Masupha v Motlohi and Another (LAC/REV/159/04; LC/REV/283/2006) [2008] LSLC 14 (25 June 2008)

IN THE LABOUR COURT OF LESOTHO LC/REV/283/2006 LAC/REV/159/04 HELD AT MASERU IN THE MATTER BETWEEN MOKHOLOKO MASUPHA APPLICANT AND KHAKA MOTLOHI DIRECTORATE OF DISPUTE PREVENTION AND RESOLUTION 1ST RESPONDENT 2ND RESPONDENT JUDGMENT Date: 07/05/08 Review of DDPR award – Rescission – DDPR refusing to grant an application for rescission of default award – Applicant failing to proffer reasonable explanation for failing to attend arbitration hearing- service of process- Notice of set down served on the 20 year old son of the applicant – such service effective and lawful in terms of DDPR Rules. There is no justifiable reason for the court to interfere with the DDPR award in the circumstances- Application dismissed 1. In this matter the applicant is seeking a review of an award of the DDPR, which refused to grant him a rescission of a default award granted against him. The 1st respondent who was 2. 3. 4. 5. employed by the applicant as a driver of a taxi referred a dispute claiming underpayments, payment in lieu of notice, unpaid wages and severance pay. According to the award of the learned arbitrator, the referral was served on the applicant (the employer) by registered post. The notice of set down was served at the homestead of the applicant, where the messenger of the court found twenty year old son of the applicant. According to the return of service the messenger of court served the notice of set down on Seeiso. However, on the date of hearing the applicant failed to appear or to be represented. The learned arbitrator allowed a 30 minutes grace period after which he proceeded to hear the claim of the 1st respondent in default of attendance by the applicant. Following the hearing a default award was handed down ordering the applicant to pay M5,978.85 to the 1st respondent representing underpayments for six months, payment in lieu of notice and severance pay for nine years. The award was issued on the 3rd March 2004. It was served on the applicant on the 20th April 2004. It is common cause that the applicant did not pay the 1st respondent as ordered by the DDPR. Neither did he seek to rescind the default award. On the 7th June 2004, the 1st respondent approached this court to have his award enforced in terms of section 34 of the Code read with section 228E (5) of Act No.3 of 2000. Applicant was summoned to appear before the President on Monday 12th July 2004, to explain why he had not complied with the DDPR award. The applicant met the President on the 24th June 2004, which was much earlier than he was summoned to appear. Be that as it may he was entertained and he explained that he never knew of the referral and that he would like to apply for rescission. The court granted him the indulgence. The applicant duly applied for rescission which was refused on the ground that he had not furnished the arbitrator with reasonable explanation for his failure to attend the arbitration proceedings. 6. 7. 8. The applicant has approached this court for the review of that decision. The thrust of his argument in support of the review is to be found in paragraph 8.2 of his Founding Affidavit. It is that he is not in willful default because he was never served with the notice of set down. When he motivated this submission before the DDPR applicant gave two versions. The first was that the notice of set down was served on one Rethabile who is the son of his (applicant) younger brother. He stated that the said Rethabile does not stay at his homestead and he could have just been visiting. The second version was that he asked his son Seeiso about the receipt of the notice of set down. Seeiso told him that he refused to accept the set down and the person who was serving it threw it to the ground and left. He also did not pick it he left it there. He stated that Seeiso told him that this happened inside the yard of his homestead. He averred that he had learned about service of the set down on Seeiso from this court and this is what led him to ask him about it. He contended that the service was not proper because Seeiso is a young man of 20 years and that the messenger of court should have sought an older person to effect that service. It is surprising where the applicant gets the version that the service was effected on his grandson Rethabile. The record of the learned arbitrator is clear the “respondent’s (applicant herein) notice of set down (was) received by Seeiso Masupha who is the respondent’s son, even though he refused to sign the document.” Applicant’s attempt to introduce Rethabile into the controversy can only be seen in the context of applicant’s attempt to hide the truth about the service of the process on him. In the process he left the arbitrator with two inconsistent versions of the process of service of the notice of set down, thereby leading the arbitrator to say the explanation is not reasonable and is unconvincing. 9. On the argument that if at all service was effected on Seeiso then it was improper because Seeiso was young, the learned arbitrator correctly referred to Regulation 11(1)(c) of the Labour Code (Directorate of Disputes Prevention) Regulations 2001, 4 which provides that where a document is to be served on a person: “the document may be served by leaving a copy of the document at the person’s residence with any person who is at least 16 years old and in charge of the premises at the time.” 10. This is precisely what the messenger of the court did; by leaving the document with Seeiso who was admittedly 20 years old at the time. The evidence which the learned arbitrator relied upon is that seeiso received the document, but refused to sign to evidence his receipt. Applicant’s evidence that Seeiso refused to accept receipt is inadmissible hearsay as Seeiso did not depose to any affidavit in support of that averment which is being ascribed to him. 11. In the circumstances the learned arbitrator correctly found that effective service was made on the applicant’s son who was above 16 years and was clearly in charge of the premises of the applicant at the time. Furthermore, the learned arbitrator was not convinced by the applicant’s explanation for failure to attend in as much as evidence indicated that proper service was done and applicant’s own explanation was contradictory and as we just found also entirely based on hearsay. There is in the circumstances of this case no justifiable reason for this court to interfere with the award of the learned arbitrator. Accordingly, the review application is dismissed and the applicant is ordered to comply with the order of the DDPR in referral no. A1641/03 within 14 days of the handing down of this judgment. There is no order as to costs. THUS DONE AT MASERU THIS 25TH DAY OF JUNE 2008 5 L. A. LETHOBANE PRESIDENT R. MOTHEPU MEMBER I CONCUR L. MOFELEHETSI MEMBER I CONCUR FOR APPLICANT: FOR RESPONDENT: MR. SHALE MR. Makholela 5