. Rather consideration must only be made to evidence that is
material to the matter. Therefore when a party claims that its evidence
was ignored or disregarded, that party must go on to demonstrate the
materiality of the said evidence (See J.D. Trading (Pty) Ltd t/a Supreme
Furnishers v M. Monoko & others LAC/REV/39/2004). In casu, Applicant
has failed to do so. Consequently, We find that the ignored invoices do
not render the award reviewable.
27. The eighth ground was that the learned Arbitrator erred in holding
that Applicant had received a letter dated 14th April 2008 and later
Page 5 of 283
relying on its content to make Her conclusion. It was argued that this
letter was withdrawn from evidence by Respondent after Applicant had
challenged its admissibility. The Court was referred to page 77 of the
record in support.
28. Respondent answered that reference was made to the letter whose
content was that Applicant was invited to submit mitigating factors. It
was argued that there was such evidence on record and that it cannot be
wished away. It was submitted that the learned Arbitrator was right to
consider the contents of the letter.
29. In law, where reference is made to a document and its content, then
that document must be placed before Court. The purpose is to have it
tested for authenticity as well as veracity. Supportive of Our attitude is
the view of the court in Garton v. Hunter [1969] 1 All ER 451, [1969] 2 QB
37, in dealing the Best Evidence Rule, the learned Judge Lord
Denning MR stated as thus,
The old rule, that a party must produce the best evidence that the nature
of the case will allow, and that any less good evidence is to be excluded,
has gone by the board long ago. The only remaining instance of it is that, if
an original document is available on ones hands, one must produce it;...
30.
Once the evidence has passed this twofold test the Court can then
rely on it to make its conclusion. In casu, Respondent made reference to
a document and upon an objection by Applicant, she elected to withdraw
it. That being the case, the document was never placed before Court for
testing. Consequently it could not be relied upon. The learned Arbitrator
was therefore wrong to rely on the said evidence to find against Applicant.
However, in the same vein Applicant has not shown the materiality of the
considered evidence to the conclusion made. We therefore find that the
learned Arbitrator did not commit a reviewable irregularity.
31. The sixth and last ground was that the learned Arbitrator erred in not
considering the fact that the charges against Applicant were not clear
enough to enable him to prepare his case. It was argued that the learned
Arbitrator had a duty to raise this issue in the proceedings. The Court
was referred to Applicants charge 3 that he did not follow the policies and
procedures. Applicant argued that it was not clear which policies and
procedures were not followed, when or even how they were breached.
32. It was argued that in Van Jaarsveld and Van Eck, Principles of Labour
Law, at page 199-201, it is said that the charges must be clear and
specific. Further that Baxter, in his book, Administrative Law 1984, at
page 597 states that fairness requires strict adjuciable procedures. It
was argued that on the strength of this said, the learned Arbitrator erred
and that Her award warrants interference with.
33. Although Respondent has not reacted to this ground, We have
observed that Applicant is not claiming to have raised the issue of an
Page 6 of 283
unclear charge with the learned Arbitrator. Rather, he seems to claim

that the learned Arbitrator was cast with a duty to pick the point up. We
say this because over and above the way the argument is couched, no
reference has been made to the record to suggest that the issue was
raised for address by the learned Arbitrator.
34. We have stated before that a party cannot canvass a new issue on
review which was not brought to the attention of the learned Arbitrator in
the arbitration proceedings. Supportive of our view is the finding of the
Labour Court in Lewis Stores (Pty) Ltd v Makhabane and Others (supra),
where the Court had the following to say,
While it is true that the arbitrator cannot overlook what transpired at the
disciplinary hearing, however for failure to do so to be reviewable, the
material must have been presented before the arbitrator. He cannot be
said to have improperly overlooked something that he did not have the
opportunity to consider.
35.
We are also of the view that to allow such a practice would be to
offend the maxim of audi alteram partem. The maxim of audi alteram
partem applies to include the decision makers whose decisions are
subject to review. In addressing this issue the Labour Court in Central
Bank of Lesotho v DDPR & Others LC/REV/216/2006, at paragraph 31,
had this to say,
All this evidence was not considered by the arbitrator. It is not available to
the 3rd respondent to come and contest for the first time before DDPR that
the applicants erred on an issue that she never
canvassed before the applicant. The maxim audi alteram partem applies
both ways. In other words if it had been raised timeously the applicants
would have been able to deal with it. (see also Puleng Mathibeli .v. Sun
International 1999-2000 LLR-LB 374 (CA) and Maleshoane Bohloa and
Others .v. Jet Store Maseru (Pty) Ltd & OthersLC/REV/48/04 at p.7
paragraph 24 of the typed judgment (unreported).
36. Our attitude further finds support in Thabo Phoso .v. Metropolitan
Lesotho LAC/CIV/A/10/2008. In this case the learned Dr. K. Mosito had
this to say,
....the fact that the process had not been correctly served on the
respondent could not be properly argued before this court because they
were neither pleaded nor argued before the Labour Court. The Labour
Court could not properly consider them.
In Our view of this said above, We find that the learned Arbitrator
committed no irregularity.
37. Both parties had asked for costs. However, none of the parties gave
convincing reasons for such an award to be made. Applicant claimed
costs on account of frivolity. Given Our finding, Applicant request for
costs falls off. Respondent merely claimed costs without any further
motivation which leads on to assume that it meant that costs follow suit.
Not only is speculation on Our part prohibited, but in the Labour Court
Page 7 of 283
being a court of equity and fairness, costs do not follow suit (see Mokone
v G4S Cash Solutions (Pty) Ltd LC/31/2012; Thabo Makhalane v The
Ministry of Law and Constitutional Affairs & others LC/PS/A/02/2012;
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). They are granted in extreme circumstances of frivolity
and/or vexations conduct. These are not present in casu.
AWARD
We therefore make the following award.
a) Review application is refused.
b) The award in referral E051/2008 is reinstated and must be complied with
within 30 days of issuance herewith.
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
MR. MOLEFI
ADV. LOUBSER
Page 8 of 283

HELD AT MASERU
LC/30/2013

KENEUOE MOLAPO
LIKOPO LEPHOTO
MPHAPHATHI QHOBELA
SOPHIE GOOLAM
NTSOAKI TLALI
MALESEKELE MAKHA
MPOLOKENG MATANYANE
MAMOROBI MOTHOBI
NTHABELENG RAMPHALILE
NTEBALENG NQOSA
SECHABA LETEBELE
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
11th APPLICANT
AND
WATER AND SEWERAGE
COMPANY (PTY) LTD
RESPONDENT
JUDGMENT
Application for a declaratory order. Respondent raising two points of law. First
that Applicants claims have prescribed and that Applicants have not
established a cause of action. Court only finding merit in the second point of
law and dismissing the Applicants claims for want of jurisdiction. No order as
to costs being made.
1. This is a claim for a declaratory order in the following terms:
(a) Declaration that the unequal treatment of the applicants in this matter
is unfair and unlawful.
(b) Directing the respondent in this matter to pay the applicants at D upper
in accordance with the policy and practice with effect from September
2009 being the time when the applicants sought to rectify disparities.
(c) Directing respondents to pay costs of this application.
(d) Further and alternative relief.
2. The brief background of the matter is that Applicants are employees of
Respondent, at least as at the time of the referral of this matter. During
their employ, Respondent drew a policy in terms of which all employeediploma holders were to be paid at Grade D upper.
That
notwithstanding, Applicants were not paid at Grade D upper, while other
diploma holders were paid at that grade.
Page 9 of 283
3. As a result, Applicants referred a claim for discrimination with the

Directorate of Dispute Prevention and Resolution (DDPR). The matter
was duly conciliated upon but was unfortunately not resolved. The
learned Arbitrator then issued a report of non-resolution and referred the
matter for adjudication before this Court. Armed with the report of nonresolution, Applicants then initiated the current proceedings, wherein
they no longer claimed discrimination but unequal treatment.
4. In reaction to the claims, Respondent answered by raising two points of
law. Firstly, Respondent argued that the Applicants claims had expired
as they accrued in 2009, whereas the claims were only lodged on 11th
October 2012. Secondly that Applicants have no cause of action as their
pleadings do not make out a case for discrimination, at least as
contemplated by sections 5 and 196 of the Labour Code Order 24 of 1992.
Both parties made representations and having heard them, Our judgment
therefore follows.
5. Respondent argued that the cause of action arose in August 2009 and
that by the time that the referral was lodged the three years time limit
prescribed, under section 227 of the Labour Code Amendment Act 3 of
2000, had lapsed. It was argued that as a result the claim had
prescribed and that without an application for condonation, this Court
has no jurisdiction over Applicants claims. It was prayed that they be
dismissed.
6. On the second point of law, it was argued that Applicants have referred a
claim for discrimination. Further that both sections 5 and 196 of the
Labour Code Order (supra), list grounds upon which a claim for
discrimination can be based.
It was submitted that section 253
specifically provides for discrimination in relation to union membership,
while section 5 is broader in terms of scope. It was argued that the
grounds that Applicants rely on are not the grounds listed under either
section 5 or section 196 of the Labour Code Order (supra). It was claimed
therefore that Applicants have not made a case for discrimination and
therefore have no cause of action. It was prayed that the claims be
dismissed.
7. The Court was referred to the case of Sefatsa Mokone v G4S Security
Services LC/31/2012, in support of the above arguments.
It was
submitted that in this case, Applicant had claimed discrimination but
that his complaint was not based on the grounds listed under either
section 5(1) and section 196 of the Labour code Order (supra). It was
added that the Court dismissed the claim as having not established the
cause of action. The Court was further referred to the case of Molaoli v
Lesotho Highlands Development Authority LAC/A/06/2005, where a
similar decision was reached.
Page 10 of 283
8. It was argued that on the bases of the above two authorities, the
Applicants claims be dismissed with costs. In support of the claim for
costs, it was argued that Applicants have caused Respondent to incur
costs due to their failure to observe due diligence and even continued to
fail to do so despite objections being raised against their claims.
9. In answer, Applicant submitted that the issue of condonation is irrelevant
for purposes of the claim before this Court. It was argued that with the
repeal of section 70 of the Labour code Order (supra), there is no time
limit for the referral of a claim to this Court. It was added that section
227, which Respondent seeks to rely on, does not bind this Court as it
relates to claims before the DDPR, whereas the current claim is before the
Labour Court.
10. It was further argued that this claim is based on section 226(1) (a) of
the Labour Code (Amendment) Act (supra), in that Applicants want the
Court to interpret the action of Respondent as amounting to unequal
treatment. It was added that whereas, the authority of Mantsane Mohlobo
&
Others
v
Lesotho
Highlands
Development
Authority
(LAC/CIV/A/02/2010), directs that all matters must first be conciliated
upon, the Court of Appeal in Lesotho Highlands Development Authority v
Tsotang Ntjebe & Others C of A (CIV) 07/12, said that conciliation is not
mandatory for claims under section 226(1) of the Labour Code
(Amendment) Act (supra).
11. It was furthermore argued that with the repeal of section 70 of the
Labour Code Order (supra) and in the light of the authority in Lesotho
Highlands Development Authority v Tsotang Ntjebe and Others (supra),
there is no time limit within which claims before this Court may be
referred. It was concluded that by referring the matter to the DDPR, it
was a matter of courtesy but that Applicants were not bound to do so.
12. On the second point of law, Applicants submitted that they are not
claiming discrimination but unequal treatment. The Court was referred
to paragraph 22 of the Originating application, where the following is
recorded:
22. Nature of relief south under the circumstances the applicants seek
relief as follows:
(a) Declaration that the unequal treatment of the applicants in this
matter is unfair and unlawful.
13. We concede that initially the position of the law was that all matters
that are competent for adjudication by this Court must be conciliated by
the DDPR before being adjudicated upon. However that position has
since been changed by the Court of Appeal as Applicant has rightly put.
This in essence means that parties are at liberty to elect to either first
refer their disputes to the DDPR for conciliation, or to refer them directly
to this Court for adjudication. The election notwithstanding parties are
Page 11 of 283
still bound by the rules of procedure applicable in whatever mode,

method or election that they make.
14. In casu, Applicants referred the matter to the DDPR for conciliation.
They were bound in law to follow the rules of procedure in initiating their
claim. One such rule is to apply for condonation where a referral is made
out of time. That application must be made before the forum where the
initial referral is made. In casu, the proper forum is the DDPR. What We
are essentially driving at is that it is improper for Respondent to claim
lack of jurisdiction on the basis of section 227 of the Labour Code
(Amendment) Act (supra), at this stage. This objection should have been
raised with the learned Arbitrator at the DDPR. If We are to consider
Respondents argument, it would be tantamount to Us reviewing the
conduct of the learned Arbitrator through these proceeding, which would
be improper.
15. We therefore agree with Respondent that section 227 of the Labour
Code (Amendment) Act (supra), specifically sub-section (1) thereof, does
not bind this Court, at this stage of the proceedings, but the DDPR. In
terms of that section,
(1)
Any party to a dispute of right may, in writing, refer that dispute
to the Directorate
(a)
If the dispute concerns an unfair dismissal, within 6 months of
the date of the dismissal;
(b)
In respect of all other disputes, within 3 years of the dispute
arising.
16. About there being cause of action, We agree with Respondent that
Applicants have failed to establish a case for discrimination, at least in
terms of section 5(1) or section 196 of the Labour Code Order (supra). We
say this because none of the grounds alleged fall within those listed
under these said sections. In terms of section 5(1), discrimination is
based on ...race, colour, sex, mental status, religion, political opinion,
national extraction or social origin.....
17. Under section 196, discrimination is based on union membership.
That section is couched in the following,
(1) Any person who discriminates, as respects the employment or
conditions of employment which he or she offers to another person,
because that person is a member, officer or trustee of a trade union shall
commit an unfair labour practice.
(2) Any person who seeks, by intimidation, threats, dismissal, imposition of
a penalty, giving or offering to give a wage increase, or any other means, to
induce an employee to refrain from becoming or to refrain from continuing
to be a member, officer or trustee of a trade union shall commit an unfair
labour practice.
Page 12 of 283
(3) Any person who communicates to another details of the names of a

worker as being unsuitable for employment on grounds of the latter's trade
union membership or activities shall commit an unfair labour practice.
18. In an effort to avert this difficulty Applicants have sought to argue that
they have not referred a claim for discrimination but that of unequal
treatment in terms of section 226(1) of the Labour Code (Amendment) Act
(supra). In terms of that section,
(1) The Labour Court has the exclusive jurisdiction to resolve the following
disputes:
(a) subject to subsection (2) the application or interpretation of any
provisions of the Labour Code or any other law.
Applicants argument cannot sustain and We will demonstrate how this is
so.
19. Firstly, Applicants are not asking for interpretation of any provision of
the Labour Code or any other law. According to them, they claim to be
seeking from the Court, an interpretation that the conduct of the
Respondent amounts to unequal treatment. Clearly, this is not one of the
grounds in respect of which section 226(1)(a) anticipates. Secondly, at
paragraph 22 of the Applicants Originating Application, they seek a
declaratory order that their alleged unequal treatment be declared as
unlawful and unfair. This is totally different from what Applicants are
now claiming to be their relief. In fact it is not even the effect of the relief
that they seek.
20. Lastly, applicants are before Us because they have been referred by
the Director under section 227(5) of the Labour Code (Amendment) Act
(supra). This is clear from annexure KM4 to their Originating application.
We have stated earlier that even though it is no longer mandatory to refer
a dispute to the DDPR for conciliation before adjudication, once an
election to do so is made a party is bound to follow all procedures to the
letter. What are in essence saying is that Applicants having referred a
claim for unfair discrimination, and having been referred to this Court for
adjudication of the matter, and having initiated the current proceedings
pursuant to that referral, they are bound to that claim. Any attempt to
alter the claims after referral to this court pursuant to a certificate of
non-resolution deprives Us of jurisdiction over such a matter.
COSTS
21. Both parties have asked for costs. Respondent claims that Applicants
were warned that their claims had prescribed and that they should apply
for condonation. Having failed to do, We should make an award of costs
against them. Clearly, Respondents plea for costs is premised on an
anticipation that its point in limine on the matter being out of time will
sustain. Having found no merit in that point the Respondent basis for
costs falls off.
Page 13 of 283
22. Applicants have asked for costs on the premise that the point in limine
that they have not established a case for discrimination is vexation, as
they are not complaining about discrimination but unequal treatment. It
was added that over and above that costs should follow suit particularly
because this Court is not limited, in casu from awarding costs. It was
argued that the limitation is only in relation to unfair dismissal claims.
23. In view of Our finding that Applicants have not make a case for
discrimination, the first premise for an order of costs fall off. Secondly,
We have stated before and continue to state that an award of cost in this
Court in only made in extreme circumstances of vexations and/or
frivolous conduct. This is Court of equity and fairness which is interested
mainly in the dispersal of substantive justice. We do not award costs on
account of failure or success in defending or prosecuting a case. The key
determinations are vexation and frivolous conduct. Consequently, a
prayer for costs under these circumstances fails.
AWARD
We therefore make an award as follows:
a) That Applicants claim is dismissed on account of failure to establish their
case for discrimination.
b) No order as to costs.
2015.
T C RAMOSEME
MR. MATELA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. SEKONYELA
ADV. RAFONEKE
Page 14 of 283

HELD AT MASERU
LC/REV/08/2011
A0696/2010

LAMBERT TAPOTSA MPHUTHING
APPLICANT
AND
SUN INTERNATIONAL (PTY) LTD
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant having raised three
review grounds. Court only finding merit in one ground. Court finding that
determination of common cause facts does not eliminate the right of parties to
argue the matter, unless the right is specifically waived. Review being granted
and matter being remitted to be heard de novo. No order as to costs being
made.
1. This is an application for the review of the arbitral award in referral
A0696/2010. The brief background of the matter is that Applicant was
an employee of the 1st Respondent until his employment terminated by
resignation. Following his termination and refusal by the 1st Respondent
to pay him severance pay, Applicant referred his claim with the 2nd
Respondent.
2. Subsequent to the referral, the matter was then conciliated upon but
without success. Before the matter could be arbitrated upon, the learned
Arbitrator mero motu raised a jurisdictional concern with parties. His
concern was brought by the certificate of exemption that 1st Respondent
had relied upon, during conciliation to deny liability and therefore to
refuse to make the requested payment to Applicant.
3. Having raised this jurisdictional concern, the learned Arbitrator together
with parties determined facts which were common cause. With these
facts, the learned Arbitrator then informed parties that He would use
them to determine if He had jurisdiction to proceed to determine the
matter by arbitration. Thereafter, an award was issued wherein the
learned Arbitrator had declined jurisdiction to hear the matter. It is this
award that Applicant wishes to have reviewed and corrected. To be
specific, Applicant wishes to be awarded severance pay in the sum of
Page 15 of 283
M84,383.38, if successful in the review.

address Us and following is Our judgment.
We then directed parties to

4. Applicant has raised three review grounds. Firstly, he claims that the
learned arbitrator erred by admitting to have jurisdiction over the
dispute, only to later change to claim that He does not have it. The Court
was referred to paragraph 2 of the arbitration award, where the learned
Arbitrator determined that he had jurisdiction, and to the award where
He later claimed not to have it. It was argued that this is a grave
irregularity that warrants interference with the arbitral award.
5. In answer, 1st Respondent submitted that jurisdiction of the Directorate
of Dispute Prevention and Resolution (DDPR), depends on the way that a
claim is framed. It was argued that a claim for severance payment falls
with the jurisdiction of the DDPR in terms of section 226 (2) of the Labour
Code (Amendment) Act 3 of 2000. Further that Applicant was trying to
use the claim that falls within the jurisdiction of the DDPR to invalidate
the exemption certificate which function lies with the Labour Appeal
Court. It was argued that having realised this, the learned Arbitrator
declined jurisdiction.
6. We wish to note that We concede that the nature of the claim, including
the phrasing, determines which court has jurisdiction. For instance a
claim for discrimination falls within the jurisdiction of the Labour Court
while a claim that involves inconsistency, particularly in unfair dismissal
cases, falls within the jurisdiction of the 2nd Respondent yet both claims
share a similar character of unequal treatment.
7. We therefore agree with 1st Respondent that the claim was phrased such
that it fell with the jurisdiction of the 2nd Respondent. In terms of section
226(2)(c) as amended by section 4 of the Labour Code (Amendment) Act 5
of 2006, the DDPR has jurisdiction to resolve by arbitration,
a dispute concerning underpayment or non-payment of any monies due
under the provisions of this Act;
Therefore a claim for unpaid severance pay clearly fell squarely within the
provisions of this section.
8. However, a decision maker is allowed in law to decline jurisdiction over a
matter once s/he realises that whereas they thought that they had
jurisdiction, they infact did not. The rationale behind the principle was
stated in the case of Lepolesa & others v Sun International of Lesotho (Pty)
Ltd t/a Maseru Sun and Lesotho Sun (Pty) Ltd [2011] LSLAC 4, where the
Court relied on an extract from the authority of CASA v Tao Ying Metal
Industries & others 2009 (2) SA CC in the following,
if this is not done, the result would be the decision premised on an
incurrent application of the law. That would infringe the principle of
illegality.
Page 16 of 283
This is why it is permissible in law that a jurisdictional point can be

raised at any time even during the proceedings. As a result, there is
nothing irregular in the determination of the learned Arbitrator.
9. Applicants second review ground is that the learned Arbitrator erred in
determining a matter that was not arbitrated upon. He submitted that
the learned Arbitrator did not allow parties to argue the matter but rather
proceeded on the basis of agreed facts. Applicant referred to the case of
Tsakatsi .v. Lesotho Electricity Company (Pty) Ltd LC/REV/36/2008, that
before a decision is taken to decline jurisdiction, the Court must hear
parties. 1st Respondent answered that there was nothing wrong with the
approach of the learned Arbitrator. It was added that if Applicant felt
otherwise, then he should have objected to the approach which he did
not. It was prayed that this point be dismissed.
10. We have gone through the authority of Tsakatsi .v. Lesotho Electricity
Company (Pty) Ltd (supra). While the facts and issues for determination
are different from those in casu, the principle equally applies. In that
case, the Court made the decision that before declining jurisdiction to
hear and determine a claim filed out of time, a party affected must be
heard. This is what was also expected of the learned Arbitrator, to allow
parties to address him on jurisdiction before he decided to decline on it.
11. We wish to comment that it was wrong for the learned Arbitrator to
equate the determination of common cause facts to having heard parties.
The common cause facts determination only goes towards eliminating the
need to lead evidence and no more. Parties still needed to be given the
chance to make arguments to influence the decision the learned
Arbitrator to find in their favour, unless that right was specifically and
expressly waived (see Motebang Ramahloko v Commissioner of Police &
another C of A (CIV) 11/2008). And this was not the case in casu.
Consequently, the learned Arbitrator erred.
12. The last ground was that the learned Arbitrators award is stamped
16/10/2010 when it also dated 14/12/2010. It was argued that the
stamp presupposes that it was issued on that day yet the judgment that
the learned Arbitrator relied upon was delivered on 26/10/2010, which
was after its issuance.
It was argued that this is irregular.
1st
respondent answered that this is clearly a typographic or stamp error
which cannot vitiate the award. It was added that the learned Arbitrator
is not responsible for stamps and therefore that He cannot be held to a
mistake by the person who handles stamps.
13. We are in agreement with 1st Respondent that this is clearly an error
in stamping which cannot vitiate the entire award. We fail to find merit
in the argument of Applicant including the inference that he is attempting
to have drawn from the incidences. It therefore does not take Applicants
case further. The point is without merit and stands to be dismissed.
Page 17 of 283
COSTS
1st Respondent had prayed for costs. Among others It had claimed mala
fides on the part of Applicant in bringing this case for review. Given Our
finding, this prayer falls away and we decline to award costs.
AWARD
We thus make an award as follows:
a) The review is granted.
b) The matter is remitted back to the DDPR to be heard de novo before a
different arbitrator.
c) The order must be complied with within 30 days of issuance herewith.
d) No order as to costs.
2015.
T C RAMOSEME
MRS. RAMASHAMOLE
MR. KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
MR. MOSUOE
ADV. MPAKA
Page 18 of 283

HELD AT MASERU
LC/REV/12/2013
A0932/2012

LESOTHO CONSOLIDATED
CIVIL CONTRACTORS (PTY) LTD
APPLICANT
AND
LEKENA LETSIE
ARBITRATOR DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of Arbitration award. Several grounds of review having
been raised but only two argued. Applicant claiming the Arbitrator
disregarded its evidence and that Arbitrator upheld 1st Respondent
contradictory evidence. Court not finding merit in both grounds and refusing
the review application. Court further finding that conduct of Applicant is
frivolous and making an award of costs in favour of 1st Respondent.
BACKGROUND OF DISPUTE
A0943/2012. Seven grounds of review had initially been raised but only
two were argued. 1st Respondent had filed an application for the
dismissal of this application for want of prosecution. However, the
application was withdrawn by agreement and both parties argued the
merits of the review. Having heard the arguments of parties, Our
judgement follows.
SUBMISSION AND ANALYSIS
2. The first ground of review was that the learned Arbitrator had disregarded
the admitted facts while passing the award. It was submitted that 1st
Respondent gave evidence that he was employed on a fixed term contract.
It was argued that this evidence was disregarded by the learned
Arbitrator. It was added that having ignored this evidence, the learned
Arbitrator made an assumption conclusion that 1st Respondent was on a
fixed term contract.
3. It was submitted that at page 9 of the record, there is evidence that 1st
Respondent was a subcontractor and not on a contract without limit of
time. The Court was referred to the following record at this page:
Q:
I put it to you that applicant was a full time employee since
11/09/2011.
Page 19 of 283
A:
I will say applicant was subcontractor because he did not pay

PAYE tax to LRA like it was his responsibility.
4. 1st Respondent answered that Applicants case before the DDPR was that
1st Respondent was on a fixed term contract and that it expired. The
Court was referred to page 2 of the record where the following is recorded:
Court
In summary how can you explain the termination of applicants contract?
Mr. Makamane
Applicants contract came to an end due to the time that was set and not
because of misconduct.
5. It was further argued that contrary to Applicants case, its witness before
the DDPR claimed that 1st Respondent was a subcontractor. The Court
was referred to the extract referenced by Applicant at paragraph 3 of this
judgement. It was added that in fact, it was the said witnesss testimony
throughout evidence that 1st Respondent was a subcontractor. It was
argued that as a result, no evidence was led by Applicant to show that 1st
Respondent was on a fixed term contract, as the whole evidence rested on
1st Respondent being a subcontractor, which was not the Applicants
defence.
6. It was further argued that 1st Respondent did not admit to anything. It
was submitted the referenced portion of evidence to support this
argument, is the evidence of Applicants witness under crossexamination. It was argued that this evidence cannot be taken to have
been an admission by 1st Respondent.
7. It was also denied that the learned Arbitrator made an assumptious
conclusion that 1st Respondent was on a contract without limit of time. It
was argued that whereas Applicant had led no evidence to show that 1st
Respondent was on a fixed term contract, there was ample unchallenged
evidence of 1st Respondent that his contract was without limit of time.
8. The Court was referred to page 9 of record, where 1st Respondent put his
case to Applicant that he was an employee on a full time basis. Further
reference was made to page 12 where 1st respondent stated his case. At
page 12, the Court was specifically referred to the following extract:
Mr. Ntaote
When you were hired were you told anything?
Applicant
I was told the site that I was going to be working on nothing more. I was
never told of the end of the contract by anyone not even Me Mpaka
(respondents witness).
9. In law, an admission of facts puts no point in issue at all, but operates to
eliminate the admitted facts from the issues to be tried. Its effect is to bind
the party making it and he or she is bound to the extent of its inevitable
consequences or necessary implications unless those are specifically stated
Page 20 of 283
to be denied. (See H. Daniels, 6th Ed., Becks Theory and Principles of

Pleading in Actions, Butterworths, at page 79.
10. In casu, it is alleged that 1st Respondent made an Admission that he
was employed on a fixed term contract. We have not been referred to any
extract from the record of proceedings where this is alleged to have taken
place. Rather, We are referred to a record of the Applicant witnesss cross
examination which does not go anywhere nearer to the suggestion being
made. We confirm that indeed, the evidence of Applicant went nowhere
near establishing the existence of a fixed term contract between parties.
Rather, as 1st Respondent has submitted, the whole of Applicants
evidence went on to establish something else outside their case. All
evidence of Applicant was based on the 1st Respondent being a subcontractor.
11. On the other hand, 1st Respondent was consistent that he was an
employee of Applicant, and that he had been employed on a contract
without limit of time. Therefore, We agree with 1st Respondent that the
learned Arbitrators finding was not assumptious but based on the
evidence that was before Her. The evidence of 1st Respondent was
consistent with his stated case, while the evidence of Applicant was not.
Its case was something totally different from what it canvassed through
its witness in evidence.
12. The second ground of review was that the learned Arbitrator upheld
the contradictory evidence of 1st Respondent. It was submitted that at
one point 1st Respondent testified that he was told in a group about his
terms of contract and later changed to say he was told alone. It was
argued that on the basis of this, the learned Arbitrator ought to have
treated 1st Respondent as an unreliable witness.
13. In support of its argument, the Court was referred to page 12 of the
record, where the following is recorded:
I was told the site that I was going to be working on nothing
more. I was never told of the end of the contract by anyone not
even Me Mpaka (respondents witness).
14. 1st Respondent answered that it is not clear where on the record the
alleged contradictions are said to appear. It was argued that even the
referenced portion does not demonstrate any contradiction or
inconsistencies.
It was added that assuming that there were
contradictions and inconsistencies, which were denied, that Applicant
has not shown the relevance of the two towards the decision made.
15. It was argued that there is clearly no merit in the review application
and that it be dismissed with costs. It was argued that this is a frivolous
case as Applicant is attempting to review an irreviewable decision. It was
argued that Applicant has not shown which facts were admitted or even
the alleged inconsistencies and contradictions.
Page 21 of 283
16. We are in agreement with 1st Respondent that applicant has not
shown the contradictions complained of. In fact the referenced portion of
the record demonstrate consistency in the evidence of 1st Respondent. By
this We mean that both statements made in that extract support each
other. As a result, without contradictions or inconsistencies as put by 1st
Respondent, there is no reason to treat witness evidence with caution as
sought by Applicant. Consequently, the learned Arbitrator did not err in
Her approach.
17. Regarding the issue of costs, We are of the view that the
circumstances in casu, warrant an award of costs. Clearly there is no
case to review as Applicant has failed even to lay a basis of its argument,
which step is very primary in a matter of this nature. Applicant has
failed to show both admitted facts and contradictions. It essentially has
no case at all, and has as thus been frivolous.
AWARD
a) That the review application is refused.
b) Applicant is ordered to pay costs of this application to 1st Respondent.
c) The award of the DDPR remains in force.
d) The order to be complied with within 30 days of issuance herewith.
2015.
T C RAMOSEME
MR. MATELA
MR TEUOA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. TALANYANE
ADV. NTAOTE
Page 22 of 283

HELD AT MASERU
LC/REV/20/2007
A0384/2006

MANTSANE RANTEKOA
APPLICANT
AND
NEDBANK LESOTHO
NAPO RANTSANE
DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Applicant claiming that
Arbitrator failed to consider all the elements of section 10 of the Codes of Good
Practice. Further that Arbitrator allowed for unfair questions to be put to
Applicant and also misquoted evidence of Applicant. Court finding that
Arbitrator is not obliged to consider all elements laid out in section 10 of the
Codes of Good Practice except to those raised for determination. Further that
Applicant has failed to demonstrate how both the unfair questions and
misquoted evidence render the award reviewable. Court further finding no
sufficient reasons to awards costs. No order as to costs being made.
A0384/2006. The brief background of the matter is that Applicant was
an employee of 1st Respondent until her dismissal for misconduct. She
had then, following her dismissal, referred the matter to the 3rd
Respondent where the 2nd Respondent sat as the arbitrator. Following
the conclusion of arbitration proceedings, an award was issued wherein
the referral was dismissed on the ground that Applicants dismissal was
both procedurally and substantively fair.
2. Dissatisfied with the award, Applicant initiated the current proceedings,
wherein she sought the review, correction and/or setting aide of the said
award. The matter came before the President of the Labour Court, Mrs.
Khabo and was dismissed. She had found that the grounds raised were a
disguised appeal. Applicant then lodged an appeal with the Labour
Appeal Court against the said decision and obtained judgment. The
matter was then remitted before this Court for hearing of the merits.
3. On the first date of hearing before, following the remittal, it had been
argued on behalf of the 1st Respondent that the record of proceedings
Page 23 of 283
before the DDPR was incomplete. However that argument was withdrawn
and parties agreed that the facts that are available were sufficient for
purposes of this review. We endorsed this agreement and proceeded to
hear the matter. Having heard the arguments of parties, Our judgment
follows.
4. Applicants case was that the learned Arbitrator erred in that He failed to
consider all the elements of misconduct which constituted the alleged
disobedience of the rule of employment. It was argued that in terms of
the Labour Code (Codes of Good Practice) Notice of 2003, a person
determining whether a dismissal is fair or not, is obliged to consider if the
rule was contravened, if it was reasonable, clear and unambiguous, if the
employee knew about it, if it was consistently applied and if dismissal
was an appropriate sanction.
5. It was submitted that in casu, the learned Arbitrator only considered the
requirements on knowledge of the rule and if dismissal was an
appropriate sanction. It was argued that in so doing, the learned
Arbitrator committed an irregularity warranting interference with His
award. It was argued that if the learned Arbitrator had considered all
other requirements, He would have found that the dismissal was unfair in
that the rule was invalid, unclear and ambiguous and was not
consistently applied.
6. It was argued that evidence had been led that the rule was invalid as it
was discriminatory contrary to section 66(3) of the Labour code (Order) 24
of 1992 and Convention 156 of the ILO Standards. It was submitted that
the rule allowed for the 1st Respondent to dismiss an employee for
reasons connected with family responsibility. It was argued that joining
clubs at 1st Respondent employ, was one way of carrying out family
responsibility of providing for Applicants family.
7. It was argued that the rule was unclear in that it did not demonstrate
how being a member of a grocery club could conflict with the banking
business. It was also argued that the rule was not consistently applied in
that other employees who were members of the same club, were not
charged but rather immunised from prosecution.
8. 1st Respondent answered that while Applicant appears to be dissatisfied
only with the finding of guilt on the count of dishonesty for allowing a
conflict, there were other charges for which he was found guilty, which
carry the similar sanction of dismissal. It was explained that Applicant
had been charged of two counts of dishonesty and one for
insubordination. It was submitted therefore that even if Applicant is to
succeed on this ground, it would not warrant the review of the award as
other charges still stand.
9. About the validity of the rule it was argued that the learned Arbitrator
addressed the issue at page 18 of the arbitration award, where He also
Page 24 of 283
made reference to the Labour code (Codes of Good Practice) (supra), on the
requirements. It was added that while the learned Arbitrator did not
expressly say that the rule was invalid, it is nonetheless implicit in the
award, in as much as He was not obliged to expressly say so.
10. We wish to note that in addressing the three elements alleged not to
have been addressed by the learned Arbitrator, 1st Respondent only
confined himself to the issue of the validity of the rule. This thus means
that 1st Respondent accepts the applicants version as being true and
accurate on those elements. We say this because in law what is not
challenged is deemed to have been accepted (see Theko v Commissioner of
Police and another LAC (1990-94) 239 at 242; and Plascon-Evans Paints
(TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623). In view of this
said, We shall now proceed to deal with the rest of the arguments on this
ground.
11. Notwithstanding the above said, We are in agreement with 1st
Respondent that while there are three charges that led to the dismissal of
Applicant, she has only challenged one by way of review. We share the
similar sentiment that Applicants conduct demonstrates contentment on
her part with the verdict for those charges. As a result, We are also led to
conclude, in agreement with 1st Respondent, that a change in verdict by
this Court on the charge complained of, would not alter the decision to
dismiss. Consequently, it is Our view that it would only be academic to
consider the rest of the arguments of Applicant given the circumstances
outlined.
12. However, We wish to set the record straight in relation to section 10 of
the Labour code (Codes of Good Practice) (supra). While We admit that the
laid out procedure is couched in mandatory terms, it is subject to there
being a dispute on any of the given requirements. That is to say, where
parties are clear on which issues are common to them and on which
there exists a dispute, the decision maker cannot be expected to
determine issues not in dispute, but to only focus on what requires their
determination. It is therefore inaccurate that the learned Arbitrator was
obliged to consider all the elements laid out under section 10 of the Codes
of Good Practice (supra).
13. Applicants case was also that the learned Arbitrator allowed
oppressive questions to be put to her and further that He misquoted her
evidence. Regarding the oppressive questions, it was submitted that
Applicant had objected to the statement by 1st Respondent representative
that Applicant was limited only to asking questions on clarity and not
attempt to explain her evidence in chief. Further, Applicant claimed that
in another incidence, an unfair question was put to her and when she
objected to it, rather than to address it, the learned Arbitrator reserved
His ruling for a final analysis in the arbitration award. Furthermore, it
was submitted that when Applicant objected to a question put to her, the
learned Arbitrator refused to refer back to the record to determine if the
Page 25 of 283
objection had merit or not. It was argued that this was irregular and
contrary to the principle in Maliehe & Others v Rex 1995-1999 LAC 258 at
263.
14. In answer, 1st Respondent submitted that Applicant has not given a
single instance of an oppressive question either in her founding affidavit
or in the record. It was argued that Applicant is attempting to make a
case from the bar which is different from what she had in her affidavit
canvassed. It was submitted that this should not be allowed. The Court
was referred to the cases of Port Nolloth Municipality v Xhalisa and
Lawalala v Port Nolloth Municipality 1991 (3) SA 98 (c) at 111 B21, in
support.
15. It
was
further
argued
that
the
learned
Arbitrator had no obligation in law to go back to the record to confirm
what was being put to witness. Further that in addition to the nonexistence of a legal obligation, it is not even suggested that the learned
Arbitrator did not back track on the record. Further that it is not even
suggested that the learned Arbitrator relied on distorted evidence or even
the oppressive statements to confirm the dismissal of Applicant. It was
prayed that this point be dismissed.
16. It is a procedural obligation of any decision maker to ensure that the
processes involved in their decision are fair. This includes protecting the
parties to the proceedings. Our point is basically that it is wrong for a
decision maker to default on their obligation to ensure fairness. However,
it is important that a party complaining about a breach of this obligation
go further to demonstrate what or how that unfairness has affected the
decision made. The Court cannot speculate this as that practice is
strongly shunned by Our Courts (see Pascalis Molapi v Metcash Ltd
Maseru LAC/CIV/REV/09/2003)
17. In casu, We agree with 1st Respondent that Applicant has failed to
demonstrate how both the alleged unfair question or the distortion in the
evidence has affected the decision of the learned Arbitrator, so as to
warrant a review of His decision. This is in addition to the fact that no
reference has been made to the record where the both the unfair
questions or the distorted evidence is alleged to appear. Our attitude
applies even in relation to the argument that the learned Arbitrator
refused to back track on his record, notwithstanding the fact that indeed
there is no legal obligation of the learned Arbitrators part to do so. Even
the authority cited by Applicant, relating to the argument to refer back on
the record, does not make or impose such an obligation. It is thus
misplaced in the current circumstances. Therefore this point fails as well
and We deem it unnecessary to consider the rest of its content.
Page 26 of 283
COSTS FOR POSTPONEMENT ON 16/09/2014

18. 1st Respondent asked that the review be dismissed with wasted costs
for the previous day. It was argued that the matter had been scheduled
for the 16th September 2014 and that it was postponed on account of
Applicants attorney of record. It was argued that notwithstanding a
number of reminders sent to Applicants attorney, namely the notice of
hearing and the monthly roll, he failed to attend claiming unawareness.
It was argued that by causing the matter to be postponed to the following
day, that caused 1st Respondent to incur additional charges which could
have been avoided had the matter been heard as scheduled.
19. Applicant argued in response that this matter is incidental to an
unfair dismissal claim and that in terms of the Labour code Order (supra),
no award of costs may be made. It was further argued that the matter
was not postponed due to Applicants representative, but a clash in the
case roll. It was said that the matter could not proceed on that day
because another case had been placed on the same time slot with it. It
was added that in any event there is nothing to suggest
unreasonableness on the part of Applicant given the real reason for the
postponement.
20. We wish to confirm and as We have already shown above that the
matter was postponed due to a clash in time slots allocated to matters
before Us on the day in question. Further, an award of costs is sought
against the Applicant and not the attorney. Even if we had found merit in
the prayer for costs it would be unfair to punish an Applicant party who
did not even need to attend these proceedings given that they are by way
of motion. Consequently no order as to costs in warranted.
AWARD
We therefore make an award as follows,
a) The review is refused;
b) The award in referral A0384/2006 remains in force; and
c) No order as to costs is made.
2015.
T C RAMOSEME
MR. MOTHEPU
MR KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. TEELE
ADV. KENNEDY
Page 27 of 283

HELD AT MASERU
LC/REV/139/2013
A0413/2013

EVER SUCCESSFUL TEXTILE (PTY) LTD
APPLICANT
AND
TAJANE TAJANE
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant seeking an award for
costs of application for dismissal for want of prosecution. Court finding that
claim for costs is overtaken by events. Applicant having raised three grounds
of review. The rule in motion proceedings being considered. Content of
unreasonableness as a review ground also considered. Court refusing the
review application and no order as to costs being made.
A0413/2013. 1st Respondent was an employee of Applicant until he was
dismissed for misconduct. Dissatisfied with his dismissal, he referred a
claim for unfair dismissal with the 2nd Respondent. On the 17th October
2013, the 2nd Respondent issued an award wherein, it had been ordered
that Applicant reinstate 1st Respondent in terms of section 73(1) of the
Labour Code Order 24 of 1992.
2. Equally unhappy with the 2nd Respondent decision, Applicant initiated
the current review proceedings to have the said award reviewed, corrected
and/or set aside. Following the referral of the review application, 1st
Respondent lodged proceedings for dismissal for want of prosecution,
wherein he had argued that Applicant had initiated these proceedings to
delay the execution of his award and therefore that the matter be
dismissed.
3. The dismissal application was duly set down for hearing on the 13th
November 2014. On that day both parties appeared before this Court to
present an agreement, whose terms included in the following:
a) The matter would be postponed to the 20th January 2015 for argument
in the merits; and
b) That an award for wasted costs of the day on attorney and client scale
be made in favour of 1st Respondent.
Page 28 of 283
The said agreement was made an order of this Court.

4. However, on the date of hearing, 1st Respondent sought an order for costs
incurred in the application for dismissal for want of prosecution. His
argument was that he had initiated these proceedings due to inactiveness
of Applicant as the dominis litis candidate, which process would not have
been undertaken had Applicant taken steps to have the matter finalised.
5. Applicant answered that the claim for costs was inappropriate as the
application for dismissal was no longer in the picture. It was argued that
it had been overtaken by the agreement of the 13th November 2014, to
argue the merits on this day and therefore that costs cannot flow from
that application. It was added that in any event, the delay was explained
on that day to have been due to the illness of the previous attorney of
Applicant.
6. We share similar sentiments to those held by Applicant. The application
for dismissal for want of prosecution is no longer there. The purpose of
that application was to dismiss the matter without hearing the merits. As
a result, having agreed to have the merits heard the dismissal application
object ceased to exist, and consequently the application as well.
Therefore, it is improper to seek costs on the premise of a non-existent
application. Having addressed the issue of costs, We shall now proceed
to deal with the merits.
SUBMISSIONS IN THE MERITS
7. Applicants case was that the learned Arbitrator erred in holding that
dismissal was not an appropriate sanction because negligence was not
gross. It was argued in amplification that the learned Arbitrator in
making this conclusion did not consider the requirements of section 10(3)
of the Labour Code (Codes of Good Practice) of 2003, which read as
follows:
(a) the gravity of the misconduct in the light past infringements, the
strictness of the rule, the nature of the job, health and safety and the
likelihood of repetition;
(b) The circumstances of the employee such as employees employment
record (including length of service, previous disciplinary record, and
personal circumstances.
It was argued that having failed to consider these requirements, the
learned Arbitrator committed a mistake of law that materially affected His
decision.
8. The second ground was that the learned Arbitrator had erred in failing to
consider the evidence of Applicant that 1st Respondent had damaged a lot
of property belonging to Applicant. The Court was referred to pages 24,
and 32 to 33 of the record in support. It was argued that had the
evidence been considered, the learned Arbitrator would have found that
given the dictates of section 10(3) of the Codes of Good Practice (supra),
Page 29 of 283
dismissal was an appropriate sanction, particularly given the amount of

loss caused.
9. The third ground of review was that the decision of the learned Arbitrator
was unreasonable in that contrary to clear evidence that 1st Respondent
had committed misconduct, the learned Arbitrator awarded his
reinstatement. It was argued that given these clear facts, the reasonable
conclusion should have been otherwise and that at best re-employment
as opposed to reinstatement.
10. 1st Respondent answered that all Applicant pleadings are bare as they
do not have sufficient facts to support them. It was submitted that
Applicant is submitting facts which have not even been pleaded and that
this he is doing from the bar. It was added that this is not allowed in
motion proceedings as the rule requires that parties stand and fall by
their pleadings.
11. It was further argued that nothing in the pleadings of applicant show
any procedural flow on the part of the learned Arbitrator. It was argued
that therefore, Applicant has failed to make a case for review. It was
further argued that without any procedural flaws, the arguments raised
are clearly aimed at questioning the conclusion of the learned Arbitrator
and that they are therefore appeal and not review. It was prayed that the
application be dismissed.
12. In relation to the second ground of review, it was argued that the
learned Arbitrator considered all evidence relating to the damage and
made a conclusion. The Court was referred to paragraph 8 11 of the
arbitration award in support thereof. It was concluded that Applicant is
simply unhappy with the decision and that mere unhappiness is not a
review ground.
13. We have gone through the Applicants pleadings and have observed,
particularly in relation to the first ground, that the averments made or set
out are bare. Where an allegation is made against averments as being
bare, that allegation implies that no facts have been pleaded to support
the allegation made (see Mokone v Attorney General & others
CIV/APN/232/2008). Indeed in casu, Applicant has merely alleged that
the learned arbitrator erred in His decision that dismissal was not
appropriate because negligent was not gross, without giving sufficient
substance to the claim.
14. We are therefore in agreement with 1st Respondent that all the factual
arguments made on behalf of Applicant on the first review ground have
not been pleaded. It is trite law that in motion proceedings, parties are
bound to the content of their pleadings. Instructive on this position is the
authority of Netherburn Engineering CC t/a Netherburn Ceramics v Mudau
No & Another (2009) 30 ILJ 279 LAC, where at paragraph 25 of the
judgment, the Court held as thus,
Page 30 of 283
In my view it is not open to the appellant to now argue the case which it
did not foreshadow in its founding affidavit.
Given the dictates of the rule in motion proceedings, Applicant is bound
by the content of his pleadings. As they stand, Applicant has failed to
make out a case for review on this ground. It is therefore dismissed.
15. On the second ground, We have gone through the referenced pages in
support. At page 24, We have been directed to the following extract:
Mr. Bohloko: Yes, what did you find? Was it intentional or
accidental?
Mr. Molefi:
I found out as if it was intentional because he was
denying that it was himself.
At page 32 33
Mr. Bohloko:
It never happened?
Mr. Molefi: Yes sir. It can happen intentionally, that
Mistake he made.
16. From the above extracts, nothing speaks to the value of the alleged
damage. We say this because, most of the emphasis is place on the value
of the loss sustained by Applicant to suggest that the gravity of the
misconduct warranted dismissal as a sanction. The extract does not even
touch on the quantity that is alleged to have been damaged. We do not
find the basis of the argument that the learned Arbitrator ignored
evidence showing that a lot of property had been damaged.
17. We wish to that the evidence of damage to property was considered
from paragraph 8 to 11 of the arbitration award. In this portion of the
arbitral award, the learned Arbitrator makes a deeply considered analysis
which is also backed by authorities. Therefore, it cannot be accurate that
the said evidence was not considered. We do confirm that the learned
Arbitrator considered the relevant evidence to the matter. Consequently,
Applicants argument fails.
18. On the last ground, it is Our view that unreasonableness, where
pleaded in a claim, suggests that given a conclusion made, a particular
result is the only one that is reasonable so that any other that deviates
from that inevitable conclusion or result is unreasonable (see Carephone
(Pty) Ltd v Marcus NO & 7 others (1998) 11 BLLR 1093 (LAC) at 1103). In
casu, Applicant is not suggesting that the learned Arbitrator made a
conclusion but rather claims that the evidence was clear. He is not even
suggesting that the clear evidence was accepted by the learned Arbitrator
in order to compel Him to a certain specific conclusion. This therefore
cannot be the promise of a claim for unreasonableness.
19. Even assuming that such a conclusion had been made that the 1st
Respondent had committed the misconduct, the sanction of dismissal
was not the only possible and/or appropriate sanction.
The
appropriateness of the sanction depends on several factors including
Page 31 of 283
those contained under section 10(3) of the Codes of Good Practice (supra)
as outlined by Applicant above at paragraph 7 of this judgment.
Therefore, the argument must also fail.
AWARD
We therefore find that,
a) The review application is refused.
b) The award in referral A0413/13 remains in force and must be complied
with within 30 days of issuance herewith.
2015.
T. C. RAMOSEME
MR. MATELA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. NONO
ADV. RASEKOAI
Page 32 of 283

HELD AT MASERU
LC/REV/43/2013
A0665/2012

NKOMO MOHLAPISI
MATELLO MAPURU
MOJABENG TOMO
MOLIEHI THIBELI
TAHLEHO MAKAAKA
MOKUANE HATLA
LEHLOHONOLO LEHOKO
TEBOHO NTOLI
TEBELLO SEJAKE
MANTALE NKANE
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
AND
EXAMINATION COUNCIL
DDPR C/O MR. KALAKE T.
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant claiming that arbitrator
ignored evidence. Court finding that evidence was ignored but that it does not
render the award reviewable. Court refusing the review application and
further not making an award as to costs.
A0665/2012. The brief background of the matter is that Applicants were
employees of 1st Respondent, at least as at the time of the referral of the
matter. They had referred claims for underpayments with the 2nd
Respondent. The matter was duly heard and an award later issued
dismissing their claims. It is this award that Applicants wish to have
reviewed, corrected and/or set aside. Only one review ground has been
raised on behalf of Applicants and having heard parties, Our judgment
follows.
2. Applicants case is that they led evidence showing how much they earned
and what others who did the same job as them earned. It was argued
that this was evidence of underpayments which the learned Arbitrator
ignored. It was submitted that had the learned Arbitrator considered this
evidence in His award, He would have found that the Applicants had been
Page 33 of 283
underpaid.
The court was referred to page 23 of the record of
proceedings, where Applicants had given evidence that others earned
M4000 and M5000 per month. The Court was further referred to page 25
the record reflects, where one of the Applicants testified that they earned
M78.00 per day. It was argued that with these pieces of evidence the
learned Arbitrator should have found that there were underpayments.
3. The Court was further referred to page 6 of para 13 of the arbitration
award where the Arbitrator stated that there was no evidence yet same
was presented before him. It was added that over and above the evidence
shown on pages 23 and 25, there was also the referral document which
the learned Arbitrator was enjoined to consider. It was prayed that on
those basis, the review be granted.
4. 1st Respondent answered that Applicants did not present sufficient
evidence to enable them to obtain the relief sought. It was argued that
Applicants merely claimed to have earned M78.00 while others earned
M4000.00 and M5000.00. It was added that they did not substantiate or
attempt to demonstrate how that amounted to an underpay. Further that
the learned Arbitrator could not have been expected to consider the
referral it was not part of the evidence of parties but merely their claim
that they had to prove in the proceedings.
5. It was further argued that in law, it is the obligation of an Applicant party
to lead evidence to sustain their claim. It was submitted that in casu,
Applicants have failed on this obligation. The Court was referred to the
case of Ministry of Public Service & Another . Masefabatho Lebona C of A
(CIV) 06/2012, where the court held that in a claim for underpayments, it
is the obligation of parties to prove their claim. It was prayed that this
Court adopt a similar approach and dismiss this application, particularly
because at page 6 of the award, specifically at paragraph 13, the learned
Arbitrator had stated there was no sufficient evidence.
6. We have considered the referenced portion of the record by both parties.
At page 23, a question is posed to one of the applicants and she answers
as thus,
Mr. Mabula
:
How much does a clerk earn now?
Ms. Makaaka :
They earn about M4000 and M5000
At page 25, the following is recorded,
Mr. Mabula:
I put it to you that M78 is above the minimum wage
as prescribed by law of the clerk.
Ms. Makaaka:
I do not agree because I do not know.
7. We wish to first note that as a matter of procedure before courts of law,
the only way to determine if evidence has been considered is if the
decision maker makes mention of same in the analysis of evidence.
Therefore, where evidence is not mentioned, then that is sufficient to
serve as proof that it was not considered. In casu, We have perused the
Page 34 of 283
arbitration award and have discovered that there is nowhere where the
above evidence has been mentioned. We therefore agree with Applicants
that it has not been considered.
8. We have often stated before that the mere fact that evidence was ignored
is not sufficient to justify the granting of a review application. One must
go further to show the effect of the irregularity complaint of on the
decision made. To answer this question, We must consider the probative
effect of the evidence of Applicant which has not been considered on the
conclusion made. Put differently, if considered, would the learned
Arbitrator have made a different conclusion, as Applicants argue (See J.D.
Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004). If the answer is in the affirmative, then the conduct
of the learned Arbitrator will not only have amounted to an irregularity
but one that is reviewable.
9. Applicants have claimed that if considered this evidence would lead to the
conclusion that there were underpayments.
On the contrary, the
suggested conclusion would not sustain. The mere fact that Applicants
were said M78 does not make it an underpayment. There would have to
be more facts to substantiate that, which facts have not been given as
evidence. We therefore agree with both the learned Arbitrator and 1st
Respondent that Applicants have failed to give sufficient facts to sustain
their claims.
10. We also wish to note that We accept and acknowledge the authority of
Ministry of Public Service & Another v Masefabatho Lebona (supra), and
accordingly adopt the attitude taken there in these proceedings. We also
wish to add that We agree with 1st Respondent that even the referral
would not have advanced the case of Applicants in any way. The referral
is a document that states the claim and not the evidence of parties.
Therefore, notwithstanding its presence on record, parties are still
expected to lead evidence in support of their claims, including evidence
contained in the referral document so that it may be tested.
Page 35 of 283
AWARD
a) The review is refused.
b) Award in A0665/12 remains in force.
2015
T C RAMOSEME
MR. MOTHEPU
MR KAO
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR 1st RESPONDENT:
ADV. NONO
ADV. RAFONEKE
Page 36 of 283

HELD AT MASERU
LC/REV/104/2013
C0148/2011

KOALI MOLAPO
APPLICANT
AND
OK BAZAARS LESOTHO (PTY) LTD
T/A SHOPRITE
DDPR ARBITRATOR (L NTENE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Application having been filed out
of time together with an application for condonation. Court adopting a holistic
approach to the matter. Court granting the condonation application. Court
finding no merit in the allegation of irregularity that the matter was res
Judicata when it was reheard. Court further finding that Arbitration was right
in not considering evidence that was led in the rescinded matter. Review
application being refused and no order as to costs being made.
C0148/2011. However involved the history of this matter is, briefly
Applicant initiated a claim for unfair dismissal with the Directorate of
Dispute Prevention and Resolution (DDPR). In default of 1st Respondent,
Applicant obtained an award in terms of which he was to be reinstated
without loss of income in terms of section 73 of the Labour Code Order 24
of 1992. This award was delivered on 18th May 2012.
2. Subsequent thereto, the matter was reheard on the 30th August 2012
with both parties in attendance. On 29th September 2012, an award was
issued dismissing Applicants claim. Dissatisfied with the new decision,
Applicant initiated the current review application, wherein he has raised
only one ground of review. His complaint is that the learned Arbitrator
sitting in the second hearing disregarded both the initial award and
evidence tendered in those proceedings.
3. This application has been filed out of time and it was accompanied by an
application for condonation.
Both applications have been strongly
st
opposed by the 1 Respondent.
Having addressed Us on them
holistically, Our judgment follows.
Page 37 of 283

Application for condonation
4. Applicants case is that after receipt of the arbitration award, he
instructed his union representatives from the National Union of
Commerce, catering and Allied Union (NUCCAW), to initiate review
proceedings on his behalf. They then communicated later to him that the
application had been made. Relying on their promise he waited for
direction.
5. Applicant stated that he only learned later when he went to inquire about
the date of hearing that the review was never made. Shocked at these
findings he took his file from NUCCAW and instructed his current
attorneys of record, Mosuoe and Associates. It was only after the change
in representation that the review was initiated. He added that clearly the
delay was not occasioned by him but by the misrepresentation made by
NUCCAW and he prayed that the late application be condoned.
6. On the prospects of success, Applicants case was that he has prospects
of success in that the learned Arbitrator erred by hearing the second
referral without first dealing with the award issued by Mr. N. Moshoeshoe
by default. He argued that in view of this, the second matter was res
judicata.
7. Respondent answered that Applicant has not addressed the degree of
lateness in that he has not explained the period of delay. He submitted
that wherein the award was reviewed on 29th September 2012, the review
application was made and filed on 26th August 2013, which is about 10
months later. It was argued that Applicant has not explained what he did
in that period.
8. On the prospects of success, it was argued that it is inaccurate that the
matter is res judicata. It was submitted that the first award was
rescinded hence the subsequent rehearing of the matter. It was argued
that Applicant has no prospects of success and that as such the review
be dismissed. The Court was referred to the case of Melane v Santam
Insurance company Ltd 1962(4) SA 531 AD. It was submitted that in this
case, the Court stated that without prospects of success, it is not
necessary to consider other requirements. It was prayed that the
condonation be dismissed.
9. When giving an explanation for the delay in the filing of an application, an
applicant party is expected to explain the whole period of delay (Phetang
Mpota v standard Lesotho Bank LAC/CIV/A06/2008 at paragraph 13).
This is what is technically referred to as an explanation of the degree of
delay. In casu, We agree with Respondent that in his explanation,
Applicant has not addressed this element. He has essentially failed to
explain what he did in the 10 months between the date of issuance of the
award and the actual initiation of the review application.
Page 38 of 283
10. In so far as the prospects of success are concerned, We on the

contrary find that Applicant has prospects of success. The requirement
for prospects of success merely requires that a party show that he/she
has a prima facie case should the application be granted (see Napo
Thamae & another v Agnes Mokone & another C of A (CIV) 16/2005) at
paragraph 11). The issue is not the actual merit of the case, as such
matters are left for determination by the Court in the merits of the matter
sought to be condoned. We therefore find merit in the argument for
prospects of success.
11. In law the requirements for condonation must be considered together
and not individually, so that strong prospects may compensate the weak
explanation given for the delay (see Napo Thamae & another v Agnes
Mokone & another (supra) at paragraph 13). As a result, while Applicant
has not been able to satisfy the first requirement in full, that is, the
failure to explain the degree of delay, his strong prospects of success
compensate for his weak explanation. Further, We are drawn more to
this conclusion by the fact that Respondent does not even challenge the
explanation but only the degree of delay. Consequently, the condonation
application succeeds.
Merits
12. Applicants case is that the learned Arbitrator disregarded the evidence
of an award issued by Arbitrator N. Moshoeshoe, as he then was, which
granted him an award in default of Respondent. It was argued that due
to existence of that award the matter had finalised and was thus res
judicata when brought before the learned Arbitrator Ntene. It was argued
that by hearing it, the learned Arbitrator committed a grave irregularity.
13. It was further Applicants case that the learned Arbitrator erred by not
considering evidence led in the initial proceedings before arbitrator N.
Moshoeshoe. The Court referred to annexure KM3 to the Founding
Affidavit. This is the outcome of the initial hearing. It was argued that
had this annexure been considered, the learned Arbitrator would have
learnt that the chairperson of the initial hearing investigated the matter
in the absence of Applicant.
14. Respondent answered that the matter was reheard because the initial
award was rescinded. The Court was referred to page 1 of the record of
proceedings, in support. It was submitted that at page 1 of the record of
proceedings, the learned Arbitrator granted the rescission after hearing
the Respondents case, and Applicant having openly stated that he did
not oppose the application. It was argued that the argument about the
matter being res judicata when it was reheard, cannot sustain.
15. On the evidence in the form of annexure KM3 having been ignore, it
was submitted that the said document may have been tendered in the
initial hearing but not in rehearing. It was argued that this being the
case, the learned Arbitrator was right in not considering KM3 as it was
Page 39 of 283
not evidence before Her. It was added that even the record of proceedings
does not reflect the said document to have been tendered. It was prayed
that this argument be dismissed as well.
16. We have gone through the initial record of proceedings, specifically at
page 1 as referenced by Respondent. At this page the following is
recorded,
Application for rescission
Applicants Addresses
Reason for non-attendance
As stated in the affidavit on the date of hearing i fell ill. Therefore I delayed
to send someone to represent the company she unfortunately arrived late
and was advised to apply for rescission.
Prospects of success
Respondent was caught red handed in the possession of goods that were
not paid for.
Respondent:
I do not approve the application for rescission.
RULING
The application for rescission is granted.
Reason will follow.
17. Clearly, the rehearing cannot be clarified as res judicata as the initial
award was rescinded. This meant that it had been reopened. The
defence of res judicata requires that one establish that the current and
old matters be based on the same set of facts and have been finalised
between the same parties (see Potlako Thabane & another v Workmens
Compensation Trust Fund Committee & two others LC/08/2009). Clearly
in casu, these requirements have not been met.
18. Regarding KM3, We wish to confirm that Applicant has not referred Us
to any portion of the record where it was tendered in the rehearing
proceedings. As a result, this leads Us to conclude that it was never
tendered in the arbitration proceedings in issue, as Respondent alleges.
As a result, the learned Arbitrator was right in not considering it. This is
the position irrespective of the fact that the said document may have been
tendered in the initial arbitration proceedings. Therefore, this argument
also fails.
Page 40 of 283
AWARD
On the strength of the above reasons, we make an award as follows.
b) The award of the 2nd respondent in C0148/2011 is hereby reinstated and
must be complied with within 30 days of issuance herewith.
2015.
T C RAMOSEME
MR. KAO
MR. TEUOA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. MOSUOE
ADV. RAFONEKE
Page 41 of 283

HELD AT MASERU
LC/REV/41/2011
A0877/2010

MATSELISO TEISO
APPLICANT
AND
OK BAZAARS LESOTHO
PTY LTD T/A SHOPRITE
DDPR ARBITRATOR (L. NTENE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the arbitral award. Applicant raising only one ground
of review that Arbitrators decision was irrational, capricious and arbitrary.
Court finding that Arbitrator acted irrationally in making her award and
granting the review. Court finding that it has jurisdiction to correct the award.
Court accordingly correcting the award. No order as to costs being made.
A0877/10. The brief background of the matter is that Applicant was an
employee of the 1st Respondent until her dismissal for misconduct.
Unhappy with the decision to dismiss her, she referred a claim for unfair
dismissal with the 2nd Respondent. The matter was duly arbitrated upon
at the end of which the learned Arbitrator awarded her compensation. It
is this award that Applicant seeks to have reviewed, corrected and/or set
aside. Both parties were heard and Our judgment follows.
2. Applicants case was that the decision of the learned Arbitrator was
irrational, capricious and arbitrary. It was submitted the evidence of 1st
Respondent was rejected by the learned Arbitrator but that
notwithstanding, She relied on the same evidence in awarding
compensation, instead of reinstatement. It was argued that having found
that there was no substance in the dismissal of Applicant, the Learned
Arbitrator was bound by the dictates of section 73 of the Labour Code
Order 24 of 1992, to award the remedy of reinstatement, more so
because, other than the charge, no evidence of impracticality was led.
The Court was referred to the case of Edcon Ltd v Pillemer No & Others
2010 BLLR ISCA. It was submitted that in this case, the Court having
found the dismissal to be substantively unfair awarded the remedy of
Page 42 of 283
reinstatement. Further reference was made to the case of Sedumo v

Platinum Mines Ltd & Others BLLR 2007 (12) 1097 (CC), in support.
3. 1st Respondent conceded that there is irrationality in the award of
compensation. However, it was argued that this Court does not have the
authority to substitute its Own decision for that of the 2nd Respondent as
that would amount to an exercise of appellate powers, which powers it
does not have. It was submitted, that this Court can only under the
circumstances order the review and remittal of the matter to the DDPR to
be heard de novo, with specific instructions limited to the determination
of the remedy.
4. In the case of J. D. Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko
& others LAC/REV/39/2004, citing with approval an extract from the
case of Johannesburg Stock Exchange and Another v Witwatersrand Nigel
Ltd and Another, 1988 (3) SA 132 (A) at 152 A-E, the Court identified
irrationality, capriciousness and arbitrariness as grounds for review. In
more specific terms they were identified as constituting a mistake of law
that materially affects a decision, as anticipated under section 228F(3) of
the Labour Code (Amendment) Act (supra). We wish to note that this is
the section that vests this Court with review powers. In the light of this
legal position, We shall now proceed to deal with the merits of the
argument raised.
5. Irrationality as a ground of review presupposes that the decision maker
made a certain conclusion which bound him or Her to a certain route or
direction. It is premised on the idea that a decision maker accepted a
certain position as accurate and that on the basis of that acceptance, He
or She is bound to make a particular conclusion, a deviation against
which renders His or Her conclusion irrational (see Carephone (Pty) Ltd v
Marcus NO & 7 others (1998) 11 BLLR 1093 (LAC) at 1103). This is a
species of estopel as it is based on an earlier presentation and the results
that must logically follow.
6. It is Our view that it was irrational for the learned Arbitrator to award
compensation in the circumstances. We say this because of Her earlier
conclusion that there was no substance in the dismissal of Applicant.
This in law meant that there was no valid reason for the dismissal of
Applicant, which in Our view meant that it was practical to reinstate. An
exception would have been where there were reasons that demonstrated
the impracticality of reinstatement. However, in casu none were given.
7. It is Our view that the irrationality was caused by the learned Arbitrators
under reliance on the charge, specifically the allegation of dishonesty. We
say this because at paragraph 11 of the arbitration award, She is
recorded as follows,
The respondent stated that it would be impossible to reinstate the
applicants to work as they no longer trust them, as they have been charged
Page 43 of 283
with dishonesty. In the circumstances the applications will be compensated

for the dismissal.
However, since this charge was not proven before Her, it cannot and
could not play a role in influencing Her decision. We therefore find that
the learned Arbitrator erred in making Her decision.
8. While it is suggested that this Court has no authority to alter the decision
of the learned Arbitrator, We hold a different view. It is trite law that in
the exercise of Our review powers, We may correct or set aside an
arbitration award. Our decision to correct the arbitration award finds
support in the decision of Mosito AJ in Matsemela v Nalidi Holdings (Pty)
Ltd t/a Nalidi Service Station LAC/CIV/A/02/2007, where he had the
following to say,
When reviewing an award from the DPPR, Labour Court should also
correct it ....
9. In essence, this Court has the power to alter by correcting a decision
emanating from a procedurally irregular award, provided that the sought
or suggested conclusion was the only one that was reasonable, given the
circumstances of the matter. We are satisfied there are facts before Us
that permit the substitution of the irregular finding with the correct one.
It is clear from the record that the only reasonable conclusion would have
been for the learned Arbitrator to award reinstatement in terms of section
73 of the Labour Code Order (supra), as opposed to an award for
compensation.
AWARD
a) That the review is granted.
b) The award is corrected as follows:
(1) That 1st Applicant be reinstated to her former position without loss of
remuneration, seniority or other entitlements and benefits but for
the dismissal.
c) That this order be complied with within 30 days of issuance herewith.
2015.
T C RAMOSEME
MR. RAMASHAMOLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MR. MOSUOE
ADV. MABULA
Page 44 of 283

HELD AT MASERU
LC/REV/95/2012

BOLIBA MULTI-PURPOSE COOP
APPLICANT
AND
SEKOALA MOTSOASELE
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Applicant for rescission of judgment granted by default. Applicant establishing
a reasonable explanation but failing to demonstrate prospects of success on
review. Court finding that a rescission is not due where there are no prospects
of success and refusing same. Court not finding sufficient grounds to award
an order of costs against Applicant. No order as to costs being made.
1. This is an application for the rescission of judgment of this Court issued
on 13th December 2014. The brief background of the matter is that 1st
Respondent was an employee of Applicant until his dismissal for
misconduct, on or around the 1st November 2011. Unhappy with his
dismissal, 1st Respondent referred a claim for unfair dismissal with the
2nd Respondent. The matter was heard and an award was issued in
favour of 1st Respondent on the 23rd July 2012. In terms of the award,
Applicant was to pay 1st Respondent an amount of M727, 801-20 as
compensation.
2. Dissatisfied with the award, Applicant lodged review proceedings with this
Court on the 5th October 2012 and obtained an order for stay of
enforcement and the dispatch of the record in the DDPR proceedings. On
the 10th January 2013, Applicant was served with a notice calling upon it
to come and collect the said record for transcription, but never did.
About 9 months later, 1st Respondent initiated an application for
dismissal of the review application for want of prosecution.
1st
Respondent had claimed the review application was merely intended to
frustrate enforcement of the award made in his favour, as nothing further
had been done to have the matter finalised since its referral.
3. We had then agreed with 1st Respondent and dismissed the matter. The
order of this Court was delivered on the 21st November 2013 and a
written judgment was later issued on the 13th December 2013. Following
Page 45 of 283
receipt of the order of this court, Applicant initiated the current rescission
application.
On the date of hearing of the rescission application,
applicant sought to have the matter postponed. It was claimed by Adv.
Mohapi for applicant that the matter was being handled by one Advocate
Peete and that he was unable to attend on account of his wifes illness.
The postponement was strongly opposed by Mr. Letsika for 1st
Respondent. We then directed both parties to address Us on the issue.
4. Adv. Mohapi argued that given that an allocation had already been made
to Advocate Peete, he was not in a position to argue the matter. Mr.
Letsika in answer, argued that this is a 2 paragraph application with 7
sentences. He submitted that Advocate Mohapi, if at all the Applicant is
serious about the matter, can ask for the matter to be stood down to
allow him to prepare rather than to have it postponed. We agreed with
Mr. Letsika and refused the postponement. We then offered to stand the
matter down to allow Advocate Mohapi to make preparations.
He
however, rejected the offer and stated that he did not need time to
prepare as he was ready.
APPLICATION FOR RESCISSION
5. Adv. Mohapi for Applicant argued that they failed to attend the hearing
because they did not know about the date of hearing. He argued that
they were never served with the notice of hearing and that as a result
they could not attend the hearing. He submitted that Applicants failure
to attend was therefore not wilful, but due to circumstances beyond its
control.
6. He further submitted that Applicant had prospects of success in that they
were seeking the review of the arbitration award on account of
unreasonableness of the decision of the learned Arbitrator. Reference
was made to paragraph 6 of the Applicants Notice of Motion. It was
argued that having disclosed their case, this is sufficient for this Court to
grant them a rescission. The Court was referred to the Labour Appeal
Court decisions in Security Lesotho v Lebohang Moepa and; Security
Lesotho v Khauhelo Moeno ; and Ntseke Molapo v Mphuthing & Others
1995-1996 LLR-LB 576, in support.
7. In answer, 1st Respondent submitted that it is inaccurate that Applicant
was not notified about the date of hearing. It was argued that this Court
serves its own processes including the notices and further that It could
not have heard the matter unless satisfied that all parties were aware
that it was to be heard. Further, that there is nothing on the part of
Applicant to suggest reasons why it may have not been served with the
said process.
8. On the prospects, it was argued that there is nothing said by Applicant to
support their claim for unreasonableness.
It was submitted that
Applicant has simply made a bare statement of prospects of success.
Further, it was submitted that even if this Court were to buy into this
Page 46 of 283
argument, there are still not prospects as to date no record of proceedings

has been filed and served upon 1st Respondent. It was prayed that the
matter be dismissed.
9. We have gone through the record and in particular, the notice of hearing.
We have noted that it only bears confirmation of receipt on the part of 1st
Respondent and not Applicant. While We concede that this Court serves
its own processes, that on its own cannot serve as proof that process has
been delivered and served upon parties. There has to be more than just
that.
10. Regarding the prospects of success, We agree with 1st Respondent that
there are none. Applicant has merely put a bare statement alleging
unreasonableness without disclosing its defence. Care should be taken
that We are not requiring applicant to prove unreasonableness, but are
merely requiring it to state facts that are sufficient to enable us to
determine that there is a case for unreasonableness to be answered. Put
differently, We want Applicants to clearly disclose their case. It is trite
law that bare allegations are unconvincing and cannot be relied upon to
make a decisive conclusion in favour of the party making such allegations
(see Mokone v Attorney General & others CIV/APN/232/2008).
Consequently, We see no reason to deviate from this trite position.
11. Further, regarding the issue of the record of proceedings, it is not
denied by Applicant that it has not availed it to both the Court and 1st
Respondent to date. In fact the Courts record affirms the position
suggested by 1st Respondent. We have already stated that in terms of the
record, Applicant was called to collect same for transcription as far as on
10th January 2013. To this day of hearing of this matter, almost two
years have gone by without the record being availed.
12. We have stated before that the record of proceedings before the Court
a quo is needed to support an Applicants case for review, particularly
where unreasonableness is alleged. Clearly, if there is no record, even if
this matter were to be rescinded, Applicant would not succeed with the
review as there would be not record to sustain its claim for review. It
would therefore be unfair and highly prejudicial on the part of 1st
Respondent to grant this application, as that would only result in
exposing him to unending litigation.
13. In view of Our finding on the prospects of success, We find it
unnecessary to open the matter for a re-hearing as that would amount to
no more than a waste of time and an undue prejudice to another. Our
attitude finds support in the Case of Moshoeshoe v Seisa & others
CIV/T/596/2004, where in dealing with the requirements for a rescission
application, the Court made the following remark,
In this regard, Respondents Counsels correctly referred the court to
Jerome Ramoriting & Another vs Lesotho Bank-National Development Bank
Page 47 of 283
(CIV/APN/136/87 (unreported) at page 6, where the court had the

following to say;
It is not sufficient if only one of this(sic) two requirements is met, for
obvious reasons a perty (sic) showing no prospects of success on the merits
will fail in an application for rescission of judgement no matter how
reasonable and convincing the explanation of his default. Moreover, a perty
(sic) which simply disregards the courts procedural rules with no
explanation cannot be permitted to have a judgement against him
rescinded merely because he had reasonable prospects of success on the
merits.
COSTS
14. 1st Respondent had asked for the dismissal of the matter with costs.
He argued that Applicant has misled this Court into believing that they
were not served with the notice of hearing when they were. Further, that
given the circumstances of this case, it is merely meant to delay execution
of the 1st Respondent award. Applicant denied the allegations and
insisted that it was not notified about date of hearing. Further that an
award for costs is made instances of unreasonableness, which have not
been shown on their part. He prayed that the application for costs be
refused.
15. We have stated the principle in awarding costs before. We have said
that this court only awards costs in extreme circumstances of vexations
conduct and/or frivolity ((see Thabiso Moletsane v Ministry of Public works
and Transport LC/31/2014).
None have been presented by parties
before Us. We therefore decline to award costs.
Page 48 of 283
AWARD
Having considered both submissions and evidence, We make an award as
follows:
a) That the rescission application is refused.
b) The order of this Court issued on the 21st November 2013 remains in
force.
c) The award of the DDPR in referral A1115/2011 is reinstated and it must
be complied with within 30 days of issuance herewith.
d) No order as to cost.
THUS DONE AND DATED AT MASERU ON THIS
FEBRUARY, 2015.
11th DAY OF
T C RAMOSEME
MR. KAO
MR. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MOHAPI
MR. LETSIKA
Page 49 of 283

HELD AT MASERU
LC/REV/69/2014
A0235/2013

SINOHYDRO CORPORATION LTD (PTY)
APPLICANT
AND
HLALELE RALIENYANE
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant having raised four
grounds. Applicant claiming that record is incomplete; that decision of
arbitrator is unjustified, that Arbitrator awarded both compensation and
reinstatement; and that Arbitrator awarded reinstatement where
circumstances did not permit. Court not finding merit in all grounds raised.
Court further finding that some of the grounds are appeal disguised as review
as they challenge the decision of the arbitrator and not the procedure for
reaching the aid decision. Court refusing the review application. No order as to
costs being made.
A0235/2013. The brief background of the matter is that 1st Respondent
was an employee of Applicant until he was dismissed for misconduct. He
then referred a claim for unfair dismissal with the 2nd Respondent. An
award was thereafter issued in his favour, wherein Applicant was ordered
to reinstate him without loss of wages, in terms of section 73 of the
Labour Code Order 24 of 1992. It is this award that Applicant wishes to
have reviewed, corrected and/or set aside. Three grounds of review have
been raised on behalf of Applicant, and having heard parties, Our
judgment follows.
2. Applicant argued that the record of proceedings in arbitration
proceedings before the DDPR is incomplete contrary to Regulation 30 of
the Labour Code (DDPR) Regulations of 2001. It was argued that the
record does not reflect the cross examination of Applicants witness, one
Mr. Xiao Bing. It was added that Mr. Xiao Bing had led evidence under
cross examination that reinstatement was not practical. It was further
argued that the record, on account of its incompleteness, does not reflect
the parties arguments on costs.
Page 50 of 283
3. It was submitted in the case of Lesotho Precious Garments v DDPR &

Others LC/REV/24/2012, the Labour Court held that an incomplete
record warrants interference with the decision made and that such a
matter must be remitted to be heard de novo. Further reference was
made to the case of Leteng Diamonds (Pty) Ltd v DDPR & Others
LAC/REV/111/2015, to the effect that the Labour Appeal Court granted a
review on account of an incomplete record. It was prayed that in the
same vein, this Court remit this matter to be retried.
4. In answer, 1st Respondent submitted that Applicant has not shown the
materiality of the evidence alleged to have been omitted from the record.
It was argued that this being the case, this Court cannot review this
matter solely on that basis. It was added that while the viva voce record
may have omitted that evidence, the reasons advanced by Applicant for
impracticality of reinstatement have been considered and disqualified by
the learned Arbitrator, at page 9 of the arbitration award.
5. While We admit that Regulation 30 of the Labour Code (DDPR) Regulations
(supra) requires that a complete record be kept, it is not in every instance
of an incomplete record where this Court will order remittal for a
rehearing. In so saying, We are simply acknowledging the requirements
of this Regulation and the authorities cited by Applicant in support of this
argument. However, We note that these suggested approach is not a
panacea for every incomplete record situation. The discretion is wide.
6. We say this because in casu, Applicant does not deny that what is
reflected on page 9 of the arbitration award is its evidence of
impracticality. It is trite law that what is not denied is deemed to have
been accepted as the true and correct position (see Theko v Commissioner
of Police and Another 1991-1992 LLR-LB 239 at 242). According to the
learned Arbitrator, Applicant gave three reasons for impracticality of
reinstatement and these were indeed considered and dismissed as being
insufficient to justify why an award of reinstatement may not be made. It
is thus Our view that the mere omission of this evidence in the
transcribed record, does not warrant interference, more so where the
evidence is reflected in the award, considered and disqualified without
any challenge to same by Applicant. Therefore, this argument fails.
7. About the omission of arguments for costs in the record, 1st Respondent
answered that they are reflected in the arbitration award at pages 9 10.
He argued that what is reflected as parties arguments in these pages, has
similarly not been challenged.
It was argued that in the light of the
circumstances, and in the same vein as in the case of the argument on
impracticality of reinstatement, the omission does not warrant
interference with the award.
8. We have gone through the referenced pages of the arbitration award and
do confirm that there is a record of parties arguments as to costs, which
record has not been challenged by Applicant. This being the case, We
Page 51 of 283
maintain Our attitude in addressing Applicants argument on the

previous point of omission of evidence, on impracticality of the
reinstatement of 1st Respondent. Consequently, this point also fails.
9. Applicant also argued that the learned Arbitrator made an award of costs
for two days when the matter was only postponed once. It was argued
that the two days award was inflated in as much as the day two award is
unjustified. In answer, 1st Respondent submitted that the matter was
postponed on two occasions on account of Applicant. It was argued that
this was the basis of the two day award of costs. It was submitted that
the matter was first postponed on the 19th November 2013 and again on
the 13th February 2014. The Court was referred to page 13 of the record
in support. It was argued that the learned Arbitrator was justified in Her
award.
10. We have gone through page 13 of the record of proceedings and wish
to confirm that it is true that the matter was postponed twice. In terms of
the record, at page 13,
On the 19th November 2013 and on the 13th February the matter was
supposed to have proceeded but Mr. Xiao Bing was not here, Mr. Sekonyela
asked for the matter to be postponed,
11. This being the case, there is a basis for the award of two days as
contrary to Applicant suggestion, there was more than one postponement.
Over and above the lack of merit in Applicants argument, We are also of
the view that this is an appeal and not a review ground, as it challenges
the decisions of the learned Arbitrator to award two days costs.
Consequently, We are fortified in Our decision to dismiss this argument.
12. Applicant further claimed that the learned Arbitrator had erred by
awarding both reinstatement and compensation. It was argued that this
is contrary to section 73 of the Labour Code Order (supra), in that
compensation is awarded in place of reinstatement and not with it. The
Court was referred to page 11 of the arbitration award under the heading
Award, specifically under (a) and (c).
13. 1st Respondent answered that it is inaccurate to suggest that both
reinstatement and compensation were awarded. It was submitted that in
the referenced portion, the learned Arbitrator awarded reinstatement and
lost wages and not compensation. It was argued that the learned
Arbitrator was right in Her approach as lost wages are ancillary to the
award for reinstatement in terms of both section 73 of the Labour Code
Order (supra) and the decision of this Court in Standard Lesotho Bank v
Raphael Mphezulu LC/REV/87/2011.
14. We have also gone through the referenced portion of the arbitration
award and do confirm, as 1st Respondent has put, that the learned
Arbitrator only awarded reinstatement and lost wages as opposed to
reinstatement and compensation. This is reflected as such,
Page 52 of 283
(a) The respondent company is hereby ordered to reinstate applicant in

accordance with section 73(1) with effect from the 1st August 2014;
(c) The respondent company is further ordered to pay an amount of

M75,067-86 to applicant comprising lost wages.
15. Clearly, nothing touches on compensation in the award and as such
the argument cannot sustain. We wish to add that it is accurate that lost
wages are ancillary to the award for reinstatement and therefore that it is
proper to award them with reinstatement, as the learned Arbitrator did.
16. Lastly, Applicant claimed that the learned Arbitrator awarded
reinstatement where the circumstances did not permit. It was argued
that the Applicant had led evidence of impracticality and that
notwithstanding the learned Arbitrator awarded the reinstatement of 1st
Respondent. It was argued that this was a grave irregularity warranting
the review of the award. The Court was referred to page 12 of the record
where Applicant witness testified that reinstatement would not be
accepted.
17. 1st Respondent answered that when asked to comment on the prayer
of 1st Respondent to be reinstated, Applicant simply replied that it would
not be accepted, without stating the circumstances that make
reinstatement impractical. It was argued that in law, it is the obligation
of the employer to demonstrate impracticality and having failed to do so,
the learned Arbitrator was justified in awarding same. The Court was
once more referred to the case of Standard Lesotho Bank v Raphael
Mphezulu & Another (supra), in support.
18. We have perused the referenced portion of the record of proceedings.
The following is recorded
Respondent representative:
Would you like to take that paper from
the witness. Mr. Xiao-Bing the applicant
had just claimed that he be reinstated,
what
you
can
say
about
his
reinstatement?
Respondent witness:
Respondent would
reinstatement.
not
accept
the
19. Evidently, no justification was given to demonstrate the impracticality

of reinstatement. As a result, the learned Arbitrator was right in Her
award. Even if We were to consider the evidence of impracticality that is
alleged to have been omitted in the record of proceedings, but considered
in the award, We are of the view that the learned Arbitrator has reasoned
Her conclusion and has thus not committed any irregularity.
Consequently, this point also fails.
Page 53 of 283
AWARD
b) The arbitration award in referral A0235/13 is reinstated.
c) The said award must be complied with within 30 days of issuance
herewith.
THUS DONE AND DATED IN MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T. C. RAMOSEME
MR. KAO
MR. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. SEKONYELA THANTI

MR. HLALEFANG SEOAHOLIMO
Page 54 of 283

HELD AT MASERU
LC/REV/142/2013

WENG RONG ENTERPRISES (PTY) LTD
APPLICANT
AND
DDPR MASERU
MAMOSEBI MATLI
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for rescission of an order of this court. Court not finding the
explanation given reasonable. Applicant failing to allege prospects of success.
Court finding no merit in the rescission application and dismissing same. No
order as to costs being made.
1. This is an application for the rescission of an order dismissing the
Applicants review application for non-prosecution. The brief background
of the matter is that 2nd Respondent was Applicants employees until his
dismissal from employment. Dissatisfied with her dismissal, she initiated
an unfair dismissal claim with the DDPR. She then successfully obtained
judgment in default of Applicant.
2. Armed with the default award, and dissatisfied with same Applicant
initiated rescission proceedings. The said application was filed out of
time together with an application for condonation. Having considered the
applications, the learned Arbitrator refused them and reinstated his
initial decision.
3. Similarly dissatisfied with the rescission award, Applicant initiated the
current review proceedings. As with the Respondent primary claim, the
review application was heard and dismissed in default of Applicant. It is
this order that Applicant wishes to have rescinded. Having heard parties
submissions, Our judgment follows.
4. Applicants case was that after filing the main review application, they
were served with a copy of compact disc, allegedly claimed to contain the
record of proceedings in the matter subject of review. Upon transcription
they found that the disc was empty. They then wrote to the Registrar of
this Court to bring this discovery to Her attention. They claim that the
Page 55 of 283
Registrar advised them to write a letter to demand another disc, which

they did.
5. Applicant further submitted that it was during the above process that 2nd
Respondent filed an application for dismissal for want of prosecution.
They added that in receipt of same, they met with Respondent and agreed
to do away with the dismissal application and to only argue the merits of
the matter. They added that in view of the agreement and pending the
availability of the compact disc, they set the matter down for this day.
6. Applicant submitted furthermore that they were later shocked to learn
that Respondent had obtained an order for dismissal for want of
prosecution. It was stated that failure to prosecute the matter was not
intentional but occasioned by the initial compact discs, which did not
contain the record of proceedings and also by an agreement that was
reached that Respondent would abandon the dismissal application and
concentrate on the merits of the main claims.
7. Respondent argued that they were never informed about the problems
with the recordings and that they only learned through these pleadings.
Regarding the agreement to abandon the dismissal application,
Respondent categorically denied ever making same. While they conceded
that today was supposed to be the date of hearing the Respondent stated
that it was changed by agreement of parties hence the notice of hearing
for the 3rd July 2014, which is the day on which the matter was
dismissed. Respondent prayed that the matter be dismissed particularly
since there are no prospects of success as none have been pleaded.
8. In an application for rescission, there are two major requirements for
consideration.
These are the explanation for the default and the
prospects of success (see Moshoeshoe v Seisa & Others CIV/T/596/2004).
We will now proceed to deal with the submissions of parties against these
requirements.
9. Applicants main reason for failure to attend is that they had agreed with
Respondent to do away with the dismissal application hence the set down
for 9th October 2014. That notwithstanding, Applicant does not deny that
the date of hearing was rescheduled to the 3rd July 2014, which is the
date on which it was heard and dismissed for want of prosecution. They
also do not deny that the 3rd July 2014 date was chosen after the initial
date of 09/10/2014, to bring the matter forward, by both parties.
10. What Applicant is attempting to suggest to Us is that, assuming that
there was an agreement to abandon the dismissal application and to
argue the merits on the 9th October 2014, they did not both need to
appear before Us to seek that indulgence to stay the matter till the agreed
upon date. This suggestion is inaccurate. An application to postpone is
not a right but an indulgence given to parties on good cause show (see in
Real Estate Services (Pty) Ltd v Smith (1999) 20 ILJ 196).
Page 56 of 283
11. We are therefore of the view that given the circumstances, Applicant
had no satisfactory reason for its default. While We understand that at
some stage, as illustrated by the letter annexed to its founding affidavit,
that the compact disc alleged to have contained the record had problems,
no sufficient explanation has been given to explain its failure to attend on
3rd July 2014, even just to seek the indulgence of the Court to postpone
on the agreed terms. What makes the Applicant case worse is that it does
not even attempt to suggest that they had both agreed that Respondent
would seek that indulgence on their behalf on the said day.
Consequently, there is no reasonable explanation for the default.
12. About the prospects of success, We note that they have not been
pleaded. There is a rule in motion proceedings that parties stand and fall
by their pleadings. In relation to the rule, the Court in Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau No & Another (supra).
At paragraph 25, the Court had the following to say,
... on my understanding the rule that in motion proceedings the applicant
must make his case in his founding affidavit and that you stand or fall by
your papers has not been abolished and still applied.
13. Further supporting Our view, is the authority of Thabo Phoso v
Metropolitan Lesotho LAC/CIV/A/10/2008, where the Court had the
following to say,
In several of its decisions the Court of Appeal of Lesotho has more than
once deprecated the practice of relying on issues which are not raised or
pleaded by the parties to litigation.
14. As a result, and in view of the above principles, We are inclined to
agree with Respondent that Applicant has no prospects of success in the
matter hence why they are not pleaded. In view of the absence of
prospects of success and in view of the lack of a reasonable explanation
for the default, this application cannot sustain.
15. Our view finds support in the High Court of Lesotho case in
Moshoeshoe v Seisa & Others (supra), where the Court relying on an
extract from the case of Jerome Ramoriting & Another vs Lesotho BankNational Development Bank (CIV/APN/136/87, had the following to say,
It is not sufficient if only one of this(sic) two requirements is met, for
obvious reasons a perty showing no prospects of success on the merits will
fail in an application for rescission of judgement no matter how reasonable
and convincing the explanation of his default. Moreover, a perty which
simply disregards the courts procedural rules with no explanation cannot
be permitted to have a judgement against him rescinded merely because he
had reasonable prospects of success on the merits.
Page 57 of 283
AWARD
a) The application for rescission is refused.
b) The judgment of this court made on the 3rd July 2014 remains in force.
2015.
T C RAMOSEME
MR. MOTHEPU
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. MOJELA
MR. LETSIE
Page 58 of 283

HELD AT MASERU
LC/REV/44/2013
A0087/2012

TEPO MOKAU
APPLICANT
AND
LIQHOBONG MINING
DEVELOPMENT (PTY) LTD
DDPR
ARBITRATOR N. MOSAE
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant having raised three
grounds of review based on estoppel, ultra vires and lis pendens. Court
finding that estoppel has been misapplied by Applicant. Further that the
learned Arbitrator acted within the scope of his powers and therefore not ultra
vires. Furthermore that the claim for lis pindens can at best be raised against
the secondary matter. Review application being refused and award of DDPR
being reinstated, subject to the direction of the Labour Appeal Court. No order
as to costs being made.
A0087/2012. The background of the matter is that Applicant was an
employee of the 1st Respondent until his dismissal for misconduct.
Unhappy with the dismissal, he referred a claim for unfair dismissal with
the 2nd Respondent, coupled with another claim for unpaid overtime.
2. The matter was duly conciliated upon during which process, the unpaid
overtime claim was resolved by settlement. The matter then proceeded
into arbitration only in respect of the unfair dismissal claim. At the
commencement of the arbitration proceedings, 1st Respondent, who bore
the evidentiary burden to prove the fairness of the dismissal, sought the
indulgence of the learned Arbitrator to stay the proceedings to enable
them to have the matter heard before the Labour Appeal Court, as a
Court of first instance.
3. 1st Respondent reasons for the indulgence were that their key witness,
one Thabo Khoboli was refusing to testify in the proceedings before the
2nd Respondent. Further that given the lack of power, on the part of the
2nd Respondent to subpoena a witness, they wished to apply before the
Page 59 of 283
Labour Appeal Court for an order to have the matter heard in that Court
as a Court of first instance.
4. The indulgence was duly granted and parties were directed to bring
feedback and for direction on the 10th October 2012. On the said date,
parties appeared before the learned Arbitrator and reported that the
application had just been made on that day and that they were waiting
for a date of hearing.
The learned Arbitrator then extended the
indulgence with similar condition to the 1st November 2012. On the 24th
October 2012, the application before the Labour Appeal Court was heard
and finalized, and an award was made in favour of the 1st Respondent.
Parties were then promised a full written judgment on the 26th of the
same month. However, they only got it sometime in January of 2013.
5. On the 1st November of 2012, and contrary to the directive of the learned
Arbitrator both parties failed to attend to appraise the learned Arbitrator
with developments in the matter before the Labour Appeal Court. In an
effort to extend the opportunity to be heard to both parties, the learned
Arbitrator had the matter re-set for hearing on the 5th December 2012.
Still on this day both parties failed to attend. The learned Arbitrator then
proceeded to dismiss the matter for want of prosecution, citing among
others His view that Applicant had lost interest in the matter, as he had
failed to attend on the two stated occasions. It is this award that
Applicant wishes to have reviewed, corrected and/or set aside.
6. We wish to note that this matter was not opposed and that Adv.
Moshoeshoe, for 1st Respondent, was in attendance to confirm this. We
intimated to parties that notwithstanding absence of opposition, it was
still within Our discretion to either grant or refuse the application
depending on its merits. Having heard Applicants submissions, Our
judgment follows.
7. Applicants case was that the learned Arbitrator had erred by dismissing
his referral following the learned Judge Mositos decision to hear the
matter before the Labour Appeal Court as a Court of first instance. It was
argued that in view of the decision of the Labour Appeal Court, the
learned Arbitrator became estopped from making an award that negates
the judgment of the Labour Appeal Court. The Court was referred to the
cases of Hohaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A)
and RAS Liquor Licensing Board Area 11 Kimberly 1966(2) SA 232 (c) at
238, for the principle of estoppel and in support of the argument.
8. The principle of estoppels provides that,
.....someone who has been brought under an incorrect impression by
another and who in reliance on that impression has acted to his detriment,
may prevent the other from relying on the correct state of affairs before a
court. (see Schalk Van Merwe etal; Contract General Principles, 1st Ed.
Juta and Co., at page 23.
Page 60 of 283
9. While We accept and acknowledge the dictates of the principle of

estoppel, as appears in both the authorities cited by Applicant and those
of Our own, they have been misapplied to the case in casu. In fact, the
argument by Applicant and the dictates of the principle do not link at all
in as much as Applicant has failed to demonstrate the said link. This is a
simple misapplication of the law and the argument must simply fail. The
decision of the Labour Appeal Court does not estop the learned Arbitrator
from making the decision that he made. In fact none of the elements of
estoppel are present in the circumstances of the matter in casu, unless
estoppel is claimed in some way other than the one that is anticipated in
law.
10. Applicant also argued that the learned Arbitrator acted ultra vires his
powers by making an award in respect of a matter for which he had
agreed to have transferred to the Labour Appeal Court. The Court was
referred to the cases of National Executive committee of the Basotholand
Congress Party .v. Maholela Mandoro CIV/APN/69/2004; Nortje .v.
Fransman 1975 (1) SA 532 (c); Baxter, in his book Administrative Law,
1984, at page 426, in support of the argument.
11. From the common cause facts as set out by Applicant, there is no
point in time where the learned Arbitrator agreed to have the matter
transferred to the Labour Appeal Court. Rather what happened is that
Applicant sought indulgence to make an application to have the matter
heard at the Labour Appeal Court as a Court of first instance. As a
result, the question of ultra vires an agreement is out of the picture
completely. The principle of ultra vires presumes that one acted outside
their authority. In casu, that authority is alleged to be the agreement to
have the matter transferred to the Labour Appeal Court. There being no
such agreement, the argument must also fail.
12. We are of the view that the learned Arbitrator acted well within His
powers in terms of section 227 (8) (b) of the Labour Code (Amendment) Act
(supra). Both parties failed to attend and he dismissed the matter and
this is what the said section empowers Him to do. This section is
couched as follows,
if a party to a dispute contemplated in subsection (4) fails to attend the
conciliation or hearing of an arbitration, the arbitrator may
(b) dismiss the referral; or

Consequently, the claim of ultra vires cannot sustain.
13. Applicant further argued that the matter was lis pindens when the
learned Arbitrator resolved to proceed and dismiss same. It was argued
that the requirements of lis pindens were present at the time that the
award was made. These requirements were stated to be the following,
a) That there be pending proceedings between the same parties; and
b) That the proceedings be based on same cause of action and subject
matter.
Page 61 of 283
It was argued that the learned Arbitration erred in proceeding to hear a

matter that was before another Court.
14. It is clear, from the common cause facts that after obtaining an order
for the matter to be heard before the Labour Appeal Court as a Court of
first instance, the matter was never transferred. Therefore, the matter
was still within the jurisdiction of the learned Arbitrator when He resolved
to proceed to hear it and it remains so to date. We wish to further
comment that when the learned Arbitrator resolved to proceed to dismiss
the matter, he was unaware that the Applicant had been able to obtain
the order sought as well as his intentions with the order obtained.
15. Even assuming that the matter had been secretly initiated with the
Labour Appeal Court, the learned Arbitrator cannot be faulted for what
was not brought to his attention to consider. Over and above that, it
could at best be argued that the matter was lis pendens before the
learned Arbitrator and not the other way round as proceedings before
Him were initiated first. Lis pindens cannot sustain in the sense sought.
Rather there is a way that Applicant can obtain redress against what
happened in the proceedings before the 2nd Respondent, which route is
not by way of review, and certainly not before this Court.
AWARD
b) The award remains in force until otherwise directed by the Labour Appeal
Court.
2015.
T C RAMOSEME
MR. MATELA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. LEPHUTHING
ADV. MOSHOESHOE
Page 62 of 283

HELD IN MASERU
LC/REV/57/12
E002/2006

LESOTHO BREWING COMPANY (PTY) LTD
APPLICANT
AND
THE DDPR
M MASHEANE: ARBITRATOR
SELLO MAFEREKA
TOEU MOHLOKI
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
_______________________________________________________________
Application for the review of arbitration award. Applicant raising only one
ground of review that Arbitrator awarded both compensation and lost
earnings. Court finding that Arbitrator did not award both compensation and
lost wages, but that Arbitrator considered lost wages in awarding
compensation. Court finding that the approach of Arbitrator was not irregular.
Review application being refused and no order as to costs being made.
E002/2006. This matter has a rather protracted history. Briefly, 3rd and
4th Respondents were employees of Applicant until they were dismissed.
Dissatisfied with their dismissals, they referred a dispute to the DDPR for
unfair dismissal. The DDPR found their dismissal to have been unfair
and awarded them reinstatement in terms of section 73(1) of the Labour
Code Order 24 of 1992.
2. Applicant then took the award on review where it was found that learned
Arbitrator had erred in making the award. The matter was then remitted
back to the DDPR for consideration of the practicality of reinstatement.
On remission, the learned Arbitrator awarded the 3rd and 4th Respondents
amounts in the sum of M132,623-00 and M144,122-00 respectively. It is
this award that Applicant wishes to have reviewed, corrected and/or set
aside. Having considered the submissions of parties, Our judgment
follows.
3. Applicants case is that the learned Arbitrator erred by awarding a 12
months salary as compensation, and in addition thereto awarding 75
months salary as lost earnings. It was argued that the learned Arbitrator
Page 63 of 283
erred by awarding both compensation and lost earnings, thus committing

a mistake of law that materially affected Her decision.
4. It was argued that in terms of section 73(2) of the Labour Code Order
(supra), compensation is awarded in lieu of reinstatement and that in
making such an award there are factors to consider. It was submitted
that these factors include the breach on the part of either party and
mitigation of loss.
It was added that over and above the fixed
compensation amount, which is to take into account these said factors,
no other award may be made.
5. It was argued that contrary to the dictates of section 73(2) of the Labour
Code Order (supra), the learned Arbitrator recorded, at page 3 of the
arbitration award, that She will award both compensation and lost
earnings, which practice was irregular. It was argued that in Her
approach, the learned Arbitrator has awarded damages and not
compensation while the two are different. It was submitted that damages
are different from compensation in that damages are a solatium for
personal injury, namely that which has been occasioned by failure to
provide a hearing.
6. It was further argued that in terms of section 73(1) and (2) of the Labour
Code Order (supra), reinstatement goes with lost earning and where
reinstatement is not practical, compensation should be awarded. It was
submitted that in committing the error of awarding both lost earnings
and compensation, the learned Arbitrator had relied on the decision in
Pascalis Molapi v Metcash Ltd Maseru, LC/06/1994, which decision was
set aside on being irregular in Metcash Ltd Maseru v Pascalis Molapi
LAC/CIV/R/09/2003.
7. It was also submitted that Applicant accepts the compensation amount of
M18,348-00, which is equal to 12 months salaries and no more. It was
argued that in the event this Court is of the view that the approach of the
learned Arbitrator to award as she did was right, that it may apportion
the additional amount of 75 months amongst parties. It was argued that
the whole period of lost wages cannot totally be apportioned to Applicant.
The Court was invited to consider the history of the matter to make this
determination. The Court was further asked to consider the procedure
laid out in Lesotho Bank v Mahlomola Khabo C of A 21/99, in determining
the amount of compensation.
8. Respondents answered that while they concede that the provisions of
section 73 of the Labour Code Order (supra), are as Applicant has put,
there is something that Applicant seems to have missed. It was argued
that section 73(2) Labour Code Order (supra), does not limit factors to be
considered only to breach and mitigation, but others including the lost
wages. The Court was specifically directed to the words also under
section 73(2), to support the argument.
Page 64 of 283
9. It was argued that the manner in which section 73 of the Labour Code
Order (supra) has been drafted, gives the learned Arbitrator a wide
discretion including what She did in making the award in issue. It was
submitted that the learned Arbitrator was right in awarding the 75
months salaries, in addition to the 12 months salaries compensation
awarded.
10. It was further argued that if the Court should feel tempted to temper
with the award, that it must do so in favour of the principle in the Court
of Appeal decision in Lesotho Bank v Mahlomola Khabo (supra), that
compensation must include the difference between what an applicant
party was entitled to as the salaries after the dismissal, and what that
applicant party would have received had the contract been fulfilled.
11. It was further argued that the Lesotho Bank v Mahlomola Khabo
(supra), approach is supported by the decision of the Labour Appeal Court
in Standard Lesotho Bank v Nena & Others LAC/CIV/A/06/2008. It was
submitted that in this case, the Court awarded severance pay and
compensation of nine months salaries in addition. It was argued that in
so doing the Court applied the similar principle as that which was applied
by the Labour Appeal Court in Pascalis Molapi v Metcash Ltd Maseru
(supra). It was prayed that the review be dismissed.
12. The provisions of section 73 of the Labour Code Order (supra), are as
follows,
(1) If the Labour Court or arbitrator holds the dismissal to be unfair, it
shall, if the employee so 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. The Court or arbitrator shall not make such an order if it
considers reinstatement of the employee to be impracticable in light of the
circumstances.
(2) If the court or arbitrator decides that it is impracticable in light of the
circumstances for the employer to reinstate the employee in employment, or
if the employee does not wish reinstatement, the court or arbitrator shall fix
an amount of compensation to be awarded to the employee in lieu of
reinstatement. The amount of compensation awarded by the Labour Court
or arbitrator shall be such amount as the court or arbitrator considers just
and equitable in all circumstances of the case. In assessing the amount of
compensation to be paid, account shall also be taken of whether there has
been any breach of contract by either party and whether the employee has
failed to take such steps as may be reasonable to mitigate his or her
losses.
13. We wish to confirm that We agree with Applicant that where an
arbitrator decides that compensation would be appropriate under the
circumstances, then no other amount may be awarded over and above
compensation. However, We differ in so far as its argument that factors
Page 65 of 283
to consider are only limited to mitigation of loss and breach on party of

either party. There are many factors over an above just these two. These
have been clearly outlined by this Court in the authority of Standard
Lesotho Bank Ltd v Masechaba Ntihlele and another LC/REV/28/12.
14. We wish to also comment that We have perused the arbitration award,
particularly at page 3 as referenced by Applicant. We have not found
anywhere in the award where the learned Arbitrator made such a
statement that she will award both compensation and lost earnings,
either literally or from context. However, We do not make the distinctions
between damages and compensation. In fact, We wish to add that
damages are awarded in a claim for breach of contract, while in an unfair
dismissal claim, compensation is awarded.
15. Having made the above comments, We shall now deal with the thrust
of Applicants claim. We have considered the provisions of section 73 of
the Labour Code Order (supra), above. From Our observation, there is
nowhere in the said section where the consideration of lost earnings is
limited to the granting of a remedy in terms of section 73(1) of the labour
Code Order (supra). Rather Standard Lesotho Bank v `Nena and Another
LAC/CIV/A/06/08, the Labour Appeal Court interpreted the provisions of
section 73(2) of the Labour Code Order (supra), to include the
consideration of other factors, such as lost earnings, in determining the
award of compensation.
16. The interpretation of section 73(2) by the Labour Appeal Court in
Standard Lesotho Bank v `Nena and Another (supra) is to be found at
paragraph 15 of the judgment as follows,
Although it was formulated in cases of quantification of damage in other
branches of the law other than employment, our Court of Appeal extended
the application of this principle to employment law in Khabo v Lesotho
Bank LAC (2000-2004)91 at 97. The critical question is, how much
compensation should this Court award to Respondent for his having been
unfairly dismissed? This is a difficult question. Section 73(2) of the Labour
Code Order No. 24 of 19-92 requires that we must also take account of: (a),
whether there has been any breach of contract by either party and (b),
whether the employee has failed to take such steps as may be reasonable
to mitigate his or her losses. The word "also" means "too", "as well", "in
addition", "furthermore", "besides." It goes without saying that there may be
other factors that may be taken into account in addition to those reflected in
(a) and (b) above. No exhaustive catalogue of such factors may be provided
herein. Each case will have to be judged on its own merits. Sufficeth to say
that some of these factors that may enter into the exercise of the discretion
in determining the quantum of compensation may include, the actual and
future loss likely to be suffered by the employee as a result of the unfair
and wrongful dismissal, the age of the employee, the prospects of the
employee in finding other equivalent employment, the circumstances of the
dismissal, the acceptance or rejection by either the employer or employee of
any recommendation made by the Court for the reinstatement of the
Page 66 of 283
employee whether or not there has been any contravention of the terms of
any collective agreement or any law relating to employment by the
employer or the employee, the employer's ability to pay.
17. In view of this said above, Our attitude is that the learned Arbitrator
did not award both compensation and lost wages. Rather, what the
learned Arbitrator did was to consider lost earnings in line with the
dictates of Standard Lesotho Bank v `Nena and Another (supra), and
section 73(2) of the Labour Code Order (supra). The learned Arbitrators
approach is clearly reflected under paragraphs 7 to 10 of the arbitration
award, under the heading FORMULATION OF COMPENSATION. This
being the case, We find no irregularity in the way that the decision was
made. We wish to add that We are therefore not convinced in the
argument of Applicant that the learned Arbitrator awarded damages as
opposed to compensation.
18. We wish to comment that We do agree with Applicant that in making
Her decision, the learned Arbitrator relied on an overturned decision of
Pascalis Molapi v Metcash Ltd Maseru (supra), by the Labour Appeal Court
in Metcash Ltd Maseru v Pascalis Molapi (supra). However, the principle
that the learned Arbitrator relied upon from Pascalis Molapi v Metcash Ltd
Maseru (supra), remains the valid position of the law as shown in the
latter decision of the Labour Appeal Court in Standard Lesotho Bank v
`Nena and Another (supra).
19. In addition to that, We have perused both judgments of Pascalis
Molapi v Metcash Ltd Maseru (supra), and Metcash Ltd Maseru v Pascalis
Molapi (supra), and in particular the basis of the Labour Appeal Court in
setting aside the former decision of the Labour Court. The premise of the
finding was that reinstatement was the preferred remedy and that it
should have been granted. No comment was made by the Court over the
factors to consider in awarding compensation. In Our view, the principle
was accepted hence why it was applied by the Labour Appeal Court years
later in Standard Lesotho Bank v `Nena and Another (supra).
20. Applicant has asked that in the event that We find in favour of
Respondents, that we make an award to apportion the period of lost
earnings amongst the parties. This in Our view is a factual determination
which requires that evidence be led by both parties on the issue. Not only
is it an issue involving a factual determination but one that should have
been canvassed before the learned Arbitrator. It is Our view that
Applicant is attempting to make his case on the issue for the first time on
review. Applicant is in essence asking Us to usurp the powers of the
Learned Arbitrator by making the suggested determination, which
practice is not allowed.
Page 67 of 283
AWARD
b) The award of the DDPR in referral E002/2006 remains in force.
c) The award is to be complied with within 30 days of issuance herewith.
THUS DONE AND DATED IN MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
MRS. MOSEHLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 3rd & 4th RESPONDENTS:
ADV. LOUBSER
ADV. MOTOARI
Page 68 of 283

HELD AT MASERU
LC/41/2013

RETELISITSOE MAKHOOANE
TOKELO LIPHAFA
MAKHOTSO MONYEKE
MATIISETSO RAMOJAPOHO
NAPO CHABELI
MOLEFENG MOLEFENG
KHOABANE MAKOTOKO
MATHULA HLEHLISI
LEPAE HLEHLISI
POLAKI MOSOLA
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
AND
JIKELELE SERVICES (PTY) LTD
RESPONDENT
JUDGMENT
Claim for unfair dismissal for operational requirements. Applicants challenging
both the substantive and procedural aspects of their dismissals. Applicants
only leading evidence in respect of the procedure. Court finding merit in the
claim for procedural unfairness. Quantum of Applicants claims for
compensation not challenged. Court awarding Applicants their claims.
1. This is a claim for unfair dismissal based on operational requirements of
the employer. The brief background is that Applicants were all employees
of Respondent until their retrenchment, allegedly on account of the
closure of some part of the job.
Subsequent to their dismissals,
Applicants referred claims for unfair dismissal with the Directorate of
Dispute Prevention and Resolution (DDPR).
The matter was duly
conciliated but without success.
2. Pursuant to section 226(3) of the Labour Code (Amendment) Act 3 of 2000,
the matter was referred to this Court for adjudication, and was duly
opposed. On the date of hearing Respondent raised an argument that
Applicants had a duty to begin as they had alleged a dismissal that was
unfair. We refuted the argument on the ground that a party cannot be
required to prove the negative, but that he who makes the
bears the
evidentiary burden and must begin.
Page 69 of 283
3. In their opening statements, Applicants submitted that they would show

that they were not consulted prior to their retrenchment and further that
there was no valid reason as there was still work to be done. Respondent
submitted that it would show that it consulted with Lesotho Workers
Association (LEWA) and that Applicants were also aware of the
retrenchments. In the light of these said above the matter was heard.
FACTS AND EVIDENCE
4. Respondents case was that where it became apparent to them that some
parts of the job were nearing an end, they consulted with a union called
LEWA.
Out of the consultations was an agreement to retrench
Respondent employees. Thereafter the retrenchments started in groups,
in December 2012. At the time of the retrenchments, employees signed a
memorandum, in terms of which they agreed to be retrenched and to be
paid their terminal benefits. The Court was referred to annexure R1 in
support.
5. Applicants case was that they were not consulted as they only learned on
the date of termination that they were being retrenched. They were not
members of LEWA and as such they never knew about the
retrenchments.
They added that Respondent thus dismissed them
unfairly. They prayed for 10 months compensation in the sum of
M27,000.00 to each Applicant. They have sought alternative employment
but without success.
The 10 months claimed is their period of
unemployment to the day of filing this matter.
6. The Labour Code (Codes of Good Practice) Notice of 2003, states the
procedure that must be followed where a dismissal is contemplated, as a
result of the operational requirements of the employer (also see SA
Commercial Catering & Allied Workers Union and Another v ETA
Audiovisual (1995) 16 ILJ 925 at 930 E). In terms of the procedure
outlined, there has to be consultation with the affected employees.
Evidence in casu has shown that Applicants were not consulted as
Respondent only consulted with LEWA.
7. The Codes of Good Practice (supra), do not limit the consultation process
to unions, irrespective of whether they hold a majority or not. The
expectation in law is that all concerned must be consulted. Having failed
to do so, Respondent has breached the procedure.
Therefore the
dismissal of Applicants is procedurally unfair.
8. Applicants had also claimed the substantive unfairness of their dismissal.
However, their evidence has not addressed the issue and therefore the
claims fail to sustain. This leads Us to form a conclusion that the
substantive aspect of the Applicants dismissal is unchallenged. In Our
view, this means that Applicants accept the substantive aspect of their
dismissals for it is trite law that what has not been challenged is taken to
have accepted (see Theko v Commissioner of Police and Another 1991-1992
Page 70 of 283
LLR-LB 239 at 242).

This thus renders the principal remedy of
reinstatement impractical.
9. That notwithstanding, Applicants are clear in their claim that they want
to be compensated by 10 months wages, which is the period of their
unemployment, at least as at the day of filing this matter. This has not
been opposed by Respondent and We see no reason not to award same.
We thus award each Applicant as prayed in the claims.
AWARD
Having considered the evidence of parties, We make the following award:
a) That the dismissals of Applicants are unfair procedurally.
b) Respondent must compensate them with an amount of M27,000.00 each.
c) The said amounts be paid within 30 days of issuance herewith.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY, 2015.
T C RAMOSEME
MRS. THAKALEKOALA
MRS. MALOISANE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MS. M. MOSALA
ADV. H. TOLO
Page 71 of 283

HELD IN MASERU
LC/87/13

KALI MOFOSI
APPLICANT
AND
FORMOSA TEXTILE CO. (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unfair dismissal allegedly for participating in a strike. Court mero
motu raising a point in limine on its jurisdiction over the Applicants claim.
Court finding that the circumstances of Applicant are not within section 226(1)
but are infact within section 226(2) of the Labour Code Amendment Act 3 of
2000. Court declining jurisdiction and remitting the matter to the DDPR for
arbitration, with specific terms. No order as to costs being made.
1. This is a claim for unfair dismissal allegedly for participation in a strike.
The brief background is that Applicant took part in a strike at the
Respondent place of employment. It is alleged that during the strike he
engaged into acts of intimidation against his fellow employees. He was
charged, found guilty and dismissed.
2. Unhappy with his dismissal, Applicant referred a claim for unfair
dismissal with the Directorate of Dispute Prevention and Resolution
(DDPR). The matter was duly conciliated upon at the end of which it
remained unresolved. The learned Arbitrator, upon the advice of parties
that the dismissal was for strike related misconduct, issued a certificate
of non-resolution and referred the matter for adjudication by this Court.
3. At the commencement of the proceedings, and having earlier
conscientised parties, We mero motu raised a point in limine regarding this
Courts jurisdiction over the Applicants claim. Applicants claim is that
he was dismissed for intimidating his fellow employees during a strike
action. He specifically challenges both the substantive and procedural
fairness of his dismissal. We were addressed on the point in limine and
Our judgment follows.
4. Applicants case is that this Court has jurisdiction over his claim in terms
of section 226(1)(c)(1) of the Labour Code (Amendment) Act 3 of 2000. He
states that he was dismissed for his role in the strike action. He
Page 72 of 283
submitted that participation means taking part or a role, and that his
alleged role of intimidation falls within the scope of section 226(1)(c)(1).
5. He specifically submitted that it is alleged that he conducted himself
contrary to the strike rules. This being the case, the conduct he is
charged with relates to a strike action and that as such the dispute falls
within the exclusive jurisdiction of the DDPR. He added that the Rule in
issue is Rule 10 of the Strike Rules, and it provides that striking
employees shall not intimidate the employees who are not striking.
6. When asked about the status of the strike rules vis--vis the terms and
conditions of employment, Applicant conceded that strike rules are part
of the terms and conditions of employment of the striking employees and
that they become binding on them. It was added on behalf of Applicant
that in taking a role in a strike with rules, Applicant was bound by those
rules.
7. Respondent answered that strikes are either lawful or unlawful and that
where an employee has taken part in an unlawful strike, his/her
dismissal is fair, while it is unfair if the strike in which he/she
participated was lawful. It was argued that this is the scope of section
226(1)(c) and no more.
8. It was further argued that the word participation relates to taking part in
a strike, as Applicant has stated and not what he did in the act of taking
part in the strike. It was submitted that in casu, Applicant is not
complaining about being dismissed for taking part in a strike action but
for his misconduct during the strike and that this is not contemplated by
section 226(1)(c)(1).
9. It was argued that any conduct against the strike rules amounts to
misconduct, and that it therefore entitles the employer to take action. It
was added that for the conduct of Applicant to constitute misconduct, it
did not need to be contained in the rules of employer. It was prayed that
this Court dismiss the Applicants claim for want of jurisdiction.
10. The provisions of section 226(1)(c)(1) of the Labour Code (Amendment)
Act (supra) are as follows:
disputes:
(a)
(b)
(c)
an unfair dismissal if the reason for the dismissal is
(i) for participation in a strike;
11. Central to the determination of this point in limine is what subsection
(c)(i), that is, for participation in a strike, means. In essence, We need to
first interpret the said subsection if We are to determine the jurisdictional
authority of this Court over Applicants claim.
Page 73 of 283
12. In Our view, the interpretation given by both parties is correct, at least
to the extent that it relates to taking part or playing a role in a strike.
This therefore means that We only have a jurisdiction where an employee
has been dismissed for taking part or playing a role in a strike. In that
type of dispute the issue to be determined is if it was proper for an
employee to partake in that strike.
13. As a result, where an employee is dismissed for acts done during a
strike, the circumstances of the dispute no longer satisfy what is
anticipated by section 226(1)(c)(1). This is the case in casu, as Applicant
is not complaining about his dismissal for taking part in a strike, but acts
committed during a strike.
This clearly not in line with section
226(1)(c)(i).
14. In Our view, if the legislature had intended for the scope of section
226(1)(c)(i) to include conduct during strike action, the statute would
have expressly stated so. That is, it would have provided not only for
participation in a strike but also for other reasons related to a strike. As
a result by expressly mentioning for participation in a strike, the
legislator expressly excluded other reasons other than participation in a
strike (see Lead Melding Company vs. Richardson 1962 BLLR 341;
Hlatswayo and Others vs. Hein (LCC31/96) [1997] ZALCC).
15. We are fortified in Our finding by the fact that where the legislature
intended to expand that scope of the provisions of the law, in the same
section, it expressly said so. Evident of this is section 226(1)(c)(iii) which
reads as thus:
(c) an unfair dismissal if the reason for the dismissal is
(i)
(ii)
(iii) related to the operational requirements of the employer.
16. Clearly in the above provisions, the legislature did not intend to limit
the scope of operational reasons to either those economic, technological
or structural, but to leave that open to any operational requirements that
may compel an employer to terminate an employee.
17. Secondly, We are fortified in Our view by the provision of section
226(2)(d) which reads as thus:
(2)
The following disputes shall be resolved by arbitration
(a)
(b)
(c)
(d)
an unfair dismissal for any reason other than a reason referred in
subsection (1)(c).
18. Clearly, any reason other than one based on participation in a strike
or any other reason under subsection 1(c) does not fall within the
Page 74 of 283
jurisdiction of this Court. Therefore, given Our finding that Applicants

dismissal is not based on subsection (1)(c), it follows therefore that it falls
within the jurisdiction of the DDPR in terms of section 226(2)(d).
19. We also wish to comment that, as Applicant has accepted, the rules of
the strike once drawn and agreed upon, form part and parcel of the terms
and conditions of employment of the striking employees. As with any
other terms of the contract of employment an employee who acts contrary
to them, commits an act of misconduct.
AWARD
In view of this said above, We find as thus:
a) That this Court has no jurisdiction over Applicants claim.
b) That Applicant is at liberty to proceed with his claim in terms of section
226(2)(d) of the Labour Code (Amendment) Act 3 of 2000.
c) That should Applicant elect to have the matter arbitrated, then he must
approach the DDPR within 30 days of issuance herewith.
THUS DONE AND DATED IN MASERU ON THE 11th DAY OF MAY, 2015.
T. C RAMOSEME
DEPUTY PRESIDENT (a.i)
MRS. MOSEHLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. KOTO
ADV. RAFONEKE
Page 75 of 283

HELD AT MASERU
LC/43/2013

THANDIWE LABANE
MONYALUOE KEKANE
MAKOLOI MACHABA
MATHABANG SEKALELI
THATO MOEKETSI
MAMOHAU MOKHETHI
NTSOAKI RAMPA
MALESHOANE RAMOLAHLOANE
MOIPONE HLANYANE
MAFOLE MOHALE
MATEPANG LEPASA
MOLIEHI TJOLOBA
MAROSALEA JANKI
LIPOLELO TJELA
MASEABATA RANOOE
THOZAMA THAFENG
MAMOISA MOISA
LINEO TITSO
MATHUSO MONYALOTSA
BOPHEKILE SWAKALA
MAMELLO LEKHOOA
MAPOULO POTSE
MANNEUOE LECHESA
MOQOMO TLHAKOLA
THAKANE KHAMA
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
11th APPLICANT
12th APPLICANT
13th APPLICANT
14th APPLICANT
15th APPLICANT
16th APPLICANT
17th APPLICANT
18th APPLICANT
19th APPLICANT
20th APPLICANT
21st APPLICANT
22nd APPLICANT
23rd APPLICANT
24th APPLICANT
25th APPLICANT
AND
TAI YUANG GARMENTS (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unfair dismissal for operational reasons. Applicants claiming that
they procedure for dismissal was not followed as they were not consulted
prior to the actual retrenchments. Further that there was no valid reason for
their dismissals as their dismissal was a punishment for refusing to go on a
lay. Court finding in favour of Applicants. Court ordering the reinstatement of
Applicants in terms of section 73 of the Labour Code Order 24 of 1992. No
Page 76 of 283

1. This is a claim for unfair dismissal referred in terms of section 226 (1) of
the Labour Code (Amendment) Act 3 of 2000. The brief background of the
matter is that Applicants were employees of Respondent until they were
dismissed, allegedly on account of the employers operational
requirements. Unhappy with their dismissals, Applicants referred a claim
for unfair dismissal with the Directorate of Dispute Prevention and
Resolution (DDPR). The matter was duly conciliated upon but without
success. Armed with the report of non-resolution, the current claim was
lodged with this Court.
2. At the commencement of the proceedings, three issues arose. Firstly, the
late filing of the Applicants claims, secondly, the withdrawal of claims of
the 18th and 20th Applicants and thirdly the duty to begin. On the first
issue, an application for condonation had been filed together with the
Originating Application and after considering it, We granted same. About
the withdrawal of the two applicants, We accepted same and dismissed
their claims in terms of Rule 10 of the Rules of this Court.
3. On the third issue, Respondent claimed that there had been no dismissal
as the contracts of Applicants had ended by mutual agreement. It was
argued that if Applicants insist that they were dismissed, they must prove
same. Applicants argued that they were dismissed due to operational
reasons of the employer and that evident to this is the certificate of nonresolution from the DDPR.
4. We dismissed the Respondents motion and directed that they begin to
lead evidence to prove the fairness of the dismissals. Our reasons were
that, the certificate of non-resolution reflected their defence as
operational reasons. They were thus bound by their claim as their
defence is the reason why the matter was referred to this Court.
Secondly, Respondent never claimed mutual agreement as one of the
reasons for termination as it is not reflected on the certificate of nonresolution. As a result, and in Our view, this was an afterthought.
5. In the light of the above said, We heard parties in the merits. However,
We wish to note that in their opening statements, Applicants noted that
they would show through evidence that:
i) They were dismissed for refusing to go on a lay off.
ii) If they were retrenched, proper procedures were not followed, as they
were just informed that they were dismissed after refusing to go on a lay
off.
EVIDENCE AND ANALYSIS
6. Respondent led the evidence of four witnesses by the names of Puseletso
Moshoeshoe, Matumelo Ngeephe, Malebohang Mei and Mamorake Letele.
Applicants led the evidence of two witnesses by the names of Thandiwe
Labane and Mamohau Mokhethi, 1st and 6th Applicants, respectively.
Affidavits were filed on behalf of the rest of Applicants, in terms of which
Page 77 of 283
they aligned themselves with the evidence of the two witnesses as far as it
related to them.
7. Puseletso Moshoeshoe testified that he is the Human Resources Manager
of Respondent company. He has been so for over 8 years. He testified
that they informed FAWU that they anticipated a lay off in September
2012 through annexure FAWU 8. Notwithstanding the letter, FAWU
failed to pitch up. They had written a similar letter to NUTEX, which did
show up to discuss the issue. Out of the discussions was an agreement
of how the process would be undertaken. The agreement was marked
FAWU 6.
8. In effecting the agreement with NUTEX, another document was designed
by Respondent. The said document was marked FAMU 7. The said
document stated that if an employee did not accept to be laid off, they
would be retrenched. It was added that some employees accepted to be
laid off, while other refused and these were retrenched.
9. During cross examination, witness testified that the letter marked FAMU
2 did not invite FAMU to discuss the anticipated lay off. Further that all
the documents tendered by witness, that is, FAWU 2, FAWU 6 and FAWU
7, did not give an option between a lay off and retrenchment. It was
added that the decision to retrench was made by Respondent and that
FAWU was not consulted.
10. The second witness, Matumelo Ngeephe testified that she was a union
official of FAWU. She left the union because she disagreed with its stance
that its members should not accept a lay off. She wanted to accept the
lay off and that after doing so she left the union. She stated that it had
been explained to all employees that those who did not accept a lay off
would be given their terminal benefits, at the time of signing FAWU 7.
11. Malebohang Mei testified that she was a supervisor at the time in
issue. She stated that on the day in issue, they were called to a meeting
and given forms to give to employee to show that they accepted to be laid
off. Some of the employees accepted to be laid off while others did not.
For those who signed she took their signed forms back to the manager
and referred those who did not sign to the manager.
12. Mamorake Letele testified that she was Secretary at the Human
Resources Office. On the day in question, all team leaders were called to
the Human Resources Office where they were told to tell employees that
they would be laid off. The supervisors were given forms to give to
employees to sign. Some employees signed while some did not. On the
same day, while moving on the factory floor, she heard one Maleshoane
tell one Moqomo that FAWU had told them not to accept the layoff.
13. During cross examination, witness testified that no letter was sent to
FAWU to tell them that the layoff was in place. Further that FAWU was
Page 78 of 283
not consulted before the employees were given an option to take a lay off
or be retrenched. Furthermore that the decision to retrench was the sole
decision of the Respondent management.
14. Thandiwe Labane, on behalf of Applicants, testified that on the day in
question, they were approached by a supervisor with a document and she
told them to sign it. When they refused she referred them to the Human
Resources Office to see Mr. Moshoeshoe (1st witness for Respondent).
They were then told by Mr. Moshoeshoe to come on Monday at 16.00 and
then postponed to Tuesday at 16.00. When they came, they were given
their terminal monies and told to sign a document. They were thereafter
told that they had been terminated.
15. Mamohau Mokhethi testified that one Malebohang Mei (Respondents
3rd witness) came to them with a document and told them to sign. They
refused and were referred to the Human Resources Office. They were told
at that office to come on Tuesday the following week to get their money.
They came and were indeed given money and documents to sign. They
were then told that they had been terminated.
16. In law, there are three circumstances under which the termination of
employment may be legally made.
These are for misconduct, for
incapacity and employees operational reasons. In all these instances of
dismissals, there are certain procedures that must be followed by the
employer and these are prescribed by the Labour Code (Codes of Good
Practice) Notice of 2003.
They are classified into substantive and
procedural requirements.
17. Of relevance to the issue at hand, an employer must, in terms of
section of the Codes of Good Practice (supra), meet with the employees to
agree on the following, when he anticipates a retrenchment:
(a) alternatives to dismissal such as transfer to other jobs, lay off;
(b) Criteria for selecting employees for dismissal such as last-in-first-out
(LIFO), subject to special skills and affirmative action.
(c) Steps to minimize the dismissals such as voluntary retrenchment
packages, early retirement etc;
(d) Conditions on which dismissals take place such as the timing,
severance pay, etc.
(e) Steps to avoid the adverse effects of the dismissals such as time off to
seek work, social plans etc.
This process is commonly referred to as the consultation process.
18. In casu, evidence was shown that this was not done in the case of
Applicants as neither them nor their union FAWU was ever consulted on
the issue. Rather they were just approached on the day in issue and
rushed into deciding whether to take a lay off or not. The management of
Respondent just unilaterally choose to take the route taken. This is clear
from not only the evidence of Applicants, but also from the evidence of
Page 79 of 283
Puseletso Moshoeshoe and Malebohang Mei. We are therefore of the view

that the steps towards retrenchment were not followed.
19. We are further tempted to agree with Applicants that the dismissals
termed retrenchments may have come as a punishment to those who
refused to take the layoff. We say this because all circumstances point
towards that direction. Evidence shows that employees were told to sign
certain documents that placed them on a lay off. Those who sought
explanations and those who refused to sign them were dismissed. This
was wrong in all respects, for in this instance the dismissals lack a legal
basis.
20. Applicants had asked the Court to reinstate them in terms of section
73 of the Labour Code Order 24 of 1992. No evidence has been placed
before Court to show that reinstatement as a remedy is not practical. It
is trite law that a Court cannot be guided by a gut feeling or speculation
(see Pascalis Molapi v Metcash Ltd Maseru LAC/CIV/REV/09/2003). The
Court must make its decision based on facts and evidence before it. In
the absence of evidence of impracticality, We have no option but to award
Applicants their principal remedy.
AWARD
On the premise of the above reasons we make the following award:
a) That the dismissals of Applicants are unfair.
b) All applicants must be reinstated without loss of remuneration seniority
or other entitlements or benefits which they would have received had
there been no dismissal.
c) This order be complied with within 30 days from issuance herewith.
T C RAMOSEME
MRS. RAMASHAMOLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. RASEKOAI
ADV. NONO
Page 80 of 283

HELD AT MASERU
LC/51/2012

MATSEPO MOHALE
MPHO LETOOANE
MAMOLLELOA MPATI
MATUMELISO THAKHOLI
SENATE LEROTHOLI
MAMOTHETSI KHATI
MAPOLO MANKA
MASEMENYANE SEMENYANE
MASAENE PHETHOANE
MALEFU LATELA
MAKHAHLISO MOKOTJO
KAO TOFOSA
NTHABISENG MONKHE
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
11th APPLICANT
12th APPLICANT
13th APPLICANT
AND
TZICC CLOTHING MANUFACTURER
(PTY) LTD
RESPONDENT
JUDGMENT
Claims for discrimination in employment. Respondent failing to attend
hearing. Court proceedings on the basis of the unchallenged evidence of
Applicants. Court finding in favour of Applicants and directing Respondent to
make payment to Respondents in terms of section 202(2) of the Labour Code
Order 24 of 1992. No order as to costs being made.
1. These are claims for discrimination in terms of section 196 (2) of the
Labour code Order 24 of 1992. The brief background of the matter is that
Applicants had referred claims for discrimination with the DDPR. The
matter was duly conciliated upon and conciliation having failed the
claims were referred to this Court. In the period between the 6th and 20th
June 2013, the matter was heard and finalised, and judgment later
issued. In terms of the said judgment, the Applicants claims were
dismissed. It had been the finding of the Court that, whereas Applicants
had referred claims for discrimination in terms of section 196(2), they had
failed to establish a case for discrimination as contemplated by the same
section.
Page 81 of 283
2. Dissatisfied with this finding Applicants appealed before the Labour

Appeal Court where the decision of this Court was set aside and
substituted with a finding that Applicants had made a case for
discrimination. The Court had gone further to say that even if Applicants
had failed to establish a case for discrimination in terms of section 196(2)
of the Labour Code Order (supra), there was nonetheless a clear case for
discrimination in terms of section 196(1)(b). The Court then found that
there had been discrimination in terms of the latter section and remitted
the matter before this Court for determination of the appropriate remedy.
It is on the premise of the above finding of the Labour Appeal Court that
the matter is before Us again.
3. At the commencement of the proceedings, Applicants asked the Court to
consider their evidence on record, to determine the appropriate remedy in
terms of section 202(2) of the Labour Code Order (supra). They argued
that the will lead the same evidence as that which is on record and that
they feel that it would be unnecessary to burden the Court by requiring it
to rehear the evidence that it has already heard. Respondent was not in
attendance and the Applicants submission was not opposed.
We
therefore accepted the suggested approach.
Having considered the
Applicants evidence on record, Our judgment follows.
EVIDENCE ON RECORD
4. Applicants had testified that had they not been discriminated against,
they would have worked eight (8) weekly rest days and overtime of eight
(8) hours on Saturdays and Sundays for the entire period in issue. They
had also testified that they earned M980.00 per month for working 8
hours per day. They further testified that period of discrimination ran
from the 11th August 2012 to the 9th September 2012. They each claimed
M963.52 in overtime and weekly rest days in terms of section 202(2)(b) of
the Labour Code Order (supra).
5. In the period between the 11th August 2012 and 9th September 2012,
there are 10 weekly rest days. In these 10 weekly rest days, if Applicants
would have worked 8 overtime hours, they would have been entitled to 80
overtime hours. The evidence of Applicants remains unchallenged to
date. It is trite law that what is not challenged is taken to have been
admitted (see Theko v Commissioner of Police and Another 1991-1992 LLRLB 239 at 242). We therefore find in favour of Applicants.
Our
formulation of their award follows.
FORMULATION OF AWARD
Weekly rest days calculation
Monthly salary X hours of work X number of weekly rest days
Monthly hours
M980.00 X 8 hours X 10 days
195 hours
= M402.05
Page 82 of 283
Overtime calculation
Monthly salary X overtime X quarterly rate
Monthly hours
M980.00 X 80 hours X 1.25
195 hours
=M502.56
Total awarded amounts for each Applicant are M904.61(M402.05+M502.56),
per the above calculations.
AWARD
a) That each Applicant be paid M904.61 each.
b) The said amount be paid within 30 days of issuance herewith.
T C RAMOSEME
MRS. THAKALEKOALA
MRS. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. RAMPAI
NO ATTENDANCE
Page 83 of 283

HELD AT MASERU
LC/34/2013

NATIONAL UNION OF COMMERCE,
CATERING AND ALLIED WORKERS
APPLICANT
AND
SUN INTERNATIONAL (PTY) LTD
THE AREA MANAGER, SUN
INTERNATIONAL (PTY) LTD
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for committal for contempt of court. Respondents raising three
points in limine. Court finding merit in the first point raised and dismissing the
application on its strength alone. No order as to costs being made. Principles
considered: Jurisdiction of the Labour Court to enforce DDPR awards.
1. This is an application for committal for contempt of court. Specifically,
applicant asks that Respondents show cause, if any, why,
The 2nd respondent shall not be committed and punished for contempt for
disobeying or unlawfully refusing to carry out or be bound by the DDPR
award dated the 25th August 2010 directing the 1st respondent to comply
with the substantive agreement entered into between the applicant and the
1st respondent;
2. The brief background of the matter is that sometime in 2010, Applicant
referred a claim for breach of a collective agreement with the Directorate
of Dispute Prevention and Resolution (DDPR). On or around the 25th
August 2010, an award was issued wherein the 2nd Respondent was
found to have been in breach of the said agreement. It was then ordered
to comply with same from the date that it came into effect.
3. Subsequent to the issuance of the said award, Applicant initiated
enforcement proceedings under LC/ENF/94/2013. The said application
was moved before Mrs. F. Khabo, the Deputy President of the Labour
Court of Lesotho, as she then was. In the process of enforcing the award
of the DDPR, parties entered into a settlement agreement in respect of the
award that was being enforced.
4. Later on, Applicant approached this Court to proceed with the
enforcement of the arbitration award. The result of the enforcement was
Page 84 of 283
the minute of the 15th April 2013. In terms of that minuting, parties were
ordered to approach the DDPR for a relief, after this Court had
determined that the dispute now concerned the interpretation of the
settlement agreement earlier concluded.
5. Following was the initiation of the current proceedings wherein Applicant
is asking for the committal and punishment of the 1st Respondent for
contempt. In answer to the application, 1st Respondent raised three
points in limine. We were duly addressed by both parties and having
heard them, Our judgment follows.
Relief sought
6. Respondent submitted that there is no procedure in the law of Lesotho
that allows for the relief sought to be granted. It was argued that the
powers and jurisdiction of this Court are provided under section 8 of the
Labour Code (Amendment) Act 3 of 2000. It was submitted that in terms
of that section, this Court is not vested with the jurisdiction to grant the
relief sought.
7. It was submitted that whereas the Applicant has approached this Court
by way of contempt, that is an improper step. It was argued that
contempt proceedings are governed by section 24(2) (J) of the Labour
Code Order 24 of 1992, as amended by section 8 of the Labour Code
(Amendment) Act (supra). It was submitted that section 24(2) (J) gives this
Court the power to:
(i) to commit and punish for contempt any person who disobeys or
unlawfully refuses to carry out or to be bound by an order made against
him or her by the court under the Code;
8. It was submitted that from the provisions of section 24(2) (J), contempt
can only be made if it is against an order of this Court and not an award
of the DDPR. It was submitted that the proper procedure would have
been an enforcement in terms of section 34 of the Labour Code Order
(supra), as Applicant had initially done. It was argued that the award had
directed that payment be made with specific instruction, hence the
suggestion that the section 34 procedure would have been proper.
9. Respondent answered that section 228 E (5) of the Labour Code
(Amendment) Act (supra), provides that an award shall be equal to an
order of this Court. It was argued that as a result, the procedure under
section 24(2) (J) is proper. It was added that the Court of Appeal in
Lerotholi Polytechnic & another v Blandina Lisene C of A (CIV) 25/2009,
endorses this approach. Specific reference was made to paragraph 7
thereof.
10. We wish to note three crucial issues for purposes of the determination
of this point in limine. Firstly, it is accurate that contempt proceedings
are made in terms of section 24(2) (J) of the Labour Code (Amendment) Act
Page 85 of 283
(supra). Secondly, that the said section is limited to an order of this

Court in terms of its application. Lastly, that it is inaccurate that section
228E (5) equates an arbitration award to an order of this Court.
11. The provisions of section 228E (5) are that:
An award issued by the arbitrator shall be final and binding shall be
enforceable as if it was an order of the Labour Court.
Our view on the provisions of section 228E(5), finds support in the
interpretation of this section by the Court of Appeal of Lesotho in
Nokoane Mokhatla v Lesotho Brewing & others C of A (CIV) 35/2013. At
para 15 of the judgment, the court states that,
Although section 228E (5) permits the enforcement of an arbitrators
award in the Labour Court, its wording does not in my view elevate the
award to an order of the Labour Court, nor can it. It remains an award
which can be enforced by the court in other ways.
12. We therefore agree with Respondents that this Court has no
jurisdiction to grant the relief sought, at least through section 228E(5).
As demonstrated above, the section relied upon for the initiation of these
proceedings in section 24(2) and its limited to an order of this Court. An
arbitration award is not an order of this Court and therefore cannot fall
under the ambit of the said section.
13. We wish to further comment that while Respondent suggests that the
proper route would have been through section 34 of the Labour Code
Order (supra), that would still not be proper. We say this because section
34 also relates to an order of this Court. In terms of section 34,
where the court has given judgment .... court may order the partys
detention....
14. In terms of the Labour Code (Amendment) Act (supra), section 2 thereof,
which amends section 3 of the principal Act, the Court excludes the
DDPR. The work, court has been defined to mean,
...either the Labour Court or the Labour Appeal Court depending on the
context.
15. A similar view was expressed by the Court of Appeal of Lesotho in
Nokoane Mokhatla v Lesotho Brewing & others (supra), as thus,
Thus the offence is committed in respect of an order of either the Labour
Court or the Labour Appeal Court, depending on the context, as per s3 of
the Code.
16. As a result of the above, until the said interpretation has been
extended by law to include the DDPR, depending on the context the
DDPR, this Court has no jurisdiction to enforce arbitration awards under
sections 24(2)(J) and section 34 of the Labour Code Order 24 of 1994 as
amended, through section 228E(5) of the Labour Code (Amendment) Act
(supra).
Page 86 of 283
17. We wish to comment that in the authority of Nokoane Mokhatla v

Lesotho Brewing & others (supra), at paragraph 15 of the typed judgment,
the Court makes the following comment,
It remains an award which can be enforced by the court in other ways.
In essence, this Court has jurisdiction to enforce the awards of the DDPR,
but just not in the manner it has been approached.
18. About the case of Lerotholi Polytechnic & another v Blandina Lisene
(supra), the authority has been misapplied. That authority revolves
around the power of the Labour Appeal Court to punish for contempt. In
that case, the Court held that this Court has the power to punish for
contempt in respect of its order and not that of the Labour Appeal Court.
The authority therefore does not aid Applicants case. In view of this
finding, We see no need to comment on the rest of the points in limine.
AWARD
We therefore find as follows:
a) That this Court has no jurisdiction to grant the relief sought,
b) The application is therefore dismissed,
c) Applicants are at liberty to follow the route earlier prescribed, and
T C RAMOSEME
MR. MOTHEPU
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENTS:
ADV. NONO
DR. VAN ZYL
Page 87 of 283

HELD AT MASERU
LC/36/2013

MABOKANG MOHAFA
APPLICANT
AND
GOOD TRADING SUPERMARKET
(PTY) LTD
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Claim for unfair dismissal for operational reasons. 1st Respondent raising a
point in limine that the matter has been improperly referred. Applicant failing
to seek the condonation of the irregularity. Court finding that it has no power
to grant the remedy not sought. Court finding in favour of 1st Respondent that
the matter has been improperly referred and dismissing same. Applicant
given the liberty to reinstitute the matter properly if he so wished, with specific
terms. No order as to costs being made.
1. This is a claim for unfair dismissal for operational reasons. The brief
background is that Applicant was an employee of 1st Respondent until
she was dismissed. Unhappy with her dismissal, she referred a claim for
unfair dismissal with the Directorate of Dispute Prevention and
Resolution (DDPR) for conciliation. However, conciliation failed to resolve
the matter and it was referred to this Court for adjudication.
2. It was then heard unopposed and in default of the 1st Respondent on the
14th November 2013. In terms of the default judgment, 1st Respondent
was to reinstate Applicant to her former position without loss of
remuneration and other entitlements, if it was not for the dismissal. The
said judgment was thereafter rescinded, hence the current proceedings.
3. In its answer to the main claim, 1st Respondent raised a point in limine
that Applicant had adopted an irregular procedure in initiating these
proceedings. Specifically 1st Respondent claimed Applicant had acted in
breach of Rule 3 of the Rules of this Court, in that she had approached
the Court by way of Notice of Motion as opposed to by way of an
Originating Application. 1st Respondent prayed that the matter be
dismissed as being improperly referred.
Page 88 of 283
4. We wish to note that the same argument was mero motu raised by this
Court when it heard the matter in default of 1st Respondent. Then,
Applicant had prayed for condonation of the breach of the Rules, which
was granted. With the rescission of that judgment 1st Respondents
attitude was that that point had now become an issue again. Both
parties were heard and having heard them, Our judgment follows.
5. 1st Respondents case was that Applicant had acted in breach of Rule 3 of
the Rules of this Court. Further that although the breach was earlier
condoned, the rescission of that judgment has meant that the
condonation has been rescinded as well. It was submitted in addition
that Applicant ought to have sought amendment of its motion to comply
with Rule 3. It was said that Applicant had ample opportunity to do so,
when the issue first became apparent and after 1st Respondent had filed
its answer, wherein this issue was raised.
6. It was submitted that without the amendment or any other steps to cure
the irregularity, the base of the matter is wrong and that this Court
cannot and should not proceed with the matter under the circumstances.
It was argued that this matter warrants dismissal.
7. Applicant answered that had this issue been raised before the default
judgment, they would have addressed it. It was added that given the
steps that took place in the default judgment process, the issue is
nothing but academic. Applicant was asked if he sought the condonation
for breach of the Rules, should the court uphold 1st Respondents
argument. Applicant did not address the issue. Applicant further argued
that the answer filed on behalf of 1st Respondent was out of time in that it
was filed long after the Notice of Motion had been served upon
Respondents.
8. 1st Respondent replied that the issue of an irregular step is not academic
as the judgment condoning same was set aside. Further that the answer
is not out of time as it was filed immediately after the rescission of the
default judgment was granted, which period was within 14 days of
issuance of that order. It was however conceded that it was over 14 days
from service of the Notice of Motion.
9. We wish to confirm that in terms of Rule 3:
Proceedings for determination of any matter by the court shall be
instituted by any interested person or persons presenting or delivering by
registered post, to the Registrar an originating application which shall be in
writing in or substantially in accordance with Form LC1 contained in Part A
of the schedule....
10. Clearly, the matter before Us is not by way of an Originating
Application but a Notice of Motion. It is therefore undoubtedly in breach
of the Rule in question. However, the Rules of this Court provide that a
Page 89 of 283
party may apply for condonation of the breach of the Rules of this Court.
This is clear from Rule 27 (2) which is captured as follows:
Notwithstanding anything contained in these Rules, the court may in its
discretion, in the interest of justice, upon written application, or oral
application at any hearing, or of its own motion, condone any failure to
observe the provisions of these Rules.
11. In casu, Applicant claims that the issue of an improper procedure or
breach has been finalised. We disagree in that this issue was finalised in
the initial judgment which was rescinded. With the rescission, the issue
resurfaced and had to be addressed again, more so because initially there
was no presentation made on behalf of 1st Respondent. It is then
inaccurate for Applicant to have suggested that the issue is now
academic. We therefore, find in favour of 1st Respondent that applicant
has acted irregularly.
12. We asked Applicant if she wished to have the procedure condoned in
the event We agreed and/or found in favour of 1st Respondent. Despite
this opportunity, Applicant failed to address the issue. That being the
case, We cannot grant what was not sought particularly where We availed
an opportunity for the condonation request to be made. Supportive of
Our conclusion is the view of the Court in Phetang Mpota v Standard
Bank LAC/CIV/A/06/2008.
13. At paragraph 22 of the typed judgment, the learned Dr. K. E. Mosito
made the following remarks,
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.
14. This being the case the procedure adopted remains improper and We
cannot proceed to determine this matter on that wrong base. Our attitude
finds support in the case of Lepolesa and others v Sun International of
Lesotho (Pty) Ltd t/a Maseru Sun and Lesotho Sun (Pty) Ltd [2011] LSLAC
4. In deprecating the idea of proceeding to hear a matter in ignorance of
an apparent irregularity, the Court held that,
... the result would be the decision premised on an incorrect application of
the law. That would infringe the principle of legality.
Page 90 of 283
AWARD
We therefore make the following award:
a) That the matter is dismissed as being improperly instituted;
b) Applicant is at liberty to reinstitute the matter in terms of the Rules of
this Court;
c) That this order be complied with within 30 days of issuance of this
judgment.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY 2015.
T C RAMOSEME
MISS LEBITSA
MRS. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
LETSIE
ADV. LEPHUTING
Page 91 of 283

HELD AT MASERU
LC/ENF/63/2013

MEDITTEREAN SHIPPING
COMPANY (PTY) LTD
APPLICANT
AND
THAPELO KHITANE
RESPONDENT
JUDGMENT
Application for stay of enforcing pending finalisation of a claim before another
court. Applicant claiming fear of inability to recover its loss from Respondent
as he has no money. Court finding that it would be improper to stay
enforcement pending a matter in respect of which it has not control. Court
further finding that source of fear is not original as it arises from the
Respondent answer and therefore an afterthought. Court not finding merit in
Applicants claim and dismissing same. No order as to costs being made.
1. This is an application for stay of enforcement of the DDPR award in
referral A0698/2012. In terms of the arbitral award, Applicant had been
ordered to pay Respondent the sum of M78,692.31, as severance
payment.
2. The brief background of the matter is that Respondent was an employee
of Applicant until his contract of employment terminated by resignation.
When Applicant defaulted on payment of same, Respondent referred a
claim with the Directorate of Dispute Prevention and Resolution (DDPR)
for payment. An award was issued on the 23rd January 2013 in favour of
Respondent, as earlier indicated. When Applicant defaulted against the
said award, Respondent initiated enforcement proceedings with this
Court.
3. Incidentally, Applicant had also initiated civil proceedings before the
Bloemfontein High Court, in the Republic of South Africa, allegedly
through its parent company MSC Logistics (Pty) Ltd, against Respondent
herein. In this claim, Applicant had claimed an amount of M679,447.56
against Respondent, wherein it obtained judgment by default. Unhappy
with the default award, Respondent lodged a rescission application to
have same set aside. By order of Mrs. Khabo, the President of this Court,
the enforcement proceedings were stayed pending finalisation of the said
rescission application, before the Bloemfontein High Court.
Page 92 of 283
4. Eventually the rescission before the Bloemfontein High Court was heard
and finalised in favour of Respondent herein. Armed with the said
judgment, Respondent caused summons to be issued against Applicant
herein, for enforcement of the DDPR awarded amount. It was in reaction
to the said summons that the current applicant was made. Having heard
the arguments of parties, Our judgment follows.
5. Applicants case was that whereas they have initiated proceedings against
Respondent in the Bloemfontein High Court, the said proceedings have
since been stayed sine die. They are therefore asking this Court to stay
the enforcement proceedings as security in the event that they win the
case in the Bloemfontein High Court.
6. They submitted that they are in fear that Respondent may not be able to
pay them the amount that they claim before the Bloemfontein High Court.
They added that should they win, with these proceedings stayed, they will
at least be able to recover an amount in the sum awarded to Respondent
by the DDPR, rather than not being able to recover anything at all.
7. They further submitted that their fear is borne by the averments of
Respondent in answer to this application, specifically at paragraph 3.8 of
the Respondents answer, where he has averred that he has no money.
They added in the event that they lose in the Bloemfontein matter, they
will immediately comply with the DDPR award, as the awarded money is
readily available.
8. It was further submitted that in the event that Applicant obtains an order
in the Bloemfontein High Court in its favour, it will be able to invoke a set
off without recourse to the procedures of this Court or any other court, as
a set off is automatic. They will simply withhold of the awarded amount
and set it off against their victory amount before the Bloemfontein High
Court. The Court was referred to the case of the Great North Falls v RAS
1972 (4) SA 7, for the principle of a set off.
9. When asked about the principle in the case of Astoria Bakery Lesotho
(Pty) Ltd v Thabiso Mokhesuoe LC/59/2004, Applicant submitted that the
circumstances of the two cases were different. It was argued that in casu,
Respondent has no money and that Applicant is merely asking for
security to avoid prejudice on its part, which condition would not bring
prejudice to Respondent. It was argued that there would be no prejudice
as Applicant has the awarded amount, unlike Respondent who has no
money.
10. Respondent answered that the claimed fear is an afterthought as it
arises from the answer to the Originating Application, and in particular
from paragraph 3.8, as Applicant has argued. It added in any event at
paragraph 3.8, Respondent does not say he does not have money, but
rather that he was unable to go on appeal as he had no money then.
Page 93 of 283
11. Respondent further answered that he agreed with the principle in the
case of Astoria Bakery Lesotho (Pty) Ltd v Thabiso Mokhesuoe (supra), that
this Court cannot grant a stay on the basis of proceedings before another
court, in respect of which this Court has no control, as that would render
the award held by Respondent meaningless.
12. Regarding the claim that a set off is automatic and that no recourse to
the procedures of any court is necessary, Respondent argued on the
contrary. In fact, Respondent submitted that a set off is only done
through the procedures of Court as it would otherwise be self-help, which
practice is highly shunned by courts of law. It was prayed that this
application be refused and that Applicant be ordered to comply with the
DDPR award immediately, particularly given their submission that the
awarded amount is readily available. It was added that severance pay is
a right of Respondent and it cannot be withheld without due course. The
Court was referred to the case of Selloane Mahamo v Nedbank Lesotho
Limited LAC/CIV/04/2011.
13. About MSC Logistics (Pty) Ltd being the parent company to Applicant,
it was denied as being untruthful. It was submitted that Applicant
Company is a company registered in Lesotho and in terms of the laws of
Lesotho, as Applicant has shown in the Originating Application, while
MSC Logistics is a South African Company which is headed in Kwazulu
Natal, Republic of South Africa. It was added that Applicant has not even
alleged in its Originating Application this claimed relationship of a
holding and subsidiary company.
14. In reply, Applicant submitted that MSC Logistics is the holding
company to Applicant Company. Further that this was accepted by both
parties before the DDPR in the proceedings in referral A0698/12, which is
the award subject of these proceedings. The Court was referred to
paragraph 8 of the arbitration award.
15. The posting of a security before this Court is governed by section 37 of
the Labour Code Order 24 of 1992. The provisions of this section are as
follows,
When it appears to the President of the Court that an employer against
whom proceedings have been instituted under the provisions of the Code is
likely to abscond to avoid payment of wages or other sums owed to any of
his or her employees, the President may order such employer to post a
bond until the hearing of the proceedings or until earlier payment of such
wages or sums has been made in full.
16. Clearly from the provisions of section 37 above, the circumstances
under which security may be made are very limited. To be specific, they
are limited to an employer who is likely to abscond and are dependent on
there being pending proceedings instituted in terms of the Code. In casu,
Applicant has not instituted proceedings in terms of the Code. Secondly,
the posting is not in respect of the employer but the employee.
Page 94 of 283
Consequently, the circumstances of the case in casu do not meet the

requirements for posting of a security or holding of sums of money as
security, at least as contemplated by the Labour Code Order (supra).
17. Further, We are in agreement with Respondent that there is no real
basis of the fear alleged. We say this because it arises from the
Respondents answer and it was not pleaded in the Originating
Application. By this We mean the now claimed source of fear. It is
therefore an afterthought. It is trite law that an afterthought is unreliable
and cannot therefore be relied upon to decide on the right of parties.
18. We also wish to confirm, as Respondent has shown, that at paragraph
3.8 of his Answer, there is no conclusive proof that Respondent does not
have money. Rather in that paragraph, Respondent merely states that he
could not file an appeal as he had no funds then. This therefore does not
lead to the conclusion that Respondent has no money or that he will not
be able to honour the judgment of the Bloemfontein High Court should it
be in favour of Applicant.
19. About the set off being automatic, We hold a contrary view. A set off is
not automatic and if approached in that fashion, specifically the mode
proposed by Applicant, it becomes an illegality as it would be resorting to
self-help. It is trite law that self-help is prohibited. In the case of Letsosa
Hanyane v Total Lesotho (Pty) Ltd CIV/APN/412/1997, the learned
Justice Ramodibeli J, in addressing the issue of resorting to self-help held
as follows,
... I consider that the Respondent's wrongful act of self-help as fully set out
above is so repugnant to the rule of law that it must be nipped in the bud.
20. Self-help should be distinguished from the exercise of powers of the
employer conferred by section 85 of the Labour Code Order (supra), that
he/she may make deductions from an employee's wages without use of
the procedures of this Court or any court of law. The provisions of this
section are inapplicable in casu, for the simple reason that there is no
more an employment relationship between Applicant and Respondent. In
essence, a set off can only be made through the Court procedures. We
however, note the principles as shown in the case of Great North Falls v
RAS (supra) on the principle.
21. Regarding the principle in Astoria Bakery Lesotho (Pty) Ltd . Thabiso
Mokhesuoe (supra), We see no reason to deviate from this authority.
While Applicant has attempted to suggest that the circumstances of the
two cases are different and that they should be dealt with differently, We
see no merit in the argument. In fact what Applicant identifies as
differences, We find to be similarities between the two.
22. We hold the above view for a simple reason that both matters that is,
the Astoria Bakery Lesotho (Pty) Ltd v Thabiso Mokhesuoe (supra) and
these proceedings, involve an application for stay pending proceedings
Page 95 of 283
before another court. The only difference, if at it is a difference at all, the

proceedings before another court, is also outside this Courts jurisdiction.
This is Our view, whether considered as a difference or similarity, makes
Applicants position worse off.
23. At page 4 of the judgment in Astoria Bakery Lesotho (Pty) Ltd v Thabiso
Mokhesuoe (supra), the learned Judge held that,
There is no certain time by which the proceedings in the Magistrate Court
will come to an end. Accordingly, the effect of this request if granted is to
render meaningless the judgment which the respondent has in his favour.
The court before which the applicants claim is pending has the mechanism
for the enforcement of its own decisions. It follows therefore that there is
no merit in this request and it is accordingly dismissed.....
24. We hold the same view as above and Applicant has not given Us a
good reason to deviate. We see no need to consider other arguments.
AWARD
We therefore make the following award:
a) That the application is dismissed;
b) Applicant is ordered to give effect to the award of the DDPR within 30
days of issuance herewith failing which it shall be acting in contempt.
THUS DONE AND DATED AT MASERU ON THIS 11th AY OF MAY, 2015
T C RAMOSEME
MR. KAO
MRS. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. LOUBSER
ADV. MOLAPO
Page 96 of 283

HELD AT MASERU
LC/REV/39/2012
A0421/2008

MALINEO MAFISA & 37 OTHERS
APPLICANTS
AND
LESOTHO FLOUR MILLS LTD
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Condonation application
for late referral of review within the review application. 1st Respondent raising
a point in limine that it is improper to include a condonation application in the
main review. Court not finding merit in claim and dismissing the point in
limine. Court further not finding merit in the condonation application and
dismissing same. Court also dismissing the review application for want of
jurisdiction. No order as to costs being made.
A0421/2008. The brief background of the matter is that Applicants were
employees of the 1st Respondent until their termination. They referred a
dispute with the Directorate of Dispute Prevention and Resolution (DDPR)
for breach of contract. After several sittings before the DDPR, Applicants
were ordered to file an application for condonation for the late referral of
their claims.
2. The condonation application was duly filed and argued. Thereafter, the
learned Arbitrator issued an award wherein He dismissed the said
application. Unhappy with the said award, Applicants initiated the
current review proceedings. They had also applied for condonation for
the late filing of the application, in the review application.
3. In answer, 1st Respondent raised a point in limine in terms of which he
challenged the propriety of applying for a condonation within the review
application. He specifically argued that the two applications must be
separated. The argument was strongly opposed. We, at the request of
parties, allowed them to argue the matter holistically. Having heard
them, Our judgment follows.
Page 97 of 283

Condonation within a review application
4. 1st Respondents case was that in terms of the Rules of this Court, an
application for condonation cannot and should not be made within
another application. He submitted that it has to be made separately to
make it easy for 1st Respondent to answer and for the Court to make its
decision. Applicants answer was simply that there is no irregularity in
the procedure adopted.
5. We agree with Applicant particularly because 1st Respondent has not
referred Us to any Rule of procedure that prohibits this approach. There
is basically no evidence of 1st Respondent allegations. Further, We have
found the application and the affidavit detailing out the Applicants case
is broken into headings which single out the arguments in a clear
manner, for Us to comprehend and follow.
We therefore find no
impropriety as suggested.
CONDONATION APPLICATION
6. Applicants case was that immediately after receipt of the award, they
sent it to his union and instructed them to lodge an appeal on their
behalf. They only learned around the 15th May 2012 that the review had
not been lodged. They further learned that the union official, who was
seized the matter, had deserted and the file could not be found. They
then gave the union a copy of the award to proceed to initiate review
proceedings. They submitted that the delay was not wilful, in as much as
it was not occasioned by either them or their union.
7. Regarding the prospects, Applicants submitted that they have prospects
of success in that there is evidence of an agreement between them and 1st
Respondent. It was argued that agreement places an obligation on the
part of 1st Respondent which has not been performed to date.
8. 1st Respondent answered that Applicants have failed to give convincing
reasons for the delay in filing the application for review. It was argued
that Applicants are attempting to shift the blame to an unknown union
official whose name they have opted not to disclose. It was added that
Applicants do not even say when it is that the award was reviewed by
them or on their behalf.
9. On the prospects of success, it was submitted that Applicants have none.
It was submitted in addition that Applicants merely claim the existence of
an obligation without stating its content. It was argued that Applicants
have failed even on this element. It was prayed that the Court refuse the
condonation and dismiss the review application.
10. In an application for condonation, there are several requirements that
must be satisfied. Out of all the requirements, only two are key and these
are the explanation for the delay and the prospects of success. We wish
to note that in giving an explanation for the delay, an applicant party
Page 98 of 283
must explain the entire period of delay with sufficient particularity to

enable the Court to duly exercise its discretion. In the case of Phetang
Mpota v standard Lesotho Bank LAC/CIV/A/06/2008), at paragraph 13,
in addressing the issue of the explanation for the delay, the Court made
the following remark,
With regard to the explanation, such must cover the entire period in
respect of which the condonation is sought.
11. Regarding the prospects of success, the Court in the above authority
made the following comment,
prospects of success or bona fide defence on the other hand mean that all
what needs to be determined is the likelihood or chance of success when
the main case is heard.
In essence, all that is required of an applicant party is that they must give
sufficient detail for the Court to be able to determine if they will succeed.
These prospects must be related to matter in respect of which the
condonation is sought.
12. In casu, Applicant has failed to explain the entire period of delay. As
1st Respondent has shown, Applicant has failed to state when it is that
they received the award. As a result, the period between the unknown
date of receipt of the award and the 15th May 2012 is unexplained.
Further, Applicants have shifted the blame for their failure to file on time,
to another person, without stating their name. It is Our view that they
should have disclosed the name to enable the 1st Respondent to
authenticate their claims.
13. Regarding the prospects of success, it is Our view that they are bare in
law. Applicants have merely made mention of an obligation without
stating what the said obligation entailed. It is trite law that bare
allegations of facts are unconvincing and cannot be relied upon to make a
conclusion. It addressing bare allegations of facts, the High Court of
Lesotho in Mokone v Attorney General & others CIV/APN/232/2008, made
the following remark,
As can be seen respondents have just made a bare denial. It would not be
enough to just make a bare denial .... If one does not answer issuably then
his defence will be considered no defence at all,
It is Our view that this principle equally applies in relation to claim by
parties. Consequently, We find that in making bare allegations of facts,
Applicants have failed to show that they have prospects of success.
14. In addition to this said above, the alleged prospects do not show any
irregularity in the procedure adopted to make the award in issue. We
have noted that the prospects relate to documents annexed to the
Applicants founding affidavit, as MM3 and MM4. These are documents
detailing offers made to Applicants by respondent regarding their
benefits.
Page 99 of 283
15. Moreover, We have also considered the grounds of review that

Applicants rely on. Applicants claims that the learned Arbitrator erred by
not granting the condonation application despite the fact that it was
unopposed. This ground would not sustain for a simple reason that it
places a challenge against the decision of the learned Arbitrator. We have
stated before that in law a challenge against the decision, as is the case,
is best addressed through an appeal and not review procedure.
16. The distinction between a review and an appeal, and the consequential
remedies, was made in the case of J. D. Trading (Pty) Ltd t/a Supreme
Furnishers v M. Monoko & others LAC/REV/39/2004, as follows,
The reason for bringing proceedings on review is the same as the reason
for taking them on appeal, namely to set aside a judgment already given.
Where the reason for wanting to set aside a judgment is that the court
came to the wrong conclusion on the facts or the law, the appropriate
remedy is by way of an appeal. where on the other hand, the real
grievance is against the method of the trial, it is proper to bring the case for
review.
17. Secondly, Applicants claim that the learned Arbitrator erred in that he
failed to properly conceive the principle of prescription. It is argued that
there were negotiations and a promise to pay which were not honoured
hence the review. Reference was made to a document labelled MM5
which was not tendered and has not been tendered to date despite an
order to do so.
18. Without the referenced MM5, there is no proof of interruption of
prescription and hence no evidence of misconception of the principle.
Applicants have again made bare allegations of facts without supporting
prove.
As we have already stated, bare allegations of facts are
unconvincing and cannot be relied upon to make a conclusion. We are
therefore convinced that in refusing the condonation application,
Applicants stand no prejudice as their review has no merit.
19. On the basis of the above reasons, we deem it fit to refuse the
condonation application and decline jurisdiction to hear and determine
the Applicants review. We are supported in this stance by the High
Court of Lesotho decision in Lesotho Brewing Company t/a Maloti
Mountain Brewery v Lesotho Labour Court President & Another
CIV/APN/435/95, where the Court held as follows,
where a claim is presented to court outside the time allowed by the law,
the court to which such a claim is presented is deprived of the jurisdiction
to hear such a claim. The jurisdiction of the court will only arise from that
court exercising the discretion condoning the failure to comply with the
stipulated time, if the interest of justice so demand.
Page 100 of 283
COSTS
20. 1st Respondent asked that the matter be dismissed with costs, on the
ground that the application is frivolous. It was submitted in amplification
that this is an old matter which is affecting Respondent financially.
Applicants answered that they have not been frivolous in any way in as
much as 1st Respondent has failed to show how. It was submitted that
Applicants are merely exercising their legal right to seek redress against
errors committed by the learned Arbitrator. They prayed that a request
for costs be dismissed.
21. We stated before that costs are awarded only in extreme
circumstances of either frivolity or vexations conduct or both. Further
that these two must be shown and not just alleged. 1st Respondent has
barely alleged frivolity on the part of Applicants without illustrating how
this is so. We have more than reiterated the principle on bare allegations
and see not need to re-reiterate same. Even the substantiation given
does not demonstrate frivolity, but a mere claim of a prolonged matter.
We therefore agree with Applicants that they have not been shown to have
been frivolous.
AWARD
a) That condonation is refused,
b) The review application is dismissed for want of jurisdiction, and
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY, 2015
T C RAMOSEME
MR. MOTHEPU
MR. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENTS:
ADV. THELISI
ADV. MABULA
Page 101 of 283

HELD AT MASERU
LC/REV/162/13
A0660/2013

PRESITEX ENTERPRISE (PTY) LTD
APPLICANT
AND
SOAI LETSIE
RESPONDENT
JUDGMENT
Application for the review of the arbitration award. 1st Respondent raising a
point in limine of non-joinder. Court finding that the requirements for a plea of
non-joinder were not met and dismissing the point in limine. In the merits,
four grounds of review having been raised, one relating to misapplication of
the law and the other three relating to ignorance of evidence. Court finding
that the law was properly applied but that the evidence of a witness was
ignored. Court further finding that the ignored evidence was material and
granting the review. Matter being remitted to the DDPR for a hearing de novo
before a different Arbitrator, with specific terms. No order as to costs being
made.
A0660/2013. Five grounds of review had been raised on behalf of
Applicant but only four were argued. The second, fourth and fifth
grounds were argued together, while the first one was argued separately.
2. The brief background of the matter is that 1st Respondent was an
employee of Applicant until his dismissal for misconduct. He was
dismissed for use of profane and abusive language towards his fellow
employee. Unhappy with his dismissal, 1st Respondent referred an unfair
dismissal claim with the Directorate of Dispute Prevention and Resolution
(DDPR). An award was thereafter issued wherein 1st Respondent was to
be reinstated to his employment, in terms of section 73 of the Labour
Code Order 24 of 1992. Equally unhappy with the said award, Applicant
initiated the current review proceedings.
3. In reaction to the review, 1st Respondent raised a point in limine, to the
effect that the Applicant had failed to join the learned Arbitrator who
made the decision, as a Respondent party. He argued that this was an
irregularity in the procedure of the Court, which irregularity warranted
the dismissal of this review application. We had then directed parties to
Page 102 of 283
address Us holistically on the matter, with the rider that We would only
consider the merits, if We did not uphold the point in limine. Having
heard parties, Our judgment follows.
Point in limine non joinder
4. 1st Respondent submitted that in terms of the mandatory provisions of
both Rule 16 and 17 of the Labour Appeal Court Rules of 2002, also the
Rules of this Court in review proceedings, the Notice of Motion which
shall require the decision maker to show cause why a review shall not be
granted, must be served upon the decision maker. It was argued that
decision maker contemplated by these sections is the learned Arbitrator
who made the decision, and not the DDPR as an institution.
5. Respondent answered that the decision maker is the DDPR as an
institution and not an individual arbitrator. It was argued that the
individual arbitrator in making his/her conclusion, does so in an official
capacity so that their actions are those of the DDPR. It was submitted
that in view of this said, joining the learned Arbitrator would be for
convenience as no harm would occasion against them, should the award
be set aside.
6. It was argued that the principle of non-joinder requires that a party be
joined if the decision to be made would affect both their direct and
substantial interests, or if the order given cannot be carried into effect
without affecting their rights. It was argued that in casu, the test is not
satisfied as the learned Arbitrator neither has direct or substantial
interests and will not be prejudiced by the decision of this Court should
the review be granted.
7. The Court was referred to the book by Herbstein & van Winsen, the
Practice of the Supreme Court of South Africa, 4 th ed., Juta & Co., 1997, at
page 170. Further reference was made to the case of Nafisa Moosa &
another v Directorate of Dispute Prevention and Resolution & another
LC/REV/570/2006, in support of the 1st Respondent argument.
8. We do confirm that for a plea of non-joinder to succeed, a party that is
sought to be joined must have both a direct and substantial interest in
the matter. This is clear from the extract at page 170, of Herbstein and
Van Winsens book. This is recorded as thus:
A direct and substantial interest in any order that the court might make in
proceedings or if such an order cannot be sustained or carried into effect
without prejudicing that party....
9. Further, still on the same principle in the case of I. Kuper (Lesotho) (Pty)
Ltd v Benjamin Maphate & others C of A (CIV) 40/2010, the Court of
Appeal of Lesotho held that, at paragraph 7,
In my view the learned judge erred in upholding the point of non-joinder.
None of the parties mentioned by the first respondent had a direct and
Page 103 of 283
substantial interest in the application, which is what is required before a

plea of non-joinder can be successfully raised.
10. It is Our view that the learned Arbitrator who made the decision in
question does not have a direct and/or substantial interest in the matter.
We say this because, as Applicant has rightly pointed out, She was acting
in Her official capacity as an officer of the DDPR. It is then the DDPR
that has such an interest. Citing the individual arbitrator in these
proceedings would only be for convenience. Therefore failure to cite the
learned Arbitrator does not affect the decision that this Court will make.
11. This view was also expressed by the Labour Court of Lesotho in the
case of Nafisa Moosa & another v Directorate of Dispute Prevention and
Resolution & another (supra), as rightly reference by 1st Respondent. In
this case, this Court held that where a party can only be cited for
convenience, then its non-joinder does not materially affect the decision
to be made. We consequently dismiss the point in limine.
The merits
12. The first ground of review was that the learned Arbitrator misapplied
the rule on inconsistency/consistency in the sanction of its employees. It
was argued that evidence had been led that the circumstances of the
misconduct of the two employees in question were different, but that
notwithstanding the learned Arbitrator found that the Applicant was
inconsistent in meting out punishment. The Court was referred to pages
11 and 12 of the record of proceedings and page 6 of the arbitration
award at paragraph 13. Further reference was made to the case of CGM
Industrial (Pty) Ltd v Moliekeng LC/REV/61/2007, in support of the
argument.
13.
1st Respondent answered that the charges were the same per
evidence given, in that both employees were charged of using profane and
abusive language and that this was the evidence before the DDPR. The
Court was referred to pages 54, and specifically to exhibits 1 and 3 of the
DDPR record of proceedings. It was added that in any event, 1st
Respondents case was that the Applicant had been inconsistent in
meting out punishment. It was further added that Applicant is merely
unhappy with the finding of the learned Arbitrator that Applicant was not
consistent.
14. We have had the liberty to peruse the arbitration award. At page 5 on
paragraph 10, the learned Arbitrator notes that 1st Respondent,
....assisted the tribunal by proving that one employee who committed the
same offence he (applicant) committed, was set free while applicant
received a harsh punishment of dismissal.
Clearly from the above extract, the learned Arbitrator accepted that there
had been a dissimilar treatment in the case where two employees charged
of the same employment were punished differently. Having accepted this
position, She correctly applied the principle of inconsistency.
Page 104 of 283
15. Applicant has referred Us to the case of CGM Industrial (Pty) Ltd v
Molieleng & another (supra). In this case, the principle of inconsistency is
explained as follows,
consistency is 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.
16. Clearly, how the principle is to be applied depends on the factual
conclusion that has been made or that which is to be made. Where it is
factually concluded that the situation and/or circumstances of employees
were similar, the principle will apply and vice versa. We therefore find
that in the light of the factual conclusion made, the learned Arbitrator
properly applied the principle of consistency/inconsistency.
17. We do concede that evidence was given at pages 11 and 12 of the
record of proceedings before the DDPR, to demonstrate that there was
consistency in meting out punishment. Further that, at page 6 of
paragraph 13 of the arbitration award, the leaned Arbitrator notes that
Applicant was inconsistent. This evidence shows something else other
than the misapplication of the principle of inconsistency or consistency.
18. We have considered both exhibits 1 and 3. These exhibits show that
the charges of the two employees in issue were not entirely the same. For
1st Respondent, the charge was one of profane and abusive language
while for the other employee, there were other charges in addition. While
this does not similarly demonstrate misapplication of the principle of
consistency/inconsistency, it relates to something else. This leads us to
conclude that not only was the principle properly applied, but that
Applicant is merely unhappy with the conclusion made, a cry that cannot
be cured by way of a review but appeal.
19. Our attitude is fortified by the authority of J. D. Trading (Pty) Ltd t/a
Supreme Furnishers v M. Monoko & others LAC/REV/39/2004, where he
Court makes a distinction between a review and an appeal and the
consequential remedies in respect of each. This is reflected in the
following,
review.
20. The second, fourth and fifth grounds, which were argued together,
were that the learned Arbitrator erred by ignoring the evidence of
Applicants key witness by the names of Rethabile Tlebere. It was argued
that this witness gave evidence that showed that the Applicant had been
consistent in meting out punishment in situations that were similar
Page 105 of 283
before. The witness was said to have further testified that the case of 1st
Respondent was different as the circumstances were different.
21. It was argued that Tlebere had testified that the charges were not
entirely the same, that the other employee accepted guilt and asked for
mercy while Applicant denied guilt only to be found so after a hearing.
The Court was referred to pages 1 to 17 of the record of proceedings
before the DDPR for the evidence. Further reference was made to page 3
at paragraph 6 of the arbitration award.
22. 1st Respondent submitted in answer that if evidence of Rethabile
Tlebere was not considered, that it related to issues that had been
accepted as common cause that is issues that had been confirmed by
Applicant. It was argued that it would thus not affect the outcome. It
was however denied that the evidence was not considered.
23. We have gone through the record of proceedings before the DDPR. We
do confirm that from pages 1 -17 is the evidence of Rethabile Tlebere. We
also confirm that from the reading of paragraph 6 of the arbitration
award, that evidence was not considered. At this paragraph the learned
Arbitrator notes that,
In trying to convince this tribunal about the fairness of the applicants
dismissal, the respondent company called upon Messrs Tsepo Monare and
Molise Kotelo as its witnesses. Thereafter, the learned Arbitrator
proceeds to analyse their evidence and then makes a conclusion.
24. Evidently, the evidence of Rethabile Tlebere was not considered
notwithstanding that she was the first witness in the proceedings.
Having perused the record at pages 1 17 of the record, we confirm that
Tlebere gave evidence that showed that the circumstances of the cases
being compared then were not the same. This was crucial evidence as it
was the defence of Applicant against 1st Respondent case. Consequently,
this evidence was material and should have been considered.
25. We reject the suggestion that it was evidence that was common cause,
as 1st Respondent case and evidence was that Applicant had been
inconsistent, while the evidence of Rethabile Tlebere showed otherwise.
We therefore find that the learned Arbitrator erred in not considering the
evidence of Rethabile Tlebere. We are of the view that if considered, the
evidence of Rethabile Tlebere may have influenced the learned Arbitrators
decision, at least in so far as the issue of consistency/inconsistency is
concerned.
Page 106 of 283
AWARD
We thus make an award as follows:
a) That the review application is granted.
b) The award in referral A0660/2013, is reviewed and set aside.
c) The matter is remitted to the DDPR to be heard de novo before a different
arbitrator.
d) The order must be complied with within 30 days.
e) No order as to costs.
T C RAMOSEME
MRS. RAMASHAMOLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. K. LETSIE
ADV. RAMPAI
Page 107 of 283

HELD AT MASERU
LC/REV/23/2013
A0223/2012(b)

RAMPAR TRADING (PTY) LTD
t/a DODOS SHOES
APPLICANT
AND
NTHABISENG JOYCE SEETSI
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the arbitration award. Four grounds of review having
been raised. Court not finding merit in same and dismissing the review. The
arbitration award being reinstated. No order as to costs being made.
Principles considered: distinction between review and appeal; requirements for
a condonation application; and the rule against reliance on issues not
canvassed.
A0223/2012 (b).
The brief background of the matter is that 1st
Respondent was employed by Applicant until her contract terminated.
She then referred a claim for severance payment and notice with the
Directorate of Dispute Prevention and Resolution (DDPR). 1st Respondent
obtained judgment in default of Applicant.
2. Unhappy with the default award, Applicant initiated the current review
proceedings, wherein it sought the review, correction and/or setting aside
of the arbitral award in issue. However, due to a delay in the prosecution
of the matter, 1st Respondent applied for the dismissal of the review for
want of prosecution. In reaction to this application, Applicant filed its
reply to the 1st Respondent answer, together with an application for
condonation.
3. On the date of hearing, parties agreed to abandon all the other
applications, that is, the dismissal application as well as the condonation,
in favour of the merits of the matter. They agreed on the granting of
condonation for the late filing of the reply. Having considered the basis of
the condonation application and having found merit in same, We granted
it and directed parties to address Us on the merits of the main review.
Five grounds of review had been raised but only four were argued.
Page 108 of 283

4. Applicants case was that the learned Arbitrator erred by going against
Her own caution, that the requirements in an application for condonation
should be taken together, as they are interrelated and not individually
decisive. It was said that the learned Arbitrator did this by only
considering the explanation for the delay and the prospects of success,
and disregarding the other factors. The Court was referred to the
arbitration award for evidence of this.
5. We have gone through the arbitration award and wish to confirm that
indeed at paragraphs 8, 9 and 10 of the arbitration award, the learned
Arbitrator states the applicable principles. In particular, She states the
factors to consider from the authority of National Union of Metal Workers
of South Africa & Others v Cribard (Pty) Ltd (2008) 29 ILJ 694. Six factors
are listed in the award. The learned Arbitrator further states that these
factors are not individually decisive but they are interrelated and must be
weighed against each other.
6. In the same arbitration award, the learned Arbitrator has recorded the
submissions of Applicant.
From the record, Applicant only made
submissions in respect of the reason for the delay and the prospects of
success. The record has not been challenged not to be a true reflection of
what took place. It is trite law that what has not been challenged is take
to have be accepted as true and accurate (see Theko v Commissioner of
Police and Another 1991-1992 LLR-LB 239 at 242).
7. If the above position is to hold, then the learned Arbitrator was right in
not considering the other factors, as they were never issues before Her.
Supportive of our view is the authority of Phetang Mpota v Standard Bank
LAC/CIV/A/06/2008, where the Learned Dr. K. E Mosito, at paragraph
22 of the typed judgement stated that,
... the Court of Appeal and this Court have more than once deprecated the
practice of relying on issues which are not raised or pleaded by the parties
to litigation.
The learned Arbitrator was therefore right to have limited Her analysis
only to the issues raised by Applicant before Her. Consequently, We find
no irregularity in the learned Arbitrators approach.
8. The second ground of review was that the learned Arbitrator erred by
making a finding that was not supported by facts. It was argued in
amplification that Applicant had given evidence of cases which 1st
Respondent former colleagues had referred against Applicant. It was
added that these cases involved similar issues as those involved in the
Applicants case, that is, the same cause of action, the same legal
grounds and the same relief. It was submitted that it had been indicated
to the learned Arbitrator that Applicant had won these cases. It was
argued that this was evidence of prospects of success and that any
finding otherwise was not based on facts. The Court was referred to the
arbitration award.
Page 109 of 283
9. Respondent answered that Applicant did not succeed in these cases as

they were dismissed. It was submitted that Applicant had shown a
certificate of exemption from paying severance payment, and that owing
to the certificate the learned Arbitrator dismissed the claims. It was
argued that this did not mean that Applicant had won.
10. We have gone through the award, and in particular at paragraph 6,
where mention is made of cases on similar issues. In this paragraph, the
learned Arbitrator has recorded the submissions of Applicant on the
prospects of success. These are recorded as follows,
In stating prospects of success, applicant representative indicated that the
matter is of great importance as there are cases pending of the same issue
and its outcome is likely to affect all other employees of the said provident
fund scheme and not catered for in severance payment in terms of the
Labour Code Order of 1992. She added that applicant already has other
cases pending on the same issue and they shall make an application that
they be joined together and heard once and for all.
11. Clearly on paragraph 6, no mention has been made by either Applicant
or the learned Arbitrator about the referenced cases being completed in
favour of Applicant. Rather what appears is that they are pending.
Evidently, this is contrary to the claims by Applicant that it had led
evidence of cases in which they had been successful on same causes of
action, same legal grounds and relief sought. Consequently, the premise
of Applicants claim for prospects of success fails.
12. We in fact agree with the learned Arbitrator that if this was the basis
of a claim for prospects of success, then Applicant had none. Prospects
of success are claims which demonstrate that likelihood or chance of
success in the main case if heard (see Phetang Mpota v Standard Bank
(supra). In casu, Applicant has not shown any chance or likelihood of a
win in the main case. Rather, Applicant merely refers the learned
Arbitration to some pending matters whose determination is yet to be
made.
13. The third ground of review was that the learned Arbitrator erred by
finding that a company with operations in Lesotho must have a person
who specifically and only serves the interests of that company in Lesotho,
and not in another jurisdiction. The Court was referred to paragraph 10
of the arbitration award for this finding.
14. We have gone through paragraph 10 of the arbitration award. That
paragraph analyses the explanation for the delay. It is recorded that,
10.
It is applicants reason that manager responsible for Lesotho is
also responsible for applicants businesses in Botswana and Swaziland
while she resides in Johannesburg. He submitted that as a result, she
travels between four countries and that hindered her to come to Lesotho
immediately after being aware that an award has been issued against
applicant in default. Another reason.....
Page 110 of 283
15. Clearly, paragraph 10 does not show the suggested conclusion.

Rather it shows a record that is entirely on a different conclusion, other
than what is suggested. In addition, Applicant is clearly challenging the
conclusion of the learned Arbitrator. While the reasons for bringing both
a review and an appeal are the same, that is to set aside judgment given,
challenges placed against the conclusions are properly canvassed
through an appeal mechanism and not a review (see J. D. Trading (Pty)
Ltd t/a Supreme Furnishers vs. M. Monoko & others LAC/REV/39/2004).
Consequently, the basis of this ground falls off and in the same vein the
review ground also fails.
16. The fourth ground of review was that the learned Arbitrator allowed a
party that had not filed an opposing affidavit to address it in defence of
the application for condonation. It was argued that by not filing an
opposing affidavit, 1st Respondent had expressed his clear intention not
to oppose the condonation application. It was added that this being the
case the application should have been granted. It was argued that
allowing the 1st Respondent to make addresses under the circumstances
was irregular and contrary to Regulation 26 of the Labour Code (DDPR)
Regulations of 2001.
17. 1st Respondent answered that the opposing papers were filed of record
and that this is clear for paragraph 7 of the award. At that paragraph, it
is recorded that the opposing papers were not considered because their
late filing had not been considered. It was denied that 1st Respondent
made submissions in opposition.
18. We have gone through paragraph 7 of the arbitration award where
reference is made to the opposing papers. The following is recorded,
Since respondent did not move condonation application for late filing of
opposing papers, I consider this application unopposed in as much as they
attempted to oppose it in the hearing.
19. We are in agreement with 1st Respondent that she was not allowed to
make submissions in defence. It is clear from the record that though an
attempt was made, but such was quashed as the learned Arbitrator
resolved that the matter would be treated as unopposed. Consequently,
there is no merit in the claim that the learned Arbitrator allowed a party
that had not filed opposing papers to make submission in opposition.
Page 111 of 283
AWARD
b) The award in referral A0223/12 (b) remains in force and is to be complied
with within 30 days of issuance herewith.
T C RAMOSEME
MR. MOTHEPU
MR KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. MABULA
MR. LETSIE
Page 112 of 283

HELD IN MASERU
LC/REV/109/2010
A0534/2010

SOBITA INVESTMENT (PTY) LTD
t/a LAKESIDE HOTEL
APPLICANT
DDPR
M. MASHEANE (ARBITRATOR)
RAMOLIKO MONETHI
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of arbitration award. 3rd Respondent raising a point
limine of improper procedure. 3rd Respondent arguing that it is improper for a
legal representative to depose to an affidavit laying out Applicants review
grounds and then continue to represent an applicant party. Court finding merit
in the point limine. Court excusing Applicants current representation and
directing that Applicant find another representative or to appear in person. No
A0534/2010. The background of the matter is that 3rd Respondent was
an employee of Applicant until he was dismissed for misconduct.
Unhappy with his dismissal, Applicant referred a claim for unfair
dismissal with the DDPR.
2. The matter was duly heard in the absence of Applicant, after which an
award was made in favour of 3rd Respondent. In terms of the award,
Applicant was ordered to pay 3rd Respondent compensation in lieu of
reinstatement. Unhappy with the default award, Applicant initiated
rescission proceedings against the said award.
3. The rescission application was heard but refused with the initial award
being reinstated. Equally unhappy with this award, a review was lodged
with this Court by Adv. Ntaote, Applicants representative. He specifically
deposed to averments in support of the review application.
4. At the commencement of the proceedings, 3rd Respondent raised a point
in limine that the matter be dismissed. The premise of the claim was that
it was improper for Adv. Ntaote to have deposed to an affidavit on behalf
Page 113 of 283
of his representee. Parties were duly given the opportunity to make

presentation and having heard them, Our judgment follows.
5. Respondents case was that it was improper for Adv. Ntaote, who is
Applicants representative in these proceedings, to have also deposed to
an affidavit laying out the Applicants grounds for review. The Court was
referred to the Lesotho Court of Appeal authority in Nkopa Emmanuel
Letuka v Yacoob abubaker & Others C of A (CIV) 17/2012. Applicant
simply answered that the authority had been misapplied.
6. We have gone through the authority in issue and in particular at
paragraph 14 thereof. At this paragraph, the Court makes the following
remark,
Where counsel becomes a witness to events which are pertinent to his
client's case and which give rise to credibility issues, it is highly
undesirable, if not improper for such counsel to continue to represent the
client in the litigation. This is the second case in this session alone, in
which legal representatives have made contentious affidavits. This growing
tendency should be deprecated and discouraged.
7. In the light of the above cited authority, We are of the view that it was
also improper for Adv. Ntaote to depose to an affidavit on behalf of his
client and to continue to be his legal representative. In the case of
Mokhethi v Matlole and others C of A (CIV) 03/2012, the Court gave a
remedy where an irregularity of this nature has occurred. At paragraph
16 of the judgment, the Court stated that,
[16] Counsel in a case, whether advocate or attorney, owes a duty to the
court to present facts, and to argue the issues, with objective independence
from the interests of the client. Accordingly, if counsel has to make an
affidavit regarding disputed facts, subsequent withdrawal from the case
may well be required so as to avoid acting in conflict with that duty."
Page 114 of 283
AWARD
We therefore make a finding in the following:
a) That the Applicants current representative is excused from these
proceedings on account of his conflicting involvement,
b) Applicant may appear in person or find another representative, if he may
so wish, and
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY 2015.
T C RAMOSEME
MRS. RAMASHAMOLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 3rd RESPONDENT:
ADV. NTAOTE
ADV. RAMPAI
Page 115 of 283

HELD AT MASERU
LC/REV/155/13
A0855/2013

PUSELETSO MAFATLE
APPLICANT
J & S FASHION (PTY) LTD

DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Applicant for review of arbitration award. Several grounds of review raised. 1 st
Respondent raising two points in limine against the additional review grounds
non-compliance with the Rules and Lack of relevance of averments. Points
being upheld and additional grounds being struck off. Applicant proceedings
with two grounds. Court not finding merit in them and dismissing the review
application. Distinction between and appeal and review being considered. No
1. This is an application for the review of the award in referral A0855/2013.
The brief background of the matter is that Applicant was an employee of
1st Respondent until she was dismissed for misconduct. Unhappy with
the dismissal, she referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR). An award was
issued on 25th day of October 2013, dismissing her claim.
2. Equally unhappy with the arbitration award, Applicant approached this
Court for review. About six grounds were raised on her behalf, in terms
of which the review, setting aside and/or correction of the said award was
sought. In answer to the application, 1st Respondent had raised two
points in limine, specifically attacking the additional grounds of review.
Both parties were heard on all claims and Our judgment follows.
Points in limine
Non-compliance with Rule 16 (6)
3. 1st Respondents case was that the documents filed on behalf of Applicant
purportedly under Rule 16 (6), did not comply with that Rule. It was
argued that in terms of the said Rule, there has to be a notice to amend
the Notice of Motion, accompanied by an affidavit that states the grounds
being added or amended. It was submitted that these said documents
are short of the requirement and should be struck off.
Page 116 of 283
4. Applicant answered that Rule 16 (6) has been complied with. It was
submitted that in the main review, they had reserved the right to add
grounds of review and this is what they did. It was argued that the
documents in issue are supplementary papers and did not need to take
the form of a Notice of Motion.
5. We have gone through Rule 16 of the Labour Appeal Court Rules of 2002,
which are now the Rules of this Court in cases of review of arbitration
awards. In terms of that Rule, and in particular sub-rules 2 and 3,
(2) A party wishing to review a decision shall file a notice of motion with
the registrar....
(3) The Notice of Motion shall
....
(c)
be supported by an affidavit setting out the factual and legal
grounds upon which the applicant relies to have the decision or
proceedings corrected or set aside.
6. Now sub-rule (6) thereof provides that,
The applicant shall, within 7 days after the Registrar has made the record
available, either (a) by delivering a notice and accompanying affidavit, amend add to or
vary the terms of the notice of motion and supplement the supporting
affidavit; or
7. Applicant has filed additional grounds upon which she relies to have the
arbitration award corrected or set aside. A procedure has been laid out
under Rule 16 (2) and (3). This being the case, Applicant is bound by
that procedure. We are of the view that, a notice and affidavit required
under 16 (6) is one contemplated under Rules 16 (2) and (3). Sub-rule (6)
does not operate in isolation but flows from the sub-rules that precede it.
Therefore, We are in agreement with 1st Respondent that Applicant has
failed to comply with Rule 16 (6).
Lack of relevance
8. 1st Respondents case is that the averments contained in the supporting
affidavit to the notice to file additional grounds are irrelevant. It was
argued that the said averments have no relation at all with the proposed
additional grounds, as they neither support nor augment them. It was
submitted that rather they state the obvious facts which have already
been pleaded in the initial Notice of Motion. It was prayed that the
supporting affidavit be struck off as being irrelevant.
9. Applicant answered that the averments are relevant as they support the
additional ground. It was further argued that, that notwithstanding it is
improper for 1st Respondent to raise this issue as point in limine. It was
added that the issue would have been properly raised as a defence to the
merits rather than in this fashion. It was said that the practice adopted
Page 117 of 283
by 1st Respondent was discouraged by the Court of Appeal of Lesotho in

Makoala v Makoala C of A (CIV) 04/2009.
10. We have perused the authority of Makoala v Makoala (supra). In that
authority, the learned Melunsky J warns the Courts against the practice
of treating defences to the merits as points in limine and also advices that
rather than to dismiss matters on issues that are otherwise dilatory, the
courts should hold proceedings and allow parties to correct defects in
their pleadings. For purposes of the matter at hand, this authority does
not advance Applicants case as it does not declare the point in limine
raised as being improper.
11. We have also perused the provisions of Rule 7 of the Rules of this
Court. That Rule permits a party to raise a point of law at any stage of
the proceedings, if among others it relates to irrelevance. The section is
couched as follows,
7(1) Subject to sub-rule (3), the Court may, at any stage of proceedings, of
its own motion, order to be struck out any document filed in the
proceedings or anything contained therein, on the grounds that it is
scandalous, vexatious, frivolous, irrelevant or an abuse of the process of
Court.
In view of this said, We find in favour of 1st Respondent that the point is
properly raised.
12. We have also considered the content of the affidavit under scrutiny.
We do confirm that its content is irrelevant. We say this because it does
not set out both the factual and legal grounds upon which the additional
grounds of review are based, to sustain a case for review. We therefore
find in favour of 1st Respondent and strike out the said affidavit. It
therefore follows that without a supporting affidavit, there is no notice to
add grounds as contemplated by Rule 16 (6). We will therefore only
consider the main application alone.
Merits
13. Applicants case is basically that the learned Arbitrator failed to make
the distinction between absenteeism and late arrival at work. It was
argued that although Applicants case was that the sentence was too
harsh, the learned Arbitrator needed to make a distinction between late
arrival and absenteeism in order to make the proper decision over the
issue.
14. Secondly, that the learned Arbitrator erred in finding that Applicant
was guilty of misconduct. It was argued in amplification that there was
no evidence establishing the misconduct. It was added that the available
evidence showed that on an earlier occasion, that led to the issuance of
the last warning, Applicant had been allowed to be late at work but that
notwithstanding he was charged and given a final warning.
Page 118 of 283
15. 1st Respondent answered that one of the elements in an application for
review is prejudice. It was submitted that a party applying for a review
must show that as a result of the alleged irregularity, they suffered
prejudice. It was argued that Applicant has failed on this requirement
and therefore that the review be refused.
16. It was further argued that Applicants case before the learned
Arbitrator was not for a distinction between late arrival and absenteeism.
It was submitted that rather the misconduct was not the issue but that
Applicant was of the view that the sentence was too harsh. It was argued
that Applicant is pleading a new case on review. It was added that
Applicant is also raising a new ground of review from the bar as no such
argument has been raised in the affidavit to the Notice of Motion.
17. On the second argument, it was submitted that this is an appeal as it
does not show any procedural irregularity. It was argued that assuming
it is properly raised, the fact that there was acceptance of misconduct,
makes the argument baseless. It was added that Applicant never denied
the misconduct as his case was that the sentence was too harsh. The
Court was referred to paragraph 3 of the arbitration award.
18. We have considered the submissions of both Applicant and 1st
Respondent. We do confirm that Applicant had complained only about
the harshness of the sanction before the DDPR. Supporting this is the
arbitration award on paragraph 3 where the following is recorded,
Applicant is challenging the dismissal on the ground that the sanction to
dismiss her was too harsh.
Clearly, there was acceptance of misconduct for if there had been none,
Applicant would have questioned the substantive aspect of her dismissal,
namely that she was charged and dismissed for what she had not done.
19. In view of the above said, the learned Arbitrator could not have
determined the distinction between lateness and absenteeism as the
reason for dismissal was never the issue. We wish to reiterate that if the
reason for the dismissal was the issue, it would have been expressly
raised, which was not the case in casu. Consequently, the learned
Arbitrator did not err in not making the distinction between absenteeism
and lateness. If the learned Arbitrator had, She would have determined
an issue in respect of which She was not called. She would have therefore
acted contrary to the dictates of the authority of Phetang Mpota vs.
Standard Bank LAC/CIV/A/06/2008.
20. In the above authority, the learned Dr. K. E. Mosito AJ, held at
paragraph 20 of the typed judgment that,
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.
Page 119 of 283
At paragraph 22, the Learned Dr. K. E Mosito went on to say,

Similar, the Court of Appeal and this Court have more than once
deprecated the practice of relying on issues which are not raised or
pleaded by the parties to litigation.
On the strength of this authority and the above reasons the argument of
Applicant fails.
21. We wish to also comment that We agree with 1st Respondent that
Applicant does not argue failure to make the distinction between lateness
and absenteeism in her pleadings, at least in the founding pleadings.
Rather the argument was made in the additional grounds which have
unfortunately been struck out, on account of both non-compliance with
Rule 16 (6) and Rule 7 of the Rules of this Court, respectively.
Consequently, at this stage, Applicant would, if allowed, be making a new
case from the bar. We wish to add that we are also in agreement with 1st
Respondent that Applicant has not shown the prejudice occasioned by
the alleged irregularity.
22. On the second ground, We also find in favour of 1st Respondent that
the grounds raised are appeal and not review grounds. The distinction
between the two, that is an appeal and a review, has been made the case
of JD Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2014. It was stated in that case that,
Where the reason for wanting to set aside judgment is that the court came
to 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 the case for review.
23. The Applicants second ground of review appears under paragraph 1 of
the pleadings as such,
The learned arbitrator erred and or misdirected herself by holding that the
applicant was guilty of misconduct.
Clearly, this is challenge against the conclusion and not the method.
Applicant is merely asking this Court to make a finding on the basis of
the evidence he alleges to have been presented, that Applicant was not
guilty of misconduct. She wants Us to substitute the decision of the
learned Arbitrator with Our own, as would be in an appeal situation.
24. We wish to further comment that We agree with 1st Respondent that
even if We had found in favour of Applicant that the ground has been
properly taken, the misconduct had been accepted before the DDPR by
Applicant. We say this because it was not challenged. We have shown by
reference to the arbitration award and the submissions of parties that
Applicant was only concerned with the appropriateness of the sanction
and not the conduct charged and dismissed for.
Page 120 of 283
AWARD
For the above reasons, We find as follows,
b) The award of the DDPR is reinstated.
T C RAMOSEME
MR. MOTHEPU
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. LEBAKENG
ADV. NONO
Page 121 of 283

HELD AT MASERU
LC/REV/17/2012
A0536/2011

TAI-YAUN GARMENTS (PTY) LTD
APPLICANT
AND
MACHERE LERAISA
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Only one ground of review
having been raised. 1st Respondent claiming from the bar that pleadings are
vague and that they made it difficult for her to answer. Court finding no merit
in claim. Court adding that the issue ought to have been taken earlier. Court
further not finding merit in the review ground and dismissing the review.
Requirements for unreasonableness as a review ground being stated. No order
A0536/2011. Only one ground of review has been raised on behalf of
Applicant. The brief background of the matter is that 1st Respondent was
employed by Applicant until she was dismissed for misconduct. Unhappy
with her dismissal, she referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR).
2. The matter was duly heard in arbitration at the end of which an award
was issued, wherein Applicant was ordered to reinstate 1st Respondent in
terms of section 73 of the Labour Code Order 24 of 1992. Equally
dissatisfied with the finding, Applicant initiated the current proceedings,
in terms of which it sought the review, correction and/or setting aside of
the said arbitration award.
3. We wish to note that at some stage during the pleadings, 1st Respondent
had made an application for the dismissal of this review for want of
prosecution. On the date of hearing the said application was withdrawn
in favour of the merits of the matter. We endorsed the withdrawal and
accordingly directed parties to proceed to address Us on the merits. Our
judgment therefore follows.
Page 122 of 283

4. Applicants case was that the decision of the learned Arbitrator is grossly
unreasonable in that She concluded that Applicant failed to provide a
valid reason for the 1st Respondent dismissal, which reason connected
her to the theft. It was argued that there is ample evidence on record
supporting the fact that the 1st Respondent committed the alleged
misconduct.
5. 1st Respondent answered that the ground raised by Applicant is vague
and that as a result, the averments made make it difficult for them to
react. It was argued that the review be dismissed on this ground alone.
The court was referred to the case of Ever Successful Textile (Pty) Ltd v
Tajane Tajane LC/REV/139/2013, in support of this argument.
6. 1st Respondent further answered that there is no unreasonableness on
the part of the learned Arbitrator. It was submitted that evidence on
record showed the misconduct to have been committed by someone else
hence why the learned Arbitrator concluded that there was no evidence to
connect 1st Respondent with the misconduct.
7. It was submitted further that the learned Arbitrator applied Her mind to
the facts, contrary to Applicants suggestion. It was added that Applicant
is merely unhappy with the award in as much as it has not shown any
irregularity or even the extent of same. The Court was referred to the
case of Rustenburg Platinum Mines Ltd .v. CCMA 2007 (1) SA 576 (SCA) for
the distinction between an appeal and a review.
8. Applicant replied that the argument that the grounds raised are vague
and that they make it difficult for them to react has no merit. It was
argued that the argument is in fact overtaken by events as they have not
indicated the alleged difficulty when they answered. It was prayed that
the point be dismissed.
The court was referred to the case of
Masekhanto Sekhanto v Maluti Mountain Brewery & Another
LC/REV/36/12, in support.
9. We wish to start by addressing the issue of the vagueness of the
pleadings with the result that one of the parties is unable to plead
issuably. We are conscious of the authority of Ever Successful Textile
(Pty) Ltd v Tajane Tajane (supra). However, that authority has been
misplaced in casu. In that authority, Respondent was challenging the
submissions of Applicant on the premise that the factual arguments
made on behalf of Applicant had not been pleaded, contrary to the
principle in motion proceedings that stands and falls by their
submissions. This is not the 1st Respondents case in casu. Therefore the
argument fails.
10. We however, subscribe to the Applicants case that one cannot claim to
have had difficult to answer when such has not been shown in their
pleadings. We confirm that 1st Respondent has answered and in so
Page 123 of 283
doing, she has not laid a complaint against the initial pleadings by
Applicant. We therefore maintain Our view in the case of Masekhanto
Sekhanto v Maluti Mountain Brewery (supra) that,
If 1st Respondent truly found the review grounds vague, the proper
procedure would have been to raise a point of law prior to filing its answer.
We therefore find that this point of law has been overtaken by events and
as such it is not competent at this stage.
11. Unreasonableness is the only instance in which an award may be
challenged on the conclusion. The conditions for this challenge to
succeed are that there must be evidence, which evidence must be
accepted. With the evidence having been accepted, there must only be
one reasonable conclusion against which the decision maker strayed (see
Carephone (Pty) Ltd v Marcus NO & 7 others (1998) 11 BLLR 1093 (LAC) at
1103).
12. In casu, it is suggested that there was evidence to show that 1st
Respondent had committed misconduct. It is not alleged that such
evidence was accepted by the learned Arbitrator so that she was bound to
the conclusion suggested or sought to be suggested by Applicant as being
the one and only reasonable one. This being the case, Applicants case
does not pass the test for unreasonableness.
13. We are therefore to conclude that the learned Arbitrator duly applied
Her mind to the facts before Her and that she made a reasonable
conclusion. We also led to the view that Applicant is merely unhappy
with the arbitration award, and in particular the conclusion as opposed
to the procedure. We also take note of the authority of Rustenburg
Platinum Mines Ltd CCMA (supra) referenced by 1st Respondent.
AWARD
In the light of the above reasons, We make the following award:
b) That the award in referral A0536/2011 remains in force and must be
complied with within 30 days of issuance herewith.
T C RAMOSEME
MR. MOTHEPU
MR. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. PEETE
ADV. LEBAKENG
Page 124 of 283

HELD AT MASERU
LC/97/2014

NTOA GERARD CHABELI
APPLICANT
AND
SECURITY LESOTHO
RESPONDENT
JUDGMENT
Claim for payment under the Workmens Compensation Act of 1977. Matter
being heard unopposed. Applicant succeeding to satisfy the requirements for
his claim. Court awarding the claimed amount. No order as to costs being
made.
BACKGROUND OF THIS DISPUTE
1. This is a claim for payment of monies under the Workmens Compensation
Act of 1977. It was heard in default of the Respondent. The matter was
initiated on the 17th October 2014 and served upon Respondent in the
20th October 2014. Accordingly to Applicant, notwithstanding service of
process, Respondent failed to react, by filing an answer in terms of Rule 5
of the Rules of Court, leading to the initiation of an application for
judgment by default.
2. Notwithstanding service of process in same, Respondent failed to both
react and attend the proceedings. We therefore granted the request by
Applicant to be heard and granted judgment in default. In making this
conclusion, We were guided by Rule 7 of the Rules of this Court that,
whenever a respondent fails to file an answer to an originating
application, the Court may, upon application in writing by the applicant,
being satisfied as to receipt of the originating application by the
respondent, enter judgment for the applicant, or make such order or
determination as it considers just.
3. Having heard the oral evidence of Applicant, and having considered the
documentary evidence of Applicant, Our judgment follows.
EVIDENCE AND FACTS
4. Applicants case is that on or around the 20th May 2011, while on duty,
he was shot on the belly. He gave evidence of a medical report marked
MM1.
Thereafter a notice of injury was submitted to the Labour
Department on his behalf by Respondent, for computation of
Page 125 of 283
compensation due to Applicant. A document marked MM2 was tendered

in support.
5. Following the computations, Applicant testified that Respondent was
served with same accompanied by a claim and for payment. He added
that despite demand, Respondent has failed, neglected and/or refused to
pay. It was stated that the computed compensation amount is M30,63735, as shown on MM2. It was prayed that Respondent be ordered to pay
same.
ANALYSIS
6. In terms of section 5 (1) of the Workmens compensation Act (supra),
If in any employment, personal injury by accident arising out of and in the
course of employment, is caused to a workman, his employer shall be liable
to pay compensation in accordance with the provisions of this Act.
7. Applicant has satisfied Us through his unchallenged evidence that he
sustained injury while on duty. He has tendered evidence that clearly
shows the computations of his compensation in terms of the Act. In law,
evidence that has not been challenged is taken to have been admitted as
a true and correct reflection of events (see Lenka Mapiloko v Pioneer Seed
(RSA) and others LAC/A/08/08). We are therefore satisfied through the
unchallenged evidence of Applicant that he is deserving of the
compensation amount claimed.
AWARD
a) Respondent is ordered to pay M30,637-35 to Applicant as compensation
under the Workmens Compensation Act of 1977.
b) Payment to be made within 30 days of this award.
THUS DONE AND DATED AT MASERU ON THIS 31st DAY OF AUGUST
2015.
T C RAMOSEME
MRS. THAKALEKOALA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. PHANGOA
NO ATTENDANCE
Page 126 of 283

HELD AT MASERU
LC/04/2015

LINEO BULANE
APPLICANT
AND
NEW STAR SUPERMARKET (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unfair dismissal, unpaid overtime and weekly rest days.
Respondent failing to attend and court proceedings in default upon application
by Applicant. Applicant successfully establishing her claims. Court finding that
the dismissal of Applicant constitutes both an unfair labour practice and an
automatically unfair dismissal. Court granting judgment in her favour. Court
No order as to costs being made.
1. These are claims for unfair dismissal for being a member of a trade
union, unpaid weekly rest days and unpaid overtime. The matter was
opposed but heard in default of Respondent by reason of its nonattendance. In coming to this conclusion We were guided by the
provisions of Rule 16 of the Rules of this Court.
2. The brief background of the matter is that Applicant was an employee of
Respondent until she was dismissed. Unhappy with the dismissal, she
referred a claim for unfair dismissal with the Directorate of Dispute
Prevention and Resolution (DDPR), together with claims for overtime,
public holidays, weekly rest days and unpaid wages.
3. The matter was duly conciliated upon but failed to resolve. Having
formed the opinion that the unfair dismissal claim constituted an unfair
labour practice, the matter was referred to this Court in terms of section
227 (5) of the Labour Code (Amendment) Act 3 of 2000, presumably read
with section 226(3) thereof, as it was referred together with other claims
that would ordinarily lay within the jurisdiction of the DDPR. It was set
before this Court on this day.
4. As earlier, noted, Respondent did not attend, and as a result, Applicant
applied to the Court to be heard in default of Respondent. We granted
the application and directed that the matter proceed in the merits as
such. Having heard the evidence of Applicant, and having considered
evidence filed in support, Our judgment follows.
Page 127 of 283
EVIDENCE AND FACTS

5. Applicants evidence: Lineo Bulane
Applicant testified that she was employed by Respondent in September
2001, until her dismissal in September 2014. She was employed in the
position of a Clerk at the time of her dismissal, and earned a monthly
salary of M1,608.00.
6. She stated that on the day in issue, she was told by Respondent manager
of Chinese origin, whose names were unknown to her, that she had been
terminated. It was explained to her that she had been terminated
because she was a member of a troublesome union to the Respondent.
Thereafter she was denied the chance to react to the accusation. She
claims that she was unfairly dismissed as the reason for her dismissal is
invalid and that she was denied a chance to defend herself.
7. Applicant asked to be reinstated without loss of remuneration and other
entitlements, and alternatively 36 months wages as compensation for her
unfair dismissal. She also asked the Court to consider notice and
severance pay in determining her compensatory award, should It elect to
award compensation as opposed to reinstatement.
8. Applicant further claimed overtime.
She stated that during her
employment with Respondent, she worked overtime of 4 hours every day.
As a result in the period from July 2012 to September 2012, she worked
1274 overtime hours which amounted to M424.60. Further that from
October 2012 to September 2013, she worked 1503 overtime hours,
which amounted to M2,003.90. Furthermore, that from October 2013 to
September 2014, she worked 1608 overtime hours, which amounted to
M2,142.40. She claimed the total overtime amount of M4,570.90.
9. Regarding the weekly rest days claim, Applicant testified that from July
2012 to September 2012, she worked 15 weekly rest days which
amounted to M881.85. Further that from October 2012 to September
2013, she worked 52 weekly rest days which amounted to M3,607.19.
Furthermore, that from October 2013 to September 2014, she also
worked 52 weekly rest days, which amounted to M3,859.10. She claimed
the total weekly rest days amount of M8,348.14.
SUBMISSIONS
10. Mr. Mokhahlane for Applicant submitted that evidence had shown that
the dismissal of Applicant was unfair, as she was dismissed for her
membership into a trade union. He stated that this is not only unfair but
also amounts to an unfair labour practice. He stated that Applicant is
entitled to the principal remedy of reinstatement in terms of section 73 of
the Labour Code Order 24 of 1992, alternatively 36 months as
compensation. He asked that it in determining compensation, the Court
consider both notice and severance pay, as prayed by Applicant.
Page 128 of 283
11. Regarding the weekly rest days claim and overtime claim, Mr.
Mokhahlane submitted that Applicant had satisfied the requirements of
section 118 of the Labour Code Order (supra) in that she worked both
during weekly rest days and overtime. He added that in terms of the law,
an employee must be paid. He asked that the Court grant judgment as
shown by evidence.
ANALYSIS
12. In terms of section 66 (1) of the Labour Code Order (supra), an
employee may only be fairly dismissed on the following grounds:
(a) Connected with the capacity of the employee to do the work the
employee is employed to do (including but not limited to an employees
fraudulent misrepresentation of having specific skills required for a
skilled post);
(b) Connected with the conduct of the employee at the workplace; or
(c) based on the operational requirements of the undertaking,
establishment or service.
13. Subsection (3) (a) thereof provides that:
The following shall not constitute valid reasons for termination of
employment
(a) Trade union membership or participation in trade union activities
outside working hours or, with the consent of the employer, within
working hours;
14. Section 196(2) of the Labour Code Order (supra), provides that,
(2) Any person who seeks, by intimidation, threats, dismissal, imposition
of a penalty, giving or offering to give a wage increase, or any other means,
to induce an employee to refrain from becoming or to refrain from
continuing to be a member, officer or trustee of a trade union shall commit
an unfair labour practice.
15. In casu, the reason behind the termination of Applicant is not valid.
We say this because it neither relates to her incapacity, workplace
misconduct or the operational requirements of the employer. Rather, the
reason is based on her membership to a trade union. A dismissal based
on this reason is clearly a violation of both sections 196(2) and 66 (3) (a)
of the Labour Code Order (supra). It amounts to both an unfair labour
practice and an automatically unfair dismissal, irrespective of whether a
hearing was given or not. As a result Applicant is entitled to a relief
under section 73 of the Labour Code Order (supra).
16. Regarding, Applicants claim for overtime, the instructive section is
section 118 of the Labour Code Order (supra). In terms of subsection (3),
thereof, an
employer may request an employee to work overtime in addition to the
normal hours provided for in this section, for up to 11 additional hours
during any one week. In respect of the additional hours, the employer shall
Page 129 of 283
pay the employee for such overtime at a rate not less than one and one
quarter times his or her normal wage rate.
17. In view of the dictates of the above section, Applicant is entitled to be
paid for working overtime, during the period in issue. She has satisfied
Us that she is entitled to be paid.
18. About week rest days claims, section 117 (2) of the Labour Code Order
(supra) provides that,
whenever an employee is required to work on his/her day of weekly rest
or on a public holiday, the employer shall pay him or her for such work at
double the employees wage rate for an ordinary work day.
19. In the same vein, in terms of the dictates of the above section
Applicant is entitled to be paid for working on her rest days in the period
in issue. We are satisfied that she has established that she is entitled to
be paid.
FORMULATION OF THE AWARD
Unfair dismissal
20. Applicant has prayed for reinstatement without loss as a remedy. In
terms of section 73 (1) of the Labour code Order (supra),
If the Labour Court holds the dismissal to be unfair, it shall, if the
employee so 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.
21. We have already determined that the dismissal of Applicant is not only
unfair but automatically unfair. As a result, as in line with both her
wishes to be reinstated and the dictates of section 73 (1) of the Labour
Code Order (supra), We award to Applicant the remedy of reinstatement
as prayed, with effect from 7th October 2015.
OVERTIME
22. In terms of section 118 of the Labour Code Order (supra), an employee
can only work up to 11 hours per month. This means that in the period
from July 2012 to September 2014, which is 26 months, applicant could
only work for 1,144 hours. This is computed as follows,
1 week = 11 hours maximum
1 month = 44 hours maximum (11 x 4 weeks)
26 months = 1144 hours (26 months x 44 hours)
Her monetary entitlement is thus
1144 hours x 1.25 x 1608.00
195
= M11,792.00
23. The rest of the hours in excess of the 1144 hours constitute an offence
in terms of section 118 (4) of the Labour Code Order (supra). Subsection
(4) provides that
Page 130 of 283
Any person who

......
(b) Requests or permits an employee to work hours of overtime in
contravention of subsection (3); or
(c) .....shall be guilty of an offence......
Weekly rest days
24. Applicant claims to have worked 119 week rest days from July 2012 to
September 2014. These are computed as follows:
July 2012 to September 2012
15 days
October 2012 to September 2013
52 days
October 2013 to September 2014
52 days
119 days
Her entitlement is thus as follows:
M1608.00 (salary at termination x 119 days x 8 hrs of work
195 hours
=M7,850.34
Lost wages
25. Applicant was terminated in September 2014. From then to date of
reinstatement are 12 full months. As a result, her lost wages entitlement
is as follows:
M1,608.00 x 12 = M19,292.00
26. Applicants total entitlement in monetary figures
M11,792.00 + M7,850.34 + M19,296.00 = M38,938.34
Page 131 of 283
is
therefore,
AWARD
We therefore make the following finding,
a) The dismissal of Applicant is unfair.
b) Respondent is ordered to reinstate Applicant on the 7th October 2015,
without loss of remuneration, seniority or other entitlements or benefits
which she would have received had there been no dismissal.
c) Respondent is ordered to pay to Applicant the sum of M38,938.34 being
her lost wages, unpaid weekly rest days and overtime.
d) The order is to be complied with within 30 days of issuance herewith.
e) Failure to reinstate Applicant on the stated date, shall cause her to
accrue an amount equal to her monthly salary for every month that
Respondent fails, neglects and/or refuses to comply with this order,
without prejudice to the right of Applicant to approach this Court for
enforcement and/or contempt.
f) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 7th DAY OF SEPTEMBER
2015.
T C RAMOSEME
MRS. MOSEHLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MR. MOKHAHLANE
NO APPEARANCE
Page 132 of 283

HELD AT MASERU
LC/09/2015

MASILO MASILO
APPLICANT
AND
NALELI SUPERMARKET (PTY) LD
MR. EMBO CHAN
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for enforcement of the DDPR Award and committal for failure to
comply with same. Court granting application to be heard in default and
hearing the matter in default of Respondents. Court finding in favour of
Applicant and ordering compliance with the DDPR award and setting terms of
compliance. Court declining the power to commit for non-compliance with the
award of the DDPR. No order as to costs being made. Also considered
Jurisdiction of the Labour Court to apply awards of the DDPR; Sources of the
Labour Law of Lesotho; and Interpretation of section 24(2)(j) of the Labour
1. This is an application for the enforcement of the award of the Directorate
of Dispute Prevention and Resolution (DDPR) in referral A0347/14, and
the committal of 2nd Respondent for failure to comply with the said
award. The matter has not been opposed and no appearance was made
on behalf of Respondents on the date of hearing.
the 1st Respondent until he was dismissed for misconduct. Unhappy with
his dismissal, he referred a claim for unfair dismissal with the DDPR.
The matter was duly conciliated upon but without success. It was then
heard in arbitration.
3. An award was thereafter issued in favour of Applicant, wherein the 1st
Respondent was ordered to reinstate him into his former position, in
terms of section 73 of the Labour Code Order 24 of 1992. The Order was
to take effect on the 3rd November 2014. 1st Respondent had also been
ordered to pay Applicant an additional amount of M57.44 as his unpaid
public holiday due.
4. Acting on the strength of Rule 14 of the Rules of this Court, and in
consideration of an application by Applicant to be heard in default, We
Page 133 of 283
granted same and directed Applicant to proceed to motivate his

application for enforcement and committal for contempt. Having heard
submissions made on behalf of Applicant, Our judgment follows.
5. It was submitted on behalf of the Applicant that when he reported at 1st
Respondent place of business, on the 3rd November 2014, to enforce the
award of the DDPR, he was returned by the 2nd Respondent, who told him
that he would not comply with the award.
6. It was added that since then to date, nothing has been done of the part of
Respondents to comply with the said award. Applicant prayed that the
award of the DDPR be enforced and that 2nd Respondent, who is the
Managing Director of 1st Respondent, be committed to jail for failing to
comply with same.
7. Section 226 (1) (a) of the Labour Code (Amendment) Act 3 of 2000,
provides that:
The Labour Court has the exclusive jurisdiction to resolve the following
disputes:
(a)
Subject to subsection (2), the application or interpretation of any
provisions of the Labour Code or any other labour law;
8. The Labour Law of Lesotho is sourced and/or composed of the following,
i. The Constitution of Lesotho;
ii. The legislation
iii. Common law
iv. Judicial precedent
v. Decisions of the DDPR, and
vi. Authoritative texts.
9. In essence, the awards of the DDPR, being one of the sources of the law of
Lesotho, are in effect the Labour Law of Lesotho. This means that these
awards fit within the provisions of Section 226 (1) (a) of the Labour code
(Amendment) Act (supra), for either application or interpretation.
10. In casu, Applicant is asking this Court to apply the DDPR award by
compelling the Respondents to live up to the dictates of the DDPR award,
in simple terms to comply with it. We have already shown where the
power of this court to apply the awards of the DDPR stems from. In
addition, We have also been asked to order the committal of the 2nd
Respondent, to compel him to comply with this award. We shall now
address this aspect of the Applicants prayers in this application.
11. The authority of this Court to commit for contempt, lies under section
24 (2) (j) of the Labour Code (Amendment) Act (supra). In terms of that
section, this Court has the power,
Page 134 of 283
to commit and punish for contempt any person who disobeys or unlawfully
refuses to carry out or to be bound by an order made against him or her by
the court under the Code.
12. Clearly, the section only allows this Court to commit for contempt in
relation to its order and not of any other court or body. This position has
been addressed by the Court of Appeal of Lesotho in the case of Nokoane
Mokhatla v Lesotho Brewing Company (Pty) Ltd and Others C of A (CIV)
35/13.
13. In that authority the Court had the following to say, in interpreting
section 24 (2) (j),
Then the offence is committed in respect of an order of either the Labour
Court or the Labour Appeal Court, depending on the context as per section
3 of the Code.
14. Therefore, this Court cannot order the committal of the 2nd
Respondent except in the circumstances stated by the court, that is,
where contempt is against the order of either this Court or the Labour
Appeal Court, depending on the context. What We can only do, is to
apply or give effect to the award by ordering compliance therewith.
AWARD
a) Respondents are ordered to comply with the award of the DDPR in
referral A0347/2014 within 30 days of issuance herewith;
b) Failure to comply with this order amounts to contempt of this Court;
c) If this order is not complied with within 30 days of issuance herewith,
Applicant may approach the Court, without notification to Respondents
for the issuance of a warrant for contempt against 2nd Respondent;
d) For each month that Respondents refuse, fail and/or neglect to comply
with the order of this Court, a fine equal to Applicants last salary shall
accrue and become payable to Applicant.
e) No order as to costs is made.
2015.
T C RAMOSEME
MRS. RAMASHAMOLE
MR KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENTS:
MRS. LECHE-LECHESA
NO ATTENDANCE
Page 135 of 283

HELD AT MASERU
LC/23/2011

KOALEPE MAKATSELA
APPLICANT
AND
ECONET-TELECOM LESOTHO
RESPONDENT
JUDGMENT
Claim for unfair dismissal on the ground of operational requirements of the
employer. Applicant challenging both the procedural and substantive aspect of
his dismissal. Applicant asking for reinstatement as a principal remedy and
compensation in lieu of reinstatement in the event that reinstatement is not
possible. Court finding that the dismissal was fair both substantively and
procedurally. Court however finding that Applicant is owed his pension from
commencement of his employment to date of merger. No order as to costs being
made.
1. This is a claim for unfair dismissal on the ground of operational
requirements. The brief background of the matter is that Applicant was
an employee of Respondent until his retrenchment. Unhappy with the
retrenchment, he filed a claim for unfair dismissal with the Directorate of
Dispute Prevention and Resolution (DDPR).
The matter was duly
conciliated upon but conciliation failed to resolve same. It was then
referred to this Court for adjudication.
2. In his opening statements to the claim, Applicant stated that he
challenged both the procedural and substantive aspects of his dismissal.
Substantively, he stated that there was no need for him to be trained as
he had the necessary skills. Procedurally, he stated that he was not
consulted prior to his retrenchment. Respondent case was that it had a
valid reason for retrenching Applicant as he had suggested to be
retrenched and further that he was consulted on the issue. It is against
this background that the matter was heard. Our judgment follows.
FACTS AND EVIDENCE
3. Applicant testified on his own behalf and did not have any witnesses
beyond his own evidence. Respondent led the evidence of two witnesses
namely Kuleile Thekiso and Elia Madondo. The evidence is summarised
in the following.
Page 136 of 283
Applicants case
4. Applicant testified that he is an engineer with qualifications from three
universities. He is the founder of Econet Ezi Cell Lesotho. He did his
engineering in the United Kingdom at the University of Liverpool. In his
studies at Liverpool University, he did subjects in both mobile and fixed
telecommunications. He also did a number of courses in different aspects
of telecommunications, while in the employ of Respondent.
5. He further testified that he lectured on a part time basis at the National
University of Lesotho, due to his skills and knowledge in
telecommunications studies. He has also designed and provided a mobile
solution to the Lesotho Highlands Development Authority, in its phase 2
project. He added that he was trained in China on converged networks,
where he also did mobile communications. Owing to his skill and
knowledge, he designed a technology master plan for Respondent.
6. He also testified that his skills and knowledge are sufficient for the
operations of Respondent and do not need to be developed. He stated
that in 2009, a skills audit was conducted within Respondent and he was
found to have adequate skills and knowledge. Further that even the
Respondent performance management system bore prove of this, as he
always scored beyond the target.
7. He stated that the secondment that led to his retrenchment was not
genuine but meant to disadvantage him, and possibly force him out of
Respondent employ. He added that he is led to believe this by the fact
that, not only did he not lack skill and knowledge, but that the terms of
his secondment contract were inferior to those of the initial contract with
Respondent. He stated that his initial contract had pension, medical aid
and more leave days than the new one.
8. He testified that after being told that he was going on secondment, he
tried to appeal the decision to the Respondent Chief Executive Officer. He
stated that rather than to address his appeal, the Chief Executive Officer
diverted his attention to the ending of the employment relationship
between parties. He added that thereafter he was terminated by way of a
retrenchment, which he only learnt of in his letter of termination.
9. Applicant asked to be reinstated into his former position in terms of
section 73 of the Labour Code Order 24 of 1992, as it still existed. In the
alternative, he asked to be paid an amount equivalent to his 2 years
which was the remaining period up to the end of his contract, his
severance payment in the sum of M678,510-00, from 1989 when he
joined Respondent to date of end of contract. He also claimed his pension
from 1989 up to 2008, as he was only paid pension from 2008 to date of
termination. His pension claim is M100,585.16.
10. He also asked for his performance bonus for the years 2010, 2011,
2012 and 2013. His claims are M105,007, M118,407, M133,515 and
Page 137 of 283
M150,552 respectively. He also claimed payment of his membership to

the South African Institute of Electric Engineers, which has since lapsed
due to non-payment of the membership fee by Respondent, which was
also part of his benefits under his contract.
11. During cross examination, witness stated that he is the one that
initiated the severing of the employment relationship between parties. He
stated that he first raised the issue when asked why he had not
proceeded to Zimbabwe as directed.
He stated that at this time,
Respondent refused to accept his invitation to end the relationship.
Applicant added that even in the appeal hearing before the Chief
Executive Officer, he raised the issue of severing the relationships, if
Respondent insisted that he be seconded to Zimbabwe.
12. Applicant also stated that in his discussions with Respondent
management about his secondment, he never complained about the
terms of secondment contract being inferior to his then current contract
with Respondent. Witness furthermore testified that he was informed
that the Respondents operational requirements required that he be
seconded to Zimbabwe to acquire skills in mobile communications. He
accepted that the telecommunications industry is dynamic and thus
requires regular training. He further accepted that his contract provided
for his secondment for such purposes.
Respondents case
1st witness: Kuleile Thekiso
13. Witness works for Respondent since 2001. He was in Zimbabwe on a
secondment to acquire skills when Applicant was retrenched. They had
earlier been informed, as employees of Respondent, that there would be
exchange programs between Econet Zimbabwe and Econet Lesotho. The
reason was stated to be to acquire skills and to prepare for expansion of
Respondent network in Lesotho.
14. Himself and Applicant had been nominated for the said exchange
program to be in Zimbabwe. He stated that Applicant never took his
position in Zimbabwe. He has since come from the exchange programme
and that he heads a new department. He added that his salary has since
increased owing to his newly acquired skills and experience in mobile
networks, which he did not have before.
2nd witness: Elia Mandondo
15. Witness is the Finance Director in Respondent and a member of the
Board of Directors. He is originally from Zimbabwe. He stated that from
time to time there are exchange programs between Respondent and
Econet Ezi Cell in Zimbabwe. He stated that the purpose is to exchange
skills in the two companies, as they are sister companies.
16. He stated that before a recommendation that an employee be sent on
an exchange program, the employer first determines the need for
Page 138 of 283
acquisition of new skill.

He added that whereas the performance
management is one of the ways, there are many other ways that the
employer uses to make the determination. He stated that where a need
has been identified, a candidate is nominated for skills acquisition under
the secondment program. He stated that this was done with Applicant.
SUBMISSIONS
Applicant
17. Applicants case is that he was unfairly dismissed, in that the evidence
led clearly shows that he was dismissed for refusal to obey a lawful
instruction, and not for operational requirements of the employer. It was
argued that Respondent should have subjected Applicant to a disciplinary
hearing instead of the route taken. It was further argued that assuming
that the reason was redundancy, as Respondent has suggested, that
argument cannot stand.
It was argued that the Applicants
circumstances do not fall within the requirements for redundancy as a
reason for dismissal.
18. The court was referred to the case of Standard Lesotho Bank v Lijane
Morahanye & another LAC/CIV/A/06/08. It was submitted that a
paragraph 11 of the judgment, redundancy of an employee arises,
.....if the dismissal is wholly or mainly attributable to : (a) the fact that the
employer has ceased, or intends to cease, to carry on the business for the
purpose of which the employee was so employed, or (b) the fact that the
requirements of that business for employees to carry out work of a
particular kind or for employees to carry out work of a particular kind in the
place where they were so employed, have ceased or diminished or are
expected to cease or diminish.
It was argued that on this basis, the Respondents argument of
redundancy is misconceived.
19. It was further argued that there was no need to train Applicant. It was
submitted that Applicant evidence has shown that Applicant did not need
training, as he had already received it and had performed beyond target,
according to the performance management system of Respondent. It was
argued that this evidence was not contradicted and should be accepted as
such. The Court was referred to the case of Standard Lesotho Bank v
Morahanye & Another (supra), at paragraph 12, in support of this
proposition. It was submitted that this is evidence that there was no
reason to train Applicant, and therefore that the reason for his dismissal
was invalid.
20. It was further argued that Applicant was not consulted. It was stated
that the importance and purpose of consultation has been stated in the
cases of Standard Lesotho Bank v Morahanye (supra), at paragraph 9 of
the judgment, and in the authority of Mocholo v Lesotho Bakery (Blue
Ribbon) (Pty) Ltd LAC/A/04/04, at paragraph 23 of the judgment.
Page 139 of 283
21. Regarding the remedies sought, it was submitted that Applicant

desires to be reinstated in terms of section 73 (1) of the Labour Code
Order 24 of 1992. It was further submitted that in the event that
reinstatement is not practical, Applicant be compensated by being paid
the remainder of his contract, which is 2 years, his severance payment
and pension benefits, as claimed.
Respondents case
22. Respondent case was that there is a valid reason for the dismissal of
Applicant.
It was submitted that following the merger of the two
companies, Lesotho Telecommunications Corporation, whose business
was fixed line communications, and Econet Ezi Cell, whose business was
mobile communications, new skills were needed. This is why Applicant
needed to be seconded to Zimbabwe to acquire skills in mobile
communications.
23. It was further submitted because before the merger, Applicant had
been working in the fixed line business under the former Lesotho
Telecommunications Corporation. It was argued that in refusing to be
seconded to Zimbabwe, Applicant rendered himself redundant within the
new and emerging operations of Respondent, and not that the operations
of Respondent had ceased or diminished.
24. It was submitted that in addition to this, Applicant was the one who
initiated his own termination, which in the end Respondent had no option
but to accept, hence his ultimate termination by retrenchment. It was
added that in the period between December 2009 and September 2010
when Applicant was eventually dismissed, there had been a series of
consultations on both the secondment and his self-initiated termination.
It was said that all these serve as proof that Applicant was consulted.
25. Regarding both the performance bonus and membership to the South
African Institute of Electrical Engineers, it was submitted that they
depended on the existence of the employment relationship, which has
since stopped with the termination. About the severance payment, it was
submitted that Applicant had conceded under cross examination that it
had been paid.
26. About his reinstatement, it was submitted that it was not possible for
the reason that his position had already been taken by one Banda, since
2010. It was said that, to this, he also conceded during his cross
examination. It was added that given that there is also a valid reason for
his termination and that he was consulted, he is not entitled to either
reinstatement or compensation but that his case be dismissed.
27. It was said the requirements for a dismissal for retrenchment had
been complied with as provided for by section 19(1) of the Labour Code
(Codes of Good Practice) Notice of 2003 and the authorities of Attlantis
Diesel (Pty) Ltd v Numsa 1995 (1) B4R (1) AD; Standard Lesotho Bank v
Page 140 of 283
Morahanye (supra); Madibeng v Lesotho Bank 199 (Pty) Ltd LC/34/05; and
Mokhisa & Others v Lesotho College of Education LC/59/2005.
ANALYSIS
28. We wish to note that We accept the content of the authorities and
principles highlighted. We wish to note that a single conduct by an
employee, can give rise to a number of charges that may lead to his/her
dismissal. That is, such conduct may give rise to a single reason or a
combination of the reasons for dismissal recognised under section 66 (1)
of the Labour Code Order (supra). This means that from a single conduct,
an employer can be charged of either incapacity, misconduct or
operational requirements of the employer. This is essence means that
Respondent was not bound in law to charge and/or dismiss Applicant on
the ground of misconduct for refusal to obey an instruction, even if his
conduct amount to that.
29. Further, We note and accept the definition of redundancy as shown by
Applicant from the authority of Standard Lesotho Bank v Lijane
Morahanye (supra). However, We are satisfied that it was not used in the
context that Respondent suggests. The legal definition is focused on the
circumstances of the employer, while in casu it has been used to refer to
the circumstances of the employee. The reason is not hard to find as
normally, retrenchment is at the instance of the employer while in casu
evidence has proven it to have been at the instance of the employee, being
Applicant.
30. While it has not been disputed that Applicant performed beyond
targets, the Respondent has been able to satisfy Us that with the merger,
there was a need for new skills hence the need to second Applicant to
Zimbabwe. We say this because it has also not been disputed that
Respondent initially offered fixed line communications, and that mobile
communications only came with the merger. We are further fortified in
this view by the Applicants acceptance that the communications industry
is dynamic and that it requires constant training.
31. Regarding consultations, evidence has shown that there were meetings
and correspondence in the form of letters where both the secondment and
termination were discussed.
This is Our view was consultation
contemplated by the Codes of Good Practice (supra), and the authorities
cited by parties. The decision to terminate Applicant was borne by the
meetings and correspondence, which according to evidence started
immediately after Applicant was eventually terminated.
32. About the performance bonus and membership fees, We agree with
Respondent that they depended on the continued employment
relationship. This in essence means they can only be due beyond
Applicants termination, if we uphold his claim of unfair dismissal. About
the severance payment claim, We confirm that during cross examination,
Applicant conceded that it was paid. However, what has not been
Page 141 of 283
disputed is the payment of Applicants pension from 1989 to 2008. This

thus means that Respondent accepts it as claimed. We are persuaded by
the authority in Standard Lesotho Bank v Morahanye (supra) to this view.
33. About reinstatement and compensation, these remedies are only
awarded where the dismissal is found to be unfair. On the strength of
the reasons advanced above, We find the dismissal of Applicant to have
been fair both substantively and procedurally. The employer determined
that the needed to be trained in order to fit within its new structure. His
refusal to be trained rendered him redundant. He was consulted from the
time that he was told to on a secondment until his ultimate termination.
He is however, in Our view entitled to his pension from 1989 to 2008, in
the sum of M100, 585-16, which has not been disputed by Respondent.
AWARD
We therefore make an award in the following:
a) That the dismissal of Applicant is fair both substantively and
procedurally.
b) Respondent is ordered to pay Applicant his pension in the sum of M100,
585-16.
c) Payment to be made within 30 days of issuance herewith.
THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF AUGUST
2015.
T C RAMOSEME
MRS. MALOISANE
MR KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. PHEKO
MR. LETSIKA
Page 142 of 283

HELD AT MASERU
LC/93/2014

LESOTHO CLOTHING & ALLIED
WORKERS UNION O.B.O. MAPHOKOANE
NKOKO &1485 OTHERS
APPLICANT
AND
JONSSON MANUFACTURING (PTY) LTD
RESPONDENT
JUDGMENT
Claims for payment of union dues in terms of section 85 of the Labour Code
Order 24 of 1992. Court finding that Applicants claims are for unpaid monies
due under the Act. Court finding that the Applicants claims fall within the
jurisdiction of the DDPR in terms of section 226(2) of the Labour Code
(Amendment) Act 3 of 2000. Court also declining jurisdiction. The principle of
incidental jurisdiction discussed. No order as to costs being made.
1. This is a claim for an order directing the Respondent to deduct monies
from the wages of its employees, Applicant members, as union dues. The
claim has been referred in terms of section 85(2) (g) (iv) of the Labour
Code Order 24 of 1992. According to Applicant, the employees of
Respondent in question have given their written consent for the
Respondent to deduct certain monies and pay them over to Applicant as
union dues. Respondent strongly opposes the case and in addition, has
raised a point in limine.
2. In terms of the point in limine raised, Respondent argues that this matter
should have been referred to the Directorate of Dispute Prevention and
Resolution (DDPR) for conciliation, before it could be brought to this
Court. Applicants also opposed the point in limine. We gave both parties
the opportunity to address Us and having heard them, Our judgment
follows.
3. According to Respondent, all claims that must be brought before this
Court for adjudication must first be conciliated upon, in terms of section
227 of the Labour Code (Amendment) Act 3 of 2000. It was argued that
the matter at hand, has not been conciliated upon, contrary to the
provisions of section 227. It was submitted that evident to this is the fact
Page 143 of 283
that no certificate or report of non-resolution from the DDPR, has been

filed with the Court.
4. It was added that while in the case of Lesotho Highlands Development
Authority v Tsotang Ntjebe C of A (CIV) 7/2012, the Court states that the
provisions of section 227 are permissive, but that is only in so far as
claims referred under section 226(1) of the Labour code (Amendment) Act
(supra), are concerned. It was argued that the matter at hand has been
referred in terms of section 85 of the Labour Code Order (supra) and
should therefore have been referred to the DDPR for conciliation.
5. Applicant answered that the claim was referred to the DDPR under
referral number C050/2011. Further that in that claim, Respondent had
argued that the DDPR did not have jurisdiction, which contention was
upheld by the learned Arbitrator. A copy of the award was handed in
from the bar, with no objection from Respondent. It was argued that
Respondent cannot now be heard to argue that the DDPR has jurisdiction
at this point.
6. It was further argued that a claim under section 85 of the Labour Code
Order (supra), falls within the jurisdiction of this Court as it is a dispute
of right. It was argued that in determining this matter, this Court would
have to interpret section 85, which power the DDPR does not have. It
was submitted that such power lies with this Court in terms of section
226(1) of the Labour Code (Amendment) Act (supra).
7. Respondent replied that the claim in referral C050/2011 is different from
the current claim. It was argued that in C050/2011, the claim related to
the conciliation of a check off facility, while the current claim related to
an order directing Respondent to make deductions in terms of section 85
of the Labour Code Order (supra). It was reiterated that a section 85
claim, must be conciliated first, as it falls within the exception to the
principle in the Lesotho Highlands Development Authority v Tsotang Ntjebe
(supra) authority.
8. In terms of section 85 (2) (a) (iv) of the Labour code Order (supra),
(2) In accordance with obligations imposed by any written law or with the
written comment of the employee, deductions may be made from the wages
of such employee for the purposes of
(a) payment by the employer on the employees behalf of
(iv) such amounts as are provided for a trade union dues or
contributions under the provisions of any collective agreement or
arbitration award between a trade union and the employer or an
organisation of employers of which the employer is a member; and
9. Clearly, section 85 (2) (a) (iv), provides for the right, on the part of the
employee, to authorise a deduction of monies towards the satisfaction of
their union dues. It also vests a right on the union to be the recipient of
Page 144 of 283
such monies where authorisation has been made in terms of this section.
Consequently, failure to make such deductions and to forward them to
the union gives rise to a claim for unpaid monies.
10. In terms of section 226(2)(c) of the Labour Code (Amendment) Act
(supra), the DDPR has jurisdiction to hear and determine by arbitration
the following disputes,
a dispute concerning the underpayment or non-payment of monies due
Discernibly, given that the claim at hand is an unpaid monies claim, it
falls within the jurisdiction of the DDPR.
11. While We concede that the authority in the case of Lesotho Highlands
Development Authority v Tsotang Ntjebe (supra), makes it uncompelled for
a party to refer a dispute referred under section 226 (1) for conciliation, it
is inapplicable in casu. We say this because, We have shown that the
dispute at hand is not a section 226 (1) dispute or one that should be
resolved by adjudication before this Court, but rather a claim for unpaid
monies. What should happen is that Applicants must refer their claims
with the DDPR under section 226 (2) of the Labour Code (Amendment) Act
(supra), and that the claims be conciliated upon in terms of section 227
(4) of the Labour Code (Amendment) Act (supra).
12. We wish to comment that We have gone through the arbitral award in
referral C050/2011. We do confirm, as Respondent has put, that the two
claims were and are different even now. In casu, Applicants are asking
that Respondent be ordered to make deductions from wages of employees
and pay them over to them. In C050/2011, Applicants were asking the
learned Arbitrator to declare the cancellation of a check off facility invalid.
Clearly the claims were and are still different.
13. We wish to further comment that the mere fact that the DDPR, in
determining a claim brought duly before it, would have to deal issues that
it would ordinarily not have jurisdiction if individually referred, does not
divest it of its jurisdiction over a duly referred claim. The DDPR would be
seized with incidental jurisdiction over such issues. We have addressed
this in a number of decisions this far (see Kabelo Teisi v Minopex Lesotho
(Pty) Ltd LC/56/2013, Mathabiso Sibolla & others v Tepo ea Sechaba (Pty)
Ltd t/a Pay n Save LC/14/2015).
Page 145 of 283
AWARD
a) That this Court has no jurisdiction over Applicants claims;
b) Applicants are at liberty to refer their claims with the DDPR;
c) Should they elect to do so, they must within 30 days of issuance
herewith; and
d) No order as to costs is made.
2015.
T C RAMOSEME
MRS. MOSEHLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. TLAPANA
ADV. NTAOTE
Page 146 of 283

HELD AT MASERU
LC/03/2012

MOTHAE MOLETSANE
METSING TEHLA
1st APPLICANT
2nd APPLICANT
AND
POPULATION SERVICES INTERNATIONAL
RESPONDENT
JUDGMENT
Claims for unfair dismissal for operational requirements of the employer.
Applicants challenging both the procedural and substantive aspect of their
dismissals. Respondent settling claims of 2nd Applicant and proceeding into
evidence and arguments in respect of 1st Applicant claims. Court finding that
1st Applicant was not consulted and that no valid reason has been stated for
his retrenchment. Court awarding compensation and making no order as to
costs.
1. These are claims for unfair dismissal for operational reasons of the
employer. Applicants, initially, two in number, claimed to have been
unfairly dismissed in that they were not consulted on this decision.
2. The brief background of the matter is that Applicants were employees of
Respondent until they were terminated by way of retrenchment.
Unhappy with their terminations, they referred a dispute with the
Directorate of Prevention and Resolution (DDPR). The matter was duly
conciliated upon but without success. Conciliation having failed, the
matter was then referred to this Court for adjudication.
3. However, prior to the commencement of these proceedings, parties
announced that a settlement agreement had been reached between the
2nd Applicant and Respondent and sought for it to be made an order of
this Court. The settlement was accordingly noted and made an order of
court, and the matter was heard in the merits only in respect of the 1st
Applicant.
4. In his opening statements, Applicant stated that he challenged both the
procedural and substantive aspects of his termination. He specifically
claimed not to have been consulted when the new structure, which led to
his retrenchment, was made. Further that the operational reasons were
not real as funding had been secured by Respondent. Respondents
Page 147 of 283
reaction was that consultations had been duly held and that applicant
was involved. Further that funding which came did not have Applicants
position in its structure. It was on these bases that the matter was
heard. Our judgment therefore follows.
EVIDENCE AND FACTS
5. The evidence of three witnesses was led on behalf of Applicant, including
himself, while only two witnesses were led on behalf of the Respondent.
Applicant and his two witnesses Metsing Tehla and Thato Mxakaza
testified, while Fumane Tehlana and Mampe Mohale testified for
respondent. The evidence is summarised in the following.
Applicants evidence
6. Applicant testified that sometime in February 2011, all Respondent staff
was called to a meeting where they were told that Respondent had
financial problems. They were told that the remaining funds would only
carry them halfway through the year. They were asked to come up with
solutions to stretch the available funds to the end of the year, when
funding would be available.
7. Out of that meeting, a committee was set up to act as a link between
management and the employees on suggestions. Through the committee,
it was suggested that employees work on a two week rotational basis in
which case, they would only be entitled to half pay. The suggestion was
then accepted and adopted by Respondent management. This practice
was to go on until August 2011, and it came to be known as the stretch
option. There was also a condition to the practice, namely that by the
31st July 2011, all staff would be informed if the expected funding would
result in continuity, competitive retrenchment or termination of jobs,
which however, did not happen.
8. Thereafter all staff was invited to the Respondent headquarters to come
and celebrate the availability of funds, as well as the extension of the
Respondent project life. This was sometime in August 2011. At the
celebration assembly, staff was told that the structure of Respondent had
changed and that some of the old positions had been phased out. The
new structure was shown to all staff and all those whose positions had
been phased out, were told to apply for positions in the new structure.
9. Applicant added that before this day, the issue of the structure was never
discussed with them as employees and that for this reason, their
retrenchment, which was influenced by this change, was unfair. He
prayed for compensation of an amount equal to 12 months salaries, being
6 months for substantive and 6 months for the procedural aspect. He
was dismissed on the 31st September 2011. He stated that since his
dismissal, he looked for alternative employment and only succeeded in
April 2012, at the Transformation Resource Centre where he works to
date. He stated that he currently earns the salary of M14,000-00. He
was therefore out of employment for only 7 months.
Page 148 of 283
Applicant 1st Witness

Metsing Tehla
10. He was employed by Respondent at the time of the incidents in
question. He was the 2nd Applicant in these proceedings until his claim
was settled. He knows the incidents that led to the termination of
Applicant. According to him sometime in February 2011, Respondent
management held a meeting with staff where they were all informed that
Respondent had financial problems. In that meeting, sub-committees
with staff representatives were established to come up with ways to
stretch the available funds, until Respondent was able to obtain new
funding.
11. The committees made suggestions to management which included the
option for staff to work for two weeks in a month and get paid half salary,
that is, the stretch option. This practice was to be adopted from April
2011 to August 2011, which was the anticipated date of award of
funding.
12. On the 22nd August 2011, witness was called to a meeting at the
headquarters where a new structure was presented to him. He was told
at this stage that his position had been affected by this change and that
he would have to apply for new positions. He was called to this meeting
after being earlier invited to a celebration assembly for both the award of
funds and the extension of the respondent project, which was to proceed
on the day following the day of his meeting.
13. On date of the celebration, the new structure was presented to all the
employees, who were all very stunned at their new discovery. Witness
added that they were particularly stunned because the structure was
never discussed with them and no employee inputs were solicited when it
was made. He stated that what had only happened, was that Respondent
had hinted that new funding could lead to either competitive
retrenchment, continuity or termination. Employees had been promised
direction on either of three options not later than 31st July 2011, which
did not happen.
Applicant 2nd Witness
Thato Mxakaza
14. Witness was Site Manager at Respondent from 1st November 2010 to
31st October 2011. According to witness, all Respondent staff was invited
to a meeting sometime in February 2011 where they were told that
Respondent had financial problems. A decision was later taken to adopt
the stretch practice, with the view to stretch the funds until new funding
had come.
15. Sometime in August 2011, all staff was informed that funds were
available and that Respondent project would go on for another five years.
All staff was invited to celebrate this achievement at the Respondent
headquarters. At the ceremony assembly a new structure was presented
Page 149 of 283
to staff. In terms of the structure some of the positions had been phased
out and all those affected employees were advised to apply for new
positions. The new structure was never discussed with employees and
they were only seeing it for the first time at the celebration.
Respondent case
1st witness: Fumane Tehlana
16. She was the Deputy Country Representative at Respondent until June
2012. She stated that in February 2011, they held a staff meeting to
inform all Respondent employees that Respondent had financial problems
as funds were running out. In that meeting, sub-committees were set
and they were made up of staff representatives. The purpose was for
them to come up with suggestions to stretch the available funding, and to
come up with suggestions on a way forward, when funding came.
17. Suggestions were that the stretch practice be adopted and that staff
should expect either continuity, competitive retrenchment or termination,
when funding came, and depending on its conditions. When funding
came the structure had also changed and that it affected some of the old
positions including that of Applicant. She stated that Applicant was told
to apply, which he did but did not succeed to get a position in the new
structure.
18. She further testified that the new structure was designed by
Respondent management, when it made proposals for funding with the
donor. Further that applicant and his former colleagues were not
consulted on the structure. She stated that this was because the final
decision on the structure rested with the donor. She added that this is
why all staff only learnt about it on the 23rd August 2011, in the
celebration assembly.
She also testified that the termination of
Applicants position was suggested by Respondent management in their
proposal for funding. Annexures A J were submitted in support of the
Respondents case.
2nd Witness: Mampe Mohale
19. Witness testified that she is the HTC Programme Manager at
Respondent. According to her, sometime early 2011, Respondent realised
that it was running out of funds. As a direct consequence, all staff was
then called to a meeting where they were appraised of this, and given a
chance to suggest solutions.
20. Out of that meeting, there were suggestions that Respondent adopt the
stretch practice. It was further communicated to staff that, when funding
comes later, they should expect to either competed for position, to
continue with employment of termination of their employment, depending
on the terms of the expected funding. Respondent management was to
give all staff feedback on one of the three expectations, not later than 31st
July 2011.
Page 150 of 283
21. Witness added that when funding came, some of the old positions were
phased out. Those affected were told to apply for positions in the new
structure. She stated that the structure which affected those positions,
had been designed by Respondent management and the donor, and that
no employees were involved in the exercise, except those in management.
She stated that the Respondent management is the one that suggested
the changes in the structure.
22. Witness further testified that employees learnt at the ceremony
assembly about the new structure, as it was never discussed before. She
stated that in her opinion, it was unfair for Respondent to have treated its
employees in this fashion, particularly because staff was attending the
assembly to celebrate the award and the extension of the Respondent
project.
SUBMISSIONS
23. Applicants case, on the one hand, is that in terms of section 19(1) of
the Labour code (Codes of Good Practice) Notice of 2003, a retrenchment is
defined as follows,
....a dismissal arising from a redundancy caused by the re-organisation of
the business or the discontinuance or reduction of the business for
economic or technological reasons.
24. Further that section 19(4) of the Codes of Good Practice (supra),
provides that an employer contemplating to retrench its employees has
obligations which are both procedural and substantive. It was added that
the purpose of the obligation is to get parties to engage in a joint problem
solving exercise towards the problems that face them both. It was said
that the exercise is called consultation. The Court was referred to the
cases of Atlantis Diesel Engines (Pty) Ltd v Numsa 1995 1 BLLR 1 (AD);
Standard Lesotho Bank v Morahanye LAC/CIV/A/06/2008; Madibeng v
Lesotho Bank 1999 (Pty) Ltd LC/34/2005; and Mokhisa & Others v
Lesotho College of Education LC/59/2005, in support of the above
proposition.
25. It was argued that Respondent was under a duty to consult Applicant
on the structure, when it became aware that it could change and affect
his position. It was said this was particularly so because the structure
was designed by Respondent at which point, it already did not have
Applicants position. It was prayed that the Court award 6 months
salaries as compensation for the breach of procedure.
26. It was further argued that Respondent failed to show the substantive
fairness of the retrenchment. It was submitted that Respondent has
among others not shown that the retrenchment or elimination of
Applicants position was necessary, and the reason behind that necessity.
Applicant further asked for 6 months compensation for the substantive
aspect. It was added that the absence of a valid reason shows a breach
on the part of Respondent. It was also submitted that Applicant has
Page 151 of 283
complied with section 73(2) of the Labour Code Order 24 of 1992 by

seeking alternative employment and alternatively finding one with the
Transformation Resource Centre.
27. Respondents case, on the other hand, was that they conceded that
Applicant was not consulted on the structure. It was argued that the
final determination of the structure lies with the donor and that it would
have been an academic exercise to have consulted on something in
respect of which they had no final say. It was argued that it not trite law
that consultation must only be made where they would be meaningful.
28. The Court was referred to the case of Mirabel & Others v Manchu
Consulting CC (1999) 20 ILJ 1718 (LAC), for the proposition. It was
argued that in this authority the Court stated that courts must not
intervene in the decisions of the employer merely because, there was an
alternative option or approach, but that approach must have been
capable of avoiding a dismissal.
It was submitted that in casu,
consultation could not have avoided dismissal, as there was no funding
and the applicants position was not in the new structure.
29. It was submitted that, that notwithstanding, Applicant was consulted
both directly and through sub-committees, hence the decision to adopt a
stretch practice and the promise by the Respondent to communicate if
the employees would continue to work, be on a competitive retrenchment
or be terminated. It was argued that Respondent has in its conduct
complied with the criteria agreed upon, which involved one of the three
possibilities mentioned. It was maintained that no procedure has been
breached.
30. It was further argued that Applicant is an unreliable witness and that
his evidence be approached with caution. It was stated in amplification
that Applicant denied obvious facts merely to advance his case. It was
said that he claimed not to have been consulted on the three options, that
is, continuity, competitive retrenchment or termination. It further said he
denied that it was his region that suggested the stretch practice when
other witnesses suggested that it was. It was added that Applicant
further painted a picture that he was not offered employment in the new
structure when he was.
ANALYSIS
31. We wish to comment that We note and accept the authorities cited by
both Applicant and Respondent in support of their cases, including the
principles highlighted therein. We confirm that it is common cause that
Applicant was not consulted on the new structure which phased out his
position. Clearly, this conduct of the Respondent was in breach of both
the dictates and the spirit of section 19 of the Codes of Good Practice
(supra). Rather than to engage in a joint problem solving exercise
contemplated therein, the Respondent
unilaterally addressed the
Page 152 of 283
problem that was common to parties and this resulted in injustices. A

similar view is shared by Respondent witness, one Mampe Mohale.
32. While Respondent has attempted to argue that consultation was
unnecessary in casu, as it would have been merely academic, We hold a
different view. In fact, We agree that it would have been fruitful
particularly because the structure in issue was suggested by Respondent
to the donor. This however, is not to be construed to mean that where
the structure is the exclusive determination of the donor, then
consultations are not necessary. Consultations will always be a prime
requirement in retrenchments as these types of dismissals are no fault of
employees. It is thus Our view that the principle in Mirabel & Others v
Manchu Consulting CC (supra), does not apply in casu.
33. We wish to add that, to this end, it has not even been suggested that
the suggested structure was modified by the donor, which further fortifies
Our attitude that consultations would not have been academic but
meaningful.
This suggests to Us that the structure proposed by
Applicant was taken, accepted and implemented by the donor in
awarding funds to Respondent, as sought. Evidently, Respondent bears
the full responsibility for what befell Applicant, for the results were of its
own making.
34. We wish to further add that We note that Respondent has attempted
to avoid the breach of procedure by conducting consultations as soon as
it realised that it had funding problems. This however does not exonerate
them from liability for breach of procedure, but will only count in its
favour towards the determination of the compensation amount to be
awarded to Applicant.
35. It has been suggested that Applicant was an unreliable witness. The
basis of the claim is unfounded in law. We say this because, according to
Respondent, Applicant must be taken to be unreliable merely because his
evidence disagrees with that of his witnesses. This cannot make a case
for that claim. To succeed, one must show among others that a witness
gave contradicting versions of his evidence, or that he left gaps in his
evidence that can only render it to be judged as lies. This is not the case
in casu.
36. It has been suggested by Applicant that he has complied with section
73(2) of the Labour Code Order (supra), by mitigating his loss. This
requirement of law has been endorsed by this Court in the case of Moleko
Electrical Contractors v Labour Commissioner o.b.o Mokete Toeu
LC/REV/20/08. In this authority, the Court had the following to say in
relation to mitigation of loss,
The duty to mitigate entails that the party who has suffered damages as a
consequence of the breach of the contract is under a duty to take
reasonable steps to ensure that his original loss is contained.
Page 153 of 283
37. Applicant has shown that he mitigate his loss by seeking alternative
employment. He has shown to Our satisfaction that as a result of his
efforts, he was only out of employment for 7 months as he was able to
obtain employment by April 2012. We accept the claim readily more so
because, it has not even disputed by Respondent. It is trite law that what
has not been disputed must be accept as a true and accurate position of
events (see Lenka Mapiloko v Pioneer Seed (RSA) and others
LAC/A/08/08; Theko v Commissioner of Police and Another LAC (1990-94)
239 at 242; Small v Smith 1954 (3) SA 434 (SWA) at 438E-F)
38. Applicant has also claimed that Respondent breached his contract by
retrenching him without a valid reason. He has argued that no reason
has been shown that his position was no longer needed and why. We
agree with Applicant because the reason given by Respondent does not
address this aspect. It merely speaks to unavailability of funds which
was no longer the case when Applicant was retrenched. Respondent
further speaks to the new structure, which was its design without
justifying why it had to do away with Applicants position. We therefore
find that Respondent acted in breach of the contract.
39. Applicant has asked for 6 months compensation for procedural breach
and 6 months for substantive breach. While We concede that both the
procedure and substance have been breached, We have taken into
consideration an attempt by Respondent to comply at least, with the
procedural aspect. However, because the intention is not to encourage
parties to breach rules by merely attempting to comply with them, We will
award compensation, with the intention among others to discourage such
behaviour.
40. We have found satisfactory justification in the request for an amount
equivalent to 12 months salaries as compensation. We find it befitting for
the circumstance of the Applicants termination. However, We have
resolved to make an award of 10 months salary, instead of the 12
months sought, in favour of Applicant for both the substantive and
procedural aspect of the dismissal. We are driven by the considerations
which We will explain hereunder.
41. We are aware that Respondent is donor funded. However, this does
not in any way exonerate it from its legal obligations as an employer in
dealing with affairs of its employees. It must at all times comply with the
legal requirements in its trade. We are of the view that We would be
setting a very ruinous precedent if We were to refrain from making this
order, merely on the ground that Respondent is donor funded. In spite of
its circumstances, Respondent must dance to its own music.
42. The ten months award is not meant to unfairly enrich Applicant, but
to compensate him and discourage unlawful conduct on the part of not
Page 154 of 283
only the current Respondent but employers even in future. The 10

months award is computed as follows:
M11,111,00 (Applicants salary at termination) x 10 = M111,111,00.
AWARD
b) That Respondent pay an amount of M111,111-00 to Applicant as
compensation.
c) The amount to be paid within 30 days of issuance herewith.
2015.
T C RAMOSEME
MR. MATELA
MRS. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. LETSIKA
ADV. MOSHOESHOE
Page 155 of 283

HELD AT MASERU
LC/28/2015

TEBOHO MAEMA
APPLICANT
AND
THE ROSEHIP COMPANY
RESPONDENT
JUDGMENT
Claim for unfair dismissal on grounds of operational requirements of the
employer. An attorney seeking postponement of the matter without proof of
authorisation. Court finding that attorney has no right of appearance and
rejecting the application for postponement. The principle Court directing that
the matter proceed in the merits. Court finding in favour of Applicant. No order
as to costs being made. Principles considered importance of authority to
represent; and principle of ignorance of the law.
1. This is a claim for unfair dismissal borne by an alleged retrenchment of
Applicant. The matter has been duly conciliated upon but without
success. It has been brought before this Court pursuant to section 227
(5) of the Labour Code (Amendment) Act 3 of 2000.
Respondent until his retrenchment. He referred a claim for unfair
(DDPR). Conciliation having failed, he initiated the current proceeding
with this Court. The matter was duly set down for this day.
3. On this day, Respondent representative, allegedly one Mr. Mosuoe of
Mosuoe and Associates, appeared before Court to seek a postponement of
the matter. The postponement application was strongly opposed by
Applicant representative, Adv. Nono. We then directed parties to address
Us on same, and thereafter delivered a ruling. Our ruling was to dismiss
the postponement and directing that the matter proceed into the merits.
4. We wish to note that when the matter was set down for hearing, the idea
was to have it heard in default of Respondent, at least on the part of the
Applicant. On the date of hearing, Mr. Mosuoe filed an answer and
proceeded to apply for a postponement. The answer addressed the merits
of the main claim and not the application for the matter to be heard in
Page 156 of 283
Respondents default. Below are Our reasons for refusing to grant the
application for postponement and the making of the subsequent order.
Application for postponement
5. Mr. Mosuoe applied for a postponement of the matter for three main
reasons. Firstly, he stated that his client, who was to lead evidence, had
not been able to attend on account of unforeseen business meetings.
Secondly, that his client wanted to reconsider its position to see if it could
settle the matter. Thirdly, that the fact that an appearance had been
made, showed an intention to defend the matter. It was added that if the
application for postponement would not be granted, it would offend the
rules of natural justice, particularly the right to be heard.
6. Adv. Nono for Applicant answered that Mr. Mosuoe had no authority to
appear on behalf of Respondent as none had been filed. He argued that
the Rules of this Court require the filing of an authority to represent,
where a legal practitioner appeared on behalf of a party. Further
reference was made to the case of Mamateliso Toana & 61 Others v
Nien Hsing International (Pty) & Another LAC/REV/05/2011, at para 23
on page 8.
7. It was submitted that in the above authority, the Labour Appeal Court
emphasised the purpose and importance of an authority to represent. It
was submitted that the Court stated that an authority to represent is not
just a formality, but a document that determines the legal standing of a
legal representative. It was prayed on this note that the application for
postponement be rejected, as Mr. Mosuoe has no legal standing to appear
and make same.
8. It was added that assuming that Mr. Mosuoe was properly before Court,
the answer filed on behalf of Respondent is contrary to Rule 5 of the
Rules of this Court. It was stated that Rule 5 states that an answer shall
be in accordance with form LC2, which appears in part A of the schedule
to the Rules of this Court. It was added that form LC2 requires that a
Respondent party sign the answer and not the representative.
9. It was submitted that contrary to Rule 5, the answer in casu has been
signed by the alleged representative, Mr. Mosuoe of Mosue and
Associates, whom Applicant contested that he has been authorised to
appear. It was added that worse still, was the fact that even the intention
to oppose did not make reference to either Mr. Mosuoe or even Mosuoe
and Associates, but to one Herman Nieumoud, as the one who would
attest to the answer. It was submitted this is further evidence of lack of
authorisation to appear.
10. It was further argued that even assuming that Mr. Musuoe was to be
found to be properly before Court, and that the answer was properly
signed, it had however been filed out of time. It was stated that in terms
Page 157 of 283
of Rule 5 of the Rules of this Court, an answer must be filed within 14

days of receipt of the Originating Application. It was stated that 14 days
from date of receipt have since lapsed and this was assuming the
Originating Application was received on the 9th June 2015. The 9th June
2015 is the date on which the intention to oppose was filed, while the
answer was only filed on the 13th August 2015.
11. It was argued that in the circumstances, the answer should have been
accompanied by an application for condonation for its late filing, failing
which this Court had no jurisdiction to even consider it. The Court was
referred to the case of Lesotho Highlands Development Authority v Motumi
Ralejoe & Others LAC/CIV/A/03/2006, in support of the proposition. It
was stated that in this case, the Court stated that a condonation must be
made for any step taken against the Rules, as soon as that is known.
12. Applicant further submitted that even if both the answer and
appearance were to be accepted, the granting of a postponement is at the
discretion of the Court, which discretion must be exercised judiciously. It
was said that the requirements in such application are why the
proceedings should not go on and if it would be wrong to proceed with the
matter without hearing both parties. It was submitted that because there
is no answer, no injustice would be done to Respondent, which
essentially meant that it would not be wrong to proceed without hearing
Respondent. It was added that the approach finds support under Rule 14
of the Rules of this Court.
13. It was further submitted that should the Court grant the
postponement, that it should be with costs at a punitive scale of attorney
and own client scale. It was submitted in amplification that Respondent
had broken every rule of Court, and that it had caused Applicant to
unnecessarily come to Court and incur costs from his representative for
appearance.
14. Regarding the alleged desire to settle the matter, Applicant submitted
that the conciliating process was tried but that it failed. Further that the
claim about conciliation was not genuine but purely raised to influence
the Court to postpone the matter. Further that Applicant was not
interested in going over the process again.
15. Respondent replied that in the initial conciliation process, Respondent
was not legally represented. It was argued that owing to the present legal
representations, there were good prospects of settlement. About the case
of Lesotho Highlands Development Authority v Motumi Ralejoe & Others
(supra), it was argued that the Court made reference to knowledge on the
part of the party that has breached a rule. It was submitted that
Respondent did not know that it had breached the Rules and therefore
that the authority was not applicable to the matter.
Page 158 of 283
16. Regarding the authority to represent, it was argued that Respondent

appointed one Thesele Leshota, who is the General Manager at
Respondent. Reference was made to the authority to represent filed of
record on the 9th June 2015. It was argued that Respondent having
appointed its General Manager to represent it, it was not necessary for
the Respondent or even the General Manager to further file an authority
appointing Mosuoe and Associates. It was submitted that there is no
breach of any Rule, in that sense.
17. About the costs, Mr. Mosuoe simply replied that Respondent was not
willing to pay any, particularly after Applicant refused to accept costs for
the day on an ordinary scale, earlier when voluntarily offered by Mr
Mosuoe. It was added that costs are not even necessary in this case.
18. We will start by addressing the technical arguments of parties before
addressing the merits of the application for postponement. It had been
argued that Mr. Mosuoe had no legal standing to appear. We do confirm
that the Rules of this Court require that where a party is represented by a
legal practitioner, an authority to represent that complies with form LC6,
should be filed.
19. The provisions of Rule 26 of the Rules of this Court, which Rule is on
representation of parties, are mandatory. They are couched as follows,
Where a party is represented by a legal practitioner, or any of the persons
specified in section 28 (1) (a) of the Code, that party shall file in court a
written authority for such representation in or substantially in accordance
with form L6 contained in part A of the schedule.
20. We have also considered the authority of Mamatseliso Toana & 61
Others v Nien Hsing International (Pty) Ltd & another (supra). At para 23
of the judgment, the learned Musi AJA is recorded as follows,
The need for and importance of a proper authority to represent cannot be
over emphasised. It is not merely a formality that must be complied with.
It determines whether a person has standing to represent another. In the
absence of a proper mandate to represent, one cannot say that FAWU was
authorised...
In essence, We agree with Applicant that without an authority to
represent, Mr. Mosuoe has no legal standing to appear on behalf of
Respondent.
21. Regarding non-compliance with Rule 5 of the Rules of this Court, We
agree and confirm Applicants arguments. Rule 5, which is couched in
mandatory terms, provides that once a party has elected to defend a
claim, an answer be filed within 14 days of receipt of the Originating
Application and in accordance with Form LC2. As rightly alleged by
Applicant, form LC2 requires that a Respondent party and not its
representative attest to the answer.
Page 159 of 283
22. The provisions of Rule 5 are couched as follows:

A respondent may within 14 days of receipt by him of a copy of the
Originating Application, enter appearance to the proceedings by means of
presenting, or delivering by registered post, to the Registrar and to the
applicant an answer to the Originating Application, which shall be in
writing in or substantially in accordance with Form LC2 contained in Part A
of the Schedule and which shall set out the grounds on which the
respondent intends to oppose the application.
23. We have also considered the intention to oppose the Originating
Application. We do confirm that it makes no reference to Mosuoe and
Associates, or even Mr. Mosuoe. Rather it makes reference to one
Herman Nieumoud. In Our view, had the intention to oppose mentioned
Mosuoe and Associates, We may have been influenced into accepting it as
proper signs of authorisation.
24. We note and accept that filing the answer after 14 days, as
Respondent has allegedly done, is contrary to the Rules. While Mr.
Mosuoe has attempted to claim ignorance on the part of Respondent
officers, the claim cannot sustain. We say this because the answer has
been prepared and filed by Mosuoe and Associates Attorneys, and not
Respondent officers. Mr Mosuoe cannot therefore claim to have been
ignorant of this legal position, particularly because ignorance of the law is
not an excuse, over and above the fact that Mr. Mosuoe is an attorney at
law. We also note and accept the authority of Lesotho Highlands
Development Authority v Motumi Ralejoe & Others (supra), as referenced by
Applicant on this point.
25. Regarding the merit of the postponement application, We agree that it
is granted at the judiciously exercised discretion of the Court. We wish to
add that a postponement is not a right but an indulgence that the court
gives to parties, which is dependent on there being a good reason for its
granting (see Chun Chu Enterprises (Pty) Ltd v Seqokofa & Another
LC/REV/532/2006).
26. Respondent has given three reasons for the request. The second
reason, by order of narration, falls off on the basis of the fact that
Applicant is not interested in attempting conciliation, a process that he
cannot be compelled into. The first reason would lead to a ruinous
precedent if a postponement were to be granted on its basis. Respondent
has shown that it places most of the priority on its personal affairs, over
the call of the Court. The situation should be vice versa, for if not, it
would mean that the business of the Court can be suspended on account
of personal reasons of litigants, which are not even vis major. The third
reason for postponement also falls of primarily because the appearance is
not even authorised. There is nothing that connects Mr. Mosuoe with
Respondent, at least in the documents before Court, that would influence
Us to finding that his appearance is as good as that of the Respondent
officials.
Page 160 of 283
27. For the above reasons, with each sufficient to individually dispose of
the application for postponement, We refused same and directed that the
matter proceed in the merits. However, because the application for
default judgment was not opposed We granted it and directed that the
matter be heard in default of Respondent. We were satisfied by the
grounds raised in the application. Our judgment in the merits of the
matter follows.
THE MERITS
Applicants evidence
28. Applicant testified under oath that he was employed in July 2013 in
the position of Production Manager, until this dismissal.
He was
dismissed allegedly for operational reasons of the employer, on the 25th
March 2015. At the time of his dismissal, he earned a monthly salary of
M9, 000-00. He stated that on the 7th February 2015, all staff was called
to a meeting. In that meeting, the Managing Director informed them that
Respondent Company was experiencing financial problems and was thus
anticipating retrenchments. Staff was also told that management would
consider the criteria to be used, which would be communicated to staff.
29. On the 17th February 2015, another meeting was called where they
were informed that the Quality Assurance Manager had been dismissed.
Staff was told that he had been dismissed for poor work performance and
that anyone that would perform poorly, would meet the same fate. The
General Manager and Applicant were told to keep a look out for poor
performers and to report on them to management by the 27th February
2012. On the 27th February, the anticipated reporting meeting did not
materialise, but rather on the 3rd March 2015, all staff was told that the
financial position of the Respondent company had gone back to normal,
due to good staff performance. Staff was informed that there would not be
any retrenchments anymore.
30. On the 20th March 2015, in another staff meeting, Applicant indicated
to the Managing Director that the dismissal of the Quality Assurance
Manager was heavy on him. He stated that this was so because he was
doing both his job and that of the Quality Assurance Manager. Applicant
recommended that the position of Quality Assurance Manager be filled, or
that the dismissed Quality Assurance Manager be reinstated. The
recommendation angered the Managing Director who told Applicant that
he was disloyal and that he deserved to be dismissed like the Quality
Assurance Manager. Later in that day, Applicant was served with a letter
requesting him to state why he should not be retrenched. A copy of the
letter was tendered and marked TM1.
31. Applicant wrote a letter to explain, which letter was discussed in the
meeting of the 24th March 2015. TM2 was tendered as evidence of
Applicants response to TM1. In that meeting, Applicant was told that
although he had valid reasons why he should not be dismissed, but that
management of Respondent had already made its decision that he should
Page 161 of 283
be dismissed. He was then given a letter of retrenchment marked TM3.

In terms of TM3, Applicant was to leave immediately with the condition
that he was the employee of Respondent until the 25th April 2015, for
which period he would be paid.
32. He stated that since his dismissal, he looked for employment by
applying to various places, but without success.
He stated that
Respondent breached his contract by dismissing him without a valid
reason and due processes.
He asked for 12 months salaries as
compensation, and payment of his salary for April 2015, as they were not
paid yet he remained an employee up to that time. He also asked the
Court to consider his severance payment in awarding compensation.
Analysis
33. In terms of the laws of Lesotho, there are only three recognised
grounds of dismissal. These are stated under section 66 (1) of the Labour
Code Order 24 of 1992, as follows,
(a) Incapacity to perform work employed for;
(b) Misconduct; and
(c) Operational requirements of the employer, which relate to
restructuring; financial difficulties; and introduction of technology in
place of workers (see Labour Code (Codes of Good Practice) Notice of 2003.
34. Clearly, at least from the evidence of the Applicant, none of the above
recognised reasons was the basis of his dismissal. While at the start, the
Respondent claimed financial difficulties, that latter changed when
employee performance improved, and management of Respondent
announced that retrenchments had become a thing of the past.
35. Evidently, although Applicant was allegedly terminated for operational
reasons, his termination was motivated by his recommendations to
reinstate the dismissed Quality Assurance Manager. This reason cannot
stand as it does not fit within the categories spelled out under section 66
(1) of the Labour Code Order (supra). Consequently, there is no valid
reason for the dismissal of Applicant.
36. Regarding the procedure, the Codes of Good Practice (supra), lays it out
in simple terms. Section 19 thereof, provides that there has to be a joint
problem solving exercise where the following must be discussed:
i. Alternatives to dismissal;
ii. Criteria for selecting employees;
iii. Steps to minimise dismissals;
iv. Conditions of dismissals; and
v. Steps to avoid adverse effects of dismissal.
37. Evidently, this procedure was not followed. Rather Applicant was
directed to justify why he should be kept in employment, which he did
through TM3. Evidence has shown that TM3 was not even given weight,
as the management informed him that a decision had already been taken
Page 162 of 283
to dismiss him. In any event, the basis for which Applicant was to justify
why he should stay in employment, was not operational requirements of
the employer, but rather something else. In view of this, the procedure
was also flawed in terminating Applicant.
38. Applicant has asked to be paid the equivalent of 12 months salaries as
compensation. He has satisfied Us that he complied with the provisions
of section 73 of the Labour Code Order (supra), by mitigating his loss and
establishing a breach on the part of Respondent. We therefore see no
reason not to award him the 12 months wages asked for. We wish to add
that the circumstances of Applicants termination, are extremely offensive
to the principles of natural justice. As a result, We would have awarded
more if given the discretion by Applicant. However, We will only award
what he has asked for.
39. Applicant has also satisfied Us that he is worthy of one months salary
in addition, being his salary for April, which could presumably be taken
to have been his notice period. Further, the termination of employment
gives rise to an entitlement of severance payment. We accordingly award
same. The computation of the Applicants award therefore follows.
COMPUTATION OF AWARD
40. Salary at termination
M9,000-00
a) 12 months salary is therefore,
M9,000-00 x 12 = M108,000-00
b) Notice pay is therefore,
M9,000-00
c) Severance pay is therefore,
2 years x 90 x 9,000-00
195
= M8,307-69
41. We wish to note that We have calculated severance payment up to the

date of judgment, and in that period there are only 2 completed years.
We have done so because finalisation of this matter concludes the
existence of the employment relationship between parties, at least
formally.
The total entitlement is thus M108,000-00 + M9000.00 + M8,307-69 =
M125,307-69.
Page 163 of 283
AWARD
We therefore make the following award.
a) The dismissal of Applicant is unfair both procedurally and substantively.
b) Respondent is ordered to pay Applicant the sum of M125,307-69,
comprising of compensation, unpaid notice and severance payment due
but not paid.
c) The order is to be complied with within 30 days of issuance herewith.
2015.
T C RAMOSEME
MR. MOTHEPU
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NONO
MR. MOSUOE
Page 164 of 283

HELD AT MASERU
LC/20/2013

THABANG ESAIA MARLEY THITE
APPLICANT
AND
MINEWORKERS DEVELOPMENT AGENCY
RESPONDENT
JUDGMENT
Claim for unfair dismissal for operational requirements. Applicant claiming
that he was unfairly dismissed both procedurally and substantively, Court
finding in favour of Applicant and awarding compensation. Court taking into
considerations the provision of section 73(2) of the Labour Code Order 24 of
1992. No order as to costs being made.
1. This is a claim for unfair dismissal for operational requirements of the
employer, in particular economic conditions. The brief background of the
matter is that Applicant was employed by Respondent as the Nursery
Production Manager. He was on a two year contract which commenced
on the 15th March 2010 to the 14th February 2012.
2. Applicant was however terminated on the 31st July 2012, which was
about 5 months later. Unhappy with his termination, he referred a claim
for unfair dismissal with the Directorate of Dispute Prevention and
Resolution (DDPR). The matter was duly conciliated upon but did not get
resolved. A report on non-resolution was then issued, referring the
matter to this Court for adjudication.
3. Applicants case is that he was unfairly dismissed in that he was not
consulted before he was retrenched, and further that Respondent did not
have economic problems, as it had funds to run the project and pay his
salaries. He wishes to be paid compensation in lieu of reinstatement, and
in terms of section 73 of the Labour Code Order 24 of 1992. His case was
strongly opposed by Respondent.
4. We wish to note that in its answer, Respondent had raised a point in
limine that Applicant had failed to observe Rule 3 of the Rules of this
Court, in that he had approached this Court by way of a Notice of Motion
instead of an Originating Application. The point was later withdrawn as
parties agreed that this Court condone the breach by excusing the form
Page 165 of 283
and concentrate on the content. This was duly noted and accepted by the
Court.
5. However, before the proceedings could commence, Respondent raised yet
another point in limine, this time from the bar. It was argued that the
claim referred by Applicant fell under section 226 (2) of the Labour Code
(Amendment) Act 3 of 2000 instead of section 226 (1) thereof, at least per
its reading from the Notice of Motion. It was argued that such claims fall
within the jurisdiction of the DDPR and not this Court. It was prayed
that the matter be remitted to the DDPR for arbitration for want of
jurisdiction.
6. Applicant answered that it has always been its case that the claim fell
within section 226 (2) of the Labour Code (Amendment) Act (supra). It was
submitted that the matter was referred to this Court by the DDPR
because Respondent had raised the defence of operational requirements.
The Court was referred to the report of non-resolution, marked annexure
TT5 to the Notice of Motion. Having considered the submissions of
parties and references made, We ruled that this Court had jurisdiction
and directed that parties proceed to lead their cases. In the light of all
the above background, Our judgment follows.
EVIDENCE AND FACTS
Applicants case
7. Applicants evidence is that by the time he was dismissed by Respondent,
he was then employed on a permanent and pensionable basis. According
to him, the circumstances that led to his dismissal are that, sometime in
March 2012 there was a robbery at the Respondents nursery
department, where he was the Production Manager. Following the
robbery, he was arrested by the Lesotho Mounted Police as a prime
suspect to the incident.
He was later suspended from work by
Respondent Country Director, one Mr. Puseletso Salae. The suspension
did not last long, as he was soon recalled back to work.
8. After reporting to work, he was called to a meeting by the Country
Director, where an attempt was made to coerce him into resigning from
work. He was threatened that if he did not resign, he would lose all his
benefits as a result of the robbery at the nursery department, where he
was responsible for. He however resisted the attempt and continued
working for Respondent. He added that about two weeks later Mr. Salae,
the Country Director, called a staff meeting for the nursery department
staff, to tell them that Respondent had financial problems. They were
informed that they should all expect to be retrenched if the situation
continued. This was on the 19th June 2012.
9. Following that meeting, Applicant was given a letter of termination
informing him that his contract was to end at the end of July 2012. In
terms of the letter, his termination was by mutual agreement. The
content of the letter was later changed to retrenchment, after he had
Page 166 of 283
refused to sign to acknowledge its receipt. Documents marked TT1 and

TT2 were tendered as evidence of this. Later on in August 2012, he was
given yet another letter which showed the calculations of his terminal
benefits. He similarly refused to sign it as it suggested by its heading
that his termination was by mutual agreement. It was later altered to
read retrenchment. Documents marked TT3 and TT4 were tendered as
evidence of this.
10. According to Applicant, one Makoena Ramakoro, Robert Sekupa, Seisa
and Mpho got similar letters to his, but to his dismay, they continue to
work at Respondent to date. He stated that he is aware that Respondent
claims that he volunteered to be retrenched, but that it is not true. He
stated that he could not volunteer for that after he had struggled to
secure a job, and had just had a child, and a personal loan recently taken
with Standard Lesotho Bank.
11. He stated that since his termination he was only able to secure a 7
months contract with CARE Lesotho, from September 2013 to April 2014.
He has since then been without employment, despite solid efforts. His
salary at the termination of his employment was M11,340,00. He asked
to be paid compensation in lieu of reinstatement to his permanent and
pensionable position, as he no longer wished to be reinstated. He claimed
to have been on a permanent contract beyond the lapse of his two year
contract because he was told so by the Country Director. He further
stated that this was also confirmed when the Respondent management
signed a loan application form which indicated that he was permanent. A
document marked TT6 was tendered as evidence.
Respondents case
1st Witness : Puseletso Salae
12. He is country director at Respondent. He knows Applicant in that he
was Respondents employee until his contract of employment was
terminated. A document marked MDA1 was tendered in support. He
stated that Applicant was on a two year contract, which was tied to the
two year funding contract between respondent and the Anglo American.
A document marked MDA2 was tendered and it is the funding agreement
between Respondent and Anglo American. Another document MDA3 was
tendered as proof of employment between Respondent and Applicant.
13. Witness testified that prior to Applicants retrenchment, Respondent
management wrote to Anglo American, the funder, to seek the extension
of the project. This was sometime in 2011. They made the proposal
which they then went to the Anglo American offices in South Africa, to
present it. Applicant was part of the delegation. In that mission they did
not get the funds, but came back with a promise that they would.
14. When they realised that the funder was not delivering on its promise,
and the funds were drying, management called a staff meeting at the
nursery department to inform them of the financial situation. It was in
Page 167 of 283
this meeting that Applicant suggested that himself and one Makoena
Ramakoro, be retrenched to keep the nursery department running,
because they took a huge toll of funds through their salaries. It was as a
result of Applicants suggestion that he was retrenched at the end of July
2012.
15. Witness testified that from February 2012 when his contract ended, he
was kept with the hope that funds would be secured so that he could
continue with his employment as the Nursery Production Manager. It
was denied that Applicant was permanent or even the suggestion that he
was told so. It was also denied that Applicant was ever coerced into
resigning after the robbery incident. It was said that the notification of
termination, TT1, was altered after into TT2, Applicant suggested that it
should read retrenched to shield him against the bank as he had a loan.
16. It was stated that Applicant is the only one that was terminated and
that other employees were maintained and continue to work for
Respondent to date. It was said that this has been possible because
Respondent was later able to secure funding from its Head Office. It was
stated that before Applicant left several efforts had been made to secure
funding but without success.
17. During cross examination witness testified that he became aware of
the need to retrench in February 2012 and that he immediately started
consultations. He however stated that he had no minutes to prove this.
He stated that he could not recall when Applicant suggested to be
retrenched.
Witness further testified that since the termination of
Applicant, Respondent has hired new employees, on a short term basis
though.
He added that Respondent management did not consider
reducing salaries, or applying the LIFO principle in respect of those who
were hired after Applicant, in making its decision to retrench him.
2nd Witness: Maatlehang Kamoli
18. She is the Finance and Administration Manager at Respondent and is
part of the management of Respondent. She stated that Applicant was
hired on a two year contract from March 2010 to February 2012. His
contract was aligned to the contract between Respondent and Anglo
American.
She stated that sometime in 2011, but before April,
Respondent realised that it had financial problems. As a result sometime
in April 2011, Respondent management, including Applicant, went to
Anglo American to ask to be allowed to vary the budget so that they may
be able to fund projects. Their request to vary the budget was approved,
and they were able to continue with operations.
19. When Applicants contract ended, he was advised that though his
contract had ended, he should continue to work while Respondent
awaited funding from the donors. However, the events did not turn out
as expected, as by April 2012 there were serious signs of coffers drying
out. After several failed efforts to get funding from the Respondent
Page 168 of 283
headquarters, as management, they called a staff meeting to inform staff

of the status of events. In this meeting, employees were invited to suggest
alternatives to save Respondent nursery project.
20. Witness testified that it was at this meeting that Applicant suggested
that himself and one Makoena Ramakoro be retrenched. It was said
there were other suggestions that were made which proved untenable.
Since this meeting witness was only involved in Applicants termination
affairs when told to calculate and pay out his terminal benefits. The rest
of the processes were between him and Mr. Salae, the Country Director.
21. It was denied that applicant was permanent but that he had a two
year contract. It was said that at the time of his termination he was on a
month to month contract. Witness said that she signed TT6, which
reflects applicant as permanent, only to assist him to secure a loan from
the bank. She stated that she even wrote a letter marked MDA5 and
MDA6 to confirm applicants employment, which made no reference to
him being permanent.
22. During cross examination witness testified that she held a General
Accountant qualification with a degree in Bachelor of Laws. When she
signed TT6, she had full knowledge of what that meant. She knew that
she had a right to refuse to sign it if she disagreed with its content.
Witness also confirmed that Applicant was only paid his terminal benefits
in August 2012, following his termination by way of retrenchment in July
2012. She further stated that the condition at Respondent is still the
same as when Applicant left and that in addition thereto, Respondent has
hired more employees, who are still there to date. She added that had
Applicant not insisted on being retrenched, he would still be employed at
Respondent like the rest of the employees.
3rd Witness: Makoena Ramakoro
23. She is the Administrator at Respondent and has been in its employ
since May 2010. She was on a two year contract from May 2010 to April
2012. She testified that in January 2012, Respondent told staff that its
project funding was nearing an end, and that it was negotiating the
extension of funding with the donor. There was another meeting, around
June 2012, where staff was told that funding was drying out and that
Respondent was anticipating closing the project. They were informed that
whereas the donor had promised to extend funding, it had not.
24. In the meeting, all staff was invited to suggest alternatives to safe the
Respondent project. It was at this stage that Applicant then suggested
that himself and witness be retrenched. She testified that later on, all
nursery department staff was given retrenchment letters similar to TT1 in
content. She added that at the end of July 2012 when Applicant left,
herself and others stayed behind and continued to work. They continued
to work to date on a month to month contract.
Page 169 of 283
25. During cross examination witness stated that her salary has not been
affected in any way since Applicant left. She stated no one has told or
suggested to her that she is on a month to month contract, but that it is
only her opinion. She stated that she does not know how many
consultations were made, or when they started, or even when the first
meeting was held. She stated that although she was present in the
meeting of the 14th June 2012, she did not comment when Applicant
suggested that she together with himself be retrenched. She stated that
she does not recall if staff was ever told that Respondent would not be
able to pay their salary or not, or the time that Applicant went with
management to seek funding. She stated that although Applicant was
her immediate supervisor, she however, was unaware that he was ever
suspended.
SUBMISSIONS
Applicants submissions
26. It was submitted on behalf of Applicant that he was a permanent
employee of Respondent. It was said that factors demonstrative of this
were, that he was told by the Country Director, one Puseletso Salae that
at the end of his contract he would be so. Further affirming this was the
conduct of the Respondent Finance and Administration Manager, who
had qualifications in General Accounting and a Bachelor of Laws, when
she signed a bank form presenting Applicant to be a permanent employee
of Respondent.
27. It was stated that further incidents included the evidence of
Respondent 3rd witness, Makoena Ramakoro who still works with
Respondent beyond her contract, but not on the basis of the initial
contract. It was added that her contract with Responded which ended in
May 2012, was not renewed but then she worked from then to date. It
was submitted that this is a sign that all contractual employees contracts
were made permanent when they lapsed, including that of Applicant.
28. It was added that even the decision to retrench Applicant is full of
signs that he was permanent. It was argued that if he was not
permanent but on a month to month contract as Respondent suggests, it
was not necessary to either consult or retrench him. It was submitted
that Respondent could have waited for his contract to end, at the end of
June 2012, rather than to give him notice to the end of July 2012.
29. It was further submitted that Applicant was retrenched primarily
because clause 9.3 of the Respondent Human Resources Manual provides
for the retrenchment of permanent full time employees of Respondent. It
was added that even the failure to release Applicants terminal benefits
when his contract ended in February 2012, showed that he was
permanent as they were carried over into his permanent contract, and
only paid at the alleged retrenchment.
Page 170 of 283
30. Regarding the substantive aspect, it was argued that the fact that all
nursery staff, despite having earlier been issued termination letters along
with Applicant, continue to work at respondent shows that funding was
never the issue. It was argued that Applicant was clearly the target of
retrenchments as the issue only came up after the robbery at the
nursery. It was stated that further adding to the view is the fact that
evidence has shown that four more people were employed, including one
who was on a part time basis, during the alleged time of financial
difficulties. Furthermore, the evidence of Respondent 2nd witness that
had Applicant not insisted on being retrenched he would still be working
for respondent, further fortifies the view. It was concluded that all facts
show that Applicant was dismissed for something else and not lack of
funding.
31. It was further submitted that the facts and circumstances of Applicant
go against the claim that he volunteered to be retrenched. It was said
that firstly, it took him almost two years to get employment after the
completion of his studies, due to the rarity of his qualifications.
Secondly, he had just taken a loan from standard Lesotho Bank and had
just had a child. Lastly, that if Applicant had volunteered both himself
and Ramakoro, 3rd witness, Ramakoro ought to have reasonably reacted
to Applicants suggestion. It was stated that this is hard to belief mostly
because the evidence has been fabricated.
32. Regarding the procedural aspect, it was stated that no meaningful
consultation was made. The so called consultation was made on the 14th
June 2012 and it did not consider Applicant suggestions or even the
alternatives to retrenchment. It was submitted that evidence has shown
that Respondent management did not consider reducing salaries or even
applying the last in first out criteria in retrenching, but rather the most
senior officer who ran and drove the project was retrenched.
33. It was argued that the claim that consultations were made as far as in
January 2012 was an afterthought. It was stated that this only came
after he had testified that they started in June 2012. It was added that
further fortifying this, is the fact that the 3rd witness could not say when
they started and did not even have the minutes of those consultations
except for the 14th June 2012. It was said that even the result of these
alleged consultations has not been stated in evidence. It was submitted
that there was no consultations except the meeting of 14th June 2012, for
which there are minutes.
34. It was prayed that Applicant be found to have been unfairly dismissed
and that he be compensated. It was added that in determining the
compensatory award, the Court consider Applicants salaries from date of
dismissal to date of judgment being his actual loss and an award of costs.
It was said that costs be awarded because Respondent unnecessarily
defended a case in which it had no defence. It was submitted that
Applicant has complied with section 73 (2) of the Labour Code Order
Page 171 of 283
(supra) by mitigating his loss, in that he sought alternative employment.

It was further submitted that Applicant had shown that Respondent
breached his contract of employment by unjustly and unfairly
terminating him.
Respondent submissions
35. Respondents case was that Applicant was not a permanent employee
at Respondent. It was said that he had a two year contract at the end of
which he was put on a month to month contract. It was added that the
document that he relied on to claim permanency is a Standard Bank
document, which does not have Respondent letterhead, and also has
dates of employment captured wrongly. It was signed by the finance and
administration manager to help Applicant to get a loan and no more. It
was said that the document did not make Applicant permanent in as
much as the Finance and Administration Manager had no such powers.
Applicant was clearly on a two year contract which he hid from the Court
to simply mislead it. Applicants evidence is nothing but a fabrication.
36. Regarding the substantive aspect, it was submitted that Applicant
knew that Respondent depended on funding. He knew that it lacked as
he was even on a delegation to source same. While he claims that they
got funding, he has not been able to prove same. The truth is that no
funding was secured. After the termination of his contract, he was on a
month to month contract, as is the case with others to date, while
awaiting funding.
37. On the procedure, it was submitted that all requirements were met.
There were consultations that started as far back as in January 2012.
This is clear from the Country Directors evidence and that of the 3rd
witness, the Administrator. Evidence has shown that in the consultation
meeting of 14th June 2012, Applicant suggested to be retrenched and this
was done. Although, all nursery staff had been given retrenchment
letters, but Applicant was retrenched because he wanted to leave. His
retrenchment had nothing to do with the robbery, but was based on the
economic circumstances of the Respondent. It was denied that applicant
was unemployable as he was employed by respondent and after he left he
was employed by CARE Lesotho.
38. Regarding the remedies, it was submitted that an award of costs be
made against Applicant for claiming an unreasonable amount in excess of
M3 million. Further that he attempted to mislead the Court by hiding his
contract of employment. It was added that he has failed to show how he
mitigated his loss. It was prayed that the claims be dismissed.
ANALYSIS
39. We have considered the submissions of parties, the evidence led and
the authorities cited in support. We will address the issues by order of
the submissions, starting with the status of Applicants employment at
the time of his termination by retrenchment.
Page 172 of 283
40. We are satisfied by both the evidence of Applicant and his argument
that he was a permanent employee. While Respondent has attempted to
discredit the evidence of Applicant, but the attempt has only been to the
extent of annexures TT6, MDA3 and Applicants claim that the Country
Director told him that he was permanent. Annexure TT6, on the one
hand, is a bank document that was signed by the Finance and
Administration Manager which reflected Applicant as a permanent
employee of Respondent. Annexure MDA is a contract of employment
between Applicant and Respondent.
41. However, Respondent has not been able to satisfactorily explain why it
continues to keep and maintain its employees, on the same unaffected
terms, as at the time that retrenchments were anticipated, yet they had
all been issued with retrenchment letters. Further, Respondent had not
been able to explain the need to consult with employees who were on a
month to month contract.
This has led us into concluding that
Applicants contract was more than on month to month terms. Adding to
this is the fact that Applicants terminal benefits were only released after
his retrenchment. All the above factors led Us to conclude that it is more
probable that Applicant had become a permanent employee of
Respondent at termination.
42. On the substantive aspect, We find it odd that Respondent could claim
to maintain to hold its staff to date with the hope of acquiring funding.
Almost 3 years have lapsed since it complained of lack of funding. Not
only is Respondent waiting in anticipation, but evidence has shown that
it has grown in terms of its human resource base. We are doubtful that
this could be the reaction of an entity that is economically struggling.
43. We are fortified in Our view by the evidence that Applicant was
retrenched only because he volunteered to be. It is the evidence of
Respondent 2nd witness, the Finance and Administration Manager, that if
Applicant had not elected to be retrenched, he would still be working for
Respondent to date. We are equally doubtful that this could be the
reaction of an entity that is economically struggling.
44. We also agree with Applicant that his circumstances demonstrate that
there is very little, if any at all, likelihood that he could have volunteered
to be retrenched. While We admit that following the completion of his
studies, he found employment, but we cannot ignore that it took him
almost two years to do so. He had also taken a loan and had just had a
child. These facts negate the alleged likelihood that he volunteered to be
retrenched.
45. While Respondent has witnesses who claim that Applicant did
volunteer to be retrenched, We find that odd and hard to believe.
Respondent 2nd witness, the Finance and Administration Manager, agrees
with Us in her testimony that it was odd that the volunteering of
Page 173 of 283
Applicant was not reduced to writing. The evidence of Respondent 3rd

witness, Makoena Ramakoro that she did not react when Applicant
suggested that they be retrenched, raises doubts and concern. We find it
quite remote, if not impossible, that Applicant could have volunteered her
termination and yet she had nothing to say about it. If indeed a
suggestion of this nature was made, then she would have reasonably
reacted to it. We are therefore of the view that no one suggested that
anyone be retrenched.
46. Regarding the procedure, We find it more probable that there was only
one consultative meeting that took place before the retrenchment was
effected. Evident of this is the fact that there is only one set of minutes of
consultations namely that of the meeting of the 14th June 2012. Further,
even the evidence of the Respondent 3rd witness that she does not recall
when the meetings took place further affirms this. Adding to Our attitude
is the fact that the 1st witness stated that consultations started in June
but later changed to say in January 2012. This made her evidence
inconsistent and unbelievable that there were ever consultations prior to
June 2012 (see Factory Workers Union v Ever Unison Garments (Pty) Ltd
LC/07/2004).
47. Having found that Applicant did not volunteer to be retrenched,
Respondent was in law under an obligation to engage with Applicant in a
joint problem solving exercise. Section 19(4) of the Labour Code (Codes of
Good Practice) Notice of 2003, is clear on what entails this exercise. It
provides that in the exercise, parties must attempt to reach agreement on
the following,
a) Alternatives to dismissals,
b) criteria for selecting the employees for dismissal,
c) steps to minimize the dismissals,
d) conditions on which dismissals take place, and
e) steps to avoid the adverse effects of the dismissals.
The evidence of Respondent has shown that none of these mention above
were explored. We therefore find that on account of this, the procedural
requirements were not met.
48. Applicant has asked that Court consider his actual and future loss in
awarding him compensation. These prayers have not been challenged
except that Respondent has argued that Applicant has failed to show how
he mitigated his loss. In determining the quantum of compensation,
several criteria has been laid out both in the Labour Code Order (supra)
and in case law. While the Labour Code Order (supra) only makes
reference to mitigation and the breach, case law has extended the
considerations beyond just the two.
49. In the case of Standard Lesotho Bank .v. Nena & Another
LAC/CIV/A/06/08, the Court states that actual loss is one of the
considerations, as well as the future loss likely to be suffered. The first
aspect relates to the wages from date of termination to date of judgment,
Page 174 of 283
while an award for future loss relates to the salaries that a dismissed
employee is likely to lose as a result of the dismissal. These are subject
to the two factors contained under section 73 (2), namely mitigation of
loss and the breach by either party.
50. Applicant has shown to Our satisfaction that Respondent has
breached his permanent employment by unfairly terminating him.
Further, he has shown that he mitigated his loss by seeking employment
which resulted in him obtaining same with CARE Lesotho, and attempts
to run his own business. About the award for cost, where a claim relates
to unfair dismissal, an award for costs is not normally made. To be
made, parties must show that one acted in a wholly unreasonable
manner. No such circumstances meet the criteria from the reasons given
by both Respondent and Applicant. We therefore decline to award costs.
Lost earnings
51. From evidence, Applicant was terminated in July 2012. From July
2012 to August 2015, three years and one month have lapsed, which
makes 37 months. However, Applicant was employed by CARE Lesotho
for a period of 7 months. He will thus not be entitled to any award for the
7 months period. The amount awarded will be only for the months out of
employment and they are 30 in number (37 7). The loss earnings
computation is thus as follows,
30 months X M11,340.00 (salary at termination) = M340,200.00
Future loss
52. Applicant has shown that the prospects of finding employment are
very low. At one instance he took almost 2 years to secure employment,
while at some point, it took him slightly over a year. We are of the view
that given the trend, he is likely to take a year out of employment with
hard and solid efforts of seeking employment made. His future likely loss
is thus as follows; M11,340-00 x 12 (1 year) = M136,080-00.
Applicants total award is thus M340,200-00 + M136,080-00 =
M476,280-00.
53. In making this award, We are aware that Respondent is donor funded.
However, this does not in any way exonerate it from its legal obligations
as an employer in dealing with affairs of its employees. It must at all
times comply with the legal requirements in its trade. We are of the view
that We would be setting a very ruinous precedent if We were to refrain
from making this order, merely on the ground that Respondent is donor
funded. In spite of its circumstances, Respondent must dance to its own
music.
Page 175 of 283
AWARD
We therefore make an award as follows;
a) That the dismissal of applicant is unfair.
b) Applicant is awarded compensation in the sum of M476, 280-00.
c) Compensation to be paid within 30 days of issuance herewith.
2015.
T C RAMOSEME
MR. MOTHEPU
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NTABE
ADV. SEKONYELA
Page 176 of 283

HELD AT MASERU
LC/47/2012

BOKANG MOKUENA
APPLICANT
AND
STALLION SECURITY
RESPONDENT
JUDGMENT
Claim for unfair dismissal on the ground of the employers operational
requirements. Applicant challenging both the procedural and substantive
aspects of his dismissal that he was not consulted as anticipated by law;
and further that the reason for his dismissal is invalid as it not legally
justified. Court finding in favour of Applicant and awarding compensation.
Court considering the mitigation of loss and breach of contract on the part of
parties in making the compensatory award. Other principles discussed
admissibility of documentary evidence in labour cases. No order as to costs
being made.
1. This is a claim for unfair dismissal for operational reasons. The brief
background of the matter is that Applicant was an employee of
Respondent in the position of Development Manager. He was dismissed
on account of a change in structure which is alleged to have led to the
redundancy of his position.
2. Unhappy with his dismissal, Applicant referred a claim for unfair
(DDPR). The matter was duly conciliated upon but without success. A
certificate was then issued on 29th October 2012, referring the matter
before this Court.
It is against this background that the matter
proceeded before.
Applicant alone testified on his behalf while
Respondent had two witnesses.
Having considered the evidence
presented as well as parties submissions, Our judgment follows.
EVIDENCE AND FACTS
The case of Respondent
1st witness: Nkhasi Lehloenya
3. Witness testified that he is the Industrial Relations Officer at Respondent.
According to him, Applicant was retrenched because his position had
become redundant, as a result of change in structure. He then narrated
a series of incidents that transpired before the termination of Applicant.
Page 177 of 283
4. Witness testified that Applicant was called for polygraph test by the
management of Leteng Diamonds. He explained that Leteng Diamonds
is a company that mines diamonds and Respondent offers security
services at its mining compound in the Mokhotlong district, and that this
is where Applicant was based. BM1 was tendered as proof that Applicant
was called for a polygraph test. Witness further testified that following
the polygraph examination, Applicant was told that he had failed the
polygraph test. He was further told that Leteng Diamonds management
had demanded that Respondent remove him from its premises.
5. Following the polygraph incident, Leteng then informed Respondent that
it was going to abolish Applicants position as it had no money to pay it.
This was communicated through a letter dated 30th April 2012. The letter
was tendered and marked SS1. Witness added that the contents of the
letter of the 30th April 2012, had on an earlier occasion been hinted to
Respondent by Leteng Management in one of their meetings.
6. Witness further testified that upon receipt of the hint, they informed
Applicant that there was possibility that he would be retrenched. BM2
was tendered as proof. By the time that the letter, SS1 came they started
to engage Applicant in consultative negotiations. During this process,
Respondent had communicated to Applicant the options that it had
considered as alternative to retrenchment. These were to offer him
employment in its posts in South Africa, which proved untenable as
Applicant was not a South African citizen. Secondly, they offered him
employment at Mothae Mine, where they also offer security services,
which also could not work as his position was not available within the
structures at that mine.
7. Witness added that a decision was then taken to retrench Applicant when
all the options that it had considered proved untenable. The decision was
communicated through a letter. The letter was tendered and marked
BM4. It was said that when the decision to retrench Applicant was taken,
Respondent had explored all options short of termination, from April
2012 to July 2012, when the dismissal took effect. It was claimed that in
this period several consultative meetings took place.
8. During cross examination witness stated that in terms of the agreement,
that is contract between Leteng Diamonds and Respondent, Leteng
could not demand that an employee of Respondent be removed or
dismissed. Witness further testified that he only joined Respondent in
May of 2012, and could not deny if it was suggested to him that
consultations did not take place at least before his time. Witness also
accepted that he had no evidence that consultation took place either
before he joined and after he had joined Respondent.
2nd witness: Johan Van Wyk
9. Witness testified that he was the General Manager of Respondent based
in Lesotho until March 2012, when he was transferred to Bloemfontein in
Page 178 of 283
South Africa. He left Mr. Nkhasi Lehloenya, 1st witness, in charge of

operations. He stated that he engaged with Applicant in consultative
negotiations before the decision to retrench him was taken. He also
narrated a series of the events that led to the retrenchment of Applicant.
10. Witness testified that they had earlier received a hint from their client,
Leteng Diamonds, that it was considering abolishing Applicants position.
Following the hint, witness informed Applicant about his possible
retrenchment. This was communicated to Applicant on the 23rd April
2012. On the 30th April 2012, Respondent received a letter from Leteng
Diamonds, which formally communicated to Respondent management, its
decision to abolish Applicants position. The Court was referred to
annexure SS1. Witness testified that this was not uncommon in the
security industry as the client is the one that determines the structure.
11. Applicant was thereafter called to the offices of witness to discuss both
letter and possible alternatives. They talked about the Mothae Mine
position, as well as the South African posts, which in the end proved
untenable. Witness stated that at the end of the meeting, Applicant
asked to be given an opportunity to consult his legal representative on the
issue. Witness added that thereafter, he spoke to Applicant on several
occasions over the telephone, and Applicant even visited him at his
Bloemfontein office.
12. Witness however stated that both the telephone conversations and
visits at his Bloemfontein offices, were purely social and had nothing to
do with the retrenchment. He stated that since the first meeting when he
communicated the possibility of retrenchment, no further meetings took
place between himself and Applicant, until on the 27th July 2012, when
he informed him about his termination and handed over to him his letter
of termination, annexure BM4. Witness testified that he is of a strong
belief that consultative meetings took place after he left, between
Applicant and Mr. Nkhasi Lehloenya, 1st Witness. He added that while he
is strongly of this belief, he never received a report of such meetings from
Mr. Nkhasi Lehloenya.
13. Witness further testified that, after Leteng had taken the decision to
abolish Applicants position, Respondent took over to pay it until it
eventually retrenched him.
SS2 was handed in as evidence that
Applicant was at all times, prior to his position being abolished, paid by
Leteng Diamonds and not Respondent. SS3 was tendered as proof that
after the decision to abolish his position had been taken by Leteng
Diamonds, his salary was then paid by Respondent.
14. Witness testified that the contract that Applicant relied upon, to
suggest that Leteng Diamonds had no right to change the structure of
Respondent, was illegally obtained. It was stated that Applicant did not
have a legitimate and authorised access to it. It was stated that this
same contract has expired and that Respondent and Leteng are no
Page 179 of 283
longer operating on its basis, but on the basis of a different arrangement

altogether.
15. During cross examination witness stated that Leteng Diamonds had
no right to change the structure in terms of the existing contract between
the parties. He further stated that when the possibility of retrenchment
was first communicated to Applicant, it was said to be due to the
dissatisfactory result of the polygraph test. Regarding consultations,
witness stated that he could not recall if the consultations did take effect
on the 30th April 2012, as he had earlier suggested. Witness also stated
that whereas the letter of termination stated that the retrenchment was
due to structure change, nothing had been placed before Court to show
that Applicant was consulted on the change in structure.
Applicants case
Applicant
16. Applicant testified that he started working for Respondent on 1st
October 2004. At the time of his termination he was Development
Manager earning a salary of M26,600-00. He stated that circumstances
leading to his termination are that on or around the 2nd March 2012, he
was called to Leteng Diamonds, where he was based, by the General
Manager, one Keller. Upon arrival, he was told to take a polygraph test,
which he did take. On the following day he was called to the office of the
Mr. Keller, where he was given a suspension letter, annexure BM1. He
was told that he was being suspended because he had failed the
polygraph test, and was directed to vacate the premises of Respondent
immediately.
17. Sometime in April 2012, he was called to Mr. Van Wyks office, 2nd
witness, where he was handed a letter, annexure BM2, informing him of a
possible retrenchment. He was then invited for a consultative meeting on
the 30th April 2012. He stated that he did attend the consultative meeting
but that it never took place as it was postponed by Mr. Van Wyk. He
stated that this was after he had handed over to him a letter from his
lawyer wherein he was demanding a copy of the results of the polygraph
test undertaken at Leteng Diamonds earlier. Applicant stated that he
was never given the opportunity to engage with Respondent on issues
surrounding his anticipated retrenchment
18. He further testified that after that failed meeting, no other meetings
were held until he was called to Van Wyks office and given his letter of
termination, annexure BM4. He added that he used to visit Mr. Van Wyk
(2nd witness) at his Bloemfontein office and that the visits were purely
social, as they never discussed anything relate to the retrenchment. He
stated that whereas the letter suggests that he engaged in consultations
with Respondent management, he disputed that. He added that he was
surprised that his termination was for a change in structure when he had
initially been informed that it was based on his unsatisfactory
performance in the polygraph test, as annexure BM2 had suggested.
Page 180 of 283
19. Applicant also testified that the termination of his contract, on

account of change in structure by Leteng diamonds, was contrary to
clause 4.2 of the contract between Leteng Diamonds and Respondent.
He stated that in terms of the contract Leteng Diamonds had no right to
change the structure of Respondent. Annexure BM6, a copy of the
contract between Leteng Diamonds and Respondent, was tendered.
Applicant testified that he had access to a copy of the contract by virtue
of being a manager within Respondent ranks.
20. Applicant prayed for compensation of an amount equivalent to his 36
months salary. He stated that since his retrenchment, he applied for
several jobs and even joined several existing companies which failed and
were shut down. He stated that with his terminal benefits from
Respondent, he has built rented apartments which give him a return of
M900.00 per month. He stated that this has been the position since
January 2014. He handed in BM5 as proof that he applied for jobs.
SUBMISSIONS
Applicant
21. It was submitted that in the case of BMD Knitting Mills (Pty) Ltd v
SACTWU (2001) 22 ILJ 2264 (LAC), the Court of Appeal stated that a court
determining the fairness of a dismissal for operational reasons, must
examine if both the reasons for dismissal, which accounts for the
substantive aspect, and the manner in which the dismissal is effected,
which accounts for the procedural aspect, are reasonable.
It was
submitted that this Court is no exception to the principle.
22. Regarding the substantive aspect, Applicant submitted that in the case
of Maphoto Machelo v Lesotho Bakery (Blue Ribbon) LAC/A/04/2004, the
Labour Appeal Court stated that a substantively fair retrenchment is one
that is based on both a bona fide reason, and is also operationally
justifiable. It was argued that in casu, there is no justifiable and bona
fide reason. It was submitted that the argument is based on the fact that
the basis of the retrenchment is contrary to the contract between Leteng
Diamonds and respondent, in particular clause 4.2 thereof.
23. Regarding the procedural aspect, it was submitted that the dismissal
of Applicant is unfair. It was sated that in the case of Phetang Mpota v
Standard Lesotho Bank LAC/CIV/A/10/2008, the Labour Appeal Court,
at paragraph 39 of the judgment, stated that in a possible retrenchment
situation, parties must meet and discuss the three following,
i. how to avoid retrenchment,
ii. if retrenchment is unavoidable, selection criteria of retrenchment,
and
iii. ways of alleviating hardships of retrenchment such on reasonable
severance pay, etc.
24. It was argued that in casu, this guideline was not followed as the
Respondent simply unilaterally decided to retrench Applicant. It was
Page 181 of 283
argued that this approach of Respondent was shunned in the case of

Lesotho
Highlands
Development
Authority
v
Motumi
Ralejoe
LAC/CIV/A/03/2006 & in Makhobotlela Nkuebe v Metropolitan Lesotho
LC/79/2006.
25. It was also submitted that Applicant has complied with the provisions
of section 73 (2) of the Labour Code Order 24 of 1992, in that he has
mitigated his loss as evidence has shown. It further submitted that in
addition to mitigation of loss, Applicant has also been able to show a
breach on the part of the Respondent which is his legally unjustifiable
retrenchment. It was submitted that compensation in terms of section
73(2) of the Labour Code Order (supra), is thus due to Applicant. It was
specifically prayed that the Court find an award of 36 months salary
equivalent a fair and equitable award, particularly considering factors
such as future likely loss to be suffered by Applicant, age of Applicant,
prospects of Applicant finding a job, and the circumstances of his
dismissal.
Respondent
26. Respondent submitted that evidence has shown that Applicant was
dismissed because Leteng Diamonds had changed the structure, and
that this decision affected Applicants position with Respondent. It was
submitted that in the security industry, it is client that determines the
structure and that what happened was not uncommon. It was added
that Applicant did not challenge this claim.
27. Regarding the procedure, it was submitted that evidence has been led
to show that Applicant was consulted on a number of occasions. It was
said that consultations were both face to face and telephonically. It was
argued that reflective of this is annexure BM4. It was added that there is
thus no dispute that consultations took place as Applicant did not
challenge BM4 on that issue. It was argued that in law where a fact is
not disputed, then judgment must be made in favour of the Respondent
on the basis of that fact. The Court was referred to the cases of Plascon
Evans Paints (Pty) Ltd v van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A);
and Lesotho National Olympic Committee v Morolong LAC (2000 2004)
49, in support of the argument.
28. It was further argued that evidence has been led to show that the
contract that Applicant seeks to rely on to claim that there was no valid
reason for his dismissal, was illegally obtained. Reference was made to
annexure BM6, which is the contract of service between Leteng
Diamonds and Respondent. It was thus prayed that the said contract be
excluded and that it be found that the reason for dismissal was valid.
ANALYSIS
29. We wish to comment that We accept the authorities cited by Applicant
and confirm the principles contained therein. Applicants first argument
relates to a contract between Leteng Diamonds and Respondent. The
Page 182 of 283
admissibility of this contract has been challenged by Respondent, and he

primarily challenges how it was obtained and the reliability of its content.
It has been suggested that not only had the contract expired but also that
Applicant did not have authorised and legitimate access to it.
30. We wish to note that this Court is concerned with the dispensation of
substantial justice. In order to effectively do so, this Court must admit all
materials presented before it, in the form of evidence. However, such
materials are relevant to the issue for determination. In essence, in this
Court, the admissibility and/or inadmissibility of evidence turns more on
relevance than on how the evidence was obtained (see Goosen v Caroline
Frozen Yoghurt Parlor (Pty) Ltd & another (1995) 16 ILJ 396 (IC)).
Therefore, its evidence is relevant for purposes of dispensing substantial
justice, then it is admissible.
31. Applicant claims that when the decision to retrench him was taken,
the contract between Leteng Diamonds and Respondent, prohibited
Respondent from altering the structure of dismissing the employees of
Respondent. For this he relies on annexure BM4, which as we have said
is the contract of employment between Respondent and Leteng
Diamonds. We have perused the contract and have noted that in terms of
clause 2.2 therefore, it ran from the 1st August 2008 to 31st July 2011.
The Clause is recorded as follows,
The Contractors appointment hereunder shall be in terms of clause 14 of
the Mining Agreement and shall endure for an initial period of 36 (thirty six)
months from 1 August 2008 to 31 July 2011.
32. Clearly during the period in issue, this contract had long lapsed and
was no longer applicable to parties. This was suggested to Applicant by
Respondent and he failed to address it. In law what has not been
challenged or addressed is taken to have been admitted. (see Theko v
Commissioner of Police & another 1991 1992 LLR-LB 239 at 242). As a
result, Applicant cannot rely on the contract in support of his claim for
the substantive unfairness of his dismissal. The contract is plainly
immaterial to the issues to the dispute between the parties.
33. However, evidence was led by the witnesses of Respondent, during
their cross examination, that Leteng Diamonds had no right to change
the Respondent structure, at least in terms of the current contract. This
evidence corroborated the evidence of Applicant to this extent. That being
the case, there is no legal justification for the change in structure within
Respondent at the instance of Leteng Diamonds. The termination by
retrenchment was therefore substantively unfair.
34. We are fortified in Our decision by the fact at different stages towards
the retrenchment of Applicant, several distinct reasons were advanced by
Respondent as the basis for the retrenchment. At one point, according to
1st witness of Respondent, the reason was lack of funds to pay the
Applicants position. Later on, he stated that it was because Applicant
Page 183 of 283
had failed the polygraph/integrity test and until it was eventually stated
to be a change in structure at the instance of the client, Leteng
Diamonds.
35. Clearly there is inconsistency in the evidence of the witnesses of the
Respondent in relation to the reasons for the dismissal of Applicant. This
inconsistency in reasons given, suggests a fabrication of facts on the part
of the Respondent. It is trite law that inconsistencies in evidence are an
epitome of a fabrication of facts. Such facts are in law unreliable and
cannot be used as a basis of any legal decision (see Factory Workers
Union v Ever Unison Garments (Pty) Ltd LC/07/2004). On this premise,
We find that there was no bona fide reason for the dismissal of Applicant.
36. On the aspect of procedure towards the termination of Applicant, We
wish to again comment that they acknowledge and accept the principle in
the Labour Appeal Court authority of Phetang Mpota v Standard Lesotho
Bank (supra), as put by Applicant. We are of the attitude that Applicant
was not consulted prior to his dismissal, at least in the manner
anticipated in the above authority. Evidence presented has been able to
show that Respondent only considered the alternatives short of dismissal
and no more. As a result, the procedural requirements in a dismissal for
operational reasons in the case of Applicant was flawed, and thus unfair.
37. Regarding the relief sought, We are convinced that Applicant has met
the requirements for an award of compensation in terms of section 73(2)
of the Labour Code Order (supra). Applicant has shown the several
attempts that he has made to mitigate his loss, as shown on annexure
BM5. He has also satisfied Us that the Respondent unfairly breached his
contract of employment by dismissing him without a valid reason and in
the procedurally correct manner. We therefore proceed to formulate his
compensatory award.
38. Applicant had asked for 36 months salary equivalent as compensation
for both the procedural and substantive unfairness of his dismissal. The
claimed award was not challenged by Respondent. We therefore see no
reason to deviate from the Applicants claim, particularly because We hold
the view that the circumstances of his dismissal warrant more than what
he has claimed.
39. We say this because Applicants actual loss is almost 36 months
already, without considering his future loss, as well his prospects of
finding a job. Evidence has shown that the prospects are quite bad
because he remained either unemployed or employed but without income,
at least to the end of this matter.
40. For two reasons, We will compute Our award over the claimed period
of 36 months. The first reason is that the law requires that a party be
awarded no more than what it has asked for (see Phetang Mpota v
Page 184 of 283
Standard Lesotho Bank (supra)). Secondly, a compensatory award is not

meant to unfairly enrich a wronged party, but to compensate in a just
and equitable manner. On account of the second reason, We will
consider the income earned from January 2014 to date, in Our award.
41. Our computation is therefore as follows,
From January 2014 to June 2015, there are 17 months. At the income
rate of M900.00 per month, in the 17 months, Applicant has been to earn
M15,300.00 (M900 x 17). His 36 months salaries equal to M957,600.00
(M26,600.00 x 36).
42. The just and equitable compensatory award is therefore M957, 600.00
M15,300.00 = M942,300.00.
AWARD
a) That the Applicants dismissal is both substantively and procedurally
unfair.
b) Respondent is order to pay Applicant compensation in the amount of
M942, 300.00.
c) The order is to be complied with within 30 days of issuance herewith.
2015.
T C RAMOSEME
MRS. THAKALEKOALA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. SEPIRITI
ADV. KOTO
Page 185 of 283

HELD AT MASERU
LC/74/2013

BOITHATELO RATOANE
APPLICANT
AND
PACT LESOTHO
RESPONDENT
JUDGMENT
Claim for unfair dismissal for operational reasons. Applicant claiming that the
correct procedure was not followed in terminating her. Applicant claiming that
if procedure had been observed, she would not have been terminated.
Applicant claiming payment of the remainder of her contract at the time of
termination as compensation. Court finding in her favour and awarding
compensation as claimed. No order as to costs being made.
1. This is a claim for unfair dismissal, allegedly on the grounds of operation
requirements of the employer. Applicant was an employee of Respondent
on a fixed term contract from 29th September 2010 to 30th September
2014. She was terminated on the 31st July 2013. Unhappy with the
termination she referred a claim for unfair dismissal with the Directorate
of Dispute Prevention and Resolution (DDPR). The claim was duly
conciliated upon but without success. A report of non-resolution was
issued, referring the matter before this Court for adjudication. It is on
the basis of this background that the matter was heard. Having heard
parties, Our judgment follows.
2. It however, important to mention that in opening, Applicant stated that
she challenged the termination of her employment as being procedurally
unfair. She stated that the Respondent failed to follow the due processes
in dismissing her. Further that if the due processes towards her
retrenchment had been followed, she would not have been dismissed.
She claimed payment of the remainder of her contract with all benefits
that she would have accrued but for the termination. We also wish to
add that whereas parties had promised to file their heads of argument,
that did not happen. We were therefore compelled to make this judgment
without them.
FACTS AND EVIDENCE
3. Respondent led the evidence of only one witness by the name of Kholotsa
Moejane, the Country Director, while applicant also testified alone in
Page 186 of 283
support of her case.

hereunder.
The evidence of these witnesses is summarised
Respondents case
witness: Kholotsa Moejane
4. Witness testified that at the time of the incidents in issue, he was country
director at Respondent. He stated that Respondent survives on grants
from the United States government. Further that sometime in January of
2013, Respondent was informed in a meeting with agents of its funder,
that there would be no funding in certain programmes that Respondent
ran. It was said that the funder had changed the programme direction.
5. On or around the 18th March 2013, Respondent management had a staff
meeting where staff was informed about the decision of the funder and its
implications on them. Staff was informed that there was a possibility
that there may be retrenchments, as a result. In that meeting, employees
were also informed that management would be reducing the number of
departments, and merge some of the positions.
6. After the meeting, certain positions were merged and Applicants position
was affected by the merger. The new position that was created by the
merger was advertised and applied for, but Applicant was however
unsuccessful. She was then retrenched along with five others, at the end
of July 2013.
7. During cross-examination, witness testified that the decision to change
the structure of Respondent, was made by management to the exclusion
of staff, among whom is Applicant. Further that employee comments
were only invited after the decision to change the structure had been
made by the management of Respondent, contrary to his earlier version
that consultation started earlier.
Applicants case
Applicant: Boithatelo Ratoane
8. Applicant testified that at the time of her termination, she held the
position of Operations Officer in the department of Finance and
Operations. She stated that sometime, mid-March 2013, Respondent
called a staff meeting. In that meeting, all employees were informed that
there would be no funding beyond October 2013.
9. Also in that meeting, all employees were invited to come up with ideas on
how to save Respondent. They were then divided into groups and
allocated specific areas of focus. On the reporting day suggestions were
made to the country Director who promised to revert to staff with the
attitude of the full management team.
10. Applicant testified further in that to her dismay, the Country Director
never brought feedback as promised, but rather came back to them with
a new structure of Respondent. In terms of the new structure, certain
Page 187 of 283
positions had been merged, some changed except that of the Accountant
and the Country Director.
11. Applicant was thereafter called to country directors office, where she
was told that her position had been merged with two others and that she
would have to apply. She applied and was unsuccessful after having
been promised that the requirement for her to apply, was just a formality.
She was then terminated on 31st July 2013. Her salary was M12,607 at
the time of termination and she asked for payment of salaries and
benefits up to the end of her contract, which was 30th September 2014.
12. Cross examination revealed that Applicant currently works at EGPAF,
where she earns M11,000-00 per month, since June 2014. It further
revealed that she was only out of employment from July 2013 to June
2014.
ANALYSIS
13. In law there are three recognised reasons for termination of the
contract of an employee. These reasons are spelled out under section
66(1) of the Labour Code Order 24 of 1992, as follows:
An employee shall not be dismissed, whether adequate notice is given or
not, unless there is a valid reason for termination of employment, which
reason is
a) Connected with the capacity of the employee ...
b) Connected with the conduct of the employee ...
c) Based on the operational requirements of the undertaking,
establishment or service.
14. In casu, Applicant has been dismissed or terminated under section
66(1)(a) of the Labour Code Order (supra),
and the basis of her
termination is the operational requirements of the employer. However, for
termination under any of the three recognised grounds to be fair, it must
comply with both the substantive and the procedural requirements for a
fair termination. Those requirements are laid out in the Labour Code
(Codes of Good Practice) Notice of 2003.
15.
In terms of section 7(1) of the Codes of Good Practice (supra),

(1) An employer may dismiss an employee if the employer
(a)...
(b)...
(c) follows a fair procedure; and
(d) has a fair reason for the dismissal.
In casu, Applicant is only concerned with the procedure of her
dismissal.
16. The procedure for termination of an employee for operation reasons,

has been laid out under section 19 of the Codes of Good Practice (supra).
In terms of that section, there has to be a joint problem solving exercise
Page 188 of 283
between an employer and an employee, with the purpose to reach an

agreement on the following,
(a) alternatives to dismissals ...
(b)
criteria for selecting the employees for dismissal ...
(c)
steps to minimise dismissals ...
(d)
conditions on which dismissals take place ...
(e)
steps to avoid the adverse effects of the dismissals .
17. Evidence has shown that the employees of Respondent were divided
into groups to find ways of avoiding retrenchments. These views were not
considered as Respondent management neither discussed with its
employees nor implemented them. Rather what it did, was to come up
with a structure that was unilaterally determined, which it imposed upon
the employees. Clearly the procedural steps outlined under Section 19(4)
of the Codes of Good Practice (supra), were not complied with.
18. We are therefore of the view that Respondent has failed to show that it
followed a fair procedure in terminating or dismissing Applicant. We
agree with Applicants that if considered, their inputs as employees of
Respondent, which were premised on cutting costs to Respondent, could
have assisted towards avoiding retrenchments. We are strongly inclined
to this view by the fact that the alleged reason for retrenchments was
economic, as there was an allegation of lack of funds to run the
programmes of Respondent.
19. Applicant prayed that should the Court find in her favour, that she be
awarded the remainder of her contract together with the benefits that she
could have accrued but for termination, at least in terms of the prayers as
contained in her originating application. However, no evidence has been
led to establish these benefits and We cannot therefore award same.
Consequently, We will only award what has been established before Us,
namely the amount due to her.
20. Applicant earned a salary of M12,607-00 at the time of her
termination.
Her contract was from 29th September 2010 to 30th
September 2014. She was dismissed on 31st July 2013. By a simple
arithmetic calculation, at the time of her dismissal she had one year and
two months to the end of her contract. She thus has the remaining
period of 14 months.
21. She however stated during cross examination that, she was only out of
employment from July 2013 to June 2014. Therefore for the 11 months
in this period, she was without employment. She is thus entitled to her
full salary only for the 11 months. The computation is as follows:
M12,607-00 x 11 = M138,677-00.
22. In the period from June 2014 and beyond, she earned a salary of
M11,000-00 which is about M1,607-00 (M12,607-00 M11,000-00)
Page 189 of 283
below the initial salary with respondent. In the period between June
2014 and September 2014, which is about 4 months, she earned less by
M6,428-00, (which is M1,607 x 4 months). The total amount awarded to
applicant is thus M138,677 + M6,428-00 = M145,105-00.
AWARD
b) Respondent is ordered to pay Applicant the compensation amount of
M145,105-00, calculated above.
c) The amount is to be paid within 30 days of issuance herewith.
2015.
T C RAMOSEME
MR. TEUOA
MR. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. PHEKO
ADV. LOUBSER
Page 190 of 283

HELD AT MASERU
LC/22/2015

MATLALANE RAPAPA
MOTLALANE MOTSOPA
MPONE MOLAPO
TSEPANG MOKIBA
NTSEBO THAMAE
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
AND
TEPONG (PTY) LTD
RESPONDENT
JUDGMENT
Claims for a prohibitory, declaratory and specific performance orders. Parties
reaching settlement on some of the claims and agreement being made an order
of Court. Court finding in favour of Applicants on all the remaining claims
that an offer once accepted creates a binding contract which cannot be
unilaterally altered; and that employer has an obligation to meet welfare
needs of its employees. Court finding that the offer made to Applicants is a
valid contract of employment; and that Respondent has an obligation to
confirm employment status of Applicants. No order as to costs being made.
1. This is an application for an order in the following terms,
(a) That the 1st and 2nd respondent cannot be ordered to stop
forcing/threatening employees to sign new contract in as much as they
still have valid contracts with respondent.
(b) That this honourable court cannot declare that signing of new contract
with new terms and conditions which are contrary to the Labour Code
and the original contract of employment be null and void.
(c) That the 1st and 2nd respondents cannot be ordered to sign confirmation
of employment for applicants to the bank or elsewhere services required
for the benefit of applicant.
(d) This honourable court declare employment offer as a contract of
employment.
(e) Applicant reserved the right to file further grounds on the proceeding.
2. On the date of hearing parties stated that they had reached an agreement
to abandon prayers (a) and (b). They stated further that they have agreed
that Applicants have no obligation to sign contracts with which they do
not agree. They wished for their agreement to be made an order of this
Court. We then accepted and made the parties agreement an order of
Page 191 of 283
this Court. This essentially meant that We only had to determine prayers
(c) and (d). Having heard parties, Our judgment follows.
3. Applicants case is that they were offered employment by Respondent,
which they then accepted. Following their acceptance of the offer, they
commenced employment and were accordingly thereafter remunerated in
terms of their offers of employment. Later on, in the course of their
employment, they were called to sign contracts of employment. They then
noted that the terms of the contract were different from those in the offer
of employment, and in particular, that they had inferior terms. An
example was that in the offer of employment, it was stated that employees
would qualify for a thirteenth cheque annually, while in the proposed
contract it was said that they may receive a thirteenth cheque.
Reference was made to annexures A and C2 to the Notice of Motion,
which are the offer of employment and the proposed contract of
employment, respectively.
4. It was further submitted that although the offer was conditional,
Applicants were of the view that the conditions to be satisfied should not
alter the terms against which they accepted the offer of employment. It
was prayed that the Court declare the offers of employment as valid
contracts of employment between Applicant and Respondent. The Court
was referred to the cases of Carlill v Carbolic Smoke Ball Co. (1893) 1 QB
256 and Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC). It was
submitted that the principle in these authorities is that an offer once
accepted creates a binding contract between the offeror and the offeree.
5. Further reference was also made to the case of Flyde v Wrench [1840] 49
ER 132, to the effect that, an offer once accepted becomes binding on
parties and that the offeror is prevented in law from unilaterally altering
the terms of the offer, earlier made to the offeree. The Court was further
referred to the case of Francis v Canadian Imperial Bank (1994) 7 C.C.E.L.
(2nd) 1 (Ont. C.A), where the employee had accepted an offer of
employment. Later on, he was given a contract to sign which had altered
some of the terms contained in the initial offer. The terms of contract
which had altered the terms of the offer were declared unlawful and thus
unenforceable.
6. Respondent answered that Applicants were given a conditional offer.
Respondent submitted that in law, unless the condition in the offer is
met, then there is no contract to speak of. The Court was referred to the
heading of the offer, annexure C2, to demonstrate that the offer was
conditional. It was argued that Applicants conduct of refusing to sign
the proposed contracts amounts to non-acceptance of its terms. It was
stated that again in law, non-acceptance of the terms of a contract is a
clear manifestation that parties minds are not ad idem. It was added that
once that is the case, the employment relationship created by the offer,
becomes void ab initio.
Page 192 of 283
7. It was further argued that a contract of employment only comes into

effect if the offer is accepted unconditionally, by the employee. It was
stated that if the employee expresses a reservation, then that becomes a
counter offer which may or may not be accepted by the employer. If not
accepted, then there is no contract. The Court was referred to the case of
Solidarity & Another v SA National Parks (2008) 29 ILJ 2801 (LC). It was
argued that on these bases, a conditional offer cannot be a contract.
8. It was further submitted that it is common course that following the offer,
Applicants worked and were remunerated before the proposed contract
came into being. It was added that while that is the case, it would be
improper for the Court to make a conditional offer a contract. It argued
that to do so, would be to offend the principle of freedom to contract.
Regarding the authorities cited by Applicants, it was submitted that the
case of Whitehead v Woolworths (Pty) Ltd (supra), was inapplicable. It was
stated that the case is about an offer without conditions. It was said that
the offer in that case, was made a contract because it did not have any
condition, which circumstances are absent in casu.
9. About the terms being different and inferior, it was submitted that it is
inaccurate as what has simply been changed is the wording, while the
effect remained the same. Reference was made to the example cited by
Applicants that in terms of their offer of employment, their entitlement to
a thirteenth cheque was subject to performance and business targets.
Further that in the proposed contract, it has been stated that Applicants
may receive the thirteenth cheque but subject to performance, business
targets and affordability on the part of the business to pay. It was argued
that in both cases entitlement is subject to the same conditions.
10. We have carefully considered the submissions of parties and have
noted a number of factors which are common cause. They can be
summarised as follows,
i. Applicants were given offers of employment which they accepted.
ii. After accepting the offers of employment, Applicants commenced
being in the service of Respondent.
iii. Applicants were then remunerated.
iv. The proposed contract of employment came after all these above
mentioned.
v. The terms of the proposed contract are different from those in the
offer of employment, at least in their wording.
From this summary, the question is therefore whether the conditional
offer that was made to Applicants is capable of being made a contract of
employment and consequently supersedes the proposed contract.
11. We wish to note that it is not in dispute that an offer, without
conditions, once accepted, becomes a binding instrument on the parties.
Further, that any alterations on the terms of the offer by a single party,
after being accepted, are unlawful as they amount to a unilateral
variation of a common agreement. This is supported by the authorities of
Page 193 of 283
Carlill v Carbolic Smoke Ball Co. (supra); Hyde v Wrench (supra); and
Francis v Canadian Imperial Bank (supra). We endorse and agree with the
position presented.
12. The latter authority of Francis v Canadian Imperial Bank (supra), has
gone further to demonstrate that even if conditional, the terms of an offer
are binding on parties and cannot be unilaterally varied by the employer.
This in essence means that Respondents attempt to alter the provisions
of the offer, which was accepted by Applicants, cannot stand in law.
Those accepted terms created a binding contract between the parties. As
a result, the argument by Respondent that, by refusing to sign the
proposed contract, Applicants demonstrated non-acceptance, cannot
hold.
13. We say this because a contractual relationship already existed
between parties, per the accepted offer. The parties minds were ad idem
when the Respondent made an offer, which was accepted by Respondent.
The proposed contract does not mark the beginning of the employment
relationship, but merely seeks to formalise the said relationship. This is
basically the purpose of a contract that follows an accepted offer of
employment. It essence, the position would have been different had the
proposed contract not been preceded by the offer.
14. While We agree with Respondent that a contract of employment only
comes into effect if the offer is accepted unconditionally, the proposition
does not apply in casu. We say this because, Applicants were given an
offer which they accepted unconditionally. That acceptance in Our view
created a contractual relationship between parties.
Therefore, the
authority in Solidarity & Another v SA National Parks (supra), does not
apply in casu.
15. About the principle of Freedom to Contract, it has similarly been
misapplied. The principle dictates that parties to a contract must be
allowed to do so without restrictions from government. The principle is
based on the assumption that contracting parties have equal bargaining
power, skill and knowledge. Where the assumptions are absent, then
intervention is necessary to ensure fundamental fairness for those who
lack the power to bargain, skill and knowledge (see Carolyn Edwards,
Freedom of Contract and Fundamental Fairness for Individual Parties: The
Tug of War Continues, (2009) Law Review Vol. 77:3, 647 at 647-648). In
Our view, the latter position holds.
16. About the terms being inferior, We agree with Applicant. While there
are conditions to entitlement to a thirteenth cheque, but the use of the
word may as opposed to will affects the conditions of entitlement. A
word will, carries a guarantee that if the specified conditions are met,
one will be paid a thirteenth cheque. However, the word may, carry an
uncertainty that lies in the discretion of the employer, to either award or
Page 194 of 283
not to award a thirteenth cheque even if the conditions are met.

essence, We agree with Applicants that the conditions are inferior.
In
17. We are of the view that if Respondent is of strong opinion that the
effect of the wording in both the offer and the proposed contract is the
same, and that this is just an issue of semantics, then Our finding will
not prejudice them in any manner. In fact, it means that Respondent can
afford to maintain the terms contained in the initial offer of employment
when preparing the proposed contract. The offer of employment accepted
by Applicants constitutes a valid contract between parties.
18. Assuming that We were to hold the Respondents view, We would be
setting a very ruinous precedent both in our legal jurisprudence and
jurisdiction. We say this because, the effect Our decision would be to
encourage employers to deceive potential employees by offering attractive
employment packages, only to alter them when preparing the contracts of
employment. This is one exercise that We do not want to encourage. We
therefore hold that a contract that seeks to formalise the relations
between parties, must not alter the terms contained in their employment
offer, failing which it runs the risk of being set aside.
19. Applicants second claim is that Respondent refused to acknowledge
their employment by declining to sign confirmation of employment forms,
when so required by Standard Lesotho Bank. The Court was referred to
annexure B to the Notice of Motion, which the form in issue. It was
argued that by virtue of being the employer, Respondent is obliged to
confirm the employment status of its employees, when required to do. It
was prayed that Respondent be ordered to confirm the employment
status of Applicants by signing the Standard Lesotho Bank form,
annexure B.
20. Respondent answered that it had no obligation in law to confirm the
employment status of Applicants. It was added that in any event,
Applicants have not signed the proposed contracts and therefore are not
Respondents employees. It was submitted that if they had accepted
employment with Respondent by signing the proposed contracts of
employment, Respondent would have confirmed their status of
employment with Standard Lesotho Bank.
21. We agree with Respondent that there is no law where it is expressly
stated that an employer has an obligation to confirm the employment
status of its employee.
However, We agree with Applicant that
Respondent has an obligation to confirm his employment status for
Standard Lesotho Bank. We say this because in an employment
relationship, parties have duties and obligations to one another. The said
duties and obligations include employee welfare rights. Employee welfare
entails all various services, benefits and facilities due to an employer from
an employee. These include the service and benefit in issue.
Page 195 of 283
22. As it is trite in law that no general rule stands without exceptions,

there are circumstances where employee welfare rights may be withheld.
The circumstances may vary depending on the nature and reasons for
such refusals, but the reasons must be reasonable. In casu, Respondent
claims that it does not confirm employment status of Applicants because
they are not its employees. We have already determined that they are by
virtue of having accepted the offer, Applicants are Respondent employees.
As a result the refusal on the part of Respondent to confirm Applicants
employment status, on these grounds, is therefore unreasonable.
AWARD
We therefore make the following award,
a) The offer of employment is a binding contract between parties.
b) Respondents are directed to confirm the employment of Applicants by
signing annexure B, which is a letter from Standard Lesotho Bank.
2015.
T C RAMOSEME
MR. MATELA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. SEOAHOLIMO
ADV. MOSHOESHOE
Page 196 of 283

HELD AT MASERU
LC/25/2015

NTSUKUNYANE MOKHOTHO
MOSEBETSI MONONELA
MOTELISI WEETHO
JEMINA SETONA
NTJABU CHAKANE
TEBOHO LIKOTSI
MAMOLETE RAMAHAPU
JERATA KAO
SUZAN PALAMA
MALEMPE MAKHELE
NTINA LEBAKA
MATELISO NTSUPA
MARETHABILE TENEI
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
11th APPLICANT
12th APPLICANT
13th APPLICANT
AND
MAMOHAU HOSPITAL
RESPONDENT
JUDGMENT
Application for payment of salaries of Applicants made on urgent basis. Court
finding that the matter is not urgent. Court finding that parties relied on
matters external to the complaint to justify urgency. Further that Applicants
have failed to show that they would not have substantial relief in future.
Court further finding that the basis of the Applicants claims being brought
before this Court was on account of alleged urgency. Having dismissed the
prayer for urgency, Court declining jurisdiction over the claims with terms. No
1. This is an application for an order in the following terms,
1. Dispensing with ordinary rules pertaining to the modes and
period of service.
2. A rule nisi be and is hereby issued returnable on the date and
time to be determined by this Honourable Court calling upon respondent to
show case (if any) why an order in the following terms shall not be made
final order in this matter.
(a) That the respondent cannot be ordered to pay applicants and other
employees salary of April 2015 exactly the way it is reflected on their
pay slip issued by respondent.
(b) That the respondent cannot be ordered to make payment
Page 197 of 283
into applicants and other employees accounts on the 19th May

2015 before closure of the business.
(c)That the respondent cannot be ordered to pay costs that
applicant have suffered on their personal loans and others
due to delay of payment for salaries.
3. Cost in the event of opposition
4. Applicants shall not be granted further and/alternative relief.
5. Prayers 2(a) (b) (c) shall operate with immediate effect.
2. Applicants are all currently under the employ of Respondent. They claim
that Respondent has not paid their salaries for the month of April 2015.
They have approached Us on urgent basis seeking the prayers mentioned
above. The matter was tabled before Us on the 19th May 2015 and both
parties were before Court.
3. On that day, Respondents concern was that the application had only
been served upon them on 18th May 2015 and that they had not been
able to give instruction to their legal representative to take over the
matter. They had then asked for more time to enable them to instruct
their lawyers. They had also undertaken that by 21st May 2015 at
9:00am, they would be ready to argue the matter.
4. On this first date of appearance, We had indicated to parties that We
wished to be addressed on the issues of urgency of this matter and the
jurisdiction of this Court over their claims, as they related to unpaid
wages. We had then postponed the matter on the terms stated in the
aforementioned. No order was made on the prayers sought.
5. On the date of argument, Respondent had not filed any opposition and in
addition thereto, had failed to appear. Upon application by Applicants,
We directed that the matter proceed unopposed and in default of
Respondent. Having heard Applicants submission and arguments, Our
judgment follows.
Urgency
6. Applicants case was that in an application made on urgent basis, there
are three requirements that must be met. These were identified as
follows:
a) A clear right
b) Apprehension of irreparable harm, and
c) Absence of an alternative remedy.
7. Applicants argued that they had a clear right in that they had worked
during the month of April 2015, and were thus entitled to be paid their
salaries. It was added that notwithstanding this legal right, Respondent
withheld their salaries. It was submitted that supportive of their claim
for a clear right, was the letter from Bishop Bane, the proprietor of
Page 198 of 283
Respondent hospital, where he wrote that there was no reason not to pay
Applicants their salaries.
8. On the second requirement, it was submitted that Applicants were in the
actual apprehension of harm as their salaries were still being withheld.
Further that they were worried that Respondent would continue to
withhold them unless directed otherwise.
It was argued that this
essentially meant that they would continue to suffer unless the Court
intervened. It was added that Applicants were and continued to be
unable to pay their monthly rent, loans and other obligations that
depended on a salary, as a result of the conduct of Respondent.
9. On the last requirement, Applicants argued that they had no alternative
remedy in that if they did not pay their rent, loans and other obligations,
the creditors would go after them and that consequences which cannot be
repaired, will follow.
10. In an application that has been made on urgent basis, the most
important factor is whether the party approaching the court on urgent
basis, cannot and will not obtain substantial redress if the matter is to be
heard on ordinary modes and periods. Supportive of Our view on the
principle is the case of East Rock Trading 7 (Pty) Ltd & another v Eagle
Valley Granite (Pty) Ltd & others [2011] ZAGPJHC 196.
11. At paragraph 6 of the judgment, the learned Notshe AJ had the
following to say,
An applicant party has to set forth, explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant must state
the reasons why he claims that he cannot be afforded substantial redress
at a hearing in due course. The question of whether the matter is urgent to
be enrolled and heard as an urgent application is underpinned by the issue
of absence of substantial redress in an application in due course.
12. The requirements for urgency are further illustrated in the case of
Aroma Inn v Hypermarkets & Another 1981 (4) SA 108 at 110-111, which
was cited with approval within Our jurisdiction in Motemoka Mokaba v
Security Lesotho (Pty) Ltd LC/98/1995, as being the following,
a) That the circumstances of the matter require that it be heard and
determined on urgent basis; and
b) That if the normal modes and periods of the court are followed, an
applicant party will not obtain the substantial relief.
13. We wish to highlight that the requirements that Applicants have relied
on to argue urgency are in fact requirements for the granting of an
interdict and not for urgency. An interdict is a court order that is sought
to enforce a right, while in approaching a court on urgent basis, a party is
merely asking such a court to hear it/him/her outside the normal court
periods, by expediting the hearing of the matter. Clearly the distinction is
huge and cannot be confused.
Page 199 of 283
14. The requirements for an interdict, as shown by Applicant, are stated in

a plethora of cases as,
(a) A prima facie right, even if doubtful,
(b) Apprehension of irreparable harm,
(c) The balance of conscience favours the granting of an interdict, and
(d) The absence of a satisfactory remedy in future.
(see Setlogelo v Setlogelo 1914 AD 221; National University of Lesotho v
Ntitsane & others CIV/APN/454/2012, Lepule v Lepule CIV/APN/193/13;
Nthati Mokitimi v Central Bank of Lesotho LC/23/2011).
15. However, We do note that there is one common requirement in both
situations, namely the absence of substantial or satisfactory remedy in
future. We wish to note at this stage that the substantial or satisfactory
remedy, relates the redress or remedy for the complaint brought before
court for determination and not factors outside the complaint.
16. In casu, Applicants are not saying that they will not be paid their
wages/salaries if this matter is not heard on urgent basis. Rather they
rely on factors outside the complaint that is factors which are not part of
their complaint. We say this because, they argue inability to pay their
rent, loans and other obligations. Evidently, these are not the complaints
before Court. It is Our view that if urgency were to be granted on these
grounds, it would mean that anyone can approach this Court on urgent
basis in respect of almost any claim available in law, as they always carry
harm beyond the complaint before Court. We therefore find that there is
no basis for urgency.
17. Further, Applicants have not shown that if not heard on urgent basis,
they will not be able to recover their unpaid salaries. Evidently, they have
failed to meet the test for urgency. Supportive of Our view is the
authority Makhuva v Lokoto Bus Service (Pty) Ltd 1987 (3) SA 376, at page
389-390, where the Court held as follows,
"I am not persuaded that the matter was so urgent that anything more
drastic than enrolment on the motion roll even in the ordinary way, even if
that were on short notice, was required. In the present case some financial
loss to applicants is alleged, albeit faintly, but there is no suggestion that it
would be irrecoverable.
Jurisdiction
18. Applicants case is that they have brought this matter under section
228 of the Labour Code (Amendment) act 3 of 2000. They submitted that
in terms of section 228, claims made under section 227 may be brought
before this Court on urgent basis. They added that the rationale behind
this section is that the Directorate of Dispute Prevention and Resolution
(DDPR), does not have the power to hear matters on urgent basis. As a
result where a claim that falls within the jurisdiction of the DDPR needs
to be heard on urgent basis, it can be brought before this Court under
section 228. It was however conceded that Applicants are claiming
unpaid salaries.
Page 200 of 283
19. Applicant argument for the jurisdiction of this Court is primarily based
on their claim that this matter is urgent. This essentially means that if a
declaration is made that the matter is not urgent, as We have done, then
the basis of their claim falls together with its substance. On the strength
of Our finding on the issue of urgency, and the primary basis of
Applicants to bring this claim before this Court, the matter stands to be
dismissed for lack of jurisdiction.
20. We wish to comment that the invocation of section 228 in casu, is
misplaced. In terms of that section, where a party has referred a claim
with the DDPR, they may come and seek interim relief or any urgent relief
pending finalisation of the referred dispute. Clearly that section does not
authorise the initiation of a matter that falls within the jurisdiction of the
DDPR before this Court simply because it is urgent or claimed to be as is
the case in casu. The section is clear that in approaching the Court
under section 228, there has to be pending litigation before the DDPR,
which is not the case in casu.
21. Applicants have conceded that their claim is for unpaid salaries. In
terms of section 226(2), in particular subsection (c) thereof,
The following disputes of right shall be resolved by arbitration
...
(c) a dispute concerning the underpayment or non-payment of monies due
under the provisions of the Act;
Clearly, this is a matter that falls within the jurisdiction of the DDPR to
arbitrate, as the Labour Court clearly lacks such powers.
22. We wish to comment that there is a developing tendency on the part of
parties to abuse court process regarding urgent applications. This is a
bad practice in law which must be stopped. The practice has been
condemned before by this Court and those superior to it. Parties should
not and cannot be allowed to file matters on urgent basis for both flimsy
and inadequate reasons, as in casu.
Page 201 of 283
AWARD
On the basis of the above reasons, We find that,
a) The matter is not urgent.
b) The claim for unpaid wages falls within the jurisdiction of the DDPR.
c) Applicants are at liberty to refer their claims with the DDPR.
d) Should they elect to do so, they must within 30 days of issuance
herewith.
2015
T C RAMOSEME
MRS. RAMASHAMOLE
MS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. SEOAHOLIMO
NO APPEARANCE
Page 202 of 283

HELD AT MASERU
LC/14/2015

MATHABISO SIBOLLA
MAMOSIUOA MAMPA
REBECCA MAQEKOANE
MATELISO KHOHLOKOANE
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
AND
TEPO EA SECHABA (PTY) LTD T/A
PAY SAVE HYPERSTORES (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unpaid maternity leave and notice pay. Court mero motu raising a
point of law regarding its jurisdiction over the Applicants claims. Parties
agreeing with the Court that the claims relate to unpaid monies and are
arbitrable before the DDPR in terms of section 226(2) of the Labour Code
(Amendment) Act 3 of 2000. Court remitting the matter to the DDPR to be
heard in the merits, with terms. The principle of incidental proceedings being
explained. No order as to costs being made.
1. These are claims for unpaid maternity leave.
All Applicants were
employees of Respondent until their termination. They referred claims for
unpaid maternity leave and unpaid notice with the Directorate of Dispute
Prevention and Resolution (DDPR). These claims were separately referred
under referrals A0713/14, A0675/14 and A0650/14, and were duly
conciliated upon. Conciliation having failed, reports of non-resolution was
issued by the Arbitrators, in the respective referrals, referring them to
this Court for adjudication. All claims were then joined and referred
together under the current application, with this Court.
2. Upon perusal of the Originating Application, and in particular, at
paragraph 12 thereof, We noted that the Applicants substantive prayer
was only for payment of maternity leave. The Applicants prayers are
couched as follows;
1. Directing the respondent to pay the [maternity] leave owed as it was not
paid.
2. Directing the respondent to pay the costs of suit in the event of opposing
this application.
3. Further and/or alternative relief.
Page 203 of 283
Evidently, nothing touches on the issue of the interpretation or

application of either or both the Labour Code Order (Supra) and the
Labour Code Wages Order (supra).
3. Mindful of this substantive prayer, that is prayer 1, We indicated to
parties that We intended to meru motu raise a point of law regarding the
jurisdiction of this Court to hear and determine the Applicants claim.
Our approach finds support in the case of Lepolesa & others v Sun
International of Lesotho (Pty) Ltd t/a Maseru Sun and Lesotho Sun (Pty)
Ltd [2011] LSLAC 4, where the Court of Appeal stated that a court is not
only entitled but obliged to raise a point of law mero motu, where such is
apparent.
Having duly alerted parties of Our intention, We were
subsequent thereto addressed and Our judgment then follows.
4. Applicants submitted that they had referred claims for unpaid maternity
leave and unpaid notice. During the conciliation stage, which failed to
resolve the matter, Respondent had raised the defence that it was not
liable to pay maternity leave, as the Labour Code Order 24 of 1992 made
it discretionary on the part of the employer to either pay or not pay.
5. It was submitted that, it was at this stage that the learned Arbitrators, in
the separate trials informed them that they had formed the opinion that
parties sought the interpretation of the Labour Code Order (supra) against
the Labour Code Wages Order. The Arbitrators had also said that in their
opinion, that was the premise of the Applicants claims. It was on these
bases that these referrals were referred to this Court for resolution by
adjudication.
6. Applicants added that in their opinion, the matter fell within the
jurisdiction of the DDPR, as they had referred claims for unpaid monies.
They however, came before this Court because the learned Arbitrators
had directed them to do so. They therefore agreed with the Court that the
matter fell well within the jurisdiction of the DDPR. Respondents
representative briefly reacted that he was in agreement with the
submissions of Applicant, as well as the attitude of the Court. He prayed
that the matter be remitted back to the DDPR to be heard in the merits.
7. It is without doubt that Applicants claims are for unpaid monies, that is,
unpaid maternity leave and unpaid notice pay. In terms of section 226(2)
(c) of the Labour Code (Amendment) Act 3 of 2000, the DDPR has
jurisdiction to hear and determine by arbitration,
a dispute concerning the underpayment or non-payment of monies due
under the provisions of the Act;
Evidently, the Applicants claim fall within the jurisdiction of the DDPR.
8. We wish to comment that the jurisdiction to hear and determine a matter
is not determined by issues that may arise in the proceedings, but by the
claim referred. In casu, the claims referred were for unpaid maternity
Page 204 of 283
leave and unpaid notice, and not the interpretation of the Labour Code
Order (supra) against the Labour Code Wages Order (supra), as the learned
Arbitrators subsequently determined. While the interpretation of these
laws may have become the issue/s, or part thereof, in determining the
Applicants claims, it could not determine jurisdiction as it was not the
claim referred.
9. Further, We wish to comment that in terms of section 226 (2) (b) of the
Labour Code (Amendment) Act (supra), the jurisdiction of the DDPR is only
limited to the application and interpretation of,
(i) a collective agreement;
(ii) a breach of a contract of employment;
(iii) a Wages Order contemplated in section 51;
10. This in essence means that, where a party has referred, as an
independent claim, the application and/or interpretation of any law other
than those stated under section 226(2)(b) Labour Code (Amendment) Act
(supra), the DDPR would be right to decline jurisdiction. We say this
because, not only is the DDPR limited by section 226(2) of the Labour
Code (Amendment) Act (supra), but that such jurisdiction is vested with
this Court in terms of section 226(1).
11. Section 226(1) of the Labour Code (Amendment) Act (supra) provides
that,
disputes:
(a) Subject to subsection (2), the application or interpretation of any
provisions of the Labour Code or any other labour law;
However because in casu no such independent claim, that falls outside
the scope of authority of the DDPR, has been referred, it cannot therefore
be proper for the DDPR to decline jurisdiction.
12. We wish to add that the law of incidental proceedings provides that a
court can deal with matters in respect of which it would ordinarily not
have jurisdiction to hear and determine. This happens if and when these
matters, that are outside its scope of jurisdiction, are connected to the
merits of the matters that fall within its ordinary jurisdiction. In essence,
this means that for a court to have jurisdiction on account of incidental
proceedings, the subject matter of the incidental matter or issue must be
connected with the principal proceedings on the merits, as is the case in
casu. These matters are said to be incidental to a matter which is already
before court (see Briggs, The Incidental Jurisdiction of the International
Court of Justice as Compulsory Jurisdiction, 1960 at page 89).
Page 205 of 283
AWARD
a) The matter is remitted to the DDPR to be heard in the merits;
b) Parties are left liberty to recommence conciliation proceedings, if they
may so wish;
c) The remittal must be made within 30 days of issuance herewith;
2015.
T C RAMOSEME
MRS. MOSEHLE
MR KAO
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. LETSIE
ADV. NONO
Page 206 of 283

HELD AT MASERU
LC/ENF/131/2013
A0002/2015

SAM MOKHELE
APPLICANT
AND
FACTORY WORKERS UNION
RESPONDENT
JUDGMENT
An application for the enforcement of the DDPR award. Respondent claiming to
no longer exist and that warrant is improperly enforced against its former
officer. Court finding that Respondent has amalgamated into a new union and
that the award is enforceable in terms of the Labour Code Order 24 of 1992.
Court further finding that the warrant is properly cited. Court reinstating the
warrant earlier issued. No order as to costs being made.
1. This is an application for the enforcement of the Directorate of Dispute
Prevention and Resolution (DDPR) award in referral A0002/2015.
2. The brief background of the matter is that Applicant was the Deputy
Secretary General in the respondent union, until he was dismissed for
misconduct by Respondent. Unhappy with his dismissal, he referred a
claim for unfair dismissal with DDPR, together with claims for unpaid
wages, underpayments and unpaid leave.
3. An award was later issued in favour of Applicant wherein, Respondent
was ordered to pay to him an amount in the sum of M39, 798-54 within
30 days. When Respondent failed to comply with the award, Applicant
initiated the current proceedings with this Court. A warrant was then
issued against one Seabata Likoti, the General Secretary of the
Respondent union.
4. Subsequent thereto, one Mr. Bohloko, a former officer of the Respondent
union, appeared before Court, armed with a letter from the offices of the
Labour Commissioner, specifically from the Registrar of trade unions. He
stated that the letter indicated that Respondent union was no longer in
existence as it had been dissolved. He argued that the individual, Mr.
Seabata Likoti, who had been cited in the warrant was wrongly so, on this
account. We had then suspended the warrant of detention earlier issued
against Seabata Likoti and summoned both parties to appear and
Page 207 of 283
address Us on the issue. We were duly addressed and having heard the
arguments of both parties, Our judgment follows.
5. We wish to note that the following facts were common cause between
parties. Firstly, that Factory Workers Union (FAWU), National Union of
Textile Workers (NUTEX) and Lesotho Clothing and Allied Workers Union
(LECAWU), amalgamated and formed Independent Democratic Union of
Lesotho (IDUL). For purposes of the amalgamation FAWU was dissolved.
Further, that Seabata Likoti who is the General Secretary of FAWU, is
now the Deputy General Secretary of UDL. Furthermore, those members
of the former FAWU continue to pay subscriptions which are being
received by UDL.
6. Applicants case is that section 180 of the Labour Code Order 24 of 1992,
provides that an amalgamation of trade unions does not affect the rights
of creditors to individual unions, before the amalgamations and even after
the amalgamation has taken effect. It was submitted that in the case of
Applicant, the current amalgamation is like a change in name. He added
that in terms of section 183, a change in the name of a union does not
affect the rights of its creditors before it changed its name. Applicant
prayed that on these bases he had a right to go after the Deputy General
Secretary of UDL for his claim.
7. Respondent answered that an amalgamation of trade unions is
specifically provided for by section 177 of the Labour Code Order (supra).
He stated that while that section provides that an amalgamation may be
with or without dissolution, the said section does not state what is to
happen where an amalgamation is with dissolution, in so far as creditors
are concerned. It was added that even section 180 which Applicant had
relied upon for his claim, does not state what is to happen in the same
instance. As for section 183, it was said that FAWU did not change its
name, but was rather dissolved and a new union called UDL was formed.
8. Respondent argued that it is therefore improper that Seabata Likoti, the
Deputy General Secretary of UDL is to be detained for acts and deeds of a
non-existent union, which he no longer worked for. The Court was
referred to the case of Chen Yu Bo v Paballo Theko and others
LAC/REV/08/2013, in support of the proposition. It was added that in
the event the Court finds that Seabata Likoti has been properly cited, that
he be given a chance to answer in terms of section 34 of the Labour Code
Order (supra).
9. Applicant replied that the authority of Chen Yu Bo v Paballo Theko and
others (supra), was inapplicable in casu. It was said that the case relates
to a situation Applicant had opened a business after his father had closed
down his own. In that case, the Labour appeal Court found that there
was no connection between the business of the Applicant and his father
and then set aside the decision of the Labour court.
Page 208 of 283
10. It was submitted that the circumstances of that case are different from
those existing in casu. It was stated that FAWU amalgamated with other
two unions, NUTEX and LECAWU to form UDL. It was added that there
is therefore a connection between FAWU and UDL. It was stated that this
is the position irrespective of whether an amalgamation was with or
without dissolution. It was concluded that Seabata Likoti, being the
Deputy General Secretary of UDL, has been rightly cited in the warrant.
11. We have gone through all authorities cited by parties, submissions
and all documents exchanged and tendered. We do confirm that in terms
of section 177 of the Labour Code Order (supra), an amalgamation may be
with or without dissolution. The section is couched as follows,
Two or more registered trade unions or registered employers organisations
may become amalgamated as one trade union or employers organisations,
with or without dissolution or division of the funds of either or any of them,
12. It is common cause that FAWU and two other unions, NUTEX and
LECAWU, amalgamated and formed UDL, and that FAWU was dissolved.
Evidently the amalgamation was done in line with section 177. The effect
of an amalgamation is stated under section 180. In terms of that section,
An amalgamation or Federation of two or more registered trade unions or
employers organisations shall not prejudice any rights of either or any of
those trade unions or employers organisations or any right of creditor of
either or any of them.
13. While the section does not state what is to happen in each specific
event of amalgamation, that is, with or without dissolution, it also does
not exclude its own application in either case. In fact in Our view, the
correct interpretation is that it applies over any type of amalgamation, it
be with or without dissolution.
14. This in essence means that a union or employers organisation formed
through the amalgamation, whether with or without dissolution, has a
right to claim from debtors what was due to the unions that came
together in their own standing. The reverse also applies, that creditors of
the unions that amalgamated can still go after the new union for acts of
the individual union before the amalgamation.
15. Regarding section 183 of the Labour Code Order (supra), We agree with
Respondent that amalgamation and change of name are not one and the
same thing. With amalgamation, a new union is born, while with a
change of name, the union still exists but under a different name. FAWU
did not change a name but was amalgamated with dissolution, giving
birth to UDL. As a result, section 183 does not aid Applicants case.
16. About the authority of Chen Yu Bo v Paballo Theko and others (supra),
We agree with Applicant that it is inapplicable in casu. We say this
because the facts and circumstances differ and therefore the two cases
Page 209 of 283
are distinguishable. Applicant has eloquently stated the distinction

between the two, and We are content with the distinction made.
17. Respondent had asked that if the Court finds in favour of Applicant,
that summons be issued calling upon Seabata Likoti to come and show
cause why a warrant shall not be issued in terms of section of the Labour
Code Order (supra). We decline to grant the indulgence. We say this
because Our record reflects that Seabata Likoti was summoned to appear
on the 13th July 2015. He neglected, failed or refused to attend, hence
the warrant issued on the same day. To give him another opportunity
would be to make a mockery of the systems and processes of this Court.
AWARD
a) That Seabata Likoti has been properly cited in the warrant of arrest.
b) The warrant of arrest/detention issued on the 13th July 2015 is
reinstated.
2015.
T C RAMOSEME
MRS. MOSEHLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
IN PERSON
MR. T. BOHLOKO
Page 210 of 283

HELD AT MASERU
LC/REV/80/2013
A0810/2012(b)

MASERU PREP SCHOOL
& SCHOOL BOARD
APPLICANT
AND
MAMPHO MOTSUSI
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Six grounds of review raised but reduced to four in argument. Applicant
claiming that it was not heard, that Arbitrator erred by declining jurisdiction,
that Arbitrator erred in not keeping a record of proceedings, and that Arbitrator
erred in adopting a clinical approach. Court only finding merit in one argument
- Arbitrator failed to keep a record. However, Applicant failing to show
prejudice occasioned by failure to keep a record of proceedings. Court not
finding sufficient justification to grant the review. Review application being
refused. No order as to costs being made.
BACKGROUND TO THE DISPUTE
A0810/2012 (b). About six grounds of review had been raised on behalf
of Applicant, but reduced to only four in argument. The background of
the matter is that Applicant had employed 1st Respondent in the position
of Bursar, until her termination on 31st July 2012. Unhappy with the
termination, 1st Respondent lodged a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR), whereat she
challenged both the substantive and procedural aspects of her
termination.
2. 1st Respondent obtained a default award before the DDPR, on the basis of
which she was to be reinstated to her former position in terms of section
73 of the Labour Code Order 24 of 1992. Equally unhappy with the
default award, Applicant lodged a rescission application with the DDPR.
On the date of hearing of the rescission, both parties were made aware by
the learned Arbitrator that the rescission had been filed out of time. It
was at this time that the matter was postponed to another date, with an
order that Applicant must have filed an application for condonation, and
ready to argue the matter by the return date.
Page 211 of 283
3. On the set date of hearing, the learned Arbitrator heard the matter and
subsequent thereto issued an award in terms of which She declined
jurisdiction to hear and determine the rescission application. She had
also reinstated the default award. It is this award that Applicant wishes
to have reviewed, corrected and/or set aside. Both parties were heard
and Our judgment follows.
4. The first ground of review was that the learned Arbitrator erred by
refusing to hear the explanation by Applicant, for failing to file an
application for condonation. It was said in amplification that on the date
of hearing, Applicant had told the learned Arbitrator that the application
had been made and served upon 1st Respondent, safe that it had not been
filed with the DDPR. It was added that the learned Arbitrator had then
asked Applicant to produce a copy of the application and that this
Applicant was unable to do.
5. Owing to Applicants failure to produce a copy of the application, the
learned Arbitrator concluded that there was no application for
condonation and declined jurisdiction to hear and determine the
Applicants rescission application.
It was submitted on behalf of
Applicant that, the learned Arbitrator should have determined if the
application had been made, moreso since the 1st Respondent did not even
deny service of same. It was argued that Applicant had complied with
Regulation 26 of the Labour Code (DDPR) Regulations of 2001. It was
added that if Applicant had been given the chance to state why it had not
filed the application, the learned Arbitrator would have learned that the
said Regulation had been fully complied with.
6. In answer, 1st Respondent submitted that no application was made as the
record has shown. It was denied that 1st Respondent was ever served
with the alleged application. It was further submitted that, Applicant was
given an opportunity to explain itself before the learned Arbitrator. It was
said that this is why Applicant was asked to produce a copy of the
application as proof that it had been made, but failed to do so.
7. Applicants case is that the learned Arbitrator refused to allow them to
explain why they had failed to file an application for condonation.
Refusal suggests that a request, or at least an attempt, was made to
explain but that such attempt was subdued. From the narration in
support of the claim, nothing points to that. Rather, the narration in
amplification demonstrates that Applicant was heard. This is clear from
Applicants claim before the learned Arbitrator that the application had
been served upon the 1st Respondent. Further demonstrating this, is
their failure to prove same by producing the said application, when
requested to do so by the learned Arbitrator.
8. In Our view, what the learned Arbitrator did was not only an effort to
determine if the application existed, but one that was reasonable in the
Page 212 of 283
circumstances where a party had been put to terms to file an application.

We are therefore inclined to agree with 1st Respondent that, not only was
Applicant heard but that no application had been filed, contrary to the
terms put by the learned Arbitrator. We therefore see no procedural
irregularity on the part of the learned Arbitrator. There is simply no
evidence of refusal to hear Applicant on the issue. The point therefore
fails to sustain.
9. The second review ground was that the learned Arbitrator had erred by
declining jurisdiction over the rescission application. It was submitted in
amplification that rescission applications are governed by Regulation 29
of the DDPR Regulations (supra). It was said the said Regulations do not
give the DDPR the power to decline jurisdiction to hear and determine a
rescission application. It was added that the DDPR Regulations (supra) do
not even require a party to file a condonation application, where a
rescission has been filed outside the prescribed time periods. It was
argued that the learned Arbitrator should therefore have determined the
rescission application, rather than to decline jurisdiction, or at least
dismiss it for want of jurisdiction, if She felt strong on that approach.
10. 1st Respondent answered that the learned Arbitrator was right in
declining jurisdiction to hear and determine the rescission application as
it had not been condoned. It was added that because there was no
condonation before Her, the learned Arbitrator was right in Her approach.
It was argued that there are authorities to support this. The Court was
referred to the case of Lesotho Highlands Development Authority v Ralejoe
LAC/CIV/A/03/2006, where the Court stated that,
whenever an appellant realises that he has not complied with a Rule of
Court he should apply for condonation without delay.
11. It was argued that in terms of Regulation 29 of the DDPR Regulations
(supra), a rescission application must be made within ten days of the date
on which an Applicant party became aware of the decision subject of
rescission. It was added that having filed the application outside the
prescribed time limits, the authority in Lesotho Highlands Development
authority v Ralejoe (supra), took effect.
12. It was argued that that having failed to apply for condonation, the
learned arbitrator had no jurisdiction, hence the conclusion. It was
argued that this approach find support in the authority of Lehloenya &
Others v Lesotho telecommunications corporation LAC(CIV)4/2003, where
the learned Justice Peete J, relying on an extract from the case of Lesotho
Brewing Company v Labour Court President CIV/APN/435/95, stated that
without a condonation being granted, then a court has no jurisdiction.
13. It was added that in principle, the proceedings before the DDPR must
be heard and determined expediently. It was submitted that Applicant
was given a chance to file a condonation, with the condition to proceed on
the elected date.
Having failed to comply with the terms of the
Page 213 of 283
postponement, any other route other than the one that was ,adopted
would have gone against the ambition to hear and determine disputes
expediently.
14. We are in agreement that the DDPR Regulations (supra) are silent on
the issue, that is, what is to be done where a rescission has been filed out
of time and without a condonation application. However, where a
regulation or statute is silent on a particular issue, reference is normally
made to other laws such as common law or even case law.
15. The authorities cited by 1st Respondent are clear on the law, or at least
in practice, regarding a rescission application or any application that has
been made in breach of the rules. It is clear that such an application
must first be condoned before jurisdiction to determine can or may arise.
Consequently, the learned Arbitrator could not have been validly expected
to determine the rescission application, as Applicant wants to suggest.
16. We wish to comment with much appreciation that indeed the DDPR
has as its one of the main purports, the idea of speedy resolution of
disputes. While that is the case, speedy resolution should not be at the
expense of justice. The conduct of the learned Arbitrator in casu was well
in line with both the idea of speedy resolution and justice to parties.
Applicant was given an opportunity to make an application for
condonation and was also heard before the decision was taken that it had
not filed a condonation application.
17. We also wish to comment that We agree with Applicant that the
learned Arbitrator should have expressly stated that the rescission
application was dismissed for want of jurisdiction. While We agree with
Applicant on the issue, the effect of the decision to decline jurisdiction is
the same and can at best be cured by seeking direction on the order from
the learned Arbitrator, where parties are doubtful. However, this is an
issue that cannot render the award reviewable.
18. The third ground of review was that the learned Arbitrator erred in
failing to keep a record of proceedings of both the condonation and
rescission applications. It was submitted that dispatched record only
accounts for the default proceedings. It was argued that this is contrary
to Regulation 30 of the DDPR Regulations (supra). It was said that the
said Regulation requires that a record be kept and is couched in
mandatory terms.
19. 1st Respondent answered that while it is true that both the
condonation and rescission application records were not kept, no
prejudice has been shown by Applicant, that was suffered on as a result
of this omission. It was added that, that notwithstanding, the award is
also a record.
Page 214 of 283
20. We have perused the dispatched record and do confirm that it does
not contain both the condonation and rescission proceedings. Evidently,
this is a breach of the DDPR Regulations (supra). Clearly this is an
irregularity on the part of the learned Arbitrator. The Regulation, which
is in mandatory terms, provides that,
The Director shall keep a record of;
(a) any evidence given in an arbitration hearing; and
(b) any arbitration award or ruling made by an arbitrator.
21. However, while We concede that there has been an irregularity, We
also agree with 1st Respondent that Applicant has failed to show that the
irregularity is one that warrants a review of the award. We say this,
because as 1st Respondent has shown, no prejudice has been either
alleged or shown by Applicant. It is now a trite principle of law that while
courts should strive towards ensuring observance of their rules, mere
non-observance without prejudice should not be the decisive factor. Nonobservance must be accompanied by prejudice on the other party to the
proceedings. Consequently, We find that the irregularity committed does
not warrant the granting of a review.
22. The last ground of review was that the learned Arbitrator erred by
adopting a clinical approach in dealing with the Applicants case. It was
argued that Section 25 of the Labour Code (Conciliation and arbitration)
Guidelines of 2004, provides that an effort must be made to deal with the
substantive aspect of the dispute. It was argued that the learned
Arbitrator did not make the anticipated effort as She dismissed the
matter purely on technicalities.
23. It was added that had the learned Arbitrator allowed Applicant to
explain his failure to file the condonation application, the outcome would
have been different. It was stated that given a chance, Applicant would
have explained that it failed to file the condonation application because
1st Respondent had not responded to it, and that as such the matter was
not ripe for hearing.
24. 1st Respondent answered that the learned Arbitrator was not clinical in
Her approach. It was submitted that in fact, She made all reasonable
efforts to deal with the substantive aspect of the dispute. It was
submitted that Applicant was allowed to file a condonation application,
and later allowed to produce proof of the existence of the condonation
application, which it failed to do. It was argued that this is evidence of
non-insistence on the legal formalities, because Applicant was given
multiple chances which it thwarted. It was argued that the learned
Arbitrator did right by declining jurisdiction as Her hands were tied due
to failure to exercise opportunities by Applicant given to it.
25. We are conscious of the spirit and purport of the DDPR Conciliation
and Arbitration Guidelines (supra). In fact that is the same idea behind
the establishment of this Court. Both the Labour Court and the DDPR
Page 215 of 283
are specialised institutions, one being a tribunal and the other a court
respectively, meant to dispense substantial justice. As a result, they both
differ substantially from other institutions that dispense justice. Having
said this We shall now address the arguments.
26. We agree with 1st Respondent that the learned Arbitrator made all
reasonable efforts to deal with the substantive aspect of the dispute.
Evidence has shown that after the default award, Applicant filed a
rescission application. The said application was not thrown out of court
for being late, but rather, Applicant was given a chance to apply for
condonation. Further having failed to file the said condonation, Applicant
was given a chance to produce proof that such an application existed.
This in Our view was a reasonable effort on the part of the learned
Arbitrator to execute the spirit and purport of the DDPR. The learned
Arbitrator, evidently avoided a strict application of the law.
27. We also wish to comment that We have already ruled that there is no
evidence that Applicant was refused the opportunity to explain why the
condonation application was not filed. However, assuming that such
opportunity was refused, the explanation intended to be given would not
have sustained. We say this because the filing of an application does not
depend on the other party reacting to it. If this were to be the case, it
would mean that parties to any litigation can just undermine the due
processes by not reacting to the other partys claim. This is unheard off
and therefore fails to stand.
AWARD
b) The award in referral A0810/12 (b) stands.
2015.
T C RAMOSEME
MR. MATELA
MRS. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. RAFONEKE
ADV. MOSHOESHOE
Page 216 of 283

HELD AT MASERU
LC/REV/161/2013
C0035/2013

ELLERINES FURNISHERS (PTY) LTD
APPLICANT
AND
MAPESELA MOEJANE
DDPR
B. MOKITIMI: ARBITRATOR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Two grounds of review
having been raised on behalf of Applicant that the learned Arbitrator made a
wrong conclusion on the facts; and that the learned Arbitrator failed to apply
her mind to the factors to consider in assessing compensation. Court not
finding merit in the review grounds and refusing the application. Award of the
DDPR being reinstated.
No order as to costs being made. Principles
considered: distinction between an appeal and review; and factors to consider
in awarding a just and equitable quantum of compensation.
1. This is an application for the review of the DDPR award in referral
C0035/13.
Two grounds of review have been raised on behalf of
Applicant namely that the learned Arbitrator misdirected herself by
concluding that refusal to accept service of notification of hearing was
reasonable; and that the award of compensation was made without
proper application of the mind to the factors prescribed under the Labour
employee of Applicant until he was dismissed for misconduct. Unhappy
with his dismissal, he referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR). An award was
thereafter issued in his favour. Equally unhappy with the decision,
Applicant initiated the current proceedings for the review, correction
and/or setting aside of the award in issue. Both parties were in
attendance and made presentations. Having heard them, Our judgment
follows.
Page 217 of 283

3. Applicants case is that the learned Arbitrator erred in concluding that
the referral by 1st Respondent to accept a notification of hearing, on the
ground that it was not served at his residential home, was reasonable. It
was submitted that although 1st Respondent did not know the content of
the document that was being served upon him, he suspected that it
related to his suspension and that this was his statement at cross
examination. The Court was referred to page 73 of the record in support.
4. It was submitted that in refusing to accept service, 1st Respondent acted
unreasonably as contemplated under section 11 (6) of the Labour Code
(Codes of Good Practice) Notice of 2003. It was stated that in terms of the
said section, unreasonable refusal to attend a hearing entitles the
employer to proceed with the hearing in absence of the concerned
employee.
5. Regarding the compensatory award, it was submitted that the learned
Arbitrator failed to apply Her mind to the consideration stated under
section 73 (2) of the Labour Code Order (supra), for a just and equitable
award. It was argued that the learned Arbitrator, in failing to make these
considerations, She made a punitive award instead of one that is
compensatory. It was argued that the 36 months award in this punitive
and excessive.
6. 1st Respondent answered that the learned Arbitrator did not err as
suggested. It was submitted that in terms of the suspension letter,
Applicant was to remain at his private residence for service and
notification on matters concerning his suspension, during working hours.
It was also a material term of his suspension that if intended to leave
during the working hours, he had to inform one Khoele, who was the
manager at Applicant company.
7. It was stated that the alleged notification, whose contents that 1st
Respondent did not know, was served upon him outside the terms of his
suspension, specifically at a public bar where he was indulging in
alcoholic beverages, and also outside the working hours. It was added
that in finding that the conduct of the 1st Respondent was reasonable, the
learned Arbitrator considered the very same suspension terms. It was
submitted that the learned Arbitrator therefore did not err.
8. About the compensatory award, it was submitted that the learned
Arbitrator considered the factors stated under section 73 (2) of the Labour
Code Order (supra), and went even beyond. It was stated that at
paragraph 26 of the arbitration award, the learned Arbitrator considered
the remainder of the contract, breach on the part of 1st Respondent, his
age and qualifications as well as his attempts to mitigate his loss.
9. It was added that due to consideration of the above factors, the award
cannot be labelled punitive. It was stated that the award was made after
Page 218 of 283
due and careful consideration of applicable and relevant factors. The

Court was referred to the case of Limkokwing University of Creative
Technology (Pty) Ltd v Malisema Makoa & Others LC/REV/109/2012, in
support of the proposition.
10. In the case of JDG Trading t/a Supreme Furnishers .v. M. Monoko &
Others LAC/REV/39/2009, the Labour Appeal Court stated the
distinction between an appeal and a review. It was said in this case that,
review.
11. The first ground of review, while it attempts to set aside the arbitration
award in question, it is based on an argument that the learned arbitrator
came to the wrong conclusion. This is clearly visible in the ground itself.
We are therefore of the view that the complaint is in actual effect an
appeal, the mandate that this court lacks. However, We will proceed to
address the ground for purposes of ironing out the apparent
misconception of the law by parties.
12. We have perused page 73 of the record of proceedings, and do confirm
that Applicant did state that he suspected that it was a document that
had to do with his suspension. This is captured as follows:
Mr. Van Der Heer:
You suspected it was a to do with
your suspension, not so?
Mr. Moejane:
Yes
Mr. Van Der Heer:
And you still didnt want to know
what was in there?
Mr. Moejane:
Yes
13. We have also gone through section 11(6) of the Labour Code (Codes of
Good Practice) Notice of 2003, and do confirm that they state that,
if an employee unreasonably refuses to attend the hearing, the employer
may proceed with the hearing in the absence of the employee.
14. While We confirm the content of section 11 (6) of the Codes of Good
Practice (supra), We do not see how it develops Applicants case,
particularly in relation to the statement of 1st Respondent at page 73 of
the record. In fact, We agree with 1st Respondent that section 11 (6), has
been misapplied as it relates to a situation where an employee was
notified but elected not to attend. In casu, there is evidence that 1st
Respondent did not know the content of the document he was being
served with.
Page 219 of 283
15. Further, We wish to comment that the learned Arbitrator has justified
Her conclusion why She found that 1st Respondent acted reasonably in
refusing service. As referenced by 1st Respondent this is contained at
paragraphs 21 24 of the arbitration award.
16. Specifically at paragraph 22, the following is recorded,
Applicant himself said when he was suspended he was told that he could
be called or they would come to his place whenever they needed him. This
evidence was left unchallenged. This leaves us with the opinion that
applicant did not act unreasonably by refusing to accept the notice that
was served at any place other than his place of residence since he was
instructed to stay at his place of residence during working hours where
respondent knew they would find him whenever they needed him.
17. Regarding the compensatory award, We have also considered the
provisions of section 73 (2) of the Labour code Order (supra). We do
confirm that the said section provides that:
In assessing the amount of compensation to be paid, account shall also be
taken to whether there has been any breach of contract by either party and
whether the employee has failed to take such steps as may be reasonable
to mitigate his or her losses.
18. At page 26 of the arbitration award under the heading FORMULATION
OF THE AWARD, the learned Arbitrator justified the award made to 1st
Respondent. In Her justification, the learned Arbitrator makes reference
to a number of factors which include:
i. The remainder of the contract.
ii. Breach by 1st respondent.
iii. 1st respondents age.
iv. 1st respondent qualifications.
v. Mitigation of loss by 1st respondent.
vi. Cases of Standard Lesotho Bank v Morahanye LAC/CIV/A/06/2008
and Khoai Matete v Institute of Development Management
LC/46/2000.
19. In Our view this is evidence of both consideration and application of
mind to the relevant factors in determining an award of compensation
that is both fair and equitable. We therefore find that the learned
Arbitrator did not err.
Page 220 of 283
AWARD
We make the following award.
c) Award to be complied with within 30 days of issuance herewith.
2015
T C RAMOSEME
MR. MOTHEPU
MISS. LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. LOUBSER
ADV. MACHELI
Page 221 of 283

HELD AT MASERU
LC/REV/26/2014
A0626/2013

SINOHYDRO CORPORATION (PTY) LTD
APPLICANT
AND
RORISANG MOREKI
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of arbitration award. Applicant claiming failure to
apply a mind on the part of the learned Arbitrator. Court finding that the
learned Arbitrator duly applied Her mind to the facts and evidence before Her,
and the applicable legal principles. Court refusing the review application and
reinstating the award of the DDPR. No order as to costs being made.
BACKGROUND OF DISPUTE
A0626/2013. Two grounds of review, both involving a claim for failure to
apply a mind to the facts and evidence.
employee of Applicant until she was dismissed for misconduct. She was
dismissed for driving the Applicants motor vehicle without authorisation.
Unhappy with the dismissal, 1st Respondent referred a claim for unfair
(DDPR). The matter was duly heard and an award later made in favour of
1st Respondent.
In terms of the award, Applicant was to pay
st
compensation to 1 Respondent for unfair dismissal.
3. Equally unhappy with the award, Applicant initiated the current
proceedings, wherein it sought the review, correction and/or setting aside
of the award in issue. Both parties made representation and having
heard them, Our judgment follows.
4. Applicants case is that the learned Arbitrator rightly made a finding that
Applicant was not authorised to drive the Applicant vehicle. The Court
was referred to paragraph 10 of the arbitration award for the finding. It
was added that notwithstanding this finding, the learned Arbitrator later
made a conclusion that the dismissal of 1st Respondent was substantively
Page 222 of 283
unfair. It was argued that this was contrary to both logic and section 10
of the Labour Code (Codes of Good Practice) Notice of 2003.
5. It was argued that in making this erroneous conclusion, the learned
Arbitrator wrongly relied on the case of Thabo Mpakanyane v Ministry of
Communications, Science and Technology and the Attorney General
LC/PS/A/01/2010. It was submitted that the above authority related to
a challenge on procedural fairness and not substantive fairness. It was
added that, it was thus improper for the learned Arbitrator to have relied
on this authority to determine the substantive fairness of the dismissal of
1st Respondent.
6. It was argued that the substantive and procedural fairness of a dismissal
are two different aspects and that one cannot affect or influence the
other.
It was stated that they should therefore be dealt with
independently. The Court was referred to the case of Standard Lesotho
Bank v Morahanye LAC/CIV/A/06/2008, where a distinction was made
between these two aspects of a dismissal. It was added that at best, the
learned Arbitrator should have found the dismissal substantively fair but
procedurally unfair, and not as She did.
7. 1st Respondent answered that in casu, she had been found to have
committed the misconduct but not that her dismissal was fair. It was
stated that this was the also the attitude of the disciplinary panel. It was
added that this was evident in its finding of misconduct, where
disciplinary the panel recommended the sanction of a final written
warning. It was stated that contrary to the recommendation, the sanction
was altered to dismissal by Applicant management.
8. It was submitted that the learned Arbitration, having applied Her mind,
found the conduct of Applicant both arbitrary and irregular and found
the dismissal to be both substantively and procedurally unfair. The
Court was referred to paragraph 12 of the arbitration award. It was
concluded that there was no irregularity.
9. We have gone through the arbitration award and specifically at paragraph
10. In that paragraph the learned Arbitrator makes a finding that
Applicant committed the misconduct and no more. This is reflected as
such,
It follows therefore that applicant has failed to discharge her burden and
this tribunal can safely conclude that applicant was not authorised to drive
the company vehicle, an act that led to her dismissal.
10. We have not found anywhere in the award where a conclusion was
made that the dismissal was substantively fair as alleged by Applicant.
As rightly pointed out by Applicant, section 10 of the Codes of Good
Practice (supra), provides the steps to be taken in determining the
substantive fairness of a dismissal. These steps are in addition to
whether or not an employee committed a misconduct.
Page 223 of 283
11. In essence, this demonstrates that the determination of whether the

dismissal is substantively fair or not, does not only lie in whether the
misconduct was committed or not. Among the cited considerations are,
i. Validity of the rule,
ii. Whether it was dear,
iii. If the employee was aware reasonably,
iv. If the rule was consistently applied, and
v. If dismissal was an appropriate sanction.
12. We have also considered the authority of Thabo Mpakanyane v
Ministry of Communications, Science and Technology and the Attorney
General (supra). The summary of the case has been drawn in the
arbitration award, rightly for that matter.
In that authority, the
disciplinary panel had recommended a sanction to management.
Management without a hearing for the concerned employee, altered the
recommendation and imposed the sanction of dismissal. The Court
found the conduct of the employer, through its management, was
arbitrary and irregular and ordered the reinstatement of the dismissed
employee.
13. In Our view, the matter at hand falls in all four corners of the above
authority. 1st Respondent was found guilty of misconduct and a final
written warning was recommended. Without hearing him, Applicant
through its management altered and/or deviated from the
recommendation and imposed the sanction of dismissal. Consequently,
the learned Arbitrator was right in relying on this authority for Her
decision.
14. While We agree that the substantive and procedural fairness of a
dismissal are two distinct aspects, but they cannot be treated separately
or considered in isolation of one another. We say this because a
procedurally unfair dismissal can affect the substantive aspect of the
dismissal, in as much as a substantive unfairness of a dismissal can
affect a procedural aspect of the dismissal, at least in terms of the
findings.
15. In essence there may be instances where a dismissal may be found to
be substantively fair but procedurally unfair, as suggested by Applicant,
or where a procedural unfairness may invalidate the reason for dismissal,
as has happened in casu. We however take note of the authority of
Standard Lesotho Bank v Morahanye (supra), and the distinction made
between a procedural and substantive aspect of a dismissal.
16. A claim for failure to apply a mind suggests that facts and evidence
were put before the decision maker and that he/she failed to give a
thought to them. A thought is an internal activity whose visibility can
only come about by mention, acceptance or disqualification with reason.
We are satisfied that the learned Arbitrator has done all these in casu.
Page 224 of 283
AWARD
On the basis of the above reasons, We find that,
a) The learned Arbitrator committed no irregularity but fully applied Her
mind.
b) The review application is therefore dismissed.
c) The award of the DDPR is reinstated.
d) The award must be complied with within 30 days of issuance herewith.
e) No order as to costs.
2015.
T C RAMOSEME
MRS. MOSEHLE
MR KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. THANTI
MS. MOSOLA
Page 225 of 283

HELD AT MASERU
LC/REV/37/2014
A1051/2013

ERIC MASARA
APPLICANT
AND
TEPONG (PTY) LTD
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of arbitration award. Two grounds of review having
been raised unwarranted adherence to a fixed principle of law and mala
fides. Only one ground of review succeeding. Court granting the review
application and remitting the matter to the DDPR for a hearing de novo before
a different arbitrator with terms. No order as to costs being made. Principles
considered - finality to litigation, res judicata, once and for all, and the effect of
a settlement agreement in unfair dismissal cases.
A1051/2013. Only two grounds of review have been raised on behalf of
Applicant namely, unwarranted adherence to a fixed principle of law and
mala fides.
1st Respondent until he was dismissed. Unhappy with the dismissal, he
Prevention and Resolution (DDPR), wherein he claimed reinstatement.
However, the matter was resolved by settlement agreement on the 29th
August 2013. In terms of the settlement, parties had agreed on payment
of four month salaries in full and final settlement of the claim. The
settlement has since been honoured.
3. Subsequent thereto, Applicant referred a claim for payment of gratuity
under referral A1051/2013, which resulted in the award subject of
review. The matter was not opposed but Adv. Moshoeshoe, allegedly for
1st Respondent, was before Court to confirm same, and to observe the
proceedings. Having heard Applicants case, Our judgment follows.
Page 226 of 283

4. Applicants case is that the learned Arbitrator erred by relying on a fixed
principle of law.
It was submitted that the learned Arbitrator
unreasonably adhered to the principle of once and for all, even where it
was obviously inapplicable.
It was submitted that in dismissing
Applicants claim for gratuity, the learned Arbitrator stated that Applicant
should have referred the claim together with that of unfair dismissal,
thereby unreasonably applying the once and for all principle.
5. It was argued that this principle was inapplicable because a party cannot
claim both reinstatement and payment of gratuity in one suit. It was
submitted that the claims are in direct conflict of each other, as one
signifies rejection of termination, while the other signifies acceptance of
same. It was argued that by insisting on once and for all, the learned
Arbitrator erred in this case.
6. It was added that the claim for gratuity only arose after termination had
been confirmed in the settlement agreement, hence the subsequent
referral of a gratuity claim. It was further stated that the unfair
termination had occurred while Applicant was in the middle of his two
year contract, and that until the said contract had reached the end, the
claim had still not arisen.
7. The second review ground was that the learned Arbitrator had
demonstrated malice in the proceedings, by noting that parties had
agreed not to lead evidence but to make submissions. It was stated that
that was not the correct position, as Applicant had insisted during the
proceedings that it was necessary to lead evidence. The Court was
referred to paragraph 4 at page 4 of the bundle of documents filled of
record.
8. It was submitted further that both unwarranted fixed adherence to the
principles of law and mala fides are reviewable irregularities. The Court
was referred to the case of JDG Trading (Pty) Ltd t/a Supreme Furnishers v
M. Monoko NO and others LAC/REV/39/2004. It was prayed that the
review be granted and that the award be set aside and/or corrected.
9. The once and for all principle, where correctly or incorrectly referenced in
casu, is meant to protect the right of those involved in litigation, mostly
the Respondent party, against malicious litigants from bombarding them
with repetition suits and actions that never end. In terms of the
principle, all claims that derive from the same cause must be referred in
one suit. The principle is premised on the idea that everyone has a right
to finality in litigation.
10. Instructive on the principle of finality to litigation is the Labour Appeal
Court decision in Thabo Teba & 31 Others v Lesotho Highlands
Development Authority LAC/CIV/A/06/09, where the Court had this to
say,
Page 227 of 283
A litigant is entitled to closure of litigation. Finality in litigation is intended

to allow parties to get on with their lives.
11. However, the once and for all principle must be properly applied in
circumstances that best suit its application. Where properly applied, it
renders claims subsequent to the initial claim, res judicata. As with any
other general rule of law, there are exceptions to the once and for all
principle and such include where there is a conflict in the claims that
arise from the same cause. In casu, there is both an apparent and a real
conflict between the claims referred. Applicant has eloquently shown the
conflict and We are satisfied at that.
12. The situation would have been different, in Our view, if Applicant had
as a consequence of an unfair dismissal, claimed compensation, either as
the main relief or as an alternative to reinstatement. In that case, the
effect would be that termination is accepted, safe for the reason and
procedure. We would therefore, in that case conclude that the once and
for all principle was applicable.
13. We wish to comment on the effect of settlement agreement in a dispute
where the dismissal has been challenged as unfair.
A settlement
agreement is a result of negotiation between parties and once reached
denotes a consensus. Where concluded in an unfair dismissal claim, its
effect is to cure any irregularities in termination and make the
termination mutual. It essentially eliminates fault on the part of either
side.
14. We also wish to comment on the principle of res judicata in relation to
the matter at hand. The principle of res judicata requires that one
establish that the current and old matters are based on the same set of
facts and have been finalised between the same parties on the merits of a
cause of action (see Potlako Thabane & another v Workmens
Compensation Trust Fund Committee & two others LC/08/2009). The
principle prevents litigating from litigating on a matter that has already
been decided upon. In casu, the initial claim was not heard and finalised
in the merits, as it was finalised by settlement. In essence, the principle
of res judicata would not apply.
15. Regarding the second ground, We have gone through the arbitration
award and have not found anywhere where the learned Arbitrator was
recorded suggesting that parties agreed to make submissions without
leading evidence. However, We do confirm that page 4, paragraph 4 of
the record of proceedings, the record reflects that Applicant did state that
it would have been proper to lead evidence on whether the dismissal was
fair or not.
16. This is recorded as thus,
Our submission is that and this is where I said it would have been proper
to hear evidence before submissions. The applicant was dismissed unfairly
Page 228 of 283
and that submission would be proved by evidence, by being unfairly

dismissed the respondent made it impossible for the application to
perform.
17. Applicants claim was dismissed primarily because the learned
Arbitrator was of the view that it should have been referred with the
unfair dismissal claim, per the once and for all principle. Clearly, the
issue at this stage was not whether the dismissal was fair or not, but
whether Applicant was entitled to a gratuity payment or not. We have
already shown that effect of a settlement agreement in unfair dismissal
cases. Consequently, the fairness or otherwise of the dismissal was no
longer an issue.
18. While We note that there is evidence that Applicant felt that evidence
had to be led, it was irrelevant to the issue for determination. In addition,
We have shown that there is nowhere in the record where the learned
Arbitrator makes a record that parties had agreed not to lead evidence.
This incidentally, is the premise of Applicants claim for malice on the
part of the learned Arbitrator. This being the case the claim cannot
succeed. However, on the strength of the first ground, this review
succeeds.
AWARD
We therefore make an award as follows.
a) The review is granted.
b) The matter is remitted to the DDPR to be heard de novo before a different
Arbitrator.
c) The remittal must be done within 30 days of issuance herewith.
2015.
T C RAMOSEME
MRS. MOSEHLE
MR KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NONO
ADV. MOSHOESHOE
Page 229 of 283

HELD AT MASERU
LC/REV/11/2015
A0079/2014

NATIONAL UNIVERSITY OF LESOTHO
APPLICANT
AND
PHEELLO NTHAKENG SELINYANE
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Six grounds of review having been
earlier raised. 1st Respondent challenging them as being appeal disguised as
review. Court finding merits in argument at least in relation to three grounds.
Applicant succeeding on the remaining grounds of review and Court granting
the review. Award being set aside and matter being remitted to the DDPR to
heard de novo before a different arbitrator with terms. No order as to costs
being made.
A0079/2014. Six grounds of review had been raised on behalf of
Applicant but only three were argued. The matter was duly opposed and
both parties were in attendance and did make presentation.
2. The brief background of the matter is that Applicant had employed 1st
Respondent in the position of a Lecturer. He was dismissed after being
found guilty of dereliction of duty. Unhappy with his termination, 1st
Respondent had then referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR). Conciliation
was duly conducted, at the end of which no resolution had been reached.
3. The learned Arbitrator is claimed to have then, on his motion, raised a
point in limine and required parties to address him on it. The point was
whether it was correct or not, in law, for ASAC to enhance the disciplinary
sanction of a final written warning that was recommended by the chairman
of the disciplinary inquiry against applicant to a more severe sanction of
dismissal as was confirmed by the Council. In the end, an award was
issued wherein the Applicant was ordered to reinstate 1st Respondent
without loss, in terms of section 73 of the Labour Code Order 24 of 1992.
It is this award that Applicant wishes to have reviewed, corrected and/or
set aside.
Page 230 of 283
4. We wish to note that at the commencement of the proceedings, two major

developments took place. Firstly, parties applied to the Court to hear and
determine the review without the transcribed record of proceedings. The
arguments advanced were that no evidence was led at the DDPR on the
matter; that the award was sufficient for purposes of this review; and that
it was by consent of both parties that the record was not necessary.
5. We granted the application, primarily on the basis of the second
argument, that the award was sufficient for the determination of the
issues raised. As for the other reasons, they are not valid grounds upon
which the application could be granted. We have stated in a number of
cases, the purpose of a record of proceedings, which is to provide
evidence of an irregularity complained of. Where the record would not
serve that purpose, then it is not necessary.
6. The second development was the point in limine raised on behalf of the 1st
Respondent that the grounds are appeal and not review. We were
addressed on the issue after which We ruled that three of the grounds
raised were appeal and not review, and dismissed them for want of
jurisdiction. We then directed parties to address Us on the remaining
grounds and promised them Our reasons for the decision of the point in
limine at a later stage. Our reasons and the decision on the main review
therefore follow.
Point in limine
7. 1st Respondents case was that this is an appeal disguised as a review, in
that Applicant was challenging the conclusions as opposed to the method
of trial. The Court was referred to the case of Chief Constable of the North
Wales Police v Evans [1982] 3 ALL ER 141, where the concept of judicial
review is explained.
8. Further reference was made to the case of Johannesburg Stock Exchange
and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 (A),
where the following is said,
'Broadly, in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues in accordance with
the "behests of the statute and the tenets of natural justice" Such failure
may be shown by proof, inter alia, that the decision was arrived at
arbitrarily or capriciously or mala fide or as a result of unwarranted
adherence to a fixed principle or in order to further an ulterior or improper
purpose; or that the president 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 president was so grossly
unreasonable as to warrant the inference that he had failed to apply his
mind to the matter in the manner aforestated.
Page 231 of 283
9. It was submitted that the above quotation demonstrates what constitutes

a review ground. It was stated that among what was identified to
constitute review grounds are
- Disregard of evidence
- Mistake of law; as well as
- The wrong application of the law.
10. It was submitted that none of these have been alleged by Applicant in
its motion and founding affidavit. Specific reference was made to ground
5.1 that,
The learned arbitrator erred and/or misdirected himself in law by holding
as he did that 1st respondent was subjected to double jeopardy when his
punishment was enhanced by Academic Staff Appointments Committee
(ASAC).
11. Further reference was made to the cases of Kule and Others v Lesotho
Highlands Development Authority and another LC/REV/77/2008 and
Thabo Mohlobo and 13 others v Lesotho Highlands Development Authority
and Another LC/REV/42/2009, in support of the above argument.
12. Applicant answered that all grounds are based on the fact that no
evidence was heard before a decision was made by the learned Arbitrator.
It was argued that this constitutes a reviewable irregularity as the
complaint is procedural. With regard to the 1st ground of review, it was
submitted that the decision that Applicant was being subjected to double
jeopardy was not based on any evidence, and that as such it was a
procedural irregularity. Similar sentiments were expressed in relation to
the rest of the grounds of review. It was prayed that the point in limine be
dismissed.
13. Whenever a challenge of this nature is made, the claim is that prima
facie the arguments do not make a case for review but for an appeal. We
have considered the review grounds raised on behalf of Applicant and
they are couched as follows,
5.1 The learned arbitrator erred and/or misdirected himself in law by
holding as he did that 1st respondent was subjected to double jeopardy
when his punishment was enhanced by Academic Staff Appointments
Committee (ASAC).
5.2 The learned arbitrator erred and misdirected himself in holding as he
did that the respondent should be paid all lost emoluments without having
head evidence on whether the 1st respondent did mitigate his loss or not.
The learned arbitrator therefore misconstrued the principles governing an
award of compensation in labour matters as the compensation awarded is
not equitable.
5.3 The learned arbitrator erred [and] misdirected himself in holing as he
did that the 1st respondent should be paid amount of three hundred and
twenty five thousand three hundred and ninety five Maloti (M325, 395-00)
Page 232 of 283
while it was clear that the 1st respondent did not render any services for
the said amount.
5.4 the learned arbitrator erred and misdirected himself in law by ordering
the [applicant] to reinstate the 1st respondent on a specific day without first
having heard evidence as to whether reinstatement would be practicable
considering that the 1st respondent has not been in the employment of the
application for about fifteen months at the time of the award.
5.5 The learned arbitrator erred and misdirected himself in not enquiring
whether or not there [was] incompatibility between the parties.
5.6 The learned arbitrator erred and misdirected himself in law by holding
as he did that application had failed to prove that there is a law that
empowers its ASAC to enhance disciplinary sanctions while in fact that the
respondents had proved that based on NUL statute 40 and the judicial
precedents.
14. We wish to note that We accept the position of Lord Brightman in the
case of Chief Constable of North Wales Police v Evans (supra), that,
Judicial review is concerned, not with the decision but with the decision
making process. Unless that restoration on the power of the court is
observed, the court will in my view, under the guise of preventing abuse, be
itself guilty of usurping power.
15. In fact a similar view is expressed in the case of J. D. Trading (Pty) Ltd
t/a Supreme Furnishers v M. Monoko and Others LAC/REV/39/2004. At
paragraph 13 the Court stated that:
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 the case on review.
16. In the same authority, at paragraph 16, the Court relies on a
quotation from the case of Johannesburg Stock Exchange and Another v
Witwatersrand Nigel Ltd and Another (supra), which 1st Respondent has
relied upon to demonstrate what constitutes reviewable irregularity,
similarly with the intention to provide a guide as to what is reviewable
and not. What is clear from the quotation is that only procedure is
subject to review.
17. We have considered the grounds raised as well as the submissions of
parties. We agree with 1st Respondent, at least to some extent that the
grounds raised on behalf of Applicant are appeal disguised as review.
This relates to grounds 5.1, 5.3 and 5.6. We will now demonstrate how
this is so.
18. All these grounds are concerned with the conclusion and not the
method of trial. Ground 5.1 merely alludes to the fact that the learned
Arbitrator was wrong to have found that 1st Respondent had been
Page 233 of 283
subjected to a double jeopardy when his sanction was enhanced. Clearly,

the complaint is factual and not procedural, at least prima facie the
papers filed.
19. What fortifies this argument is an attempt by Applicant in answer to
argue that the decision was wrong because no evidence was led.
Applicant is in essence attempting to plead facts from the bar which
should have been contained in its founding affidavit if that was the case.
These are material facts that form the basis of Applicants qualm that a
wrong conclusion was reached. We simply cannot allow Applicant to
make a new case from the bar.
20. Similar sentiments are held in respect of grounds 5.3 and 5.6. We say
this because underground 5.3, Applicant is dissatisfied with the awarded
amount of M325, 395.00. The reason is simply that no services were
rendered. This is purely factual as no reference is made to any procedural
irregularity that the learned Arbitrator is said to have committed.
Concerning ground 5.6, applicant is essentially complaining that on the
strength of the available evidence, a different conclusion should have
been reached. It is in essence saying the conclusion is wrong. These are
all grounds of appeal and not review.
21. Regarding grounds 5.2, 5.4 and 5.5, We are satisfied that they sound
in procedure. They are all based on an allegation that no evidence was
led before the decision to award both the reinstatement of 1st Respondent
and the emoluments was made. This in Our view is an issue that
concerns the mode of reaching the decision and thus prima facie review.
What really remains is whether there is merit in the claim.
Consequently, grounds 5.1, 5.3 and 5.6 are dismissed for want of
jurisdiction and grounds 5.2, 5.4 and 5.5 stand as prima facie review
grounds.
The merits
22. Applicants case was that no evidence was led in the proceedings on
any issue. Rather that the learned Arbitrator caused parties to address
him on what He termed a point in limine. Subsequent to the addresses,
an award was issued making a determination not only on the point in
limine, but also on issues that in Applicants opinion needed evidence in
order to be fairly and equitably determined.
23. It was submitted that in terms of section 73 of the Labour Code Order
(supra), an arbitrator must in determining the remedy to award, consider
the circumstances of the case. It was stated that these circumstances
can only come from the evidence of parties. It was argued that since no
evidence was led in casu, there was no observance of section 73 of the
Labour Code Order (supra). Further reference was made to the cases of
Pascalis Molapi v Metro Group Ltd and Others LAC/CIV/R/09/2003 and
Nien Hsing v Morero Mohlahatsa LC/REV/48/2011 in support of the
argument that, an assessment must be made on the basis of evidence.
Page 234 of 283
24. 1st Respondent submitted that in making an award in terms of section

73 of the Labour Code Order (supra), two considerations apply. Firstly,
that if an award concerns compensation for lost wages or in lieu of
reinstatement, then evidence must be led. However, if compensation is
not either in lieu of reinstatement or for lost wages, then no evidence is
needed. It was argued that the latter applied in casu. The Court was
referred to the cases of Thandiwe Labane and others v Tai Yuan garments
(Pty) Ltd LC/43/2013 and Standard Lesotho Bank v Raphael Mphezulu
LC/REV/87/2011, in support of the proposition.
25. It was argued that issue of practicality of reinstatement is essential in
small organisations and not in big organisations, which include Applicant
institution. The Court was again referred to the case of Standard Lesotho
bank v Raphael Mphezulu (supra), to support the contention.
26. It was added that Applicants claim should not be upheld because as
complainants before the DDPR, it was their obligation to request to lead
evidence. As a result, having failed to do so before the learned Arbitrator,
He cannot be faulted for what was not brought to his attention. It was
prayed that the application be dismissed.
27. Applicant replied that in all circumstances, at least in terms of section
73 of the Labour Code Order (supra), evidence must be led in order for the
assessment to be made. Regarding, the distinction between big and small
organisation, a similar argument was made that evidence is needed
irrespective of the size of an organisation. About the obligation on the
Applicant to request to lead evidence, Applicant submitted that as the
award shows on pages 2 to 3, the learned Arbitrator caused parties to
address him on a preliminary issue, and not lead evidence. They
therefore acted on the basis of directive from the learned Arbitrator,
which does not excuse his error of procedure.
28. We have gone through section 73 of the Labour Code Order (supra).
We do confirm that in terms of that section, the learned Arbitrator, as a
matter of procedure, was bound to assess the circumstances to determine
the appropriate relief. This is captured as thus,
(1) If the Labour Court or arbitrator holds the dismissal to be unfair, it
shall, if the employee so 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. The Court or arbitrator shall not make such an order if it
considers reinstatement of the employee to be impracticable in light of the
circumstances.
(2) If the Court or arbitrator decides that it is impracticable in light of the
circumstances for the employer to reinstate the employee in employment, or
if the employee does not wish reinstatement, the Court or arbitrator shall
fix an amount of compensation to be awarded to the employee in lieu of
reinstatement. The amount of compensation awarded by the Labour Court
Page 235 of 283
shall be such amount as the court considers just an equitable in all

circumstances of the case. In assessing the amount of compensation to be
paid, account shall also be taken of whether there has been any breach of
contract by either party and whether the employee has failed to take such
steps as may be reasonable to mitigate his or her losses.
29. As applicant has put, the determination of the proper relief depends
on the circumstances demonstrated by the evidence of parties. As a
result, a decision to make an award of a remedy under section 73 of the
Labour Code Order (supra), without evidence of the circumstances,
constitutes a violation of the procedure stated under the same section,
and is therefore a procedural irregularity. The effect of a decision made
contrary to the said procedure makes the decision so made both arbitrary
and in total conflict with the basic principles of natural justice.
30. We wish to note that We reject the 1st Respondent argument that there
are instances where no evidence is required, in determining a remedy
under section 73 of the Labour Code Order (supra). The said section does
not provide for such a distinction. Rather, the section is couched in
mandatory terms so that no deviation is contemplated. Even assuming
that the deviation was contemplated as suggested, the argument raised
by 1st Respondent does not aid his case. We say this because the
circumstances of the case in case, fall under the former instead of the
alter scenario, of the two instances that he presented.
31. Regarding the authority of Standard Lesotho bank v Raphael Mphezulu
(supra), it does not support or aid 1st Respondents case in any way. In
that case, the Court does not state that no evidence is necessary to
determine the remedy. Rather, the Court states that if an award for
reinstatement is sought in terms of section 73 of the Labour Code Order
(supra), then it follows that it is without loss, even if a party has simply
asked for it without specifically asking for lost wages and other ancillary
relief.
32. Regarding 1st Respondent claim that Applicant was under an
obligation to lead evidence to contradict the remedy sought, that position
does not apply in casu. While We agree that evidence of the practicality
or otherwise of reinstatement as a remedy, is the obligation of an
employer party to the proceedings, but that is where parties have been
given the opportunity to lead evidence. In casu, no such opportunity was
given. Parties were directed to make addresses on what was termed a
preliminary issue.
33. The authority of Thandiwe Labane and others v Tai Yuan garments
(Pty) Ltd (supra) does not advance 1st Respondents argument. We say this
because the circumstances of that case, the former, are different from
those in casu, the latter. In the former, parties were at given an
opportunity to lead evidence in support of other cases. In casu, parties
were limited to only making addresses without leading evidence.
Page 236 of 283
Consequently, 1st Respondents argument cannot stand, as the

circumstances anticipated in the ordinary application of the principle,
which is in the former, are different from those in casu.
AWARD
a) The application for review is granted;
b) The award of the DDPR is reviewed and set aside;
c) The matter is remitted to the DDPR to be heard de novo before a different
arbitrator;
d) The order is to be complied with within 30 days of issuance herewith;
THUS DONE AND
SEPTEMBER 2015.
DATED
AT
MASERU
ON
THIS
21st
DAY
OF
T C RAMOSEME
MR. MOTHEPU
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
ADV. MOLISE
ASSISTED BY
ADV. LEHLOENYA
ADV. KOMETSI
FOR RESPONDENT:
Page 237 of 283

HELD AT MASERU
LC/REV/131/2013
A0594/2013

MAKATLEHO MOLEKA
APPLICANT
AND
U SAVE SHOPRITE (PTY) LTD
DDPR M. MASHEANE
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Applicant having filed
additional grounds of review. 1st Respondent applying that the additional
affidavit be disregarded as it is contrary to the Rules of this Court. Court
finding merit in the argument and disregarding the Applicants additional
affidavit. Court directing that parties proceed to argue the review on the basis
of the grounds contained in the main motion. Court raising a point in limine on
own motion that grounds raised are disguised appeal. Court maintaining its
stance and dismissing the application for want of jurisdiction. Court further
finding confidence in its decision for lack on merit on the grounds, even if they
were to be treated as review grounds. No order as to costs being made.
A0594/2013. Several grounds of review had been raised on behalf of
Applicant but only three were argued.
1st Respondent until she was dismissed for misconduct. Unhappy with
the decision, she referred a claim for unfair dismissal with the Directorate
of Dispute Prevention and Resolution (DDPR).
3. An award was later issued wherein, the Applicants claim was dismissed.
It is this award that Applicant wishes to have reviewed, corrected and/or
set aside. Both parties were present and duly made presentations.
Having heard therein, Our judgment follows.
4. We wish to note that two points in limine were raised during the
proceedings. One point was raised by 1st Respondent and it primarily
placed an attack on the additional affidavit which purported to add review
grounds. The other point was raised by the Court on own motion, and it
Page 238 of 283
related to whether or not the grounds raised on behalf of Applicant were

in fact review or appeal, at least prima facie.
Points in limine
Additional grounds
5. 1st Respondents case was that the affidavit filed on behalf of Applicant
purporting to add grounds of review was irregular and improper and that
it should be disregarded. It was argued that the affidavit was contrary to
Rule 16 (6) of the Labour Appeal Court Rules of 2002, now rules of this
Court in review matters.
6. It was submitted that in terms of that Rule, an Applicant party after
receiving the record, must file a notice to either amend or vary or to stand
and fall by its motion. It was stated that in casu, Applicant had indicated
that she stood by the original motion, but then filed additional grounds.
It was submitted that having elected to stand by the original motion, the
affidavit purporting to add grounds should be disregarded as being
improper and/or irregular.
7. Applicant answered that by filing a notice that she stood by the notice of
motion, she meant that she stood by the prayers contained therein,
namely;
i. Dispatch of the record
ii. Stay
iii. Review; and
iv. Costs.
It was submitted that the interpretation proposed by 1st Respondent, that
a notice that one stands and falls by the notice of motion, means that
they do not wish to add further grounds, is therefore wrong.
8. It was added that the Rule in issue provides that an Applicant party may
file an additional affidavit to support prayers in the notice of motion that
they stand and fall by. It was stated that this is what Applicant did and
that there is nothing improper in the approach taken.
9. The provisions of Rule 16 (6) of the Labour Appeal Court Rules (supra) are
as follows:
(6) The applicant shall within 7 days after the Registrar has made the
record available, either
(a)
By delivering of a notice and accompanying affidavit, amend, add
to or vary the terms of the Notice of Motion and supplement the
supporting affidavit; or
(b)
Deliver a notice that the applicant stands by its Notice of Motion.
10. Applicant has elected to stand and fall by her notice of motion, by
filing a notice in terms of Rule 16 (6) (b). This has then left the status of
the additional affidavit in question. We wish to note that in law, an
additional affidavit may be filed under any of the two conditions,
Page 239 of 283
1) With leave of the court; and

2) Under a specific law or rule.
11. In casu, no leave has been obtained by Applicant to file an additional
affidavit. Secondly, the additional affidavit has not been filed in terms of
Rule 16 (6) (a), as it is not accompanied by a notice of intention to either
add, amend or vary the initial notice of motion. It is also not filed in
terms of Rule 16 (6) (b), as that Rule relates to a notice not to add
grounds, which is clearly contrary to the purported intention behind the
additional affidavit filed of record.
12. We wish to add that while this Court is vested with the discretion to
condone a breach of any of its Rules, but that is subject to any of the
conditions being present,
i. Applicant applying for condonation; or
ii. Applicant accepting a breach but not seeking condonation, in
which case the Court can on own motion condone same.
13. This procedure is provided for under Rule 27 of the Labour Court Rules
of 1994. It is couched as follows, specifically at sub Rule (2),
Notwithstanding anything contained in these Rules, the court may in its
discretion, in the interests of justice, upon written application, or oral
application at any hearing, or of its own motion, condone any failure to
observe the provisions of these Rules.
14. In casu, Applicant has not applied for condonation of the breach. In
fact Applicant contents that there is no breach, which invariably ousts
Our jurisdiction to exercise Our discretion, to condone the breach. We
therefore reject and disregard the affidavit filed in addition, as being
without a basis, and direct that parties proceed on the premise of the
grounds contained in the main notice of motion. We, in essence, agree
with the interpretation of Rule 16 proposed by the 1st Respondent, and
reject the Applicants interpretation.
Appeal disqualified as review
15. We had intimated to Applicant that the review grounds raised were in
fact an appeal, as opposed to a review. We stated that these grounds
challenged the conclusion of the learned Arbitrator and not the method of
reaching the conclusion.
16. We had then directed Applicant to the case of J.D. Trading (Pty) Ltd t/a
Supreme Furnishers v M. Monoko and Others LAC/REV/39/2014, which is
very instructive on the distinction between the two, that is, a review and
an appeal. We infact made specific reference to paragraph 13 of the typed
judgment where the following is recorded,
Page 240 of 283

review.
17. Applicant submitted that the grounds raised were review and not
appeal. She stated that what determines if a ground is review or appeal
is not how it is framed or how it appears prima facie, but the reasons
given in support. The Court was referred to the case of J. D. Trading (Pty)
Ltd t/a supreme Furnishers v M. Monoko and Others (supra), in support,
specifically at paragraph 18 of the typed judgment.
18. To demonstrate the above argument, it was stated that at paragraph
18, the court relied on the quotation from the case of Johannesburg Stock
Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA
132 (A) that,
Broadly, in order to establish review grounds it must be shown that the
president failed to apply his mind to the relevant issues in accordance with
the 'behests of the statute and the tenets of natural justice' (see National
Transport Commission and Another v Chetty's Motor Transport (Pty) Ltd
1972 (3) SA 726 (A) at 735F - G; Johannesburg Local Road Transportation
Board and Others v David Morton Transport (Pty) Ltd 1972 (3) SA 726 (A) at
895B - C; Theron en Andere v Ring van Wellington van die NG Sendingkerk
in Suid-Afrika en Andere 1972 (3) SA 726 (A) at 14F - G). Such failure may
be shown by proof, inter alia, that the decision was arrived at arbitrarily or
capriciously or mala fide or as a result of unwarranted adherence to a fixed
principle or in order to further an ulterior or improper purpose; or that the
president 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 president was so grossly unreasonable as to warrant
the inference that he had failed to apply his mind to the matter in the
manner aforestated.
19. Applicant submitted that in her review grounds, she had shown that
the learned Arbitrator erred by holding that the sanction was not too
harsh; that she had erred by holding that Applicant had contravened a
non-existent rule; and that she had erred by holding that the Applicant
trade union was consulted before Applicant was disciplined. Applicant
stated that what she did is in line with the extract quoted above from the
case of J. D. Trading (Pty) Ltd t/a supreme Furnishers v M. Monoko and
Others (supra).
20. Although, Applicant had not challenged the status of grounds raised,
he was given an opportunity to comment. He brief submitted that the
grounds raised were in actual effect targeted at the net of effect of the
award, which is the dismissal of the Applicants referral.
It was
submitted that none of the grounds raised demonstrated any procedural
irregularity, at least as they appear in the notice of motion and
supporting affidavit.
Page 241 of 283
21. We wish to note that there is a concession that the grounds raised do
not make out a case for review, at least prima facie. The Applicant has
attempted to justify the approach that she adopted in framing her review
grounds, by relying on the authority of J. D. Trading (Pty) Ltd t/a Supreme
Furnishers v M. Monoko and Others (supra).
22. We have carefully considered the authority and disagree with
Applicant that it dictates that the reason given for the complaint,
determines if a claim is a review or appeal. The proper interpretation is
rather on the contrary, that is, that the reasons follow to justify the prima
facie established review ground. There is nothing in the grounds raised,
or any suggestion prima facie, that the complaint is procedural and
therefore a reviewable irregularity. We are therefore of the view that the
grounds raised are infact appeal and not review.
23. In terms of section 228E (5) of the Labour Code (Amendment) Act 3 of
2000, the awards of the DDPR,
.....shall be final and binding and shall be enforceable as if it was an
order of the Labour Court.
24. They are however, only subject of review before the Labour Court, in
terms of section 228F (1) of the Labour Code (Amendment) Act (supra).
The section is couched as follows,
Any party to a dispute who seeks to review any arbitration award issue
under this part shall apply to the Labour Court for an order setting aside
the award.
25. The above position of the law has been confirmed in the case of Thabo
Phoso v Metropolitan Lesotho LAC/CIV/A/10/2008, where the Labour
Appeal Court had this to say,
In my opinion this is a ground of appeal and not review. The Labour Court
is not empowered to entertain appeals from the DDPR. It might be the
Labour Court have come to a different decision from that reached by the
DDPR on the issue whether or not to grant rescission. However, the Court
was not entitled to intervene in these regard as no reviewable irregularity
was disclosed by the facts.
26. On the basis of the above said, We find that We have no jurisdiction to
determine the grounds raised. We are ousted by their nature from
determining them.
27. We find confidence in Our decision to dismiss the Applicants review
because, even if We were to consider the grounds as if they were review,
they would not stand for want of merit. We say this because We have had
the opportunity to hear both the Applicant and Respondents case on the
merits as well.
28. Regarding the first ground of review, Applicant claimed that the
learned Arbitrator erred in holding that the sanction was not too harsh.
Page 242 of 283
She however, did not dispute when 1st Respondent answered that it was
not one of the issues that Applicant had complained about. If this is the
case, the learned Arbitrator cannot be placed at fault for what she had
not been requested to determine.
29. Supportive of Our conclusion is the decision of the Labour Appeal
Court in the case of Tsotang Ntjebe & others v Lesotho Highlands
Development Authority and Telang Leemisa & others v Lesotho Highlands
Development Authority LAC/CIV/17/2009, where the Court in addressing
the issue of complaints at an appeal level against what was not raised
before the court a quo, had this to say,
Of course as correctly stated by LEWIS, A.J.A. in Sager Motors (PTY) LTD v
Patel 1968 (4) SA 98 (RA) at 104, it is not open to an appellant, in the
absence of an amendment to his application, to claim on appeal something
which he did not claim in the Court a quo,
30. On the second ground of review, Applicant claimed that the learned
Arbitrator confirmed the dismissal of Applicant on the ground that she
had contravened a rule. It was stated that the learned arbitrator had
earlier stated that the said rule did not apply to Applicant but
nonetheless found Applicant guilty of misconduct. Respondent denied
that the learned Arbitrator did not make that finding, at least as Her
award reflects. It was stated that Applicant was dismissed for submitting
a fake sick note, which is a crime of dishonesty.
31. Evidently, Applicant does not dispute the misconduct, but is rather
concerned with the rule against which she was dismissed. Taking
Applicants argument that the learned Arbitrator did at some point rule
that the rule relied upon did not apply to Applicant, that does not alter
the position of Applicant. We say this because in Our law, specifically
section 10(2) of the Labour Code (Codes of Good Practice) Notice of 2003,
gross dishonesty is a dismissible offence.
32. Section 10(2) of the above authority provides that,
Although it is generally not appropriate to dismiss an employee for a first
offence, dismissal may be justified if the misconduct is serious and of such
gravity that it makes a continued employment relationship intolerable.
Without being exhaustive, the following acts have been considered by the
courts to be sufficiently serious to justify dismissal:
(a) gross dishonesty;
33. Therefore, it did not matter whether the rule was written in the 1st
Respondent rules or not, as the Codes of Good Practice (supra) sanction
the punishment of dismissal where gross dishonesty has been committed.
34. On the third review ground, Applicant claims that the learned
Arbitrator erred in concluding that there was no consultation with the
union before Applicant was disciplined. 1st Respondent was however,
able to contradict the claim by showing that the union was consulted
Page 243 of 283
before the hearing took place. Both parties referred the Court to pages 23
to 27 of the record of proceedings, both in support of their individual
cases.
35. At page 23 of the record, the evidence of the contents of an e-mail
directed to Mr. Ramochela of the Applicants union, sent to him on the 1st
of May 2013 are reflected in an exchange between one Mokete and
Matebello as thus,
Mokete: Please read it for us.
Matebello:
it is then written Mr. Ramochela my below email refers you
have to date not confirmed my invitation to discuss the matter below even
though the Shop Steward has been paid on suspension since the 18 th April
2013.
Due to financial costs that the company is incurring for paying this
employee on suspension I have no option but to proceed with the
disciplinary hearing on the 2nd May 2013 at 09:00 AM at Kings way.
36. Evidently, the Applicants union was consulted about the disciplinary
issues concerning Applicant. From the reading of the e-mail referenced,
it was just a follow up and/or a reminder to the union that since the
initial communication, they have not done or said anything regarding the
issues involving Applicant. in the light of this clear evidence, the learned
Arbitrator was bound to reach the conclusion that she did, specially that
the union had been consulted.
37. On the basis of these above said, We maintain Our stance that not
only are grounds raised appeal disguised as review, but that they lack
merit. We are confident that Our attempt to show the absence of
prejudice on the part of Applicant in Our decision to dismiss the review,
has further gone to show clearly that the grounds raised are based on the
conclusions on the merit and not the procedure. Consequently, the
review is dismissed.
Page 244 of 283
AWARD
a) That the grounds raised on behalf of Applicant are appeal and not review,
b) That the review application is dismissed for want of jurisdiction,
c) The award of the DDPR remains in force, and
d) That no order as to costs is made.
2015.
T C RAMOSEME
MRS. RAMASHAMOLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NONO
ADV. RAFONEKE
Page 245 of 283

HELD AT MASERU
LC/REV/109/12
A0143/2012

LIMKOKWING UNIVERSITY OF
CREATIVE TECHNOLOGY (PTY) LTD
APPLICANT
AND
MALISEMA MAKOA
NKAKU KABI
MAMASWATI SOPENG
THE DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
Application for review of arbitration award. Four grounds of review having
been raised - that award lacked both a legal basis and consideration;
ignorance of evidence; failure to apply mind; and ultra vires. Court not finding
merit in all grounds raised and refusing the review application. Principles
considered; the rule in motion proceedings, legitimate expectation, and
considerations in assessing a fair and equitable award. No order at to costs
being made.
A0143/2012. The brief background is that the 1st to 3rd Respondents
were employees of Applicant until their contracts terminated by effluxion
of time. Subsequent thereto, they referred claims for unfair dismissal
with the Directorate of Dispute Prevention and Resolution (DDPR),
whereat they claimed non-renewal of their fixed term contracts when they
legitimately expected renewal.
2. The claims were duly heard and finalised, and an award later issued. In
terms of the award, Applicant was ordered to compensate 1st to 3rd
Respondents with an amount equivalent to their two years salaries.
Dissatisfied with this award, Applicant initiated the current proceedings.
The matter has been duly opposed and having heard both parties, Our
judgment follows.
3. The first ground of review was argued together with the third one. It was
Applicants case that the learned Arbitrator had erred by awarding the
quantum of compensation that She did. It was submitted that the
Page 246 of 283
awarded quantum rendered Her decision both irrational and

unreasonable. It was further submitted in addition that, the learned
Arbitrators decision on the quantum of compensation was not supported
by any legal basis or consideration, and was therefore made without
regard to the correct application of the law.
4. It was submitted that the award of two years salary as compensation was
not justified by the learned Arbitrator. It was argued that this is contrary
to the dictates of section 73(2) of the Labour code Order 24 of 1992, that a
compensation award must be both just and equitable. The Court was
referred to the cases of LTC v Rasekila LAC (1990-1994) 261; Lesotho
Bank v Moloi LAC (1995-1999) 275; and Pascalis Molapi v Metro Group
(Pty) Ltd LAC/REV/CIV/09/2003, for the above propositions. The Court
was further referred to page 4 of the arbitration award at paragraph 14,
for evidence of the alleged unjustified award of two years salaries.
5. Respondent answered that there is justification for the award that was
made and that the justification appears at paragraphs 12 to 13 of the
arbitration award. It was submitted that on these paragraphs, the
learned Arbitrator states that compensation will be based on Respondents
two years basic salaries, as that equals to the duration of the lapsed
contracts.
6. It was argued that it is an established principle of law that where a court
finds that an employee who was on a fixed term contract has been
unfairly dismissed, the remedy awarded is normally the remainder of the
contract. It was submitted that in casu, the remainder was the full term,
as the contracts had unfairly not been renewed for the said two years.
The Court was referred to the case of Standard Lesotho Bank Ltd v
Ntihlele LC/146/2000, in support of the proposition.
7. It was added that in the authority of Standard Lesotho Bank v Ntsihlele
(supra), the Court states the factors to consider in awarding a just and
equitable compensation. These are said to be a breach on the part of
both parties and mitigation of loss by the employee. It was submitted
that in terms of this authority at least one of the two requirements must
be considered, and that this is what the learned Arbitrator did.
8. We endorse that section 73(2) of the Labour Code Order (supra), requires
that the amount of compensation be just and equitable. This sections
further requires that in determining this amount, the breach of contract
on the part of either party must be considered, as well as whether an
employee complaining of an unfair dismissal mitigated their loss. The
said section is couched as follows,
In assessing the amount of compensation to be paid, account shall be
also taken of whether there has been any breach of contract by either party
and whether the employee has failed to take such steps as may be
reasonable to mitigate his or her loss.
Page 247 of 283
9. We also wish to endorse that in the authority of Standard Lesotho Bank

Ltd v Masechaba Ntihlele LC/REV/28/2012 and not LC/46/2000 as
referenced by Respondents, the Court extends the factors to consider
beyond just the two stated under section 73(2) of the Labour code Order
(supra). In fact, that authority does not fix a number of factors to
consider but merely gives an illustrative list of what may be considered.
The interpretation of section 73 in this authority suggests that there is no
mechanical requirement that at least a certain number of factors must be
considered, so that consideration of even one factor is sufficient, as
Respondent has suggested.
10. We have gone through the arbitration award from paragraphs 11 to
14, where the awarded compensatory amount is formulated.
In
formulating the award the learned Arbitrator considered the nature of the
contract in issue, that is, that it was a two year contract. From this
consideration, She then made a decision to award Respondents their two
years salaries as compensation. This consideration is in line with the
authority in Standard Lesotho Bank Ltd v Masechaba Ntihlele (supra).
11. We say this because in the above authority, the nature of employment
is one of the requirements that were identified in determining a just and
equitable compensation. The Court in this authority, at paragraph 15 of
its typed judgment, and relying on the ILO publication on Protection
against Unjustified Dismissal, ILO, Geneva, 1995 at paragraph 229, stated
that factors to consider in determining a just and equitable
compensation,
.....may include one or several factors such as the nature of employment,
.....
12. We are therefore, based on these above said, of the view that the
award of a two year compensation was justified by the learned Arbitrator
and was therefore based on the law, and with due regard to the correct
application of the law. The first and third review grounds therefore fail to
sustain.
13. The second ground of review was that the learned Arbitrator erred by
ignoring the evidence of Applicant showing that 1st to 3rd Respondent
expectation of renewal had been extinguished. It was argued that if
considered, the said evidence would have influenced the Court to find
otherwise. The Court was referred to pages 32-34, 42-44, 51-52, 59 and
60 of the record of proceedings before the DDPR.
14. It was argued that the mere possibility that evidence could have
influenced the outcome, is sufficient to warrant the granting of a review.
The Court was referred to the case of Limkokwing University of Creative
Technology (Pty) Ltd v Tebello Mothabeng LC/REV/88/2011, in support of
the proposition. It was added that the case in casu falls within the four
corners of the above authority.
Page 248 of 283
15. Respondents answered that evidence contradicting the evidence of

Applicant on the extinction of a legitimate expectation was not led. It was
argued that in fact evidence led showed that a legitimate expectation
could only be extinguished by bad performance. It was submitted that
the evidence of bad performance was not led by Applicant. It was further
argued that the learned Arbitrator did not ignore any evidence. The Court
was referred to paragraph 9 of the arbitration award for evidence of the
suggestion.
16. We have considered the referenced pages by Applicant. At pages 3234, is the evidence of the 2nd Respondent that he submitted an
application for re-employment with the Applicant. At pages 42-44 is the
evidence of 3rd Respondent that she also applied and that she was one of
the employees who went on strike. At pages 51 and 52 is the evidence of
1st Respondent that she also applied for re-employment. At pages 59 and
60 is the evidence of Applicants witness, one Lintle Hlapisi, that if an
employee wishes to continue to work with Applicant then they must
reapply, and that this was the practice within the Applicant employ.
17. We have also considered paragraph 9 of the arbitration award. We do
confirm that the above evidence was considered by the learned Arbitrator
in making Her award. At this paragraph She is recorded as thus,
There was no time during the course of applicants contract that
respondent showed any dissatisfaction about their performance. Therefore
applicants did have an expectation of renewal. Respondents act of giving
them a notice and encouraging them to apply did not in any way terminate
the expectation especially in the light of the fact that here were no reasons
advanced for non-renewal. Furthermore, it was the practice of respondent
to provide each employee with re-employment form when their contract was
about to terminate, this did not in any way alarm applicants.
Evidently, the evidence of Applicant was considered by the learned
Arbitrator. This ground must also fail.
18. We wish to comment that the mere fact that an employee applies for
the job in respect of which they claim to have had a legitimate expectation
for its renewal, does not in any way extinguish such expectations. We
say this because, it is a legal requirement in law that a dismissed
employee claiming an unfair dismissal must mitigate loss, by among
others seeking alternative employment. This is clear from the provisions
of section 73(2) of the Labour Code Order (supra), as We have shown
above at paragraph 8 of this judgment.
19. Further, in terms of the current law of Lesotho, in particular section
227(1)(a) of the Labour Code (Amendment) Act 3 of 2000,
(1) Any party to a dispute of right may, in writing, refer that dispute to the
Directorate
(a) If the dispute concerns an unfair dismissal, within 6 months of the
date of the dismissal;
Page 249 of 283
20. In that six months and beyond, the requirements under section 73(2)
of the Labour Code Order (supra), remain binding on the dissatisfied
employee. It would thus defy the dictates of both section 73(2) and
section 227(1)(a), to conclude that applying for a job in issue extinguishes
an expectation. This is more so where an employee has demonstrated
either their dissatisfaction with being terminated, or have shown their
intention to challenge their termination.
21. The fourth ground of review was that the learned Arbitrator failed to
apply Her mind to the facts before Her. It was argued that failure to
apply a mind is a reviewable irregularity. The Court was referred to the
case of Telecom Lesotho (Pty) Ltd v Seqao Phenya LC/REV/10/2010, in
support of the proposition.
22. In amplification of the argument, it was submitted that the learned
Arbitrator failed to apply Her mind to the law on amount of
compensation. Further that She had also failed to apply Her mind to the
fact that though no appraisals were made for purposes of determining the
renewals of Respondents. Furthermore, that She failed to apply her mind
to the fact that Respondents did not have a clean record as they had final
written warnings, and that this ought to have contradicted their
expectation. Applicant added that although these said were not pleaded
in their Motion, the Court should consider them as this is a Court of
equity and fairness.
23. Respondents answered that in law one must stand and fall by their
pleadings to avoid taking others by surprise. It was submitted that they
were being taken by surprise as these facts and arguments were not
pleaded by Applicant. It was prayed that they should not be considered.
24. We agree with Respondents that in motion proceedings, one is
confined to their pleadings. In the case of Pascalis Molapi v Metro Group
Ltd (supra), the Court stated that it is irregular for a court to allow a party
to canvass issues not pleaded. (Also see Netherbum Engineering CC t/a
Netherbum Ceramics v Mudau No. and another (2009) 30 ILJ 279 LAC at
paragraph 25, Thabo Phoso v Metropolitan Lesotho LAC/CIV/A/10/2008,
Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA
623).
25. The effect of Our attitude is that the Applicants review ground stands
unsubstantiated.
It is trite law that bare allegations without
substantiating facts and arguments are unconvincing and unsatisfactory.
They simply cannot be relied upon to make a conclusion that affects
another (see Mokone v Attorney General & others CIV/APN/232/2008).
Consequently, this ground stands to fail as well.
26. The last ground of review was that the learned Arbitrator acted ultra
vires by holding that it was alarming that Respondents were not called for
an interview by Applicant. It was argued that in so doing, the learned
Page 250 of 283
Arbitrator descended into an arena of the employer and thus interfered

with the employees prerogatives. The Court was referred to paragraph 19
of the award for the alleged finding. Further reference was made to the
case of Pheko Mafantiri v Lesotho Revenue Authority LC/13/2008, in
support of the argument.
27. Respondent answered that the referenced record was not a finding but
a remark of the learned Arbitrator. It was argued that the decision of the
learned Arbitrator was not based on that remark. It was submitted that
that remark cannot invalidate the award as it carries the same effect as
an obiter dicta in a judgment.
28. We acknowledge the authority in Pheko Mafantiri v Lesotho Revenue
Authority (supra). We have perused the arbitration award, specifically at
the referenced page and paragraph. The learned Arbitrator is recorded as
follows,
There was no time during the course of applicants contract that
respondent showed any dissatisfaction about their performance. Therefore
applicants did have an expectation of renewal. Respondents act of giving
them a notice and encouraging them to apply did not in any way terminate
the expectation especially in the light of the fact that there were no reasons
advanced for non-renewal. Furthermore, it was the practice of respondent
to provide each employee with re-employment form when their contract was
about to terminate, this did not in any way alarm applicants. The
applicants have stated that they thought it was a formality to fill in the
forms. Respondent failed to even call them for an interview, which is
alarming considering that applicants did well in performance of their
duties.
29. We wish to highlight that the issue before the learned Arbitrator was if
the Respondents had a legitimate expectation of renewal or not. At
paragraph 9 of the award, the learned arbitrator makes a conclusion that
an expectation existed notwithstanding the fact that respondents
reapplied for employment. Clearly the decision of the learned Arbitrator
was not based on failure to call Respondents for an interview. The
statement that Applicant in casu failed to call Applicants for an interview
has no connection with the conclusion that an expectation existed. No
such connection is established in the award in as much as none has been
shown by Applicant. We therefore agree with Respondents that the
referenced record was nothing but a remark, an obiter dicta.
30. Assuming that it was part of the findings that led to the final
conclusion of the learned Arbitrator, even if found to have been irregular,
it would not invalidate the award. We say this because there are other
reasons given for finding for there to have existed an expectation for
renewal on the part of Respondents. Paragraph 9 of the arbitration
award is explicit on these and needs not to be reiterated. We therefore
maintain Our stance and dismiss this ground.
Page 251 of 283
AWARD
We therefore find that,
2015.
T C RAMOSEME
MRS. MOSEHLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MACHELI
ADV. MOSOTHO
Page 252 of 283

HELD AT MASERU
LC/REV/47/2011
A0024/2011

SELLO MPHOU
APPLICANT
AND
BOLIBA MULTI-PURPOSE CORPORATION
DDPR ARBITRATOR (M SENOOE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of arbitration award. Several grounds of review
having earlier been raised on behalf of Applicant but reduced to only three
that Arbitrator failed to make relevant considerations; that Arbitrators
decision is unreasonable; and that Arbitrators decision is arbitrary. Court
finding merit in only one ground that Arbitrator failed to make relevant
considerations. Court granting the review and ordering the remittal of the
matter to the DDPR for a determination of the compensation amount before a
different arbitrator. No order as to costs being made.
A0024/2011. Several grounds of review had been raised on behalf of
Applicant. However, they were only reduced to three in argument
namely, failure to take into account relevant considerations,
unreasonableness and arbitrariness.
the 1st Respondent until he was dismissed for misconduct. Unhappy with
in dismissal, he referred a claim for unfair dismissal with the Directorate
of Dispute Prevention and Resolution (DDPR). Conciliation was duly
conducted, but did not resolve the matter. It was thus arbitrated upon
and an award was later issued in favour of Applicant. In terms of the
award, 1st Respondent was to be paid compensation in the sum of
M20,895,00. This was following a finding that the dismissal had been
substantive fair but procedurally unfair.
3. Similarly unhappy with the award, Applicant referred a review application
with this Court. He sought the review, correction and/or setting aside of
the award in issue. The application was approved by 1st Respondent, but
it delayed to file its answer. Sentient of this, 1st Respondent filed an
application for condonation for the late filing of its answer.
The
Page 253 of 283
condonation application was duly opposed by Applicant. It was argued

but dismissed by a ruling of the 11th February 2015, which effectively
barred 1st Respondent from filing an answer. The matter was then set
down and heard on this day unopposed. Our judgment therefore follows.
4. We wish to note that on the date of hearing of the application, Advocate
Thabane for the 1st Respondent appeared together with Advocate Nono
for Applicant, in chambers.
She stated while 1st Respondent had
effectively been barred, by the ruling of the 11th February 2015, from
answering the Applicants claims, she sought for it to be formally
recorded that she appealed to the Court to apply its mind to the case of
Applicant against automatically granting the review on account of it being
unopposed. We noted her concern.
5. The first ground of review was that the learned Arbitrator had failed to
make relevant considerations in formulating Her award of compensation.
It was argued that the consideration are spelled out under section 73 (2)
of the Labour Code Order 24 of 1992, as mitigation of loss and a breach
on the part of the parties. It was said that at paragraph 14 of the
arbitration award, the learned Arbitrator has recorded Her justification of
the award made.
In that justification nothing is said about the
requirements and/or considerations of a breach and mitigation of loss. It
was said that this is clear evidence of failure to take them into account.
6. It was argued that as a result of failure to make those considerations, the
learned Arbitrator has failed to make a fair and equitable award of
compensation to Applicant. It was said that if she had made these
considerations, she would have found that Applicant was entitled to more
than what She was awarded.
7. The provisions of section 73 (2) of the Labour Code Order (supra), are
mandatory and not permissive. They are couched as follows,
...in assessing the amount of compensation to be paid, account shall also
be taken of whether there has been any breach of contract by either party
and whether the employee has failed to take such steps on may be
reasonable to instigate his or her losses.
8. We have perused the arbitration award and do confirm that the learned
Arbitrator has failed to make the relevant considerations in awarding
compensation to Applicant, at least to some extent. We say this because
upon perusal, We have noted that the learned Arbitrator has erred only in
part by not considering mitigation of loss by the Applicant. We say this
because there is evidence, in the arbitration award that learned Arbitrator
has considered the breach on the part of parties.
9. This is discernable from paragraph 14 of the arbitration award, under the
hearing FORMULATION OF THE AWARD, where the following is recorded,
Page 254 of 283
Evidence shows that applicant was given a shorter notice than the
prescribed in the respondent policy. Respondent does not deny it. Applicant
filed an appeal and respondent never attended to it alleging it was filed out
of time. This amounts to procedural irregularity as well. Applicants
dismissal was procedurally unfair. Applicant is entitled to three months
salary as compensation for procedural irregularity .
10. However, We do confirm that nothing has been said about mitigation
of loss on the part of the Applicant. Evidently, the learned Arbitrator has
acted contrary to the provisions of section 73 (2) of the Labour Code Order
(supra), in fixing Her award for compensation, to this extent at least. We
are of a similar sentiment with Applicant that if considered, this factor
could have influenced the learned Arbitrators conclusion to either reduce
or increase the compensatory award given. In law, this is sufficient to
warrant the granting of a review. This ground is therefore upheld.
11. The second ground of review was that the learned Arbitrators decision
to award compensation over the principal remedy of reinstatement, under
section 73 (1) of the Labour Code Order (supra), was unreasonable. It was
argued that in law, once a finding is made that the dismissal is unfair,
the learned Arbitrator is obliged to award reinstatement.
It was
submitted that an exception is where the employee does not wish to be
reinstated, or if the employer has adduced factors that hinder the
granting of that order. The Court was referred to the case of Pascalis
Molapi v Metro Group Ltd & others LAC/CIV/REV/09/2003, in support of
this proposition.
12. It was argued that in casu, Applicant, on the one hand, was clear that
he wanted to be reinstated to his former position in terms of section 73(1)
of the Labour Code Order (supra). It was added that the 1st Respondent,
on the other hand, had not led any factors that negate the granting of the
principal remedy of reinstatement. It was argued that having made the
conclusion that the dismissal was procedurally unfair, it logically followed
that reinstatement be awarded as section 73 (1) made it mandatory. It
was submitted that the award of the learned Arbitrator was unreasonable
in this respect. It was prayed that the Court correct the award by
ordering the reinstatement of Applicant.
13. It was submitted that although 5 years have lapsed since the dismissal
of Applicant, but that the length of the period should not influence the
Court into finding that reinstatement has become impracticable. It was
said that in the authority of Pascalis Molapi v Metro Group Ltd & others
(supra), an employee was reinstated after 16 years of the dismissal, which
is 9 years more than the period that Applicant has been out of
employment with 1st Respondent.
14. We have perused the arbitration award and confirm that indeed a
finding was made that the dismissal of Applicant was unfair. However,
Page 255 of 283
this was only in relation to the procedural aspect of his dismissal. This is
captured under the heading AWARD as follows,
(1) Applicants dismissal is substantively fair but procedurally unfair.
15. The substantive aspect of a dismissal, on the one hand, accounts for
the validity of the reason behind the dismissal. That is, whether the
reason is or was sound in law, or if it was one that is sanctioned in law.
The procedural aspect of the dismissal, on the other hand, accounts for
the procedure adopted in finding the guilt of an employee. Therefore in
Her finding, the learned Arbitrator found that the 1st Respondent was
justified in dismissing Applicant, but that even so the wrong method was
used, or that 1st Respondent failed to follow the due processes.
16. While We concede that reinstatement is the preferred remedy, but it
cannot be awarded where the reason for dismissal has been confirmed as
being valid. If this were to be done, it would create an unreasonable
result. We say this because, in effect by confirming the reason for
dismissal, the learned Arbitrator expresses his/her approval towards the
reasons given by an employer for dismissing an employee. It therefore,
follows that with such approval, reinstatement cannot, and is not an
option.
17. In Our view, it was thus not necessary for the employer to attempt to
negate the reinstatement of the Applicant in this instance, for even if it
had, it would only have served an academic purpose. We say this
because it could neither influence the learned Arbitrator to either award
reinstatement, or to refrain from doing so. We therefore find that the
learned Arbitrator was rather reasonable in Her approach. This ground
therefore falls.
18. The third ground of review was that the learned Arbitrators decision
that Applicant was not entitled to severance pay and leave pay was
arbitrary. It argued that this is so in that the learned Arbitrator merely
concluded that Applicant was not entitled to severance pay, without
justifying Her decision. It was said that this conduct is in law said to be
arbitrary. The Court was referred to paragraph 14 of the award.
19. It was added that section 79 of the Labour Code Order (supra),
regulates severance payment. It states the circumstances under which
severance payment may or may not be awarded. It was said that
primarily, it cannot be awarded where an employee has been fairly
dismissed for misconduct. It was submitted that in casu, the learned
Arbitrator found that Applicant had unfairly been dismissed and that this
did not disentitle him to severance pay, but the contrary.
20. We have similarly gone through the arbitration award. We have noted
that at paragraph 14, the learned Arbitrator makes a finding that
Applicant is not entitled to both severance payment and annual leave.
Page 256 of 283
This is captured as follows, Applicant is not entitled to severance payment

and annual leave.
21. However, at paragraph 13 of the award, the following is recorded,
Applicant asked for severance payment. He is not entitled to severance
payment because he committed an act of gross negligence. Applicant
claimed annual leave but abandon it at arbitration proceedings. It is not
alleged neither in the addresses or evidence to show that he is entitled to it.
There is therefore no evidence that applicant is entitled to annual leave.
22. In Our view, the decision has been justified and it is in line with the
dictates of section 79 (2) of the Labour Code Order (supra). In terms of
that section,
An employee who has been fairly dismissed for misconduct shall not be
entitled to a severance payment.
In terms of the extract from paragraph 13 of the arbitration award,
applicant was found guilty of gross negligence. Section 10 (d) of the
Labour Code (Codes of Good Practice) Notice of 2003, defines gross
negligence as one of the forms of a misconduct that justify dismissal.
23. In view of this said above, the award of the learned Arbitrator that
Applicant was not entitled to both severance payment and unpaid leave
has been supported by reasoning. Not only has it been supported by
reasoning, but one that is justified in law, for the above mentioned
reasons. This ground must also fail.
24. On the strength of the Applicants first review ground, this application
must succeed. Although he had asked that We correct the award by
adjusting the compensatory award, We decline by reason of incapacity to
do so. We are not incapacitated by law, but by lack of sufficient facts to
enable Us to conduct the exercise. We therefore find that it would only be
appropriate for Us to remit the matter to the DDPR, for a determination of
the compensation amount, in terms of section 73 (2) of the Labour Code
Order (supra).
Page 257 of 283
AWARD
Our award is therefore as follows:
a) The award of the DDPR is reviewed and set aside only in respect of the
compensation amount.
b) The matter is remitted to the DDPR to be heard and determined on this
aspect, before a different arbitrator.
d) No order as to costs is made.
2015.
T C RAMOSEME
MR. MATELA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NONO
ADV. THABANE
Page 258 of 283

HELD AT MASERU
LC/REV/10/2013
A0927/2011(b)

RELIABLE TRANSPORT COMPANY
APPLICANT
AND
TSEKO KOBILE
DDPR
ARBITRATOR
(N. MOSAE)
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of the arbitration award. Three grounds of review
having been raised failure to consider relevant issues, unreasonableness
and biasness. Applicant only succeeding in respect of the first review ground.
Court finding the said ground sufficient to warrant the granting of the review.
The application being granted and the award being reviewed and set aside.
The matter being remitted to the DDPR for a rehearing in the condonation
application before a different Arbitrator, with terms. No order as to costs being
made.
A0927/2011(b). The Applicant had employed 1st Respondent until he
was terminated from employment. Unhappy with the termination, 1st
Respondent had then referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR).
2. The matter was heard in default of Applicant, allegedly on the ground
that he had come late for the proceedings, and after the learned
Arbitrator had decided to proceed in its default. An award was later
issued in favour of the 1st Respondent.
Applicant then filed an
application for rescission against the default award. On the date of
hearing, Applicant was advised by the learned Arbitrator that the said
application had been filed out of time, and that a condonation application
had to be made.
Although parties were in agreement that the
condonation be made from the bar, the learned Arbitrator insisted on a
formal application. The matter was therefore postponed without mention.
3. Later on, some months later, Applicant filed its application for
condonation. The condonation was heard and dismissed, giving rise to
the current application. Applicant is in these proceedings asking this
Page 259 of 283
Court to find that the learned Arbitrator failed to consider relevant issues,
that he acted unreasonable and that he was biased. On these bases,
Applicant is asking that the award be reviewed, corrected and/or set
aside. Both parties were heard and Our judgment follows.
4. Applicants first review ground was that the learned Arbitrator erred in
that he failed to take into account relevant considerations and that this
led to him making a wrong conclusion. It was argued that the learned
Arbitrator rightly noted in his award the factors to consider in
determining an application for condonation. It was submitted that at
paragraph 10 of the arbitration award, the learned Arbitrator noted six
factors to be considered namely, degree of lateness, good cause shown for
the delay, prospects of success, importance of the case, convenience of
the court and avoidance of unnecessary delay in the administration of
justice.
5. It was argued that having noted these factors, the learned Arbitrator went
against his own caution by only considering the fact that the condonation
application had been filed late, thus ignoring the other factors earlier
noted. It was added that in so doing, the learned Arbitrator failed to
make the relevant considerations for the purpose of an issue for
determination before him.
6. The Court was referred to the case of Mahoko Setipe v Nien Hsing
International (Pty) Ltd LC/REV/62/2011, where the principle of irrelevant
considerations was defined and explained. It was submitted that at page
5 of the judgment, the Court stated that an irrelevant consideration
occurs where a decision maker ignores what should be considered and
considers issues extraneous to the subject matter for determination. It
was further argued that discernible from this definition is the position
that not making relevant considerations constitutes a reviewable
irregularity. It added that had the learned Arbitrator considered the
relevant factors, he would have made a different conclusion.
7. In answer, 1st Respondent submitted that the learned Arbitrator made the
relevant considerations. It was argued that while not all factors were
considered by the learned Arbitrator, as Applicant has rightly put, the one
factor considered was sufficient to dispose of the matter, due to its
strength. It was argued that it is not uncommon in law for one factor to
be the decisive element in exclusion of others, and that this is what
transpired in casu.
8. We have perused the arbitration award and wish to confirm that at
paragraph 10, the learned Arbitrator notes the factors to consider in
determining an application for condonation. At this paragraph, the
following is recorded,
Factors to be considered in determining an application for condonation
were laid down by Molahlehi J in the case of National Union of Metal
Page 260 of 283
Workers of South Africa & Others vs Criburd (Pty) Ltd (2008) 29 ILJ 694 as
follows; degree of lateness, explanation of lateness/good cause for the
delay prospects of success in the main case, importance of the case, the
convenience of the court and avoidance of unnecessary delay in the
administration of justice.
9. It is undoubted that all the factors were not considered by the learned
Arbitrator as shown by the submissions of both parties. We have also
considered the award and have also confirmed the position to be true.
We therefore agree with Applicant that in not considering the noted
factors the learned Arbitrator went against His own caution. We also
agree with Applicant that these factors, which the learned Arbitrator
failed to consider, were relevant for purposes of determining whether or
not to grant the condonation application.
This is clear from the
referenced authorities above.
10. We wish to note that We acknowledge the explanation of irrelevant
considerations from the authority of Mahoko Setipe v Nien Hsing
International (Pty) Ltd (supra), and further accept the proposition by
Applicant that ignorance of relevant considerations is a reviewable
irregularity (see Johannesburg Stock Exchange & Another v Witwatersrand
Nigel Ltd and Another, 1998 (3) SA 132 (A) at 152 A- E).
11. We wish to further note that We also agree with the 1st Respondent
that in certain cases one factor may be decisive over others in
determining an issue before court.
However, that should not be
misconstrued to mean that other factors do not need to be considered.
All factors must be considered and an explanation must be given why one
particular factor carries more weight than others. This is the only way
that it can be determined if the decision maker considered them. We
therefore find in favour of Applicant on this point and further note that
Our finding on this ground alone is sufficient to lead to the granting of
this review. However, We will proceed to consider other grounds raised
on behalf of Applicant.
12. The second ground of review was that the learned Arbitrators decision
to dismiss the condonation application without considering its merit but
on the basis that it was late, also taking into account that the said
condonation application was unopposed, is unreasonable. It was argued
that the unreasonableness occurred as a result of strict application of the
rules regarding the time for filing an application for condonation. It was
argued that in dismissing the condonation application on these grounds,
the learned Arbitrator ignored the prejudice that would occasion on the
Applicant as a result of His decision.
13. It was argued that the attitude and practice of strictly applying the
rules of the court was discouraged by the Court of Appeal of Lesotho in
the case of National University of Lesotho & Another v Motlatsi Thabane C
of A (CIV) 3/2008. It was submitted that in this case, the Court stated
Page 261 of 283
that prejudice should be a guiding principle in deciding whether or not to

apply the rules in their strict sense.
14. The Court was further referred to the case of Rustenburg Platinum
Mines Ltd v Crause 45/2004, where the Court stated that courts should
not be tyrannised by their own rules and ignore documents simply
because of non-adherence to the rules, as in so doing they would be
denying themselves the opportunity to dispense substantive justice. It
was argued that in ignoring the condonation application on account of
non-observance of the rules, the learned Arbitrator erred.
15. Respondent answered that the Rules of Court are not mere ornaments
and must be observed at all time. It was added that it is thus the duty of
courts of law to ensure that they are observed by strictly applying them.
The Court was referred to the case of Thabo Makenete v Major General
Justin Lekhanya and others C of A (CIV) 17/1990, in support. It was
argued that in this case the Court stated that not observing the rules of
the court borders on contempt of court, and that it should be
discouraged.
16. We wish to note that while unreasonableness is a reviewable
irregularity, it should not be so loosely used to justify the granting of a
review against the Arbitrators conduct.
We have defined
unreasonableness in a number of cases before, with the view to guide
parties regarding when to raise it.
17. In the case of Tai Yaun Garments (Pty) Ltd v Machere Leraisa & Another
LC/REV/17/2012, at paragraph II, relying on the authority of Carephone
(Pty) Ltd v Marcus No & 7 Others (1998) 11 BLLR 1093 (LAC) CH 1103, this
Court made the following remark,
Unreasonableness is the only instance in which an award may be
challenged on the conclusion. The conditions for this challenge to succeed
are that there must be evidence, which evidence must be accepted. With
the evidence having been accepted, there must only be one reasonable
conclusion against which the decision maker strayed.
18. In casu, the stated conditions have not been met as no evidence has
been identified to have been accepted and no allegation has been made
that with the accepted evidence, a particular conclusion was the only one
that was reasonable but that the learned Arbitrator strayed against same.
Consequently, Applicant has failed to make out a case for
unreasonableness.
That notwithstanding, We will comment on the
arguments raised by parties as We bear the duty to educate those below
Us.
19. In the case of Johannesburg Stock Exchange and another .v.
Witwatersrand Nigel Ltd and another (supra), at page 152 A E, the Court
stated that review grounds include,
...unwarranted adherence to a fixed principle....
Page 262 of 283
We do concede that Rules of the Court are not mere ornaments as 1st
Respondent has put. However, they should not be applied in isolation,
but in consideration of other factors.
20. In the case of National University of Lesotho & another .v. Motlatsi
Thabane (supra), that has been referenced by applicant, the Court at
paragraph 4 makes the following remark,
Thus what amounts to purely technical objections should not be permitted,
in the absence of prejudice, to impede the hearing of the appeal on merits.
This in Our view means that while courts are designed to ensure that
their rules are observed, but that should not be at the prejudice of
parties.
21. Supportive of Our view is the approach taken by the Court of Appeal of
Lesotho in Thabo Makenete v Major General Justin Lekhanya and others C
of A (supra). In this case, the Court having expressed its displeasure at
non-observance of the rules, went ahead to allow a party that had
breached the rules to file an application for condonation. This is
captured as thus,
It has become clear during the present session that many practitioners are
displaying a lamentably lax attitude to the rules of court bordering on the
contemptuous. The attitude evinced seems to be that the rules are
unimportant, can be disregarded at will and that non-compliance will
simply be overlooked or condonation granted as a matter of course and
right. It is time that practitioners minds were disabused of this much
mistaken impression and the misconceived idea that their disregard of the
rules will be overlooked because of the prejudice their clients might suffer.
22. Having expressed displeasure as demonstrated above, the Court then
went on to say that,
We do not however, wish to close the door finally on the appellant and
will accordingly make an order which will enable the applicant, if so
advised, to bring a proper application for condonation to this court at its
next session which, if granted, would enabled the matter to be heard at
such next session.
In essence, if properly raised, We could have been inclined to find that the
learned Arbitrator had erred by strictly adhering to a fixed principle,
being the rules on the filing of applications, without considering the
extend of prejudice that would occasion from His decision.
23. The third ground of review was that the learned Arbitrator was biased
in the matter and that he should have recused himself from the
proceedings. In support it was argued that bias was first manifested
when the learned Arbitrator disallowed Applicants representative to take
part in the proceedings for being late by just four minutes. Secondly,
that the learned Arbitrator showed biasness by requiring Applicant to file
a formal application for condonation for late filing of the rescission, when
no objection was raised to the application being made from the bar.
Page 263 of 283
24. Lastly, that it was submitted that biasness was further demonstrated
when the learned Arbitrator dismissed the Applicants application for
condonation without considering its merit simply because it had been
filed late. It was argued that this incident, together with other two above,
demonstrate that the learned Arbitrator had an interest in the matter,
which was to maintain and uphold his initial biased conclusion, to
exclude Applicants representation in the proceedings.
25. 1st Respondent answered that there is no biasness, at least from the
narrated chronology of events. It was submitted that there was rational
justification why all that was done, was in fact done. It was argued that,
in fact this ground and the other two are appeal disguised as review as
they all challenge the conclusion of the learned Arbitrator. The Court was
referred to the case of Action Statistical Investment (Pty) Ltd t/a Pick n Pay
v Lesia Monanabela & another LC/REV/33/2011, where the Court made
a distinction between an appeal and a review.
26. Where an allegation of biasness is made against a presiding officer, the
test to be applied is an objective one. The elements of the test were laid
out in the case of S v Roberts 199 (4) SA 915 (SCA) at 924-E 925D as
thus:
...(2) The suspicion [of bias] merit 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.
27. The reasoning proposed by Applicant in its claim for biasness, on the
part of the learned Arbitrator, falls short of the requirements. We say this
because nothing has been shown by Applicant that the learned Arbitrator
had an interest in one of the litigants before Him, or in the outcome of the
matter. By this We mean that Applicant has failed to show the benefit
that would come to the learned Arbitrator in maintaining His decision, to
exclude Applicants representatives from the proceedings and in requiring
Applicant to make a formal application for condonation, as well as in not
considering all elements in determining an application for condonation.
It therefore cannot be said that the Applicants suspicion of bias is a
reasonable one.
28. We are supported in Our conclusion by the authority of Bernet v ABSA
Ltd (2010) ZACC 28, where the Court stated hat apprehension of bias by a
reasonable man may arise,
either from the conviction of interest that the judicial officer has in one of
the litigants before court or from the interest that the judicial officer has in
the outcome of the case.
We are therefore of the view that the claim for bias is bare and
unconvincing. It is trite law that bare allegations cannot be relied to
make a decisive conclusion in favour of the party making such allegations
(see Mokone v Attorney General & others CIV/APN/232/2008).
Page 264 of 283
29. Regarding all grounds being appeal disguised as review, We hold a

different view. All grounds alleged sound in the method of trial, safe that
only one of them has merit. As 1st Respondent has correctly pointed out,
We made the distinction between an appeal and a review in a number of
Our decisions including the case of Action Statistical Investment (Pty) Ltd
t/a Pick n Pay v Lesia Monanabela (supra).
30. Relying on the authority of J.D. Trading t/a Supreme Furnishers v M.
Monoko & others LAC/REV/39/2014, We have made the said distinction
with specific reference to paragraph 6 of the judgement, where the
following is recorded,
for taking them on appeal, namely to set aside a judgement already given.
remedy is by way of an appeal. Where on the other hand, the real
grievance is against the method of trial, it is proper to bring a case for
review.
We therefore dismiss the 1st respondent contention in this regard.
AWARD
a) That the arbitration award is reviewed and set aside.
b) The matter is remitted to the DDPR for a hearing de novo of the
condonation application before a different Arbitrator.
c) The order in (2) to be complied with within 30 days of issuance herewith.
2015.
T C RAMOSEME
MR. MOTHEPU
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NDEBELE
MR. MAIEANE
Page 265 of 283

HELD AT MASERU
LC/REV/21/2015
A0914/2014

MAMOSOTHO MOIMA
APPLICANT
AND
TFS WHOLESALE (PTY) LTD
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Only one ground of review having
been raised failure to apply mind. Matter being heard in default of 1st
Respondent. Court finding in favour Applicant and granting the review. Matter
being remitted to the DDPR for a hearing de novo before a different Arbitrator.
Both sections 227(8) and 228A of the Labour Court being interpreted. Court
restating the position that failure to apply a mind to relevant facts constitutes
a reviewable irregularity. No order as to costs being made.
A0915/14. Only one ground of review has been raised that the learned
Arbitrator failed to apply Her mind to the law and facts and that led Her
to making the wrong conclusion. The matter was heard in default of 1st
Respondent.
2. The brief background is that Applicant was an employee of 1st
Respondent until she was dismissed. Unhappy with her dismissal, she
Prevention and Resolution (DDPR). The matter was duly set down for
conciliation and arbitration. On the first date of the hearing both
Applicant and 1st Respondent, were not in attendance but were
represented by their representatives.
3. At the commencement of the proceedings, 1st Respondent representative
applied for the dismissal of the referral on account of non-attendance of
the Applicant in person. It had been argued on behalf of 1st Respondent
that section 228A of the Labour Code (Amendment) Act 3 of 2000, required
the presence of a dominis litis person in the strict sense, and not a
representative. It was added that Applicant having failed to attend, the
referral stood to be dismissed. The application was granted and the
referral was dismissed.
Page 266 of 283
4. It is this award that Applicant wishes to have reviewed, corrected and/or

set aside. As earlier stated, the matter was heard in default of 1st
Respondent, who had only filed its notice of intention to oppose and no
further process thereafter. Having heard Applicants arguments, Our
judgment follows.
SUBMISSIONS
5. Applicants case is that the learned Arbitrator erred in failing to consider
the submissions and explanation given by her representative, regarding
her failure to attend the hearing. It was stated that it had been explained
during the proceedings that Applicant was unable to attend because she
had just recently found employment, and that she was attending to same.
6. It had also been argued on behalf of Applicant that conciliation could
proceed without Applicant, as her representative had been fully
mandated, and duly so, in terms of section 228A(1)(c) of the Labour Code
(Amendment) act (supra). It was argued that in terms of the said Act, a
union official can appear on behalf of a party to the proceedings. The
Court was referred to pages 3 to 4 of the record of proceedings in support
of the above said.
7. It was argued that the learned Arbitrator failed to consider both the
explanation given as well as the applicable law. It was added that as a
result of Her failure to consider the two, the learned Arbitrator dismissed
the matter in terms of section 227 (8) of the Labour Code (Amendment) Act
(supra), which section did not even authorise Her to dismiss a matter
where an Applicant partys representative was in attendance.
8. It was further submitted that in dismissing the matter, the learned
Arbitrator caused undue prejudice to Applicant, which She could have
avoided by simply postponing the arbitration proceedings. It was added
that even then, this could only be done if conciliation, having been duly
conducted, had failed to resolve the matter.
ANALYSIS
9. We have gone through both the record of proceedings before the DDPR
and the arbitration award. We do confirm that Applicants representative
did provide an explanation for failure of Applicant to attend the hearing,
and did make submissions in reaction to the application for dismissal by
1st Respondent. We also confirm, as Applicant has stated, that the
learned Arbitrator did not apply Her mind to the explanation given, as
well as the submissions in support. In fact, We have found that they
were not even considered at all.
10. In law, failure to either consider or apply a mind to facts constitutes a
reviewable irregularity ( see J. D. Trading (Pty) Ltd t/a Supreme Furnishers
v M. Monoko & others LAC/REV/39/2004). This is more so where the
facts not considered and/or given a thought, were material towards the
decision given (see Presitex Enterprise (Pty) Ltd v Soai Letsie and another
Page 267 of 283
LC/REV/162/2013). In casu, the facts not considered and/or given a

thought were material as they directly answered a claim for dismissal of
the matter. Consequently, the learned Arbitrator erred in this regard.
11. We wish to comment that the provision of section 228A the Labour
Code (Amendment) Act (supra), do not require that an Applicant party
appear in person in the strict sense, as suggested by the 1st Respondent.
The section is couched as follows,
(1) In any proceedings under this part (1) In any proceedings under this
Part, a party to the dispute may appear in person or be represented only by
(a) a co-employee;
(b) a labour officer, in the circumstances contemplated in section 16(b);
(c) a member, an officer of a registered trade union or employers
organization; or
(d) if the party to the dispute is a juristic person, by a director, officer or
employee....
12. Clearly, the section elevates the status of an Applicant partys
representative to that of an Applicant. This is particularly so where the
presence of an Applicant party is not really required, as was the case in
casu, at least for purposes of the conciliation of the matter.
Consequently, the position suggested to the learned Arbitrator by the 1st
Respondent is inaccurate, and cannot stand.
13. We wish to add that if the 1st Respondent contention were to be
upheld, it would set a very ruinous precedent in law. It would mean that
even in motion proceedings, where a party has already given evidence in
an affidavit, they would have to be physically present even though their
presence would not be necessary for that purpose.
14. We wish to further comment on the provisions of section 227(8) of the
Labour Code (Amendment) Act (supra). That section is couched as follows,
(8) If a party to a dispute contemplated in subsection (4) fails to attend the
conciliation or hearing of an arbitration, the arbitrator may
(a) postpone the hearing;
(b) dismiss the referral; or
(c) grant an award by default.
15. While We concede that the provisions of section 227(8) of the Labour
Code (Amendment) Act (supra), vest the learned Arbitrator with the
discretion to either dismiss, postpone or grant an award by default, such
discretion must be exercised judiciously. This is signified by the use of
the word may in the section. Judicious exercise of discretion requires
that the decision maker must consider all circumstances present and
relevant to the matter, before making a decision. As We have shown
earlier that not all facts and submissions were considered, it cannot be
said that the discretion to dismiss was judiciously exercised.
Page 268 of 283
AWARD
a) That the review application is granted.
b) The matter is remitted to the DDPR to be conciliated upon and heard in
arbitration should conciliation fail.
c) That this order be complied with within 30 days of issuance.
THUS DONE AND DATED AT MASERU ON THIS 12th DAY OF OCTOBER
2015.
T C RAMOSEME
MR. MOTHEPU
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MR. LETSIE
NO ATTENDANCE
Page 269 of 283

HELD AT MASERU
LC/REV139/2014
J0064/2013

THIALALA SECURITY (PTY) LTD
APPLICANT
AND
MATSIETSI NTSIKI
LEHLOHONOLO LETELA
MOSIUOA LESESA
DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
Application for review of arbitration award. Three grounds of review having
been raised. Court finding one ground sufficient to warrant the granting of the
review. Court not finding it not necessary to consider other grounds. Court
granting the review and correcting the arbitration award with terms. No order
J0064/2013. Three grounds of review have been raised on behalf of the
Applicant.
The matter was not opposed as Respondents formally
withdrew same before Court.
2. The brief background of the matter is that 1st to 3rd Respondents were
employees of Applicant until they were dismissed. Unhappy with the
dismissals, they referred claims for unfair dismissal with the Directorate
of Dispute Prevention and Resolution (DDPR). The matter was heard in
default of the Applicant before the learned Arbitrator Masheane.
Thereafter, Applicant lodged an application for rescission.
The
application was heard by Arbitrator Mofoka, who dismissed same.
3. Unhappy with the latter award, Applicant initiated review proceedings,
wherein it sought the review and correction of the said award. As earlier
indicated, three grounds were raised and argued unopposed. Having
heard the submissions and arguments of Applicant, Our judgment
follows.
4. The first ground of review is that the learned Arbitrator erred by hearing
an application for the rescission of an award that was not heard by Her in
Page 270 of 283
default. It was submitted that the initial award was the result of a
hearing before Arbitrator Masheane, while the award arising out of the
rescission application was before Arbitrator Mofoka. The Court was
referred to annexures A and B.
5. It was submitted that this is contrary to the Labour Code (Directorate of
Dispute Prevention and Resolution) Regulations of 2001. Specifically, the
Court was referred to Regulation 29 (3) and (4) of same. It was argued
that in terms of these Regulations, an award shall only be rescinded by
an arbitrator who granted or issued it. Further that an exception lies
where the Director has shown good cause for the deviation.
6. It was submitted that in casu, the Director has not shown any cause why
another arbitrator was appointed to hear the rescission of a matter heard
by another arbitrator. It was added that what is affront is the fact both
arbitrators in question remain in employment of the DDPR. The Court
was invited to take judicial notice of that.
7. It was submitted that on this ground alone the arbitration award stood to
be reviewed and corrected, by granting the rescission application. In
support of the prayer, it was submitted that in the rescission application
proceedings, Applicant had given evidence that it did not receive any
process in these proceedings until the arbitration award.
It was
submitted that this evidence was not challenged.
8. It was added that the above notwithstanding, the learned Arbitrator, on
own motion and outside the proceedings, made own investigations to
negate the evidence of applicant. It was submitted that on the basis of
Her findings, the learned Arbitrator found the explanation given on behalf
of Applicant not reasonable. The Court was referred to pages 5 and 6 of
the record of proceedings before the DDPR.
9. It was further submitted that the learned Arbitrator relied on Her own
findings, which findings were not put to Applicant to react to, before a
decision was made. It was argued that in so doing the learned Arbitrator
did not only act unfairly towards Applicant, but also descended into an
arena of dispute and relied on facts not subjected to challenge to dismiss
the Applicants case. The Court was referred to the arbitration award at
paragraph 5.
10. We have gone through the awards, annexures A and B, and do confirm
that one is the default award while the other is a rescission award. We
also do confirm that the initial default award was issued by Arbitrator
Masheane, while the latter was issued by Arbitrator Mofoka.
11. We also confirm that in terms of the Labour Code (DDPR) Regulations
(supra), an award can only be rescinded by an arbitrator who made it,
unless there are special circumstances that warrant a deviation. We wish
Page 271 of 283
to add that the circumstances must be legal and not social or otherwise.
The provisions of the DDPR Regulations in issue are couched as follows,
29
(1)
(2)
(3)
Subject to sub-regulation (4) the arbitrator who issued the
arbitration award or ruling shall hear the application for variation
or rescission.
(4) The Director may, on given cause shown, appoint another
arbitrator to hear the application.
12. Evidently, sub-regulation (3) has been breached and this is a
procedural irregularity. The breach is also not sanctioned by subregulation (4), as there is neither any document that contains the reasons
against which the decision to have a different arbitrator hear the
rescission, nor any claim or statement in the arbitration award to that
effect. Consequently, this is one irregularity that warrants a review.
13. Regarding the relief sought, which is to grant the rescission
application, We find for Applicant. We have been shown evidence on the
record of proceedings before the DDPR that Respondents did not contest
the evidence of Applicant. In fact they stated their desire to have the
matter reopened. This is clear from pages 5 6, as referenced by
Applicant.
14. We wish to comment that We agree with Applicant that the learned
Arbitrator Mofoka descended into the arena of dispute by making Her
own findings, which were outside the proceedings and not put to
Applicant, to reach Her conclusion. As a result, had She not unilaterally
engaged in this exercise, She could have been inclined to grant the
rescission. We say this because the explanation given by Applicant was
not only accepted by Respondents, but they indicated their desire to have
the matter reopened.
15. On the strength of this ground alone, We see no need to even proceed
to consider other grounds of review. It is Our view that it would only be
an academic exercise, for which this court was not established. We
therefore proceed to make Our award.
Page 272 of 283
AWARD
e) That the review is granted.
f) The award is corrected as follow,
(i) That the rescission application is granted; and
(ii) That the matter be heard in the merits.
g) That this order be complied with within 30 days of issuance herewith.
h) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 9th DAY OF OCTOBER
2015.
T C RAMOSEME
MR. KAO
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NTAOTE
ADV. NTEMA
Page 273 of 283

HELD AT MASERU
LC/88/2014

MOHAPELOANE MOHAPELOA
APPLICANT
AND
LESOTHO ELECTRICITY
COMPANY (PTY) LTD
RESPONDENT
JUDGMENT
Application for an interdict. Respondent raising three point of law in answer
on jurisdiction, failure to establish a right to an interdict and material nondisclosure. Court finding that it has jurisdiction over this application. Court
however finding that Applicant has failed to establish a right to an interdict
and that he also failed to make a material disclosure of facts. Court dismissing
application and no order as to costs being made.
1. This is an application for an interdict in the following terms:
1. Dispersing with the ordinary rules and modes of service pertaining to
the present application.
2. Restraining the respondent from removing the applicant out of the
respondents house the applicant occupies in Qachas Nek pending
finalisation of the DDPR proceedings in A0669/2014.
3. Directing that prayers 1 and 2 above should operate with immediate
effect.
4. Granting further and/or alternative relief to the applicant as this
Honourable Court may deem fit.
2. Prayers 1 and 2 were granted and a rule nisi was issued returnable on
the day of hearing. In its answer to the Applicants claim, Respondent
had raised three points of law, on jurisdiction, failure to establish a right
to an interdict and material non-disclosure. These were replied to by
Applicant issuably.
Parties were heard on these points and Our
judgement follows.
Jurisdiction
3. Respondent argued that Applicants case centres around removal from
occupation, wherein Applicant claims to have the right to occupy. It was
argued that the remedy sought lies within the jurisdiction of the
Page 274 of 283
Subordinate Courts in terms of section 18(1) of the Subordinate Court

Order of 1988. In terms of that section;
Subject to the limits prescribed by this order, the court may grant against
persons and things, orders for arrest tangham suspectus de fuga,
attachments interdicts and mandament van spolie.
4. It was argued that if this Court proceeds to hear and determine this
matter, it will be usurping the powers of the subordinate Courts conferred
under section 18(1). It was added that the practice to usurp such powers
was discouraged by the Lesotho Appeal Court in Nko v Nko LAC 19901994 312 at 314-315. The Court was specifically referred to the following
extract of the judgment,
Subordinate Courts Order, 1988 repeals the Subordinate Courts
Proclamation 1938. It provides per the Constitution of Subordinate Courts
provided over by magistrates (section 3). Section 29 declares which matters
are beyond the jurisdiction of subordinate courts. Chieftainship and
Succession to Chieftainship are not excluded by section 29. It is necessary
therefore, to consider whether section 17 that pronounces which causes of
action fall within the ambit of jurisdiction of subordinate courts confers
such power. It does not expressly confer such power but sub-section 1(e)
thereof does provide that a subordinate court shall have such other
jurisdiction as shall be specially conferred by any other law.
5. It was argued that from the above extract, the Magistrates Courts have
jurisdiction in all matters in respect of which their jurisdiction has not
been specifically excluded. It was added that this is distinct from the
position in the Labour Court where its jurisdiction is only limited to cases
of unfair dismissals, per the interpretation of section 25(1) of the Labour
Code Order 24 of 1992, by the Court of Appeal in CGM Industrial (Pty) Ltd
v Lesotho Clothing and Allied Workers Union and Others C of A (CIV)
10/99.
6. It was argued that in terms of section 25(1) of the Labour Code Order
(supra),
The jurisdiction of the Labour Court shall be exclusive as regards any
matter provided for under the Code including but not limited to trade
disputes.
No ordinary or subordinate court shall exercise its civil
jurisdiction in regard to any matter provided for under the Code.
7. It was submitted in confirming the conferment of jurisdiction exclusively
on the Labour Court, in respect of unfair dismissal cases, the Court of
Appeal in CGM Industrial (Pty) Limited v Lesotho Clothing and Allied
Workers Union and Others (supra) had the following to say,
It is important to emphasise that in matter[s] provided for under the Code,
the High Court has no jurisdiction and that only the Labour Court has
jurisdiction. See in this regard Attorney General v Lesotho Teachers Trade
Union & Others C of A 1991-1996 Vol. 1 LLR 16 at 25. Failure to recognise
the exclusivity of the Labour Courts jurisdiction in matters provided for
under the Code, would inevitably lead to unsatisfactory practice of what
Page 275 of 283
has been termed forum shopping. CF the paper printing Wood and Allied
Workers case, supra at 640 G-H.
8. It was further submitted that in so far as interdicts are concerned, the
jurisdiction of the Labour Court is limited only in respect of matters
which,
a) in the first place do not fall within the jurisdiction of the DDPR.
b) they have to do with an issue arising predominantly from the provisions
of the Labour Code.
9. It was concluded that the relationship between Applicant and Respondent
was that of occupier and owner which is the tenant and the landlord. It
was argued that as a result, the relationship has nothing to do with the
provision of the Labour Code. It was prayed that the claim be dismissed
on the ground above.
10. In answer, Respondent submitted that the dispute has a remedy
under section 228(1) of the Labour Code (Amendment) Act 3 of 2000. It
was submitted that in terms of that section, 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.
It was argued that as a result, there is no usurping of powers.
11. It was further argued that the right to occupy arises from the parties
employment contractual relationship and the policies of the employer. It
was submitted that this being the case, this Court has jurisdiction to
grant an interdict in terms of section 228(1) as reference above.
12. It is not in dispute that the interdict sought is pending finalisation of a
matter before the DDPR. That being the case, it falls within the
jurisdiction of this Court, at least in terms of section 228(1) of the Labour
Code (Amendment) Act (supra). We are therefore in agreement with
Applicant that the remedy sought lies within the jurisdiction of this Court
and no other.
13. The above view standing, We wish to comment on the submissions of
the Respondent to set the record straight.
We confirm that the
Subordinate Court have jurisdiction to grant interdicts in terms of section
18(1) of the Subordinate Courts Order (supra). However, such jurisdiction
is subject to the provisions of section 25 of the Labour code Order (supra),
as amended by section 9 of the Labour Code (Amendment) Act (supra).
14. In terms of that section,
(1) The jurisdiction of the Labour Court is exclusive and no court shall
exercise its jurisdiction in respect of any matter provided under the Code
(a) Subject to the constitution and section 38A; and
(b) Notwithstanding section 6 of the High Court Act, 1978 (Act No. 13 of
1973).
Page 276 of 283
(2) The Minister, the Labour commissioner, the Director of Dispute

Prevention and Resolution and an aggrieved party shall have the eight to
present a claim to the court as provided under the Code.
15. As We have already made the determination, this Court has
jurisdiction in terms of the Labour Code (Amendment) Act (supra) to hear
and determine this claim. That being the case, the case at hand is one in
respect of which this Court has exclusive jurisdiction. As can be
observed from the provisions of section 25 as amended, the jurisdiction of
this Court as
provided for under the code is only subject to the
constitution. Consequently, the Subordinates Courts have no jurisdiction
over this matter.
16. We also wish to reject the suggestion that section 25, both in its
original form and as amended, limited the jurisdiction of this Court to
unfair dismissal cases. We further wish to reject the suggestion that the
extract from the Court of Appeal decision in CGM Industrial (Pty) Ltd v
Lesotho Clothing and Allied Workers Union and Others (supra), confirmed
the conferring of the jurisdiction of this Court only in respect of unfair
dismissal claims. Rather what the Court merely did was to emphasise
that this Court has exclusive jurisdiction over labour matters.
Failure to establish a right to interdict
17. Respondent submitted that Applicant has failed to establish the
requirements for the granting of an interdict. It was submitted that the
requirements were laid out in the case of Kamogelo v Motlhagodi and
Others 1997 BLR 216 (HC), as follows
A person who requires an interdict should by law satisfy four elements.
These are (a) a prima facie right; (b) a well grounded apprehension of a
harm or in fact an existing harm if the relief is not granted; (c) the balance
of convenience favours the granting of an interdict; and (d) that the
applicant has no other satisfactory remedy. These grounds are interrelated and are not to be considered individually in isolation.
18. It was argued that in casu, Applicant lost the right to occupation when
it was confirmed that he no longer has the status that goes in tandem
with the alleged right. It was submitted that this being the case, there is
no prima facie right and therefore that it is not necessary to consider
other elements as they depend on the existence of a right.
19. It was argued that that notwithstanding, Applicant has an alternative
remedy to rent a home and to later claim damages should he win.
Further that the balance of convenience favours the refusal of the
interdict, in that it is the substantive holder of the position that has a
right to occupation. It was added that someone has since been appointed
in the position which Applicant initially held and that candidate has the
right to occupy in terms of the Respondent policies. It was also argued
that Applicant has not shown any irreparable harm that he stands to
suffer.
Page 277 of 283
20. In answer, Applicant submitted that he has a clear right to occupation

which flows from his right to the position from which he has been
removed. He added that in terms of the policy of the employer, one can
only act for six months and no more. He submitted that having acted for
four years he had claimed that the position is his, including the benefits,
at the DDPR and is awaiting the outcome.
21. About irreparable harm, Applicant submitted that he will suffer
irreparable harm in that he will be removed from the house which he
occupies and that the inconvenience to be caused cannot be repaired. No
further submissions were made in respect of other requirements for an
interdict.
22. We wish to confirm that the requirements for an interdict are as
Respondent has put. Regarding the first requirement, We wish to add
that a party need not establish a certain right, but that even if doubtful,
once established it is sufficient. The addendum is meant to lessen the
burden on the Applicant party and to extend the application of the
principle of audi alteram partem.
23. That notwithstanding, We are of the view that Applicant has failed to
establish a right to an interdict. We say this because what he claims
depends on another Court finding that he has a right to what he has
claimed. From Applicant case, he has asked that the DDPR declare the
position in issue his. It is only once such a declaration has been made
that his right of occupation will arise. Therefore the alleged right is not
even doubtful but non-existent.
24. Further, We agree with Respondent that the situation may have been
different had Applicant claimed to have a right before he was removed
from the position which he has asked to be declared his before the DDPR.
In short, had Applicant contested an attempt to remove him, he would
have remained with the right to occupy the house in issue rather than to
wait until after his removal.
25. Regarding the other elements, We agree with Respondent that
Applicant has an alternative remedy. As respondent has rightly put,
Applicant can ask for damages occasioned by the removal from the
Respondent premises. Further, the balance of convenience favours the
refusal in that Applicant is no longer the incumbent of the position in
issue. It is now occupied by someone else who has been appointed to act
in the position, which appointment Applicant did not attempt to stop.
Furthermore, We agree with Respondent that Applicant has not shown
any irreparable harm. We are of the view that harm, if any, can be best
cured by damages or compensation, should Applicant succeed in his
claim before the DDPR.
Page 278 of 283
Material non-disclosure
26. Respondent argued that Applicant has failed to disclose material facts
before this Court that
a) he applied for the position of superintendent;
b) he was not successful in the said post;
c) he had been put on that post per the letter attached to the answering
affidavit.
It was argued that had these facts been disclosed, he would not have
been granted the interdict.
27. The Court was referred to the case of Schlesinger v Schlesinger 1979 (4)
SA 342, where the Court had this to say
(1) In ex parte applications, all material facts must be disclosed which
might influence a court in coming to a decision;
(2) the non-disclosure or suppression of facts need not be wilful or mala
fide to incur the penalty of rescission; and
(3) the court, appraised of the true facts, has a discretion to set aside the
former order or to preserve it.
It was added that this extract was quoted with approval in Mamahao
Nkhasi v Lesotho Electricity Corporation and 4 Others CIV/APN/36/08.
28. In answer, Applicant submitted that he acted in the position of
superintendent for four years. He added that even if he had not disclosed
that he had applied and was not successful, Respondent has not shown
the effect of that on the order granted. It was submitted that there is no
failure to disclose a material fact. The Court was referred to paragraph 5
of the Founding Affidavit.
29. We have gone through the Founding Affidavit of Applicant, and not
just on paragraph 5. From its perusal, We have noted that position in
respect of which the interdict is sought is that of superintendent. The
right of Applicant to occupy the house in issue depends on him being in
the position. As a result, it was incumbent upon him to disclose any
evidence that is material or which had the likelihood of influencing the
Court in its decision.
30. In Our view, the non-disclosed facts are material. We say this because
these facts go to the heart of the Applicants claim for a right to be
granted an interdict. We say this because if Applicant had applied for the
position in issue, it meant that he was aware that it could be given to
someone else other than him, subject to the outcome of the recruitment
process. At that stage, Applicant had then ceased to have a right to the
position in issue. Therefore if this fact had been disclosed, We would not
have granted the interdict. In Our view the rule in Schlesinger v
Schelsinger applies in casu.
Page 279 of 283
AWARD
a) Application is dismissed.
b) The rule granted is discharged.
2015.
T C RAMOSEME
MRS. RAMASHAMOLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NTAOTE
ADV. MOLATI
Page 280 of 283

HELD AT MASERU
LC/56/2013

KABELO TEISI
APPLICANT
AND
MINOPEX LESOTHO (PTY) LTD
RESPONDENT
JUDGMENT
Claims for underpayments and unfair dismissal. Respondent raising a point of
law that that this Court has no jurisdiction to adjudicate both claims as they
fall within the jurisdiction of the DDPR. Court finding that the Labour Code
(Amendment) Act 3 of 2000 does not limit the basis of underpayments for
traibility before the DDPR. Court further finding that Applicants dismissal is
not based on grounds stated under section 226(1)(c) of the Labour Code
(Amendment) Act (supra). Court declining jurisdiction. Court further directing
parties to arbitrate the dispute before the DDPR within 30 days of issuance of
this order. No order as to costs being made.
1. These are claims for underpayments and unfair dismissal. Facts giving
rise to these claims are that Applicant was employed by Respondent until
his dismissal on or around the 18th March 2013. Following the said
dismissal, Applicant referred a dispute with the Directorate of Dispute
Prevention and Resolution (DDPR), wherein he claimed both
underpayments and an unfair dismissal. The matter was then duly
conciliated, during which process the learned Arbitrator made a
determination that since both claims were based on discrimination, and
then he had no jurisdiction to entertain them. A report of non-resolution
was thereafter issued referring the matter before this Court for
adjudication.
2. Following the initiation of underpayments claim, Applicant lodged the
unfair dismissal claim against Respondent.
He then sought its
consolidation with the underpayments claim. The consolidation was
unopposed and having found merit in the said application, We granted it
and the claims were duly consolidated.
3. In its answer to Applicant claims, Respondent raised a point in limine in
which it challenged this Courts jurisdiction to entertain the two claims.
Respondent argued that both the unfair dismissal claims and
Page 281 of 283
underpayments fell within the jurisdiction of the DDPR in terms of

section 226(2) of the Labour Code (Amendment) Act 3 of 2000. We then
directed both parties to address Us and having heard them, Our
judgment follows.
4. Respondent argued that, in terms of section 226(2) of the Labour Code
(Amendment) Act (supra), the DDPR has jurisdiction to hear and
determine by arbitration the following disputes:
(a) a dispute referred by agreement;
(b) a dispute concerning the application or interpretation of
(i)
A collective agreement;
(ii)
A breach of a contract of employment;
(iii)
A wages order contemplated in section 51;
(c) a dispute concerning the underpayment or non-payment of monies due
(d) an unfair dismissal for any other reason other than a reason referred to
in subsection (1) (c).
5. It was argued that both Applicants claims fall within the jurisdiction of
the DDPR in terms of sections 226(2)(c) and 226(2)(d) of the Labour Code
(Amendment) Act (supra). In support of the contention, it was submitted
that Applicant has claimed underpayments which in terms of section
226(2)(c) clearly falls within the jurisdiction of the DDPR. It was added
that Applicants claim for unfair dismissal is based on inconsistency
and/or discrimination. It was submitted that these are reasons other
than those stated in subsection 1(c) of the Labour Code (Amendment) Act
(supra).
It was prayed that the claims be dismissed for want of
jurisdiction.
6. Applicant answered that while he has claimed underpayments, which
seemingly fall within the DDPR jurisdiction in terms of section 226 (2) (c),
the cause of action is discrimination and that this founds this Courts
jurisdiction over the claim. Further that in this unfair dismissal claim, he
complains about inconsistency, which is the same as discrimination,
while his underpayments claim is based on discrimination as well. He
argued that the DDPR does not have jurisdiction to determine
discrimination claims.
7. We agree with Respondent that Applicants claims are triable before the
DDPR in terms of section 226 (2) of the Labour Code (Amendment) Act
(supra), in that one claim is for underpayment of monies, while the other
is for unfair dismissal for reasons other than those set out in section 226
(1) (c) of the same Act. This Court has jurisdiction to hear and determine
unfair dismissal claims only if they are premised on any of the following
reasons:
(i) for participation in a strike;
(ii) as a consequence of a lockout; or
(iii) related to the operational requirements of the
Page 282 of 283
employer.
8. The reasons for the dismissal of Applicant are clearly for other reasons
other than those stated above. Further, section 226 (2) (c) of the Labour
Code (Amendment) Act (supra), does not limit or restrict the basis of
underpayments to other reasons other than discrimination for them to be
triable before the DDPR. In fact, the said section permits the referral of
an underpayment claim for any grounds recognised under the Labour
Code Order of 1994 as amended. Therefore, We are of the view that We
do not have jurisdiction over both claims, as they fall within the DDPR
jurisdiction.
COSTS
9. Respondent had asked for dismissal of the Applicants claims with costs.
We have stated before that costs are awarded in extreme circumstances of
either frivolity or vexations conduct (see Thabiso Moletsane v Ministry of
Public works and Transport LC/31/2014). Respondent does not allege
any of the two or both. As a result, We do not find justification in its
prayer for costs and We accordingly refuse same.
AWARD
For the above reasons, We make the following award,
a) That these claims are dismissed for want of jurisdiction.
b) The two claims fall within the DDPR jurisdiction.
c) Applicant may, if he so wishes, proceed to arbitrate these two claims
within 30 days of issuance herewith failing which he shall be barred.
2015.
T C RAMOSEME
MRS. RAMASHAMOLE
MS. LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. RASEKOAI
MR. LETSIKA
Page 283 of 283

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LESOTHO

Vo lum e 4 (2015 Judge m e nt s)

ABOUT THE AUTHOR

Liteboho Mokobori v Edgars Stores Lesotho (Pty) Ltd

Sinohydro Corporation (Pty) Ltd v Hlalele Ralienyane

Sobita Investment (Pty) Ltd t/a Lakeside Hotel v

Ntsukunyane Mokhotho and others v Mamohau

Mamosotho Moima v TFS Wholesale (Pty) Ltd and

Pascalis Molapi v Metcash Ltd Maseru, LC/06/1994

Melane v Santam Insurance company Ltd 1962(4) SA 531 AD

Books and Journals

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

not accurate that Applicant did at some

challenged but accepted as true and accurate, the argument by Applicant

At page 11, the following is recorded:

unclear charge with the learned Arbitrator. Rather, he seems to claim

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

3. As a result, Applicants referred a claim for discrimination with the

still bound by the rules of procedure applicable in whatever mode,

(3) Any person who communicates to another details of the names of a

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

M84,383.38, if successful in the review.

We then directed parties to

SUBMISSIONS AND ANALYSIS

This is why it is permissible in law that a jurisdictional point can be

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

I will say applicant was subcontractor because he did not pay

to be denied. (See H. Daniels, 6th Ed., Becks Theory and Principles of

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

COSTS FOR POSTPONEMENT ON 16/09/2014

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

The said agreement was made an order of this Court.

dismissal was an appropriate sanction, particularly given the amount of

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

SUBMISSION AND ANALYSIS

10. In so far as the prospects of success are concerned, We on the

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

reinstatement. Further reference was made to the case of Sedumo v

with dishonesty. In the circumstances the applications will be compensated

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

argument, there are still not prospects as to date no record of proceedings

(CIV/APN/136/87 (unreported) at page 6, where the court had the

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

3. It was submitted in the case of Lesotho Precious Garments v DDPR &

maintain Our attitude in addressing Applicants argument on the

(a) The respondent company is hereby ordered to reinstate applicant in

(c) The respondent company is further ordered to pay an amount of

19. Evidently, no justification was given to demonstrate the impracticality

ADV. SEKONYELA THANTI

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

Registrar advised them to write a letter to demand another disc, which

IN THE LABOUR COURT OF LESOTHO

IN THE MATTER BETWEEN

9. While We accept and acknowledge the dictates of the principle of