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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

2

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

3

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

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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

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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 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

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”]

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“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 –

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(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.”

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[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 –

3 The Constitution of Lesotho 1993

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(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 (2nd

Respondent) did exercise

his residual discretionary power whether to allow Applicant legal

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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.

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[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 ‘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)

5 The Central and Local Courts’ Proclamation

6 para 17 of the judgement (edited)

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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)

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

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

10 para 23 of the judgment (edited)

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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) 12

Para 33 of the judgment 13

Para 34 of the judgment

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[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 Court with the then Industrial Court of South Africa. It quoted 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

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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;

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

Court in that:

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.

16

(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)

(iii) Adherence to procedural fairness (i.e. impartiality in reality

and appearance; fair hearing)

(iv) Adherence to the open court principle

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

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(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

(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

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

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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

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.

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

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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 arms34

, is very laudable the section, as presently

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

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

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(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,

35

Devenish 1992:162 36

Van Heerden & Crosby 1996:66

22

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:-

(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.

37

Herbstein & Van Winsen 1997:38 38

Applying the seminal Canadian case of R v Oakes

23

(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

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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 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

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.

25

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

40

At para 22

26

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:-

41

At para 23 42

At para 24

27

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

28

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