Lehloenya and Others v Lesotho Telecommunications Corporation (now Telecom Lesotho) (LAC (CIV) 8 of 2003) [2008] LSLAC 1 (18 April 2008)

L. А. C. (CIV) N O .8 OF 2 0 03 IN T HE L A B O UR A P P E AL C O U RT OF L E S O T HO In the matter between:- T U MO L E H L O E N YA T S I L O N Y A NE M A H A SE P H I L L IP L E T L A T SA M O L I B E T S A NЕ L E T L A KA K H O P I SO S H EA J O S E PH Q A BA S E B A KI M A K H U T LA K H A U TA M A R IE B R O WN R A J O E LE S E C H O C HA S E N Y A NE M O I T H E RI M O H A PI P E I SO M A T H A F E NG M O T L A T SI M A P O O A NE M O F E R E F E RE M O S H E OA M O T L A T SI P H A R OE L E FA M A F A TA T H E T S A NE M O R O M E L LA L E M O H A NG F A N A NA R O SA K H O E TE S E N A T LA M A K AE T E B O HO T S O E NE L I K O T SI Q O B O S H E A NE R E T S E L I S I T S OE L I T L A LI T H A TO T S A L O NG K H E T H A NG M O L O I S A NE S E L LO K H I BA R A M A T A B OE R A M A T O B OE M A L E F E T S A NE K H EO A L B E RT L E S A O A NA M A T L A LA K A E A NE L E N Y A K HA M A B EA 6th 8th 28th 1st A P P E L L A NT 2nd A P P E L L A NT 3rd A P P E L L A NT 4th A P P E L L A NT 5th A P P E L L A NT A P P E L L A NT 7th A P P E L L A NT A P P E L L A NT 9th A P P E L L A NT 1 0th A P P E L L A NT 1 1TH A P P E L L A NT 1 2th A P P E L L A NT 1 3th A P P E L L A NT 14™ A P P E L L A NT 1 5th A P P E L L A NT 1 6th A P P E L L A NT 1 7th A P P E L L A NT 1 8th A P P E L L A NT 1 9th A P P E L L A NT 2 0th A P P E L L A NT 2 1st A P P E L L A NT 2 2nd A P P E L L A NT 2 3rd A P P E L L A NT 2 4th A P P E L L A NT 2 5th A P P E L L A NT 2 6th A P P E L L A NT 2 7th A P P E L L A NT A P P E L L A NT 2 9th A P P E L L A NT 3 0th A P P E L L A NT 3 1ST A P P E L L A NT 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 S O N K I E. THOKOANE GLADYS SEBATANE MOTLATSI MOTSOANE MPOBOLE RAMPOBOLE THABO SEKONYELA APANYA MAPANYA JOHN BERENG KHASIPE KHASIPE and 3 2nd APPELLANT 3 3rd APPELLANT 3 4th APPELLANT 3 5th APPELLANT 3 6th APPELLANT 3 7th APPELLANT 3 8th APPELLANT 39™ APPELLANT 4 0th APPELLANT 4 1st APPELLANT 4 2nd APPELLANT 4 3rd APPELLANT 4 4th APPELLANT 4 5th APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT 5 1st APPELLANT 5 2nd APPELLANT 5 3rd APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT APPELLANT 6 1ST APPELLANT 6 2nd APPELLANT 46th 47th 48th 49th 50th 54th 55th 56th 57th 58th 59th 60th LESOTHO TELECOMMUNICATIONS CORPORATION (now TELKOM LESOTHO) RESPONDENT HON. MR JUSTICE S. N. Р Е 18th APRIL, 2008. CORAM DATE : : Е, J.: Introduction [1] This labour appeal is a sequel of a long standing saga between some erstwhile employers of the now defunct Lesotho Telecommunications (LTC) Corporation over their entrenchment which effectively terminated their employment on the 9th July 1999. It is common cause that their claim was presented on the 1 5th February 2000, thirty six days after the lapse of six months period after their dismissal. [2] Fundamental to this labour dispute in casu was the issue raised by respondent (LTC) that in terms of the then section 70 (1)1 of the Labour Code Order 1992, the Labour Court had no jurisdiction to hear the matter unless condonation is made mero motu, by the court or upon application. Section 70 of the Order read:- " Time-limit (1) A claim for unfair dismissal must be presented to the Labour Court within six months of the termination of the contract of employment of the employee concerned. 1 Now repealed by section 19 of the Labour Code (Amendment) Act No.3 of 2000. Е Е Т Р Е Е Т (2) The Labour Court may allow presentation outside in subsection satisfied the period prescribed that the interests of justice so demand. " of a claim if (1) above [3] The issue of prescription was dealt fully by this Court in its judgment delivered on the 6th November 2 0 0 32 where it was found that when the original application was filed on the 15 February 2000, the six months period had elapsed, and since no application for condonation had been moved and granted, the Labour Court had no jurisdiction in the matter.3 [4] Condonation not having been granted in the Court a quo this court held then that the Labour Court "did not have jurisdiction to go into the main application at all " [5] The judgment of this Court directed that The order of the President of the Labour Court dismissing the application is hereby set aside. - The Appellants (applicants in court a quo) are given 30 days from the date of this judgment - if they so wish — a formal application for condonation, the same to be heard within 30 days of its filing. " 2 LAC (CTV)No.4 of 2003. 3 Lesotho Brewing Co. v Labour Court President CIV/APN/435/95 per Ramodibeli J. as he then was) [6] It was indeed clearly up to the applicants to have timeously taken advantage of this benevolence, as they could not validly contend that their claim w as filed within six months. In fact, some 36 days had gone by. [7] In passing it should be noted that it has been common cause throughout that the substantive issue in this matter is one of dismissal related to operational requirements of the employer4 and the Labour Court had jurisdiction to adjudicate over the matter if it had been timeously presented. [8] It seems that w h en the matter again was re-heard by the Labour Court in 2004 the applicants took a firm position that despite the order/directive m a de by this Court - it w as not necessary to make an application for condonation and that it was in any case optional because the Order used the phrase "if they so wish" and further that since the section 70 had been repealed, there was no need to apply for condonation. [9] If Mr Mosito - then counsel for the applicants - certainly seems to have encountered some interpretational problems with the Order made by this Court, he had to comply with the Order because he had no right to appeal against it.5 4 Section 226 (1) (c) of the Labour Code Order 1992 5 Section 38 A (4) of the Labour Code (Amendment) Act No.3 of 2000 [10] In our view, the Order/directive made by this Court in its judgment of 6th November 2003 was misinterpreted by the applicant's counsel in importing optionality into its compliance and furthermore to criticize its wisdom before the Labour Court. [11] The Labour Court President (Mrs Khabo) then held as follows:- "By having not placed before this Court a condonation as ordered by the Labour Appeal Court, complying with the order as instructed have been frustrated applicants. Assuming for a moment been presented, that the application would have been filed out of time. the Court would still be faced with the this Court's that such an application application in efforts by the had problem The cumulative with no alternative, accordingly but to dismiss dismissed with costs. " effect of these considerations leaves the present application. this Court It is [12] The appellants grounds of appeal are the following:- The Learned Deputy President erred and/or misdirected herself holding as she did that condonation was required Court to hear and determine the matter before in the Labour for it. came to trial after to have hold the repeal of the Procedural the The learned Deputy President ought matter Section (section 70) of the Labour Code Order No.24 of 1992, there was no based longer need to apply for condonation on operational was the expiration of the 3 year brought period contemplated requirements to the Labour Court before in respect of dismissals long as such application by the law. that since so -2- The learned Deputy President erred and/or misdirected herself interpretation of the judgment holding as she did that the proper the Labour the LAC/REV/No.4/2003, mandatory. in of in condonation to render application on p. 15 of judgment Appeal Court was for The learned Deputy President the discretionary application pursuant to the fact Order No. 24 of 1992 had been on that ought to have hold institute to it was condonation that section 70 of the Labour Code repealed. applicants -3- The learned Deputy President erred and/or misdirected herself the parties holding as she did and deciding without address that, even the condonation had been made or presented, faced with the problem out of time. in to inviting if for the court would still be filed that the application would have been the application her on issue The learned Deputy President ought to have invited the parties address her on the propriety regard being had to so time limits allowed to in her judgment. " of even filing to application such an [13] The purport of the grounds of appeal is indeed to ask this Court to revisit and review its own Order of 6th November 2003 and to hold that since section 70 of the Code had been repealed, there was no need "to apply for condonation". [14] On this appeal - whether its order of the 6th November 2003 was right or wrong - this Court should not sit on review over its own judgment or order - but should limit consideration to whether the judgment of the Labour Court was correctly or wrongly decided. [15] In its judgment of the 31 May 2004, the Labour Court was unpersuaded to proceed to hear the application without condonation having first been granted. It declined "to question the wisdom of the judgment of a court superior to it." [16] Whilst the interpretation given by the Labour Court on the second leg of the order directing that "if they so wish" the appellant could file an application for condonation, cannot be faulted, we hold that it is a misconception on the part of Mr Thoahlane to argue that the Labour Appeal Court went beyond what had been asked for. [17] After the 9th January 2000, the respondent LTC in law acquired a vested right consisting of an immunity from suit in respect of the appellants' cause of action. In Minister of Safety and Security v Molutsi - 1996 (4) SA 72 AD per Marais JA. at p.90 F-H had this to say:- the 'procedural' and those which are classified as "Lest it be thought that it has been overlooked, something must be statutes said about the distinction which is often when interpreting those between which are not. The former are regarded prima facie as being applicable even to situations which arose before their enactment whereas The latter are not so regarded prima imprecision of the dichotomy and the sometimes elusive nature of it the distinction has been frequently remarked upon. I do not find to say that while necessary there can be no vested right in purely procedural provisions, it is that even although a statute may have now well recognized if it adversely affects vested rights which procedural dimensions, are not purely procedural, tanto it will be construed as pro prospective. " the debate. It is sufficient to review facie. In our view this right could not be stripped away by section 19 of Labour Code (Amendment) Act on 2 5th April 2000. [18] After 9th January, 2000 the fact remained that LTC was vested with a substantive and absolute defence to the appellant's claim - namely prescription, and therefore section 19 should not be construed as having been intended to divest such vested right; in other words section 19 is to be construed as being prospective.6 This legal position was guaranteed by section 18 of the Interpretation Act of 1977. [19] Section 18 of the Interpretation Act 1977 reinforces the protection of vested right by providing that the repeal of a procedural provision "shall not affect any right, privilege obligation or liability acquired or incurred under the Act or provision so repealed. " [20] Immunity from suit acquired by respondent was a substantive right that then vested in it or it could be used as a defence if the appellants sought to resuscitate their claim after the 9th January 2000. Therefore when the application was lodged by the appellants on the 15th February 2000 respondent had been enjoying the right (immunity of suit) and a right or defence they could have raised or pleaded if the appellants, without having been granted condonation, presented their claim for unfair dismissal. 6 See Transnet v Ngcezula - 1995 (3) SA 539 - presumption against retrospectivity. [21] With complete disregard of section 70, the appellant's counsel was not also present in court when his application was dismissed by the Labour Court in November 2000. He cannot fall back on the fortuitous amendment of the Labour Code on the 25th April 2000. [22] The Curtis rule The old case of Curtis v Johannesburg Municipality 1906 TS 308 laid down that:- "...the presumption that the Legislature intended its legislation to affect only future matters does not apply where the legislature in question deals with procedural matters including the case where an enactment providing for a specified procedure is simply repealed and not replaced у any other procedural provision [23] Section 70 of the Labour Code Order was clearly a provision dealing with a purely procedural matter - presentation of a claim after a cause of action arose; its repeal was therefore a procedural change which affected all causes of action whether they arose prior to the appeal or thereafter. [24] The Curtis rule has been qualified in recent times.9 Section 70 of the Labour Code Order 1992 governed the procedural enforceability of a 7 Code 1.14.7, Maxwell an Interpretation of Statutes 12 Ed at 215. 8 Ngcezula - p.545 E-F 9 Protea International (Pty) Ltd v Peat Marwick Mitchell - 1990 (2) SA 566 at 573 A-B per Joubert JA claim based on unfair dismissal. Generally interpreted, section 70 provided that such claims could be enforceable within six months of their occurrence; after the expiration of six months, the employer could not be sued by the dismissed employee unless condonation had been granted by the court. Once the six months period expired, right of immunity of suit accrued to the employer to raise a defence of prescription if sued after the expiration. This right was by no means affected or abrogated by section 19 of the Labour Code Amendment Act No.3 of 2000 in April 2000. That right remain extant and in tact.30 [25] In the English case of Yew Bon Tew vs Kenderaan Bas Mara [1982] 3 All ER 833 PC L o rd Brightman noted that expressions "retrospective" and "procedural" can sometimes misleading and may lead one astray - with one interpretation seeking to regulate the course of the proceedings and with another interpretation reviving or destroying the cause of action itself.11 [26] Section 70 of the Labour Code Order ca be interpreted in three parts: (i) the claimant must lodge the claim for unfair dismissal within six months; (ii) the sanction for non-compliance with (i) is that the employer shall not be liable; (iii) the sanction will be lifted if the claimant applies for and obtains special leave to lodge the claim out of time. Part (i) is purely procedural; Part (ii) is prescriptive and a right accrues to the employer if claim is presented after the lapse of six months - and this is a matter of substantive and not procedural law. 10 Section 18 of the Interpretation Act 1977 11 Ngcezula (supra) page 549 (G-I) Granting of condonation under part (iii) has consequences:- if condonation is refused, the employer's claim is extinguished and if granted, the merits of the claim are justiciable. [27] Under our law, the protection of accrued rights has finally been guaranteed under section 18 of the Interpretation Act. [28] In these circumstances, we hold that the appeal has no merit and is therefore dismissed with costs. [29] The appellants have the right to appeal12 to the Court of Appeal within six weeks or to again reopen the matter before the Labour Court as previously directed. JUDGE OF LABOUR APPEAL COURT I agree: I agree: For Appellants For Respondent : : Mr Thoahlane Mr Woker 12 'Muso vs Minister of Labour and Employment & Others - Constitutional case No.4 of 2005.