Boliba Multi Purpose Cooperative v Sekoala Motsoasele and Another (LC/REV 95 of 2012) [2013] LSLC 81 (13 December 2013)

IN THE LABOUR COURT OF LESOTHO LC/REV/95/2012 A1115/2011 HELD AT MASERU In the matter between: BOLIBA MULTIPURPOSE CORPORATIVE APPLICANT And SEKOALA MOTSOASELE THE DDPR 1st RESPONDENT 2nd RESPONDENT JUDGMENT Hearing Date: 21st November 2013 Application for review of the 2nd Respondent arbitration award. 1st Respondent applying for the dismissal of the matter for want of intention to oppose – prosecution. Applicant only 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 order as to costs being made. indicating BACKGROUND OF THE ISSUE 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 1 | P a g e 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 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. SUBMISSIONS AND FINDINGS 5. It was 1st Respondent’s 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, 2 | P a g e 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 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 3 | P a g e 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. AWARD We therefore make an award in the following terms: a) That the application for dismissal for want of prosecution is granted; b) The review application is dismissed; c) The award in referral A1115/2011 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 THUS DONE AND DATED AT MASERU ON THIS 13th DAY OF DECEMBER 2013. T. C. RAMOSEME DEPUTY PRESIDENT (a.i) THE LABOUR COURT OF LESOTHO Mr. S. KAO MEMBER Mrs. M. MOSEHLE MEMBER I CONCUR I CONCUR FOR APPLICANT: FOR 1st RESPONDENT: NO APPEARANCE ADV. LETSIKA 4 | P a g e