Matela fights on

Mohloai Mpesi

The former Lesotho Communications Authority (LCA) Chief Executive Officer, ‘Mamarame Matela has taken up her labour fight against the communications ministry a notch higher and approached the Appeal Court regarding her supposedly unfair suspension.

This was discussed this week at the Appeal Court which was presided by Namibian born Justice Petrus Damaseb and Johann Van Der Westhuizen as well as the Zimbabwean born Moses Chinhengo where Matela’s representative, Christopher Lephuthing contended that the reasoning of Justice Polo Banyane who was presiding over the case at the Labour Court of Appeal was confused and that the matter had no jurisdiction at the Labour Appeal Court.

“Our submissions are that even when he (Keketso Sello then communications minister) suspended the CEO, the Minister exercised public power as envisaged in the Communications Act of 2012, not the administration action taken in the performance of any function in terms of this Act” he argued.

Lephuthing further argued that the decision was not taken in terms of the Labour Code but in terms of Communications Act 2012 which he said could not be separated from the sphere of section 38 (a). The judgment in the matter where Matela was suspended along with the Chairman of the Board of Directors Motanyane Makara by the former Minister of Communications, Science and Technology, Keketso Sello last year, was handed down in the Labour Appeal Court by Justice Banyane.

“I am so submitting because the contract of employment for the appellant is subgenres. It is of such a nature that the executive through the minister of Communications, Science and Technology consents to her employment when effectively she is embroiled by the LCA,” Lephuthing said.

“I wish to commend advocate Ndebele on the mature approach he has now taken in his Heads of Argument. He is now departing from the confused reasoning in the judgment, he is not supporting it. So I pursued you my Lords the appeal be upheld with costs.

In her final ruling, had Banyane indicated that the matter had no jurisdiction before the Labour Appeal Court and was dismissed for lack of jurisdiction with costs.

“Having concluded that the decision under scrutiny amounts to an administrative action, but not taken in the performance of a function under the Labour Code nor any Labour Law, we conclude further that it fails to meet section 38 (a) requirements,” she said.

“For this reason, the applicant’s claim is not justifiable in this court. We however, refrain from expressing any view on the question whether a decision to suspend an employee made by a functionary pursuant to a specific empowering statute is challengeable. This is because no comprehensive argument was made in this regard. It suffices to conclude that this court does not have jurisdiction to hear this matter,” she said.      

“In the result, the point of law is upheld and the application is dismissed with costs for lack of jurisdiction,” she said.  

Lephuthing quoted in paragraph 49 of the judgment which read that… “What may fall in to this category is not clearly discernable from the code. It is our considered view that what the legislature envisaged herein is perhaps legislation such as workmen’s compensation Act 13 of 1977, the common law, International Labour Organisation Conventions etc. the communications Act does not in our view fall under “any Labour Law.”

He continued that, “Her Ladyship does not tell us where the Communications Act falls, and she is also misconceiving what comprises the common law, this reasoning is flawed in our view. It is not the only flawed reasoning,” he said.

He charged that paragraph 46 on the same page of the judgment is also flawed which makes the whole ruling faulty… “It is indisputable that the minister does not derive his powers from the Labour Code. This power is conferred on him by the Communications Act. As stated in Thabane vs NUL (supra), the view envisaged in the provision under consideration relates to functionaries under the Labour Code. Clearly the Minister of Communications is no such functionary,” the judgment read.

“This is one another flawed reasoning; the Minister of Communications is actually the one who has consented to the appointment of my client as the CEO, so why is he not one of the functionaries? I don’t support this reasoning,” he said.

“In her judgment, that’s what the minister in taking the impugned decisions we have subjected to review, she consist that he exercised public power. Are they the judgment concedes that what the Minister did is constituted in the administrative action of suspending and appointing Kulang,” he asked.

“With the understanding of your Ladyship that it was an administrative action, she doesn’t provide us with the basis of removing it from the sphere of section 38. This judgment is confused,” he said.

However, the defendant representative, Qhalehang Letsika debated that the decision of the Labour Appeal Court is correct as minister Sello was exercising his administrative action as per section of the Labour Code.

“Our submission is that the judge (Banyane) is correct, the suspension was not only within the framework of section 38 and we submit that this is key because the Minister was simply exercising his managerial powers which are quoted in section 3 of the Labour Code. In other words, the minister was acting as an employer to the CEO exercising his powers to suspend.

“In the event where he was discharging administrative action within the contemplation of section 38, we submit that administrative action was not performed within the Labour Code or any other Labour Law,” he said.

He quoted the Section 3 of the Labour Code which defines the employer in the following terms… “Employer means any person undertaking corporation, company, public authority or anybody who employs any person who works under the contract,” he said.

“Our submission is that the appropriate forum to deal with this matter is the Labour Court, in view of the provisions of section 3 of the Labour Code. In the alternative, the court that has the power to exercise jurisdiction in this matter would be the High Court and in view of the provisions of the Communications Act.

“It is sufficient for purposes of this appeal to hold that the Labour Appeal Court didn’t have jurisdiction to undertake the matter,” he said.