IN THE COURT OF APPEAL OF LESOTHO
Held at Maseru
C of A (CIV) NO. 7/2014
In the matter between:
CHEN YUN BO
APPLICANT
and:
PABALLO MARTIN THEKO
FIRST RESPONDENT
THE PRESIDENT OF THE
SECOND RESPONDENT
LABOURCOURT
THE DIRECTORATE OF DISPUTE
PREVENTION AND RESOLUTION
CORAM
:
SCOTT, A.P.
THRING, J.A.
CLEAVER, A.J.A.
HEARD
:
7 APRIL, 2014
DELIVERED
:
17 APRIL, 2014
THIRD RESPONDENT
2
SUMMARY
Application under sec. 38AA(2) of Labour Code Act, 1992, as
amended, for leave to appeal to Court of Appeal from order of
Labour Appeal Court – Ground relied on that Labour Appeal Court
ought to have referred matter back to Labour Court for hearing of
vivavoce evidence or to trial – Such referral not requested in Labour
Appeal Court – Not open to applicant now for first time to rely on
this ground – Material dispute of fact arising in motion proceedings
– Discretion of Court to refuse application – Not to be interfered
with on appeal unless discretion not exercised judicially, or
exercised on a wrong principle.
JUDGMENT
THRING, J.A.
[1]
Before this Court are two applications. The first is an
application brought by the applicant in terms of sec.
38AA(2)
of the Labour Code Act, 1992 as amended, for leaveto
appeal to this Court against an order made by the Labour
Appeal Court (per Mosito, A.J.) on 7 November, 2013.
The order was made in refusing a certain prayer in the
applicant’s review application, in which he had sought on
motion to have reviewed certain proceedings in the Labour
Court which took place in November, 2012. The dispute
between the parties arose out of an award for payment of
M53,128.30 which was made on 19 July, 2012 by the third
3
respondent (the Directorate of Dispute Prevention and
Resolution) in favour of the first respondent against a
company called Chen Feng International (Pty) Ltd in respect
of the underpayment of his resignation benefits. The
applicant applied unsuccessfully on 27 January, 2014 to
Mosito, A.J. in the Labour Appeal Court for a certificate for
leave to appeal against his order to this Court under the
provisions of sec. 17 of the Court of Appeal Act, No.10 of
1978
the
(the application ought to have been brought in terms of
similarly worded section 38 AA(2) of the Labour Code Act,
which is the applicable provision, but nothing turns on this
error).
[2]
Sec. 38 AA(2) of the Labour Code Act, as amended,
as
follows:
reads
“A person aggrieved by any judgment or order
of the Labour Appeal Court in its appellate
jurisdiction may appeal to the Court of Appeal
with leave of the Court of Appeal or upon a
certificate of the Judge who heard the appeal
on any ground of appeal which involves a
question of law, but not a question of fact.”
It is common cause that, in dealing with the review of the
proceedings of the Labour Court the Labour Appeal Court
was exercising its appellate jurisdiction. That being so, an
appeal to this Court lies only on a ground of appeal which
involves a question of law, as opposedto one of fact, and
4
then only with the leave of this Court or upon a certificate of the
Labour Appeal Court.
As I have said, the Labour Appeal
Court has refused to grant such a certificate.
Hence the
application to this Court.
[3]
The grounds on which the applicant now seeks leave to
appeal to this Court are formulated as follows:
“(1) The learned Judge erred and misdirected himself, after
concluding that there existed [a] dispute of fact, by
failing to consider:(a)
Whether or not to direct that oral evidence should
be heard on specified issues with the view to
resolving any dispute of fact;
(b)
Whether or not to direct that the matter be
converted into a trial with appropriate directions
as to pleadings or definition of issues.
(2)
The learned Judge erred and misdirected himself by
failing to apply the principle that the party who alleges
a certain fact bears the onus of proving that fact. First
respondent bore the onus of proving that appellant
/applicant
International
[4]
was
the
director
of
Cheng
Feng
(Pty) Ltd.”
At to ground (1) above, it is significant that there is no
mention in the judgment of Mosito A.J., against which the
5
applicant now seeks leave to appeal, of any possible
reference of the matter to the hearing of viva voce evidence or to
trial.
After setting out the relief claimed by the applicant
and the
factual background, the learned Judge said:
“The sum total of the aforegoing is that there is
not one granule of doubt in my mind that there
are genuine andsubstantial disputes of facts on
the material aspects on the papers. In view of
the magnitude of the dispute of fact identified
below, there is no need to determine any
further issues arising”.
After setting out the content of the principal factual
dispute, the Judge continued:“3.4 In our view there is therefore a dispute of
fact in this matter as to who of the two is
responsible as the managing director of Chen
Feng International (Pty) Ltd. Is it the father or
is it the son? A litigant desirous of obtaining
judicial relief by way of notice of motion and
affidavits takes a risk. There can be us crossexamination of affidavits and, therefore, an
assessment of credibility of witnesses is hardly
possible. A principle which is fundamental to
all notice ofmotion proceedings is that if a
litigant knows in advance that there will be a
material dispute of fact, the litigant cannot go
6
by way of motion and affidavit.
If he or she
nevertheless proceeds by way of motion he or
she runs the risk of having his or her case
being dismissed with costs.
Union
of
Namibia
(Mineworkers’
vRössing
Uranium
Limited, 1991 NR299; Tamarillo (Pty) Ltd v
B.N. Aitken (Pty) Ltd 1982(1) SA 398 (A)).
3.5 The dispute as to whether Chen Yong Biao
or his son Chen Yun Bo are liable to abide by
the award from the D.D.P.R. to pay the first
respondent cannot be resolved on paper.
In
my view the proper approach where a dispute
of this nature exists as in casu is to assume the
correctness of the version of the respondent.
In the present case the applicant has opted to
approach the Court by notice of motion and
affidavits. But from the papers I find that there
is a substantial and genuine dispute of facts on
the material aspects which go to the root of the
lis
between
the
applicant
and
the
first
respondent. If such approach is adopted then
the
application
by
the
applicant
cannot
succeed.”
[5]
It is true that High Court Rule 8(14) provides that:
“If in the opinion of the court the application
cannot properly be decided on affidavit the
7
court may dismiss the application or may make
such order as to it seems appropriate with a
view
to ensuring
a
just
and expeditious
decision. In particular, but without limiting its
discretion, the court may direct that oral
evidence be heard on specified issues with a
view to resolving any dispute of fact….. or it
may order that the matter be converted into a
trial with appropriate directions as to pleadings
or definition of issues, or otherwise as the
court may deem fit.”
There is no corresponding provision in the rules of the
Labour
Appeal Court, which is not surprising inasmuch as
that Court is not a court of first instance.
However, Mr
Chobokoane, who appears for the applicant, argued that
the
Labour Appeal Court ought to have referred the matter back
to the Labour Court to hear such evidence or trial, where
the
necessary legal machinery exists to provide therefor.
[6]
Mr Chobokoane confirmed before us that in the Labour
Appeal Court nobody asked that Court to refer the matter
back for the hearing of oral evidence or to trial : hence the
complete silence of Mosito, A.J. on that aspect in his
judgment.
[7]
I conclude that the first ground on which the applicant now
wishes to base his appeal to this Court, viz the failure of the
8
Labour Appeal Court to refer the matter to oral evidence or
to
trial –
(a)
even
seeks to raise an issue which was not canvassed or
raised during the review proceedings in the Labour
Appeal Court, and was consequently not considered or
dealt with by that Court in its judgment;
(b)
was in the nature of an afterthought which the
applicant
now seeks to introducefor the first time at this
very
late stage in this Court.
[8]
A civil court deals, generally speaking, with issues which are
placed before it by the parties to the dispute with which it
is seized by way of formulation either in pleadings or in
affidavits : it is not usually incumbent on the court to find,
formulate or resolve issues which have not been thus raised
by the parties. This is especially the case where, as here,
the
court concerned is exercising its civil review powers. Whilst
a court may have powers such as those mentioned in High
Court Rule 8(14) which it may in appropriate circumstances
and in its discretion exercise meromotu, where it does not do
so it does not, generally speaking, lie in the mouth of a
partywho has not asked it to exercise those powers to complain
afterwardsthat it ought to have done so meromotu. The
South African equivalent of High Court Rule 8(14) is
Uniform
Rule 6(5) (g).
It has been held that a Court has a
discretion under this Rule, which will not be interfered with on
appeal
unless it has not been exercised judicially, or has been
9
exercised on a wrong principle : seeCresto Machines v
Afdeling-Speuroffisier, S.A. Polisie, 1970 (4) SA 350 (T) at
365 F-G. This, in effect, is exactly what the applicant seeks
to do here :material disputes of fact arose in the Labour
Appeal Court which were not capable of resolution on the
papers; one of the remedies which the applicant could have
requested, at least in the alternative, was an order referring
the matter back to the Labour Court for oral evidence or for
trial; he refrained from doing so, and was apparently
content
to have the matter finalised on the papers in the
Labour
Appeal Court. In my view, in these circumstances it is
not open to the applicant now in this Court to attack the order
made by the Labour Appeal Court on this new ground.
[9]
The prospects of an appeal succeeding on this ground are so
slight that granting leave to appeal on it could not, in my
opinion, be justified.
One of the requirements in an
application for leave to appeal is that there must be
reasonable prospects of the appeal succeeding : see van
Heerden v Cronwright and Others, 1985(2) SA 342(T) at
343 C-D and Westinghouse Brake and Equipment (Pty)
Ltd vBilger Engineering (Pty) Ltd, 1986 (2)SA 555 (AD) at
561 D-E. There are no such prospects here, to my mind.
first application must consequently fail as far as
this
The
ground
is concerned.
[10] As regards ground (2) above, on which leave is sought to
appeal against the Labour Appeal Court’s order, it seems to
10
me that there is no merit in it. Having found correctly that
there were genuine and substantial disputes of fact on
material aspects of the matter on
A.J.proceeded to assume the
the
papers,
Mosito,
correctnessofthefirst
respondent’s version for the purposes of the review. That
approach was in accordance with the principles set out in
Plascon – Evans PaintsLtd v van Riebeeck Paints (Pty)
Ltd, 1984(3) SA 623 (AD) at 634 E – 635 C, and I can find
no
fault with it. I am not persuaded that there is a reasonable
prospect that this Court might find that the Labour Appeal
Court failed to apply any principle relating to onus in this
matter.
[11] The second application before us may be disposed of very
briefly. It is an application for an interim stay of execution
of
Mosito, A.J.’s order of 7 November, 2013 and an interim
order restraining the payment by the second respondent of
the aforesaid sum of M53,128.30 to the first respondent,
both “pending final determination of this application and appeal”.
But since this money has already been paid over to the first
respondent, the application has become moot and falls
away,
be
and no more need be said about it, save that it must
refused.
[12] For the above reasons both the applicant’s application for
leave to appeal to this Court and his application for a stay of
execution
and
for
an
order
restraining
the
second
11
respondent
from effecting payment of the sum of M53,128.20
to the first
respondent are refused, with costs.
__________________
W.G. THRING
Justice of Appeal
I agree:
________________
D.G. SCOTT
Acting President
I agree:
________________
R.B. CLEAVER
Acting Justice of Appeal
For appellant
:
For respondent :
A.M. Chobokoane
M.A. Kumalo