Corporation and Another v Nkuebe and Others (C of A (CIV) 12 of 199; C of A (CIV) 5 of 1998) [1998] LSCA 74 (31 July 1998)

C of A (CIV) NO 5 of 1998 C of A (CIV) NO 12 of 1998 IN T HE C O U RT OF A P P E AL OF L E S O T HO In the matter between: 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 ON T H A M A H A NE C. F. D. R A S E K I LA 1ST A P P E L L A NT 2ND A P P E L L A NT A ND M A K H O B O T L E LA N K U E BE S E L I K A NE S E L I K A NE T H A BO S E K O N Y E LA M A H O L E LA M A N D O RO M I C H A EL R A M O S A L LA K O A L E PE M A K A T S E LA F U S I C H O PO R A M O K H E T H I D A M A NE L E M O H A NG F A N A NA P H A K I SO F O SA A M D R E AS H A NI P A UL H L A B A NE L E S A LA H L A L E LE T S E P I SO H L E H L I SI E Z E K I EL H L O N G W A NE T E B O HO H O O H LO M A T L A LA K A E A NE T H A P E LO K A KA S E L A KE K A LI R A M A H E T L A NE K H A K A N YO M A K A LO K H A K E T LA ' M A T E B O HO C H A L U M E AU K H A S I PE K H A S I PE M O H A P I K H A MA N T S A NE K H A T A LA 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 1 0TH R E S P O N D E NT 1 1TH R E S P O N D E NT 1 2TH R E S P O N D E NT 1 3TH R E S P O N D E NT 1 4TH R E S P O N D E NT 1 5TH R E S P O N D E NT 1 6TH R E S P O N D E NT 1 7TH R E S P O N D E NT 1 8TH R E S P O N D E NT 1 9TH R E S P O N D E NT 2 0TH R E S P O N D E NT 2 1ST R E S P O N D E NT 2 2ND R E S P O N D E NT 2 3RD R E S P O N D E NT 2 4TH R E S P O N D E NT 2 5TH R E S P O N D E NT K H E C H A NE K H E C H A NE M A L E F E T S A NE K H EO L I M P HO K H E T SI S E L LO K H I BA M O K H E S E NG K H O A B A NE R O SA K H O E TE ' M A S E N T LE K H O L U MO M O I T H E R I M O H A PI E L I Z A B E TH K H U T L A NG N T O I LE K O L A NE L E R A TO K O L I S A NG P H A K I SI K O L O BE P O E LO K O L O BE P A UL K U L E H I LE T L A N T L I L E B A L LO ' M A M A R A L I NG L E B A L LO T H A B A NG L E B O K O L L A NE S E K O N Y E LA L E B O PO T E L E KO L E B U SA SEEISO L E C HE T A N K I SO L E F U L E BE R I C H A RD L E H L A HA T S A B A L I RA L E J A HA L I S E M E LO L E K H A N YA L E P H E A NE L E K H E T HO L E B A BO L E K H O OA R A M O F O LO L E K O A T SA G E O R GE M O K O E NA H U B B E RT L E L I MO L E P H E A NE L E P H E A NE H E R B E RT L E P H E A NE R A M O T S E L I SI L E P H O TO K A R A B E LO L E R O T H O LI A L B E RT L E S A O A NA L E Q A LA L E S EO K H O T H A T SO L E T E LE M O L I B E T S A NE L E T L A KA PHILLIP L E T L A T SA SEEISO L E T S IE T O KA L E T S IE 2 6TH R E S P O N D E NT 2 7TH R E S P O N D E NT 2 8TH R E S P O N D E NT 2 9TH R E S P O N D E NT 3 0TH R E S P O N D E NT 3 1ST R E S P O N D E NT 3 2ND R E S P O N D E NT 3 3RD R E S P O N D E NT 3 4TH R E S P O N D E NT 3 5TH R E S P O N D E NT 3 6TH R E S P O N D E NT 3 7TH R E S P O N D E NT 3 8TH R E S P O N D E NT 3 9TH R E S P O N D E NT 4 0TH R E S P O N D E NT 4 1ST R E S P O N D E NT 4 2ND R E S P O N D E NT 4 3RD R E S P O N D E NT 4 4TH R E S P O N D E NT 4 5TH R E S P O N D E NT 4 6TH R E S P O N D E NT 4 7TH R E S P O N D E NT 4 8TH R E S P O N D E NT 4 9TH R E S P O N D E NT 5 0TH R E S P O N D E NT 5 1ST R E S P O N D E NT 5 2ND R E S P O N D E NT 5 3RD R E S P O N D E NT 5 4TH R E S P O N D E NT 5 5TH R E S P O N D E NT 5 6TH R E S P O N D E NT 5 7TH R E S P O N D E NT 5 8TH R E S P O N D E NT 5 9TH R E S P O N D E NT 6 0TH R E S P O N D E NT 6 1ST R E S P O N D E NT 6 2ND R E S P O N D E NT 6 3RD R E S P O N D E NT 6 4TH R E S P O N D E NT 6 5TH R E S P O N D E NT P A UL L I E TA S E MA L I K O B E LO ' M A L I N EO L I P H O LO R E T S E L I S I T S OE L I T L A LI T H A B A NG M A C H E LI V I C T OR M A E MA P E T ER M A F A NE L E FA M A F A TA T A B A T S I M A F E L E SI ' M A S E K O A NE M A H AO T S I L O N Y A NE M A H A SE T H A BO M A H L E KE M O H A LE M A H L O A NE ' M A K O E N A NE M A H L O M O LA T H A BO M A I SA S E T HO M A J O RO S E N A T LA M A K AE T L A L A NE M A K E PE R E F U O E H A PE M A K H A K HE T H E BE M A K H A LE L I K H A NG M A K H O T HE H E L EN M A K H O T LA S E B A KE M A K H U T LA T E B O HO M A K O KO T S O LO M A K O S H O LO ' M A L E FU M A L E F A NE M A R T IN M A L E KE R E E N T S E NG M A L I E HE M A O E LA M A O E LA P U S E T SO M A O E LA M A P A N YA M A P A N YA B O F I H LA M A P H A T S OE M O T L A T S I M A P O O A NE M B U L E LO M A Q U TU ' M A M P HO M A R A I S A NE K H E T H A NG M A RE K H A U TA M A R IE T A U KU ' M A S E A T I LE R E F I L OE M A S E N Y E T SE S E P I T LE M A S E N Y E T SE 6 6TH R E S P O N D E NT 6 7TH R E S P O N D E NT 6 8TH R E S P O N D E NT 6 9TH R E S P O N D E NT 7 0TH R E S P O N D E NT 7 1ST R E S P O N D E NT 7 2ND R E S P O N D E NT 7 3RD R E S P O N D E NT 7 4TH R E S P O N D E NT 7 5TH R E S P O N D E NT 7 6TH R E S P O N D E NT 7 7TH R E S P O N D E NT 7 8TH R E S P O N D E NT 7 9TH R E S P O N D E NT 8 0TH R E S P O N D E NT 8 1ST R E S P O N D E NT 8 2ND R E S P O N D E NT 8 3RD R E S P O N D E NT 8 4TH R E S P O N D E NT 8 5TH R E S P O N D E NT 8 6TH R E S P O N D E NT 8 7TH R E S P O N D E NT 8 8TH R E S P O N D E NT 8 9TH R E S P O N D E NT 9 0TH R E S P O N D E NT 9 1ST R E S P O N D E NT 9 2ND R E S P O N D E NT 9 3RD R E S P O N D E NT 9 4TH R E S P O N D E NT 9 5TH R E S P O N D E NT 9 6TH R E S P O N D E NT 9 7TH R E S P O N D E NT 9 8TH R E S P O N D E NT 9 9TH R E S P O N D E NT 1 0 0TH R E S P O N D E NT 101ST R E S P O N D E NT 1 0 2ND R E S P O N D E NT 1 0 3RD R E S P O N D E NT 1 0 4TH R E S P O N D E NT 1 0 5TH R E S P O N D E NT 111TH ' M A L I S E N TE M A S H A P HA M O T E B A NG M A S H E A NE T H A TO M A S I T H E LA T H A BO M A T A M A NE M O O R O S I M A T E LA S E H L O HO M A T H A HA ' M A B U L A RA M A T O BO S E N T LE M A T O B A KO T H A B I SO M A T S O AI S E U T L O A L I M A T S O SO T H O R I SO M A T S O SO L E B O H A NG M B O LE T H A P E LO M O BE K H O B O SO M O E L E T SI L A W R E N CE M O F O KA M A S O A B I M O F U BE T S E KO M O H A LE N A PO M O H A PI J O BO M O H A PI M A M P HO M O H A PI ' M A T H A TO M O H A SI L I B O KO M O H L A L I SI T H A B A NG M O I K E T SI L E B O H A NG M O I L OA L E B U SA M O K A TI T U PA M O K H A L I N Y A NE K O P A NO M O K H A L O LI N T L O KO M O K H E SI S E H L A B A KA M O K H O T HU M A F O LE M O K O MA T A N K I SO M O L A OA K H O B A T HA M O L A PO T H A P E LO M O L A PO M A M O L E B O H E NG M O L E L E KI S E A B A TA M O L E PA M O L E F I M O L E T S A NE T E B O HO M O L E T S A NE E. M O L I S A NE M O L O PI M O L I SE T S E L I SO M O L I SE 1 0 6TH R E S P O N D E NT 1 0 7TH R E S P O N D E NT 1 0 8TH R E S P O N D E NT 1 0 9TH R E S P O N D E NT 1 1 0TH R E S P O N D E NT R E S P O N D E NT 112TH R E S P O N D E NT 1 1 3TH R E S P O N D E NT 1 1 4TH R E S P O N D E NT 1 1 5TH R E S P O N D E NT 116TH R E S P O N D E NT 1 1 7TH R E S P O N D E NT 1 1 8TH R E S P O N D E NT 119TH R E S P O N D E NT 1 2 0TH R E S P O N D E NT 121ST R E S P O N D E NT 1 2 2ND R E S P O N D E NT 1 2 3RD R E S P O N D E NT 1 2 4TH R E S P O N D E NT 1 2 5TH R E S P O N D E NT 1 2 6TH R E S P O N D E NT 1 3 7TH R E S P O N D E NT 1 3 8TH R E S P O N D E NT 1 3 9TH R E S P O N D E NT 1 4 0TH R E S P O N D E NT 141ST R E S P O N D E NT 1 4 4TH R E S P O N D E NT 1 4 5TH R E S P O N D E NT 1 4 6TH R E S P O N D E NT 1 4 7TH R E S P O N D E NT 1 4 8TH R E S P O N D E NT 1 4 9TH R E S P O N D E NT 150™ R E S P O N D E NT 151ST R E S P O N D E NT 1 5 2ND R E S P O N D E NT 1 5 3RD R E S P O N D E NT 1 5 4TH R E S P O N D E NT 1 5 6TH R E S P O N D E NT 1 5 7TH R E S P O N D E NT 1 5 8TH R E S P O N D E NT K H E T H A NG M O L O I S A NE I T U M E L E NG M O M PE T E B O HO M O N A H E NG L O K I S A NG M O N E T HI S E L LO M O O R O SI A D EL M O R IE N T E L E LE M O R O A N Y A NE T H E T S A NE M O R O M E L LA P H O LO M O S E BO M A P H E L E T SO M O S E N E NE T L O K O T S I M O S H A S HA M O F E R E F E RE M O S H E OA T H A BO M O S H O E S H OE L E T S I T S I M O S I U OA T E B O HO M O S O LA ' M A L I M A K A T SO M O S O LA N T H U SO M O T H O A NA T U M E LO M O T H O K HO ' M A N T HA M O T O PI M A L E F E T S A NE M O T S E T S E RO M O T L A T S I M O T S O A NE T H A P E LO M P A SI M O T L A T SI M P E TE N O O S I M P E LA A Z A R I EL M P H O FE ' M A T L A L I M P I T SO T H A B A NG M PO L I K E L E L I N A L E LI E V O D IA N KO S H A D R A CK N KO A LE L E P E K O LA N O L O A NE T S U K U LU N O N Y A NE ' M A L I S E BO N T EE ' M A B A T A U NG N T E L A NE T E M O SO N T O A M PE ' M U SO N T O BO T H A B A NG N T S A NE L I A KO N T S E K HE T E B O HO N T S I N YI T H A B A NG P A N Y A NE 1 5 9TH R E S P O N D E NT 1 6 0TH R E S P O N D E NT 1 6 1ST R E S P O N D E NT 1 6 3RD R E S P O N D E NT 1 6 4TH R E S P O N D E NT 1 6 5TH R E S P O N D E NT 1 6 6TH R E S P O N D E NT 1 6 7TH R E S P O N D E NT 1 6 8TH R E S P O N D E NT 1 5 8TH R E S P O N D E NT 1 6 9TH R E S P O N D E NT 1 7 0TH R E S P O N D E NT 1 7 1ST R E S P O N D E NT 1 7 2ND R E S P O N D E NT 1 7 3RD R E S P O N D E NT 1 7 4TH R E S P O N D E NT 1 7 5TH R E S P O N D E NT 1 7 7TH R E S P O N D E NT 1 7 8TH R E S P O N D E NT 1 7 9TH R E S P O N D E NT 1 8 0TH R E S P O N D E NT 1 8 1ST R E S P O N D E NT 1 8 2ND R E S P O N D E NT 1 8 3RD R E S P O N D E NT 1 8 4TH R E S P O N D E NT 1 8 5TH R E S P O N D E NT 1 8 6TH R E S P O N D E NT 1 8 7TH R E S P O N D E NT 1 8 8TH R E S P O N D E NT 1 8 9TH R E S P O N D E NT 1 9 0TH R E S P O N D E NT 1 9 1ST R E S P O N D E NT 1 9 2ND R E S P O N D E NT 1 9 3RD R E S P O N D E NT 1 9 4TH R E S P O N D E NT 1 9 5TH R E S P O N D E NT 1 9 6TH R E S P O N D E NT 1 9 7TH R E S P O N D E NT 1 9 8TH R E S P O N D E NT 1 9 9TH R E S P O N D E NT T H A BO P E E K E C HE P A L E SA P E T L A NE N O C O D E M US P H A L I ME M O T L A T SI P H A R OE L E T H U S A NG P H E KO S E Q AO P H E N YA M O T S A M A I P H E RA K O M E T SI P H I T S A NE R E T S E L I S I T S OE P H O RI L E R A TO P I T SO B A P H O T HI P O F A NE K O SI P O T S A NE J O S E PH Q A BA K H O A B A NE Q H O B E LA K O T SI Q H O B O S H E A NE M A K H A U TA Q O A C H E LA T E B O HO Q O P HE B R O WN R A J O E LE M A T U M I S A NG R A M A B E LE L E K H O O A NA R A M A L I E HE B A S IA R A M A O K A NA L E T E KA R A M A S H A M O LE R A P H A EL R A M A S H A M O LE JULIUS R A M A T A B OE M P A I R A M M U S E T SI H L O LO R A M O R A K A NE M A H L O M O LA R A M O T H A MO M P H O B O LE R A M P H O B O LE ' M A T E B O HO R A N O OE L E B O H A NG R A P I L E T SA A L F R ED R A T J O PA T E N N Y S ON S A O A NA D A V ID S A U DI B A I LE S E A K H OA G L A D YS S E B A T A NA T H A B I SO S E H L A B A KA L E B O H A NG S E K H O A H LA ' M A M O O R O S A NE S E K O A LA A M E L IA M O L A PO S E C H O C HA S E N Y A NE 2 0 0TH R E S P O N D E NT 2 0 1ST R E S P O N D E NT 2 0 2ND R E S P O N D E NT 2 0 3RD R E S P O N D E NT 2 0 4TH R E S P O N D E NT 2 0 5TH R E S P O N D E NT 2 0 6TH R E S P O N D E NT 2 0 7TH R E S P O N D E NT 2 0 8TH R E S P O N D E NT 2 0 9TH R E S P O N D E NT 2 1 0TH R E S P O N D E NT 2 1 1TH R E S P O N D E NT 2 1 2TH R E S P O N D E NT 2 1 3TH R E S P O N D E NT 2 1 4TH R E S P O N D E NT 215TH R E S P O N D E NT 2 1 6TH R E S P O N D E NT 2 1 7TH R E S P O N D E NT 2 1 8TH R E S P O N D E NT 2 1 9TH R E S P O N D E NT 2 2 0TH R E S P O N D E NT 2 2 1ST R E S P O N D E NT 2 2 2ND R E S P O N D E NT 2 2 3RD R E S P O N D E NT 2 2 4TH R E S P O N D E NT 2 2 5TH R E S P O N D E NT 2 2 6TH R E S P O N D E NT 2 2 7TH R E S P O N D E NT 2 2 8TH R E S P O N D E NT 2 2 9TH R E S P O N D E NT 2 3 0TH R E S P O N D E NT 2 3 1ST R E S P O N D E NT 2 3 2ND R E S P O N D E NT 2 3 3RD R E S P O N D E NT 2 3 4TH R E S P O N D E NT 2 3 5TH R E S P O N D E NT 2 3 6TH R E S P O N D E NT 2 3 7TH R E S P O N D E NT 2 3 8TH R E S P O N D E NT 2 3 9TH R E S P O N D E NT T. S E N Y A NE L E B O H A NG S E P E RE M A K H A O LA S E P E RE M A L E F E T S A NE S E Q H O A LA D A N I EL S E S I NG R E F U OE S E T E KA C A S W EL S E T E M E RE ' M A M P HO S E T L O B O KO M O L I B E LI S H A BE K H E T H A NG S H A LE K H O M O A T S A NA S H A LE K H U P I SO S H EA H I L DA S H O LU M O J A L E FA S U O A NE T H A B A NG T A E LI A N D R E AS T A K A L I M A NE M O H AU T A K A NA S. T H O K O A NA T H A B A NG T H A BA P R E S C I L LA T H A K E DI B O K A NG T H A M AE M A T L E RE T H A M AE T J O KA T H O KO R U S S E LS T H U LO M A L A T S I T I H E LI ' M A M O H A LE T J A B A NE T E M A NE T O PO T H A TO T S A L O NG H L O M O KA T S E P A NE P A N Y A NE T S E P HE K A B U TU T S I A NE M O T L O H E L OA T S I RA L E P H O TO TSIU T E B O HO T S O E NE N K H A H LE T S O S A NE K O P A NG V U M B U K A NI B L Y TH B A H O LO P U S E L E T SO B A H O LO I S A AC B E L E ME J O HN B E R E NG 2 4 0TH R E S P O N D E NT 2 4 1ST R E S P O N D E NT 2 4 2ND R E S P O N D E NT 2 4 3RD R E S P O N D E NT 2 4 4TH R E S P O N D E NT 2 4 5TH R E S P O N D E NT 2 4 6TH R E S P O N D E NT 2 4 7TH R E S P O N D E NT 2 4 8TH R E S P O N D E NT 2 4 9TH R E S P O N D E NT 2 5 0TH R E S P O N D E NT 2 5 1ST R E S P O N D E NT 2 5 2ND R E S P O N D E NT 2 5 3RD R E S P O N D E NT 2 5 4TH R E S P O N D E NT 2 5 5TH R E S P O N D E NT 2 5 6TH R E S P O N D E NT 2 5 7TH R E S P O N D E NT 2 5 8TH R E S P O N D E NT 2 5 9TH R E S P O N D E NT 2 6 0TH R E S P O N D E NT 2 6 1ST R E S P O N D E NT 2 6 2ND R E S P O N D E NT 2 6 3RD R E S P O N D E NT 2 6 4TH R E S P O N D E NT 2 6 5TH R E S P O N D E NT 2 6 6TH R E S P O N D E NT 2 6 7TH R E S P O N D E NT 2 6 8TH R E S P O N D E NT 2 6 9TH R E S P O N D E NT 2 7 0TH R E S P O N D E NT 2 7 1ST R E S P O N D E NT 2 7 2ND R E S P O N D E NT 2 7 3RD R E S P O N D E NT 2 7 4TH R E S P O N D E NT 2 7 5TH R E S P O N D E NT 2 7 6TH R E S P O N D E NT 2 7 7TH R E S P O N D E NT 2 7 8TH R E S P O N D E NT 2 7 9TH R E S P O N D E NT L E R E KO B E R E NG M O U SE B O H L O KO T A N K I SO M A E K A NE M A L O LI M O T H I B E LI R A M O F AO M O N A K A L A LI R A M A I SA R A M A I SA M O T S O E LA S E E T A NE L E FA S E K O A TI M O C H E KO I S S A KA M O T L A L E P U LA M A S IA S E R U PE M O I L OA M A FA H L A L E LE L E FA M A T E NA N T JA P O S H O LI M A J A RA M A S O A BI M A H A SE R A B O S H A B A NE L E M O H A NG M O L O FI M A S U P HA S E P E RE M O K O E N I HI C H O B O K O A NE T H A B A NG M P U T S OE M O T L A T SI N K U N Y A NE T H A BO T S O E NE N T H A KO P H A TE T U M E LO M O Q H A LI M O L E FI M O L E FI M O L E FI M A I LE T A N K I SO I S A A KA K A N A TE K O L I S A NG R A N T S O TI M O L O LI L E B O NA L E B O NA M L E FI M O T S E KI S E F A LI M O K H A C H A NE H L O LO R A M O R A K A NE S E P H E K A NE M O H A PI R O B E RT K O T E LO 2 8 0TH R E S P O N D E NT 2 8 1ST R E S P O N D E NT 2 8 2ND R E S P O N D E NT 2 8 3RD R E S P O N D E NT 2 8 4TH R E S P O N D E NT 2 8 5TH R E S P O N D E NT 2 8 6TH R E S P O N D E NT 2 8 7TH R E S P O N D E NT 2 8 8TH R E S P O N D E NT 2 8 9TH R E S P O N D E NT 2 9 0TH R E S P O N D E NT 2 9 1ST R E S P O N D E NT 2 9 2ND R E S P O N D E NT 2 9 3RD R E S P O N D E NT 2 9 4TH R E S P O N D E NT 2 9 5TH R E S P O N D E NT 2 9 6TH R E S P O N D E NT 2 9 7TH R E S P O N D E NT 2 9 8TH R E S P O N D E NT 2 9 9TH R E S P O N D E NT 3 0 0TH R E S P O N D E NT 3 0 1ST R E S P O N D E NT 3 0 2ND R E S P O N D E NT 3 0 3RD R E S P O N D E NT 3 0 4TH R E S P O N D E NT 3 0 5TH R E S P O N D E NT 3 0 6TH R E S P O N D E NT 3 0 7TH R E S P O N D E NT 3 0 8TH R E S P O N D E NT 3 0 9TH R E S P O N D E NT 3 1 0TH R E S P O N D E NT 3 1 1TH R E S P O N D E NT 3 1 2TH R E S P O N D E NT 3 1 3TH R E S P O N D E NT 3 1 4TH R E S P O N D E NT H E LD A T: M A S E RU C O R A M: B R O W D E: JA V AN D EN H E E V E R: JA S H E A R E R: A JA J U D G M E NT B R O W D E, JA The background to these two appeals which, because they are so closely interrelated, were heard together, is the following:- During 1997 the Appellant (referred to herein as L T C) brought an application before the High Court in which it sought an interdict against certain of its employees 8 of w h om were named respondents while the 9th respondent was cited as "and others on strike". The application was founded on allegations that the respondents had gone on an illegal strike and had caused and were causing damage to L TC 's property and equipment. The L TC asked for an interdict restraining the employees from vandalising property of L TC and striking illegally and also for an order that they return to work. The employees denied most of the factual allegations of LTC. Seven named individuals with "Collective Employees" named as the 8th applicant brought a separate application in which they alleged that they had been unlawfully locked out of the premises. They asked the court, inter alia, for an order against L TC that the gates be opened to them and that they be permitted to return to work. The matters were treated as one by Guni J. who, despite the serious disputes of fact which existed on the papers in both matters, made credibility findings and granted the orders sought by L TC in the one application and dismissed the other brought by the employees. The employees noted appeals against both the grant of relief to the L TC and the order of Guni J. dismissing their application. That appeal came before this court in the January 1998 session. It seemed to us that because of the disputes of fact there was a possibility on that ground already that the employees' appeal would succeed insofar as the order in favour of the L TC was concerned and would fail in respect of the order that the employees had sought from Guni J. The parties would then have found themselves in a stalemate position in which they had all incurred a great deal of costs and solved nothing. This court was of the view, therefore, that it would be in the interests of all concerned if the ongoing differences apparent from that record could be resolved by a process of mediation. This was suggested to the parties' counsel, who, after consultation with their respective clients, adopted the suggestion. Pending the outcome of the mediation process the appeal was, by consent, postponed sine die. L TC having obtained from Guni J an order which in paragraph 2(e) obliged the allegedly striking employees to return to work, the employees did so. It is common cause, however, that when they reported for duty most of them were met by letters informing them that they were suspended pending the outcome of disciplinary hearings which L TC intended conducting into their "strike" activities and other allegations of misconduct while others (Applicants Nos. 282 to 309 before Monapathi J) were summarily dismissed. All this in the face of that part of Guni J's order, sought by the L TC itself, obliging employees to return to work. The disciplinary hearings which followed can only be described as a sham. Those charged were in effect denied their rights to answer the allegations against them as is required for a fair hearing and were "convicted" on the basis of the finding by Guni J. (on disputed facts) that the few named and the amorphous group of unnamed "other workers on strike" had been involved in an illegal strike and had perpetrated acts of vandalism. Nothing more need be said about those hearings than that in argument before us in the present appeals, Mr Wessels, who appeared for LTC, very properly conceded that he could not defend them. After those so-called hearings an appeal was purported to be permitted to all employees who had been dismissed by the disciplinary tribunal. The second Appellant in these proceedings who was the Acting Managing Director of L TC heard the "appeals" which were also formalistic ritual without substance and confirmed the dismissal of the employees. Then 314 named applicants approached the High Court in the applications which led to the two present appeals. One of them, No. 162, however abandoned his participation in the proceedings for reasons irrelevant to what is before us now. In the application to the High Court the relief sought was (and I set out only relevant prayers) an order in the following terms, that :- 3. A Rule Nisi be and is hereby issued returnable on the date and time to be determined by this Honourable Court calling upon the respondents to show cause (if any) why: (a) (i) The purported dismissals of applicants 1 to 281 by second respondent shall not be declared null and void and unfair. (ii) Respondents shall not be directed to reinstate applicants 1 to 281. A L T E R N A T I V E L Y: (iii) Respondent shall not be directed to pay to applicants 1 to 281 pension benefits and compulsory savings. (b) The purported dismissals of applicants number 311 to 314 shall not be declared unfair and thus null and void. (c) Respondents shall not be directed to pay applicant number 310 salary for the months on which his contracts were still to subsist. (d) The respondents shall not be directed to pay to applicants 282 to 309 their gratuities, and severance pays. (e) The respondents shall not be directed to pay to applicants arrears of their salaries for the period 11th to 31st day of August 1997. (f) The respondents shall not be directed to pay the salaries of applicants 1 to 281 and 310 to 314 for the period 30th day of September to the 1st day of October 1997. (g) The respondents shall not be directed to pay applicants 1 to 281 arrears of salaries and such other benefits as would be due, with effect from the date of the purported dismissal to the date of decision on their appeals by 2nd respondent. (h) Respondents shall not be directed to pay to applicants 310 to 314 gratuities and severance pay. (i) Respondents shall not be directed to pay costs hereof. The rule nisi sought was granted ex parte and in due course a Notice of Intention to oppose was filed by L TC and an opposing affidavit by the Second Appellant on behalf of L TC served. This was replied to by the First Respondent. The application came before Monapathi J. who, after hearing argument made the following orders on 11 February 1998: "A (i) The purported dismissals of Applicants 1 to 281 by 2nd Respondent are hereby declared null and void and set aside. (ii) Respondents are hereby directed to reinstate Applicants 1 to 281. B. The purported dismissals of Applicants 311 to 314 are hereby declared unfair and null and void. C. Respondents are directed to pay Applicants No. 310 salary for the month on which his contract was still to subsist. D. The Respondents are directed to pay Applicants 282 to 309 their gratuities and severance pay. E. F. G. The Respondents are ordered to pay Applicants' arrears of their salaries for the period 11th to 31st days of August 1997. The Respondents are directed to pay the salaries of Applicants 1 to 281 and 310 to 314 for the period 20th day of September to the 1st day of October 1997. The Respondents are directed to pay Applicants 1 to 281 arrears of salaries and such other benefits as would be due, with effect from the date of the purported dismissal to the date of decision on their appeals by 2nd Respondent. H. Respondents are directed to pay to Applicants 310 to 314 gratuities and severance pay. I. Respondents are directed to pay costs. J. The abovementioned orders are subjected to mediation but the party that refuses mediation reserves the right to inform the mediator that he should not mediate on this matter." On 24 June 1998 Monapathi J delivered his full reasons for making the orders referred to above and ended by explaining that Order J was "made against the background that mediation would in my mind affect the whole dispute, that is the aspects referred by the Court of Appeal and the issues before me. Inasmuch as it was conditional and a matter of choice it could not be a substantial decision by this Court". Since, as I have referred to above, the parties had shortly before agreed to attempt to solve their differences by mediation the learned Judge's inclusion of Order J as part of his decision was intended to make the balance of his order conditional, so as to avoid rendering nugatory the attempts, by means of mediation, to settle the ongoing bickering between employer and employees which had culminated in the judgment by Guni J. On 16 February 1998 L TC launched an urgent application in which it sought the following relief:- "That execution of his Lordship Mr Justice Monapathi' s judgment dated 11th day of February 1998 in the Application under case number CIV/APN/502/97 be and is hereby stayed pending the final determination of an appeal to the Appeal Court of Lesotho against the judgment as aforesaid". The application was opposed and on 27 March 1998 Monapathi J made an order dismissing the application with costs. Thus it came about that the two appeals came before us, the one against what may conveniently be termed Monapathi J's conditional order of reinstatement of the employees, and the other the refusal by Monapathi J to make an order staying the execution of that order. In his argument before us Mr Wessels on behalf of the appellants confined himself to two points namely (i) That Monapathi J was not justified in hearing the application for reinstatement as a matter of urgency and (ii) That the founding affidavit was deposed to by the first applicant namely Makhobotlela Nkuebe and that nowhere does he allege that he had the authority of the other applicants named in the heading to bring the application on their behalf. Counsel excluded from that criticism those named who had given supporting affidavits namely Thabo Ts'oene (the 301st Respondent), Molefi Motseki (the 310th Respondent) Majara Masoabi (the 294th Respondent) and Hlolo Ramorakane (the 312th Respondent). In regard to urgency Mr Wessels, after submitting that there was no special circumstance that warranted the matter being treated as urgent, conceded that this was essentially something within the discretion of the judge hearing the matter to decide. There was nothing of substance to which Counsel could point to justify us in concluding that Monapathi J's exercise of that discretion could properly be interfered with on appeal. Counsel did not persist in objecting to e.g. Nkuebe's general testimony relating to disciplinary proceedings of his co-applicants, as having been inadmissible as hearsay. He conceded that those had been irregular. Mr Wessels not only argued the second point with much greater enthusiasm, but pinned his colours to that mast. He submitted that the actio popularis is obsolete and is neither part of the law of South Africa nor of Lesotho. That this is so appears, inter alia, from Roodepoort - Maraisburg T o wn Council vs Eastern Properties (Pty) Ltd 1933 AD 87. This submission is no doubt correct and it seems clear that it is only in rare situations that anyone is entitled to bring an application on behalf of others without being duly authorised to do so. A rare situation referred to is such, for example, as was recognised in the case of W o od & others v. Ondangwa Tribal Authority and another 1975 (2) SA 294 (AD). In that matter RumpffCJ held that an unauthorised Applicant could act on behalf of persons shown to be unable to act in their own interests, were the Court satisfied that those so unable would have themselves sought the relevant relief had they not been prevented from doing so. It is unnecessary to decide the extent of the limitation of such a "concession", for present purposes. Mr Wessels submitted that it was necessary for the deponent Nkuebe to have alleged that he was "duly authorised to act on behalf of' all the persons who sought relief in the court a quo and this phrase does not appear in either the founding affidavit or the reply. Counsel pointed out that the question had been pertinently raised in the answering affidavit and not been specifically dealt with in reply. The relevant portion of the paragraph in the answering affidavit of LTC'S Acting Managing Director, who was the second respondent in the court below, reads as follows:- "2.3 Applicants, presumably 314 of them are not a trade union nor do they allege to be one. It is my assumption that they make this application in their individual capacities as they cannot act collectively. There is nothing in motion papers authored by Mr. T. Maieane to allege that he acts on behalf of the 314 named applicants nor that he is duly authorised to do so." Mr. Wessels is correct in stating that there is no express allegation in the affidavits that all the applicants named in the heading authorised the particular deponent to the founding affidavit to act on their behalf. To determine whether the application was authorised by those named as parties thereto,one is however not confined solely to the affidavits , since, as suggested in the answering affidavit, the Notice of Motion is also relevant. That is one of the documents "authored" by Mr. T. Maieane who was the attorney of the named applicants in bringing their application. That the Notice of Motion should also be taken into account appears from the judgment in Leith NO and Heath N. O. vs Fraser, 1952 (2) SA 33. That case concerned an application by the liquidators of an assigned estate to eject the respondent from estate property. Only one liquidator had signed the affidavit supporting the notice of motion and the other liquidator did not file an affidavit at all. In the affidavit the one applicant alleged that he was acting with the frail knowledge and consent of the other. The point was taken by the respondent that both liquidators should have signed the affidavit or, if the one did not, he should have filed a power of attorney indicating that he was joining in the application. The court found that in the circumstances of the case the sole supporting affidavit was adequate. In analysing whether there was sufficient on the papers to show that the second liquidator was party to the application the learned judge said (at p 35F) "The proceedings were initiated by way of notice of motion and not petition and the petition referred to by counsel is really the affidavit supporting the notice of motion. The prayer was contained in the notice of motion and all that was required in addition was an affidavit stating the facts on which the claim was being made (Barber and Barber v Fleramer 1903 TH 266) and the notice of motion clearly indicates that the application is being made in the name of both the assignees. The heading sets out the name of both of them and it is signed in terms of the Rules by "applicants' attorney". According to the notice of motion, then, both the applicants are making this application and are properly before the Court". It is noteworthy that the learned judge came to the conclusion that both applicants were properly before the court without insistence on the ritual incantation of the phrase that the deponent was acting "duly authorised by" the other person named by the attorney as one of his principals. I now turn to examine the facts of this case with particular reference to the contents of the notice of motion. I have already referred to the manner in which L TC in the former matter had cited the employees by naming 8 of them and for the rest adding "the others on strike". That obviously prompted the heading of the founding affidavit of the first respondent viz "Makhobotlela Nkuebe and 313 others." However the Respondents did also attach to the Notice of Motion the list of names, against their respective numbers, of all the respondents and the Notice of Motion itself contained the following:- (i) It was signed by T. Maieane who is described as 'Applicants' Attorney'. To see who those applicants are, one turns the page and finds the list of applicants and their numbers in detail, to discover their identity. Mr Wessels however stressed that his quarrel is not one of identity (which may well be a problem in the matters before Guni J.), but of authorisation. The fact that Mr Maieane is described as being the attorney of the named applicants necessarily represents that he has authority to bring their application. (ii) The relief sought in the Notice of Motion is a Rule Nisi calling upon the respondents to show cause, inter alia, primarily why the purported dismissals of applicants 1 to 281 should not be declared null and void and why those applicants should not be reinstated; and calls on the respondents to take notice that Nkuebe's affidavit and supporting affidavits will be used in support of the prayers. The clear intimation that the application is being made not only on behalf of the applicants whose numbered names are listed but on their authority is buttressed by the last sentence in the Notice of Motion which reads "Take Notice further that applicants have appointed the under mentioned attorney's address as the place whereat all process and documents herein may be served." Then the affidavit of Nkuebe starts with the following allegation, "I am one of the Applicants herein and I am applying as applicant No.l amongst the names of applicants herein". He goes on to say that he is a former employee of the first respondent (LTC) and that the other applicants are also former employees. Mr. Wessels submitted that that does not mean that Nkuebe had the others' authority to speak on their behalf. This, however, overlooks the statement in the Notice of Motion that the affidavit will be used in support of the relief sought by all the numbered and named applicants, and that this was signed by the attorney who prima facie had authority to represent them all. On the facts of this case there is in my view sufficient evidence to show that the application was authorised by all the named applicants, and the preliminary point taken by Mr Wessels must fail. There is one further facet to Counsel's argument that should be dealt with. When the employees attempted to return to work after the order for them to do so had been issued by Guni J, the L TC required of them that they sign a document to the effect that they would return to work and would "dissociate themselves from the illegal strike". Those who were not willing to sign the undertaking were dismissed. Mr Wessels submitted that that was a ground for dismissal without more. That submission cannot succeed here. L TC had itself sought and obtained an order from the High Court to compel employees to" desist from their illegal strike and return to work". It also had obtained an interdict prohibiting them from indulging in defined illegal behaviour. Their suspension was, according to the papers before us, not motivated by any refusal to sign an undertaking which was unnecessary in the face of that interdict, but was based on their earlier conduct which had been labelled illegal by Guni J on the strength of allegations which were not common cause. For the above reasons the appeal No.5 of 1998 cannot succeed on the grounds advanced. Although it was mentioned from the Bar that some of the applicants had been contract workers whose contract periods have already run out, and it seems as though the precise content of the order by Monapathi J may cause further problems when sought to be applied to the present situation of all parties, that was not pressed before us. It is the conditional order of the Court a quo which revives, so that possible problems are postponed to be dealt with in the future. I n ow turn to deal with the appeal against Monapathi J's order refusing a stay of execution. Mr Wessels attempted to incorporate into the present appeal, a record of proceedings which occurred recently in which Monapathi J. cancelled what in effect was the suspension of his earlier order. Mr Wessels submitted that those proceedings were quite irregular. It would be equally irregular of this Court to consider them where the employees have not consented to the ambit of the matter before us being enlarged belatedly and informally. On the record before us, since the suspensive condition had not fallen away, it was premature to have sought a stay of execution when this was done. Mr Wessels conceded this, and that this appeal must consequently fail. The result of the present proceedings and the fact that others are pending between the parties (including not only that referred to in the proceeding paragraph, but another matter that was sought to be advanced belatedly, and the appeal against the judgment of Guni J which is still pending) can only serve to exacerbate the chaos that the parties have created by their legal manoeuvres. Litigations so far has served the interests of neither party but only of the lawyers. It would be in the interests of all concerned that emotions be controlled and wise heads put together to find a solution. We have already suggested mediation. We are not aware of reasons which may have delayed or permanently derailed that process. If wisdom does not prevail and no solution other than by continued litigation is sought, so be it. It is however fair to predict that the relationship between the parties will be further soured, only the lawyers will reap rewards for their services at the expense of their clients, and the clients may receive no true benefit whatsoever in the long run. Appeal No.5 of 1998 and Appeal No.12 of 1998 are both dismissed with costs. J. B R O W DE J U D GE OF A P P E AL L. V AN D EN H E E V ER J U D GE OF A P P E AL D. L. L. S H E A R ER A C T I NG J U D GE OF A P P E AL I agree I agree Delivered at Maseru on 31st day of July, 1998.