LLCJ Volume 2 Issue 2

LESOTHO
LABOUR
COURT
JUDGMENTS
A compilation
Vo lum e 2 (201 3 Judge m e nt s)
I ssue 2
LESOTHO LABOUR
COURT JUDGMENTS
A COMPILATION
2013 JUDGMENTS
Volume 2
Issue 2
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 sequence to the first volume which contained the
judgments of the Labour Court of Lesotho before His Worship Advocate
Thato Charles Ramoseme, from early in the last quarter of 2012 to December
of that year. This Volume covers the whole of the year 2013, that is, from
January to December. It contains 73 judgments, all issued in 2013, and is
composed of two issues. Issue one, on the one hand, runs up to page 180
while issue two, on the other hand, runs from page 181 to page 361.
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
September 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
xi - xvi
xvii
xvii
ISSUE 1
Tanki Monye v Mamojalefa Maphokoane & others..
Reinstatement
Refiloe Okello v The Principal Secretary Ministry of
Tourims, Enviroment and Culture..
Interdict
Tholoana Matsoso v Photo and Gift Galaxy (Pty) Ltd
and another
Condonation; and review
Thabelo Kebise v Lesotho Brewing Company (Pty) Ltd
and another
Review; exclusion of a representative; and
recusal of presiding officer
Limkokwing University of Creative Technology
v Tebello Mothabeng and another..
Review
Thabo Matamane v DDPR and another ..
Review; and dismissal of review for non-prosecution
Mahoko Setipe v Nien Hsing International (Pty) Ltd and
Others.
Review; condonation for late filing of answer.
Lesotho Freight Bus Service Corporation v DDPR and
Others.
Review; jurisdiction of the court.
Ellerines Furnishers Lesotho (Pty) Ltd v DDPR
and others..
Review.
Lesotho Electricity Company (Pty) Ltd v Mphaiphele
Maqutu & others.
Review; dismissal for non-prosecution
Lepekola Molieleng and another v Paballo
Ramochele and Another.
Rescission; jurisdiction of the court.
Mohau Rasephali v Tai Yuan Garments (Pty) Ltd
and another...
Review.
13
4 11
12 -15
16 - 21
22 26
27 29
30 34
35 - 38
39 - 44
45 47
48 50
51 57
Nokoane Mokhatla v Lesotho Brewing Company

and others..
Contempt.
Factory Workers Union v Crabtree (Pty) Ltd .
and another...
Declaratory; jurisdiction of the court.
Security Lesotho (Pty) Ltd v Lesia Nkalosi and another
Review.
Makhale Leoatle v G4S Cash Solutions
Lesotho (Pty) Ltd and another
Review.
Standard Lesotho Bank v Raphael Mphezulu
and another.
Review.
Thabo Mosao t/a Mosao Wood and Coal v Neo
Mokebe and nother..
Review; dismissal for non-prosecution.
Fahhida Cash and Carry (Pty) Ltd v Lebohang
Maruoa and others...
Review; dismissal for non-prosecution.
Emma Sehlabaka and others v City Express
Store (Pty) Ltd and another...
Review.
Mosiuoa Molatoli v CGM Industrial (Pty) Ltd.
Review; jurisdiction of the court.
Khauhelo Moeno v Security Lesotho (Pty) Ltd
and another...
Strike related dismissal; judgment by default.
Factory Workers Union o.b.o Thandiwe Labane
and others v Tai Yuan Garments (Pty) Ltd.
Operational requirements related dismissal;
locus standi of union in disputes of right.
FAWU o.b.o Moto-Moto and 18 others.
Unfair dismissal related to insubordination and strike;
res judicata; jurisdiction of the court.
Futho Hoohlo v DDPR and another.....
Lesotho Workers Union v Zinyathi Trading (Pty)
Ltd t/a Jikelele Services and another..
Interdict; courts jurisdiction
Bofihla Makhalane v Leteng Diamonds (Pty) Ltd
and others
Contempt; recusal; withdrawal
Hlalele Hlalele v Women Working Worldwide
Lesotho and another.
Interdict
Mohau Rasephali v Global Garments (Pty) Ltd
and another.
Review; authority to represent.
vi
58 65
66 68
69 72
73 79
80 85
86 - 87
88 - 89
90 93
94 98
99 103
104 107
108 - 112
113 114
115 - 118
119 125
126 - 128
129 132
Manapo Ramaisa and others v Nien Hsing

International (Pty) Ltd..
Discrimination; strike related dismissal;
jurisdiction of the court
Mapaballo Mokuoane v Care Lesotho.
Retrenchment related dismissal; jurisdiction of the court
Moeketsi Moroka v Frasers Lesotho (Pty) Ltd
and another
Review; postponement
T & T Security Services (Pty) Ltd v Samuel Pea Pea..
Set off; jurisdiction of the court
Lebohang Matsapa v Cashbuild Ltd Mafeteng
Reinstatement; jurisdiction of the court
Security Lestoho (Pty) Ltd v Lebohang Moepa
and another..
Rescission
Shahid Hassan and others v Legal Voice (Pty) Ltd.
Retrenchment based dismissal and other claims;
misjoinder
Nthati Mokitimi v Central Bank of Lesotho..
interdict
Nedbank Lesotho Ltd v Setsabe Lefosa and others...
Review; distinction between review and appeal
133 - 139
140 - 145
146 - 150
151 - 154
155 - 159
160 - 162
163 - 166
167 - 173
174 - 180
ISSUE 2
Tepang Kolisang v Sun Textile (Pty) Ltd and another.
Discrimination; locus standi of applicant
Mission Aviation Fellowship v Lineo Hlalele and another
Review of DDPR ruling; jurisdiction of the court
Makamohelo Molefi and others v Tai Yuan
Garments (Pty) Ltd and others..
Review
Michael Fako v Lesotho Brewing Company (Pty) Ltd
and another...
Review
Lesotho Precious Garments (Pty) Ltd v DDPR
and others
Review; defence improperly raised as point of law
South Asia International (Pty) Ltd v Neo Mojalefa
and another.
Review; dismissal for non-prosecution; postponement
Maisanokeng High School and another v Makamohelo
Mokone and another...
Review; additional grounds raised from the bar
Phakiso Ranooana v Lesotho Flour Mills (Pty) Ltd
vii
181 - 183
184 - 187
188 - 191
192 - 196
197 203
204 - 208
209 - 214
and another.
Review; failure to attend proceedings
Eclat Evergood Textile v Malefane Nthontho and others
TEBA Limited (Pty) Ltd v DDPR and another.
Review
Thabo Moleko v Jikelele Services...
Dismissal related to poor work performance;
jurisdiction of the court
Sefatsa Mokone v G4S Cash Solutions (Pty) Ltd
Discrimination in payment of wages; courts jurisdiction
Libe Motholo and others v Thetsane Hardware
and Building Material (Pty)
Ltd.
Operational requirements related dismissal
Khauhelo Moeno v Security Lestoho (Pty) Ltd...
Rescission
Paballo Khoete and another v Supreme Motor
Spares and another.
Contempt
Molahli Edwin Molahli v Morija Press Board
and another....
Review; condonation for late filing of answer from the bar
Mabokang Mohafa v Good Trading Supermarket (Pty)
Ltd and another....
Khoase Pali v First National Bank and another.
Review
Lesotho Electricity Company (Pty) Ltd v Mphaiphele
Maqutu & others.
Review; recusal of presiding officer
Mantepi Mofihli Monti v Ministry of Public Works
and Transport and others
Contempt
Nthabiseng Mokoena v Lesotho Post Bank (Pty) Ltd..
Declaratory order; effect of serving notice
Lesotho Freight and Bus Service Corporation v DDPR
and another.
Review
Thapelo Ntoko v Jikelele Services (Pty) Ltd.
and unlawful deductions
Thabo Makhalane v Ministry of Law and
Constitutional Affairs and others....
Appeal; non joinder
Lesotho Revenue Authority v Mamonyane Bohloko
and others.
Review
viii
215 - 221
222 - 224
225 - 230
231 - 233
234 - 238
239 - 242
243 - 245
246 - 248
249 - 255
256 - 259
260 - 267
268 - 276
277 - 281
282 - 286
287 - 294
295 - 298
299 - 306
307 - 317
Pope John Paul XXIII and another v Tabang

Telukhunoana and others
Reinstatement; record of proceedings
Eclat Evergood Textile Manufacturers (Pty) Ltd v Lefu
Molefi and others
Review; postponement; dismissal for non-prosecution
Kopano Textiles v DDPR and another
Review
Liketso Mokubung v AON Lesotho (Pty) Ltd
and another..
Review
Fahhida Supermarket (Pty) Ltd v Ikhetheleng Sibolla
and another.
Review
Tlali Lefeta v Arbitrator T. C. Thamae and another..
Review; right of a party to argue
Seitebatso Seeiso and another v DDPR and another...
Boliba Multipurpose Cooperative v Sekoala
Motsoasele and another..
Review; dismissal for non-prosecution; failure to
attend hearing
Lehlohonolo Ntholeng and another v DDPR
and another..
Review; condonation
C & Y Garments (Pty) Ltd v DDPR and another..
ix
318 - 321
322 - 325
326 - 329
330 - 335
336 - 340
341 - 348
349 - 351
352 - 355
356 - 359
360 - 361
LIST OF AUTHORITIES
Cases
National
Loti Brick v Thabiso Mphofu & others 1995-1996 LLR-LB 447
Phetang Mpota v Standard Lesotho Bank LAC/CIV/A06/2008
Lesotho (Pty) Ltd vs. Stanley Maitse Moloi and Another C of A CIV/01/2006
Matsaseng Ralekoala v Ministry of Justice, Human Rights and Constitutional
Affairs C of A (CIV/116/2012)
Ramochela v Moshoeshoe and others CIV/APN/172/1987
Lithebe Makhutla and another v Mamokhali Makhutla and Another C of A
(CIV) 7 of 2002
Maneo Moremoholo v Mantsupi Moremoholo and Others CIV/APN/135/2010
Tsepiso Baholo v Loti Brick (Pty) Ltd & another LC/REV/386/06
Director Teaching Service Department & others v Mamoletsane Makhakhe &
others LC/REV/45/2009
Lenka Mapiloko v The President of the Labour Court & another
LAC/REV/05/2007
Bofihla
Makhalane
v
Leteng
Diamonds
(Pty)
Ltd
&
others
LAC/CIV/APN/04/2011
Lesotho Highlands Development Authority v Thabo Mohlobo & Others
LC/REV/09/2012
Lesotho Delivery Express Services (Pty) Ltd v DDPR and another
LC/REV/18/2010)
Khutlang Mokoaleli v Standard Lesotho Bank & DDPR LC/REV/21/07)
Thabo Mohlobo & others v Lesotho Highlands Development Authority
LAC/CIV/A/02/2010
Pascalis Molapi v Metro Group Limited & others LAC/CIV/R/09/2003
Frasers Lesotho Limited v Hata Butle (Pty) Ltd LAC (1995-199) 698
WASA v Moramane Mabina & another LC/REV44/2008
Moonlite Taxis v Phomolo Seboka C of A 06/2007
JDG Trading (Pty) Ltd t/a Supreme Furnishers v M Monoko & 2 others
LAC/REV/39/04
Teaching Service Commission & 3 others v The Judge of the Labour Appeal
Court and 4 others C of A (CIV) 21/2007
Tepang Manyeli & Another vs. DDPR & another LC/REV/49/2008
Maholomo Mpali v The learned Magistrate Mrs Nthunya & 2 others
CIV/APN/269/2011
Eclat Evergood Textile (Pty) Ltd v Mohau Rasephali LC/REV/64/2007
LAC/CIV/A/02/2010
Lesotho National Federation of Organisations for the Disabled v Mojalefa
Mabula and another LAC/CIV/A/07/10
Mateliso Matsemela v Naleli Holdings LAC/CIV/A/02/07
Central Bank of Lesotho v Phoofolo LAC (1985-1989) 253
Lesotho Revenue Authority & others v Olympic off sales C of A (CIV) 13/2006
Commissioner of Police & Another v Ntlo-Toeu (2005-2006) LAC 156
Lerotholi polytechnic & another v Blandina Lisene C of A (CIV) 25/2009
xi
Thuso Motlalentoa and another v Motsoalipakeng Tlokotsi C of A (CIV)

28/1991
Seboloki Leleka v LTA Group 5 (Mohale Joint Venture) LC/131/1996
Montoe Mphaololi v Unity English Medium School and Others LC/150/1995
Puleng Mathibeli v Sun International CIV/APN/411/1996
Theko v Commissioner of Police & another 1991 1992 LLR LB 239
Seotlong Financial Services v Makhomari Morokole LC/REV/32/2009.
Lucy Lerata & others v Scott Hospital 1995-196 LLR-LB 6
Central Bank of Lesotho v DDPR & others LC/REV/216/2006
Sole Masupha v LHDA C of A (CIV) NO. 26 of 1999
Lesotho Evangelical; Church v John Mataba Bokako Nyabela
CIV/APN/150/1980
Nalane & others v Molapo & others LAC (2007-2008) 457
Lethoko Sechele v Lehlohonolo Sechele C of A (CIV) No. 6 of 1988
Lesotho Highlands Development Authority v Mantsane Mohlolo & others
LAC/CIV/07/2009
Lepolesa & others v Sun International of Lesotho (Pty) Ltd t/a Maseru Sun and
Lesotho Sun (Pty) Ltd [2011] LSLAC 4
Monti v Commissioner of Customs and Excise & another CIV/APN/521/2010
Bofihla Makhalane v Leteng Diamonds (Pty) Ltd C of A (CIV) 14/2010
Sole v Cullinan NO & others LAC (2000-2004) 572
R. v Manyeli LAC (2007-2008) 377
Makhanya v Pheko CIV/T/313/2011
Likotsi Makhanya v Malefetsane Pheko & others C of A (CIV) 20/2012
Mathabelo Mbangamthi v Puleng Sesing-Mbangamthi C of A (CIV) 06/2005
Lesotho Electricity Corporation v Ramoqopo and others LAC/REV/121/2005
CGM v DDPR and another LC/REV/88/2006
Factory Workers Union v TZICC LC/20/2004
Muyanja & others v Labour Commissioner o.b.o Samuel Mokhethi C of A (CIV)
40/2011
Nokoane Mokhatla v Lesotho Brewing Company LC/REV/65/2010
CGM Garments v DDPR & another LC/REV88/2006
Monahali Construction (Pty) Ltd v Thabang Ngaka LC16/2009
Open Bible Ministries & another v Ralitsie Nkoroane & another 1991 1992
LLR & LB 112
Thamae & another v Kotelo & another LAC 2005 at 583
Senone & another v Senone C of A (CIV) 48/2011
Thabo Teba & 31 Others v LHDA LAC/CIV/A/06/09
Tsabane v Caba & another CIV/APN/218/2000
BP Lesotho v Moloi & another C of A (CIV) 01/2006
Koatsa v NUL C of A (CIV) 15/1986
Limkokwing University of Creative Technology (Pty) Ltd v Tebello Mothabeng &
another LC/REV/88/2011
Mokhokhoba v The Manager Malea-lea Secondary School & others
LC/4/1995
Security Unlimited (Pty) td v Lesotho Security and Allied Workers Union &
others LC/REV/05/2006
Khajoe Makoala v Masechaba Makoala C of A (CIV) 04/2009
CGM Industrial (Pty) Ltd v Nkalitsoe Molieleng & another LC/REV/61/2007
xii
MDA & another v DPP 2000 2004 LAC 850

Mokone v Attorney General & others CIV/APN/232/2008
Leoatle v G4S Cash Solutions & another LC/REV/57/2010
Molatoli v CGM Industrial (Pty) Ltd & another LC/REV/56/2011
Leteng Diamonds (Pty) Ltd v DDPR & others LC/REV/111/2005
Blandina Lisene v DDPR & Lerotholi Polytechnic LC/REV/122/2007
Tumo Lehloenya and Others v Lesotho Telecommunications Corporation
LC/20/2000
Lerotholi v Tau & others CIV/APN/338/2012
The Liquidator Lesotho Bank v Flora Selloane Seleso CIV/T/58/2002
Thabo Phoso v Metropolitan Lesotho LAC/CIV/A/10/2008
Kopano Textiles (Pty) Ltd v Moteare Qokolo & Others LC/REV/19/09
Lesotho Express Delivery Services (PTY) LTD v The Arbitrator DDPR &
another LC/REV/18/2010
Puleng Mathibeli v Sun International 1999-2000 LLR-LB 374 (CA)
Kobese Hlatsi v Teba LC/02/1998
Mohapi Khaile v Lesotho Electricity Corporation LC/REV/63/2010
Remaketse Molaoli & 9 others v Lesotho Highlands Development Authority
LAC/A/06/2005
Keneiloe Matela & another v Principal Officer, Public Officers Defined
Contribution Pension Fund & others LC/28/2012.
Mohapi Khaile v Lesotho Electricity Corporation LC/REV/63/2010
LAC/A/06/2005
Tsotang Ntjebe & others v LHDA and Teleng Leemisa & others v LHDA
LAC/CIV/17/2009
Mantsoaki Malakane v Standard Lesotho Bank LC/REV/525/2006
Thapelo Ntoko v Jikelele Services LC/42/2013
Standard Lesotho Bank v Tsietsi Polane & DDPR LC/ REV/77/07
LEWCAWU & 35 others v Metcash Trading Limited CIV/APN/38/99
George Kou v Labour Commissioner LC/13/1994
LEWCAWU & 33 others v Metcash Lesotho Limited & another LC/44/1999
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
Lesotho Electricity Company (Pty) Ltd v Mpaiphele Maqutu & others
LAC/CIV/A/01/2013
Lesotho Bank v Khabo LAC (2000 2004
Namane Zacharia Khotle v Security Lesotho (Pty) Ltd LC 44/1998
Motumi Ralejoe v Lesotho Highlands Development Authority LC/36/2006
Selloane Mahamo v Nedbank Lesotho Limited LAC/CIV/04/2011
SOS Children Village v DDPR & another LC/REV/82/2009
Albert Makhutla v Lesotho Agricultural Development Bank 1995-1996 LLR-LB
191
Lesotho Brewing Company t/a Maluti Mountain Brewery v Lesotho Labour
Court President & another CIV/APN/435/1995
Bofihla Makhalane v Leteng Diamonds (Pty) Ltd LAC/CIV/A/09/1999
Rakhoboso v Rakhoboso LAC (1995-1999) 331
Matebesi v Director of Immigration & others LAC (1995-1999) 616
xiii
Nedbank Lesotho Limited v Lefosa & others LC/REV/01/2011

Thabo William Van Tonder v Lesotho Highlands Development Authority
LAC/CIV/APN/06/2004
Kopano Textiles v DDPR and another LC/REV/101/2007)
Molahli v Morija Press Board & another LC/REV/25/2012
Molefi & others v Tai Yuan Garments (Pty) Ltd & others LC/REV/119/2011
Boliba Multipurpose v Kubutu Makara
Koatsa v National University of Lesotho 1991-1992 LLR-LB 163
Maisaaka Mote v Lesotho Flour Mills LC/59/1995
Montoe Mphaololi v Unity English Medium and others LC/150/1995
Makhoabe Mohaleroe v Lesotho Public Motor Transport Company (Pty) Ltd C of
A CIV/06/2009
Mathiba Malothoane v Commissioner of Police & another C of A CIV/18/2009
Eclat Evergood Textile Manufactures (Pty) Ltd v Molefi & others
LC/REV/99/2012
Boliba Multipurpose corporative v Motsoasele & another LC/REV/95/2012
C & Y Garments (Pty) Ltd v The DDPR & another LC/REV/98/2012
Eclat Evergood Textile v Nthontho & others LC/REV/54/2011
Napo Thamae & another v Agnes Kotelo & another LAC 2000-2004
Lesotho Brewing Company t/a Maloti Mountain Brewery v Lesotho Labour
Court President & Another CIV/APN/435/95
Foreign
Simon No v Air Operations of Europe AB and Others 1999 (1) SA 217 (SCA).
Setlogelo v Setlogelo 1914 AD 221
Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A)
President of the Republic of South Africa & others v South African Rugby
Football Union & others 1999 (4) SA CC at 177B-D
Pretorius v Sasol Polymers [2008] 1 BALR 10 NBCCI,
Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 1988 (3) SA 132
Consolidated Frame Cotton Corporation LTD v President of the Industrial Court
and others 1985 ZASCA 54
Consolidated Woolwashing and Processing Mills Ltd v President of the
Industrial Court and others 1986 ILJ 489 (A)
SADTU & others v Head of the Northern Province Department of Education
[2001] 7 BLLR 829 (LC)
Fackie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326
Smith v Smith 1954 (3) SA 434
Pillay v Krishna 1946 AD 946 at 951
S v Roberts 1999 (4) SA 915 (SCA)
Moloi v Euijen & another (1997) 8 BLLR 1022 (LC)
National Education Health and Allied Workers Union & Others v Director
General of Agriculture & Another (1993) 14 ILJ 1488
The Amalgamated Engineering Union vs. Minister of Labour 1949 (3) SA 631
United Watch & Diamond (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C)
President of the Republic of South Africa & others v South African Rugby
Football union & others 1999 (4) SA (CC)
Hamilton v Van Zyl 1983 (4) SA 379 (ECD)
Ford v Austen Safe Co. (Pty) Ltd (1993) 14 ILJ 751
xiv
Standard Bank of South Africa Limited v Efroiken and Newman 1924 AD 171
Casa v Tao Ying Metal Industries & 3 others 2009 (2) SA CC
Great North Farms (EDMS) BPK v RAS 1972 (4) SA 7
Harris v Tancred N.O. 1960 (1) SA 839
Postmaster-General v Taute, 1905 TS 582
Director Hospital Services v Mistry 1999 (1) SA 626 (A)
Darries v Sherriff, Magistrates Court, Wynberg & another 1998 (3) SA 34
(SCA)
Webster v Mitchell 1948 (1) SA 1186
Duncan v Minister of Environment Affairs & Tourism 2010 (6) SA 374 (SCA)
Administrator Transvaal & others v Traub & others 1989 (4) SA 731
Muller & Others v Chairman of Ministers' Council, House of Representatives &
Others (1991) 12 ILJ 761
Coetzee v Lebea NO & another (1999) 20 ILJ 129 (LC)
CEPPWAWU & others v Metrolife (Pty) Ltd [2004] 2 BLLR 103 (LAC
SRV Mills Services (Pty) Ltd v CCMA & others [2004] 2 BLLR 184 (LC)
Cape Town City Council v Masitho (2000) 21 ILJ 1957 (LAC)
Standard Bank of Bophuthatswana Ltd v Reynolds NO (1995) 3 BCLR 305
Carephone (Pty) Ltd v Marcus NO & 7 others (1998) 11 BLLR 1093 (LAC)
Real Estate Services (Pty) Ltd v Smith (1999) 20 ILJ 196
Allen v Sir Alfred McAlpine & Sons [1969] 1 All ER 543
South African Veterinary Council & another v Szymanski 2003 (4) SA 42 (SCA)
R v Secretary of State for the Home Department Ex parte Ruddock & others
(1987) 2 ALL ER 518 QB
Schmidt & another v Secretary of state for Home Affairs (1969) 1 ALL ER 904
Lloyd v Powell Duffryn Steam Coal Co. Ltd 1914 AC 733
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER
935
SAR & H v Dhlamini 1967 (2) SA 203 (D)
Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA 147 (A)
Caswell v Powell Duffryn Association Collieries 1940 AC 152 at 169
AA Onderlinge Assuransie Bpk v De Beer 1982 (2) SA 603 (A)
Govan v Skidmore 1952 (1) SA 732 (N)
Garton v. Hunter [1969] 1 All ER 451, [1969] 2 QB 37
Thoroughbred Breeders Association of South Africa v Price Waterhouse 1999
(4) SA 968 (W)).
Mondi Craft v PPWAWU & others 1999 (10) BLLR 1057
SALDCAWU v Advance Laundirs t/a Stork Napkins 1985 ILJ 544 (IC)
Evans v CHT Manufacturing (Pty) Ltd 192 ILJ 585 (IC)
Phutiyagae v Tswaing Local Municipality (2006) 27 ILJ 1921 (LC)
FAWU & others v Amalgamated Beverage Industries Ltd (1992) 13 ILJ 1552
(IC)
East London Transitional Council v MEC for Health, Eastern Cape & others
2001 (3) SA 1133
SALSTAFF obo Bezuidenhout v Metrorail [2001] 9 BALR 926
Ellies v Morgan, Ellies v Desai 1909 TS 576
Napolitano v Commissioner of Child Welfare, Johannesburg 1965 (1) SA 742
(A)
Attorney-General Eastern Cape v Blom 1988 (4) SA 645 (A)
xv
Cheall v Association of Professional Executive, Clerical and Computer Staff

(1983) QB 126 (CA)
Firestone South Africa (Pty) Ltd v Genticuro A.G. 1977 (4) SA 298 (A)
National Director of Public Prosecutions v Phillips and others 2002 (4) SA 60
(w)
Diereks v University of South Africa (1999) 20 ILJ 1227 (LC)
South African Clothing & Textile Workers Union v Cadema Industries (Pty) Ltd
[2008] ZALC 5
Mediterranean Woollen Mills (Pty) Ltd v S. A Clothing & Textile Workers Union
(1998) 19 ILJ 731 (SCA)
Solomon & another NNO v De Waal 1972 (1) SA 575 (A)
Real Estate Services (Pty) Ltd v Smith (1999) 20 ILJ 196
National Union of Security Officials and Guards v Minister of Health and
Social Services 2005 (4) BLLR 373
R. v Susses Justices, ex parte McCarthy [1924] 1 KB 256
General Medical Council v Spacman [1943] AC 627
Standard Bank of Bophuthatswana Ltd v Reynolds NO and Others 1995 (3)
BCLR 305 (B)
Kaone Leoifo v Bokailwe Kgamena & another CA/048/2007
Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA
623
Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd, 1957 (4) SA
234 (C)
xvi
Legislation
National
Public Service Act of 2007
Constitution of Lesotho of 1996
Labour Code Order 24 of 1992
Legal Practitioners Act of 1993
Labour Code Amendment Act 3 of 2000
Labour Code (DDPR) Regulations of 2001
Labour Code (Conciliation and Arbitration Guidelines) Notice of 2004
Labour Code (Wages Order) of 2012
Labour Court Rules of 1994
Labour Code (Codes of Good Practice) of 2003
Labour Appeal Court Rules 2002
Education Act of 2010
Codes of Good Practice of 2005
Public Service Act 1 of 2005
Foreign
Labour Relations Act of 1995
Books and Journals

Baxter L, (1984) Administrative Law
Schwikkard P. J, et al, (2nd Ed.), Principles of Evidence
Daniels H., (2002) (6th ed.) Becks Theory and Principles of Pleadings in Civil
Actions Durban: Butterworths Civil Practice of the Magistrates Court in South
African, Vol. 1, 9th Ed.
LCT Harms in Civil Procedure in the Superior Courts
Herbstein & Van Winsen, The Civil Practice of the Supreme Court of South
Africa, 4th Ed.
LTM Harms in Civil procedure in the Supreme Court: Student Edition, 2nd Ed
Becks Theory and Principles of Pleadings In Civil Actions, Butterworths, 5 th
edition
De Smith Woolf Jowell, Judicial Review of Administrative Action (5 ed, 1995)
Judge Edwin Cameron The Right To A Hearing Before Dismissal, Part 1
(1986) 7 ILJ 183
xvii
IN THE LABOUR COURT OF LESOTHO

HELD AT MASERU
LC/50/12
In the matter between:

TEPANG KOLISANG
APPLICANT
And
SUN TEXTILE (PTY) LTD
RESPONDENT
JUDGMENT
A claim for a discrimination. Respondent failing to attend. Matter proceedings
in default. Court questioning the locus standi of Applicant Court directing
Applicant to proceed into evidence to validate Applicants locus standi
Applicant failing to make a case for discrimination against herself. Court also
finding that Applicant has not right to bring a claim for discrimination on
behalf of others. No order as to costs being made.
BACKGROUND OF THE ISSUE
1. This is a claim for discrimination on account of race. It was heard on this
day and judgment was reserved. The background of the matter is
essentially that Applicant instituted discrimination proceedings with the
DDPR, in terms of section 227 (5) of the Labour Code Order 24 of 1992 as
amended. A certificate of non-resolution was issued, thus founding the
jurisdiction of this Court over the claim. This matter was then set down
for hearing on this day at 9:00 am.
2. In the morning session of the hearing, We had intimated to both parties
that We intended to mero muto raise a point of law on the locus standi of
Applicant in the proceedings. Advocate Rasekoai, who was then appearing
for Applicant, had requested that the matter the matter was then stood
down to 2:30 pm to allow him to make appearance in a case of contempt
against himself before the High Court. By agreement of both parties the
matter was then stood down to 2:30 pm. In the afternoon, only Applicant
was in attendance. Having waited for almost an hour for Respondent to
attend, We resoled to proceed with the matter in default. Our judgment is
thus in the following.
SUBMISSIONS AND ANALYSIS
Locus standi
3. We had made a proposition to Applicant that her pleadings seemed to
suggest that she is claiming discrimination on behalf of her former
colleagues. We went further to explain that her pleadings give the
impression that she is claiming that her former colleagues were
Page 181 of 361
discriminated against in that the Respondent management applied its

disciplinary code to her former colleagues in a manner that is dissimilar
to the manner in which it dealt Richedio with one Richedio who is a
foreign national, yet the offences involved were similar.
4. Mr. Bohloko submitted that Applicant has a locus standi in these
proceedings. In support he added that Applicants claim is that she was
discrimination in that her complaint was dealt with in a discriminatory
manner when compared to those that came before hers. Mr. Bohloko
further submitted that Applicants case is not that her former colleagues
who were dismissed for a similar conduct to that of Richedio were
discriminated against, but that she made reference to them to illustrate
her point. We concluded that the submissions made were not clear
enough to allow us to make a determination on this point. We thus
resolved to allow Applicant to proceed with evidence in the main claim.
Evidence
5. Applicant was the only witness in these proceedings. Having taken an
oath, she testified that on the day in question, it was just after knock off
when the incidents leading to this mater arose. Applicant and one
Relebohile were just preparing to leave their workstations when they were
approached by one Richedio. Richedio is an Indian national and a
supervisor to the department in which Applicant and the said Relebohile
are based. He inquired from them why they had remained at their
workstation beyond the working hours. They had then explained that
Relebohile was trying to locate both her cell phone and clocking card,
both of which she had misplaced.
6. To their surprise, Richedio stormed at them with bitter insults. When
they protested against his behaviour, he became even more furious and
grabbed hold of the cellphone belonging to Relebohile, which she had just
located, and threw it into the rubbish bin where it broke into pieces. Both
Applicant and Relebohile went to the office of the Human Resources to
lodge a complaint against Richedio. Although their complaint was
received, it was however dealt with in a discriminatory manner. Whereas
the rules of the employer provide for summary dismissal of anyone
employee who is found guilty of passing insulting remarks at their coemployee, Richedio was not dealt with in this fashion.
7. Applicant testified further that rather than the punishment of dismissal,
as the rules indicate, Richedio was given a final written warning. Witness
testified that in the past, one Mosotho supervisor was dismissed for a
similar office in line with the rules of the employer, which rules were not
applied in her case and Richedio. When asked how she was discriminated
against, Applicant stated that the discrimination was against her former
Basotho supervisors, who were dismissed in line with the same rules for a
similar conduct with that of Richedio. She prayed that the discriminative
conduct of the Respondent should be condemned.
Page 182 of 361
Submissions and analysis

8. Mr Bohloko submitted that it is clear from the evidence of Applicant that
Respondent is perpetuating discrimination within its employee at it
affords dissimilar treatment in the application of its rules towards
employees of different races. He further submitted that in terms of section
9 of the Labour Code (Codes of Good Practice) of 2003, the employer must
be consistent in the application of its rules. He added that in casu,
Respondent has not been consistent, particularly in the treatment of
Applicant and the said Richedio. He argued that this amounts to
discrimination in terms of the Labour Laws of Lesotho. Mr Bohloko
concluded by praying that the Court grant all prayers as appears in the
originating application. He added that under further an alternative relief,
he prayed for a remedy of in terms of section 202 (2) (b) of the Labour
Code Order (supra).
9. The submissions of Mr. Bohloko are not consistent with the evidence of
Applicant. Whereas Mr. Bohloko argues that the discrimination was in
respect of how the Respondent dealt with the complaint by Applicant
against the complaints of others, Applicant argues discrimination against
other former Basotho employees who were dismissed on a similar conduct
to that of Richedio. Clearly the Applicant and her representative are not
arguing the same case. Not only is that the case, but the evidence lead by
Applicant does not tally with the closing submissions by Mr. Bohloko.
10. The above notwithstanding, the evidence led does not establish a claim
for discrimination against Applicant. Rather, evidence led established a
claim against Applicants former colleagues who were dismissed for a
similar conduct to that committed by Richedio. This being the case, We
find that there is no claim for discrimination against Applicant in as
much as Applicant is no right to bring a claim of this nature on behalf of
others.
AWARD
We therefore make an award in the following terms:
a) That this matter is dismissed; and
b) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 12th DAY OF AUGUST
2013.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mr. L. MATELA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. BOHLOKO
ADV. MOHALEROE
Page 183 of 361

HELD AT MASERU
LC/60/13

MISSION AVIATION FELLOWSHIP
APPLICANT
And
LINEO HLALELE
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the ruling of the 2nd Respondent on urgent basis. 1st
Respondent raising three preliminary points and abandoning one. Court also
raising a preliminary point on the breach of its Rules Court condoning the
said breach. Applicant succeeding on the remaining grounds. Court dismissing
the application. No order as to costs being made.
1. This is an application for the review of the ruling of the 2nd Respondent in
referral A0239/2007. The matter was heard on urgent basis on this day
and judgment was reserved for a later date. The background of this
matter is essentially that 1st Respondent instituted a claim for unfair
dismissal with the 2nd Respondent. In that hearing, Applicant had then
raised a preliminary point to the effect that Applicant could probate and
reprobate, by taking his terminal benefits and then later challenging his
dismissal. This point was dismissed by the learned Arbitrator through a
ruling. The matter was then set down for hearing in the merits, to the 4 th
September 2013.
2. Applicants seek to have the said ruling reviewed and corrected or set
aside. In reaction to this application, 1st Respondent has raised three
preliminary points in terms of which she challenges the jurisdiction of
this Court over the application; the approached used by the Applicant;
and the lack of urgency in the matter as well as prejudice suffered by
Applicant. From the three points, 1st Respondent withdrew the one
relating to urgency and prejudice, leaving the former two points.
3. In addition to the preliminary points raised by 1st Respondent, We also
raised a point in relation to breach of the rules of this Court. We
intimated that whereas this was a review application, Applicant had used
trial proceedings to lodge their claim and that this is contrary to Rule 16
of the Labour Appeal Court Rules, which apply mutatis mutandis to this
Court by virtue of section 27A, of the Labour Court Rules of 1994 as
Page 184 of 361
amended. Both parties made their addresses on the points after which We
condoned the beach of the Rules of this Court but delivered a ruling
dismissing the application for want of jurisdiction. Our full judgment on
the matter is thus in the following.
4. It was submitted on behalf of the 1st Respondent that this Court lacks
jurisdiction to entertain this claim, as it involves a ruling within a
pending claim. It was argued that this Court only has jurisdiction to
review final decisions which are contained on the arbitral awards. It was
added that on these grounds, these proceedings are irregular as the
Courts of law of Lesotho have and continue to pronounce themselves
that, incomplete proceedings should not be a subject o review. It was
submitted that this amounts to the shunned piecemeal approach to
litigation. The Court was referred to the case of MDA & another v DPP
2000 2004 LAC 850 at 957, in support.
5. It was further submitted that even if this application were to be dismissed
on the basis of the above arguments, Applicant would not be prejudiced
in any manner. It was submitted that Applicant would still retain its right
to review the entire proceedings of the DDPR before the 2nd Respondent,
on all matters including the one in issue. On the issue of the proceedings
being irregular by virtue of the breach of its rules, 1st Respondent
submitted that this Court has a discretion to condone the breach of its
rules especially where the interests of justice demand, as is the case in
casu.
6. Applicant replied that this Court has jurisdiction to entertain this matter
in terms of section 228 of the Labour Code (Amendment) Act 3 of 2000,
read with Rule 22 (4) of the Labour Court Rules of 1994. It was submitted
the two sections authorise Applicant to approach the Court by way of
originating application, which is normally used in trial proceedings,
instead of motion proceedings. Applicant added that if the Court found
that the approach adopted was irregular in terms of the rules of the
Court, it prayed for condonation against the said breach.
7. It was added that this Court has jurisdiction to review the ruling of the
learned Arbitrator by virtue of section 228, which gives this Court the
power to intervene at any stage. It was added that by virtue of section 228
of the Labour Code (supra) read with Rule 22 (4) of the Rules of the is
Court, this claim is not piece meal but has been properly raised. It was
further submitted that Applicant stands to suffer prejudice in the event
that this application is not granted. In amplification, it was said that the
said reasons for the dismissal of the said claim before the 2nd
Respondent, will determine the strength of the Applicants case in the
main.
8. It is without doubt that this is an application for review. In terms of Rule
16, an application for review follows motion and not trial proceedings, as
Page 185 of 361
Applicant has done. This is therefore a clear breach of the Rules of this
Court. However, Applicant has prayed for the condonation of the said
breach, arguing that that this Court has the discretion to condone any
breach of its Rules. However odd the reaction of the 1st Respondent to his
issue is, she seems to agree to the condonation of the breach of the Rules
of this Court.
9. We say that the reaction of 1st Respondent is odd because, she had also
raised certain procedural challenges against the entire claim of Applicant.
If it is the attitude of 1st Respondent, that the interests of justice demand
the granting of the condonation against the breach of the Rules, We see
no reason not to grant the application. We accordingly condone the
breach of the Rules and excuse the form used in bringing this review
application. This essentially means that this is a review application made
in terms of section 228F of the Labour Code (supra) and no longer a claim
referred in terms of section 227.
10. If an application for review is made in terms of section 228F, a review
contemplated therein is made against an arbitral award. In casu,
Applicant seeks to review the ruling of the learned Arbitrator in referral
A0239/2007. Clearly, what applicant seeks to do, is not contemplated in
the section against which this matter has been referred. If that is the
case, there is no legal basis against which the jurisdiction of this Court is
found over the Applicants claim. Put in simple terms, section 228F does
not vest this Court with the jurisdiction to review the rulings of the
DDPR.
11. Even assuming that the claim was brought in terms of section 228
read with Rule 22 (4), Applicants claim would not hold. We say this
because section 228 deals with claims referred to this Court in terms of
section 227, which Applicant claimed to have been in error, when she
sought the condonation of the form that she used. By virtue of the turn of
events occasioned by the condonation application, section 228 is no
longer applicable to the proceedings in casu. In relation to Rule 22 (4),
this is a rule that governs the proceedings before this Court. By this, We
mean that it relates to interim or interlocutory applications, in respect of
a claim that is proceedings before this Court and not as suggested by
Applicant. Consequently, it is also inapplicable in casu.
12. On the issue of prejudice, it is Our view that the fear raised is
unfounded as it attempts to pre-empt the decision of the learned
Arbitrator. Applicant wants to know the decision of the learned Arbitrator
in order to be able to speculate the possible outcome in the event that the
matter goes into arbitration. This is merely an issue of convenience on
their part and not to avoid prejudice. We agree with 1st Respondent that
this is not the end of the matter for Applicant as it will still have an
opportunity to contest any irregularities that occurred during the
arbitration proceedings including issues that arose from the point in
issue, in casu. To entertain this claim would be a piece meal approach to
Page 186 of 361
the review of the proceedings in this referral which, as correctly pointed

out by 1st Respondent, Courts have and continue to shun as a practice.
AWARD
a) That the application is dismissed; and
THUS DONE AND DATED AT MASERU ON THIS 9th DAY OF SEPTEMBER
2013.
T. C. RAMOSEME
Mrs. M. MOSEHLE
Mr. L. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MOKEBISA
ADV. MOLATI
Page 187 of 361

HELD AT MASERU
LC/REV/119/2011
A0453/2011

MAKAMOHELO MOLEFI
LERATO KABI
MOHLOAI MOHLOAI
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
And
TAI YUAN GARMENTS (PTY) LTD
ARBITRATOR THAMAE N/O
THE DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for the review of the DDPR arbitral award in referral A0453/2011.
Respondents having failed to attend hearing, matter proceeded in default.
Four grounds of review raised one ground being withdrawn and three
remaining. All three grounds failing to sustain. Review application being
dismissed. No order as to costs being made.
1. This is an application for review of the DDPR arbitral award in referral
A0453/2011. It was heard on this day and judgment was reserved for a
later date. Four grounds of review were raised, in terms of which
Applicant sought an order reviewing, correcting and/or setting aside the
arbitral award. However, during the proceedings, Applicants withdrew the
fourth ground of review, leaving just three. Only Applicants were in
attendance and the matter proceeded by way of default. Applicants
having made their submissions, Our judgment in the matter is thus in
the following.
SUBMISSIONS AND FINDINGS
2. Applicants first found of review is that,
The learned Arbitrators decision was in error and or misdirected because
it failed to make a comprehensive legal analogy of a lay off vis-a-vis
suspension as proposed by the applicants.
3. It was submitted in support that, the learned Arbitrator had failed to
make a proper distinction between a lay off and a suspension. It was
added that there was evidence that Applicants had been suspended, but
that that learned Arbitrator made a conclusion that they were on a lay off.
Page 188 of 361
It was argued that in so doing He failed to appreciate the distinction

between a lay off and a suspension. It was further submitted that the
learned Arbitrator has misapplied the law to the facts, in that an act that
falls to be defined as lay off, was defined as a suspension. It was argued
that this is a reviewable irregularity.
4. Applicants argument about failure to make a proper distinction between
a lay off and a suspension, suggests that the learned Arbitrator made a
wrong conclusion either on the law or facts or a combination of both. If
this is the case, then clearly Applicant is discontent with the conclusion
of the learned Arbitrator, on either the law or the facts or both as the case
may be. It is an established principle of our law that where a party is
discontent with the conclusion and not the process of reaching the said
conclusion, then the proper route is by way of appeal and not a review.
(see Thabo Mohlobo & Others v Lesotho Highlands Development Authority
LAC/CIV/A/05/2010; also see JD Trading (Pty) Ltd t/a Supreme
Furnishers v M. Monoko & others LAC/REV/39/04).
5. We are strongly led to this conclusion by the fact that, even the
Applicants supporting averments on the issue, have not been
substantiated. What Applicants have merely done, has been to make bare
allegations of facts not supported by any evidence. It has been alleged by
Applicant that there was overwhelming evidence of a suspension as
opposed to a lay off. However, the Court has not been directed to
anywhere wither in the record of the award where the said evidence
appears. In Our opinion, this amounts to a bare allegation of facts.
6. In the case of Mokone v Attorney General & others CIV/APN/232/2008 the
Court had the following to say in relation to bare allegations,
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 claims by
parties. As a result, where a party has barely alleged a claim, that is not
enough for the court to make a finding in their favour. Consequently,
where a bare claim has been made, it becomes both unsatisfactory and
unconvincing and should be considered no claim at all. In view of this
said, Applicants first ground of review fails.
7. Applicants second ground of review is that,
In essence the learned Arbitrator based the decision on irrelevant
considerations by making a conclusion to the effect that the determination
of sufficiency of work is the exclusive prerogative of the employer without
any evidential basis.
8. It was submitted in support that the learned Arbitrator relied on
argument that, it is only the employer that determines whether or
there is work, in making his conclusion. Based on this argument,
learned Arbitrator came to the conclusion that Applicants were
Page 189 of 361
the
not
the
not
suspended but on a lay off. It was argued that this was an irrelevant
consideration to the matter, which is wrong in law and misplaced. It was
added that the sufficiency of work cannot be the sole determination of the
employer.
9. In terms of the arbitral award, it was Applicants case that they were
unlawfully suspended, while 1st Respondent had argued that Applicants
were on a lay off. This is reflected at paragraph 7 of the arbitral award.
The evidence relating to work including who determines its availability
was necessary to aid the learned Arbitrator to determine if indeed there
was a layoff, as suggested by 1st Respondent. However, in relation to the
conclusion that it was the exclusive prerogative of the employer to
determine the availability of work, it is Our opinion that this concern
directly challenges the factual conclusion of the learned Arbitrator. We
have expressed our attitude in cases of this nature and as such do not
need to reiterate same (see Thabo Mohlobo & Others v Lesotho Highlands
Development Authority (supra); also see JD Trading (Pty) Ltd t/a Supreme
Furnishers v M. Monoko & others (supra). Consequently, We find that this
aspect is not a review but an appeal disguised as a review.
10. Applicants third ground of review is that,
The learned Arbitrator erred by failing to apply the mind to peculiar facts
alluded to and appreciating the fact that there was sufficient evidence
placed before the tribunal which was indicative that the lay off and or
suspension was malicious in both nature and form.
11. In motivation of this ground, Applicants submitted that the learned
Arbitrator failed to appreciate that 1st Respondents conduct was not only
a lay off or suspension, but that it was also malicious. When asked
whether this issue was raised before the DDPR, Applicants submitted
that they did not but maintained that it was the responsibility of the
learned Arbitrator to have detected and raised it. It was added that the
learned Arbitrator was seized with overwhelming evidence that Applicants
were threatened. It was added that in spite of this evidence, the learned
Arbitrator engaged in the act of relying on a fixed principle of a lay off.
Reference was made to paragraphs 19 to 21 of the arbitral award.
12. It was further submitted that the conduct of the learned Arbitrator in
this respect, is a gross irregularity that warrants interference with the
award. Reference was made to the case of Johannesburg Stock Exchange
vs. Nigel Ltd & another where the Court had the following to say,
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; ....
Page 190 of 361
13. It is clear from the submissions of Applicants that the argument about
the lay off or suspension being malicious is only coming up for the first
time on review. The attitude of this Court has been expressed before in a
number of cases. This Court has stated that to allow a point to be raised
for the first time on review is contrary to the rules of natural justice, in
that this Court would have denied the inferior court the opportunity to
address the issue before finding them at fault (see Leoatle v G4S Cash
Solutions & another LC/REV/57/2010; Molatoli v CGM Industrial (Pty) Ltd
& another LC/REV/56/2011. Consequently, We will not entertain this
issue at this stage.
14. We further wish to comment against Applicants proposition that it was
the learned Arbitrators duty to raise the issue of malice on own motion.
This proposition does not hold water for the reason that the learned
Arbitrator had no obligation to make a case for any of the parties to a
dispute. It was the responsibility of Applicants to raise this issue and
having failed to do so, the learned Arbitrator cannot be held accountable
to their own omission.
15. The evidence at paragraphs 19 to 21 of the arbitral award does not
establish threat of any kind. What is contained therein is that the
conclusion of the learned Arbitrator that it is the prerogative of the
employer to determine the availability of work and that there was no work
at the time, hence the layoff. It is further said that, those who failed to
meet the set target were given warnings as it a trite practice in the
Respondents employ. Clearly, the contents of these paragraphs do not
depict what is suggested by Applicants. The learned Arbitrator made a
finding that Applicants were on a lay off on the basis of the evidence of
Respondent that there was no work to be done. Consequently, this
ground of review fails as We have not found any unwarranted adherence
to any fixed principle.
AWARD
We hereby make an award in the following terms:
a) That this application is refused; and
THUS DONE AND DATED AT MASERU ON THIS 1st DAY OF JULY 2013.
T. C. RAMOSEME
Mrs. M. MALOISANE
Ms. P. LEBITSA
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENTS:
ADV. RASEKOAI
NO ATTENDANCE
Page 191 of 361

HELD AT MASERU
LC/REV/73/2010
A0948/2003

MICHAEL FAKO
APPLICANT
And
LESOTHO BREWING COMPANY (PTY) LTD
THE ARBITRATOR DIRECTORATE OF
DISPUTE PREVENTION AND
RESOLUTION - M. MOLAPO MPHOFE
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Applicant arguing that the learned Arbitrator ignored evidence to prove that he
was employee and that he was unfairly dismissed. Court finding that the
former argument superfluous as the learned Arbitrator found that Applicant
was an employee of 1st Respondent. However, Court finding that the learned
Arbitrator ignored evidence on the fairness or otherwise of the dismissal of
Applicant. Court correcting the award of the 2nd Respondent and finding the
dismissal of Applicant unfair both procedurally and substantively. Court
further directing that the matter be remitted to the DDPR for determination on
the amount of compensation. No order as to costs being made.
later date. The background of this matter is basically that Applicant
lodged a claim for unfair dismissal with the 2nd Respondent. An award
was issued on the 20th May 2010 dismissing the Applicants claim and
thus leading to the current review application. Under a belief that this
review application had been filed out of time, Applicant had also filed an
application for condonation together with the review application.
2. However, later realising that the review application was well within time,
the application for condonation was withdrawn and the matter proceeded
in the merits. Only one ground of review, which is two pronged in nature,
has been raised. It is to the effect that the learned Arbitrator ignored
certain facts material to the matter before Her. Parties submissions and
our judgment on the issues are reflected hereunder.
Page 192 of 361

3. It was submitted on behalf of Applicant that the learned Arbitrator
ignored certain facts which if She had not ignored, She would have come
to a finding that Applicant was an employee of 1st Respondent and that
the Applicant had been unfairly dismissed. The Court was then referred
to page 14 of the record (the arbitral award) at the 4th paragraph. It was
argued that the content of the paragraph is to the effect that Applicant
was an employee of the 1st Respondent. It was further submitted that in
the paragraph dealing with the formulation of the award, the learned
Arbitrator had also made a conclusion that Applicant was an employee of
the 1st Respondent.
4. When asked what evidence was ignored, Applicant submitted that all
evidence relating to his employment with 1st Respondent was led and not
challenged. Further that in reaction to that evidence, the 1st Respondent
had simply stated that it had no records of Applicant and not that he was
not its employee. Applicant further added that the certificate of service
issued by 1st Respondent as proof of employment and other related facts
were ignored. The Court was referred to page 28 of the record (DDPR
record of proceedings). It was submitted that the learned Arbitrator
ignored evidence that there had been litigation since 1987, instigated by
1st Respondent against Applicant, which fact ought to have convinced the
court that there was an employment relationship between the parties.
5. It was furthermore submitted that evidence appearing on pages 34 to 36
of the record was ignored. It was stated that the said evidence shows
when and how Applicant was employed and dismissed. It was further
submitted that the evidence at pages 36 to 39 of the record, under the
cross examination of Applicant, related to his status vis-a vis 1st
Respondent, which determination was made in his favour. It was stated
that that evidence does not in any way challenge the fairness of the
dismissal of Applicant, which leaves his case unrebutted. It was stated
that rather than for the court to proceed to deal with this unchallenged
evidence, it dismissed the matter. It was argued that in so doing, the
court lost sight of who bore the burden of proving that the dismissal of
Applicant was fair. Applicant thus prayed this applicant be granted as
prayed in the notice of motion.
6. In reply, 1st Respondent submitted that the issue for determination before
the 2nd Respondent was the employment relationship between the parties.
It was stated that 1st Respondent denied knowledge of Applicant and as
such it was Applicants duty to prove the existence of the employment
relationship. Reference was made to page 26 of the record where 1st
Respondent denied employment relationship with Applicant. Reference
was also made to page 30 of the record where the alleged employment
relationship was clearly denied. It was argued that although the learned
Arbitrator did in fact make a finding that Applicant was its employee, the
ultimate conclusion to dismiss the referral was correct.
Page 193 of 361
7. It was further submitted that the learned Arbitrator did not ignore the
merits of the matter. It was stated that rather, She pronounced herself
that the evidence of Applicant was not sufficient to guide her to make a
fair and equitable determination. Reference was made to page 14 of the
record at the last paragraph. It was argued that the learned Arbitrator
considered all evidence that was placed before her and she has provided
reasons in her award why she came to the conclusion that she made. 1st
Respondent thus prayed that this application be dismissed.
8. In addressing the first leg of the Applicants ground of review, We wish to
comment that We agree with 1st Respondent that the 2nd Respondent had
to make a determination on whether Applicant was an employee of 1st
Respondent or not. Based on the submissions of Applicant, We have
perused page 14 of the record and specifically at paragraph 4
(unnumbered) thereof. The content of this paragraph is as follows,
Under cross examination, Sekhanto did however admit that as HR, LBC,
her office was the custodian of the all personnel records and data of LLD.
So this argument that applicant worked for LLD has no bearing at all.
9. In Our view, the content of this paragraph does not in any way say that
Applicant was an employee of 1st Respondent. Rather, it denies that the
existence of an employment relationship between Applicant and LLD,
which statement does not necessarily follow that he was an employee of
1st Respondent. However, paragraph 7 on the same page is direct in that
it specifically states that Applicant was employee of 1st Respondent. This
is captured by the learned Arbitrator as thus,
There is one thing that applicant managed to convince this tribunal and
that was the fact that he was an employee of the respondent ....
10. Notwithstanding Our stance above, We also wish to comment that
whereas 1st Respondent argued that the employment relationship was
challenged, with specific reference to pages 26 and 30 of the record, We
hold a different view. Upon perusal of the said pages, there is nowhere
where the said relationship is denied. In fact, at page 26, the witness,
who joined 1st Respondent after Applicant had been terminated, merely
testified that she could not find the employment records of Applicant and
that those who worked for 1st Respondent before her said that they did
not know Applicant.
11. At page 30, the same witness stated that if Applicant was an employee
of 1st Respondent, he could not have been dismissed without a hearing.
From these said, it is thus Our attitude that whereas Applicant bore the
onus of proving the employment relationship, as suggested by 1st
Respondent, he succeed in that extent as the learned Arbitrator made a
conclusion that he was.
12. The conclusion that was made by the learned Arbitrator is the one
sought by Applicant in casu. As a result, it Our opinion that the argument
that the learned Arbitrator ignored certain evidence that would have led
Page 194 of 361
Her to conclude that Applicant was an employee of 1st Respondent is

superfluous. Whether the evidence appearing on page 14 or 28 of the
record was ignored, the ultimate decision was in Applicants favour that
he was an employee of 1st Respondent. It is thus not clear what he hopes
to achieved in raising this argument, in view of the finding made.
Consequently, this challenge against the learned Arbitrator is dismissed
as being superfluous and bearing a semblance of an abuse of the
processes of this Court.
13. On the second leg of the review ground,
We have noted that the
evidence appearing on pages 34 to 36 is the evidence of Applicant in
chief. As rightly stated by Applicant, the evidence gives an account of
when Applicant was employed, his position at work, his salary at the time
of termination and how as well as why he was dismissed from
employment. Among the statements made is that he was dismissed on
suspicion of theft and that he was not afforded a hearing and that he was
summarily dismissed on account of suspicion.
14. We have noted that this evidence was not considered by the learned
Arbitrator when making Her award. Rather than to consider the above
evidence, She made the following comment,
Can I then take applicants unrebutted evidence and base my decision on
it. Certainly not, ....
15. It is Our view that that evidence reflected in pages 34 to 36 of the
record, was the merit of the Applicants claim and that it ought to have
been considered. We say this because Applicant had lodged a clam for
unfair dismissal in terms of which he challenged both the procedural and
substantive fairness of his dismissal. This is acknowledged by the learned
Arbitrator in her summary of Applicants evidence at page 2 of the arbitral
award as thus,
Thus how Mr. Fako says he was dismissed 24 years ago and challenges
the dismissal both procedurally and substantively. He seeks to be
compensated with M50 000.00.
16. We are of the view that if the leaned Arbitrator had considered this
evidence, She would have found that the dismissal of Applicant was
unfair. We say this because, upon perusal of the record, We have noted
that the evidence of Applicant as to why, how and when he was dismissed
has not been challenged and such it remains unrebutted as he says. This
is also confirmed by the learned Arbitrator in her arbitral award at page
3, as noted above. In view of this, the Learned Arbitrator would have been
bound by a principle of law that what has not been denied should be
taken as true and accurate. In Theko v Commissioner of Police and
another LAC (1990-94) 239 at 242, Steyn JA had the following to say in
relation to unchallenged evidence:
I must point out that no attempt was made by the respondents to reply to
or challenge the correctness of the averments contained in the affidavit of
the attorney, Mr Maqutu. The issues in our view must therefore be resolved
Page 195 of 361
on the basis of the acceptance of the unchallenged evidence of an officer of

this court.
17. As for evidence appearing on pages 36 to 39, it relates to the cross
examination of Applicant. In that evidence, neither the substance nor the
procedural aspect of the dismissal of Applicant is tested. Rather, 1st
Respondent tried to discredit Applicants evidence of his employment with
them. Indeed as Applicant has stated, this issue was determined by the
2nd Respondent in his favour, which essentially means that during that
cross examination, his evidence of the procedural and substantive
fairness of his dismissal was indeed not challenged. This only goes to
fortify Our attitude that the learned Arbitrator ought to have proceeded to
make a determination on the basis of Applicants unchallenged evidence.
18. In view of Our finding, We feel inclined to correct the award of the 2nd
Respondent and substitute same with Our own. In coming to this
conclusion, We are guided by the authority in Matsemela v Nalidi
Holdings (Pty) Ltd t/a Nalide Service Station LAC/CIV/A/02/07 where
Mosito A. J had the following to say,
When reviewing an award from the DPPR, Labour Court should also
correct it ....
It is Our view that the circumstances of the case in casu warrant that the
award be corrected rather than for the entire proceedings to be set aside
and heard de novo.
AWARD
a) That the award of the DDPR is hereby reviewed and corrected in the
following manner,
i.
That the dismissal of Applicant is unfair both procedurally and
substantively.
b) That the matter is remitted to the DDPR for the determination of the
amount of compensation.
c) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 8th DAY OF JULY 2013.
T. C. RAMOSEME
Mrs. M. MALOISANE
Mr. L MATELA
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENTS:
ADV. SETLOJOANE
ADV. LOUBSER
Page 196 of 361
HELD AT MASERU
LC/REV/24/2012
A0745/2011

LESOTHO PRESCIOUS GARMENTS
APPLICANT
And
THE DDPR
L. NTENE (ARBITRATOR)
MPITI ROBEA
NTHABISENG TJOTJOSI
MAPOHO MAKOPANE
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
5th RESPONDENT
JUDGMENT
Applicant raising a preliminary point in terms of which he objected to the use
of the DDPR record of proceedings - Applicant arguing that the record is not a
true reflection of the proceedings before 2nd Respondent and that this amounts
to an irregularity. Applicant requesting the Court to remit the matter to the
DDPR for a fresh hearing on the basis of this preliminary point. Court finding
that this point is not properly raised as a preliminary point but that it ought to
have been raised as an additional review ground. Court dismissing the
preliminary point. The matter proceeding in the merits from the three grounds
of review one ground being withdrawn and only two remaining. All
remaining review grounds failing to sustain. Review application being refused.
No order as to costs being made.
later date. The background of this matter is basically that 3rd to 5th
Respondents lodged claims for unfair dismissal with the 1st Respondent,
in which they challenged both the substantive and procedural fairness of
their dismissals. The arbitration proceedings were before the 2nd
Respondent and She issued an award on the 16th March 2012, whereby
She ordered the reinstatement of Applicants, in terms of the section 73 of
the Labour Code Order 24 of 1992. This is the award that Applicant seeks
to have reviewed, corrected or set aside.
2. At the commencement of the proceedings, Applicant raised a preliminary
point wherein it raised an objection to the use of the 1st Respondent
record of proceedings on the ground that it was incomplete. It was alleged
that this is an irregularity for which they sought the remedy of remittal of
Page 197 of 361
the whole matter to the 1st Respondent for a hearing de novo. In the
merits, four grounds of review were raised in the following,
a) The arbitrator uttered words to the effect that the applicant company
had no case against the respondents before evidence was complete and
before hearing respondents evidence.
b) The arbitrator refused me an opportunity to call other witnesses as I had
called enough witnesses and that she was in hurry for another case.
c) The arbitrator found in favour of 2nd and 3rd respondents yet they elected
not to testify on their behalf.
d) The arbitrator found the dismissal to have been unfair procedurally after
denying us the opportunity to call the witnesses to testify on the issue of
appeal, which evidence would have rebutted the respondents allegation.
3. During the proceedings ground c) was withdrawn and grounds b) and d)
were taken as one ground in that, they related to the refusal on the part
of the 2nd Respondent to allow Applicants the opportunity to call
witnesses. This essentially meant that Applicant now had two grounds of
review. We elected to adopt a holistic approach to the proceedings in that
We dealt with the preliminary point, reserved Our judgment on the matter
and directed the parties to address Us on the merits of the application.
We had indicated to both parties that that if We upheld the preliminary
point raised by Applicant, then there would be no need to consider the
merits, so that We would only do so if the preliminary point was not
upheld. It was on these bases that the matter preceded on this day. Our
judgment on all issues is thus reflected hereunder.
Preliminary point
4. Advocate Ntaote submitted that he objected to the use of and reliance on
the record of the proceedings before the 2nd Respondent in that, part of
the proceedings relating to their grounds of review were not reflected on
the record submitted. It was stated that the record neither reflected the
portion where the learned Arbitrator made utterances the Applicant had
no case nor where the learned Arbitrator refused to allow Applicant to
bring additional witnesses.
5. Advocate Ntaote further submitted that the witnesses who were precluded
from giving evidence were going to lead evidence to address the issue the
procedural fairness of the dismissals of 3rd to 5th Respondents and was
thus crucial for their case. It was added that as proof that the record was
indeed incomplete, it did not even reflected the part where the learned
Arbitrator made interjections during the proceedings, yet same were
made. Further that not even the communication by the representatives of
the parties were reflected, yet the parties were represented in the
proceedings. Advocate Ntaote prayed that the matter be remitted to the 1st
Respondent to be heard de novo.
Page 198 of 361
6. When asked whether it was appropriate to object to the use of its own
evidence, it being the record of proceedings before the 2nd Respondent,
Applicant submitted that the record was not part of its evidence, but a
record of the Court which was intended to aid It to make a fair and just
determination. When further asked if it would not have been proper to
have raised this issue as an additional review ground, Applicant
submitted that it would not, as an incomplete record cannot be a basis
for the granting of a review. He submitted that Rule 19 (1) (e) of the Rules
of this Court, justified the approach he adopted.
7. In response, Advocate Tlapana for 3rd to 5th Respondents submitted that
Applicants cannot raise this point, whether right or not, at this stage. He
submitted that Applicants were furnished with the record as far as in
November 2012 and that they are only raising this issue now. He further
stated that from the time Applicant became seized with the record, it was
its obligation to ensure that it was in order, rather than to adopt the
approach they have elected now. Advocate Tlapana added that having
chosen not to react earlier, Applicant is bound by the rule in motion
proceedings to stand and fall by their pleadings. He prayed that the Court
consider the pleadings as they stand and make Its determination.
8. He stated that Applicant is only raising this issue to address the
Respondent averments in their answering affidavits. He argued that the
issue of the record not being complete ought to have at least been raised
in the Applicants replying affidavit. He submitted that Applicants having
not replied, Respondents averments in their answering affidavit remain
unchallenged and ought to be taken as true and accurate. Reference was
made to the case of Theko v Commissioner of Police and another LAC
(1990-94) 239 at 242 in support.
9. Advocate Tlapana added that what makes Applicants case worse on this
issue is the fact that it has not even filed affidavits of those who were
present in the proceedings at the 1st Respondent before the 2nd
Respondent, to support its allegations that the record is not complete. He
stated that if this had been done, the said affidavits would reflect that the
alleged utterances were made and that Applicant was denied the
opportunity to call further witnesses. He concluded by denying that the
alleged utterances were ever made and that the Applicant was not refused
the opportunity to call further witnesses.
10. We have perused the record of proceedings before the 2nd Respondent
and have made a number of notes. Firstly, We have confirmed that the
record does not reflect the incidents relating to the grounds of review
raised by Applicant. Secondly, the record does not reflect if parties were
represented or not, if at all they were. Thirdly, the record does not reflect
any exchange that the 2nd Respondent may have made during the
proceedings, if at all She did. We wish to comment that the absence of
these above does not necessary lead to the conclusion that the record is
Page 199 of 361
indeed incomplete as alleged, more so given that they are highly contested
by 3rd to 5th Respondents.
11. The above notwithstanding, the salient issues to ponder on are,
whether it is proper for the Applicant to have raised a preliminary point
objecting to the use of and reliance by the Court on the record of
proceedings filed of record. If so, can the Applicant ask for remittal of the
matter to the 1st Respondent for a hearing de novo on the basis of the
said preliminary point. Lastly, would it not have been proper for the
Applicant to have raised this argument as an additional ground of review
in terms of Rule 16(6) of the Rules of this Court. The answer to the second
and third issues will follow from the answer to the first one. As a result,
We will now proceed to deal with the first issue.
12. In his valuable work, Becks Theory and Principles of Pleadings In Civil
Actions, Butterworths, 5th edition, at page 385, Isaacs, comments on the
purpose of the record in review proceedings as thus,
in order to properly prepare his or her case a copy of the record or
proceedings is required, ....
In Our view, this above essentially highlights the point that an Applicant
to a review proceedings needs the record of proceedings of the inferior
court to support their case. Therefore, the said record is part of the
evidence of an applicant party.
13. In casu, what the above said basically means for Applicant is that, it is
in effect objecting to the use of its own evidence, being the record of
proceedings. The ultimate effect of this move is that Applicant is
withdrawing the record of proceedings as part of its evidence. If this is the
case, Applicant simply implying that it will only rely on its pleadings in
support of its case, which pleadings Respondents argue that have not
challenged their defence. If this is so, it then means that this Court would
be bound by the principle in the Theko v Commissioner of Police and
another (supra).
14. Further, the record of the proceedings before the 2nd Respondent forms
part of the records of this Court and cannot in any way be excluded
unless it falls within the category of excluded documents in proceedings.
It is not alleged that it is inadmissible evidence. Worse still, it is the party
which filed the record that wants it to be excluded. Even where an
objection to the use of or reliance of evidence is raised, it is properly
raised by a defendant as a defence to the case they are answering.
Clearly, from both the submissions of Applicant and those of Respondent,
Applicant simply wants to withdraw or object to the use of the record for
a simple reason that it does not support its case, but that of the
Respondents. This practice is not countenanced by Our law and neither
is it supported by any principle of law.
Page 200 of 361
15. We have closely studied rule 19 (1) (e) of the Rules of this Court and
have not found any qualification as Applicant has suggested. This rules
reads as thus,
19. (1) A record shall be kept of all proceedings before the Court including
(e) the proceedings of the Court Generally.
This Rule relates to the proceedings before the Labour Court and not
those any other Court or forum. The authority is thus misapplied and
inapplicable to issues in casu. Applicant has essentially failed to cite any
authority sanctioning the route that he has opted to adopt.
16. Even assuming that the point had been properly raised, the remedy
sought is one flowing from the merits of review proceedings. In a review
application, if successful, the available remedies are either the correction
of the award of an inferior court or the setting aside of same and its
remittal to be heard de novo. Applicant seeks to invoke these remedies
without having established its case for review. It is Our opinion that
Applicant ought to have invoked the provisions of Rule 16 (6) of the Rules
of this Court and added this point as an additional review ground.
17. As Applicant has rightly pointed out, this Court has granted reviews
based on an incomplete record before, but the argument had been
pleaded as an additional ground of review (see Leteng Diamonds (Pty) Ltd
v DDPR & others LC/REV/111/2005). Consequently, We find that this
point round has not been properly raised and that it is accordingly
dismissed. On the basis of Our finding, We will not comment any further
on the issues raised but to proceed to deal with the merits of the matter
on the basis of the pleadings as they stand.
Merits
18. In relation to the first ground of review, Advocate Ntaote submitted
that it was irregular for the 2nd Respondent to have made utterances that
Applicant had no case before the matter was finalised. It was added that
this showed irrationality and biasness on the part of the leaned
Arbitrator. In reply, Advocate Tlapana submitted that such utterances
were not made hence why they are not even reflected in the record. He
added that the conclusion of the learned Arbitrator was rational and not
biased and thus unreviewable. Reference was made to the case of
Blandina Lisene v DDPR & Lerotholi Polytechnic LC/REV/122/2007 in
support.
19. On the second ground of review, Advocate Ntaote submitted that the
learned Arbitrator committed an irregularity when She disallowed the
calling of further witnesses by Applicant. It was said that the witnesses
were crucial as they were going to testify on one of the aspects of the 3rd
to 5th Respondent dismissal. In reply, Advocate Tlapana submitted that,
there were no further witnesses in the proceedings contrary to the
Applicants submissions. He stated that if there had been, Applicant
ought to have filed their affidavits confirming this, more so given that the
record does not support Applicants allegation of both refusal and about
Page 201 of 361
the alleged utterances. Advocate Tlapana invoked the authority in Theko v

Commissioner of Police and another (supra) and prayed that this
application be dismissed.
20. In review proceedings, the reviewing court relies on both the record of
proceedings before the inferior court as well as the pleadings of parties in
order to come to a just and equitable decision. Whereas the pleadings set
out the claims and/or defences, the record reflects what transpired in the
proceedings in order to place the reviewing court in a clear position to
determine if any irregularity may have occurred, as alleged. As We have
earlier said, the record is part of the evidence of the applicant party to the
proceedings.
21. In casu, Applicant has made allegations about certain utterances being
made as well as a refusal on the part of the learned Arbitrator to allow it
to lead further evidence. This is not reflected in the record and is
vehemently denied by Respondents. It is trite law that he who alleges
bears the burden of proof. In their valuable book, Principles of
Evidence 2nd Ed., at page 538, P. J. Schwikkard et al, had the following to
say on this principle,
... the guiding principle which is that he who makes a positive assertion is
generally called upon to prove it, with the effect that the burden of proof lies
generally on the person who seeks to alter the status quo. Most often that
will be the plaintiff and the defendant will bear the burden of proof only in
relation to a special defence.
22. In view of the above principle, Applicant has not been able to
discharge its burden of proof as Respondents have simply denied their
claim without raising a special defence. As suggested by Respondents, if
Applicant had filed affidavits of those who were present when the alleged
utterances were made or even the affidavits of the witnesses who were
intended to testify at the arbitrator proceedings, that might have gone a
long way to establish merit in the Applicants claims. The effect of failure
to discharge the burden of proof on the Applicant is that, its evidence is
rendered bare allegations of facts.
23. In the case of Mokone v Attorney General & others CIV/APN/232/2008
the Court had the following to say in relation to bare allegations,
It is Our view that this principle equally applies in relation to claims by
parties. As a result, where a party has barely alleged a claim, that is not
unconvincing and should be considered no claim at all.
24. Not only is the evidence of Applicant bare allegations of facts, but it
has also failed to rebut the evidence of Respondents in reply. This
Page 202 of 361
essentially means that the evidence of Respondent must be taken as both

true and accurate. In coming to conclusion, We are guided by the
Principle in Theko v Commissioner of Police and another (supra) as cited
above, by Respondents. In that matter, the Court had the following to
say:
this court.
In view of this said, We find no need to comment on the rest of the
submissions as that would only serve academic purposes. Consequently,
Applicants grounds of review fail.
AWARD
a) That this review application is refused;
b) That the award in referral A0745/2011 remains in force;
c) That the said award must be complied with within 30 days of issuance
herewith; and
d) That there is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 8th DAY OF JULY 2013.
T. C. RAMOSEME
Mrs. M. THAKALEKOALA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR 3rd TO 5th RESPONDENTS:
ADV. NTAOTE
ADV. TLAPANA
Page 203 of 361

HELD AT MASERU
LC/REV/517/2006
A0120/2006

SOUTH ASIA INTERNATIONAL (PTY) LTD
APPLICANT
And
NEO MOJALEFA
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. 1st Respondent applying for
dismissal of the review application for want of prosecution. Applicant
requesting a postponement of the matter Court refusing the application for
postponement and directing parties to deal with the application for dismissal
for want of prosecution. Applicants representative withdrawing as Applicants
attorney of record. Court finding that the withdrawal is intended to frustrate
the proceedings and allowing 1st Respondent to proceed with the application
for dismissal. Court finding merit in the application and granting same. No
order as to costs being made.
1. This is an application for the dismissal of the review application for want
of prosecution. It was heard on this day and judgment was reserved for a
later date. Facts surrounding this application are basically that 1st
Respondent referred a claim for unfair dismissal with the 2nd Respondent,
under referral number A0120/2006. On the 23rd March 2006, 2nd
Respondent issued an award in terms of which Applicant was ordered to
pay 1st Respondent an amount in the sum of M11, 576.00 as his
underpayments. Thereafter, Applicant instituted an application for review
of the said arbitral award.
2. On the date of hearing, Applicant was represented by Advocate
Chobokoane while Respondent was represented by Mr. Molefi. Advocate
Chobokoane sought a postponement of the matter. We declined to grant
the postponement but rather adjourned for 2 hours to allow him to get in
touch with his client. He had stated that although he had full
instructions, the purpose of the postponement was for him to find out if
client was still interested in pursuing the matter, in line with his initial
instructions.
Page 204 of 361
3. After the adjournment, Advocate Chobokoane indicated that he had not

been successful to find client and insisted on the postponement. The
application for postponement was opposed and after argument, We
declined to grant it. Immediately after the delivery of Our ruling on the
postponement application, Advocate Chobokoane withdrew his
representation of Applicant in the matter. The withdrawal was noted and
that notwithstanding, We resolved to proceed with the matter. Our full
judgment is thus in the following.
Application for postponement
4. Advocate Chobokoane submitted that he sought a postponement of the
matter on the ground that the person who had instructed him was late,
as he had died in a bank robbery in January this year. He stated that
thereafter, he tried to find out who was in charge of the Respondent
Company but did not succeed. He stated that he does not have
instructions on the matter and does not know if his client is still
interested in prosecuting the matter.
5. Advocate Chobokoane added that the last time that he had contact with
these clients was in 2012. He stated that he sought the postponement to
find out if the Applicant Company was still in existence and if the person
in charge was interested in pursuing the matter. When asked when he
received the notification of hearing and what he did after receipt of same,
he stated that he received it sometime in March 2013 and that he was not
able to do anything in that period to this day.
6. In reply, Mr. Molefi submitted that the application for postponement was
baseless and not genuine. He submitted that initially, Advocate
Chobokoane had stated in chambers that he had the full instructions but
wanted to know if client was still interested in pursuing the matter to
finality. He added that in Court, Advocate Chobokoane is now arguing
something different, as he is now claiming that he does not have
instructions. He stated that all the information about Advocate
Chobokoanes client dying and what he did thereafter, are all new issues
which were never canvassed before and are thus an afterthought. Mr
Molefi maintained that the Application was baseless and not genuine and
stood to be dismissed.
7. It is trite law that a postponement is granted not as a right but an
indulgence, which may be granted in favour of an applicant party upon
good cause being shown. The principle in an application for
postponement was laid down in the case of Real Estate Services (Pty) Ltd v
Smith (1999) 20 ILJ 196 and has been adopted by our Courts (see Tumo
Lehloenya and Others v Lesotho Telecommunications Corporation
LC/20/2000). In that case Revelas J had this to say, at page 199,
In courts of law, the granting of an application for postponement in an
indulgence by the court exercising its judicial discretion. A reasonable
explanation is usually required from the party seeking the postponement.
Page 205 of 361
8. In casu, Advocate Chobokoane has given inconsistent explanations for his

request to have this matter postponement. Initially, the basis of the
postponement was that he wanted to confirm his initial instruction. Later
he raised issues which he did not raise before in chambers, among which
is the fact that the person who instructed him is late and that he is not
sure is the Applicant Company is still in existence. We are of the view
that indeed this is an afterthought as it was never canvassed before,
moreso given that Advocate Chobokoane stated that he was not able to
secure client in the 2 hour adjournment given.
9. Further, whereas he had said he had full instructions but wanted to
confirm them, he now argues the absence of such instructions. These
versions of his submissions are inconsistent with one another. In the case
of Lerotholi v Tau & others CIV/APN/338/2012, Mahase J had to
following to say about inconsistency,
As a result the respondents mutually distractive and inconsistent
averments have done a great blow on their case.
10. In view of the above reasons, We found value in 1st Respondents
argument that the application for postponement was baseless and not
genuinely sought. In Our opinion the inconsistencies in the Applicants
submissions have done a great blow to its case. This is sufficient to justify
the refusal of the application for postponement. We accordingly found
that Applicant had failed to provide a reasonable explanation for the
postponement and dismissed the application. We then directed the
parties to proceed to deal with the application for dismissal for want of
prosecution.
Dismissal for want of prosecution
11. As earlier indicated, after the delivery of Our ruling, Advocate
Chobokoane suddenly withdrew his representation. We intimated to
Advocate Chobokoane that We felt that his sudden withdrawal was not
genuine but that it was rather intended to frustrate the proceedings. His
response was simply that he had nothing further to submit. As a result,
We resolved to proceed with the matter and allowed 1st Respondent to
proceed with his application for dismissal for want of prosecution.
12. Mr. Molefi stated that the review application was lodged sometime in
June 2006. He submitted that since the institution of this application,
Applicant has not done much to prosecute the review application. He
stated that it was only after he had filed this application that Applicant
followed up on the record of proceedings. He further submitted that this
behaviour is a clear indication of either lack of interest in the matter or
an attempt to frustrate execution of an award granted in 1st Respondents
favour.
13. He added that the withdrawal of Advocate Chobokoane from these
proceedings further affirms his argument of intent to frustrate the
execution of the award, in that it was only initiated after the Court had
Page 206 of 361
refused to postpone the matter. He submitted that this is a clear abuse of

court processes which cannot be countenanced by this Court. He prayed
for an order dismissing the review application and reinstatement of the
award of the DDPR.
14. In an application for dismissal for want of prosecution, there are three
requirements. These requirements were laid out by Lyons J (a.i) in The
Liquidator Lesotho Bank v Flora Selloane Seleso CIV/T/58/2002, while
citing with approval the authority in Allen v Sir Alfred McAlpine & Sons
[1969] 1 All ER 543, where the Court set out the test as thus,
1. inordinate delay;
2. that this inordinate delay is inexcusable. As a rule, until a credible
excuse is made out, the natural inference would be that it is inexcusable;
3. and the defendants are likely to be seriously prejudiced by the delay.
15. In Our view, Applicant has been able to establish that the delay is
inordinate in that this matter was first lodged in 2006. Almost seven
years have passed since the matter was lodged with this Court. Further,
having withdrawn from the matter, Applicants representative has waived
the Applicants right to be heard and has thus denied both himself and
Applicant the opportunity to explain the delay. The delay thus remains
inexcusable by reason of the absence of a credible excuse.
16. Furthermore, 1st Respondent has demonstrated that the effect of the
delay has been to frustrate the execution of his award. This is obviously
prejudicial to 1st Respondent who obtained judgement from the 2nd
Respondent just over 7 years ago. We are further drawn to this
conclusion by the sudden withdrawal of Applicants representative from
the proceeding, upon the Courts refusal to indulge them to further delay
the matter. This is indeed an abuse of the processes of this Court.
Consequently, We find that 1st Respondent has been able to meet the
requirements for an application for dismissal for want of prosecution and
We accordingly grant same.
Page 207 of 361
AWARD
a) That the application for dismissal for want of prosecution is granted;
b) The award of the DDPR in referral A0120/2006 remains in force;
c) That the said award must be complied with within 30 days of receipt
herewith; and
THUS DONE AND DATED AT MASERU ON THIS 22nd DAY OF JULY 2013.
T. C. RAMOSEME
Ms. P. LEBITSA
Mr. M. MALOISANE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. CHOBOKOANE
MR. MOLEFI
Page 208 of 361

HELD AT MASERU
LC/REV/26/2011
A0416/2010

MASIANOKENG HIGH SCHOOL
MASIANOKENG HIGH SCHOOL BOARD
1st APPLICANT
2nd APPLICANT
And
MAKAMOHELO MOKONE
ARBITRATOR DDPR
(MRS M. LEBONE MOFOKA)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Four ground of review raised by Applicant. Applicant not arguing all review
grounds and further failing to prove any reviewable irregularities on the part of
the learned Arbitrator. Applicant also raising new grounds of review from the
bar and court dismissing them. Review application being dismissed and the
arbitral award in referral A0416/2010 being reinstated. No order as to costs
being made.
later date. Four ground of review were raised in terms of which Applicant
sought the review, correction and setting aside of the arbitral award of the
2nd Respondent. The background of the matter is that 1st Respondent is
an employee of the Applicant, at least as the time that the initial
arbitration proceedings took place. She was placed at the Environmental
Centre, a project that had been initiated by the Irish with the knowledge
and consent of the Lesotho Government.
2. Eventually the Irish withdrew from the project, and this included
withdrawal of payment of allowances to 1st Respondent. Then the 1st
Applicant school, took over from the Irish and started making allowance
payments to 1st Respondent. Payment of the allowances was later
stopped, after 10 years, resulting in the institution of a claim for breach
of contract, by 1st Respondent with the 2nd Respondent. 1st Respondent
had claimed payment of certain monies being allowances payable to her
by the Applicants. The Applicants had denied liability on the ground that
1st Respondent was an employee of the Lesotho government. On the 28th
February 2011, an award was issued in favour of the 1st Respondent.
Page 209 of 361
3. It is the said award that Applicants wish to have reviewed. The grounds of
review have been phrased as thus,
8.1 The 2nd Respondent ignored the fact that the 1st Respondent is an
employee of the Lesotho Government;
8.2 The 2nd Respondent ignored the fact that the 1st Respondents terms
and conditions of employment are governed by the Education Act 1995 and
Regulations made thereunder.
8.3 The 2nd Respondent ignored the fact that any payment of allowances or
agreement to pay allowances not done in accordance with the Education
Act and its Regulations is unlawful and therefore unenforceable.
8.4 That 2nd Respondent gave an award in favour of the 1st Respondent
when there was no evidence to support such an award, and such was
insupportable in law. A copy of the said award in attached hereto marked
B.
4. We wish to highlight the fact that although the review grounds raised
were four in number, Applicants did not argue them all, both during their
oral submissions and in their written submissions. Rather, in the written
submissions, they argued new grounds which were not pleaded in their
founding review documents. Although Applicant did not challenge the
new grounds, We have addressed them in Our Judgment. Our judgment
is thus in the following.
5. It was submitted on behalf of Applicants that the 2nd Respondent ignored
the fact that the 1st Respondent was an employee of the Lesotho
Government. It was stated that 1st Respondent had, during the
arbitration proceedings, testified to the effect that she was employed by
the Teaching Service Commission. The Court was referred to page 12 of
the record of proceedings. It was added that this being the case, 1st
Respondent was a government employee and not an employee of the 1st
Applicant.
6. The Court was referred to section 52 of the Education Act of 2010, to
illustrate the distinction between a government employee and a privately
employed teacher by the school. It was argued that, that notwithstanding,
the learned Arbitrator went ahead and made a conclusion that it was
common cause that 1st Respondent herein, was an employee of the
Applicant, herein. It was added that, in so doing the learned Arbitrator
committed a grave irregularity that led her to both a wrong factual and
legal conclusion.
7. It is not in dispute from the pleadings of both parties that Applicant did
testify that she was employed by the Teaching Service Commission and
that this meant that she was a Lesotho Government employee. We have
in fact confirmed that she was recorded testifying that she was employed
by the Teaching Service Commission. This is reflected at page 12 of the
record as thus,
Page 210 of 361
Arb: The question is which documents were you given? How were you
hired? By the school or the teaching service commission (TSC).
A: I was hired by the Teaching Service Commission.
8. We have also gone through the arbitral award and have confirmed that
this part of the evidence of Applicant was not considered. If it were, the
learned Arbitrator would indeed not have come to the conclusion to which
she did, but rather that 1st Respondent was employed by the Teaching
Service Commission. The provisions of section 52 of the Education Act
(supra) make this distinction very clear. Having failed to consider these
facts, the learned Arbitrator acted contrary to an established principle of
law that, an arbitrator must consider all facts presented during
arbitration proceedings in making an award (see Thabo Mohlobo & others
v LHDA LAC/CIV/A/02/2010). Her failure to observe this principle led
Her to a wrong conclusion on the facts.
9. However, the cardinal question is whether the failure to observe the rule
in Thabo Mohlobo & others v LHDA, in casu warrants a review. The test
applicable is laid out under section 228F (3) of the Labour Code
(Amendment) Act 3 of 2000 as follows,
.. Court may set aside an award on any ... mistake of law that materially
affects the decision.
Simply put, the test to be applied in casu, is whether the mistake
committed materially affects the decision made. For this to happen, the
decision made must directly flow from the mistake.
10. In casu, the Leaned Arbitrator made a mistake by ignoring evidence of
the 1st Respondent and concluded that she was an employee of the
Applicants. Clearly, as a result of the mistake, a wrong conclusion was
made. However, the ultimate decision in the matter was not based on this
conclusion. From Our analysis of the matter, the decision of the Learned
Arbitrator was premised on the continued payment of the allowances
which had, by that time, spanned for over 10 years.
11. This above said is clearly reflected under paragraph 7 of the arbitral
award as thus,
It must be borne in mind that respondents representative was not there
and this went on for a period of approximately ten (10) years. This
therefore became a tacit term and/or condition of complainants contract.
In view of this said, this irregularity does not warrant interference with
the arbitral award as it does not materially affect it, as envisaged by
Section 228F (3) of the Labour Code (Amendment) Act (supra).
12. Applicants had further submitted that the Learned Arbitrator erred by
ignoring the fact that being an employee of the Lesotho Government, 1st
Respondent salaries and allowances were determined by the Minister
Responsible for education. The Court was referred to section 53 (1) of the
Education Act (supra), which provides as follows,
Notwithstanding any other law,
Page 211 of 361
The terms and conditions of service, including ...

Allowances ... of a teacher paid by the Government shall be prescribed by
the Minister.
13. 1st Respondent responded that this above is a self-misdirection on the
part of Applicants. It was explained that the said section does not prohibit
or exclude the employees of the Lesotho Government from receiving any
income or revenue from other sources other than the government. It was
concluded that on the basis of the above said, there was no misdirection
on the part of the learned Arbitrator.
14. In Our view, this ground of review flows from the previous one. It is
premised on the view that the Court having found that the learned
Arbitrator was in error, in concluding that 1st Respondent was not an
employee of Applicants, She was bound to ignore the fact that 1st
Respondent was an employee of the Lesotho Government and further that
her terms and conditions of employment are determined by Education Act
and its Regulations. Clearly, this was not part of the arguments before the
learned Arbitrator and Applicants are not suggesting that they were.
15. The Labour Appeal Court in Thabo Phoso v Metropolitan Lesotho
LAC/CIV/A/10/2008 held that issues not raised or pleaded before the
initial court could not be properly raised before the appellate or reviewing
body, as the initial court would have been denied the opportunity to
consider them. If this is the case in casu, the learned Arbitrator could not
have considered these issues unless they had been brought to Her
attention. Having failed to consider these issues in the circumstances, the
learned Arbitrator cannot be held to have committed an irregularity in not
considering them.
16. Even assuming that they had been brought to her attention, the
dispute before her was not over who determines the terms and conditions
of the employment of 1st Respondent. Rather, the issue was whether the
1st Respondent was entitled to be paid her allowances, which she had
been receiving for over 10 years, until Applicants stopped paying. This
being the case, the fact of who determines the terms and condition of the
employment of Applicant was not relevant towards the determination of
the issue. Having not been considered, those facts did not affect the
conclusion of the learned Arbitrator by reason of their irrelevance.
17. It was further submitted that the learned Arbitrator committed an
irregularity by concluding that, the fact that Applicant had continued to
receive her allowances for over 10 years, that became a tacit term of her
contract of employment. It was said that this conclusion was in error in
that there is no way that a third party, being 1st Applicant, could alter the
terms of the contract of employment between 1st Respondent and the
Lesotho Government.
Page 212 of 361
18. It was further submitted that the person who made the decision to pay
1st Respondent, was the principal of the 1st Applicant school and without
the authority of the School Board. It was added that even assuming that
the School board had authorised the payment, it would not have had the
competence to do so, as 1st Respondent was a Lesotho Government
employee.
19. This ground is independent of the grounds pleaded by Applicants in
their founding papers. This in essence means that it is only being
canvassed for the first time from the bar. This is in contravention to the
rule of procedure in motion proceedings that parties must stand and fall
by their pleadings (see Pascalis Molapi v Metro Group Limited & others
LAC/CIV/R/09/2003). This principle essentially means that a party
cannot go beyond their pleadings in presentation of their case in Court.
20. Further, the content of these new grounds challenges both the factual
and legal conclusion of the learned Arbitrator, in making a finding that
the continued payment of allowances to 1st Respondent for over 10 years,
amounted to a tacit term of her contract. Being a challenge on the
conclusion of the learned Arbitrator, it amounts to a ground of appeal as
opposed to review. Our conclusion is based on the finding of the Labour
Appeal Court in JDG Trading (Pty) Ltd t/a Supreme Furnishers vs. M.
Monoko & others LAC/REV/39/2004, where the Court drew a clear
distinction between what constitutes and appeal and a review. On the
basis of this said, this ground is dismissed.
21. It was further submitted that the learned Arbitrator erred by ignoring
the fact that for a legitimate expectation to arise, certain requirements
must be met. It was argued that paragraph 9 of the award, suggest that
1st Respondent became entitled to payment of her allowances by virtue of
the doctrine of legitimate expectation, which was based on the fact that
she had been paid for over 10 years. The Court was referred to the case of
South African Veterinary Council & another v Szymanski 2003 (4) SA 42
(SCA) at 49F-H, for the requirements of a legitimate expectation.
22. In reply, 1st Respondent submitted that the learned Arbitrator rightly
found in her favour, as it was 1st Applicants duty to pay her the said
allowances. It was added that the Irishs role in the project was merely to
aid. This meant that when they left it was the responsibility of the
Applicants to take over the payment of the allowances. It was said that
this they rightly did for over 10 years. It was further submitted that in the
10 years, Applicant had acquired the right to be paid the said allowances
and a legitimate expectation to continue to be paid. It was further said
that these rights could not in law, be taken without giving her a hearing.
23. 1st Respondent relied on the authorities in R v Secretary of State for the
Home Department Ex parte Ruddock & others (1987) 2 ALL ER 518 QB at
528; Schmidt & another v Secretary of state for Home Affairs (1969) 1 ALL
ER 904 at 909 C and F. In these authorities, the Court stated that the
Page 213 of 361
existence of a regular practice gives rise to a legitimate expectation on the

part of the claimant that the practice will continue happen. Further that
once that expectation has been created, a right arises which right cannot
be taken away without a hearing.
24. While both parties seem to harbour under a similar impression that
paragraph 9 of the arbitral award relates to the doctrine of legitimate
expectation that is inaccurate. We say this because the point being made
therein, is that a contract of employment can only be varied by mutual
consent, especially if the concerned variation is prejudicial to the
employee. The learned Arbitrator further goes on to state that where a
prejudicial
variation has been made, the concerned employee will
continue to be entitled to receive the benefit until the variation has been
acceded to, by both parties.
25. The considered principle in paragraph 9 of the arbitral award, is that
of mutual consent, that derives from the law of contract and not the
administrative law doctrine of legitimate expectation. These two concepts
are different in both content and form, as they clearly derive from
different subjects. Consequently, there is no irregularity in not
considering the requirements for a legitimate exception to arise.
AWARD
We therefore make an award in the following,
a) That the Review application is dismissed.
b) That that award of the DDPR in A0416/2010 is reinstated;
herewith;
d) That no order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 2nd DAY OF SEPTEMBER
2013.
T. C. RAMOSEME
Mr. S. KAO
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR 1st RESPONDENT:
ADV. MOHAU (K.C)

ADV. LEROTHOLI
Page 214 of 361

HELD AT MASERU
LC/REV/59/2011
A1049/2010

PHAKISO RANOOANA
APPLICANT
And
LESOTHO FLOUR MILLS (PTY) LTD
DDPR ARBITRATOR
(M. MOLAPO-MPHOFE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Review application of DDPR arbitral award. Applicant having raised three
grounds of review. 1st Respondent failing to attend hearing to argue its case
Court proceeding to make a judgment on the basis of the submissions and
arguments of Applicant. Court not finding merit in the grounds raised by
Applicant. Court dismissing the review application. No order as to costs being
made.
1. This is an application for the review of the DDPR arbitral award in referral
A1049/2010. It was heard over a series of dates, from the 26th February
2013 to the 2nd May 2013, at the end of which judgment was reserved for
a later date. Four grounds of review were raised, in terms of which
Applicant sought the review, correction and/or setting aside of the
arbitral award of the 2nd Respondent.
2. The background of the matter is essentially that, Applicant referred a
claim for unfair dismissal with the 2nd Respondent. On the 12th June
2011, an award was issued in favour of 1st Respondent, in terms of which
Applicants claim for unfair dismissal was dismissed. Applicant then
lodged a review under the current proceedings, which was duly opposed.
Later on, Applicant filed a supplementary affidavit to his original founding
affidavit. In opposition to the supplementary affidavit, 1st Respondent had
raised a preliminary point of non-compliance with Rule 6 of the Rules of
this Court.
3. On the 26th February 2012, both parties were called to make presentation
on the issue. Having considered same, We come to the conclusion that
the supplementary affidavits did not comply with the Rules of this Court
and ordered their exclusion from these proceedings. We then directed
Page 215 of 361
parties to proceed with their arguments in the review application on the

basis of their original founding affidavits. The matter was then set down
for hearing on the 5th March 2013. On this day, only Applicant was able
to present his case.
4. The matter was then postponed to the 2nd May 2013, by agreement, for
1st Respondent to argue the matter in opposition. Parties were further put
to terms to submit their heads of argument on or before the said date.
However, on the said date, only Applicant had filed his heads of argument
and 1st Respondent was not in attendance. We then granted a grace
period, during which several attempts were made through the office of the
Registrar to secure 1st Respondent, but to not avail. We therefore proceed
to judgment on the basis of the submissions of Applicant only. Our
judgment is thus in the following.
5. The first ground of review was that the learned Arbitrator had relied on
irrelevant hearsay evidence to come her conclusion. It was added that the
learned Arbitrator relied on the evidence of one Masia Moloi, who had in
turn relied on a video recording and documentary evidence both of which
were irrelevant and hearsay. Reference was made to paragraph 5 at page
12 of the record of proceedings, where witness had stated that he relied
on the video recording. It was added that only relevant evidence should be
considered, as irrelevant evidence is inadmissible. The Court was referred
to the case of Lloyd v Powell Duffryn Steam Coal Co. Ltd 1914 AC 733 at
738 in support.
6. It was added that the said evidence ought to have been excluded as
hearsay, as the learned Arbitrator rightly ruled so. However,
notwithstanding the said ruling, the learned Arbitrator went ahead and
found Applicant guilty on the basis of the evidence of the said Masia
Moloi, thus committing a grave irregularity. The Court was referred to
paragraph 2 from the bottom, at page 8 of the arbitral award.
7. Upon Our inspection the record, We have noted that at paragraph 5 on
page 12 of the record, witness is recorded to have stated that he relied on
the video recording for his evidence of the incidents. We have further
noted that at paragraph 9 of the arbitral award, which appears on page 8,
the learned Arbitrator made a ruling to exclude video recording from her
analysis of the evidence. From these above, Applicant seems to suggest
the presence of irrationality on the part of the learned Arbitrator, in that
She excluded the video recording, on which witness had premised his
evidence, but yet She found Applicant guilty.
8. Whenever an argument of irrationality is raised, the presumption is that
the conclusion reached is not supported by the facts or the law or both.
Put different, the presumption is that the conclusion reached is illogical,
given the facts and the law. What constitutes an irrationality was
explained in the case of Council of Civil Service Unions v Minister for the
Page 216 of 361
Civil Service [1984] 3 All ER 935, by Lord Diplock. The learned Judge
stated as thus,
So outrageous in its defiance of logic or accepted moral standards that no
sensible person who had applied his mind to the question to be decided
could have arrived at it.
9. This above said is exactly what Applicant contests, that whereas the video
recording had been excluded, logic dictates that the evidence of a party
relaying on the video recording becomes hearsay and inadmissible. The
suggestion is that there was no evidence to support the conclusion as the
video recording was excluded. This logical conclusion depends two main
factors to hold and these are whether video recording was the only piece
of evidence adduced before the learned Arbitrator and if not, whether the
learned Arbitrator relied on it to come to her conclusion.
10. From Our inspection of paragraph 9 of the arbitral award, We have
noted that the learned Arbitrator made reference to other evidence that
was tendered by witness in support of his case. This is the report by
Applicant in terms of which he admitted the offence that he was charged
with and further stating that it was not first time that he had committed
the same offence. This is the major premise against which Applicant was
found guilty of misconduct. As a result, it cannot be accurate that the
learned Arbitrator relied on the video recording to conclude that Applicant
was fairly dismissed or that there was any irrationality on the award.
11. In Our opinion, the evidence before the learned Arbitrator supports the
conclusion made and is thus rational. No reliance was made by the
learned Arbitrator on the video recording to find Applicant guilty. On the
issue of all documentary evidence tendered amounting to hearsay, no
solid basis has been laid. It has just been alleged that all the
documentary evidence was hearsay without any substantiating evidence.
Without the basis, this argument is unfounded and thus stands to be
dismissed. This Court has expressed this view in many of its decisions
(see Kopano Textiles (Pty) Ltd v Moteare Qokolo & Others LC/REV/19/09);
also see Lesotho Express Delivery Services (PTY) LTD v The Arbitrator
DDPR & another LC/REV/18/2010). Further, it is not clear how either the
video recording or the documentary evidence were irrelevant. In the same
vein, the absence of a valid basis of a claim makes it unfounded and
worthy of dismissal.
12. On the second ground of review, it was submitted that the learned
Arbitrator committed an irregularity in failing to observe the rules of logic
pertaining to the circumstantial evidence when evaluating the evidence
and drawing inferences. In amplification, it was submitted that there was
no evidence at all to prove that the dismissal of Applicant was fair.
Further, that assuming it circumstantial evidence, the learned Arbitrator
failed to observe the requirements applicable in dealing with
circumstantial evidence in civil proceedings.
Page 217 of 361
13. The requirements applicable in dealing with circumstantial evidence in

civil proceedings were identified as that follows,
a) the correct inference must be made from the proved facts;
b) the inference must be consistent with all the facts.
Reference was made to the cases of SAR & H v Dhlamini 1967 (2) SA 203
(D) and Ocean Accident & Guarantee Corporation Ltd v Kock 1963 (4) SA
147 (A) at 159C, in support. It was concluded that there was no evidence
before the learned Arbitrator that caused her to form an inference that
Applicant had committed the conduct charged off. It was argued that in
the absence of such evidence, an inference cannot be drawn. The Court
was referred to the cases of Caswell v Powell Duffryn Association Collieries
1940 AC 152 at 169; AA Onderlinge Assuransie Bpk v De Beer 1982 (2) SA
603 (A); and Govan v Skidmore 1952 (1) SA 732 (N) at 734D, in support.
14. The above argument derives its validity from the first ground of review.
It assumes that the Court will find that all the evidence of Moloi Masia
was inadmissible, and therefore that there is no evidence at all to proof
the guilt of Applicant. We have indicated that the learned Arbitrator relied
on the documentary evidence of Moloi Masia. Applicant has failed to
demonstrate how that evidence becomes both irrelevant and
inadmissible. This being the case, there was evidence before the learned
Arbitrator and this evidence was considered in making a conclusion that
Applicant was guilty. As a result, all arguments about circumstantial
evidence become redundant.
15. On the third ground of review, Applicant submitted that the learned
Arbitrator committed an irregularity in that She failed to take into
account or to take into adequate account the rules of evidence in relation
to the handing in and accepting or admitting exhibits in the form of
documentary evidence. In elaboration of this point, Applicant submitted
that there are certain requirements that must be observed in accepting
documentary evidence. These were identified as follows,
a) Documentary evidence must be submitted after being authenticated;
b) It must be submitted by its maker or author.
16. Applicant further submitted that the documentary evidence that was
submitted by Moloi Masia was not authored by him. Applicant made
reference to page 10 of the record of proceedings where Moloi Masia is
recorded to have said that he had not authored exhibits B I. Applicant
added that no original documents were produced as it was just copies
while no explanation was given as to why the originals could not be
availed. When asked if both the authenticity of the copies was put into
question or not, when the documents were tendered or even during cross
examination, Applicant stated that it only came up during the closing
submissions.
17. On the first leg of this ground, Applicant has indicated that this issue
was never raised either at the time that the documents were being
tendered or even during the cross examination of the witness who
Page 218 of 361
tendered them. If this is the case, the learned Arbitrator was right in
assuming that their authenticity was not in question. It is trite law that
documentary evidence may come in any one of the two forms, that is, as
an original or a reliable duplicate. This rule is known as the Best
Evidence Rule.
18. 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; that
one cannot give secondary evidence by producing a copy. Nowadays we do
not confine ourselves to the best evidence. We admit all relevant evidence.
The goodness or badness of it goes only to weight, and not to
admissibility.
19. It is clear from the above extract that even a duplicate of the original
documents is admissible. Essentially, if a document is not an original
copy, it is the responsibility of the party to challenge its reliability so that
it may not be admitted. Consequently, if Applicant was happy with the
status of a copy that was tendered, the learned Arbitrator cannot be held
at fault at this stage. The challenge ought to have been made during the
proceedings to allow the learned Arbitrator to consider and apply her
mind to it and not for the first time on review. The premise of this
proposition is simply that the maxim of audi alteram partem applies both
ways, that is, it must be afforded to all parties concerned (see Puleng
Mathibeli v Sun International 1999-2000 LLR-LB 374 (CA)).
20. Moreover, it is trite law that evidence which may be otherwise be
classified as hearsay, may be said to have been admitted by consent of
parties. This happens where no objection is raised by a party to the
admission of such evidence on record (see Thoroughbred Breeders
Association of South Africa v Price Waterhouse 1999 (4) SA 968 (W)). In
this instance, the consent of the parties is inferred from their conduct. In
casu, no objection was raised upon the tendering of the alleged copies. It
is my opinion that failing to object to the handing in of the concerned
documents, amounted to an admission by conduct which is short of fault
on the part of the learned Arbitrator.
21. As for the second leg, We do concede that that is a general rule.
However, every general rule is subject of exceptions. The exceptions may
include admissions or confessions (see Schwikkard & Van Der Mervwe,
Principles of Evidence, 2nd Edition at page 288). In casu a report though
not written by Masia Moloi, was written by Applicant and given to Masia
by Applicant as an official report to explain his conduct. This is clear from
the document itself which was tendered as exhibit I. The report
constitutes an admission of guilt on the part of Applicant. In these
circumstances, a document of this nature is admissible against the
Page 219 of 361
maker. Consequently, no irregularity has been committed by the learned

Arbitrator.
22. On the fourth ground of review, Applicant submitted that the learned
Arbitrator ignored relevant facts to the matter and considered those not
relevant. In clarification, Applicant submitted that the learned Arbitrator
ought not to have considered the evidence of Moloi Masia and one Molupe
Moalosi. He argued that on the contrary, the learned Arbitrator ought to
have considered the fact that there was no evidence that proved
misconduct on the part of Applicant.
23. It is not clear from the submissions of Applicant why the evidence of
both Masia Moloi and Molupe Moalosi should not have been considered.
Further, it is also not clear how the said evidence can be said to have
been irrelevant to the matter. This essentially makes that averments of
Applicant bare, unfounded and worthy of dismissal. Furthermore, We
have pronounced Ourselves in relation to issue of there being no evidence
to prove the guilt of Applicant. We have stated that the learned Arbitrator
relied on the report tendered by Masia Moloi, which Applicant wrote to
explain the events of the day in which an overload was found, to conclude
that he was guilty. In that report Applicant had admitted guilt.
Consequently, it cannot be accurate to argue that the learned Arbitrator
ought to have considered that there was no evidence at all.
24. We are infact of an opinion that this ground is an appeal disguised as
a review, in that it directly challenges the conclusion of the learned
Arbitrator. The challenge suggests that the learned Arbitrator was wrong
to have concluded that there was evidence to prove the guilt of Applicant.
It is trite law that a challenge of this nature constitutes an appeal and not
a review (see JDG Trading (Pty) Ltd t/a supreme furnishers vs. M Monoko
& 2 others LAC/REV/39/04). We therefore find that this ground is devoid
of merit and further that it is an appeal disguised as a review, with each
finding sufficient to warrant its dismissal.
25. Applicant had also prayed for costs of suit. Given our final conclusion
on the matter, the prayer for costs has become redundant. We therefore
see no reason to deliberate any further on it but to dismiss it.
Page 220 of 361
AWARD
a) The review application is refused; and
2013.
T. C. RAMOSEME
Mr. MATELA
Mrs. MALOISANE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. MOSUOE
ADV. MABULA
Page 221 of 361

HELD AT MASERU
LC/REV/54/2011
A0067/2011

ECLAT EVERGOOD TEXTILE
APPLICANT
And
MALEFANE NTHONTHO
MOTLOANG MAKAFANE
THE DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Applicant taking time to advance the matter 1st and 2nd Respondents
applying for dismissal for want of prosecution. Application not being opposed
and Applicant failing to attend the hearing despite notification having been
duly made - Court granting application and dismissing this review application.
1. This is an application for the dismissal of the review of application for
want of prosecution. It was set down hearing on this day at 09:00 am.
Parties herein are cited as they appear in the main review application, for
purposes of convenience. The background of the matter is essentially that
1st and 2nd Respondents, referred claims for unfair dismissal, unlawful
deductions and unpaid wages. The latter two claims were settled and the
matter proceeded into arbitration in respect of the unfair dismissal claim.
An award was issued in favour of the 1st and 2nd Respondents on the 12th
June 2011.
2. On the 15th June 2011, Applicant lodged review proceedings with this
Court in terms of which it sought the review, correction or setting aside of
the arbitral award in referral A0067/2011. On the 30th November 2012,
the current proceedings were lodged by the 1st and 2nd Respondents. The
matter was duly set down for hearing on this day. Only 1st and 2nd
Respondents were in attendance, through their legal representative,
Advocate Khalane. Notwithstanding a grace period that We extended,
Applicant failed to make appearance and We resolved to proceed with
matter in default. Our judgment is thus in the following.
Page 222 of 361

3. Advocate Khalane submitted that, after the review application had been
lodged, She served Applicant with a notice of intention to oppose and filed
same with the Court. She further submitted that as far back as the 8th
July 2011, Applicant was called through a notice to come and collect the
record of proceedings before the DDPR. The notice was annexed to the
founding affidavit as EG2. Since then to date, Applicant has not served
them with a notice in terms of Rule 16 (5) of the Rules of this Court. She
added that when this matter was set down for hearing, Applicant was
represented by both Mr. Tita and Advocate Klass. This notwithstanding,
both Advocate Klass and Mr Tita have failed to attend on this day.
4. Advocate Khalane further submitted that the time taken by Applicant to
advance the matter has been too long as to date, Applicant has not gone
further than the referral of the matter. She submitted that Applicant is
playing delaying tactics hence the reluctance to finalise the matter. She
added that this clearly demonstrates that Applicant simply wants to
frustrate the execution of the award granted in favour of 1st and 2nd
Respondents. She stated that this is prejudicial to Applicants as it causes
a delay in, among others, the payment of the awarded amounts in their
favour. She prayed that this application be granted, that the review
application be dismissed for want of prosecution.
5. It is trite law that the right to be heard is only given to a party that is
willing to utilise it (see Lucy Lerata & others vs. Scott Hospital 1995-196
LLR-LB 6 at page 15). It is Our view the conduct of Applicant is a clear
indication of its unwillingness to utilise this right. We agree with Advocate
Khalane that the inactiveness on the part of Applicant demonstrates
either the lack of interest in the matter or a deliberate intention to
frustrate execution of the award granted in favour of 1st and 2nd
Respondent. Our view is further fortified by the failure to attend the
matter in spite of prior notification of the date, which was agreed upon by
both parties. We therefore see no reason not to grant the application as
prayed by 1st and 2nd Respondents.
Page 223 of 361
AWARD
b) The review application is dismissed;
c) The award in referral A0067/2011 is hereby reinstated;
d) That the said award must be complied with within 30 days of receipt
herewith; and
e) That no order as to costs is made.
2013.
T. C. RAMOSEME
Miss. P. LEBITSA
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st & 2nd RESPONDENTS:
NO ATTENDANCE
ADV. KHALANE
Page 224 of 361

HELD AT MASERU
LC/REV/38/2012
A1123/2011

TEBA LIMITED (PTY) LTD
APPLICANT
And
THE DDPR
NORDEEN GLOVIS GOOLAM
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Three grounds of review raised by Applicant. Applicant succeeding to prove its
claim and the application for review being granted. No order as to costs being
made.
later date. Three grounds of review were raised on behalf of Applicant, in
terms of which it sought the review, correction or setting aside of the
award of the 1st Respondent. This matter has a rather peculiar history,
which involves my participation in its attempts at resolution, whilst
before the 1st Respondent Directorate.
2. 2nd Respondent was an employee of the Applicant until his dismissal for
misconduct. He then referred a dispute for unfair dismissal with the 1st
Respondent, in terms of which he claimed that his dismissal was unfair
both procedurally and substantively. When the matter was first
conciliated upon in terms of section 227 (4) of the Labour Code Order of
1992 as amended, it was before myself, but then in my capacity as an
arbitrator. This was before I was appointed to the position of the Deputy
President of this Court.
3. At the commencement of the proceedings before this Court, We had
brought the fact of my initial involvement to the attention of both parties.
The intention was to enquire from them, if it was proper for me to sit in
this review application, given my initial involvement. They were both of
the view that this Court was only concerned with the procedure in the
proceedings before the 1st Respondent and not the substance of the
claim, and therefore that I was properly allocated to hear and determine
Page 225 of 361
this review. In view of the attitude of parties, We resolved to proceed to

with the matter as We were constituted. Our judgment is thus in the
following.
4. The first and second grounds of review were addressed together. It was
submitted that the learned Arbitrator had failed to consider the evidence
of Applicant, to the effect that he was guilty of the conduct that he had
been charged with. It was argued that if She had considered the said
evidence, the learned Arbitrator would have awarded compensation and
not reinstatement. It was added in awarding reinstatement, the learned
Arbitrator clearly failed to interrogate the practicality of reinstatement,
and that this is irregular.
5. The Court was referred to the case of Seotlong Financial Services v
Morokollo Makhomari LC/REV/32/2009, where the award of the learned
Arbitrator was found to be irregular. It was said that in that case, the
learned Arbitrator had made a finding that the dismissal was
substantively fair, but went ahead and ordered reinstatement. It was said
that this conduct was held to be highly irregular. It was further said that
what is shocking in the case in casu, is that fact that the learned
Arbitrator did not even make a finding that the conduct of the Applicant
did not warrant his dismissal.
6. It further submitted that the learned Arbitrator ought to have at least
called on parties to address her on the practicality of reinstatement, as
anticipated by section 73 of the Labour Code Order (supra). The Court was
referred to the case of Kobese Hlatsi v Teba LC/02/1998, where it was
said that the court is vested with the discretion whether to award
compensation or order reinstatement. It was argued that on the basis of
this authority, both parties ought to have addressed the learned
Arbitrator on the issue, to aid in its determination of the remedy to grant.
When asked whose responsibility it was to lead the evidence of
impracticality, Applicant respondent that it was the learned Arbitrators
duty to require parties to lead such evidence.
7. In reply, 2nd Respondent submitted that he had asked for reinstatement
in his prayers. He stated that this being the case, it was Applicants duty
to lead evidence to demonstrate the impracticality of the remedy sought.
Further that, having failed to lead such evidence, to contradict the
suggestion that reinstatement was practical, the learned Arbitrator was
right in awarding same. The premise of this argument was that what is
not opposed is taken to have been accepted as accurate. It was added
that the learned Arbitrator would only be bound to look into the
practicality of reinstatement if it was opposed. In relation to the Kobese
Hlatsi v Teba (supra) authority, it was submitted that the extract referred
to support the finding of the learned Arbitrator as She exercised her
discretion and awarded reinstatement, which was an appropriate remedy.
Page 226 of 361
8. In Our opinion, the evidence of the guilt of the 2nd Respondent was duly
considered by the learned Arbitrator. This was the main reason why the
leaned Arbitrator made a finding that the dismissal of 2nd Respondent
was substantively fair. This essentially meant that the learned Arbitrator
found that the reason for the dismissal of 2nd Respondent was valid. In
view of the finding made by the learned Arbitrator, We are in agreement
with 2nd Respondent that She failed to interrogate the issue of the
practicality in respect of the remedy of reinstatement.
9. Once the learned Arbitrator had made a finding that the dismissal of 2nd
Respondent was substantively fair, it meant that She approved that the
dismissal of Applicant was an appropriate sanction given the nature of
his conduct. This meant that the learned Arbitrator had found that the
reason for the dismissal of Applicant was valid, which meant that the
continued employment relationship was no longer possible. It therefore,
went without saying that an award for reinstatement would not be
appropriate under the circumstances.
10. Having found that the reason for the dismissal was valid, the
subsequent order for reinstatement did not tally with both the factual and
legal conclusion earlier made by the learned Arbitrator. On the basis of
both the factual and legal conclusion that She made, She was bound to
award any other remedy that is short of reinstatement. This Court has
emphasised this point in a plethora of cases among which it the authority
in Seotlong Financial Services v Morokollo Makhomari (supra), that
Applicant has cited. Having nonetheless awarded reinstatement, the
learned Arbitrator failed to exercise Her discretion judiciously by making
an irrational decision. We therefore find that the learned Arbitrator
committed a gross irregularity, that warrants interference with Her
award.
11. In relation to the suggestion that the learned Arbitrator was required
to call on parties to address her on the practicality of reinstatement, We
hold a different view. Applicant has relied on the provisions of section 73
of the Labour Code Order 24 of 1992, which provides as thus,
73. Remedies
(1) 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. The Court shall not make such an order
if it considers reinstatement of the employee to be impracticable in
the light of the circumstances.
(2) If the Court decides that it is impracticable in the light of the
circumstances for the employer to reinstate the employee in
employment, or if the employee does not wish reinstatement, the
Court shall fix an amount of compensation to be awarded to the
employee in lieu of reinstatement
Page 227 of 361
12. It is clear from the extract quoted above that section 73 does not in
any way require the learned Arbitrator to call on parties, to make
addresses on the practicality of reinstatement. It merely provides for
alternative remedies availed to an employee where their dismissal has
been found to be unfair, and nothing more. The responsibility to lead
evidence in support of a claim or to contradict same lies with parties. This
essentially means that in casu, it was the Applicants responsibility to
lead evidence to contradict the claim for reinstatement by pleading its
impracticality.
13. While We agree with 2nd Respondent that what is not opposed is taken
to be true an accurate and that the learned Arbitrator had no obligation
to look into what was not disputed, the suggestion is inapplicable in casu.
We say this because, the moment that the learned Arbitrator found that
the dismissal of 2nd Respondent was substantively fair, that extinguished
the possibility of reinstatement, whether it was opposed or not. We
therefore find that the authority in section 73, has been misapplied by
Applicant, in as much as same has been done with regard to the
authority in Kobese Hlatsi v Teba (supra). The latter authority mere
speaks to the exercise of discretion in implementing the provisions of
section 73.
14. The third ground of review was that the learned Arbitrator determined
the validity of the final written warning, which warning had not been
challenged by 2nd Respondent, to find that his dismissal was unfair. It
was submitted that in determining the fairness of the dismissal of
Applicant, on the basis of the validity of the notice that was never
questioned, the learned Arbitrator committed a grave irregularity. It was
added that She infact, in so doing, substituted the finding of the
chairperson of the initial enquiry with Hers.
15. It was submitted that the practice of substituting the decisions of the
initial trier in employment maters is highly shunned upon by the Courts
of law. The Court was referred to the case of Mondi Craft v PPWAWU &
others 1999 (10) BLLR 1057. It was said that in this case, the court gave a
strict caution against conduct that amounts to a substitution of the
finding of the initial trier in labour disputes, especially where the issues
considered in making the said substitution were not supposed to have
been traversed.
16. 2nd Respondent replied that it was his case that the warning that led
to his dismissal was unprocedural in that it was given without hearing
him and that this was contrary to the rules of the Applicant organisation.
It was added that the warning was the basis of the dismissal, as was its
cumulative effect that resulted in the decision to dismiss 2nd Respondent.
It was further added that, the issue of the warning is addressed by the
learned Arbitrator at paragraph 7 of the arbitral award, where 2nd
Respondent is said to have refrained from challenging the warning out of
fear of losing his employment.
Page 228 of 361
17. The issue for determination before the learned Arbitrator was whether
the dismissal of 2nd Respondent was fair or not. This notwithstanding, the
learned Arbitrator entertained a claim that was intended to invalidate a
final written warning, whose cumulative effect led to the dismissal of 2nd
Respondent. Clearly, the learned Arbitrator traversed into an arena in
which She was not initially called to navigate through. The effect of the
travession has been the substitution of the decision of the Applicant, in
its issuance of a final written warning to 2nd Respondent with a new one
altogether.
18. The learned Arbitrator invalidated the initial warning thus
distinguishing its cumulative effect. In so doing the learned Arbitrator
went beyond the proceedings before Her, into the initial plant level
hearing. She essentially determined the validity of the warning that was
accepted by Applicant at the plant and based on Her determination,
found the dismissal of Applicant to be unfair. This is the type of
behaviour that Courts of law continuously condemn. Evident to this is
the authority in Mondi Craft v PPWAWU & others (supra) that has been
cited by Applicant. We therefore find that the learned Arbitrator also
committed an irregularity in this regard, that warrants interference with
Her arbitral award.
COSTS:
19. Applicant, on the one hand, submitted that it left the issue of costs in
the hands of the Court. 2nd Respondent, on the other hand, specifically
prayed for an award of costs in cause. He stated that in his opinion, the
review application was frivolous as the learned Arbitrator committed no
irregularity. In answer, Applicant submitted that the review is necessary.
It was added that the circumstances that led to the current proceedings
were occasioned by the defect in the award and thus no ones fault.
20. Applicant has not requested costs, but has rather left it in the
discretion of the Court to make an award if it deems fit. Rather, it is the
2nd Respondent who has asked for costs, specifically that they must
follow the suit. Having granted the review application in favour of
Applicant, a prayer for costs in favour of 2nd Respondent automatically
falls off. An award of costs against a losing party is made in extreme
circumstances that involve, among others, frivolity that amounts to an
abuse of the Courts process, as well as vexatious conduct during the
proceedings. In Our view, the circumstances of the case in casu, fall short
of the requirements for an award of costs. We therefore decline to make
same.
Page 229 of 361
AWARD
Having heard the submissions of parties, We hereby make an award in the
following terms:
a) That the review application is granted;
b) This matter in referral A1123/2011 be heard de novo before a different
Arbitrator; and
2013.
T. C. RAMOSEME
Mr. L. MATELA
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 2nd RESPONDENT:
ADV. SEPHOMOLO
ADV. MOJELA
Page 230 of 361

HELD AT MASERU
LC/40/13

THABO MOLEKO
APPLICANT
And
JIKELELE SERVICES
RESPONDENT
JUDGMENT
Claim for unfair dismissal. By agreement of parties, Court holding that
Applicants claim falls within arbitrable disputes before the DDPR in terms of
section 226 (2). By agreement of parties, Court finding that Applicants were
dismissed for poor work performance. Court further directing that Applicants
claims be determined by the DDPR in terms of section 226 (2). Applicant
requesting an award of costs against Respondent claim being based on
alleged misrepresentation of a defence. Respondent also claiming costs of
frivolity in bring this claim. Court not finding any misrepresentation on the part
of Respondent Court also not finding any frivolity on the part of Applicant. No
1. This dispute involves a claim for unfair dismissal. It was heard on this
day and judgment was reserved for a later date. Applicant as represented
by Ms. Maneo Mosola from CMQ, while Respondent was represented by
Adv. Hlalele Tolo from the Association of Lesotho Employers. The
background of the matter is that Applicant had initially referred a claim
for unfair dismissal with the DDPR. Among his claims was that he did not
know the reason for his dismissal. After a futile conciliation process of the
matter, a report was issued in terms of section 227(5) of the Labour Code
Order 24 of 1992 as amended, referring the matter for adjudication before
the Labour Court.
2. During the adjudication process, it became apparent that the actual
reason for the dismissal of Applicant was for poor work performance.
Consequently thereto, parties agreed that this matter should be remitted
back to the DDPR, as the claim falls squarely within its jurisdictions, in
terms of section 226 (2) of the Labour Code Order (supra). However,
Applicant insisted on an award of costs being made against Respondent,
on the ground that it was their misrepresentation of facts, in defence,
that led to the matter being referred before this Court. The suggestion
was rejected by Respondent who claimed that the learned Arbitrator
misinterpreted their defence.
Page 231 of 361
3. The following facts were common cause and as constitutive of what took
place before the DDPR. Firstly, that Respondent was represented by Mr.
Billie Horn, its Manager, who is not trained in law. Further, that in the
conciliation/arbitration process, he had indicated that Applicant was on
probation at the time of his dismissal. Furthermore, that Applicant was
dismissed because he had performance poor and that at the time of his
dismissal, Respondent was undergoing the processes of retrenchment. On
the basis of these common cause facts, We now proceed to deal with the
issue of costs.
SUBMISSIONS
4. Applicant argued that an award of costs must be made against
Respondent. It was submitted that this matter was referred for
adjudication because, Respondent had created an impression that the
dismissal of Applicant was occasioned by the employers operational
requirements, hence the report of the learned Conciliator. It was argued
that clearly, this matter would not have been before this Court if it were
not for the impression created. It was added that by creating the said
impression, Respondent caused Applicant to incur costs of having the
matter lodged with this Court.
5. In reply, Respondent argued that an award of costs should instead be
made against Applicant for bringing this claim before the Labour Court.
He argued that clearly, the learned Conciliator misinterpreted the defence
raised by Respondent. It was added that Respondent did not allege that
the dismissal was based on operational requirements but rather stated
that Applicant was dismissed for poor work performance at the time that
the Respondent was also engaged in the retrenchment process. It was
further argued that it would thus be unfair to punish Respondent for an
error on the part of the learned Conciliator.
6. We have often stated that the Labour Court is a court of equity and
fairness that strives towards the advancement of economic development,
the attainment of social justice and labour peace as well as the promotion
of workplace democracy. Owing to these said, the Labour Court only
makes an award of costs in circumstances of extreme abuse of its
processes. In casu, it is clear from the common cause facts that
Respondent never claimed operational requirements as the reason for the
dismissal. Rather, Respondent went further in explaining the reason for
Applicants dismissal to add that his termination coincided with the
retrenchment process.
7. This above, does not in any way suggest that Applicant was dismissed for
operational reasons. The issuance of the report of non-resolution and
referral for adjudication was a clear error on the part of the Conciliator.
Therefore an award of costs against Respondent would be inappropriate,
in the same manner as would be an award of costs against Applicant.
Having been served with the report in terms of section 227 (5) of the
Labour Code Order (supra), Applicant had no option, as there are no
Page 232 of 361
procedures laid down in law, safe to refer his claim with this Court in line
with the report.
AWARD
following terms:
a) That by agreement, Applicants were dismissed for poor work
performance;
b) That Applicants claim is remitted back to the DDPR to be determined in
terms of section 226 (2); and
c) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 28th DAY OF OCTOBER
2013.
T. C. RAMOSEME
Mr. S. KAO
Mrs. M. MALOISANE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MS. MOSOLA - CMQ

ADV. TOLO - ALE
Page 233 of 361

HELD AT MASERU
LC/31/12

SEFATSA MOKONE
APPLICANT
And
G 4 S CASH SOLUTIONS (PTY) LTD
RESPONDENT
JUDGMENT
Claim for discrimination in payment of wages. Respondent raising two
preliminary points Court upholding the preliminary points and dismissing the
matter.
1. This is a claim for discrimination in the payment of wages. It was heard
on this day and judgment was reserved for a later date. Applicant was
represented by Mr. Masoebe, while Respondent was represented by
Advocate Mohapi. The background of the matter is that Applicant had
referred a claim for underpayments with the DDPR. The matter was
conciliated upon and conciliation having failed, it was brought for
adjudication before this Court.
2. On the date of hearing, Respondent raised two preliminary points, in
terms of which it argued that it was the wrong party to be sued. It has
further argued that the Applicants pleadings did not disclose the cause of
action. On the premise of these points of law, it prayed that the matter be
dismissed. Applicant had then raised an objection in relation to the
second preliminary point on the ground that it was only being raised for
the first time from the bar. His objection was dismissed for the reason
that a point of law may be raised at any point. We however, offered to
adjourn the proceedings to allow him to prepare his response. This option
was rejected and as such the matter proceeded in arguments. Both
parties were given the opportunity to make their address. Having heard
their submissions, Our full judgment is thus in the following.
3. On the first preliminary point, it was Respondents case that it had been
wrongly sued in casu. It was argued that Applicant was employed by a
company called Securicor whose name was later changed to G4S Security
Services Lesotho (Pty) Ltd. The Court was referred to annexure C and
B1. It was submitted that Applicant continues to maintain employment
with the same company to date.
Page 234 of 361
4. It was added that Respondent herein is G4S Cash Services Lesotho (Pty)
Ltd, which is the former Fidelity Services Group Lesotho, which is
commonly referred to as G4S Cash Solutions, as Applicant has put. The
Court was referred to annexure B2. It was argued that on this basis,
Respondent had been improperly sued as G4S Security Services and G4S
Cash Services are two distinct legal entities, as annexure B indicates.
5. In reply, Applicant submitted that G4S in one company with 3 different
divisions which offer the security services, cash in transit services and
alarm systems respectively. It was further submitted that annexure C,
is an expired contract of employment between Applicant and Securicor,
as it ran for six months from June 2005. It was argued that this contract
is inapplicable in casu.
6. Applicant argues that G4S Security Services and G4S Cash Services are
divisions within the mother company called G4S. If this argument by
Applicant is to hold, it would therefore mean that he agrees with
Respondent in principle that G4S Cash Services is the wrong party to sue
as it is not a legal entity that is capable of suing or being sued, by virtue
of the fact that it is only a division within a legal entity called G4S.
7. Further, Applicants argument would also mean that he is guilty of nonjoinder of the interested party in these proceedings. If G4S is the mother
entity of the three alleged divisions, then Applicant ought to have claimed
against G4S and also cite either G4S Security Services or G4S Cash
Services as a division/s within G4S in which he is placed. Having failed to
do so would mean that Applicant is guilty of non-joinder of an interested
party.
8. The above points notwithstanding, Respondents claim for being
incorrectly sued is not based on its legal capacity as a division. Rather it
denies being a division and argues that it is not the employer of
Applicant. From the pleadings as well submission of both parties, We
have been able to discern that G4S Security Services and G4S Cash
Services are two distinct legal entities. We say this because, Applicant
does not dispute the validity of annexure B1 and B2, at least directly if
he does. These are certificates of incorporation in respect of G4S Security
Services and G4S Cash Services, respectively.
9. These certificates essentially confirm the argument by Respondent that
both G4S Security Services and G4S Cash Services are distinct legal
entities and not divisions within the alleged G4S. What therefore remains
for determination is who among the two is the employer of Applicant. In
Our view, the fair and equitable determination of whether Respondent is
the right party to be sued lies in whether Applicant was employed by G4S
Cash Services or G4S Security Services This determination cannot be
simply made from the affidavits of parties but rather requires the leading
of viva voce evidence.
Page 235 of 361
10. On the second preliminary point, Respondent submitted that

Applicants pleadings did not disclose the cause of action. In
amplification, it was submitted that none of the factors that constitute
discrimination listed under section 5(1); 196(1) and 235 of the Labour
Code Order 24 of 1992 as amended, were alleged by Applicant in his
pleadings. It was argued that it is trite law that for a claim for
discrimination to succeed, it must be based on the factors listed in the
said section.
11. In support of the above argument, the Court was referred to the cases
of Mohapi Khaile v Lesotho Electricity Corporation LC/REV/63/2010;
LAC/A/06/2005; and Keneiloe Matela & another v Principal Officer, Public
Officers Defined Contribution Pension Fund & others LC/28/2012. It was
submitted that the allegations by Applicant are not discrimination as
contemplated by the Labour Code (supra) and that as a result, the matter
stands to be dismissed.
12. Applicants reply was that in labour law, litigants are
within the provision of the Labour Code (supra) in making
discrimination. It was further submitted that while it may
premises of Applicant claim is not reflected under sections
and 235 of the Labour Code, the conduct of Respondent was
for discrimination as the pleadings reflect.
not limited
a claim for
be that the
5(1), 196(1)
a clear case
13. An exception is raised where one of the parties objects to the pleadings
of the other as a whole. In casu, Respondent objects to the pleadings of
Applicant as a whole on the ground that they do not disclose his cause of
action. Where a party raises an objection of this nature, it is assumed in
law that such a party, accepts the correctness of the averments made but
then argues that they do not make out a case in law (see Daniels H.,
(2002) (6th ed.) Becks Theory and Principles of Pleadings in Civil Actions
Durban: Butterworths).
14. In casu, Respondents argument is premised on the definition of
discrimination in terms of sections 5(1) and 196 (1); and section 235 of
the Labour Code Order (supra). Section 5(1), on the one hand, provides for
discrimination based on race, colour, sex, marital status, religion,
political opinion, national extraction or social origin; while section 196(1)
provides for discrimination based on union membership, and section 235
relates to discrimination based on a persons HIV and AIDS status.
15. We acknowledge that Applicant does not deny the allegation that his
grounds are not based on the facts listed under the said sections of the
Labour Code Order (supra). Rather, he confirms the position but then
seeks to argue that parties are not confined to the definition of
discrimination in the Labour Code (supra). Applicants argument cannot
sustain for a simple reason that it does not find support in any law of
Page 236 of 361
Lesotho. Rather, the plethora of authorities relied upon by Respondent

are in opposition of the proposition.
16. In the cases of Mohapi Khaile v Lesotho Electricity Corporation
LC/REV/63/2010; and Remaketse Molaoli & 9 others v Lesotho Highlands
Development Authority LAC/A/06/2005, both the Labour Court and the
Labour Appeal Court held that a claim for discrimination must be limited
to the factors listed under the Labour Code (supra). Again in the Labour
Court decision in Keneiloe Matela & another v Principal Officer, Public
Officers Defined Contribution Pension Fund & others LC/28/2012, the
Court held that the provisions of the Labour Code Order (supra), on
discrimination are very restrictive and that a claim for discrimination
must be made in terms of the factors listed therein.
17. The above being the case, having failed to premise his claim on the
factors listed in relevant sections of the Labour Code Order (supra), the
averments of Applicant do not make out a case for discrimination as
contemplated by the Labour Code Order (supra). Consequently, We find
that Applicants pleadings do not disclose a cause of action. In view of
this finding, this matter is dismissed and We no longer deem it necessary
to call for viva voce evidence, to determine the employment of Applicant.
18. Respondent had asked for costs. It had argued that it is a cardinal rule
that a successful party to litigation must be awarded costs, unless there
are exceptional circumstances. It was submitted that more often than not
the Labour Court relies on section 74 of the Labour Code Order (supra), in
dealing with the issue of costs. It was argued that section 74 only applies
to cases of unfair dismissal, whereas the case at hand deals with a claim
for discrimination in payment of wages. It was argued that the Court
should follow the cardinal rule. Applicant rejected the suggestions and
prayed that no order be made.
19. We wish to highlight that while section 74 relates to the award of costs
in claims for unfair dismissal, this is not the basis of every decision on
this issue. The Labour Court is a specialised Court of equity and fairness
that serves four main purposes namely, the advancement of economic
development, the attainment of social justice and labour peace as well as
the promotion of workplace democracy. In Our view, if costs were to be
awarded in the manner proposed by Respondent, that would be contrary
to these purposes.
20. As a result, an award of costs is made in extreme circumstances of
abuse of the processes of Labour Court. The approach suggested by
Respondent is often adopted in the ordinary Civil Courts. We have often
stated that an award for costs before this Court may be made in
circumstances where, among others, there is vexatious conduct or
frivolous behaviour of parties. Respondent does not base his request on
either of the two and neither do We find any. Consequently, We decline to
make an award of costs.
Page 237 of 361
AWARD
a) That the Applicants claim is dismissed; and
2013.
T. C. RAMOSEME
Mrs. MOSEHLE
Miss. LEBITSA
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. MASOEBE
ADV. MOHAPI
Page 238 of 361

HELD AT MASERU
LC/45/12

LIBE MOTHOLO
THABO NKUTU
RAMPAI RAMMULANE
MASHOAI LABANE
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
And
THETSANE HARDWARE BUILDING
MATERIAL (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unfair dismissal for operational reasons. Parties agreeing on
payment of compensation in full and final settlement of the matter parties
disagreeing on how the compensation amount is to be paid. Parties requesting
the Court to determine how payment is to be made. Parties holding a prehearing conference and highlighting common cause issues and issues for
determination. Court directing Respondent to make payments in 6 instalments
equal to the last salaries of Applicants until whole amounts are fully paid out.
1. This dispute involves claims for unfair dismissal on the ground of
operational reasons of the employer. It was heard on this day and
judgement was reserved for a later date. Applicant was represented by
Mrs. Leche-Lechesa from TSAWU, while Respondent was represented by
Adv. Monesa. The brief background of the matter is that, Applicants
referred claims for unfair dismissal for operational reasons with the
DDPR, in terms of section 227 of the Labour Code Order 24 of 1992, as
amended. The matter was duly conciliated upon and conciliation having
failed, it was referred to this Court.
2. At the commencement of the proceedings, parties informed the Court that
they had reached settlement of the matter in the following,
a) That Thabo Nkutu be paid M14,046.15;
b) That Libe Moholo be paid M9,011.38;
c) That Rampai Rammulane be paid M9,476.72;
d) That Mashoai Labane be paid M9,626.92; and
e) That all these amounts are in full and final settlement of the matter.
Page 239 of 361
3. However, parties could not agree on how the said amounts were to be
paid. Applicants claimed payment of the amounts in three instalments.
According to Applicants, Respondent was expected to pay M5,000.00 on
the 1st of November in respect of 1st, 3rd and 4th Applicants, and the
balance in two equal instalments, on or before the end of every month,
commencing November 2013 to December 2013. In respect of the 2nd
Applicant, Respondent was expected to pay M9,000.00 on the 1st
November 2013, and the balance in two equal instalments, as is the case
with the other Applicants. Respondents counter argument was that it
could only be able to pay the amounts in six equal instalments
commencing end of November 2013, due its financial situation.
4. In view of this above, parties then requested the Court to make a
determination on this issue. The following issues were identified as
common cause,
a) That the salaries of 1st to 4th Applicants were M1,650.00; M2,500.00;
M1,600.00; and M1,750.00, respectively;
b) That all Applicants remained unemployed since their termination in
February 2013;
c) A copy of annual financial statement of Respondent for the year ended
31st March 2013, be admitted as representing the financial position of
Respondent as at that time; and
d) That parties do not need to adduce any further evidence, safe to rely
on the issues agreed upon for their submissions.
In the light of this above, We now proceed with Our judgment.
5. It was briefly submitted on behalf of Applicant that the financial report
shows that Applicant can be able to pay the amounts agreed upon from
their profits. It was added that any other mode of payment, other than
that claimed by Applicants, will greatly prejudice them considering that
they have been without employment for the past 9 months. The Court
was then requested to consider the entire financial report in making its
conclusion.
6. In reply, it was submitted on behalf of Respondent that, in terms of the
financial report of Respondent, it only made a profit of, plus/minus,
M61,000.00, in the financial year ending 31st March 2013. It was argued
that this Cleary showed that the Respondent Company was not doing
very well in business. It was argued that in the light of this, it would be
impossible for it to pay the amounts as claimed by Applicant.
7. It was highlighted the required upfront instalments claimed by the 1st
November 2013, were to the tune of M24,000.00. Respondent submitted
that this amount is a huge portion of the profits made by Respondent. It
was further submitted that if an order is made, as claimed by Applicants,
it would negatively affect the wellbeing of the current employees of
Respondent as it might have to shut down. It was added that the Court
Page 240 of 361
does not only have the responsibility to ensure the wellbeing of the
Applicants, but also that of the current employees of the Respondent.
8. In making its decision, this Court is vested a discretion, which must be
exercised judiciously. The exercise of judicial discretion was unpacked by
the learned Mosito AJ, in Tsotang Ntjebe & others v LHDA and Teleng
Leemisa & others v LHDA LAC/CIV/17/2009, as follows,
The sphere of judicial discretion includes all questions as to what is right,
just, equitable, or reasonable - so far as not predetermined by authoritative
rules of law but committed to the liberum arbitrium of the Courts. A
question of judicial discretion pertains to the sphere of right, as opposed to
that of fact in its stricter sense. It is a question as to what ought to be, as
opposed to a question of what is. Matters of fact are capable of proof, and
are the subject of evidence adduced for that purpose. Matters of right and
judicial discretion are not the subject of evidence and demonstration, but of
argument, and are submitted to the reason and conscience of the Court.
In the light of this authority, We shall now proceed to address the merits
of the matter.
9. We have perused the financial report of Respondent and confirm that a
figure of M61,039.00, but same is reflected as a loss for the financial year
ended 31st March 2013. We have also noted that in the past year, the
total profits were M91,117.00. This being the case, it is without doubt
that financial position of Respondent reflects a loss, in terms of profits, in
the year ended 31st March 2013. In view of this said, it would only be
unfair to expect Respondent to meet the demands of Applicants under its
current financial position. We are of the view that to do so, would
negatively affect Respondents ability to operate and consequentially affect
the interests of the current employees of Respondent. As Respondent has
correctly pointed out, the responsibility of this Court is not only limited to
the Applicants, but also to the Respondent as well as its current
employees.
10. Respondent has indicated that it will only be able to pay the
settlement amounts in six equal instalments. In view of the financial
position of Respondent, We find that payment in six instalments would be
appropriate. We have determined the six equal instalments proposed by
Respondent, are short of a very small margin to the monthly salaries of
Applicants, which is no more than M200.00 in each case. Having
considered all relevant facts before Us, and the circumstances
surrounding the matter, We find that it would be right, just, equitable and
reasonable that the instalment amounts be equal to the salaries of
Applicants, as at the time of their termination. It is Our view that
Respondent will be able to surmount to the impact of this increase, given
the margin involved.
11. No order as to costs has been sought by parties and neither have We
found any circumstances that warrant any. It is a trite principle of law
that parties can and must only be given the relief that they seek (see
Page 241 of 361
Phetang Mpota v Standard Bank LAC/CIV/A/06/2008. As a result any

act contrary to this trite principle would amount to an irregularity
reviewable before a higher Court. We therefore do not make any order as
to costs.
AWARD
following terms:
a) That the Respondent pay the settlement amounts in instalments equal to
Applicants monthly salaries, at the time of the termination of their
employment;
b) That all instalments be paid on or before the last day of every month
commencing November 2013, to on or before the last day of April 2014;
c) That Respondent must inform Applicants when the payments are ready
for collection, either on or before the date of payment; and
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF NOVEMBER
2013.
T. C. RAMOSEME
Mr. S. KAO
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MRS. LECHE-LECHESA
ADV. MONESA
Page 242 of 361

HELD AT MASERU
LC/58/12

KHAUHELO MOENO
APPLICANT
And
SECURITY LESOTHO (PTY) LTD
RESPONDENT
JUDGMENT
Application for rescission of judgment obtained by default. Application being
unopposed Court proceeding on the basis of the unchallenged factual
averments of Respondent. Respondent failing to meet the requirements for a
rescission application Court dismissing application and reinstating its
judgment.
1. This is an application for the rescission of judgment obtained by default
on the 13th May 2013. The matter was heard on this day and judgment
was reserved for a later date. Parties herein are cited as they appear in
the main claim. Advocate Mohapi appeared for Respondent and Advocate
Nono appeared for Applicant. The background of this matter is
essentially that Applicant lodged an unfair dismissal claim with the
Labour Court. In terms of his originating application, he sought
compensation of 24 months wages. The matter proceeded in default due
to non-attendance on the part of Respondent.
2. However, the having considered Applicants evidence and submissions,
the Court made an award of 5 months wages, in favour of Applicant
instead. It is the said order that Respondent seeks to have rescinded. The
rescission application is not opposed and this was confirmed by
Applicants representative. This essentially means that the factual
averments of Respondent remain unchallenged and that the Court will
proceed to apply the law on them, as they appear in the Respondents
pleadings. Our judgment is thus in the following.
3. Respondents case is that it was served with the originating application to
the Applicants claim for unfair dismissal. It then passed them onto its
representatives for action. Respondent was only shocked to later learn
that judgment had been obtained by default in the matter. It also learned
that its representative had failed, contrary to its mandate to oppose the
matter. It was added that there is a bona fide defence to the main claim in
Page 243 of 361
that Applicant was duly notified about her hearing but that she decided
not to attend. Further, that Applicant had indeed participated in an
unlawful strike hence her dismissal.
4. It was further added that this Court had committed a number of
irregularities, among which is the fact that Applicants representative
seems to have been the one who was testifying for and on behalf of
Applicant, which was improper. Further, that the Court had turned itself
into a handwriting expert by comparing and concluding that the
signatures in issue belonged to one and the same person. On these bases,
it was prayed that this application be granted.
5. There are three requirements that must be met in order for a rescission
application to sustain. These requirements were laid out in the case of
Loti Brick (Pty) Ltd v Thabiso Mphofu and Others 1995 LLR at 446-550, as
follows,
(a) The applicant must give a reasonable explanation for his default;
(b) The application must be bona fide and not made with the intention of
merely delaying the plaintiffs claim;
(c) the applicant must show that he has a bona fide defence to the
plaintiffs claim, it being sufficient if he sets out averments which, if
established at the trial, would entitle him to the relief asked for, he need
not deal with the merits of the case or produce evidence that the
probabilities are actually in his favour (see Grant v. Plumbers (Pty) Ltd.
1949 (2) S.A. 470).
6. In casu, Respondent has indeed shown that it initiated the processes to
defend the claim lodged by Applicant. It is clear from Respondents
pleadings that, thereafter, it took no further steps to ensure that its
representative took all the necessary steps to actually have the matter
defended. This essentially explains Respondents surprise when it was
served with the order of this Court for enforcement. It may well be that
Respondent was surprised at the sight of the court order, but that was
the result of inactiveness on its part in this matter. It is the inactiveness
on the part of Respondent that lead Us to conclude that Respondents
defence was nothing, but intended to delay Applicants claim.
7. From the submissions of Applicant, it is clearly attempting to shift the
blame for failure to attend on its attorneys. In Our view, this attempt
would have been valid if these proceedings were by way of motion, in
which case the presence of a party is not required once they have given
instructions and deposed to all relevant documents. However, in casu, the
circumstances involve a trial, which by its nature requires the presence of
parties to give evidence of their own accounts. This cannot be done by a
representative on behalf of its client but by the client himself.
8. In view of this said, We find that the explanation for default on the part of
Respondent is not satisfactory thus rendering the reasons for its default
inexcusable. Whereas there are circumstances under which a party may
Page 244 of 361
rely on negligence of its representative to explain its default, as shown

above, that cannot sustain as an excuse in casu. It would set a very
ruinous precedence if this Court were to allow parties to freely rely on the
fault of their representative to exonerate themselves from liability.
9. On the issue of the prospects of success, We are convinced that
Respondent has a defence to the Applicants claim in the main action. It
has set out facts which if established at trial may sustain its defence.
That notwithstanding, the mere fact that a party has prospects of
success, does not mean that this Court will readily grant the application
for rescission. We say this because, it is an established principle of law
that where an explanation for default is not satisfactory, it renders the
strong prospects of success to pale into insignificance (see Thabo Teba &
31 Others vs. LHDA LAC/CIV/A/06/09).
10. In view of this said above, We therefore find that the Respondents
prospects of success have been weakened by its unsatisfactory
explanation for default, which has in turn led Us to conclude that not
only the Respondents claim but also this application, are meant to delay
Applicants claim. On the issue of alleged irregularities in the judgment of
this Court, there are procedures laid out in law that a dissatisfied party
my invoke. A proper procedure is by way of review and not a rescission.
For this Court to attempt to address this issue, that would be tantamount
to an attempt to review its own judgement. Consequently, we decline to
make a pronouncement on this issue.
AWARD
a) That the application for rescission is refused;
b) That the judgment of this Court is reinstated; and
2013.
T. C. RAMOSEME
Mr. MOTHEPU
Mr. KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NONO
ADV. MOHAPI
Page 245 of 361

HELD AT MASERU
LC/33/13

PABALLO KHOETE
THOLOANA MOTA
1st APPLICANT
2nd APPLICANT
And
SUPREME MOTORS SPARES (PTY) LTD
ZHONG HUA WANG
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for committal and punishment for contempt of Court. Respondents
failing to oppose application Applicant applying for judgment by default.
Court finding Respondents in contempt of Court Court ordering a punitive
fine in terms of section 239 of the Labour Code Order 24 of 1992, as amended.
Court further finding that continued failure to comply attracts more fine Court
further ordering a fine after every 7 days of continued failure to comply from
receipt herewith, until the order for reinstatement is complied with.
1. This is an application for committal and punishment for contempt, made
in terms of section 24(2)(j) of the Labour Code Order 24 of 1992, as
amended. It was heard on this day. Applicants were represented by Mr.
Semuli from TSAWU and there was no appearance for Respondents. The
background of the matter is that Applicants referred claims for unfair
dismissal and unpaid monies, with the DDPR. An award was issued on
the 11th day of July 2012, in their favour by default. Thereafter, 1st
Respondent lodged an application for rescission in respect of the award
obtained by default. The rescission application was dismissed through an
arbitral award on the 14th November 2012.
2. On the basis of the latter award, Applicants approached this Court for
enforcement of the orders in the main arbitral award, and in particular,
the order for reinstatement. The application was not opposed. Applicants
then filed an application for judgment by default and the matter was then
set down for hearing. On the date of hearing, Respondents were not in
attendance and the matter proceeded by default. Having heard and
considered the submission of Mr. Semuli for Applicants, We made a
decision in favour of Applicants with brief reasons and promised a full
judgment at a later date. Our full judgment is thus in the following.
Page 246 of 361

3. The evidence of Applicants is that Respondents were served with the
arbitral award in both the main claim in referral A0463/2012, as well as
the award in the rescission application in referral A0463/2012(b). It was
stated that the said awards were served upon Respondents on the 14th
August 2012 and 17th January 2013, respectively. According to
Applicants, the award in referral A0463/2012, ordered their
reinstatement to their former positions, while the award in referral
A0463/2012(b) dismissed the application for rescission by 1st Respondent
and reinstated the initial arbitral award.
4. When Applicants presented themselves for duty, they were sent back by
the 2nd Respondent, who is the managing director of 1st Respondent. They
had been returned on the ground that 2nd Respondent was in the process
of having the arbitral award reviewed. Since Applicants were returned,
Respondents have not done anything to have the matter reviewed, hence
this current application for committal and punishment. Applicant
submitted that the failure to comply on the part of Respondents is both
wilful and mala fide, as no further process has been taken to either
comply or have the matter reviewed.
5. In terms of Our law, the awards of the DDPR carry the same effect as the
orders of this Court. This is reflected under section 228E(5) of the Labour
Code Order (supra), as thus,
An award issued by the arbitrator shall be final and binding and shall be
enforceable as it if was an order of the Labour Court.
The effect of this provision is that an allegation of contempt against an
award of the DDPR, is by operation of the law an allegation of contempt
against the order of this Court.
6. Where contempt is being perpetuated against an order of this Court,
section 24(2)(j) of the Labour Code (supra), provides direction on how to
deal with the a contemptuous party. The provision of this section are as
follows,
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.
7. From the submissions and evidence of Applicants, Respondents are
clearly not taking the award of the DDPR, which is also an order of this
Court, with the level of seriousness that is required of them. We say this
because not only have they failed to comply with same, they have also not
bothered to explain their default when called by this Court. In Our
opinion, their behaviour is illustrative of both a wilful and mala fide
failure to comply.
8. Both a wilful and mala fide refusal to comply with an order of this Court
are serious offences, which if not dealt with could undermine the
administration of justice and bring it into disrepute. We are therefore of
Page 247 of 361
the opinion that such behaviour must be punished in order to prevent it

from recurring in future. As court of law, this Court is vested with the
power to punish behaviour through the imposition of a fine or
imprisonment.
9. It is Our view that, punishment by imprisonment is the last remedy,
which should only be resorted to in extreme circumstances of improper
behaviour. The circumstances in casu, are not so extreme as to warrant
the punishment of imprisonment. There is a measure available, that is
short of imprisonment, which has the capacity to induce Respondent to
comply with the award of the DDPR. We therefore find that the
appropriate punishment for failure to comply with the arbitral award is
the imposition of a fine.
10. Punitive awards of fines in respect of offences for which no specific
penalty has been provided for, are contained in section 239 of the Labour
Code (supra). The provisions of section 239 are as follows,
Any person convicted of an offence against a provision of the Code for
which no specific penalty has been provided shall be liable to a fine of six
hundred maloti or to imprisonment for three months or both.
AWARD
a) That the 1st Respondent is ordered to pay a fine of M600.00 into
government coffers;
b) That the 2nd Respondent is ordered to pay a fine of M600.00 into
government coffers, failing which he shall be imprisoned for three
months;
c) That the said fines shall be paid into the government account at the
Labour Department within 7 days of receipt of this order;
d) That failure to comply to comply with the award of the DDPR is a
continuing office; and
e) That Respondents shall be liable for further fines of M600.00 each, failing
which there will be imprisonment for three months, in the case of 2nd
Respondent, after every 7 days from receipt herewith, for as long as DDPR
order for reinstatement of the Applicants, would still not be complied
with.
2013.
T. C. RAMOSEME
Mrs. THAKALEKOALA
Mrs. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. SEMULI
NO APPEARANCE
Page 248 of 361

HELD AT MASERU
LC/REV/25/2012
A0621/2011

MOLAHLI EDWIN MOLAHLI
APPLICANT
And
MORIJA PRESS BOARD
DDPR ARBITRATOR
(M. MOLAPO MPHOFE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the 2nd Respondent arbitral award. 1st Respondent
making an application for condonation from the bar to file its answering
affidavit. 1st Respondent not providing a satisfactory explanation for the delay
in filing its answer court finding period of over one year delay inordinate - 1st
Respondent further not pleading prospects of success. Court dismissing the
application for condonation and directing that the matter proceed in the merits.
Court not finding merit in the grounds of review raised on behalf of Applicant
Court dismissing the review application. No order as to costs being made.
1. This is an application for the review of the 2nd Respondent arbitral award.
It was heard on this day and judgment was reserved for a later date.
Applicant was represented by Advocate Mosuoe while Respondent was
represented by Advocate Mabula. The brief background of the matter is
that Applicant had referred a claim for unfair with the 2nd Respondent,
wherein he challenged both the substantive and procedural fairness of
his dismissal. The matter was heard and an award was issued on the 6th
March 2012, dismissing his referral.
2. Thereafter, Applicant initiated the current review proceedings to have the
said award reviewed, corrected or set aside herein. Five grounds of review
were raised on behalf of Applicant. The review application was not
formally opposed, as no answer had been filed on behalf of Respondent.
However, at the commencement of proceedings, 1st Respondent
representative made an application for condonation to be allowed to file
an answering affidavit out of time. Both parties made their representation
after which We delivered a ruling refusing to accept the 1st Respondent
answering affidavit. Our full reasons are recorded in the following.
Page 249 of 361

Condonation for late filing
3. It was argued by Advocate Mabula, on behalf of 1st Respondent, that at all
material times he was under the impression that the answering papers
had been filed. He stated that he had given such a mandate to his clerks,
after preparing same. He added that this Court is a master of its own
rules and that it can condone any breach of its rules provided there is
sufficient cause. He referred the Court to Rule 27 of the Labour Court
Rules of 1994. He maintained that there is sufficient cause and added
that 1st Respondent should be indulged, particularly as it has expressed
its intention to oppose the matter.
4. The application was opposed by Advocate Mosuoe, who argued that the
late filing an answer should not be condoned. He submitted that over a
year had lapsed from the time that they had served their application upon
1st Respondent. He added that 1st Respondent cannot be heard to argue
that it was under the impression that an answer had been filed, especially
when it was his responsibility to ensure that their pleadings were in order
prior to date of hearing.
5. He argued that this Court cannot allow Advocate Mabula to shift a blame
for failure to file on a clerk, when he failed on his obligations. He argued
that clearly 1st Respondent had no interest in the matter, hence its failure
to file an answer in time. He added that if this application is granted,
Applicant will be greatly prejudiced in the conduct of 1st Respondent
clearly shows its intention to delay finalisation of the matter.
6. We found that there was no sufficient cause for failure on the part of 1st
Respondent to file its answering affidavit. We agreed with Advocate
Mosuoe that it was the responsibility of 1st Respondent to ensure that its
pleadings were in order prior to the date of hearing. In Our view the said
responsibility is two pronged nature, in that it is not only towards
themselves but also towards the Court. This places an even heavier
obligation on Respondent to ensure that pleadings are in order in
preparation for the hearing.
7. It was therefore inexcusable for 1st Respondent to have failed on its
obligation and only try to cure fault on its part by shifting the blame to its
clerk. We were of the opinion that 1st Respondent had clearly
demonstrated a high level of lack of seriousness in these proceedings.
Evidence to this was the fact that, even this application for condonation
for late filing of the answer, was made from the bar. This clearly
illustrated that this matter had been abandoned and that 1st Respondent
no longer had an interest in it. We were inclined to agree with Applicant
that 1st Respondent was using the processes of this Court to delay
finalisation of this matter.
8. Moreover, notwithstanding the absence of a reasonable explanation for
the delay, We found that 1st Respondent had failed also to satisfy one of
Page 250 of 361
the foremost requirements for an application for condonation, namely the

prospects of success. The importance of this element is to be seen in the
case of Phethang Mpota v Standard Lesotho Bank LAC/CIV/A/06/2008.
In this case, the Court noted that, although the requirements for the
granting of a condonation application are interrelated, the absence of the
prospect of success makes it pointless to grant an application for
condonation.
9. In casu, no prospects of success were alleged by 1st Respondent as it has
only attempted to explain the delay in filing the answer, which
explanation We found to lack merit. By necessary implication, this means
that it becomes pointless to grant the application for condonation under
the circumstances. We further considered the lapse of time from the time
that Applicant was aware of the review proceedings to the time that they
seek condonation. The period is inordinate as it is over a year. On the
basis of all this said above, We therefore refused the application for
condonation and directed that the matter proceed in the merits
unopposed.
The merits
10. It was submitted on behalf of Applicant that the learned Arbitrator
failed to consider that the General Manager, who appeared on behalf of
1st Respondent, had no authority to appear before the DDPR. It was
argued that it is a requirement of law that there, where one of the
litigants is a juristic persons, then there must be an authority to
represent, which must be backed by a resolution of the board of directors.
In support of the above proposition, the Court was referred to the case of
Mantsoaki Malakane v Standard Lesotho Bank LC/REV/525/2006
(unreported).
11. It was further argued that worse still was the fact that there was
nothing apparent that the General Manager had authority to represent
the 1st Respondent Company. It was added that evident to this is the fact
that all times during the arbitration hearing, the General Manager would
refer to himself as the Chief Executive Officer while at times he would
maintain his rank of General Manager. The Court was referred to page 11
of the record, wherein the following exchange is recorded,
Q: At the beginning of the proceedings, you promised to furnish us with a
document that authorises us to provide us with such document but you
never did?
A: Yes, I am representing. I do not recall that i ever made such a promise.
Q: Now that you do not recall, you will agree with me that we never
received such a resolution?
A: Yes.
12. Whenever it is alleged that the learned Arbitrator ignored or
disregarded certain evidence, of an applicant party to review proceedings,
the Court must be referred to a specific portion of the record of
proceedings, wherein the ignored or disregarded evidence is reflected.
Page 251 of 361
This requirement is premised on the fact that the party against whom
allegations of irregularities are made, is not and cannot be brought before
Court to state their side. This abnormally is cured by reference to the
record of proceedings to prove the allegations of irregularities. This is the
essence of a record of proceedings in review matters, irrespective of
whether the review is opposed or not. The above extract suggests that
Applicant was challenging the right of 1st Respondent representative on
the ground of absence of a resolution. As a result, other than its absence,
there was no further ground upon which the challenge was based. This
essentially means that all other arguments of challenge alleged by
Applicant are merely bare allegations of facts.
13. In the case of Mokone v Attorney General & others CIV/APN/232/2008,
the Court had the following to say in relation to bare allegations,
It is Our view that this principle equally applies in relation to claim by
parties. As a result, where a party has barely alleged a claim that is not
unconvincing and should be considered no claim at all.
14. On the issue of the absence of the resolution, it is clear from the extract
that it was never raised as a challenge before the learned Arbitrator.
Applicant merely brought it up but never took it further. No explanation
has been given by Applicant, as to why the argument was never advanced
and there is nothing to suggest that the learned Arbitrator prohibited
parties from arguing it. As a result, the learned Arbitrator was right in
ignoring it, moreso given that it only came up during the cross
examination of the 1st Respondent representative, one Chele. At the time
that it was brought up, the proceedings had by far advanced, suggesting
that it was not an issue.
15. It was further argued that the learned Arbitrator erred in that She
admitted hearsay evidence. In amplification, it was submitted that the
learned Arbitrator relied on the evidence of one Mokoenya Chele, to find
the dismissal of Applicant fair. It was added that the evidence of Chele
was not firsthand but rather what he was told. It was stated that in giving
his evidence, he would indicate that what he was testifying to, was what
he was told. It was added that the learned Arbitrator relied on
documentary hearsay evidence tendered by the same witness.
16. It was further submitted that Chele narrated the evidence of one
Malipuo Molibeli, which was led in the initial plant level disciplinary
hearing. The Court was referred to the minutes of the initial plant level
hearing, in support. When asked where this evidence being referred to is
reflected in the record of proceedings before the DDPR, Applicant
Page 252 of 361
indicated that he could not point the Court to a particular page, where
this is shown.
17. While the admission and reliance on hearsay evidence is a reviewable
irregularity, the averments of Applicant are no more than just bare
allegations without supporting facts. We have dealt with this issue in
addressing the first ground of review. We therefore express the same
sentiment that this is just a bare allegation of a claim that lacks
supporting evidence in order to sustain. To re-deliberate on this issue
would be no more than an academic exercise, which would not serve any
purpose in casu. We accordingly invoke the authority in Mokone v
Attorney General & others (supra) and dismiss this review ground.
18. It was further argued that the learned Arbitrator erred in that She
failed to take into consideration the evidence of one Chele, during Cross
examination. It was stated that in this evidence, Chele had conceded that
he did not suggest to Applicant, during cross examination in the initial
hearing, that he never gave him permission to sell the Compact Discs.
The Court was referred to page 12 of the DDPR record of proceedings.
19. It was further submitted that had the learned Arbitrator considered
the above said evidence, She would have been influenced into finding that
Applicant was not guilty of the offence that he was charged and dismissed
for. It was added that Applicant was charged and dismissed for producing
and distributing Compact Discs, containing 1st Respondent material, for
personal gain. Further that this being the case, a consideration of the
evidence of Chele would have altered the conclusion of the learned
Arbitrator.
20. We do confirm that the evidence at page 12 of the record is recorded as
Applicant suggests. From the submissions of Applicant, he is attempting
to argue that he was authorised to produce and distribute the said
compact discs. However, We fail to find how having considered this
evidence would have altered the finding of the learned Arbitrator.
According to Applicant, he was charged and dismissed for producing and
distributing 1st Respondent material for personal gain.
21.
Assuming that Applicant was authorised to produce and distribute,
this does not in any way address the second aspect of his charge and
eventual dismissal, namely the issue of personal gain. The decision not to
find Applicant guilty, merely on the premise that he was authorised to
produce and distribute, while ignoring the latter aspect, would have been
irrational. On this premise, third ground of review equally fails.
22. It was also argued that the learned Arbitrator erred in that She
ignored, disregard and/or failed to consider the evidence of a job
description of Applicant. It was added that this evidence would have
influenced the learned Arbitrator into finding that it was the duty of
Applicant to produce and distribute 1st Respondent materials. The Court
Page 253 of 361
was referred to page 8 of the record where reference is made to

Applicants job description, and in particular clause 1.7 thereof.
23. This review ground is related to the third ground of review in that it
deals with the right of the Applicant to produce and distribute the 1st
Respondent materials. We have already dealt with this issue and have
pronounced Ourselves that even if the learned Arbitrator had considered
it, it would not have altered Her conclusion. Essentially, to deal with this
issue again, will only be for academic purposes which would not serve
any purpose in casu. Consequently, We declined to comment any further,
safe to reiterate Our stance in dealing with the 3rd ground of review.
24. On the last ground of review, it was argued that the learned Arbitrator
erred in that She failed to consider that the matter was still pending
before the plant level committee, at the time that the proceedings before
the DDPR were continuing. The Court was referred to page 13 of the
record of proceedings in support. It was submitted that the record reflects
that the matter was still pending before the plant level committee at the
time that it was referred before the DDPR.
25. Page 13 of the record reflects the cross examination of Chele by
Applicant. It reflects the following exchange,
Q: What are you holding?
A: A letter from Mongoli oa Phethahatso Rev. G. L Ramatlapeng to Mr
Molahli appeal for your dismissal.
Q:When is the date of letter?
A: 2nd August 2010
Q:Can you say that date is long after the applicant has referred the matter
to DDPR?
A: Perhaps.
Q:After having read this letter you will agree that Mr Molahlis matter is still
pending before KEL?
A: I do not know.
26. Before We deal with the argument of Applicant on this issue, We first
wish to comment that there is nothing in the extract that suggests that
the matter was still pending at the time that the arbitration proceedings
were going on. At best the extract suggests that there was some form of
communication, on the 2nd August 2010, regarding an appeal in relation
to the Applicants dismissal, after the matter had been referred, and no
more than that. In the light of this said, the argument by Applicant that
the matter was still pending during the arbitrator proceedings, does not
find support in the above extract.
27. Moreover, this issue only came during the cross examination of
Respondent witness, one Chele and was never taken further for the
learned Arbitrator to consider. Therefore, the learned Arbitrator cannot be
faulted for having failed to consider an issue that was never raised as a
challenge. We further reiterate Our position in relation to the first ground
Page 254 of 361
of review that what was not raised as a challenge can safely be presumed
not to be an issue. Consequently, this argument fails to sustain.
AWARD
a) The application for review is refused;
b) The award in A0647/2010 remains in force;
c) That the said award be complied with within 30 days of receipt herewith;
and
d) There is no order as to costs.
2013.
T. C. RAMOSEME
Mr. S. KAO
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MOSUOE
ADV. MABULA
Page 255 of 361

HELD AT MASERU
LC/36/2013

MABOKANG MOHAFA
APPLICANT
And
GOOD TRADING SUPERMARKET (PTY)
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Claim for unfair dismissal for operational reasons. Matter not opposed. Court
directing that it proceed unopposed. Court finding merit in the claim and
awarding reinstatement in terms of section 73 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 reasons. It was heard
on this day and judgement was reserved for a later date. Application was
represented by Mr. Letsie and there was no appearance for 1st
Respondent. The brief history of the matter is that Applicant had referred
a claim for unfair dismissal with the 2nd Respondent, challenging both the
substantive and procedural fairness of her dismissal. It was 1st
Respondents defence before the 2nd Respondent that Applicant had been
retrenched. The matter was duly conciliated upon and conciliation having
failed, it was referred to this Court for adjudication.
2. In terms of the record of this Court, the matter had not been opposed, at
least formally as neither an intention to defend the matter nor an
opposing affidavit had been filed, to both the main claim and the request
for default judgment. However, in the hearing, a certain Advocate Monate
appeared and purported to be representing the 1st Respondent. He sought
a postponement arguing that he had just been appointed to appear on
behalf of 1st Respondent in the proceedings and needed time to familiarise
himself with the matter.
3. Both the application for postponement and the appearance of Advocate
Monate were strongly opposed by Mr Letsie. His main contention was that
Advocate Monate had no proof of authorisation to appear as he had no
authority to represent. He added that the fact that no one from 1st
Respondent was in attendance, to verify the appointment of Advocate
Monate, further put his claim of authorisation into question. Further that
the matter was not opposed and that the granting of a postponement
Page 256 of 361
would not be appropriate in the circumstances. He thus prayed for the

exclusion of Advocate Monate and for the matter to proceed in default.
4. We then made a ruling in favour of Applicant and excluded Advocate
Monate from the proceedings. We were in agreement with Mr. Letsie that
the absence of both the authority to represent and anyone from the 1st
Respondent was a fatal blow to Advocate Monates claim. We further
found that the absence of an authority to represent denied Advocate
Monate the right to appear and any rights that flow from that right, such
as the right to request a postponement of the matter. Further that given
the fact that the matter was not opposed, it would only subject Applicant
to an unnecessary prejudice. We also found these factors to constitute a
waiver of the right to be heard by 1st Respondent, as no reason was
advanced for its failure to oppose the matter or to even indicate its
intention to oppose same. Having made Our ruling We directed that the
matter proceed by default.
5. At the commencement of the proceedings, We raised a point of law that
there had been a breach of the rules of this Court, in particular Rule 3
thereof. In raising this point of law, We were guided by the authority in
LAC/CIV/A/02/2010, where the Court relied on a quotation from Casa v
Tao Ying Metal Industries & 3 others 2009 (2) SA CC, in the following,
where a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what that law is, a court is not
only entitled, but is in fact also obliged, mero muto to raise that point of law
and require parties to therewith.
6. On the premise of the above authority, We then proceeded to explain that
in terms of that Rule, trial proceedings, as in casu, must be by way of an
originating application and not a notice of motion. Mr Letsie conceded
that had been a breach but stated that it was bona fide mistake on their
part and requested the court to condone same in terms of Rule 27 of its
Rules. He further requested the court to consider the content over the
form and added that the content pleaded makes out a case for the relief
sought.
7. As a Court of equity and fairness, that is enjoined to ensure that
substantial justice is attained, We resolved to condone the form used and
concentrated on the content. We have confirmed and satisfied ourselves
that the pleadings made out a prima facie case for the relief sought. We
accordingly directed that the matter proceed in evidence. It was on this
basis that the evidence of Applicant was heard, and Our judgment is in
the following.
EVIDENCE AND ANALYSIS
8. Applicant testified under oath that she was employed by 1st Respondent
from the 2nd April 2007 until her dismissal on the 1st October 2012. At
the time of her dismissal she earned M1, 288.00 and occupied the
Page 257 of 361
position of a stock packer. On the date of her dismissal, she was just
summarily informed by her Chinese supervisor, known by the names of
Majersy, that the 1st Respondent lawyer had given them instructions to
dismiss her.
9. Subsequently to her dismissal, she had then referred the matter to the
2nd Respondent where she learned for first time that her dismissal was for
operational reasons. She prayed for an order of reinstatement in terms of
section 73, failing which an order for an order for payment of
compensation in the amount equal to 12 months. Applicant also prayed
that 1st Respondent also be order to pay her unpaid leave and severance
pay. She further testified that she has made attempts to seek alternative
employment but to avail.
10. Mr. Letsie submitted that Applicant had made out a case for the relief
sought. He went further to submit that clearly the 1st Respondent acted
contrary to the law, in that it did not follow the correct procedure for the
dismissal of Applicant. It was emphasised that Applicant was not even
consulted prior to her dismissal which is one of the primary requirements
in a case involving a dismissal for operational reasons. It was added that
the mode of termination of Applicant does not even fit within the
procedural requirements of any of the other two grounds of dismissal
recognised by the laws of Lesotho, other than for operational reasons.
11. For a dismissal for operational reasons to be fairly effected, there are
certain substantive and procedural requirements that must be met (see
section 19 of the Labour Code (Codes of Good Practice) Notice of 2003). of
relevance to the issue at hand, are the provisions of section 19 (4) of the
Codes of Good Practice (supra). In terms of this section, an employee
must be consulted prior to her dismissal for operational reasons. We have
highlighted the importance of this exercise before in a plethora of case
(see Thapelo Ntoko v Jikelele Services LC/42/2013)
and need not
reiterate, safe to emphasise that the exercise determines the continuation
or termination of an employment relationship of parties.
12. We have considered the manner in which the termination of Applicant
was effected. We have noted that it was in total violation of the Codes of
Good Practice (supra), and therefore unfair. Applicant has indicated her
desire to be reinstated in terms of section 73 of the Labour Code Order 24
of 1992, as her principal remedy. We have not found any circumstances
that would make it impracticable particular given that nothing in the
evidence suggests a breakdown of the employment relationship. We
therefore find that Applicant is deserving of the award she prayed for.
13. We wish to comment that Applicant had referred a claim for unfair
dismissal on the ground of operational reasons. As a result, it was never
part of her claim that she was owed any leave or severance payment. At
best, Applicant could only succeed in so far as a claim for severance
payment is concerned. Even so, this Court would only consider it in
Page 258 of 361
making an award for compensation in lieu of reinstatement, and not as a

claim on its own, alongside the unfair dismissal claim. Consequently, we
decline to make any orders in relation to these two claims.
AWARD
a) That Applicant be reinstated into her former position on the 1st January
2014, without loss of her remuneration, seniority or other entitlements or
benefits which she would have received but for the unfair dismissal.
b) That the part of the award sounding in money must be complied with
within 30 days of the delivery of this judgment.
THUS DONE AND DATED AT MASERU ON THIS 13th DAY OF DECEMBER
2013.
T. C. RAMOSEME
Mrs. THAKALEKOALA
Mrs. MALOISANE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. LETSIE
NO ATTENDANCE
Page 259 of 361

HELD AT MASERU
LC/REV/27/2012
A0329/2008

KHOASE PALI
APPLICANT
And
FIRST NATIONAL BANK
THE ARBITRATOR (DDPR)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of the 2nd Respondent Arbitration award. Two
grounds of review being raised that Arbitrator ignored the law in finding that
a pre-suspension hearing has no bearing on the procedural requirements of a
dismissal that Arbitrator ignored the law that an employee must be given
time to prepare their case prior to the actual hearing date. Court finding that
the law was not ignored and further that a pre-suspension hearing was not
necessary in casu further the irregularity committed by Arbitration in
ignoring the law does not warrant interference with the award, in the absence
of prejudice suffered. Court finding no merit in both grounds and dismissing
the review application. No order as to costs being made.
1. This is an application for the review of the 2nd Respondent arbitration
award. It was heard on this day and judgement was reserved for a later
date. Applicant was represented by Adv. Mochesane, while 1st Respondent
was represented by Adv. Loubser. The background of the matter is that,
Applicant was employed by 1st Respondent as a teller, until his dismissal
for misconduct. It was alleged that he had stolen money, belonging to the
1st Respondent bank, from his co-teller and only returned it when
confronted by his managers, on the following day.
2. Following his dismissal, he referred a claim for unfair dismissal with the
2nd Respondent, challenging only the procedural aspect of his dismissal.
After hearing the matter, the learned Arbitrator issued an award, in terms
of which Applicants claim was dismissed. It is this award that Applicant
seeks to have reviewed, corrected or set aside. Two grounds of review
have been raised on behalf of Applicant, against which the review is
sought. Having read all documents submitted of record and having
considered the submissions of parties, Our judgment is in the following.
Page 260 of 361

3. It was submitted on behalf of Applicant that the learned Arbitrator had
erred in that he ignored the applicable case law and the Labour Code
(Codes of Good Practice) of 2005, that an employee must be heard before
being suspended. It was added that as a result of His ignorance of these
authorities, the learned Arbitrator incorrectly held that a suspension has
no bearing on the procedural requirements of a fair hearing before
dismissal. It was submitted that it is a requirement of law that an
employee must be heard before he is suspended.
4. It was stated that a pre suspension hearing is intended to enable an
employee to know in advance about their case and to be able to prepare
for it. The Court was referred to the cases of SALDCAWU v Advance
Laundirs t/a Stork Napkins 1985 ILJ 544 (IC); and Evans v CHT
Manufacturing (Pty) Ltd 192 ILJ 585 (IC). It was concluded that having
failed to hold a pre-suspension hearing, and contrary to the above
authorities, the dismissal of Applicant was procedurally unfair.
5. In reply, it was submitted that whereas it may be a principle of law that a
pre-suspension hearing must be held prior to the actual suspension, it
was not necessary in casu. It was stated in support, that Applicant had
taken money belonging to the Respondent bank and only returned it on
the following day when confronted about it. The decision to suspend him
was made immediately after he had handed over the money. It was added
that as a teller, Applicant was entrusted with keeping money belonging to
the bank.
6. It was further submitted that, being suspected of having stolen same, it
was not necessary to give him a hearing before effecting the suspension.
It was further submitted that in any event, he suffered no prejudice from
the suspension without hearing, in that he conceded during arbitration
proceedings that he was aware of what he was being suspended for. The
Court was referred to pages 18, 20 and 24 of the record. It was concluded
that even if a pre-suspension hearing was necessary, it did not render the
dismissal of Applicant a nullity in casu.
7. The right to be heard is a fundamental part of Our law (see section 12 of
the Constitution of Lesotho). While We concede that before any decision
affecting the rights and status of a party is made, such a party must be
heard, Applicant has failed to illustrate how the authorities that he relied
upon support his case, that the learned Arbitrator was wrong in His
conclusion. Applicant has barely alleged that such authorities were
ignored by the learned Arbitrator, in making His award. That
notwithstanding, a suspension affects the status of an employee within
the employment sphere and as such, an employee must be heard before
such a decision is made.
8. The decision being challenged is reflected at page 3 of the arbitral award
as follows,
Page 261 of 361
I will point out that suspension whether done fairly or otherwise have no
bearing whatsoever on the procedural requirements of fair hearing before
dismissal.
It is this extract that forms the basis of a challenge against the conclusion
of the learned Arbitrator. 1st Respondent seems to agree with the
suggestion, as it does challenge same. Rather, it attempts to justify failure
on its part to hold the pre-suspension hearing and further argues that
while a pre-suspension hearing may have an effect on dismissal, it was
not the case in casu.
9. It is an established principle of law that what has not been challenged is
deemed to have been accepted as true and accurate (see Theko v
Commissioner of Police and Another 1991-1992 LLR-LB 239 at 242; also
see Standard Lesotho Bank v Tsietsi Polane & DDPR LC/ REV/77/07). We
wish to point out that the application of this principle is only limited to
factual and not legal propositions. This essentially means that whether
challenged or not, the correctness or otherwise of a legal proposition,
made by a party to any proceedings is the sole determination of the
Court, subject to persuasion by parties.
10. In view of this said above, We deem it apposite to highlight the position
of the law in relation to the requirements for a procedural fairness of the
dismissal of an employee. Section 11 of the Labour Code (Codes of Good
Practice) Notice of 2003, outlines the requirements for a fair procedure in
a case of dismissal for misconduct as follows,
(1) An investigation should normally be conducted by the employer to
ascertain whether there are grounds for dismissal before a hearing is held.
(2) The employer should notify the employee of the allegations using a form
and language that the employee can reasonably understand.
(3) The employee should be entitled to a reasonable time to prepare a
response and to seek the assistance of a trade union representative or
fellow employee.
(4) The hearing should be held and finalized within a reasonable time.
(5) The employee should be given a proper opportunity at the hearing to
respond to the allegations and to lead evidence if necessary.
(6) If an employee unreasonably refuses to attend the hearing the employer
may proceed with the hearing in the absence of the employee.
(7) After the enquiry, the employer should communicate the decision taken,
and preferably furnish the employee with written notification of the
decision.
(8) Discipline against a trade union representative or an employee who is
an office-bearer or official of a trade union should not be instituted without
first informing and consulting the trade union.
(9) If the employee is dismissed, the employee should be given the reason
for dismissal and reminded of any rights to refer a dispute concerning the
fairness of the dismissal to the Directorate.
(10)
In exceptional circumstances, if the employer cannot reasonably
be expected to comply with these guidelines, the employer may dispense
with pre-dismissal procedures.
Page 262 of 361
(11)
Employers should keep records for each employee specifying the
nature of any disciplinary transgressions, the action taken by the employer
and the reasons for the actions.
(12)
In case of collective misconduct, it is not unfair to hold a collective
hearing.
11. None of the outlined requirements touch on the issue of a presuspension being a requirement towards the validity of the procedure, in
the dismissal of an employee. Therefore, in as much as a hearing is
required before a suspension is effected, it is not a determining factor for
purposes of the procedural fairness of a dismissal. Rather the purpose of
a pre-suspension hearing is to enable a party to state why s/he may not
be suspended. We therefore find that whether or not the learned
Arbitrator ignored the cited authorities, His conclusion finds support in
the applicable law, in determining the procedural fairness of a dismissal
for misconduct.
12. Even assuming that it was one of the requirements that an employee
must be afforded a pre-suspension hearing, prior to their dismissal being
found to be procedurally fair, such an employee would have to go further
to demonstrate the prejudice suffered from failure to afford the said
opportunity. In casu, Applicant has failed to show how the decision of the
learned Arbitrator may have caused prejudice upon himself. He alleges
mainly that a pre-suspension hearing would have alerted him about the
possible charges that he was likely to face, yet he concedes on record that
he was aware why he was being suspended.
13. The Court has been referred to pages 18, 20 and 24 of the record of
proceedings. In these pages, Applicant is recorded to have testified that
he was aware that his suspension was in connection with the money that
he had taken. This clearly illustrates awareness of the charges he was
likely to face and the absence of prejudice on his part, on account of
failure by 1st Respondent to hold a pre-suspension hearing. We are in
agreement with 1st Respondent that given the circumstances of the
matter, it was not even necessary to hold a pre suspension hearing for
Applicant. This view finds support in the case of Phutiyagae v Tswaing
Local Municipality (2006) 27 ILJ 1921 (LC), where the Court held that, in
circumstances where knowledge of the allegations are apparent from the
surrounding circumstances, a pre suspension hearing is not necessary.
Consequently, this ground fails. We decline to comment on the rest of the
submissions and arguments as they address the merits of the arbitration
proceedings and not the review application.
14. On the second ground of review, it was submitted that the learned
Arbitrator ought to have found the dismissal of Applicant procedurally
unfair, on account of the fact that he was not given sufficient time to
prepare his defence. It was added that he was given 12 hours to prepare
his case, whereas the Codes of Good Practice of 2005 (supra), prescribe at
least 48 hours for preparations. The Court was referred to section 8(1),
Page 263 of 361
Division 2 on disciplinary procedure, at stage 3. It was concluded that

given the circumstances of the matter, the learned Arbitrator ought to
have intervened and found the dismissal procedurally unfair. It was
concluded that by ignoring the provisions of the Codes of Good Practice
2005 (supra), the learned Arbitrator committed an irregularity that led to
an incorrect conclusion.
15. In reply, it was submitted that while the Codes of Good Practice of
2005 (supra) may make that provision, the alleged breach does not
warrant interference with the arbitration award. It was submitted in
amplification that, whereas Applicant had alleged that the short notice
prevented him from organising a recorder, he failed to illustrate how that
prejudiced him in the initial hearing. Secondly, that whereas Applicant
alleged that he was not able to call a witness due to the short notice, he
failed to state what the witness would say that advanced his case. The
Court was referred to pages 27 to 31 of the record.
16. It was added that during the arbitration proceedings, Applicant
conceded that he never brought the issue of a short notice or the need to
organise a recorder, to the disciplinary panel. The Court was again
referred to pages 27 to 31 of the record. It was further submitted that
nothing was ignored by the learned Arbitrator in dealing with this issue
and further that if this issue had been ignored, short notice is not always
an element of procedural unfairness. The Court was referred to the case
of FAWU & others v Amalgamated Beverage Industries Ltd (1992) 13 ILJ
1552 (IC), in support.
17. We have indicated the procedural requirements that must be met, in
order for a dismissal for misconduct to be procedurally fair. Of relevance
to the issue at hand, are the provision of section 11 (3) of the Codes of
Good Practice 2003 (supra), which provide as follows,
The employee should be entitled to a reasonable time to prepare a
response and to seek the assistance of a trade union representative or
fellow employee.
It is therefore undeniably clear from the above provision, that it is a prerequisite that an employee facing charges of misconduct must be afforded
time to prepare their case.
18. It is Applicants case that this was ignored by the learned Arbitrator, in
making His conclusion hence the conclusion that the dismissal was
procedurally fair. It would similarly seem from the submissions and
arguments of 1st Respondent, that it does not challenge this ground as
well as both the factual and legal propositions made in support. We
therefore wish to reiterate Our stance in paragraph 9 above and proceed
to address the issues in the following.
19. We wish to highlight that there are no Labour Code Codes of Good
Practice, other than those published in the Government Notice of 2003.
However, in 2005 and pursuant to section 15(1) of the Public Service Act
Page 264 of 361
of 2005, Codes of Good Practice 2005 were published. Having failed to find
the sections that Applicant relied upon within the Codes of Good practice
2003 (supra), We took the liberty to peruse the Codes of Good Practice
2005 (supra).
20. Our discovery has been to the effect that the section relied upon by
Applicant is from the Codes of Good Practice of 2005, which are applicable
only to public officers. It is common cause from the pleadings, that the 1st
Respondent employer is not the Government of Lesotho. As a result, the
Codes of Good Practice 2005 (supra), are inapplicable to Applicant and
consequently, the learned Arbitrator was right in ignoring same.
21. Our conclusion above, notwithstanding, the principle alleged to have
been within the Codes of Good Practice of 2005 (supra), is also provided
for in the Codes of Good Practice 2003 (supra), which are on the contrary
applicable to Applicant. However, there is no specific period of notification
that is prescribed, between the time of notification of the hearing and the
time for the actual hearing, within these Codes. This is essentially left in
the discretion of the Court that is seized with a claim of procedural
unfairness on this ground. For purposes of this case, it would have been
the 2nd Respondent.
22. It is common cause that Applicant was not given enough time to
prepare his case. Whereas 1st Respondent does not challenge the
allegation that the learned Arbitrator ignored the law relating to the
provision of sufficient time for preparation, it rather attempts to disqualify
that as warranting the granting of the review of the arbitral award in
question. We are in agreement with 1st Respondent that in the absence of
prejudice arising from the breach of procedure by the learned Arbitrator,
failure to give sufficient time to prepare does not readily warrant
interference with the award made.
23. Whereas, Applicant had alleged that he needed time to organise a
recorder and to call a witness, he has failed to show how that prejudiced
his case. An effective way of demonstrating the said prejudice would have
been by illustrating the value of the recording device as well as the
witness to his case. This Applicant failed to show both before the 2nd
Respondent and before this Court. We have confirmed this from pages 27
to 31 of the record referred to by 1st Respondent. Consequently, even if
the learned Arbitrator had ignored the provisions of section 11 (3), that
would not warrant interference with the award for the above reasons.
Consequently this point fails.
24. We have italised the word even for the reason that upon perusal of the
arbitral award, We have discovered that the provisions of section 11(3) of
the Codes of Good Practice (supra), were not ignored. At page 3 of the
arbitral award, the learned Arbitrator made the following finding,
Page 265 of 361
The appellant ought to have been notified in advance. Be that as it may,

the appellant knew in advance of the case that was going to be put forth
against him and he was able to put forth his case.
To add to that, the appellant did not raise this issue at the disciplinary
hearing not suggest the prejudice that he suffered. the irregularly
committed if any, does not warrant interference of this tribunal.
25. The finding clearly demonstrates that the principle or provision in
issue, was considered as well as the factors surrounding the matter, to
find that Applicant was not prejudiced by the decision, hence a finding of
procedural fairness. This also find support in the submission of 1st
Respondent before this Court. Consequently, We maintain Our stance in
paragraph 23 above and this review ground fails.
26. 1st Respondent, on the one hand, prayed that this review application
be dismissed with costs. Applicant, on the other, replied that this be left
to the discretion of the Court. It is a trite practice in the ordinary Civil
Courts that costs follow suit. This essentially means that an award of
costs is made in favour of a party that wins in the proceedings. The
situation in rather different in this Court. As a court of equity and
fairness, this Court is not bound by the practice in the ordinary civil
courts (see LEWCAWU & 35 others v Metcash Trading Limited
CIV/APN/38/99; George Kou v Labour Commissioner LC/13/1994;
LEWCAWU & 33 others v Metcash Lesotho Limited & another
LC/44/1999). Rather, for an award of costs to sustain, an applicant party
must illustrate that the circumstances of the matter warrant the granting
of same.
27. We have stated in a plethora of cases that the yard stick is frivolity in
bringing or defending a claim and vexatious conduct during the
proceedings (see 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). In applying for costs, no motivation
was made on behalf of Applicant that would lead Us to conclude that
Applicant has been frivolous in bring this application or that he has been
vexatious during the proceedings. Consequently, We decline to award
costs.
Page 266 of 361
AWARD
b) That the award in referral A0329/2008 remains in force; and
c) There is no order as to costs.
2013.
T. C. RAMOSEME
Mr. L. MATELA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MOCHESANE
ADV. LOUBSER
Page 267 of 361

HELD AT MASERU
LC/REV/41/2012
A0734/2011

LESOTHO ELECTRICITY
COMPANY (PTY) LTD
APPLICANT
And
MPAIPHELE MAQUTU
ARBITRATOR SENOOE
THE DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of the 2nd Respondent arbitral award. Applicant moving
for the recusal of the learned Deputy President from the proceedings on
account of subjective bias. Court finding no merit in the ground and refusing
the recusal application. Applicant having raised only two grounds of review.
Court dismissing one ground and granting the other. Court finding that the
decision to award 10 years compensation was irrational. Court directing that
the matter be remitted to the 3rd Respondent for determination of the
compensation amount, before a different Arbitrator. No order as to costs being
made.
award. It was heard on this day and judgement was reserved for a later
date. Applicant was represented by Adv. Woker, while 1st Respondent was
represented by Adv. Ntaote. The background of the matter is that, 1st
Respondent had referred a claim for unfair dismissal with the 3rd
Respondent. The matter was duly presided over by the 2nd Respondent,
who after hearing all evidence issued an award in favour of 1st
Respondent. In terms of the said award, Applicant had been directed to
pay 1st Respondent 10 years salary as compensation, 150,000 units of
electricity and severance payment for the period of 16 years, 10 of which
were assumed.
2. Applicant then initiated review proceedings before this Court, to have the
said award reviewed, corrected or set aside. However, the review
application was dismissed for want of prosecution. The Court had found
that period of delay in prosecuting the matter, as well as the
circumstances surrounding the delay, were unreasonable. Applicant then
appealed to the Labour Appeal Court and obtained judgment that the
Page 268 of 361
matter must be head in the merits before this Court. The matter was
subsequent thereto brought before this Court and set down for hearing
on this day.
3. At the commencement of the review proceedings, Applicant made an
application for the recusal of the learned Deputy President (myself), on
the ground of a perceived bias. The application was strongly opposed by
1st Respondent. Both parties were then given the opportunity to make
their address, after which We refused the recusal application, deferred
the reasons and directed that the matter proceed in the merits, as
directed by the Labour Appeal Court. Our full judgment on all issues is
therefore in the following.
Application for recusal
4. Advocate Woker for Applicant, submitted that the learned Deputy
President had initially made a finding against Applicant, wherein He had
dismissed the review application. Having successfully appealed against
His decision, Applicant feared the likelihood that the learned Deputy
President would not make an award in favour of a party that had His
decision reversed, even if such was well deserved. He added that the
Appeal Court had stated that the learned Deputy President was wrong in
his decision. He stated that on this premise, they were in fear of a
possible bias, borne by the circumstances of the matter.
5. Advocate Ntaote for 1st Respondent, replied that there has to be an
objective basis and not a mere suspicion of bias, in order for an
application for recusal to succeed. It was added that the suspicion of bias
is unfounded as the matter that was dismissed is entirely different from
the matter that is up for determination. Further, that the Labour Appeal
Court did not find that the learned Deputy President was wrong, as the
matter was remitted back to the Labour Court by agreement of both
parties. It was further submitted that the issue of a different presiding
officer being allocated was argued before the Labour Appeal Court, but
was rejected by the Appeal Court.
6. At paras 5, 6 and 7 of the judgment of the Labour Appeal Court in
Lesotho Electricity Company (Pty) Ltd v Mpaiphele Maqutu & others
LAC/CIV/A/01/2013, the learned Judge states as thus,
5. ... the DDPR record had not been transcribed by appellant, ... the record
had now actually been transcribed and it was now before court.
6. Before us, the parties agreed that the proper way to deal with the matter
would be to uphold the appeal and set aside the judgment of the Labour
Court and, order that the matter be remitted to the Labour Court for hearing
of the review application.
7. Consequently, and in the light of the above, the following order is made:
1. The appeal succeeds.
Page 269 of 361
7. In view of this above extract, We found that the appeal was granted by
agreement of the parties. Further, that the circumstances under which it
was granted were, that new evidence which was not present when the
matter was dismissed, had come up. This essentially meant that the
appeal was not granted due to an error on the part of the learned Deputy
President, but rather due the existence of new evidence and an agreement
by both parties that it be remitted back to this Court. Consequently, the
basis of Applicants perception of bias falls off. We therefore no longer see
the need to comment on the rest of the submissions of parties.
The Merits
8. Before We deal with the merits of this application, We wish to note that
1st Respondent had raised an objection to the grounds of review raised by
Applicant, on the ground that they were not pleaded in the founding
affidavits. This suggestion was strongly rejected by Applicant, who went
on to demonstrate to the Court where these grounds are pleaded. Having
satisfied Ourselves with the defence raised by Applicant, to the objection,
We find that these grounds are not new, but that they have been pleaded.
In view of this finding, We now proceed to deal with the submissions of
parties and Our findings.
9. Advocate Woker for Applicant started his submissions with a narration of
issues that were common cause between parties. He recited incidents
that led to the dismissal of 1st Respondent, up to the proceedings before
this Court. In his narration, Advocate Woker indicated that 1st
Respondent was the Company Secretary for Applicant, until his dismissal
for misconduct. The Court was referred to pages 3, 28 and 32 of the list of
exhibits, in support. It was further narrated that after his dismissal, he
referred a claim for unfair dismissal with the 3rd Respondent and that the
2nd Respondent was the presiding officer. Thereafter, the 2nd Respondent
issued an award in favour of 1st Respondent. It was concluded that it is
this award that is the subject of review herein. In the light of this
background, he proceeded to motivate the review grounds.
10. The first ground of review was that the learned Arbitrator had ignored
the real dispute before Her and concentrated on irrelevant issues. It was
submitted, in amplification, that 1st Respondent had initially been
dismissed for misconduct. However, on appeal he was found guilty and
dismissed for incompatibility. In support, the Court was referred to the
conclusion of the chairman of appeal at page 59 of the record, where he
stated as thus,
I accordingly recommend a penalty of dismissal for Mr. M. Maqutu. I go
further to add that the atmosphere as stated by Mr. Moiloa and Mr. Maqutu
himself at this workplace should not be allowed to continue any further.
11.
It was added that this notwithstanding, the learned Arbitrator
interrogated the fairness of 1st Respondents dismissal on misconduct, as
opposed to dismissal for incompatibility. The Court was referred to a
series of pages in the record, where issues demonstrating incompatibility
Page 270 of 361
came up in the hearing. It was argued that the determination of the

fairness of the dismissal for misconduct was something that is totally
different from what the learned Arbitrator had been called to determine. It
was argued that in so doing, the learned Arbitrator committed a gross
irregularity warranting the review and setting aside of Her decision.
Reference was made to the case of Thabo Mohlobo & others v Lesotho
Highlands Development Authority LAC/CIV/A/05/2010, in support.
12. In reply, it was submitted on behalf of the 1st Respondent that
Applicant was charged and dismissed for misconduct. Further that in the
arbitration proceedings, it was never argued that 1st Respondent had
been dismissed for incompatibility, either by Applicant or the 1st
Respondent himself. It was added that the issue before the learned
Arbitrator, was the fairness of the dismissal of 1st Respondent for
misconduct. It was further submitted that Applicant was uncertain about
the reason for the dismissal of 1st Respondent in that at some point he
alleges dismissal misconduct and later claims incompatibility.
13. Furthermore, it was submitted that whilst issues demonstrating
incompatibility may have come up in the hearing, but that was neither
the case of 1st Respondent nor the defence of Applicant. Further, the
suggestion that Applicant was dismissed for incompatibility on appeal
was rejected. It was submitted that the appeal chairman confirmed the
dismissal of 1st Respondent for misconduct and no more than that. It was
concluded that this ground of review should be dismissed as it is not only
devoid of merit, but also an appeal disguised as a review.
14. In Thabo Mohlobo & others v Lesotho Highlands Development Authority
(supra), in dealing with the circumstances under which a review may be
made, the learned Mosito AJ made the following observation regarding
the authority of an arbitrator in arbitration proceedings,
The authority of an arbitrator is confined to resolving the dispute that has
been submitted for resolution and an award that falls outside that
authority will be invalid.
In the light of this authority, We now proceed to deal with the Applicants
review ground.
15. It is Applicants case under facts that are common cause that, 1st
Respondent was dismissed for misconduct. This has been confirmed by
1st Respondent and also finds support in the list of charges on page 3 of
the exhibits list, that Applicant earlier referred the Court to. Further, We
have considered the extract from page 59 of the record that Applicant has
relied upon to argue that the dismissal of 1st Respondent was for
incompatibility. In Our view, the extract was not a finding but an
additional comment after the finding that merely expresses the
chairmans attitude, in so far as the work relations were concerned. We
do not see how the extract assists Applicants argument that the
dismissal on appeal was for incompatibility.
Page 271 of 361
16. We therefore have no doubt that Applicant was indeed dismissed for
misconduct. Further fortifying Our finding is the fact that all the charges
on page 3 of the exhibit list, sound in misconduct. As a result, We are in
agreement with 1st Respondent that Applicant is indeed uncertain about
the reason for dismissal as at one point it is submitted, on behalf of
Applicant, that the dismissal of 1st Respondent was for misconduct and
later that it was for incompatibility. This marks inconsistencies in the
evidence and submissions of Applicant, which suggests a fabrication. The
shift from Applicants initial position is merely premised on convenience
and it cannot be countenanced by this Court.
17. Applicant does not dispute the fact that 1st Respondent had referred a
claim for dismissal for misconduct or that it was never the Applicants
case that 1st Respondent was dismissed for incompatibility. Rather,
Applicant directs the Courts attention to allegations indicating the
incompatibility of 1st Respondent within the record, as its premise that
evidence of incompatibility was ignored. It is trite law that where the
averments of one are not challenged by another, then the issues between
parties must be resolved on the basis of the acceptance of the
unchallenged evidence (see Theko v Commissioner of Police and another
LAC (1990-94) 239 at 242)
18. Therefore, the learned Arbitrator was right in determining the fairness
of the dismissal of Applicant for misconduct, as it was the referred claim
before Her. If She had concerned herself with the dismissal of Applicant
for incompatibility, She would have exceeded the bounds of her authority
as suggested in the case of Thabo Mohlobo & others v Lesotho Highlands
Development Authority (supra). It is clear from the facts before Us, that the
issue for determination was whether the dismissal of Applicant for
misconduct was fair or not. That being the case any other determination
other than this, would have constituted a gross irregularity worthy of
being set aside.
19. It is Our opinion that this ground challenges the procedure that was
adopted during the arbitration proceedings. In coming to this conclusion,
We are guided by the remarks of the learned Dr. Mosito AJ in JD Trading
(Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004, where He had the following to say,
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 a case on review. An
appeal is thus in reality a re-evaluation of the record of proceedings in the
court a quo.
However, given Our findings above, this grounds is devoid of merit and
cannot sustain.
20. The second ground of review is that the learned Arbitrator erred in
that She made an arbitrary and irrational award for compensation. In
Page 272 of 361
amplification, it was submitted that the learned Arbitrator did not take
into account the requirements of section 73 of the Labour Code Order 24
of 1992, for awarding a just and equitable compensation. It was further
submitted that in order to make a just and equitable compensation, the
learned Arbitrator had to exercise Her discretion judiciously.
21. It was added that in order to do so, the learned Arbitrator had to have
regard to all relevant considerations that have an impact on the issue. It
was stated that in casu, the learned Arbitrator had failed to do so, for the
reason that rather than to award compensation in terms of section 73 of
the Labour Code Oder (supra), She awarded damages. It was argued that
the learned Arbitrator committed a grave irregularity as She is bound by
the powers conferred in terms of the governing legislation. The Court was
referred to the case of Bofihla Makhalane v Leteng Diamonds (Pty) Ltd C
of A (CIV) 14/2010, in support.
22. It was further submitted that the learned Arbitrator had failed to
consider role of 1st Respondent in the matters that led to his dismissal. It
was stated that the record clearly reflects that 1st Respondents continued
conduct towards his superior, the Managing Director, was insubordinate.
Further, that She failed to consider the state of affairs within Applicant
employ which all pointed out to the inevitable termination of 1st
Respondent employment, in one way or the other. Further, that the
ability of Applicant to pay 1st Respondent the awarded amount, given that
it is a public utility, as well as the ability of 1st Respondent to acquire new
and alternative employment, were not considered as well.
23. It was added that the learned Arbitrator had failed to consider the fact
that 1st Respondent is a highly qualified, experienced and hence a highly
employable person. The Court was referred to pages 414-415 of the
record of proceedings and the case of Lesotho Bank v Khabo LAC (2000
2004), in support. It was further submitted that given all the surrounding
circumstances, an award of 6 months wages would have been proper. It
was argued that the award for 10 years is baseless as the learned
Arbitrator simply divided the claimed period by 2 to have 10 years as
compensation. It was submitted that this was both extreme and grossly
irrational. Further, that it was improper for the learned Arbitrator to have
awarded anticipated severance payment, as severance payment is only
paid out for actual the period served.
24. In reply, 1st Respondent submitted that the fact that 1st Respondent
was given 10 years compensation, when he had claimed 20 years, shows
that the matter was judiciously considered. To fortify this argument, it
was added that the 20 years claimed was not even challenged and the
fact that it was reduced to 10 years, shows that certain considerations
were made to come to the award made. The Court was referred to
paragraph 31 of the award in support. It was further submitted that,
having made all the necessary considerations, the learned Arbitrator did
not act beyond Her powers, as suggested, particularly because the law
Page 273 of 361
does not impose a limit on the amount of compensation that She may
award.
25. It was further submitted that indeed the alleged breach was ignored as
the matter was not heard in the merits of charges 1 and 4. Rather that
the learned Arbitrator dealt with charge 6, from which She made the
finding that dismissal was not an appropriate sanction. Having made this
conclusion, it was not necessary to consider the breach. It was however
conceded that it was improper for the learned Arbitrator to have awarded
future severance pay for the reason that severance payment is only made
out in respect of the actual period served and not that which is
anticipated. It was concluded that this ground ought to be dismissed as
similarly, it is not only devoid of merit but an appeal disguised as a
review.
26. We have gone through the arbitral award and have confirmed that
indeed certain considerations were made in awarding 1st Respondent
compensation. This is why among others, 1st Respondent was only
awarded 10 years, instead of the 20 years compensation that he had
initially claimed. We have specifically perused paragraph 31 of the
arbitral award, wherein the learned Arbitrator considered the 1st
Respondents level of education, experience and his employability as well
as the fact that he can manage to source income on his own, if he
remains unemployed. The 10 years compensation awarded, was not
reached by merely dividing the 20 years claimed by 2, but was rather the
result o the above considerations.
27. However, We are of the view that having made the above factual
conclusion regarding the employability of 1st Respondent, the award for
10 years salary is inconsistent with that factual conclusion. Given the
factors highlighted, an award of 10 years is not a just and equitable
amount but rather an unfair enrichment of 1st Respondent. We are
inclined to agree with Applicant that in awarding 10 years salary as
compensation, the learned Arbitrator was in fact awarding damages (see
Lesotho Bank v Khabo (supra) for the distinction) as opposed to
compensation in terms of section 73. Further, in making Her award, it
was in total disregard of the ability of Applicant to pay same, given the
nature its business. By necessary implication, She therefore acted beyond
Her powers as suggested by Applicant. Consequently, the decision to
award 10 years compensation is irrational and unreasonable.
28. We have further noted that indeed, the issue of the breach of contract
on the part of 1st Respondent was not considered. The rationale for failure
to consider this issue was not hard to find. 1st Respondent has rightly
pointed out that this consideration was immaterial given the finding
made. We only agree with 1st Respondent to some extent. Our view is
premised on the fact that it was common cause that 1st Respondent was
charged and dismissed for charges 1, 4 and 6. The substance of charges
1 and 4 was never heard and determined and as such it cannot be relied
Page 274 of 361
upon for purposes of compensation. As for charge 6, the learned

Arbitrator found that it did not warrant termination of 1st Respondent. It
is Our view that the conduct of Applicant relating to charge 6, ought to
have been considered in awarding compensation.
29. We have also noted that the learned Arbitrator acknowledged in Her
award, specifically at paragraph 25, that the employment relationship
had broken down irretrievably. She had however, failed to consider this
issue in making Her award for the compensation of 1st Respondent. It is
Our view that if She had considered this issue, She would have been able
to make a proper projection of the possible period of continued
employment. From the conclusion made relating to the employment
relationship, 1st Respondent could not have been expected to remain in
employment for 10 years. As a result, any conclusion that he would have,
is irrational as it is not supported by the earlier factual conclusion made.
30. In essence, while We acknowledge the fact that the learned Arbitrator
is not limited in terms of the amount of compensation that she may
award, Her discretion in awarding compensation must be exercised
judiciously (see Tsotang Ntjebe & others v LHDA and Teleng Leemisa &
others v LHDA LAC/CIV/17/2009). In view of Our findings above, We find
that the learned Arbitrator has failed to exercise this discretion
judiciously and that this led to Her award being irrational. Consequently,
We find that this ground is a review ground and not an appeal contrary to
1st Respondent suggestion. Further, We find that it ought to be upheld
and that the matter be remitted to the 3rd Respondent for a de novo
determination on the compensation amount before a different Arbitrator.
It is Our view that it would only be in the interests of both parties that
this determination be made before a new presiding officer with no prior
engagement in the matter.
31. Notwithstanding that there seems to be no dispute regarding the
award of future severance payment, We wish to comment on the issue.
We are of the view that there was no irregularity on the approach adopted
by the learned Arbitrator. We say this because section 73 of the Labour
Code Order (supra) provides for two sets of remedies, namely
reinstatement/re-employment or compensation. Where compensation is
paid out, it is to be so in lieu of reinstatement. The phrase in lieu simply
means in place of. If this is the case, then the compensation award must
consider all salaries, benefits and entitlements that would have been due
to a concerned employee but for the unlawful termination, and this
includes the entitlement to severance payment.
Page 275 of 361
AWARD
a) The application for review is granted;
b) The matter is remitted to the 3rd Respondent for determination of the
compensation amount before a different arbitrator.
c) That this award must be complied with within 30 days of receipt
herewith; and
2013.
T. C. RAMOSEME
Miss. P. LEBITSA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. H. WOKER
ADV. N.T. NTAOTE
Page 276 of 361

HELD AT MASERU
LC/26/2010

MANTEPI MOFIHLI-MONTI
APPLICANT
And
MINISTRY OF PUBLIC
WORKS AND TRANSPORT
TAEMANE SERIBETSO
ATTORNEY GENERAL
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for committal and punishment for contempt of Court. Applicant
claiming wilfulness and mala fides on the part of 1st Respondent. 1st
Respondent claiming ambiguity of the order being enforced. Court finding that
the order being enforced was ambiguous. Court further finding that failure to
seek clarity on the order amounts to wilful and mala fide refusal to comply
with the said order. Court directing 1st Respondent to take all reasonable
measures to comply with the arbitration award within 30 days, failing which
2nd Respondent is to be detained for 3 months. No order to costs being made.
1. This is an application for committal and punishment for contempt by 2nd
Respondent for failing to comply with the Directorate of Dispute
Prevention and Resolution (DDPR) arbitration award in referral
later date. Applicant was represented by Adv. Ntaote, while Respondent
was represented by Adv. Sekati. The matter was opposed and both parties
were in attendance.
2. The background of the matter is that Applicant had referred a claim for
payment of wages while on suspension, with the DDPR. An award was
issued in her favour wherein the 1st Respondent was ordered to make
payment in the sum of M75,960.00, to Applicant as her lost wages while
on suspension. The learned Arbitrator had further made an order in the
following,
a) The respondent is ordered to reinstate the applicant in terms of section
73 of the labour Code Order no. 24 of 1992;
b) If reinstatement is impracticable in the light of the circumstances, the
respondent is ordered to take appropriate action to remedy the situation the
applicant was subjected to since 1994;
Page 277 of 361
c) This amount should be paid at the offices of the DDPR in Maseru within
30 days of receipt of this award.
3. Thereafter, the 1st Respondent only complied with the said arbitration
award in so far as payment of the wages while on suspension was
concerned and not the reinstatement aspect thereof. It is Applicants, on
the one hand, that Respondent has wilfully and mala fides refused to
obey the learned Arbitrations order to reinstate her or to take appropriate
action to remedy the situation, if in the light of the circumstances
reinstatement is impracticable. It is Respondents case, on the other
hand, that it did not wilfully refuse to obey the said arbitration award. In
the light of this background, the submissions of parties and Our
judgment is recorded in the following.
4. It was Applicants undisputed case that subsequent to the issuance of the
DDPR arbitration award, Applicant presented herself at the offices of the
1st Respondent, with the object of being reinstated. However, She was
returned by the 2nd Respondent on the ground that the matter was being
taken up with relevant authorities. Thereafter, Applicant was never called
for feedback, until she again presented herself at the offices of 1st
Respondent. This time she was told by the 2nd Respondent that from then
onwards, the matter would only be dealt with through court processes.
5. It was submitted that the behaviour and attitude of 1st Respondent,
through its Human Resources Manager, clearly demonstrated its wilful
and mala fides refusal to comply with the arbitration award to reinstate
Applicant. It was added that this amounts to contempt of Court. The
Court was referred to the cases of Namane Zacharia Khotle v Security
Lesotho (Pty) Ltd LC 44/1998; and East London Transitional Council v MEC
for Health, Eastern Cape & others 2001 (3) SA 1133, in support. It was
added that even assuming that reinstatement was impractical, 1st
Respondent ought to have at least attempted to remedy the situation by
offering compensation to Applicant in lieu of reinstatement, as the award
had directed. Further that, if this aspect of the award was not clear, they
ought to have approached the learned Arbitrator for interpretation, rather
than to wilfully fail to comply with same.
6. It was Respondents case that Applicant was employed under the project
called LB04/B204. Further that Applicant was suspended sometime in
March 1994. Sometime in April 1994, and during the suspension of
Applicant, the project lapsed. As a result of the lapse of the project,
reinstatement of Applicant into her former position then became
impracticable. It was added that this explains why the arbitration award
went further to give direction in the event that reinstatement was not
practical.
7. It was submitted however, that the direction given was not clear. It was
argued that if the arbitration award had intended compensation in the
Page 278 of 361
place of reinstatement, it ought to have said so. Further that in failing to

specifically provide for compensation as alternative, the award clearly had
something in mind other than compensation, which was not known to 1st
Respondent. It was added that 1st Respondent merely failed to comply
due to lack of understanding of the award, which can only be shed by the
learned Arbitrator who made the award. It was concluded that at worst,
1st Respondent can only be ordered to seek the interpretation of the said
order, rather than for any punitive order to be made.
8. It is not in dispute that Applicant was suspended as far back as in 1994.
A simple arithmetic calculation of time shows that at least a period of
about 19 years has lapsed since the suspension. This is the very same
suspension that the award being enforced seeks to cure through an order
for reinstatement or appropriate action. It is therefore without doubt that
it would be unreasonable to expect that the position that Applicant
occupied as far as in 1994, remains open to this date. We are therefore
drawn by circumstances to conclude that reinstatement is no longer
practical.
9. According to the award, in the event that reinstatement is not practical,
the respondent is ordered to take appropriate action to remedy the
situation the applicant was subjected to since 1994;. We are in agreement
with the 1st Respondent this order is not clear as We also cannot place
any interpretation to it. Not only is not clear, it cannot be interpreted to
mean that Respondent must pay to Applicant compensation in lieu of
reinstatement, as Applicant suggests. We say this because compensation
in lieu of reinstatement, is a remedy that flows from section 73 of the
Labour Code Order 24 of 1992. It is a remedy that is availed to parties in
respect of claims for dismissal.
10. The above position is clear from section 73 of the Labour Code Order
(supra), which provides as follows,
(1) If the Labour Court holds the dismissal to be unfair, it shall, if the
employee so wishes, order the reinstatement of the employee .
(2) If the Court decides that it is impracticable in the light of the
circumstances for the employer to reinstate, the Court shall fix an amount
of compensation to be awarded to the employee in lieu of reinstatement.
This is not the case in casu, as Applicant was only suspended.
11. We therefore agree with 1st Respondent that it may have not been able
to appreciate the meaning of the alternative award to reinstatement.
However, when an order has been made it is binding on all parties
concerned and both parties bear certain rights and obligations. By this
We mean that it is the obligation of the party against whom the order has
been made to comply with same, with an attendant right to challenged
that order if they so wish (see Namane Zacharia Khotle v Security Lesotho
(supra). Similarly, it is the right of the party in whose favour an order has
been made, to enforce it. The obligation to comply includes the
Page 279 of 361
responsibility to put in place all reasonable measures that will enable one
to comply with the given order.
12. In casu, 1st Respondent claims not to have understood the meaning of
the alternative order made by the learned Arbitrator. This being the case,
it was the responsibility of the 1st Respondent to seek clarification on that
order from the Arbitrator who made it. This is has been suggested to 1st
Respondent by Applicant and no explanation had been proffered to
explain the failure to do so. We are therefore led to the conclusion that
the 1st Respondent elected not to take reasonable measures to enable it to
comply with the order of the DDPR.
13. In essence, 1st Respondents failure to seek the clarification of the
order of the DDPR and to comply with same was therefore wilful and mala
fides. We say this because, clearly they chose to hide behind the defect in
the order to avoid compliance. This is a clear demonstration of both mala
fides and wilfulness to avoid compliance. There is an array of remedies
available to parties in law, where there is defect of this nature in the order
made. Among such remedies is the right to seek an interpretation. This
Court cannot countenance the attitude of the 1st Respondent in these
proceedings, as that would set a very ruinous precedent in Our legal
jurisprudence.
14. In terms of Our law, arbitration awards of the DDPR carry the same
effect as orders of this Court. This position is reflected under section
228E(5) of the Labour Code Order (supra), as follows,
An award issued by the arbitrator shall be final and binding and shall be
enforceable as it if was an order of the Labour Court.
15. It is Our attitude that the behaviour of 1st Respondent, through 2nd
Respondent, is contemptuous as it involves both a wilful and mala fide
refusal to obey an arbitration award, which by virtue of section 228E(5)
above, is an order of this Court. Our attitude finds support in the case of
East London Transitional Council v MEC for Health, Eastern Cape & others
2001 (3) SA 1133 at 1137 H-I, where in the Court had the following to say,
It had been held by our Courts, in a long line of decisions, that contempt of
court is the wilful and mala fide refusal to comply with an order issued by
the Court.
16. In terms of section 24(2)(j) of the Labour Code Order (supra), where this
Court has determined that contempt has been committed, as We have, it
has the power to
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.
17. The discretion to elect either of the two options, contained in section
24(2)(j) of the Labour Code Order (supra), must be exercised judiciously.
The concept of judicial discretion was unpacked by the Labour Appeal
Page 280 of 361
Court in the case of Tsotang Ntjebe & others v Lesotho Highlands

Development Authority and Teleng Leemisa & others v Lesotho Highlands
Development Authority LAC/CIV/17/2009, as follows,
A question of judicial discretion pertains to the sphere of right, as opposed
to that of fact in its stricter sense. It is a question as to what ought to be, as
opposed to a question of what is. Matters of fact are capable of proof, and
are the subject of evidence adduced for that purpose. Matters of right and
judicial discretion are not the subject of evidence and demonstration, but of
argument, and are submitted to the reason and conscience of the Court.
18. Given the peculiar circumstances of this matter, wherein the order to
be complied with is not clear, We find that it would be inappropriate to
readily commit 2nd Respondent to jail for failure to comply. It would be
ideal to first seek the interpretation of the order and to provide an
allowance on the part of 1st Respondent to comply. It is only when the
ambiguity in the order has been cleared, and 1st Respondent continues
with its contemptuous behaviour, that We will be in a position to impose
the punishment of committal.
AWARD
a) That the 1st Respondent to take all reasonable measures to comply with
the award of the DDPR, within a period of 30 days of delivery of this
judgment;
b) Failure to comply with prayer (a) with result in the imprisonment of the
2nd Respondent for three months; and
c) No order as to costs is made.
2013.
T. C. RAMOSEME
Mrs. THAKALEKOALA
Mrs. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. NTAOTE
ADV. SEKATI
Page 281 of 361

HELD AT MASERU
LC/80/2013

NTHABISENG MOKOENA
APPLICANT
And
LESOTHO POST BANK (PTY) LTD
RESPONDENT
JUDGMENT
Application for declaratory order and other relief. Applicant arguing that
Respondent had no right to discipline her during the notice period Applicant
relying on the principle that a resignation is a unilateral act that terminates
the contract. Respondent arguing that the principle notwithstanding, Applicant
remained its employee during notice period and was thus entitled to discipline
her. Court finding that Applicant was indeed an employee of Respondent
during notice period and that Respondent had a right to discipline her. Court
also dismissing the consequential relief. Parties not requesting costs and no
1. This is an urgent application for a declaratory order and consequential
relief. The matter was then set down for hearing on this day, following the
granting of an order for dispensation with the ordinary rules pertaining to
service and time limits. Having heard arguments of parties, the Court
reserved its judgment for a later date. Applicant was represented by Adv.
Letsika, while Respondent was represented by Adv. Ntaote. The matter
was opposed and both parties were in attendance.
2. The background of the matter is that Applicant was an employee of
Respondent until she resigned from employment. The circumstances
behind her resignation are that, on or around the 30th September 2013,
Applicant served Respondent with a resignation letter. In terms of the
said letter, Applicant was to serve a one month notice period, which was
to run from the 1st October 2013 to 30th October 2013. On or around the
16th October 2013, and during her notice period, she was served with a
letter wherein she had been charged for misconduct. The said letter had
also informed her of the date of hearing, which was on the 22nd October
2013.
3. On or around the 21st October 2013, Applicant served the Respondent
with a copy of sick leave, which had recommended that Applicant should
be allowed to rest from the said date to the 30th October 2013. On the
Page 282 of 361
30th October 2013, Applicant received a letter from her prospective

employer, the Central Bank of Lesotho to the effect that while vetting her
employment history, it discovered that she had a pending disciplinary
case with Respondent. The letter had also stated that the offer of
employment would be placed on hold pending the clearance of Applicants
disciplinary case at Respondent organisation.
4. In view of this said, Applicant wrote a letter to Respondent on the 7th
November 2013, to request it to withdraw the said disciplinary charges
that it had laid against her. This request was not taken heed to by the
Respondent. On the 14th October 2013, through her attorneys, Applicant
wrote a second letter to Respondent reiterating her earlier request and
further putting Respondent to terms regarding the requested action. To
this date, Respondent has not withdrawn the said charges hence the
present application. All mentioned correspondence has been filed or
record and forms the annexure to the notice of motion and founding
affidavits of Applicant.
5. In casu, Applicant is asking for a final order paraphrased in the following
terms,
2.1 The Respondent be declared not to have been entitled to institute
disciplinary proceedings following Applicants resignation;
2.2 That consequential to prayer 2.1, Respondent be directed to withdraw
the purported disciplinary charges against the Applicant and report such
withdrawal to the Central Bank of Lesotho.
Our judgment is thus in the following.
6. It was Applicants case that Respondent was not entitled to institute
disciplinary proceedings against her, after she had communicated her
intention to resign from employment. It was argued that although
Applicant was serving her notice period when she received her
disciplinary charges, the moment she served the Respondent with the
letter of resignation, that letter disentitled Respondent from taking any
disciplinary measures against her. The Court was referred to the cases of
Motumi Ralejoe v Lesotho Highlands Development Authority LC/36/2006
and Selloane Mahamo v Nedbank Lesotho Limited LAC/CIV/04/2011, and
the authorities cited therein in support.
7. Specific reference was made to the quotation from the case of SALSTAFF
obo Bezuidenhout v Metrorail [2001] 9 BALR 926, cited in the Selloane
Mahamo v Nedbank Lesotho Limited (supra), wherein the following is
recorded,
resignation is a unilateral act by which an employee signifies that the
contract will end at his election after the notice period stipulated in the
contract or by law. While formally speaking a contract of employment only
ends on expiry of the notice period, the act of resignation being a unilateral
act which cannot be withdrawn without the consent of the employer, is in
fact the act that terminates the contractThe mere fact that the employee
Page 283 of 361
is contractually obliged to work for the required notice period if the

employer requires him to do so does not alter the legal consequences of the
resignation.
8. It was argued that the principle enunciated in the above cases was that
once termination had occurred, the employer was barred from taking any
disciplinary measures against the employee whose employment had
terminated. It was argued that this is clear from the phrase The mere fact
that the employee is contractually obliged to work for the required notice
period if the employer requires him to do so does not alter the legal
consequences of the resignation from the SALSTAFF obo Bezuidenhout v
Metrorail (supra) authority. It was said that in casu, Applicants
termination occurred immediately upon her communication of the
resignation to Respondent and that any action taken by Respondent after
such communication is unlawful. It was on this premise prayed that
Respondent be declared not to have had the right to institute disciplinary
proceedings against Applicant.
9. It was further submitted that the above position sustaining, Respondent
be ordered to withdraw the said charges and to further inform the
Applicants prospective employer, being the Central Bank of Lesotho, of
the said withdrawal. It was submitted that this will serve as the clearing
of the charges, that has been placed as precondition to reactivate the
Applicants offer of employment with the Central Bank of Lesotho. It was
added that although the Respondent had indicated its intention not to
proceed with the hearing, the continued keeping of the record will stand
as an impediment towards Applicant acquiring employment, not only with
the Central bank, but also with the other potential future employers.
10. In answer, Respondent acknowledged the principles enunciated in the
case of Motumi Ralejoe v Lesotho Highlands Development Authority (supra)
and Selloane Mahamo v Nedbank Lesotho Limited (supra). Although
denied by Applicant, it was argued that the acknowledgment
notwithstanding, the circumstances of these cases differed materially
from the circumstances in casu and that as a result, the said cases were
inapplicable. It was said that in the latter case, Applicant had resigned
with immediate effect and the employer charged her after the said
resignation. It was added that the court had then held that the said
resignation, which was with immediate effect, precluded the employer
from instituting any disciplinary charges against the said employee.
11. It was further argued that in the case of Motumi Ralejoe v Lesotho
Highlands Development Authority (supra), the employee was given the date
on which the termination of the contract would commence. On the said
date, the employer called the employee to a disciplinary hearing. It was
submitted that the court had held in that case that termination had
already occurred at the time that the hearing was conducted and that as
a result, the employer had no right to discipline the said employee.
Page 284 of 361
12. It was furthermore submitted that neither of the two cases said or
suggested that an employee ceases to be so the moment they start to
serve their notice period. It was argued that in fact, by servicing their
notice period, an employee demonstrates their intention to continue to be
bound by the contract until the date of actual termination, which is the
end of the notice period. It was argued that the authority in SALSTAFF
obo Bezuidenhout v Metrorail (supra), cited in the Selloane Mahamo v
Nedbank Lesotho Limited (supra), supports this suggestion. It was prayed
that the application be dismissed and further that the consequential relief
sought should fall off on account of dismissal of the primary relief.
13. We are aware of the authorities and the then prevailing circumstances
in both Selloane Mahamo v Nedbank Lesotho Limited (supra) and the
Motumi Ralejoe v Lesotho Highlands Development Authority (supra),
authorities. We are in agreement with Respondent that the circumstances
of the two matters differ materially from those in casu. In the two cases,
the issues revolved around the conduct of disciplinary proceedings
beyond termination of the employment contracts. In fact, not only are the
circumstances different, but the principles enunciated therein do not
support the Applicants case. We will start with the circumstances.
14. In the case of Selloane Mahamo v Nedbank Lesotho Limited (supra), the
affected employee resigned from employment, with immediate effect,
before she could be charged disciplinarily. Upon receipt of her resignation
letter, the employer indicated its refusal to accept the resignation letter
and invited Mahamo to a disciplinary hearing. It was held in this case
that Nedbank had no right to proceed with the hearing post the
resignation. Clearly, the circumstances in casu differ material from those
in the Selloane Mahamo v Nedbank Lesotho Limited (supra) case, as the
Respondent in casu has in no uncertain terms expressed its intention not
to proceed with the disciplinary proceedings beyond the termination of
Applicant.
15. In the case of Motumi Ralejoe v Lesotho Highlands Development
Authority (supra), the employee had been informed that his actual
retrenchment would take effect on the 31st January 2006. On the 27th
January 2013, he was invited to a disciplinary hearing to be held on the
31st January 2013. However, on that date, the matter did not proceed but
was postponed to the 8th and 9th of the Subsequent month. The Court
then held that the Respondent had no right to proceed with the hearing
beyond the date of termination as Applicant was no longer its employee.
In fact the Court specially stated that the proceedings were an
unnecessary exercise and declared them invalid. In the same vein, the
circumstances of this case differ from those in casu and are in fact rather
similar to those that prevailed in the Selloane Mahamo v Nedbank Lesotho
Limited (supra) case.
16. Assuming that Applicants reliance on these cases was purely
premised on the principles enunciated, even so, the principles do not
Page 285 of 361
support her case. We say this because the principle in both cases is that
it is not competent for the employer to proceed to discipline a person who
has resigned as such a person is no longer its employee. The question
that therefore remains to be determined is when an employee ceases to be
so in terms of the law, that is, when is a person taken to have resigned.
17. In the case of Selloane Mahamo v Nedbank Lesotho Limited (supra), the
Court considered the nature of resignation and relied on a quotation from
the case of ALSTAFF obo Bezuidenhout v Metrorail (supra) as recorded at
paragraph 7 of this judgment. It is overt from this authority that during
the notice period, a person remains an employee until the expiry of the
said notice, for the reason that the contract of employment only comes to
an end upon the expiry of the notice period. We are in agreement with
Respondent that by serving a notice period, an employee demonstrates
the intention to continue to be bound by the contract until the end of the
notice period.
18. The above being the case, it is goes without saying that the employer
remains seized with the all powers and authority to deal with the said
person, as it would with any other employee within their employ.
Therefore, Applicant was an employee of the Respondent until the end of
the notice period and all the processes that the Respondent undertook in
that period, are valid in law. Put differently, Respondent was entitled
during the notice period to attempt to discipline Applicant, as it did.
19. By reason of Our findings above, the prayer for the withdrawal of the
charges and a report to the Central Bank of Lesotho, about the
withdrawal of the charges must fall off as it is consequential to the first
prayer. Parties have not made any prayer for costs and as a result no
such award will be made.
AWARD
a) That this application fails; and
b) No order as to costs is made.
2013.
T. C. RAMOSEME
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. LETSIKA
ADV. NTAOTE
Page 286 of 361

HELD AT MASERU
LC/REV/37/2011
A0647/2010 (B)

LESOTHO FREIGHT AND
BUS SERVICE CORPORATION
APPLICANT
And
THE DDPR
M. MASHEANE (ARBITRATOR)
TEBOHO LETSIE
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of the 2nd Respondent arbitral award. Two grounds of
review having been raised on behalf of Applicant. 3rd Respondent applying for
dismissal for want of prosecution application being withdrawn and matter
proceeding into the merits. Parties agreeing on an additional ground of review
from the bar and condonation thereof Court not finding merit in all the three
grounds review application being dismissed and Court reinstating award of
the 2nd Respondent.
1. This is an application for the review of the 1st Respondent arbitral award
in referral A0647/2010(B). It was heard on this day and judgement was
reserved for a later date. Applicant was represented by Advocate Ntaote,
while 3rd Respondent was represented by Mr. Molefi. The background of
the matter is essentially that 3rd Respondent referred a claim for unfair
dismissal with the 1st Respondent. The matter proceeded before the 2nd
Respondent after which She issued an award in favour of the 3rd
Respondent. Thereafter, Applicants lodged the current review application
with this Court. Subsequently thereto, 3rd Respondent filed an application
for the dismissal of the review application.
2. However, at the commencement of the proceedings, both parties
intimated to the Court that they had agreed that the dismissal application
would no longer be pursued. Further that Applicant be allowed to make
an additional ground of review from the bar. The parties agreement was
accepted and the application for dismissal for want of prosecution was
dismissed in terms of Rule 10 and the breach of Rule 16 was condoned in
terms of rule 27 of the Rules of this Court. Applicant was then allowed to
make an additional ground of review. It is against this backdrop that this
application proceeded. Our judgment is thus as follows.
Page 287 of 361

3. The first ground of review was that the learned Arbitrator erred by
allowing the 3rd Respondent to raise a new issue during the proceedings.
In amplification, it was submitted that it was never 3rd Respondents case
that he was denied the opportunity to prepare for his case. The Court was
referred to the annexure A to the founding affidavit. It was added that
this new issue only came up in the evidence 3rd Respondent in chief, after
Applicant had closed its case. It was argued that it was thus wrong for
the learned Arbitrator to permit this practice. Reference was made to the
case of SOS Children Village v DDPR & another LC/REV/82/2009, where
the Court held that it is wrong to direct the attention of parties to one
direction and then canvass a different issue.
4. It was argued that the irregularity committed by the learned Arbitrator
caused prejudice on the part of Applicant in that it was denied the
opportunity to address the 3rd Respondents case. It was added that had
they been given the opportunity to address the point, they would have
demonstrated that 3rd Respondent was given time to prepare for his case
contrary to the suggestion, that no such time was given. It was stated
that Applicant would have led evidence in the form of a notification of
hearing to demonstrate this. The Court was referred to annexure B,
which a copy of the said notification of hearing.
5. In reply, it was submitted that in terms of the referral, Applicant was to
answer both the substance and procedure in the dismissal of 3rd
Respondent. As a result, it was the obligation of Applicant to have
addressed all substantive and procedural issues of the dismissal of 3rd
Respondent. It was added that this notwithstanding, at page 6 of
annexure A, it is recorded as a procedural challenge that 3rd
Respondent was not advised about all of his rights. Further reference was
made to page 7 of the record of proceedings, where a similar allegation
was made. It was argued that in terms of the Labour Code (Codes of Good
Practice) of 2003, the rights of parties include being given the opportunity
to prepare oneself. As a result, Applicant ought to have aligned its defence
with what is contained in the Codes of Good Practice.
6. In the case of SOS Children Village v DDPR & another (supra), the learned
President Lethobane, makes reference to the Labour Appeal Court
decisions in Frasers Lesotho Ltd v Hata-Butle (Pty) Ltd LAC (1995-1999)
698 and the cases therein cited, as well as the authority in Pascalis
Molapi v Metro Group (Pty) Ltd LAC/CIV/R/09/03. In these authorities, it
was held that a party cannot be allowed to direct the attention of another
to one direction and then canvass a different issue altogether. In Our
view, the contrary happened in the proceedings in casu.
7. What 3rd Respondent simply did was to lay out specific issues that he
wanted the Applicant to address in his opening statements. That
notwithstanding, he later canvassed a different issue which was not
stated in his opening statement. According to the dictates of the principle
Page 288 of 361
highlighted in the above authorities, the learned Arbitrator ought not to

have allowed 3rd Respondent to canvass any other issues which were not
specifically laid out in the opening statements.
8. We say this because the purpose of opening statements is to advise a
party in advance of what they are expected to answer (see Albert Makhutla
v Lesotho Agricultural Development Bank 1995-1996 LLR-LB 191 at 195).
This essentially requires that the claims must be stated with clarity and
specificity as opposed to the generalist approach that Applicant alleges to
have adopted. A claim by its nature is broad and general. As a result,
opening statements aid to narrow it down and direct the attention of
parties to specific issues that need to be addressed. A deviation from this
approach would surely undermine the very purport as well as principles
behind the opening statements.
9. The argument that Applicant ought to have addressed all the procedural
requirements as provided for under the Codes of Good Practice cannot
hold. We say this because 3rd Respondent was specific in relation to some
of the procedural requirements that appear under the same section and
left out others. In so doing, he clearly communicated to both the learned
Arbitrator and Applicant his intention not to rely on the omitted
procedural requirements for his procedural challenge. As a result, the
learned Arbitrator ought not to have allowed 3rd Respondent to canvass
an issue that was not specifically stated in the opening statements.
10. It is Our opinion that having allowed 3rd Respondent to bring a new
issue, which was never the basis of his procedural challenge, Applicant
was prejudiced. Annexure B clearly illustrates that 3rd Respondent was
given at least 4 days before his hearing after he had been served with the
notification of hearing. Had Applicant been alerted about this issue, it
would have addressed it and that could have influenced the learned
Arbitrator to find no fault on its part in this regard. The learned Arbitrator
thus committed an irregularity.
11. The second ground of review is that the learned Arbitrator disregarded
the evidence of the minutes of the disciplinary enquiry, wherein 3rd
Respondent admitted guilt of the offences charged with. It was added that
the said evidence was disregarded on the ground that 3rd Respondent had
not signed the minutes of the enquiry. Applicant argued that it was wrong
for the learned Arbitrator to have disregarded the said evidence on this
ground as there is no legal requirement that the record must be signed.
12. It was further argued that the fact that 3rd Respondent denied
admitting guilt as well as the fact that he did not sign the minutes, did
not mean that he did not admit guilt in the enquiry. It was argued that
the learned Arbitrator ought to have considered and interrogated the
issue of the record, more so given that Applicant did not state what his
defence was in the said enquiry. Further that She at least ought to have
invited those who were in the hearing to come and testify to what
Page 289 of 361
happened. It was added that had the learned Arbitrator not disregarded
the said record, She would have found that Applicant was guilty of
misconduct. On these bases, it was prayed that the Court find that 3rd
Respondent admitted guilt and therefore that his dismissal was fair.
13. In reply, 3rd Respondent submitted that the record of proceedings
before the 1st Respondent was not a true reflection of what took place in
the disciplinary enquiry. Over and above the fact that Applicant denies its
contents or ever admitting guilty, the record reflects inconsistent version
of 3rd Respondent evidence. At page 2 of the said record, he is recorded to
have admitted guilt. At page 4 of the same record, he is recorded to have
stated that he was not guilty.
14. Further, in the arbitration proceedings, at page 114 of the record,
Applicant denied committing any act of misconduct or even admitting
guilt at any point during his disciplinary proceedings. It was submitted
that this clearly exhibits the fact that the record was not a true reflection
of what took place in the disciplinary enquiry. It was concluded that given
these said, the learned Arbitrator was right in not giving any weight at all
to the record of the disciplinary enquiry.
15. We agree with 3rd Respondent that the learned Arbitrator gave the
record of the disciplinary enquiry no weight at all, as well as the alleged
grounds upon which this decision was based. At Paragraph15 of the
arbitral award, the learned Arbitrator recorded that Applicant did not lead
any evidence to rebut the suggestion by 3rd Respondent that he did not
admit guilt, and that the minutes did not reflect the true picture of what
took place in the hearing. The learned Arbitrator has further recorded
that minutes were not given to 3rd Applicant to authenticate.
16. On the above premise, She concluded that the said minutes were not
binding upon 3rd Respondent and gave no weight to them at all. In Our
view, this essentially means that the evidence of the record of proceedings
was not ignored, contrary to Applicants suggestion, but rather that the
learned Arbitrator gave it no weight for reasons advanced in paragraph 15
of the arbitral award. She essentially interrogated the record and came to
the conclusion that it did not bind 3rd Respondent. Consequently, We find
no irregularity on this ground.
17. We also wish to highlight that proceedings before the 1st Respondent
are heard de novo, at least on the substance. This essentially makes it the
obligation of parties in the proceedings before the 1st Respondent to bring
all evidence to prove the substance of their claims. In casu, it was clear
that 3rd Respondent challenged the substance of all claims against him in
respect of his dismissal. This essentially meant that he challenged all
allegations of guilt on his part, including the said record of proceedings. It
was therefore, the responsibility of Applicant to bring evidence to
substantiate the content of the minutes by contradicting the evidence of
3rd Respondent or to even discredit the 3rd Respondents evidence.
Page 290 of 361
18.
Having failed to bring evidence to contradict or to even discredit the
evidence of 3rd Respondent, the learned Arbitrator cannot be held at fault
for not acting ultra vires Her functions. The functions of the learned
Arbitrator are to seek clarity where issues are not clear. Given that 3rd
Respondents stance was clear, in that he unequivocally denied liability or
even admitting guilt at any stage, there was nothing that required the
learned Arbitrator to seek clarity on.
19. While We acknowledge the fact that there is no legal requirement that
the record must be signed by parties to proceedings, it is not accurate
that the learned Arbitrators decision was based on the fact that the
record was not signed by 3rd Respondent. Rather, She stated in
paragraph 15, that Applicant was not bound by the contents of the
record, for the reason that he denied them, and that the said record was
never given to him for authentication. It was on this ground that the
record was not given any weight and not that it was disregarded or
ignored.
20. The third ground of review is that the learned Arbitrator erred in
concluding that Applicant had an obligation to find 3rd Respondent a
representative. It was argued that having made this conclusion, the
learned Arbitrator committed a mistake of law. It was said that this
conclusion was based on the opinion of Grogan J in his book entitled
Workplace Law. It was argued that there is no law in Lesotho that places
an obligation on the part of the employer to find a representative for an
accused employee. Rather that the law merely requires that a party be
given the chance to find a representative.
21. In reply, 3rd Respondent submitted that the learned Arbitrator was
right in relying on the opinion of Grogan J to make Her finding. He stated
that the practice finds support n the conclusion of the decision of High
Court of Lesotho in Lesotho Brewing Company t/a Maluti Mountain
Brewery v Lesotho Labour Court President & another CIV/APN/435/1995.
In this case, the learned Ramodibeli J, relied on a quotation from the
remarks by Rose Innes in the book entitled, Judicial Review of
Administrative Tribunals in South Africa to conclude that administrative
tribunals have the liberty to rely on other sources other than the law and
that would not constitute and irregularity. In reply, it was argued that
this extract is not applicable in casu, as the 1st Respondent is not an
administrative tribunal but a quasi-judicial tribunal.
22. We wish to first deal with the authority cited by 3rd Respondent. We
are in agreement with Applicant that it is inapplicable in casu for the
same reason that he has advanced, that is, that the 1st Respondent is a
quasi-judicial and not an administrative tribunal. While We acknowledge
that the learned Arbitrator had the liberty to source authorities outside
the Lesotho legal jurisprudence, but that is subject to a number of
limitations, among which is if the law in Lesotho is silent on the issue in
question.
Page 291 of 361
23. In Lesotho, the law does not place any obligation on the employer to
find representation for an employee. Rather, and as correctly pointed out
by Applicant, it merely provides that an employee be given the
opportunity to find a representative. This essentially means that in terms
o the laws of Lesotho, it is the obligation of the employee to secure a
representative of their choice. This being the case, the legal position in
Lesotho is clear with regard to this issue and any deviation in
interpretation from this position constitutes a mistake of law.
Consequently, We find that the learned Arbitrator committed a mistake of
law in this regard.
24. The above notwithstanding, We perused the authority that the learned
Arbitrator relied upon in making Her finding. At page 197, the learned
Author writes as follows,
If the employee declines to bring a representative, however, the employer
is under no obligation to provide one.
We have underscored the word no for the reason that it appears to have
been erroneously omitted by the learned Arbitrator in citing the opinion of
Grogan. The same opinion, in similar words, appears in the different
editions of Grogans Workplace Law. It was this omission that led Her to
commit the above mistake of law.
25. 3rd Respondent further argued that all the grounds raised by Applicant
are purely procedural yet the matter was also decided on substance. It
was argued that the grounds of review are based on the irregularities on
the part of the learned Arbitrator in dealing with the procedural fairness
of the 3rd Respondents dismissal. It was added that having found that the
dismissal of 3rd Respondent was substantively unfair, the learned
Arbitrator should not have even bothered to consider the procedural
fairness, as Her finding was sufficient to warrant the setting aside of 3rd
Respondents dismissal.
26. It was argued that this review is purely academic as even a finding
that there were irregularities, will not vitiate the decision of the learned
Arbitrator. Reference was made to the case of Bofihla Makhalane v
Leteng Diamonds (Pty) Ltd LAC/CIV/A/09/1999, wherein the learned
Mosito AJ, quoted an extract from the judgment in Ellies v Morgan, Ellies
v Desai 1909 TS 576 at 580 that,
...an irregularity in the proceedings does not mean an incorrect judgment;
it refers not to the result but the method of trial...
27. It was argued that on the basis of the above authority, the irregularity
committed by the learned Arbitrator in dealing with the procedural
fairness of 3rd Respondents dismissal does not mean that the decision of
the learned Arbitrator is wrong. It was added that in terms of the Bofihla
Makhalane v Leteng Diamonds (Pty) Ltd (supra), for the entire decision to
be invalidated, it must be established that the irregularity is likely to
result an injustice or other forms of prejudice.
Page 292 of 361
28. It was further submitted that the Mosito AJ, goes further to cite a
quotation from the case of Napolitano v Commissioner of Child Welfare,
Johannesburg 1965 (1) SA 742 (A) at 745G 746B where the Court is
recorded as thus,
That, however, does not end the matter because the reviewing Court will
not interfere if satisfied that the applicant has suffered no prejudice. ...the
Court is not interested in academic situations.
29. It was argued that the application before this Court is academic, for
the reason that the decision of the learned Arbitrator is not purely based
on procedure but also substantive. 3rd Respondent prayed that the review
be refused on this ground. Applicant briefly replied that the review
application was not academic as the procedural challenges go to the
substantive fairness of the 3rd Respondents dismissal.
30. We are in agreement with the 3rd Respondent that learned Arbitrator
having found that the dismissal was substantively fair, it was not
necessary for Her to consider the procedural fairness of the said
dismissal. The correctness or otherwise of the procedure adopted in the
dismissal of 3rd Respondent would not alter the invalidity of the reason for
the dismissal of 3rd Respondent. We are also in agreement with 3rd
Respondent that all the review grounds are procedural. By this We mean
that they relate to the procedure that was adopted in the proceedings
before the 1st Respondent institution.
31. An application for review is only granted in the circumstances whereby
the irregularity committed has materially affected the decision made. This
therefore means that the review will be made where the Court is satisfied
that it was not for the irregularity, the decision would have been different
from that which has been made. If the finding on this enquiry is in the
negative, then the application will be academic. This is the proposition
that 3rd Respondent has attempted to make.
32. We wish to highlight that, the extract from authority in Ellies v
Morgan, Ellies v Desai (supra) has been misapplied. It does not support
the proposition that the irregularity committed by the learned Arbitrator
in dealing with the procedural fairness of 3rd Respondents dismissal does
not mean that the decision of the learned Arbitrator is wrong. Rather, it
merely illustrates what an irregularity entails. That notwithstanding, We
acknowledge and confirm the rest of authority cited.
33. It is Our view that the irregularities committed by the learned
Arbitrator do not warrant interference with the arbitral award. The reason
is simply that they are purely based on procedure and that they have no
impact on the substance of 3rd Respondents dismissal. We are of the view
that even if the learned Arbitrator had disallowed the argument that 3rd
Respondent had been denied the opportunity to find a representative or if
She had found that Applicant had no obligation to find a representative
for 3rd Respondent, that would not have altered the substantive
Page 293 of 361
conclusion that he was not guilty of misconduct. These are different

issues that require different facts to substantiate and none is dependent
on the other to stand. Consequently, We find that the irregularities
committed do not warrant interference with the arbitral award and that
this review application is merely academic.
AWARD
and
2013.
T. C. RAMOSEME
Mr. S. KAO
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NTAOTE
MR. MOLEFI
Page 294 of 361

HELD AT MASERU
LC/42/13

THAPELO NTOKO
APPLICANT
And
JIKELELE SERVICES
RESPONDENT
JUDGMENT
Claims for unfair dismissal based on retrenchment of Applicant and unlawful
deductions. Respondent failing to attend hearing. Court proceedings with the
matter in default, after granting a grace period to allow Respondent to make
appearance. Court finding the dismissal of Applicant to be unfair and
awarding compensation and payment of unlawfully deducted monies. No
1. This is a claim for unfair dismissal based on the operational reasons of
the Respondent and unlawful deductions. It was heard on this day and
judgement was reserved. Applicant was represented by Ms Maneo Mosola
while there was no representation for Respondent. The background of the
matter is that Applicant had referred claims for unfair dismissal;
transport allowance; unlawful deductions; overtime and rest days, with
the DDPR.
2. During conciliation, claims for overtime, rest days and transport
allowance were settled. A copy of the settlement agreement is part of the
record as annexure B. The matter was then referred before this Court in
terms of section 227 (5) for adjudication of the unresolved claims. A copy
of the report of non-resolution is annexure A. The matter was opposed
by Respondent but it failed to attend on the date of hearing,
notwithstanding the grace period granted. The matter therefore proceeded
in default.
FACTS AND EVIDENCE
3. Applicants evidence was that he was employed by Respondent as a
Carpenter, on a one year renewable contract. His contract was to span
from the 23rd February 2012 to 23rd February 2013. It was a material
term of his contract of employment, that its renewability would be based
on the availability of the job. However, on the 15th December 2012, he
was terminated through a letter dated 14th December 2012. The said
letter forms part of the record and is marked C.
Page 295 of 361
4. Applicant added that prior to his dismissal, no communication was made

to suggest the possibility of his retrenchment or to even consult him in
term of the laws of Lesotho. He is thus asking for compensation of 10
months wages in the sum of M27,000.00. In substantiation of the claim,
he stated that he earned a monthly salary of M2,700.00. Further that
since his termination to date, the operations of Respondent are still
continuing and his position is still in existence.
5. Applicant further testified that if he had not been dismissed, he would
have continued to work with Respondent beyond the one year and he
therefore feels that 10 months wages would be adequate compensation.
When asked if he had made any attempt to mitigate his loss, Applicant
stated that since his dismissal he applied for jobs. He was successful in
his efforts as he is now working for Lesotho Steel Products, since July
2013, where he is earning a monthly wage of M2,500.00.
6. On the second claim, Applicant testified that the Respondent deducted
money from his salaries in the sum of M120.00, over a period of 6
months, at the rate of M20.00 per month. He stated that this money was
deducted to pay union fees in respect of a union to which he is not a
member. He stated that the deductions were therefore unlawful, as he did
not authorise them. Copies of the payslips of Applicant were tendered as
evidence and marked C.
ANALYSIS
7. Section 66 (1) (c) of the Labour Code Order 24 of 1992, recognises the
right of the employer to terminate the contract of employment of its
employee or employees, on account of its operational reasons. However,
there are a number of requirements that must be satisfied, in order for
such termination to be recognised as fair. These requirements sound in
both procedure and substance and are provided for under section 19 of
the Labour Code (Codes of Good Practice) Notice of 2003 .
8. In terms of section 19 (4) the Codes of Good Practice (supra), before an
employee can be fairly terminated for operational reasons, such an
employee must be consulted about the possibility of their termination.
The said section further provides that in the consultation process, the
employer is under an obligation to engage in a joint problem solving
exercise with the concerned employee. In terms of the Codes of Good
Practice (supra), this exercise is intended for parties to explore the
possible alternatives short of dismissal. Clearly, this exercise is very
important as it determines the continuation or termination of an
employment relationship of parties.
9. Given the manner in which Applicant was terminated, this requirement
was flaunted, thus resulting in his dismissal being unfair. The flaunt of
procedure on the part of the Respondent, is of such a serious nature that
it is worthy of an award for reinstatement of Applicant. However,
Applicant clearly does not wish to be reinstated as he has asked for
Page 296 of 361
compensation. This option is indeed open to Applicant in terms of section

73 of the Labour Code Order (Supra). We will deal with the computation of
his compensation amount at a later stage.
10. On the second claim, We are satisfied that the deductions made from
Applicants salary were unlawful. His evidence is unchallenged and as
such it must be taken as a true reflection of what took place (see Theko
vs. Commissioner of Police and Another 1991-1992 LLR-LB 239). We
therefore find that Applicant is entitled to payment of monies deducted
from his wages as claimed. The computations of both the claim for
compensation and unlawful deductions are made hereunder.
COMPUTATION OF AWARD
Compensation
11. In terms of his initial contract of employment, Applicant was left with
only three months at the time of his termination, to the date of expiry of
his employment contract. If he had not been unfairly terminated,
Applicant would have served until the end of the contract. He is therefore
entitled to the remaining 3 months wages computed as follows,
M2,700.00 X 3 = M8,100.00
12. Applicant has further alleged that after his termination, his job is still
in existence. he also alleged that if it was not for the termination, and
given that he had been promised renewal if the job continued, he would
have continued to work with Respondent beyond the initial contract. If
this is so, Applicant would been renewed by at least another year up to
February 2014. However, Applicant has claimed 10 months from the date
of his termination. This means he is asking for payment from December
2012 to September 2013.
13. We have already awarded him the first three months. In the remaining
7 months, Applicant was only out of employment for 4 months upon to
June 2013. As for the time of claim that he was in employment, which is
3 months starting from July to September 2013, We will only award him
the difference in salary. The computation of Our award is therefore as
follows,
M2,700.00 X 4 = M10,800.00
M2,700.00 M2,500.00 = M200.0 X 3 = M600.00
Unlawful deductions
14. If an amount of M20.00 was deducted from Applicants wages over a
period of 6 months. He is therefore entitled to re-payment of M120.00
calculated as thus,
M20.00 X 6 = M120.00
The total award amount is therefore as follows,
M8,100.00 + M10,800.00 + M600.00 + M120.00 = M19,620.00
Page 297 of 361
AWARD
We therefore make an award as follows,
a) The dismissal of Applicant is unfair;
b) That Respondent pay Applicant the amount of M19,620.00 as
compensation and unlawful deductions from his wages;
c) That the said amount be paid to Applicant within 30 days of receipt
herewith; and
d) No order as to costs is made.
2013.
T. C. RAMOSEME
Ms. P. LEBITSA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MS. MOSOLA - CMQ

NO ATTENDANCE
Page 298 of 361

HELD AT MASERU
LC/PS/A/02/2012

THABO MAKHALANE
APPLICANT
And
THE MINISTRY OF LAW AND
CONSTITUTIONAL AFFAIRS
PUBLIC SERVICE TRIBUNAL
THE ATTORNEY GENERAL
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Appeal against the finding of the 2nd Respondent. Court mero muto raising a
preliminary point of non-joinder of the attorney General in the proceedings as
an interested party. Parties agreeing that the Attorney General be joined as a
3rd Respondent and Court granting the application. Applicant raising four
grounds of appeal and withdrawing one. Court finding merit in only one
ground and dismissing the rest. Court granting appeal and remitting the
matter to the 2nd Respondent to make a determination of the compensation
amount. No order as to costs being made.
1. This is an appeal against the finding of the 2nd Respondent. It heard on
this day and judgment was reserved for a later date. Applicant was
represented by Adv. Da Silva Manyokole, while the Respondents were
represented by Adv. Moshoeshoe.
2. The background of the matter is that the appellant was employed by the
1st Respondent as a Stores Assistant. He was charged and tried for
misconduct on the 22nd October 2011, found guilty and thereafter
dismissed. Following his dismissal, Applicant lodged an appeal with the
Principal Secretary in the 1st Respondent. The appeal was also dismissed
leading to the initiation of an appeal with the 2nd Respondent.
3. The grounds of appeal before the 2nd Respondent were as follows,
1. That the disciplinary panned had not afforded him the opportunity to
plead;
2. That he was not afforded an opportunity to state his reasons;
3. That his dismissal was based on unclear reasons and insufficient
evidence.
Page 299 of 361
The 2nd Respondent dismissed his appeal on the ground that all the
procedural safe guards had been complied with and that there were clear
and sufficient reasons for the dismissal of Appellant.
4. Subsequent thereto, Appellant lodged the current appeal with this Court
on the following grounds,
1. The judgment of public service tribunal is bad in Law it is not based on
piece of evidence but it was driven by sentiments, emotions and corruption.
2. The judgment is unjust, unfair and very bad since it is contradictory and
it is not based on any merit since even the tribunal has acceded to the fact
that there was no record but only a summary which is not verbatim.
3. The main point, the tribunal was concerned about was to make sure that
justice was not done but seemingly they carry their personal interests.
4. This judgement violates any known reasoning or points of law. it should
therefore be set aside as it has seriously violated the rights of the appellant
as an employee and the citizen of this country.
5. On the premise of the above grounds, it was prayed that this Court
substitute the finding of guilty with that of not guilty and award the
reinstatement of Appellant. The matter was opposed by the Respondents
and both parties were given the opportunity to make representation on
the all the issues. At the commencement of the proceedings, the
Appellant expunged the extract that but it was driven by sentiments,
emotions and corruption from its first appeal ground and the whole of the
third appeal ground. Our judgment is therefore in the following.
6. It was submitted that Appellant had been charged with the contravention
of sections 15(6) of the Public Service Act 1 of 2005 read with section
3(2)(n) of the Codes of Good Practice of 2005 in that,
On the 30th May 2011, the charged officer committed a criminal offence
involving dishonesty by unlawfully forging the signature of the Principal
Secretary of the Ministry of Law and Constitutional Affairs on a Purchase
Order No. LPO 002780 issued to a supplier registered as Gallo Group.
7. It was argued that at all material times, Appellant denied the charges.
This notwithstanding, the quoted Purchase Order was never presented as
evidence, at any stage, to prove that he had committed the offence
accused of. On this basis, he argued that there was no evidence of
misconduct to support the finding made.
8. In answer, it was submitted on behalf of the Respondents that there was
evidence of fraud. The Court was referred to pages 8, 24 to 25 and 29 to
31 of the record to demonstrate this. At page 8 of the record, the Court
was referred to the Appellants second ground of referral in the following,
Moreover, we have been talking about the photocopying purchase order
which was not defrauding the ministry, supplier has been not paid and I
have not benefitted. So the document did not harm anybody.
Page 300 of 361
9. At pages 24 to 25 specific reference was made to paragraph 3 where the

following is recorded,
Apart from that, there was no purchase order document during the
disciplinary proceedings so it was not clear whether we are talking about
that photocopying purchase order LPO 002780 or the original.
10. At pages 29 to 31 reference was made to the first paragraph where the
following is record,
First of all, let me clarify that only the courts have the legal power to find
me guilty or not guilty, by forging of PS law signature as you already said
so, not anybody from the panel who have no legal capacity to find me
guilty, that is why I should not accept dismissal from public service
because so far the courts did not find me guilty and I am no more criminal,
even the law is clear that the person is not guilty until courts find him so.
11. It was argued that from the three above quoted paragraphs, Appellant
is admitting that he forged the purchase order but that it was on the copy
and not the original. It was argued that whether payment was actually
made from the forged document or not, that is immaterial as the crime of
forgery relates only to the signature. It was said that all this evidence was
presented before the tribunal and on its basis, Appellant was found
guilty. It was concluded that all these facts show that there was a breach
of rule 3(2)(n), which Appellant had been initially charged with.
12. We have perused the record as referenced by both parties. As
Appellant has rightly put, there is nothing on record to suggest that a
copy of the forged purchase order was ever presented as evidence either
at the initial disciplinary hearing or before the 2nd Respondent. This is
also not denied by the Respondent. It is therefore without doubt that this
is the case, as same does not form part of the record before Us.
13. That notwithstanding, the evidence on record seems to suggest that
Appellant was in effect admitting that he had forged the purchase order,
except that he only forged the copy and not the original. This is clear on
the extracts from pages 8, 24 to 25 and 29 to 31 of the record. There is
also no doubt that there was a purchase order, whether an original or a
copy, and that the signature of the Principal Secretary was forged on it by
Appellant. We are in agreement with Respondents that it is immaterial
where the forgery was committed but that what matters is the fact that
same was done and it affects the relationship of trust between parties.
Regarding the breach alleged to have been established by the conduct of
Appellant, We wish to reserve Our comment for now.
14. Consequently, it is Our view that there was sufficient evidence to show
that Appellant committed an act of misconduct. The absence or the
presence of the purchase order cannot on its own determine the fate of
the charges that had been laid against Appellant. By this We mean
whether the purchase order had been presented or not, if there was
sufficient evidence to establish misconduct on the part of Appellant, then
Page 301 of 361
both the initial trier and the 2nd Respondent were correct in returning a
verdict of guilt. Consequently, this ground of appeal fails.
15. On the second appeal ground, it was submitted that there is not
verbatim record of proceedings both in the initial proceedings and in the
proceedings before the 2nd Respondent. It was added that the fact that
there is no verbatim record of proceedings demonstrates that no hearing
was held for the Appellant prior to his dismissal and before the 2nd
Respondent. It was argued that the fact that no hearing was held, shows
that the judgment made was unjust, unfair and very bad. The Court was
referred to the case of Rakhoboso v Rakhoboso LAC (1995-1999) 331 at
336 where the Court relied on a quotation from De Smith Woolf Jowell,
Judicial Review of Administrative Action (5 ed, 1995) 378 379 in the
following,
no man is to be judged unheard .
Further reference was made to the cases of Attorney-General Eastern
Cape v Blom 1988 (4) SA 645 (A) at 660G; Matebesi v Director of
Immigration & others LAC (1995-1999) 616 at 623B-E; and Cheall v
Association of Professional Executive, Clerical and Computer Staff (1983)
QB 126 (CA) at 144B, in support.
16. It was added that the judgment of the 2nd Respondent is contradictory
in that it relied upon a different section of the law, from the one used to
charge and dismiss Appellant, to come to its conclusion of guilt. It was
submitted that Appellant had been dismissed for contravention of section
3(2)(n) whereas the 2nd Respondent found him guilty of section 3(2)(g). it
was argued that the 2nd Respondent correctly made a finding that it had
no jurisdiction to find Appellant guilty of a criminal offence and
concluded that it was irregular for Appellant to have been found guilty of
section 3(2)(n). Having made this conclusion, the 2nd Respondent erred by
proceeding to find Appellant guilty of an offence that he had not been
charged for.
17.
In answer, it was submitted that the absence of the verbatim record of
proceedings cannot stand as an indicator that the respondents did not
deal with the Appellant fairly, and cannot therefore vitiate the
proceedings. Reference was made to the case of Mondi Kraft (Pty) Ltd v
PPWAWU & others (1999) 10 BLLR 1057 (LC). In this case, it was held that
the Court was not precluded from reviewing the award on account of
unavailability of the verbatim record provided that there were sufficient
facts placed before it to enable it to conduct the review. The court had
gone further to state that sufficient facts include admissions as to facts
and obvious defects in the award subject of review. It was argued that the
totality of evidence that has been lead should lead this Court to conclude
that the dismissal of Appellant was fair both procedurally and
substantively.
18. Regarding the alleged contradictions, it was said that there is no
contradiction as the finding is consistent with the initial charges. It was
Page 302 of 361
however prayed that in the event that the Court found contradictions,
that the Court order the 2nd Respondent to make a finding on the proper
section, that is section 3(2)(n) and not 3(2)(g). it was argued that all the
facts establish an offence in terms of that section.
19. While We agree with the Appellant and acknowledge the authorities
that he referenced regarding the principle of audi alteram partem, We
differ by opinion. It is Our view that the absence of a verbatim record is
no more than an indicator that a hearing may have not been held and as
such it is not conclusive proof of failure to hold a hearing. In order for to
stand as proof, it must be supported by evidence which when taken
together with the absence of the record, will lead us to conclude on the
balance of probabilities that no hearing was held at all for Appellant prior
to his dismissal. This is more so where it is denied that no hearing was
held as is the case in casu.
20. However, what remains is that there is no verbatim record of
proceedings both before the initial hearings and before the 2nd
Respondent. We are in agreement with Respondents, and further accept
the authority in Mondi Kraft (Pty) Ltd v PPWAWU & others (supra), that
they relied upon in their argument that that the absence of the record
cannot on its own vitiate the entire proceedings. It would only do so in the
event that there were no sufficient facts to enable us to fairly and
equitably determine this matter. We wish to reiterate Our stance on
paragraph 14 of this judgment, that sufficient facts have been placed
before us to enable Us to make a fair and equitable determination of the
matter.
21. Regarding the alleged contradiction, We have perused the judgement
of the 2nd Respondent, and in particular at page 43 of the record, where
the alleged finding by Appellant was made in the following,
We now look at the charge itself, section 3(2)(n) . Our interpretation of
this section is that the prosecution is enjoined to prove to this tribunal that
a criminal offence has been committed it is also our humble view that this
tribunal has no criminal jurisdiction in our considered opinion the prove of a
criminal offence before this tribunal can only be done by way of presenting
judgment of a criminal court that a criminal offence was indeed committed.
22. It is clear from the above extract that the 2nd Respondent declined
jurisdiction to determine this matter on account to the fact that it had no
jurisdiction to make a finding in terms of section 3(2)(n). In spite of its
finding, it went ahead and found Appellant guilty of contravention of
section 3(2)(g), a section that is totally different from the one that
Appellant that been initially charged with (see the initial charge at
paragraph 6 of this judgment). This in Our view amounts to a
contradiction in that at some point the 2nd Respondent is recorded to
have declined jurisdiction but later on usurps it and finds Appellant
guilty.
Page 303 of 361
23. It is Our opinion that having declined jurisdiction, the 2nd Respondent
ought to have retuned a finding of not guilty. As the 2nd Respondent has
correctly recorded in its judgment, it had no jurisdiction to make a
criminal finding. It would only, on the basis of the verdict of guilt from a
court of competent jurisdiction, make a finding that Appellant had
committed an act of misconduct as envisaged by section 3(2)(n).
Consequently, this Court cannot direct that the 2nd Respondent make
another finding on the same issue as if no finding was made before.
24. We say this because the moment that 2nd Respondent declined
jurisdiction, it became functus officio until its finding is set aside. Our
finding finds support in the case of Firestone South Africa (Pty) Ltd v
Genticuro A.G. 1977 (4) SA 298 (A) at 306 FG, where the following finding
was made,
once a Court has duly pronounced a final judgment or order, it has itself
no authority to correct, alter, or supplement it. The reason is that it
thereupon becomes functus officio: its jurisdiction in the case having been
fully and finally exercised, its authority over the subject - matter has
ceased25. Not only was the 2nd Respondent wrong in usurping jurisdiction in the
matter where it had none, it was wrong to have substituted the charge
initially levelled against Appellant with its own. Doing so was a clear
violation of the rights of Appellant flowing from the procedural
requirements of a fair dismissal for misconduct. The conduct of the 2nd
Respondent was tantamount to the initiation of a fresh charge on appeal,
in violation of all the procedural safeguards and the return of an unfair
and unjust finding of guilt. In effect, the 2nd Respondent stood in as a
substitute of the initial trier, a practice that is highly shunned upon by
the courts of law (see Mondi Craft v PPWAWU & others (supra).
26. On the last ground of appeal, it was submitted that in the initial
hearing, the appellant was denied his rights flowing from the procedural
requirements of dismissal for misconduct. Specific reference was made to
the rights to plead, mitigate and cross examine witnesses. It was argued
that while the record may suggest that such were granted, they were in
fact not afforded to Appellant.
27. In answer, it was submitted that Appellant was afforded the
opportunity to defence himself. Reference was made page 28 of the record
where Appellant was afforded the opportunity to state the reason why he
may not be dismissed. Specific reference was made to an unnumbered
paragraph number four where the following is recorded,
on the basis of the finding of guilty against you and the recommendation
for your dismissal, you are invited to show cause, within a period of seven
(7) days of receipt of this letter, why you may not be dismissed from the
Public Service.
Page 304 of 361
28. Further reference was made to page 21 of the record, where Appellant
was informed of his rights in the hearing. This is recorded as follows,
You are notified of the following rights that you may exercise:
1. You are allowed to bring a representative who must be your colleague
within your Ministry or Department. Please note that the right to
representation does not include representation by a legal practitioner;
2. You may bring a witness/witnesses;
3. You or your representative, have a right to cross examine evidence or
witnesses.
It was argued that the fact that Appellant did not exercise the above
rights does not mean that they were denied to him.
29. We are satisfied from the quoted extracts that Appellant was afforded
his rights to mitigate and cross examine the witnesses of Respondent at
the initial disciplinary hearing. We say this because in as much as
Appellant disputes them, he had not tendered any evidence to support his
argument. He has basically made a bare denial of the extension of the
said rights. Our law is clear that bare denials are unconvincing and
unsatisfactory
(see
Mokone
v
Attorney
General
&
others
CIV/APN/232/2008.) That notwithstanding, there is no record that
Appellant ever pleaded to the charges that he faced, except that he lead
evidence disproving the charges against him.
30. We acknowledge that in that light of this, the 2nd Respondent ought to
have found that there was a breach of procedure in the initial hearing.
However, even if 2nd Respondent had made this finding, it would not have
vitiated the entire proceedings. We say this because appellant did not
suffer any substantial prejudice from the said breach. According to the
summary of the proceedings, Appellant led evidence in contradiction of
the charges against him. Therefore, the breach does not sustain the
granting of an appeal.
31. In the light of Our finding on ground two, this appeal ought to
succeed. However, it is Our view that an award of reinstatement, sought
by Appellant, would not be appropriate under the circumstances. We
have confirmed and made a finding that Appellant committed an act of
misconduct involving the forging of the signature of the Principal
Secretary. It is Our view that an appropriate remedy would be that of
compensation.
32. Appellant prayed for order of costs of suit but did not make any
submissions to support the prayer. The assumption is that the prayer is
sought on the premise that costs follow suit. We have stated before that
as a Court of equity and fairness, We are not bound by the principles of
the ordinary civil courts regarding costs (see Mokone v G4S Cash
Solutions (Pty) Ltd LC/31/2012). Costs normally follows suit in these
court but not in this Court. We make an award of costs where a party or
both have been frivolous or vexatious. Neither of these grounds have been
Page 305 of 361
alleged as the basis for the prayer for costs. Therefore, we decline to make
such an award.
AWARD
a) That the appeal is upheld;
b) That the matter be remitted to the 2nd Respondent for a determination of
the compensation amount;
c) No order as to costs is made; and
d) This order be complied with within 30 days of receipt herewith.
2013.
T. C. RAMOSEME
Mr. S. KAO
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENTS:
ADV. DA SILVA MANYOKOLE

ADV. MOSHOESHOE
Page 306 of 361

HELD AT MASERU
LC/REV/100/2011
A0754/2009

LESOTHO REVENUE AUTHORITY
APPLICANT
And
MAMONYANE BOHLOKO
MR. M. KETA (ARBITRATOR)
THE DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of the 2nd Respondent arbitration award. 1st Respondent
raising a jurisdictional preliminary point that this is an appeal disguised as a
review. Applicant arguing that mistake of law, failure to consider and apply a
mind, unreasonableness; and failure to follow procedure are not review
grounds. Court finding that all these are reviewable grounds and that the
averments contained in the founding pleadings of the Applicant make out a
prima facie case for review. Applicant withdrawing one ground of review and
remaining with only three grounds. Court not finding merit in the remaining
review grounds and refusing the review application. Court ordering the
reinstatement of the 2nd Respondent arbitration award. No order as to costs
being made.
award in referral A0754/2009. It was heard on this day and judgment
was reserved for a later date. Applicant was represented by Adv.
Mofilikoane, while 1st Respondent was represented by Advocate Ntaote.
The 2nd and 3rd Respondents were cited for convenience.
2. The background of the matter is that sometime in October 2009, 1st
Respondent instituted proceedings before the 3rd Respondent wherein She
challenged the fairness of her dismissal. It was 1st Respondents case that
the non-renewal of her contract of employment amounted to an unfair
dismissal as she had a reasonable expectation that it would be renewed.
The 2nd Respondent was the presiding Arbitrator in these proceedings and
He issued an award in favour of the 1st Respondent. In terms of the
award, the Applicant was ordered to pay to 1st Respondent an amount of
M250,200.00 as compensation for the unfair dismissal.
Page 307 of 361
3. Applicant then initiated the current review proceedings wherein it sought

the review, correction or setting aside of the said award. At the
commencement of the review proceedings, 1st Respondent raised a
preliminary point arguing that the grounds raised were appeal disguised
as review. The suggestion was strongly opposed by Applicant. Both
parties were given the opportunity to make addresses after which the
Court declined to pronounce itself, and directed parties to address the
merits as well. The Court had then informed the parties that it would only
consider the merits if the preliminary point is not upheld.
4. In terms of the heads of argument of Applicant, there are only four
grounds of review namely failure to consider and apply ones mind,
mistake of law, unreasonableness and failure to follow the correct
procedure. However, during argument in the merits, Applicant withdrew
the ground relating to unreasonableness and remained with only three. It
is in the light of this background that Our judgment is recorded in the
following.
Preliminary point
5. It was submitted on behalf of 1st Respondent that all grounds raised on
behalf of the Applicant are not review but appeal grounds. It was stated
Herbstein and Van Winsen, in their book The Civil Practice of the
Supreme Court of South Africa, 4 edition, draw the distinction between an
appeal and a review. In that book, the following were identified as
grounds of review,
a) Absence of jurisdiction on the part of the court;
b) interest in the cause, bias, malice or corruption on the part of the
presiding officer;
c) gross irregularity in the proceedings; and
d) the admission of inadmissible or incompetent evidence, or the rejection of
admissible or competent evidence.
6. It was submitted that the grounds raised by Applicant related to failure to
apply ones mind, mistake of law, unreasonableness as well as failure to
consider evidence. It was argued that these are not competent review
grounds as shown from the authority above, but an appeal. It was added
that they reflect dissatisfaction on the part of the Applicant against the
conclusion of the 2nd Respondent. It was stated that the awards of the 3rd
Respondent are final and binding upon parties and as such a dissatisfied
party only has a review for a remedy and not an appeal. On these
premises, it was prayed that this review application be dismissed.
7. In answer, Applicant submitted that all grounds are competent review
grounds. It was stated that the law on review provides that an award may
be reviewed on any grounds permissible in law and any mistake of law
that materially affects it. Reference was made to section 228F (3) of the
Labour (Amendment) Act 3 of 2000 as amended, wherein the following is
provided for,
Page 308 of 361
The Labour Court may set aside an award on any grounds permissible in
law and any mistake of law that materially affects the decision.
8. To augment the above submission, the Court was further referred to the
case of Johannesburg Stock Exchange & another v Witwatersrand Nigel
Ltd & another 1988 (3) SA 132 (A) at 152 A-E, where the following was
recorded,
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 motive 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 interference that
he had failed to apply his mind to the manner aforestated.
9. It was further submitted that among the review grounds raised are that
the 2nd Respondent committed a material mistake of law that goes to the
root of the matter, in that He had erroneously concluded that Applicant
cannot raised poor work performance as a ground for non-renewal.
Secondly, that the 2nd Respondent failed to apply His mind to the
evidence before him that good work performance was a precondition for
renewal of the contracts while poor work performance would lead to nonrenewal.
10. Furthermore, it was stated that the 2nd Respondent failed to consider
evidence before him that the Commissioner General was entitled to
interrogate the score prior to making a recommendation for renewal,
which facts were material towards the fair determination of the matter.
Lastly, that the learned Arbitrator failed to follow the correct procedure in
dealing with the matter in that He failed to determine the claim that was
before Him, which was the fairness or otherwise of the dismissal of the 1st
Respondent. Applicant concluded that all grounds raised find support in
the above referred authorities and are thus competent review grounds.
11. It is an established principle of Our law that whenever a preliminary
point of this nature has been raised, the Court must consider the
founding pleadings of the applicant party alone and determine if they
prima facie make out a case for review. The test was laid down in the case
of Khajoe Makoala v Masechaba Makoala C of A (CIV) 04/2009 as follows,
... whether the applicants affidavits make out a prima facie case.
Consequently the applicants affidavits alone have to be considered and
the averments contained therein should be considered as true for the
purpose of deciding upon the validity of the preliminary point.
Page 309 of 361
12. In casu, the 1st Respondents case is premised on the review grounds
as suggested by Herbstein and Winsen. We wish to comment that We
have dealt with this issue before in the case of Nedbank Lesotho Limited v
Lefosa & others LC/REV/01/2011. At paragraph 10 of the Our Judgment,
We remarked as follows,
It is Our opinion that the grounds suggested by Herbstein & Van Winsen
are merely illustrative and not conclusive. . It is Our opinion that they
only go to the extent of demonstrating the circumstances under which
review proceedings are a proper procedure.
We therefore find no compelling reasons to deviate from Our earlier held
view save to maintain it.
13. This above said notwithstanding, We are of the view that the grounds
raised by Applicant are prima facie review grounds. They are not only
supported by the authorities referred to above, but in their own standing
sound in procedure. To mention but a few, in the process of making a
decision, an arbitrator is bound in law to apply his/her mind to all facts
and evidence before him/her in as much as he/she is obliged to consider
all material evidence and to follow procedure in order to make a just and
equitable decision. Failure to do so amounts to an irregularity.
14. It is therefore Our view that both the provision of section 228E(3) as
well as the authority in the case of Johannesburg Stock Exchange &
another v Witwatersrand Nigel Ltd & another (supra), cover all the grounds
that have been raised by Applicant, as being review grounds. The
averments that have been made by the Applicant in its founding
pleadings to support these grounds make out a prima facie case for
review which must be answered by the 1st Respondent. Simply put, the
1st Respondent has a case to answer.
15. While We acknowledge that in terms of section 228E(5) of the Labour
Code Act (supra), that the awards of the 3rd Respondent Shall be final
and binding, they are nonetheless reviewable in terms of section 228F(1),
of the same Act. Further that We acknowledged that it goes without
saying that Applicant is dissatisfied with the arbitration award, that does
not make its approach an appeal. In the case of J. D. Trading (Pty) Ltd t/a
Supreme Furnishers vs. M. Monoko & others LAC/REV/39/2004, the court
stated 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.
16. In the same Judgment, the Court went on to make a distinction
between an appeal and a review in the following,
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.
Page 310 of 361
17. In view of the above authority, it is within Applicants right to

approach this Court to address its dissatisfaction with the arbitration
award. The reason is not hard to find as both an appeal and review are
made to address the same complaint, which is the dissatisfaction with the
judgment given. However, for this Court to entertain such a
dissatisfaction, it would rest on the dissatisfaction being premised on
procedural irregularities, as anything short of that will border along
jurisdictional issues. Having found that the grounds raised by Applicant
are prima facie review grounds, We accordingly dismiss the point in limine.
Merits
18. Applicant laid the basis of its submissions by outlining the applicable
principles on legitimate expectation. The Court was referred to a number
of authorities and principles enunciated therein. Among the authorities
were the cases of Thabo William Van Tonder v Lesotho Highlands
Development Authority LAC/CIV/APN/06/2004; National Director of Public
Prosecutions v Phillips and others 2002 (4) SA 60 (w) at Para 28; Diereks v
University of South Africa (1999) 20 ILJ 1227 (LC) at page 1246, para 133,
South African Clothing & Textile Workers Union v Cadema Industries (Pty)
Ltd [2008] ZALC 5; and Mediterranean Woollen Mills (Pty) Ltd v S. A
Clothing & Textile Workers Union (1998) 19 ILJ 731 (SCA) at 733-734. In
the light of this legal background, Applicant proceeded to address the
merits of its application.
19. However, before We deal with the merits of the review application, We
wish to note that We have gone through all the authorities referred to by
Applicant, when laying the basis of its subsequent submissions. We
acknowledge the principles enunciated therein, safe to say that Applicant
has not made any link in its submission to the authorities referred to, as
it has simply laid out the principles. Having failed to do so, it is not for
this Court to establish the link as that would be tantamount to this Court
making out a case for Applicant. Such a conduct would be a serious
irregularity rendering Our judgment worthy of being set aside (see
Solomon & another NNO v De Waal 1972 (1) SA 575 (A) at 580E-H, cited
with approval by this Court in Kopano Textiles v DDPR and another
LC/REV/101/2007). We now proceed to deal with the submissions of
parties.
20. The first ground of review was that the learned Arbitrator failed to
apply His mind to the relevant issues in accordance with the behest of
the statute and the tenets of justice. It was stated that 1st Respondent
had claimed an unfair dismissal based on non-renewal of her contract of
employment, while it was the defence of Applicant that the expectation for
renewal had been extinguished by 1st Respondents poor work
performance, and the fact that she had earlier been warned about same.
It was said that the learned Arbitrator only applied His mind to the claim
by 1st Respondent and excluded the defence of Applicant.
Page 311 of 361
21. The Court was referred to the evidence of one Lesenyeho and Letjama
at pages 201 to 216; and 257 to 282, respectively, It was said that this
evidence was clear that Applicant was underperforming and that this was
fundamental for the fair and equitable determination of the matter. It was
argued that in failing to consider this evidence, the learned Arbitrator
clearly failed to apply his mind or to consider if an employee whose work
was poor and who had also been cautioned about poor work performance
could have had a legitimate expectation for renewal.
22. It was further submitted that the learned Arbitrator failed to consider
and apply His mind to the evidence that the Commissioner General was
not a rubber stamp. It was added that after the recommendation for
renewal had been made, the Commissioner General reserved the right to
interrogate the scores allocated to a recommended employee, before
accepting the recommendation for renewal. It was argued that had this
evidence been considered, the learned Arbitrator would have realised that
the recommendation for renewal that was made to the Commissioner
General did not give rise to the expectation for renewal.
23. It was furthermore submitted that the learned Arbitrator made an
award that was based on the fact that 1st Respondent earned an amount
of M20,850.00 per month, notwithstanding the fact that 1st Respondent
testified that she earned the amount of M20, 668.00 per month. It was
added that the amount that used in calculating the award amount was
more than the amount pleaded by 1st Respondent as her salary. It stated
that both amounts, i.e. the amount used and that pleaded by 1st
Respondent, are different from the amount that Applicant testified to as
being the 1st Respondent salary per month. It was said that the learned
Arbitrator therefore assumed the salary of 1st Respondent and did not
consider the evidence of Applicant or the 1st Respondent salary regarding
her salary.
24. It was submitted in reply that the learned Arbitrator considered and
applied His mind to all facts before him. It was stated that the case before
the learned Arbitrator was for legitimate exception and not poor work
performance. It was added that the learned Arbitrator had to consider if
there were factors upon which the 1st Respondent relied upon for her
case, which He did. It was stated that the learned Arbitrator addressed
the issue of poor work performance under paragraph 16 of the arbitration
award, wherein He addressed both parties arguments.
25. We are in agreement with the 1st Respondent that the case before the
learned Arbitrator was for legitimate expectation and not for poor work
performance. However, while this may be the case, the learned Arbitrator
was nonetheless enjoined in law to consider any evidence in defence that
attempts to negate the existence of the alleged expectation. It is common
cause that the defence of the Applicant in the arbitration proceedings was
that 1st Respondent had no expectation of renewal, by virtue of her poor
Page 312 of 361
work performance and the fact that she had previously been cautioned
about same.
26. Therefore, the learned Arbitrator was duty-bound to consider and
apply His mind to the Applicants evidence of 1st Respondent poor work
performance, as it was relevant to the matter before Him. Our conclusion
finds support in the case of Johannesburg Stock Exchange v
Witwatersrand Nigel Ltd 1988 (3) SA 132 AD at 152 C-D, where the court
in explaining the phrase failure to apply ones mind, stated that it is a
reviewable irregularity where the commissioner (Arbitrator in our
jurisdiction),
took into account irrelevant considerations or ignored relevant ones;
This essentially means that an arbitrator is duty-bound to ignore
irrelevant issues and to only consider the relevant ones.
27. We have perused the arbitration award, and in particular paragraph
16. The said paragraph is recorded as follows,
The respondents main contention was that the applicant was not
renewed on the basis of poor work performance. I will point out that
evidence was led by respondent which showed the applicants poor work
performance. There was further evidence that was furnished to show that
applicant had been cautioned of her performance and urged to improve on
those areas. I will mention that a fixed contract is not a substitute for
taking action for poor work performance. There is a procedure to be
followed when dealing with an employee who is under performing. The
respondent cannot sit back and watch an employee who is not performing
without taking any action and when it is time to renew the contract bring
up the issue of non-performance as a reason for non-renewal
28. A simple reading of paragraph 16 shows an acknowledgement of the
existence of the evidence of poor work performance and the caution made
to 1st Respondent about her poor work performance. Clearly, this
demonstrates that the learned Arbitrator considered and accepted all
evidence of poor work performance. The learned Arbitrator is further
recorded to have dismissed the Applicants defence on the ground that it
ought to have dealt with 1st Respondent through the prescribed
procedures, than to resort to non-renewal of her contract. This again
clearly demonstrates that the learned Arbitrator applied His mind to the
facts before Him.
29. However, We confirm that the learned Arbitrator failed to consider the
effect of poor work performance on the 1st Respondents alleged
expectation for renewal of her contract and the evidence that the
Commissioner General reserved the right to interrogate the scores prior to
renewal of the contracts. It is Our view that having disqualified the
evidence of poor work performance, as He did, it would only have served
academic purposes for Him to evaluate both the effect of poor work
performance on the alleged expectation, as well as the professed role of
the Commissioner General in the recommendation processes.
Page 313 of 361
30. Further, it is alleged that the learned Arbitrator assumed the salary of
1st Respondent as He failed to consider the evidence of both Applicant
and 1st Respondent regarding the said salary. While this averment has
not been challenged by 1st Respondent, Applicant nonetheless has the
responsibility to support such allegations with the record. We have stated
the reason behind these requirements before in the case of Molahli v
Morija Press Board & another LC/REV/25/2012, at paragraph 12 of the
judgment. This is recorded in the following,
Whenever it is alleged that the learned Arbitrator ignored or disregarded
certain evidence, of an applicant party to review proceedings, the Court
must be referred to a specific portion of the record of proceedings, wherein
the ignored or disregarded evidence is reflected. This requirement is
premised on the fact that the party against whom allegations of
irregularities are made, is not and cannot be brought before Court to state
their side. This abnormally is cured by reference to the record of
proceedings to prove the allegations of irregularities. This is the essence of
a record of proceedings in review matters, irrespective of whether the
review is opposed or not.
31. In casu, Applicant has barely made these allegations of failure to
consider evidence without referring the Court to the record of proceedings
where such allegations were made. It is a trite principle of law that bare
allegations of facts are unsatisfactory and unconvincing and cannot be
relied upon to make a binding finding (see Molefi & others v Tai Yuan
Garments (Pty) Ltd & others LC/REV/119/2011; LC/REV/25/2012;
LC/REV/24/2012). In view of this finding, Applicant has failed to make
out a case for failure to consider the evidence of the 1st Respondent
salary.
32. The second ground of review was that the learned Arbitrator
committed a material mistake of law in making a finding that Applicant
cannot raise poor work performance as a ground for non-renewal. The
Court was referred to the last sentence at paragraph 16 of the arbitration
award, where this finding is alleged to have been made. It was argued
that in making this finding, the learned Arbitrator clearly relied on some
fixed rule or conventional understanding which disabled him from his
obligation to consider all the circumstances of the case before him,
particularly that good performance was the ground for renewal while poor
performance would lead to non-renewal. It was concluded that this is a
clear mistake of law.
33. Applicant relies on the last sentence of finding of the learned
Arbitrator at paragraph 16 of the arbitration award, for its claim of a
mistake of law. As a result, all the issues in support of this grounds flow
from the alleged mistake of law. The said finding in issue is recorded as
follows,
The respondent cannot sit back and watch an employee who is not
performing without taking any action and when it is time to renew the
Page 314 of 361
contract bring up the issue of non-performance as a reason for nonrenewal

34. In Our view, Applicants claim of a mistake of law is based on its
interpretation of the above extract. We say this because neither the
extract recorded above nor any part of the concerned paragraph, at least
as quoted verbatim at paragraph 27 of this judgement, indicates the
conclusion of Applicant that the learned Arbitrator made a finding that
poor work performance cannot be a reason for non-renewal. It is therefore
Our opinion that the interpretation of the finding of the learned Arbitrator
by Applicant, under paragraph 16 is not accurate. In view of this, it would
therefore be wrong for Us to proceed on the basis of an incorrect
interpretation of the said finding, in evaluating the Applicants case.
35. From the extract in issue, the learned Arbitrator is clear that an
employer cannot continue to retain an employee who is underperforming
without taking all the necessary measures and to only raise same as the
basis of the non-renewal of the contract of employment. This does not in
any way suggest that poor work performance is not a competent ground
for non-renewal of a contract. It simply places a precondition in order for
poor work performance to stand as a valid reason for non-renewal. In Our
view, there is nothing wrong in the conclusion that was made by the
learned Arbitrator. In fact it finds support in Our law, in particular under
sections 12, 13 and 14 of the Labour Code (Codes of Good Practice) Notice
of 2003. These sections provide for the procedural and substantive
requirements of a claim based on poor work performance.
36. The last ground of review was that the learned Arbitrator did not follow
the correct procedure in dealing with the matter. It was submitted that in
cases of unfair dismissals owing to non-renewal of a fixed term contract,
the existence of the legitimate expectation of renewal, only establishes
that dismissal occurred and not that it was unfair. As a result, having
found that Applicant had a legitimate expectation, as the learned
Arbitrator did, He was then enjoined to determine its fairness or
otherwise. It was added that had the learned Arbitrator followed the
correct procedure, He could have made a finding that poor work
performance was a sufficient ground of the dismissal of 1st Respondent.
37. In reply, 1st Respondent submitted that the learned Arbitrator followed
the proper procedure in dealing with the matter. It was stated that the
learned Arbitrator did not only find the existence of a legitimate
expectation, but also made a finding that the dismissal of 1st Respondent
was unfair. The Court was referred to paragraph 17, on page 4 of the
arbitration award where this was alleged to have been recorded.
38. A claim for non-renewal based on a legitimate expectation is referred
in terms of section 68(b) of the Labour Code Order (supra). The said
section provides as follows,
Dismissal shall include
Page 315 of 361
the ending of any contract for a period of fixed duration or for the
performance of a specific task or journey without such contract being
renewed, but only in cases where the contract provided for the possibility
of renewal;
39. We are therefore in agreement with Applicant that in a claim for unfair
dismissal based on non-renewal of contract of employment, the existence
of legitimate expectation only goes to the extent of establishing that a
dismissal occurred. It therefore goes without saying that having
determined that a dismissal occurred the next procedural step is to
determine the fairness or otherwise thereof.
40. We have been referred to paragraph 17 of the arbitration by 1st
Respondent, as being indicative that the learned Arbitrator went beyond
determining the existence of the dismissal, to its fairness. This paragraph
is recorded in the following,
I will not deal with the issue of the applicants disciplinary action that was
taken against as the said action was instituted after a decision not to
renew was taken against applicant. On the basis of all the above I find that
the non-renewal of the applicants fixed term contract amounted to unfair
dismissal.
41. It is Our view that this paragraph demonstrates that the learned
Arbitrator went beyond just merely determining the existence of the
dismissal of 1st Respondent. In that paragraph, the learned Arbitrator
makes a finding that the disciplinary proceedings were taken after the
decision not to renew in the light of a legitimate expectation, i.e. the
dismissal, had been taken. On the premise of this finding, coupled with
His evaluation of the rest of the evidence, He found that the non-renewal,
i.e. the dismissal, was unfair. We therefore find no irregularity on the part
of the learned Arbitrator.
Page 316 of 361
AWARD
We therefore proceed to make an award in the following terms:
a) That the application for review is refused;
b) The award in referral A0754/2009 remains in force;
herewith; and
d) That no order as to costs is made
2013.
T. C. RAMOSEME
Mr. S. KAO
I CONCUR
Mrs. M. MOSEHLE
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. MOFILIKOANE
ADV. NTAOTE
Page 317 of 361

HELD AT MASERU
LC/REV/71/2010
H0002/2010

POPE JOHN XXIII HIGH SCHOOL
THE SCHOOL BOARD
1st APPLICANT
2nd APPLICANT
And
TABANG TELUKHUNOANA
CATHOLIC SCHOOL SECRETARIAT
TEACHING SERVICE DEPARTMENT (TSD)
THE ARBITRATOR (L. NTENE)
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
Application for reinstatement of a matter dismissed for want of prosecution.
Respondents only indicating their intention to oppose the application without
actually opposing same. Further Respondent failing to attend hearing on the
scheduled date and matter proceeding both unopposed and by default. Court
finding merit in the application and granting the application for reinstatement
of the matter. Court further finding that there can only be one certified record
of proceedings of the DDPR and directing Applicants to proceed in terms of
Rule 16 of the Labour Appeal Court Rules on the basis of the record that they
have.
1. This is an application for the reinstatement of review application that was
dismissed for want of prosecution. It was heard on this day and judgment
was reserved for a later date. Applicants were represented by Adv.
Metsing and there was no appearance for the Respondents.
2. The background of the matter is that 1st Respondent had referred a claim
for unpaid salary with the DDPR, wherein the 4th Respondent was the
presiding Arbitrator. It was 1st Respondents case, at the DDPR, that he
worked for the 1st Applicant for 6 months during which period he was not
paid. The learned Arbitrator made a finding in 1st Respondents favour
that the Applicants must pay him the salaries claimed. The said award
was issued on the 26th June 2010 and later served upon the Applicants.
3. Unhappy with the arbitration award, the Applicants then initiated review
proceedings wherein it sought the review, correction or setting aside of
the 4th Respondent arbitration award. Shortly thereafter an intention to
oppose and an answer were filed on behalf of the 1st Respondent.
Page 318 of 361
Subsequent thereto, 1st Respondent filed an application for dismissal of

the review application for want of prosecution. The said application was
then set down hearing on the 20th June 2013. On this day both parties
failed to attend the hearing and the Court dismissed both the application
for dismissal for want of prosecution as well as the application for review,
for want of prosecution.
4. On the 5th July 2013, Applicants then lodged the current application
wherein they sought the reinstatement of the review application.
Subsequent thereto, Respondents only filed their notice of intention to
oppose and no further processes. Applicant then had the matter enrolled
for this day. We wish to note that even on the date of hearing, the
application for reinstatement of the review application still remained
unopposed and in addition to that Respondents did not attend the
hearing. As a result, the application proceeded both unopposed and in
default of the Respondents. Our full judgment is therefore in the
following.
5. It was Applicants case that this matter had been set down for hearing at
10:00am on the 20th June 2013. However, it was dismissed for want of
prosecution at around 09:30am of the same day, on the ground that both
counsel were not in attendance. It was submitted that it is clear from the
averments made the dismissal of the matter was done prematurely as the
time scheduled for hearing had not yet come and therefore that
Applicants were not in default at all.
6. It was further submitted that prior to the 20th June 2013, the matter had
been postponed on two occasions owing the unavailability of the record of
proceedings before the 4th Respondent. It was added that even on the 20th
June 2013, the matter would not have proceeded as the record was
unavailable and still is to this day. On this regard, Applicants requested
the intervention of the Court in ensuring that the record of proceedings is
availed so that the matter can proceed.
7. It was further submitted that Applicants have good prospects of success
evident in the grounds of review, as reflected under paragraph 6 of the
founding affidavit to the review application. It was added that there are
possibly more grounds but that the Applicants have been disabled from
amplifying the already canvassed grounds by the unavailability of the full
record of proceedings. It was said that the provided certified manuscript
version of the record does not reflect the entire proceedings, and these
include some of the irregularities committed by the presiding officer.
8. The requirements in an application for reinstatement are similar to those
in an application for rescission. The reason is not hard find as both are
the result of the default in appearance on the side of a party or parties.
These requirements were laid out in the case of Loti Brick v Thabiso
Mphofu & others 1995 -1996 LLR-LB 447, as follows,
Page 319 of 361
(a) The applicant must give a reasonable explanation for his default;
(b) The application must be bona fide and not made with the intention of
merely delaying the plaintiffs claim;
(c) the applicant must show that he has a bona fide defence to the
plaintiffs claim, it being sufficient if he sets out averments which, if
established at the trial, would entitle him to the relief asked for, he need
not deal with the merits of the case or produce evidence that the
probabilities are actually in his favour (see Grant v. Plumbers (Pty) Ltd.
1949 (2) S.A. 470).
9. Having laid the legal basis against which We will proceed to evaluate the
submission and evidence of Applicants, We wish to highlight one very
important issue that affects the matter materially. This matter is not
opposed and that being the case, We are bound to proceed on the basis of
the acceptance of the evidence of Applicants as being the only true and
accurate narration of the events. Our conclusion finds support in the
finding of the court in Theko v Commissioner of Police and another (supra),
where the Court had the following to say,
this court.
10. From the unchallenged evidence given by Applicants, We are satisfied
that their explanation for failure to attend is reasonable. We say this
because in dismissing the review application for want of prosecution, the
reviewing Court was clearly harbouring under a mistake that the matter
had been scheduled to proceed at an earlier time than that which had
been communicated to both parties. This in essence also explains why it
was not only Applicants who were not present in the proceedings but also
the Respondents. It is therefore clear that it was not the fault of both
parties that they were not in attendance at the time that the matter was
dismissed and they cannot therefore be penalised for it.
11. Regarding the prospect of success, We have been referred to paragraph
6 of the founding affidavit to the review application. This paragraph
contains the grounds of review raised on behalf of the Applicants. Having
perused them, We are convinced that they make out a prima facie case,
which if properly substantiated may lead to the granting of the review
application. These grounds demonstrate several occasions of failure to
consider the evidence of the Applicants by the 4th Respondent, and for
this reason We will not quote them in this record. We therefore find that
Applicant has bona fide prospects of success.
12. It has been alleged that the certified record that has been supplied by
the Registrar, from the DDPR, is incomplete by reason of the fact that it
does not reflect all the irregularities that Applicants have and/or wish to
raise. In this regard, We have been requested to intervene. We wish to
Page 320 of 361
note that there can only be one certified record of the proceedings before
the DDPR. When an arbitrator certifies a record of proceedings, this
essentially means it is the one and only official document that represents
what took place in the hearing. As a result, We cannot order the provision
of the record other than the one that has been submitted.
13. It is clear to Us that the Applicants are seized the certified record of
proceedings before the 4th Respondent. All issues relating to the records
of proceedings before the DDPR are governed by Regulation 30 of the
Labour Code (DDPR) Regulations of 2001. In terms of this section, and in
particular, Regulation 30(6), The transcript or the hand-written notes or
the electronic record so certified as correct shall serve as proof of its
correctness In terms of the Rules of this Court, once seized with the
certified record of proceedings, Applicants must proceed in line with Rule
16 of the Labour Appeal Court Rules of 2002 and on the basis of the
record that they have.
AWARD
a) That the application for reinstatement is granted;
b) Applicants are to proceed in terms of Rule 16 of the Labour Appeal Court
Rules.
c) This order must be complied with within 30 days of receipt herewith.
2013.
T. C. RAMOSEME
Mrs. MOSEHLE
Mrs. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. METSING
NO APPEARANCE
Page 321 of 361

HELD AT MASERU
LC/REV/99/2012
A1139/2011

ECLAT EVERGOOD TEXTILE
MANUFACTURERS (PTY) LTD
APPLICANT
And
LEFU MOLEFI
MATSEPANG SHEMANE
THE DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of the 3rd Respondent arbitral award. Respondent
making an application for dismissal of review application for want of
prosecution. Applicant requesting the postponement of the matter on the date
of hearing. Court refusing the application for postponement. Court finding that
the application for dismissal for want of prosecution is not opposed. Court
proceeding to hear application and granting same. Court not making an order
as to costs.
1. This is an application for the dismissal of the review application of the
award in referral A1139/2011, for want of prosecution. It was heard on
this day and judgement was reserved for a later date. Parties herein are
cited as they appear in the main review application for the convenience of
the Court. Applicant was represented by Advocate Klass and 1st and 2nd
Respondents were represented by Advocate Rasekoai. The background of
the matter is essentially that Applicant lodged review proceedings with
this Court around the 25th October 2012. Subsequent thereto, Applicant
filed an application for dismissal for want of prosecution. The application
was not opposed.
2. The above notwithstanding, on the date of hearing, Applicants
representative made appearance with the intention to seek the
postponement of the matter. The application was opposed and parties
were given the opportunity to make their addresses. We dismissed the
application for postponement and proceeded with the application for
dismissal for want of prosecution. Given that the said application was
unopposed, We directed that it proceed in that fashion. After hearing the
submissions of Advocate Rasekoai for 1st and 2nd Respondent, We made a
decision with brief reasons, granting the application and dismissing the
Page 322 of 361
review application for want of prosecution. Our full judgment on the

matter is thus as follows.
Application for postponement
3. Advocate Klass for Applicant submitted that a copy of his file relating to
this matter had been misplaced. He sought a postponement of the matter
to secure the file and to attempt negotiations towards settlement with the
1st and 2nd Respondents. He added that although Applicant company is
just recovering from closure, after a situation of unrest that took place on
its grounds, he believed that the 14 days would be sufficient time for both
these processes to take place.
4. Advocate Rasekoai replied that the Applicant was served with an
application for dismissal for want of prosecution sometime in May 2013.
He added that since then to date, Applicant had not filed any opposition
to the application or to even hint the problems that they were
experiencing. He submitted that it would be greatly prejudicial to 1st and
2nd Respondents, if this matter was to be postponed on such feeble
grounds. It was added that this would cause an undue delay towards
finality of this matter. It was further submitted that there were no
prospects of settlement in the matter, as both the 1st and 2nd
Respondents were not willing to explore it anymore.
5. It was added that the postponement was an attempt, on the part of
Applicant, to delay finalisation of this matter. To fortify this argument, it
was stated that sometime in August, the Registrar of this Court reminded
Applicant, through a letter, to return the files that it had earlier uplifted
in preparation for this days hearing. Notwithstanding the notification, the
files were not returned and no communication was made to suggest the
problems that Applicant is now relying on for postponement. It was
further submitted that in the event that this Court should grant a
postponement, it should be with wasted costs for the day and that they
be payable within 7 days.
6. In the case of Tumo Lehloenya and Others vs. Lesotho Telecommunications
Corporation LC/20/2000, when dealing with an application for
postponement, the Court cited with approval a quotation from Real Estate
Services (Pty) Ltd vs. Smith (1999) 20 ILJ 196 at 199, where Revelas J had
this to say,
In courts of law, the granting of an application for postponement in an
indulgence by the court exercising its judicial discretion. A reasonable
explanation is usually required from the party seeking the postponement.
7. Two reasons for the postponement have been presented on behalf of
Applicant. The first relates to the misplaced files and the other relates to
the desire to explore settlement. Respondents are clear on their stance in
relation to the second ground for postponement, as they are not desirous
of engaging in further negotiations with Applicant. If parties are not
Page 323 of 361
willing to negotiate, this Court cannot compel them to. As a result, a

postponement on these grounds falls away.
8. On the remaining ground, We are in agreement with Respondents that
Applicant is merely trying to unduly delay finalisation of this matter.
While it is not clear from the submissions of Applicant when it is that
they became aware about the missing files or even the efforts made to
secure same, they had ample time to attempt to find the file. We say this
because at least two instances, in which this opportunity was availed to
Applicants, have been highlighted in the Respondents submissions.
9. Firstly, Applicants were reminded to return the files which they had
earlier uplifted from the Courts records in preparation for the hearing of
this matter on this day. Secondly, Applicant was served with an
application for dismissal for want of prosecution of the review application.
In Our view, these notices called upon Applicant to ensure that their
records were in order or to at least communicate the issue of the missing
file to Respondent. Having failed to look for and locate the file when
circumstances called for such action, We are inclined to agree with 1st
and 2nd Respondents that this application is merely intended to delay
finalisation of this matter. The postponement is therefore refused.
Dismissal for want of prosecution
10. It was 1st and 2nd Respondents case that Applicant lodged a review
application with this Court on the 25th October 2012. Thereafter no
further process was filed by or on behalf of Applicant. Then on the 16th
April 2013, which was about 6 months later, 1st and 2nd Respondents
wrote a letter to Applicant requesting them to avail a copy of the record of
proceedings. Since the letter of the 16th April 2013, to date, Applicant has
not done anything to advance this matter. It was argued that this clearly
shows that Applicant is not serious about this matter, but that they are
only trying to avoid complying with the award of the 3rd Respondent. It
was argued that this is causing great prejudice upon 1st and 2nd
Respondent whose award cannot be enforced while these proceedings
continue to remain pending.
11. It is an established principle of law that the right to be heard can only
be given to a party that is willing to utilise it (see Lucy Lerata & others v
Scott Hospital 1995-196 LLR-LB 6 at page 15). In Our view, the conduct of
Applicant is demonstrative of the lack of willingness to utilise this right.
They have lodged proceedings but have done nothing to advance them.
They were constantly reminded about the matter but opted to do nothing.
Having failed to avail the record of proceedings when called to, they ought
to have at least opposed this application, if they really wanted to be
heard.
12. We agree with 1st and 2nd Respondent that for as long as the review
proceedings remains pending, they stand to suffer irreparably, in that the
enforcement of their award is dependent upon the fate of the review
Page 324 of 361
application. In Our view, the conduct of the Applicant Company is

nothing but an abuse of the processes of this Court. This cannot be
condoned as it will lead into the loss of confidence in this Court and
consequently undermine the spirit and purpose behind the establishment
of this Court. We therefore grant this application as prayed by 1st and 2nd
Respondent.
AWARD
herewith; and
e) That no order as to costs is made
2013.
T. C. RAMOSEME
Ms. P. LEBITSA
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1ST AND 2ND RESPONDENTS:
ADV. KLASS
ADV. RASEKOAI
Page 325 of 361

HELD AT MASERU
LC/REV/101/2007
A0650/2006

KOPANO TEXTILES
APPLICANT
And
THE DDPR
THERESIA LETSELA
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the 1st Respondent arbitral award. Several grounds
earlier raised withdrawn and only one left. Court finding merit in the
remaining ground and granting the review application. No order as to costs
being made.
1. This is an application for review of the 1st Respondent arbitral award in
referral A0650/2006. It was heard on this day and judgement was
reserved for a later date. Applicant was represented by Advocate Mohapi
while 2nd Respondent was represented by Advocate Khalane. The brief
background of this application is that 2nd Respondent had referred a
claim for unfair dismissal with the 1st Respondent. The matter was heard
after which the 1st Respondent issued an award in favour of 2nd
Respondent. In terms of the award, Applicant was to pay 2nd Respondent
an amount of M8,700.00 as compensation for his unfair dismissal. It is
this award that Applicant seeks to have reviewed, corrected or set aside.
Several grounds of review had been raised on behalf of Applicant.
However, they were withdrawn leaving just one on the basis of which this
review was sought. Having heard the submissions of parties, Our
judgment is as follows.
2. Applicants case is that the learned Arbitrator erred in that She
descended into an arena of dispute. In amplification, it was submitted
that the learned Arbitrator cross examined witnesses who testified on
behalf of the Applicant in the proceedings. It was further submitted that
this appears in several pages of the record of proceedings, from page 3 to
page 27, where the evidence of Applicants witness, by the names of
Lineo, is recorded.
Page 326 of 361
3. It was argued that in these pages, the learned Arbitrator was doing more
than just seeking clarity on the issues, but that She was rather on a
mission to discredit that evidence of Applicants witnesses. It was further
submitted the learned Arbitrator would also pass remarks that showed
Her disbelief of the evidence of Applicant witnesses. However, when
Applicants witness gave evidence, the learned Arbitrator did not interfere
in manner that She did during the evidence in chief of Applicant. The
Court was referred to page 28 to page 30 of the record, wherein 2nd
Respondent was giving her evidence in chief.
4. It was submitted that the approach of the learned Arbitrator was unfair
on Applicant and that this rendered the proceedings irregular. The Court
was referred to the case of Solomon & another NNO v De Waal 1972 (1) SA
575 (A) at 580E-H, in support. It was argued that the facts of this case
are similar to those in casu. In this case, the Court held that by
descending into an arena of conflict, the learned judge had disabled
himself from assessing the probabilities and credibility relating to the
issues with due impartiality. Applicant submitted that having descended
into the arena of dispute, the leaned Arbitrator committed an irregularity
that warrants interference with Her award.
5. In reply, it was submitted on behalf of 2nd Respondent that the learned
Arbitrators role in the arbitration proceedings is to seek clarity and to
avoid being partial. It was argued that from the line of questioning during
the arbitration proceedings, the Learned Arbitrator was doing no more
than just seeking clarity. It was added that in fact, Her approach towards
the witnesses was similar in both cases. The Court was referred to pages
30 to 32 of the record.
6. It was argued that while it may appear that the learned Arbitrator was
interrogating the witness, but that was well within the bounds of the law,
as Her interrogation was not aggressive. The Court was referred to the
case of National Union of Security Officials and Guards v Minister of Health
and Social Services 2005 (4) BLLR 373, in support of this proposition. It
was submitted that the interrogation of witnesses in arbitration
proceedings is not an irregularity but that what is irregular is the
aggressive nature of the interrogation.
7. In reply, Applicant submitted that the learned Arbitrator was very
aggressive in her interrogation of the issues. To illustrate this point, the
Court was referred to page 11 of the record where the learned Arbitrator
is record to have uttered the following words,
If you cant prove it, then stop saying Me here bought the sick leave
because you dont have the prove of what you are saying.
It was submitted that this clearly shows the lack of impartiality on the
part of the learned Arbitrator as She unfairly intervened in the
proceedings.
Page 327 of 361
8. We have gone through the record of proceedings before the 1st

Respondent and have confirmed, as alleged by Applicant, that the
approach of the learned Arbitrator was so aggressive that it constituted
an act of cross examination of the Applicants witness. The record is
marred with questions that seek to discredit the evidence of the
Applicant witness as well as remarks that indicate a sense of disbelief
towards the witness. We therefore do not deem it necessary to quote the
incidents in which this is recorded as that would lead us to the
reproduction of the whole record in this judgment. This is clearly reflected
in the questions posed by the learned Arbitrator towards the Applicants
witness by the name of Lineo, as appears from pages 3 to 27 of the
record.
9. A similar approach was not adopted during the evidence of Applicant.
This particularly illustrates the distinction in the approaches of the
learned Arbitrator and highlights the aggressive nature of Her inquiry on
Applicants witness. In so doing, the learned Arbitrator was going beyond
her prescribed role of seeking clarity, to an act of aggressive interrogation
of a witness, which is normally done by a defending party during cross
examination. While the entire record is marred with several instances of
procedural irregularities, the extract from page 11 of the record
exemplifies the nature of exchange that was taking place between
Applicant witness and the learned Arbitrator, which We find to be of such
an aggressive nature that it constitutes an irregularity.
10. As the authority in National Union of Security Officials and Guards v
Minister of Health and Social Services (supra) suggests, such conduct is
prohibited in any proceedings. Having engaged in this conduct, the
learned Arbitrator appears to have taken a side and is thus guilty of
descending into the arena of dispute. In line with the dictates of the
authority in Solomon & another NNO v De Waal (supra), We find that the
conduct of the learned Arbitrator, disabled Her from being impartial and
as such Her award stands to be reviewed and set aside.
11. Applicant prayed that the review application be granted with costs. It
was argued that it is trite law that a successful party in litigation must be
awarded costs. It was further argued that in instances where the Labour
Court has declined to award costs, It relied on section 74 of the Labour
Code Order 24 of 1992. It was submitted that the authority in Boliba
Multipurpose v Kubutu Makara, the Court held that the provisions of
section 74 are limited to dismissal cases and as such they do not apply to
review applications. It was submitted that in review proceedings, costs
follow suit.
12. In reply, 2nd Respondent submitted that it would be improper for this
Court to make an award of costs against 2nd Respondent. It was
submitted in amplification that, 2nd Respondent is represented by the
office of the Labour Commissioner, in terms of section 16 of the Labour
Code Order (supra), due to his indigence. It was added that should such
Page 328 of 361
an order be made, it would not only be unfair and inequitable but that it
would also be impossible to meet.
13. We have stated Our stance in relation to the issue of costs in a
plethora of cases before that, as a Court of fairness and equity, We make
an award of costs in extreme circumstances. We have also indicated
examples of what constitutes extreme circumstances for this said
purpose. Among such examples is where one of the parties or both have
been vexatious in their conduct during the proceedings or where a party
brought or defended a frivolous claim. It is therefore inaccurate that this
Court relies on section 74 in dealing with this issue. As a result, the cited
authority falls away as inapplicable. Moreover, Applicant has not shown
that the circumstances of this matter are worthy of an award of costs
save that costs normally follow suit.
14. Having disqualified his argument, Applicants prayer for costs lacks
the sufficient basis to be upheld. Assuming, it were to hold, the question
of the indigence of 2nd Respondent has not been challenged and neither
has the award of costs been sought against the Representative on a costs
de bonis propriis basis. It would thus be both unfair and inequitable to
award costs against a party who can barely afford legal representation to
vindicate its rights. It would also be irregular to make an award against
the Labour Commissioner when it was not sought, assuming it would find
support in law to do so. We therefore decline to make an award of costs in
favour of Applicant.
AWARD
a) That the review application is granted;
b) This matter in referral A0650/2006 be heard de novo before a different
Arbitrator; and
2013.
T. C. RAMOSEME
Mr. L. MATELA
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 2nd RESPONDENT:
ADV. MOHAPI
ADV. KHALANE
Page 329 of 361

HELD AT MASERU
LC/REV/113/2011
A0621/2011

LIKETSO MOKUBUNG
APPLICANT
And
AON LESOTHO (PTY) LTD
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the 2nd Respondent arbitral award. Two ground of
review that the learned Arbitrator erred in finding that there was no
procedural irregularity in the dismissal of Applicant when there was clear
evidence to that effect that the learned Arbitrator erred by ignoring the
uncontroverted evidence of Applicant. Court finding that arbitrator ignored the
evidence of Applicant on procedural irregularities in her disciplinary hearing
Court further finding that the irregularity does not warrant interference with
the arbitral award. Court further finding that Applicant has failed to prove that
she led uncontroverted evidence contradicting the misconduct she was
charged with. Court finding that all evidence relating to the said charge was
considered.
It was heard on this day and judgment was reserved for a later date.
Applicant was represented by Advocate Molati, while Respondent was
represented by Advocate Mabula. The background of this application is
that Applicant was employed by Respondent from the 1st December 1999,
until She was dismissed for misconduct sometime in March 2010.
2. Thereafter, Applicant referred a claim for unfair dismissal with the 2nd
Respondent, wherein she challenged both the procedural and substantive
fairness of her dismissal. The said claim was dismissed through an
arbitral award on the 27th October 2011, leading to the initiation of the
current review proceedings. Two grounds of review were raised, in terms
of which Applicant sought the review, correction or setting aside of the 2nd
Respondent arbitral award. In the light of this backdrop, that the review
proceedings proceeded on this day and Our judgment is therefore in the
following.
Page 330 of 361

3. Applicants first ground of review was that the learned Arbitrator had
erred in finding that no procedural irregularity was committed by 1st
Respondent, in dismissing Applicant. It was added that there was clear
evidence of procedural irregularity on the record. Specific reference was
made to the testimony of 1st Respondent witness by names of Adv.
Makeka, at page 163 of the DDPR record of proceedings.
4. It was submitted that the said evidence demonstrates that the
complainant was one Mrs. Mohapeloa. Further that, the said Mrs.
Mohapeloa was the Managing Director of the 1st Respondent Company
and a witness in the proceedings that led to the dismissal of Applicant.
Furthermore, that as the Managing Director, the recommendation for the
dismissal of Applicant was made to her and that pursuant to it, she made
the decision confirming the dismissal of Applicant and even wrote a letter
dismissing her from employment.
5. It was argued that Mrs. Mohapeloa was clearly a judge in her own cause
and that this conduct constituted a clear breach of the principles of
natural justice, particularly the nemo judex in sua casu. It was argued
that by virtue of the fact that Mrs. Mohapeloa was a complainant, then
there is no way that her decision to accept the recommendation to
dismiss Applicant, could have been free from bias. The Court was referred
to the cases of Koatsa v National University of Lesotho 1991-1992 LLR-LB
163 at 173-174; and R. v Susses Justices, ex parte McCarthy [1924] 1 KB
256 at 259, in support. It was further argued that once the rules of
natural justice have been breached, it is immaterial if the same decision
would have been reached even if there never been any breach, but that
the decision so made must be declared to be no decision at all. The Court
was referred to the case of General Medical Council v Spacman [1943] AC
627 at 644-5, in support of the latter proposition.
6. It was argued that in the light of the facts demonstrating a procedural
irregularity, the learned Arbitrator made a finding that was different from
the facts in that she found no procedural irregularity in the dismissal of
Applicant. It was argued that the facts were before the learned Arbitrator
but that She ignored them and that this constituted a grave irregularity.
The Court was referred to the case of Standard Bank of Bophuthatswana
Ltd v Reynolds NO and Others 1995 (3) BCLR 305 (B), in support of the
proposition.
7. In reply, it was argued on behalf of 1st Respondent that Applicant has
imported the general application of the principles of civil procedure into
the labour law arena. It was submitted that in the labour sphere, it is
always the employer, as the interested party, that plays the major role in
the discipline of its employees. It was added that this approach finds
support in the Labour Code (Codes of Good Practice) Notice of 2003,
wherein reference is made to employer and employee. On this basis, it
Page 331 of 361
was argued that it is impossible to have a wholly impartial party in labour

matters.
8. It was further argued that the rules of natural justice do not apply equally
in the labour practice and in the general civil practice. The Court was
referred to the case of Maisaaka Mote v Lesotho Flour Mills LC/59/1995,
where it was held that the principles of natural justice are flexible in
labour matters and that they have no fixed content. On this premise, it
was argued that the procedure adopted in the hearing of Applicant was
well within the confines of the Codes of Good Practice (supra), hence the
finding that there was no procedural irregularity.
9. Applicants case is two pronged in nature. She argues that the learned
Arbitrator ignored her evidence and further that as a result of the said
act, the learned Arbitrator made a decision that was not supported by the
evidence before Her. This in essence means that the irregularity
complained of, derives from the idea that the learned Arbitrator ignored
the evidence of Applicant. Essentially, the second leg of the ground of
review is premised on the idea that the first leg will be upheld. On the
basis of this highlight, We now proceed to deal with the first leg of this
review ground.
10. It is Applicant argument that her evidence demonstrating an
irregularity on the part of the Respondent in dismissing her was ignored,
hence the learned Arbitrators conclusion that there was no irregularity in
her dismissal. This allegation has not been denied by Respondent, as
Respondent has merely attempted to disqualify the argument that the
evidence demonstrated an irregularity warranting a review of the 2nd
Respondent arbitral award.
11. Given the position of the Respondent on the issue, We are inclined to
find in favour of Applicant that indeed the said evidence was ignored by
the learned Arbitrator. We are drawn to this conclusion by the principle of
law that what has not been denied is deemed to be admitted and accepted
as a true narration of the events in issue (see Theko v Commissioner of
Police and Another 1991-1992 LLR-LB 239 at 242; also see Standard
Lesotho Bank vs. Tsietsi Polane & DDPR LC/ REV/77/07). In view of this
finding, We now proceed to deal with the second leg of Applicants ground
of review.
12. As earlier indicated, it is the Respondents case that the procedure
adopted in the disciplinary proceedings for Applicant, was well within the
confines of the law. The argument is premised on idea that the rules of
natural justice do not apply to labour matters in the same manner as
they do to the ordinary civil matters. We are in agreement with
Respondent on this proposition, as this position has been pronounced by
this Court and other Superior Courts, and also finds support in the
Codes of Good Practice.
Page 332 of 361
13. Section 10 and 11 of the Codes of God Practice (supra), deals with the
substance and procedural requirements, in determining the fairness or
otherwise of the dismissal of an employer for misconduct. This essentially
means that these are the procedures that must be followed in the conduct
of workplace discipline. Given the reason for the dismissal of Applicant,
these sections are applicable to her case. In these two sections, reference
is made only to the employer and employee and no other party other than
the two. In casu, Respondent is a juristic person and this essentially
means that any employee with sufficient authority to represent it suffices
to stand in as an employer, as Mrs Mohapeloa did in her capacity as the
Managing Director of Respondent.
14. Further, in the case of Maisaaka Mote v Lesotho Flour Mills (supra),
the learned Judge had the following to say in relation to the rules of
natural justice,
fair hearing need not necessarily meet all the formal standards of the
proceedings adopted by the courts of law.
The learned Judge further quoted with approval an extract from the
learned Judge Edwin Cameron in his article The Right To A Hearing
Before Dismissal, Part 1 (1986) 7 ILJ 183 at page 185, where the learned
Judge submits that;
the whole field of proper labour relations is characterised by an inherent
flexibility, and natural justice should not be led into the trap of strict
legalism.
15. Furthermore, in the case of Montoe Mphaololi v Unity English Medium
and others LC/150/1995, the learned Judge made reference to the case
of Maisaaka Mote v Lesotho Flour Mills (supra) and authorities cited
therein, to come to the conclusion that a letter informing an employee
about the charges that he faced did not need to be drafted in the way that
charges are framed in the ordinary courts of law. This authority
essentially fortifies the idea that there is a distinction between the
application of rules in labour matters and in the ordinary civil practice.
16. In view of the above authorities, We are therefore in agreement with 1st
Respondent that Applicant has imported the general application of the
rules of natural justice, from the ordinary civil matters into the labour
sphere. As rightly pointed out by Respondent, the key actors in labour
matters are the employer and the employee. This essentially means that
all the disciplinary processes centre around them. Therefore, the mere
fact that Mrs. Mohapeloa was both the complainant and the one who
made the decision to dismiss Applicant, cannot sustain as a ground of
bias, given the peculiar context within which labour matters operate.
17. The role that that was placed by Mrs. Mohapeloa in the entire
disciplinary process, was well sanctioned by the applicable law in
workplace discipline (see sections 10 and 11 of the Codes of Good Practice
(supra). This essentially highlights the difference in the application of the
rules of natural justice in labour matters. It therefore means that
Page 333 of 361
biasness cannot be pleaded merely from the fact that Mrs. Mohapeloa
was the complainant and the person who made the decision to dismiss
Applicant. There has to be more than just that in order for the procedure
adopted to sustain as sufficient to render the decision to dismissal unfair.
18. Consequently, while We have found that there has been an irregularity
in the arbitration hearing, such would not have altered the decision of the
learned Arbitrator even if She had considered the evidence in issue. We
say this because, even if she had considered this evidence, She would
have been bound by the principles stated in the above authorities to find
that there was no irregularity in Mrs. Mohapeloa being the complainant
and the one who made the decision to dismiss Applicant. We therefore
find that the irregularity committed does not warrant interference with
the arbitral award for the reasons stated above.
19. The second ground of review is that the learned Arbitrator ignored the
uncontroverted evidence of Applicant in making her decision. It was
submitted that the ignored evidence demonstrated that Applicant did not
commit the offence that she was charged and dismissed for. It was said
that Applicant was charged for failure to disclose certain crucial
information to the Respondent. Applicant further stated that in the
ignored and uncontroverted evidence, she had testified to the effect that
she made the disclosure to one Tebello, who is the administrator in the
employee benefits team that their client Telecom Lesotho was threatening
to take its business to another broker. The Court was referred to the
evidence of Applicant on page 76 of the DDPR record of proceedings.
20. In reply, Respondent submitted that the learned Arbitrator considered
the evidence of Applicant. The Court was referred to paragraph 12 of the
arbitral award. It was argued that the extract on page 76 is not relevant
to the reason for the dismissal of Applicant.
21. We have perused the extract on page 76 of the record of proceedings
before the DDPR and it reads follows,
App: Tebello is an administrator in the employee benefits team. So She
works or dealt with Telecom at the time at AON. So I called her in to
corroborate what I was thinking and she consent that those peoples
cheques were returned by Telecom and Telecom wanted cheques to be
issued in the name of Telecom. So we advised Telecom, this is what I told
Mrs. Mohapeloa, that the fund rules of the Telecom pension fund do not
allow for such a payment to be made to the employer.
22. The content of the above paragraph does not in any way suggest that
Applicant disclosed to Mrs. Mohapeloa that its client was threatening to
take its business away from them, to another broker. We are therefore in
agreement with Respondent that the extract on page 76, is not relevant to
prove the Applicants case on this ground of review. Consequently
Applicant has failed to prove that she led evidence to the effect that she
disclosed the said information to Mrs. Mohapeloa.
Page 334 of 361
23. The above notwithstanding, it is common cause that Applicant was

dismissed for failure to disclose the above referred information to Mrs.
Mohapeloa. Not only is this common cause, but the learned Arbitrator
has also dealt with this issue under paragraph 5 of her arbitral award, as
suggested by Respondent.
24. In this paragraph, the learned Arbitrator is recorded as thus,
In her evidence in chief applicant denied receiving any information that
Telecom was threatening to take their business away from respondent as
they were satisfied with their services. However, from the evidence of Mrs.
Mohapeloa it became clear that applicant did receive such information by
letter which was presented to her by Ms. Phomane from Metropolitan.
Applicant put to Mrs. Mohapeloa that she did not know the author of the
letter from Telecom. This shows that she was aware of such a letter, even if
she did not know its author.
25. It is therefore Our finding that Applicant has failed to prove that she
led evidence to prove that she led uncontroverted evidence to demonstrate
that she made the necessary disclosure to Mrs. Mohapeloa. Further that,
that notwithstanding, the issue was considered by the learned Arbitrator
who came to the conclusion that Applicant knew the information but did
not disclose. This is reflected under paragraph 12 as thus,
Applicant was therefore aware of the threat to respondents business and
did not act towards such threat. She further failed to disclose such
information to respondent. The court therefore finds that applicant is guilty
on the said charge.
Consequently, this ground of review cannot sustain and is accordingly
dismissed.
AWARD
and
2013.
T. C. RAMOSEME
Mr. MOFELEHETSI
Mrs. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1ST RESPONDENT:
ADV. MOLATI
ADV. MABULA
Page 335 of 361

HELD AT MASERU
LC/REV/107/2012
A0264/2012

FAHHIDA SUPERMARKET (PTY) LTD
APPLICANT
And
IKHETHELENG SIBOLLA
THE ARBITRATOR DDPR (MR. KALAKE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the 2nd Respondent arbitral award. Applicant having
raised four grounds of review. Court finding merit in only one of the grounds
raised Court finding that Arbitrator did not consider the explanation for
failure to attend failure to consider explanation amounts to a gross
irregularity warranting the granting of a review application. Review being
granted and Court directing that the matter be remitted to the DDPR for a
determination of the rescission application. No order as to costs being made.
it was heard on this day and judgment was reserved. Applicant was
represented by Adv. Ramohlanka while 1st Respondent was represented
by Adv. Nono. The brief background of this matter is that, 1st Respondent
had referred a claim for unpaid wages with the DDPR. The matter
proceeded in default of Applicant and an award was subsequent thereto
made in favour of 1st Respondent. Applicant then filed an application for
rescission of the said award. The rescission application was also
dismissed in default of Applicant, leading to the initiation of the current
review proceedings.
2. Four grounds of review have been raised on behalf of Applicant, in terms
of which it seeks to the have the 2nd Respondent arbitral award reviewed,
corrected or set aside. Both parties were given the opportunity to make
representation and having considered their submissions, Our judgment is
therefore in the following.
3. It was submitted on behalf of Applicant that the learned Arbitrator had
erred in that He did not consider the options prescribed under section
227(8) of the Labour Code (Amendment) Act 3 of 2000, in dismissing the
rescission application. It was further submitted that in terms of the said
Page 336 of 361
section, the learned Arbitrator had an option to postpone, dismiss or

grant the matter in default. It was added that rather than to consider the
said options, He simply outlined them and then arbitrarily elected to
dismiss the matter.
4. In reply, it was submitted that the learned Arbitrator had considered all
the options, prior to the decision to dismiss the referral. The Court was
referred to paragraphs 3, 4 and 5 of the arbitral award, where the learned
Arbitrator had reasoned his conclusion. It was submitted that among His
reasons to dismiss, was the lack of a convincing explanation for failure to
attend and the casual attitude of Applicant in the matter. It was
concluded that the decision was therefore fair under the circumstances.
5. We are in agreement with 1st Respondent that the learned Arbitrator
considered all the options laid out under section 227(8) of the Labour
Code Act (supra). While He may have outlined them at paragraph 5 of the
arbitral award, but His election to dismiss was reasoned. As righty
pointed out by 1st Respondent, the reasons for the elected option are
reflected under paragraphs 3, 4 and 5 of the arbitral award. We therefore
find no irregularity in the conduct to the learned Arbitrator and
accordingly dismiss this review ground.
6. The second ground of review was that the learned Arbitrator had erred in
that He did not consider the explanation given on behalf of Applicant for
failure to attend the proceedings. It was submitted that the Human
Resources Manager had been sent to convey the message that one Mr.
Abdulla, who was handling the matter, could not be able to attend due to
illness. It was argued that had this explanation been considered, it would
have influenced the learned Arbitrator to find otherwise.
7. In reply, 1st Respondent submitted that explanation was considered by
the learned Arbitrator hence the finding that it was not sufficient to
warrant its granting. The Court was referred to paragraph 3 of the
arbitral award recorded as follows,
She neither advanced any convincing reasons of the reason that she
sought his application to be postponed.
It was added the explanation given was tantamount to no explanation at
all as the person who offered it had no authority to appear on behalf of
Applicant.
8. At paragraph 3 of the arbitral award, the learned Arbitrator notes the
following,
Only a certain Mrs Matseliso Nkhetse appeared as the applicants Human
Resource Officer and intimated before the tribunal that she came to seek a
postponement alleging that a certain Mr. Abdulla was sick and could not
attend the hearing. However, Mrs. Nkhetse did not have the authority to
represent the applicant, neither had she filed it ... She neither advanced
any convincing reasons of the reason that she sought his application to be
postponed.
Page 337 of 361
9. Having noted the explanation given for failure to attend on the part of the
said Abdulla, the learned Arbitrator ignores same and proceeds to
address the issue of the authority to represent of a messenger and
eventually decides to dismiss the referral. Clearly, the explanation given
was ignored as the reason for the dismissal of the referral has no
connection at all to the given reason. The learned Arbitrator does address
the issue of the alleged incapacity of Applicants representative.
Essentially the learned Arbitrator ignored the real issue before Him.
10. In the case of Thabo Mohlobo & others v Lesotho Highlands
Development Authority LAC/CIV/A/05/2010, the Court held that failure
by presiding officers to direct their thoughts to the relevant data or
relevant principles as well as their reliance on irrelevant considerations
amounts to an irregularity worthy or being reviewed. We are therefore
find that the learned Arbitrator committed an irregularity contemplated
by the above authority, in that rather than to consider the explanation for
failure to attend, He concentrated on the absence of an authority to
represent. Further, that if the explanation given had been considered, it
may have altered the decision of the learned Arbitrator. We therefore find
that this is an irregularity so grave that it warrants interference with the
award.
11. The third ground of review was that the learned Arbitrator had
committed an irregularity by ignoring the explanation given for failure to
attend due to the absence of an authority to represent by the Human
Resources Officer. It was submitted in support that the Human
Resources Officer had been sent to merely convey the message that the
person who had been properly elected to represent Applicant, was
indisposed. It was added that there is no requirement that a messenger
who is not a representative must submit an authority to represent when
conveying a message on behalf of the representative.
12. In reply, it was submitted that the learned Arbitrator was right in
finding that the representative needed an authority to represent when she
conveyed the message about the incapacity of Applicants representative.
It was added that the learned Arbitrator could not have been expected to
rely on communication from a person with no right of audience. It was
further submitted that the said document would have served as proof
that the Human Resources Officer had been duly authorised to
communicate the information that she did to the tribunal.
1. We wish to note that it is Our view that this grounds is an appeal as
opposed to a review ground. We say this because, it seeks to challenge
the decision of the learned Arbitrator to require an authority to represent
from a messenger. There is no allegation of an irregularity in the conduct
of the learned Arbitrator during the proceedings, nor do We find any. The
distinction between an appeal and a review was made in the case of JD
Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004, as follows,
Page 338 of 361
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 a case on review. An
appeal is thus in reality a re-evaluation of the record of proceedings in the
court a quo. (Also see Thabo Mohlobo & others v Lesotho Highlands
Development Authority LAC/CIV/A/05/2010)
13. In view of the above authority, this ground cannot sustain for want of
jurisdiction as this is only vested with review and not appeal powers.
However, We wish to comment on the submissions made, in order to set
the position of the law straight, on the issue of an authority to represent.
In the proceedings before the DDPR, a representative is a person
appointed in terms of section 228A of the Labour Code (Amendment) Act 3
of 2000. It is thus only in circumstances contemplated under section
228A of the Labour Code Act (supra), that an authority to represent is
necessary.
14. In casu, the Human Resources Officer was not a representative as she
had merely appeared to inform the learned Arbitrator of the inability of
the person appointed, in terms of section 228A of the Labour Code Act
(supra), to appear. This was clearly communicated to the learned
Arbitrator as he has also acknowledged the communication in His arbitral
award. Consequently, the Human Resources Manager was not in law
required to submit an authority to represent.
15. The last ground of review was that the learned Arbitrator failed to
consider the Applicants pleadings before dismissing the application for
rescission for want of prosecution. It was submitted that, in particular,
the learned Arbitrator ought to have considered the prospects of success
in the matter. Further that if He had, He would have been inclined to
postpone the matter on account of fairness to both parties.
16. In reply, it was submitted that in terms of section 227(8) of the Labour
Code Act (supra) as well section 19 (1) of Labour Code (DDPR Regulations)
of 2001, there is no requirement that where a party has defaulted, the
learned Arbitrator must consider the pleadings before resolving to dismiss
the matter. It was added that the provisions of these legal instruments
are clear that failure to attend requires an election between dismissal,
granting and postponement.
17. We are in agreement with 1st Respondent that there is no legal
requirement that the pleadings must be considered when acting in terms
of section 227 (8) of the Labour Code Act (supra) and the DDPR
Regulations (supra). Rather, the learned Arbitrator is obliged to consider
the circumstances surrounding the failure to attend on the side of either
party, before making an election under these instruments. It is only
where no consideration of the circumstances has been made that the
Page 339 of 361
learned Arbitrator may be held to have committed an irregularity.

Consequently, this ground fails.
AWARD
b) The matter is remitted to the DDPR for a determination of the rescission
application.
c) That this award must be complied with within 30 days of receipt
herewith; and
2013.
T. C. RAMOSEME
Mr. S KAO
Mrs. L. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. RAMOHLANKA
ADV. NONO
Page 340 of 361

HELD AT MASERU
LC/REV/213/2006
A1255/2003

TLALI LEFETA
APPLICANT
And
ARBITRATOR C. T. THAMAE
FALATSA FALATSA
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the 1st Respondent arbitration award. Applicant
contesting the right of 2nd Respondent to audience in the review application.
Court finding that 2nd Respondent has not opposed the review application
Court further finding that having not answered the review application there is
no basis to grant 2nd Respondent the right of audience. Court further finding
that the filing of an answer would be the basis of the right to such audience.
Court directing that the review application proceed unopposed. Court finding
merit in the first ground of review that the learned Arbitrator failed to exercise
His discretion judiciously - further noting that the conduct of the learned
Arbitrator was tantamount to descending into the arena of dispute. Court
further not finding merit in the second ground of review and dismissing same.
Court reviewing the arbitration award on account of the first ground and
correcting it by granting the application for rescission and ordering that the
matter proceed in the merits.
1. This is an application for the review of the 1st Respondent arbitration
award. It was heard on this day and judgment was reserved for a later
date. Applicant was represented by Advocate Rafoneke, while Respondent
was represented by Advocate Nono.
2. The background of the matter is that 2nd Respondent had referred a claim
for payment of monies with the DDPR, under referral A1255/2003,
wherein the 1st Respondent was the presiding Arbitrator. An award was
issued in default of Applicant and he was ordered to pay to 2nd
Respondent an amount of M14,000.00 as outstanding wages. Subsequent
to the issuance of the said award, Applicant initiated rescission
proceedings under referral A0429/2004, against the award obtained in
default under referral A1255/2003. The rescission application was heard
and dismissed through an arbitration award on the 30th June 2004.
Page 341 of 361
3. Applicant then initiated the current review proceedings, in terms of which

he sought the review, correction or setting aside of the arbitration award
in referral A0429/2004. The review application was accompanied by an
application for condonation. According to the records, on the 11th May
2010, the review application was dismissed for want of prosecution but
later reinstated following a formal application by the Applicant. This was
confirmed by both parties and their confirmation forms part of the record.
The matter was then set down for hearing on this day in the merits.
4. At the commencement of the review proceedings, Applicant objected to
the right of audience of 2nd Respondent. It was Applicants case, on the
one hand, that 2nd Respondent had not opposed the review application.
On the other hand, it was 2nd Respondents case that the application had
been opposed and reference was made to the answering affidavit filed of
record on the 28th May 2013. Both parties were allowed to make
presentation on the issue, after which We found that the review
application had not been opposed and excluded 2nd Respondent from the
proceedings.
5. Whereas Applicant had applied for condonation together with the review
application, We made a ruling that it was not necessary to apply for
condonation, as the review had been filed within the prescribed time
period. The award had been received on the 30th June 2004 and the
review had been lodged on the 28th July 2004. That being the case, by the
time that the review was lodged, the 30 days period had not lapsed. We
then directed that Applicant proceed with the review application
unopposed. Our full judgment is therefore in the following.
Right of appearance
6. Applicant submitted that the review application had not been opposed, at
least formally, as 2nd Respondent only indicated its intention to oppose
same. It was said that the affidavit that 2nd Respondent sought to rely on,
was in effect answering their application for the reinstatement of the
matter, after its dismissal for want of prosecution. It was argued that the
averments in the said answering affidavit, relate to the averments
contained in the application for reinstatement. It was added that the
paragraphs reflected in the answering affidavit, specifically make
reference to the paragraphs in the reinstatement application. The Court
was referred to paragraph 4 of the founding affidavit to the application for
reinstatement and the answer in issue. It was concluded that 2nd
Respondent had clearly not answered the review averments.
7. It was further submitted that even if it were to be taken that the
averments contained in the answer were meant to address the review
application, the complains brought on review had not been answered and
as such the review was unopposed. It was argued that the review
application being unopposed, that meant in law that the 2nd Respondent
cannot be allowed to address the Court on the arguments, where no basis
Page 342 of 361
was placed in the form of an answer. The Court was referred to the case
of Kaone Leoifo v Bokailwe Kgamena & another CA/048/2007, where in
Ramodibeli AJ had the following to say,
It is trite that a case can only be decided by the court on the pleadings and
evidence before it. It is not for the court to make out a case for the
litigants. Nor can this Court properly decide the matter on the basis of
what might or should have been pleaded but which was not pleaded.
8. It was submitted that 2nd Respondent had the opportunity to place the
facts and evidence on through an answer, which would then form the
basis of the arguments to persuade the Court not to grant the review.
Further that having failed to do so, the Court would have no basis in
deciding on the facts that could have been pleaded in the answer. It was
added that the rule in motion proceedings is that what is said in
affidavits, which is not contradicted must be taken as true and accurate,
as it the case in casu. The Court was referred to the case of Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623, in
support. On this premise it was prayed that the Court find that the review
is unopposed and that it proceed on the basis of the unchallenged
averments of Applicant.
9. In reply, 2nd Respondent submitted that whereas the numbering may give
the impression that the answer was responding to the application for
reinstatement, that was not the case as it was addressing the review
application. The Court was referred to paragraph 6 of the founding
affidavit which was alleged to have been answered by paragraph 5 of the
answer. The Court was referred to paragraph 9 of the answer, where it
prayed that the review application be dismissed.
10. It was stated that to further fortify the argument was the fact that the
said answer was filed after the application for reinstatement had been
granted. It was added that the deponent was in fact reacting to the review
application and that the confusion in the numbering was caused by the
fact that there were two applications in the same file, before Court. It was
further submitted that 2nd Respondent could not have answered an
application in respect of which a final order had already been issued. It
was prayed that on these bases, 2nd Respondent be permitted to address
the review application.
11. We have perused the record, and in particular the founding affidavits
to the main review application and the application for reinstatement, as
well as the answer filed on the 28th May 2013. We have not only looked at
the specific paragraphs that the parties have made reference to, but to
those pleadings in their totality. We have discovered that the numbering
in the answer bears no reference to the main review application, but to
the application for reinstatement. Further, that the averments in the
answer specifically address the allegations made in the main review
application, as Applicant has suggested.
Page 343 of 361
12. As a result, and notwithstanding the fact that the answer was filed
after the reinstatement had been granted, it was nonetheless reacting to
the application for reinstatement and not the review application. Further,
it cannot in any way be taken to have been addressing the review
application given the specific nature with which it has been framed.
Furthermore, the fact that 2nd Respondent had prayed for the dismissal of
the review application cannot be interpreted to mean that the answer was
addressing the review. The answer directly opposed what was sought by
the reinstatement, which was the resuscitation of the review application.
13. In essence, what the 2nd Respondent has merely done in these
proceedings has been to indicate its intention to oppose the review
application, without actually doing so. As a result, the review application
is unopposed. We wish to highlight that We acknowledge and accept the
quotation from the authority cited by Applicant in Kaone Leoifo v
Bokailwe Kgamena & another (supra), as it was cited with approval by
Our the Labour Appeal Court in the case of Tsotang Ntjebe & others v
LHDA and Teleng Leemisa & others v LHDA LAC/CIV/17/2009.
14.
The crux of the quotation from the authority in Tsotang Ntjebe &
others v LHDA and Teleng Leemisa & others v LHDA (supra), is that
arguments are based on pleadings and therefore that without pleadings,
then there is no basis for arguments. By necessary implication, 2nd
Respondent having not pleaded in the review application, there is no
basis for this Court to allow him to address the Court on the review
application. By not pleading, 2nd Respondent extinguished the premise on
which his right of audience would be based.
15. We wish to further comment that even if We were to assume that there
was some form confusion in the numbering of the paragraphs, that would
not advance the 2nd Respondent case in any way. We say this because We
have confirmed that the grounds for review have not been addressed by
the averments in the answer and are therefore in law deemed to have
been admitted by 2nd Respondent. On the premise of the rule in PlasconEvans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd (supra), the review
grounds would nonetheless remain unopposed.
16. In the above case, the Court cited with approval the quotation from the
decision of Van Wyk in Stellenbosch Farmers' Winery Ltd v Stellenvale
Winery (Pty) Ltd, 1957 (4) SA 234 (C) at p 235, in the following,
Where it is clear that facts, though not formally admitted, cannot be
denied, they must be regarded as admitted".
This principle has been cited with by Our Courts in a plethora of cases
(see Makhoabe Mohaleroe v Lesotho Public Motor Transport Company (Pty)
Ltd C of A CIV/06/2009; Mathiba Malothoane v Commissioner of Police &
another C of A CIV/18/2009).
17.
On the premise of the above reasons, We therefore find that the 2nd
Respondent has no right of audience in these proceedings, and the review
Page 344 of 361
application must proceed unopposed. In the light of this finding, We now

proceeded to deal with the merits of the review application.
The Merits
18. The 1st ground of review was that the learned Arbitrator had erred in the
exercise of His discretion in finding that the rescission application was
without merit. In amplification, it submitted that the rescission
application was not opposed and that as such the learned Arbitrator was
obliged in law to accept the veracity of the unchallenged evidence of
Applicant. The Court was again referred to the above extract from the
case of Kaone Leoifo v Bokailwe Kgamena & another (supra), in support.
19. It was stated that rather, the learned Arbitrator expressed His doubt
towards the said averments and then came to a conclusion that they were
not accurate. It was added that the learned Arbitrator did no afford the
Applicant the benefit of doubt that what he averred was accurate. The
Court was referred to the unmarked page 2 of the arbitration award and
specifically under the heading Representations. It was argued that in so
doing the learned Arbitrator did not exercise his discretion judiciously.
20. As earlier noted, it is a trite principle of law that where one of the
parties has not challenged the evidence of another, then the unchallenged
evidence is to be taken as true and an accurate narration of what took
place. In casu, the rescission application was unopposed and as such the
correctness of otherwise of the averments of Applicant were not in issue.
21. In the case of Theko v Commissioner of Police and another LAC (199094) 239 at 242, Steyn JA had the following to say in relation to
unchallenged evidence:
this court.
It is therefore Our opinion that the learned Arbitrator was bound in law to
accept the factual averments of the Applicant as a true and an accurate
narration of what took place, on the day of the hearing.
22. Contrary to this principle, the learned Arbitrator questioned the
accuracy of the clear and unchallenged averments of Applicant. We
confirm that this is evident from the unmarked page 2 of the arbitration
Award under the heading Representations. We have also confirmed from
the summary of the submission of Applicant that, he had given an
explanation for failure to attend as well as the prospect of success in the
main claim. These notwithstanding, the learned Arbitrator went ahead
and questioned the veracity of the allegations in support of both the
explanation for default and prospects of success. In so doing the learned
Arbitrator clearly erred.
Page 345 of 361
23. What he was rather obliged to do in law was to consider whether the
unchallenged averments made out a case as anticipated by law on an
application for rescission. In essence, the learned Arbitrator was merely
to determine if the explanation that Applicant had a diabetic attack was
reasonable to disable him from attending the hearing, or arriving on time
and if the alleged prospect of success demonstrate a prima facie case in
the main claim, without descending into the veracity of the allegations
made.
24. In Our view the learned Arbitrator committed a grave irregularity that
warrants interference with His arbitration award. He did not only fail to
exercise his discretion judiciously in analysing the Applicants case, but
also descended into the arena of despite. By this We mean that the
learned Arbitrator now became a litigant in the rescission proceedings as
He defended the 2nd Respondent claim on his behalf. In so doing the
learned Arbitrator disabled himself from assessing the probabilities and
credibility relating to the issues with due impartiality (see Solomon &
another NNO v De Waal 1972 (1) SA 575 (A) at 580E-H which was cited
with approval by this Court in Kopano Textiles v DDPR and another
LC/REV/101/2007).
25. In casu, the learned Arbitrator dismissed the application for rescission
on the basis of what would have been the 2nd Respondent case if he had
opposed the rescission application. We say this because the learned
Arbitrator relied on issues that were no pleaded to disqualify Applicants
case. This is precisely what both the authorities in Kaone Leoifo v
Bokailwe Kgamena & another (supra) and Tsotang Ntjebe & others v LHDA
and Teleng Leemisa & others v LHDA (supra), seek to discourage.
26. The 2nd ground of review was that the learned Arbitrator overlooked
the factors to consider in an application for rescission, namely the
explanation for the default as well as the prospects of success. The Court
was once again referred to learned Arbitrators analysis on page 2 of the
arbitration award under the heading Representations. It was submitted
that Applicant had explained that he came late to the proceedings
because he had had a diabetic attack. When he arrived for the hearing,
he learnt that it had just finalised. Further that Applicant had also given
the prospects of success but that the learned Arbitrator nonetheless
found that he had no prospects of success. It was argued that the learned
Arbitrator had no basis of making these conclusions particularly because
these averments were not challenged, as the rescission application was
not opposed.
27. This ground suggests failure on the part of the learned Arbitrator to
consider both the explanation given for the default as well as the
averments in support of the prospects of success. We have considered the
paragraph relied upon in support of this argument. In Our view, both the
explanation for the default as well as the prospects of success were
considered and determined on the basis of the considerations made.
Page 346 of 361
28. On the one hand, in dealing with the explanation for the default, the
learned Arbitrator made the following remarks,
on the one hand [Applicant] said he came late because he was sick from
diabetes. It is to be noted that this office never received any message that
applicant would be late. Besides the applicant could not produce any
documentary proof that he was attending medical treatment for diabetes on
the date of hearing. His reasons for non-attendance are therefore
unacceptable.
29. On the other hand, in dealing with the prospects of success, the
learned Arbitrator remarked as follows,
on the prospects of success, Mr. Lefeta stated that the respondent was
involved in an accident in his driving duties in which passengers died and
the vehicle was written off. He said the respondent also caused extensive
damage to the third party vehicle in which he was involved in collusion.
Indeed during the proceedings the applicant stated that he was not going to
demand damages from the respondent had the latter not filed this dispute
with DDPR. It appears the applicant only filed this application to frustrate
the respondents claim.
30. Obviously the averments of Applicant in support of the application for
rescission were considered and determined. There is no irregularity on
the part of the learned Arbitrator, at least in the sense pleaded by
Applicant on the second ground of review. What only remains is as We
have already found that, in determining these requirements, the learned
Arbitrator failed to exercise His discretion judiciously and further
descended into the arena of dispute.
31. Having granted the review, this Court is vested with the discretion to,
either set aside the arbitration award and order a rehearing, or to correct
the irregular award and substitute it with its own. The latter is awarded if
the Court, having found that the award was irregular, is seized with
sufficient facts to enable it to substitute the irregular finding with one
that is correct.
32. 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 ....
We are satisfied there are facts before Us that permit the substitution of
the irregular finding with the correct one.
33. We are satisfied with the explanation given by Applicant for the
default. If he was ill and there is no evidence to contradict that then the
learned Arbitrator judiciously exercising His discretion ought to have
found that the explanation given was reasonable. Further, We are
satisfied with the prospects of success as they prima facie establish a
Page 347 of 361
case for refusal to pay the outstanding wages, on account of damage

caused by 2nd Respondent. We therefore reiterate Our attitude that a
judicious finding ought to have been that there are prospects of success.
AWARD
b) The arbitration award in referral A0647/2010 is reviewed and corrected
in the following,
a. That the rescission application is granted;
b. The matter must be set down for hearing for determination in
the merits.
c) That the order of this Court must be complied with within 30 days of
receipt herewith; and
2013.
T. C. RAMOSEME
Mrs. RAMASHAMOLE
Mrs. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. RAFONEKE
ADV. NONO
Page 348 of 361

HELD AT MASERU
LC/REV/43/2009
A0927/2008

SEITEBATSO SEEISO
SEUTLOALI MAKHETHA
1st APPLICANT
2nd APPLICANT
And
DDPR (R. NKO-ARBITRATOR)
LESOTHO HIGHLANDS
DEVELOPMENT AUTHORITY
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the 1st Respondent arbitration award. 2nd Respondent
applying for the dismissal of the matter for want of prosecution. Applicant
neither indicating intention to oppose nor actually opposing the matter.
Applicant further failing to attend the proceedings notwithstanding proof of
notification. Court granting application and dismissing the review application.
1. This is an application for dismissal of the review application for want of
prosecution. It was heard on this day and granted. Parties were then
promised a full judgment at a later date. Parties herein are cited as they
appear in the main review application for proposes of convenience. There
was no appearance for Applicant, while 2nd Respondent was represented
by Advocate Ramphalile.
2. The background of the matter is that the Applicants had referred claims
for underpayment and severance payment with the 1st Respondent. The
claims were accompanied by an application for condonation for their late
referral. The condonation application was duly heard, after which the 1st
Respondent issued an award in favour of the 2nd Respondent, wherein
both the application for condonation and the Applicants referrals were
dismissed. The said award was issued on the 12th March 2009 and later
served upon Applicants.
3. Dissatisfied with the arbitration award, Applicants instituted the current
review proceedings with this Court, wherein they had sought the review,
correction or setting aside of the 1st Respondent arbitration award. On the
6th November 2013, 2nd Respondent lodged an application for dismissal
for want of prosecution. The said application was not opposed and
Page 349 of 361
remains so to date. On the date of hearing, Applicants did not attend and
as such the matter proceeded both unopposed and in their default.
4. Having heard the submission of Advocate Ramphaile for 2nd Respondent,
and having considered all the papers filed of record, We granted the
application and promised the full judgment at a later stage. Our full
judgment is therefore in the following.
5. It was submitted on behalf of the 2nd Respondent that Applicants initiated
the current review proceedings on the 31st July 2009. Thereafter, on the
28th October 2010, the Applicants served them with the record of
proceedings in compliance with Rule 16 of the Labour Appal Court Rules,
which are also binding on this Court. However, Applicants failed to fully
comply with the said Rules in that they did not deliver to 2nd Respondent
a notice to express their intention to either file additional grounds or to
stand with those already filed.
6. On the 2nd November 2011, 2nd Respondent wrote a letter to Applicants,
reminding them to comply with the said Rule. A copy of the letter was
annexed to the application and marked A. That notwithstanding,
Applicants continued with their failure to comply with the said Rule. On
the 9th November 2011, 2nd Respondent sent yet another letter to remind
Applicants about their non-compliance with Rule 16. A copy of the said
letter has also been annexed to the application and this time marked B.
To this day, Applicants have neither complied with the said Rule nor
communicated any reasons to either the Court or to 2nd Respondent for
their failure to comply.
7. It was added that over two and a half years have passed since the first
letter of reminder about non-compliance with Rule 16 was sent to
Applicants. It was stated that the past two and a half years were ample
time for Applicants to attempt to comply with the said rule. It was
concluded that having failed to do so, their conduct clearly demonstrated
the lack of interest in prosecuting the review application. It was thus
prayed that this application be granted and that the review application be
dismissed for want of prosecution.
8. In Our view, the conduct of the Applicants in the past two and half years,
seems to confirm and affirm the suggestions made by 2nd Respondent
that they do not have any interest in pursuing this matter to finality.
Evident to this is proof in the form of annexures A and B and the
inactiveness on the part of Applicants, these annexures notwithstanding.
Their failure to attend on this day, further fortifies the suggestion made
and leads us to conclude that not only are Applicants not interested in
pursuing this matter to finality, but also that they do not wish to be
heard.
Page 350 of 361
9. It is an established principle of that the right to be heard can only be

given to a party that is willing to make use of it. We have stated and restated this principle in a plethora of cases before and We continue to do
so (see Eclat Evergood Textile Manufactures (Pty) Ltd v Molefi & others
LC/REV/99/2012; Boliba Multipurpose corporative v Motsoasele & another
LC/REV/95/2012; C & Y Garments (Pty) Ltd v The DDPR & another
LC/REV/98/2012; Eclat Evergood Textile v Nthontho & others
LC/REV/54/2011).
10. Further, this Court cannot permit and/or assist Applicant to hold 2nd
Respondent at ransom by keeping this matter pending. It is trite law that
parties to any litigation are entitled to its finality. Our conclusion find
support in the remarks of the Learned Dr. Mosito AJ in the case of Thabo
Teba & 31 Others v LHDA LAC/CIV/A/06/09, as follows,
A litigant is entitled to closure of litigation. Finality in litigation is intended
to allow parties to get on with their lives.
11. We are therefore in agreement with 2nd Respondent that Applicants, by
their own conduct, have shown in no uncertain terms their lack of
interest in having this matter finalised. It is therefore Our opinion that
this matter is worthy of dismissal because maintaining it, tempers with
the entitlement of 2nd Respondent to closure of litigation and
consequently disallows it to get own with its life.
AWARD
herewith; and
2013.
T. C. RAMOSEME
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
NO APPEARANCE
ADV. ADV. RAMPHALILE
Page 351 of 361

HELD AT MASERU
LC/REV/95/2012
A1115/2011

BOLIBA MULTIPURPOSE CORPORATIVE
APPLICANT
And
SEKOALA MOTSOASELE
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the 2nd Respondent arbitration award. 1st Respondent
applying for the dismissal of the matter for want of prosecution. Applicant only
indicating intention to oppose applicant being given an opportunity to file an
opposing affidavit. Applicant filing to file an opposing affidavit and further
failing to attend the proceedings notwithstanding proof of notification. Court
granting application and dismissing the review application. Court noting that
the right to be heard can only be given to a party that is willing to utilize it. No
1. This is an application for dismissal of the review application for want of
prosecution. It was heard on this day and judgment was reserved for a
later date. Parties herein are cited as they appear in the main review
application, for proposes of convenience. There was no appearance for
Applicant, while 1st Respondent was represented by advocate Letsika.
2. The background of the matter is that 1st Respondent had referred a claim
for unfair dismissal with the 2nd Respondent. The matter was duly heard
after which the 2nd Respondent issued an award in favour of 1st
Respondent. In terms of the said arbitration award, Applicant was
ordered to compensate 1st Respondent in the sum of M727,801.20, which
amount was to be paid within a period of 30 days. The award was
delivered on the 23rd July 2012 and subsequent thereto served upon
Applicant.
3. Thereafter, Applicant initiated the current review proceedings on the 5th
October 2012, wherein it sought the review and setting aside or
correction of the 2nd Respondent arbitration award. On the 5th September
2013, 1st Respondent then lodged an application for dismissal for want of
prosecution, on an urgent basis and approached this Court on the 23rd
September 2013. On this day, 1st Respondent requested that the matter
Page 352 of 361
be postponed to allow Applicant to file its opposing papers, as it had by

then filed its intention to oppose. The matter was then postponed to this
date.
4. On this day, Applicant had neither made appearance nor filed any
opposition to the application for dismissal for want of prosecution. The
matter then proceeded on the basis of the unopposed application and in
default of Applicant. Having considered both the record and the
submissions of Advocate Letsika for 1st Respondent, We granted the
application for dismissal of the review application for want of prosecution
and promised the full reasons at a later stage. Our full judgment on the
matter is therefore in the following.
5. It was 1st Respondents case that following the institution of the review
proceedings, Applicant was informed, in terms of Rule 16 of the Rules of
this Court, by the Registrar to collect the record of proceedings there were
before the 2nd Respondent. The Court was then referred to annexure
SM1, which was served upon Applicant on the 10th January 2013. It
was further submitted that notwithstanding the notice, no efforts were
made by Applicant to have the record prepared.
6. 1st Respondent then sent a letter to Applicant, on the 7th March 2013,
requesting a copy of the prepared record. The said letter had further
notified Applicant that if the record was not sent within a period of 14
days to 1st Respondent, he would institute dismissal proceedings against
the review application. The Court was referred to annexure SM2. This
notwithstanding, the record was never forwarded to 1st Respondent, thus
resulting in 1st Respondent sending yet another letter to Applicant, to
reiterate his earlier communicated stance in annexure SM2. The Court
was referred to annexure SM3, wherein Applicant was also warned that
if by the 15th May 2013, it would not have served the record, 1st
Respondent would proceed with the dismissal application. It was added
that to this date, and despite all efforts made by 1st Respondent to cause
Applicant to prosecute this matter, Applicant has not to date, as no
record has been prepared.
7. It was argued that the conduct of Applicant illustrates both a solid lack of
interest in the matter, as well as a clear intention to waive the right to be
heard. It was added that evident to this is the cavalier manner in which
Applicant has elected to approach this matter, which is continuing to
prejudice 1st Respondent by delaying the enforcement of an award made
in his favour. It was submitted that almost a year had gone by since the
institution of the review proceedings, yet nothing has been done to
advance the matter beyond its initiation.
8. It was concluded that on the basis of these above, it would be in the
interest of justice that the review application be dismissed for want of
prosecution. The Court was referred to its decision in Eclat Evergood
Page 353 of 361
Textile Manufactures (Pty) Ltd v Molefi & others LC/REV/99/2012, where

it is recorded as follows,
It is an established principle of law that the right to be heard can only be
given to a party that is willing to utilise it (see Lucy Lerata & others v Scott
Hospital 1995-196 LLR-LB 6 at page 15). In Our view, the conduct of
Applicant is demonstrative of the lack of willingness to utilise this right.
They have lodged proceedings but have done nothing to advance them.
They were constantly reminded about the matter but opted to do nothing.
Having failed to avail the record of proceedings when called to, they ought
to have at least opposed this application, if they really wanted to be
heard.
9. We have said before, as reflected in the case of Eclat Evergood Textile
Manufactures (Pty) Ltd v Molefi & others (supra), and continue to maintain
Our stance that the right to be heard can only be given to a party that is
willing to utilise it. We have no doubt that the attitude of Applicant in
casu, demonstrates both the solid intention to waive this right and the
lack of interest, as suggested by 1st Respondent.
10. The circumstances of the case in casu resemble those in Eclat
Evergood Textile Manufactures (Pty) Ltd v Molefi & others (supra). We say
this because, Applicant in casu lodged the review proceedings and did
nothing to advance them, notwithstanding several reminders that were
made to it. Further, they have not opposed this application, despite the
opportunity availed them when the matter was postponed, by almost 2
months, to this date. We therefore see no reason to deviate from
precedence that We have set in the Eclat Evergood Textile Manufactures
(Pty) Ltd v Molefi & others (supra) authority.
Page 354 of 361
AWARD
herewith; and
2013.
T. C. RAMOSEME
Mr. S. KAO
Mrs. M. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
NO APPEARANCE
ADV. LETSIKA
Page 355 of 361

HELD AT MASERU
LC/REV/61/2011
A0991/2008

LEHLOHONOLO NTHOLENG
MOKONE SELLANE
1st APPLICANT
2nd APPLICANT
And
THE DDPR
C.G.M INDUSTRIAL (PTY) LTD
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the 1st Respondent arbitral award. Review
application lodged out time together with an application for condonation.
Respondent not opposing application for condonation - Court accepting the
Applicants averments as they appear in the pleadings. Applicant failing to
provide a reasonable explanation for the delay but succeeding to establish
prospects of success. Court finding that prospects of success pale into
insignificance if the explanation for the delay is unsatisfactory. Court refusing
the condonation application and dismissing the review application for want of
jurisdiction. No order as to costs being made.
1. This is an application for the review of the 1st Respondent arbitral award
in referral A0991/2008. It was heard on this day and judgement was
reserved for a later date. Applicants were represented by Advocate Molati
while 2nd Respondent was represented by Advocate Matooane. The
background of the matter is essentially that Applicants referred unfair
dismissal claims with the 1st Respondent sometime in early 2009. An
award was issued on the 12th July 2009, in terms of which Applicants
claims were dismissed.
2. It was only on the 22nd July 2011 that Applicants lodged the review
application with this Court. Realising that the said application had been
lodged out of time, Applicants lodged an applicant for condonation of
their late filing of the review application. The condonation application has
not been opposed. This essentially means that We will proceed on the
premise that the factual averments of Applicants, as contained in their
pleadings, are a true reflection of what took place. In the light of this
background, Advocate Molati for Applicants proceeded on his
submissions. Our judgement on the matter is thus as follows.
Page 356 of 361

3. It was submitted on behalf of Applicants that they only became aware of
the existence of the arbitral award in referral A0991/2008 sometime early
2010. Upon being aware about the award, Application then instructed
their union, FAWU, to proceed to institute the current proceedings.
Applicants later became aware that the review application as not filed
contrary to their instructions. They were only able to approach their
current counsel of record sometime in July 2011, hence the referral of the
matter on the 22nd July 2011 and the accompanying application for
condonation.
4. It was added that the failure to file the review within the prescribed time
was not deliberate on the part of Applicants, but due to fault on the part
of their initial representatives. It was argued that Applicants cannot be
punished for the negligent acts of their representatives especially where
representation had not been withdrawn. The Court was referred to the
case of Napo Thamae & another v Agnes Kotelo & another LAC 2000-2004,
where the Court held that neglect of a representative should not always
be visited upon the client, but that the Court must consider the
circumstances of the matter.
5. It was further submitted that there are prospects of success in the matter
in that the learned Arbitrator made a finding not supported by any
evidence at all. It was added that the learned Arbitrator contradicted
himself by finding that the dismissal was not an appropriate sanction
only to dismiss the Applicants referral. It was further submitted that 2nd
Respondent will not suffer any prejudice in the event that this applicant
is granted.
6. For an application for condonation to succeed at least two core
requirements must be met and these are a satisfactory explanation for
the delay and the prospects of success. In explaining the requirements for
a condonation application to be granted, the Labour Appeal Court in
Thabo Teba & 31 Others vs. LHDA LAC/CIV/A/06/09) had the following
to say,
A party seeking condonation must give a full explanation for the delay
which must cover the entire period of delay. The explanation must be
reasonable. If prospects of success are strong, this is not enough to justify
the granting of condonation. The various factors for condonation must be
put on a scale and weighted against one another. Prospects of success pale
into insignificance where there is an inordinate delay coupled with the
absence of reasonable explanation for the delay.
7. Over one year has lapsed from the time that the Applicants became aware
of the award, to the time that they had the matter referred with this
Court. In Our opinion, this period is inordinate as it has by far exceeded
the 30 days period prescribed in law, for a review application to be made
(see section 228F of the Labour Code Order 24 of 1992, as amended). As a
Page 357 of 361
result, in order to compensate the delay, Applicants explanation must

cover the entire period to the delay.
8. In Our view, Applicants have failed to explain the entire period of the
delay, in failing to file the review application with this Court, within the
prescribed time limits. While they allege that they only became aware
about the award sometime early 2010, it is not clear exactly when this
was. Evidently, Applicants are not able to make a proper account of the
time that they became aware of the arbitral award. It is further not clear
when it is that they became aware that the review had not been field
contrary to their instruction.
9. Applicants have attempted to place the blame for the delay in lodging the
review application, on their initial representative. However, We have
considered the circumstances of the matter and have found that
Applicants carry the bulk of the blame if not entirely. We say this
because, Applicants have not been able to account for the entire period of
the delay. Their failure to account fully suggests neglect on their part.
Our approach to this matter finds support in the holding of the Court in
Napo Thamae & another v Agnes Kotelo & another (supra), wherein the
Court of Appeal held that a court must evaluate the conduct of an
applicant party. Having evaluated the conduct of Applicants, We find that
they have failed to provide a reasonable explanation for the delay.
10. On the prospects of success, what is required is merely for an
applicant party to prove prima facie that there is a case to answer in the
main claim. This essentially means that the Court must look at the
averments as they appear to determine if they make out a case. In Our
opinion, Applicants have succeeded to make out a case in the main claim
with specific reference to allegations of irrationality in the arbitral award.
These allegations are prima facie review grounds, which if proven entitle
Applicants to remedies under review proceedings.
11. However, given the Applicants failure to satisfactorily explain the
delay after over 1 year, their prospects of success have paled into
insignificance. We cannot grant an application for condonation to a party
that ignores the rules, merely on account of strength of their prospects of
success. In Our view, this would set a very ruinous precedent that
undermines the principle of legality.
12. In coming to the above conclusion, We are guided by the decision of
the Labour Appeal Court in Thabo Teba & 31 Others vs. LHDA
LAC/CIV/A/06/09, where the Court had the following to say,
A litigant is entitled to closure of litigation. Finality in litigation is intended
to allow parties to get on with their lives. After an inordinate delay, a
litigant is entitled to assume that the losing party has accepted the finality
of the order and does not intend to pursue the matter any further. Granting
condonation after an inordinate delay would be to undermine the principle
of legality and cannot be in the interest of justice.
Page 358 of 361
13. Having come the conclusion above, this Court has no jurisdiction to
entertain the main review application. We accordingly dismiss the review
application for want of jurisdiction. Our conclusion is based on the
holding of the High Court in the case of Lesotho Brewing Company t/a
Maloti Mountain Brewery vs. Lesotho Labour Court President & Another
CIV/APN/435/95 (unreported), where the Court had the following to say,
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,...
AWARD
a) The application for condonation is refused;
b) The review application is dismissed for want of jurisdiction; and
c) There is no order as to costs.
2013.
T. C. RAMOSEME
Mr. S. KAO
Mr. R. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MOLATI
ADV. MATOOANE
Page 359 of 361

HELD AT MASERU
LC/REV/98/2012
A0438/2012

C & Y GARMENTS (PTY) LTD
APPLICANT
And
THE DDPR
MOKHANTO HLAO
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
2nd Respondent applying for dismissal for want of prosecution. Application not
being opposed and Applicant failing to attend the hearing. Hearing proceeding
unopposed Court granting application and dismissing this review
application. No order as to costs being made.
1. This is an application for the dismissal of this review application for want
of prosecution. Parties herein are cited as they appear in the main review
application for purposes of convenience. This matter was heard on this
day in default and a decision was made in which We granted the
application. Our full written judgment on the matter is thus in the
following.
2. Facts surrounding this matter are basically that 2nd Respondent referred
a dispute for unfair dismissal with the DDPR under referral number
A0438/2012. An award was thereafter issued in favour of the 2nd
Respondent. Thereafter, on or around the 18th October 2012, Applicant
herein referred a review application with this Court. It is this application
that the 2nd Respondent wishes to have dismissed for want of
prosecution.
3. It was 2nd Respondents case that after Applicant had lodged the
application, it was called to come and collect the record of proceedings in
referral A0438/2012, on the 10th January 2013. The court was referred to
annexure FAWU 1. Thereafter, the record was collected but Applicant
took no further steps to advance the review application. On the 16th April
2013, about 6 months later, 2nd Respondent wrote a letter to Applicant
requesting a copy of the transcribed record.
Page 360 of 361
4. The above notwithstanding, the said record was never availed to 2nd
Respondent. Thereafter, 2nd Respondent lodged the application for
dismissal for want of prosecution. It was concluded that the conduct of
Applicant shows that they are not serious with this application but are
attempting to delay the enforcement of the award of the 1st Respondent.
Applicant prayed that this application be dismissed for want of
prosecution.
5. It is trite law that the right to be heard is only given to a party that is
willing to utilise it (see Lucy Lerata & others vs. Scott Hospital 1995-196
LLR-LB 6 at page 15). The conduct of Applicant is glary of its
unwillingness to be heard. After lodging their review application, they
were called to advance this review application on two different occasions,
but to no avail. Given the attitude of Applicant in these proceedings, We
are inclined to agree with 2nd Respondent that Applicant has no interest
in the matter and further that Applicant lodged these proceeding to delay
the enforcement of an award obtained in favour of 2nd Respondent. We
therefore grant this application and dismiss the review application for
want of prosecution.
AWARD
herewith; and
2013.
T. C. RAMOSEME
Mrs. M. MOSEHLE
Mr. S. KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
NO ATTENDANCE
MR. BOHLOKO
Page 361 of 361

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LESOTHO

Vo lum e 2 (201 3 Judge m e nt s)

ABOUT THE AUTHOR

Nokoane Mokhatla v Lesotho Brewing Company

Manapo Ramaisa and others v Nien Hsing

Pope John Paul XXIII and another v Tabang

Thuso Motlalentoa and another v Motsoalipakeng Tlokotsi C of A (CIV)

MDA & another v DPP 2000 2004 LAC 850

Nedbank Lesotho Limited v Lefosa & others LC/REV/01/2011

Cheall v Association of Professional Executive, Clerical and Computer Staff

Books and Journals

IN THE LABOUR COURT OF LESOTHO

In the matter between:

discriminated against in that the Respondent management applied its

Page 182 of 361

Submissions and analysis

IN THE LABOUR COURT OF LESOTHO

In the matter between:

the review of the proceedings in this referral which, as correctly pointed

Page 187 of 361

IN THE LABOUR COURT OF LESOTHO

In the matter between:

It was argued that in so doing He failed to appreciate the distinction

Page 190 of 361

IN THE LABOUR COURT OF LESOTHO

In the matter between:

Page 192 of 361

SUBMISSIONS AND FINDINGS

Page 193 of 361

Her to conclude that Applicant was an employee of 1st Respondent is

on the basis of the acceptance of the unchallenged evidence of an officer of

Page 196 of 361

In the matter between:

Page 198 of 361

Page 199 of 361

Page 200 of 361

the alleged utterances. Advocate Tlapana invoked the authority in Theko v

essentially means that the evidence of Respondent must be taken as both

Page 203 of 361

IN THE LABOUR COURT OF LESOTHO

In the matter between:

Page 204 of 361

3. After the adjournment, Advocate Chobokoane indicated that he had not

8. In casu, Advocate Chobokoane has given inconsistent explanations for his

refused to postpone the matter. He submitted that this is a clear abuse of

Page 207 of 361

Page 208 of 361

IN THE LABOUR COURT OF LESOTHO

In the matter between:

Page 210 of 361

The terms and conditions of service, including ...

Page 212 of 361

existence of a regular practice gives rise to a legitimate expectation on the

ADV. MOHAU (K.C)

Page 214 of 361

IN THE LABOUR COURT OF LESOTHO

In the matter between:

parties to proceed with their arguments in the review application on the

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13. The requirements applicable in dealing with circumstantial evidence in

maker. Consequently, no irregularity has been committed by the learned

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IN THE LABOUR COURT OF LESOTHO

In the matter between:

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SUBMISSIONS AND FINDINGS