Mohloai Mpesi
The suspended Lesotho Communications Authority (LCA) Chief Executive Officer (CEO) Mamarame Matela’s appeal case at the Court of Appeal to have the Labour Appeal ruling against her suspension reviewed has been dismissed.
This judgment was read by the Court of Appeal President, Kananelo Mosito last week where he pointed out that the case has been dismissed with costs. The written judgment transcribed by the Namibian born Acting Justice of Appeal, Justice Johann Van Der Westhhuizen explained that the Communications Act empowers the Minister to appoint and dismiss the CEO.
“Essentially the LCA correctly determined that the Minister’s conduct was administrative action, but that it was not performed in terms of the Labour Code, or any other Labour law, as required by section 38A (1) (b)(iii). The difference between suspension and dismissal, emphasized by the appellant, matters little. The Communications Act empowered the Minister to appoint and dismiss the CEO. This he did. Cautionary suspension does not have to be expressly authorized, separately from dismissal.
“The appellant should not have approached the LAC directly. It lacked jurisdiction. The appeal cannot succeed. There is no reason why costs should not follow the event. The appeal is dismissed with costs,” The judgment reads.
This paves way for Matela’s tribunal to be staged in order to test her fitness into running the office as all her exhausted means to escape the axe have been explored.
Matela was appointed by the former Minister of Communication, Thesele Maseribane as Chief Executive Officer (CEO) of the Lesotho Communications Authority (LCA) in 2019. By virtue of designation, she became a member of the Board of Directors which was then chaired by Motanyane Makara.
She was suspended on June 3, 2021 from her position of CEO and evidently as a member of board of directors on allegations of corruption or irregular involvement in the tendering process and award of a certain tender to Global Voice Group Company in South Africa.
According to the minister the board resolved, in its meeting held on June 2, 2021 that an investigation into the award of the tender must be conducted and that her presence in the workplace during the period of investigation would not be viable, and that she be placed under precautionary suspension pending the outcome of the investigations.
Whilst on the other hand, Makara’s chairmanship and membership of the Board was merely terminated on the grounds of alleged incompetence to act as a chairman of the board, irretrievable breakdown of relationship with the Minister and suspicious relationship with the CEO on May 27, 2021. The duo was replaced by Keneuoe Mohale as the Acting chairperson and Nizan Goolam as Acting CEO.
Matela ran to the High Court to review Justice Polo Banyane’s Labour Appeal Court’s ruling where she declined her appeal in which she questioned her suspension.
Justice Banyane ruled that the Labour Appeal court had no jurisdiction to listen to the matter.
“Having concluded that the decision under scrutiny amounts to an administrative action, but not taken in the performance of function under the Labour Code nor any other Labour law, we conclude further that it fails to meet the section 38A requirements. For this reason, the applicant’s claim is not justifiable in this court,” Justice Banyane said in her ruling.
“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 before the Labour Court. 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.
“In the result, the point of law is upheld and the application is dismissed with costs for lack of jurisdiction,” she said.
Matela was represented by Advocate Christopher Jobo Lephuthing, arguing that Justice Banyane erroneously declined to entertain her appeal despite the fact that court has jurisdiction to hear the matter. The case was heard on October 19, 2021.
He argued that the minister (Keketso Sello as he then was) in suspending and removing the first and second applicants respectively and subsequently replacing them… “Exercised administrative powers or functions under section 14 of the Act, that the action amounts to an administrative action reviewable by this court in terms of section 38 (A),” he said.
Westhhuizen adviced that forum shopping must be discouraged as litigants believe that they might get a better deal from another court.
“It is correct that the two courts mentioned are specialist courts in the field of Labour relations. They must be used. Forum shopping should be discouraged. Each and every Labour matter within their wider mandate of the specialization field of Labour issues does not have to be explicitly stated in legislation.
“However, it is one thing to emphasize the expertise of the LC and LAC and to defend their turf against forum shopping by litigants who believe that they might get a better deal from another court; but it is quite another thing to summarily make an appeal court a court of first instance.
“Remarkably, in the quotation above, the LC and LAC are both mentioned, together, with regard to their broad mandate in Labour-related matters. When jurisdiction is referred to, only the LC is mentioned though.
“The purpose of section 38A of the Labour Code is to establish the exclusive jurisdiction of the LAC. Thus it provides for the LAC to hear appeals against final judgments and orders of the LC. It grants limited direct access for reviews described in Subsection (iii), which should not be given an unduly wide interpretation,” the judgment reads.
