THE Labour Appeal Court has given Labour and Employment Minister Thulo Mahlakeng until 10 November 2016 to show cause, why the court cannot stop him from appointing Teboho Thoso and Ratšolo Thulo as arbitrators in the Directorate of Dispute Prevention and Resolution (DDPR).
This comes after Justice Moahloli heard an urgent application in which former DDPR arbitrator Malena Lebone-Mofoka and the institution’s Senior Case Management Officer Advocate Tšoana Malifuo Mapetla are seeking to block employment of the two new arbitrators.
In the application filed last month, Ms Lebone-Mofoka and Advocate Mapetla contend through their lawyer, Advocate Letuka Molati, that the appointment of Messrs Thoso and Thulo as arbitrators by Advocate Mahlakeng is “discriminatory, irregular and unjustifiable” because the duo had not applied for the post in the first place.
Evidence led in court is that Ms Lebone-Mofoka and Advocate Mapetla had applied and were subsequently interviewed for the position of arbitrator, not Messrs Thoso and Thulo.
The applicants submitted that Advocate Mahlakeng, the Labour and Employment’s Principal Secretary (PS) Karabo Tlhoeli, the ministry’s Industrial Relations Council and Attorney-General King’s Counsel (KC) Tšokolo Makhethe did not give them reasons why they were not successful “when we had legitimate expectation to be informed of the reasons why we were not successful in the interview”.
Advocate Mahlakeng, Advocate Tlhoeli, Industrial Relations Council, KC Makhethe, Messrs Thoso and Thulo are cited as first to sixth respondents respectively in the matter. According to evidence led in court Mr Thoso is currently a magistrate in Mafeteng.
The applicants want the court to declare the employment of Messrs Thoso and Thulo by the respondents “null and void”. They also want the court to order the respondents to employ both applicants instead.
Ms Lebone-Mofoka notes in her founding affidavit that in June 2016, the Industrial Relations Council published an advertisement for the post of the arbitrator.
“I applied for the said post of arbitrator in June 2016 which was a day before the closure date for acceptance of applications,” she said.
Ms Lebone-Mofoka stated on 26 July 2016, she attended an interview at the invitation of the Industrial Relations Council secretary at the DDPR. She said she met Advocate Mapetla during the interview.
“I also observed that the other candidates attending the interview were Ms Senooe and Ms Ntene. I aver that only four candidates attended the interview.”
Ms Lebone-Mofoka notes that on 6 October 2016, they learned that there were three people who were given offers of employment as arbitrators, namely Ms Ntene, Messrs Thoso and Thulo.
Ms Lebone-Mofoka argues Messrs Thoso and Thulo did not apply for the post: “. . . they were not shortlisted for interview; they did not attend the interview.”
She submitted the respondents’ conduct “is reviewable on the grounds that: It is unfair to offer employment to people who did not apply, get shortlisted and attend job interview.”
“All procedures for engagement of arbitrators were flouted. The process of offering fifth and sixth respondents employment is arbitrary and capricious.
“It is irregular in a free and democratic society based on equal opportunities to work. I submit that the matter herein is riddled with unlawfulness of great magnitude by the statutory offices of the government of Lesotho,” Ms Lebone-Mofoka contended.
Having heard the application Justice Moahloli issued an interim court order on Thursday last week calling upon the respondents to show cause, “if any,” why they cannot be interdicted from signing employment contracts with Messrs Thoso and Thulo, pending finalisation of the case.
The respondents have also been ordered to submit to the Labour Appeal Registrar “all documentary records of the people who had attended the employment interview for the post of arbitrator.”
The court ordered the respondents to also explain why the appointment of Messrs Thoso and Thulo cannot be “reviewed, corrected and set aside.”
The respondents, the court ordered, should further explain why the said recruitment cannot be “declared null and void ab initio.”
The respondents have until 10 November 2016 to file their response before the court.