Nkuebe and Others v Lesotho Telecommunications Corporation and Another (CIV/APN 502 of 97) [1998] LSCA 64 (24 June 1998)

1 CIV/APN/502/97 IN THE HIGH COURT OF LESOTHO In the matter between : MAKHOBOTLELA NKUEBE SELIKANE SELIKANE THABO SEKONYELA MAHOLELA MANDORO MICHAEL RAMOSALLA KOALEPE MAKATSELA FUSI CHOPO RAMOKHETHI DAMANE LEMOHANG FANANA PHAKISO FOSA ANDREAS HANI PAUL HLABANE LESALA HLALELE TSEPISO HLEHLISI EZEKIEL HLONGWANE TEBOHO HOOHLO MATLALA KAEANE THAPELO KAKA SELAKE KALI RAMAHETLANE KHAKANYO MAKALO KHAKETLA 'MATEBOHO KHALEMA KHASIPE KHASIPE MOHAPI KHAMA NTSANE KHATALA KHECHANE KHECHANE MALEFETSANE KHEO LIMPHO KHETSI SELLO KHIBA MOKHESENG KHOABANE ROSA KHOETE 'MASENTLE KHOLUMO MOITHERI MOHAPI 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 APPLICANT 27TH APPLICANT 28TH APPLICANT 29TH APPLICANT 30TH APPLICANT 31ST APPLICANT 32ND APPLICANT 33RD APPLICANT 26TH ELIZABETH KHUTLANG NTOILE KOLANE LERATO KOLISANG PHAKISI KOLOBE POELO KOLOBE PAUL KULEHILE TLANTLI LEBALLO 'MAMARALING LEBALLO THABANG LEBOKOLLANE SEKONYELA LEBOPO TELEKO LEBUSA SEEISO LECHE TANKISO LEFULEBE RICHARD LEHLAHA TSABALIRA LEJAHA L1SEMELO LEKHANYA LEPHEANE LEKHETHO LEBABO LEKHOOA RAMOFOLO LEKOATSA GEORGE MOKOENA HURBERT LELIMO LEPHEANE LEPHEANE HERBERT LEPHEANE RAMOTSELISI LEPHOTO KARABELO LEROTHOLI ALBERT LESAOANA LEQALA LESEO KHOTHATSO LETELE MOLIBETSANE LETLAKA PHILLIP LETLATSA SEEISO LETSIE TOKA LETSIE PAUL LIETA SEMA LIKOBELO 'MALINEO LIPHOLO RETSELISITSOE LITLALI THABANG MACHELI VICTOR MAEMA PETER MAFANE LEFA MAFATA TOBATSI MAFELESI MASEKOANE MAHAO TSILONYANE MAHASE THABO MAHLEKE MOHALE MAHLOANE 'MAKOENANE MAHLOMOLA THABO MASIA 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 62TH APPLICANT 63RD APPLICANT 64TH APPLICANT 65TH APPLICANT 66TH APPLICANT 67TH APPLICANT 68TH APPLICANT 69TH APPLICANT 70TH APPLICANT 71ST APPLICANT 72ND APPLICANT 73RD APPLICANT 74TH APPLICANT 75TH APPLICANT 76TH APPLICANT 77TH APPLICANT 78TH APPLICANT 79TH APPLICANT 80TH APPLICANT SETHO MAJORO SENATLA MAKAE TLALANE MAKEPE REFUOEHAPE MAKHAKHE THEBE MAKHALE LIKHANG MAKHOTHE HELEN MAKHOTLA SEBAKE MAKHUTLA TEBOHO MAKOKO TSOLO MAKOSHOLO 'MALEFU MALEFANE MARTIN MALEKE REENTSENG MALIEHE MAOELA MAOELA PUSETSO MAOELA MAPANYA MAPANYA BOFIHLA MAPHATSOE MOTLATSI MAPOOANE MBULELO MAQUTU 'MAMPHO MARAISANE KHETHANG MARE KHAUTA MARE TATUKU 'MASEAT1LE REFILOE MASENYETSE SEPITLE MASENYETSE 'MALISENTE MASHAPHA MOTEBANG MASHEANE THATO MASITHELA THABO MATAMANE MOOROSI MATELA SEHLOHO MATHAHA 'MABULARA MATOBO SENTLE MATOBAKO THABISO MATSOAI SEUTLOALI MATSOSO THORISO MATSOSO LEBOHANG MBOLE THAPELO MOBE KHOBOSO MOELETSI LAWRENCE MOFOKA MASOABI MOFUBE TSEKO MOHALE NAPO MOHAPI JOBO MOHAPI MAMPHO MOHAPI 'MATHATO MOHASI LIBOKO MOHLALISI 81ST APPLICANT 82ND APPLICANT 83RD APPLICANT 84TH APPLICANT 85TH APPLICANT 86TH APPLICANT 87TH APPLICANT 88TH APPLICANT 89TH APPLICANT 90TH APPLICANT 91ST APPLICANT 92ND APPLICANT 93RD APPLICANT 94TH APPLICANT 95TH APPLICANT 96TH APPLICANT 97TH APPLICANT 98TH APPLICANT 99TH APPLICANT 100TH APPLICANT 101ST APPLICANT 102ND APPLICANT 103RD APPLICANT 104TH APPLICANT 105TH APPLICANT 106TH APPLICANT 107TH APPLICANT 108TH APPLICANT 109TH APPLICANT 110TH APPLICANT I I ITH APPLICANT 112TH APPLICANT 113TH APPLICANT 114TH APPLICANT 115TH APPLICANT 116TH APPLICANT 117TH APPLICANT 118TH APPLICANT 119TH APPLICANT 1 20TH APPLICANT 121ST APPLICANT 122ND APPLICANT 123RD APPLICANT 124TH APPLICANT 125TH APPLICANT 126TH APPLICANT 137TH APPLICANT 147TH THABANG MOIKETSI LEBOHANG MOILOA LEBUSA MOKATI TUPA MOKHALINYANE KOPANO MOKHALOLI NTLOKO MOKHESI SEHLABAKA MOKHOTHU MAFOLE MOKOMA TANKISO 'MOLAOA KHOBATHA MOLAPO THAPELO MOLAPO MAMOLEBOHENG MOLELEKI SEABATA MOLEPA MOLEFI MOLETSANE TEBOHO MOLETSANE E. MOLISANE MOLOPI MOLISE TSELISO MOLISE KHETHANG MOLOISANE ITUMELENG MOMPE TEBOHO MONAHENG SEKHEFU MONAPHATHI LOKISANG MONETHI SELLO MOOROSI ADEL MORIE NTELELE MOROANYANE THETSANE MOROMELLA PHOLO MOSEBO MAPHELETSO MOSENENE TLOKOTSI MOSHASHA MOFEREFERE MOSHEOA THABO MOSHOESHOE LETSITSI MOSIUOA TEBOHO MOSOLA 'MALIMAKATSO MOSOLA NTHUSO MOTHOANA TUMELO MOTHOKHO 'MANTHA MOTOPI MALEFETSANE MOTSETSERO MOTLATSI MOTSOANE THAPELO MPASI MOTLATSI MPETE NOOSI MPELA AZARIEL MPHOFE 'MATLALI MPITSO THABANG MPO LIKELELI NALELI 138TH APPLICANT 139TH APPLICANT 140TH APPLICANT 141ST APPLICANT 144TH APPLICANT 145TH APPLICANT 146TH APPLICANT APPLICANT 148TH APPLICANT 149TH APPLICANT 150TH APPLICANT 151ST APPLICANT 152ND APPLICANT 153RD APPLICANT 154TH APPLICANT 156TH APPLICANT 157TH APPLICANT 158TH APPLICANT 159TH APPLICANT 160TH APPLICANT 161ST APPLICANT 162ND APPLICANT 163RD APPLICANT 164TH APPLICANT 165TH APPLICANT 166TH APPLICANT 167TH APPLICANT 168TH APPLICANT 158TH APPLICANT 169TH APPLICANT 170TH APPLICANT 171ST APPLICANT 172ND APPLICANT 173RD APPLICANT 174TH APPLICANT 175TH APPLICANT 177TH APPLICANT 178TH APPLICANT 179TH APPLICANT 180TH APPLICANT 181ST APPLICANT 182ND APPLICANT 183RD APPLICANT 184TH APPLICANT 185TH APPLICANT 186TH APPLICANT 187TH APPLICANT EVODIANKO SHADRACK NKOALE LEPEKOLA NOLOANE TSUKULU NONYANE 'MALISEBO NTEE 'MABATAUNG NTELANE TEMOSO NTOAMPA 'MUSO NTOBO THABANG NTSANE LIAKO NTSEKHE TEBOHO NTSINYI THABANG PANYANE THABO PEKECHE PALESA PETLANE NICODEMUS PHALIME MOTLATSI PHAROE LETHTJSANG PHEKO SEQAO PHENYA MOTSAMAI PHERA KOMETSI PHITSANE RETSELISITSOE PHORI LERATO PITSO BAPHOTHI POFANE KOSI POTSANE JOSEPH QABA KHOABANE QHOBELA KOTSI QHOBOSHEANE MAKHAUTA QOACHELA TEBOHO QOPHE BROWN RAJOELE MATUMISANG RAMABELE LEKHOOANA RAMALIEHE BASIA RAMAOKANE LETEKA RAMASHAMOLE RAPHAEL RAMASHAMOLE JULIUS RAMATABOE MPAI RAMMUSETSI HLOLO RAMORAKANE MAHLOMOLA RAMOTHAMO MPHOBOLE 'MATEBOHO RANOOE LEBOHANG RAPILETSA ALFRED RATJOPA TENNYSON SAO ANA DAVID SAUDI BAILE SEAKHOA GLADYS SEBATANA RAMPHOROLE 188TH APPLICANT 189TH APPLICANT 190TH APPLICANT 191ST APPLICANT 192ND APPLICANT 193RD APPLICANT 194TH APPLICANT 195TH APPLICANT 196TH APPLICANT 197TH APPLICANT 198TH APPLICANT 199TH APPLICANT 200TH APPLICANT 201ST APPLICANT 202ND APPLICANT 203RD APPLICANT 204TH APPLICANT 205TH APPLICANT 206TH APPLICANT 207TH APPLICANT 208TH APPLICANT 209TH APPLICANT 210TH APPLICANT 211TH APPLICANT 212TH APPLICANT 213TH APPLICANT 214TH APPLICANT 215TH APPLICANT 216TH APPLICANT 217TH APPLICANT 218TH APPLICANT 219TH APPLICANT 220TH APPLICANT 221ST APPLICANT 222ND APPLICANT 223RD APPLICANT 224TH APPLICANT 225TH APPLICANT 226TH APPLICANT 227TH APPLICANT 228TH APPLICANT 229TH APPLICANT 230TH APPLICANT 231ST APPLICANT 232ND APPLICANT 233RD APPLICANT 234TH APPLICANT THABISO SEHLABAKA LEBOHANG SEKHOAHLA 'MAMOOROSANE SEKOALA AMELIA MOLAPO SECHOCHA SENYANE T. SENYANE LEBOHANG SEPERE MAKHAOLA SPERE MALEFETSANE SEQHOALA DANIEL SESING REFUOE SETEKA CASWEL SETEMERE 'MAMPHO SETLOBOKO MOLIBELI SHABE KHETHANG SHALE KHOMOATSANA SHALE KHUPISO SHEA HILDA SHOLU MOJALEFA SUOANE THABANG TAELI ANDRIAS TAKALIMANE MOHAU TAKANA S. THOKOANA THABANG THABA PRESCILLA THAKEDI BOKAE THAMAE MATLERE THAMAE TJOKA THOKO RUSSELS THULO MALATSI TIHELI 'MAMOHALE TJABANE TEMANE TOPO THATO TSALONG HLOMOKA TSEPANE PANYANE TSEPHE KUBUTU TSIANE MOTLOHELOA T§IRA LEPHOTO TSIU TEBOHO TSOENE NKHAHLE TSOSANE KOPANG VOMBUKANI BLYTH BAHOLO PUSELETSO BAHOLO ISAAC BELEME JOHN BERENG LEREKO BERENG MOLISE BOHLOKO 235TH APPLICANT 236TH APPLICANT 237TH APPLICANT 238TH APPLICANT 239TH APPLICANT 240TH APPLICANT 241ST APPLICANT 242ND APPLICANT 243RD APPLICANT 244TH APPLICANT 245TH APPLICANT 246TH APPLICANT 247TH APPLICANT 248TH APPLICANT 249TH APPLICANT 250TH APPLICANT 251ST APPLICANT 252ND APPLICANT 253RD APPLICANT 254TH APPLICANT 255TH APPLICANT 256TH APPLICANT 257TH APPLICANT 258TH APPLICANT 259TH APPLICANT 260TH APPLICANT 261ST APPLICANT 262ND APPLICANT 263RD APPLICANT 264TH APPLICANT 265TH APPLICANT 266TH APPLICANT 267TH APPLICANT 268TH APPLICANT 269TH APPLICANT 270TH APPLICANT 271ST APPLICANT 272ND APPLICANT 273RD APPLICANT 274TH APPLICANT 275TH APPLICANT 276TH APPLICANT 277TH APPLICANT 278TH APPLICANT 279TH APPLICANT 280TH APPLICANT 281ST APPLICANT TANKISO MAEKANE IMALOLI MOTHIBELI RAMOFAO MONAKALALI RAMAISA RAMAISA MOTSOELA SEETANE LEFA SEKOATI MOCHEKO ISAAKA MOTLALEPULA MASIA SERUPE MOILOA MAFA HLALELE LEFA MATENA NTJA POSHOLI MAJARA MASOABI MAHASE RABOSHABANE LEMOHANG MOLOFI MASUPHA SEPERE MOKOENIHI CHOBOKOANE THABANG MPUTSOE MOTLATSI NKUNYANE THABO TSOENE NTHAKO PHATE TUMELO MOQHALI MOLEFI MOLEFI MOLEFI MAILE TANKISO ISAAKA KANATE KOLISANG RANTSOTI MOLOLI LEBONA LEBONA MOLEFI MOTSEKI SEFALI MOKHACHANE HLOLO RAMORAKANE SEPHEKANE MOHAPI ROBERT KOTELO and 282ND APPLICANT 283RD APPLICANT 284TH APPLICANT 285TH APPLICANT 286TH APPLICANT 287TH APPLICANT 288TH APPLICANT 289TH APPLICANT 290TH APPLICANT 291ST APPLICANT 292ND APPLICANT 293RD APPLICANT 294TH APPLICANT 295TH APPLICANT 296TH APPLICANT 297TH APPLICANT 298TH APPLICANT 299TH APPLICANT 3 0 0TH APPLICANT 301ST APPLICANT 302ND APPLICANT 303RD APPLICANT 304TH APPLICANT 305TH APPLICANT 306TH APPLICANT 307TH APPLICANT 308TH APPLICANT 309TH APPLICANT 310TH APPLICANT 311TH APPLICANT 312TH APPLICANT 313TH APPLICANT 314TH APPLICANT LESOTHO TELECOMMUNICATIONS CORPORATION THAMAHANE RASEKILA 1st Respondent 2nd Respondent JUDGMENT Delivered by the Honourable Mr. Justice T. Monapathi on the 24th day of June 1998 The following are my reasons for a decision in the matter of the 11th February 1998. It was over the three issues on which I decided for Applicants. At the time of the hearing of the application the contracts of the Applicants No. 282 to 309 and 310 to 314 should have already expired at different times hence the apparent confusion in the notice of motion as under the alternative prayers. All the Applicants were employees of the First Respondent including Applicant No. 162 whose application was withdrawn following an argued application for my recusal. The application fell off after the withdrawal of the application for recusal. A rule nisi was issued calling upon the Respondents to show cause (if any) why: "(a)(i) The purported dismissals of applicants 1 to 281 by Second Respondent shall not be declared null and void and unfair. (ii Respondents shall not be directed to reinstate Applicants 1 to 281. ALTERNATIVELY: (iii) Respondents shall not be directed to pay to applicants 1 to 281 pension benefits and compulsury savings. (b) The purported dismissals of applicants' number 311 to 314 shall not be declared unfair and thus null and void. (c) Respondents shall not be directed to pay applicant number 310 salary for the months on which his contracts were still to subsist. (d) The respondents shall not be directed to pay to applicants 282 to 309 their gratuities, and severance pays. (e) The respondents shall not be directed to pay to applicants arrears of their salaries for the period 11th to 31st day of August 1997. (f) The respondents shall not be directed to pay the salaries of applicants 1 to 281 and 310 to 314 for the period 30th day of September to the 1st day of October 1997. (g) The respondents shall not be directed to pay applicants 1 to 281 arrears of salaries and such other benefits as would be due, with effect from the date of the purported dismissal to the date of decision on their appeals by 2nd respondent." It will perhaps be convenient to record that on the 11th February 1998 I made the following orders for which my reasons n ow follow. That:- "A (I) The purported dismissals of Applicants 1 to 281 by 2nd Respondent is hereby declared null and void and set aside. (ii Respondents are hereby directed to reinstate Applicants 1 to 281. B C D The purported dismissals of Applicants 311 to 314 are hereby declared unfair and null and void. Respondents are directed to pay Applicants number 310 salary for the month on which his contract was still to subsist. The Respondents are directed to pay Applicants 282 to 309 their gratuities and severance pay. E F G H I J The Respondents are directed to pay Applicants' arrears of their salaries for the period 11th to 31st days of August 1997. The Respondents are directed to pay the salaries of Applicants 1 to 281 and 310 to 314 for the period 30th day of September to the 1st day of October 1997. The Respondents are directed to pay Applicants 1 to 281 arrears of salaries and such other benefits as would be due, with effect from the date of the purported dismissal to the date of decision on their appeals by 2nd Respondent. Respondents are directed to pay to Applicants 310 to 314 gratuities and severance pay. Respondents are directed to pay costs. The above mentioned Orders are subjected to mediation but the party that refuses mediation reserves the right to inform the mediator that he should not mediate on this matter". A considerably long absence from work by the Applicants on a so called unlawful strike resulted in two applications in the High Court in cases number CIV/APN/283/97 and CIV/APN/309/91/. The two cases were consolidated at argument for and after a judgment was delivered by Guni J on the 30th day of September 1997 and the judgment was annexed as "A" to these proceedings. This judgment was appealed and on the 5th February 1998 the Court of Appeal made the following Order: " 1. At the suggestion of the Appeal Court the parties have agreed to attempt to settle their differences by mediation. 2. The mediator will be appointed forthwith and will be a completely neutral person with no either side w ho will come from outside this country and will be a person whose credentials are considered suitable by the members of the Appeal Court bench presently seized of the matters to conduct the mediation proceedings. 3. 4. The mediator is to be furnished with a copy of the record on appeal as well as Counsel's heads of argument, in order to be able to appreciate the issues between the parties. The costs of the mediation, which m ay be expanded by agreement between the parties, to include other disputes between them, are to be shared equally between the parties. 5. The venue for the mediation proceedings will be decided by the mediator after consultation with counsel for the parties. 6. Both parties wish to have it recorded that they are anxious to have the mediation take place as soon as possible and with that in mind the earliest date will be fixed by the mediator after consultation with M s. Kotelo (for the employees) and Mr. Makeka (for the employer). 7. The appeal is to be postponed sine die". It was the understanding of the Applicants following the said judgment of Guni J that they were recalled to work which is confirmed by Annexure " B" to this proceedings whose effect was to call the applicants to report to work on the 2nd October 1997. This the Applicants say they did. On reporting to duty the Applicants were issued with notices of immediate suspension from duty by the Acting Managing Director. This meant that the Applicants were disabled and could not attend at work contrary to the Order of Guni J. I attached importance to this aspect of reporting at work because the Applicants said they then intended to report to work. The Applicants were furthermore issued with notices of disciplinary hearings which called the Applicants to attend on different dates on which they would answer the following charges - "(a) Participating in a work stoppage; (b) Unauthorized absence from duty (from the 21st September - 30th September 1997) contrary to your employment contract", as annexure " C" on page 48 of the record shows. On dates deposed to as being about the 10th October 1997 just prior to the dates appointed for hearing in respect of Applicants number 310 to 314 they were issued with letter similar to Annexure "D1" of termination in terms of the First Respondent's Personnel Regulation Clauses 3.5 3.7 27.3, 33.1.1 to 33.1.5, as amended. Their contracts were so purportedly terminated. These concerned Applicants were on a two year contract and as alleged "had not given a one month notice" before "resignation" because they should not have absented themselves from duty without authorisation from management. The First Deponent was the First Applicant ( M A K H O B O T L E LA N K U E B E) whose affidavit was supported by the Second Applicant (SELIANE S E L I A N E) the Third Applicant ( T H A BO S E K O N Y E L A) Three Hundred and Tenth Applicant ( M O L E FI M O T S E K I) T wo Hundred and Ninety Fourth Applicant ( M A J A RA M A S O A B I) and Three Hundred and Twelfth Applicant ( H L O LO R A M O R A K A N E ). The First Deponent continued to state that that pre-suspension hearing, which it was c o m m on cause was conducted, could not have been in accordance with natural justice and furthermore that the Applicants had since the end of September 1997 been entitled to full pay which has since been owing up to the date-of hearing. The contemplated disciplinary hearings commenced on or about the 6th October 1997 and for a period of about a month until the end of October 1997 and had been preceded by notices of suspension annexed as " C" which that the High Court in cases numbers CIV/APN/287/97 and CIV/APN/304/97 had ruled that the strike in which the Applicants had participated had been unlawful, hence the suspensions which commenced from the 30th September 1997 as the Respondents sought to justify their attitude about suspensions. The consolidated judgment in the above cases ended up in the Court of Appeal as alluded earlier in the judgment. I understood that if in terms of the Order on page 21 (page 46 of the record) of the judgment the prayers in CIV/APN/283/97 succeeded and were confirmed this included the prayer in 2(e): "That they should desist from their unlawful strike and return to work." The hearings themselves had been based on charges contained in annexure " C" (page 49) in which the Applicants were accused of: (d) unauthorized absence from duty (from 21 August - 30th September 1997) contrary to your employment contract. The charge document proceeded to direct that an Applicant would be entitled to be accompanied by a co-worker of his choice. The name of a co- worker would have to be submitted at least twenty four (24) hours prior to the date and time of hearing by Respondents before the panel I would say that the Respondents seemed to confirm that "A member of staff appointed by an Applicant (charged employees) was not allowed to be part of the panel". All these happened despite the mandatory S H A LL terms in which the "regulation is couched". The reason put forward by the Respondents was that the requirement was impractical as the immediate supervisor of the charged employees was also charged with the same misconduct. That furthermore participation of the latter employee was unreasonable because that employee was either (himself) charged with misconduct or was awaiting his "turn to be before the disciplinary panel" or awaiting decision of the said panel. In any case regulations 1.2 1.3 and 29.3 were put into operation. I have had a look at regulation 1.2 which said: 1.2 Authorization power given in this regulation to the Managing Director ( M D) may at M D 's discretion be delegated to subordinate staff". I did not see h ow a matter of procedural right of a charged Applicant could be delegated in the way suggested when it was not a power or authority of the M D. I found it difficult to accept this excuse as valid I thought unless there was a good reason elsewhere there was a breach of the procedure to the prejudice of the concerned Applicants. I have had a look at regulation 1.3. It reads: "The MD m ay in special cases decide on exceptions from the regulations if not to staff and detrimental and if considered to promote the productivity of the working morale or if circumstances are extenuating". I did not see h ow the circumstances suggested by the Applicant would justify this departure by the Managing Director. Nothing in my view appeared in his action to conduce to alleviating any detrimental situation or to promote productivity. Neither would I observe anything of extenuation so far as the rights of the persons charged with misconduct were concerned. Again I was not impressed that there were good reasons except pure expediency. I thought that even if I was wrong in agreeing with Counsel for Applicants that the couching of the three regulations in "shall" terms meant that they were mandatory at least it was a requirement that there be a good reason for dispensing with the presence of the immediate supervisor. Where the question was that of pre-suspension hearing then expediency could be tolerated. With regard to the absence of pre- suspension even though Applicants challenged the procedure I was inclined to conclude that in the circumstances of the case that could be condoned. 1 thought the Applicants should challenge the most serious aspects of the disputed actions of the Respondents. Following from the Applicants contention that there was no evidence led at the hearings to support he charges laid I was referred to L TC " B" at page 122. I did not see h ow the finding of the High Court as to the existence of the strike would constitute evidence by the mere fact of my sister Guni J having made a finding. As it was said in L U CY L E R A TA A ND T W E N TY SIX O T H E RS vs S C O TT H O S P I T AL C of A (CIV) No. 38/95, June 1995 Van den Heever A JA at p.l7 "It does not mean that the Labour Court was entitled to make its o wn rules in regard to w ho is to bear the onus in proceedings before it nor take cognizance of evidentiary material quite outside that placed by the parties before it." H ow could the judgment be evidence? It may even have been c o m m on cause that such was the finding but I thought the most important thing was the order that the learned judge had ordered that the Applicants must go back to work. This the Applicants said they did. I disagreed with the Respondents submission that the finding by Guni J that because the same parties were involved in litigation the Applicants having been allegedly on an illegal strike was sufficient evidence in itself for a finding that there had been misconduct proved for a finding of dismissal. See L U CY L E R A T A 'S case (supra) Put in simple terms the finding of Guni J should not have been conclusive in the absence of any evidence but the judgment itself. I did not see that the Respondents had had any evidence besides the judgment of Guni J. Moreover one could not say that the Applicants conceded at the hearings that they were engaged in an illegal strike. Even though it was conceded before this Court there could have been illegal strike that was not sufficient to found a case of misconduct. Once it was accepted I did that there was no evidence of misconduct the finding of guilt and dismissal of Applicants was illegal, irregular and unfair in most respects. That was the first leg over which I clearly found for the Applicants. I found that the Respondents in their argument were concerned over the principles of legalities or illegalities of strikes. That lengthy debate of over issues of legalities or otherwise of strikes and concomitant justifications for strike actions were not part of the Applicants case. I noted with interest that Mr. Molapo the Acting Divisional Head in dismissing the Applicants noted that "the Panel has found you guilty as charged in that you were involved in an unauthorized absence from work and/or work stoppage. These acts have been ruled by the High Court as unlawful strike." I agreed with Applicants' Counsel that this aspect of the alleged strike action could correctly be said to belong to the resolution of the dispute brought by the judgment of Guni J. Once it was accepted that Guni J dealt with the matter of an alleged illegal strike it became a closed chapter thenceforth. There was also the matter of the alleged illegal strike which ought to not to have formed part of the hearing was this question of alleged acts of sabotage and other kinds of mischief allegedly committed by the Applicants. This took m u ch time of argument before me despite having been addressed by Guni J in her judgment. Inasmuch as there was before the hearings no evidence of such acts equally they would not be a good defence before this Court to justify dismissals that were irregular. 1 round this to be situation with regard to those appeals that followed before the Managing Director. This flaw permeated through the appeals. There was this issue that led me to my main and second reason for allowing the application. It was about the alleged illegal strike by the Applicants. It was that at c o m m on law once a strike was proved whether it was an illegal strike or not became a breach of contract. It was indeed of a nature that the employer is entitled to accept the strike as a repudiation of contract and to dismiss the strikers. See C A W U LE vs SPIE B A A T I G N O L L ES A ND O RS C of A (CIV) No. 13 of 1990 at 4. A party injured by the strike which amounts to repudiation is at liberty to claim relief in the nature of either specific performance or damages. That claim for specific performance necessarily means asking the striking employees to go back to work as yet another alternative. The first option is as aforesaid that of dismissal of the striking employees. So that one clearly speaks of a choice that the employer is entitled to make. In the present case the Respondents chose to approach High Court before Guni J and claimed for specific performance as indeed it was held in L E S O T HO T E L E C O M M U N I C A T I O NS C O R P O R A T I ON vs R A S E K I LA C of A (CIV) No.24 of 1991. See also L E S O T HO B A NK vs M A I T SE M O L OI C of A (CIV) 31/95 at p. 5. I found the easiest way to express the situation about alleged misconduct to be that once specific performance has been ordered its basis may have been repudiation or misconduct but once it had been ordered as Guni J the acts founding the misconduct or repudiation as a matter of law fell off Counsel for the Respondents throughout studiously avoided addressing or responding on this issue on its four legs. But what is important at this stage is that question of the effect of asking for specific performance once the choice has been made. I thought this quotation by M r. Mosito from C U L V E R W E LL A ND A N O T H ER v B R O WN 1990(1) SA 7 ( A D) captured the whole essence of the issue. It said that a repudiation does not per se bring the agreement to an end. At the " date of repudiation, the agreement is still alive and the injured party has the right to elect whether to accept the repudiation and so terminate the agreement or whether to insist upon receiving performance in terms of the agreement. The injured party is afforded reasonable period within which to perform and the injured party to receive specific performance remains wholly unaffected. It is only when the injured party accepts the repudiation that the agreement is cancelled". So much is captured above that one needs only add by way of repetition that once the injured party has asked for performance which the repudiators accept a basis no longer exists for acting on the basis of an offence or act of misconduct which was originally the substance of the repudiation. Mr. Mosito referred me to page 16-17A of C U L V ER W E L L 'S case (supra) to buttress his submission that the Respondents by proceeding to dismiss the Applicants were approbating and reprobating which they were not entitled to do. It was quoted from the C U L V E R W E L L 'S case as follows: " W h en it occurred the plaintiff had a right of election. He might accept the repudiation (thereby terminating the contract) and or might refuse to accept it, in which event the contract would remain of full force. Having made this election, the injured party was bound by it - the choice of one remedy necessarily involves the abandonment of the other inconsistent remedy. He cannot both approbate and reprobate. Quod Semel placuit in electioni bus amplius displecere non potest." I therefore agreed with Applicant's Counsel that Guni J granted specific performance that the Respondents had asked for. An order seeking to dismiss the Applicants was inconsistent with Guni J Order and was an indirect way of seeking to repudiate which was no longer open to the Respondents. I observed accordingly that as after Guni J's order then had been no misconduct on the part of the Applicants. That they were suspended on the very date of the judgment of Guni J could only have been inexplicable in the circumstances. The Applicants had to come to work as ordered. As after Guni J's order one cannot speak of the Respondent the accepting the repudiation. As correctly submitted they had refused to accept the repudiation. I accepted the premise that a Corporation such as the First Respondent is a body of rules and regulations some of the important rule being those that cloth a particular official and or organ with power to make a decision to dismiss an employee. Such power must be exercised by such depository of power above and no other". See L E S O T HO TELECOMMUNICATION CORPORATION vs T H A M A H A NE RASEKILA C of A (CIV) No.24 of 1991, see also SEISA NQOJANE vs NATIONAL UNIVERSITY OF LESOTHO C of A (CIV) No.7/87 at p.25. In that regard what the Applicants herein questioned was the authority of Acting Divisional Manager w ho was not H u m an Resource Manager to have dismissed the Applicants. The letters dismissing the Applicants were similar in this regard. In addition the Applicants complained the fact that their dismissals had been made by the Disciplinary Panel not the H u m an Resource Manager nor for that matter the Managing Director. It was submitted that this clearly made the dismissals on that ground null and void. Although there were attempts to justify the powers of Mr. L. Molapo an acting Resource Manager I did not see h ow the Respondent sought to justify the situation where Mr. Molapo does not say in his capacity as Acting Resource Manager or as acting Divisional Head he made the dismissal. This I say looking at regulation 31.1.5 at page 55 of the record. Perhaps the letters of dismissals could have been inelegantly drawn as there was argument along this line. In answer to the vexed question of Mr. Molapo's authority was a supplementary opposing affidavit of the Second Respondent which read on page 5 thereof: "Your Lordship will notice that Annexure " G" evidence an amendment to the Personnel Regulations in terms of which the H u m an Resources Manager became duty bound to sanction the penalties as set out in section 30.11.6 of the Personnel Regulations inter alia Your Lordship will also notice that certain other amendments are referred to in Annexure " G" which incorporate the intervention of the H u m an Resource Manager in regard to the sections of the Personnel Regulations referred to therein". I thought Annexure " G" made it clear that there was a difference between a Divisional Head and H u m an Resource Manger as the supplementary affidavits of the First Applicant also showed. I did not see w hy if Mr. Molapo was acting as a divisional head in the H u m an Resources he was being made Acting H u m an Resource Manager by reason of L TC "G". This was still short of explaining the query that Mr. Molapo was not a Humana Resources Manager. To round off this aspect of Mr. Molapo the case of CHIEF L E A B UA J O N A T H AN v C O M M I S S I O N ER OF P O L I CE A ND A N O T H ER CIV/APN/276/86 Molai J 15th September 1986 was cited in similar vein and to show that as at page 5. "It cannot therefore be said that the Acting Commissioner of Police is the Commissioner of Police for the purpose of Internal Security (General) Act No.24 of 1984 and firstly the Internal Security (Amendment) Order 1986 does not amend the definition of the term "Commissioner" under the interpretation section 3(1) of the Principal Act". I thought it followed that people who had been unlawfully dismissed without a hearing were normally entitled to their salaries and terminal benefits, severance pay and gratuity such as Applicant 310 to 314. Others would normally have to be re-instated as ought to be the case as regards other Applicants. I was persuaded that in the present case where the First Applicant's affidavit was supported by affidavits of four others was not a case actio popularis. I did not accept that only the First Applicant or the four (4) other deponents were entitled to relief and were the only ones w ho were properly before Court to the exclusion of about three hundred and fifteen others w ho allegedly did not have locus standi. Counsel for Respondents cited W O OD AND OTHERS v ODANGWA TRIBAL AUTHORITY AND ANO. 1975(2) SA 294(A) at 305 and 306. I thought that the present case was distinguishable for the following reasons. The Applicants were determinable and were identifiable as people w ho were suspended, against w h om certain hearings were held, w ho were dismissed and were employees of the First Respondent. They demonstrably had direct and substantiated interest and a similar cause of action or if that is not important their names were later referred to individually in the answering affidavit. They were not a community such as in W O O D 'S case (supra). I saw so m a ny reference to the Applicants as clearly identifiable even in the notice of motion. I would have condoned the absence of a description of Applicants in detail in the interest of justice. In my view that description is a rule of practice but not of law. If argument had been that the Court would consequently have no jurisdiction that would be a serious point. In my view the real purpose of describing a party in full to disclose capacity to sue and question of jurisdictions and "any other technical requirements of advise or any other technical requirements of address or any other description" were held to be "unnecessary for any other purpose" in WITWATERSRAND AND DISTRICT TRADES vs HERHOLT 1956(4) SA 361 at 365(1). I did not think that in the circumstances of this matter this was a good point. Another point made by the Applicants about the dismissals having been selective and discriminatory was made. I did not think it was helpful convincing on the facts nor was it significant as against larger issues. That point-in-limine about urgency I thought was quite unsound in the light of a clear demonstration of urgency about alleged withholding of salaries and about almost everything to do with the serious nature of the instant matter. With so many issues of fact which were c o m m on cause I laboured to recognize matters that were of material dispute and I failed. I disagreed with Respondents Counsel that there were any except disputes over legal points or procedural issues. My suspicion was that there was a confusion between legal issues and issues of fact on the part of Counsel. This point- in-Iimine also had to fail. The issue of referral of the matter for mediation as shown in my final order was made against the background that mediation would in my mind affect the whole dispute that is the aspect referred by the Court of Appeal and the issues before me. Inasmuch as it was conditional and a matter of choice it could not be a substantial decision by this Court. It remained peripheral. Counsel had addressed me on the matter following my invitation by the Court. That is w hy the element that a party would decline to subject any matter to mediation before the mediator was stipulated. It cannot have been by itself a substantial order affecting the rights of the parties, as it were. I allowed the application with costs. T. M O N A P A T HI J U D GE 24th June 1998 For the Applicants : Mr. Mosito For the Respondents : Mr. Nathane