We all know that there are various ways of communicating the law. These are through publications of legislations enacted by Parliament in government gazettes. There is also publication of decided cases, otherwise known as the common law and in law reports or legal bulletins. In 2000 when the Labour Code Amendment Act was enacted we saw for the first time in legislations where legal institutions are required to publish significant decisions. The Act which made provision for the functions of the Directorate of Dispute Prevention and Resolution (DDPR) stated as follows:
(5) The functions of the Directorate shall be –
(a) ……………;
(b) ………… ;
(c) ………….;
(d) to compile and publish –
(i) Information about its activities;
(ii) Statistics on dispute prevention and resolution; and
(iii) Significant arbitration awards
To our recollection no other legislation in Lesotho has provided similar functions. Such gaps have to be closed through sessions where law users are informed of the significant judgments which they would otherwise not have access to. We know that law reports are not consistently published in Lesotho unlike in other jurisdictions. We have been introduced to electronic case publication platforms such as SAFLII, LESLII. The challenge with the platforms is that the cases are not consistently published. A lot of them fall on the wayside and are not known by non – law users, especially Human Resource Practitioners, yet they affect them on a day to day work life.
We emphasise here the importance of law reporting. Firstly, law reporting allows the public to see how the law is being applied in practice. Secondly, it provides a mechanism for holding judges and legal practitioners accountable for their decisions and actions. Thirdly, law reporting helps to educate legal practitioners and the wider public about the law and how judges make laws. A lot of people know laws to be made by the parliament but they do not see the important part played by judges in law-making.
Law reporting has over the years been very common and significant in the English Judicial System. It has also been relied on widely in the South African legal system. We recall very well the All England Law Report (ALL ER), Welsh Law Reports (WLR); South African Law Reports (SALR) South African Appellate Division (AD), Cape Provincial Division (CPD), and the Natal Provincial Provision (NPD) Reports. In Lesotho we have the Lesotho Law Reports (LLR). All these stemmed from a number of interlinking factors. Primarily that a core principle of the Legal System is that “the Law is for all” and thus should be accessible. The publication of law reports addresses the issue of ease of understanding of the legal principles applied in particular settings for both the public and professional in accurate and satisfactory manner.
Furthermore, the publication of case law, via the use of law reports, allows for the accurate recording of both the facts behind the decision and the reasoning behind the Judge’s ruling, thus allowing the creation of a reliable precedent which can be used by legal professionals. Law reports are composed by specialist lawyers within the profession. The reports can accurately be relied upon to be a correct summary of the case and the reasoning behind a potential precedent.
Tharollo Chambers has taken a conscious decision to take a modern approach to law reporting. This is through presentation of significant labour cases from different courts in Lesotho in a seminar type of environment. This is done every year in South Africa by prominent labour law practitioners. We do our own reporting by providing booklets which present particular cases, summarised and simplified for reading by everyone. The benefits of this is far more than what the traditional law reporting would provide. This process shall be rolled out by Tharollo Chambers in October this year. It has the following key benefits:
- The cases are simplified for Labour and Human Resource Practitioners from different professions, practices and operations to understand and apply;
- The process educates the participants on the common law approaches to labour law
- It puts workers, trade unions, employers and employers’ organisations on the same level of understanding of the labour law and its application.
- It may be useful as a tool for prevention of labour disputes in workplaces
- It can thus be used in tribunal appearances, disciplinary cases, advisory services and training in the workplaces
Our approach would be to identify those labour cases which set a precedent. Not all decisions made in a court of law set a precedent, however interesting they may be in terms of the facts of the case or its consequences. A decision is only reportable if it lays down a new principle of law, or changes or clarifies the existing law.
It is therefore important to distinguish between those cases which do indeed lay down, change or clarify the law, and which therefore need to be presented and discussed and those which do not. We will ensure that the cases that we will deal with clearly state all the relevant information so that they can be relied upon by labour experts, HR practitioners, students, law practitioners or presiding persons. There are two types of reports which we will use in our presentations:
- Full text reports
These incorporate the full judgment(s) given by the court, together with a summary of the case known as the headnote and a number of other elements.
- Summary reports, also known as case summaries, digests, case notes etc,
These consist of summaries or abridgements of the judgment, and are presented in a less formal way than a full text law report.
Clearly for obvious reasons, full text reports enjoy higher status than summary reports and should be cited in preference for them. The function of summary reports is either to alert practitioners and employers and employees to cases which may not merit reporting in full, or to act as an early warning system in advance of the full report which for obvious reasons may take longer to write, edit and publish.
Our clients will be introduced as we stated to modern modes of case publications which may incorporate the two forms. We are eager to hear from you and to take note of the lucrative and reach legal heritage in Lesotho. We can only improve our knowledge of labour law through attendance of the seminar. We therefore invite you and all to participate in this first of its kind seminar with the intention of presenting such on a bi-annual basis. Details are provided in the invitation below. See you there!
View full invitation of the seminar below
