REPUBLIC OF NAMIBIA

CASE NO.: I 3004/2007

IN THE HIGH COURT OF
NAMIBIA

In the matter between:

TRUSTCO GROUP
INTERNATIONAL (PTY) LTD
…........................................PLAINTIFF

and

STANLEY NICK KATZAO
…...........................................................................DEFENDANT

CORAM: SMUTS, J

Heard on: 25 October 2011

Delivered on: 24 November
2011

JUDGMENT

______________________________________________________________________

SMUTS, J
[1] The plaintiff’s two claims in this action against the
defendant, one of its former employees, arise from the employment
contract between the parties.

[2] The first claim is
for N$90 000. It is based upon a term of the employment agreement
which requires 3 month’s notice of termination. It is alleged
that the defendant, in breach of this term, failed to give such
notice and three month’s remuneration is claimed from the
defendant.

[3] In the second claim,
the plaintiff seeks the repayment of a performance bonus paid to the
defendant in the sum of N$100 000. It is alleged that it was an
express term and condition of the payment of that bonus that the
defendant would be obliged to repay it if he resigned within one year
of its award. It is alleged that the defendant’s resignation
occurred within a year of the payment of the bonus which rendered it
due and payable to the plaintiff.

[4] The defendant raised
a special plea denying that this court has jurisdiction to hear these
claims despite pleading over on the merits and launching a
counterclaim arising from their employment contract which was not
conditional upon the plaintiff’s claims not succeeding. The
special plea asserts that the Labour Court has exclusive jurisdiction
to hear the plaintiff’s claims as they arise from an employment
agreement by reason of s18(1) and/or s19(1) of the then applicable
Labour Court Act, 6 of 1992 (the Act).

[5] When arguing the
special plea, Dr. S. Akweenda, who appeared for the defendant,
confirmed the defendant’s reliance upon s18 of the Act (and
dropped any reliance on s19). The jurisdiction and powers of the
Labour Court are set out in s18. The legislature vested that court
with exclusive jurisdiction to hear certain matters listed in the
various sub-sections of s18. The exclusive powers of that court are
clearly limited to those specific items enumerated in the
sub-sections. Dr. Akweenda relied upon s18(1)(e), (f) and (g). I only
quote those sub-paragraphs together with the introductory portion of
s18(1) which provide:

“The Labour
Court shall have exclusive jurisdiction –

(e) to issue any
declaratory order in relation to the application or interpretation of
any provision of this Act, or any law on the employment of any person
in the service of the State or any term or condition of any
collective agreement, any wage order or any contract of employment;

(f) to make any order
which it is authorized to make under any provision of this Act or
which the circumstances may require in order to give effect to the
objects of this Act;

(g) generally to deal
with all matters necessary or incidental to its functions under this
Act, including any labour matter, whether or not governed by the
provisions of this Act, any other law or the common law”.

[6] Although s18(1)(e)
confers exclusive jurisdiction on the Labour Court to issue
declaratory orders in respect of a contract of employment, that is
not what is sought by the plaintiff in this action. The action is
instead for payment of two claims sounding in money arising from
alleged breaches of the employment agreement between the parties.
Even though this provision was referred to, I did not understand that
reliance was placed upon it, given the nature of the relief sought by
the plaintiff which was not of a declaratory nature.

[7] Nor was much reliance
place upon s18(1)(f). There is no section in the Act which authorizes
the Labour Court to make an order of the kind sought by the
plaintiff. It was however argued that an order of that nature would
be giving effect to the objects of the Act (because by doing so would
be to uphold an employment agreement which had allegedly been
breached). But a reliance upon s18(1)(f) to vest the Labour Court
with jurisdiction in dismissal cases was on the basis of a similar
argument rightly rejected in Nyambe
v City Savings Bank ¹.
The objects of the Act would in my view appear to vest the district
labour court with the power to enforce individual contracts of
employment for payment of amounts owing under them if non payment of
such items were to be covered by Part V of the Act. Part V vests the
district labour court with the non exclusive power to enforce the
rights created by the provisions in that Part.

[8] Part V includes s36
read with s37 and s44 which effectively provide employees with the
right to enforce their rights in the district labour court to payment
of their remuneration provided for in the Act. As I have stressed,
the jurisdiction of the district labour courts under s19 of the Act
is not exclusive. Claims sounding in money arising from a breach of
contract, including dismissal or termination, are not confined to
that court, as was, with respect, correctly
held by this court in National
Union of Namibian Workers v Naholo².

[9] The main thrust of
Dr. Akweenda’s argument was based upon s18(1)(g) with reliance
placed upon what was stated by the Supreme Court in Beukes
and Another v CIC
Holdings Ltd³
concerning that
provision. There was reference in that matter to the breadth of the
phrase “including any labour matter whether or not governed by
the provisions of this Act any other law or the common law”.
The Beukes
matter however concerned
and arose from a writ issued pursuant to a default judgment in a
district labour court. The respondent had obtained an urgent
interdict in the High Court for the warrant to be set aside.

The Supreme Court found
that the High Court had no jurisdiction to deal with the matter as
the correct procedure would have been to apply in the district labour
court for rescission of the judgment or to have appealed against the
judgment of that court. In the latter event only the Labour Court
would have jurisdiction. In
the former event, only the district labour court could hear the
matter. That matter is thus distinguishable. The comment by that
court concerning s18(1)(g) relied upon by the defendant was thus
obiter
in the context of the
holding of that case. It,
in any event, with
respect, contains an incorrect premise that both the labour court and
district labour court have exclusive jurisdiction to deal with the
matters assigned to them⁴.
In the case of the
district labour court, that is with respect, unfortunately incorrect.
Section 19 does not confer exclusive jurisdiction to the district
labour court in respect of the matters referred to. This incorrect
premise does not however affect the holding of that case but does
affect the obiter
remarks concerning
s18(1)(g) which I decline to follow.

[10] Subsection 18 (1)(g)
is in my view clearly subject to the other subsections as it relates
to matters which are incidental to the labour court’s
functions under the Act. These functions are set out in
section 18 and elsewhere. The term “any labour matter”
is thus is in my view to be read and interpreted in this confined and
specific context. It is plainly any labour matter which is necessary
or incidental to the Labour Court’s functions under the
Act. It cannot serve to prize the exclusive jurisdiction of the
Labour Court any wider. The labour matter would thus need to be
necessary or incidental to the functions which the legislature has
accorded to the Labour Court.

[11] In my view this
subsection, read within the context of section 18 construed as a
whole merely, embodies a well established principle of statutory
construction of the common law which posits that:

“whatever is
reasonably incidental to the proper carrying out of an authorized
power, is considered as impliedly authorized.”⁵

This principle was
further summarized by the then South African Appellate Division in
that matter in these clear terms:

“It is settled
law that whatever is reasonably incidental to the proper carrying out
of an authorized power, is considered as impliedly authorized.
(Johannesburg Consolidated Investment Co. Ltd v Marshalls Township
Syndicate Ltd., 1917 AD 662 at p. 666; Randforntein Estates G. M. Co.
Ltd v Randfontein Town Council, 1943 AD 475 at p. 495). It is clear,
however, that only such powers will be implied as are reasonably
ancillary to the main purpose.

A power would be
regarded as reasonably ancillary to the main power conferred if the
true object which the Legislature had in mind in conferring that
power, would be defeated if the ancillary power is not implied
(Johannesburg Municipality v Davies and Another, 1925 AD 395 at p.
403 or if the power conferred cannot in practice be carried out in a
reasonable manner unless the ancillary power is implied (City of Cape
Town v Claremont Union College, 1934 AD 414 at pp. 420, 421).”⁶

[12] It follows in my
view that subsection 18(1)(g) relates to matters which are incidental
to the exercise of the Court’s functions and powers as provided
for in the preceding subsections or elsewhere in the Act. A claim for
payment under an employment contract – such as one for a bonus
or reclaiming it - does not form part of any of the functions or
powers of that court listed in s18 or elsewhere in the Act. Nor is
the adjudication of claims for damages for breach of employment
contracts included in the functions of the Labour Court listed in s18
or elsewhere in the Act.

On the contrary and at
best for the defendant, claims for payment of leave and other items
in breach of conditions of employment may be enforceable through Part
V of the Act and may in certain circumstance be prosecuted in the
district labour court.

[13] Subsection 18(1)(g)
cannot thus in my view be construed to confer a specific further
power or function upon
the Labour Court to deal with damages or other claims arising from
breaches of employment contracts. The claims in this matter do not
arise from any provision in the Act but rather have their origin in
the contractual regime between the parties.

[14] This approach is
further reinforced by the exclusive nature of the jurisdiction
conferred on the Labour Court. There is a presumption against the
ousting of the jurisdiction of the High Court, as was stressed by
Totemeyer, AJ in the Naholo
matter⁷.
If the legislature
intended to do so, it must be provided for in unequivocal language
and for that unmistakable purpose⁸.

[15] This the legislature
did not do. A contrary construction as contended for by Dr Akweenda
is in my view contrived and must fail. Such an indeterminable
conferral is untenable and would serve to oust the jurisdiction of
the High Court which would likewise be untenable⁹.

[16] It would mean that
the High Court’s jurisdiction would be ousted in any
contractual claim (as contended for) or even delictual claim which
has its origin in employment as “any
labour matter.” A
few examples would in my view underscore the untenability of the
approach contended for. Claims for damages for breach of a restraint
clause or for the negligent – or even fraudulant - performance
of an employment contract would upon such an approach be the
exclusive preserve of the Labour Court – a court where only
applications are contemplated in its rules.

[17] A claim for a bonus
in an employment sphere was successfully prosecuted in the High Court
and upheld in the Supreme Court in Old
Mutual Life Assurance Company (Namibia) Ltd v Symington¹⁰.
Even though the point of jurisdiction (of the High Court) was
understandably not taken, both the High and Supreme Courts could (and
would) have raised the matter mero
motu should
they have considered that the High Court did not have jurisdiction to
hear that matter.

[18] In my view the
approach adopted by Totemeyer, AJ in Naholo is apposite and
finds application in this matter. The High Court’s jurisdiction
to adjudicate claims of the nature brought by the plaintiff in this
action is in my view not excluded by s18 of the Act. On the contrary,
it would seem to me that this court is the correct forum for these
claims.

[19] It follows that the
special plea must fail.

[20] The order I make is
that the special plea is dismissed with costs. These costs include
the costs of one instructing and one instructed counsel.

____________

SMUTS, J

ON
BEHALF OF THE PLAINTIFF: adv. van der westhuizen

Instructed
by: ENGLING, STRITTER & PARTNERS

ON
BEHALF OF THE FIRST DEFENDANT: DR. AKWEENDA

Instructed
by: CONRADIE & DAMASEB