Lesotho Telecommunications Corporation v Khutlang and Others (CIV/APN 283 of 97) [1997] LSHC 80 (30 September 1997)

CIV/APN/283/97 CIV/APN/304/97 IN T HE H I GH C O U RT OF L E S O T HO In the m a t t er b e t w e e n: LESOTHO TELECOMMUNICATIONS CORPORATION A P P L I C A NT and EM K H U T L A N G. R. M A S E N Y E T SE ROSE K H O E TE L. R A M O S A L LA M. M A N D O RO T H A BO S E K O N Y E LA K. L E R O T H O LI S. SELIKANE A ND O T H E RS ON STRIKE A ND 1ST R E S P O N D E NT 2ND R E S P O N D E NT 3RD R E S P O N D E NT 4TH R E S P O N D E NT 5TH R E S P O N D E NT 6TH R E S P O N D E NT 7TH R E S P O N D E NT 8TH R E S P O N D E NT 9TH R E S P O N D E NT ROSE K H O E TE M A K H O B O T L E LA N K O E BE L E T H U S A NG R A M O S A L LA M A H O L E LA M A N D O RO T H A BO S E K O N Y E LA K. L E R O T H O LI S. SELIKANE COLLECTIVE E M P L O Y E ES OF FIRST R E S P O N D E NT 1ST APPLICANT 2ND APPLICANT 3RD APPLICANT 4TH APPLICANT 5TH APPLICANT 6TH APPLICANT 7TH APPLICANT 8TH APPLICANT and LESOTHO TELECOMMUNICATIONS CORPORATION COMMISSIONER OF POLICE A T T O R N EY G E N E R AL 1ST R E S P O N D E NT 2ND R E S P O N D E NT 3RD 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 s. Justice K. J. G u ni on the 3 0 th d ay of S e p t e m b e r, 1 9 97 T h e re are b e f o re me t wo applications ( 1) C I V / A P N / 2 8 3 / 9 7; ( 2) C I V / A P N / 3 0 4 / 97 for w h i ch I h a ve d e c i d ed to m a ke o ne j u d g m e n t. T he parties are the s a m e, the subject m a t t er is the s a m e. T he parties w e re a d v i s ed of this joinder. T he c o u n s e ls for the parties a d d r e s s ed me on b o th as o n e. T he first A p p l i c a t i on w as m a de by L e s o t ho T e l e c o m m u n i c a t i o ns C o r p o r a t i o ns ( L T C) against n i ne r e s p o n d e n ts w ho are its e m p l o y e es alleged to be on strike. T h e se r e s p o n d e n ts anticipated the return date a nd s e r v ed a p p r o p r i a te notices on n ot a w a re of the anticipated return date despite the p r o of of service. T h e re is no replying affidavit filed by or b e h a lf of L TC b e c a u se as I h a ve indicated the L TC attorneys h ad no k n o w l e d ge of this anticipated return date. T h e ir attorney unsuccessfully applied for p o s t p o n e m e nt on the g r o u n ds that he is n ot p r e p a r ed to deal w i th this matter. He pointed o ut that he h ad c o me to c o u rt to attend to other m a t t e rs w h i ch he did n ot e v en m e n t i o n. W h en the party h ad b e en g i ve p r o p er notice of anticipation in t e r ms of the R u l es of this C o u rt there w as no satisfactory r e a s on for further delay. As a result the application w as h e a rd w i t h o ut a r e p l y i ng Affidavit. In h ot pursuit to the filing of this application a nd o b t a i n i ng of an interim court order by the A p p l i c a nt L T C; its e m p l o y e es w ho are r e s p o n d e n ts filed their C I V / A P N / 3 0 4 / 9 7. To a v o id c o n f u s i on I will refer to the parties as e m p l o y er a nd e m p l o y e es b e c a u se in o ne application the first o ne L TC is the applicant a nd its e m p l o y e es are r e s p o n d e n t s. In the other application the L TC employees w ho have singled themselves by their names from 1st Applicant to 7th and collectively as 8th Applicant, are applicants and their employer respondent. To avoid confusion as to which applicant or respondent the court is referring to I propose to refer to parties as employer and employees. In CIV/APN/283/97 employer sought and obtained an interim order. L TC employees sought an interim order in CIV/APN/304/97 in the following terms. "2. A Rule Nisi be issued calling upon Respondents to show cause why (a) First Respondent shall not be ordered to open all gates leading into the L TC headquarters as well as L TC regional and district offices to enable L TC staff to m o ve into their respective offices in order to perform functions for which they have been employed by L TC (b) First Respondent shall not be restrained from forcing Applicants to sign a certain paper which is said to be an undertaking as a precondition to entering L TC premises. (c) Second Respondent shall not be ordered forthwith to remove his police officers from the gates and premises of L TC headquarters as well L TC regional and district offices. (d) First Respondent shall not be ordered to release to all employees of L TC their salaries on Friday the 22nd August, 1997 which is L TC pay day. (e) First Respondent shall not through his agent the Acting Managing Director be restrained from conducting himself in a manner which contravenes the very prayers contained in his Notice of Motion dated 14th August, 1997. (f) First Respondent shall not be ordered to remove from L TC premises officers of Gray Security Lesotho which officers are threatening the lives of L TC employees. (g) First R e s p o n d e nt shall n ot p ay costs of suit. (h) A p p l i c a n ts be g i v en further a n d / or alternative relief." S u b j e ct m a t t er b e t w e en these t wo parties:- L TC a nd its e m p l o y e es is o ne a l t h o u gh t wo separate A p p l i c a t i o ns w e re m a d e. C a s u al l o ok at the p r a y e rs s o u g ht in the s e c o nd A p p l i c a t i on by the e m p l o y e es m e r e ly points o ut at the n e g a t i ve position t h ey h a ve a d o p t ed t o w a r ds the prayers s o u g ht by their e m p l o y er in the first A p p l i c a t i o n. T he d i s m i s s al of their e m p l o y e r 's application w h i ch t h ey h a ve o p p o s ed w o u ld b r i ng the result w h i ch t h ey are l o o k i ng for in their n ew application. T he allegation m a de on b e h a lf of the e m p l o y er L TC is that these n a m ed individual e m p l o y e es a nd others are on strike. T he e m p l o y e r 's p r o p e r ty h as b e en v a n d a l i s e d. A c ts of s a b o t a ge have been carried out the equipment and machinery of the employer to disrupt the services the e m p l o y er is s u p p o s ed to r e n d er to this n a t i o n. I m u st first of all m e n t i on that L TC as its n a me s h o ws is r e s p o n s i b le for the p r o v i s i on of t e l e c o m m u n i c a t i on services in this country. T he e m p l o y er in o r d er to m a i n t a in the provision of t e l e c o m m u n i c a t i o ns service in the c o u n t ry a nd to protect p r o p e r ty f r om further acts of s a b o t a ge a nd v a n d a l i sm s o u g ht a nd o b t a i n ed an interim court order which on the main is to the following effect:- 2 ( a) T h at these e m p l o y e es w ho are a party to this suit be restrained a nd interdicted f r om c o n g r e g a t i ng in a ny of its p r e m i s es in particular its H e a d q u a r t e r s. L TC is a b ig o r g a n i s a t i on w h i ch operates t h r o u g h o ut L e s o t ho a nd h as p r e m i s es u s ed for the variety of its functions all o v er L e s o t h o. T h e se e m p l o y e es are free to c o n g r e g a te a nd "toi-toi" if t h ey so w i sh b ut at least 1 00 m e t r es a w ay f r om L TC H e a d q u a r t e r s. 2(b) That they be restrained and interdicted from entering the said premises without lawful authority or permission . 2(c) That they should be interdicted from destroying, vandalising its property and from shutting d o wn cellular communication exchange, internal, national and international links. 2(e) That they should desist from their unlawful strike and return to work. 2(f) That they be restrained and interdicted from intimidating the other employees w ho are still at work and carrying on with the performance of their duties. Although the L TC employees have opposed the confirmation of the interim court order, there was a further application filed by them, which seeks to reverse the effect of the prayers sought by their employer. They have prayed that the employer be ordered to open and perhaps to keep open all the gates at all times for workers to m o ve to their respective offices. The time is not specified but can be safely inferred as all the time because there are workers w ho perform night duties at L T C. The employer has obtained an interim court order against those employees w ho are on strike to return to work. There are some employees w ho are not in the strike for w h om protection from intimidation by these employees w ho are involved in the strike action is being sought. They must be going in through the gates to their work points and/ or offices. There is no need for this prayer for that specific purpose of going into their offices because their return to work has been prayed for by the employer and they have been asked to go to work. Against the prayer that no o ne should go in without the lawful authority these e m p l o y e es h a ve prayed that their e m p l o y er be restrained f r om forcing these e m p l o y e es from signing a certain paper w h i ch is said to be undertaking as a precondition to entering. T he e m p l o y e es do not specify the contents of that certain paper. T h ey have withheld its production before this court. In an attempt to limit or at least control the frequency of acts of sabotage of property a nd disruption of services of L TC and perhaps to try to identify the saboteurs or vandals the m a n a g e m e nt of L TC required the L TC e m p l o y e es to identify themselves with their L TC identification cards w h i ch they possess for that purpose. T he e m p l o y e es do not h a ve any objections to the requirement of identifying themselves on entering the premises of L TC as indicated at para 9.3 by the d e p o n e nt of the F o u n d i ng Affidavit on behalf of employees. T he p r o b l em s e e ms to me to be whether or not s o me e m p l o y e es of LTC including the parties to the t wo applications before court, are on strike. First of all the term strike m u st be defined. There are various definitions offered at the section dealing with " I N T E R P R E T A T I ON A ND F U N D A M E N T AL P R I N C I P L ES P A RT II of the L a b o ur Code. Strike = (a) m e a ns the act of a ny n u m b er of e m p l o y ee w ho are employed by the s a me employer, d o ne in contemplation or furtherance of a trade dispute. (b) m e a ns refusing or failing to accept e n g a g e m e nt for any w o rk in w h i ch they w e re or are usually employed. (See Section 3 of the L a b o ur C o d e) S o me w o r k e rs of L TC including the applicants in C I V / A P N / 3 0 4 / 97 a n d / or r e s p o n d e n ts in C I V / A P N / 2 8 3 / 97 c o n g r e g a t ed at a b o ut 8.30 hrs on 11th A u g u st 1 9 97 at the L TC H e a d q u a r t e r s. T h e re m u st be L TC e m p l o y e es w ho are stationed at L TC H e a d q u a r t e rs a nd w ho p e r f o rm their e v e r y d ay duties on t h o se p r e m i s e s. B ut at that t i me on that d ay t h ey h ad n ot c o n g r e g a t ed there for the p u r p o se of carrying on their daily duties. F r om all the a v e r m e n ts of the affidavits d e p o s ed to on b e h a lf of the e m p l o y e e s, it is persistently averred that the gathering w as for the p u r p o se of m e e t i ng w i th the B o a rd of Directors of L T C. Is the m e e t i ng w i th the B o a rd of Directors the function of the e m p l o y e e s? T he e m p l o y e es h a ve a representation in the M e e t i ng of the B o a rd of Directors particularly w h en the B o a rd is dealing w i th matters that affect the e m p l o y e e s. T h is is n ot disputed. T h e re is n o w h e re in all the affidavits w h e re the B o a rd of Directors h e ld a m e e t i ng w i th all or a large n u m b er of e m p l o y e es as w as d e m a n d ed in the p r e s e nt instant. T he peculiarities of this so called a m e e t i ng with the Board of Directors must be l o o k ed at carefully. It started on 1 1 / 8 / 97 a nd p e r h a ps still c o n t i n u es to date. At the t i me of filing of s e c o nd application by e m p l o y e es t h ey w e re still at that m e e t i ng w i t h o ut the B o a rd of Directors. It h as b e en a r g u ed v e ry strenuously by M r s. K o t e lo for these e m p l o y e es that it w as w i t h in their rights to d e m a nd or request to be a d d r e s s ed by the B o a rd of Directors. I h a ve no quarrel w i th that a r g u m e n t. T he r e q u e st or d e m a nd h as to be m et by s o m e o n e. In this c a se p e r h a ps the B o a rd of Directors itself w as to a g r ee to m e et the e m p l o y e e s. T he p e r s on placing the d e m a nd or r e q u e st m u st h a ve expectations that the d e m a nd m ay be m et or m ay n ot be m e t. D id this g r o up of e m p l o y e es w ho w a n t ed to be a d d r e s s ed by the B o a rd of Directors h a ve s u ch expectation? On 8th A u g u st 1 9 97 w h i ch w as F r i d ay the A c t i ng M a n a g i ng Director of L TC w as a d v i s ed that the e m p l o y e es w i sh to m e et w i th the b o a r d. T h e re w as a list of i t e ms or issues the B o a rd of Directors w as e x p e c t ed to a d d r e ss the e m p l o y e es o n, attached to that advice. T he c r ux of the m a t t er c o m es w h en considering the length of the t i me g i v en for the M e m b e rs of the B o a rd of Directors to be a s s e m b l ed a nd i n f o r m ed of the topics or i s s u ed t h ey h a ve to a d d r e ss the e m p l o y e es o n. T he m e e t i ng w as to be on M o n d ay m o r n i ng at 8.00 hrs. T he e m p l o y e es are said to h a ve gathered at L TC h e a d q u a r t e rs for that p u r p o se at a b o ut 8.30 hrs. On their arrival there they w e re i n f o r m ed that M e m b e rs of B o a rd of Directors are n ot available to p e r f o rm the duties as requested. T he e m p l o y e es w e re n ot taking a " n o" for an a n s w er to the r e q u e st for a m e e t i n g. T h ey s e em to be of the o p i n i on that their d e m a nd is the B o a rd of Director's c o m m a n d. It is alleged that the m e m b er of the B o a rd of Directors h a ve free t e l e p h o n e s. T he i m p r e s s i on b e i ng m a de is that t h e re w as no r e a s on for the m e m b e rs of the B o a rd of Directors to fail to appear. T h ey s h o u ld be t e l e p h o n ed a nd o n ce the call is m a de to t h e m, those m e m b er of B o a rd of Directors s h o u ld j u mp up a nd d r op e v e r y t h i ng i m m e d i a t e ly a nd c o me to attend to the e m p l o y e e s. T h o se m e m b e rs of the B o a rd of Directors w ho c o u ld be f o u nd did just that. T h ey j u m p ed up instantly a nd r an a r o u nd a nd m et w i th the e m p l o y e e s. T he A c t i ng M a n a g i ng Director w as at their a t t e n d a n ce a t t e m p t i ng to i m p r e ss on the e m p l o y e es that he n e e ds m o re t i me to c o n v e ne the m e e t i ng of the B o a rd of Directors. No effort w as spared in the search for exactly w h at it w as that c o m p e l l ed all the e m p l o y e es to leave their w o rk positions, offices a n d / or d e s ks a nd c o me to gather at the headquarters a nd d e m a nd to be a d d r e s s ed by the B o a rd of Directors? In that letter A N N E X U RE " A" to the f o u n d i ng Affidavit in C I V / A P N / 2 83 of 1 9 9 7, the writer thereof, o ne T. Lerotholi h ad invited the A c t i ng M a n a g i ng Director to c o me a nd m e et the e m p l o y e es at the s a me t i me to obtain relevant details for o n w a rd transmission to the B o a rd of Directors. He c o n c l u d ed that "the staff h o w e v er will n ot m o ve a millimetre until t h ey h a ve m et the B o a r d ." T he m e m b e rs of the B o a rd of Directors w e re in this w ay left w i th no c h o i c e. T h is w as n ot a m e re w i sh to m e et the B o a rd of Directors. It is a c o m m a n d. T he A c t i ng M a n a g i ng Director r e q u e s t ed m o re t i me f r om the e m p l o y e es for the p u r p o se of c o n v e n i ng the m e e t i ng they w a n t. A c t i ng M a n a g i ng Director a d v i s ed the e m p l o y e es to go b a ck to w o rk w h i le he m a de a r r a n g e m e n ts to call the m e e t i ng of the B o a rd of Directors. T he w o r k e rs refused to go b a ck to w o r k. As their refusal to return to w o rk m a de the situation desperate the A c t i ng M a n a g i ng Director w e nt to see Principal Secretary for Posts a nd T e l e c o m m u n i c a t i o ns w ho is also the D e p u ty C h a i r m an of the B o a rd of Directors, a b o ut the i m p a s s e. T o g e t h er t h ey went to see the A c t i ng Minister,the incumbent Minister responsible for Posts and T e l e c o m m u n i c a t i o ns w as out of the country. It a p p e a rs the M i n i s t er h ad a m e e t i ng w i th the representatives of the e m p l o y e es popularly referred to as staff delegation. In that m e e t i ng h e ld at 1 4 . 00 hrs on 11th A u g u st the t wo m e m b e rs of the B o a rd of D i r e c t o r s , A c t i ng M a n a g i ng Director a nd Principal Secretary for Posts a nd T e l e c o m m u n i c a t i o ns w e re present. Further a t t e m p ts w e re m a de to extract f r om the e m p l o y e es w h at their g r i e v a n c es w e r e. T he A c t i ng M a n a g i ng Director h ad enquired f r om the e m p l o y e es at 8.30 hrs w h at their g r i e v a n c es w e re b ut failed to get a n y, No g r i e v a n c es w e re m e n t i o n ed by e m p l o y e es in that m e e t i ng w i th the Minister. It is alleged that the Minister a d v i s ed the w o r k e rs to go to w o r k. T h is w as to be c o n v e y ed to t h em by their representatives. T he acting M i n i s t er is alleged to h a ve s u g g e s t ed that since their m a t t er w as receiving active consideration the workers should go to work. T he e m p l o y e es d e ny that the issue of return to w o rk ever arose. T h ey claim that the Minister merely advised t h em to postpone their meeting with the B o a rd of Directors until their Minister, the i n c u m b e nt Minister of Telecommunications w as b a ck in the country. W h at is the effect of p o s t p o n e m e nt of the meeting? W o u ld that not m e an that they should h a ve dispersed and g o ne b a ck to w o r k? T he e m p l o y e es refused to postpone their meeting w h i ch they allege w as held in the absence of the Minister. This brings me back to that issue of whether or not there w as a strike. T he employees w e re not at their desks or w o rk positions. T h ey are permanently at the meeting waiting to be addressed by the B o a rd of Directors. Is that w h at these employees have been doing since they w e re first engaged by their e m p l o y e r? All they do at L TC is to attend the meeting or wait to be addressed by the B o a rd of Directors? These workers n ow claim that t h ey do not d e m a nd to be m et by all the M e m b e rs of the B o a rd of Directors. ( My underlining). T h ey h o w e v er do not specify w h i ch o ne of the m e m b e rs of the B o a rd of Directors in particular they w a nt to meet. It is observed that they h a ve m et the D e p u ty C h a i r m a n, the Acting Minister and of course the Acting M a n a g i ng Director. These are m e m b e rs of the B o a rd of Directors. B ut definitely they are not the ones the e m p l o y e es w a nt to meet. Because even although the meeting w as held by staff delegation with the Minister, Principal Secretary and Acting M a n a g i ng Director the e m p l o y e es still remained gathered outside L TC headquarters waiting to be addressed by the B o a rd of Directors. F o rm the time they assembled at headquarters they w e re addressed by Acting M a n a g i ng Director, so w h i ch m e m b er or m e m b e rs of the B o a rd of Directors did they w a nt if not the full B o a r d? Do they really k n ow w h at they want? D a ys w e nt by while these e m p l o y e es of L TC r e m a i n ed at that so called a m e e t i n g. A re they at w o r k? T h ey claim so. W h at exactly is their w o r k? Is the waiting at the m e e t i ng to be addressed by the B o a rd of Directors the function of these e m p l o y e e s? No o ne c l a i m ed that his or her w o rk is o n ly to congregate for a m e e t i ng indefinitely at L TC headquarters. T h ey h a ve c o me there f r om their various w o rk positions but they will not go b a ck to their w o rk until they h a ve m et with the B o a rd of Directors. T h e se are the w o r k e r s. T h ey s h o u ld do their w o rk as workers. T h e re could be an occasional m e e t i ng b ut n ot as a full time occupation of the w o r k e r s. E v en those w o r k e rs w ho represented w o r k e rs in the m e e t i ng of the B o a rd of Directors m u st h a ve their duties as w o r k e r s. T h ey are both w o r k e rs a nd m e m b er of the board. It is absurd that f r om 11th A u g u st 1 9 97 a h u ge n u m b er of L TC e m p l o y e es c h a n g ed their roles f r om b e i ng w o r k e rs to being e m p l o y e rs w ho do nothing else but just waiting at the m e e t i ng to be addressed by the B o a rd of Directors. Their act of remaining indefinitely at the so called a meeting, d o ne in contemplation of trade dispute is a strike. T h e se w o r k e rs refused or failed to accept e n g a g e m e nt for a ny w o rk in w h i ch they w e re usually e m p l o y e d. T R A DE D I S P U T E: " m e a ns a ny dispute or difference b e t w e en e m p l o y e r s. a nd e m p l o y e e s ." S E C T I ON 3 L A B O UR C O DE O R D E R, 1 9 9 2. W i th our present case there are difficulties regarding this definition of trade dispute. T h e re are no disputes. T he w o r k e rs in their C I V / A P N / 3 0 4 / 97 claim there w as in 1 9 96 a dispute w h i ch culminated in their e m p l o y er entering into an a g r e e m e nt with the e m p l o y e es to redress staff complaints. (See P a ra 4.1 F o u n d i ng Affidavit C I V / A P N / 3 0 4 / 9 7) In a n s w er to that allegation w h i ch is self contradictory the A c t i ng M a n a g i ng Director denies that there is a dispute a nd correctly so. E m p l o y e es themselves have a d d ed a contradiction to their allegation that there w as a dispute in 1996. T he contradiction they h a ve a d d ed is that the dispute culminated in the agreement. T h e re is no dispute o n ce an a g r e e m e nt is reached. This action of remaining at the meeting a nd refusing to go b a ck to w o rk is a strike. This action of refusing to go b a ck to w o rk without resort to procedures stipulated by the L a b o ur C o de before going on strike renders it illegal. This is such a wildcat strike it cannot be a c c o m m o d a t ed a n y w h e re within the perimeters of the L a b o ur C o de w h i ch provides protection for w o r k e rs w ho exercise in accordance with its provisions their right to strike. T he m e re denial that the e m p l o y e es are not on strike or the strike issue never featured in their various discussions with Acting M a n a g i ng Director, Principal Secretary for Posts a nd Telecommunications acting Minister and the i n c u m b e nt Minister does not make the strike go a w a y. E m p l o y e e s' representative alleges in her F o u n d i ng Affidavit in C I V / A P N / 3 0 4 / 97 that they w e re served with the court order restraining t h em from continuing with their congregation at L TC headquarters a nd ordering t h em to return to w o rk on 14th A u g u st 1 9 9 7. S he expresses s o me kind of astonishment that they w e re served with the court order instead of the address by the B o a rd of Directors. T h ey could not m o ve a millimetre f r om L TC headquarters until they m et the B o a rd of Directors. It s e e ms it will take a court order to m a ke t h em m o ve without meeting the unspecified m e m b er or m e m b e rs of the B o a rd of Directors because although they h a ve m et s o m e, Principal Secretary for Posts a nd Telecommunications a nd Ministers, and Acting M a n a g i ng Director they are not satisfied. T h r o u g h o ut the e m p l o y e e s' papers before this court y ou see a concerted effort b e i ng m a de to a v o id the fact that t h ey are on strike. M r s. K o t e lo m a de an a t t e m pt to a r g ue that the existence of the strike is d i s p u t ed a nd therefore the application m u st be d i s m i s s ed on that alone. T he dispute that w a r r a n ts dismissal of an application in m o t i on p r o c e e d i n gs h as t wo r e q u i r e m e n t s: (1) It m u st be g e n u i n e. (2) T he applicant m u st h a ve b e en a w a re that there w as g o i ng to be a dispute. In o ur present c a se e v en the w o r k e rs in question a c c e pt that the court o r d er w as served u p on t h em w h e re t h ey h a ve c o n g r e g a t ed a nd h ad r e m a i n ed to be m et by the B o a rd of Director for at least 4 four d a ys w i t h o ut d o i ng a ny w o r k. T h e se e m p l o y e es d e ny that there is or w as a strike b e f o re t h ey w e re s e r v ed w i th the court order f r om 11th A u g u st to 14th A u g u st 1 9 97 b e c a u se s o me of t h em without the k n o w l e d ge of the A c t i ng M a n a g i ng Director w e nt to carry o ut s o me repair w o rk at B o r o k h o a n e ng e x c h a n g e. T he fact that the A c t i ng M a n a g i ng D i r e c t or a c k n o w l e d g ed that he h ad no k n o w l e d ge of that d o es n ot raise the dispute as regards the strike. In the first p l a ce n ot e v e ry L TC e m p l o y ee is on strike. T h e re are t h o se for w h om LTC s o u g ht an o r d er to restrain the striking e m p l o y ee f r om intimidating t h em as t h ey carry on their duties. T h e se L TC e m p l o y e es c an c l a im to h a ve b e en w i th the A m e r i c an A s t r o n a ut carrying on c o m m u n i c a t i on repairs at the R u s s i an M i r, those w ho did n ot see t h em in the picture will n ot k n ow a nd will n ot d e ny it. T h e re is no w ay A c t i ng M a n a g i ng Director c o u ld s ee a nd k n ow w h at e v e ry e m p l o y ee of L TC is d o i ng at all the t i m e. At that relevant p e r i od these e m p l o y e es h ad g a t h e r ed at L TC h e a d q u a r t e rs t e l e c o m m u n i c a t i on service w as disrupted, acts of s a b o t a ge w e re c o m m i t t ed there. V CL h ad to c o me to court to s e ek an order for the repairs to be carried a nd security to be p r o v i d ed to p r e v e nt further disturbances a nd disruptions. W hy did t h ey n ot carry o ut repairs there at L TC headquarters? The duration of the meeting m ay not be such a determining factor. But in this instance the members of the Board of Directors were not there. There was no further excuse to hang around the L TC headquarters demanding to meet with the Board of Directors while at the same time claiming that employees need not see all the Board members together but do not specify which particular member do they want. They have been advised to postpone their meeting. They refused and allege that they will continue with their meeting without the Minister. They have been advised to go back to work to no avail. The question of lock out has been raised. The employees however do not claim that they were locked out. They do not claim that the gate does not open. The Acting Managing Director deposing to opposing Affidavit in. CIV/APN/304/97 at para 9 denies that this was a lock out in terms of Section 229 of the Labour Code. It was a move on the part of management to clear from the premises those employees w ho were on strike. The applicants employees in CIV/APN/304/97 deny that they are on strike. They do not allege that they were the ones to be or who were cleared. The management moved to limit the extend of damage done to equipment of L TC and reduce, if not total eliminate acts of sabotage. These employees claim they are not the ones responsible for acts of sabotage. So they definitely could not be the ones caught in the sieve. It must be the members of the general public who commit those acts of sabotage according to these employees. Shouldn't then there be a need to close and lock the gate to keep out the public? Employees produced their ID cards and went in. The action was meant to sieve out saboteurs out of the workers. This court was referred to the case of National Union of Mine workers and Others V Richards Bay Minerals 1995 U L CD 334 (1c). The facts of our present case are almost on force with the facts of that case. The machinery used in the process of mining was sabotaged and vandalised. The damage done or feared was going to run into million of rands. The defence of necessity to exclude the workers from access to the machinery for its protection was upheld. Employees do not allege that they were stopped after producing their ID cards. Employees do not allege that they were refused entry in anyway. V CL applied to this court in CIV/APN/284/97 to restrain L TC from amongst other prayers from disconnecting, disrupting and disturbing their switch of power supply, V CL asked for an order for L TC to reconnect 2 fixed telephone lines which they indicated and that such fixed communication lines are not disconnected, disrupted, disturbed or impeded in any unlawful way. VCL's equipment and machinery for the operations of their cellular communication exchange is housed at L TC headquarters. From 11th August 1997 it was shut down until 14th August 1997 when they, V CL obtained that court order. It is averred on behalf of L TC that when such shut downs of cellular communication exchange took place previously it was LTC employees who had effected them. L TC employees would like this court to believe that any other person can have the know h ow to effect such shut downs of cellular communication exchange. They would have this court believe that the members of public have access to the equipment and machinery sabotaged and vandalised. These employees would not have access limited only to the workers. All the gates must be kept open all the time. They deny that they are responsible for any acts of sabotage committed at their headquarters. Employees are aware that the corporation operations are so broad, diverse, technically sensitive and very complex (para 17 Opposing Affidavit by EM Khutlang) the employees seem to be proud of the fact that no particular individual has been caught red handed committing any acts of sabotage. They are opposed to see that efforts are being made to stop further occurrences of such sabotage or even to attempt to catch the culprits. They seem to be playing catch me if you can. All gates must be opened at all times so that they move freely in and out day and night. They, employees do not allege that the closure of the gate prevents them from entering. So w hy should they be opened. They do not claim that their ID cards are not accepted. Apparently they are against the closure for no reason. O ne of them complained that the member of Gray Lesotho Security engaged by V CL to protect their property threatened his life by pointing a firearm at him at night. He or she does not say in what circumstances. He or she does not tell the court what he or she was doing to be stopped by Gray Security at that time of the night. There were prayers by employees that members of the police and Gray Security should be removed from the premises of L TC headquarters by order of court to L TC to remove them. V CL had hired the Gray Security after the repeated acts of sabotage perpetuated against their property and which resulted with the shut down of their cellular communication for days. VCL in CIV/APN/284/97 was issued with a Rule NISI authorising the deputy sheriff of Maseru to switch on power supply and re-connect their fixed telecommunication lines. To change and secure all locks of the doors leading to the M. S. C and if necessary to place security personnel. That's why Gray Lesotho Security is there. L TC has no authority over them. V CL is responsible for the presence of Gray Lesotho Security there. V CL is not before this court. This court cannot make an order removing their security personnel without first giving them an opportunity to be heard. The case before this court is not against them. It was by order of this court granted on the 14th August 1997 that the deputy Sheriff forced open the exchange room which was locked by L TC employees who had even removed the keys which could not be found so that V CL has no access into that room. All the telephone communication in Lesotho from 11th August 1997 and as this matter is being heard in court are constantly disrupted. These employees claim that the service cannot be run with some of them on strike. Obviously the management of L TC has not been able to have all the installations guarded. I doubt that L TC can have the sufficient manpower to see to it that saboteurs are kept at bay in all their installations. But because saboteurs still succeed at times at some places this court cannot accept that fencing and gates should be rendered useless and not used for the purpose for which they were erected in the first place. This court cannot restrain L TC from securing its premises against saboteurs when its employees still produce the IDs, sign whatever paper their employer provides and pass on to their offices and perform their duties. If these employees w ho have come to court to ask for removal of security measures taken complain that the security measure hinders them from working then there would be a ground for complaint. But they don't. The presence of the members of the police w ho as the law enforcement Agency intervened when the vandalisation of the L TC property seemed to be getting out of hand was also severely attacked by Mrs. Kotelo - Counsel for employees. It was after persuasion by the counsel for the Attorney General representing police, that the police cannot be removed let alone by L TC when they are there to see to it that no law is broken. Police are the responsibility of the Commissioner of Police - not L T C. The Police must see to it that they prevent the commission of offences. That is what brought them there. It is the duty of the police to preserve peace. Those employees w ho want the police to be removed do not show the court properly w hy L TC or the court should interfere with the police work. As far as other prayers in CIV/APN/304/97 are concerned, they either have been withdrawn or their effect was rendered redundant. For example after they were paid in August 1997 they included amongst their prayers that their salaries be paid. L TC showed the court that the employees' salaries for the month of August 1997 have been paid. These employees as appears on the papers filed of record were in receipt of their salaries at the time they were claiming to be paid. Those w ho collect the cheques from L TC had already done so. For some the money was deposited directly into the bank Accounts. (Annexure " D" to Opposing Affidavit in CIV/APN/304/97 refers). Since they were in receipt of the salaries already their apprehension that they will not be paid was unfounded. The paper that the employees were required to sign is not before court. Its contents are not known to this court. Employees allege that the signing of that paper was condition of entering into the premises. That paper most certainly did not block their way. Nobody claims that. Employees although behaving as if the signing of that paper was against their rights they do not say which right. Authority cited before this court that of the case of National Union of Retail and Allied Workers ( N U R A W) and Court President Labour Court, Sotho Development Corporation (Pty) CIV/APN/390/96 shows that the employer is perfectly entitled to require employees to sign undertaking not to be involved in illegal activities which m ay prejudice their employment. The case of Moloi and others v Jamela (Pty) Ltd 1992 I L CD 210 (1c) supports this view. The employer refused to allow access to employees till written contracts reflecting existing terms of their employment were signed. All these is speculation as the paper is not before court and its contents are not known. Talking about the signing of the contracts brings me to the Agreement these employees have neglected or refused to sign. They are accusing their employer of not fully putting into effect the agreement between them and their employer. The employer has already put into effect some of the terms agreed upon such as 2 0% salary increases; But there are parts of that Agreement which still have to be implemented. The employer is in the process to implement fully the said agreement. Despite repeated request by employer to employees to sign the said Agreement, the employees have neglected and/or refused to sign that agreement and they want it fully implemented. What value is the Agreement which has not been signed by the parties? It is not worth the paper it is written on. M ay be that is w hy the employees although vehemently expressing that agreement was reached, they still persist that there existed a dispute. But at the same time they place heavy reliance for their actions for non implementation of the said agreement. There was a complaint with regard to the submission or filing of heads of arguments. The purpose of preparing and filing of the Heads of arguments is to assist the court to arrive at the fair decision. The counsel is influencing the court to see the case from her or his point of view. The expected practice which in my view should be the one followed is dictated by ethics of legal practice. The learned friends must be honest and straight forward. In the case of Mantaote Ntaote V D PP CRI/A/20/91, one of the assistants registrar demanded the file of the case which was in my possession while I was preparing to deliver judgment that I had reserved. I pointed out to her - Ms Rammolai - that there is no need for the filing of further and additional papers because the matter was adjourned for judgment. This girl argued that she must be allowed to put in the file the heads of argument because I have not yet delivered the judgment. In that girl's attitude I saw rudeness, arrogance and contempt. She seemed convinced that she must have the file and put in those papers. The papers were from Mrs. Kotelo. I was surprised because she was present in court when the matter was adjourned for judgment at the conclusion of her address. I felt perhaps Mrs. Kotelo does not see any impropriety in that behaviour of filing papers at that stage. Little did I k n ow that counsel w ho had enlisted the assistance of this assistant registrar to file the papers was much aware and knows it is wrong to file the papers at that stage. Her colleague Mr. Makeka here had to commit that mischief for her to come out clearly that it is wrong. She has written this letter of complaint to the registrar who just put it in the judge's file. This practice is wrong at all times not only to some of the legal Practitioners but to all. W h en the legal practitioner does something wrong well knowing it to be wrong, there is ethical problem. It is wrong to take unfair advantage. I have ignored the papers sent as correction by Mr. Makeka by him or anyone. That should never ever be repeated. I do appreciate that this matter was treated with urgency it deserves by all parties. In the process of preparing papers even when one is determined to produce the best there m ay be one or so aspects of the case which counsel m ay feel needs buttressing. Almost at all times that worry that you should have put something this way or that way will forever be there. But in the end nothing further needs be done. I am worried that some of our legal Practitioners' vision of distinction between ethical method expected to be adopted by them and those methods that are for tsotsis, is so blurred they can hardly distinguish the difference. Let us hope that as time goes on the blur will clear off leaving very clear vision for our lawyers to make wise choices of using and applying only those methods permitted and dictated by legal ethics. N ow coming back to the prayers of these applications I consider that there is no w ay they can both succeed. If L TC for the protection of its property and for the purpose of continuing to render the service to this nation must control and perhaps indeed regulate access to its property. The prayers in CIV/APN/283/97 succeed and are confirmed. The prayers in CIV/APN/304/97 must fail. This application is dismissed with costs. K. J. GUNI JUDGE For Applicant: Mrs Kotelo For Respondent: Mr. Makeka