Lehloenya and Others v Lesotho Telecommunications Corporation (now Telecom Lesotho) (LAC/CIV/APN 4 of 9) [2011] LSLAC 5 (24 February 2011)

1 LAC/CIV/APN/4/09 IN THE LABOUR APPEAL COURT OF LESOTHO In the matter between:- TUMO LEHLOENYA TSILONYANE MAHASE PHILLIP LETLATSA MOLIBETSANE LETLAKA KHOPISO SHEA JOSEPH QABA SEBAKI MAKHUTLA KHAUTA MARIE BROWN RAJOELE SECHOCHA SENYANE MOITHERI MOHAPI PEISO MATHAFENG MOTLATSI MAPOOANE MOFEREFERE MOSHEOA MOTLATSI PHAROE LEFA MAFATA THETSANE MOROMELLA LEMOHANG FANANA ROSA KHOETE SENATLA MAKAE TEBOHO TSOENE LIKOTSI QOBOSHEANE RETSELISITSOE LITLALI THATO TSALONG KHETHANG MOLOISANE SELLO KHIBA RAMATABOE RAMATOBOE MALEFETSANE KHEO ALBERT LESAOANA MATLALA KAEANE LENYAKHA MABEA 1ST APPLICANT 2ND APPLICANT 3RD APPLICANT 4TH APPLICANT 5TH APPLICANT 6TH APPLICANT 7TH APPLICANT 8TH APPLICANT 9TH APPLICANT 10TH APPLICANT 11TH APPLICANT 12TH APPLICANT 13TH APPLICANT 14TH APPLICANT 15TH APPLICANT 16TH APPLICANT 17TH APPLICANT 18TH APPLICANT 19TH APPLICANT 20TH APPLICANT 21ST APPLICANT 22ND APPLICANT 23RD APPLICANT 24TH APPLICANT 25TH APPLICANT 26TH APPLICANT 27TH APPLICANT 28TH APPLICANT 29TH APPLICANT 30TH APPLICANT 31ST APPLICANT LETHUSANG PHEKO MOTLATSI MPEETE MAKHOASE PALI TANKISO LEFULEBE KOSE POTSANE LEBABO M. LEKHOOA THABANG MPO ADRIES HANI DANIEL HOOHLO PHOLO MOSEBO LEQALA LESEO LEKHANYA MAPESELA ISAAC BELEME DANIEL SESING THABANG NTSANE PETLANE SEETANE MAPHELETSO MOSENENE TELEKOA LEBUSA SEABATA MOLEPA TUMELE MOTHOKO TSOKA THOKO MAOELA MAOELA (EN 350) KHOBATHA MOLAPO SONKI E. THOKOANE GLADYS SEBATANE MOTLATSI MOTSOANE MPOBOLE RAMPOBOLE THABO SEKONYELA MAPANYA MAPANYA JOHN BERENG KHASIPE KHASIPE And 32ND APPLICANT 33RD APPLICANT 34TH APPLICANT 35TH APPLICANT 36TH APPLICANT 37TH APPLICANT 38TH APPLICANT 39TH APPLICANT 40TH APPLICANT 41ST APPLICANT 42ND APPLICANT 43RD APPLICANT 44TH APPLICANT 45TH APPLICANT 46TH APPLICANT 47TH APPLICANT 48TH APPLICANT 49TH APPLICANT 50TH APPLICANT 51ST APPLICANT 52ND APPLICANT 53RD APPLICANT 54TH APPLICANT 55TH APPLICANT 56TH APPLICANT 57TH APPLICANT 58TH APPLICANT 59TH APPLICANT 60TH APPLICANT 61ST APPLICANT 62ND APPLICANT LESOTHO TELECOMMUNICATIONS CORPORATION (LTC) (now TELECOM LESOTHO) RESPONDENT JUDGMENT (on Recusal Application) CORAM : HON MR JUSTICE S. N. PEETE PANELLIST : 1. Mr. Mothepu 2. Mr. Mofelehetsi DATE : 24TH FEBRUARY, 2011 *** Peete J.: Background [1] This labour matter involves about 62 former employers of the erstwhile Lesotho Telecommunications Corporation which saw its last days sometime in 1999, after a New Zealand Consultant – John Crook Consulting – recommended a turn-around in 1998 which included a major retrenchment. The 62 applicants were subsequently retrenched on the 26th July 1999. This was common cause. In law, the time limit must be determined from that date. [2] Having instructed KEM Chambers, the applicants only launched their application questioning the lawfulness of their retrenchment on the 15th February 20001 – some twenty (20) days after the expiration of the six months period as stipulated by the now repealed section 70 of 1 LC 20/2000. the Labour Code Order No. of 1992. Their claim was certainly out of time by those 20 days and condonation had to be sought under section 70 (2) of the Order. This repealed section read in full:- “70. Time limit (1) A claim unfair dismissal must be presented to he Labour Court within six months of the termination of the contract of employment of the employee concerned. (2) The Labour Court may allow presentation of a claim outside the period prescribed in sub-section (1) above if satisfied that the interest of justice so demand. (My underline) [3] As I ruled in my judgment dismissing the applicants’ appeal from the Labour Court on the matter of condonation, the respondent “had a right not to be sued” unless condonation had been granted on (LTC) application. In their wisdom, the applicants’ attorneys held different view – arguing that since section 70 was repealed by the Labour Code Amendment in April 2000, application was not necessary. They were wrong – as my judgment indicated. I ordered that the applicants return to the Labour Court and – “if they still wished to pursue their claim” – to make an application for condonation. This was again misinterpreted by counsel for applicants that I was giving them an option whether or not to apply for condonation. They elected still not to apply. [4] Instead of making an application for condonation, the applicants then later applied that the matter be heard by the Labour Appeal Court sitting as a court of first instance in terms of section 38A of the 2000 Labour Amendment. It reads: “38A. (3) notwithstanding the provisions of section (1) the Judge of the Labour Appeal Court may direct that any matter before the Labour Court or a matter referred to the Directorate for arbitration in terms of section 227 be heard by the Labour Appeal Court sitting as a court of first instance.” [5] Rule 14 (4) of the Labour Appeal Court Rules (Legal Notice 158 of 2002) provides that good cause must be shown to the Judge of the Labour Appeal Court why the direction should be given under section 38A. [6] For reasons given in my judgment I granted their application under section 38A and directed that this applicants’ case be heard by the Labour Appeal Court sitting as a court of first instance. This decision has not been appealed against by the respondent.2 [7] In that judgment an obiter dictum statement was made by me to the effect that in view of the fact that the applicants’ case on retrenchment had taken up to a decade since 2000 without finality, it was indeed in the interests of justice to all concerned that the issue of condonation be foregone and merits of retrenchment be traversed once and for all before the Labour Appeal Court. 2 Rule 14 (2) of the Labour Appeal Court. [8] This bona fide view was directly put to counsel of both sides in chambers and – I should say – in greatest confidence. I regret to say that what I said about condonation was taken up by counsel for LTC and is the present ground for my recusal. [9] Having heard counsel on both sides about a reasonable perception that as regard condanation, I would not be impartial and having considered the trite principles that should guide a judge whose recusal is being sought, I made an ex tempore decision that it was only very proper that I recuse myself from the preliminary application for condonation. The following are my reasons: [10] Section 12 (8) of the Constitution of Lesotho reads:- “12 (8). Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within reasonable time.” (my underline) [11] Every judge has taken a solemn oath to administer justice according to the Constitution and to the law and to discharge this fairly, without fear or prejudice; in other words to be impartial. The guiding principles are not cast in stone and the particular circumstances and facts of each case are always important in guiding the judge whether he or she ought to recuse. Recusal is not to be readily made. There exists a trite presumption of judicial impartiality and there should be shown cogent facts upon which recusal is being sought. [12] The fact that in my judgment and later in chambers, I gave a bona fide a genuine advice to counsel for respondent to forgo the condonation application can create a perception in a reasonable person that perhaps I would grant the condonation. It was a genuine advise seriously considered without prejudice to either side – but a perception can easily be created. [13] Whereas the special circumstances of this case cry for finality condonation is a double – edged relief in that it can extinguish the right of the respondent not to be sued unless the court grants condonation and it, also can resuscitate a right hitherto unenforceable! Good and convincing reasons have to be shown why the claim was not made within the period stipulated under law; such may be ignorance of the relevant statutory provisions; indigency; professional negligence or intransigence or recalcitrance; or any other bona fide ground. There are old sayings in law that: “…ignorance of the law is no excuse…”, or that “…the law does not come to the aid of the slumbering…”! [14] All things considered, I however hold that the submissions presented by the respondents’ counsel Mr Woker are not unreasonable and I have decided to recuse myself from hearing the condonation application. [15] It is for the Honourable Chief Justice to make an appointment of a Judge of Appeal to hear the condonation application and, I hope, to hear the rest of the main application made by respondents in February 2000 – some eleven years ago. [15] For these reasons, I recuse myself. JUSTICE S. N. PEETE JUDGE OF THE LABOUR APPEAL COURT For Applicants For Respondent : : Mr Rafoneke (KEM Chambers) Mr Woker (Webber Newdigate)