Leitsoela v Lesotho Nisaan (Pty) Ltd and Another (LAC/REV 33 of 2) [2008] LSLAC 8 (10 November 2008)

IN THE LABOUR APPEAL COURT OF LESOTHO LAC/REV/33/02 In the matter between: FETOHANG LETSOELA APPELLANT AND LESOTHO NISSAN (PTY) LTD DDPR LESOTHO 1ST RESPONDENT 2ND RESPONDENT CORAM: HONOURABLE MR K. E. MOSITO A. J. ASSESSORS: MR M. MAKHETHA MR J. TAU 31st October 2008 Heard : Delivered 10th November 2008 SUMMARY: Application for review of award of DDPR- DDPR having awarded applicant compensation for unfair dismissal in terms of section 73(2) of the Labour Code 1992. Applicant complaining that the compensation ought to have been based on either his reaching the age of 65 as is the case with members of the police service and teachers. There being no statutory provision or contractual term upon which such a claim could be based applicant not entitled to such a claim. The Labour Appeal Court having already ordered compensation-applicant not entitled to an order of compensation as the Court if functus oficio Costs-the Court having not been addressed on the issue of costs, no order as to costs. MOSITO A. J.: JUDGMENT 1. This application arises out of an Award of the Directorate of Dispute Prevention and Resolution (DDPR) handed down on the 15th day of July 2002 in Referral No. A575/02. The facts given rise to the present matter are not really in dispute. They are that the applicant was employed by the respondent company on the 10th day of September 2001. On the 30th day of January 2002, applicant was verbally dismissed from the employ of 1st respondent. The dismissal was purportedly in terms of section 75 of the Labour Code relating to probationary employees. No reasons were given for the termination of his contract. A certificate of service was issued by the 1st respondent which certified that applicant had “worked for Lesotho Nissan for a period of more than five months as a Heavy Duty Driver.” 2. As a result of applicant’s dismissal he referred the dispute relating to his dismissal to the DDPR. The hearing took place on the 31st day of May 2002 commencing at 2:00pm. 3 3. I have already indicated above that applicant was verbally dismissed. He wrote a letter on the 2nd day of April 2002 demanding to know the reason for his dismissal. However, no written reasons for dismissal were furnished to him to-date. This was clearly in violation of section 69 of the Code. 4. As a result of the hearing in which applicant challenged his dismissal as being unfair the DDPR handed down the following award: “(a) The respondent company is ordered to compensate the applicant by six month for the unfair dismissal in the sum of M6,156. (b) The respondent company is ordered to pay the applicant two weeks’ wages in terms of the Labour Code Wages (Amendment) Order 2001 in the sum of M514. (c) The respondent is ordered to effect payment of the above sums to the applicant in the total of M6,670 within 30 days of this award. Dated at Maseru, this 15th day of July 2002.” 5. Being dissatisfied with the said award, the applicant approached this Court for an order reviewing the above mentioned award. His complaint was contained in a document entitled “NOTICE TO REVIEW AN ARBITRATION AWARD AND PROCEEDINGS”. I may pause to observe that the applicant was not represented by a legal practitioner 4 before this Court and his papers filed before this Court left much to be desired. They were not only documents not contemplated by the provisions of the rules of this Court for review, but were also in most circumstances wholly inconsistent with the requirements of the rules. Of course, my brother Peete J appears to have been aware of this but never the less was apparently more inclined to arrive at the acquitable and substantial justice of the case. He made no directives as to what should happen to the “pleadings” filed by the applicant before him. He ultimately heard the matter as it was before him. 6. The complaints by the applicant as detailed out in his “NOTICE TO REVIEW AN ARBITRATION AWARD AND PROCEEDINGS” were as follows: KINDLY TAKE NOTICE THAT the above applicant intends and hereby makes an application to the Labour Appeal Court of Lesotho to show cause if any on a date to be determined by this Honourable Court why the decisions and the proceedings reached in the Arbitration referral No. A575/02 between the above parties on the 31st day of May 2002 cannot be reviewed, corrected and or set aside on the basis that: 1. The total award of M6,670 instead of M148,872.00 made to the applicant is not consistent with the provisions of the Labour Code Order No. 24 of 1992 Sections 66,68,69 and 73 which Labour Code is the statutory provision regulating employment and matters incidental thereof. 2. In the deliberations determining the amount of compensation of M6,670.00 for the unfair dismissal, the Arbitrator made a false assertion that the 1st respondent through one Mr Khanyane made or advanced an explanation to the appellant’s employment was being terminated, and this wrong assertion so made, unfairly and wrongly prejudiced the applicant’s determination of compensation of damages for the wrongful dismissal. By this notice the Directorate of Dispute Prevention and Resolution is asked to dispatch within fourteen (14) days of receipt of this notice to the Registrar of the Labour Appeal Court, the record of this proceedings to be reviewed, corrected and or set aside together with such reasons as he is required or desires to give and to notify the applicant when he has done so. TAKE FURTHER NOTICE THAT the affidavit of the applicant herewith annexed shall be used in support of this application. Dated at Maseru on this 12th day of August in the year 2002. Signed by Fetohang Letsoela The Applicant C/O M. Khabo Stadium Area P. O. (Maseru East) Box 7894 Maseru 100 TO: The Registrar The Labour Appeal Court of Lesotho Maseru AND TO: The Directorate of Dispute Prevention and Resolution 8th Floor, Post Office Building Kingsway Road Maseru 100 The Managing Director Lesotho Nissan Pty Ltd 29 Moshoeshoe Road Industrial Area Maseru 100 7 7. I have purposefully quoted in extenso the document styled “NOTICE OF REVIEW AN ARBITRATION AWARD AND PROCEEDINGS” in order to demonstrate the nature of the prayers that applicant had placed before this Court. I may hasten to point out that this document seems to have been filed in the place of a Notice of Motion required by the rules of this Court. To that document, applicant filed a founding affidavit in which he detailed out facts that were intended to support his “prayers” as outlined above. 8. In his affidavit applicant complained that he had not been given reasons for termination of his employment contract by 1st respondent. He complains that he was instead given a certificate of service contemplated by Section 77 of the Labour Code Order 1992. He further indicates that he complained to the DDPR that the terms of Sections 66 and 69 of the Labour Code Order 1992 had not been complied with and therefore his dismissal was unfair and unlawful and that he should be reinstated in terms of section 73 (1) of the Code. His referral was heard on the 27th of May 2002 at a conciliation by the DDPR. When the conciliation failed, the matter was referred to arbitration and was heard on the 31st day of May 2002. An award was handed down on the 15th July 2002. The award was as reflected in paragraph 4 above. 9. The applicant then approached this Court to review that above award on the 15th day of August 2002. I may mention that at that time the power to review the awards of the DDPR still lied with this Court. The matter was placed before my brother Peete J sitting with assessors and was postponed on several occasions to different 8 dates for various reasons which are not necessary to go into for purposes of determining the present matter. 10. It may suffice to mention that there is a typewritten order styled “final Court order” in the file which reflects that on the 11th day of November 2005, in the presence of the applicant and Advocate Molati for the 1st respondent, my brother Peete J made the following order: It is ordered that:- (a) (b) Applicant’s dismissal was procedurally unfair. The respondent should pay six thousand nine hundred and twenty six Maloti (M6926.00) to applicant. (c) No order as to costs” By order of Court ……………………. Registrar “ On the file cover of the judge’s file, the following writing appears: Award: M6926.00 in favour of Mr. F. Letsoela to be paid within 30 days of today. (inclusion of interest) 9 I will return to the significance of the above contents of the file later on in this judgment. 12. On 16th day of February 2007, the applicant appeared in person in the absence of Advocate Molati before my brother Peete J. It was on that day that the applicant applied that my brother Peete J should recuse himself “upon grounds of relationship”. The application was granted. However, it appears that after the said application was granted, my brother Peete J went ahead to make another order on the same day which reads as follows: The matter of compensation made under section 73 of the Labour Code as amended to be heard by Mosito A. J .upon a sooner date to be set before Easter. 13. As to whether the above order was properly made after the Learned Judge had recused himself is a matter that we were not, fortunately invited to go into. I therefore decide not to go into it. It suffices to say that the matter was not set-down before me as per the said order. 14. According to the applicant (and this is common cause) in May 2008 the applicant went to the office of the Registrar of this Court to seek to have the matter set-down for hearing but he was told by the Registrar that the case will be set-down in June before the Labour Court in as much as the law had been amended that reviews of awards of the DDPR should no longer be brought before this Court but the Labour Court. This was presumably a reference to the Labour Code (Amendment) Act 2006 which came into operation in August of that year. The applicant then requested that his file be placed before the 10 President of the Labour Court for the latter to intervene as applicant did not believe the Registrar. The applicant informs this Court that the President of the Labour Court informed him that the Labour Court could not hear the matter because there was an order by my brother Peete J made on the 16th of February 2007 that the matter be placed before me for a decision on the compensation issue. The applicant goes further to indicate that the President informed him that the Labour Court could not intervene in the Labour Appeal Court cases. It was in consequence of this communication from the President that the applicant again approached the Registrar to have the matter set- down for the June 2008 session of the Labour Appeal Court and for the matter to be placed before me for hearing in terms of the order made by my brother Peete J on the 16th day of February 2007. 15. The Registrar of the Labour Appeal Court contacted me about this matter seeking directions as to what should be done now that while the matter was pending before this Court the law was amended to confir jurisdiction on reviews on awards of the DDPR upon the Labour Court and yet that notwithstanding there had been an order of this Court saying the matter be placed before me. It was in this circumstances that I informed the Registrar that since by operation of the law the matter was pending before the Labour Court, and that the President of the Labour Court had indicated that the matter could not be entertained by the Labour Court as to do so would violate an order of this Court given on the 16th of February 2007 while the said 2006 Act was already in place, the applicant was free to make an application in terms of Section 38 paragraph A (3) of the Labour Code (Amendment) Act No. 3 of 2000 that the Labour Appeal Court 11 sits as a Court of first instance in respect of a matter pending before either the DDPR or the Labour Court. Indeed on the 2nd day of July 2008 the applicant filed an application in 16. terms of the aforementioned section in which he fully detailed out the ups and downs that his case had gone through as a result of the Amendment in 2006 and the order of this Court handed down by my brother Peete J on the 16th day of February 2007. The section 38 A(3) application was heard by me on the 15th day of October 2008 in chambers and by consent of the parties the application was granted that the matter be transferred from the Labour Court to be heard by this Court sitting as a Court of first instance. 17. I must point out at this stage that the reasons informing this Court’s granting the section 38A (3) application in this case were that, it was clear that, that matter was caught in a dilemma. The main application could not be finalised by the Labour Court because the Court considered that it had no jurisdiction as the Labour Appeal Court had already become seized with the matter prior to the Labour Code (Amendment) Act of 2006. Secondly, the Labour Appeal Court had already made an order notwithstanding that Amendment that the matter be placed before me. Indeed the Labour Court found itself in a difficult position whether to continue to hear the matter that the law required should be placed before it and to violate an order of this Court notwithstanding the provisions of the law which had directed that the matter be placed before me. This was a real dilemma. This matter had to be finalised in respect of the main application for review. 12 18. My decision to grant the above application was informed by the fact that the Labour Code (Amendment) Act of 2006 which placed the review jurisdiction under the Labour Court was a procedural law in as much as jurisdiction of a Court is a procedural question. There is a plethora of authority that a procedural legislation may operate retrospectively. In Sole v the Crown LAC (2000-2004) 612 at 629 paragraph 38, the full bench of the Court of Appeal held that: In law a distinction is drawn between substantive law which defines rights, duties and obligations, and rules of procedure which govern or regulate the general conduct of litigation. As a guiding principle “every alteration in procedure applies to every case subsequently tried, no matter when such Johannesburg (Curtis case Municipality 1906 TS 308 at 311) provided it does not impact upon existing substantive rights and obligations (Minister of Public Work v Haffejee N O 1996 (3) SA 745 (A) at 753 B-C) began…” v 19. A section that regulate procedure as opposed to substantive rights may be retrospective in operation. The Court of Appeal of Lesotho cited with approval the judgment by Innes CJ in the leading case of Curtis v Johannesburg Municipality (supra) at 312 that: Every law regulating legal procedure must, in the absence of express provisions to the contrary, necessarily govern, so far as is applicable, the procedure in every suit which comes to trial after its promulgation. Its prospective operation would not be complete if this were not so, and it must 13 regulate all such procedure even though the suit may have been then pending. To the extent to which it does that, but to no greater extent, a law dealing with procedure is said to be retrospective. Whether the expression is an accurate one is open to doubt, but it is a convenient way of stating the fact that every alteration in procedure applies to every case subsequently tried, no matter when such case began or when the cause of action arose. 20. In my view the 2006 amendment came into operation after the cause of action had arisen and yet the matter came to trial in this case after the passing of the said Act. The said 2006 amendment therefore had application to the present case in so far as it related to jurisdiction. Since the matter had already been filed with the Labour Appeal Court but was by operation of the law made to fall under the jurisdiction of the Labour Court, the Labour Appeal Court was entitled to exercise its discretion in a dilemma situation in which the case ultimately found itself to order that the matter be heard by this Court sitting as a Court of first instance. It was for the above reasons that I granted the section 38A (3) application. 21. The substantive application for review was therefore placed before us for argument on the 31st of October 2008. Mr Letsoela (who appeared in person) first sought to challenge the typewritten order referred to in paragraph 11 above on the basis that it did not properly reflect the order of the Court as reflected in the Court file and reproduced in paragraph 12 above. His contention was that my brother Peete J had awarded him interest in respect of the amount reflected as M6,926.00. He contended that he was entitled to the interest that he had been granted by the Court. 22. I had two problems with this contention. First of all the handwriting that appears in the brackets on the Court’s file is indisputably different from the other handwritings by Peete J that appear throughout the file. It may be argued that I should not constitute myself a handwriting expert while at the same time exercising judicial functions. That argument may arguably be correct. However, the handwriting in question is so glaringly and patently different from the other handwritings that it is difficult to believe that it may have been inserted by the learned Judge. Secondly, assuming that I am wrong in principle in the view I hold of this handwriting, there is yet another problem that stands on the way of my accepting that my brother Peete J would have ordered payment of interest when there had not been a prayer for such an order as clearly appears in paragraph 6 above. In several of its decisions the Court of Appeal of Lesotho has deprecated the practice of granting orders which are not sought for by the litigants. See for example The Presiding Officer N. S. S.(L. Makakole) v Malebanye Malebanye C of A (CIV) 05/07 at par 9; Nkuebe v. Attorney General and Others 2000 – 2004 LAC 295 at 301 B – D; Mophato oa Morija v. Lesotho Evangelical Church 2000 – 2004 LAC 354. In the latter case the Court (per Grosskopf JA) said the following at page 360:- The relief which a court may grant a litigant in terms of such a prayer[further and alternative relief] cannot in my view be extended to relief which he has never asked for and which is not even remotely related to what he has asked for. It is equally clear that the order was not granted at the request of the respondent and it does not appear on what grounds the court a quo could order the respondent. 23. Similarly, the Court of Appeal has more than once deprecated the practice of relying on issues which are not raised or pleaded by the parties to litigation. See for example Frasers (Lesotho) Ltd vs Hata- Butle (Pty) Ltd 1995 – 1999 LAC 698; Sekhonyana and Another vs Standard Bank of Lesotho Ltd 2000-2004 LAC 197; Theko and Others v Morojele and Others 2000-2004 LAC 302; Attorney- General and Others v Tekateka and Others 2000 – 2004 LAC 367 at 373; Mota v Motokoa 2000 – 2004 LAC 418 at 424. National Olympic Committee and Others vs Morolong 2000 - 2004 LAC 449. It is inconceivable therefore that the Labour Appeal Court could have granted Applicant an order which he had not asked for. It is therefore, difficult for me to accept that Peete J would have granted such an order when nobody has asked for it. 23. The next contention by the applicant was that he had not been given compensation as contemplated by section 73 (2) of the Labour Code Order 1992. The learned Counsel for the 1st respondent, Mr Molati challenged the applicant to explain what the sum of M6,926.00 that applicant had received was for. First, the applicant accepted that he had received the sum of money reflected in the typewritten order referred to above. He however, complained that, that money was for his arrears of salary which he ought to have received during the period when he was out of employment. He contended that the DDPR did not award him compensation for unfair dismissal. When confronted with a question by the Court as to what he makes of the award of the 16 DDPR outlined in paragraph 4 above which specifically says that he was to be compensated in the sum as reflected therein, he argued that the DDPR had erred in so holding as it did in that award. He argued that the award was for arrears of salary but not compensation for unfair dismissal. He argued further that his compensation should be such that it should be based on the equivalent either of what police officers and teachers in government (by which I understood the age of 65) would be entitled to. He further referred to the evidence of the only respondent’s witness before the DDPR who had indicated under cross-examination that they would expect to work with applicant for so long as the company existed. Applicant therefore contended that his compensation should be either based on the period left before he reached 65 or up to so long as the 1st respondent existed. Confronted with the question as to whether he had any contract with the 1st respondent to base his aforesaid claims, his answers were in the negative. 24. There are two short answers to these complaints. Firstly, it is clear from paragraph 4 above that the DDPR exercised a discretion to award him compensation for unfair dismissal. No sound basis for interfering with the exercise of that discretion was placed before this Court. In the absence of any regulation, contractual or statutory provisions to that effect this Court would not be justified to interfere with the award. In my view there was no basis for the claim that the DDPR had not exercised its discretion properly in this case. 25. It is important to note that the applicant conceded that he had received the sum of M6926.00. It is of course, apparent that the said amount is different from that contained in paragraph 4 above. The explanation 17 given by Advocate Molati was that he made an offer of settlement while the parties were before Peete J that they would be prepared to pay applicant the sum of M6926.00 as opposed to the one that the DDPR had ordered and that the applicant accepted the offer. That being the position my brother Peete J ordered that the new sum that 1st respondent had offered be paid to applicant. It was duly paid. The applicant accepts that he did receive it. In my view there would be no basis for this Court to interfere with the award of the DDPR. 26. The Learned Counsel for the 1st respondent contended that in any event since the DDPR had already awarded the sum that it did in its award, and this Court has already ordered the increased sum offered by the 1st respondent as compensation, then this Court is functus oficio. As stated in Firestone South Africa (Pty) Ltd v Gentiruco A. G 1977 (4) SA 298 (A) at 306 F-G: thereupon becomes functus officio: The general principle, now well established in our law, is that, 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 its jurisdiction in the case having been fully and finally exercised, its authority over the subject- matter has ceased. See West Rand Estates Ltd v New Zealand Insurance Co. Ltd, 1926 A. D. 173 at pp. 176, 178, 186-7 and 192; Estate Garlick v Commissioner of Inland Revenue, 1934 A. D. 499 at p. 502. 27. I agree that this Court is functus officio. My brother Peete J had already ordered that applicant be paid the sum of M6926.00 which was clearly based on the amount of compensation awarded by the 18 DDPR but which 1st respondent elected to increase. It is obvious from the aforegoing reasons that this application cannot succeed. The application is accordingly dismissed. Since we were not addressed on the question of costs, there will be no order as to costs. 28. My Assessors agree. --------------------------------- K. E. MOSITO AJ. Judge of the Labour Appeal Court For Applicant For 1ST Respondent : : Mr F. Letsoela (in person) Advocate L. A. Molati 18