MASERU — Bofihla Makhalane, the former security manager at Lets’eng Diamond who was fired in 2007, has lost his final bid to get his job back. This will put closure to one of the most publicised, long-drawn-out labour disputes in the country’s recent history. Originally, in 2008 Makhalane was claiming M200 million from Lets’eng Diamond after he said he had been unfairly dismissed the previous year.
The Directorate of Dispute Prevention and Resolution (DDPR) in 2008 ruled that Makhalane had been unfairly dismissed and ordered Lets’eng Diamond to reinstate him. But Lets’eng Diamond appealed against the DDPR judgment arguing that the arbitrator in the case had dismissed critical evidence as hearsay when it was not.
Lets’eng Diamond wanted a review of the case arguing that the arbitrator, in law and in procedure, had arrived at an erroneous verdict. The mine said there were no grounds for the arbitrator to reach her judgment. Makhalane was fired in July 2007 for allegedly breaching security at the mine. Last week the Court of Appeal dismissed an application by Makhalane to be heard by the Labour Court sitting as a court of first instance.
He had brought an application in the Court of Appeal against Lets’eng Diamond. He made an application in terms of section 38 A (3) of the Labour Code Order 24 of 1992 as amended. His application was to the effect that his case in 42/2011 should be heard by the Labour Appeal Court sitting as the court of the first instance. This application was dismissed by the president of the Court of Appeal Justice Kananelo Mosito. Some of his grounds of appeal in claiming the relief he sought was that the president of Labour Court and the deputy president of the Labour Court have close friendship with the senior managers at Lets’eng Diamond.
He had claimed that if both the president and his deputy have very strong friendship with the senior managers of the company, it goes without saying that they will have a peculiar interest in the matter. He said the president of the Labour Court had shown that he was biased against him. He said the deputy president of the Labour Court engaged in delaying tactics and that the way she had handled the matter showed she was biased, Makhalane said.
In his founding affidavit in the application brought under LC 42/2011, he outlined the dispute between himself and the first respondent (Lets’eng Diamonds). He said he had worked at the mine as security manager from April 2006 until October 8, 2007 when he was dismissed. He referred the dispute arising out of his dismissal to the Directorate of Dispute Prevention and Resolution (DDPR).
He said arbitrator who sat over the matter found that the dismissal was unfair both procedurally. She ordered the mine to reinstate him (appellant) in his position and to pay him his outstanding wages. Lets’eng Diamonds applied to the Labour Court for an order reviewing and setting aside the arbitrators’ award. The deputy president of the labour court upheld the Lets’eng’s contentions and set aside the award.
On appeal, the Labour Appeal Court, Acting Judge Justice Mosito and his assessors allowed the appellant’s appeal and reinstated the arbitrator’s award. According to the court papers the respondents opposed the application under section 38 A (3) of the Labour Code Order as amended. The mine’s chief executive officer (Ms) Mazvivamba Maharasoa strongly denied that there is a close friendship between the president and deputy president of the Labour Court, and senior managers of the the Lets’eng Diamond.
She contended that the appellant’s suspicion of bias against president and deputy president and also the judge was not that of a reasonable person. She further stated that no reasonable grounds of suspicion were stated. The application was dismissed by Justice Mosito wherein, amongst others, he said he was unable to find any fact indicating bias on the part of either the president or the deputy president or judge.
Court of Appeal judge, Justice Ian Farlam observed that the appellant did not challenge Judge Mosito’s finding that appellant had not established bias or the likelihood on the part of the president of the Labour Court. Justice Farlam dismissed appeal with costs.