Security Lesotho (Pty) Ltd v Moepa and Others (Constitutional Case No.12 of 2014) [2015] LSHC 11 (09 June 2015);

 

 

Constitutional Case No.12 of 2014

 

IN THE HIGH COURT OF LESOTHO

(Constitutional Jurisdiction)

 

 

In the matter between:

 

SECURITY LESOTHO (PTY) LTD                           APPLICANT

 

 

and

 

LEBOHANG MOEPA                                                 1ST RESPONDENT

THE PRESIDENT OF THE LABOUR COURT                 2ND RESPONDENT

THE LABOUR COMMISSIONER                                      3RD RESPONDENT

MINISTER OF LAW AND

CONSTITUTIONAL AFFAIRS                                  4TH RESPONDENT

THE ATTORNEY GENERAL                                   5TH RESPONDENT

 

 

JUDGMENT

 

 

 

Coram        :         The Hon. Justice Chaka-Makhooane

                             The Hon. Justice Makara

                             The Hon. Acting Justice Moahloli

Date of hearing   :         17th February 2015

 

Cur adv vult

 

Date of judgment          :         9th June 2015

 

SUMMARY

 

Constitutional law -- No right to legal representation in civil proceedings guaranteed under section 12 (8) of the Constitution of Lesotho – therefore section 28 (1) (b) of the Labour Code not void on ground of infringing litigants’ right to legal representation – section 12 (8) of Constitution however entrenches entitlement to fair trial in civil proceedings – section 28 (1) (b) of Labour Code unconstitutional to the extent that it violates such entitlement.

Status and true nature of Labour Court – it is a court subordinate to the High Court and not a quasi-judicial tribunal.

Costs -- Principles governing incidence of costs in constitutional matters between state and private party – rationale of rule and exceptions thereto.

 

ANNOTATIONS

Cases:

Lesotho

Attorney-General v Lesotho Teachers Trade Union, 1991-1996 LLR 16 (CA)

Attorney-General of Lesotho v ‘Mopa, 2002 (6) BCLR 645 (LesCA)

CGM v LECAWU, 1999-2000 LLR-LB 1 (CA)

Minister of Labour and Employment and Others v Tšeuoa, LAC (2007-2008)

289

Makalo Teba & 94 Others v Maseru City Council & 3 Others, 1998-2001 LLR 816 (HC)

Vice Chancellor of NUL & Another v Professor Alan Femi Lana, C of A (CIV) No.10/2002

Other jurisdictions

Biowatch Trust v Registrar, Genetic Resources, 2009 (6) SA 232 (CC)

Dombo Beheer v Netherlands, (1994) 18 EHRR 213

R v Oakes, 1986 CanLII 46 (SCC)

Schorsch Meier GmbH v Hennin, [1975] 1 All ER 152

South African Technical Officials’ Association v President of the Industrial Court and Others, 1985 (1) SA 597 (A)

Vereniging van Bo-grondse Mynamptenare van Suid-Afrika v President of the Industrial Court, 1983 (1) SA 1143 (TPD)

 

Statutes:

The Constitution of Lesotho 1993

Constitution Litigation Rules 2011

Constitution of the Republic of South Africa No.108 of 1996

Labour Code Act 24 of 1992 (as amended by Act 9 0f 1997, Act 3 of 2000, Act 5 of 2006 and Act 1 of 2010)

 

International instruments:

 

African Charter on Human and People’s Rights (1981)

European Convention on Human Rights (1950)

International Convention Civil and Political Rights (1966)

 

Books:

Brickhill & Friedmann, Ch.59 “Access to Courts” in Vol.4 Woolman & Bishop (eds) Constitutional Law of South Africa 2 ed, Rev. Serv.6, Juta 2014

Claassen, Dictionary of Legal Words and Phrases 2 ed, Service Issue 17, Juta 2014

Currie & De Wall, The Bill of Rights Handbook 5 ed, Juta 2009 (esp. Ch. 31 “Access to Courts”)

Devenish, Interpretation of Statutes 1 ed, Juta 1992

Van Heerden & Crosby, Interpretation of Statutes 1 ed, Butterworths 1996

Herbstein & Van Winsen, The Civil Practice of the Supreme Court of South African 4 ed, Juta 1997

Hosten et al, Introduction to South African Law and Legal Theory 3 ed, Butterworths 1995

Wiechers, Administrative Law 1ed, Butterworths 1985

Wiechers “Administrative Law” in Vol. 1 Joubert (ed) The Law of South Africa 1 ed, Butterworths 1976

 

Moahloli AJ:

 

BACKGROUND

 

[1]     The 1st Respondent, Lebohang Moepa (“Moepa”), used to work as a security guard for the Applicant, Security Lesotho (Pty) Ltd (“Security Lesotho”), a private security company.   He was dismissed for participating in an unlawful strike.   He did not challenge this, but instead referred a case to the Directorate of Dispute Prevention and Resolution (“the DDPR”) claiming payment for his weekly rest days.  The DDPR dismissed the claim.

 

[2]     Moepa then applied to the Labour Court to review and set aside the DDPR award.  On the date of hearing of this application (28 November 2012) Security Lesotho (aka “the Company”) failed to attend and the Court heard and disposed of the matter in its absence.  The Company subsequently applied to the Labour Court to rescind it judgment, but its application was dismissed.

 

[3]     Security Lesotho then appealed to this Court.  It was successful and the case was “remitted to the Labour Court for hearing on the merits.”[1]  It must be stated that throughout all these proceedings Moepa was appearing in person (i.e. without a legal representative).

 

[4]     When the review came up for reconsideration by the Labour Court, Moepa still appeared in person and the company was represented by its counsel of record.  The 2nd Respondent, of his own accord, refused the company legal representation, relying on the provisions of section 28 (1) (b) of the Labour Code[2], which provides that “at any hearing before the court any party may appear in person or be represented by a legal practitioner, but only when all parties, other than the Government, are represented by legal practitioners.” [my emphasis]

 

THE ISSUE

 

[5]     This led Security Lesotho to launch the present application to the High Court, exercising it constitutional jurisdiction, for an order in the following terms:-

                              “1.     Section 28 of the Labour Code Act 24 of 1992 be                                      declared as unconstitutional to the extent that it                               violates the litigants’ rights to legal representation                                    before the Labour Court.

 

                              2.       Proceedings in LC/REV/21/2011 shall be stayed                                       pending finalization hereof.

 

                              3.       Costs of suit in the event of opposition.

 

                              4.       Any further and/or alternative relief.”

 

          The application was opposed by 2nd to 5th Respondents. The Labour Commissioner (3rd Respondent) filed an affidavit and heads of argument.

 

SURVEY OF ARGUMENTS

 

The Company’s submissions:

         

[6]     Section 28 of the Labour Code falls under “Division D: Labour Court    and Labour Appeal Court”.   It provides the following:-

 

                      “28.     Representation of parties

 

                                    (1)        At any hearing before the Court, any party may appear                                                         in person or be represented –

 

                                                (a)        by an officer or an employee of a trade union or                                                                    of an employers’ organisation;

 

                                                (b)        by a legal practitioner, but only when all parties,                                                                   other than the Government, are represented by                                                                      legal practitioners.

 

                                    (2)        Where the Government is a party to any proceedings                                                            before the Court, the Government may be represented                                                          by the Attorney General or by any other person                                                                       appointed by the Attorney General for the purpose.”

 

[7]     The company contends that this section disentitles it to be represented by the legal representative of its choice.  It argues that whereas a party to proceedings before Local or Indigenous Courts is legally entitled to be represented by counsel of its choice, in terms of section 28 of the Labour Code      legal representation in the Labour Court is not an absolute right.  This, in Applicant’s view, is unfair to litigants before the Labour Court because: (a) “issues canvassed in the Labour Court are more complex than those           canvassed in the Local Courts”; and (b) “the outcome of litigation in the Labour Court is mostly likely to affect individual rights more adversely than would the outcome of the Local Court do (sic).”

 

[8]     Consequently, the Company claims that section 28 “is unconstitutional to extent that it restricts the right to legal representation as envisaged in section 12 (8) of the Constitution of Lesotho.”

 

[9]     Lastly, Security Lesotho contends that “the unconstitutionality of section 28 is           further manifested by the mere fact that [in terms of s.28(2)] whenever the government of Lesotho appears as a litigant in the Labour Court it is always entitled to being represented by the Attorney General, [whereas] individual litigants…are not afforded the same right.”

 

[10]   Section 12 (8) of the Constitution,[3] upon which Security Lesotho relies,   reads as follows:-

                   “Right to fair trial, etc.

                        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 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 emphasis]

 

[11]   For completeness it is useful to read this provision together with section 4 (1) (h) of the Constitution, which reads as follows:-

 

                        “Fundamental human rights and freedoms

 

                      4.         (1)        Whereas every person in Lesotho is entitled, whatever                                              his race, colour, sex, language, religion, political or other                                              opinion, national or social origin, property, birth or other status                                    to fundamental human rights and freedoms, that is to say, to                                 each and all of the following

                                  (a)      …………………. ;

                                   (h)       the right to… a fair determination of his  civil rights and                                        obligations;” [emphasis added]

 

 

3rd Respondent’s submissions:

 

[12]   The Labour Commissioner (3rd Respondent) argues that the effect of section 28 is not to disentitle the Applicant to the right to legal representation, but rather it gives the parties and the Court a discretion whether or not to allow such representation in order to keep the scales of justice balanced. She argues that it gives the litigants the latitude to agree on legal representation depending on the complexity of each particular case.

 

[13]   She further contends that it is incorrect for Applicant to assert that section 12 (8) of the Constitution gives parties the right to legal representation, as it only entrenches such absolute right in respect of criminal proceedings.

 

[14]   According to 3rd Respondent section 28 of the Labour Code must be read together with section 228A thereof.  Read holistically it is clear that “the right to legal representation is not necessarily disallowed” but restrictively “allowed, either on agreement by litigants or in the discretion of the authorities.” The Labour Commissioner contends that in casu the President of the Labour Court (2ndRespondent) did exercise his residual discretionary power whether to allow Applicant legal representation or not, judicially.   He concluded that the case before him was not complex to the extent that it warranted representation by legal practitioners.  He “wanted to balance the arms by comparing the ability of the opposing parties to deal with the dispute.”  3rd respondent asserts that “Applicant has also failed to show prejudice that would be suffered if they were to proceed with the matter unrepresented…Applicant wanted legal representation not necessarily because the circumstances warranted, but because it claims to be its constitutional right.”

 

ANALYSIS OF ARGUMENTS

 

The Applicable Tests

 

[15]   Section 2 of the Constitution enacts that the “Constitution is the supreme law of Lesotho and if any other law is inconsistent with [the] Constitution, that other law shall, to the extent of the inconsistency, be void.”

 

[16]   In view of this, Applicant is therefore effectively asking this Court to declare section 28 of the Labour Code void to the extent that it is inconsistent with section 12 (8) of the Constitution. Applicant is arguing that section 28 is inconsistent with section 12 (8) of the Constitution to the extent that it violates the rights of litigants before the Labour Court to legal representation.

 

[17]   The leading case in our law on the correct interpretation and application of section 12 (8) of the Constitution is the Court of Appeal case of Attorney-General of Lesotho v ‘Mopa[4], where the court was required to determine whether section 20 of Proclamation 62 of 1938[5], which excluded legal representation in all civil proceedings, was inconsistent with section 12 (8) of the Constitution and therefore invalid to the extent that it did not permit such representation.

 

[18]   The Court, by a unanimous decision of a five member bench, decided that a court, when answering such a question, must utilize the following tests and principles: 

 

          18.1 GENERALLY - How to interpret and apply Chapter II of the    Constitution:

                  It held that “constitutional instruments are interpreted in a different         way from ordinary statutory provisions.  The interpretation of   rights provisions entails a broadly purposive approach, involving    the recognition and application of constitutional values [rather than] a search to find the literal meaning of statutes.  This however      remains an exercise to be undertaken within limits.”  A Constitution         is a legal instrument whose language has to be respected and not be         ignored in favour of a general resort to values’.[6]

 

          18.2 FIRST ENQUIRY – Does section 12 (8) of our Constitution        provide for a constitutional right to legal representation in civil     proceedings generally?

 

                  A. There is no “implied constitutional right to legal representation  in all civil proceedings to be found in the Constitution…[I]t is    apparent from the constitutional scheme [and] the clear and     deliberate contrast between criminal and civil proceedings, that the    Constitution does not intend that.”[7]

                  B. Section 12 of the Constitution mirrors Articles 6 (1) and 6 (3) of         the European Convention on Human Rights, Article 26 of the         African Charter on Human and People’s Rights and Articles 14    (1) and 14 (3) (d) of the International Covenant on Civil and         Political Rights, in expressly guaranteeing a right to legal         representation in criminal cases, irrespective of the nature of the     offence with which an accused is charged[8], and merely a right to a fair hearing in civil proceedings[9].

                  C. The right to a fair hearing in civil proceedings will not                automatically found a claim under the Constitution to legal              representation in all cases. It will only “do so when the   requirements of a fair hearing in turn make legal representation         appropriate.  It follows that such a claim will not lie in all civil       proceedings, in the way it exists…in all criminal proceedings.”[10] 

 

          18.3 SECOND ENQUIRY - How must a court determine whether a   statutory provision excluding or limiting legal representation infringes on the constitutional right to a fair hearing           entrenched in section 12(8) of the Constitution?

                       Such court must scrutinise carefully the exclusion or limitation of legal representation to ensure that the general right the Constitution      confers to a fair hearing in civil matters has not been         undermined.”[11]

                  In instances where the exclusion or limitation is absolute       or      entire, whatever the complexity of the issue or the amount at          stake or the capability of a party to conduct the case unassisted by    a lawyer, it may be found to be inconsistent with the constitutional right to a fair trial.

 

          18.4   THIRD ENQUIRY - If the statutory provision infringes on the             right to a fair trial, is it nevertheless justified?

 

                   It is apparent from the scheme of the Constitution that a limitation          of a Chapter II right is only authorised where it is reasonable and          “demonstrably justified in a free and democratic society”[12].   The         onus of proving that a limitation is justified rests upon the person      averring it[13]

 

Status and identity of the Labour Court

 

[19]   Before applying the above principles and tests to the facts of this case it is necessary to clarify the status, identity and true nature of our Labour Court.  Section 118 (1) of the Constitution provides that “the judicial power shall be vested in the courts of Lesotho which shall consist of”, amongst others, “subordinate courts and courts-martial.”[14] A “subordinate court” is defined, in section 154 (1), as “any court of law established for Lesotho other than (a) the Court of Appeal; (b) the High Court.  (c) a court martial; and (d) a tribunal exercising a judicial function.”

 

[20]   And section 127 of the Constitution provides that “Parliament may establish courts subordinate to the High Court, courts-martial and tribunals, and any such court or tribunal shall, subject to the provisions of this Constitution, have such jurisdiction and powers as may be conferred on it by or under any law.” [my emphasis]

 

[21]   Before 2000 our courts, on several occasions, declared (directly or indirectly) that the Labour Court was not a court.  For instance in CGM v LECAWU & Ors[15] the Court of Appeal said that the Labour Court was “a tribunal exercising a judicial function which has been established by Parliament.           The manifest purpose of the legislature in establishing the Labour Court was to create a specialist tribunal with expertise in labour matters.”  In the earlier case of Attorney General v Lesotho Teachers Trade Union & Others[16] the Court of Appeal seemed to equate the Labour Court with the then Industrial Court of South Africa.  It quoted with approval (and applied to our Labour Court) a decision of the South African Appellate Division that its Industrial Court “does not sit as a court of law at all even when it          discharges functions of a judicial nature.”  It should be noted that these decisions were made before the 2000 amendment of the Labour Code and they were obiter.

[22]   The reasons why the South African judgments[17] relied upon by the          Lesotho Teachers Trade Union case decided that their Industrial Court       was not a court of law were that:

 

                    (i)      its presiding officers were appointed by the Minister of                             Manpower;

                    (ii)     its presiding officers did not have security of tenure similar             to that of judges (i.e. they were appointed for such periods as               the Minister may determine).  The institution therefore lacked                  the necessary degree of independence expected of a court of                    law;

                    (iii)    the industrial court was permitted to consult and take into              consideration information furnished by certain specified state                   bodies.  This was seen as being incompatible with the                         principle of decisional independence.

                    (iv)    the Minister was allowed to correct an omission or error of the                           court;

 

[23]   Our pre-2000 Labour Court was similar to the South African Industrial   Court in that: 

 

                   (i)      its presiding officers were appointed by the Minister [18]and              held office in the Public Service[19];

                   (ii)     its presiding officers did not have security of tenure similar            to that of judges; and

                  (iii)    it did not fall clearly within the judicial hierarchy, but rather           within the Ministry of Labour.

 

[24]   In my view our Parliament in 2000[20], acting pursuant to section 127 of the Constitution, made a deliberate decision to reconstitute the Labour Court as a proper court of law as opposed to the specialized tribunal it previously was, by imbuing and infusing it with all the defining essentials and characteristics of a court.   It is generally accepted[21] that the most important attributes/properties/characteristics that distinguish courts of law from other decision-making bodies and give them their distinctive status as the third branch of government are :-

 

                  (i)      Exercise of judicial power

                  (ii)     Decisional independence from the executive and the                       legislature (and other external influences)

                  (iii)    Adherence to procedural fairness (i.e. impartiality in reality            and appearance; fair hearing)

                  (iv)    Adherence to the open court principle

                  (v)     Accounting for their decisions by publication of reasons

                    (vi)    Presiding officers possess legal qualifications

                    (viii)  Accessibility to all members of the public

                    (viii)  Fall within the judicial hierarchy of the state

                    (ix)    Their decisions are final and binding in the sense that only a           superior body can vary them or set them aside.

 

[25]   The reconfigured Labour Court now possesses the following characteristics which are typical of a proper court of law –

 

                  (a)     its presiding officers (President and Deputy Presidents) are           appointed by the Judicial Service Commission,[22] an                        independent         constitutional organ established primarily to                          appoint judicial officers, exercise disciplinary control over                   them and remove them where necessary.[23] 

                  (b)     its presiding officers do not hold office in the Public                      Service.[24]

                   (c)     they have security of tenure, and may only be removed by              the Judicial Service Commission[25], following stringent                         procedures.[26]

                  (d)     the court has exclusive civil jurisdiction over, inter alia,                          disputes stipulated in section 226 (1) of the Labour Code.               The Court of Appeal case of Vice Chancellor of NUL and             Another v Professor Alan Femi Lana[27]  held that in such                 instances the High Court’s jurisdiction is ousted.

                  ( e)     in terms of the Administration of the Judiciary Act,[28] the                         Labour Court is included in the definition of “judiciary” and           its President, Deputy Presidents and Registrar are included              in the definition of “judicial officer” or “member of the                        judiciary.”[29]

                  (f)      it is a court of record.[30]

                  (g)     it is obliged to give reasons for it decisions or awards.[31]

                  (h)     its judgments are final and binding (subject to review or                          appeal to the Labour Appeal Court).[32]

 

[26]   In view of all this, I am respectfully of the opinion that the whole basis upon which the previous courts decided that the Labour Court was not a court of law has disappeared, particularly with the enactment of the Labour Code amendments of 2000 and the Administration of the Judiciary Act.  Therefore by application of the maxim cessante ratione legis, cessat ipsa lex these decisions have run their course or lapsed.[33]

 

Applying the ‘Mopa principles to the present facts

 

Constitutional right to legal representation in civil proceedings

 

[27]   After ‘Mopa it is now trite that in our law there is no general constitutional right to legal representation in civil proceedings.  Therefore section 28 of the Labour Code cannot be faulted for violating a non-existent right.  However the question which remains to be answered is whether the section infringes on the constitutional right to a fair hearing entrenched in section 12 (8) of the Constitution.

 

[28]   According to ‘Mopa a statutory provision excluding or restricting legal representation may be regarded as infringing section 12 (8) if it is found to undermine the parties’ entitlement to a fair hearing.

 

[29]   In my judgment section 28 (1) (b) of the Labour Code may have this effect because it only allows a party to be represented by a legal practitioner when all the other parties are represented by legal practitioners, regardless         of the complexity of the issue(s), the amount at stake, the ability of the       party           to deal with the case without legal assistance or the consequences of the suit on the litigants.

 

[30]   For example it would seem that the Labour Court would be compelled to refuse a small, inexperienced employer legal representation if the employee it is in dispute with is not himself represented by a legal practitioner, but by a trade union officer (who is happens to be experienced in labour law and labour dispute resolution).  The same would be the case where an employer, represented by an experienced officer of an employer’s organisation, is pitted against an individual inexperienced employee.  Although the raison d’etre of this provision, viz. equality of arms[34], is very      laudable the section, as presently worded, could have dire unintended consequences on a party’s entitlement to a fair hearing.

 

[31]   3rd Respondent sought to minimize the significance of this apprehension by arguing that the Labour Court in fact has a wider discretion whether or not to allow legal representation, because section 28 must be read together with section 228A of the Code, which provides as follows:-

 

                      “Division C:   General provisions concerning conciliation and                                                   arbitration under this Part

                                  228A   Representation in proceedings

 

                      (1)        In any proceedings under this Part, a party to the dispute may                                           appear in person or be represented only by –

                                  (a)        a co-employee.

                                  (b)        a labour officer, in the circumstances contemplated in                                             section 16(b).

                                  (c)        a member, an officer of a registered trade union or                                                  employers’ organization; or

                                  (d)       if the party to the dispute is a juristic person, by a                                                   director, officer or employee.

                      (2)        Notwithstanding subsection (1), a party to a dispute                                                           contemplated in section 226(2) may be represented by a legal                                  practitioner if –

                                  (a)        the parties agree; or

                                  (b)        the arbitrator concludes that it is unreasonable to expect                                           a party to deal with the dispute without legal                                                             representation, after considering –

                                              (i)         the nature of the questions of law raised by the                                                       dispute;

                                              (ii)        the complexity of the dispute; and

                                              (iii)       the comparative ability of the opposing party or                                                      representatives to deal with the arbitration of the                                                      dispute.”

 

[32]   The problem with this argument is that section 28 specifically applies to representation of parties before the Labour Court, whereas section 228A is concerned with representation in conciliation and arbitration proceedings under the auspices of the DDPR.  I am not convinced that the rules of statutory interpretation allow me to apply provisions regulating proceedings before a tribunal such as the DDPR to proceedings before a court of law.  In my view if this was the intention of the legislature, it could have amended section 28 accordingly.  Secondly, one of the cardinal rules of statutory interpretation is that “where a statute is unequivocally clear in its import, the courts must give effect to the intent of the legislature,[35] “even if it is unfair, harsh or unjust.”[36] For these reasons Respondents’ argument is therefore rejected.

 

Inherent Jurisdiction

 

[33]   During argument it was suggested that as the Labour Court has inherent jurisdiction, it has the residual power to decide whether or not to allow a party legal representation in appropriate circumstances.  This argument is fundamentally flawed because the Labour Court, as an inferior court, does not have the inherent jurisdiction possessed by our superior courts.  It is a creature of statute, bound to function within the four corners of its constituent Act, the Labour Code.  In other words, whereas superior courts may do anything that the law does not forbid, inferior courts may do nothing that the law does not permit.[37]  Hence in casu the Labour Court is bound by the strict prescripts of section 28 (1) (b).

 

[34]   Having considered all the submissions, I have come to the conclusion that       once all the other parties are not legally represented, section 28 (1) (b) has the effect of disentitling their opponent to demanding to be represented by a legal practitioner, even if that litigant wishes to be so represented          because of the complexity of the issues etc.  In such a case such restriction might cause the litigant hardship and operate to its prejudice.  This could result in such litigant not having a fair trial.

 

Is this infringement justified?

 

[35]   According to ‘Mopa[38] the two-step test to determine whether the legislature was justified in limiting the entitlement to legal representation of litigants before the Labour Court, is firstly for the government to establish that section 28 (1) (b) has a goal or purpose that is both “pressing        and substantial.” In other words that the provision is both “important and necessary.”  If it is found to be, the second step would be a proportionality analysis:-

 

                  (a)     Here the first question is whether section 28 (1) (b)’s limit of                  the constitutional right to a fair hearing is rationally                        connected to its purpose.  If it is found to be arbitrary or                          unfair, it is not rationally connected and will fail.

 

                  (b)     Secondly, section 28 (1) (b) will be constitutional only if it              impairs the constitutional right as little as possible and is                           “within a range of reasonably supportable alternatives.”

 

                  (c)      Finally, the law in question must have a proportionate effect.                 That is to say the limitation must not be too high a price for           the individual litigant to pay.  The law must strike a balance             between the negative effects of the law weighed against its              beneficial purpose.

 

[36]   Respondents did not advance any cogent arguments why there was a pressing and substantial need to enact section 28 (1) (b).  They instead based their whole case on the argument that the effects of this section are ameliorated by reading it together with section 228A.  I have already indicated that it would be incorrect to use a provision specifically designed for representation in arbitration proceedings before an administrative tribunal (viz. the DDPR) in respect to proceedings before a court of law.

 

[37]   I have also shown that section 28 (1) (b), because it absolutely denies a party whose opponents are not themselves legally represented any entitlement to legal representation, may have the effect of depriving such party of a fair trial.  For this reason even if the rationale of the provision was to somewhat ensure equality of arms, the law as presently framed is over restrictive and as a result constitutionally flawed.

 

[38]   In other words even if it was important and necessary to level the playing fields in labour court litigation, the means the legislature adopted is arbitrary and unfair because it disregards the litigants’ genuine and justifiable need to be assisted by legal practitioners in appropriate cases.  The provision does not just cause minimum impairment.  It is not the best within a range of reasonably supportable alternatives.  The provision does not strike a happy medium between its negative effects as weighed against its beneficial purpose.

 

[39]   In the premises I find that section 28 (1) (b) is unconstitutional and void to the extent that it is inconsistent with the right to a fair civil trial as entrenched in section 12 (8) of the Constitution.

 

What is the appropriate remedy?

 

[40]   Section 22 (2) (b) of the Constitution empowers this Court to “make such order, … and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4 to 21 (inclusive) of [the] Constitution.”

 

Costs

 

[41]   Both parties prayed for costs to be awarded in their favour, if successful.  In civil litigation, ordinarily costs are awarded on the basis of the ‘loser pays’ principle.  That is to say, unless the judicial officer finds exceptional circumstances[39]  which lead her to decide otherwise, the civil norm is that a successful litigant should ordinarily receive his costs.  The rationale behind this rule is that the winner should be indemnified against expenses incurred as a result of litigation that he should not have been required to initiate or to defend.  

 

[42]   However the courts felt that it was necessary to depart from the ‘loser pays’ approach in constitutional litigation.  The locus classicus on costs in constitutional matters in South Africa is the Constitutional Court case of Biowatch Trust v Registrar, Genetic Resources & Others.  The court, inter alia, laid down the principle that “in litigation between the government and a private party seeking to assert a constitutional right, ordinarily, if the government loses, it should pay the costs of the other side, and if the government wins, each party should bear its own costs.”[40] 

 

[43]   According to the court “the rationale for this general rule is threefold.  In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights, ... Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences. Similarly people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they will be deprived of their costs because of some inadvertent procedural or technical lapse. Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but also on the rights of all those in similar situations.  Indeed, each constitutional case that is heard enriches the general body of constitutional jurisprudence and adds texture to what it means to be living in a constitutional democracy.  Thirdly, it is the State that bears primary responsibility for ensuring that both the law and State conduct are consistent with the Constitution.  If there should be a genuine, non-frivolous challenge to the constitutionality of a law or of State conduct, it is appropriate that the State should bear the costs if the challenge is good, but if it is not, then the losing non-State litigant should be shielded from the costs consequences of failure.  In this way responsibility for ensuring that the law and State conduct are constitutional is placed at the correct door.”[41]

 

[44]   The court, however, qualified this rule with the following proviso:

 

          “If an application is frivolous or vexatious, or in any other way manifestly inappropriate, the applicant should not expect that the worthiness of its cause will immunise it against an adverse costs award.  Nevertheless, for the reasons given above, courts should not lightly turn their backs on the general approach of not awarding costs against an unsuccessful litigant in proceedings against the State, where matters of genuine constitutional import arise”[42]

 

[45]   I fully agree with these principles and adopt them for determining costs in the present dispute.

 

 

 

 

 

The Order

 

[46]   For the reasons set out above I am constrained to make the following order:-   

 

                  1.       The application succeeds.

 

                  2.       It is declared that by permitting a party to a hearing before             the Labour Court to be represented by a legal practitioner                   only when all parties are represented by legal practitioners,              section 28 (1) (b) of the Labour Code Act 1992 is                                      inconsistent with section 12 (8) of the Constitution of                      Lesotho 1993 which entrenches the right to a fair civil trial.

                 

                  3.       It is further declared that, with effect from the date of this               order, the following words in section 28 (1) (b) of the Labour                  Code Act 1992 are unconstitutional and invalid: ‘but only               when all parties, other than Government, are represented by               legal practitioners’ and such words are severed from the                              subsection.

 

                  4.       The 2nd to 5th Respondents are ordered jointly and severally            to pay the costs of the applicant, which costs shall include              the costs of two counsel.

 

 

 

 

 

 

____________________

K.L. MOAHLOLI

ACTING JUDGE

 

 

 

 

I agree                          _____________________

L. CHAKA-MAKHOOANE

JUDGE

 

 

 

 

I agree                          ______________________

E.F.M. MAKARA

JUDGE

 

 

 

 

For the Applicant                    :          Adv Mohapi (with Adv L Matee)         

 

For the 2nd to 5th Respondents:           Adv RA Ntema

 

 

 

 

 

 

 

[1] per LAC/CIV/A/22/2013, paragraph 4.1

[2] Labour Code Act No.24 of 1992 (as amended by Act 9 of 1997, Act 3 of 2000, Act 5 of 2006 and Act 1 of 2010)[“the Labour Code”]

[3] The Constitution of Lesotho 1993

[4] 2002 (6) BCLR 635 (LesCA)

[5] The Central and Local Courts’ Proclamation

[6] para 17 of the judgement (edited)

[7] para 20 of the judgement (edited)

[8] Section 12 (1)-(7), particularly 12 (1) (d)

[9] Section 12 (8) (10), particularly 12 (8)

[10] para 23 of the judgment (edited)

[11] para 26 of the judgment (edited)

[12] Para 33 of the judgment

[13] Para 34 of the judgment

[14] Section 118 (1) (c)

[15] 1999-2000 LLR-LB 1 at 6

[16] 1991-1996 LLR 16 at 24-25.  The only case I could find where the Labour Court was found to be a court of law is Makalo Teba v Maseru City Council

[17] Esp. SA Technical Officials Association v President of the Industrial Court and Others).  Also Vereniging van Bo-grondse Mynamptenare van Suid-Afrika v President of the Industrial Court and Others.

[18] Old section 23(1) of the Labour Code

[19] Old section 23(3) of the Labour Code

[20] per the Labour Code (Amendment) Act 3 of 2000

[21] See for example Wiechers 1976: 36-37; Wiechers 1985: 102-103; Hosten 1995:1048-1049; Chief Justice Robert French AC, “Essential and Defining Characteristics of Courts in an Age of Institutional Change”, accessed at www.hcourt.gov.all/assets/publications/speeches/current-justices/frenchcj21jan13.pdf on 13/05/2015

[22] Section 23(1) of the Labour Code

[23] Section 132-133 of the Constitution

[24] Section 23(3) (a) of the Labour Code

[25] Section 23(3) (c) of the Labour Code

[26] Section 23(3) (d) of the Labour Code

[27] C of A (CIV) No.10/2002

[28] No.16 of 2011

[29] Section 3

[30] Rule 19 of the Labour Court Rules 1994

[31] Rule 21 of the Labour Court Rues 1994

[32] Section 38A of the Labour Code

[33] Cf Schorsch Meier GmbH v Hennin, [1975] 1 All ER 152

[34] The principle of equality of arms essentially means that each party must be afforded a reasonable opportunity to present its case – including its evidence – under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent, Dombo Beheer v Netherlands at para 33.  Further, that where parties are legally represented  in litigious proceedings, their  representation should be commensurate, Brickhill & Friedmann 59-73

[35]Devenish 1992:162

[36] Van Heerden & Crosby 1996:66

[37] Herbstein & Van Winsen 1997:38

[38] Applying the seminal Canadian case of R v Oakes

[39] Such as: (a) conduct of parties; (b) conduct of legal representatives; (c) nature of litigants: (d) nature of proceedings; (e) whether a party as has had only a technical success.

[40] At para 22

[41] At para 23

[42] At para 24