HIGH Court judge, Justice Tšeliso Monaphathi, is expected to deliver his judgment “later this month” in a case in which four expatriate lawyers are challenging the decision by Labour and Employment Minister Thulo Mahlakeng to refuse to renew their work permits.
On Wednesday, the court heard an application filed by Attorneys Daniel Gerhardus Roberts, Denis Peter Molyneaux, James John Grundlingh and Albertus Jacobus Kleingeld, of the prominent Maseru-based law firm, Webber Newdigate who are all South African nationals.
Evidence before the court is that Webber Newdigate is a “specialist” law firm which commenced its operations in Lesotho around 1978. The law firm boasts of clients such as the government of Lesotho, Central Bank of Lesotho and financial institutions, insurance companies and other corporate agencies.
However, Webber Newdigate’s operations, argue the applicants, have recently come under threat after Advocate Mahlakeng refused to renew their work permits since 2015. The lawyers are also partners in the law firm, according to their submission before the court.
In the application they filed in May 2016, the lawyers want the court to “review and set aside” a decision by Advocate Mahlakeng to refuse to renew their work permits.
They want the court to also order Labour Commissioner ’Mamohale Matsoso, “as provided for in section 166(3) of the Labour Code Order 1992 as amended,” to extend their work permits for a further two years “as from the date of finalisation of these proceedings”.
Advocate Mahlakeng, Commissioner Matsoso, Commissioner of Police Molahlehi Letsoepa and Attorney-General Tšokolo Makhethe, are cited as first to fourth respondents respectively in the matter.
The expatriate lawyers also seek an order compelling Advocate Mahlakeng, Commissioner Matsoso and Commissioner Letsoepa to allow them “and all other expatriate partners of the firm” to continue practising their trade pending the finalisation of the application.
In an affidavit he made on the lawyers’ behalf, Attorney Roberts states he is “a major male attorney” admitted to practise in both South Africa and in Lesotho.
“I am entitled to a right of audience in the courts of Lesotho. The other three applicants herein are all, like me, attorneys admitted to practise in both South Africa and Lesotho.”
In addition, he says each of them is in possession of a practising certificate from the Law Society of Lesotho.
“In order to obtain such a certificate, an attorney must show to the Law Society of Lesotho that he is in good standing with it; has provided an auditor’s certificate that his trust account is in order and that he has an office in Lesotho manned full-time by an attorney,” states Attorney Roberts.
“Almost from the outset, the partners of Webber Newdigate have included both South African and Lesotho attorneys. Webber Newdigate also employs and provides ongoing training for NUL (National University of Lesotho) graduates who are trained as Articled Clerks with a view of preparing them for the Attorneys Admission Examination and future practice in Lesotho.”
He also submits that over the years, Webber Newdigate partners “have emerged from this body of trained Articled Clerks while a number of other clerks enter practice for themselves, join big corporations, government service and parastatals, such as the Lesotho Revenue Authority”.
“Webber Newdigate has thus over a long period of time made a considerate contribution to providing skills to local lawyers for the benefit of, amongst others, the pool of practising legal practitioners, business, government and parastatals.”
Attorney Roberts further observes the total amount of law firms in Lesotho was small and “probably not more than 20”.
Accordingly, he says, Webber Newdigate is not, “generally, in competition with local attorneys as the services which it provides are generally highly specialised and not provided to any material extent by local attorneys.”
He notes some of their clients also include Nedbank Lesotho Limited, Lesotho National Insurance Group and Alliance Insurance.
“Despite the fact that there are many advantages to practising in partnership, the Labour Code of 1992 provides in section 165(2) that a person who is not a citizen of Lesotho may not work as a partners in Lesotho unless he or she has ‘…a valid certificate of employment (work permit) issued by the Labour Commissioner’.”
He says it is apparent the certificate of employment is granted by the Labour Commissioner as provided in section 166(2) of the Labour Code.
Attorney Roberts also notes that, in terms of section 66(3), the certificate may be cancelled or extended “. . . at the discretion of the Labour Commissioner.”
He argues as required by the Labour Code, section 165, the applicants applied for such certificates of employment in the prescribed form before their existing work permits expired.
“We heard nothing further from the Labour Commissioner until her letter dated 27 October 2015 indicating that all four applications had not been approved because the application forms had allegedly not been properly completed.
“On a reading of the abovementioned letters, it was not clear to us whether the certificates of employment would be reconsidered once the queries raised in the letters had been responded to. So, one of the partners of Webber Newdigate,’Mateboho Tohlang (who had signed the applications for the work permits) contacted the Labour Commissioner and requested a meeting to discuss the letters with her.
“Such a meeting was held but the Labour Commissioner was not able to assist as she told Ms Tohlang that it was the minister who had made the decision to not approve the certificates of employment and that we needed to speak to him as it was he who had raised the queries. Ms Tohlang attempted to speak to the minister but was told to speak to the principal secretary, Advocate Karabo Tlhoeli.”
Attorney Roberts says Advocate Tlhoeli was always busy, adding it was not possible to obtain an appointment. As a result, he says, on 22 January 2016, Ms Tohlang wrote a letter to the Labour Commissioner, recording what had happened and setting out responses to the queries raised in the letters of 27 October 2015.
Shortly after the letter of 22 January 2016, Attorney Roberts says Ms Tohlang was invited to a meeting with Advocate Tlhoeli where she motivated for the lawyers.
“At the end of the meeting, Ms Tohlang’s impression was that she had satisfied the principal secretary that the work permits should be issued to the applicants but he indicated that he had first to discuss this with the minister – because it was the minister who had decided to refuse the applicants their work permits.”
For their part, the respondents have since opposed the lawyers’ application noting, that the High Court has no jurisdiction to determine the matter.
The respondents’ lawyer, Advocate RA Ntema submits that Advocate Mahlakeng, “after receiving the recommendations then applied his mind and discretion not to approve the applications”.
“It is our humble submission that, the source of the power exercised by the first respondent (Advocate Mahlakeng) is Labour Code Order of 1992, it is also the legislation which he sought to implement, therefore exercising public power hence in law an administrative action,” argues Advocate Ntema.
“Applicants are applying to this court for review of first respondent’s administrative action, performed under the Labour Code Order. Section 38A(b)(iii) of the Labour Code (Amendment) Act No.3 of 2000, lays down as a requisite jurisdictional fact for success on judicial review by the Labour Appeal Court, an impeached conduct must constitute administrative action performed under the Act or any labour law.”
The section, Advocate Ntema notes, has a grave bearing on the matter since it deals specifically with the review of administrative action performed under the labour laws.
“It is our humble submission that the provisions thereof are expressed, clear and concise that the only court that has jurisdiction to entertain the review of administration actions performed under the labour laws is the Labour Appeal Court.”
On the merits of the case, the respondents counter argue the lawyers filled the form indicating they were investors at the same time where they were supposed to provide the reasons for not localising the positions.
Advocate Ntema further argues they filled the forms purporting to be both employees and investors.
“They claim that the prospective employees filled these parts on the presumption that it was an application for employees only; alas they had ticked (investor).”
Advocate Ntema argues “it is very clear” the application forms were not properly filled and hence the disapproval.
“It is undisputed that the form was improperly filled, therefore reasonably so was subject to disapproval. The present application before this court is frivolous, in that, applicants regard themselves as employers/partners but the recommendation was actually made by their employers. They have provided information that is required from employees applying for work permits.”
Justice Monaphathi said he would deliver the judgment “later in the month”.
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