REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO. LC 94/2012

In the matter between:

GISELHEID MURIEL STRAUSS APPLICANT

and

NAMIBIA INSTITUTE OF MINING & TECHNOLOGY 1ST RESPONDENT(NIMT) ARANDIS CAMPUS

ONO ANGULA N.O. 2ND RESPONDENT

THE LABOUR COMMISSIONER 3RD RESPONDENT

MINISTER OF LABOUR & SOCIAL WELFARE 4TH RESPONDENT

Neutral citation: Strauss v Namibia Institute of Mining & Technology (LC 94/2012) [2013] NALCMD 38 (06 November 2013)

Coram: UEITELE J

Heard: 19 March 2013

Delivered: 06 November 2013

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Flynote: Labour law- Review- Notice of motion- Whether the review was brought

outside the period contemplated in section 89(4) of the LabourAct, 2007.

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.

Summary:

On 13 July 2012 the applicant instituted action by Notice of Motion to review certain

decisions by the second and the third respondents. The applicant alleges that on 6

October 2010 she was constructively dismissed by NIMT. NIMT on the other hand

denies the allegation. As a consequence of the alleged dismissal the applicant on 04

March 2011 lodged a complaint of constructive dismissal, with the office of the Labour

Commissioner in Keetmanshoop.

On 22 March 2011 the Labour Commissioner, in terms of section 86(4) of the Labour

Act, 2007 read with Regulation 20(2) of the Labour General Regulations, notified the

applicant that her complaint will be arbitrated on 7 April 2011 at 09H00 at the Municipal

Council Chambers located at Kuisebmund, Walvis Bay.

A day prior of the proceedings, the applicant attended at the offices of the Labour

Commissioner in Swakopmund where she was informed that her complaint scheduled

for arbitration on 07 April 2011 will be postponed due to the fact that NIMT could not

attend the said proceedings. The parties then agreed that a new date will be set for the

hearing of the matter. The Arbitrator proposed a new date for the hearing of the matter,

being 28 April 2011, however on the said date her representative could not be available.

It was then agreed that the applicant will phone the Arbitrator early in May 2011 in order

to obtain a new date. NIMT disputes this version by the applicant and alleges that the

parties agreed to postpone the matter to 28 April 2011 for arbitration.

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On 4 May 2011 the applicant telephoned the Arbitrator, during that telephonic

conversation the Arbitrator informed the applicant that her case was dismissed due to

the fact that her representative did not show up for the proceedings on 28 April 2011.

The applicant alleges that she was not informed that the proceedings will commence on

28 April 2011, nor did she receive any written notice of the proceedings to be conducted

on 28 April 2011.

The application to review the decisions of the Arbitrator and the Labour Commissioner

was lodged (on 13 July 2012), after the applicant received the Labour Commissioner’s

reply of 12 June 2012. On 24 July 2012 the applicant lodged an application to this court

for this Court to condone the late filling of this review application. NIMT opposes both

the review application and the condonation application.

Held that the Notice of Motion and the annexures to that Notice of Motion were served

on the Registrar and NIMT on 13 July 2012 which is within the thirty days contemplated

in section 89(4) of the Labour Act, 2007 and as a result there is no need for her to apply

for condonation for the late serving of the notice of motion and its annexure on the

respondents.

Held further that the applicant has proven that the conduct of the arbitration hearing on

28 April 2011 was a gross irregularity. The decision of the Arbitrator can therefore not

be allowed to stand and is accordingly set it aside. Since the decision of the Arbitrator

forms the foundation on which the decision (of 12 June 2012) of the Labour

Commissioner rests the decision of the Labour Commissioner automatically collapses.

Held further that all the essential elements which go to prove a gross irregularity were

established. The approach taken by the Labour Commissioner is inconsistent with an

adjudicative process and a clear negation of the applicant’s rights enshrined in Article

12(1)(a) of the Namibian Constitution. Section 86(7)(b) of the Labour Act, 2007 and rule

18 of the Rules Relating to the Conduct of Conciliation and Arbitration.

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ORDER

1 That the applicant’s application for review was made to Court within the period

stipulated in section 89(4) of the Labour Act, 2007 and as a result there is no

need for her to apply for condonation for the late serving of the notice of motion

and its annexure on the respondents.

2 It is declared that the conduct of Arbitration/Conciliation hearing on 28 April 2011

in the absence of the applicant is a gross irregularity as contemplated in section

89(5)(a)(ii) of the Labour Act, 2007.

3 The decision of the Arbitrator, to dismiss the applicant’s complaint in terms of

Section 83(2)(a) of the Labour Act, 2007 is accordingly set aside.

4 The matter is referred back to the Office of the Labour Commissioner, who must

appoint another Arbitrator to conciliate/arbitrate the applicant’s complaint de

novo.

5 The Labour Commissioner must, in terms of section 86(4) of the Labour Act,

2007 read with Regulation 20(2) of the Labour General Regulations, notify the

parties not later than fourteen days from the date of this judgment where and

when the applicant’s complaint will be conciliated /arbitrated.

JUDGMENT

UEITELE, J

INTRODUCTION

[1] On 13 July 2012 the applicant instituted action by Notice of Motion to review

certain decisions by the second and the third respondents.

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[2] The applicant seeks the following relief in her notice of motion, namely;

“1. Declaring the decision taken by the 2nd respondent to dismiss applicant’s

complaint in terms of Section 83(2)(a) of the Labour Act 11 of 2007 ultra vires the

powers, duties and functions of the 2nd respondent in terms of the Labour Act and

therefore null and void.

2. In the alternative to prayer 1 above, that the decision taken by the 2nd respondent

to dismiss applicant’s complaint in terms of Section 83(2) (a) of the Labour Act,

be declared a gross irregularity in the conduct of the proceedings before the 2nd

respondent.

3. In the alternative to prayer 1 and 2 above, reviewing and setting aside the

decision of the 2nd respondent in dismissing the applicant’s complaint in terms of

Section 83(2) (a) of the Labour Act, and that the matter be referred back to the

Office of the Labour Commissioner, to be heard de novo before a new arbitrator.

4. In addition to prayers 1, 2 and 3 above, the applicant also seeks an order

whereby:

4.1 The decision taken by the 3rd respondent to dismiss the applicant’s

application for condonation for the late referral of the dispute dated 5

June 2012, solely based on the previous decision of the 2nd respondent to

dismiss same in terms of Section 83(2)(a) of the Labour Act 11 of 2007, is

to be declared to be null and void, as the decision of the 2nd respondent

was erroneous ab initio;

4.2 In the alternative to 4.1 above, that it be declared that the 3 rd respondent

did not exercise his judicial discretion imposed on him by the Labour Act,

when he made the decision to dismiss the application for condonation for

the late referral of the dispute dated 5 June 2012, based solely on the

previous decision of the 2nd respondent to dismiss same in terms of

Section 83(2)(a) of the Labour Act, Act 11 of 2007;

4.3 In the alternative to 4.2 above that it be declared that the 3rd respondent

failed to exercise his judicial discretion in determining my condonation

application, and he failed to act fairly and reasonably in terms of the

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common law and/or Articles 12 and 18 of the Namibian Constitution of the

Republic of Namibia;

4.4 In addition to 4.3 above, that it be declared that the 3rd respondent failed

to apply the audi alterm partem rule in terms of the common law and/or

Article 12 and/or Article 18 of the Constitution of the Republic of Namibia

and failed to afford me the opportunity to be heard on the decision he

took; and

4.5 Whereby it is declared that the 3rd respondent failed to satisfy the

legitimate expectation of the applicant of a fair procedure and a fair

hearing and the decision making process, required by the common law

and/or Articles 12 and 18 of the Constitution of the Republic of Namibia

and as is required by the provisions of section 121, 85 and 86 of the Act;

4.6 In the further alternative to 4.1 and 4.2 above, reviewing and setting aside

the decision(s) of the 3rd respondent in dismissing the application for

condonation for the late referral of the dispute dated 5 June 2012, solely

based on the decision of the 2nd respondent to dismiss same in terms of

Section 83(2)(a) of the Labour Act 11 of 2007, and that the matter be

referred back to the Office of the Labour Commissioner, to be heard de

novo before a new arbitrator.

5 Generally reviewing and setting aside the decision(s) of the 2nd and 3rd

respondents and that the matter be referred back to the Office of the Labour

Commissioner, to be heard de novo before a new arbitrator.

6 In addition, and only in so far as the Honourable Court may find same is

necessary, to prayers 1 to 5 above, condoning in terms of Rule 15 the applicant’s

non-compliance with the Rules of Court, inter alia, applicant’s non-compliance

with the time period provided for in terms of the provisions of Rule 14(2) of the

Rules of the Labour Court, as read with the provisions of Rule 23(9) of the Rules

Relating to Conciliation and Arbitration before the Labour Commissioner, and

extending such time period so provided for in the said Rules.’

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THE BACKGROUND TO THE APPLICATION

[3] The background facts which I recite here are based on the allegations contained

in the applicant’s supporting affidavit which are not disputed by any of the respondents.

I will, in this judgment, and for ease of reference refer to the first respondent as NIMT,

the second respondent as the Arbitrator and to the third respondent as the Labour

Commissioner.

[4] The applicant was employed by NIMT from September 2008 until October 2010

in the position of Personal Assistant to the Deputy Director of NIMT in Arandis. The

applicant alleges that on 6 October 2010 she was constructively dismissed by NIMT.

NIMT on the other hand denies the allegation.

[5] As a consequence of the alleged dismissal the applicant on 04 March 2011

lodged a complaint of constructive dismissal, with the office of the Labour

Commissioner in Keetmanshoop.

[6] On 22 March 2011 the Labour Commissioner, in terms of section 86(4) of the

Labour Act, 2007 read with Regulation 20(2) of the Labour General Regulations1,

notified the applicant that her complaint will be arbitrated on 7 April 2011 at 09H00 at

the Municipal Council Chambers located at Kuisebmund, Walvis Bay. He also notified

her that the arbitrator will be Mr. Ono Angula.

[7] A day prior (that is, on 06 April 2011) to the date (that is, 07 April 2011) on which

the arbitration proceedings were scheduled, the applicant attended at the offices of the

Labour Commissioner in Swakopmund. When she so attended the offices she was

informed (the applicant does not state who informed her) that her complaint scheduled

for arbitration on 07 April 2011 will be postponed due to the fact that NIMT could not

attend the said proceedings. The applicant alleges that the postponement of the

proceedings was never agreed upon between the parties, nor did NIMT bring any

application for the postponement of the proceedings.1 Published in Government Notice No.261 of 2008 in Government Gazette No. 4151 of 31 October

2008).

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[8] After the representative of the applicant, a certain Mr. Alfred Angula, learned of

the postponement he indicated that he would attend at the offices of the Labour

Commissioner on 7 April 2011 in order to ascertain why the matter was postponed on

that day.

[9] On 7 April 2011 the applicant and her representative had a meeting with the

Arbitrator who informed them that the matter was to be postponed due to the fact that

NIMT could not attend the said proceedings. The parties (i.e. the applicant and her

representative Mr Angula, and the Arbitrator) present at the meeting of 07 April 2011

then agreed that a new date will be set for the hearing of the matter. The Arbitrator

proposed a new date for the hearing of the matter, being 28 April 2011, however on the

said date her representative could not be available. It was then agreed that the

applicant will phone the Arbitrator early in May 2011 in order to obtain a new date. NIMT

disputes this version by the applicant and alleges that the parties agreed to postpone

the matter to 28 April 2011 for arbitration. I will in the course of this judgment return to

the dispute as to whether the matter was postponed to 28 April 2011 or not.

[10] On 4 May 2011 the applicant telephoned the Arbitrator, during that telephonic

conversation the Arbitrator informed the applicant that her case was dismissed due to

the fact that her representative did not show up for the proceedings on 28 April 2011.

The applicant alleges that she was not informed that the proceedings will commence on

28 April 2011, nor did she receive any written notice of the proceedings to be conducted

on 28 April 2011.

[11] The applicant alleges that after numerous unsuccessful telephone calls to the

Arbitrator, she addressed a letter (dated 15 June 2011) to him explaining the situation

as set out above and requesting that a new date be arranged because her case could

not have been dismissed as the date of 28 April 2011 was never agreed upon. The

applicant alleges that she did not receive any response to her letter of 15 June 2011.

[12] On 17 August 2011 the applicant addressed another letter, this time to the

Labour Commissioner. In the letter of 17 August 2011 she requests the Labour

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Commissioner to look into her complaint and give her an answer. The applicant further

alleges that she did not receive any response from the Labour Commissioner to her

letter of 17 August 2011.

[13] On 05 June 2012 the applicant lodged another complaint with the Labour

Commissioner. Simultaneously with the dispute lodged on 05 June 2012 the applicant

delivered an application for condonation for the late delivery of the complaint. The

Labour Commissioner responded on 12 June 2012. In his response the Labour

Commissioner informed her that her dispute remains dismissed, based on the dismissal

of the matter by the Arbitrator on 28 April 2011.

[14] The application to review the decisions of the Arbitrator and the Labour

Commissioner was lodged (on 13 July 2012), after the applicant received the Labour

Commissioner’s reply of 12 June 2012.

[15] On 24 July 2012 the applicant lodged an application to this court for this Court to

condone the late filling of this review application. NIMT opposes both the review

application and the condonation application.

HAS THE APPLICANT LAUNCHED HER REVIEW APPLICATION OUT OF TIME?

[16] As I have indicated above the applicant has applied to this Court to condone the

‘late filing’ of the application to review and set aside the Arbitrator’s award of 28 April

2011 alternatively to review and set aside the Labour Commissioner’s decision

communicated to her on 12 June 2012 and that NIMT opposes that application. I

understand NIMT’s opposition to the application for condonation to, inter alia, be based

on the following factors:

(a) NIMT alleges that the applicant and the Arbitrator agreed that the hearing of the

applicant’s complaint was to be postponed from 07 April 2011 to 28 April 2011;

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(b) That applicant for a period of ten months (that is from 25 July 2011 to 25 April

2012) did not make any attempts to move her matter forward.

(c) That the applicant lacks genuine or substantial grounds for review and that her

understanding of section 82(2)(a) is misconceived and misguided.

(d) That the Labour Commissioner’s powers when he dismissed the complaint were

functus officio, except for the provisions of section 83(3) and he had or has no

power to grant condonation for the late submission of a labour dispute/dismissal.

[17] Before I consider whether the applicant has made out a case for me to condone

the ‘late filling’ of the application to review the Arbitrator’s award I will restate the

relevant provisions of section 89(4). That section reads that a party to a dispute who

alleges a defect in any arbitration proceedings in terms of that Part [ that is Part C of

Chapter 8 of the Labour Act, 2007 which deals with Prevention and Resolution of

Disputes] may apply to the Labour Court for an order reviewing and setting aside the

award within 30 days after the award was served on the party.

[18] Section 129 of the Act provides as follows:

“129 Service of documents(1) For the purpose of this Act-

(a) a document includes any notice, referral or application required to be

served in terms of this Act, except documents served in relation to a Labour Court case;

and

(b) an address includes a person's residential or office address, post office

box number, or private box of that employee's employer.

(2) A document is served on a person if it is-

(a) delivered personally;

(b) sent by registered post to the person's last known address;

(c) left with an adult individual apparently residing at or occupying or

employed at the person's last known address; or

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(d) in the case of a company-

(i) delivered to the public officer of the company;

(ii) left with some adult individual apparently residing at or occupying

or employed at its registered address;

(iii) sent by registered post addressed to the company or its public

officer at their last known addresses; or

(iv) transmitted by means of a facsimile transmission to the person

concerned at the registered office of the company.

(3) Unless the contrary is proved, a document delivered in the manner

contemplated in subsection (2)(b) or (d)(iii), must be considered to have been received

by the person to whom it was addressed at the time when it would, in the ordinary

course of post, have arrived at the place to which it was addressed.’ {My Emphasis}

[19] In addition to the provisions of section 129 of the Labour Act, 2007, Rule 27(4) of

the Rules relating to the conduct of Conciliation and Arbitration before the Labour

Commissioner2 provides that if a matter is dismissed, the conciliator or arbitrator must send a copy of the ruling to the parties. {My Emphasis}

[20] In the present matter the applicant both in her affidavit in support of the review

application and her affidavit in support of the condonation application makes the

allegation that the Arbitrator never served the award of 28 April 2011 on her or sent a

copy of the ruling of 28 April 2011 to her. She states that it was only on 12 June 2012

that she received the written award of 28 April 2011. In her affidavit in support of her

application for condonation she makes the following allegations.

‘4.1.11 It was only or about 12 June 2012, after I have again referred my dispute back

to the Office of the labour Commissioner and when the 3rd respondent informed me that

my dispute remains dismissed, based on the dismissal of the matter by the 2nd

respondent, that I received the written ruling by the 2nd respondent that the matter was

so dismissed…’

2 Published by Government Notice Number 262 of 2008 in Government Gazette No 4151 of 31 October 2008.

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[21] The Arbitrator has not filed an affidavit replying to these allegations. Mr Mueller

on behalf of NIMT filed the affidavits opposing both the review and condonation

applications. In his affidavit (in opposition to the Review Application) he replies as

follows to the applicant’s allegation that she did not receive the Arbitrator’s ruling/award:

’32.1 It is reiterated that the Applicant was on her own version telephonically informed

by the Labour Commissioner on or about 04 May 2011 that her complaint was dismissed

due to her lack appearance on 28 April 2011.

32.2 …

32.4 Regard to Annexure ‘GS 6’ or ‘GS 7’ (Ruling by Second Respondent dated 28

April 2011) it is submitted that, had the Applicant been sincere about ascertaining upon

which authority/powers her claim was dismissed (having already been telephonically

informed that her claim was dismissed due to absenteeism) she could easily have

obtained a copy of Annexure ‘GS 6’ or ‘GS 7’ (Ruling by Second Respondent dated 28

April 2011) from the offices of Labour Commissioner at the time which she has made no

effort to obtain.’

[22] In his affidavit (in opposition to the Condonation Application) Mr Mueller replies

as follows to the applicant’s allegation that she did not receive the Arbitrator’s

ruling/award:

‘AD PARAGRPH 4.1.11 THEREOF:

8.1 The allegations herein contained are for purposes of this application not

disputed…’

[23] The approach to evidence contained in an affidavit in motion proceedings has

been laid down in the in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty)

Ltd 3 which has been consistently followed in this Court and in the Supreme Court. In

that case it was stated that where it is clear that facts stated in the applicant’s affidavit

though not formally admitted, cannot be denied, they must be regarded as admitted. I

therefore find that the applicant only received a copy of the notice of the dismissal of 3 1957 (4) SA 234 (C) at 235E – G.

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complaint on 12 June 2012 this much is clear from the provisions of section 129 (2)(a)

(b) of the Labour Act, 2007 and Rule 27(4) of the Rules relating to the conduct of

Conciliation and Arbitration before the Labour Commissioner.

[24] The contentions of Mr Mueller that the applicant was telephonically informed of

the dismissal of the complaint on 04 May 2011 are of no consequence. I say so for the

following reasons the Rules in peremptory terms state that the Arbitrator must send a

copy of the ruling to the parties, section 86(4) of the Labour Act, 2007 provides that the

computation of the days within which the application for review must be instituted starts

from the day that the decision/ arbitration award is served on a party and section 129 of

the Labour Act, 2007 defines what is meant by served. It therefore follows that the

computation of the period within which to launch commences from the date on which

she was served with written ruling of the Arbitrator and I find that the Arbitrator ‘s ruling

was served or sent to the applicant on 12 June 2012.

[25] The Notice of Motion and the annexures to that Notice of Motion were served on

the Registrar and NIMT, on 13 July 2012 which is within the thirty days period

contemplated in section 89(4) of the Labour Act, 2007. I am thus of the view that the

applicant complied with the provisions of section 89(4) of the Labour Act, 2007. There is

in my view therefore no need to apply for condonation of the review application. Having

found that there is no need to apply for condonation the question that I now need to deal

with is whether the applicant has established the grounds upon which I can review the

Arbitrator’s award of 28 April 2011.

GROUNDS ON WHICH THIS COURT MAY REVIEW ARBITRATION AWARDS OR DECISIONS OF THE LABOUR COMMISIONER.

[26] The application to review an arbitrator’s award is brought in terms of section 89

of the Labour Act, 2007: That section amongst others provides as follows:

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“89 Appeals or reviews of arbitration awards

(1) …

(4) A party to a dispute who alleges a defect in any arbitration proceedings in

terms of this Part may apply to the Labour Court for an order reviewing and setting aside

the award-

(a) within 30 days after the award was served on the party, unless the

alleged defect involves corruption; or

(b) if the alleged defect involves corruption, within six weeks after the date

that the applicant discovers the corruption.

(5) A defect referred to in subsection (4) means-

(a) that the arbitrator-

(i) committed misconduct in relation to the duties of an arbitrator;

(ii) committed a gross irregularity in the conduct of the arbitration

proceedings; or

(iii) exceeded the arbitrator's power; or

(b) that the award has been improperly obtained.’

[27] My reading of section 89(4) of the Labour Act, 2007 is that a party to a dispute

which has been conciliated or arbitrated upon in terms of that Act may, not later than

thirty days from the date on which the award is served on him or her, institute review

proceedings to set aside a resultant award if he or she alleges that the proceedings

were defective.

[28] Defect is defined to mean misconduct in relation to the duties of an arbitrator, or

a gross irregularity in the conduct of the arbitration proceedings; or exceeding of power

by the arbitrator or that the award has been improperly obtained4. Parker5 opines that

‘there is no room for additional grounds on which an alleged ‘defect’ in arbitration

4 See section 89(5) of the LabourAct, 2007.5 Parker C Labour Law in Namibia Unam Press 2012 at 214. Also see the unreported judgment of

Mokwena v Shinguadja and Another (LC 52/2011) [2013] NALCMD 10 (28 March 2013)

15

proceedings can be based as far as the Labour Act, 2007 is concerned’. I express no

views on this opinion at this point since the issue which I am called upon to decide is

whether the dismissal by the Arbitrator of the applicant’s complaint amounts to a defect

as contemplated in section 89(4) & (5) of the Labour Act, 2007.

[29] It has long been accepted that the correct approach to interpret any legal

instrument is to give the words in that instrument their ordinary grammatical meaning. In

the matter of Venter v R6 Innes, CJ held that:

'By far the most important rule to guide courts in arriving at that intention is to take the

language of the instrument, or of the relevant portion of the instrument, as a whole; and,

when the words are clear and unambiguous, to place upon them their grammatical

construction and give them their ordinary effect.'

[30] The above pronouncements were approved by the full bench of this court in the

matter of Van As and Another v Prosecutor-General7 Levy, AJ said:

‘It is true that a Court must start with the interpretation of any written document whether

it be a Constitution, a statute, a contract or a will by giving the words therein contained

their ordinary literal meaning. The Court must ascertain the intention of the legislator or

authors of document concerned and there is no reason to believe that the framers of a

Constitution will not use words in their ordinary and literal sense to express that

intention.’

[31] I am of the view that the provisions of section 89(4) are clear and invite no

ambiguity. In my view the review process in terms of section 89(4) is limited to

arbitration proceedings conducted in terms of Part C (that is sections 84 to 90) of the

Labour Act, 2007. Any other decision by the Labour Commissioner may be reviewed in

6 Venter v R 1907 TS 910 at 913.7 2000 NR 271 (HC) at 278.

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terms of section 117(1)(b) of the Labour Act, 20078. I will now proceed to deal with the

aspects which will amount to a defect in the arbitration proceedings.

Misconduct

[32] The meaning of the term ‘misconduct’ in relation to arbitration proceedings was

considered some ninety eight years ago in the matter of Dickenson and Brown v

Fisher's Executors9. In that case the Appellate Division of the Supreme Court of Appeal

of South Africa was concerned with the question whether it could set aside an award

made in terms of the Natal Arbitration Act 24 of 1898. Section 18 of the Natal Act 24 of

1898 provided that, “Where an arbitrator or umpire has misconducted himself or where

an arbitration award has been improperly procured, the Court may set the appointment

or award aside.” Solomon JA who delivered the Court’s judgment said10:

‘Now I do not propose to give any definition of the word ‘misconduct’ for it is a word

which explains itself. And if it is used in its ordinary sense, I fail to see how there can be

any misconduct unless there has been some wrongful or improper conduct on the part of

the person whose behaviour is in question…Now if the word misconduct is to be

construed in its ordinary sense it seem to me impossible to hold that a bona fide mistake

either of law or of fact made by an arbitrator can be characterised as misconduct, any

more than that a judge can be said to have misconducted himself if he gives an

erroneous decision on a point of law…Cases may no doubt arise where…’the mistake is

8 That section provides as follows:

‘117 Jurisdiction of the Labour Court(1) The Labour Court has exclusive jurisdiction to-

(a) …(b) review-

(i) arbitration tribunals' awards in terms of this Act; and(ii) decisions of the Minister, the Permanent Secretary, the Labour

Commissioner or any other body or official in terms of-(aa) this Act; or(bb) any other Act relating to labour or employment for which the

Minister is responsible;

(c) review, despite any other provision of any Act, any decision of anybody or official provided for in terms of any other Act, if the decision concerns a matter within the scope of this Ac.…’

9 1915 AD 166.10 At 175-176.

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so gross or manifest that it could not have been made without some degree of

misconduct or partiality on the part of the arbitrator’…But in ordinary circumstances

where an arbitrator has given fair consideration to the matter which has been submitted

to him for decision, I think it would be impossible to hold that he had been guilty of

misconduct merely because he had made a bona fide mistake either of law or of fact.'

[33] In the case of Hyperchemicals International (Pty) Ltd and Another v Maybaker

Agrichem (Pty) Ltd and Another11 Preiss, J stated that:

‘Mistake, no matter how gross, is not misconduct; at most, gross mistake may provide

evidence of misconduct in the sense that it may be so gross or manifest that it could not

have been made without misconduct on the part of the arbitrator. In such a case a Court

might be justified in drawing an inference of misconduct. The award would then be set

aside, not for mistake, but for misconduct.’

[34] In the case of Total Support Management (Pty) Ltd and Another v Diversified

Health Systems (SA) (Pty) Ltd and Another12 the South African Supreme Court of

Appeal held that:

‘Proof that the second respondent misconducted himself in relation to his duties or

committed a gross irregularity in the conduct of the arbitration is a prerequisite for setting

aside the award. The onus rests upon the appellants in this regard. As appears from the

authorities to which I have referred, the basis on which an award will be set aside on the

grounds of misconduct is a very narrow one. A gross or manifest mistake is not per se

misconduct. At best it provides evidence of misconduct which, taken alone or in

conjunction with other considerations, will ultimately have to be sufficiently compelling to

justify an inference (as the most likely inference) of what has variously been described

as 'wrongful and improper conduct', 'dishonesty' and 'mala fides or partiality' and 'moral

turpitude”. {I have omitted references to authorities}

Gross Irregularity

11 1992 (1) SA 89 (W) at 100.12 2002 (4) SA 661 (SCA).

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[35] The term ‘gross irregularity’ has been discussed in a number of reported cases

(South African) which I find persuasive. In the case of Bester v Easigas (Pty) Ltd and

Another13 Brand, AJ said:

“From these authorities it appears, firstly, that the ground of review envisaged by the use

of this phrase [i.e. gross irregularity] relates to the conduct of the proceedings and not

the result thereof… But an irregularity in proceedings does not mean an incorrect

judgment; it refers not to the result but to the method of a trial, such as, for example,

some high-handed or mistaken action which has prevented the aggrieved party from

having his case fully and fairly determined. Secondly it appears from these authorities

that every irregularity in the proceedings will not constitute a ground for review on the

basis under consideration. In order to justify a review on this basis, the irregularity must

have been of such a serious nature that it resulted in the aggrieved party not having his

case fully and fairly determined. {My Emphasis}

[36] Also see Parker14 who argues that:

‘Gross irregularity will be found to exist where there has been a breach of the rules of

natural justice resulting in the aggrieved party not having had his case heard and fairly

determined.’

[37] In the present matter the facts which are common cause are that the applicant

referred a complaint of constructive dismissal to the Labour Commissioner. The Labour

Commissioner in terms of section 86(4) appointed Mr Ono Angula to arbitrate the

complaint referred to his (the Labour Commissioner’s) office. The arbitration hearing

was scheduled for 07 April 2011. On 06 April 2011 the applicant was informed that the

arbitration hearing schedule for 07 April 2011 will not proceed.

[38] On 07 April 2011 the applicant, her representative and the Arbitrator met at the

offices of the Labour Commissioner. My understanding of reading the affidavits is that

NIMT was not present at the meeting of 07 April 2011. What is now in dispute is what

transpired at the meeting of 07 April 2011. The applicant alleges that the Arbitrator

suggested the date of 28 April 2011 as the date to which the arbitration proceedings 13 1993 (1) SA 30 (C).14 Supra footnote 4 at 199.

19

were to be postponed, but she indicated that her representative would not be available

on that date so it was agreed that she would call the Arbitrator early in May of that year

so that they could arrange for a date on which the a arbitration hearing will be held. Mr

Alfred Angula deposed to a confirmatory affidavit in which he confirms the truth and

correctness of what the applicant stated in her affidavit in support of the Review

Application.

[39] I have indicated above that the Arbitrator did not depose to an affidavit as a result

I do not have his version of what transpired at the hearing of 07 April 2011. I pause

hear to observe that rule 34 of the Rules relating to the conduct of Conciliation and

Arbitration before the Labour Commissioner obliges an arbitrator to keep a record of,

any evidence given in an arbitration hearing, any sworn testimony given in any

proceedings before the arbitrator and any arbitration award or ruling made by the

arbitrator. The record may be kept by legible hand-written notes or by means of an

electronic recording. In this matter the Arbitrator did not lodge the record of the

proceedings of 07 April 2011 with the office of the Registrar as required under Rule 14

(4) (b) of the Labour Court Rules. The record of proceedings would have easily resolved

the dispute as to what was said and what was decided at the hearing of 07 April 2011.

[40] Mr Mueller for NIMT alleges that the parties had agreed that the arbitration

hearing was to be postponed to 28 April 2011 he bases his submission on a letter dated

18 August 2011 addressed by the Arbitrator to the Labour Commissioner which he

annexed to his affidavit (in opposition to the Review Application) as Annexure ‘A’. In that

letter the Arbitrator wrote as follows:

‘RE: G M STRAUSS VS NIMT CAMPUS ARANDIS

The above matter refers.

- The matter is finally dismissed no consideration shall be granted to re hear the

matter as Ms Strauss is not telling the truth.

20

- I have made it clear that the matter is dismissed. The only truth as far as her

statement is concerned is the fact that Ms. Strauss and her Representative have

really confronted me in my office and showed no sign of respect.

- I have decided also not to answer her calls as she is terribly rude, I have explained

same to Ombudsman who called me earlier, the Ombudsman agreed with me that

he has observed similar attitude.’

[41] The difficulty I have with this letter is, first the letter amounts to inadmissible

hearsay evidence, secondly the context in which the letter was addressed by the

Arbitrator to Labour Commissioner is not explained, the Court is left to guess that it may

be an explanation by the Arbitrator to the Labour Commissioner following complaints by

the applicant. Thirdly in the letter the Arbitrator does not state what was agreed at the

meeting of 07 April 2011 nor does he set out in what respects the applicant is not telling

the truth and what the truth is. In these circumstances there is no evidence contradicting

the applicant’s version that what was agreed at the meeting of 07 April 2011 is that she

would call the Arbitrator in early May 2011 to arrange a date on which the arbitration

hearing will be set down. This probably explains why the applicant called the Arbitrator

on 04 May 2011. I therefore find no basis to reject the applicant’s version and I accept it

as the correct version of what was decided at the hearing of 07 April 2011.

[42] What both the Arbitrator and Mr Mueller do not explain is who informed NIMT

that the arbitration hearing was postponed to 28 April 2011 and how was NIMT informed

of the date to which the arbitration hearing was postponed if NIMT was not part of the

hearing of 07 April 2011. Mr Mueller argued that because the applicant and her

applicant were allegedly orally informed that the arbitration hearing was postponed to 28

April 2011 there was no need for the applicant to get a written notice of the date to

which the arbitration hearing was postponed. I have difficulties in accepting that line of

argument. My difficulties stem from the context of Rule 29 of the Rules relating to the

conduct of Conciliation and Arbitration before the Labour Commissioner15. In the context

15 Rule 29 reads as follows:

‘29 Postponement of arbitration hearing

(1) An arbitration hearing may be postponed-

21

of that rule the Arbitrator must also inform the parties in writing as to whether the

application for postponement was granted or not and of the date to which the arbitration

hearing has been postponed.

[43] Even if I am wrong on the interpretation (that the rule requires an arbitrator to, in

writing, inform the parties of the outcome of an application for postponement) that I

place on Rule 29 my finding that the Arbitrator had not postponed the arbitration hearing

to 28 April 2011 makes the argument of Mr Mueller irrelevant. In view of my finding that

the Arbitrator did not postpone the arbitration hearing to 28 April 2011 but to a date to

be arranged in early May 2011 I find that the holding of a Conciliation/ Arbitration

hearing on 28 April 2011 in the absence of the applicant is a gross irregularity resulting

in the applicant not having her case fully and fairly determined as contemplated in

section 89(5)(a)(ii) of the Labour Act, 2007. The decision of the Arbitrator can therefore

not be allowed to stand and I accordingly set it aside. Since the decision of the

Arbitrator forms the foundation on which the decision (of 12 June 2012) of the Labour

Commissioner rests the decision of the Labour Commissioner automatically collapses.

This conclusion disposes finally of this application. It is strictly unnecessary for me to

apply my mind to the question whether the Labour Commissioner acted fairly when he

dismissed the applicant’s re-lodgment of the complaint of constructive dismissal.

(a) by agreement between the parties in terms of subrule (2); or(b) by application and on notice to the other parties in terms of subrule (3).

(2) The arbitrator must postpone an arbitration without the parties appearing if-(a) all the parties to the dispute agree in writing to the postponement; and(b) the written agreement for the postponement is received by the arbitrator more than seven

days prior to the scheduled date of the arbitration.

(3) If the conditions of subrule (2) are not met, any party may apply, in terms of rule 28, to postpone an arbitration by delivering an application to the other parties to the dispute and filing a copy with the arbitrator before the scheduled date of the arbitration.

(4) After considering the written application, the arbitrator may-(a) without convening a hearing, postpone the matter;(b) convene a hearing to determine whether to postpone the matter; or(c) deny the application.’ { My Emphasis}

22

[44] I nevertheless, for guidance in possible subsequent proceedings, have decided

to indicate my views however briefly. From the affidavit (in support of the review

application) of the applicant the allegation is made that the applicant addressed a letter

to the Arbitrator on 15 June 2011 and that she has received no response to that letter at

all not even an acknowledgement of receipt of her letter. She followed up with

telephonic enquiries and even a referral to the Ombudsman and still no response was

given to her.

[45] On 17 August 2011 the applicant addressed another letter to the Labour

Commissioner, from the documents on the record the Labour Commissioner’s office

received that letter on 21 September 2011. In the letter of 17 August the appellant

clearly expresses her disappointment with the way the office of the Labour

Commissioner handled her complaint. The Labour Commissioner enquired from the

Arbitrator and from Ms Dumeni, against whom the complaints were directed, he

received replies from them during August 2011 and September 2011 but he still did not

communicate the replies to the applicant. During June 2012 the applicant re-lodged her

complaint of constructive dismissal with the office of the Labour Commissioner and

simultaneously with that re-lodged complaint she applied for condonation for the late

referral of the dispute. It is only then (this is approximately ten months after the letter of

17 August 2011 was addressed to the Labour Commissioner) that she received a letter

from the Labour Commissioner telling her (of the outcome of her complaint she

addressed to the Labour Commissioner in August 2011) that her complaint was

dismissed on 28 April 2011.

[46] I must state that, if this is the modus oprandi of the office of the Labour

Commissioner than that office frustrates the purpose, rationale and spirit with which the

legislature enacted the Labour Act, 2007. One of the driving reasons behind the

enactment of the Labour Act, 2007 is the expeditious resolution of labour disputes, but

how will disputes be resolved expeditiously if a complainant has to wait for ten months

before a reply to a letter is given and if her telephone calls remain unanswered simply

because an officer in the office of the Labour Commissioner has formed the opinion that

a complainant is rude and disrespectful? The office of the Labour Commissioner has a

23

duty to assist in the expeditious resolution of labour disputes and must live up to that

mandate.

[47] Another disturbing fact is that the Labour Commissioner appears to have arrived

at conclusions without properly and judiciously having considered the applicant’s

complaint. Before I proceed to justify the conclusion I have arrived, I am aware and

conscience of section 86(7)(b) of the Labour Act, 2007 which enjoins an arbitrator to

deal with the substantial merits of the dispute before him or her with the minimum of

legal formalities and rule 18 of the Rules Relating to the Conduct of Conciliation and

Arbitration before the Labour Commissioner which provides peremptorily that the

‘arbitrator must conduct the arbitration in a manner contemplated in section 86(7) of the

Act and may determine the dispute without applying strictly the rules of evidence’.

[48] My view that the Labour Commissioner arrived at conclusions without properly

and judiciously considering the applicant’s complaint is based on the following reasons.

The applicant when she lodged an application for the condonation of the late filling of

the re-lodging of the complaint under oath stated her reasons for the re-lodging of her

complaint. The Labour Commissioner then received information (not under oath and the

truth of which was not tested) from officers (from the Arbitrator and Ms Dumeni) in his

office and based on that information made certain factual findings without giving the

applicant an opportunity to reply to the allegations of the Arbitrator and Ms Dumeni.

[49] I will cite the following as examples of the factual findings made by the Labour

Commissioner:

(a) The finding that the arbitration hearing scheduled for 07 April 2011 was mutually

postponed to 28 April 2011;

(b) The finding that the appellant and her Representative Mr Angula failed to appear

on 28 April 2011 for the arbitration hearing.

(c) The finding that the applicant did not act prudently and with a degree of diligence.

24

[50] The hallmark of arbitration is that it is an adjudicative process. As arbitration is a

form of adjudication the function of an arbitrator and the Labour Commissioner is not

administrative but judicial in nature. The Labour Commissioner must therefore, before

arriving at any conclusion, consider any complaint brought to his attention judiciously.

On what basis could the Labour Commissioner have found that the arbitration hearing

was postponed by mutual agreement when there was not a written application for

postponement and when there was no record of what transpired at the hearing of 07

April 2011? On what basis does the Labour Commissioner accept that the version of Mr

Ono Angula (the Arbitrator) is true and that the version of the applicant is false? On

what basis does the Labour Commissioner come to the conclusion that the applicant did

not act diligently or with prudence if she had to wait for ten months to get an answer

from his office and her telephone calls to the Arbitrator went unanswered?

[51] I am of the view that the Labour Commissioner has failed to appreciate his role

and responsibilities. He is no longer a technocrat and administrative officer who must

protect officers in his office. In my view all the essential elements which go to prove a

gross irregularity were established. The approach taken by the Labour Commissioner is

inconsistent with an adjudicative process and a clear negation of the applicant’s rights

enshrined in Article 12(1) (a) of the Namibian Constitution. Section 86(7) (b) of the

Labour Act, 2007 and rule 18 of the Rules Relating to the Conduct of Conciliation and

Arbitration before the Labour Commissioner do not mean that the Labour Commissioner

must ignore the basic requirements of fairness, such as giving a party an opportunity to

controvert evidence given against it. The role of the Labour Commissioner is to assist in

a fair and impartial manner with the resolution of labour disputes in the most cost

effective and expeditious manner.

[52] As respects costs in the interpretation and application of section 118 of the

Labour Act, 2007, I do not find any good reason to order costs in these proceedings.

[53] For all the reason I have advanced in this judgement, I hold that the applicant

has proven that the conduct of the arbitration hearing on 28 April 2011 was a gross

irregularity. I therefore make the following orders:

25

1 That the applicant’s application for review was made to Court within the period

stipulated in section 89(4) of the Labour Act, 2007 and as a result there is no

need for her to apply for condonation for the late serving of the notice of motion

and its annexure on the respondents.

2 It is declared that the conduct of Arbitration/Conciliation hearing on 28 April 2011

in the absence of the applicant is a gross irregularity as contemplated in section

89(5) (a) (ii) of the Labour Act, 2007.

3 The decision of the Arbitrator, to dismiss the applicant’s complaint in terms of

Section 83(2) (a) of the Labour Act, 2007 is accordingly set aside.

4 The matter is referred back to the Office of the Labour Commissioner, who must

appoint another Arbitrator to conciliate/arbitrate the applicant’s complaint de

novo.

5 The Labour Commissioner must, in terms of section 86(4) of the Labour Act,

2007 read with Regulation 20(2) of the Labour General Regulations, notify the

parties not later than fourteen days from the date of this judgment where and

when the applicant’s complaint will be conciliated /arbitrated.

---------------------------------SFI Ueitele

Judge

26

APPEARANCES

APPLICANT: C J VAN ZYL

Instructed by GF Kӧpplinger Legal

Practitioners

FIRST RESPONDENT: C J MOUTON

Instructed by Mueller Legal Practitioners

SECOND RESPONDENT No Appearance

THIRD RESPONDENT No Appearance