IN THE HIGH COURT OF LESOTHO
In the Matter Between:-
TEACHING SERVICE COMMISSION 1st APPLICANT
TEACHING SERVICE DEPARTMENT 2nd APPLICANT
P S MINISTRY OF EDUCATION 3rd APPLICANT
ATTORNEY GENERAL 4th APPLICANT
THE LEARNED JUDGE OF
LABOUR APPEAL COURT 1st RESPONDENT
LABOUR APPEAL COURT 2nd RESPONDENT
LABOUR APPEAL COURT 3rd RESPONDENT
THE ARBITRATOR DIRECTORATE OF
DISPUTE PREVENTION & RESOLUTION 4th RESPONDENT
BOKANG LELIMO 5th RESPONDENT
Delivered by the Honourable Madam Justice N. Majara on the 3rd October 2007
This is a review application for an order in the following terms:-
Directing and ordering that proceedings in LAC/A/04/05 a matter of the Labour Appeal Court and a subsequent order of the Labour Court be reviewed and corrected or set aside.
Directing and ordering stay of execution of the awards granted by fourth respondent pending the finalization of this application.
Directing the Second Respondent to dispatch the record of proceedings to the Registrar of the above Honourable Court within fourteen (14) days and to inform the Applicant's Attorney that she has done so.
Directing Respondents to pay costs hereof only in the event of opposition.
Granting Applicants further and/or alternative relief.
Only 5th respondent filed an answering affidavit in opposition wherein he also raised some points in limine. When the matter was initially placed before me and after reading the pleadings, I directed Counsel to address me on the point of jurisdiction only as I believed it was the most pertinent, with the likelihood that this matter might be disposed of on it alone.
Counsel duly prepared written submissions and filed them of record. On the date of hearing of this matter, I was engaged in a trial in another matter, as a result both of them agreed with the leave of this Court to submit their written heads without making verbal submissions with the rider that in the event that the Court might need any clarification, it would duly notify them so that they could come and address it on the relevant points as the case might be.
I also find it apposite to mention at this stage that this matter dates as far back as 2003 and it is unfortunate that it has not reach its finality to date. However, suffice it to say that it is against this backdrop that at this stage the only issue for determination by this Court is whether the High Court has jurisdiction to review judgments of the Labour Appeal Court.
In his heads of argument, Mr. Kgoadi who appeared on behalf of 5th respondent made the submission that this Court has no jurisdiction to review matters from the Labour Appeal Court, nor from any court that falls under the Labour Code Order No. 24 of 1992 as amended by the Labour (Amendment) Code No. 3 of 2000. To this end, he made reference to the case of The Attorney General and Others v Kao LAC (2000-2004) 656 and other authorities referred to therein.
Counsel for 5th respondent added that in that case, the court might as well have been referring to the "merits of this review" whereby the learned Ramodibedi JA had stated that :-
''Referring now to the merits of this appeal, I should state at the onset that the question whether the Labour Court enjoys exclusive jurisdiction is one that has engaged the attention of the court for some time now."
Mr. Kgoadi went further to quote the Court at p664 thereof where it stated that:-
"ln all of those cases referred to in the preceding paragraph it has now consistently been held that in matters provided for under the Code the High Court has no jurisdiction and that only the Labour Court has jurisdiction. This court reached that conclusion in cases in question after painstakingly reviewing the relevant provisions of the Code. It is strictly unnecessary for me therefore to traverse the same field again."
In addition, Mr. Kgoadi referred the Court to the case of The Vice Chancellor of the National University of Lesotho v Lana LAC 2000-
2004 527 especially the decision of the Court of Appeal which he submitted is on all fours with the present application.
In response, Ms Nkaota who appeared on behalf of applicants made the submission that the High Court does have the power to review decisions or judgments of all courts subordinate to it which include the Labour Appeal Court. Counsel added that this is in accordance with Section 119 (1) of the 1993 Lesotho Constitution which established the High Court.
It was Ms Nkaota's further submission that the Labour Appeal Court was established by Section 38 (1) of the Labour Code (Amendment) Act of 2000 and that since this latter law is inferior to the Constitution the submission by respondents that they enjoy the same status is incorrect. She added that this is the position even though decisions or judgments of the Labour Appeal Court cannot be appealed against in accordance with section 38A (4) of the Amendment.
Further, that even the same Act does not provide that the decisions or judgments of the Labour Appeal Court cannot be reviewed. She added that a reading of the two instruments, i.e. the Constitution and the Code leads one to the conclusion that the High Court has jurisdiction to also review decisions of the Labour Appeal Court which (so she contended) falls under courts that are inferior to the High Court.
I now proceed to deal with this question of jurisdiction of the High Court to review decisions of the Labour Appeal Court.
Indeed the constitutional provision Section 119 (1) which established the High Court provides as follows:-
"There shall be a High Court which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings and the power to review the decisions or proceedings of any subordinate or inferior court, court-martial, tribunal, board or officer exercising judicial, quasi-judicial or public administrative functions under any law and such jurisdictions and powers as may be conferred on it by this Constitution or by or under any other law." (my underlining)
The same powers are also provided for under Section 7 of the High Court Act of 1978 which reads as follows:-
"The High Court shall have full power, jurisdiction and authority to review the proceedings of all subordinate courts of justice within Lesotho, and if necessary to set aside or correct the same. " (my underlining)
On the basis of the above two provisions, it is without doubt that this Court has powers of review of proceedings emanating from all subordinate and/or inferior courts. This in turn begs the question, does the Labour Appeal Court fall within the definition of subordinate or inferior courts as referred to under the two instruments?
The Labour Appeal Court was established by the Labour Code (Amendment) Act of 2000 (hereinafter referred to as the Amendment) under its Section 38 (1) which provides that there shall be a Labour Appeal Court. Subsection (2) thereof reads as follows:-
"The Labour Court is the final Court of appeal in respect of all judgments and orders made by the Labour Court. "
Under the same section the composition of the Court is provided for and in terms of paragraph (a) it consists of a Judge of the High Court who is to be nominated by the Chief Justice and two assessors chosen by the Judge.
Section 38A of the Amendment in turn provides that the Labour Appeal Court shall have exclusive jurisdiction. Over and above this, subsection (2) provides as follows:-
"Notwithstanding the provisions of any other law, the Labour Appeal Court may hear any appeal or review from a decision of any subordinate Court concerning an offence under this Code and any other labour law. " (my underlining)
In order for me to determine what is meant by subordinate and or inferior courts vis-a-vis the Labour Appeal Court, I find it imperative that I should examine all the relevant provisions which I have quoted above. A reading of the provisions of section 119 of the Constitution reveals that there is no comma between the terms subordinate or inferior whereas immediately after, there is a comma between all the other courts, bodies or tribunals that are listed therein. In my view, this denotes that under this section, the terms subordinate or inferior are used interchangeably whereas the rest are regarded as different.
Proceeding on the basis of the above position, the Amendment as quoted above in turn empowers the Labour Appeal Court to hear any appeal or review from the decision of any subordinate court. In my opinion, when these two provisions are read together, it cannot be correct to argue that the intention of the Legislature was to place the Labour Appeal Court within the
realm of subordinate or inferior courts whose decisions are subject to review by the High Court.
On the further argument by Ms Nkaota that nowhere in the provisions of the Amendment section in its subsection (4) does the law indicate that decisions or judgments of the Labour Appeal Court cannot be reviewed my understanding of Counsel's contention is that the operative word is review and not appeal because the word review is not mentioned therein.
The said subsection provides as follows:-
"Subject to the Constitution of Lesotho, no appeal lies against any decision, judgment or order given by the Labour Appeal Court. "
Ordinarily, both appeals and reviews as they are referred to in this context, are processes whereby proceedings of inferior courts of justice both civil and criminal are brought before the higher courts where in the case of review, it is in respect of grave irregularities occurring during the course of such proceedings whereas with appeal, it is in respect of the merits of the case. See Isaacs in Beck's Theory and Principles of Pleading in Civil Actions 5th Edition pp 319-325.
In the light of this position, I cannot conjure up a situation wherein the Legislature could have meant that the Labour Appeal Court has jurisdiction to hear appeals and reviews from inter alia, any subordinate court, only for it to be regarded as an inferior and/or subordinate court in so far as its own decisions being reviewed (and not appealed) is concerned. In my view, this would result in an absurdity.
It is my further view that in light of all the above considerations, the fact that the term review was left out of this provision was just an oversight on the part of the drafters of the statute. On that basis, the submission made by Ms Nkaota might have held some water if the other legal provisions which I have already made reference to did not exist.
Over and above this, the Labour Appeal Court also enjoys exclusive jurisdiction and this is in terms of Section 38A of the Amendment. The section reads in parts:-
The Labour Appeal Court has exclusive jurisdiction-fa) to hear and determine all appeals against the final judgments and the final orders of the Labor Court;
The meaning and effect of the term exclusive jurisdiction has been dealt with in many cases that have come before the superior Courts. One of them is the Kao Case (Supra).
In that case the respondents had instituted an application in the High Court for payment of arrears of salary arising from his dismissal by appellants and the application was granted with costs. The appellants appealed against the decision on the ground that the High Court had no jurisdiction in the matter and that the Labour Court enjoys exclusive jurisdiction in such matters.
Although the facts are a bit different in that therein the High Court had been approached to deal with the matter in its original jurisdiction instead of respondents instituting proceedings in the Labour Court whereas in casu applicants are seeking a review of the decision of the Labour Appeal Court,
it is my view that the reasoning of the Court of Appeal per the judgment of the learned Ramodibedi J applies in this case nonetheless.
At page 10-11 of his judgment, he stated in parts and in so far as it is relevant in casu as follows:-
"...it has now consistently been held that in matters provided for under the Code, the High Court has no jurisdiction and that only the Labour Court has jurisdiction. This Court reached that conclusion in the cases in question after painstakingly reviewing the relevant provisions of the Code. "
True enough, the above quoted portion was stated with regard to the exclusive jurisdiction of the Labour Court. However, I have already shown that in terms of Section 38A of the Amendment, the Labour Appeal Court is also cloaked with exclusive jurisdiction.
My understanding of the position in the Kao Case (Supra) is that the High Court has neither the original jurisdiction to hear matters that fall under the Labour Code of 1992 (as amended) nor the power to hear any matters emanating from that court either by way of review and/or appeal.
As a result, if the Court of Appeal found that despite reference to the Constitution per the provisions of Section 25(1) (a) of the Labour Code of 1992 (as amended) to wit, 'the jurisdiction of the Labour Court is exclusive and no court shall exercise its civil jurisdiction in respect of any matter provided for under the code- subject to the Constitution...' (my underlining), no other court has jurisdiction to deal with matters that fall within its exclusive jurisdiction, then by the same analogy, it is only logical to find that no other court has jurisdiction to deal with matters that fall
within the exclusive jurisdiction of the Labour Appeal Court despite the provisions of section 38A (4) of the Amendment whose first words read, 'Subject to the Constitution....'
In addition, it is also my considered opinion that if the Labour Appeal Court was meant to be subordinate or inferior, it would not have been constituted with inter alia, a judge of the High Court who sits on it on a permanent basis, only to subject its decisions to review by another judge(s) of the High Court who enjoy the same status as he. In my view, that would constitute a serious anomaly which cannot have been intended by Parliament. This is especially the case when this factor is taken in conjunction with the statutory provisions I have made reference to above.
For all these reasons, I find that this Court does not have the jurisdiction to review matters that emanate from the Labour Appeal Court and accordingly dismiss this application on this point alone with costs.
For applicants : Ms Nkaota
For respondents : Mr. Kgoadi