Sonopo v Lesotho Communications Corporation (LC 67 of 95) [1995] LSLC 19 (17 September 1995)

IN THE LABOUR COURT CASE NO. LC/67/95 HELD AT MASERU IN THE MATTER OF: KHOTSO SONOPO APPLICANT AND LESOTHO TELECOMMUNICATIONS CORPORATION RESPONDENT AWA R D Applicant herein was dismissed by the respondent corporation on the 12th May 1994. He filed the present application on the 16th May 1995, seeking an order: "(a) .... declaring the applicant's purported dismissal null and void ab initio." "(b) ... directing the respondent to pay the applicant's emoluments from date of purported dismissal to date of reinstatement." "(c) ... directing respondent to reinstate applicant forthwith." "(d) Costs of suit." "(e) Further and/or alternative relief." In paragraph 5 of his originating application, applicant applied for condonation to sue out of six months prescribed by Section 70 of the Labour Code. The reasons he advanced were that: (a) when applicant was unlawfully dismissed the Honourable Court was not functional. (b) Applicant was only able to get the relevant documents on the 21st April 1995. We shall come back to this issue later in this judgment. It is apparent that after filing his originating application, applicant was advised by the Registrar that his originating application was faulty in that it did not comply with the requirements of rule 3(f) of the rules of the court. The applicant proceeded to amend his originating application and served the respondent with the amended application on 8th June 1995. When the amended application was dispatched by mail to the respondent, the latter had already filed its answer on the 7th June 1995. In its answer the respondent had indicated in paragraph 3 that a point in limine would be taken at the hearing to show that the originating application is defective in that it does not comply with rule 3 of the rules of court. The respondent further denied under paragraph 5 of its answer that the court can hear this matter outside the six months. The respondent's objection was based on the submission that the applicant has not shown good cause why his late application should be entertained. At the hearing of this matter the respondent's attorney included the issue of prescription as the second point to be taken in limine. However, before addressing the two points in limine, respondent's attorney objected to the procedure that the applicant followed in amending his originating application. Firstly he contended that the Registrar cannot advise a party to amend its application papers especially when the papers are not just faulty in respect of procedure, but the defect relates to content. In the alternative he argued that if the Registrar was entitled to advise applicant as she did, service of the originating application had already been effected and as such the amendment could only be done by leave of court. It seems to the court that, in the light of the nature of the function of this court, which is to do substantial justice in matters that come before it and to dispense justice timeously, it is not irregular for the Registrar to advise a party when such party's process does not comply with the rules. This will help the court to concentrate its efforts on substance rather than irregularities arising out of non-compliance with the rules. Secondly this will help in the speedy disposal of cases if papers filed of record are proper from the beginning as no postponements will be required for leave to amend. We, however, entirely agree with Mr. Matsau that once the process being sought to be amended has been served on the other party any amendment made on it would have to be by leave of court. Indeed rule 6 does specify that "the court may upon written application by any party upon written notice to any opposing party, or upon oral application at the hearing, or of its own motion, make an order ... amending any pleadings ...". The significant point is that a party intending to amend must apply to the court. This the applicant did not do and therefore, the purported amendment of the originating application was irregular and as such it is set aside. On the first point in limine Mr. Matsau referred to rules 3 (f) and (d) which provide that the originating application shall be in writing in or substantially in accordance with Form LC1 contained in Part A of the schedule and shall: "(d) be divided into paragraphs (including sub-paragraphs) in respect of content, which paragraphs shall be consecutively numbered and which shall, as nearly as possible, each contain a distinct averment;" "(f) contain a clear and concise statement of the material facts upon which the applicant relies, with sufficient particularity to enable the respondent to reply thereto;" Mr. Matsau submitted that the essence of rule 3 (d) and (f) is to enable the applicant to disclose his cause of action. Failure to comply therewith as is the case with the applicant, means that the applicant has not disclosed his cause of action. He submitted further that failure to comply with these two sub-paragraphs cannot be condoned under rule 27 of the rules, the court can only give applicant leave to correct the deficiency. He further stated that should the applicant apply for leave to amend he would not oppose it except that he will ask for time to respond and for the costs of the appearance. Mr. Mafantiri for the applicant did not deny that his originating application is deficient, because this fact was already witnessed by his attempt to amend the application after being shown the deficiency by the Registrar. He sought to defend the amendment that he made without seeking the leave of the court as proper. We have, however, already held that the amendment was irregular. In the alternative he asked for leave to amend and stated that he had no objection to postponement to enable the respondent to answer. We shall come back to this application for condonation and leave to amend later. The court agrees that applicant's originating application in particular paragraph 3 does not disclose the cause of action, which is envisaged by the rules to be disclosed thereunder. If the provisions of rules 3 (f) and (d) are read with the explanatory note under paragraph 3 of LC1 which is a proforma for an originating application, it will be noticed that the three are complementary. The essence of their provisions is to help the applicant to disclose his cause of action by disclosing the facts upon which the alleged improper conduct is based. The explanatory note reads that the applicant should state; "the grounds on which relief is sought, giving a clear and concise statement of material facts, in sub-paragraphs, each containing as nearly as possible a distinct averment." Applicant's originating application did not disclose any material background facts which preceded the alleged unfair dismissal. The respondent could not therefore be expected to answer intelligibly to a hanging claim which does not disclose whence it comes and how it arose. The respondent raised a further point in limine regarding prescription. Mr. Matsau contended that the applicant was dismissed from employment in April 1994 and yet he only filed a claim for unfair dismissal before this court in May 1995. He denied that the fact that at the time of his dismissal this court was not functional is a good cause on which the court can condone the late filing of the claim. He contended that the applicant could have pursued his claim before other courts of competent jurisdiction. With regard to the claim that the applicant only received the papers on the 27th April 1995, Mr. Matsau contended that the applicants had themselves asked for those papers late as the letter requesting for them was written on 10th April 1995. (see Annexure "B" to respondent's answer.). In response Mr. Mafantiri conceited that the application is out of time. He referred the court to the reasons the applicant has advanced under paragraph 5 of his originating application as his client's explanation for the delay. He stated further that in any event if the court excludes Sundays, holidays and the first and last day of the happening of the event, it may be found that applicant is still within the six months. We are of the view that there is no merit in the argument that in computing the period of prescription provided by Section 70 of the Code Sundays and holidays should be excluded. It appears to us that this argument is based on the wrong reading of Section 49 of the Interpretation Act 1977. The computing of time provided for by that section is in relation to days not months. Paragraph (c) of that section makes a further qualification that; "where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days Sundays and public holidays shall not be reckoned in the computation of time" (emphasis added). There is therefore clearly a limit that Sundays and public holidays will not be included in computation of time of six days and less. In our view therefore, there is no substance in the contention that Sundays, holidays and the first and the last day of the event should be excluded in computing the period of prescription under Section 70 of the Code. What should be considered is the lapse of six months and a month is defined under the Code as "a period commencing on any date in a calendar month and expiring at the end of the day preceding the corresponding date in the succeeding calendar month." This is the computation of time that the court will adopt in determining the period mentioned in Section 70 of the Code. It is common cause that when the applicant filed his case in May 1995, it was more than a year since he had been dismissed from his job. It is further common cause that at the time of applicant's dismissal, Part III Division D of the Code which establishes this court had still not been brought into operation. It commenced operation on the 13th October 1994 per Legal Notice No.98 of 1994. Mr. Matsau conceded that if the court wishes to be generous to the applicant it can start to count the period of prescription from October 1994 to May 1995 and it will be found that the applicant has still sued out of the six months limit. If we calculate the period from October 1994 to May 1995 when the present application was lodged it will be found that the application was lodged one month and three days late. The issue that arises for determination is whether the court should condone this late filing. In terms of Section 70(2) the court may allow presentation of claims outside the six months if it is satisfied that the interests of justice so demand. Mr. Matsau submitted that the court may condone the delay on good cause shown. We share the view that in order for the court to be able to satisfy itself about the demands of justice in respect of each case, the defaulting party must show good cause why there has been a delay. The leading case on the definition of "good cause shown" is the South African Case of Melane .v. Santam Insurance Co. Ltd. 1962 (4) SA 531 (A) where Holmes JA said: "In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation." The above ratio was followed by the Industrial Court in the cases of; Metal & Allied Workers' Union .v. Filpro (Pty) Ltd (1984) 4 ILJ 171 and Paper, Printing, Wood & Allied Workers' Union & Others .v. Kaycraft (Pty Ltd. and Another (1989) 10 ILJ 272. We will proceed to consider each one of the relevant facts under a separate heading to enable the court to exercise its discretion on the demands of justice in this case. The Degree of Lateness If we take the prescription period to have been from April 1994, applicant's claim prescribed in October 1994. When he filed his case in May 1995, he was seven months out of time. If we consider the period to have started to run in October 1994, when this court was formally established, the claim prescribed in April 1995. It is therefore one month out of time. It appears to the court on the basis of the records before it that, since his dismissal in April 1994, applicant never indicated that he was seeking to challenge his dismissal in any way whatsoever. The first time that the respondent heard from him was in April 1995, when his attorney wrote a letter requesting to be furnished with certain documents pertinent to the case. This letter was dated 10th April, which was just one clear day before the day on which the claim was due to prescribe. Noting that such a letter does not in itself interrupt prescription it appears to the court that the degree of lateness in this matter is so long that it can hardly be condoned. Explanation for the delay We have already shown that the applicant advanced two reasons as an explanation for his delay. These were that: (a) When the applicant was dismissed the court was not functional. (b) That he only received the relevant documents from the respondent in April 1995. Mr. Matsau argued, correctly in our view that if this court was not functional in April 1994, there were other courts of competent jurisdiction before which the applicant could have pursued his claim, even if only to interrupt the period of prescription. Indeed many other claimants did lodge their claims in the Magistrate Court and the High Court and these cases are presently being transferred by those courts to this court as the court of competent jurisdiction, now that it has been established. With regard to the second reason, the court is of the opinion that the applicant was infact the author of his own misfortune. He received the relevant documents in April not because of any fault on the part of the respondent, but because his attorney asked for those documents late. The letter asking for the documents was written on the 10th April and it was responded to on the 20th April. Clearly the respondent reacted promptly to the request. This cannot therefore be a justifiable reason for the late filing of the application. Prospects of Success The prospects of success at this stage of the proceedings can only be gleaned from the papers filed of record by the parties. It is common cause that the applicant challenges a suspension on full pay; which was imposed on him for two weeks for allegedly disregarding lawful instructions and having extended his official leave of absence by two days without authority. The applicant is also challenging his dismissal. The applicant challenges both these actions on the grounds that they were taken in violation of the principles of natural justice. It is common cause that in its answer the respondent averred that applicant was given a hearing prior to his dismissal. The respondent annexed a copy of the record of a disciplinary hearing that was held against the applicant in September 1993. The issues before the disciplinary hearing were substantially the same as those which appeared as reasons for applicant's dismissal. The letter of dismissal referred to the numerous warnings against the applicant, his defiant response, the disciplinary hearing and the subsequent suspension. The letter referred to the totality of these acts as breach of Articles 27.3.2 and 27.3.4 of the respondent's personnel regulations, for which it was entitled to dismiss the applicant. No evidence of any hearing afforded the applicant prior to suspension was tendered by the respondents in papers before the court. It seems to the court on the papers before it that there is a prospect of success on the issue of suspension. However, this success would be academic, because applicant had been suspended on full pay. If any prejudice was suffered by the applicant as a result of that suspension it was minimal. We are on the other hand of the view that the prospects of success on the issue of dismissal without a hearing are slight in the light of the explanations tendered by the respondent in its answer. Ex facie the respondent's answer there was substantial compliance with the principles of natural justice. Importance of this case It appears from applicant's letter of dismissal that he was dismissed for alleged slovenly appearance at work and continued unauthorised absence. From the papers filed of record, there is evidence of only one incident of unauthorised absence from work by the applicant, and that was when he extended his leave of absence by two days without authority. There is, however, documentary evidence of numerous correspondence directed to the applicant imploring him to change his untidy appearance at work. Meetings were held with him whereat he was advised to make himself presentable and at one stage he was given a written warning. He himself responded to the warning and invited the respondent to, "please go ahead with what the LTC intends doing to solve this unique problem." It seems to the court from the weight of the documentary evidence, which shows that the applicant was advised, on several occasions to improve his appearance, that this factor weighed heavily in influencing the respondent to dismiss him. It seems to us that the case is important in that this court has never before come across such a case. It seems from applicant's response that he himself wanted a decision to be made on this matter. Thus the importance of the case would be on the subject of dismissal. It is, however, significant that, that was not the applicant's case on the papers filed of record. Having considered the relevant facts, the court has to assess their impact and whether on the basis thereof it would be in the interests of justice to condone the late filing of the application. In the case of Melane supra, the Appellate Division held that since the facts are interrelated and not individually decisive; "what is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interest in finality must not be overlooked." The court is of the view that applicant's degree of lateness, whether prescription is calculated from April 1994, or from October 1994, when this court was established, is too long. The explanation for the delay is not satisfactory and as such it is unconvincing. The prospects of success on the key issue of reinstatement are not bright on the face of the papers before the court. While the issue that gave rise to the dismissal is clearly important and by his own letter applicant had challenged the respondent to it, when he finally lodged this case, the applicant did not include the subject of his dismissal as part of his case. It cannot therefore be said that he is likely to suffer any prejudice as he abandoned that aspect of the claim. It is important that the issue here is one of fairness to both sides. It is also important to note that in prescribing a shorter period within which cases for unfair dismissal should be presented before the court, the legislature intended time to be of essence in such cases. In determining the interests of justice, the intention of the legislature and the effect of non-compliance with the prescribed time-limit on the respondent should not be overlooked. There are several possible reasons which could have necessitated that time be considered of essence in such proceedings. In the view of the court one of the important reasons could be that an unfairly dismissed employee should be able to have his rights determined within the shortest time possible. Another reason could be that, because unfairly dismissed employees are entitled to reinstatement if they want it, the employer should be able to know as soon as it is practically possible whether he is to reinstate the dismissed employee or he should seek a replacement. In the view of the court the degree of applicant's lateness led the respondent to believe that he had accepted his termination. It would therefore be unfair to the respondent to condone applicant's late institution of this case as the respondent is likely to have long secured a replacement. We are not satisfied by applicant's explanation for the delay, consequently we are of the view that applicant has failed to show good cause why the delay should be condoned. In the circumstances, the application for condonation of the late application is refused and the respondent's point in limine is upheld. The applicant had applied for condonation and leave to amend his originating application. Since the upholding of the point in limine on the issue of prescription disposes of the matter there is no point of considering that application. The respondent had asked for costs if the leave to amend was granted. Now that the issue does not arise, the issue of costs equally disappears. THU S DON E AT MA S E R U THI S 7TH DAY OF SEP T E M B E R 1995. L. A. LETH O B A N E PRE S I D E N T I CON C U R I CON C U R S. LETEL E ME M B E R M. KA N E ME M B E R FOR APPL I C A N T : MR. MAFA N T I R I FOR RE S P O N D E N T S : MR. MAT S A U