R v Molapo (CRI/T 1 of 95) [1998] LSCA 23 (10 March 1998)

IN T HE H I GH C O U RT OF L E S O T HO CRI/T/1/95 In the matter between: R EX vs M O Q E T HI MOLATO J U D G M E NT Delivered by the Honourable Mr. Justice W. C. M. Maqutu on the 10th day of March, 1998 The accused is charged with the murder of Lefu Kao. The incidents that culminated in the death of the deceased took place on the 13th November, 1993. On the 2nd December, 1997, w h en the matter first came before me, the accused pleaded guilty to culpable homicide on the advice of his counsel Mr. Nchela. Mr. Lenono for the crown did not accept the accused's plea. Mr. Nchela for the accused applied for reference of the accused to a psychiatrist for examination. The Crown supported accused's application. The court asked Mr. Lenono for the Crown to / arrange for the accused's psychiatric examination. T he court also m a de the following order:- "Accused is referred for psychiatric examination. H is bail is cancelled a nd accused will r e m a in in custody f r om this day forward." On the 2 4 th February, 1998, w h en the matter c a me before court., both M r. Nchela for the accused a nd M r. L e n o no for the C r o wn agreed that the medical report s h o w ed the accused w as fit to stand trial although he w as confused at the time of arrest. T he court w e nt over the psychiatrist report a nd agreed that w i th b o th counsel that the conclusion of the psychiatrist is that the accused is fit to stand trial. I will return to the medical evidence because, the court called the psychiatrist at the e nd of the C r o wn a nd the defence cases. T he evidence in the depositions m a de at the preparatory examination w as substantially not disputed. Nevertheless the C r o wn a nd the defence selected a few witnesses to give viva voce evidence to clariry a nd elaborate on a few facts for the benefit of the court a nd the accused. It w as decided for convenience ( w h en the depositions w e re read) to treat the admitted depositions as if actual witness h ad given evidence in court. T he deposition of M a m p o no Phatsoa w as called P W 1, that of Mafrance Motjatji P W 2, that of Malekhetho K h a ng PW3 a nd that of Detective Lance Sergeant M o s o eu P W 4. M a m p o no Phatšoa P W1 w as from a funeral, on the w ay h o m e, w h en she m et the accused. Accused w as on horseback. Accused, asked w h at PW1's n a me is. Accused then asked the m an he w as with to c o me a nd as he said this, he produced a knife from his pocket. Accused said they should kill a w o m a n, P W1 does not remember. Accused rushed at P W1 a nd attempted to stab P W 1. P W1 ran away. Accused a nd the other m an were complete strangers to her. P W1 says she did not hear w h at the other m an tried to say to her as she is deaf. All she can say is that she h ad not provoked the accused in a ny w a y. Mafrance Motjatji P W2 states that accused c a me to w h e re there w as a removal of m o u r n i ng cloth ceremony at M a n k o e n g. She w as asked by accused's grandmother to serve the accused with porridge. This she did. The porridge w as hot a nd at the request of the accused, no sugar w as added to the porridge. Accused c o n s u m ed the porridge. Other people were served the s a me porridge a nd they ate it. Accused did not finish the porridge. P W2 stated that she has never been accused of bewitching anybody through food. She is surprised that there is n ow an allegation of witchcraft levelled, against the porridge which w as eaten try several other people. This porridge is n ow being linked to the death that occurred. P W2 says she never quarrelled with accused. As a m e m b er of accused's family she has never received a report that the accused is mentally disturbed. P W3 Malekhetho K h a ng is the accused's grandmother. Accused is the son of the daughter of P W 3. She has never heard of a ny mental disturbance associated with accused. The relations between P W3 and the accused are good and the accused respects her. Accused h ad even given one of his daughters to PW3 to look after P W 3, as P W3 is old. On the 13th November, 1993 accused c a me to see P W3 and accused's daughter on the w ay to a funeral at Molikuoa's. Accused w as served with food. After that he asked for porridge (motoho). M o t o ho is sour porridge which people in. this country drink. P W3 says she asked PW2 to give accused the porridge he w as asking for. P W2 served the accused with this porridge without sugar at the request of the accused. Accused did not finish the porridge. Accused w ho w as with a companion the left. Later in the d ay she w as informed by their h e a d m an that accused h ad killed a person. P W3 says she w e nt to w h e re the deceased w a s. T he deceased lay below the road a nd the accused w as sitting nearby. While she w as at the scene of the killing, m en expelled her a nd threatened to assault her. P W3 says people of her village have often referred to her as a witch. N ot long after this incident accused's uncle c a me to fetch accused's daughter. Accused used to be on good t e r ms with her a nd w as always served with food by P W3 without incident or complaint. P W4 w as Detective lance Sergeant M o a o e u. He received a report about the deceased's death a nd w e nt to the scene of crime. He found a corpse w h i ch he undressed a nd found it h ad o ne stab w o u nd in the middle of the chest. T he Chief h a n d ed the accused a nd a knife to P W 4. P W4 took the b o dy to the mortuary. Accused w as subsequently charged with m u r d er after giving an explanation. T he knife that w as used by the accused on the deceased w as an exhibit before the Magistrate at the preparatory examination. It h ad since been misplaced. This presented no problems as both the C r o wn a nd the defence admitted facts surrounding it a nd that accused h ad used it on the deceased. T he post-mortem report h a n d ed by consent s h o ws deceased died of a stab w o u nd on the left side of the chest on the lateral inferior aspect. There w as a laceration of the left lung. T he cause of death d ue to left h a e m o p n e u m o t h o r ax and left, lung laceration a nd collapse. T he first witness to give s w o rn viva voce evidence before me w as P W5 M o h a le K ao of M o s a l e m a n e. He stated that he k n o ws the deceased w ho is his y o u n g er brother. He k n o ws the accused w ho is also his relative. On the date the deceased died they h ad gone to b u ry a child of his n e p h e w. At this funeral they w e re with deceased. T he funeral took place without a ny notable incident. W h en accused a nd Molato Phatla left, for h o m e, they w e re following the deceased w ho w as on horseback. Before they left for h o me Molato Phatla h ad told h im there w as something strange about the accused. Molato Phatla even suggested that the deceased should lend the accused the horse. Molato Phatla said accused w as strange a nd it s e e m ed the accused w o u ld not be able to go h o m e. Accused, Molato Phatla a nd deceased left PW5 behind. P W5 says not very long thereafter at d u sk he w as notified of the death of his younger brother. He found his younger brother dead b e l ow the road a nd the accused sitting nearby with several people. Accused admitted killing deceased. Accused in a n s w er to his questions said he does not k n ow w hy he killed, the deceased. He found the accused tied up in case he attempted something. The accused w as peaceful and normal. They handed the deceased and his brother's corpse to the police the following day. They had guarded the corpse the whole night. The Crown called P W6 Khotso M o k u po w ho gave sworn evidence. P W6 says on the day in question at about sunset, he w as untethering cattle w h en accused said (to the m an he w as with) they should kill a w o m an w ho was ahead of them. Accused was angry and he w as about 8 00 paces from him. The accused w as on horseback. The accused barred the w ay of that w o m a n. The w o m an shielded herself behind the m an the accused w as with. W h en the accused went for this w o m a n, she ran away. Accused then stabbed the m an he was with, with a knife. That person fell and rolled d o wn the road and fell below it. Accused then said he had stabbed the w o m an w ho was stopping h im from going h o m e. Accused w as still on horseback w h en he stabbed this m a n. A m an came w ho had been apparently following the accused and the deceased asked PW6 to help him because the accused w as mad. This man's n a me w as Molato. At the time Molato was saying accused w as m a d, people from the village w e re coming. T h ey used a rope belonging to PW6 to fasten the h a n ds of accused. Accused w as peaceful a nd relaxed just before a nd after his h a n ds w e re fastened. T he accused's knife w as taken from him. Accused said he did not k n ow w hy he killed deceased. He looked n o r m al w h en he answered these questions. He seemed not to k n ow w hy he h ad killed the deceased. While accused w as on horseback he w as m a k i ng a noise. He said he h ad stabbed a w o m an w ho stopped h im from going h o m e. It did not m a ke sense to P W6 for the accused to stab a m an w h en he claimed he h ad stabbed a w o m a n. After this accused got d o wn from the horse a nd h a n d ed over the knife voluntarily. Accused did not react in a ny w ay w h en his h a n ds w e re tied up. T he people tied h im up because they thought he might r un away. T he c r o wn then called Molato Phatla P W 7. Duly s w o rn P W7 stated that he is related to the deceased although they did not live in the s a me village. On the material day they got to the family w h e re there w as going to be a funeral early. They decided to pass on to the place of accused's grandmother PW3 to see accused's daughter a nd that of his cousin. They found the accused's grandmother not at h o me as she h ad gone to w h e re a m o u r n i ng cloth w as being removed. P W7 a nd the accused got there a nd found the accused's grandmother PW3 there. T he accused's grandmother P W3 complained to the accused that people h ad killed her daughter ( m e a n i ng accused's m o t h e r ). Accused said no one could be blamed for the death of his mother. His m o t h er fell off a cliff due to drunkenness. Accused's m o t h er h ad died six m o n t hs before that day. P W7 continued his evidence a nd said they w e re given a meal. U n a s k ed P W 3, the accused's grandmother brought porridge a nd gave it to the accused. Accused d r a nk it but P W7 refused to share it with accused. P W7 says he did so because he w as suspicious and h ad heard that she w as a witch. In the view of P W7 she might bewitcher her grandson unintentionally. P W7 says he did not m e n t i on this fear to the accused. They then w e nt to the funeral. After they h ad been given a m e al P W7 s aw accused removing his blanket a nd shirt. W h en P W7 stopped h i m, accused said he w as going to b uy sweets for the child but w e nt to a place w h e re there w as no shop. P W7 stopped accused. T h en he reported to P W5 (the brother of accused) that accused w as giving h im problems. He h ad never seen accused in that condition. Accused seemed to be m a d. P W5 said they should go h o m e. P W7 says on their w ay h o m e, they m et the deceased. He w a r n ed / deceased of the accused's condition a nd that accused might assault t h em or r un away. Deceased offered accused his horse. T h ey walked. a long distance but at Lekhalong, accused dismounted a nd said they should go back, he w o u ld like to sleep at his grandmother's place as it w as late. Deceased took his horse a nd left t h em arguing. Eventually accused w as persuaded to continue the journey h o m e. Accused then r an a nd caught up with the deceased a nd got on to the horse of the deceased. They w e re going with deceased a nd accused h ad given the deceased his hat a nd stick. P W7 w as following at a distance a nd the deceased a nd accused w e re sometimes out of view as the road has u ps a nd d o w n s. At s o me stage, w h en he c a me into view, he s aw deceased fall d o wn a nd roll d o wn the road while accused w as still on horseback. P W7 ran towards t h em a nd heard a w o m an say "whose child is this w ho wants to kill us?". P W7 w e nt to the deceased w ho could not talk a nd w as on the point of death. P W7 took 3 stones a nd w e nt towards the accused. Accused said he h ad stabbed a w o m an w ho w as stopping h im from going h o m e. P W7 shouted to P W6 to call people a nd bring a rope. People c a me a nd accused removed his blanket, got d o wn the horse a nd threw a w ay the bloody knife. People c a me a nd asked accused w h at h ad happened, but accused said he did not k n ow h ow it happened. P W5 (the brother of deceased) w as sent for. T h ey guarded the corpse a nd the police c a me the following day. Accused h ad said he w as dizzy a nd could not see well s o me time after drinking the sour porridge. Accused a nd deceased w e re friendly. Accused's h a n ds w e re tied as a precaution as he h ad killed a person. At the e nd of the C r o wn case, the accused gave s w o rn evidence. He stated that he has a wife a nd five surviving children a nd that he is not in full time e m p l o y m e n t. He survives by doing o dd jobs here a nd there. On the day that is the subject matter of these proceedings, he w e nt to Phatšoe with P W7 Molato Phatla. T he purpose w as to attend a funeral. As it w as early he w e nt to the h o me of his g r a n d m o t h er P W 3. Accused's daughter lived with P W3 at that time. P W3 w as not at h o m e. He found her at the h o me of a family that w as removing a m o u r n i ng cloth. Accused's grandmother P W3 on seeing the accused cried a nd said people of the village w e re accusing her of witchcraft. Accused asked for sour porridge from her after they h ad eaten m e at a nd mealie pap. W h en accused h ad partaken of the sour porridge he took a very small quantity of beer from a small container. After that he hurried to the funeral he h ad c o me for. On the w ay to the funeral accused, told P W7 that he h ad a head- ache. They w e nt to the cemetery a nd the h o me of the bereaved. After this accused does not r e m e m b er anything. W h en he again b e c a me a w a re of his surroundings his h a n ds w e re fastened with a rope. T he deceased w as nearby dead. He w as asked w hy he h ad killed the deceased. He could not explain. He w as subsequently h a n d ed to the police. He h ad a knife in his possession for purpose of carving meat. Accused h ad never h ad a ny sign of m a d n e ss before then. He h as not h ad a ny attack of m a d n e ss since that day. Accused states he m u st have been m ad to have killed the deceased with w h om they h ad never quarrelled. T h ey h ad always h ad friendly relations with the deceased. T he knife that w as exhibited in court as having been used by h im to kill deceased w as his. Accused later instructed his uncle to fetch his daughter f r om his grandmother P W 3. Accused says PW3 h ad cried w h en he s aw h im a nd asked h im if he w as going to take a w ay his daughter. It w as then that she added that people called her a witch. Accused b l a m ed the sour porridge for his misfortune. Before this he did not believe his grandmother P W3 w as a witch. I ordered the psychiatrist to be supplied with the preparatory examination record, a transcript of the evidence of the accused a nd the report he h ad m a de about the accused. I also ordered that the psychiatrist be s u b p o e n a ed to c o me a nd give evidence. Dr. S. Shaikah gave his s w o rn testimony after stating his qualification. These included Bachelor of medicine a nd surgery a nd a diploma in psychological medicine. Dr. Shaikah h ad practised as a psychiatrist since 1 9 69 a nd h ad b e en w o r k i ng in Lesotho since 1 9 9 2. In his report dated 11th D e c e m b e r, 1 9 9 7, he h ad stated that, at that time the accused s h o w ed no signs of mental illness a nd that he is fit to stand trial. Dr. Shaikah h ad expressed a desire to do further w o rk on the accused. D u r i ng his examination on the 11th D e c e m b e r, 1 9 9 7, Dr. Shaikah h ad m a de the following f i n d i ng about the accused:- " He w as co-operative during the interview. No signs of restlessness, agitation or psychomotor retardation w e re observed. His affect w as adequate a nd congruent. No formal thought or perceptual disorder w e re elicitable. His attention s p an a nd concentration are within n o r m al limits. I m m e d i a te a nd recent m e m o ry are intact. He h as circumscribed loss of m e m o ry of alleged incident in w h i ch / he genuinely believed that the accused's g r a n d m o t h er w as a witch. People s u ch as P W7 are a danger to society, indeed P W7 even subsequently influenced the accused to believe his o wn g r a n d m o t h er w as a witch. During accused's state of confusion, accused did not believe his g r a n d m o t h er w as a witch. Otherwise accused w o u ld not have d e m a n d ed that they should return to the h o me of his g r a n d m o t h er to sleep there. All evidence including that of P W 5, the brother of the deceased s h o ws that accused w as alleged to give problems even before he left for his h o me after the funeral. Accused's m i nd b e c a me disturbed a nd deranged all of a sudden. T he deceased helped the accused a nd put accused on his o wn horse a nd walked h o me on foot next to the accused. On the w ay for no apparent reason accused decided to stab a w o m an he did not k n ow with a knife. Unfortunately accused stabbed the deceased while accused w as still riding the horse of the deceased. Accused says he m u st h a ve b e en m ad a nd everybody w ho gave evidence of his condition says he w as m ad at the time. It is by no m e a ns the first time the court is faced with a case of temporary insanity. In the case of Rex v Moseli 1 9 77 L LB 2 26 this court w as faced with a case of mental disturbance of a temporary he stabbed his distant relative, M r. Lefu. He could describe details up to burial a nd journey b a ck to deceased h o u s e. He felt heat in the b o dy a nd then b e c a me confused a nd h as no recollection of w h at h a p p e n e d. He b e c a me a w a re of himself after a few h o u rs a nd f o u nd himself in police custody. He is oriented as to time, place a nd person." Dr. Shaikah h a n d ed in his medical report. During his s w o rn testimony Dr. Shaikah stated that after reading the preparatory examination record a nd the accused testimony he believes the accused suffered possibly f r om psychogenic a m n e s ia at the time he killed the deceased. This w as of short duration. Dr. Shaikah stated that if the accused h ad b e en brought for examination immediately after the incident, blood samples a nd other data w o u ld h a ve b e en collected to m a ke his diagnosis m o re certain. W h at he ventures as his opinion to the court is to h im the best possible diagnosis he c an m a ke u n d er the circumstances. Dr. Shaikah said he w o u ld like to perform an abreaction test on the accused. This is a f o rm of hypnosis induced by special drugs introduced in accused's system intravenously. This lowers his conscious resistance a nd m i g ht facilitate the recall of forgotten events or lost m e m o r y. Dr. Shaikah nature a nd w h i ch w as not recurrent Dr. Shaikah says the accused's condition of psychogenic a m e n s ia w as t e m p o r a ry a nd not likely to be recurrent, although he cannot be absolutely sure of his diagnosis. In the case of Rex v Moseli at page 2 41 Cotran CJ s u m m a r i s ed the findings of the psychiatrist as follows:- " C o m b i n ed with the alcohol the accused c o n s u m e d, it produced loss of awareness a nd contact with his surroundings, a nd a mental illness w h i ch he described as "psychosis" of toxic origin developed. T he psychosis h ad hallucinatory, paranoid, confusional a nd schiozophrenic features. He w as of opinion that during this period the accused suffered f r om a m e n t al disorder a m o u n t i ng to temporary acute insanity." In this case alcoholic or hallocenegic or intoxicating drugs are not a feature. There is no evidence of acute stress or fatigue but nevertheless Dr. Shaikah finds the only diagnosis possible as psychogenic amnesia. In the case of R v Tsukulu Makaba 1 9 77 L LB 2 89 there w as stress caused by grief following u p on the death of the wife of the accused. For no apparent reason accused developed a belief that a poor old w o m an w as the witch w ho h ad caused the death of his wife. Accused in a s u d d en unexpected bout of temporary insanity killed that poor w o m a n. A nd from that point accused's insanity w as g o ne a nd he b e c a me n o r m al again. Dr. N t s e k he stated that the t e rm insanity is in that case a layman's description not a medical or psychiatric one. T he o n us of proving insanity to a ny degree is on the accused on a balance of probabilities once he is fit to plead. In this case the accused says he m u st h a ve b e en m ad w h en he m et the misfortune of killing the deceased. Evidence of C r o wn witnesses support h i m, a fact M r. Lenonoconcedes. I c an only associate myself with w h at M o f o k e ng J said in R Tsukulu Makaba 1 9 77 LLR at page 2 34 to the effect that: T he findings a nd conclusions of the psychiatrist are fully b o r ne out by the evidence before m e. W i t h o ut a ny hesitation, therefore I h a ve c o me to the conclusion that the accused w as insane at the time he c o m m i t t ed the offence with w h i ch he is charged a nd w as not responsible, in law, for his action at the time the act w as done." M o f o k e ng J at page 2 32 of R v Tsukulu Makaba h ad already referred to Dr. V. R. Ntsekhe's finding to the effect that "in his opinion the accused w as temporarily insane at the time of the alleged offence". I can only say in passing that there w as no witchcraft in the sour porridge at all. I do not believe P W3 could bewitch her o wn grandchild. A c c u s ed did not believe his g r a n d m o t h er w as a witch during his insanity. Otherwise he w o u ld not h a ve w a n t ed to go b a ck h o me to go a nd sleep there. PW7 Molato Phatla influenced all people including the accused that the sour porridge he d r a nk w as bewitched. This is not so, but accusations of witchcraft are easy to m a ke a nd h a rd to refute. It is usually innocent old w o m en w ho are falsely a nd unjustly accused of witchcraft. This evil ought to cease because the innocent suffer, but superstition is unfortunately hard to eradicate. People who hold these beliefs of witchcraft are genuine in their beliefs but mistaken. It remains for me to determine the accused's fate. In Bex v Tsitso Matšaba CRI/T/18/89 Lehohla J did what Cotran CJ and Mofokeng J did in the cases of Rex v Moseli and Bex v Tsukulu Makara to which I have referred. In all these cases the accused had been found to have been temporarily insane. I therefore in terms of Section 172(3) of The Criminal Procedure and Evidence Act 1981 return a special verdict and find that:- The accused is guilty of unlawfully killing the deceased, but was insane at the time he did the act. Therefore the accused shall be kept in custody in some prison pending the signification of the King's pleasure. My assessors agree. This verdict does make it possible for the psychiatrist to make further investigations and give the accused appropriate medical treatment if it is called for. For the Crown For accused : Mr. A. M. Lenono : Mr. Nchela W. C. M. MAQUTU JUDGE quoted f r om the following f r om Synopsis of Psychiatry by H. K a p l an a nd B. Sadock about accused's condition:- " A m n e s ia usually terminates very abruptly a nd recovery is generally complete with f ew recurrences." Dr. Shaikah concluded his evidence by saying with the constraints u n d er w h i ch he w as operating, the balance of probabilities favours the diagnosis of psychogenic amnesia. Dr. Shaikah w as questioned about people's belief in witchcraft. He said science discards witchcraft as a fact. Nevertheless this superstition is everywhere a nd affects the lives of those w ho believe in it strongly. W h en people cannot rationalise an event they resort to belief in the supernatural to explain a w ay that event. T he witnesses that gave evidence before me w e re in general satisfactory. T he only witness w h o se evidence w as biased w as that of P W 7. His evidence w as channelled towards proving that the accused h ad b e en bewitched by accused's g r a n d m o t h er P W 3. P W7 tried to p ut accused's g r a n d m o t h er P W3 in the worst possible light. Fortunately the evidence of other witnesses s u ch as P W2 s h o ws P W7 w as w r o n g. P W7 put across to the villagers his witchcraft theory. T he result of this w as that villagers b e c a me so hostile to the accused's g r a n d m o t h er P W3 that they almost assaulted her. Although P W7 w as mistaken, I realise CIV/APN/361/94 IN T HE H I GH COURT OF L E S O T HO In the matter between: S O L O M ON M A S IU A P P L I C A NT A ND L E S O T HO A G B I C U L T U R AL D E V. B A NK R E S P O N D E NT J U D G M E NT Delivered by the Honourable Mr. Justice W. C. M. M a q u tu on the 18th day of May, 1998 On the 19th September, 1997, applicant brought an application for: (a) An order declaring the purported dismissal unlawful, unlawful a nd therefore invalid a nd void ab initio. (b) An order directing respondents to restore the status quo ante by reinstating applicant to his substantive post at the respondent b a n k. (o) An order directing respondent to p ay costs of this application. Applicant w as a b r a n ch m a n a g er at T h a ba Tseka in a branch, of respondent. He w a s, according to the letter dated 17th February, 1 9 9 3, s u m m a r i ly dismissed following a B o a rd resolution of the 2 nd February, 1 9 9 3, at its 3 5 th meeting. T he respondent raised the preliminary objections of prescription a nd w a nt of jurisdiction before merits could be gone into. T h e re w as no question, of prescription but the question of u n d ue delay r e m a i n ed very disturbing. It w as on jurisdiction that a r g u m e n ts h ad to be addressed before merits could be dealt with. T he reason being that a special tribunal the L a b o ur Court h ad b e en established to deal with questions of master a nd servant. In particular this tribunal w as established inter alia to deal w i th dismissals f r om e m p l o y m e n t. Since this involved dismissal a nd there w as a labour Court, the question w as whether this Court should entertain this matter. Section 24( 1 )(i) of the Labour Code provides: (1) The Court shall have the power, authority and civil jurisdiction— (i) to determine whether an unfair dismissal has occurred and, if so, to award appropriate relief. The Labour Court is a special tribunal not a court of law in the traditional sense. See Morali v President of Industrial Court and Others 1987(1) SA 130. In fact the labour Court does not function as a court of law even though it discharges a judicial function. See Kloof Gold Mining Co. v National Mine Workers Union 1987(1) SA 598 at pages 605 J to 606A. It will be noted that the term "unfair dismissal'1 over which the Labour Court has jurisdiction is not defined. In Slagment (Pty) Ltd. v Building Construction and Allied Workers Union & Ors. 1955(1) SA 742, it will be observed that summary dismissal can be an unfair labour practice where an employer fails to hold the audi alteram partem principle. In Section 66(2) of the Labour Code more is said about unfair dismissal: - "...dismissal will be unfair unless... The employer can...show that he or she acted reasonably...in terminating employment." This wording is broad enough to cover unlawful dismissal. There is a possible interpretation that the Labour Court has a "broader jurisdiction than the court in that it is not limited to questions of law as such. But it is specifically intended for dealing with issues of equity and fairness in matters under its jurisdiction. Further more in dealing with matters under its jurisdiction equitably it takes cognisance to lawfulness of conduct complained of. Lawfulness as such therefore should in itself not bar it from exercising its jurisdiction. See the case In re Isaacs v Bloch 1990(4) SA 597 at page 601 H. Section 66 of the Labour Code is directly linked with Section 24(l)(i) of Labour Code on "unfair dismissal". Consequently Section 66 has to be read along with Section 24(l)(i) in order to determine whether this court has jurisdiction or not. The relevant portions of Section 66 of the Labour Code that are under consideration are the following: (1) An employee shall not be dismissed, whether adequate notice is given or not, unless there is a valid reason for termination of e m p l o y m e n t. ( 8) A ny other dismissal will be unfair unless, having regard to circumstances the employer can sustain the b u r d en of proof to s h ow he h as acted reasonably in treating it as the reason for terminating e m p l o y m e n t. ( 3) W h e re the employee is dismissed for reasons connected w i th the capacity to do the w o rk the employee is e m p l o y ed to do or for reasons connected with conduct at the w o rk place, the employer shall be entitled to h a ve an opportunity at the time of dismissal to defend himself against the allegations m a d e. It seems to me that unfair dismissal could well cover a ny g r o u nd of dismissal that is not specifically spelled out in Section 6 6. Indeed w h at applicant w as s u m m a r i ly dismissed for also covers the w o rk place. If it does not, it is covered u n d er Section 6 6 ( 2 ). T he Labour Court in my view h as jurisdiction in the matter before m e. This does not in a ny w ay affect this court's p o w e rs of judicial review. A m o ng the p o w e rs of judicial review that this court has, is to see A... that all people, administrators and tribunals observe the principles of natural justice. A m o ng these is the audi alteram partem principle. The Labour Code had given all employees a right to a hearing before dismissal. In other words as I see it, summary dismissal is a denial of the audi alteram partem principle unless it is preceded by a hearing. In the case of A Makhutla v Lesotho Agricultural Bank, C of A (CIV) No.1 of 1995 (unreported), the High Court had declined to exercise its review jurisdiction in the mistaken belief that it has no jurisdiction. In the case before me, applicant did not go to the Labour Court and pass to this court on review. This case of Makhutla is not in point. The High Court has jurisdiction where a tribunal has acted irregularly or illegally by not exercising a jurisdiction it has or exceeding its jurisdiction. In the case of Attorney General v Lesotho Teachers Trade Union & Another C of A (CIV) No.29 of 1995 proceedings had been directly instituted in the High Court as in this case. Steyn JA was disturbed by the broad jurisdiction that the Act seemed to have been conferred by implication on the Labour Court. Consequently he said:- "The words "a matter provided for under the Code" are of general import, are not limited in any way and are very wide in meaning. The fact that "exclusive" jurisdiction is conferred and "ordinary or subordinate courts" (whatever meaning is to be attributed to these words) are not permitted to exercise civil jurisdiction, is but another indication of the need to limit the meaning ascribed to the words in question." Steyn JA then noted that when it comes to the jurisdiction of the High Court "which is a court established by the Constitution there has to be an express provision excluding its jurisdiction and cited Browde JA words in Makhutla v Lesotho Agricultural Development Bank (supra) with approval. The facts in Attorney General v Lesotho Teachers Trade Union & Another (supra) were entirely different, this court was declining jurisdiction to restrain acts that were clearly unlawful although they were not covered by Section 34 of the Labour Code merely because they were labour related. While this court should not accept the term "ordinary or subordinate court" to exclude its jurisdiction (because for this to be so the statute has to be express) it should not allow the matter that could conveniently be settled in tribunals and subordinate courts to be brought before it. In particular in respect of the Labour Court Steyn JA in Attorney General v Lesotho Teachers Trade Union & Another said: A... "In essence the Labour Court is a court of equity enjoined to keep the scales of justice in balance as between the conflicting d e m a n ds of employer a nd employee... Therefore great care m u st be taken to ensure that the ambit of its jurisdiction is not extended to matters which are not compatible with the purpose for which it w as not created... It m u st be stressed that our courts should be astute to ensure that the powers of the Labour Court to adjudicate are strictly confined to matters that are trade disputes stricto censu, or matters strictly identifiable as issues contemplated by the legislature as defined by Section 24." I h a ve already said "unfair dismissal" is covered by Section 24(l)(i). It seems to me that the Labour Court has jurisdiction w h e re a person is dismissed summarily. I have already said the audi alteram partem rule has been m a de into a right for all workers or employees. W h e re this right is violated, the Labour Court has jurisdiction. It is classified an unfair dismissal within the m e a n i ng of Section 66(2) of the Labour Code. Therefore it is an "issue contemplated by the legislature as defined "by Section 24". It seems to me that in dealing with unlawful dismissal, the Labour Court in providing redress a nd in dealing with this issue it exercises a broader jurisdiction than simply the issue of dismissal as such. It deals with fairness in its equitable sense as well. Could it "be that applicant brought the case before me because he h ad delayed so m u ch that he considered his claim to be time-barred in