Lesotho Telecommunication Corporation v Nkuebe and Others (CIV/APN 83 of 98) [1998] LSCA 61 (22 June 1998)

-1- CIV/APN/83/98 IN THE HIGH COURT OF LESOTHO In the matter between: LESOTHO TELECOMMUNICATION CORPORATION APPLICANT and MAKHOBOTLELA NKUEBE SELIKANE SELIKANE THABO SEKONYELA MAHOLELA MANDORO MICHAEL RAMOSALLA KOALEPE MAKATSELA FUSI CHOPO RAMOKHETHI DAMANE LEMOHANG FANANA PHAKISO FOSA ANDREAS HANI PAUL HLABANE LESALA HLALELE TSEPISO HLEHLISI EZEKIEL HLONGWANE TEBOHO HOOHLO MATLALA KAEANE THAPFT O KAKA SELAKE KALI RAMAHETLANE KHAKANYO MAKALO KHAKETLA 'MATEBOHO KHALEMA KHASIPE KHASIPE MOHAPI KHAMA 6TH 14TH 15TH 16TH 17TH ISTH 19TH 20TH 21TH 22TH 24TH 1st RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT RESPONDENT 7TH RESPONDENT 8TH RESPONDENT 9TH RESPONDENT 10TH RESPONDENT 11™ RESPONDENT 12TH RESPONDENT 13TH RESPONDENT RESPONDENT RESPONDENT RESPONDENT RESPONDENT RESPONDENT RESPONDENT RESPONDENT RESPONDENT RESPONDENT 2 3RD RESPONDENT RESPONDENT NTSANE KHATALA KHECHANE KHECHANE MALEFETSANE KHEO LIMPHO KHETSI SELLO KHIBA MOKHESENG KHOABANE ROSA KHOETE 'MASENTLE KHOLUMO MOITHERIMOHAPI ELIZABETH KHUTLANG NTOILE KOLANE LERATO KOLISANG PHAKISI KOLOBE POELO KOLOBE PAUL KULEHILE TLANTLI LEBALLO 'MAMARALING LEBALLO THABANG LEBOKOLLANE SEKONYELA LEBOPO TELEKO LEBUSA SEEISO LECHE TANKISO LEFULEBE RICHARD LEHLAHA TSABALIRA LEJAHA LISEMELO LEKHANYA LEPHEANE LEKHETHO LEBABO LEKHOOA RAMOFOLO LEKOATSA GEORGE MOKOENA HURBERT LELIMO LEPHEANE LEPHEANE HERBERT LEPHEANE RAMOTSELISI LEPHOTO KARABELO LEROTHOLI ALBERT LESAOANA LEQALA LESEO KHOTHATSO LETELE MOLIBETSANE LETLAKA PHILLIP LETLATSA SEEISO LETSIE -2- 30TH 54TH 55TH 56TH 57TH 59TH 60TH 64TH 25TH RESPONDENT 26TH RESPONDENT 27TH RESPONDENT 28TH RESPONDENT 29TH RESPONDENT RESPONDENT 31ST RESPONDENT 32ND RESPONDENT 33RD RESPONDENT 34TH RESPONDENT 35TH RESPONDENT 36TH RESPONDENT 37TH RESPONDENT 38TH RESPONDENT 39TH RESPONDENT 40TH RESPONDENT 41ST RESPONDENT 42ND RESPONDENT 43RD RESPONDENT 44TH RESPONDENT 45TH RESPONDENT 46TH RESPONDENT 47TH RESPONDENT 48TH RESPONDENT 49TH RESPONDENT 50TH RESPONDENT 51ST RESPONDENT 52ND RESPONDENT 53RD RESPONDENT RESPONDENT RESPONDENT RESPONDENT RESPONDENT 58TH RESPONDENT RESPONDENT RESPONDENT 61ST RESPONDENT 62ND RESPONDENT 63RD RESPONDENT RESPONDENT TOKA LETSIE PAUL LIETA SEMA LIKOBELO 'MALINEO LIPHOLO RETSELISITSOE LITLALI THABANG MACHELI VICTOR MAEMA PETER MAFANE LEFA MAFATA TOBATSI MAFELESI 'MASEKOANE MAHAO TSILONYANE MAHASE THABO MAHLEKE MOHALE MAHLOANE 'MAKOENANE MAHLOMOLA THABO MASIA SETHO MAJORO SENATLA MAKAE TLALANE MAKEPE REFUOEHAPE MAKHAKHE THEBE MAKHALE LIKHANG MAKHOTHE HELEN MAKHOTLA SEBAKE MAKHUTLA TEBOHO MAKOKO TSOLO MAKOSHOLO 'MALEFU MALEFANE MARTIN MALEKE REENTSENG MALIEHE MAOELA MAOELA PUSETSO MAOELA MAPANYA MAPANYA BOFIHLA MAPHATSOE MOTLATSI MAPOOANE MBULELO MAQUTU 'MAMPHO MARAISANE KHETHANG MARE KHAUTA MARE TATUKU 'MASEATILE REFILOE MASENYETSE 65™ RESPONDENT 66TH RESPONDENT 67TH RESPONDENT 68TH RESPONDENT 69TH RESPONDENT 70TH RESPONDENT 71ST RESPONDENT 72ND RESPONDENT 73RD RESPONDENT 74TH RESPONDENT 75TH RESPONDENT 76TH RESPONDENT 77TH RESPONDENT 78TH RESPONDENT 79TH RESPONDENT 80TH RESPONDENT 81ST RESPONDENT 82ND RESPONDENT 83RD RESPONDENT 84TH RESPONDENT 85TH RESPONDENT 86TH RESPONDENT 87TH RESPONDENT 88TH RESPONDENT 89TH RESPONDENT 90TH RESPONDENT 91ST RESPONDENT 92ND RESPONDENT 93RD RESPONDENT 94TH RESPONDENT 95TH RESPONDENT 96TH RESPONDENT 97TH RESPONDENT 98TH RESPONDENT 99TH RESPONDENT 100TH RESPONDENT 101ST RESPONDENT 102ND RESPONDENT 103RD RESPONDENT 104TH RESPONDENT -4- SEPITLE MASENYETSE 'MALISENTE MASHAPHA MOTEBANG MASHEANE THATO MASITHELA THABO MATAMANE MOOROSI MATELA SEHLOHO MATHAHA 'MABULARA MATOBO SENTLE MATOBAKO THABISO MATSOAI SEUTLOALI MATSOSO THORISO MATSOSO LEBOHANG MBOLE THAPELO MOBE KHOBOSO MOELETSI LAWRENCE MOFOKA MASOABIMOFUBE TSEKO MOHALE NAPO MOHAPI JOBO MOHAPI MAMPHO MOHAPI 'MATHATO MOHASI LIBOKO MOHLALISI THABANG MOIKETSI LEBOHANG MOILOA LEBUSA MOKATI TUPA MOKHALINYANE KOPANO MOKHALOLI NTLOKO MOKHESI SEHLABAKA MOKHOTHU MAFOLE MOKOMA TANKISO 'MOLAOA KHOBATHA MOLAPO THAPELO MOLAPO MAMOLEBOHENG MOLELEKI SEABATA MOLEPA MOLEFI MOLETSANE TEBOHO MOLETSANE E. MOLISANE MOLOPI MOLISE 105TH RESPONDENT 106TH RESPONDENT 107TH RESPONDENT 108TH RESPONDENT 109TH RESPONDENT 110TH RESPONDENT 111TH RESPONDENT 112TH RESPONDENT 113TH RESPONDENT 114TH RESPONDENT 115TH RESPONDENT 116TH RESPONDENT 117TH RESPONDENT 118TH RESPONDENT 119TH RESPONDENT 120TH RESPONDENT 121ST RESPONDENT 122ND RESPONDENT 123RD RESPONDENT 124TH RESPONDENT 125TH RESPONDENT 126TH RESPONDENT 137TH RESPONDENT 138TH RESPONDENT 139TH RESPONDENT 140TH RESPONDENT 141ST RESPONDENT 144TH RESPONDENT 145TH RESPONDENT 146TH RESPONDENT 1477H RESPONDENT 148TH RESPONDENT 149TH RESPONDENT 159TH RESPONDENT 151ST RESPONDENT 152ND RESPONDENT 153RD RESPONDENT 154TH RESPONDENT 156TH RESPONDENT 157TH RESPONDENT -5- 158TH TSELISO MOLISE KHETHANG MOLOISANE ITUMELENG MOMPE TEBOHO MONAHENG SEKHEFU MONAPHATHI LOKISANG MONETHI SELLO MOOROSI ADEL MORIE NTELELE MOROANYANE THETSANE MOROMELLA PHOLO MOSEBO MAPHELETSO MOSENENE TLOKOTSIMOSHASHA MOFEREFERE MOSHEOA THABO MOSHOESHOE LETSITSI MOSIUOA TEBOHO MOSOLA 'MALIMAKATSO MOSOLA NTHUSO MOTHOANA TUMELO MOTHOKHO 'MANTHA MOTOPI MALEFETSANE MOTSETSERO MOTLATSI MOTSOANE THAPELO MPASI MOTLATSI MPETE NOOSI MPELA AZARIEL MPHOFE 'MATLALI MPITSO THABANG MPO LIKELELI NALELI EVODIA NKO SHADRACK NKOALE LEPEKOLA NOLOANE TSUKULU MONYANE 'MALISEBO NTEE MABATAUNG NTELANE TEMOSO NTOAMPA 'MUSO NTOBO THABANG NTSANE LIAKO NTSEKHE RESPONDENT 159TH RESPONDENT 160TH RESPONDENT 161ST RESPONDENT 162ND RESPONDENT 163RD RESPONDENT 164TH RESPONDENT 165TH RESPONDENT 166TH RESPONDENT 167TH RESPONDENT 168TH RESPONDENT 158TH RESPONDENT 169TH RESPONDENT 170TH RESPONDENT 171ST RESPONDENT 172ND RESPONDENT 173RD RESPONDENT 174TH RESPONDENT 175TH RESPONDENT 177TH RESPONDENT 178TH RESPONDENT 179TH RESPONDENT 180TH RESPONDENT 181ST RESPONDENT 182ND RESPONDENT 183RD RESPONDENT 184TH RESPONDENT 185TH RESPONDENT 186TH RESPONDENT 187TH RESPONDENT 188TH RESPONDENT 189TH RESPONDENT 190TH RESPONDENT 191ST RESPONDENT 192ND RESPONDENT 193RD RESPONDENT 194TH RESPONDENT 195TH RESPONDENT 196TH RESPONDENT 197TH RESPONDENT -6- TEBOHO NTSEVYI THABANG PANYANE THABO PEKECHE PALESA PETLANE NICODEMUS PHALIME MOTLATSIPHAROE LETHUSANG PHEKO SEQAO PHENYA MOTSAMAIPHERA KOMETSIPHITSANE RETSELISITSOE PHORI LERATO PITSO BAPHOTHI POFANE KOSIPOTSANE JOSEPH QABA KHOABANE QHOBELA KOTSI QHOBOSHEANE MAKHAUTA QOACHELA TEBOHO QOPHE BROWN RAJOELE MATUMISANG RAMABELE LEKHOOANA RAMALIEHE BASIA RAMAOKANE LETEKA RAMASHAMOLE RAPHAEL RAMASHAMOLE JULIUS RAMATABOE MPAI RAMMUSETSI HLOLO RAMORAKANE MAHLOMOLA RAMOTHAMO MPHOBOLE RAMPHOBOLE 'MATEBOHO RANOOE LEBOHANG RAPILETSA ALFRED RATJOPA TENNYSON SAOANA DAVID SAUDI BAILE SEAKHOA GLADYS SEBATANA THABISO SEHLABAKA LEBOHANG SEKHOAHLA 'MAMOOROSANE SEKOALA 198THRESPONDENT 199TH RESPONDENT 200TH RESPONDENT 201ST RESPONDENT 202ND RESPONDENT 203RD RESPONDENT 204TH RESPONDENT 205TB RESPONDENT 206TH RESPONDENT 207TH RESPONDENT 208TH RESPONDENT 209TH RESPONDENT 210TH RESPONDENT 211TH RESPONDENT 212TH RESPONDENT 213TH RESPONDENT 214TH RESPONDENT 215TH RESPONDENT 216TH RESPONDENT 217TH RESPONDENT 218TH RESPONDENT 219TH RESPONDENT 220™RESPONDENT 221ST RESPONDENT 222ND RESPONDENT 223RD RESPONDENT 224TH RESPONDENT 225TH RESPONDENT 226TH RESPONDENT 227TH RESPONDENT 228TH RESPONDENT 229TH RESPONDENT 230TH RESPONDENT 231ST RESPONDENT 232ND RESPONDENT 233RD RESPONDENT 234TH RESPONDENT 235TH RESPONDENT 236TH RESPONDENT 237TH RESPONDENT -7- AMELIA MOLAPO SECHOCHA SENYANE T. SENYANE LEBOHANG SEPERE MAKHAOLA SPERE MALEFETSANE SEQHOALA DANIEL SESING REFUOE SETEKA CASWEL SETEMERE 'MAMPHO SETLOBOKO MOLIBELI SHABE KHETHANG SHALE KHOMOATSANA SHALE KHUPISO SHEA HILDA SHOLU MOJALEFA SUOANE THABANG TAELI ANDRIAS TAKALIMANE MOHAU TAKANA S. THOKOANA THABANG THABA PRESCILLA THAKEDI BOKAE THAMAE MATLERE THAMAE TJOKA THOKO RUSSELS THULO MALATSI TIHELI 'MAMOHALE TJABANE TEMANE TOPO THATO TSALONG HLOMOKA TSEPANE PANYANE TSEPHE KUBUTU TSIANE MOTLOHELOA TSTR A LEPHOTO TSIU TEBOHO TSOENE NKHAHLE TSOSANE KOPANG VOMBUKANI BLYTH BAHOLO PUSELETSO BAHOLO 238TH RESPONDENT 239TH RESPONDENT 240TH RESPONDENT 241ST RESPONDENT 242ND RESPONDENT 243RD RESPONDENT 244TH RESPONDENT 245TH RESPONDENT 246TH RESPONDENT 247TH RESPONDENT 248TH RESPONDENT 249TH RESPONDENT 250TH RESPONDENT 251ST RESPONDENT 252ND RESPONDENT 253RD RESPONDENT 254TH RESPONDENT 255TH RESPONDENT 256TH RESPONDENT 257TH RESPONDENT 258TH RESPONDENT 259TH RESPONDENT 260TH RESPONDENT 261ST RESPONDENT 262ND RESPONDENT 263RD RESPONDENT 264TH RESPONDENT 265TH RESPONDENT 266TH RESPONDENT 267TH RESPONDENT 268TH RESPONDENT 269TH RESPONDENT 270TH RESPONDENT 271ST RESPONDENT 272ND RESPONDENT 273RD RESPONDENT 274TH RESPONDENT 275TH RESPONDENT 276TH RESPONDENT 277TH RESPONDENT -8- ISAAC BELEME JOHN BERENG LEREKO BERENG MOLISE BOHLOKO TANKISO MAEKANE MALOLI MOTHIBELI RAMOFAO MONAKALALI RAMAISA RAMAISA MOTSOELA SEETANE LEFA SEKOATI MOCHEKO ISAAKA MOTLALEPULA MASIA SERUPE MOILOA MAFA HLALELE LEFA MATENA NTJA POSHOLI MAJARA MASOABI MAHASE RABOSHABANE LEMOHANG MOLOFI MASUPHA SEPERE MOKOENIHI CHOBOKOANE THABANG MPUTSOE MOTLATSI NKUNYANE THABO TSOENE NTHAKO PHATE TUMELO MOQHALI MOLEFIMOLEFI MOLEFIMAILE TANKISO ISAAKA KANATE KOLISANG RANTSOTI MOLOLI LEBONA LEBONA MOLEFI MOTSEKI SEFALI MOKHACHANE HLOLO RAMORAKANE SEPHEKANE MOHAPI ROBERT KOTELO JUDGMENT 278TH RESPONDENT 279TH RESPONDENT 280TH RESPONDENT 281ST RESPONDENT 282ND RESPONDENT 283RD RESPONDENT 284TH RESPONDENT 285TH RESPONDENT 286TH RESPONDENT 287TH RESPONDENT 288TH RESPONDENT 289TH RESPONDENT 290TH RESPONDENT 291ST RESPONDENT 292ND RESPONDENT 293RD RESPONDENT 294TH RESPONDENT 295TH RESPONDENT 296TH RESPONDENT 297TH RESPONDENT 298TH RESPONDENT 299TH RESPONDENT 300TH RESPONDENT 301ST RESPONDENT 302ND RESPONDENT 303RD RESPONDENT 304TH RESPONDENT 305TH RESPONDENT 306TH RESPONDENT 307TH RESPONDENT 308TH RESPONDENT 309TH RESPONDENT 310TH RESPONDENT 311TH RESPONDENT 312TH RESPONDENT 313TH RESPONDENT 314TH RESPONDENT -9- Delivered by the Honourable M r. Justice T. Monapathi on the 22nd day of June 1998 This was an application for an order of stay, suspending the execution of my Order of the 11th February 1998 in CIV/APN/502/97 in which the Applicant and one T H A M A H A NE R A S E K J LA the Applicant's Acting Managing Director were Respondents. The present Respondents but one (No.162) were Applicants. The application has been made because the noting of an appeal does not suspend execution of judgment hence the provision of the Court of Appeal Rules particularly Rule 6.5. A party applying for stay acts within the promise that his right of appeal would be nullified if the judgment were to be put into effect. In addition a party w ho applies for stay feels that the questions raised in the appeal are of great importance to the parties and the effect of an adverse judgment on the Applicant/Appellant would be irreparable. The Applicant has raised the following grounds in support of the Order it sought by which it intended to show that there were prospects of succession on appeal First that of locus standi. That is to say only five(5) of the Applicants had signed either the main, the supporting on or confirmatory affidavits associating themselves with the facts and relief prayed for. That meant as it was submitted that the identity and descriptions of the rest of the Applicants have not been put before Court and they accordingly had no standing. In no way as It was argued could the rest of the Applicants have authorized the First Applicant to act on their behalf. -10- Secondly that the Court had erred in entertaining the matter as an urgent one under the circumstances. It had been submitted that no case had been made out for urgency and consequently on that ground alone the Court would dismiss the application with costs. Thirdly under a heading D I S P U TE OF F A CT the Applicants sought to show that the main application had been riddled with disputes of fact such that the Court would not resolve on the papers. I need to quote the whole paragraph as an indication of what was similar to what Ramodibedi J once said that he was "Struck by the paucity of allegation in the Applicant's founding affidavit to substantiate an application for stay of execution". See R A M P H A L LA vs B A R C L A YS B A NK P LC A ND A N O. 10th September 1997 at p.4. This paragraph of Mr. Rasekila, Applicant's deponent went like this: "(a) It is further respectfully submitted that the Court erred in not holding that the Respondent is their capacity as Applicants under CIV/APN/502/97 should have realized that there was on the papers a serious and bona fide dispute of fact of manifesting large proportion. (b) In view of the history of the matter, in particular the two previous Applications, namely the application under CIV/APN/283/97 and CIV/APN/304/97 that a serious dispute of fact was likely to arise and develop during the application. -11- (c) it is respectfully submitted that on this ground also, the Court should have dismissed the application with costs. It should by n ow be clear that no such dispute of fact were in fact pointed out". In pointing out the alleged prospects of success an items under merits showed a lot of things. It canvassed the important role of the Applicant corporation in the service and control of telecommunications in the country. It outlined the background to what was dealt with in certain consolidated application CIV/APN/283/97 and CIV/APN/304/97 (those of the judgment of Guni J of the 30th September 1997) and a reference to the fact that certain things had already been raised in Applicants (First Respondent) as having: "clearly set out the reasonable lawful and fair steps taken by the Applicant at all times in its administration of its obligations incumbent upon its terms of Personnel Regulations of the Applicant and indeed the Labour Code of 1992 as amended." This was the only substance. A third point under merits was a cursory reference to the Court having erred in finding that the Corporation had not "acted strictly in terms of Respondent Regulations of the Applicant pursuant to section 6(I) of the Telecommunications Act of 1979, is that the Corporation has a major task of "administering and controlling personnel in connection with establishment of operation, maintenance and service". This was then sought to be related to case CIV/APN/287/97 and CIV/APN/304/97 in a w ay or for reasons that were not quite clear. My suspicion was that it was to be submitted and indeed it was in the end submitted that a lot of misconduct and mischiefs by the Applicants had already been revealed or referred to in -12- those cases. As to what relevance this was intended to show it never became clear. Finally under merits there was a further submission that the Court had erred in finding that there were procedural irregularities at disciplinary hearing conducted and referred to extensively in the founding affidavit of the Respondents. The Court was merely referred to pages 11 and 15 of the record under CIV/APN/502/97. Except to the indication that the details were to be found in the affidavit there was no treatment of the detail nor a skeletal reference to them. Indeed the affidavit was not sought to be annexed. There was a genuinely comprehensive treatment by the Applicant of what the balance of convenience entailed. This revolved around amongst others h ow difficult it would be to retrieve funds spent on salaries that would be paid to dismissed workers if the appeal w as upheld. I also noted that the Applicants' Counsel dwelled on matters such as that there had been industrial sabotage, unlawful strike and acts of intimidation and destruction of property allegedly done by the Respondents. It was to be observed there was no information on w ho were involved in the alleged acts of industrial sabotage, unlawful acts if intimidation and destruction of property belonging to the Applicant. A nd in seeking to associate those acts with the judgment of Guni J in two applications that were before the Court of Appeal one could only say this served to place the matter in its historical context. W h en considering that the Respondents were not parties to the proceedings before Guni J it becomes even more -13- paradoxical w hy association is being wrought between the proceedings before Guni J and the Respondents. To show h ow the Applicant delved persistently in short circuiting things that ought to have been properly put before the Court I quote from paragraph 4.1 of the affidavit of Applicant's deponent (Mr. Rasekila). He said: " I am advised that to attach copies of these two Applications and the judgment of Her Lordship Mrs Justice K. J. Guni on the 30th September 1997 would unnecessarily burden the record and I am advised that the best way forward is to place bound copies of these two applications together with the judgment before Your Lordship, at the hearing of this matter a bound copies of the papers under CIV/APN/502/97 will also be placed before Your Lordship in the manner in order that he burden the record in this particular application". This was never done but the question would still be as to what the value of this documentation would have been. Again the extent to which the Applicants were reluctant to place vital information before Court was amply shown. This included even items which they intended to rely on or should have been expected to. Incidentally one of the vital things that were omitted was the grounds of appeal which were not annexed to the application. The grounds of appeal would enable the Court to gauge prospects of success on appeal. W hy the -14- absence of grounds is regarded as a serious fault of omission can be seen in the remarks of Ramodibedi J in that R A M P H A L LA case (supra) at page 6 with which I respectfully associate myself. I agreed that the Applicant could perhaps have been under disability, in being without the benefit of additional reasons in the absence of a written judgment which had in fact not been made. But such additional reasons would have only been with regard to two issues or reasons that had been spelt out in my ex tempore judgment on the 11th February 1998 which were noted by Mr. Malebanye (for the Applicant) an experienced Counsel. The reasons were as follows: Firstly that the judgment of Guni J in the two consolidated applications could not have been evidence, by itself and alone, on which dismissal of the Respondents at the disciplinary hearings ought to have been based. The second issue had been that if these facts of an alleged strike had necessitated the Applicants to approach the Court of Guni J, to order the workers to return to the work, (which order was served) the issue of an illegal strike could not be raised as a basis of misconduct for disciplinary regulations. This was particularly so about proceedings such as those to which the dismissed employees of the Applicant were subjected. The alleged non-compliance with the disciplinary regulations of the Applicant was the only issue which the Applicants attempted to address in speaking about the prospects of success on appeal. I invited Counsel for the Applicants to address me on the two points, despite that they were not raised. I would safely say that the attempt was half-hearted for the obvious reason that they seemed not to have been sufficiently appreciated. -15- It was correct that the Applicant made a reference to the Respondents (dismissed employees) as "the 313". In this it had not mentioned, described nor disclosed their names. It was submitted that this made it impossible to ascertain as to w ho they were in the application. I thought this point-in- limine was not quite valid in the context where a clear reference was to the employees and that number of people w ho were Applicants in proceedings that were before this Court. The unfairness and the unjust result of accepting this point were too compelling to me to countenance. In the same vein I did not in the main judgment accept the attack that was geared toward that there had been no locus standi in that the five deponents had promoted an actio popularis. It was for those reasons that I rejected the points. Indeed herein the description of Respondent was even worse or almost non-existent. But I thought it ought to be condoned in the special circumstances of the case. Of course there would be no prejudice. I even took judicial notice of w ho those Respondents were despite the defects in pleading. This matter was a sequel to the main case which I had dealt with. The real bite in the present application was to be found in a fatal problem which the Applicant was not able to contend with. First the Applicant had been negligent not to have disclosed that or at that time the proceedings in the main case were being subject to mediation in terms of an order under J of that Order which was as follows: J The above mentioned orders are subjected to mediation but the party that refuses mediation reserves the right to inform the mediator that he -16- should not mediate on the matter." I felt that inasmuch as the matter was still to be brought before the mediator there was objectively no urgency in the matter of intention to apply for stay. This would have been different if the Applicant had advised that it was not prepared to have a mediation over the matter. This it had not said before me. If the Applicant had shown its unpreparedness to have mediator even in that case, even without a writ or warrant of execution I would still not have taken the following substance or contempts of Respondents' Counsel's letter as having constituted a form of a threat to bring the main orders to execution. The letter was dated the 13th February 1998 (that is two days after the Order) and was from K EM Chambers and had been annexed as " M N 1" and was addressed to Applicant's Attorneys. It read: " clients do hereby tender their service and are ready and willing to start work immediately. They will be reporting back to work as per the judgment of his Lordship M r. Justice Monapathi " As at the date of the filing of the application for stay the workers had not gone back to work and they had not been called to work. What was important to me was that the letter M N1 could only be construed as an indication by the workers to their employer that they were available within the context of the understanding that workers would be not normally impose themselves on the workplace without the employer's consent. I suggested to Mr. Lubbe for the Applicant that in the circumstances of the impending mediation the application for stay could easily be construed as indication of -17- an attitude that the Applicant did not like the Order "J" I had made. His wise lawyer's sense told him not to agree. After more reflection Applicant's Counsel agreed that there was hurdles in the way of the Order sought. In the main there was the question of lack of urgency which was fatal. I assured Counsel that the application for stay could be filed afresh or in the ordinary way taking account the remarks that I have made. Counsel was however of the view that he could not withdraw the application but sought for postponement. I thought a postponement would not be of any good use. I therefore dismissed the application with costs to Respondents (employees) T. MONAPATHI JUDGE For the Applicant : Mr. Lubbe For the Respondents : Mr. Mosito