Wasa (CIV/APN 8 of 98) [1998] LSCA 6 (7 January 1998)

CIV/APN/8/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: K O P E LI M O I L OA W A SA J U D G M E NT On the 7th January, 1 9 9 8, applicant (sun employee of the Lesotho W a t er a nd Sewerage Authority) brought an application against his e m p l o y er for a declaratory Order in the following terms: 1. Declaring the removal of applicant f r om the position of H e ad of Personnel to that of administrative m a n a g er null a nd void a nd of no force or effect. 8. Directing respondent to reinstate applicant to the position of H e ad of Personnel with respondent, with its concomitant benefits a nd allowances as detailed out in his contract of e m p l o y m e nt ( A n n e x u re " B " ). 3. Directing respondent to p ay to applicant all arrears of housing allowance as from the date of the purported demotion to the date of judgment. 4. Directing respondents to p ay the costs hereof. 8. Granting applicant s u ch further and/or alternative relief as tills Honourable Court d e e ms meet. Applicant h as b e en an employee of the respondent since the 15th September, 1 9 9 8, as H e ad of Personnel. On the 1st or 2 2 nd October, 1 9 9 2, the board of respondent gave applicant a nd other senior officers special allowances a m o ng w h i ch w as included housing allowance. On the 27th N o v e m b e r, 1 9 9 6, applicant w as charged with disciplinary offences, the gist of w h i ch w as incompetence a nd lack of diligence in the performance of his duties. T he disciplinary hearing c o m m e n c ed on 3rd D e c e m b e r, 1 9 9 6, a nd w as concluded on the 18th D e c e m b e r, 1996. T he disciplinary committee completed its w o rk a nd reported to respondent's Board on the 15th January, 1998. T he upshot of this w as that applicant w as "demoted to a non-decisive position with immediate effect". T he decision of the B o a rd w as c o m m u n i c a t ed to applicant on the 2 8 th January, 1998. On the 29th January, 1 9 9 8, applicant appealed to the B o a rd by writing the notice of appeal to the C h a i r m an of the Board, with copy to the Executive Secretary. T he crux of these proceedings is that applicant's appeal w as not processed because it h ad not gone through the proper channels, by letter of 31st January, 1 9 9 8, the acting c h a i r m an h ad written to applicant a letter w h i ch inter alia stated the following:- "Please be advised that the substantive c h a i r m an is not in office presently, she is out of the country on official business. Y o ur appeal will therefore be duly considered u p on the return to office by the substantive chairman.... On a procedural matter, please take note that appeals should be channelled through the corporate secretary." My understanding of the letter of the 31st January, 1 9 9 7, w as that the appeal w o u ld be considered as soon as the substantive C h a i r m an of the B o a rd returned. It never w as until applicant wrote a reminder of 10th M a r c h, 1 9 9 7. T he C h a i r m an of the B o a rd wrote by letter of 17th M a r c h, 1 9 97 ( a m o ng other A... things) replied as follows: "I am not a w a re of a ny appeal filed try y ou in the case w h e re by y ou w e re demoted, while I am a w a re y ou w r o te a letter to the C h a i r m an in an attempt appeal, ... or did y o u ?" Nothing w as d o ne about this matter until N o v e m b er 1 9 9 7. Applicant h ad b e en m a de a w a re (rightly or w r o n g l y) that his appeal w as since 17th M a r c h, 1 9 9 7, being ignored by the c h a i r m an despite the promise by the acting c h a i r m an that it w o u ld receive attention w h en the c h a i r m an return to office. It w as only on the 17th N o v e m b e r, 1 9 9 7, that this matter w as taken by his attorney. Ultimately his attorney brought this application before this court by instituting these proceedings on the 7th J a n u a r y, 1 9 9 8. A r g u m e nt b e g an before me on the 15th October, 1 9 9 8, a nd w as concluded on the 2 2 nd October, 1998. It is this delay that M r. Mohau, Counsel for respondent criticises a nd asks this court not to exercise its p o w er to m a ke declarations in favour of applicant. This court at its discretion m ay m a ke declaratory orders in t e r ms of Section of the High Court Act of 1 9 7 8. This Court (despite its unlimited jurisdiction) is not supposed to b u r d en itself with matters that are within the jurisdiction of specialist tribunals s u ch A... as the Labour Court. In such circumstances all this court concerns itself is to see that the empowering statute and regulations are followed and principles of natural justice are not breached. It is a principle of common law that this court is in charge of its own procedure. Section 6 of the High Court Act 1978 does not in any way remove this court's traditional power as a superior court to hear cases in which no other tribunal has jurisdiction. It seems to me that as this is a matter of statutory interpretation and regulations made under it, nothing in the Labour Code can be interpreted ad removing the courts jurisdiction. Yet the Labour Court has jurisdiction to deal with the merits of this case including those in which the merits are mixed with procedural issues. Section 24 of the Labour Code is broad enough to include the denial of the right of appeal that applicant has. See Masiu v LADB - CIV/APN/361/94 unreported. There is nothing in the legislation that establishes the Lesotho Water and Sewerage Authority including the regulations that obliged the applicant to note his appeal through the corporate secretary or Chief Executive. Indeed I find it strange that the Chairman condescended to write to applicant direct when this should have been done by the corporate secretary (according to his reason). I observe applicant had given the Corporate Secretary a copy of his letter of appeal. Even if the Corporate Secretary had not been give a copy, that was not a good reason not to hear applicant's appeal. I am of the view that bureaucratic practice were applied in a m a n n er calculated to deny applicant his statutory rights. Although I will not go as far as suggesting that there w as mala fides, I am satisfied that there w as a breach of the law. The acting secretary had informed applicant that his appeal w o u ld be heard, but it never was. I am not happy with the delay of applicant between m a r ch 1997 and January 19978 in taking action against respondent. Pending appeal, applicant should have not suffered prejudice. There is also the delay that is not the fault of the parties but w h i ch should have been avoided h ad respondent been reasonable. T he interests of justice oblige me to m a ke the following Order: (a) It is declared that the Chairman of the Board of respondent erred in not hearing applicant's appeal that h ad been properly noted. (b) It is ordered that the appeal be heard within 30 days of this Order. (c) It si declared that applicant is entitled to the rights a nd privileges that he enjoyed as H e ad of Personnel between 7th January, 1997, and the date of hearing of the appeal. (d) Respondents are directed to pay costs. For applicant For respondent : : M r. K. M. Mosito M r. K. Mohau