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.
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
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
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).
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. 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).
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).