National Executive Committee of Construction of Allied Workers Union of Lesotho v Moeke (CIV/APN 297 of 2000) [2000] LSCA 141 (9 September 2000)

1 CIV/APN/297/2000 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: N A T I O N AL E X E C U T I VE C O M M I T T EE OF C O N S T R U C T I ON OF A L L I ED W O R K E RS U N I ON OF L E S O T HO A P P L I C A NT and T S E LE M O E KO R E S P O N D E NT J U D G M E NT For Applicants : M r. T. M a h l a k e ng For Respondent: M r. T. M o n y a ko Delivered by the Honourable M r. Justice T. Monapathi on the 9th day of September 2000 In these proceedings urgent orders w e re sought by the t wo Applicants as c an be seen f r om p a ge t wo of the notice of m o t i o n. T h e r e in a rule nisi w as sought calling u p on the R e s p o n d e nt to s h ow cause if a ny w h y: (a) R e s p o n d e nt shall n ot be o r d e r ed forthwith to refrain f r om r e m a i n i ng a nd visiting, a n d / or b e i ng at premises frequenting the offices of the S e c o nd applicant p e n d i ng the determination of these proceedings. (b) R e s p o n d e nt shall n ot be interdicted forthwith f r om unlawfully interfering with a n d / or dealing with the property of the Applicants p e n d i ng the finalization of these proceedings. (c) R e s p o n d e nt shall n ot be directed to refrain f r om unlawfully interfering with the officers a nd e m p l o y e rs of the Applicants in the execution of their duties in a ny m a n n er w h a t s o e v er p e n d i ng the determination of these proceedings. (d) R e s p o n d e nt shall n ot be o r d e r ed to p ay the costs of this application. (e) Applicants shall n ot be granted s u ch further a n d / or alternative relief. T he position h ad b e en that w h en a r g u m e nt w as first before C o u rt on the 8th S e p t e m b er 2 0 00 there h ad b e en an interim order m a de by my brother M o f o lo J substantially directing in t e r ms as p r a y ed for, subject to confirmation or discharge of the rule. T h e re w as filed of record an a n s w e r i ng affidavit the R e s p o n d e n t. It w as that process w h i ch h ad h ad an a n n e x ed letter d a t ed the 21st A u g u st 2 0 0 0. T h is I h a ve extensively c o m m e n t ed on in my ruling of the 31st A u g u st 2 0 0 0. I thereby granted the R e s p o n d e nt leave to h a ve filed an additional/ s u p p l e m e n t a ry affidavit in w h i ch he w o u ld speak a b o ut the circumstances of the writing of the letter a nd its contents in relation to the alleged resolution of the Central C o m m i t t ee of the S e c o nd Applicant. T h is w as particularly to explain to the C o u rt w h at transpired in the Central C o m m i t t ee m e e t i ng in c o n n e c t i on reasons for w h at a p p e a r ed to h a ve b e en an intention to w i t h d r aw the proceedings before this C o u r t. Applicants' affidavit in support of the application has b e en a very brief o n e. I need not go over it except to say a m o n g st others that it spoke about a meeting at which this R e s p o n d e nt w as suspended a nd that the meeting s e e ms to h a ve been premised on there being a n e ed or attempt or procedurally to h a ve the decision dealt with by the Central C o m m i t t e e. It noted that the C o m m i t t ee would decide whether to suspend or r e m o ve or do anything by w ay of ratification or disapproval of the decision taken by the National Executive C o m m i t t e e. M o re about it follows. Right from the outset I w as convinced that the Central C o m m i t t ee did sit a nd that it h ad to deal with the matter of the resolution (against the Respondent) of the National Executive C o m m i t t ee because it w as tabled. H o w e v er I am satisfied a nd it w as unanswerable that the Central C o m m i t t ee e n d ed up not dealing with the matter but reached a resolution that effectively side-stepped the matter. I am also satisfied that there h ad been, as one of the matters that caused the Central C o m m i t t ee not to resolve the matter, the substance or contents of the letter dated the 17th A u g u st 2 0 00 from Attorneys A . T. M o n y a ko & C o. T he terms of the letter w e re very clear. It w as addressed to the Secretary of the Executive C o m m i t t ee of the Applicants. Its w o r ds w e re clear a nd it said: " We represent Tsele M o e ko w ho received a notice to appear at I E MS on " 1 9 / 0 8 / 0 0 ". He has passed this notice to us for attention a nd reply direct while preparing for attendance thereat, he brought to us an application in the H i gh Court concerning h im a nd the matters pertaining to the charge against h i m. In the circumstance our instruction is to request y ou as we hereby do by this letter to postpone the hearing pending the o u t c o me of the matter in the H i gh C o u r t" ( My underlining) T he above is not on all fours a nd e v en contradicts w h at h ad b e en urged to be c o m m on cause n a m e ly that the suspension w as m a de pending a decision of the Central C o m m i t t e e. T he situation as I find it, is an a n o m a l o us o ne in w h i ch a Central C o m m i t t ee w h i ch h ad an obligation to deal with the Respondent's suspension with all the necessary speed, w as prevented f r om doing so by a letter f r om the Respondent's Attorneys, for the m o st spurious of reasons. I go on to say for the m o st nonsensical reason because w h e t h er the H i gh C o u rt w as seized with the matter or not the Central C o m m i t t ee w o u ld still h a ve to deal with the Respondent's suspension a nd charges against him. This w as the understanding. M r. M a h l a k e ng conceded as m u ch that despite that there w as no direct provisions in the Constitution stipulating the procedures following on or pending of the suspension, it appeared to h a ve been the practice a nd tradition of the said Applicants w h i ch no o ne seemed to question, that the Central C o m m i t t ee w o u ld deal with the matter. It also m a de sense that there h ad to be a f o r um for reviewing suspensions w h i ch might after all h a ve been irregularly arrived at or w h i ch m i g ht have no g o od reasons behind them. I failed to see a ny grounds for opposing the application. Circumstances s h o w ed clearly that there w as a suspension w h i ch w as brought before the Central C o m m i t t ee as said hereinbefore. In addition there w e re so m a ny things that I found to h a ve been c o m m on cause. Firstly, the proceedings w h i ch resulted in the Respondent's suspension w e re brought by the National Executive C o m m i t t ee as I did find. This w as unanswered by the R e s p o n d e nt in his answering affidavit. This w as confirmed by the placing of such a suspension before the Central C o m m i t t e e. Secondly, that the First Applicant held a meeting of the Second Applicant on the 5th A u g u st 2 0 00 a nd furthermore the R e s p o n d e nt w as in attendance. This again w as not denied. Thirdly, that the Respondent failed to account to the National Executive Committee w h en called u p on to do so on certain charges or challenges. Instead he staged a walkout. This again was not answered. Fourthly, that the National Executive C o m m i t t ee took a decision to suspend Respondent pending the hearing of proceedings by the Central Committee. This again w as not denied. I believed that the position as I found w as that there has been a valid suspension of the Respondent pending a disciplinary proceedings. I w as not persuaded that because this Respondent at s o me other time attended an arbitration award by U n i on (Second Applicant) it m e a nt that his suspension could have been removed by implication or otherwise by the Central Committee. If that w as so there should have been credible evidence before this Court that the suspension w as removed even indirectly. I therefore rejected as baseless the submission that Respondents' attendance at the arbitration award showed that he w as not suspended or his suspension was removed. This matter of the Respondent having been involved in an arbitration award as said above can clearly be characterized as irregular underhand and breach of the decisions of the Second Applicant due to wilful disobedience of the same. T he Respondent was invited by this Court on the 9th September 2 0 00 to specifically deal with the problems of the alleged removal of the expulsion and the intention to r e m o ve the case from the H i gh Court. See my ruling of the 31st August, 2000. In response to my directive of the 31st August 2000 the Respondent filed an additional affidavit. W h at he did most unfortunately w as to execute an affidavit which dealt with so m ay irrelevancies and not about the circumstances of the letter TM "4". N ot only that. He again m a de no c o m m e nt about that letter. It could have been a cardinal error in the beginning. It w as a cardinal sin o n ce it w as repeated. T h e re h ad b e en no c o m m e nt either by reference or otherwise to the contents of the letter. T he R e s p o n d e nt w as intent on rambling from left right a nd centre. For instance he digressed in paragraph 4 to speak about missing property, handing over a nd finally that the matter before C o u r t" h as been brought not to a proper forum, as there appear to be a friction in the U n i on see Sec.24 of the L a b o ur C o de N o . 24 of 1992." I h a ve never seen a ny response by a deponent bent on distraction a nd obfuscation of issues. I say so bearing in m i nd w h at my directive of the 31st August, 2 0 00 to the R e s p o n d e nt h ad been. On probabilities I did not find that anything stood in favour of the R e s p o n d e nt in seeking to indirectly r e m o ve his suspension. Neither w as he able to fight the prayers in the notice of m o t i on w h i ch w e re based on the suspension. It w as because he did not have a ny g o od grounds. I h ad o ne r e m a rk to m a k e. It w as in connection to the nature or behaviour of s o me officials of the S e c o nd Applicant w h i ch s h o w ed that they were complete strangers to the truth. I need not n ow point to specific d o c u m e nt except that w h i ch w as a m p ly s h o wn by M r. M a h l a k e n g. It appeared that the President of the said Applicant w as the chief culprit. He is in the habit of committing errors of getting involved in contradicting decisions w h i ch w o u ld a m o u nt to perjury if they were m a de under oath. He w as seen to be in o ne d o c u m e nt (contrary to Respondent's suspension) a nd in another d o c u m e nt seeking to r e m o ve that suspension by telling a blatant untruth the National Executive C o m m i t t ee h ad not sat to decide the Respondents' suspension. A g a in he a p p e n d ed his signature to the letter of the 20th August 2 0 00 w h i ch recorded m at the Executive C o m m i t t ee h ad instructed M r. M o e ko (Respondent) to resume his duties (having been suspended) as if that h ad been the decision of the Central C o m m i t t e e. He w e nt on to sign to the letter that spoke about withdrawal of the case from the H i gh Curt whereas the true position, as appeared in the said Attorneys letter of the 17th August 2000, w as to postpone the proceedings of the Central Committee and not to withdraw the case. In conclusion my understanding was that the suspension of the Respondent had been valid. Furthermore it was premised on a resolution of the National Executive C o m m i t t ee as aforesaid, there being a need to charge the Respondent or remove that suspension if the Central C o m m i t t ee saw fit to do so. My order w as that the Respondent should be charged a nd brought before Committee within thirty (30) days if he was charged. T he suspension would stand in the meantime. T he suspension could only be effective if it w as complied with hence the prayers in the notice of motion. If suspensions are disregarded, as it is alleged Respondent did, there will be indiscipline, disorganisation and chaos in every association in this country. It is a good policy a nd is in pursuit of good order to be fostered that lawful orders or decisions of associations acting in their committees should not be flouted with impunity. I have found as proved serious circumstances and mischief on the part of the Respondent which call for the validation of the suspension a nd granting the prayers in the notice of motion. I do this with an award of costs to the Applicants. I also issued out a warning. It was that Orders of the Court were to be obeyed and complied with. Be they temporary or final. I surely will not take it lightly that the Respondent is reputed to have gone against the interim order. He can be assured that proper action will be taken in appropriate circumstances. Prayers 1, 2 (a) (b) (c) and (d) of the notice of motion were granted. T. M O N A P A T HI J U D GE