2022

UNREPORTED
HIGH COURT
LABOUR
JUDGMENTS

THIS INDEX CONTAINS BOTH REPORTABLE

AND NON-REPORTABLE LABOUR JUDGMENTS
OF THE HIGH COURT, 2022

Compiled By: Mrs. Susan L.M.K Kaapehi

Chief Legal Officer: Judicial Support Services
Directorate: Supreme & High
Contents
Labour Law.................................................................................................................2

CASE SUMMARIES...................................................................................................14

Abreu v Namibia Power Corporation (Pty) Ltd (HC-MD-LAB-APP-AAA-2021/00065)

[2022] NALCMD 10 (10 March 2022)......................................................................14

Agra Limited v Ores (HC-MD-LAB-APP-AAA-2021/00078) [2022] NALCMD 35 (23

June 2022).............................................................................................................14

Bateleur Helicopters CC v Heimstadt JNR (HC-MD-LAB-MOT-GEN-2022/00092)

[2022] NALCMD 36 (16 June 2022)........................................................................15

Beukes v Khrohne (HC-MD-LAB-MOT-REV-2020/00068) [2022] NALCMD 1 (20

January 2022).......................................................................................................16

Conrad v Auto Repairs Etzold CC (HC-MD-LAB-MOT-GEN-2020/00319) [2022]

NALCMD 25 (26 April 2022)...................................................................................18

Festus v Bank Windhoek Ltd (HC-MD-LAB-APP-AAA-2020/00064 [2022] NALCMD 7

(28 February 2022)................................................................................................20

Harases v Erongo Regional Electricity Distributors Company (PTY) Ltd (HC-MD-LAB-

MOT-GEN-2021/00221) [2022] NALCMD 20 (19 April 2022)..................................21

Lady Pohamba Private Hospital (Pty) Ltd v Shovaleka (HC-MD-LAB-APP-AAA-

2021/00053) [2022] NALCMD 42 (28 July 2022)....................................................22

Letshego Bank Namibia Limited v Mwandingi (HC-MD-LAB-MOT-REV-2019/00173)

[2022] NALCMD 5 (15 February 2022)....................................................................23

Lewis v Draghoender (HC-MD-LAB-APP-AAA-2021/00042 (INT-HC-EXTTIME-

2021/00370)) [2022] NALCMD 41 (22 July 2022)...................................................23

Matongela v First National Bank (HC-MD-LAB-APP-AAA-2021/00070) [2021]

NALCMD 14 (23 March 2022).................................................................................25

Mineworkers Union of Namibia v Namdeb Diamond Corporation (Pty) Ltd (HC-MD-

LAB-MOT-GEN-2020/00227) [2022] NALCMD 33 (8 June 2022)............................26

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 Minister of Education, Arts and Culture v The Labour Commissioner (HC-MD-LAB-
APP-AAA-2021/00029) [2022] NALCMD 17 (8 April 2022)......................................29

Moir v Dundee Precious Metals Tsumeb (Pty) Ltd (HC-MD-LAB-APP-AAA-2021/00023)

[2022] NALCMD 19 (13 April 2022)........................................................................30

Namdeb Diamond Corporation (Pty) Ltd v Sheyanena (LCA 3/2016) [2022] NALCMD 8
(3 March 2022).......................................................................................................31

Namibia Protection Services (Pty) Ltd v Hainghumbi (HC-MD-LAB-APP-AAA-

2021/00046) [2022] NALCMD 15 (23 March 2022).................................................33

Nghixuangendele v Basil Read Mining (Pty) Ltd (HC-MD-LAB-APP-AAA-2020/00038)

[2022] NALCMD 11 (11 March 2022)......................................................................34

Rheeder v CIC Holdings (Pty) Ltd (HC-MD-LAB-APP-AAA 2021/00006) [2022]

NALCMD 40 (21 July 2022)....................................................................................35

Shoprite Namibia (Pty) Ltd v Ngarizemo (HC-MD-LAB-APP-AAA- 2019/00076) [2022]

NALCMD 31 (4 March 2022)...................................................................................36

The National Disability Council of Namibia v Shikolalye (HC-MD-LAB-APP-AAA-

2020/00047) [2021] NALCMD 30 (16 June 2021)...................................................37

Yikoghahoha v Cape Orchard Company Namibia (Pty) Ltd (HC-MD-LAB-APP-AAA-

2020/00022 (INT-HC-LEA-2022/00074) [2022] NALCMD 26 (25 April 2022).........37

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Labour Law

Labour Law – Application for Review of an award by arbitrator in terms of

s 89(4) and (5) of the Labour Act, 2007 – requisites for review are defect in
the award or the proceedings and where the award was improperly obtained –
Rules of Court – rule 4(1) - legal representation – whether a person who is not
admitted as a legal practitioner may represent a party before the Labour Court
– Civil Procedure – the Plascon-Evans rule and its application – Constitutional
law – the rule of law and unacceptable abuse of arbiters by litigants or their
legal representatives – Law of Costs – s. 134 of the Labour Act - whether a
party may claim costs against an arbitrator. Beukes v Khrohne (HC-MD-LAB-
MOT-REV-2020/00068) [2022] NALCMD 1 (20 January 2022).

Legislation – Labour Act, 2007 – 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 – Respondent dismissed after disciplinary hearing – Arbitrator
disagrees with the Chairperson of the disciplinary hearing orders reinstatement
of the respondent and back pay – In appeal – the appeal upheld. Letshego Bank
of Namibia v Bahm (HC-MD-LAB-APP-AAA-2021/00011) [2022] NALCMD 2 (10
February 2022)

Labour Law – Dismissal - Employer/employee relationship - Dishonest

conduct - Employer should feel confident it can trust an employee not to be in
any way dishonest - Employee's dishonesty destroys or substantially
diminishes confidence in the employer/employee relationship and has the
effect of rendering the continuation of such relationship intolerable - Trust is
the core of employment relationship - Dishonest conduct is breach of such
trust - Such breach will justify dismissal. Letshego Bank of Namibia v Bahm
(HC-MD-LAB-APP-AAA-2021/00011) [2022] NALCMD 2 (10 February 2022)

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Labour law – Dismissal - Substantive and valid reason must exist for
dismissal. Dismissal – once a substantive and valid reason exist for a dismissal
– court will not order reinstatement where an employee has clearly committed
an act of misconduct. Letshego Bank of Namibia v Bahm (HC-MD-LAB-APP-
AAA-2021/00011) [2022] NALCMD 2 (10 February 2022).

Labour law – Power of Attorney in appeals – Appeal against an arbitrator's

award by a Village Council – question raised whether or not the Government
Attorney was required to file a power of attorney in appeals – held with
reference to the Supreme Court decision of Minister of Health and Social
Services and Others v Medical Association of Namibia Ltd and Another that the
Government Attorney’s exemption from filing a power of attorney in appeals on
behalf of the government extends also to appeals initiated on behalf of regional
and local government institutions. Bukalo Village Council v The Labour
Commissioner (HC-MD-LAB-APP-AAA-2021/00075) [2022] NALCMD 3 (28
January 2022).

Labour Court – Jurisdiction – Appeals – courts generally will be hesitant to

intervene, especially at an early stage of proceedings still pending in a lower
court, having regard to the effect of such procedure in the court below and to
the fact that redress and remedies by means of review or appeal would
ordinarily be available. Although generally superior courts have the power to
intervene in cases pending in a lower court where a grave injustice may
otherwise result or where justice might not by other means be obtained. In
casu these requirements were not met and the court therefore declined to
exercise its appeal jurisdiction and referred the matter back to be completed
before the arbitrator. Bukalo Village Council v The Labour Commissioner (HC-
MD-LAB-APP-AAA-2021/00075) [2022] NALCMD 4 (28 January 2022).

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Labour Court – Interpretation of Statutes – Sections 82(10) and 82(15) of
the Labour Act, 11 of 2007 (the ‘Act’) – Labour Commissioner’s designation
of a conciliator after thirty (30) days stipulated by s 82(10) had lapsed did not
result in nullifying all acts performed pursuant thereto – Doctrine of ultra vires
– Conciliator acted ultra vires his statutory power when he dismissed the
applicants referral of dispute of interest – Labour Court power – Court has the
power in terms of s 117(2)(a) to refer the dispute to the Labour Commissioner
to appoint a different conciliator – Application for review granted. Letshego
Bank Namibia Limited v Mwandingi (HC-MD-LAB-MOT-REV-2019/00173)
[2022] NALCMD 5 (15 February 2022)

Labour Law – Appeal in terms of s 89 of the Labour Act – whether dismissal

was substantively fair – whether appellant proved by admissible evidence that
the respondent had committed the disciplinary offences of which he had been
charged with – reinstatement – circumstances in which reinstatement should
be ordered. Namdeb Diamond Corporation (Pty) Ltd v Sheyanena (LCA 3/2016)
[2022] NALCMD 8 (3 March 2022).

Labour Law – Section 86(2)(b) of the Labour Act, 11 of 2007 – Dispute to be

referred to the Labour Commissioner within one year of having arisen –
Internal remedies available to the employees must be exhausted before dispute
is referred to the Office of the Labour Commissioner – An arbitrator had no
jurisdiction to hear the dispute until and unless internal remedies have been
exhausted. The National Disability Council of Namibia v Shikolalye (HC-MD-
LAB-APP-AAA-2020/00047) [2021] NALCMD 30 (16 June 2021)

Labour Law - Labour Appeal – s 86(2)(a) of the Labour Act (No. 11 of 2007)
– Applicability of rule 132 of the High Court Rules. Rheeder v CIC Holdings (Pty)
Ltd (HC-MD-LAB-APP-AAA 2021/00006) [2022] NALCMD 40 (21 July 2022).

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Labour Appeal And Cross Appeal—Arbitrator’s award-both parties appealing
to set aside the arbitration award on different grounds— the court found that
the arbitrator did not misdirect herself at arriving to her conclusion and that
the arbitration award stands—No order as to costs. Abreu v Namibia Power
Corporation (Pty) Ltd (HC-MD-LAB-APP-AAA-2021/00065) [2022] NALCMD 10
(10 March 2022)

Labour Law – jurisdiction of court where there is non-compliance with s

89 of the Labour Act – Practice – the importance of filing a notice of motion
and consequences of not doing so – service of process in labour matters - what
constitutes a notice of appeal according to s89, read with, the rules of Court
and the arbitration and conciliation rules? Festus v Bank Windhoek Ltd (HC-
MD-LAB-APP-AAA-2020/00064 [2022] NALCMD 7 (28 February 2022).

Labour Appeal – Labour Act 11 of 2007 – Appeal against the award issued
by the arbitrator - Questions of Law - Section 89 – the case law on grounds
of appeal restated - Court’s interference with an arbitrator’s decision - Appeal
dismissed. Nghixuangendele v Basil Read Mining (Pty) Ltd (HC-MD-LAB-APP-
AAA-2020/00038) [2022] NALCMD 11 (11 March 2022).

Labour Appeal – Labour Act 11 of 2007 – Appeal against the award issued
by the arbitrator – Appeal upheld. Lewis Stores Namibia (Pty) Ltd t/a Best
Home & Electric v Carolla Kavendjii (HC-MD-LAB-APP-AAA-2021/00073) [2022]
NALCMD 12 (16 March 2022).

Labour Appeal – Labour Act 11 of 2007 – Appeal against the award issued
by the arbitrator – Appeal dismissed. Titus v National Housing Enterprise
(NHE) (HC-MD-LAB-APP-AAA-2021/00045) [2022] NALCMD 28 (10 May 2022).

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Labour Appeal – Arbitration Award – Unfair Dismissal – Strike – Delivery of
arbitration award after the lapse of 30 days – Sections 1, 86(18), 89 and 33 of
the Labour Act 11 of 2007. Shoprite Namibia (Pty) Ltd v Ngarizemo (HC-MD-
LAB-APP-AAA 2019/00076) [2022] NALCMD 31 (4 March 2022).

Labour Review – Labour Act 11 of 2007 – Review succeeds. Telecom Namibia

Limited v Namibia Public Workers Union (HC-MD-LAB-MOT-REV-2021/00150)
[2021] NALCMD 13 (16 March 2022).

Labour Law – Stay of Arbitral award pending finalization of appeal against

award – Application inherently urgent – Irreparable harm to applicant
outweigh prejudice to first respondent – Application granted. Bateleur
Helicopters CC v Heimstadt JNR (HC-MD-LAB-MOT-GEN-2022/00092) [2022]
NALCMD 36 (16 June 2022).

Civil Practice – Motion Proceedings – Authorisation to institute or

prosecute proceedings on behalf of a legal persona – Where the issue of
authority is raised in the answering affidavit and it is not alleged in the
founding affidavit, applicant has the opportunity to cure the defect in reply –
The court is at large to enquire into the issue of authority to bring proceedings
to satisfy itself that the legal persona does not, for want of authority, escape an
adverse costs order. Namibia Protection Services (Pty) Ltd v Hainghumbi (HC-
MD-LAB-APP-AAA-2021/00046) [2022] NALCMD 15 (23 March 2022).

Labour Law – appeal in terms of s 82(2) read with the provisions rule 7(1)
of Rules relating to the Conduct Of Conciliation and Arbitration (‘Con-Arb
rules) – prescription of because of dispute being lodged after the 6 month
period prescribed in the Act – imperative to serve dispute before referral
documents on party affected before lodging same with the Office of the Labour

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Commissioner. Matongela v First National Bank (HC-MD-LAB-APP-AAA-
2021/00070) [2021] NALCMD 14 (23 March 2022).

Labour Law- Section 86(2)(b) of the Labour Act 11 of 2007 — A dispute,

other than one concerning a dismissal, to be referred to the Labour
Commissioner within one year of dispute having arisen — On the facts the
third respondent’s dispute regarding his overtime payment arose on 25 October
2017 – Third respondent referred his dispute to the Labour Commissioner two
years and seven months after the dispute arose — Arbitrator dismissed
appellant’s point in limine that the respondent’s dispute had prescribed —
Arbitrator misdirected himself in finding that the dispute had not prescribed —
Appeal upheld. Minister of Education, Arts and Culture v The Labour
Commissioner (HC-MD-LAB-APP-AAA-2021/00029) [2022] NALCMD 17 (8 April
2022)

Labour Appeal – Labour Act 11 of 2007 – Appeal against the award issued by
the arbitrator – arbitrator to determine on the evidence presented whether
there was a dismissal and whether the dismissal was unfair- no termination of
appellants employment - only the issue of his work visa of the appellant that
needed to be resolved - arbitrator thoroughly analysed the evidence- in
conclusion appellant was not dismissed - appellant’s appeal is dismissed. Moir
v Dundee Precious Metals Tsumeb (Pty) Ltd (HC-MD-LAB-APP-AAA-2021/00023)
[2022] NALCMD 19 (13 April 2022).

Labour Law- Practice – Applications and motions – Urgent applications –

Urgent applications should always be brought as far as practicable in terms of
the Rules. The procedures contemplated in the Rules are designed, amongst
others, to bring about procedural fairness in the ventilation and ultimate
resolution of disputes. Iipinge v Namibia Wildlife Resorts Ltd (HC-MD-LAB-
MOT-GEN-2022/00016) [2022] NALCMD 21 (8 February 2022)

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Practice – Applications and motions - Urgent applications – Whilst Rule
73(3) allows a deviation from the prescribed procedures in urgent applications,
the requirement that the deviated procedure should be 'as far as practicable' in
accordance with the Rules constitutes a continuous demand on the Court,
parties and practitioners to give effect to the objective of procedural fairness
when determining the procedure to be followed in such instances. Iipinge v
Namibia Wildlife Resorts Ltd (HC-MD-LAB-MOT-GEN-2022/00016) [2022]
NALCMD 21 (8 February 2022).

Labour Law – Labour Appeal – Appeal against arbitrator’s award – Dismissal

substantively and procedurally unfair – Arbitrator’s approach to compensation
flawed – No evidence before her to make a proper decision on compensation.
Agra Limited v Ores (HC-MD-LAB-APP-AAA-2021/00078) [2022] NALCMD 35
(23 June 2022).

Labour Law - Rules of the Labour Court - for the court to consider the merits
of an application for the reinstatement of an appeal, the court must first
determine and grant condonation, where such appeal lapsed. An application to
reinstate an appeal is not singular in its nature, where not prefaced by an
application for condonation for the non-compliance with an order of court or
the rules of court, and as such, only once condonation is granted, can
reinstatement follow. Lewis v Draghoender (HC-MD-LAB-APP-AAA-2021/00042
(INT-HC-EXTTIME-2021/00370)) [2022] NALCMD 41 (22 July 2022).

Practice – Applications and motions – Urgent applications – the benefits of

procedural fairness in urgent applications are not only for an applicant to
enjoy, but should also extend and be afforded to a respondent. Unless it would
defeat the object of the application or, due to the degree of urgency or other
exigencies of the case, it is impractical or unreasonable, an applicant should

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afford a respondent, within reason, time to oppose the application. It is
required of any applicant to act fairly and not to delay the application or to
snatch a procedural advantage over his or her adversary. Iipinge v Namibia
Wildlife Resorts Ltd (HC-MD-LAB-MOT-GEN-2022/00016) [2022] NALCMD 21
(8 February 2022)

Labour Law – Appeal against an arbitration award – Reinstatement –

Compensation. Lady Pohamba Private Hospital (Pty) Ltd v Shovaleka (HC-MD-
LAB-APP-AAA-2021/00053) [2022] NALCMD 42 (28 July 2022).

Practice – Applications and motions – Urgent applications – In an urgent

application – and where an applicant asks for condonation for not having
complied with the forms, service and time periods set by the rules – and where
in terms of the set/selected procedures and timelines that are to be followed in
urgent applications, those timelines can be truncated – it is the particular
manner in which these forms and timelines have been abridged – which require
the court’s consideration for purposes of determining whether this particular
aspect has been regulated in an appropriate and fair manner and thus
should/can be condoned or not. Iipinge v Namibia Wildlife Resorts Ltd (HC-
MD-LAB-MOT-GEN-2022/00016) [2022] NALCMD 21 (8 February 2022)

Costs – Labour matters – Section 118 of Labour Act 11 of 2007 – Propriety

of issuing costs order in labour matter – Meaning of ‘frivolous and vexatious
conduct’ – legislative meaning – section 118 of the Labour Act was also enacted
to allow the courts to award costs orders in labour matters, in order to cure an
injustice occasioned to a party on the receiving end of ‘frivolous or vexatious’
proceedings and the provisions of section 118 were enacted precisely to cure
such mischief by also bringing irregular cases within the ambit of the
exceptions created by Section 118 of the Labour Act, which ambit also included

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cases which constituted an abuse and which had put the other side to
unnecessary trouble and expense, which costs the other side ought not to bear.
As the proceedings which had been brought – where highly irregular and
constituted an abuse of process and were totally unwarranted in the
circumstances of the case this placed the case within the ambit of the
exceptions encapsulated by section 118. It was also a case that had put the
respondent to unnecessary trouble and expense which the respondent should
not have to bear. A costs order was accordingly granted. Iipinge v Namibia
Wildlife Resorts Ltd (HC-MD-LAB-MOT-GEN-2022/00016) [2022] NALCMD 21
(8 February 2022).

Labour Law- Leave to Appeal- Granted- Rosh Pinah Zinc Corporation (Pty) Ltd
v Muzaza. (HC-MD-LAB-APP-AAA-2020/00051) [2022] NALCMD 27 (26 April
2022).

Labour Law- Leave to Appeal- Refused- Letshego Bank Namibia Ltd v Bahm
(HC-MD-LAB-APP-AAA-2021/00011)(INT-HC-LEA-2022/00069) [2022]
NALCMD 32 (27 May 2022); Harases v Erongo Regional Electricity Distributors
Company (Pty) Ltd (HC-MD-LAB-MOT-GEN-2020/00221) [2022] NALCMD 38 (6
July 2022).

Labour law – Leave to appeal to Supreme Court - Not provided for in the
Labour Court Rules - Rule 66 (1) (c) opposition raised - late noting of appeal –
no condonation sought for late noting of appeal – application delayed for more
than a year - procedure and time limits for the hearing of the application - Rule
115(2) to be read with Rule 115(5) and Practice Directive 36(2) – filing of
documents on e-justice – Rule 136 applicability to be read with Rule 2 –
Application for leave to appeal struck from the roll. Yikoghahoha v Cape
Orchard Company Namibia (Pty) Ltd (HC-MD-LAB-APP-AAA-2020/00022 (INT-
HC-LEA-2022/00074) [2022] NALCMD 26 (25 April 2022).

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Labour Law- application to declare that the proceedings of the
disciplinary hearing constituted a nullity. Conrad v Auto Repairs Etzold CC
(HC-MD-LAB-APP-AAA-2020/00071) [2022] NALCMD 24 (22 April 2022).

Labour Law- Fair trial – Principles applicable to recusal revisited –

Application based on perceived bias emanating from alleged conflict of interest,
withholding facts and perceived bias on the part of the chairperson of the
disciplinary hearing – Failure to recuse resulting in violation of Article 12(1)(a)
of the Constitution and resulting in the proceedings of the disciplinary hearing
constituting a nullity. Conrad v Auto Repairs Etzold CC (HC-MD-LAB-MOT-
GEN-2020/00319) [2022] NALCMD 25 (26 April 2022).

Labour Law- Application for Condonation and reinstatement of Appeal-

Rule 132 (10) read with 132 (11) – Final in its effect – court functus officio –
matter may not be re-enrolled or re-instated – Appeal to be instituted afresh.
Harases v Erongo Regional Electricity Distributors Company (PTY) Ltd (HC-MD-
LAB-MOT-GEN-2021/00221) [2022] NALCMD 20 (19 April 2022).

Labour Law- Application for Condonation- For the late filing of the notice of
appeal. Appeal dismissed. Aukongo v Shipushu (HC-NLD-LAB-APP-AAA-
2021/00007) [2022] NALCNLD 1 (12 July 2022)

Labour Law- Prescription – Extinctive prescription – Interruption of – By

service of counter-application – Act 68 of 1969 section 15(1) – Lapsing of
such interruption in terms of section 15(2) – Failure by the applicant to
'successfully prosecute its claim under the process in question to a final
executable judgment’. Mineworkers Union of Namibia v Namdeb Diamond

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Corporation (Pty) Ltd (HC-MD-LAB-MOT-GEN-2020/00227) [2022] NALCMD 33
(8 June 2022)

Labour law – Arbitration proceedings – Settlement Agreement/Award –

Prescription – Whether Prescription Act applying to a claim sounding in money
based on a settlement agreement made consequentially to a referral of a
dispute under the Labour Act 2007. Mineworkers Union of Namibia v Namdeb
Diamond Corporation (Pty) Ltd (HC-MD-LAB-MOT-GEN-2020/00227) [2022]
NALCMD 33 (8 June 2022)

Prescription – Extinctive prescription – Debt – What constitutes – Whether

a claim sounding in money founded on the terms of a settlement agreement
made consequent to a referral of a dispute in terms of the Labour Act 2007
constituting 'debt' for purposes of Prescription Act – Meaning of 'debt' –
Prescription Act 68 of 1969. Mineworkers Union of Namibia v Namdeb Diamond
Corporation (Pty) Ltd (HC-MD-LAB-MOT-GEN-2020/00227) [2022] NALCMD 33
(8 June 2022)

Labour Law- Review Proceedings- Application to include cellphone

transcription to form part of the record- Amukena v Nampower (HC-MD-
LAB-MOT-REV-2021/00092) [2022] NALCMD 39 (11 July 2022).

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CASE SUMMARIES

Abreu v Namibia Power Corporation (Pty) Ltd (HC-MD-LAB-APP-AAA-

2021/00065) [2022] NALCMD 10 (10 March 2022)

Summary: The appellant was dismissed after a disciplinary hearing and the
Arbitrator held the dismissal substantively fair but procedurally unfair and
awarded the appellant N$ 65, 313.00, being three months’ salary calculated on
his monthly salary.

The appeal court was not satisfied that either party in the main appeal or cross
appeal made out a case to satisfy this court that the arbitrator misdirected
herself in granting the labour appeal.

The court subsequently upheld the award dated 29 July 2021 and the appeal
and cross appeal are consequently dismissed.

Agra Limited v Ores (HC-MD-LAB-APP-AAA-2021/00078) [2022] NALCMD

35 (23 June 2022)

Summary: The first respondent was employed by the appellant for six years
and was a cashier for four years. The appellant allows employees to use a staff
account on which they can purchase goods sold by the appellant on credit.
This account may not be used to ‘cash in’ by having a member of the public, for
example, purchase goods on this account and give the cash to the particular
employee. On 26 March 2020, first respondent requested a customer, who
shopped at appellant, to have his goods bought on first respondent’s account.

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It was done and the customer paid the first respondent the equivalent amount
of the goods in cash. First respondent was subsequently charged with
dishonesty, found guilty and dismissed on 31 July 2020 after a disciplinary
hearing. The matter was subsequently referrred to the Office of the Labour
Commissioner and the arbitrator held that the dismissal was substantively and
procedurally unfair and awarded the first respondent N$81 156, being twelve
months’ salary, as compensation.

Held that applying the applicable principles, the court cannot find fault with
the arbitrator’s approach in respect of the substantive and procedural
unfairness of the first respondent’s dismissal in this matter.

Held that the arbitrator’s approach to compensation is flawed. She had no

evidence before her to make a proper decision on compensation for the first
respondent. For example, it is not known whether the respondent had in the
meantime attained employment. Compensation in a labour matter should not
be equated with civil or delictual damages. There are a number of facts that the
arbitrator should take into account, such as, did the first respondent obtain
employment in the meantime - and when?

Bateleur Helicopters CC v Heimstadt JNR (HC-MD-LAB-MOT-GEN-

2022/00092) [2022] NALCMD 36 (16 June 2022)

Summary: The applicant seeks an order staying the execution of arbitration

award pending finalization of an appeal against the award. The first respondent
was employed by the applicant. He alleged that he was unfairly dismissed by
the applicant. He referred a complaint of unfair dismissal to the office of labour
commissioner. The arbitrator found in favour of the first respondent and
ordered the applicant to pay the first respondent an amount of N$962, 322. 21
in damages. The applicant launched an appeal against the award. The first

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respondent wants to execute the award, hence this urgent application by the
applicant to interdict and stay the execution of the award.

Held that, application of such nature is inherently urgent provided the

execution is reasonably imminent and applicant is not guilty of any blameable
conduct in not bringing the application timeously.

Held that, the grounds of appeal are against findings of law and therefore
applicant has a right to appeal.

Held that, Court may refuse application to stay execution of award, pending
finalization of appeal, if satisfied appeal is frivolous or vexatious or appeal is
not bona fide.

Held further that, where court is satisfied appeal launched with bona fide
intention, court must examine potentiality of irreparable harm to applicant and
first respondent, respectively, and find where the balance lies.

Held further that, first respondent has found alternative employment and
proposed that the award must be paid in the trust account of his attorneys
trust account and that shows that he will not suffer irreparable harm, if the
implementation of the award is suspended pending finalisation of the appeal.

Held that, the application succeeds.

Beukes v Khrohne (HC-MD-LAB-MOT-REV-2020/00068) [2022] NALCMD 1

(20 January 2022).

Summary: In this application, the applicants sought an order reviewing and

setting aside an arbitral award issued by the arbitrator against them. The

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applicants claimed that during the arbitration proceedings, they were ejected
from the proceedings by the arbitrator and thus alleged impropriety on her
part. The 2nd respondent denied these allegations and stated on oath that the
applicants walked out from the proceedings despite a warning by the arbitrator
on the consequences thereof. The arbitrator issued a costs order against the 1 st
applicant and he sought to have that order set aside as well.

Held: that on the basis of the Plascon-Evans rule and the fact that the denial of
the applicant’s version that they were ejected from the proceedings was not
engaged by the applicant’s, the dispute is determined in the 2 nd respondent’s
favour, namely, that the applicants walked out of the proceedings and were not
ejected by the arbitrator.

Held that: in view of the finding that the applicants walked out of the
proceedings in protest, there was no defect in the proceedings, within the
meaning of s 89 (5), nor was it shown that the award was obtained improperly.

Held further that: in terms of rule 4(1) of the Labour Court Rules, persons who
are not admitted legal practitioners in terms of the Legal Practitioners’ Act,
1995, may not represent parties before the Labour Court.

Held: that persons who are arbiters must not be abused by litigants and those
who appear for the litigants. If a party is dissatisfied with a decision or
procedure followed, the law has provided remedies to be pursued. The abuse of
arbiters does not auger well with the concept of the rule of law and the
independence of the judiciary.

Held that: it is ordinarily improper to grant a costs order against an arbitrator

in the light of the provisions of s 134 of the Act and that in any event, if
allowed, this may cause arbitrators to preside over matters with trembling

17 | P a g e
hands fearing that they will be mulcted in costs should they err and this is
inconsistent with the independence of the Judiciary.

Held further that: costs in labour matters are not lightly granted unless there is
frivolous or vexatious conduct of a party in initiating, defending or pursuing
legal proceedings.

Held: that in terms of s 86(16) of the Act, an arbitrator has power, in addition
to issuing a costs order for frivolous or vexatious conduct in the institution,
defence or pursuit of legal proceedings, to issue a costs order against a party
who acts in a vexatious or frivolous manner during the proceedings.

The application was dismissed with costs, the court finding that the institution
of the proceedings amounted to frivolous and vexatious conduct as the
applicants are the ones who walked out of the arbitration proceedings, leaving
the arbitrator faced with a fait accompli.

Conrad v Auto Repairs Etzold CC (HC-MD-LAB-MOT-GEN-2020/00319)

[2022] NALCMD 25 (26 April 2022)

Summary: The applicant was employed by the respondent as its workshop

manager. The applicant was subjected to a disciplinary hearing on two charges,
namely: (1) dereliction of duty and (2) failure to comply with a fiduciary duty.
He was found guilty as charged and was dismissed.

At the disciplinary hearing, the applicant noticed that the chairperson was Mr
Robin Raines (Mr Raines). The applicant was aware that for about 10 years Mr
Raines was closely connected to a labour consultancy named Labour Dynamics
and that his employer (the respondent) was a client of Labour Dynamics. A
lady from Labour Dynamics was present at the respondent’s place of work

18 | P a g e
when the applicant was issued with a notice to appear at a disciplinary
hearing, which notice included the charges preferred against the applicant.

Concerned by the relationship between Mr Raines, Labour Dynamics and the

respondent, the applicant questioned Mr Raines whether he was still connected
to Labour Dynamics. Mr Raines denied such a connection and continued to
chair the disciplinary hearing. At the end of the hearing, Mr Raines found the
applicant guilty and recommended his dismissal from employment. The
applicant was consequently dismissed.

The applicant, thereafter, referred a dispute of unfair dismissal to the Office of

the Labour Commissioner. At arbitration, the respondent was represented by
Mr Simon Raines, the son of Mr Raines. At the conclusion of the arbitration, an
award was delivered and the applicant’s claim was dismissed. Dissatisfied with
the outcome, the applicant appealed against the award and simultaneously
filed this application where he seeks an order to declare the disciplinary
proceedings a nullity for being chaired by Mr Raines. This is the said
application.

Held that: Article 12(1)(a) of the Constitution provides for a fair and public
hearing by an independent, impartial and competent Court or Tribunal to all
persons in the determination of their rights and obligations. This requires the
chairperson to reveal to the parties, information within his knowledge which
may have an effect on any of the parties’ perception of bias concerning him or
her and to carry out a self-introspection in order to determine whether or not
based on such facts he or she should recuse himself or herself from the matter
mero motu.

19 | P a g e
Held further that: Mr Raines concealed his association with Labour Dynamics
as he was aware that it would give rise to a clear and reasonable perception of
bias on his part in the mind of the applicant.

Held further that: the failure to afford a party a fair trial does not only affect the
heart of the right to a fair trial, but it violates Article 12 of the Constitution,
denies such party natural justice and is so grave that it goes beyond a mere
irregularity. Denial of the right to a fair trial, particularly where the presiding
officer cannot be reasonably expected to be impartial and not biased, is so
fundamental that its violation not only prejudices the affected party but
hampers the rule of law and the guarantee of justice for all.

Held further that: the remedy of declaring proceedings as a nullity, goes to the
principles of natural justice and the Constitution. Constitutional
exceptionalism, where the claim is based on the violation of the provision of the
Constitution, cannot stand. As a result, disciplinary proceedings chaired by Mr
Raines where he was clearly conflicted constitute a nullity.

Festus v Bank Windhoek Ltd (HC-MD-LAB-APP-AAA-2020/00064 [2022]

NALCMD 7 (28 February 2022).

Summary: The appellant was dismissed by the respondent, Bank Windhoek

Ltd. He however failed to file a notice of appeal within the prescribed time
period. He therefor applied for condonation for the late filing of same. The
respondent took issue and argued that the court does not have jurisdiction to
hear and determine the application for condonation for the reason that the
appellant in any event failed to file a rule-compliant notice of appeal.

Held: that although the appellant did not fully comply with the service required
by the rules, it was, however apparent that the respondents did become aware

20 | P a g e
of the application and in the light of the result reached, the issue of service
would not play a decisive role in the determination of the matter.

Held that: the requirement for an applicant to file a notice of motion is not an
idle, inconsequential or pedantic requirement designed to irritate an applicant.
It serves the purpose of delineating the nature, scope and character of the relief
sought from the court.

Held further that: a respondent, who wishes to raise a point of law, such as the
lack of jurisdiction, must state the basis or bases of the contention in the
notice to raise points of law. It is improper and unfair to the applicant and the
court for the particulars of the contention of lack of jurisdiction to appear for
the first time in heads of argument.

Held: that a party is entitled, in terms rule 6(9)(b)(ii) of the court’s rules, to file
a notice to raise points of law. In that event, the failure to file an answering
affidavit is not fatal to the proceedings, neither is it necessary.

Held that: that the failure by an appellant to file a rule-compliant notice of

appeal means that there is no proper notice of appeal before court to speak of.
In the instant case, because there was not rule-compliant notice of appeal, the
court did not have the jurisdiction to entertain the application for condonation
filed by the appellant.

The point of law of absence of jurisdiction was thus upheld, with no order as to
costs.

Harases v Erongo Regional Electricity Distributors Company (PTY) Ltd

(HC-MD-LAB-MOT-GEN-2021/00221) [2022] NALCMD 20 (19 April 2022)

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Summary: The applicant herein applied for condonation for non-compliance
with the Labour Court Rules and that matter be re-enrolled and re-instated.
The applicant also requested the matter to be remitted to the Labour
Commission to start de novo and to set aside the award of the arbitrator. The
appeal was not prosecuted within the 90 days as required and thus the appeal
was deemed to have lapsed. A period of six months lapsed and the matter was
enrolled for a hearing in terms of rule 132. The applicant was called upon to
show cause to the satisfaction of the managing judge why there has been no
activity in this case for six months and why the case must not be struck from
the roll, not to be enrolled again. The applicant failed to show cause to the
satisfaction of the managing judge and the matter was struck from the roll and
it was considered as having lapsed.

Held that; the order to have the matter struck in terms of rule 132 (10) read
with rule 132 (11) is final in its effect and the court is functus officio. The
matter may not be re-enrolled or re-instated.

Iipinge v Namibia Wildlife Resorts Ltd (HC-MD-LAB-MOT-GEN-

2022/00016) [2022] NALCMD 21 (8 February 2022)

In an urgent application – and where an applicant asks for condonation for not
having complied with the forms, service and time periods set by the rules – and
where in terms of the set/selected procedures and timelines that are to be
followed in urgent applications, those timelines can be truncated – it is the
particular manner in which these forms and timelines have been abridged –
which require the court’s consideration for purposes of determining whether
this particular aspect has been regulated in an appropriate and fair manner
and thus should/can be condoned or not.

Held: That in the particular application which served before the court ‘the
continuous demand that the rules place on the parties and practitioners to give

22 | P a g e
effect to the objective of procedural fairness, when determining the procedure to
be followed’ – was not met. Also – the benefits of procedural fairness which are
to be extended and are to be afforded to a respondent in urgent applications –
were not extended and afforded to the respondent in this particular instance.

Held further: That there was also no reason on the facts that the object of the
application would have been defeated, if more generous timelines – for the fair
exchange of papers – would have been set from the start. Also the exigencies of
the applicant’s case did not demand otherwise.

Held: that the application, which was launched, in the particular instance and
manner did not meet the underlying fair trial requirements set by the Namibian
Constitution, which requirements are echoed and implemented through the
Rules of Court in order to achieve procedural fairness. The application was
thus held to be highly irregular and was for that reason struck from the roll.

Lady Pohamba Private Hospital (Pty) Ltd v Shovaleka (HC-MD-LAB-APP-

AAA-2021/00053) [2022] NALCMD 42 (28 July 2022)

Summary: This appeal lies against the sanction imposed by the arbitrator in
her award in favour of the first respondent employee. The appellant takes issue
with the order reinstating the first respondent and the amount awarded as
compensation. In essence, the appeal is premised on the ground that
insufficient evidence was placed before the arbitrator to justify the sanctions
she imposed, and further that her compensation award was manifestly high in
the circumstances.

Held that: there was no evidence presented to the effect that the employer-
employee relationship had irretrievably broken down, thereby rendering an
order for reinstatement impossible.

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Held that: no reasons were advanced by the arbitrator for the compensation
award, however, given the period of lockdown occasioned by the global Covid
19 pandemic, there was sufficient evidence on record enabling the court to
alter the compensation award in terms of s89(10) of the Labour At 11 of 2007.

Letshego Bank Namibia Limited v Mwandingi (HC-MD-LAB-MOT-REV-

2019/00173) [2022] NALCMD 5 (15 February 2022)

Summary: The applicant lodged a review application, wherein it beseeched

this court to set aside the decision of the conciliator (the first respondent
herein), which was handed down on 20 May 2019 – On this score, the
applicant held firm the view that the conciliator’s decision was not sanctioned
by the Labour Act, in that, he did not have the power to dismiss a dispute of
interest and that in so doing, he had acted ultra vires.

Held; the conciliator acted ultra vires his statutory power vested upon him by
the Labour Act, 11 of 2007 by dismissing the applicant’s referral of dispute of
interest.

Held; application for review granted.

Lewis v Draghoender (HC-MD-LAB-APP-AAA-2021/00042 (INT-HC-

EXTTIME-2021/00370)) [2022] NALCMD 41 (22 July 2022)

Summary: The applicant, on 30 June 2021, noted an appeal against an

arbitration award of the second respondent. In terms of rule 17(25), the
applicant had 90 days within which to prosecute the appeal, and the 90 days

24 | P a g e
would have prescribed and lapsed on 30 September 2021. On 17 August 2021,
the applicant for the first time approached the court seeking relief
encompassing an extension of the time period within which to prosecute the
appeal, that the timelines in terms of rule 17 only start to run upon the
furnishing of the record by the second and third respondents, and that in the
event the application being heard after the prescription of the 90 days, that the
appeal be reinstated.

On 10 September 2021, the court granted certain relief in the application,

particularly: that the time period in terms of rule 17(25) is extended for 85
days, and that the applicant must prosecute the appeal, if it so wished, within
85 days from 10 September 2021; the 85 days would thus have lapsed and
prescribed on 03 December 2021.

On 15 November 2021, the applicant returned to court, seeking the same

orders initially sought in the initial extension application of 17 August 2021.

The matter was unopposed and enrolled on 26 November 2021, when the first
respondent opposed the application on 23 November 2021. The court on 26
November 2021 postponed the matter to 21 January 2022, as the court was
conflicted, but not before regulating the exchange of affidavits. The first
respondent then filed answering papers on 07 December 2021, and the
applicant replied by 14 December 2021.

As of 21 January 2022, the matter appeared before the court on the residual
court roll, and after a number of hearings, successive erroneous orders were
issued on this file (interlocutory applications), and on 10 March 2022, the
registrar of this court issued an order that the application will be heard on 25
March 2022, before this court as constituted in this judgment.

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On 25 March 2022, the court sat for the first time to hear the application and a
specific legal question arose. The court directed the parties to address it on the
court’s power to reinstate a lapsed appeal, in particular, does the court have
the power to reinstate an appeal that has lapsed? The court postponed the
matter to 29 April 2022, for the continuation of hearing of the applicant’s
application, and for the parties to address the court on the legal issue.

Held that, for the court to consider the merits of an application for
reinstatement of an appeal, it must first consider a preceding application for
condonation.

Held that, only once condonation is granted, can reinstatement follow.

Further held that, where an extension of time to comply with the rules of court
is sought, where the appeal has lapsed, in the absence of the condonation
application the question of extension is of no moment, as there exists no
appeal before the court.

Matongela v First National Bank (HC-MD-LAB-APP-AAA-2021/00070)

[2021] NALCMD 14 (23 March 2022)

Summary: This is an appeal launched by the appellant, Mr Israel Simasiku

Matongela, against the arbitration award made by the arbitrator Maiba Bester
Sinvula on 01 October 2021. The appellant was employed by the first
respondent, First National Bank (FNB), as an ATM custodian stationed at its
Katima Mulilo branch. The appellant was charged with gross
negligence/incompetence on 7 July 2020 for allegedly failing to load the
amount of N$ 450 000 on the system after placing the cash in the ATM. As a
result, a disciplinary hearing was held and the appellant was dismissed.
Dissatisfied with the dismissal, he appealed, and the appeal hearing

26 | P a g e
chairperson confirmed the dismissal. Aggrieved by the outcome, the appellant
referred a dispute to the Office of the Labour Commissioner.

The appellant filed two LC 21’s. One dated 26 February 2021 with a dispute
date of 17 July 2020 and one dated 15 March 2021 with a dispute date of 31
August 2020. However, the LC 21 dated 26 February 2021 was not before the
arbitrator. Respondent raised a point in limine in that the arbitrator lacked
jurisdiction as the dispute was referred out of time as per the LC 21 dated 15
March 2021, which was before the arbitrator and that there is no proof of
service on the respondent of the LC 21 dated 26 February 2021. The arbitrator
upheld the points in limine and held that he had no jurisdiction to hear the
dispute.

Held that regarding the issue of service, the Con-Arb rules provide a party to a
dispute must place evidence before the Labour Commissioner that all
documents in connection with labour dispute have already been served on a
party to the dispute before lodgement with the Labour Commissioner’s office.

Held that the LC 21 dated 26 February 2021 was not before the arbitrator to
consider. Even if there was a LC 21 dated 26 February 2021 it does not take
the matter any further. Nowhere in the papers does it say when that LC 21 was
served on the respondent.

Held that it would further appear that the LC 21 dated 26 February 2021 was
never registered with the Office of the Labour Commissioner because if it was
then it would have been before the arbitrator to consider. Likewise this court
cannot consider a document that is not before it and if the court disregards the
LC 21 dated 15 March 2021 there would be nothing for the court to consider
and the appellant’s appeal would fall away.

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Mineworkers Union of Namibia v Namdeb Diamond Corporation (Pty) Ltd
(HC-MD-LAB-MOT-GEN-2020/00227) [2022] NALCMD 33 (8 June 2022)

Summary: Section 15(1) of the Prescription Act 68 of 1969 provides that

prescription will be interrupted by the service on the debtor of any process
whereby the creditor claims payment of the debt – if a creditor fails in his
claim, ie if he does not successfully prosecute his claim under the process in
question to final judgment or the judgment is abandoned or set aside, the
provisions of section 15(2) come into play in that the interruption of
prescription which has occurred in terms of subsection (1) shall lapse, and the
running of prescription shall not be deemed to have been interrupted.

In casu the Applicant had instituted two applications for the enforcement of the
same debt, a claim for the payment of housing allowances plus interest against
the first respondent. The first was by way of a counter-application to an
application in which the first respondent sought the setting aside of the
registration of the underlying ‘settlement agreement/award’ as an Order of the
Labour Court in terms of section 87(1)(b)(i) of the Labour Act 2007 under case
Namdeb Diamond Corporation (Pty) Limited v Mineworkers Union of Namibia
(HC-MD-LAB-MOT-GEN-2019/00056) [2019] NALCMD 37 (04 November 2019).
The applicant’s counterclaim delivered in that case for the payment of housing
allowances and interest was however dismissed on 4 November 2019 and the
dismissal was never taken on appeal and thus became final.

The current application, HC-MD-LAB-MOT-GEN-2020/00227, which was

instituted in September 2020 was instituted on essentially the same cause of
action – and on substantially similar facts – and essentially for the same relief
as the said counter-application.

28 | P a g e
The applicant was thus attempting to claim payment of the original – and
substantially the same debt – through the institution of the said two
applications.

Held also: As the applicant’s cause of action was actually based in contract –
and not on any award it seemingly was irrelevant how the relied upon
agreement came about, i.e. whether the dispute which led to the conclusion of
the agreement was labour-related and was initially pursued in terms of the
applicable labour legislation or had any other commercial cause and was
pursued in terms of the applicable commercial law. Fact of the matter was that
a seemingly valid agreement was concluded and that valid agreements –
generally – can become enforceable and that the courts – inclusive of the
Labour Court – are empowered to enforce them, if appropriate. Such claims are
also generally liable to prescription particularly if such claims sound in money
and clearly constituted a ‘debt’.

Held that; the relevant process in question, ie the counter-application

instituted under case HC-MD-LAB-MOT-GEN-2019/00056, had a final
outcome ie that reflected in the court order on 4 November 2019, which was
one of dismissal.

This result determined the question whether or not the applicant was able to
prosecute its claims successfully to a final executable judgment, as required by
section 15(2).

This outcome was clearly not successful, so much was signified by the
dismissal of the counter-application.

Held that it had to follow in such circumstances – that the interruption of

prescription - achieved through the service of the counter-application under

29 | P a g e
case HC-MD-LAB-MOT-GEN-2019/00056 on 4 April 2019 – lapsed once the
counter-application was dismissed on 4 November 2019.

In such circumstances the deeming provisions contained in section 15(2) of the

Prescription Act 1969 came into play, with the result that the interruption of
prescription, which had occurred on 4 April 2019 – July 2004 was deemed not
to have occurred, thus in turn resulting in the situation that the applicant’s
claim, against the first respondent had already become prescribed during or
about July 2020, the applicant’s cause of action having arisen on 1 July 2017
or during or about July 2017 or even earlier and the current proceedings -
which were only instituted on 29 September 2020 – where thus instituted more
than three years after the applicant’s claim/case of action had arisen. The
applicant’s claim for the payment of housing allowances and interest had thus
prescribed in terms of section 11(d) of the Prescription Act 1969 as read with
section 12(1).

In the result the special plea of prescription was upheld.

Minister of Education, Arts and Culture v The Labour Commissioner (HC-

MD-LAB-APP-AAA-2021/00029) [2022] NALCMD 17 (8 April 2022)

Summary: The third respondent, a previous employee of the appellant, was

aggrieved by what he termed an ‘underpayment of remuneration’ in respect of
overtime. On 25 October 2017 he addressed email correspondence to the
appellant’s Permanent Secretary complaining of the alleged underpayment. The
Permanent Secretary responded to his email by a letter dated 17 December
2017, in which she advised the respondent that the overtime payment had
been correctly calculated and denying the respondent’s allegations to the
contrary.

30 | P a g e
Over the next two and a half years the respondent continued to send
correspondence to officials of the appellant voicing his grievance, but did not
receive any response thereto. The last correspondence addressed by the
respondent to the appellant was on 20 May 2020.

On 24 June 2020 the respondent referred a dispute to the Labour

Commissioner. At the onset of the arbitration proceedings the appellant raised
a point in limine on the basis that the dispute had prescribed in terms of s
86(2)(b) of the Labour Act 11 of 2007. The appellant argued that the dispute
arose on 25 October 2017 when the respondent first addressed his complaint
to the appellant, whereas the respondent contended that the dispute arose on
20 May 2020, being the date on which he sent his last correspondence to the
appellant.

The arbitrator found in favour of the respondent and dismissed the appellant’s
point in limine, resulting in the appellant lodging the current appeal.

Held; A claim is said to arise when the claimant has full knowledge and
appreciation of the claim and is fully possessed of the particulars of the claim.
The issue as to when a dispute arises is a question of fact to be determined on
the basis of evidence.

Held further; On the facts, and by 25 October 2017, the respondent was aware
that he had, according to him, been underpaid. He had at that stage an
understanding and appreciation of the fact that there was a disagreement
between him and the appellant concerning his remuneration.

Held further; The dispute therefore arose on 25 October 2017 and for purposes
of s 86(2)(b) of the Labour Act, the respondent’s dispute prescribed prior to its
referral to the Labour Commissioner.

31 | P a g e
The appeal was accordingly upheld and the dispute was declared to have
prescribed in terms of s 86(2)(b) of the Labour Act.
s

Moir v Dundee Precious Metals Tsumeb (Pty) Ltd (HC-MD-LAB-APP-AAA-

2021/00023) [2022] NALCMD 19 (13 April 2022)

Summary: The appellant filed a Notice of Appeal on an arbitration award made

by the Arbitrator on 18 February 2021. The appellant was employed on a fixed-
term contract as an Electrical Manager with Quant, effective from 1 May 2017
to 31 December 2019. As a non-Namibian employee, the appellant's employer
was responsible for assisting the appellant in applying for a visa and/or work
permit to allow him to work in Namibia. The appellant’s visa expired on 31
December 2018 and the first respondent did not provide the appellant with any
information regarding his employment status despite various requests for such
information, as a result of which the appellant was unable to return to
Namibia. Having received no communication from the first respondent
regarding his employment status and his visa, the appellant assumed that he
was dismissed due to the fact that his leave had been paid out to him by the
respondent with his December 2018 salary without any communication.

Since the date of filing the appeal, the appellant changed tack and indicated in
his heads of argument that the appellant no longer relies on unfair labour
practice. The appeal is now only limited to whether the arbitrator erred in law
in finding that the appellant was not unfairly dismissed.

Held that in the arbitration award, the arbitrator gave the issues before her
proper consideration, and she proceeded to analyse the evidence presented to
her. The arbitrator specifically considered the letter dated 21 August 2018.

32 | P a g e
Held that the arbitrator thoroughly analysed the evidence, and therefore the
arbitrator cannot be faulted in her analysis of the facts.

Held further that the arbitrator acted reasonably in arriving in her conclusions
and in making the award that she did. This is not a matter which warrants the
interference of the Labour Court and the appellant’s appeal must fail.

Namdeb Diamond Corporation (Pty) Ltd v Sheyanena (LCA 3/2016) [2022]

NALCMD 8 (3 March 2022).

Summary: The respondent was employed by the appellant as a driver. He was

subsequently charged in an internal disciplinary hearing of having committed
offences after working hours, which had implicated dishonesty. He was
charged with illicit dealing in uncut diamonds and was also charged by the
State under the Prevention of Organised Crime Act (POCA). He was
subsequently dismissed and his appeal against the dismissal failed. He then
lodged a claim for unfair dismissal and unfair labour practice. The arbitrator
found for him but refused to order his reinstatement. Aggrieved by the
favourable award to the respondent, the appellant noted an appeal, which was
followed by a cross-appeal lodged by the respondent, who contended that the
arbitrator was wrong in not reinstating the respondent.

Held: that on the evidence led, there was no basis in law for the dismissal of
the respondent since the disciplinary charges had not been proved.
Consequently, the arbitrator was correct in ordering compensation of the
respondent in his award.

33 | P a g e
Held that: the arbitrator, although he did not provide good reasons, was correct
in finding that the circumstances of the case did not admit of ordering the
discretionary remedy of reinstatement.

Held further that: reinstatement calls upon the trier of fact to consider a
multiplicity of relevant facts, which include the length of time between the
dismissal and the date of reinstatement, the nature of the employment; the
prejudice to the employer and an innocent employee who may have been
employed after the dismissal of the employee.

Held: that arbitrators must be astute and not allow spectators in arbitration
proceedings to interfere or intervene in proceedings as that may serve to poison
the propriety of the proceedings.

The court accordingly upheld the award and made no order as to costs.

Namibia Protection Services (Pty) Ltd v Hainghumbi (HC-MD-LAB-APP-

AAA-2021/00046) [2022] NALCMD 15 (23 March 2022).

Summary: In this opposed application for condonation, (Mr. Itula) the

deponent to the founding and replying affidavits on behalf of the applicant did
not allege that he had authority to bring the proceedings on behalf of the
applicant in his founding affidavit. The respondent in his answering affidavit,
raised the issue that Mr Itula did not say what he was authorised to do in
connection with the proceedings. The court, having noted the looming issue of
authority invited the parties to address it. Counsel for the applicant argued
that respondent did not object to the issue of authority and brought no
evidence to the contrary. Furthermore, Mr. Itula in the replying affidavit, stated
that he is authorised to depose to the affidavits on behalf of the applicant and
attached Annexures “A” and “B” as proof thereof. However, Annexure “A” is a
resolution by the applicant’s board members authorising Mr. Jacobus Hendrik

34 | P a g e
Visser, the applicant’s CEO, to sign for and on behalf of the applicant all
documentation, tenders as well as any power of attorney that may be required
from time to time. No mention whatsoever, is made of the deponent, Mr. Itula
in this resolution. Annexure “B” is a purported board resolution authorising
Mr. Itula as the current HR Manager of the applicant ‘to sign all labour related
matters for and on behalf of the applicant and this resolution was not signed
by the board members of the applicant but signed by Mr Jacobus Hendrik
Visser as CEO and Mr. Itula as the Human Resource Manager of the applicant
in their official capacity.

Held: The respondent indirectly challenged Mr. Itula’s Authority which

consequently led to the applicant addressing the issue in reply and attaching
Annexure “A” and “B” thereto.

Held that: Annexure “A” is irrelevant to these proceedings because it does not
mention Mr. Itula and Annexure “B” on the other hand was not signed by
members of the applicant’s board of directors but is signed by Mr. Visser, the
applicant’s CEO and Mr. Itula himself.

Held further that: Legal Practitioners must always to ensure that all the
necessary allegations regarding authority, are pertinently made in the founding
affidavit.

Held: That where the issue of authority is questioned in the opposing affidavit,
or in a notice in terms of rule 66, the applicant’s legal practitioner must ensure
that the issue is dealt with effectively in reply and if there has been a lapse on
that front, that the relevant ratification process is put in place to cure the
defect.

35 | P a g e
Nghixuangendele v Basil Read Mining (Pty) Ltd (HC-MD-LAB-APP-AAA-
2020/00038) [2022] NALCMD 11 (11 March 2022)

Summary: The appellants were employed as operators by the first respondent

and were dismissed after they were found guilty on charges of misconduct for
bribery, bringing the company’s name in disrepute. The basis of the charges
was that the appellants misrepresented to certain individuals that they either
worked in the Human Resources Division of the first respondent or knew
someone who worked in that division who can take their CVs and assist them
in getting hired by the first respondent. This was subject to the concerned
persons making payments to the appellants for a medical evaluation. When the
deal went sour and the individuals did not get employment with the first
respondent nor were they called for any medical evaluation, the individuals
approached the police to enforce repayment of their money and later the
supervisors I the employ of the first defendant. Disciplinary proceedings
ensued and the appellants were subsequently dismissed. The appellants then
approached the offices of the Labour Commissioner, where the arbitrator held
that the decision by the first respondent to dismiss the appellants was
procedurally and substantially fair.

The appellants now appeal against the award issued by the arbitrator. The first
respondent opposed the appeal and took issue with the grounds of appeal, in
that they were not questions of law.

Held that, the grounds of appeal are not grounds raised as grounds in law, as
they do not meet the standard that must be contained in a ground raised on
appeal.

36 | P a g e
Held further that, the court can only interfere with the decision of an arbitrator
if the court believes that the arbitrator came to a conclusion that no other
reasonable arbitrator could have come to.

Rheeder v CIC Holdings (Pty) Ltd (HC-MD-LAB-APP-AAA 2021/00006)

[2022] NALCMD 40 (21 July 2022)

Summary: The appellant was employed by the respondent. A dispute arose

between the parties that resulted in the appellant being dismissed by the
respondent. The appellant approached the Office of the Labour Commissioner
in seeking compensation.

At arbitration, the respondent raised a preliminary issue, namely that the

referral of the dispute was made contrary to the provisions of s 86(2) (a). The
arbitrator issued an award upholding the point of law regarding prescription
and dismissed the matter. It is on that basis that the appellant lodged an
appeal against the award on 27 January 2021. There was a delay in filing the
record of the proceedings of the arbitration resulting in the record only being
lodged on 9 May 2022.

The matter was inactive for more than 6 months. The registrar issued a notice
in terms of rule 132 regarding the inactivity. The appellant’s legal practitioner
filed an affidavit in terms of rule 132 explaining why the appeal had not been
prosecuted within the relevant timelines. The respondent opposed the
application on technical legal contentions.

Held: That the force and validity of the present weighty contentions made on
the respondent’s behalf will be ripe for determination with finality at the point
where the appellant makes applications directed at ensuring that the appeal
proceeds in earnest.

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Held that: The appellant’s explanation for the inactivity of the matter is
accepted.

Held further that: The appellant was, by an order of court required to deal with
the matter in terms of rule 132(7), which he did. That order was not set aside
and as such the appellant was in duty compelled to deal with it.

Shoprite Namibia (Pty) Ltd v Ngarizemo (HC-MD-LAB-APP-AAA-

2019/00076) [2022] NALCMD 31 (4 March 2022)

Summary: This is an appeal against the arbitrator’s award, wherein she found
that the respondents were unfairly dismissed on account that the appellant
applied its disciplinary policy inconsistently between its employees at its
Windhoek branch (es) and those at its Gobabis branch.

Held that an award delivered after the lapse of 30 days is not void, provided
that the court is satisfied there was substantial compliance with s 87(18).

Held that the arbitrator took into account facts that were not on record in
finding that the respondents were unfairly dismissed.

Held further that the onus to prove on a balance of probabilities that the
employees participated in a strike as contemplated by the Act, lies with the
employer.

Held; that mere withholding or cessation of work without a demand to the

employer does not constitute a strike.

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The National Disability Council of Namibia v Shikolalye (HC-MD-LAB-
APP-AAA-2020/00047) [2021] NALCMD 30 (16 June 2021)

Summary: This is an appeal against the award of the arbitrator whereby the
arbitrator found that she had jurisdiction to hear the matter notwithstanding
the fact that internal remedies had not been exhausted.

Held; that the arbitrator was correct in finding that on the facts of the matter
internal remedies were not exhausted. However the arbitrator erred in holding
that she still had jurisdiction to adjudicate the dispute notwithstanding that
internal remedies had not been exhausted.

Held; that the arbitrator had no jurisdiction to hear the matter.

Held; that the matter is referred back to the appellant to attend to and finalise
respondents’ grievance as per internal grievance procedure.

Yikoghahoha v Cape Orchard Company Namibia (Pty) Ltd (HC-MD-LAB-

APP-AAA-2020/00022 (INT-HC-LEA-2022/00074) [2022] NALCMD 26 (25
April 2022).

Summary: On 19 March 2021, the appellants filed a notice for leave to appeal
to the Supreme Court after the respondents obtained a favourable order on 26
February 2021. The notice for application for leave to appeal did not contain
any grounds of appeal, Counsel for the appellant immediately thereafter filed a
second request for the assignment of a hearing date which was followed with
the Notice of application for leave to appeal. This document purports to contain
the grounds of appeal. The appellants, upon filing this notice out of time, did
not file an application for condonation. The first respondent, being the only
party that opposed the application raised questions of law in terms of Rule 66

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(1) (c), which relates to the application being a nullity and not in compliance
with the court rules, specifically rule 115 and secondly that the application for
leave to appeal to the Supreme Court was filed late.
Held that the applicants did not immediately apply for leave to appeal to the
Supreme Court as provided for in rule 115(1) of the Rules of Court.

Held that it is evident that the notice of application for leave to appeal was filed
out of time.

Held further that the applicants failed to seek condonation for the late filing of
their application for leave to appeal. Accordingly, the court held the view that
unless and until condonation is sought and granted in respect of the late
delivery of the application for leave to appeal, there is no application for leave
to appeal before the court.

The court struck the appeal from the roll with costs on the ordinary scale.

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