lesotho Brewing Co. t/a Maluti Mountain Brewery v Lesotho Labour Court President and Another (CIV/APN 435 of 95) [1997] LSHC 60 (5 August 1997)

1 C I V / A P N / 4 3 5 / 95 IN T HE H I GH C O U RT OF L E S O T HO In the matter between L E S O T HO B R E W I NG C O. T /A M A L U TI M O U N T A IN B R E W E RY A P P L I C A NT and L E S O T HO L A B O UR C O U RT P R E S I D E NT 1ST R E S P O N D E NT M I KE N K U A T S A NA 2 ND R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. Justice M . M. R a m o d i b e di on the 5th d ay of A u g u st 1 9 9 7. On the 5 th d ay of D e c e m b er 1 9 95 the A p p l i c a nt filed an urgent application w i th this H o n o u r a b le C o u rt seeking for an o r d er in the following terms:- 1. D i s p e n s i ng w i th the ordinary R u l es of this H o n o u r a b le C o u rt pertaining to the m o d es a nd the p e r i o ds of service of process; 2. Directing and ordering that the A w a rd of the Labour Court C a se N o. L C . 4 7 / 95 be reviewed, corrected a nd set aside; 3. Directing the First Respondent to transmit the record of the proceedings and a copy of Judgement in the L a b o ur Court C a se N o. L C 4 7 / 95 to the Registrar of the a b o ve mentioned Honourable Court within fourteen (14) days of the receipt of service u p on t h em of this process. 4. Directing Respondents to file their opposing papers if any, within seven (7) days of service u p on t h em of the Court Order, Notice of this Application and Affidavit thereto. 5. Directing that the execution of J u d g e m e nt of the L a b o ur Court incase N o. L C 4 7 / 95 be stayed pending the finalisation of this Application; 6. A Rule Nisi be issued and returnable within seven (7) days of service calling u p on the Respondents to s h ow cause, if any, w h y: a. T he A w a rd by the Labour Court in C a se L C . 4 7 / 95 shall not be reviewed, corrected a nd set aside; b. T he strict compliance with the Rules of this Honourable Court shall not be dispensed with; c. Further and/or alternative relief shall not be granted. 7. T h at prayer 1,2,3,4, a nd 5 operate with i m m e d i a te effect as an Interim O r d e r; 8. Directing R e s p o n d e n ts to p ay costs h e r e of if they o p p o se this Application. 9. Granting Applicant further and/or alternative relief." A R u le Nisi w as duly granted as p r a y ed on the s a me d ay a nd after several p o s t p o n e m e n ts a nd extensions of the R u le the matter w as finally argued before me on 2 2 nd M ay 1 9 9 7. A brief b a c k g r o u nd leading to this application s h o ws that in January 1 9 94 the 2 nd R e s p o n d e nt while an e m p l o y ee of the Applicant travelled to S w a z i l a nd either on official business according to Applicant's version or on a training c o u r se according to the 2 nd R e s p o n d e n t. I do not think h o w e v er that the exact nature of the trip matters for the purposes of the exercise before m e. W h at matters is that the 2 nd R e s p o n d e nt w as admittedly given a d v a n ce m o n ey by the Applicant a nd w as "required to p r o d u ce receipts for expenditure." T h e re is no dispute about this. T he Applicant's version is that the a d v a n ce m o n ey referred to a b o ve w as "to c o v er the costs of the meeting." T he 2 nd R e s p o n d e nt h o w e v er insists that the m o n ey w as " an allowance." O n ce m o re I do not think h o w e v er that anything turns on this m i n or difference in versions. B e c a u se of the 2 nd R e s p o n d e n t 's aforesaid a d m i s s i on that he w as required to p r o d u ce receipts for expenditure I am satisfied that the expenditure w as accountable by the 2 nd R e s p o n d e n t. W h at then h a p p e n ed is that the 2 nd R e s p o n d e nt bought himself, a m o n g st others, a watch, a belt a nd a handbag. A g a in this is c o m m on cause. This episode led to a disciplinary charge being levelled against the 2 nd Respondent on an allegation of "misappropriation of an allowance given to y ou whilst on training." T he hearing thereof w as conducted on the 28th M a r ch 1 9 94 and it w as presided over by one M r. J. Steenberg w ho w as Applicant's Production Manager. He sat with the Industrial relations M a n a g e r. O ne M. Tente w ho featured as H u m an Resources Representative acted as prosecutor. T he 2 nd R e s p o n d e nt appeared in person. According to the record of proceedings Annexture " C" the 2nd R e s p o n d e nt w as duly 'read his rights a nd the charge." He is recorded as having indicated that he did not wish to have a representative and also that he h ad no witnesses. M o st importantly the record s h o ws that the 2 nd R e s p o n d e nt then pleaded guilty a nd w as accordingly found guilty as charged. He w as then dismissed on one (1) month's notice. This w as on the s a me day namely the 28th M a r ch 1994. It is further significant that w h en asked if he wished to appeal against the decision the 2 nd Respondent is recorded as having indicated that he did not wish to appeal. I shall return to this aspect later. It w as only Eight m o n t hs later and apparently on the advice of the Department of L a b o ur that the 2 nd R e s p o n d e nt pursued his appeal purportedly within the Applicant's rules and procedures. As will appear later he w a s, h o w e v e r, clearly out of time. Incidentally the L a b o ur Court falls directly under this Department. T he "appeal" w as dismissed in N o v e m b er 1994. T h en on 31st M a r ch 1995 which w as m o re than twelve m o n t hs after the 2 nd R e s p o n d e n t 's dismissal the latter filed an application w i th the L a b o ur C o u rt seeking for an order in the following terms: " a) C o n d o n i ng applicant (sic) late filing (if a n y) of this application. b) Setting aside the purported dismissal of applicant by respondent. c) Directing respondent to reinstate applicant with full p ay f r om the date of dismissal including the b o n u s es a nd all other benefits. d) Directing the respondent to p ay interest at the rate of 1 1% p er a n n um f r om the date of dismissal. e) Directing the respondent to p ay costs of this application." After hearing submissions f r om M r. M p o po for the 2 nd R e s p o n d e nt a nd M i ss T e n te for the Applicant the 1 st R e s p o n d e nt set aside the dismissal of the 2 nd R e s p o n d e nt as unfair a nd ordered the Applicant to c o m p e n s a te the latter as follows :- "(i) P a y m e nt of m o n t h ly salary f r om the 8th N o v e m b er 1 9 9 4, w h i ch w as the d ay of the appeal hearing to the date of j u d g m e n t. (ii) P a y m e nt of six m o n t hs salary as c o m p e n s a t i o n. (iii) All p a y m e n ts to be calculated at the rate of p ay that applicant w as earning at the time of his purported dismissal. (iv) T he a b o ve p a y m e n ts are to be m a de within thirty (30) days of the handing d o wn of this judgment." I should mention that the 1st Respondent's reasons for holding the 2 nd Respondent's dismissal unfair w e re stated in his j u d g m e nt as follows n a m e ly that:- "(1) Applicant did not h a ve a fair hearing because the chairman of the enquiry w as also complainant a nd witness at the s a me time. T he so-called disciplinary hearing on the 28th M a r ch 1 9 94 is therefore declared a nullity. (2) Applicant w as charged with contravention of a non-existent or unclear rule. It is inconsistent with the principle of legality that a person be charged with contravention of an undeclared rule. (3) No offence of the kind with w h i ch the applicant w as charged exists under the respondent's disciplinary code. T he offence w as hatched by the complainant w ho also b e c a me judge in his o wn cause." It is against the a b o ve mentioned background that the application before me has b e en brought. It is sought to persuade the Court that the dismissal of the 2 nd Respondent by the Applicant w as fair both substantively a nd procedurally a nd that on the contrary 1st Respondent's decision as aforesaid w as based on misdirection a nd pure speculation that the chairman of the disciplinary hearing w as also complainant a nd witness at the s a me time as well as a judge in his o wn cause w h e r e as there w as no such evidence on record. As will be s h o wn later the 1st Respondent's a w a rd is also attacked on the grounds that it is uncalled for and unfair. M r. M p o po submits that the Applicant has canvassed appellable grounds and wrongfully turned t h em into reviewable grounds. As an e x a m p le he refers to paragraph 5 (a) of the Applicant's founding affidavit in w h i ch the latter states as follows: " T he Labour Court President misdirected himself and erred in deciding that the disciplinary hearing conducted by Applicant w as unfair allegedly because it w as presided over by a person alleged to be chairman, complainant and witness all at the s a me time." It is M r. M p o p o 's submission, if I understand h im correctly, that the use of the w o rd "misdirected" automatically categorises the matter as o ne of appeal a nd not review. I do not agree. In my v i ew it all depends on the nature of the misdirection complained of in each particular case. D e p e n d i ng on the particular circumstances of a case a misdirection m ay well give rise to a ground for review. In this regard I am mainly attracted by the remarks of B r o w de JA in Albert Lithebe Makhutla v Lesotho Agricultural D e v e l o p m e nt B a nk C of A ( C i v ) N o .1 of 1 9 95 (unreported) to the following effect:- " W h at is not characteristic of an appeal, h o w e v e r, is the allegation in the Appellant's f o u n d i ng affidavit that the j u d g m e nt of the L a b o ur Court w e nt b e y o nd the scope of the issues w h i c h, by a g r e e m e n t, it w as called u p on to d e c i de a nd p e r h a ps m o re importantly, that the L a b o ur C o u rt f o u nd facts p r o v ed - a nd specific reference w e re m a de to the recital by the C o u rt in its j u d g m e nt of w h at w as referred to as "the saga that led to his dismissal" - without e v i d e n ce of s u ch facts h a v i ng b e en led before the L a b o ur Court. If that is so, a nd I m a ke no c o m m e nt thereon, then it w as a misdirection a nd a procedural irregularity w h i ch w e re properly matter for r e v i e w" ( my underlining). T he provisions of Section 38 (1) of the L a b o ur C o de O r d er 1 9 92 m u st also be b o r ne in m i nd in considering an application s u ch as the o ne before m e. T h at Section provides as follows :- " 3 8. A w a r d s, decisions final; notice ( 1) An a w a rd or decision of the C o u rt on a ny matter referred to it for its decision or on a ny matter otherwise falling within its sole jurisdiction shall be final a nd binding u p on the parties thereto a nd on a ny parties affected thereby, a nd such a w a rd or decision shall not be the subject of an appeal in a ny proceedings or court." T h e re is no doubt in my m i nd that this is a draconian section w h i ch c an very often lead to untold injustice without a ny h o pe of an appeal to redress it. A r e v i ew therefore remains the only r e m e dy to an aggrieved litigant. Accordingly I consider that the Court needs to adopt a liberal approach in favour of review application procedure as the only r e m e dy to correct the decisions of the L a b o ur C o u rt in the interests of justice. In doing so the Court m u st mainly look to the substance of the complaint rather than to f o rm or technicalities. I turn then to consider w h e t h er there is a ny evidence on record that the c h a i r m an of the disciplinary enquiry n a m e ly M r. Steenberg w as complainant a nd witness at the s a me time as well as a judge in his o wn cause. I should mention straight a w ay that w h at I find rather disturbing in this case is that the Labour Court did not hear a ny oral evidence in the matter nor w e re there a ny affidavits filed at all. T he L a b o ur Court appears to h a ve relied on the submission of Counsel a nd apparently m a de conclusions of credibility d r a wn from s u ch submissions that M r. Steenberg w as both complainant, witness a nd j u d ge in his o wn cause. I consider that this is totally unacceptable and that the L a b o ur Court should have heard evidence either oral or by affidavit before c o m i ng to the conclusions it m a d e. In my j u d g m e nt a decision w h i ch is based on no evidence altogether is certainly reviewable. Section 17 (2) (3) of the L a b o ur Court Rules provides as follows :- " 17 (1) (2) T he Court shall conduct the hearing of an originating application or appeal in such m a n n er as it considers m o st suitable to the clarification of the issues before it a nd generally to the just handling of the proceedings; it shall, so far as appears to it appropriate, seek to avoid formality in its proceedings and, subject to the provisions of section 29(3) of the C o d e, it shall not be b o u nd by the rules of evidence in proceedings before courts of law. (3) At the hearing of an originating application a party shall be entitled to appear, to be represented, to give evidence, to call witnesses, to question a ny witness a nd to address the Court." N or d o es this Court find that there is a ny justification for the following remarks m a de by the L a b o ur Court in its j u d g m e n t: " T he u n w a n t ed result of m a k i ng an interested, party chairman of proceedings in w h i ch he has interest is that as M r. Steenberg did, he ends up giving evidence against the accused e m p l o y ee f r om the chair. T h us in his letter of dismissal, M r. Steenberg further accuses the applicant of having "not m a ke me a w a re of y o ur purchase at the time that y ou asked me to sign your e x p e n se claim..." According to the record of the proceedings this factor w as taken as an aggravating factor w h i ch influenced the imposition of the penalty of dismissal." W e ll as I read the record of proceedings Annexture " C" there is absolutely no evidence indicating that M r. Steenberg w as an interested party and that he g a ve evidence "from the chair" at the disciplinary hearing at all. As earlier stated the 2 nd Respondent pleaded guilty and w as thus found guilty on his o wn plea. Accordingly there cannot be any question of prejudice suffered by h im for that matter. I am not surprised therefore that prejudice w as neither alleged n or a r g u ed before me at all. I n d e ed the L a b o ur C o u rt itself states as follows on p a ge 4 of its j u d g m e n t: " T he Applicant h ad w r o n g ly u s ed the funds given for a specific p u r p o s e ." This is precisely w h at the Applicant pleaded guilty to. In my j u d g m e nt the k ey w o rd in a case such as this is prejudice. T he C o u rt will not grant relief w h e re e v en t h o u gh there is an irregularity a litigant h as not suffered prejudice thereby. T h is is so b e c a u se the underlying principle is that the C o u rt is disinterested in a c a d e m ic situations. S ee R a j ah & R a j ah (Pty) L t d, v Ventersdorp Municipality 1 9 61 (4) S. A. 4 02 ( A) at 4 0 8. T h is C o u rt also feels that the said "letter of dismissal" referred to by the L a b o ur C o u rt n e e ds to be placed in its p r o p er context n a m e ly that it w as written after the disciplinary hearing in question h ad already b e en c o n d u c t ed a nd after the 2 nd R e s p o n d e nt h ad already b e en dismissed in t e r ms of A n n e x t u re " C ". I consider therefore that the letter w as no m o re than an attempt to place the dismissal on record. T he letter in question is A n n e x t u re " D" a nd it reads: " 28 M a r ch 1 9 94 M R. M. N K U A T S A N A, P. O. B OX 764 M A S E RU 100 Dear Mike, Y ou h a ve b e en found guilty of "misappropriation of an allowance given to y ou whilst on training" in the hearing against y ou this morning. Y ou h a ve spent M 3 6 0 . 00 on personal luxury items i.e. a watch, h a n d b ag a nd belt without my authority. Y o ur explanation that y ou weren't a w a re of the c o m p a ny rules in this regard is not valid. Y ou did not m a ke me aware of your purchase at the time that y ou asked me to sign your expense claim nor did y ou clear it with me a w e ek later w h en the Acting H u m an Resources M a n a g er put out a m e mo about the subject of expanses on Business trips (refer to m e mo attached). In my capacity as L o ss Control M a n a g er y ou should always set the perfect example. As custodian of c o m p a ny rules a nd regulations your conduct must be b e y o nd reproach in all respects, (refer to letter dated 30th July, 1 9 93 by myself) M a n a g e m e nt feels that y ou have violated this trust a nd therefore the sanction for this offence is dismissal with 1 (one) month's notice. Regards, J. L. S T E E N B E RG Production M a n a g er cc: M a n a g i ng Director Acting H u m an Resources M a n a g er Industrial Relations M a n a g e r ." ( My underlining). In my view w h at M r. Steenberg stated in his letter Annexture " D" after the dismissal in question cannot justifiably be said to have a m o u n t ed to giving evidence by h im leading to the dismissal itself. In the s a me breath I find that the Labour Court's view that M r. Steenberg's reference in his letter Annexture " D" to the effect that the 2nd Respondent did not m a ke h im a w a re of his purchase at the time of the signing of the expense claim and that this w as "taken as an aggravating factor w h i ch influenced the imposition of the penalty of dismissal" is not supported by any evidence on record. N or has this Court been able to find any evidence on record to the effect that M r. Steenberg w as the complainant as alleged by the L a b o ur Court. I find that the L a b o ur C o u rt grossly a nd irregularly misdirected itself by relying on m e re gut feeling a nd pure speculation in this regard. It is thus guilty of a gross irregularity. S ee L u cy Lerata a nd 26 others v Scott Hospital C of A ( C i v) N o. 38 of 1 9 95 (unreported). In a ny event e v en if I am w r o ng in the v i ew that I take of the matter, I consider that administrative tribunals are perfectly entitled to avail themselves of particular facts within their o wn observation. In this regard the r e m a r ks of R o se Innes: Judicial R e v i ew of Administrative Tribunals in South Africa at p 1 65 are apposite to the case before m e. T he L e a r n ed A u t h or states thereat: " T he duty of disclosure is of great importance to a just decision of administrative matters, for administrative tribunals are not limited in the w ay courts of l aw are by the ordinary rules of evidence, a nd m ay obtain, rely a nd act u p on information from various sources other than the evidence or statements m a de before the tribunal. T h ey m ay avail themselves of particular facts within their o wn observation a nd expert knowledge, w h i ch is m u ch wider than the strictly circumscribed sphere of judicial notice or k n o w l e d g e, and they m ay h a ve regard to the information independently obtained f r om outside sources or a private source, whether as evidence aliunde by persons not before the tribunal or as evidence obtained in other proceedings. F or an administrative tribunal to act u p on information thus obtained is not in itself an irregularity." In my v i ew it is of great significance that n o ne of the allegations attributed to M r. S t e e n b e rg h a ve in a ny event b e en placed in dispute by the 2 nd R e s p o n d e nt in this matter. O n ce m o re the debate in this regard c an only be of an a c a d e m ic nature w h i ch this C o u rt is not interested in. It is significant that the Applicant's "Disciplinary a nd grievance p r o c e d u r e s" e m p o w er the w o r k e r 's supervisor to c o n d u ct a disciplinary enquiry. I consider therefore that M r. Steenberg properly presided o v er the disciplinary enquiry against the 2 nd R e s p o n d e nt as the latter's supervisor. I turn next to deal w i th the Applicant's c o m p l a i nt b a s ed on the actual a w a rd itself. In this regard the Applicant states as follows in p a r a g r a ph 5(I)(2) of the f o u n d i ng affidavit of R o g er Smith:- " T he 2 nd R e s p o n d e nt d o es not s e em to h a ve d o ne anything to minimise his "losses" ( d a m a g e s ). In fact the C o u rt President is silent a b o ut his (sic) important factor, h e n ce my contention that the c o m p e n s a t i on is disproportionately excessive taking the circumstances a nd factors of the c a se into account." ( My underlining). T he Applicant continues in the s a me vein in paragraph 5 ( m) of R o g er S m i t h 's f o u n d i ng affidavit a nd registers its complaint a nd r e v i ew g r o u nd as follows:- " E v en if the C o u rt President felt s y m p a t hy for the 2 nd R e s p o n d e n t, he could h a ve a w a r d ed his n o r m al terminal benefits as c o m p e n s a t i o n. An invocation of Section 7 3© (sic) of the L a b o ur C o de w h i ch w as not c a n v a s s ed during the trial a nd w h i ch w o u ld h a ve given the present A p p l i c a nt an opportunity of rebuttal is uncalled for a nd unfair. It is interesting to note that this very section h o w e v er provides that in assessing the a m o u nt of c o m p e n s a t i on a c c o u nt shall also be taken of w h e t h er there h as b e en a ny b r e a ch of contract by either party ( 2 nd A p p l i c a nt h as u s ed c o m p a ny m o n ey to but (sic) for himself a belt, h a n d b ag a nd a w a t c h) a nd w h e t h er the e m p l o y ee h as failed to take s u ch steps as m ay be reasonable to mitigate his or her losses. As I stated before the C o u rt President is v e ry silent on this crucial issue" ( my underlining). It is significant that the 2 nd R e s p o n d e nt h as not denied these d a m a g i ng allegations at all in his o p p o s i ng affidavit. I p r o c e ed therefore on the basis of the correctness of those allegations a nd in doing so it is also necessary to bear in m i nd Section 73 of the L a b o ur C o de O r d er 1 9 92 w h i ch reads thus:- R e m e d i es (1) If the L a b o ur C o u rt holds the dismissal to be unfair, it shall, if the e m p l o y ee so w i s h e s, order the reinstatement of the e m p l o y ee in his or her j ob without loss of remuneration, seniority or other entitlements or benefits w h i ch the e m p l o y ee w o u ld h a ve received h ad there b e en no dismissal. T he C o u rt shall not m a ke s u ch an order if it considers reinstatement of the e m p l o y ee to be impracticable in light of the circumstances. (2) If the C o u rt decides that it is impracticable in light of the circumstances for the employer to reinstate the e m p l o y ee in e m p l o y m e n t, or if the e m p l o y ee d o es not w i sh reinstatement, the Court shall fix an a m o u nt of compensation to be a w a r d ed to the e m p l o y ee in lieu of reinstatement. T he a m o u nt of compensation a w a r d ed by the L a b o ur Court shall be such a m o u nt as the court considers just a nd equitable in all circumstances of the case. In assessing the a m o u nt of compensation to be paid, account shall also be taken of whether there has been any breach of contract by either party a nd whether the e m p l o y ee has failed to take such steps as m ay be reasonable to mitigate his or her losses." As I read this section the a w a rd fixed by the L a b o ur Court is not an arbitrary one but is o ne premised on just a nd equitable considerations in w h i ch both parties m u st certainly be heard. It w as w r o ng a nd grossly irregular a nd unfair for the Labour Court therefore to merely consider the point of v i ew of the e m p l o y ee (2nd R e s p o n d e n t) while totally ignoring that of the e m p l o y er (Applicant). In the s a me breath I find that by being "silent" on the question whether the 2 nd Respondent failed to take such steps as m ay be reasonable to mitigate his losses the L a b o ur Court wrongfully disregarded the express provisions of Section 73 (2) of the L a b o ur C o de 1 9 92 a nd thus committed gross irregularity. T he L a b o ur Court's finding that the 2 nd R e s p o n d e nt w as charged with contravention of a " n on existent or unclear rule" is also attacked on the ground that it amounts to a misdirection in total disregard to Applicant's Disciplinary C o de a nd the 1 9 80 conditions of E m p l o y m e nt of staff Section 10 of the latter provides in part as follows:- "10. Expenses whilst on C o m p a ny Business. All reasonable expenses incurred by an e m p l o y ee whilst on c o m p a ny business are paid for on submission of a claim f o rm to w h i ch m u st be attached the necessary supporting documents. E m p l o y e es m u st p ay for all expenses whilst on the trip a nd claim on return to their place of domicile." I have underlined the w o r ds "reasonable expenses" to indicate my v i ew that an e m p l o y ee is not given a free h a nd in the use of Applicant's funds whilst on the latter's business trip. T he expenses that such an e m p l o y ee incurs m u st be reasonable and obviously h a ve a bearing to the Applicant's o wn interests. T h ey m u st certainly not be of a luxurious nature as is the case here. Section 3.2 of the Applicant's Disciplinary C o de on the other h a nd clearly s h o ws that "unauthorised use of c o m p a ny property or funds...." is a very serious offence punishable by dismissal. Accordingly I find that the Applicant's complaint in this regard is well taken and that o n ce m o re the L a b o ur Court seriously misdirected itself a nd is thus guilty of a gross irregularity. T he Applicant's next complaint is contained in paragraph 5(i)(1) of the founding affidavit of R o g er Smith in the following words:- "i T he C o u rt President states that the penalty we i m p o s ed is disproportionate to the offence. In our v i ew it w as not, but be that as it m ay the A w a rd itself is oblivious of the following factors w h i ch should h a ve been taken into account. 1. T he 2 nd Respondent w as dismissed in M a r ch 1994. First he refused to take an appeal w h i ch w as available to him. Secondly even though the L a b o ur Court did not exist, Courts of l aw w e re there. So the October 1 9 94 being (sic) the date of establishment of the L a b o ur Court has no bearing or relevance here, particularly as he did not lodge his case before that Court in October or N o v e m b er 1 9 94 a n y w a y. Thirdly, 2 nd R e s p o n d e nt only resorted to the Labour Department nine months later in N o v e m b er 1 9 9 4, which followed immediately by the hearing of his appeal (see annexure E ). E v en then he only lodged his case in M a r ch 1995, w h i ch w as exactly a year after dismissal a nd five m o n t hs after the appeal. T he case itself w as only heard in September, 1995. N o ne of these delays w e re at the instance of the Applicant, so w hy should Applicant be penalised so to p ay for these. Fourthly, whatever faults that m ay h a ve b e en there at M r. Streenberg's (sic) the appeal rectified t h em as it w as presided over by different people w ho cannot be said to the prosecutors a nd witness all at once." Significantly the 2 nd R e s p o n d e nt has not denied these material allegations. I accept therefore that the delay in bringing the matter to finality w as not c a u s ed by the Applicant. In my v i ew the 2 nd R e s p o n d e nt m u st shoulder the b l a me for s u ch delay. That being the case I find that the L a b o ur Court's a w a rd w as m o st unfair to the Applicant C o m p a ny w h i ch w as punished for the delay w h i ch w as not of its o wn m a k i ng to the extent that it w as unreasonably m a de to p ay 2 nd R e s p o n d e n t 's m o n t h ly salary " f r om the 8th N o v e m b er 1 9 9 4, w h i ch w as the d ay of the appeal hearing to the date of j u d g m e n t" plus an additional " p a y m e nt of six m o n t hs salary as c o m p e n s a t i o n ." In other w o r ds the 2 nd R e s p o n d e nt w as wrongfully a l l o w ed to benefit from his o wn dilatoriness in delaying to prosecute his matter to finality. This at the e x p e n se of the Applicant a nd to its prejudice. In this regard I h a ve attached d ue w e i g ht to the unchallenged fact that the 2 nd R e s p o n d e nt "refused to take an appeal w h i ch w as available to h i m ." In terms of Section 1.3.3.1 of the Applicant's Disciplinary C o de an e m p l o y ee has three (3) d a ys within w h i ch to notify the Applicant C o m p a ny of his intention to appeal. T h at Section reads thus :- "1.3.3.1 S h o u ld the w o r k er be dissatisfied w i th the o u t c o me of disciplinary proceedings, he shall, within three (3) d a ys thereof notify the c o m p a ny in writing of his intention to appeal a nd the reasons t h e r e o f" In my calculation the three (3) d a ys within w h i ch to note an appeal expired on 31st M a r ch 1 9 94 yet the 2 nd R e s p o n d e nt simply did nothing about it until N o v e m b er 1 9 9 4. Surely the Applicant w as entitled to expect that the matter h ad b e en finalised a nd closed. W h i ch leads me to the aspect of condonation. Section 70 of the L a b o ur C o de O r d er 1 9 92 reads as follows:- " 7 0. Time-limit (1) A claim for unfair dismissal m u st be presented to the Labour Court within six m o n t hs of the termination of the contract of e m p l o y m e nt of the e m p l o y ee concerned. (2) T he L a b o ur Court m ay allow presentation of a claim outside the period prescribed in subsection (1) a b o ve if satisfied that the interests of justice so d e m a n d ." T he L a b o ur Court tried to go around this section in the following w o r ds appearing in its judgment: " At the start of the hearing M r. M p o po for the applicant applied for condonation of the applicant's late filing of the present application b e c a u se he had sought the intervention of the L a b o ur C o m m i s s i o n er a nd the case had subsequently been referred b a ck so that the local remedies could be exhausted. It is c o m m on cause that the respondent did not object to the application, thus leading the court to conclude that they did not see it as unfair to t h em if the condonation is granted. In any event we are satisfied that the applicant h ad not just sat back and not pursued the claim. He lodged the complaint with the lawful structure for the settlement of labour disputes n a m e l y; the L a b o ur Department. As a result of the appeal to the D e p a r t m e nt of Labour, the respondent reopened the enquiry for an appeal hearing in terms of the respondent's o wn rules of procedure, as late as N o v e m b er 1994. We are of the v i ew that ail these actions suspended the running of the prescription period. We thus c o me to the conclusion that w h en the case w as lodged in M a r ch 1 9 9 5, it h ad not yet prescribed. There is therefore no n e ed for condonation." It is clear to me therefore that the L a b o ur Court did not grant condonation b e c a u se it felt there w as no n e ed for condonation. T he question that arises therefore is whether the L a b o ur Court w as justified in l aw in adopting this approach. Firstly there can be no doubt about the fact that 2 nd Respondent's claim for unfair dismissal expired six m o n t hs after his dismissal in terms of Section 70 of the L a b o ur C o de O r d er 1 9 9 2. In my calculation the date of such expiry w as the 31 st September 1 9 9 4. W h at this m e a ns therefore is that on the 31st M a r ch 1 9 95 w h en the 2 nd Respondent launched his application before the L a b o ur Court the claim for unfair dismissal h ad long prescribed and it w as thus necessary for the L a b o ur Court to exercise its discretion in terms of Section 70(2) whether or not to allow presentation of the claim in the "interests of justice." It m u st be borne in m i nd that the discretion given to the Labour Court in terms of Section 70(2) is not an arbitrary one. S u ch discretion m u st be exercised judicially u p on a consideration of all the relevant facts a nd in fairness to both sides. T he L a b o ur Court m u st be "satisfied" on the facts of a particular case that "the interests of justice" d e m a nd condonation. This the L a b o ur Court failed to do. In dealing with condonation H o l m es JA stated the following remarks with w h i ch I respectfully agree in United Plant Hire(Pty) Ltd v Hills a nd Others 1 9 76 (1) S. A. 7 17 AD at 7 2 0: "It is well settled that, in considering applications for condonation, the Court has a discretion, to be exercised judicially u p on a consideration of all of the facts; and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations m ay include the degree of non-compliance with the Rules, the explanation therefore, the prospects of success on appeal, the importance of the case, the respondent's interest in the finality of his j u d g m e n t, the convenience of the Court, a nd the avoidance of unnecessary delay in the administration of justice. T he list is not exhaustive. T h e se factors are not individually decisive but are interrelated a nd m u st be w e i g h ed o ne against the other; thus a slight delay a nd a g o od explanation m ay help to c o m p e n s a te for prospects of success w h i ch are not strong." As I read Section 70(2) of the L a b o ur C o de Order 1 9 92 I am of the firm v i ew that the jurisdiction of the L a b o ur Court in a case w h e re a claim for unfair dismissal has prescribed only arises from that C o u rt actually granting condonation if satisfied that the interests of justice so d e m a n d. Conversely if no condonation is granted then the L a b o ur Court has no jurisdiction in the matter. Accordingly I consider that by failing to expressly grant condonation in the matter the L a b o ur Court denied itself jurisdiction in the matter a nd thus c o m m i t t ed a gross irregularity by entertaining the matter in the absence of such jurisdiction. Lastly M r. M o o po h as argued that there w as no u r g e n cy in the matter. I do not agree. T he 2 nd R e s p o n d e nt h ad obviously obtained j u d g m e nt w h i ch he could execute at a ny time. I consider therefore that the Applicant w as fully justified in applying for stay of execution as a matter of urgency. In the result I am satisfied that the Applicant h as m a de out a case for the relief sought in the N o t i ce of M o t i o n. A c c o r d i n g ly the R u le is confirmed a nd the application granted as p r a y ed in terms of prayer 6(a) of the Notice of M o t i on with costs against the 2 nd R e s p o n d e nt only. M . M. R a m o d i b e di J U D GE 5/8/97 For Applicant: For 2nd Respondent: M r. M a k e ka M r. M p o po