IN THE LABOUR APPEAL COURT OF LESOTHO
HELD AT MASERU
In the matter between
LESOTHO HIGH LANDS DEVELOPMENT AUTHORITY APPLICANT
THE DIRECTORATE FOR DISPUTE
PREVENTION AND RESOLUTION 1ST RESPONDENT
MATS’ELISO MAKHALEMELE 2ND RESPONDENT
CORAM: THE HON. MR. ACTING JUSTICE K.E. MOSITO
ASSESSORS: MR. Tau
HEARD: 23 August 2006
DELIVERED: 5 SEPTEMBER, 2006
Review of Arbitral proceedings –Labour and employment matters – Application Absolution from Instance –Arbitrator Not appreciating the nature of matter her – Effect thereof - Court having not been addressed on costs – Application dismissed – no order as to costs.
This is an application for an order in the following terms:
The facts of this application are straightforward and are not in dispute. They are as follows:
Section 228F (3) provides that, the Labour Appeal Court may set aside an award on any grounds permissible in law and any mistake of law that materially affects the decision. The phrase, “any grounds permissible in law “ is not defined in the Act. Against this background it is necessary to consider what this phrase entails for purposes of this Court, thereby determining the grounds upon which the Labour Appeal Court is empowered to review the proceedings of the DDPR (and also those of the Labour Court).
In JD Trading (PTY) LTD t/a Supreme Furnishers v M. Monoko and two Others LAC/REV/39/04,(delivered on the same date as the present judgement), this Court considered the sources and the extent of its power of review. It pointed out inter alia that, Section 228F (3) provides that, the Labour Appeal Court may set aside an award on any grounds permissible in law and any mistake of law that materially affects the decision. It went on to considered a number of authorities such as, Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 (A) at 152A-E , and held in line therewith that, in order to establish review grounds it may have to be shown that the tribunal failed to apply its 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), thus in Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 (A) at 152A-E.
We now turn to the merits of the present case. This is a typical example of such a case. The arbitrator simply failed to appreciate the nature of the issue she had to decide, and consequently, she failed to apply her mind to the relevant issues in accordance with the "behests of the statute and the tenets of natural justice". This was a clear misdirection.
We do not believe that the justice of this matter can be met by referring the matter to the same arbitrator again.
· T he awards of the arbitrator are consequently hereby reviewed and set aside.
· This Court orders that, the matter is sent back to the DDPR for consideration de novo by a different arbitrator.
· We do not believe that the second respondent is to blame for the arbitrator’s misdirection to warrant being punished with costs.
· Costs will be costs in the cause.
K. E. MOSITO
JUDGE OF THE LABOUR APPEAL COURT
Mr. Tau I agree
Mr. Makhetha I agree
DATED AT MASERU THIS 5TH DAY OF SEPTEMBER 2006
For the applicant: Advocate. S. Mathe
For the first and second respondents: Advocate. B. Thabane