Double Jeopardy at the workplace : unnecessary duplication of judicial processes in Lesotho Labour Law

• Author: L. I. Kometsi
• Date: 01 December 2018
• Record Number: lesotho_v26_n2_a3
• DOI: 10.10520/EJC-1592412798
• Pages: 65-104
• Published date: 01 December 2018

DOUBLE JEOP ARDY AT THE WORKPLACE: UNN ECESSAR Y

DUPLIC ATION OF JUDICIAL PROCESS ES IN LESOTHO

LABOUR LAW

Kometsi, L. I.

Abstract

Application of disciplinary rules may result in vari ous forms

of punishmen t where the employee is found guilty of

misconduct. Where the empl oyee is not foun d guilty of a

misconduct, and where even if found guilty a lesser

punishment than dis missal is granted, a natural consequence

would be retention of the employment by the employee. The

issue is always whether dismissals are fair (or indeed unfair )

on the basis of su bstantive principles, or on the basis o f

procedural prin ciples of labour law. One of the direct

consequences of un fairness is double je opardy

1

in the conte xt

of labour law the d octrine of d ouble je opardy has been app lied

to determine if the employee is "doubly" prejudiced by the

punishment following him be ing subjected to disciplinary

action. This paper establishes that double jeo pardy can occur

at workplaces under the sanction of the very rules o f discipline

intended to safeguard employees against unf air lab our

practices. The National University of Lesotho is used as a case

study to make this point. South African labour law is used as

a compar ator, to make a point that the entire system of labour

law needs to be revised in order to avoid doub le jeopardy

occurring in discipline of employees.

 BA Humanit ies (DS, PAS) (NUL), LL.B ( NUL), LL.M (U K), LL.D (NWU) S A.

Senior Lect urer, Faculty of Law, NUL.

1

Double jeopardy gene rally means the prosecutio n or pun ishment of a person

twice for th e same offence.

66 LL J Vol. 24 NO. 1

INTROD UCTION

Employers adopt disci plinary procedures or rules to ensure

continuity of relati onships, which is a catalyst t o sustainabilit y a nd

productivity. It is not always that t hose disciplinary pr ocedures will

actually result in maintenance of r elationships. In s ome cases, they

end the relati onship as a res ult of dismissal of the empl oyees. The

dismissal itself may be on unjustified or unfair substa ntive and/or

procedural grounds depending on the internal discipli nary rules of

an organisati on.

The aim of this paper is to demonstrate that internal mechanisms of

discipline at the workplace are i nherently prone to misuse that can

result in unfairness to the worker who finally gets dismissed for

misconduct, in the form of double jeopardy . The paper focuses on

Lesotho Law dra wing on South African law on dou ble jeo pardy.

South Africa and Lesotho have si milar commo n law principles

regarding u nfair dismissal. Therefore, South A frican judgments will

have a strong persuasive influence on Lesotho jurispr udence on

double jeopardy as an aspect of unfair dismissal. On the other hand

South Afri ca has a few lesso ns to l earn fr om the experie nce of

Lesotho in t he context of labour la w.

The basic methodology adopt ed in this paper is that of a case study,

where the NUL is used as a point of reference t o illustrate the

arguments made. But, in o rder to be able t o ge neralise about the

findings th at this r esearch makes, it is imperative to compliment the

said methodology with comparative analysis. Institutions of

compariso n are pick ed from b oth Lesotho and S outh Africa to

illustrate certain points. I n this context therefore, this paper will

further analyse t he procedural rules of disciplinary hearings of the

National U niversity of Lesotho (NUL) in the c ontext of the pri nciple

of unfair dismissals and double jeopardy. Recommendatio ns will be

made on reforms or r evision of the internal rules of the U niversity

67

to put t hem at p ar with national and or i nternational dev elopments,

or indeed t o avoid the occurren ce of dou ble jeopardy.

Meaning and origin of double j eopardy

The rule of double jeopardy is known by maxims such as nemo debet

bis vex ari pro una et eadem causa

2

in Roman Dutch law, which means

‘not twice in the same [thing]’.

3

It refers to a doctri ne of both

Lesotho a nd Sout h Africa n system of criminal law and pr ocedure t o

the effect that no one shall be trie d twice f or the sa me offen ce. In

criminal l aw, this rule is likened t o defences o f autrefois convict

4

and

autrefois acqu it,

5

as well as t he excepti o rei judicatae

6

In civil law. In the

context of labour law, a dismissal could be said to be unfair as a

result of do uble jeopardy.

In looki ng at the general origin and applicability of the rule against

double jeopardy, courts in bot h Lesotho and South Africa hav e

2

The full versio n of whi ch is expre ssed as follows: 'nemo debit bis vexari , si

constat curiae quod sit pro una et eadem causa' (w hich means nobody, ma y be

harassed with the sam e offence / ca se twice, see also, Regina ( Redgrave) v

Commissi oner of Police of the Metropolis (2003) 1 W.L.R. 1 136 par 34 at 1144.

3

Sefiri Phaila v Principal Secreta ry Ministry of Lo cal Government Constitutional

Case No.9 [2014] LSHC 58 .

4

This mean s where a p erson has been convicted on a previous o ffence he may not

be found guilty on the same o ffence.

5

(Stood in jeopardy), which mean s wh ere a per son ha s bee n fo und n ot

guilty on the same offe nce, that that p erson may not be found guilt y on the

original charge. Se e para 8 of Nthona Kome tsi V C & Y Garments and the

Directorate of Dispute Preve ntion and Reso lution LC/RE V/62/12 (Lesl ii).

6

The full version is ex ceptio rei judica tae vel litis f initae meani ng "demandin g

the same thin g on the same ground ." See the case of National Sorghu m

Breweries (Pty) Limited t/a Vivo Africa Breweries v International Liquor

Distributor s (Pty) Limited 72 / 99 (saflii ), for other simila r defences.