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
1
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
2
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
3
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
4
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
Code2, 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
per LAC/CIV/A/22/2013, paragraph 4.1
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”]
2
5
“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;
6
(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
7
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)
3
…………………. ;
The Constitution of Lesotho 1993
8
(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
9
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
10
Attorney-General of Lesotho v ‘Mopa4, where the court was required to
determine whether section 20 of Proclamation 62 of 19385, 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
4
2002 (6) BCLR 635 (LesCA)
The Central and Local Courts’ Proclamation
6
para 17 of the judgement (edited)
5
11
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 charged8, and merely a right to a
fair hearing in civil proceedings9.
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
7
para 20 of the judgement (edited)
Section 12 (1)-(7), particularly 12 (1) (d)
9
Section 12 (8) (10), particularly 12 (8)
10
para 23 of the judgment (edited)
8
12
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 it13.
Status and identity of the Labour Court
11
para 26 of the judgment (edited)
Para 33 of the judgment
13
Para 34 of the judgment
12
13
[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 & Ors15 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 & Others16 the Court of Appeal seemed to equate the Labour
14
Section 118 (1) (c)
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
15
14
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 judgments17 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;
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.
15
[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 Service19;
(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 200020, 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 accepted21 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)
18
Old section 23(1) of the Labour Code
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
19
16
(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 Commission25, following stringent
procedures.26
22
Section 23(1) of the Labour Code
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
23
17
(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 Lana27 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
27
C of A (CIV) No.10/2002
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
28
18
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,
19
viz. equality of arms34, 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
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
20
(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
35
Devenish 1992:162
Van Heerden & Crosby 1996:66
36
21
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 ‘Mopa38 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:-
37
38
Herbstein & Van Winsen 1997:38
Applying the seminal Canadian case of R v Oakes
22
(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
23
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
24
circumstances39 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
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
25
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.
41
42
At para 23
At para 24
26
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.
27
____________________
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
28