Kali v Lesotho Telecommunications and Another (CIV/APN/301/2001)

Case No: 
CIV/APN/301/2001
Media Neutral Citation: 
[2004] LSHC 74
Judgment Date: 
3 June, 2004

Downloads

CIV/APN/301/2001

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU


In the matter between


NTSEPE KALI Applicant

And

LESOTHO TELECOMMUNICATIONS 1st Respondent

THE PRESIDENT 2nd Respondent


For the Applicant : Mr Putsoane

For the Respondents : Mr M Mpobole


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi On the 3rd day of June 2004


Applicant filed an application before this Court on the 10th August 2001 praying inter alia for the following remedies:


  1. That the Second Respondent's decision to dismiss Applicant's case in LC 140/95 in terms of Rule 16 of the Labour Court Rules be reviewed, corrected and set aside.

  2. The Second Respondent be ordered to dispatch the record of proceedings in LC 140/95 to this Honourable Court within 14 days of service herein.

  3. That the Respondents be ordered to pay costs herein only in the event of opposition.

  4. Granting Applicant further and or alternative relief.


2


It was almost after a year that the Registrar succeeded to secure the case file, which was sought to be reviewed, from the Labour Court. Thanks for the intervention of Mrs M Khabo the Labour Commissioner. Most misguidedly Counsel had thought a whole sense in the matter could have been seen without that valuable file. I doubted that from the onset.


The background is that the Applicant together with one Khaufane Mofokeng had been employees of the First Respondent as security guards. They had both filed an application before the Labour Court against the Respondent for unlawful dismissal. For this purpose the Applicant had instructed Chief Legal Aide Counsel to represent him.


When this claim was ripe for hearing, that is, when pleading were closed in terms of the procedures of the Labour Court the Applicant instructed his Counsel to withdraw as Counsel of record. It appears that this was done by a notice dated the 20th October 1996. Subsequent thereto a notice of hearing was issued for the 30th day of April 1997 at 0900 hours.


This notice of withdrawal was addressed to Legal Aide Counsel and to M.T. Matsau & Co. It appears that it is the procedure of that Court that the Registrar of that Court can mero motu appoints date of hearing which he only has to communicate to involved Counsel and or litigants. On the 30th April 1997 the matter was before the Commissioner and was postponed to a date to be arranged, perhaps due to absence of the Applicant. The reason for the postponement is not stated, neither is it pleaded before this Court.


3


A letter was written by the Registrar of the Labour Court as she was entitled to do on the 25 March 1998 gave warning that the matter be set down for hearing lest it be struck off the roll for lack of prosecution. This letter was addressed to Chief Legal Aide Counsel and copied to M. T. Matsau & Co. Subsequent thereto another letter seeking reaction of the Chief Legal Aide Counsel to the former letter was written by the Registrar. There seemingly was no reaction to both letters. Consequently, after several postponements the matter was set down for the 1st June 1999, on which day the matter was dismissed for lack of prosecution. Notice of the present application was filed on the 24th September 1999.


The basis for this review application is an irregularity allegedly committed by the Labour Court. Applicant claims that he was not heard for the reason that he was not informed of the date of hearing which fact as he submitted constitutes a serious irregularity such as to warrant redress by way of reinstating the claim onto the roll of the Labour Court. Before this Court Counsel for both parties appeared. Mr. Mpobole for the Respondents took certain points-in-limine. But it was agreed that those be argued at the same time together with other points.


Mr Mpobole contends that whereas Applicant's services were terminated in 1993, they only brought their application before Court in October 1995, some two years later. That in terms of the Labour Code Order No. 24 of 1992 the Applicants ought to have brought the application six months after dismissal. That in fact neither an application for condonation was made, nor was condonation granted mero mutu by the Labour Court.


4


Mr. Mpobole noted that the claim by the Applicants had prescribed by the time it was brought before Court. Indeed in terms of Labour Code Order No.24 of 1992, section 17(1) thereof, a claim, such as the Applicants, ought to have, been brought within six months of the termination of employment. But to decide this question more fully the Court must address itself to this question whether this Court is competent to decide the question of prescription. Mr. Putsoane has sought to argue that this Court ought not to go into the question of prescription which, as he submitted, is solely within the jurisdiction of the Labour Court.


Ramodibedi J (as he then was) had occasion to deal with this issues of prescription in Lesotho Brewing Company t/a Maluti Mountain Brewing v Lesotho Labour Court President and Another CIV/APN/435/95 (unreported) I fully agreed with respect with what the learned Judge pronounced on the question of prescription, which is this that, failure by the Applicant to apply for condonation ousts the jurisdiction of the Labour Court. It is noteworthy that Applicant waited for some twenty two months after his former attorneys had withdrawn before seeking to proceed with the matter. This is presently unacceptable and does not augur well for success of this application.


It is trite law that unlike in appeal matters there is generally no time limits stipulated within which to apply for reviews, the only exception being review of taxation which must be within 14 days of the allocatur. See Rule 49(1). However review proceedings must be brought before Court within a reasonable time. In the


5


absence of precise time limits in the High Court Rules it can only be concluded that what is reasonable must be judged on the circumstances of each case.


South African cases have variously defined reasonable time in the contexts as one month, two months in some cases three months and so forth. (See Hanaker v Minister of the Interior 1965(1) SA 372( c ) at 380B; Stoner v S.A.R. & H 1933 TPD 265; Chesterfield House Pty (Ltd) v Administrator of the Transvaal & Others 1951(4) SA 421 T at 424 D-E, and a host of other authorities. It is inexcusable for the Applicant to have brought this review application a full two years after he was aware that his application had been dismissed. But what could be the effect of delay in bringing review proceedings on the Respondent?


In order to decide the reasonableness of time after which the review application is brought before Court. We must investigate (in the same manner as for a jurisdictional fact) whether there is prejudice as a result of the delay. I must state right at the onset that inordinate delay does not in itself render an application of this nature invalid without there being prejudice to the other side.


Mr. Mpobole for the Respondent quite correctly argued that the application by the Applicant which is that of reinstatement, and which was brought after so long a time, causes prejudice to the Respondent if the net result turns out to be an order of reinstatement and payment of salary in lieu thereof. On this aspect of the Court of Appeal made apposite remarks in Lesotho Bank v Maitse Moloi C of A (CIV) 31/95 which are relevant in this case that is, as it was said:


6


"Assuming that the Court appreciated that it had a discretion in the matter, it misdirected itself, in the first instance, in having no regard to time already elapsed but merely speculating about the future - without, in turn, affording the appellant a proper opportunity of being heard as to the effect an order of reinstatement would have had at that stage - two years on..... The respondent did not, give any acceptable reason for his inordinate delay."


In the present case the Applicant has not furnished to the Court with goods reasons that justify the delay. Nor was an application for condonation of the late filing of the review filed. Perhaps that application would disclose such reasons. Neither was condonation by this Court granted.


Where the applicant fails to explain away a questionable delay, he cannot be heard to claim that the delay was reasonable without good reasons. In the premises the Court is left with no option therefore but to decide if there was inordinate delay merely by looking at the length of time before bringing up the review proceedings. In the absence of an application for condonation the inevitable conclusion is that there was delay. See also cases of Visser & Du Toit v Union Government 1943 CPD 297 and Policansky Bros v Hernann and Canard 1911 TPD 319.


Before this Court the Applicant sought to rely on the failure by the Registrar to notify him of the date of hearing as an irregularity that justify his applying for review. Mr Mpobole contended that even if it was to be accepted or even if for argument's sake it was a mistake that the Applicant was not informed of the date of hearing and if that constitutes impropriety, the right remedy would be that of rescission because then the decision to dismiss it for lack of prosecution amounted to absolution from the instance. That therefore the Labour Court remained seized of the matter. I agreed with respect.


7


Mr. Mpobole defends the failure of the Labour Commissioner to have informed the Applicant of the date of hearing on the basis that the Applicant was enjoined to appoint an address for service. Indeed prima facie the notice of withdrawal it appears, there is an address for the Applicant, but the address is only a postal address.


A postal address is not very helpful because it is not physical address as is required, for service in terms of the rule. See High Court Rules 15(2) (b); 18(6) and or 19(4)). It was insufficient if a box number 262, Maseru 0100 only was appointed without having set out a physical address at least 5 kilometres from the Court.


I must however, add that it does not appear as if enough was done by way of trying to locate and or serve the Applicant. For instance the Applicant's physical address does appear in the Notice of Motion as Motimposo. Be that as it may the law enjoins the Applicant himself to have provided a physical address for service, having withdrawn his mandate from Chief Legal Aid Counsel.


In the circumstances I am inclined to hold that Applicant has shown no interest to have this matter finalized each time that the ball was in his court, even up to the stage when he now sought for review. Needless to say, it is now judicial precedent that matters of substantial nature belong to the Labour Court exclusively See Attorney General v Kao C of A (CIV) No. 26 of 2002, M M Ramodibedi JA, 14th April 2003.


8

In the circumstances the application fails with costs to Respondents.


T. Monapathi

Judge

3rd June 2004