MASERU — The Lesotho Highlands Development Authority (LHDA) could be forced to pay M12 million to its former security guards if it loses its appeal in the apex court in April, the Lesotho Times heard this week.
The guards are claiming they were forced to work 24 hours non-stop for two week intervals between 1991 and 2000.
The case will be finalised during the Court of Appeal’s first session in April, ending a bruising nine-year legal battle between the LHDA and the security guards.
The 31 security guards’ legal battle reached a crescendo in February 2009 when the Labour Appeal Court acting judge, Justice Kananelo Mosito, found that it was a practice for each guard to work 24 hours non-stop before being given two weeks’ off.
This happened for years, the court heard.
Justice Mosito had earlier ordered that the two parties should go back to the Labour Court to calculate the quantum of the claim.
But the Labour Court president, L A Lethobane, raised a new point that the guards were raising the issue well outside the legally stipulated time-frame.
The LHDA then asked Justice Mosito to allow them to go to the Court of Appeal to argue on points of law, which if they succeed, will help them reduce their liability to the guards from M12.6 million to just above M1.1 million.
The Court of Appeal, however, is not going to deal with whether the former security guards were indeed overworked as that argument has been dealt with by Justice Mosito who found that they used to be at their work stations “for a straight shift of 24 hours for 15 days”.
Instead, the Court of Appeal will deal with whether the guards were entitled to only claim payment for three years as is stipulated in the Prescription Act 1861.
The LHDA lawyers also cited the Labour Code Amendment Act which says disputes of this nature should be referred to the Directorate of Dispute Prevention and Resolution within three years of the dispute arising.
The LHDA asked Justice Mosito to allow them to approach the Court of Appeal on points of law, on whether the Prescription Act 1861 and the Labour Code Amendment Act of 2000 are applicable in this case, after the guards’ lawyers pointed out that according to the experts’ calculations they were entitled to be paid M12.6 million.
The LHDA’s calculations say the guards are entitled to only M1 134 810 arguing the other years they spent working should not be claimed under the Prescription Act and the Labour Code Amendment Act.
Justice Mosito has however found that this issue of prescription was never argued in court even though Labour Court President L A Lethobane based his judgment on it when he rejected the guards’ claim.
“The counsel on both sides informed the court that this issue had neither been raised nor addressed by the parties before the Labour Court. They saw it for the first time in the judgment,” Justice Mosito said.
“I must indicate that this court and the Court of Appeal had on several occasions deprecated the practice of deciding issues that have not been pleaded in the papers,” he said.
“The Labour Court therefore ought not to have included the issue of prescription under the Prescription Act which has not been pleaded by the parties.”
He added: “I can only point out at this stage that I am even in doubt as to whether the Prescription Act of 1861 had application to these proceedings or to the claim presented before the Labour Court by the parties. We fortunately have not been called upon to determine this question and we can safely keep our doubts to ourselves.”
“In our view nothing is to be made of the application or otherwise of the Prescription Act 1861 in these proceedings because . . . none of the parties had relied on this Act,” he said.
The Labour Court dealt with the prescription matter instead of dealing with Justice Mosito’s order to “come to the correct arithmetic figures in respect of the monies due to” the guards for the overtime pay they are entitled to.
Justice Mosito had ordered that both parties “must place the relevant documentation before the Labour Court” to help it to award correct figures for the guards’ payment.
The judge granted the LHDA leave to go to the Court of Appeal reasoning that maybe his decision is wrong.
“This court has to accept in principle that maybe the Court of Appeal may see things differently.”