Boliba Multi Purpose Coop v Motsoasele and Another (LC/REV 95 of 2012) [2015] LSLC 13 (11 February 2015)

IN THE LABOUR COURT OF LESOTHO HELD AT MASERU LC/REV/95/2012 IN THE MATTER BETWEEN BOLIBA MULTI-PURPOSE COOP APPLICANT AND SEKOALA MOTSOASELE DDPR 1st RESPONDENT 2nd RESPONDENT JUDGMENT Applicant for rescission of judgment granted by default. Applicant establishing a reasonable explanation but failing to demonstrate prospects of success on review. Court finding that a rescission is not due where there are no prospects of success and refusing same. Court not finding sufficient grounds to award an order of costs against Applicant. No order as to costs being made. BACKGROUND OF THE DISPUTE 1. This is an application for the rescission of judgment of this Court issued on 13th December 2014. The brief background of the matter is that 1st Respondent was an employee of Applicant until his dismissal for misconduct, on or around the 1st November 2011. Unhappy with his dismissal, 1st Respondent referred a claim for unfair dismissal with the 2nd Respondent. The matter was heard and an award was issued in favour of 1st Respondent on the 23rd July 2012. In terms of the award, Applicant was to pay 1st Respondent an amount of M727, 801- 20 as compensation. 2. Dissatisfied with the award, Applicant review proceedings with this Court on the 5th October 2012 and obtained an order for stay of enforcement and the dispatch of the record in the DDPR proceedings. On the 10th January lodged Page 1 of 6 2013, Applicant was served with a notice calling upon it to come and collect the said record for transcription, but never did. About 9 months later, 1st Respondent initiated an application for dismissal of the review application for want of prosecution. the review 1st Respondent had claimed application was merely intended to frustrate enforcement of the award made in his favour, as nothing further had been done to have the matter finalised since its referral. 3. We had then agreed with 1st Respondent and dismissed the matter. The order of this Court was delivered on the 21st November 2013 and a written judgment was later issued on the 13th December 2013. Following receipt of the order of this court, Applicant initiated the current rescission application. On the date of hearing of the rescission application, applicant sought to have the matter postponed. It was claimed by Adv. Mohapi for applicant that the matter was being handled by one Advocate Peete and that he was unable to attend on account of his wife’s illness. The postponement was strongly opposed by Mr. Letsika for 1st Respondent. We then directed both parties to address Us on the issue. 4. Adv. Mohapi argued that given that an allocation had already been made to Advocate Peete, he was not in a position to argue the matter. Mr. Letsika in answer, argued that this is a 2 paragraph application with 7 sentences. He submitted that Advocate Mohapi, if at all the Applicant is serious about the matter, can ask for the matter to be stood down to allow him to prepare rather than to have it postponed. We agreed with Mr. Letsika and refused the postponement. We then offered to stand the matter down to allow Advocate Mohapi to make preparations. He however, rejected the offer and stated that he did not need time to prepare as he was ready. APPLICATION FOR RESCISSION 5. Adv. Mohapi for Applicant argued that they failed to attend the hearing because they did not know about the date of hearing. He argued that they were never served with the notice of hearing and that as a result they could not attend the hearing. Page 2 of 6 He submitted that Applicant’s failure to attend was therefore not wilful, but due to circumstances beyond its control. 6. He further submitted that Applicant had prospects of success in that they were seeking the review of the arbitration award on account of unreasonableness of the decision of the learned Arbitrator. Reference was made to paragraph 6 of the Applicant’s Notice of Motion. It was argued that having disclosed their case, this is sufficient for this Court to grant them a rescission. The Court was referred to the Labour Appeal Court decisions in Security Lesotho v Lebohang Moepa and; Security Lesotho v Khauhelo Moeno ; and Ntseke Molapo v Mphuthing & Others 1995-1996 LLR-LB 576, in support. 7. In answer, 1st Respondent submitted that it is inaccurate that Applicant was not notified about the date of hearing. It was argued that this Court serves its own processes including the notices and further that It could not have heard the matter unless satisfied that all parties were aware that it was to be heard. Further, that there is nothing on the part of Applicant to suggest reasons why it may have not been served with the said process. 8. On the prospects, it was argued that there is nothing said by Applicant to support their claim for unreasonableness. It was submitted that Applicant has simply made a bare statement of prospects of success. Further, it was submitted that even if this Court were to buy into this argument, there are still not prospects as to date no record of proceedings has been filed and served upon 1st Respondent. It was prayed that the matter be dismissed. 9. We have gone through the record and in particular, the notice of hearing. We have noted that it only bears confirmation of receipt on the part of 1st Respondent and not Applicant. While We concede that this Court serves its own processes, that on its own cannot serve as proof that process has been delivered and served upon parties. There has to be more than just that. Page 3 of 6 10. Regarding the prospects of success, We agree with 1st Respondent that there are none. Applicant has merely put a bare statement alleging unreasonableness without disclosing its defence. Care should be taken that We are not requiring applicant to prove unreasonableness, but are merely requiring it to state facts that are sufficient to enable us to determine that there is a case for unreasonableness to be answered. Put differently, We want Applicants to clearly disclose their case. It is trite law that bare allegations are unconvincing and cannot be relied upon to make a decisive conclusion in favour of the party making such allegations (see Mokone v Attorney General & others CIV/APN/232/2008). Consequently, We see no reason to deviate from this trite position. 11. Further, regarding the issue of the record of proceedings, it is not denied by Applicant that it has not availed it to both the Court and 1st Respondent to date. In fact the Court’s record affirms the position suggested by 1st Respondent. We have already stated that in terms of the record, Applicant was called to collect same for transcription as far as on 10th January 2013. To this day of hearing of this matter, almost two years have gone by without the record being availed. 12. We have stated before that the record of proceedings before the Court a quo is needed to support an Applicant’s case for review, particularly where unreasonableness is alleged. Clearly, if there is no record, even if this matter were to be rescinded, Applicant would not succeed with the review as there would be not record to sustain its claim for review. It would therefore be unfair and highly prejudicial on the part of 1st Respondent to grant this application, as that would only result in exposing him to unending litigation. 13. In view of Our finding on the prospects of success, We find it unnecessary to open the matter for a re-hearing as that would amount to no more than a waste of time and an undue prejudice to another. Our attitude finds support in the Case of Moshoeshoe v Seisa & others CIV/T/596/2004, where in dealing with the requirements for a rescission application, the Court made the following remark, Page 4 of 6 “In this regard, Respondent’s Counsel’s correctly referred the court to Jerome Ramoriting & Another vs Lesotho Bank-National Development Bank (CIV/APN/136/87 (unreported) at page 6, where the court had the following to say; “It is not sufficient if only one of this(sic) two requirements is met, for obvious reasons a perty (sic) showing no prospects of success on the merits will fail in an application for rescission of judgement no matter how reasonable and convincing the explanation of his default. Moreover, a perty (sic) which simply disregards the court’s procedural rules with no explanation cannot be permitted to have a judgement against him rescinded merely because he had reasonable prospects of success on the merits”. COSTS 14. 1st Respondent had asked for the dismissal of the matter with costs. He argued that Applicant has misled this Court into believing that they were not served with the notice of the hearing when circumstances of this case, it is merely meant to delay execution of the 1st Respondent award. Applicant denied the allegations and insisted that it was not notified about date of hearing. Further that an award for costs is made instances of unreasonableness, which have not been shown on their part. He prayed that the application for costs be refused. they were. that given Further, 15. We have stated the principle in awarding costs before. We have said that this court only awards costs in extreme circumstances of vexations conduct and/or frivolity ((see Thabiso Moletsane v Ministry of Public works and Transport LC/31/2014). None have been presented by parties before Us. We therefore decline to award costs. Page 5 of 6 AWARD Having considered both submissions and evidence, We make an award as follows: 1) That the rescission application is refused. 2) The order of this Court issued on the 21st November 2013 remains in force. 3) The award of the DDPR in referral A1115/2011 is reinstated and it must be complied with within 30 days of issuance herewith. 4) No order as to cost. THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY, 2015. T C RAMOSEME DEPUTY PRESIDENT (a.i.) LABOUR COURT OF LESOTHO MR. KAO I CONCUR MR. MOSEHLE FOR APPLICANT: FOR RESPONDENT : I CONCUR ADV. MOHAPI MR. LETSIKA Page 6 of 6