CASE NO.: SA 4/2004

IN THE SUPREME COURT OF NAMIBIA

In the matter between

And

CORAM: Mtambanengwe, A.C.J., Teek, J.A., et
Shivute, A.J.A.

HEARD ON: 11/10/2004

DELIVERED ON: 15/12/2004

___________________________________________________________________________

APPEAL JUDGMENT

___________________________________________________________________________

MTAMBANENGWE, ACJ: This is an appeal from a
judgment of Maritz, J, sitting as President of the Labour Court,
which set aide the order of the District Labour Court given on 8 July
1999, dismissing the present respondent's claim. Respondent in the
matter before Maritz, J., is the former employer of Respondent before
us.

The learned President of the Labour Court stated the
essence of the dispute between the parties as:

"Whether the termination of appellant's contract of
employment by notice given in terms of section 47 of the Labour Act
no. 6 of 1992 (the Act) constitutes a 'dismissal' as contemplated in
s. 45(1) of the Act."

He added:

"If it does, the respondent concedes that the
dismissal was neither substantively nor procedurally fair and that he
will have to pay the appellant an agreed amount of N$33 000,00 for
the loss suffered as a consequence. Conversely if the termination of
his services is not a dismissal - as the District Labour Court held
- the appeal must fail."

The matter started in the District Labour Court with the
lodging of a complaint by respondent purportedly in accordance with
the provisions of Part IV of the Act. It is clear that right from
the start appellant took the stance that s. 45 and consequently s.
46(3) did not apply. The particulars of the complaint were stated as
follows:

"UNFAIR DISMISSAL, EMPLOYEE WAS DISMISSED
SUBSTANTIVELY AND PROCEDURALLY UNFAIR.

Short statement of relief claimed:

Compensation for unfair dismissal of at least 3 months +
6 days leave pay."

The parties in this matter put before the District
Labour Court the following:

"STATEMENT OF AGREED FACTS AND THE CONTENTIONS
OF COMPLAINANT AND RESPONDENT RESPECTIVELY

1. 
   Complainant was employed by Respondent as a manager
   from 18 August 1995, until the contract of employment was terminated
   by Respondent on 16 September 1998. A copy of the letter from
   Respondent's legal practitioners of record to Complainant is
   attached marked 'A'.

   
   

2. Complainant's monthly salary at the date of the
termination of his contract of employment was N$5 500,00.

3. 
   Complainant was paid his salary up to 30 September
   1998, one month's salary in lieu of notice in compliance with
   section 47(4)(a) of the Labour Act, Act No. 6 of 1992 ("the
   Labour Act"), three weeks severance allowance in compliance
   with section 52(1)(a) of the Labour Act, two days leave pay and
   given a certificate of service in compliance with section 51(1) of
   the Labour Act on 16 September 1998.

   
   

3. 
   The reason given by Respondent for the termination of
   Complainant's service was that the employment relationship had
   deteriorated to such an extent that Respondent was not prepared to
   continue with the employment relationship.

   
   

3. 
   Respondent contends that the contract of employment was
   terminated by Respondent in terms of section 47 of the Labour Act
   and that section 45 of the Labour Act therefore does not apply.

   
   

3. 
   Complainant admits that Respondent had complied with
   section 47, but contends that section 45 applies to the termination
   of Complainant's contract of employment by Respondent, which is also
   an unfair dismissal within the meaning of section 45(1).

   
   

3. 
   If the above Honourable Court should find that section
   45 applies to the termination of Complainant's employment contract
   by Respondent:

   
   

1. 
   Respondent admits that he has not complied with
   section 45, in that there was no valid and fair reason for the
   Complainant's dismissal, which was also not in compliance with a
   fair procedure;

   
   

2. 
   Respondent admits that Complainant has been unemployed
   for more than six months and that the loss that Complainant has
   suffered is equivalent to six months salary, being the total sum of
   N$33000,00. The parties request the above Honourable Court to
   order the payment of this amount to Complainant in terms of section
   46(1)(a)(iii) of the Labour Act.

   
   

3. 
   The parties request that the admissions contained in
   this document be entered on the record by the above Honourable Court
   in terms of section 5 of the Civil Proceedings Evidence Act, Act No.
   25 of 1965."

   
   

It will be noted that the admission by appellant, in
para. 7.1 of this statement is in line with the complaint lodged by
respondent. In other words what appellant is saying is yes, I admit
I had no valid and fair reason to terminate your employment, but
because I complied with the provisions of s. 47 of the Act, the
termination does not constitute a dismissal and so you have no reason
to complain.

The District Labour Court came to a decision in favour
of appellant's stance that s. 45 does not apply in the circumstances.
In doing so that Court based its decision on certain passages in Du
Toit v Office of the Prime Minister, 1996 NR 52, especially on p.
72 B – E, where O'Linn, J., concluded"

"The term 'termination' or 'Terminate' is used
throughout in ss 47 – 52, read with s 53, and not the words
'dismissal' or 'disciplinary action'. In contrast, 'termination' or
'terminate' are not used at all in ss 45 and 46, but only the words
'dismissal' or 'disciplinary action'.

There is a presumption when interpreting statutes that
the same words in the same statute bear the same meaning. See Steyn
Uitleg van Wette (supra at 26); Cockram Interpretation
of Statutes (supra at 143); Du Plessis Interpretation of
Statutes at 127.

The words 'termination' or 'terminate' in ss 48 and 50,
should therefore be presumed unless the context indicates otherwise,
to bear the same meaning as in ss 47, 49, 51, 51.

'Terminate' in s 48 means precisely what it says and
cannot logically be subject to the 'unfair dismissal' provisions of
ss 45 and 46. Similarly, it seems that a 'collective termination'
complying with s 50, cannot be subject to the 'unfair dismissal'
concept and procedures provided in ss 45 and 46. If this is so then
the words 'termination by notice', in s 47 should be presumed to bear
the same meaning as in ss 48 and 50 and similarly be regarded as not
being subject to the 'unfair dismissal' concept and procedures of ss
45 and 46." (Emphasis mine)

Maritz, J., did not agree but came to the conclusion:

"Accordingly, I find that the word 'dismiss', where
it is used in ss 45 and 46 of the Act, means the termination of a
contract of employment by or at the behest of an employer and that,
so interpreted, no conflict arises between those provisions and those
of ss 47 – 53 of the Act. Dismissal by notice under s 47
terminates the contract of employment but: (a) if unfairly done, it
will bring the provisions of ss 45 and 46 into play; and (b) if no
or inadequate notice is given, the remedy provided for by s 53(a)
will be available to an aggrieved employee."

At the heart of the debate in the Court a quo was
the conclusion by O'Linn, J. in the Du Toit matter, supra,
that:

"The provisions of ss 45 and 46 are not applicable
to terminations of contracts by notice duly given in terms of the
contract of employment, or of a collective agreement or in accordance
with s 47 and where all the provisions of ss 47, 49, 51 and 52 read
with ss 69 – 72, are complied with",

which Maritz, J., found did not form part of the ratio
decidendi of the Du Toit case. That finding was
attacked on that basis in argument before Maritz, J., by counsel for
respondent (Mr. Light), who further submitted that it was wrong.
Both challenges were upheld by Maritz, J.: hence the phraseology of
the first ground of appeal (and, in my view the only real ground of
appeal in this matter) namely that the learned judge erred in law in
that

"1. He held that the finding of O'Linn P in the
case of Du Toit v Office of the Prime Minister 1996 NR 52 (LC)
(the Du Toit case) in terms of which it was concluded that:

'The provisions of ss 45 and 46 are not applicable to
terminations of contract by notice duly given in terms of the
contract of employment, or of a collective agreement or in accordance
with s 47 and where all the provisions of ss 47, 49, 51 and 52 read
with ss 69 – 72, are complied with.'

(hereinafter the Du Toit finding)

did not form part of the ratio decidendi of that
case. The learned judge erred in coming to such a conclusion,
because the Du Toit finding, did contribute to the ultimate
result and/or was done in the course of reasoning, in order to come
to a conclusion, inter alia, because:

1. 
   the provisions of the Public Service Staff Code
   (referred to the Du Toit case) formed part of 'any term
   and condition of a contract of employment' (being the phrase
   used in section 45 of the Labour Act, 1992) of Du Toit's contract
   of employment' and

   
   

2. 
   if the phrase 'whether or not notice has been
   given' (as used in section 45 of the Labour Act, 1992) rendered
   the provisions of the Public Service Staff Code subject to the
   provisions of section 45 of the Labour Act, 1992 (which O'Linn P
   held, was not the case) then, even if there was compliance with
   the provisions of the Public Service Staff Code, it would still
   have rendered the termination of the services of Du Toit unfair;

   
   

3. 
   had the learned judge found that the Du Toit
   finding was part of the ratio decidenci of the Du Toit
   case, he had to dismiss the appeal for the reasons mentioned (in
   relation to stare decisis doctrine) in the judgment."

   
   

With respect the other so-called grounds of appeal
amount to an argument why Maritz, J. should not have "held that
'dismiss' where it is used in ss 45 and 46 of the Act, means the
termination of a contract of employment by or at the behest of an
employer and not (as he should have found) that the word 'dismiss'
(in the context of section 45) means termination as a consequence of
misconduct."

See: Hindjou v The Government of the Republic of
Namibia, 1997 NR 112 at 113 – 115.

Mr. Heathcote, for the appellant, maintained in argument
before us the stance that the giving of notice in terms of s 47 is
the end of the matter, and that the reason thereof is irrelevant. He
emphasized this point by saying that Maritz, J., was wrong in holding
that what s. 47 entails is the giving of notice in the form of an
offer and if it is accepted by the employee that is the end of the
matter. On the contrary, he said, such notice is not an offer open
to acceptance, the effect of the notice is to bring the contract to
an end: if the "Act says subject to the provisions of this
section an employer who intends terminating a contract of employment
on a date whether before or after the date on which it would have
ordinarily expired by virtue of a provision contained in such a
contract of employment shall" the intention is to terminate on
the date (specified in the notice). The fallacy in that argument,
supported as it is by the quotation of the wording of s. 47, is that
Mr. Heathcote ignores the subsumption that for an employer to give
notice to terminate a contract of employment on a date other than the
date on which in terms of the provision of the contract it would
ordinarily have expired there would have to be a reason,
otherwise one would appear to be making the untenable proposition
that s. 47 gives the employer carte blance - the right to
breach a contract of employment with impunity. Subsection (6) of s
47 makes it clear that such a proposition is not intended, it
provides:

"(6) The provisions of this section shall not be
construed as preventing –

1. 
   Any of the parties to a contract of employment from
   providing in such contract a period of notice of equal durations for
   both parties which is longer than the period referred to in
   subsections (1);

   
   

2. 
   Any employer from waiving any right conferred upon him
   or her by the provisions of subsection (1) or (4);

   
   

3. 
   Any of the parties from terminating the contract of
   employment without the notice referred to in subsection (1) for any
   cause recognized by law as sufficient."

   
   

This makes it clear that the notice in terms of
subsection (1) is the prescribed statutory minimum. Mr. Heathcote
drew our attention to a Zambian case, and submitted that this case
was in support of the proposition that once notice is given no reason
need be given, in other words the employer who has given notice or
has otherwise complied with the provisions of s 47 need not be
subjected to the fairness challenge of section 45. The Supreme Court
of Zambia held in Zambia Privatisation Agency v Matale (1995
– 97) ZR 157 (SC) at 161 G – I:

"The respondent's services were terminated in
accordance with the terms of a letter dated 8 September 1994. They
purported to give a reason in that letter and they paid the
respondent the terminal benefit which included three months' salary
in lieu of notice. It was common cause that the contract of
employment in the instant case did not provide for termination of
employment by notice or pay in lieu of notice. Be that as it may
we accept that the relationship here as we said in Contract
Haulage v Kamayoyo was that of mater and servant. The case
before us was not one involving contravention of statutory procedures
and disciplinary proceedings. The payment in lieu of notice was
a proper and a lawful way of terminating the respondent's
employment on the basis that in the absence of express stipulation
every contract of employment is determinable by reasonable notice;
see McClelland v Northern Ireland General Health Services Board.
In the case of Lumpa v Maamba Collieries Ltd we said, 'It is
the giving of notice or pay in lieu that terminate the employment. A
reason is only necessary to justify summary dismissal without notice
or pay in lieu'.

We agree with counsel for the appellant that the
respondent's termination of service was not unlawful as he was paid
in lieu of notice which is a lawful way of terminating a contract of
employment. This ground of appeal succeeds." (My underlining.)

With respect, having regard to the sentences I have
underlined, this judgment does not support counsel's contention. The
present case is one which, by admission of appellant, involves
contravention of statutory procedures. The position stated in
Matale's case is the common law position regarding the
relationship between master and servant which in this Country has now
been altered by statute.

Mr. Heathcote has persistently criticized a passage in
Maritz, J.'s, judgment where the learned president of the Labour
Court is said to have equated notice in terms of s. 47 to an offer
which the employee may expressly or tacitly accept. It is necessary
to quote the passage in full as it is in that passage where the
difference in interpretation of the word dismiss (dismissal) between
O'Linn, J., and Maritz, J., is brought out clearly. This is what
Maritz, J., said:

"Finally, the Court in Du Toit's-case
reasoned (at 74G-H) that '(t)he enactment of ss 47-52, read with
ss 53, 69 –72, providing for the termination of contract by notice
would be superfluous and/or an exercise in futility and/or absurd if
because of s 45, no valid and effective termination of employment can
take place'. I should immediately point out that s 47 does not
only provide for the termination of a contract of employment by an
employer, but also by an employee. Termination by the latter in
accordance with s 47 results in the termination of the employment
relationship. Its promulgation in that sense is certainly not
superfluous, absurd, etc. But it also serves an important purpose in
so far as it allows for the termination of a contract of employment
by notice under the hand of the employer. If such notice is either
expressly or tacitly accepted by the employee, it is the end of the
matter. So, for instance, when an employment relationship has
irretrievably broken down, the employer may wish to terminate it by
notice and the employee may be equally desirous to accept it. The
conceivable reasons for such a breakdown may be innumerable and may
include those reflecting on the employee's conduct, character and
performance. An employee, knowing that the employer had lost trust
or confidence in him or her because of gross negligence or dishonesty
may, given notice of termination by the employer, elect to accept
that rather than to subject himself or herself to a disciplinary
hearing. Termination by notice provided for in s 47 does not,
however, place the employee at the mercy of the employer's will or
whims. If the employer acts unfairly in terminating the employee's
employment by notice, the employee need not abide by such conduct or
accept the notice and is entitled to challenge the fairness of such
termination under s 45 – as he or she may also do when his or her
services are terminated at a disciplinary hearing.

Accordingly, I find that he word 'dismiss', where it
is used in ss 45 and 46 of the Act, means the termination of a
contract of employment by or at the behest of an employer and that,
so interpreted, no conflict arise between those provisions and those
of ss 47 – 53 of the Act. Dismissal by notice under s 47
terminates the contract of employment but: (a) if unfairly done, it
will bring the provisions of ss 45 and 46 into play; and (b) if no
or inadequate notice is given, the remedy provided for by s 53(a)
will be available to an aggrieved employee." (my emphasis)

The following exchange took place between counsel and
the court.

"COURT: When you say notice given in terms
of the Act or in terms of the contract you are merely saying
purportedly given in terms of the contract (or Act) and that leaves
room for the other party to say yes it (was) given correctly in terms
of the contract (or Act) or it was not given correctly in terms of
the contract (or Act).

MR HEATHCOTE: Yes. I agree with that statement,
that must be correct, I am respectfully with Your Lordship."

From this it would appear that the quarrel with the word
'offer' as used by Maritz, J., in the above passage has no substance.
However, Mr. Heathcote went on to say:

"Now in practice … that might be totally (be)
correct and if it is then accepted there will not be a District
Labour complaint. But we are dealing here not with how it would work
in practice, we are dealing here with what is the intent of and
meaning as to the plain wording of section 47. That is with respect
an entirely different issue and it is in that sense that I submit
that the practical use of a piece of legislation, how it works out in
practice cannot be use(d) with respect to interpret the very meaning
of the section. Section 47 is clear, it says: 'If you give
notice in terms of the Act the contract will come to an end' not if
it is accepted or not accepted, yes the unlawfulness or fairness
or whatever will lead the argument further. Now it is in that
context My Lord that is the one way in which Justice Maritz could
explain the meaning of dismiss, as he found it. If the meaning of
dismiss is as was found in the Du Toit case, those issues do
not arise. … I concede that any dismissal is subject to the
provisions of section 45, concede that … because one cannot argue
against the very wording of the Act." (my underlining)

Mr. Heathcote also accepted that dismissal is dismissal
whatever you may call it, it all depends on the intention of the
employer, he said.

The primary rule of interpretation is that one must, in
construing an Act of Parliament, adopt the ordinary grammatical
meaning of words as used by the legislature unless such approach
would lead to some absurdity, inconsistency, hardship or anomaly
which from a consideration of the enactment as a whole a Court of law
is satisfied the Legislature could not have intended.

See: University of Cape Town v Cape Bar Council,
1986(4) SA 903 at 913 I-J and the cases there cited. It is, I think,
because, as Devenish states in Interpretation of Statutes 1^st
ed. at p. 26, "words do not have intrinsic meaning in language
but their meaning is invariably determined by a concatenation of
contextual factors", that the well-known rule of construction
that words used in a statute should be read in the light of their
context was envolved. These rules were comprehensively but briefly
stated by Schreiner, J.A., in Jaga v Donges N.O. and Another,
1950(4) SA 653 (A) at 662G – 663A as follows:

"Certainly no less important than the oft repeated
statement that the words and expressions used in a statute must be
interpreted according to their ordinary meaning is the statement that
they must be interpreted in the light of their context. But it may
be useful to stress two points in relation to the application of this
principle. The first is that 'the context', as here used, is not
limited to the language of the rest of the statute regarded as
throwing light of a dictionary kind on the part to be interpreted.
Often of more importance is the matter of the statute, its apparent
scope and purpose and, within limits, its background. The second
point is that the approach to the work of interpreting may be along
either of two lines. Either one may split the inquiry into two part
and concentrate, in the first instance, on finding out whether the
language to be interpreted has or appears to have one clear ordinary
meaning, confining a consideration of the context only to cases where
the language appears to admit of more than one meaning; or one may
from the beginning consider the context and the language to be
interpreted together."

See also Van Heerden and Another v Joubert N.O. and
Others 1994(4) SA 793(A) at 795 F – I.

It is not necessary to set out the relevant provisions
of the Act because both O'Linn, J., and Maritz, J., reached their
differing conclusions after full reference to those provisions,
except that O'Linn, J., omitted any reference to s. 65(4)(b). I must
however, refer to what O'Linn, J., said at 68G to 69A-C of the Du
Toit's case after he set out the provisions of s. 50 of the Act,
the learned President of the Labour Court said:

"Counsel for the appellant contend that ss 45 and
46 are applicable to any contract terminable and terminated by
notice, whether the notice is given in terms of any provision of the
Labour Act or in terms of any condition of contract of employment or
of a collective agreement. Counsel further submit that the Labour
Court must focus on the 'employment relationship' created by the
Labour Act, rather than the relationship as defined and regulated in
the employment contract and which is subject to the common law, in
the absence of labour legislation.

Counsel relied heavily on a decision in South Africa by
the Appellate Division in National Automobile and Allied Workers'
Union (now known as National Metalworkers Union of South Africa) v
Borg-Warner SA (Pty) Ltd., 1994(3) SA 15 (A) at 23C-D and 25E-J,
where the said Appellate Division dealt with the 'unfair labour
practice Jurisdiction of the Industrial Court' and the 'employment
relationship created by the Labour Relations Act, Act 28 of 1956'.

I have already indicated supra that our Labour
Act differs in important, if not fundamental respects, from that of
the South African Labour Relations Act and that decisions of South
African Courts interpreting and applying that Act are not necessarily
applicable to the Namibian situation governed in the first place by
the Namibian Labour Act of 1992.

However, the general statement in the National
Automobile decision, supra, that 'the unmistakable intent of labour
legislation generally is to intrude, or permit the intrusion of third
parties on this relationship in innumerable ways', is certainly also
applicable in Namibia.

Counsel for the appellant appear to accept, as does
counsel for the respondent, that the word 'dismissal' in s 45 is
the key word which must be interpreted in the context of the other
provisions of the Labour Act."

(My emphasis.)

In
referring to s. 50 of the Act one would have thought that the Learned
President of the Labour Court in Du Toit's case would have had
his attention drawn to section 65(4)(b) of the Act which is part of
the context in which the word dismissal must be interpreted. I agree
with Maritz, J., that had O'Linn, J.'s attention been drawn to
section 65(4)(b) "he might well have come to a different
conclusion on this issue which he in part described as one of
'profound difficulty and uncertainty' where a difference of opinion
is justified (at p. 77D)".

In
NAFAU and 38 Others v United Fishing Enterprises, Silungwe,
P., declined to accept O'Linn, J., reasoning that a different
fairness regime is provided to regulate s 50 terminations and, as
Maritz, J., says "he expressly held that the term 'dismissal' is
not confined to the termination of a contract of service on grounds
of an employee's misconduct but that it may also encompass
termination of a contract of service on grounds other than misconduct
(at p. 10). He points out that the full court of the High Court also
considered the termination of services without compliance with s.
50(1) as an unfair dismissal under s. 45 of the Act in the case of
Visagie v Namibian Development Corporation, 1999 NR 219 at 229
G and 230 E".

In
his heads of argument Mr. Heathcote supports the reasoning in Du
Toit's case. He points out that Maritz, J., read the conclusion
reached by O'Linn, J., out of context and in isolation, because at p.
76 I O'Linn, J., made the following important statement:

"Should that turn out to be a termination in effect
and substance because of alleged misconduct, or because of the reason
contained in subpara (2)(a) – (c) of s 45, then the termination,
even if ostensibly a termination by notice, will amount to a
dismissal, subject to the provisions of ss 45 – 45."

This
statement is indeed important because it is a clear recognition by
O'Linn, J., of the fact that whether or not ss. 45 or 46 is
applicable is a matter of fact. To illustrate this I refer to the
remarks in the judgment preceding that statement. The learned
President prefixed that statement with the following (at 76F – H):

"It is necessary to emphasise that the
interpretation preferred herein supra, does not prevent the
application of the provisions of ss 45 and 46 in all circumstances.
The protection of ss 45 and 46 will be available, as pointed out
supra, in the following circumstances.

The employer, when giving notice of termination, is
compelled by the provisions of s 51(1)(g) to provide the reasons for
termination of employment in the so-called certificate of employment.
If he fails to do so, the District Labour Court may issue an order
to compel in terms of s 53(2). Failure to comply with such order
would in turn be a criminal offence in terms of s 23 of the Labour
Act."

The
Act does not define the word "dismiss" or "dismissal",
nor does it define the word "terminate" or "termination".
In Bridge v Campbell Discount Co. Ltd [1962] All ER 385 at
394 Lord Radcliffe said:

"Terminate is an ambiguous word, since it may refer
to a termination by a right under the agreement or by a condition
incorporated in or by a deliberate breach by one party amounting to a
repudiation of the whole contract."

In
the same judgment his Lordship stated at p. 394H:

"An interpretation of the facts can be derived only
from what we know of the parties' acts or from the issues established
by their pleadings. There is nothing else to go by."

It
is clear to me that when Mr. Heathcote said a dismissal is a
dismissal whatever you may call it, or that everything depends on the
intention of the employer, he was in fact saying that whether a
termination in terms of, for example, s. 50 or 47 amounts to a
dismissal depends on the facts of each particular case and that
determination cannot or should not be made in a vacuum. It follows
that what was to be determined in the present case on the facts as
put before the Court, or the issues established by the pleadings, to
borrow Lord Radcliffe's words, was whether the termination of
respondent's contract of employment in terms of s. 47 amounted to a
dismissal.

The
problem that clouded the arguments on behalf of appellant is of
course the fact that the Du Toit judgment makes some
categorical conclusions as to the applicability or otherwise of ss 45
and 46, which conclusions accord with appellant's stance. But
despite Mr. Heathcote's declaration of support of the reasoning in Du
Toit's case, he in his oral submissions appears to abandon any
reliance on that case when he said:

"… the fault that Mr. Justice O'Linn made and
also that Mr. Justice Maritz made is laying down A or B and losing
sight of the intention of the employer because that is paramount.
Whether there is dismissal or not, in short – an issue of
interpretation of statutes, it is an issue what is going on in the
mind of the employer."

Mr.
Heathcote went on to emphasize that what "is going on" in
the mind of a person is a matter of fact which the court has to
determine and the courts determine on a daily basis, for example
whether a person had intent to kill or was negligent. He said if the
conclusion by O'Linn, J., that section 45 and 46 are not applicable
to termination of contracts by notice duly given etc, etc was "a
finding of a court after he has listened to all the evidence, then
one cannot fault this statement. But if it is something that is said
to exclude (s. 45) in all circumstances, then it is not right because
if one says "it was a termination it can still be a dismissal".

While
I fully agree with this submission, the difficulty I have in this
regard is counsel's application of it to the facts of this case. His
approach to the facts is as follows (in his own words):

"Now look what was the employee's contention. He
says Complainant admits in paragraph 6 that Respondent has complied
with Section 47, but contends that Section 45 applies to termination
of Complainant's contract of employment by Respondent and then very
important, which is also an unfair dismissal within the meaning of
Section 45.1. Now My Lord that must be wrong because and we come
back to the issue where everything has been followed, the reason is
given and all this employee says, he says but because 45 is also
applicable and we say yes, it is applicable it there is a dismissal,
then I must get N$33 000,00. So the statement approached by the
employee was with respect ill conceived. Because what he says to
Your Lordship, he does not contend that the provisions followed and
the notice given by the employer was in fact a dismissal. He says
only because 45 is also applicable it follows that I have been
unfairly dismissed. But what he must first prove My Lord, is in
terms of Section 46 that he was dismissed, not terminated in terms of
47. So as far as the Appeal is concerned, the Appeal with respect
must concede on that basis because and then in paragraph 7 it is
stated. 'If the above Honourable Court should find that Section 45
applies to the termination of the Complainant's employment contract
by Respondent, Respondent admits', it then continues. Not in
general. If Section 45 applies to the termination of Complainant's
employment contract, now no Court with respect My Lord could have
made that founding on the agreed facts. Because the employer, the
employee had to say I say 45 is applicable because what it in fact
amounted to was dismissal not your 'thingy' (this thing) that you
call a termination in 47. So the employee must fail and should have
failed in the Court a quo as well because he never came so far
as to allege or prove that he was dismissed and only then the
presumption will kick in once he has proven that he has been
dismissed and that My Lord, is the fundamental…".

Properly understood in this passage counsel is saying
that the respondent did not first of all, allege that he was unfairly
dismissed, secondly that the respondent merely says s. 45 applies and
that merely because it applies he is entitled to N$33 000,00, and
thirdly that respondent did not prove he was dismissed, he had to
start by proving that. With respect this is a distorted way of
interpreting the respondent's position. The statement of agreed
facts put before the District Labour Court must be read together with
the particulars of the complaint lodged by the respondent (already
quoted above). It was to that complaint that appellant was
responding when he says in paragraph 7.1 of the statement "Respondent
admits that he has not complied with section 45, in that there was no
valid and fair reason for the complainant's dismissal which was also
not in compliance with a fair procedure". In my view the
statement of agreed facts read with respondent's particulars of
complaint placed the matter squarely within the parameters of s 45
which provides in part as follows in subsection (1):

"(1) For purposes of the provisions of section 46
but subject to the provisions of subsection (2) –

1. 
   Any employee dismissed, whether notice has been
   given in accordance with any provision of this Act or any term and
   condition of a contract of employment or collective agreement.

   
   

2. 
   ….., without a valid and fair reason and not in
   compliance with a fair procedure shall be regarded to have been
   dismissed unfairly…",

   
   

and s. 46 which provides as follows in part in subs.
(3):

"(3) When in any proceedings in terms of this
section it is proved that an employee was dismissed from his or her
employment or that any disciplinary action has been taken against
such employee, it shall be presumed that, unless the contrary is
proved by the employer concerned, such employee has been dismissed
unfairly or …".

Later
in his replying submissions Mr. Heathcote conceded that he had
overstated the position taken by him (respondent) when he said
respondent had not alleged that he was unfairly dismissed and that
there was no evidence to that effect. However, he maintained the
assertion that respondent had not proved, as he should have done in
the first place, that the termination of his contract was in fact a
dismissal, respondent should have done so, he said, for the
presumption to kick in. Counsel was of cause relying on subsection
(3) of s. 46 (quoted above).

With
respect it seems to me that the admission in para 7.1 of the
statement of agreed facts read with the complaint lodged by
respondent brings into operation the deeming provision in subs. (3)
of s. 46. Why would he need any further proof when what appellant
admitted amounted to an unfair dismissal; the issues were thus
established right from start. Mr. Heathcote referred the Court to
the case Kloof Gold Mining Co. v National Union of Mineworkers,
1987(1) SA 596 (TPD) where at p. 608 C-D Spoelstra, J., said:

"If an individual employee has been dismissed in
terms of his contract, the dismissal was prima facie fair and
equitable. In the absence of any other facts there is no reason to
suppose that the employer acted in an unreasonable or unfair manner.
Generally speaking, a person who exercises his rights, and more so if
they had been agreed to by the other party, acts in a fair and
reasonable manner."

True
as this statement may be generally speaking, I do not see how it
could be of any assistance to the appellant in light of his admission
to the contrary in the statement of agreed facts.

Unlike
the court in Du Toit's case, the Court a quo in the
present case was called upon to decide whether termination of
respondent's contract in terms of notice in terms of s. 47 of the
Labour Act constitutes a dismissal as contemplated in s. 45(1) of the
Act. In deciding, the Court interpreted the words dismissal and
terminate. Counsel for the appellant inter alia criticized
this interpretation mainly on the ground on which counsel dwelt for a
considerable length of time particularly in his oral submissions,
namely that the Court a quo ignored the intention of the
employer which he said was paramount in determining in each case
whether a termination constitutes a dismissal. I do not agree that
Maritz, J., ignored the intention of the employer the intention is
shown in appellant's admission in paragraph 71 of the statement of
agreed facts, namely to terminate or dismiss by giving notice as he
did "without a valid or fair reason" and not in compliance
with a fair procedure.

To
go further Maritz, J., found that the Du Toit judgment's
conclusions on the applicability of ss. 45 and 46 was obiter.
He briefly reviewed case law on what constitutes obiter dicta
(see pp 19 – 22 of his judgment). With respect, I agree with that
finding; a reading of O'Linn, J.'s, judgment bears support to
Maritz, J's., comment that:

"The ratio on which the Court allowed the appeal
was that Mr. Du Toit's services had not been validly terminated as
required by the Public Service Act and Code, in particular because
'the purported notice did not comply with the requirements of ss
3(d)(i), 3(d)(ii) of s. EXI of the Public Service Staff Code',
because there was no assessment made on whether or not Du Toit's
service would be gainful as envisaged s 10(1)(b)(vi) of the Code and
because 'apparently no discretion was exercised to give reason for
termination in accordance with para (1)(d)(v) of s 3 of chap EXI of
the Code'. It follows that, once it found that Du Toit's contract of
employment had not been validly terminated by notice or otherwise, it
was no longer necessary for the Court to decide whether such a
termination purportedly done under s. 47 of the Act amounted to a
dismissal as contemplated in s. 45 thereof. Hence, the Court's
finding that, upon a proper interpretation of the relevant sections
of the Act, it was not, was an obiter dictum (compare also the
approach of the Supreme Court in Pieter Johan Myburgh v S,
unreported, Case no. SCA 21/2001 dd 14/10/2001, p. 45).

In
the end Mr. Heathcote did not insist that this Court should follow
the Du Toit judgment even if read in the context that it
"decided that, provided the termination of an employee's
contract is bona fide (in the sense that it is not given with
hidden agenda or for reasons proscribed in subparagraph 2(a) - (c) of
section 45), then, and only then the provisions of sections 45 and 46
are not applicable to the provisions of section 47". In any
case the Du Toit case contains a number of rulings on the
issue before this Court some of them very tentative in nature.

In
paragraph 17 of his written submission he referred to Rycroft and
Jordaan, A Guide to South African Labour Law at p. 97 where
the following passage appears:

"Where the contract is for an indefinite period the
employer is also allowed, in the absence of a serious breach by the
employee, to terminate the contract by giving the employee due
notice. But where the termination is for a reason proscribed by
statute, it will remain unlawful despite the fact that proper notice
may have been provided."

This
passage, contrary to Mr. Heathcote's submission, points to the fact
that, the giving of proper notice in terms of section 47 in the
present matter, is not the end of the matter, the question still
remains whether the termination is lawful.

Ms.
Conradie who appeared for the respondent in this appeal submitted,
correctly in my view, that whether or not the termination of the
contract between respondent and appellant was a dismissal or a
termination in terms of s. 47, an unfair dismissal in terms of s. 45,
the whole question turns on the meaning of s. 47 in relation to s. 45
and 46. The question must be asked she said, does s. 47 give the
employer so much liberty that he or she can say I can give an
employee notice just because I don't happen to like him or her
anymore etc. and if I comply with all the formal provisions of s. 47
then that is the end of the matter. If the argument – by counsel
for the appellant were to stand that would leave the door wide open
for employers to do whatever they like and the position of employees
would be no better than it was before the Labour Act was introduced.
She submitted that the notice in terms of s. 47 was indeed a
dismissal which was neither substantively nor procedurally fair, but
unfair because there was not any particularly good reason for it,
"the employer wrote to the employee and said our relationship
has broken down and there was no procedure followed, no hearing
given, the notice was the end of the matter". Counsel referred
to the case Clarke v Ninion and Lester (Pty) (1988) 9 ILJ 651
(IC) where at 655 – 656 it was said that the fact that an agreement
allows an employer to give notice does not mean he can just do that
out of a sense of whim, he still need to follow the procedures. A
List of cases under the Unfair Labour Practice Jurisdiction in South
African held that compliance with the common law or a statutory
provision by giving notice does not mean that, the court is precluded
from examining whether a dismissal was unfair – See Metal and
Allies Workers Union and Others v Barlows Manufacturing Co Ltd (1983)
4 ILJ 283 (IC) particularly the conclusion at 294A; Gumede and
Others v Richdens (Pty) Ltd t/a Richdens Foodliner (1984) 5 ILJ
84 (IC) at 92D-E; Nodlele v Mount Nelson Hotel and Another
(1984) 5 ILJ 216 (IC) at 223 I – 224 D; and Clarke v Ninian and
Lester (Pty) Ltd (1988) 9 ILJ 651 (IC) at 655 E – 656 B.

In
arriving at the meaning of the words dismiss, dismissal,
terminate/termination, Maritz, J., adopted, inter alia, the
contextual approach to interpretation of statutes, as stated by
Schreiner, J.A., in the Jaga and Bhama matter, supra. The
learned President of the Labour Court reasoned as follows:

"Whilst I agree that the words "termination"
and "terminate" generally bear the same meaning where used
in the Act, it refers in a labour context to the legal effect of an
act or event on the continuation of a contract of employment –
their meaning does not in any way limit the manner in which such
effect may legally be brought about or, for that matter, by whom it
may be done. Whilst certain sections of the Act envisage such
termination to follow upon the happening of a particular event (cf. s
48) or by notice given by an employee (cf s 47(1)), others provide
for it to be the consequence of an act by the employer. Section 50
is an example in point. If the collective termination of contracts
of employment may only be brought about by employers and the word
'dismissal' means, according to the appellant, just that, why did the
Legislature in this instance prefer to use the word 'terminate' and
not 'dismiss'? Why did it not use the expression 'collective
dismissal' and isn't that an indication that it intended the word
'dismissal' to have the more limited meaning favoured by O'Linn P?

The short answer is that it was at liberty to use any of
the two – and that it used both when referring to the collective
discharge of employees under s. 50. Although that section only uses
the word 'termination', s 65(4)(b), dealing with the functions of
workplace union representatives, expressly refers to 'the dismissal
of employees referred to in section 50' (emphasis added). This
reference is, in my view, most significant. It strongly commends the
notion that the Legislature intended the word 'dismiss' to bear the
more general meaning of 'dismiss', i.e. an employee's discharge from
service by or at the behest of the employer. Section 65(4)(b)
militates against the more limited meaning attributed to the word by
the Court in Du Toit's case because the discharge of an
employee under s. 50, cannot, on any construction of that section, be
considered as 'dishonourable'. On the contrary, if so discharged,
the employee is a victim of circumstances beyond his or her control.
Unfortunately counsel did not draw attention to the provisions of s
65(4)(b) – neither in this Court nor in Du Toit's case. Had
it been done in that case, O'Linn P might well have come to a
different conclusion on this issue which he in part described as one
of 'profound difficulty and uncertainty where a difference of opinion
is justified' (at 77D).

I am fortified in this conclusion by the remarks of
Silungwe P in NAFAU and 38 Others v United Fishing Enterprises
(unreported Labour Court judgment in Case No. LCA 08/2001 dated
5/4/2002 at p. 7) who declined to accept the reasoning of O'Linn P
that a different 'fairness regime' is provided to regulate s 50
terminations. He reasoned that the provision of a penal sanction in
s 50(2) for non-compliance with the formalities prescribed in s 50(1)
could not have been intended to deprive the affected employees of
civil relief. Such relief is not available under s. 53 of the Act
and he held that it is only to be found within the parameters of ss
45 and 46, i.e. when such termination is also considered as a
dismissal, the fairness whereof may be determined by a Court of Law.
He expressly held that 'the term "dismissal" is not
confined to the termination of a contract of service on grounds of an
employee's misconduct but that it may also encompass termination of a
contract of service on grounds other than misconduct' (at p 10). He
points out that that the full court of the High Court also considered
the termination of services without compliance with s 50(1) as an
'unfair dismissal' under s 45 of the Act in the case of Visagie v
Namibia Development Corporation, 1999 NR 219 at 229G and 230C).

I agree. The criminal sanction provided for in s 50(2)
is only aimed at an employer who contravenes for fails to comply with
the procedure prescribed for in subsection (1). If a restrictive
interpretation is given to 'dismiss' in ss 45 and 46, it will not
only leave the employees dismissed contrary to those provisions
without civil recourse, but also those whose dismissal were
substantively unfair, e.g. when an employer mala fides uses
the guise of 're-organisation' to rid the business of targeted
employees for impermissible reasons such as those mentioned in s
45(2) of the Act or apply methods of selection which are patently
unfair.

It is only when the word 'dismiss' is interpreted to
include any termination of a contract of employment by or at the
behest of an employer that the notion of 'fairness', which lies at
the heart of sound labour elations, is given its rightful place in
the structure of the Act. Historically, the inequality in labour
relations resulted in numerous unfair labour practices leading to
industrial and political tension and conflict. The Act, according to
its preamble, was adopted to further labour relations conducive to
economic growth, stability and productivity by, amongst others,
promoting sound labour relations and fair employment practices. The
concept of fairness permeates the objectives of the Legislature as
they find expression in words used, the relationships envisaged and
the structures and mechanisms, judicial and otherwise, created in the
Act. Employers are required to treat their employees fairly and the
converse holds equally true.

The restrictive interpretation given to the word
'dismiss' in Du Toit's case, detracts, with respect,
substantially from that objective and gives rise to a number of
difficulties – even injustices and absurdities. I have already
referred to some of them in the context of s 50 of the Act. If I were
to apply that interpretation to s 47, it would leave the door wide
open for employers to terminate by notice the employment of unwanted
employees for no good reason at all. Cold, must be the comfort
derived by an employee from the assurance in Du Toit's-case
(at 76G-I) that he or she may still invoke the protection of ss 45
and 46 against unfair dismissal if the reason for the termination of
his or her services as stated on a certificate of employment under s
51(1)(g) relates to misconduct or incapability. It would be easy for
a less than frank employer to give a multitude of reasons unrelated
to misconduct or incapability on the part of the employee for such
termination, thereby avoiding the requirement of procedural and
substantive fairness in s 45. It would be near impossible for an
employee to prove that such a termination by notice in substance
amounts to a dismissal and is subject to s 45. That interpretation
will render the fairness requirement for dismissals illusionary.
Take the example of an employer who wishes to get rid of a female
employee because of her gender (he simply does not wish to bear the
additional burden of granting her maternity leave) or because he
suspects that she had given certain information to the Labour
Commissioner (or because of any other reason on account of which an
employee may not be dismissed under 2 45(2) of the Act.) All the
employer has to do to avoid the legal consequences of those
provisions is to give her notice of termination, dishonestly invent
an innocent reason for such termination and otherwise comply with ss
47, 49, 51 and 52 of the Act. The Legislature was, in my view, alert
to the possibility that employers may wish to circumvent the
requirement of procedural and substantive fairness demanded by s 45
in that manner. It is precisely for that reason that it expressly
stipulated that s 45(1) would apply to all employees dismissed
'whether or not notice had been given in accordance with any
provision of this Act…'. The only notices bearing on contracts of
employment provided for in the Act are those referred to in ss 47(1)
and 50(1)."

That
interpretation of the two terms is supported by the comment by
Cameron, Cheadle and Thompson in The New Labour Relations Act (the
Law after the 1988 amendments) namely:

"Dismissal is the termination of the employment
relationship at the behest of the employer. Termination is the wider
category encompassing the termination at the instance of the
employee, the employer and the operation of law" (at 143).

Other
academic writer comment to the same effect that dismissal is an
action undertaken by an employer leading to a termination of the
employment and like the Concise Oxford Dictionary, do not confine the
definition of 'dismiss' to dishonourable discharge. As Ms. Conradie
pointed out "all the sections in Part IV of the Act are
concerned with the termination of contracts of employment" as
per the heading "Termination of Contracts of employment and
unfair disciplinary action".

The
Court a quo answered the question posed when it spelt out the
essence of the dispute between the parties with reference to the
facts or pleadings which were put before the District Labour Court.
The Court also interpreted the words dismissal and termination in the
context of the Labour Act as a whole. In the former instance it
found support in sound precedents. I can find no ground to fault the
Court's conclusions.

In the result the appeal is dismissed.

_________________________

MTAMBANENGWE, A.C.J.

I agree.

________________________

TEEK, J.A.

I agree.

________________________

SHIVUTE, A.J.A.