IN THE HIGH COURT OF LESOTHO
In the matter between:
TEFETSO SELEBALO APPLICANT
INSTITUTE OF DEVELOPMENT 1st RESPONDENT
PRESIDENT LABOUR COURT 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
Delivered by the Hon Mr Justice T. Nomngcongo on the 28th October 2003
This application was brought on a certificate of urgency seeking an order in the following terms:
Execution of the judgment of the second respondent in case No.LC 29/95 be stayed pending finalization hereof.
The second respondent herein be directed to dispatch to this Honourable Court the record of proceedings in case No. LC 29/95 within fourteen days of service of this order upon him.
The judgment of the second respondent in case No. LC 29/95 delivered on the 5th February 1998 be reviewed, corrected and or set aside.
First respondent be directed to pay the costs hereof and the second respondent and third respondent (sic) only in the event of their opposition.
Applicant be granted such further and/or alternative relief as this Honourable Court may deem fit.
This application was opposed by lst respondent, the second and third apparently were content to abide the judgment of this court. the 1st respondent did not file an answering affidavit but opted to raise points of law in terms of Rule 8(10) (c). The points raised were the following:
Applicant has failed to set out adequate grounds its would entitle him to the relief sought if established.
The applicant has not set out any proper grounds for Review and the application instituted actually amounts to an appeal.
The granting of condonation by the Labour Court is discretionary and in terms of section 70 of the Code it is that Court which has the power to exercise the discretion. Once it has done so it cannot be reversed on review unless it is clearly shown that the discretion was not judicially exercised.
The applicant has abused the court procedure by bringing an application of this nature on an urgent exparte basis and has furthermore failed to comply with the rules regarding the nature of the application in that:
No rule nisi is sought and therefore is irregular.
No prayer is made to dispose (sic) with the rules of court but applicant proceeded nevertheless.
The events that lead to this application start way back in 1993 when applicant was dismissed by 1st respondent and litigation that started
in the Labour Court during 1995 and ended in that court on 5th February 1998 when applicant lost his challenge of the lawfulness of that dismissal. The present proceedings were launched some time in early 1998. In this regard the Certificate of Urgency is undated whereas the applicant's founding affidavit is dated 24th February 1998. It is interesting to note that the judgment that is to-day sought to be reviewed had been delivered on the 5th February 1998.
Now, the certificate of urgency does not set out any grounds of urgency at all. The only reason set out for urgency appears in the founding affidavit and it is stated as follows at par. 18 thereof:
"It is my respectful submission......that this is a matter requiring the urgent attention of this Honourable Court as the first respondent acting on the strength of annexure "TS 2" is likely to have me evicted from the house I am presently occupying, which was part of my employment package with it (sic). Indeed, the third respondent herein has attempted to evict me from the said house before".
So the urgency is not in the relief sought but because he is going to be evicted from the house that he lives in. He had been prepared to let things be from the 5th February to the 24th or some unspecified date prior to that and was only moved to launch this application not because there was urgency in it, but because he feared eviction. This eviction, itself an extraneous consideration, he ought to have known would come some time or other anyway, since he had been dismissed as long ago as 1993. This I must say is an example of the long list of abuses of urgent applications. This becomes even more evident from the way the application was treated. From the file I have, when it came before this court on the 9th August 1999 it is recorded by Ramolibeli J. that "Mr Ts'enoli for applicant informs the court that the matter was erroneously placed on motion roll". It was consequently removed from the roll.
On the 14th August 2000 when it came up again Mr Nathalie requested that it be postponed sine die and this was done. Nothing appears to have been done until the matter was argued before me on the 20th March this year. We are then told that there was no more urgency as it had been overtaken by events. That cannot avail the applicant; he had brought this application as an urgent one when there was no urgency at all.
REVIEW OR APPEAL
The applicant seeks this court to review the proceedings of the Labour Court. His grounds as gleaned from his affidavit seem to be these:
The papers filed in case No. LC 29/95 did not disclose certain facts, which facts would have influenced the Labour Court President to exercise his discretion to condone in his favour for the late filing of his application to have his dismissal declared unlawful. This we are told is "clearly inadvertent on the part of
my then attorneys of record. (My emphasis). See par. 13 of his founding affidavit.
The Labour Court misconstrued section 66 (4) of the Labour Code in holding that he had been given a fair hearing at the time of his dismissal. (See par. 15 of the founding affidavit).
As to 1 above:
The allegation seems to be true to some extent but it ignores an important aspect of the judgment of the learned President of Labour Court. The facts the applicant says were not disclosed relate to the explanation for his delay in bringing his application. In dealing with that the learned president has this to say at page 3 of his judgment:
"The applicant having made no formal application for condonation, there was no explanation either in the papers or orally why there has been a delay".
This was in spite of the fact that applicant's counsel appears to have been given an opportunity to give an explanation. This appears earlier on in the judgment at page 1 :-
"At the close of Mr Nathalie's address the court invited him to address it on the question of the late filing for which there no was no application for condonation."
It seems clear that even in that late hour the president was prepared to hear whatever applicant had to say in explanation of his delay. That is why the president says there was not even an oral explanation. What applicant's counsel did instead was to lament the inadvertence of his colleague and contend that the court in any case has discretion to condone. How does a court condone without any explanation for the delay. That court exercised its discretion on what it had before it and if there was no explanation before it the applicant and his counsel have only themselves to blame. They cannot say and I have not heard them say that the learned President of the Labour Court did not exercise his discretion judicially. In fact a reading of his judgment amply demonstrates that he considered every aspect of the matter including lack of explanation when he refused
condonation of the late filing of the application. What the applicant is asking is that this court should substitute its discretion for that of the Labour, now that he (applicant) has furnished his reasons for failure to launch his application timeously. This court cannot do that as that discretion is vested in the Labour Court in terms of section 70 of the Labour Code and it has not been shown that he did not exercise it judicially. See Union Government (Minister of Mines and Industries) v Union Steel Corporation SA LTD 1928 A.D 220 at 234 -5; Steyn v City Council of Johannesburg 1934 WLD 143 at 146 - 7.
As to 2 above:
Sec. 66(4) of the Labour Code proves:
"Where an employee is dismissed under subsection (1) (a) or (b) of this section he shall be entitled to have an opportunity at the time of dismissal to defend himself or herself against the allegations made, unless, in the light of the circumstances and
reason for dismissal, the employer cannot reasonably be expected to provide this opportunity".
Now the applicant seems to want that an interpretation be given to the act that the granting of an opportunity to be heard has to be contemporaneous with the dismissal. That is absurd. The two simply cannot coincide. The one must precede the other. The learned president has found as a matter of fact that the applicant was in any case given a proper hearing. There was nothing wrong with his interpretation of the law. If the applicant is unhappy with the result, the only thing open to him is to go on appeal and not review because now he traverses the merits. It is unfortunate for him that the Labour Code does not provide for an appeal against the decisions of the Labour Court.
In the result the points of law raised are upheld and the application is dismissed with costs.
For Applicant : Mr Nathane
For Respondent : Mr Molete