Bofihla Makhalane v Letseng Diamonds (Pty) Ltd and Others (LC 68 of 10) [2013] LSLC 24 (10 June 2013)

IN THE LABOUR COURT OF LESOTHO LC/68/10 HELD AT MASERU In the matter between: BOFIHLA MAKHALANE APPLICANT And LETŠENG DIAMONDS (PTY) LTD GERALD BOUTING JOHN HOUGHTON MAZVIVAMBA MAHARASOA 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT JUDGMENT Date: 7th March 2013 Dispute involving claim committal for contempt of the Order of the Labour Appeal Court. Respondent claiming costs following the notification of withdrawal of the matter by Applicant. Applicant applying for recusal of the learned Deputy President in the matter – Court not finding merit in the application and dismissing it. Applicant arguing that matter has not been withdrawn – further arguing that an award of costs would not be appropriate in the circumstances. Court finding that the matter has been withdrawn and ordering costs as prayed by Respondent. BACKGROUND OF THE ISSUE 1. This is a dispute involving a claim for committal of the Respondents for contempt of the Order of the Labour Appeal Court. It was heard on the 7th March 2013 and judgement was reserved. The background of the matter is essentially that Applicant obtained an award in his favour before the DDPR. In terms of the award, he was to be reinstated to his former position in terms of section 73 (1) of the Labour Code Order 24 of 1992. The said award was however reversed on review. Applicant then filed an appeal with the Labour Appeal Court where the award of the DDPR was reinstated. 1 | P a g e 2. It is this judgment of the Labour Appeal Court that Applicant sought to enforce through an order for committal. However, on the16th March 2012, Applicant wrote a letter the Registrar of this Court, forwarding a copy thereof to the Respondent, informing her of his intention to withdraw the matter. In that letter, Applicant had also requested the Registrar to strike the matter off the roll. Following the withdrawal letter, Respondent had the matter set down for hearing to request that an order of costs be made against Applicant. 3. Applicant thereafter filed an application for the recusal of the learned Deputy President from this proceedings on the ground of bias. This application was accompanied by an application for the reinstatement of the withdrawn application for committal. However, there was a condition on the reinstatement application, to the effect that it would only be moved before a different presiding judge, other than the learned Deputy President. On this day both parties made their presentations on both the application for recusal and an award of costs. Our judgement on the issues is thus in the following. SUBMISSIONS AND ANALYSIS Recusal application 4. Mr. Makhalane submitted that he sought the recusal of the learned Deputy President on the ground of bias. He submitted that that his fear of biasness stems from the fact that the learned Deputy President made a decision in LC/16/2012, which in his opinion was contrary to the judgment of the Court of Appeal in Bofihla Makhalane vs. Letšeng Diamonds (Pty) Ltd C of A (CIV) 14/2010. He argued that the decision of the Learned President was wrong and that it illustrates bad faith on his part, as a thoughtful observer. He made reference to the case of Sole vs. Cullinan NO & others LAC (2000-2004) 572 at 576G-F. 5. Mr. Makhalane further stated that following the judgment in LC/16/2012, he wrote a letter to the learned Deputy President dated 31st October 2012, which communication has been ignored by the learned Deputy President to date. He furthermore stated that his fear is further elevated by the fact that the learned Deputy President seems to take to the influence of Respondent in making His Judgments. Reference 2 | P a g e was made to the judgment in LC/16/2012 at paragraphs 15 and 16 thereof. 6. In reply, Advocate Woker submitted that all the averments made, do not evidence biasness on the part of the learned Deputy President in this matter. He submitted that if indeed the learned Deputy President had gone against the judgment of the Court of Appeal, then Applicant ought to have either reviewed or appealed against the judgment of the Court in LC/16/2012. Further, that the learned Deputy President was not obliged to respond to a letter by Applicant the moment the matter was finalised. He stated that in law, once a matter is final, then the presiding judge becomes functus oficio. 7. Advocate Woker added that the legal requirements in case of recusal were outlined in R. vs. Manyeli LAC (2007-2008) 377 at 382F, where the Court had the following to say, “Regard must also be had to the fact that there exists a presumption against partiality of a judicial officer. Advocate Woker submitted that this presumption exists because judicial officers are people who are judges due to their training and integrity and are subject to a judicial oath. 8. Advocate Woker added that in order to discharge the presumption against partiality, Applicant must lead evidence to prove his allegations. He submitted that in law, he who alleges bears the onus of proof and the test to be applied is a double standard. Reference was made to the case of Sole vs. Cullinan NO & others (supra) at 587A. He submitted that the double standard referred to means that there has to be a suspicion of a reasonable person and that the suspicion entertained must be based on reasonable grounds. A further reference was made to the case of R. vs. Manyeli (supra) at 381H- J. He argued that this said the test to be applied is objective. 9. Advocate Woker submitted that all the augments of Applicant are what he thinks. In his view Applicant is proposing that this Court adopt a subjective test contrary to the dictates in the authorities cited above. He added that in terms of these authorities, and given the standard that is used, it is irrelevant what Applicants thinks about the learned Deputy President. He argued that what Applicant thinks cannot preclude a judge 3 | P a g e from sitting in any given case. He argued that in fact, a judge has the duty to sit in any case. Reference was made to the case of Sole vs. Cullinan NO & others (supra) at page 586G-F. He prayed that this application be dismissed with costs as it is frivolous and devoid of merit. In reply, Mr. Makhalane submitted that costs should not be made in this case as he is enforcing his right to a fair hearing. 10. In determining whether or not to grant an application for recusal based on bias, the test to be applied is an objective test. Indeed as both parties have submitted, the elements of the test are to be found in the case of Sole vs. Cullinan NO & others (supra). At page 586, the Court quoted with approval the following passage from the case of President of the Republic of South Africa & others vs. South African Rugby Football union & others 1999 (4) SA (CC) at 177B-D, “The question is whether a reasonable objective and informed person would on the correct facts, reasonably apprehend that the judge has not or will not bring an impartial mind to bear on adjudication of the case, that is, a mind open to persuasion by the evidence and submissions of counsel.” 11. Whereas the test that is to applied in determining biasness is an objective one, it is Our view that the test that Applicant seems to rely upon is a subjective one. Applicant’s complaint of biasness against the learned Deputy president is solely based on his subjective perception of the learned Deputy President in handling LC/16/2012. Clearly, the crux of Applicant’s case does not relate to the facts in issue but rather to facts from another case. This being the case, the test suggested by Applicant is not only inappropriate but his ground for recusal of the learned Deputy President is not valid in law. 12. We say this because Applicant has failed to link the facts in casu with the alleged conduct of the learned Deputy President in LC/16/2012. It is not clear how the alleged conduct is likely to affect the matter in casu such that it will blind the learned Deputy President from exercising His impartiality in casu, and thus discharge the double standard of proof. While We note and acknowledge the authorities suggested by Respondent on the requirements in an application for recusal, We further add that Applicant has not presented any valid evidence of bias in 4 | P a g e these proceedings. It is thus Our view that this matter ought to be dismissed on this ground alone. However, We will proceed to address the Applicant’s individual grounds of recusal, which are three pronged in nature. 13. Firstly, Applicant argues that his fear of biasness derives from the fact that the learned Deputy President ruled against him in LC/16/2012, contrary to the decision of the Court of Appeal. He says that he considers this an act of bad faith as a thoughtful observer. While We note and acknowledge the view of the thoughtful observer, it is Our opinion that Applicant is using these proceedings to express his feeling of discontent towards the learned Deputy President in LC/16/2012. 14. If indeed all these above allegations of contravention of the decision of the Court of Appeal and mala fides on the part of the learned Deputy President in LC/16/2012 are valid, then there are established procedures that Applicant must invoke to vindicate his rights. As rightly pointed out by Respondent, these procedures include either a review or an appeal with the Labour Appeal Court. It is our view that Applicant is in effect attempting to have the judgment in LC/16/2012 either reviewed or appealed against through these proceedings. The mode chosen is not a proper one and cannot sustain. 15. Secondly, Applicant’s argues that his fear of biasness stems from the fact that the learned Deputy President did not reply to his letter in relation to LC/16/2012. In Our view, the conduct of the learned Deputy President in not reacting to the said letter, does not in any way suggest biasness on His part. In fact, Respondent is right that in law, the learned Deputy President was not obligation to respond to Applicant’s letter, as He had become functus officio. 16. The authority of Makhanya vs. Pheko CIV/T/313/ is both informative and authoritative on the principle of functus officio. In that case, the Court stated that where the Court has made a final ruling on an issue, then it becomes functus officio and In casu, this Court had made a cannot revisit the matter. judgment in respect of that matter and was thus functus officio. This meant that the matter had been finalised and that the 5 | P a g e Court could not entertain it any further in any way, including responding to a letter by Applicant. 17. The third leg of Applicant’s fear of bias arises from the fact that the learned Deputy President acknowledged some of the submissions of Respondent when making his judgment in the LC/16/2012. It is not clear how acknowledgement submissions of a party could cause one to apprehend a fear of biasness. In fact, it is Our opinion that failure to acknowledge submissions of parties could result in the judgment being subjected to review for ignoring same. It could well be a ground for the fear of apprehension of bias, depending on circumstances of a case in issue. 18. What makes Applicant’s case worse is the fact that he has not even cited any authority to support his argument that acknowledgement of parties submissions may give rise to an argument for bias. The lack of merit in this argument clearly fortifies Our view that Applicant is discontent with the conclusion of the Court in LC/16/2012. Consequently, this point cannot succeed as well. Respondents had asked that this application for recusal be dismissed with costs on account of it being frivolous and devoid of merit. We will address this prayer in dealing with the application for costs of the withdrawal hereunder. Application for Costs 19. Advocate Woker submitted that he is asking for costs of the main claim on account of the matter being vexatious. He submitted that it is his view that Applicant withdrew this claim because he knew that he had no prospects of success. He stated that this application was clearly a waste of time from the onset hence the withdrawal. As a result of a vexatious matter, Respondent has been caused to incur expenses in order to avoid being committed to jail and to pay the stated amounts in the notice of motion. 20. Advocate Woker further argued that with the matter being withdrawn, all the expenditure has been incurred for nothing thus resulting in wastage on the part of Respondent. He argued that in such cases, the Courts have held that such a litigating must pay his opponent’s costs upon withdrawal. Reference was made to the case of Likotsi Makhanya vs. 6 | P a g e Malefetsane Pheko & others C of A (CIV) 20/2012. He thus prayed that an award of costs be made against Applicant. 21. In reply, Applicant argued that the matter had not been formally withdrawn as yet. He stated that in terms Rule 10 of the Rules of this Court, when a matter has been withdrawn, the Court must dismiss it to make the withdrawal formal. He maintained that the fact that the Court has not dismissed the matter, then withdrawal is not final and the matter is still in subsistence. He stated that in fact, he was withdrawing his withdrawal from the bar. 22. The fair and equitable determination of this application for costs lies in Our conclusion in relation to the withdrawal of the matter. This is essentially because, Respondent claim for costs is based on the withdrawal whereas Applicants’ defence is based on an argument that there is no withdrawal. As rightly pointed out by Applicant, matters withdrawn are dealt with in terms of the Rule 10 of the Rules of this Court. Rule 10 provides as follows, “if an applicant shall at any stage give written notice to the Registrar of the withdrawal of his originating application, the Court shall dismiss such application.” 23. It is without doubt that Applicant did write a notice contemplated under Rule 10. If this is the case, then his notice should and ought to be recognised as his withdrawal of the matter. In fact, his subsequently application for reinstatement of the matter and his intention to withdraw the withdrawal notification from the bar, goes to fortify Our view that the matter is indeed withdrawn. The withdrawal of the notice of withdrawal is tantamount to an application for reinstatement of the matter. Applicant stated in the beginning of the proceedings that he will only move such an application before a different presiding judge. Given his initial stance, We cannot comment on the issue of the withdrawal of the notice of withdrawal. 24. Applicant’s argument that there is no withdrawal because it has not been dismissed in terms of Rule 10, cannot sustain. We say this because Rule 10 does not make a withdrawal valid only if the matter has been dismissed. Rule 10 simply gives the 7 | P a g e learned presiding officer direction as to how to deal with a situation where a matter has been withdrawn. Applicants’ argument assumes that where a party wishes to withdraw a matter, such withdrawal may be refused. 25. It is Our view that the withdrawal of a matter solely depends on the wishes of the party on whom the choice lies. It is a unilateral act that does not require the acceptance or rejection by the other party. What it be In casu, communicated in clear and no uncertain terms. Applicant has been clear of his intention to withdraw and to have the matter struck off. This is clear enough not be interpreted to mean anything other than a withdrawal. Consequently, We find that Applicant did indeed withdraw LC/68/2010. is necessary, is that 26. Respondent’s submissions for the award of costs have not be challenged, as Applicant merely pleaded non-withdrawal as his defence to the claim for costs. We are convinced in the unchallenged submissions of Respondent that Applicant has been vexatious in these proceedings. This is clear from his conduct of referring a claim and later withdrawing it, only to later argue that it has not been withdrawn when he is faced with a possible award of costs for the withdrawal. It is probable that the withdrawal was occasioned by his realisation that he had no prospects of success, as suggested by Respondent. 27. Further, it is also probable that the application for recusal of the learned Deputy President from the main claim was nothing but an attempt to divert the attention of the court away from the real issues. The claim that Applicant was enforcing his right in applying for the recusal of Learned Deputy President cannot hold as a valid defence. We say this because, Applicant has no valid grounds for same to be granted. He used this process to question the decision of this Court in another case, thus abusing its processes. 28. Furthermore, it is also probable that a defence of non- withdrawal and his attempt to withdraw the withdrawal application were merely intended to defeat the claim for costs. In our view, the conduct of Applicant has again been an abuse of the processes of this Court and thus vexatious. He has 8 | P a g e indeed caused the Respondent to incur the unnecessary costs over a matter that He clearly never had the real intention of pursing to finality. Consequently, We make an award of costs as prayed. AWARD Having heard the submissions of parties, We hereby make an award in the following terms: a) That the application for recusal is dismissed; b) That LC/68/2010 has been withdrawn; c) That an award of costs of suit is made against Applicant in respect of both the recusal application and the main claim; d) That this order must be complied with within 30 days of receipt herewith. THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF JUNE 2013. T. C. RAMOSEME DEPUTY PRESIDENT (AI) THE LABOUR COURT OF LESOTHO Mrs. THAKALEKOALA MEMBER Mrs. MOSEHLE MEMBER FOR APPLICANTS: FOR RESPONDENT: IN PERSON ADV. WOKER I CONCUR I CONCUR 9 | P a g e