COMPILED BY: MS. LOTTA AMBUNDAJUDICIAL RESEARCH ASSISTANTDIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT

THE HIGH COURT JUDGMENT INDEX 2015

THE HIGH COURT JUDGMENT INDEX IS A SUMMARY OF ALL CIVIL, CRIMINAL AND LABOUR JUDGMENTS DELIVERED AND HANDED DOWN IN THE HIGH COURT OF NAMIBIA DURING THE YEAR 2015. THE INDEX IS COMPILED

TO ASSIST LEGAL PRACTITIONERS, LAW STUDENTS AND THE PUBLIC TO EASILY REFER TO UNREPORTED JUDGMENTS OF THE HIGH COURT AS

COMPETENT AUTHORITIES.

THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGE-PRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.

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Table of Contents

SUBJECT INDEX...............................................................................................................................4

APPEAL AGAINST ARBITRATION AWARDS...............................................................................4

APPLICATION FOR CONDONATION............................................................................................4

INTERPRETATION OF THE LABOUR ACT, 2011.......................................................................4

JURISDICTION OF LABOUR COURT............................................................................................5

LABOUR LAW....................................................................................................................................5

LEAVE TO APPEAL........................................................................................................................10

PRACTICE AND PROCEDURE.....................................................................................................10

REVIEW OF ARBITRATION AWARD...........................................................................................10

URGENT APPLICATION................................................................................................................11

CASE SUMMARIES........................................................................................................................12

Air Namibia v Sheelongo (LCA 13-2014) [2015] NALCMD 14 (17 June 2015)..........................12

Cloete v Bank of Namibia (LCA 86/2013) [2015] NALCMD 8 (22 April 2015)............................13

Dr Tjipangandjara v Namibia Water Corporation (Pty) Ltd (LC 60/2015) [2015] NALCMD 11 (15 May 2015)......................................................................................................................................13

Hangana Seafood (Pty) Ltd vs Viringa (LCA 52-2009) [2015] NALCMD 27 (3 December 2015).....................................................................................................................................................14

Meat Board of Namibia v Nitschke (LCA 12-2015) [2015] NALCMD 18 (30 July 2015)............14

Methealth Namibia Administrators (Pty) Ltd v Matuzee (LCA2/2014) [2015] NALCMD 5 (18 March 2015).........................................................................................................................................15

Ministry of Agriculture Water and Forestry v Hagen NO (LC 184/2013)[2015] NALCMD 3 (30 January 2015)......................................................................................................................................16

Namibia Custom Smelters (Pty) Ltd vs Mupetami (LCA 8/2014) [2015] NALCMD 7 (16 April 2015).....................................................................................................................................................16

Nedbank Namibia Limited v The Namibia Financial Institutions Union (LC 154-2015) [2015] NALCMD 26 (02 November 2015)....................................................................................................17

Negonga v The Secretary to Cabinet (LC 56/2015) [2015] NALCMD 10 (29 April 2015).........17

Samaria v Angula (LC 129/2012) [2015] NAHCMD 6 (18 March 2015)......................................18

Stantoll Properties CC v Shiimi (LC 5-2015) [2015] NAHCMD 15 (22 July 2015)......................19

Swakop Uranium (Pty) Ltd v Kalipa (LCA 41-2014) [2015] NALCMD 28 (04 December 2015)................................................................................................................................................................19

Toromba v Woermann Brock & Co. (Pty) Ltd (LCA 11/2014) [2015] NALCMD 25 (28 October 2015).....................................................................................................................................................19

Transnamib Holdings Ltd vs Amukwelele (LCA 61-2014) [2015] NALCMD 21 (17 September 2015).....................................................................................................................................................20

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Windhoek Tool Centre CC v Pitt (LCA 21/2014) [2015] NALCMD 2 (22 January 2015)...........20

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SUBJECT INDEX

APPEAL AGAINST ARBITRATION AWARDS

Appeal - This is an appeal against an arbitration award made by the arbitrator in the proceedings who is cited as the third respondent. It is impossible to deal with the merits of the matter because the record is incomplete. The record such as it is consists of two pages. That there are more facts which are not recorded as evident from the award itself wherein the third respondent refers to facts and circumstances which do not appear from the record of the evidence. This court has held on several occasions that an arbitrator must keep a complete and accurate record of the proceedings. In those circumstances, the award is set aside and the matter is referred back to the second respondent to appoint another arbitrator to hear the matter. Furnmart Otjiwarongo v Mootu (LCA 72-2013) [2015] NALCMD 13 (1 June 2015).

APPLICATION FOR CONDONATION_____________________________________________________________________________________

Labour Law - Application for condonation for the late filing of an application for the re-instatement of a labour appeal and for the appeal to be re-instated. Applicable principles re-stated. Cloete v Bank of Namibia (LCA 86/2013) [2015] NALCMD 8 (22 April 2015); Agribank of Namibia v Simana (LCA 32-2013) [2015] NALCMD 9 (17 April 2015);

Labour Appeal – Application for condonation of late filing of statement of grounds for opposition – Condonation not granted – Lack of funds to pay legal practitioner to prepare and file statement in time not accepted as good cause for delay – Appeal treated as unopposed and upheld. Swakop Uranium (Pty) Ltd v Kalipa (LCA 41-2014) [2015] NALCMD 28 (04 December 2015).

INTERPRETATION OF THE LABOUR ACT, 2011Labour law — Labour Act 11 of 2007, s 87(1)(b) — Interpretation of — The effect of making an arbitration award an order of the Labour Court. Air Namibia v Sheelongo (LCA 13-2014) [2015] NALCMD 14 (17 June 2015).

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JURISDICTION OF LABOUR COURT

Labour Court - Jurisdiction – Jurisdiction of Labour Court to grant urgent interdictory relief pending finalisation of review – Labour Court not having jurisdiction to grant urgent interdict in absence of pending dispute in terms of Chapter 8 of Act 11 of 2007 – S 117(1)(e) of the Labour Act, 11 of 2007. Negonga v The Secretary to Cabinet (LC 56/2015) [2015] NALCMD 10 (29 April 2015).

Labour Court proceedings – s 118 of the Labour Court Act 11 of 2007 regulates costs orders – Court dismisses applications for costs with costs as first respondent has not opposed the applications – Costs order granted against the applicant on attorney and client scale. Labour Court proceedings – The power of the Labour Court to give costs orders is regulated by s 118 of the Labour Act 11 of 200 7 – Applicant’s applications for costs orders in unopposed applications have been refused with costs on attorney and client scale and confirmed the rule nisi. Shoprite Namibia v Namibian Commercial Catering Food and Allied Workers Union (LC185-2014)[2015]NALCMD22(24 September 2015).

LABOUR LAW

Labour law – Conciliation – Notice of conciliation meeting delivered to parties – On day of conciliation meeting appellants having failed to appear at meeting conciliator proceeded to conduct arbitration and made an award – Court held that a conciliator has discretion under s 83(2)(b) of the Labour Act No. 11 of 2007 to determine the matter in the absence of the party other than the party who referred the dispute to the Labour Commissioner who fails to attend the meeting – But a conciliator has no power to turn a conciliation meeting into arbitration proceedings or dovetail an arbitration proceeding with a conciliation meeting at which no determination is made and make an award in terms of s 83(2)(b) of the Labour Act – Court held further that the clause ‘determine the matter if the other party fails to attend conciliation meeting’ in s 83(2)(b) of Act No. 11 of 2007 means determine the matter by conciliation; nothing more, nothing less – Court found that by failing to determine the matter by conciliation the conciliator acted ultra vires s 83(2)(b) of Act – Consequently, the court concluded that the conciliator is wrong and she misdirected herself very seriously on the law and is such a kind that can lead to the conclusion that there has been a failure of justice and which the court cannot overlook – Consequently, the arbitration award was set aside. Windhoek Tool Centre CC v Pitt (LCA 21/2014) [2015] NALCMD 2 (22 January 2015)

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Labour Law - Application to review and set aside an award in terms of s 89 (4) and (5) of the Labour Act 11 of 2007 – Grounds for review – Interaction between the arbitrator after the arbitration proceeding but before handing down of the award – Arbitrator receiving a document from one the representative of the parties in the absence of the representative of other party to the proceedings. Ministry of Agriculture Water and Forestry v Hagen NO (LC 184/2013)[2015] NALCMD 3 (30 January 2015).

Labour Law – Arbitral award – Application to review and set aside of award in terms of the Labour Act 11 of 2007 s 89(4) and (5) and (10) – The Labour Act sets out the grounds, any one of which, the applicant should prove exists in order to succeed. Labour Law -The award - Review of - Grounds for review – Gross Irregularity - Labour Act 11 of 2007 s 89(5) - What constitutes - Applicable principles reiterated. Samaria v Angula (LC 129/2012) [2015] NAHCMD 6 (18 March 2015).

Labour law - Section 89(1) (a) of the Act restricts an appellant’s right to appeal to this court against an arbitrator’s award made in terms of section 86, to questions of law only. Methealth Namibia Administrators (Pty) Ltd v Matuzee (LCA2/2014) [2015] NALCMD 5 (18 March 2015).

Unfair labour practice – To treat employees, who have committed similar misconduct differently, is as a general rule, unfair. Consistency is simply an element of disciplinary fairness and every employee must be measured by the same standards. It is the perception of bias inherent in selective discipline which makes it unfair. Unfair disciplinary action short of dismissal amounts to an unfair labour practice. In order to overcome a consistency challenge the employer must be able to show that there was a valid reason for differentiating between groups of employees guilty of the same offence. Onus of proof in allegation of unfair labour practice rests on employee to prove not only the existence of the practice but also that it was unfair. Rosh Pinah Corporation (Pty) Ltd v Dirkse (LC 13/2012) [2015] NALCMD 4 (13 March 2015).

Unfair Dismissal – Where employee worked overtime in excess of the maximum hours prescribed in s 17 (1) of the Labour Act, 2007 (Act no 11 of 2007) and in the absence of compliance with provisions of s 17(3), employee may lawfully refuse instructions by employer to work further overtime. In terms of s 33(2)(b) of the Labour Act it is unfair to dismiss employee because employee refuses to do that which an employer must not lawfully permit or require an employee to do. Where there is a conflict between conditions of employment contained in a contract of employment and a statutory prohibition, the statutory prohibition must prevail. Rosh Pinah Corporation (Pty) Ltd v Dirkse (LC 13/2012) [2015] NALCMD 4 (13 March 2015).

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Compensation – Arbitrator may in terms of s 86(15) of the Labour Act, 2007 make any appropriate arbitration award including an award of compensation. Compensation should as a general rule place a dismissed employee in monetary terms in the position such employee would have been had the unfair dismissal not occurred, but in determining the amount a judge or arbitrator should be guided by what is reasonable and fair in the circumstances and not by a desire to punish the employer. Rosh Pinah Corporation (Pty) Ltd v Dirkse (LC 13/2012) [2015] NALCMD 4 (13 March 2015).

Labour law – Arbitration award – Appeal against orders made in award – Court held that substantive unfairness in terms of s 33(1) of the Labour Act 11 of 2007 is established where employer dismisses employee without valid and fair reason – The terms ‘valid’ reason and ‘fair’ reason explained – Court confirmed arbitrator’s finding that on the facts employer satisfied requirement of ‘valid’ reason – But court found that the arbitrator misdirected herself when she sought to prescribe to the employer (appellant) what punishment to impose on the errant employee (first respondent) – Court held that what punishment should be imposed on an errant employee is squarely within the discretion of the employer, with the caveat that the punishment imposed should be fair – Fairness of punishment should be assessed upon all the factors – In instant case court found that the nature of the misconduct for which employee (first respondent) was found guilty merited dismissal – Consequently, court concluded that the employer (the appellant) had fair reason to dismiss the employee (first respondent) – Appeal was therefore upheld and arbitrator’s orders set aside. Namibia Custom Smelters (Pty) Ltd vs Mupetami (LCA 8/2014) [2015] NALCMD 7 (16 April 2015).

LABOUR LAW – application for review of arbitral award in terms of the provisions of section 89 (4) and 117 of the Labour Act considered; procedure for leading evidence in arbitration proceedings and failure to call witnesses in support of claim ; applicability of rules relating to class action and failure to comply therewith; the procedure to be followed in applications for legal representation in arbitration proceedings revisited – the twin considerations of prejudice and complexity of a dispute. Stantoll Properties CC v Shiimi (LC 5-2015) [2015] NAHCMD 15 (22 July 2015).

Labour law – Appeal – Service of notice of – Service of notice of appeal governed by rule 5 of the Rules of the Labour Court and rule 23(3) of the Rules relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner – Service must comply with the relevant provisions of these rules – Court held that it is a fundamental principle of fairness in litigation that litigants should be given proper notice of legal proceedings that are instituted against them – This principle lies at the root of the audi alteram partem rule of natural justice – Where there has been a failure of proper service of process on a party there is surely unfairness in the proceedings and, furthermore, the non-compliance with the rules is so material and pervading that it cannot be overlooked

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because the overlooking of such material non-compliance renders the proceedings unfair and, accordingly, offensive of art 12(1) of the Namibian Constitution – The notice of appeal served is not in compliance with the rules and is therefore a nullity – Court held further that the rules of service in the rules of court and the Conciliation and Arbitration rules are reasonable and are not harsh because on good cause shown a judge in chambers is entitled in terms of rule 5(5) of the rules of court to direct service in a manner other than prescribed by the rules of court – Court held also that where a legislation or a rule or a regulation prescribed the manner in which service of process should be effected, it is not open to a party to decide to serve process in any other manner without leave of the court, and only if, in terms of the legislation or rule or regulation the court is entitled to grant such leave. Meat Board of Namibia v Nitschke (LCA 12-2015) [2015] NALCMD 18 (30 July 2015).

Labour law – Labour court – Appeal from arbitration award – Appellant must comply with peremptory requirements under s 89 of the Labour Act 11 of 2007 and rule 17(2) and (3) of the Labour Court Rules and rule 23(2) of the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner – Respondent must also comply with rule 17(16) of the Labour Court Rules – Court held that the purpose of the appellant’s notice and grounds of appeal in terms of the Labour Court Rules and the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner is to inform the respondent the case it has to meet – Likewise the purpose of the notice by the respondent and grounds for opposing the appeal in terms of the Labour Court Rules is to inform the appellant the case or opposition it has to meet – Purpose of the rules warrants the conclusion that those rules are peremptory – Failure to comply with them is therefore fatal – Court held that where no notice of intention to oppose the appeal and no statement stating the grounds on which the appeal is opposed are delivered the only inference that can reasonably be drawn is that the respondent does not oppose the appeal – In the nature of rule 17(16) of the rules of the court it is competent for the court to uphold such appeal if there is no good reason not to uphold it. Transnamib Holdings Ltd vs Amukwelele (LCA 61-2014) [2015] NALCMD 21 (17 September 2015).

Labour Law – Appeal – Noting and prosecution of appeal outside the court rules – Principles restated – No reasonable explanation for the delay - Cumulative effect of non-compliance – Application for condonation refused – Question of prospects of success irrelevant – Application dismissed. Kashifele v Impacto Amusement CC (LCA 5-2014) [2015] NALCMD 19 (31 July 2015).

Labour law - Interpretation of section 117(1) of the Labour Act, 2007 -Labour Court – Exclusive jurisdiction in terms of s 117(1) (i) of Labour Act, 2007. Usakos Town Council v Jantze (A 222-2015) NAHCMD 225 (16 September 2015).

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Labour law - Refugee law – Employment contract entered in contravention of the limitations imposed by Refugees Act 1999 – The effect of an employment contract arising from breach of immigration laws – Equitable considerations do not entitle the Court to enforce a contract which a statutory enactment declares to be of no force or effect. The court refused to allow monetary compensation granted by an arbitrator arising from an illegal contract. NamRights Inc v Nicodemus (LCA 51-2013) [2015] NALCMD 23 (02 October 2015).

Labour law – Arbitral award – Appeal against – Arbitrator’s finding that disciplinary hearing by appellant’s domestic disciplinary hearing body was unfair procedurally rejected as having no basis in law and fact – Court finding that on the facts and in the circumstances of the case the guilt of the respondent was established – Consequently, appellant had valid reason to dismiss – If the Labour Act enjoins an arbitrator to deal with the substantial merits of a dispute with minimum legal formalities there is no good reason why a domestic disciplinary hearing body should be bound by strict rules of evidence – Consequently, court held that a domestic disciplinary hearing body is not bound by strict rules of evidence – On fair reason to dismiss court held that the test whether a dismissal is fair is whether no reasonable employer would dismiss the employee taking into account the circumstances and facts of the particular case – Court held that if a reasonable employer might have reasonably dismissed, the dismissal was fair. Hangana Seafood (Pty) Ltd vs Viringa (LCA 52-2009) [2015] NALCMD 27 (3 December 2015).

Labour Law – Labour appeal in terms of the Labour Act 6 of 1992 – Appeal against the judgment of the district labour court dismissing an application for rescission of judgment – Appeal on grounds 1 – 5 dismissed – Appeal on ground 6 upheld – Request for costs by the respondent refused. Toromba v Woermann Brock & Co. (Pty) Ltd (LCA 11/2014) [2015] NALCMD 25 (28 October 2015).

Labour law - Interpretation of section 117(1) the Labour Act, 2007 -Labour Court – Exclusive review jurisdiction of in terms of s 117 (1) (i) of Labour Act, 2007. Usakos Town Council // Joseph Esau Jantze and Others (A 222/2015) [2015] NAHCMD 217 (16 September 2015).

Labour Law – Section 86(2)(b) of the Labour Act No 11 of 2007– Dispute to be referred within one year of dispute arising – Dispute referred to Labour Commissioner after a period of four years – The first respondent made no effort to exhaust her internal remedies within a reasonable time - Award accordingly made contrary to the provisions of section 86(2)(b) – Appeal upheld, court holding that the dispute prescribed under

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section 86 (2)(b) of the Labour Act. Social Security Commission v Mutwa (LCA 56-2014) [2016] NALCMD 2 (18 January 2016).

LEAVE TO APPEAL

PRACTICE AND PROCEDURE

Practice – Citation of parties, see Walvis Bay Salt Refiners (Pty) Ltd v Mine Workers Union of Namibia (LC 97/2015) [2015] NALCMD 16 (15 July 2015).

Practice — Disobedience of an arbitration award - constitutes a practice that is not only inconsistent with the rule of law but - which subvert the rule of law- Court refusing to hear appeal. Air Namibia v Sheelongo (LCA 13-2014) [2015] NALCMD 14 (17 June 2015)

Practice - Judgments and orders - Application for stay of execution of an arbitration award/order pending appeal, extent to which Labour Act, 2007 has altered the common law. Practice - Judgments and orders - Application to stay execution of arbitrator's award/order in terms of Labour Act, 2007 pending appeal - Factors to be taken into account by court, set out - Court granted order. Nedbank Namibia Limited v The Namibia Financial Institutions Union (LC 154-2015) [2015] NALCMD 26 (02 November 2015).

REVIEW OF ARBITRATION AWARD

Review - Application for review of arbitral award in terms of the provisions of section 89 (4) and 117 of the Labour Act considered; procedure for leading evidence in arbitration proceedings and failure to call witnesses in support of claim ; applicability of rules relating to class action and failure to comply therewith; the procedure to be followed in applications for legal representation in arbitration proceedings revisited – the twin considerations of prejudice and complexity of a dispute. Stantoll Properties CC v Shiimi (LC 5-2015) [2015] NAHCMD 15 (22 July 2015)

URGENT APPLICATION

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Practice – Urgent application – requirements for urgency. Financial hardship not a ground for urgency and illegal action by an employer does no per se constitute a ground for urgency. Labour law – provisions of section 79 (1) of the Labour Act discussed. Dr Tjipangandjara v Namibia Water Corporation (Pty) Ltd (LC 60/2015) [2015] NALCMD 11 (15 May 2015); see further Namzinc (Pty) Ltd v Mine Workers Union of Namibia (LC 109/2015) [2015] NALCMD 17 (22 July 2015); Nedbank Namibia Limited v The Namibia Financial Institutions Union (LC 85-2015) [2015] NALCMD 12 (3 June 2015);

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CASE SUMMARIES

Air Namibia v Sheelongo (LCA 13-2014) [2015] NALCMD 14 (17 June 2015)

Summary: On 05 December 2013 the respondent referred a dispute between him and the applicant, of alleged unilateral change of terms and conditions of employment and unfair labour practice to the office of the Labour Commissioner in terms of ss 82 (7) and 86 (1) of the Labour Act, 2007 read with Regulations 16(1), 18(1) and 20(1) of the Labour General Regulations. The parties agreed to conduct the arbitration proceedings on the basis of the stated case. On 28 February 2014 the arbitrator delivered his award and he declared that the appellant had unilaterally changed the respondent’s terms and conditions of employment. It is against that award that the appellant appeals. The appeal was lodged and filed on 28 March 2018. On 09 June 2014 the Registrar of this Court informed the respondent that the arbitration award under case No. LC 78/2014 was filed with the High Court on 09 June 2014 and that from that date it became an order of this court. The court raised the question whether it has jurisdiction to hear the appeal once the arbitration award was made an order of Court. The respondent also raised a point in limine namely that the appellant is non-suited to proceed with its appeal because it has ignored the arbitration award which was made an order of court.

Held that from the moment that an arbitration award is made an order of court and so long as the order of this Court making such award an order of this court stands that order remains sun an “order”. The consequences of that transformation are that it would not be competent for this court to hear an appeal or review against its own ‘order’.

Held further that the arbitration award became an order of court not in pursuance of any application made by a party or the Labour Commissioner to this Court but by simply filling the award with this Court, this court is of the view that Rule 16 of the Labour Court Rules does not apply to circumstances where a party wishes to rescind an order which became an order of this Court pursuant to s 87(1)(b). Thus this court finds that Rule 22(1) of the Labour Court finds application in this matter.

Held furthermore that in certain circumstances it may be irregular for a litigant or the Labour Commissioner to file an arbitration award with the High Court within the thirty day period within which the other litigant has the right to appeal against the award or to apply for the review and setting aside of the award. For these reasons this court invokes the powers vested in it in terms of Rule 103(1) and set aside the order making the arbitration award under reference number LC 78/14 an order of this court.

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Held furthermore disobedience of an arbitration award with impunity constitutes a practice that is not only inconsistent with the rule of law but amounts to a practice which will subvert the rule of law.

Held furthermore for purposes of the point in limine raised by the respondent it is sufficient that the appellant has been and still is in willful default of the arbitration order and that it has not placed any exceptional circumstances before this court which will allow the Court to hear the appeal before it has purged its default.

Cloete v Bank of Namibia (LCA 86/2013) [2015] NALCMD 8 (22 April 2015).

Summary: Labour Appeal — Appeal having lapsed - Application for condonation and re-instatement — Non-compliance with Rules — applicable principles re-stated - Application for condonation not there for the asking nor a mere formality — The explanation offered on behalf of the appellant in this instance – upon analysis - found neither acceptable nor reasonable as the entire period of the delay had not been explained fully, detailed and accurately. In such circumstances the appellants prospects of success where no longer decisive, – Ultimately - and although the appellant was able to show some prospects of success - the cumulative effect of all the factors considered favoured the conclusion that the condonation sought should not be granted. – Application accordingly dismissed.

Dr Tjipangandjara v Namibia Water Corporation (Pty) Ltd (LC 60/2015) [2015] NALCMD 11 (15 May 2015)

Summary: The applicant was employed by the respondent and had his position changed after a structural change. He refused to take up the new position, citing that he was not consulted and challenged the respondent’s competence to effect the change. This ultimately resulted in the employer locking him out. He applied for an urgent interdictory relief. Held that commercial urgency and personal financial hardship are not synonymous and that an illegal action by an employer does not automatically result in urgent interdictory relief being granted.

Held further that the requirements of section 79 (1) of the Labour Act are peremptory and the court cannot grant urgent interdictory relief unless all of them have been satisfied.

Held further that there are no exceptions to the application of section 79 where interdictory relief is sought.

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Held further that an applicant should ensure that there is sufficient time lapse between the adoption of all the requirements to enable the parties to engage before the launch of court proceedings.

Held that the applicant failed to comply with urgency requirements and the provisions of section 79 (1). Application not enrolled as one of urgency and no order was made as to costs.

Hangana Seafood (Pty) Ltd vs Viringa (LCA 52-2009) [2015] NALCMD 27 (3 December 2015).

Summary: Labour law – Arbitral award – Appeal against – Court found that there is nothing on the record to indicate that the minimum requirements of fair procedure as set out in the judgment were not satisfied by the appellants domestic disciplinary hearing body – Court found that procedure at the disciplinary hearing was fair – Court rejected arbitrator’s finding that admission of a statement by a Doctor whose sick note had been falsified constituted inadmissible hearsay evidence – Court reasoned that strict rules of evidence did not bind the appellants’ domestic disciplinary body – On the facts the court found that the appellant had a valid and fair reason to dismiss because respondent was found guilty of misconduct involving a dishonest act – A falsified Doctor’s sick note meant to excuse the respondent from work was delivered to appellant’s official – Court found that a dishonest act of an employee was material as it went to the root of the employment contract and the duty of an employee to his employer – Consequently, court upheld the appeal, set aside the award and confirmed the dismissal.

Meat Board of Namibia v Nitschke (LCA 12-2015) [2015] NALCMD 18 (30 July 2015).

Summary: Labour law – Appeal – Service of notice of – Service of notice of appeal governed by rule 5 of the Rules of the Labour Court and rule 23(3) of the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner – Service must comply with the relevant provisions of these rules – Court held that it is a fundamental principle of fairness in litigation that litigants should be given proper notice of legal proceedings that are instituted against them – This principle lies at the root of the audi alteram partem rule of natural justice – Where there has been a failure of proper service of process on a party there is surely unfairness in the proceedings and, furthermore, the non-compliance with the rules is so material and pervading that it cannot be overlooked because the overlooking of such material non-compliance renders the proceedings unfair and, accordingly, offensive of art 12(1) of the Namibian Constitution – The notice of appeal served is not in compliance with the rules is

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accordingly a nullity – Court held further that the rules and of service in the rules of court and the Conciliation and Arbitration rules are reasonable and are not harsh because on good cause shown a judge in chambers is entitled in terms of rule 5(5) of the rules of court to direct service in a manner other than prescribed by the rules of court – Respondent served notice of appeal on the Public Service Union and not on the respondent – Court found the service to be defective – Court concluded that the notice of appeal is a nullity and it is not competent for a court to condone it – Principles in Standard Bank Namibia Ltd v Maletzky (SA 15/2013) [2015] (24 June 2015); and Knouwds NO v Josea and Another 2007 (2) NR 292 (HC) applied – Having found service to be defective for non-compliance with the rules, court struck the appeal.

Methealth Namibia Administrators (Pty) Ltd v Matuzee (LCA2/2014) [2015] NALCMD 5 (18 March 2015).

Summary: On 18 November 2013, the respondents (who are all employees of the Appellant) purported to jointly refer a dispute of unfair labour practice (the allegations being amongst others that Methealth Namibia Administrators (Pty) Ltd (the employer and who is the appellant in this matter) unlawfully made deductions from the respondents’ remuneration. On 18 December 2013 unsuccessfully conciliation conciliated the dispute. After the unsuccessful conciliation the arbitrator proceeded to arbitrate the dispute. The arbitration hearing proceeded as scheduled on 13 March 2014, after the hearing the arbitrator found that the deductions from the respondents’ salaries were in contravention of s12 of the Labour Act, 2007 and thus unlawful. He also found that the refusal by the appellant to pay to Gershon Dausab subsistence and travelling allowance when he travelled from outside his duty station to attend to his duties as shop steward was unfair. The arbitrator ordered the appellant to pay to the respondents the amounts which it deducted from their remuneration and to pay to Mr Gershon Dausab the amount of N$ 3 000 in respect of accommodation and N$ 2400 in respect of subsistence allowance. It is against that order that the appellant appeals.

Held that s89(1) (a) of the Act restricts an appellant’s right to appeal to this court against an arbitrator’s award made in terms of section 86, to questions of law only and that in so far as the Notice of Appeal purports to appeal against the whole of the arbitration award it is defective, because the award also deals with finding of facts.

Held further that the arbitrator did not err in law when allowed the respondents to participate in the arbitration proceedings despite the provisions of Rule 5 (3) of the Arbitration Rules.

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Held furthermore that the question as to whether or not the arbitrator was correct to deny the appellant the opportunity to be legally represented at the arbitration proceedings involved a factual enquiry and thus not appealable.

Held furthermore that the arbitrator did not err in law when he found that in the present matter the appellant did not have the sanction of the law, a court order or an agreement with the employees when it deducted moneys from their remuneration and as such the arbitrator was correct in in his interpretation and application of Section 11(1), 12 and 76(1) of the Labour Act, 2007.

Ministry of Agriculture Water and Forestry v Hagen NO (LC 184/2013)[2015] NALCMD 3 (30 January 2015)

Summary: Review of an arbitrator’s award on the grounds inter alia that after arbitration proceedings were concluded but before the handing down of the award an interaction took place between the arbitrator and the second respondent’s representative to the exclusion of the representative of the applicants during which a salary slip of the second respondent which the second respondent undertook to make available when he testified, was handed over to the arbitrator. Held, that even though the manner in which the salary slip was delivered to the arbitrator amounts to an irregularity it did not constitute a vitiating irregularity.

Namibia Custom Smelters (Pty) Ltd vs Mupetami (LCA 8/2014) [2015] NALCMD 7 (16 April 2015)

Summary: Labour law – Arbitration award – Appeal against orders made in award – Court held that substantive unfairness in terms of s 33(1) of the Labour Act 11 of 2007 is established where employer dismisses employee without valid and fair reason – First respondent dishonestly appropriated appellant’s property and attempted to take it outside through the gates of appellant’s premises in breach of appellant’s company rules – Court held that such misconduct is serious as it went to the root of the employment contract – Appellant therefore had valid reason to dismiss the first respondent – Moreover such misconduct leads to the conclusion that mutual trust and confidence between the appellant and the first respondent have clearly disappeared beyond recall – Appellant therefore had also fair reason to dismiss the first respondent – Consequently, court found that appellant had valid and fair reason to dismiss the first respondent – Appeal therefore upheld and arbitrator’s orders were set aside.

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Nedbank Namibia Limited v The Namibia Financial Institutions Union (LC 154-2015) [2015] NALCMD 26 (02 November 2015).

Summary: On 27 October 2015 the first respondent gave the applicant notice in terms of s 74(1)(d) of the Labour Act, 2007 of its intention to embark on industrial action as from 30 October 2015 at 07h30. The intended industrial action is motivated by unresolved dispute between the parties.

On receipt of the said notice, the applicant, a banking institution, brought an urgent application seeking an order staying an order granted by an arbitrator on 06 October 2015 pending the finalisation of an appeal launched by the applicant against the arbitration award.

Held that at common law the execution of a judgment or order is automatically suspended pending an appeal noted. In certain labour matters, the common law is altered on the noting of an appeal or when an application for review is made.

Held that the 'golden rule' of construction is that the language in an instrument is to be given its grammatical and ordinary meaning. It is also sound rule to construe a statute in conformity with the common law rather than against, unless otherwise stated in the statute.

Held further that the legislature only intended to alter the common law in so far as it relates to an individual other than an independent contractor. Therefore, s 89(6) does not find application in this matter and has not altered (in respect of this matter) the common law position.

Held further that the balance of hardship or convenience favoured the applicant and granted the application.

Negonga v The Secretary to Cabinet (LC 56/2015) [2015] NALCMD 10 (29 April 2015).

Summary: Applicants launched urgent proceedings in the Labour Court for interim interdictory relief in the form of reinstatement in their positions as Permanent Secretaries pending finalisation of a review application launched in the normal course in terms of s 117(1)(c) of the Labour Act.

The Labour Court does not have jurisdiction to grant urgent interdictory relief on an urgent basis except when a dispute has been lodged in terms of Chapter 8, which is pending. Even if the Labour Court has jurisdiction to hear the review, that jurisdiction relates to review proceedings launched in the normal course.

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The Act created a specific forum for the resolution of labour disputes for all employees, whether employed by the State or not. Parties are bound by the restrictions contained in their choice of forum.

Samaria v Angula (LC 129/2012) [2015] NAHCMD 6 (18 March 2015).

Summary: The applicant was employed by the third respondent. During May /June 2011 the applicant was charged with misconduct by the third responded. After a disciplinary hearing which took place over a period of three months the applicant was found guilty of misconduct and the chairperson of the disciplinary hearing recommended that the applicant be dismissed from the third respondent’s employment.

The applicant appealed against the decision recommending his dismissal, the appeal hearing took place on 16 November 2011 and on 17 November 2011. The third respondent’s General Manager addressed a letter to the applicant in which letter the applicant was informed that the dismissal was upheld.

On 18 May 2012, the applicant’s legal practitioners send, by means of a facsimile, a Form LC 21 referral of a dispute of unfair dismissal and unfair labour practice to the second respondent’s office at Swakopmund. The second respondent (the Labour Commissioner) designated the first respondent as the arbitrator.

The applicant’s compliant was set down for conciliation on 10 August 2012. On that date, the third respondent’s representative raised a point in limine that the referral was made outside the six months’ time limit set by s 86 (1) & (2) of Labour Act, 2007. The arbitrator found in favour of the third respondent and dismissed the applicant’s complaint.

Following the dismissal of his complaint the applicant approached this court seeking an order reviewing, correcting or setting aside the entire arbitration proceedings presided over by the first respondent under case no. CRSW 64-12 as well as the award dated 10 August 2012 issued subsequent thereto.

Held that in review proceedings it is a prerequisite for the setting aside of an award resulting from arbitration proceedings to proof that the arbitrator misconducted himself in relation to his duties or committed a gross irregularity in the conduct of the arbitration. The onus rests upon the applicant to establish the misconduct or irregularity committed by the arbitrator.

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Held furthermore that all the grounds tabulated by the applicant do not relate to the conduct of the proceedings or method of arbitration, but rather to the result of the arbitration proceedings.

Held furthermore that an irregularity in proceedings does not mean an incorrect judgment; it refers not to the result but to the method of trial. In this matter the applicant’s' contentions fall entirely short of this establishing misconduct on the part of the arbitrator or an irregularity in the arbitration proceedings.

Stantoll Properties CC v Shiimi (LC 5-2015) [2015] NAHCMD 15 (22 July 2015).

Summary: The applicant applied in terms of section 98 and 117 of the Labour Act for a review of an award granted against it by the arbitrator. Meaning of the word defect, in terms of the Act discussed. The court considered the record of proceedings and held that the calling of one witness in support of a claim involving 181 other individuals was irregular and that the claim could only have been established with the calling of the said witnesses. Failure to follow the rules relating to instituting class actions revisited. It was held that failure to follow the mandatory provisions of the said rules was fatal. Legal Representation – the court set out the procedure to be followed by arbitrators where applications for legal representations are made. Held that where an objection is made to an application for legal representation, the court should consider the complexity of the case, together with issues of prejudice to the other party. Application for review allowed with no order as to costs.

Swakop Uranium (Pty) Ltd v Kalipa (LCA 41-2014) [2015] NALCMD 28 (04 December 2015).

Summary: Practice Labour Appeal in terms s 89(1)(a) of the Labour Act 11 of 2007 – The appellant lodged an appeal against the arbitration award – The first respondent filed notice of intention to oppose the appeal but delayed in filing the statement with grounds of opposition – The reason for the delay has been given as lack of funds to pay legal fees in order for the legal practitioner to prepare and file the statement timeously – The application for condonation of the late fling of the statement refused as not sufficient and good cause to justify the delay – The appeal thereafter treated as unopposed and upheld by the court.

Toromba v Woermann Brock & Co. (Pty) Ltd (LCA 11/2014) [2015] NALCMD 25 (28 October 2015).

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Summary: The appellants have appealed against the judgment of the chairperson sitting in the district labour court dismissing an application for rescission, and against a conviction of contempt of court against the appellants’ legal representative – The Labour Court on appeal dismissed the appeal on grounds 1 – 5 of the notice of appeal but upheld the appeal contained in ground 6. Further, the request for costs by the respondent also refused.

Transnamib Holdings Ltd vs Amukwelele (LCA 61-2014) [2015] NALCMD 21 (17 September 2015)

Summary: Labour law – Labour court – Appeal from arbitration award – Appellant must comply with peremptory requirements under s 89 of the Labour Act 11 of 2007 and rule 17(2) and (3) of the Labour Court Rules and rule 23(2) of the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner – Respondent must also comply with rule 17(16) of the Labour Court Rules – Court held that the purpose of the appellant’s notice and grounds of appeal in terms of the Labour Court Rules and the Rules Relating to the Conduct of Conciliation and Arbitration before the Labour Commissioner is to inform the respondent the case it has to meet – Likewise the purpose of the notice by the respondent and grounds for opposing the appeal in terms of the Labour Court Rules is to inform the appellant the case or opposition it has to meet – Purpose of the rules warrants the conclusion that those rules are peremptory – Failure to comply with them is therefore fatal – Court held that where no notice of intention to oppose the appeal and no statement stating the grounds on which the appeal is opposed are delivered the only inference that can reasonably be drawn is that the respondent does not oppose the appeal – In the nature of rule 17(16) of the rules of the court it is competent for the court to uphold such appeal – In the instant case court found that the respondent has not complied with rule 17(16) of the Labour Court Rules – Accordingly court concluded that the respondent does not oppose the appeal – Court upheld the appeal, there is no good reason not to uphold it.

Windhoek Tool Centre CC v Pitt (LCA 21/2014) [2015] NALCMD 2 (22 January 2015)

Summary: Labour law – Conciliation – Notice of conciliation meeting delivered to parties – On day of conciliation meeting appellants having failed to appear at meeting conciliator proceeded to conduct arbitration and made an award – The appellant failed to attend the conciliation meeting – Conciliator proceeded to conduct arbitration and make an award without determining the matter by conciliation in the circumstances as required by s 83(2)(b) of the Labour Act – Court found that by so acting the conciliator acted ultra vires s 83(2)(b) of the Act – Court held that in any case a conciliator cannot make an award that is enforceable under the Act – Court concluded that the conciliator

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misdirected herself very seriously on the law – And it is such a misdirection that can lead to the conclusion that there has been a failure of justice and which the court cannot overlook – Consequently, the appeal succeeded and the arbitration award was set aside.

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