Director of Elections V Tuoe Hants'i (LAC/CIV/A/18/2023) [2024] LSLAC 6 (15 April 2024)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU LAC/CIV/A/18/23 LC/56/2023 In the matter between: DIRECTOR OF ELECTIONS 1st APPELLANT INDEPENDENT ELECTORAL COMMISSION 2nd APPELLANT CHAIRMAN OF THE DISCIPLINARY 3rd APPELLANT HEARING and TUOE HANTS’I RESPONDENT Neutral citation : Director of Elections and 2 Others v Tuoe Hants’i [2023] LSHC 61 CIV (15 April 2024) Page | 1 CORAM : KHABO J., ASSESSORS : MR P. MAKHETHA MR MOLEFI L. J HEARD : 10 APRIL 2024 DELIVERED : 15 APRIL 2024 SUMMARY Employment Law - Appeal - Interpretation of a court order - Respondent going beyond seeking the interpretation of the order of the Labour Court in LC/41/2023 by seeking other new prayers that did not form part of the order granted by the court - The Labour Court also misdirecting itself by entertaining such other prayers that did not form part of the order in LC /41/2023 - Appellant appealing against this judgment on the basis that the Labour Court did not have jurisdiction to determine the other issues that did not form part of LC /41/2023 - Court dismisses the orders that were not the subject of LC/41/2023 and only confirms the orders interpreting the court’s order in the said case. Page | 2 ANNOTATIONS Statutes and subsidiary legislation Labour Code (Amendment) Act, 2000 Cases cited Lesotho Maboee Moeko v Maluti Mountain Brewery LAC/CIV/A/07/11 (Pty) Ltd `Makhauhelo Mabuse v Officer Responsible for Mafeteng Criminal Investigation Division and 3 Others (CIV/APN/147/2019) [2021] LSHC 27 Ministry of Public Works and Transport and Others v Lesotho Consolidated Civil Contractors (Pty) Ltd (C of A (CIV) No. 9/2014 [2014] LSCA 11 (17 April 2014) Mophato oa Morija v Lesotho Evangelical Church LAC 2000 - 2004 The Prime Minister and 7 Others v Mahlomola Moses Manyokole CIV/APN/463/2020 Other jurisdictions South Africa Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) Page | 3 S v Wells 1990 (1) SA 816 Page | 4 JUDGMENT KHABO J., Introduction [1] The Respondent was engaged by the Independent Electoral Commission (IEC), 2nd Appellant herein, as Manager, Public Relations until the termination of his contract of employment on 11th August, 2023. This termination was pursuant to a recommendation of a disciplinary panel which found him guilty of gross insubordination, a verdict confirmed by the 2nd Appellant. An overview of events that led to this application will provide a better insight into the dispute at hand. Background to the dispute [2] On 08th June, 2023 Respondent received a letter from the 1st Appellant, Director of Elections, informing him of 2nd Page | 5 Appellant’s intention to institute disciplinary proceedings against him for gross insubordination.1 To it was attached a notice of disciplinary hearing and a charge sheet containing charges preferred against him and further informed him of the date of hearing on 16th June, 2023. [3] This hearing was postponed to 28th June, 2023. The Respondent replied to the said letter by acknowledging receipt thereof but further went on to raise some concerns over the charges levelled against him and further requesting that he be legally represented at the impending hearing. [4] The IEC responded by a letter dated 27th June, 2023 written by the Human Resource Manager in which it informed him that he can only be represented by a co - employee.2 Disillusioned by this refusal, he approached the Labour Court for an order compelling the 3rd Appellant to allow him legal 1 Annexure “TM 1” to the originating application p. 21 of the record of proceedings 2 Annexure “TM 10” to the originating application p.36 of the record of proceedings Page | 6 representation in the disciplinary proceedings.3 This application was unsuccessful. [5] The hearing proceeded as scheduled on 28th June, 2023. In the course of the hearing, the Respondent tabled his request for legal representation before the Chairperson, but he refused. Aggrieved, the Respondent left the hearing midstream and rushed to the Labour Court4 to stop the 3rd Appellant from proceeding with the hearing until he is allowed legal representation. [6] Appellants unsuccessfully opposed this application. They were ordered to allow the Respondent legal representation. The order granted by the Labour Court on 01st August, 2023 read: The Applicant is granted permission to be represented by a legal practitioner of his own choice in the ongoing disciplinary hearing. 3 Attached to the founding affidavit as annexure “IEC 2” 4 LC/41/2023 Page | 7 [7] The hearing proceeded on 11th August, 2023 where it left off on 28th June, 2023. Respondent and his Counsel requested that the hearing commence de novo, but the Chairperson insisted on proceeding from where the hearing left off. The matter before this court emanates from Respondent’s insistence that the hearing commence de novo as opposed to a continuance of the disciplinary hearing that commenced on 28th June, 2023. [8] The use of the words “ongoing” in the order seemed to have caused the above stalemate with contradictory perspectives of the order, with Appellants interpreting it to mean that the hearing should start where it left off and the Respondent and his Counsel, on the other hand, holding the view that the hearing should start afresh, with him having secured legal representation. [9] Faced with this impasse, the Respondent and his legal representative left the hearing and instituted a case before the Labour Court5 wherein it sought the following prayers: 5 LC/56/23 Page | 8 (a) Dispensation; (b) That the Honourable Court gives its interpretation and consequences of its judgment and/or final order and or decision that it made on the 01st August 2023 in LC/41/2023; (c) The disciplinary enquiry against the Applicant that proceeded on the 11th August 2023 be stayed pending finalization hereof; (d) Third respondent’s role of chairmanship including making a recommendation or findings on the outcome of the disciplinary hearing against the Applicant be stayed pending the determination of this application; (e) The disciplinary proceedings instigated against the Applicant and held and continued without legal representation from the beginning of such proceedings on the 28th June 2003, be directed to start de novo with him having legal representation of his own choice; (f) The disciplinary proceedings instigated against the applicant and held and continued without legal representation from the beginning of such proceedings on the 28th June 2023 up to and including the 11th August 2023, be directed to start de novo with him having legal representation of his own choice; Page | 9 (g) … (h) That any execution or application, enforcement of the decision/ outcome to be made or made by the second respondent acting pursuant to the recommendation and or report issued by the third respondent pertaining to the disciplinary hearing against the applicant be nullified; (i) … (j) The granting of any further and/or alternative relief. [10] In the meantime, the 3rd Appellant proceeded with the disciplinary hearing to finality, found the Respondent guilty of gross insubordination and recommended a dismissal which was subsequently confirmed by the 2nd Appellant. [11] Coming back to LC/56/23, the Labour Court heard the matter on 07th September, 2023 and delivered its judgment on 21st September, 2023 granting the following reliefs that: Page | 10 (1) The disciplinary hearing that led to applicant’s dismissal is null and void; (2) Any decision taken by the 2nd respondent acting on the recommendation and or decision of the disciplinary chairperson is null and void ad of no force and effect; (3) The 2nd respondent is ordered to start the disciplinary hearing de novo allowing legal representation from commencement to completion of the disciplinary hearing; (4) There is no order as to costs. Appellants not satisfied with this judgment instituted the current appeal, which is opposed by the Respondent. Grounds of appeal [12] Appellants’ grounds of appeal are essentially two, namely: Page | 11 (a) Whether the learned Deputy President had jurisdiction to decide over the purported interlocutory application which now had new substantive prayers; (b) That by ordering nullification of the disciplinary proceedings the Labour Court granted an order that was not sought. Appellants’ case [13] In motivating these grounds, Appellants’ Counsel, Advocate Shale, argued that the learned Deputy President did not confine himself to the interpretation of his order but went overboard by making a determination on the fairness of the dismissal hence an order declaring the disciplinary hearing that led to Respondent’s dismissal null and void and further ordering that the decision of the disciplinary Chairperson is null and void and of no force or effect. Respondent’s case Page | 12 [14] In reaction, Respondent’s Counsel, Advocate Kalake, relying on this court’s decision in Maboee Moeko v Maluti Mountain Brewery (Pty) Ltd6 confirmed by the Court of Appeal in Maluti Mountain Brewery (Pty) Ltd v Moeko Maboee.7 insisted that the learned Deputy President did not pronounce himself on the fairness or otherwise of the dismissal but simply nullified the disciplinary proceedings that the 3rd Respondent started where he previously left off despite the fact that the Respondent had no legal representation prior to the order granted by the Labour Court. Analysis [15] Reflecting on the orders granted as they appear in paragraph 11 above, the learned Deputy President in his order (1), namely, that “[t]he disciplinary hearing that led to applicant’s dismissal is null and void” granted an order that was not sought by the Respondent. This militates against the trite principle that litigants should not be granted reliefs not 6 LAC/CIV/A/07/11 7 C of A (CIV) 51/2013 Page | 13 sought, a principle stated over and over in various decisions of this court including Mophato oa Morija v Lesotho Evangelical Church8 and Ministry of Public Works and Transport and Others v Lesotho Consolidated Civil Contractors (Pty) Ltd.9 [16] There is, however, another aspect which is whether it was in order for the learned President to have granted order (2) which had, anyway, been sought in prayer (h), to the effect that “[a]ny decision taken by the 2nd respondent acting on the recommendation and or decision of the disciplinary chairperson is null and void and of no force or effect.” My answer to this is in the negative. Prayer (h) read: [t]hat any execution or application, enforcement of the decision/ outcome to be made or made by the second respondent acting pursuant to the recommendation and or report issued by the third 8 LAC 2000 - 2004 536 at 361 9 (C of A (CIV) No. 9/2014 [2014] LSCA 11 (17 April 2014) Page | 14 respondent pertaining to the disciplinary hearing against the applicant be nullified; [17] There are, therefore, two aspects to this case, the grant of a prayer that was not sought as well as the granting of a prayer that went beyond its mandate, which was to interpret its order. This case is distinguishable from Maboee Moeko v Maluti Mountain Brewery (Pty) Ltd (supra) in that there the Labour Appeal Court had been requested to declare the employer’s decision to deny the Appellant legal representation unfair. The court declared the refusal unfair and ‘nullified’ the disciplinary proceedings and on grounds, inter alia, that the employer’s Disciplinary and Grievance Procedures did not specifically exclude legal representation.10 [18] The Labour Court had confirmed the employer’s position that the employer was entitled to refuse the Appellant legal representation because its disciplinary code did not provide for it. The court had not been called to provide an ‘interpretation’ 10 Maboee Moeko v Maluti Mountain Brewery (Pty) Ltd LAC/CIV/A/07/11 at para 35 at p.16 Page | 15 but to ascertain the fairness or otherwise of the employer’s decision not to allow the Applicant therein, Mr Maboee, legal representation. The law [19] In approaching the Labour Court in LC/56/2023 the Respondent ought to have just confined itself to requesting it to explain its order on whether or not it intended that the disciplinary proceedings commence de novo or not. As a general rule, once the court has pronounced itself on a matter it cannot revisit it because it becomes functus officio. This general rule was enunciated in Firestone South Africa (Pty) Ltd v Gentiruco AG11 and cited with approval in The Prime Minister and 7 Others v Mahlomola Moses Manyokole12 and in `Makhauhelo Mabuse v Officer Responsible for Mafeteng Criminal Investigation Division and 3 Others13 where the court stated that: 11 1977 (4) SA 298 (A) at 306 F -307G per Trollip JA., 12 CIV/APN/463/2020 at p. 1 13 (CIV/APN/147/2019) [2021] LSHC 27 (25th March,2021) at p. para. 3 at p. 3 Page | 16 The general principle now well established in our law; is that, once a court has duly pronounced a final judgment or order; it has no authority to correct, alter or supplement it. The reason is that it thereupon becomes functus officio; its jurisdiction in the case having been fully and finally exercised, its authority over the subject - matter has ceased. [20] There are, however, a few exceptions to that rule which are mentioned in the old authorities and have been authoritatively accepted by this court. Thus, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement in it one or more of the following cases:14 (a) the principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, which the court overlooked or inadvertently omitted to grant …. 14 Firestone Supra quoted in The Prime Minister v Manyokole para at pp 4 -5. See also: S v Wells 1990 (1) SA 816 at 820 C - G). Page | 17 (b) the court may clarify its judgment or order, if, of a proper interpretation, the meaning thereof remains obscure ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter “the sense and substance of the judgment or order… (c) the court may correct a clerical arithmetical other error in its judgment or order so as to give effect to its true intention… this exception is confined to the mere correctio of an error in expressing the judgment or order, it does not extend to altering its intended sense or substance … (d) where counsel has argued the merits and not the costs of a case … but the court, in granting judgment, also makes an order concerning the costs, it may thereafter correct, alter or supplement that order.” [21] This exception finds expression in Section 24 (2) (k) of the Labour Code (Amendment) Act, 200015 which gives the Labour Court power “to resolve any ambiguity in its own award or decision” when brought to its attention. 15 Act No. 3 of 2000 Page | 18 Analysis [22] According to Firestone (supra) the power to correct, alter or supplement may occur, inter alia, where the court may clarify its judgment or order, if a proper interpretation or meaning thereof becomes obscure, ambiguous oy otherwise uncertain so as to give effect to its true intention, provided it does not thereby alter “the sense and substance of the judgment or order.” [23] Looking at the prayers sought in LC/56/23, the court a quo interpreted its order, but went further to grant other orders that were not sought nor granted in LC/41/23, the subject of interpretation in LC/56/23. In this court’s opinion, the learned Deputy President went overboard. He had only been called upon to interpret its order in LC/41/23. On the strength of principles espoused in Firestone (supra), he could only revisit his order with a view to clarifying it and giving effect to its true intention and not to “alter the sense and substance” of Page | 19 the order. The court ended up drifting to granting prayers that were not related to LC/41/23. Conclusion [24] The appeal partially succeeds because, the court a quo in granting an order to the effect that the disciplinary hearing that led to applicant’s dismissal is null and void as well as nullifying the disciplinary process and declaring the decision taken by the 2nd Appellant, acting on the recommendation of the Chairperson of the disciplinary panel null and void and of no force or effect, erred because these were not part of the prayers granted in LC/41/23 for which an interpretation was sought. The court is not persuaded to order costs because both parties are partially successful. Page | 20 ORDER [25] The Court makes the following order: (a) The appeal partially succeeds in that, Prayers 1 and 2 granted by the court a quo are dismissed; (b) The court confirms order No. 3 of the judgment in LC/56/2023 which reads that: ‘the 2nd Respondent [now 3rd Appellant] is ordered to start the disciplinary hearing de novo, allowing legal representation from commencement to completion of the disciplinary enquiry.’ (c) There is no order as to costs. _________________ F. M. KHABO JUDGE Page | 21 For the Appellants : Adv., S. Shale assisted by Adv., M. Mjezu For the Respondent : Adv., E. T. Kalake Page | 22