LAIMI DESSA ONESMUS v MINISTER OF LABOUR AND ANOTHER
CASE NO. (P) A 144/2002
Constitution – Art. 80(2) – confers original jurisdiction on High Court to protect Constitution and fundamental rights –Article creating both the power and duty to exercise such jurisdiction – jurisdiction in those matters not derived from statute – Legislature may not diminish those powers
Constitution – Articles 25 and 78-81 – design of complete constitutional structure for the judicial protection of Constitution and fundamental rights – such jurisdiction of High Court exercised not by licence of Parliament
Constitution – Articles 78 and 83 – Unlike Superior Courts, all other Courts of Namibia established by Acts of Parliament – such Courts by constitutional design “Lower Courts” – Labour Court a Lower Court
Jurisdiction – High Court – original jurisdiction to protect Constitution and fundamental rights – establishment of specialist Courts with “exclusive jurisdiction” by Acts of Parliament, including protection of fundamental rights within area of specialisation – if legitimate, piecemeal assignation of High Court’s constitutional jurisdiction may leave Court powerless – such statutory erosion not permissible
Jurisdiction – High Court – original constitutional jurisdiction to protect Constitution and fundamental rights - exclusive statutory jurisdiction of Labour Court, including jurisdiction to make declaratory orders relating to protection of fundamental rights in labour context - effect of s.18(1) of Labour Act purporting to amend High Court’s jurisdiction under Art 80(2) by diminishing it – Labour Act not intended to bring about constitutional amendment and not complying in substance or form to that required by Art 132 – High Court to exercise jurisdiction protecting Constitution and fundamental rights under Art 80(2) as if Labour Act has not been promulgated – Supreme Law to take precedence over statute
Labour law – Labour Act – s.18(1) – effect of Cronje-judgement to accord Labour Court jurisdiction to make declaratory orders regarding protection of fundamental rights in labour context – such therefore by implication falling within “exclusive” jurisdiction of Labour Court – so applied, word “exclusive” in 18(1) diminishing constitutional jurisdiction of original nature vested by Art 80(2) in High Court – effect unconstitutional – Court not finding it necessary to strike out “exclusive” but simply dismissing objection against High Court’s jurisdiction by applying Art 80(2)
CASE NO. (P) A144/2002
IN THE HIGH COURT OF NAMIBIA
In the matter between:
LAIMI DESSA ONESMUS
MINISTER OF LABOUR
THE SOCIAL SECURITY COMMISSION
2004-06-04 and 2004-07-07
REASONS FOR JUDGEMENT
MARITZ, J:  This matter concerns the jurisdiction of the High Court of Namibia. More in particular, it raises the question whether the power vested in it to protect the Constitution and the fundamental rights and freedoms guaranteed thereunder has - or could have - been curtailed in the context of labour disputes by the exclusive jurisdiction conferred on the Labour Court by statute. The first respondent contended that its jurisdiction had been excluded. The applicant contested the contention. The Court found for the applicant. What follows are the reasons for the order made.
The applicant, who had been appointed as Chief Executive Officer of the Social Service Commission, was temporarily removed from office for an indefinite period by the first respondent. He believed her to be guilty of misconduct so serious that she would be unsuitable to continue in her office. Surprised and aggrieved by her summary removal, the applicant sought to obtain the reasons for it from the first respondent. When the reasons were not forthcoming, she launched an application in this Court for the following relief:
Ordering that the decision taken by the first respondent on or about 25 February 2002 to temporarily remove applicant from her office as chief executive officer of the second respondent, purportedly in terms of Section 6(2), read together with Section 12(3) of the Social Security Act, Act No. 34 of 1994, and in line with Cabinet Decision No. 37 th/04.12.01/008, be reviewed and set aside in terms of Rule of Court 53(l)(a).
Ordering that the said decision be declared to be in conflict with Article 18 of the Constitution and set aside.
Directing the first respondent to pay the costs of the application on an attorney and client basis, and in the event of the second respondent opposing the application, jointly and severally with the second respondent.”
In response, the first respondent gave notice of his intention to raise the point of jurisdiction in limine. The notice reads:
The relief claimed by the applicant in the context of the facts as stated by her in her founding affidavit relates to and concerns:
the setting aside of a decision taken by the first respondent in his capacity as the Minister of Labour and Manpower Development, which decision relates to the administration of the provisions the Labour Act, 1992 (Act 6 of 1992) and/or
is a labour matter or complaint as envisaged in sections 18 and/or 19 of the Labour Act, 1992 (Act 6 of 1992).