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

THE HIGH COURT JUDGMENT INDEX 2014

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 2014. 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.

2 | P a g e

Table of Contents

SUBJECT INDEX...............................................................................................................................5

APPLICATION FOR CONDONATION............................................................................................5

APPEAL AGAINST ARBITRATION AWARDS...............................................................................5

PRACTICE AND PROCEDURE.......................................................................................................8

INTERPRETATION OF THE LABOUR ACT, 2011.......................................................................9

JURISDICTION OF LABOUR COURT............................................................................................9

LABOUR LAW..................................................................................................................................10

LEAVE TO APPEAL........................................................................................................................14

REVIEW OF ARBITRATION AWARD...........................................................................................14

URGENT APPLICATION................................................................................................................15

CASE SUMMARIES........................................................................................................................17

African Stars Football Club v Mbuende (LC 136/2013)[2014] NALCMD 47( 26 November 2014).....................................................................................................................................................17

Cenored vs Ikanga (LCA 13/2013) [2014] NALCMD 18 (30 April 2014)......................................17

DHL International Namibia (Pty) Ltd v Kuritjinga (LCA 1/2013) [2014] NALCMD 1 (24 January 2014).....................................................................................................................................................18

Kandetu v Karibib Town Council (LCA 13/2013) [2014] NALCMD 15 (16 April 2014)...............19

MB Truck Spares v van Niekerk (LC 161/2013) [2014] NALCMD 11 (7 March 2014)...............19

Namibia Food and Allied Workers Union v Mc Carthy Retail (Namibia) (Pty) Ltd (LC 185/2013) [2014] NALCMD 3 (31 January 2014)..............................................................................................19

Namibia Dairies (Pty) Ltd vs Alfeus (LCA 4/2014) [2014] NALCMD 36 (18 September 2014).20

Novanam Ltd v Percival Rinquest (LCA 65/2012) [2014] NALCMD 35 (22 August 2014)........20

Ohorongo Cement (Pty) Ltd v Karwapa (LCA 2/2013) [2014] NALCMD 27 (25 June 2014)....21

Puma Chemicals v Labour Commissioner (LC 90/2012) [2014] NALCMD 09 (10 February 2014).....................................................................................................................................................22

Rosh Pinah Zinc Corporation (Pty) Ltd v Naukushu (LCA 30/2013) [2014] NALCMD 12 (7 March 2014).........................................................................................................................................22

Shilongo v Vector Logistics (Pty) Ltd (LCA 27/2012) [2014] NALCMD 4 (5 February 2014)....23

Shilongo vs Vector Logistics (Pty) Ltd (LCA 27/2012) [2014] NALCMD 33 (7 August 2014).. .23

Shoprite Namibia (Pty) Ltd v Hamutele (LC 172/2013) [2014] NALCMD 43 (20 October 2014)................................................................................................................................................................24

The Council for the Municipality of Walvis Bay vs Kangumu (LCA 76/2011) [2014] NALCMD 8 (21 February 2014)..............................................................................................................................25

The Municipal Council of Windhoek v Ochurus (LCA 78/2011) [2014] NALCMD 13 (7 March 2014).....................................................................................................................................................25

3 | P a g e

The International University of Management vs Torbitt (LC 114/2013) [2014] NALCMD 6 (20 February 2014)....................................................................................................................................25

Van Wyk v Ministry of Labour (LC 182-2013)[2014] NALCMD 48 (26 November 2014).........26

4 | P a g e

SUBJECT INDEX

APPLICATION FOR CONDONATION

Application - Application for condonation for late filing of notice of appeal under s 89(3) of Act 11 of 2007. No notice of appeal when application brought. It was only filed after this point was taken in the answering affidavit. Application defective. Section 89(3) presupposes the filing of a notice of appeal (which is late) and whose lateness is then sought to be condoned. Applicant also and in any event failing to meet both requisites of good cause by failing to provide an adequate explanation and the appeal not enjoying prospects of success. Theory Bobo v Ohorongo Cement (Pty) Ltd (LC 81/2013) [2014] NALCMD 7 (19 February 2014)

Appeal – District Labour Court refused an application for condonation by the appellant (employer) for the late filing of its reply – Appellant thus barred and not taking a part in the further proceedings – Judgment granted against the appellant – Such not a default judgment but a final judgment not capable of rescission – Barring the appellant in these circumstances do not impede the right to a fair hearing – Constructive dismissal. Onus on employee to establish - Re-instatement – when to be ordered - Appeal upheld in part and dismissed in part. Telecom Namibia Limited v Klein (LCA 67/2013) [2014] NALCMD 23 (27 May 2014).

Labour law – Application for condonation for failure to serve notice of appeal, for failure to prosecute appeal in time and application for leave to amend notice of appeal – Rule 17 of Labour Court rules and rule 23 of conciliation and arbitration rules discussed. Primedia Outdoor Namibia (Pty) Ltd v Kauluma (LCA 95-2011) [2014] NALCMD 41 (17 October 2014).

APPEAL AGAINST ARBITRATION AWARDS

Appeal – Appeals from arbitrator’s award- Such only permissible on questions of law - Requirements for Court to determine when erroneous findings of fact not substantiated by evidence fall under rubric of questions of law restated. DHL International Namibia (Pty) Ltd v Kuritjinga (LCA 1/2013) [2014] NALCMD 1 (24 January 2014).

5 | P a g e

Appeal - The third respondent did not sign the referral form (LC 21) referring his labour dispute to the office of the Labour Commissioner. The applicant took this point at the commencement of the arbitration proceedings but after conciliation had been completed. The arbitrator dismissed the point. The applicant sought to set aside the award by reason of the third respondent’s failure to have signed the referral form. It alleged that the term ‘must’ in the applicable rules resulted in the proceedings being a nullity. The court rejected that approach and dismissed the application with reference to the rule giver’s intention in making those rules and because the third respondent’s participation in conciliation and thereafter in the arbitration amounted to a ratification of the referral. Purity Manganese (Pty) Ltd v Katjivena (LC 86/2012) [2014] NALCMD 10 (26 February 2014).

Appeal - Labour Appeal against arbitrator’s award – Respondent alleging unfair discrimination on ethnicity – Respondent failed to establish discrimination – Arbitrator not necessary to apply Affirmative Action (Employment) Act, 1998 – Appeal upheld and Award set aside. The Municipal Council of Windhoek v Ochurus (LCA 78/2011) [2014] NALCMD 13 (7 March 2014).

Appeal - Application to set aside an arbitrators award and for a complaint to be heard de novo because a material portion of the record was missing and could not be reconstructed. The portion in question was the first respondent’s evidence-in-chief. The court resolved to refer the matter back to the arbitrator to rehear the first respondent’s entire testimony including his cross-examination. Life Office Namibia Ltd ta NAMLIFE v Amakali (LCA 78/2013) [2014] NALCMD 17 (17 April 2014).

Appeal - Appeal against and review of an arbitrator’s award under s 89 of Act 11 of 2007. Entire female workforce on a shift charged after 2.5 tons of fish was removed from a processing plant during their shift. Collective hearings resulting in both supervisors and workers being dismissed. Arbitrator confirming all but one of the supervisors’ dismissals but finding that “collective guilt concept is not only alien to South Africa but also to the Namibian legal system and probably not a good public policy too”. This finding was found to be unsound and that team misconduct can arise. But in this instance the workers owed a duty to their employer not to act against its interest and breached it by either participating in large scale theft or supporting it or by failing to report it at the time or thereafter when called upon to do so. Award set aside. Court also stressing that the expression of a predisposition on the part of an arbitrator in conciliation may amount to disqualifying bias if it gives rise to a reasonable apprehension of bias. Rule 13 of the arbitration and conciliation rules – relating to confidentiality of without prejudice statements at conciliation – does not shield an arbitrator from the consequences of expressing a predisposition during conciliation.

6 | P a g e

Arbitrators should refrain from doing so. Novanam Limited v Willem Absalom (LC 101/2013) [2014] NALCMD 19 (30 April 2014).Appeal – Test - It is trite that the approach to be adopted is to consider the matter, objectively with a view to decide whether or not there is a reasonable prospect that another Court, in this case the Supreme Court will come to a different conclusion - Leave to appeal - that there was no reasonable prospect of the Supreme Court coming to a different finding. Purity Manganese (Pty) Ltd v Shikongo NO (LC 55/2010) [2014] NALCMD 22 (22 May 2014).

Appeal – On behalf of first respondent it was contended that in spite of an agreement between the parties’ representatives during the arbitration before second respondent to limit the issues in dispute to substantive fairness only it was still incumbent on the arbitrator and the court to determine the procedural fairness of the dismissal – court rejecting such approach – holding that an arbitrator or the court would no longer be at liberty to consider both the procedural and substantive fairness of a dismissal once the parties had agreed to limit the issues in dispute and thus had confined the determination thereof by agreement. There was no reason why the parties should not be allowed to do so and thereby narrow the ambit of their dispute regardless of the issues originally formulated in a complaint. Clearly any such limitation would thereafter consequentially determine the nature of the evidence and the manner in which the parties would present their cases. To then again go outside the ambit of such issues would not be permissible as this would, for obvious reasons, materially prejudice the parties, who by choice had limited their cases to the agreed issues. Any subsequent determination - outside the agreed to ambit - would for such reasons, obviously render any such subsequent proceedings, irregular. Ohorongo Cement (Pty) Ltd v Karwapa (LCA 2/2013) [2014] NALCMD 27 (25 June 2014).

Appeal - Appeal against an arbitrator’s award under s89 of the Labour Act, 11 of 2007. A preliminary point was taken that the award was a nullity because it was issued more than 30 days after the conclusion of proceedings and outside the time limit period within which awards are to be issued, as prescribed by s86(18) of Act 11 of 2007. Reliance was placed upon IUM v Torbitt (LC 114/2013) [2014] NALCMD 6 (20 February) which had made a ruling to that effect. The court found that the approach in IUM v Torbitt was clearly wrong and declined to follow it. The court found that the remedy to be invoked if an award is late is to bring a mandamus against the arbitrator. On the merits of the appeal, the court found that the arbitrator’s finding of a dismissal for sexual harassment being substantively and procedurally unfair was one which no reasonable arbitrator could have reached. The court upheld the appeal and set aside the award. Life Office of Namibia Ltd (Namlife) v Joel Amakali (LCA 78/2013) [2014] NALCMD 34 (8 August 2014).

7 | P a g e

Arbitration - Sections 89(1)(a) and 89(4) of the Labour Act, 2007 (Act 11 of 2007) -Appellant raising issue of whether arbitrator conducted proceedings in fair and just manner based on certain procedural defects – This is a question of law – Where defect complained of does not appear from record itself, a party would have to employ procedure provided by section 89(4) of the Labour Act because fact that such defect occurred or exists must be established by way of application supported by affidavits – Labour Act does not expressly or impliedly prohibit raising of defects which do not need to be proved by affidavit – The only limitation in section 89 (1)(a) is that right to appeal exists only in respect of questions of law – Where defect in proceedings raises question of law and such defect is apparent from record, a party would be able to bring the matter before the Labour Court either by way of appeal or review. Shaama v Roux (LCA 51-2011) [2014] NALCMD 39 (30 September 2014).

Appeal – Against a preliminary ruling by an arbitrator under s89 of Act 11 of 2007. The arbitrator had followed this court’s decision in National Housing Enterprise v Hinda – Mbazira and Others 2013 (1) NR 19 (LC) in finding that the period to refer a dispute under s 86(2)(a) of that Act commences to run after internal remedies have been exhausted. That decision has been upheld by the Supreme Court (on 4 July 2014) and is binding on this court and the outcome subscribed to. Appeal dismissed. Shoprite Namibia (Pty) Ltd v Haoses (LCA 18-2014) [2014] NALCMD 46 (26 November 2014).

PRACTICE AND PROCEDURE

Application - Application for condonation for the late filling of an application for leave to appeal against a judgment of this court. The applicant failed to provide a reasonable or adequate explanation for this delay. Application to dismiss on this ground above. Applicant also not enjoying reasonable prospects on success on appeal. Both requisites for good cause thus lacking. Application dismissed. Namiseb v Etosha Transport (Pty) Ltd (LCA 102/2010) [2014] NALCHMD 25 (4 June 2014).

Application - Application for condonation for late filing of record in an appeal under s89 of Act 7 of 2011 and for condonation for failing to note the appeal under rule 23 of the rules relating to conciliation, arbitration and mediation. Applicant failed to provide a full explanation for the entire period of delay and to bring condonation application reasonably expeditiously after the need to do so became apparent. Applicant also failed to establish reasonable prospects of success on appeal. Applicant thus failing to establish both requisites of good cause. Application for condonation dismissed. Botha v Major Drilling Namibia (Pty) Ltd (LCA 49/2013) [2014] NAHCMD 28 (25 June 2014).

8 | P a g e

Practice - Application in terms of rule 6(22) of 1992 Labour Court rules to set aside writ of execution – Writ arising from matter in which certain parties were cited – In current application different parties cited and no proceedings pending between parties in this Court – Substantive application in terms of rule 6(1) – ( 5) should have been brought. Practice – Various allegations of fraudulent and improper conduct made against Deputy Sheriff in affidavits upon which reliance is placed for relief sought – Deputy Sheriff not party to proceedings – Deputy Sheriff should have been joined. Tsoeu v Senior Real Estate CC (LC 136-2011) [2014] NALCMD 49 (8 December 2014).

INTERPRETATION OF THE LABOUR ACT, 2011

Rule 5 - Conciliation and Arbitration – non compliance with Rule 5 of the rules relating to conciliation and arbitration – Rule 14(2)(b) – referral document must be signed in accordance with Rule 5 – In terms of Rule 5 the document must be signed by a party or person entitled to represent that party in proceedings. Section 86(12) of Act 7 of 2011 prescribes categories of persons who may automatically appear in arbitration proceedings – legal practitioner is excluded – Legal practitioner may only appear in arbitration proceedings if provisions of s 86(13) of the Act had been complied with – prior to this legal practitioner is not entitled to appear on behalf of a party or to sign a referral document – Referral document signed in these circumstances by legal practitioner not a valid referral of dispute and a nullity and arbitration proceedings following such referral likewise a nullity – Consequently any reward by arbitrator a nullity. Agribank of Namibia v Simana (LCA 32/2013 [2014] NALCMD 5 (17 February 2014).

Rule 86 - Practice – Applications and motions – Application for declaratory order – Applicant seeks protection of its vested right under s 86(18) of the Labour Act 11 of 2007, read with art 12(1) of the Namibian Constitution – Court found that the applicant has a vested right in the arbitrator obeying the peremptory command under s 86(18) of Act 11 of 2007 – Court held that the arbitrator’s disobedience of the peremptory command prescribing a time limit for the issuance of the arbitrator’s award offends art 12(1) of the Namibian Constitution in relation to the applicant – Consequently, the court exercised its discretion in favour of granting the declaratory order sought. The International University of Management vs Torbitt (LC 114/2013) [2014] NALCMD 6 (20 February 2014).

JURISDICTION OF LABOUR COURT

Labour Court - Jurisdiction – Court has no jurisdiction to condone and hear an application for review outside the time periods laid down in section 89(4) of the Labour

9 | P a g e

Act 2007. Puma Chemicals v Labour Commissioner (LC 90/2012) [2014] NALCMD 09 (10 February 2014).

LABOUR LAW

Labour Law -– Absenteeism – Section 29(4)(a) of the Local Authorities Act 23 of 1992 – Section providing that absence from duties without permission for a period exceeding 30 days is deemed a discharge from service on account of misconduct – Appellant absented herself from duties for more than 30 days without permission – Discharged – Referred complaint of unfair dismissal to the Office of the Labour Commissioner – Unsuccessful – Appeal against Arbitrator award dismissed on appeal. Kandetu v Karibib Town Council (LCA 13/2013) [2014] NALCMD 15 (16 April 2014).

Labour law – Unfair dismissal – Compensatory payment in terms of s 46(1)(a)(iii) of the repealed Labour Act 6 of 1992 – Such compensation is aimed at redressing a labour injustice and not at enriching the dismissed employee – Court held that no evidence is needed to prove losses where compensation is equal to what employee could have been paid which is in the domain of the employer – But where losses include loss of benefits like medical aid and loss of a house the employee should call evidence to prove what the losses entail – Court set out certain important factors a court or tribunal should take into account in determining a reasonable amount of compensation. Labour law – Unfair dismissal – In terms of the repealed Labour Act, 6 of 1992 – Grounds of appeal – Court held that the word ‘grounds’ in rule 19(2)(c) of the repealed Labour Act has no esoteric meaning – The word ‘grounds’ means reasons why the appellant attacks the entire judgment or part of the judgment delivered by the district labour court and the reasons (or grounds) must be set out with sufficient particularity to enable the respondent to know the case he or she has to meet. Shilongo v Vector Logistics (Pty) Ltd (LCA 27/2012) [2014] NALCMD 4 (5 February 2014).

Labour Law – Parties – Locus standi – Local authorities – Municipality established in terms of the Local Authorities Act 23 of 1992 has no legal personality and accordingly no locus standi in judicio – Court held that the arbitrator by according locus standi to the municipality of Walvis Bay in making the arbitration award erred in law and it is such a kind as the court should not countenance or perpetuate and for which the court is entitled to set aside the award. The Council for the Municipality of Walvis Bay vs Kangumu (LCA 76/2011) [2014] NALCMD 8 (21 February 2014).

Labour Law– Application for condonation of the late noting of an appeal against an arbitrator award dismissed – Court not in a position to decide whether or not the arbitrator, on the facts placed before her, was wrong or right as the record of

10 | P a g e

proceedings in the arbitration proceedings not provided – Application dismissed. MB Truck Spares v van Niekerk (LC 161/2013) [2014] NALCMD 11 (7 March 2014).

Labour law – Appeal against arbitrator’s award – Award issued in favour of the respondent – On appeal, the finding of the arbitrator set aside and appeal upheld. Rosh Pinah Zinc Corporation (Pty) Ltd v Naukushu (LCA 30/2013) [2014] NALCMD 12 (7 March 2014).

Labour Law – Arbitral award - Appeals from arbitrator’s award- Such only permissible on questions of law-finding by the arbitrator that disciplinary hearing was both procedurally and substantively unfair was not unreasonable. Labour Law – Appeal – Appeal from arbitral award – Compensation in terms of s 86(15)(e) of the Labour Act – Court finding that arbitrator exercised his discretion properly in his award of the amount of compensation. Cenored vs Ikanga (LCA 13/2013) [2014] NALCMD 18 (30 April 2014).

Labour law – Application for suspension of arbitrator’s award in terms of section 89 of Labour Act, 11 of 2007, pending outcome of appeal – Respondent employees withdrawing opposition after judgment reserved – Case made out – Application granted. Namibia Beverages v Hipikuruka (LC 5-2009) [2014] NALCMD 20 (9 May 2014).

Labour Law – Strike - Labour Act, Act 6 of 1992 requires that for a strike to be lawful the following needs to be done: A dispute must be declared - A Conciliation Board must be set up to endeavour to resolve the dispute once the terms of reference had been determined - If the Conciliation Board fails to resolve the dispute, any party shall have the right to take action by way of strike or lock out, provided that the dispute is a dispute of interest - Notices of the intention to strike shall be given to all the other parties at least 48 hours before the strike commences. – Appellants’ actions clearly fall within the definition of a strike as defined in the Act. Given the non-compliance with the prerequisites for a lawful strike the actions of the respondents amounted to an illegal strike. Furniture Mart (Pty) Ltd v Kharuchab (LCA 48/2012) [2014] NALCMD 21 (22 May 2014).

Labour law – Abscondment - Okorusu Fluospar (Pty) Ltd v Kanambunga (LCA 82/2013) [2014] NALCMD 24 (20 May 2014).

Labour Law – Appeal against entire arbitral award made in the absence of the appellant - Application for rescission - Application for rescission not heard - Section 88 of the Labour Act, 2007 (Act 11 of 2007). Labour Law – Refusal to rescind an arbitration award made in the absence of one of the parties - Applicability of audi alteram partem

11 | P a g e

principle. Namibia Bureau De Change (Pty) Ltd v Mwandingi NO (LCA 65/2013) [2014] NALCMD 31 (25 July 2014).

Labour law - Retrenchment - Provisions of s 34 of Labour Act, 2007 - The procedures set out in that section are detailed. It follows, therefore, that if a joint consensus-seeking process as contemplated in that section is not achieved the dismissal of an employee for operational reason will be procedurally unfair – Labour law - Appeal – Provisions of s 89(1)(a) of the Labour Act, 2007 - A party to a dispute may appeal to the Labour Court against an arbitrator’s award made in terms of section 86 ‘on any question of law alone’.Labour law - Compensation – The word compensate in s 86 (15) of the Labour Act, 2007 - Must be given its ordinary grammatical meaning namely ‘payment of the value, estimated in money, of something lost. Novanam Ltd v Percival Rinquest (LCA 65/2012) [2014] NALCMD 35 (22 August 2014).

Labour Law – Leave to appeal – Appeals under the repealed Labour Act 6 of 1992 – Such appeals only permissible on questions of law – Applicant must accordingly set out clearly the questions of law applicant seeks leave to appeal on – Court held that this is necessary to inform respondent what case he or she has to meet and to enable the court to determine whether this a deserving case in respect of which there is a reasonable prospect that the Supreme Court may take a different view about the Labour Court’s judgment in virtue of such questions of law. Shilongo vs Vector Logistics (Pty) Ltd (LCA 27/2012) [2014] NALCMD 33 (7 August 2014).

Labour law – Appeal against arbitrator’s award in terms of s 89(1)a of the Labour Act 11 of 2007 – First respondent, an employee of appellant dismissed after being found guilty of three counts of misconduct in a disciplinary hearing – Arbitrator in arbitration proceedings of unfair dismissal makes an award in favour of first respondent –In appeal, the court upheld the appeal, set aside the award by the arbitrator and confirmed the ruling by the chairperson in the disciplinary hearing. Air Namibia Limited v Andima (LCA 84/2013) [2014] NALCMD 37 (26 September 2014).

Labour Law – Arbitration tribunal – Appeals from – Such permissible on questions of law only – Court explained the phrase ‘questions of law’ with regard to appeals in terms of s 89(1)(a) of the Labour Act 11 of 2007 – Court held that a question of law set out in a notice of appeal cannot double as grounds of appeal required by Form 11 in terms of the Labour Court Rules and Form LC 41 in terms of the Conduct of Conciliation and Arbitration before the Labour Commissioner – Court held further that a ‘ground’ under Form 11 and Form LC 41 connotes the basis or the reason underlying an appellant’s contention that the arbitrator erred, or misdirected himself or herself, on the law – A ‘ground’ is, therefore, the basis upon which or the reason why the appellant has raised the question of law and upon which the court should determine the question of law –

12 | P a g e

Consequently, court concluded that where no grounds are put forth to support a question of law raised in the notice of appeal such notice is defective and, accordingly, a nullity and the appeal should fail. Namibia Dairies (Pty) Ltd vs Alfeus (LCA 4/2014) [2014] NALCMD 36 (18 September 2014).

Labour law – Second respondent as arbitrator found that first respondent an employee of appellant and had been unfairly dismissed – In notice of appeal appellant formulated what it called a question of law, namely “Whether or not an employment or independent contractors’ relationship existed between Appellant and First Respondent?” – The grounds upon which appeal based are that “The arbitrator erred in law by concluding the First Respondent was an employee of Appellant” - Court found that second respondent’s finding of employment was one of fact and as such unassailable under section 89(1)(a) of Labour Act, 2007 (Act 11 of 2007), unless this finding was such that no reasonable arbitrator could have made it – For the purported question of law to disclose an error of law the question should be framed clearly and properly – It should set out the error of law, which is that the factual finding is one which no reasonable arbitrator could have made – Another problem is that grounds as set out are not proper grounds – As such notice of appeal defective and a nullity – Appeal struck. Meatco Corporation of Namibia v Pragt (LCA 43-2011) [2014] NALCMD 44 (27 October 2014).

Labour Law – Labour Act, 2007 (Act 11 of 2007) – Review and appeal arising from same case – should be allocated to same judge – same issue arising in both review and appeal – decision in appeal matter renders issue moot in review matter. Prescription Act, (Act 68 of 1969) – applies to labour dispute arising under former Labour Act, 1992 (Act 6 of 1992) – decisions by Labour Commissioner and arbitrator that Prescription Act not applicable and therefore granting condonation for late referral of dispute arising from Labour Act, 1992 reviewed and set aside. Namibia Development Corporation v Mwandingi (LC 82-2009) [2014] NALCMD 42 (17 October 2014).

Labour law – appeal against an award of arbitrator - Appeal in terms of section 89 (1)(a) of Act 11 of 2007 – on questions of law alone – The two appellants dismissed after disciplinary - Arbitrator confirms finding of Chairperson of the disciplinary hearing – In appeal – the appeal dismissed. The two appellants were charged with and found guilty of misconduct in a disciplinary hearing. Both were dismissed as a result of the conviction of the offences charged with. Aggrieved by the ruling of the Chairperson of the disciplinary hearing, the appellants took the matter to arbitration by the Labour Commissioner, where they were again unsuccessful. As a result, the appellants are appealing now the finding of the arbitrator to this Court which appeal once again has been dismissed after the Court found that there was sufficient evidence presented before the arbitrator to support the finding the arbitrator had made. That any reasonable

13 | P a g e

court would have come to the same conclusion the arbitrator arrived at. Nashitati v Transnamib Holdings Limited (LCA 49/2013) NALCMD 30 (11 July 2014).

Labour law - Service of the review application – Whether the review application was properly served on the second respondent as contemplated by Rule 5. Labour Law – Application to review and set aside the award made by the first respondent in terms of Section 89(4) and (5). Labour Law – ground for review is misconduct and gross irregularities alternatively failure by the first respondent to apply her mind. Applicable principle re-itterated. Shoprite Namibia (Pty) Ltd v Hamutele (LC 172/2013) [2014] NALCMD 43 (20 October 2014).

Labour Law – Application to review and set aside arbitration award in terms of s 89 of the Act. Labour Law – Application for recusal of the Arbitrator at the commencement of the arbitration proceedings following unsuccessful conciliation on the grounds that the arbitrator committed gross irregularity during the conciliation proceedings. Van Wyk v Ministry of Labour (LC 182-2013)[2014] NALCMD 48 (26 November 2014).

Labour Law – Application to set aside an arbitration award in terms of s 89 of the Act. Labour law – Representation of a party at the Conciliation / arbitration proceedings. African Stars Football Club v Mbuende (LC 136/2013)[2014] NALCMD 47( 26 November 2014).

LEAVE TO APPEAL

Appeal - Leave to appeal is required by s 18(2)(c) of the High Court Act, 16 of 1990 against a judgment and order dismissing application for condonation in an appeal against an arbitration award under s89 of Act 11 of 2007. Applying the test in applications for leave to appeal, the court refused leave to appeal. Theory Bobo v Ohorongo Cement (Pty) Ltd (LC 81/2013) [2014] NAHCMD 26 (13 June 2014).

Application – Application for leave to appeal. Principles restated. An additional consideration in labour matters is the need for finality. Applicant not establishing reasonable prospects of success or that an important issue of principle is raised by the appeal. Application dismissed. Novanam Ltd v Absalom (LC 101/2013) [2014] NAHCMD 38 (29 September 2014).

REVIEW OF ARBITRATION AWARD

Review - Review of an arbitrator’s award on the grounds that the referral form (LC21) had not been signed by the referring party. This point was first taken after the arbitration

14 | P a g e

had been completed and where the parties had participated. It turned out that the referring party had signed another referral form – whose terms were all identical to the original form – at the instance of the office of the Labour Commissioner. But the later form had not been served on the applicant. The court followed Purity Manganese (Pty) Ltd v Katjivena and Others in holding that the rule giver had not intended that proceedings would result in a nullity where the referral form had not been signed and when the parties had participated on the proceedings. That is because the participation amounted to a ratification of the unsigned form. The failure to serve an identically worded form which was signed did not constitute a defect contemplated by s 89(5) of the Labour Act 11 of 2007 or a vitiating irregularity. Auto Exec CC v Johan Van Wyk (LC 150/2013) [2014] NALCMD 16 (16 April 2014).

Review - Application to review an arbitration’s refusal to permit legal representation under s 86(13) of Act 11 of 2007 in arbitration proceedings. The arbitrator’s reasons indicated that he had not applied his mind to the requirements of s 86(13). Arbitrator’s refusal set aside. Nedbank Namibia Limited v Arendorf (LC 208/2013) [2014] NAHCMD 29 (25 June 2014).

Review - Application for review and an appeal against an arbitrator’s award heard together. The arbitrator had an interest in a close corporation which assisted the first respondent during the internal disciplinary process and applied to represent him in the arbitration proceedings. The applicant applied for the recusal of the arbitrator as a consequence. The arbitrator failed to do so and failed to appreciate the nature of the test for bias – being a reasonable apprehension of bias. The facts established that. The failure to recuse amounted to a gross irregularity in the proceedings and thus a defect in the award set aside and dispute referred back for conciliation and arbitration de novo before another arbitrator for the purpose of s89 of Act 11 of 2007. Hangana Seafood v Swartz (LCA 89/2013 LC 209/2013) [2014] NAHCMD 32 (30 July 2014).

Review - Application to review an arbitrator’s award under s 89 of Act 11 of 2007. The applicants failed to properly set out and establish review grounds contemplated under s89(5) of Act 11 of 2007. Application dismissed. Ruben v Hagen (LC 93/2012) [2014] NAHCMD 40 (2 October 2014).

URGENT APPLICATION

Urgent application – Need for compliance with Rule 6 (12) (b) – Applicant should set forth explicitly the circumstances which he avers render the matter urgent – Set forth the reasons why it cannot be afforded substantive redress at hearing – A continuing offensive conduct qualifies as urgent. Application by respondent to strike out applicant’s

15 | P a g e

replying and supplementary affidavits is dismissed. Namibia Food and Allied Workers Union v Mc Carthy Retail (Namibia) (Pty) Ltd (LC 185/2013) [2014] NALCMD 3 (31 January 2014).

Urgent application - Return date – Final order– need to await the outcome of a labour decision – Deductions already made should not be refunded before the matter is finalized. Failure to cite the Permanent Secretary is not fatal to the proceedings as he is duty bound to implement government’s decisions as he falls under first respondent. Teachers’ Union of Namibia v Minister of Education (LC 157/2013) [2014] NALCMD 2 (24 January 2014).

Urgent application - Urgent application brought on oral evidence – Rule nisi issued interdicting respondents from certain conduct – Return date anticipated – Point in limine raised that application based on hearsay – Witness not indicating that his evidence based on hearsay – Evidence not containing statements of information or belief – Witness not disclosing sources for information – Confirmatory affidavits made in reply by first hand witnesses – Applicant cannot make case in reply - Point in limine upheld – Hearsay evidence struck – Remaining evidence not sufficient to sustain confirmation of rule nisi – Rule discharged. Africa Personnel Services (Pty) Ltd v Those Persons whose Names appear on Annexure “A” hereto (LC 18-2010) [2014] NALCMD 14 (7 April 2014).

16 | P a g e

CASE SUMMARIES

African Stars Football Club v Mbuende (LC 136/2013)[2014] NALCMD 47( 26 November 2014).

Summary: Following dismissal by his employer, the first respondent referred the dispute to the Labour Commissioner for conciliation/arbitration. At the conciliation proceedings the applicant was not represented by a legal practitioner but by a candidate legal practitioner in respect of whom an application for leave to be represented had not been filed. Notwithstanding objection by the representative of the applicant, the arbitrator allowed the first respondent to be represented by a person who was not a legal practitioner.

Held, that the arbitrator had no discretion to waive or condone the non-compliance with pre-emptory requirement of the Act and the Rules which requires that an application has to be made in the prescribed form seven days before the hearing for leave to allow a party to be represented at the forthcoming conciliation/arbitration proceedings. The arbitrator’s decision to allow representation under those circumstances constitutes a gross irregularity.

Held further, that the arbitrator’s decision to allow a person who was not a legal practitioner to represent a party to the proceedings while knowing that such person did not have a right to represent a party is ultra vires his power or that the arbitrator exceeded his power within the meaning of the provisions of s 89 (5) of the Act.

Cenored vs Ikanga (LCA 13/2013) [2014] NALCMD 18 (30 April 2014).

Summary: In this matter the appellant appeals, in terms of s 89 of the Labour Act, 11 of 2007 (the Act) against an award made by the arbitrator on 15 January 2013. On 2 January 2006, Ms Sylvia Ikanga was employed by Cenored as a cashier at its offices situated in Outjo. The debtor’s clerk (a certain Ms Martha Seibes) and the cashier (the respondent) could not explain certain shortages experienced at the Outjo Cash Office.On 29 November 2011 a disciplinary hearing was convened. The disciplinary hearing was chaired by a certain Mr Walter Mostert who was also the Labour Consultant to the appellant. The respondent faced one main charge of theft, misappropriation of company money and an alternative charge of causing loss or damage to the organization through her disregard for the company’s rules or procedures. The chairperson of the disciplinary hearing returned a verdict of guilt. The respondent was subsequently informed in writing, that her services have been

17 | P a g e

terminated. The respondent duly lodged an appeal, which appeal was dismissed and the findings and sanction of the Disciplinary Committee were upheld.

Aggrieved by the outcome of her appeal the respondent, on 26 March 2012 referred a complaint of unfair dismissal to the office of the Labour Commissioner on the basis that the disciplinary hearing was procedural unfair and her dismissal was both procedurally and substantively unfair. A formal arbitration hearing was then set down for hearing. On 6 October 2012, the arbitrator made an award in favour of the respondent, where he ordered the appellant to reinstate the respondent in her original position and to pay her an amount of N$186 331-20. It is against this award that the appellant is appealing.

Held that the procedure provided for in the disciplinary code was clearly a fair one and that the respondent was entitled to insist that the appellant abide by its contractual undertaking to apply it. The court thus concluded that the departure by the appellant from its disciplinary code was unfair,

Held further that the finding by the arbitrator with regard to credibility of Ms Seibes was a finding of fact, and applying the test set out in the case of Visagie v Namibia Development Corporation that this Court is not entitled to interfere with that finding even if it is wrong.

Held further that once the chairperson of the disciplinary hearing was faced with two conflicting versions he had to, on probabilities, decide which of the versions is likely to be true. Further that in the present case the probabilities did not favour Ms Seibes’ version any more than they favour the respondent’s version, the appellant therefore failed to prove on a balance of probabilities that respondent stole the money.

DHL International Namibia (Pty) Ltd v Kuritjinga (LCA 1/2013) [2014] NALCMD 1 (24 January 2014).

Summary: First respondent was dismissed after a disciplinary hearing for allegedly physically assaulting a fellow employee. After unsuccessful internal appeal proceedings, first respondent, on 10 August 2011, referred the matter to conciliation and arbitration, submitting that his dismissal was both procedurally and substantively unfair. The arbitrator held that the dismissal of the first respondent was procedurally and substantively unfair and ordered that the first respondent be reinstated and awarded compensation in the amount of N$96 900-00 in favour of the respondent. The appeal lies against the award of the arbitrator.

Held that in determining whether an appeal lies on a question of law alone, the question is whether on all the available evidence, in respect of a specific finding, when viewed

18 | P a g e

collectively and applying the legal principles relevant to the evaluation of evidence, the factual conclusion by the arbitrator was a reasonable one in the circumstances.

Held further that the finding by the arbitrator that once the respondent raised the issue of ‘self-defence’, the chairperson of the disciplinary hearing ought to have entered a plea of ‘not guilty’ and afford the respondent an opportunity to place its version of events before the disciplinary committee and call witnesses to testify as to what really transpired, and whether he acted in ‘self-defense’ or ‘retaliation’ can in the Court’s view, not be faulted.

Held further that the arbitrator considered the substantive fairness of the dismissal of the respondent. The arbitrator made a factual finding that the appellant did not discharge the burden resting on it and there was accordingly no valid reason for the dismissal. The second ground of appeal was found to be without merit and dismissed.

Held further that the court was not convinced that the finding by the arbitrator was vitiated by lack of reason warranting this court to interfere with that finding.

Held further that it is the appellant who wanted to rely on the CCTV footage to proof that the respondent unprovoked assaulted Mr Brussels. The Court further found that in the absence of the production and viewing of the CCTV footage the evidence of Mr De Jager is inadmissible hearsay evidence.

Kandetu v Karibib Town Council (LCA 13/2013) [2014] NALCMD 15 (16 April 2014).

Summary: The appellant, Ms Lydia Kandetu who was appointed and worked as the Chief Executive Officer for the Town Council of Karibib was dismissed from her office on account of misconduct in terms of section 29(4) of the Local Authorities Act, 23 of 1992. Unsuccessful in the arbitration proceedings held before an arbitrator, she appealed the finding, but on appeal, the Labour Court dismissed her appeal and upheld the arbitrator’s finding.

MB Truck Spares v van Niekerk (LC 161/2013) [2014] NALCMD 11 (7 March 2014).

Summary: The application for condonation of the late noting of an appeal against the arbitrator’s award has been dismissed due to the failure of the applicant to provide a record of proceedings in the arbitration proceedings. The Court not placed in a position to assess whether or not on the facts placed before her, the arbitrator came to a wrong or correct conclusion.

19 | P a g e

Namibia Food and Allied Workers Union v Mc Carthy Retail (Namibia) (Pty) Ltd (LC 185/2013) [2014] NALCMD 3 (31 January 2014).

Summary: Applicant and respondent entered into a recognition agreement which applicant avers respondent had breached and continued to do so. Respondent stated that the present employees employed after the agreement were not scab labourers but seasonal labourers which was a partial admission. Respondent had not accorded applicant access to its premises as per the agreement. This was a breach and applicant had reason to panic and approach the courts. The averments in the answering and supplementary affidavits are necessary in the circumstances. Application for striking out is dismissed with costs.

Namibia Dairies (Pty) Ltd vs Alfeus (LCA 4/2014) [2014] NALCMD 36 (18 September 2014).

Summary: Labour Law – Arbitration tribunal – Appeals from – Such permissible on questions of law only – Court explained the phrase ‘questions of law’ with regard to appeals in terms of s 89(1)(a) of the Labour Act 11 of 2007 – Court found that in instant case, of the seven items raised as questions of law in the notice of appeal only the first item qualified as a question of law – Court found further that the questions of law formulated in the notice of motion doubled as grounds of appeal which is not permitted – Consequently, court found that no ground is put forth to support the only question of law in the notice of appeal – Court concluded, therefore, that the notice of appeal is defective and, accordingly, a nullity and so the appeal should fail – Court, therefore, dismissed the appeal without costs.

Novanam Ltd v Percival Rinquest (LCA 65/2012) [2014] NALCMD 35 (22 August 2014).

Summary: The respondent was employed by the appellant as a ‘skipper’ on its vessels between the periods 16 October 2002 to 15 December 2011 when his employment was terminated allegedly for operational and economic reasons. On 13 March 2012 the respondent, in terms of ss 82(7) and 86 of the Labour Act, 2007, referred a dispute of unfair dismissal (retrenchment) to the office of the Labour Commissioner. The Labour Commissioner referred the dispute, to an arbitrator for conciliation and arbitration.

The arbitrator was required under section 86(5) of the Labour Act, 2007 to attempt to resolve the dispute through conciliation before proceeding with arbitration. The initial conciliation/arbitration hearing was heard on 02 May 2012, where conciliation failed and the matter was thereafter postponed on a few occasions for arbitration, which eventually

20 | P a g e

proceeded on 03 September 2012. On 02 October 2012 the arbitrator made her finding and made an award. It is against part of the award that the appellant now appeals.

Held that the appellant has failed to discharge the onus resting on it to prove that the retrenchment of the respondent was both substantively and procedurally fair.

Held further that in terms of s 89(1)(a) of the Labour Act, 2007 a party to a dispute may appeal to the Labour Court against an arbitrator’s award made in terms of section 86 ‘on any question of law alone’ and that the issue whether or not the respondent mitigated his loses is a question fact rather than one of law. It follows therefore that the appellant cannot appeal on that ground to this court.

Held further that compensation must not be calculated in a manner aimed at punishing the employer, or at enriching a claimant because it is awarded based on the principle of restiutio in integrum and that compensation of 9 months (that is the period between the dismissal of the respondent and the hearing of his complaint) is not punitive but is clearly justifiable on the basis of the manner in which the respondent’s employment was terminated.

Held further that the arbitrator erred in law in arriving at the amount of N$143 963-16 accordingly this court sets aside the award of N$143 963-16.

Held further that an arbitrator retains a discretion to order the payment of severance pay higher than the statutory minimum in appropriate circumstances and that the circumstances of this case justify an order for the payment of severance pay higher than the statutory minimum.

Ohorongo Cement (Pty) Ltd v Karwapa (LCA 2/2013) [2014] NALCMD 27 (25 June 2014)

Summary: Labour Law – appeal – court holding that in the context of considering whether or not the first respondent’s dismissal had been substantively fair that such determination would also have to be made against the background circumstances of the matter. In casu it was considered relevant that the appellant was operating a cement manufacturing plant and that it does so in a regulated environment and within the regulatory framework imposed on the parties by the Mines, Works and Mineral Ordinance of 1968, and its regulations. As a result the appellant had adopted a zero tolerance policy towards alcohol and drugs in order to maintain a safe and healthy environment for all employees, the employer and visitors. By reason of this not only the interests of the individual fell to be considered, but also those of the collective workforce

21 | P a g e

and those of the employer and even visitors to ensure an overall safe working environment for all.

This important aspect had also been included in the first respondent’s contract of employment in terms of which first respondent had undertaken to respect and obey all safety and health rules and policies laid down by the appellant and to require other employees under his / her supervision (if applicable) to do the same and to display a general regard for the safety and health of other employees.

Once the reasonableness of the appellant’s actions - and whether or not these facts and circumstances constituted a valid and fair reason for the first respondent’s dismissal - in view of the first respondent breach of these conditions - were considered against this background, it emerged that the dismissal of the first respondent was essentially to be regarded as being substantively fair - especially if it was taken into account that ultimately the ‘greater good would so prevail’ ie. even if this meant that the collective interest of the safety of the overall workforce, the employer and visitors would so prevail over the individual interest of the first respondent.

In such circumstances it could also not be said that the sanction imposed was one that no reasonable employer would have imposed – appeal accordingly upheld.

Puma Chemicals v Labour Commissioner (LC 90/2012) [2014] NALCMD 09 (10 February 2014).

Labour law – Application for review of arbitrator's decision brought outside the time periods set by section 89(4) of the Labour Act 2007 – Interpretation of section 89(4) of the Labour Act – Court finding that although language utilized in section 89(4) directory – it nevertheless had to be concluded from the language, scope and purpose of the Labour Act 2007 that the legislature had intended the provisions of section 89(4) to be peremptory – Court accordingly concluding that it was not vested with the power to condone the late filing of a review application outside the time periods set by section 89(4) of the Act – application for review accordingly dismissed.

Rosh Pinah Zinc Corporation (Pty) Ltd v Naukushu (LCA 30/2013) [2014] NALCMD 12 (7 March 2014).

Summary: The appellant has appealed against the arbitral award issued in favour of the respondent by the arbitrator. The respondent, an employee of the appellant who worked as an operator at the mining division was charged with and found guilty of misconduct for being absent from work for 5 days at the disciplinary hearing and was dismissed. However, the arbitrator, after the arbitration proceedings, found in favour of

22 | P a g e

the respondent and issued an award ordering his re-instatement and compensation. On appeal, the Court found that the arbitrator made a wrong conclusion from the evidence presented before him – upheld the appeal and the award set aside.

Shilongo v Vector Logistics (Pty) Ltd (LCA 27/2012) [2014] NALCMD 4 (5 February 2014).

Summary: Labour law – Unfair dismissal – Compensatory payment in terms of s 46(1)(a)(iii) of the repealed Labour Act 6 of 1992 – Such compensation is aimed at redressing a labour injustice and not at enriching the dismissed employee – Court held that no evidence is needed to prove losses where compensation is equal to what employee could have been paid which is in the domain of the employer – But where losses include loss of benefits like medical aid and loss of a house the employee should call evidence to prove what the losses entail – Court set out certain important factors a court or tribunal should take into account in determining a reasonable amount of compensation – Appellant’s dismissal by respondent’s disciplinary hearing and appeal disciplinary hearing bodies was confirmed by the district labour court in terms of the repealed Labour Act 6 of 1992 – Court found that there was evidence of appellant’s (employee’s) monthly salary and appellant did not prove any losses – On appeal court found that the district labour court’s decision was wrong and so set it aside – Court found further that appellant made no effort to mitigate his losses – Above all, court found that appellant contributed to a great extent to his dismissal – Taking these and other factors into account and the appeal having succeeded the court awarded compensatory payment equivalent to appellant’s four month’s salary.

Summary: Labour law – Unfair dismissal – In terms of the repealed Labour Act, 6 of 1992 – Grounds of appeal – Court held that the word ‘grounds’ in rule 19(2)(c) of the repealed Labour Act has no esoteric meaning – The word ‘grounds’ means reasons why the appellant attacks the entire judgment or part of the judgment delivered by the district labour court and the reasons (or grounds) must be set out with sufficient particularity to enable the respondent to know the case he or she has to meet – Appellant set out five grounds of appeal on Form No. 14 in terms of rule 19(2) of the District Labour Court rules – Court found that those grounds, except the fifth ground, complies with rule 19(2) of the District Labour Court rules – Accordingly, the court reject the respondent’s preliminary objection that all the grounds were not rule compliant.

Shilongo vs Vector Logistics (Pty) Ltd (LCA 27/2012) [2014] NALCMD 33 (7 August 2014).

Summary: Labour Law – Leave to appeal – Appeals under the repealed Labour Act 6 of 1992 – Such appeals only permissible on questions of law – Applicant must

23 | P a g e

accordingly set out clearly the questions of law applicant seeks leave to appeal on – Court held that this is necessary to inform respondent what case he or she has to meet and to enable the court to determine whether this a deserving case in respect of which there is a reasonable prospect that the Supreme Court may take a different view about the Labour Court’s judgment in virtue of such questions of law – Court found that the applicant has not indicated what questions of law on which the applicant seeks leave of the Labour Court to appeal to the Supreme Court – Court found further that even if the court were to interpret the applicant’s Notice of Application for Leave to Appeal generously since applicant is a lay litigant representing himself and accept that leave is sought to appeal against the award granted to the applicant by the Labour Court that does not raise a question of law: it is a question of judicial discretion ( liberum arbitrium of the courts) – Court concluded that the applicant has failed to show that he has reasonable prospects of success on a further appeal – Consequently, the court dismissed the application without costs.

Shoprite Namibia (Pty) Ltd v Hamutele (LC 172/2013) [2014] NALCMD 43 (20 October 2014).

Summary: The review application was served at the offices of the trade union of which the second respondent was member. The general secretary of the trade union represented the second respondent at the arbitration proceeding. The applicant contending that the service of the application on the trade union constituted proper service in terms of Rule 5(3)(c).

The review application brought on the grounds that the first respondent refused to admit the video footage into evidence and to rely thereon; that such conduct constitute misconduct or irregularity on the part of the first respondent. Furthermore that the finding by the first respondent that the sanction of dismissal after the second respondent had been found guilty of misconduct of theft and negligence, was too harsh and substituting it with an award of re-instatement of the second respondent is an indication that the first respondent did not apply her mind to the issues of sanction and as such, constituted a defect within the meaning of sub-section 89(4).

Held that there had not been a proper service of the application on the second respondent because the trade union was not authorised by the second respondent to accept service of the application on his behalf as required by Rule 5(2) of the Labour Court Rules. The application is dismissed for that reason.

Held further that it appears from the award that the video footage was admitted in evidence and considered.

24 | P a g e

Held further that the first respondent’s decision not rely on the video footage alone when she considered the charge of theft, whether right or wrong is not misconduct.

Held further that the review proceedings are not concerned with the correctness of the decision of the functionary and that an appropriate procedure in this matter would have been an appeal and not a review against such decision.

Held further that it appears from the award that the first respondent applied her mind to the issues before her. Review application dismissed.

The Council for the Municipality of Walvis Bay vs Kangumu (LCA 76/2011) [2014] NALCMD 8 (21 February 2014).

Summary: Labour Law – Parties – Locus standi – Municipality established in terms of the Local Authorities Act 23 of 1992 has no legal personality and accordingly no locus standi in judicio – The appellant set out in its notice of appeal grounds that by according locus standi to the municipality of Walvis Bay the arbitrator erred in law – The court decided to consider the question of locus standi before considering the merits because a decision in favour of the appellant would be dispositive of the entire appeal – The court found that a municipality established under the Local Authorities Act 23 of 1992 has no legal personality and therefore no locus standi in judicio – The court decided that although the question of law on locus standi had not been raised during conciliation and subsequent arbitration the appellant was entitled to set it out as a ground in the notice of appeal because it answer to ‘any question of law’ within the meaning of s 89(1)(a) of the Labour Act 11 of 2007 – The court found for the appellant as respects those grounds based on locus standi set out in the notice of appeal – Consequently, the court upheld the appeal and set aside the arbitration award.

The Municipal Council of Windhoek v Ochurus (LCA 78/2011) [2014] NALCMD 13 (7 March 2014).

Summary: Appellant has appealed against the arbitration award issued against it is in terms of section 86(15) of the Labour Act, 2007 (Act 11 of 2007). In the proceedings before the arbitrator respondent alleged that she was discriminated against by the Strategic Executive: Finance of the City of Windhoek on the ground of ethnicity – persuading the arbitrator to issue the award in her favour. In appeal – the arbitrator’s award set aside in whole, and as a result, therefore, the appeal upheld and the decision by the Strategic Executive: Finance, confirmed.

25 | P a g e

The International University of Management vs Torbitt (LC 114/2013) [2014] NALCMD 6 (20 February 2014).

Summary: Practice – Applications and motions – Application for declaratory order – Applicant seeks protection of its vested right under s 86(18) of the Labour Act 11 of 2007, read with art 12(1) of the Namibian Constitution – Court found that the applicant has a vested right in the arbitrator obeying the peremptory command under s 86(18) of Act 11 of 2007 – The arbitrator issued her arbitration award outside the statutory prescribed time limit of 30 days in terms of s 86(18) of the Labour Act 11 of 2007 – The court found that s 86(18) imports a peremptory status taking into account the ordinary grammatical meaning of ‘must’ in context – Accordingly, the court found that the statutory command in s 86(18) couched in such peremptory terms is a strong indication, in the absence of considerations pointing to another conclusion, which did not exist in the instant case, that the Legislature intended disobedience to be visited with a nullity.

Van Wyk v Ministry of Labour (LC 182-2013)[2014] NALCMD 48 (26 November 2014).

Summary: The arbitrator telephoned the representative of the respondent employer in the presence of the dismissed employee, the applicant, and had a conversation not in the official language being English but in Oshiwambo language which is not understood by the applicant.

Held, that objectively viewed, the arbitrator’s conduct militates against concept of transparency and raises a reasonable perception or doubt about his impartiality and thus constitutes a gross irregularity.

After the conciliation proceeding were adjourned to allow the parties to negotiate a settlement and if succeeded to take the settlement to the arbitrator. Thereafter the representative of the respondent employer took a letter with a settlement offer to the arbitrator without informing the dismissed employee. The arbitrator then telephoned the applicant to collect the letter from the arbitrator containing the settlement offer. The applicant rejected the offer whereupon the arbitrator remarked that if the applicant did not accept the offer he could get 50% or nothing after the conclusion of the arbitration proceedings.

Held, that it was highly in appropriate for the arbitrator to meet a party to the proceedings alone and in the absence of the other party to the proceedings; that objectively viewed such conduct raises a reasonable perception of impartiality on the arbitrator’s part and as such constitutes a gross irregularity.

26 | P a g e

Held further that the remark by the arbitrator that if the applicant did not accept the respondent’s offer the applicant could get 50% or nothing at the conclusion of the arbitration proceeding was highly inappropriate; that such remark demonstrates a degree of pre-judgment of the issues to be determined at the arbitration and it further conveys a sense of capriciousness and thus constitutes a gross irregularity.

27 | P a g e