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Fired workers reject new contract offers

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MASERU-In what appears to be a classic case of corporate deceit, a textile firm abruptly fired 253 workers and then rehired them on new contracts three days later without paying their terminal benefits.
Last Tuesday Bull Clothing (Ltd) fired 253 employees for allegedly staging an illegal strike on its premises. None of workers faced a disciplinary hearing.

When the workers demanded their severance packages Bull Clothing rehired them on Friday under new contracts.
Curiously, the company said the workers had lost their terminal benefits and would now be treated as new employees to go through a three-month probation period at significantly reduced salaries.

That meant the workers were being forced to forego their benefits in exchange for being rehired.
Just by the stroke of a pen the company had avoided paying severance pay, a statutory requirement in the labour law.
So someone who worked at Bull Clothing for five years is now regarded as a new employee with new conditions.

Irate employees say the move amounts to a blatant attempt to cheat them of the severance pay they have always regarded as a form of saving.
The company denies the accusation and insisted that it followed the law.
Keneuoe Sehloho, Bull Clothing’s Human Resources Manager, insists the company will not pay terminal benefits.

Sehloho said it was a “take it or leave it offer”.
“The workers were expelled after engaging on an unlawful strike therefore it is well known that contract termination also means the cancellation of benefits,” Sehloho said.

“Every expelled worker lost their terminal benefits.”
Unions however say what Bull Clothing has done is the modus operandi in the textile factories.
They say factories have been using the “trick”, for years, to avoid paying terminal benefits.

thepost understands that the practice intensified two years ago when the government forced textile factories to set the minimum wage at M2 020.
Hugely popular with workers and deeply loathed by the bosses, the decision meant that textile factories were suddenly saddled by huge bills for severance pay.

Most of the companies told the government that they could not afford the new wages and the resultant terminal benefits.
So to duck the financial obligation some factories seem to have resorted to the controversial plan of summarily dismissing employees and rehiring them on new contracts.

In that way they can claim that they are not obliged to pay terminal benefits that would have accrued for years. The companies make huge savings because the employees have forfeited their benefits and they are coming back on low salaries.

In the long term the terminal benefits that accrue to the employees are substantially reduced because they are earning less over a shorter period.
In Bull Clothing’s case the plan appears to have been largely successful because 173 workers have agreed to give up their terminal benefits and get new contracts.

But some 80 employees have resisted the move and vowed to fight.
One of them is Mokhantšo Hlao who has been at the company for five years.
Hlao told thepost that “I can see through their trick and I will never accept to be cheated like that”.

“We will not return to work under the new contracts,” Hlao said.
The Labour Code states that a worker must be paid severance pay based on two weeks’ pay for every year served, as soon as their contract is terminated.
Hlao said their dismissal was pre-planned because they were fired within a few hours.

She said the company falsely accused them of having staged an illegal strike when “we were just gathering to get an explanation why they had not paid us the M800 allowance from the government”.
“The employer deliberately delayed giving us the M800 from the government and when we waited to be addressed on the issue we were dismissed on the false accusation that we were on strike,” she said.
“I will never sign a contract before getting my terminal benefits stipulated in the law.”

In the meantime trade unions have declared war on Bull Clothing.
Sam Mokhele, the secretary general of the National Clothing, Textile and Allied Workers Union (Nactwu), said they are suing the Bull Clothing for “tricking 253 Basotho into losing their benefits”.

“They did everything deliberately so that they could rehire the workers on low salaries without paying the benefits,” Mokhele said.
The Independent Democratic Union of Lesotho (IDUL)’s secretary general, May Rathakane, said they have asked Deputy Prime Minister Mathibeli Mokhothu and the Labour Commissioner to intervene.

Rathakane said Labour Minister Keketso Rantšo told them to go to court.
“If the Deputy Prime Minister fails to deal with the issue we will launch international campaigns to show that Bull Clothing is violating workers’ rights,” he said.
“We will lobby buyers to boycott the company’s products.”

Nkheli Liphoto

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Blow for former DCEO boss

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AN attempt by Advocate Mahlomola Manyokole to block his prosecution for fraud and money laundering failed last Friday after the Court of Appeal dismissed his petition.

Advocate Manyokole and one of his seven co-accused, Relebohile Lesholu, approached the Court of Appeal after High Court judge Justice ’Maliepollo Makhetha refused to permanently stay their prosecution last year.

Manyokole was first suspended and later fired as the director-general of the Directorate on Corruption and Economic Offences (DCEO) before he was dragged to court on criminal charges in 2021.

Manyokole and Lesholu were seeking a permanent stay of prosecution after the crown took 18 months without prosecuting them from the date of their first appearance in the Magistrate’s Court.

They were also complaining that the state charged them before investigations were completed, citing challenges with respect to appointment of prosecutors for the trial.

They applied for a permanent stay of prosecution before Justice Makhetha on grounds that they were denied the right to a fair trial within a reasonable time as the state had failed to furnish them with indictment, criminal docket and witness statements.

The required documents were however furnished before the stay application was heard, leading to Justice Makhetha dismissing the application on grounds that the matter had become moot.

The President of the Court of Appeal, Justice Kananelo Mosito, sitting with Chief Justice Sakoane Sakoane and Justice Moses Chinhengo, found that the period of delay was not egregious and caused no irreparable trial-related prejudice.

The Court of Appeal said the criticism that Justice Makhetha erred in deciding that the matter of the issue of supply of the documents was moot by the time the stay application was heard or finally decided cannot be faulted.

“The State explained in sufficient detail why the documents were not furnished by the time of the stay applications,” Justice Mosito said.

“That explanation is not fanciful but reflects the reality and challenges faced by small jurisdictions such as ours in dealing with many complex and serious offences against accused persons in one trial,” he said.

“There was no refusal by the state to furnish the documents.”

The court found that the state faced real challenges with regard to completion of investigations, appointment of prosecutors and associated issues including the need for thorough preparations for the trial by the appointed prosecutors.

The state, the court said, was edging towards the holding of the Pre-Trial Planning Session (PTPS), scheduled for December 12, 2022, when they lodged the stay applications in the forlorn hope that a permanent stay would be granted.

The court determined whether the delay of 18 months was so inordinate or over-lengthy as to warrant the drastic order of a permanent stay of prosecution.

It found that it cannot be said that the delay in bringing the accused to trial in this case is egregious, nor can it be said that there already had been trial-related prejudice suffered by the appellants.

“A permanent stay of prosecution is a drastic and exceptional remedy entirely unsuitable to be granted at this nascent stage of the proceedings,” Justice Mosito said.

Justice Mosito said had the appellants “not truncated the process and had allowed PTPS scheduled on 12 December 2022 to go ahead, the trial may have been completed by now, 15 months later”.

He said accused people and their lawyers must be discouraged from pursuing unmeritorious applications for permanent stay without proper regard to the complexity of charges they are facing and the availability of institutional resources.

“Although the appellants have not been successful, costs may not be visited upon them, this being essentially a criminal matter,” he said.

The court also found that the appellants themselves contributed to the delay of their prosecution.

One of the state prosecutors, ’Mamongonyo Baasi, explained the causes of the delay in submitting the docket.

She said the 24 charges “are sophisticated economic offences” committed by senior officials of the DCEO and require a high degree of attention from any would-be prosecutor.

She said the forensic report that the state largely relies on was only completed on June 20, 2022.

The lawyer initially assigned to prosecute the case withdrew from the matter and new prosecutors had to be appointed and they needed time to familiarise themselves with the voluminous documents involved.

The prosecutors had to consult with necessary witnesses including forensic experts from PriceWaterhouse & Coopers who are resident in South Africa.

Baasi denied that the charges are trumped up and asserted in strong terms that there is a prima facie case against all accused persons as disclosed in the docket.

She said the accused persons demanded the documents verbally and in writing before the investigations were completed.

During the period between May 2021 and October 2022, there had been a change of prosecutors.

Responding more directly to Manyokole’s affidavit, Baasi said the prejudice he suffered, if any, did “not outweigh that which the State would suffer if a permanent stay was granted”.

“The state undoubtedly suffers prejudice if such heinous crimes are not prosecuted in circumstances where (Manyokole) was operating within the purview of a law enforcement agency and arbitrarily used institutional power of the DCEO for self-aggrandisement,” she said.

Staff Reporter

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Lawyer wins praises for defending legal profession

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THE Court of Appeal has praised Advocate Rethabile Setlojoane for resisting the police’s attempt to force him to violate the principle of attorney-client privilege during investigations.

The Court President, Justice Kananelo Mosito, flanked by four other Justices of Appeal, last Friday ruled that it is crucial to uphold the fundamental legal principle of attorney-client privilege.

The court said Advocate Setlojoane had sought to vindicate not only his own rights but also the rights and ethical obligations of the legal profession as a whole.

The court also criticised the High Court for declining jurisdiction when Advocate Setlojoane approached it last year complaining about the police’s conduct.

Advocate Setlojoane is representing Lehlohonolo Selate who is currently in prison facing a raft of charges.

Selate is suspected of defrauding the government of M50 million between October 2020 and September 2021.

A company called Sunny Penny (Pty) Ltd, in which Selate has some interest in, is also suspected of being involved in the fraud.

The police investigators summoned Advocate Setlojoane for questioning following the payment from Sunny Penny (Pty) Ltd.

During the questioning, the police directed him to surrender all files relating to his client and money paid as fees by Sunny Penny (Pty) Ltd.

Advocate Setlojoane refused to do so, citing the principle of lawyer-client privilege.

He was taken to the Subordinate Court in an attempt to have him joined as an accused in the case against Selate.

However, his lawyer objected to this joinder by invoking provisions of Section 128(1) of the Constitution of Lesotho, which requires that constitutional questions be referred to the High Court.

The magistrate accepted the objection and did not join Advocate Setlojoane as an accused.

Consequently, he instituted an application in the High Court and on June 12 last year a coram of three judges made up of Justices Moroke Mokhesi, Polo Banyane and, ’Maliepollo Makhetha heard the application.

On September 14, 2023, the High Court delivered its judgment and dismissed the application, declining to exercise its constitutional jurisdiction over the violation of the lawyer-client privilege and the right to legal representation.

The High Court based its reasons on the availability of other adequate means of redress.

The court said the lawyer-client privilege is a fundamental principle that is essential for effective legal representation and protecting client’s rights.

It also said by declining jurisdiction, the High Court missed an opportunity to guide the scope and application of the lawyer-client privilege within the Lesotho legal system.

The court said, however, it is important to note that section 22 of the Constitution allows the High Court to decline to exercise its powers if it is satisfied that adequate means of redress are or have been available under other laws.

The court should exercise its discretion to decline jurisdiction only in “very exceptional circumstances”.

The Court of Appeal highlighted “the right of the client to be free from disclosure of confidential communications with his or her lawyer, subject only to the limited exceptions recognised by the common law”.

The court emphasised that the lawyer-client privilege is not merely a rule of evidence but a fundamental principle that ensures the effective exercise of the right to legal representation and the fairness of criminal proceedings.

It also said the rationale of the privilege is not the protection of the individual client, but the upholding of the administration of justice itself, which depends on the free and full communication between clients and their legal advisers.

It said an accused person could challenge the admissibility of evidence obtained through the unauthorised recording of conversations with their legal counsel, as such recordings would violate the lawyer-client privilege and undermine the right to effective legal representation.

The court said while the Money Laundering and Proceeds of Crime Act 2008 does not directly mandate a legal representative or adviser to hand over client funds paid as fees, it imposes obligations to report suspicious transactions.

If subsequent investigations and legal processes determine that these funds are proceeds of crime, they may be subject to confiscation or forfeiture.

Therefore, the legal representative’s duty primarily involves reporting rather than direct transfer of funds to the authorities, unless directed by a court order following due legal processes.

The court said while the police do not have the explicit authority to directly demand the handing over of client funds paid as fees to legal advisers merely on suspicion, they are permitted to seize such funds if there is a reasonable suspicion they are proceeds of crime.

This would typically follow from a structured legal process including reporting, investigation, and potentially judicial proceedings where evidence supports the suspicion of money laundering or related criminal activities.

It said while it is imperative to dismantle the barriers that secrecy laws may create in the fight against financial crimes, it is equally crucial to uphold the fundamental legal principle of attorney-client privilege.

The preservation of this privilege ensures that while legal practitioners may be required to disclose certain information, the core elements of their advisory role remain protected, which is vital for maintaining trust between clients and their lawyers.

The attorney-client privilege is a fundamental principle that underpins the right to legal representation and the fairness of criminal proceedings, the court said.

It said the police investigators had no legal basis for requiring Advocate Setlojoane to hand over his client’s funds paid as fees.

To compel him to become an accomplice against his own client by disclosing privileged communications or assisting in the prosecution of that client would strike at the very heart of the faithful discharge of a lawyer’s ethical duties, the court found.

It said even if he were to ultimately fail on the merits before the High Court on remittal, his pursuit of the appeal has undoubtedly served the public interest by elucidating the scope and application of the lawyer-client privilege within our legal system.

Staff Reporter

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Judge grills prisons boss

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THE chairman of a commission of enquiry investigating the escape of prisoners in Maseru last year has issued a damning assessment of the Lesotho Correctional Service (LCS) boss’ leadership skills.

Justice Realeboha Mathaba grilled Mating Nkakala over the lack of a strategic plan for the LCS.

He said the Lesotho Correctional Service Act mandates the commissioner to draft policies for the organisation.

Nkakala responded by saying they were on the verge of engaging a consultant to help draw up strategies for the LCS.

“Normally consultants do not do everything, they just facilitate, meaning you have to have a vision as a leader,” Justice Mathaba said.

He also asked Nkakala about how long the institution has been operating without a clear strategic plan and policies and he answered saying the last time it was done was in 2010.

“Meaning for the past 14 years the institution has been operating without any direction,” Justice Mathaba said.

Nkakala admitted that it has been 14 years without a strategic plan.

Justice Mathaba again asked Nkakala if he had received any training before getting into high office.

“Not only you but other officers who help you. Did you get any training?”

Nkakala said their wish is for every officer to get training and attend workshops on their promotion to the next rank.

“But, due to budget constraints, we cannot get such training,” Nkakala said.

Justice Mathaba said most of the problems that Nkakala had mentioned show that there is lack of leadership and teamwork.

“It is evident that there is no teamwork between you and your senior officers,” he said.

Nkakala also conceded that there are divisions among the staff with some supporting him while others do not.

He said there are some officers who work well with him, “even though it is not everyone who supports me”.

Justice Mathaba said Nkakala should have been equipped with the necessary skills to lead the institution.

“I am still on the issue of how capacitated you are in leading the institution,” he said.

He said Nkakala is still leading the institution by using the assistant commissioner’s tactics and principles as he never received any training after being promoted.

“Did you get any training that equipped you with the leadership skills while still an assistant commissioner?”

Nkakala said he recalled attending a course.

Justice Mathaba then said based on Nkakala’s evidence, he sees that there is no teamwork at the institution’s leadership.

Nkheli Liphoto

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