Mafube Taxi Association (MBTA) and Another v Mashapha and Others (LC/REV 23 of 10) [2010] LSLC 28 (23 November 2010)

IN THE LABOUR COURT OF LESOTHO LC/REV/23/10 HELD AT MASERU IN THE MATTER BETWEEN MAFUBE TAXI ASSOCIATION (MBTA) THE EXECUTIVE COMMITTEE (MBTA) 1ST APPLICANT 2ND APPLICANT AND TANKI MASHAPHA ARBITRATOR – L. NTENE DDPR 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT JUDGMENT Date: 06/10/2010 Condonation of late filing of review granted due to shortness of delay good explanation and minimal if any prejudice to be suffered by the respondent – Evidence – Award partially reviewed for not considering evidence of applicant which was not controverted. 1. The award giving rise to this review application was handed down on the 30th January 2010. It was received by the applicant on the 16/03/10. The Review Application was filed out of the Registry of this Court on the 23rd April 2010. This was some 37 days after the applicant became aware of the award. Section 228 F (1) (a) of the Labour Code (Amendment) Act 2000 provides that a party seeking to review an award must apply to court “within 30 days of the date the award was served on the applicant unless the alleged defect involves corruption.” 2. 3. 4. Cognizant of the fact that it is in default, the applicant accompanied the review application with an application for condonation of the late filing of the review. The reason advanced for the delay was that applicant was sourcing for funds to enable it to brief counsel. It was contended on its behalf that the applicant has prospects of success in as much as an interested and necessary party was not joined in the arbitration proceedings. The 1st respondent opposed the application and contended that 1st applicant did not have prospects of success. The factors to consider in determining an application for condonation were enunciated by Holmes JA in Melane .v. Santam Insurance Co. Ltd 1962 (4) SA 531 (A) at 532. A party seeking condonation must show good cause why the “court must exercise the discretion in his favour and grant the condonation he seeks. Holmes JA stated the principle thus: “In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon consideration of all the facts and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are interrelated; they are compatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation.” The explanation advanced complemented by the shortness of the delay would influence one to condone the lateness of the applicant. The contention of the 1st respondent in opposing the condonation is based solely on the argument that applicant lacks prospects of success. Ex facie the grounds raised in the Founding Affidavit, the 1st respondent may be correct. However when regard is had to the entire record 1st respondent’s contention is not entirely correct. Given the shortness of the delay the prejudice if any that may be suffered by the 1st respondent if the indulgence to condone the late filing is granted is either non-existent or minimal. For these reasons we are of 5. 6. 7. 8. the view that the condonation sought should be granted. It is accordingly granted as prayed. The applicant association was registered in January 2000. The 1st respondent says he worked for the association from 2nd December 1995. He however did not challenge the evidence of the treasurer of the 2nd applicant Mr. Moqathi Mokete that said the Association was only registered in January 2000. 1st respondent testified at arbitration that he earned a salary M4,000-00 per month. He testified further that he tendered notice of resignation from applicant’s employ which ran from 1st June and ended 30th June 2009. 1st respondent claimed that the applicant failed to pay him his salary for June 2009. He referred a claim to the DDPR claiming payment of his June salary, severance pay as well as leave from December 2006 to June 2009. Mr. Mokete who testified on behalf of the applicant stated that although 1st respondent worked for the applicant from 2000 he was throughout that time until July 2006, self employed. He stated that the 1st respondent did not have a fixed salary. He worked as an Inspector and he paid himself by charging each vehicle on duty M5-00 per day. He testified that on the 28th July 2006, the applicant elected a committee of which he is the Treasurer. This committee (the Executive Committee) regularized and formalized 1st respondent’s employment. The committee resolved that the 1st respondent should be paid M4000-00 per month. Mr. Mokete testified that the 1st respondent was employed by the applicant formally from 28th July 2006. He testified further that he remained an employee of the 1st applicant right up to the time of his resignation (see p.2 of the typed record). He concluded by stating “I am not denying applicant’s claims but Mafube does not have money.” (p.2 of the typed record). The 1st respondent did not challenge Mr. Mokete’s evidence that he was formerly employed by the 1st applicant from 28th July 2006. 9. In her award the learned arbitrator awarded applicant leave for 4 30 days and severance pay from January 2000 to 2008. She said nothing about the June salary which the applicants had not disputed. There are certainly reviewable irregularities in the award in the light of the evidence adduced. 10. For their part applicant applied for review on the ground that the 1st respondent failed to join a Route committee which was admittedly formed in April 2009 just a month before the 1st respondent resigned. Applicant contends that upon formation of the Route Committee the 1st applicant ceased operations and the 1st respondent was inherited by the Route Committee as his employer. 11. This is denied by the 1st respondent. In this he has been supported by the chairman of the Route Committee Mr. Machesetsa Mohale who applied to intervene in the proceedings in order to clarify issues relating to 1st respondent’s employment. He confirmed that he knows 1st respondent as a former employee of the 1st applicant as Route Inspector, until his resignation. He denied that the 1st respondent was ever an employee of the Route Committee. 12. Mr. Mohale’s testimony confirms 1st respondent’s denial when he says he was never an employee of the Route Committee. This was also the evidence of Mr. Mokete at the arbitration both in chief and under cross-examination in which he confirmed that 1st respondent was an employee of the applicant association. His (Mr. Mokete) deposition in the Founding Affidavit in support of the Review Application saying the 1st respondent is an employee of the Route Committee directly contradicts his testimony at the arbitration. He is without doubt lying under oath and deserves to be punished as a mark of displeasure at his deliberate misleading testimony made under oath. 13. It follows from what we have said that the ground of review raised in the Founding Affidavit ought to be dismissed. There 5 are however other grounds on which the award of the learned arbitrator falls to be reviewed, corrected and to be set aside. These are the failure of the learned arbitrator to award payment of the June salary which the applicants did not dispute. Furthermore, the learned arbitrator erred in awarding severance pay for 9 years when uncontroverted evidence is that the formal employment of the 1st respondent only started on 28th July 2006. It follows that at the time of his resignation 1st respondent had exactly 3 years service. Using the learned arbitrator’s formula the amount of severance pay due to 1st respondent for 3 years ought to be M5,538-46 and not the M16,615-38 awarded. 14. In the circumstances the award of the learned arbitrator is reviewed in regard to the quantum due and payable to the 1st respondent as follows: Applicant shall pay 1st respondent his benefits as follows: i) ii) iii) June 2009 salary 30 days leave Severance pay TOTAL @ M4000-00 @ M4923-07 @ M5538-46 @ M14461-53 The amount to be paid within 30 days of the service of this award on the applicant. 15. If due process had been observed and Mr. Mokete called to account for his perjury, I would have ordered costs against him de bonis propris. He survives only because the court was not addressed on this issue. Accordingly we make no order as to costs. THUS DONE AT MASERU THIS 23RD DAY OF NOVEMBER, 2010 6 L. A. LETHOBANE PRESIDENT M. MOSEHLE MEMBER I CONCUR L. MOFELEHETSI MEMBER I CONCUR FOR APPLICANT: FOR RESPONDENT: MR. SETLOJOANE MR. MPOPO 6