Shikwetepo v Khomas Regional Council and Others (Case No.: A364/2008 ) [2008] NAHC 151 (24 December 2008);

Group

Full judgment


Case No.: A364/2008



SUMMARY SPECIAL INTEREST



HAIDONGO SHIKWETEPO vs. KHOMAS REGIONAL COUNCIL AND OTHERS


Heard on: 2008 December 16

Delivered on: 2008 December 24 PARKER, J

_____________________________________________________________


Practice - Applications and Motions – Jurisdiction of High

Court (sitting a High Court) raised in limine – Consequently, Court not competent to deal with issue of urgency and merits of application unless jurisdiction challenge has first been determined.


Jurisdiction - “Inherent” jurisdiction – Meaning of – Submission

that High Court has “inherent” jurisdiction without explaining the meaning and content thereof makes the term amorphous, meaningless and irrelevant to apply in instant case or any other case.


Jurisdiction - High Court’s “inherent” review jurisdiction –

Meaning and content of – Court finding that assumption that High Court’s review jurisdiction was inherited from Roman-Dutch law is false – High Court “inherent” review jurisdiction flows logically, i.e. “inherently”, from ultra vires doctrine – Object of doctrine.


Administrative law - Administrative justice – Doctrine of ultra vires

Doctrine encompasses substantive and procedural ultra vires – Court finding that in context of judicial control of acts of administrative bodies and administrative officials the doctrine has found expression in Article 18 of Namibian Constitution – Article 18 requirements embrace and widen common law requirements of administrative justice.


Constitutional law - Enforcement of fundamental rights and freedoms –

In terms of Article 25 of Namibian Constitution – Court finding that any “competent” Court may enforce the rights guaranteed by the Constitution.


Labour law - Labour Court – Unlike the Labour Court under the repealed Labour Act, 1992 (Act No. 6 of 1992), the Labour Court under the Labour Act, 2007 (Act No. 11 of 2007) is not a “lower court” but a division of the High Court, and, therefore, competent to exercise all the powers of the High Court.


Labour law - Labour Court – Exclusive review jurisdiction of in

terms of s 117 (1) (c) of Act No. 11 of 2007 – Court finding Labour Court “competent” court in terms of Article 25 (2) of Namibian Constitution to enforce right to administrative justice under Article 18 of the Constitution.


Labour law - Legislation – Section 117 (1) (c) of Act No. 11 of

2007 – Court finding that provision not shown to be inconsistent with Namibian Constitution – Consequently, provision valid and applicable.


Labour law - Legislation – Act No. 11 of 2007 – Objects of –

Objects contained in the long title and preambular clauses of the Act.


Labour law - Legislation – Act No. 6 of 1992 (the repealed

Labour Act) – Paragraphs (b) (i), (d), (f) and (g) of s 18 (1) thereof read intertextually give the Labour Court under Act No. 6 of 1992 extensive powers, with wide import.



Labour law - Legislation – Section 117 (1) (c) of Act No. 11 of

2007 – Court finding applicant’s application fell within purview of item 15 (2) of Schedule 1 of that Act.


Held, the Court (sitting as the High Court) being merely told it has “inherent” jurisdiction to hear applicant’s application does not assist the Court in making a determination.


Held, further, the use of the term “inherent” jurisdiction must be related to a particular aspect of a particular law for the term to have meaning and content in a particular situation.

Held, further, “Inherent” in “inherent review jurisdiction” of the High Court means “logically inherent” rather than “inherited”.


Held, further, the assumption that the High Court’s review jurisdiction was “inherited” from Roman-Dutch law is false.


Held, accordingly, “Inherent jurisdiction of the High Court to review acts of administrative bodies and administrative officials flows logically, i.e. “inherently”, from the ultra vires doctrine whose object is the control of governmental action (or inaction), i.e. acts of administrative bodies and administrative officials within the meaning of Article 18 of the Namibian Constitution, but not inherited from Roman-Dutch law.


Held, the Labour Court under the Labour Act, 2007 is, unlike, the Labour Court under the repealed Labour Act, 1992, not a lower court.


Held, accordingly, the Labour Court under the Labour Act, 2007, being a division of the High Court, is a “competent court” within the meaning of Article 25 (2) of the Namibian Constitution.


Held, further, the decisions in National Union of Namibian Workers v Naholo 2006 (2) NR 659 and Laimi Dessa Onesmus v Minister of Labour and another Case No.: (P) A 144/2002 (Unreported) are, therefore, rendered irrelevant and inapplicable in determining the question of the Labour Court’s exclusive review jurisdiction under the Labour Act, 2007.


Held, further, an applicant is not permitted or entitled to go forum-shopping when s 117 (1) (c) of Labour Act, 2007 provides clearly that the Labour Court has exclusive review jurisdiction, notwithstanding anything to the contrary contained in any other Act, so long as the act sought to be reviewed concerns a matter within the scope of the Labour Act.




SPECIAL INTEREST


CASE NO.: A 364/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

HAIDONGO SHIKWETEPO Applicant

and

KHOMAS REGIONAL COUNCIL 1st Respondent

MINISTER OF REGIONAL AND LOCAL

GOVERNMENT, HOUSING AND

RURAL DEVELOPMENT 2nd Respondent

THE PUBLIC SERVICE COMMISSION 3rd Respondent

PRIME MINISTER 4th Respondent


CORAM: PARKER, J

Heard on: 2008 December 16

Delivered on: 2008 December 24

______________________________________________

JUDGEMENT:

PARKER, J.:

[1] In this matter, application is made by the applicant in which he has prayed for orders in the following terms:


(a) Condoning the non-compliance with the Rules of this Honourable Court and hearing the application for the interim relief set out in (b), (c) and (d) below on an urgent basis as is envisaged in Rule 6 (12) of the High court Rules.


(b) Reviewing and correcting or setting aside the first Respondent’s decision not to extend the applicant’s term of office as the Khomas Chief Regional Officer taken on/or about 24 October 2008 and directing the respondents extend the applicant’s term of office for five years from January 2009, pending the finalization of the application for reviewing the purported decision referred to below and which application is served herewith and set out below;


(c) Directing that the order granted under paragraph (b) operates as an interim relief with immediate effect.


(d) Directing that the respondents pay the applicant’s costs relating to the interim relief;


(e) Granting the applicant such further alternate relief as this Honourable Court deems fit.


[2] The applicant is represented by Mr. Namandje, and the 1st respondent by Ms Schimming-Chase. The Government Attorney filed notice to oppose the application on behalf of the 2nd, 3rd and 4th respondents, but there was no appearance for them during the hearing of the application. I asked Mr. Namandje why the 2nd respondent was cited. His answer, as far as I could gather, was that the 2nd respondent (the Minister of Regional and Local Government, Housing and Rural Development) has an interest in the outcome of the application. I think the better view I take is that the 2nd respondent being the Minister responsible for the administration of the applicable statute in this matter has a substantial interest in the outcome of the application, and I proceed on that view.


[3] At the commencement of the hearing of the application, Ms Schimming-Chase, raised two points in limine, to wit, opposing the applicant’s prayer that the matter be heard on urgent basis and also that this Court (sitting as the High Court) has no jurisdiction to hear the application. I use the words “sitting as the High Court” advisedly, as will become apparent in due course. I informed both counsel that since a challenge to the jurisdiction of the High Court (sitting as the High Court) has been raised at the threshold, it would be a futile exercise for me to deal with any substantive matters, including the urgency issue and the merits of the case. Consequently, I asked both counsel to argue on the jurisdiction issue only. The reason is that if the jurisdiction of this Court, sitting as the High Court, was being challenged at the threshold, it would not be competent for this Court to determine anything else without first deciding the issue of jurisdiction; that is, without deciding whether it has jurisdiction, in the first place, to determine anything about the application, including whether it should be heard on urgent basis. In sum, what I am presently deciding in this judgment is solely the question of jurisdiction.


[4] The gravamen of Ms Schimming-Chase’s argument runs like this: the application falls to be considered in terms of the Labour Act 2007 (Act No. 11 of 2007), which came into operation on 1 November 2008 (GN No. 260 of 2008). According to s 117 (1) of the Labour Act 2007, counsel’s argument continues, the Labour Court has exclusive jurisdiction to –


  1. review, despite any other provision of any Act, any decision of any body or official provided for in terms of any other Act, if the decision concerns a matter within the scope of this Act.


The decision which the applicant challenges in the present application concerns a matter within the scope of this Act. Ergo, the High Court, sitting as the High Court, has no jurisdiction to hear either the applicant’s urgent application or the application for review in the ordinary course.


[5] The talisman on which Ms Schimming-Chase hangs her submission appears to be the interpretation and application of s 117 (1) (c), more particularly the categorical phrase “despite any other provision of any Act”.


[6] Mr. Namandje argued contrariwise in this way. The High Court has inherent jurisdiction to review the decision of any administrative body or official within the meaning of Article 18 of the Namibian Constitution and s 117 (1) (c) cannot oust the High Court’s “inherent” power; and the decision the applicant challenges is that of an administrative body. In support of his submission Mr. Namandje referred to me the High Court decisions in National Union of Namibian Workers v Naholo 2006 (2) NR 659 and Laimi Dessa Onesmus v Minister of Labour and another Case No.: (P) A 144/2002 (Unreported). I cannot see how Onesmus supra and Naholo supra assist this Court. I say so for many reasons; but to start with, no attempt was, with the greatest deference, made in those two cases to determine the meaning of the term “inherent” in the context of the review power of the High Court of acts of administrative bodies and administrative officials, or at all. I make this observation merely to draw in the point that, as I will demonstrate shortly, it does not assist this Court merely to be told that the High Court has “inherent” jurisdiction and, therefore, this Court, sitting as the High Court, has the power to hear the present application. Such submission gives no meaning and content to the term; such submission renders the term “inherent” jurisdiction amorphous and meaningless and, therefore, irrelevant for the present purposes.


[7] Be that as it may, I now proceed to consider the meaning and content of the term “inherent” jurisdiction in relation to the review jurisdiction of the High Court concerning acts of administrative bodies and administrative officials, as adverted to by Mr. Namandje, as aforesaid, because, as I have already said, that is what the present application is all about, not about the inherent jurisdiction of the High Court at large and globally.


[8] It has frequently been asserted that the High Court enjoys “inherent” jurisdiction to review administrative actions as Mr. Namandje did in the instant case. (See e.g. the landmark case of Johannesburg Consolidated Investment Co. v Johannesburg Town Council 1903 TS 111 at 115.) And it has also been said that it ought to be understood that by “inherent” is meant “logically inherent” rather than “inherited”. In this regard, Vieyra, J observed in Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T) at 285G that the latter form of jurisdiction may be diminished or limited by statute; and, in any case, Dr. Taitz has demonstrated authoritatively that the assumption that the High Court’s review jurisdiction of acts of administrative bodies and officials was inherited from Roman-Dutch law is false (The Inherent Review Jurisdiction of the Supreme Court, LLD Thesis, University of Cape Town: 1984) (Quoted in Baxter, Administrative Law, 1984: p. 304).


[9] It follows that in my opinion the “inherent” jurisdiction of the High Court to review acts of administrative bodies and administrative officials flow logically, i.e. “inherently”, from the ultra vires doctrine whose object is the control of governmental action or, indeed, inaction; but not “inherited” from Roman-Dutch law. That is the meaning and signification of the term “inherent” jurisdiction in the context of judicial review by the High Court of acts of administrative bodies and administrative officials; and that is the meaning that is apropos and relevant to the issue at hand in the present matter. But to use the term “inherent” jurisdiction at large, without reference to any particular aspect of any particular law, is, with respect, meaningless, empty and otiose.


[10] In our law, the object of the review power of the High Court of acts of administrative bodies and administrative officials is to control such acts by correcting them or setting them aside where such acts are found to be ultra vires the administrative body or administrative official; which vires must be traceable to a statute. By so acting, the High Court protects the basic rights of persons guaranteed to them by the Namibian Constitution; in the instant case, the right to administrative justice under Article 18 of the Constitution. It may be mentioned in parentheses that ultra vires in the context of Administrative law encompasses procedural and substantive ultra vires. But more important and for the present purposes, it is this doctrine of ultra vires in the context of judicial control of acts of administrative bodies and administrative officials that has found expression in Article 18 of the Namibian Constitution.


[11] Thus, the essence of Article 18 of the Constitution is the articulation of the basic requirements, which embrace and widen the common law requirements of ‘administrative justice’; and it is these minimum requirements that a Court must take into account when undertaking judicial review of acts of administrative bodies and administrative officials. In other words, the Article 18 requirements are the minimum Constitutional requirements that a Court must apply when deciding whether an administrative body or administrative official has acted ultra vires; that is, whether there has been a failure of administrative justice within the meaning of Article 18 of the Namibian Constitution. That is the object of Article 18. In this regard and for the present purposes it is vital to flag the point that these requirements are not within the exclusive domain of the High Court, sitting as the High Court. In exercising its exclusive review power under s 117 (1) (c) of the Labour Act, 2007, the Labour Court is bound to apply the administrative justice requirements set out in Article 18 of the Constitution; that is, as Ms Schimming-Chase put it in her submission, “Article 18 will always be used” by the Labour Court. In that case – and this is important – a person aggrieved by an act of an administrative body or administrative official and who seeks redress is not prejudiced in any way if he or she is enjoined by statute – which is constitutionally valid, as I have observed previously – that he or she can seek redress in only the Labour Court. After all – and this must also be borne in mind because it is critical to an appreciation of the point under consideration – under Article 25 of the Namibian Constitution, intituled “Enforcement of Fundamental Rights and Freedoms”,


(2) Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such a right or freedom, and may approach the Ombudsman to provide them with such legal assistance or advice as they require, and the Ombudsman shall have the discretion in response thereto to provide such legal or other assistance as he or she may consider expedient. [My emphasis]



[12] It was not argued by Mr. Namandje – and neither would he have been successful, if he had done so – that the Labour Court under the Labour Act, 2007, which, in terms of s 115 thereof is a division of the High Court, is not a “competent court” within the meaning of Article 25 (2) of the Constitution.


[13] It is my view, therefore, that the Labour Court established in terms of the Labour Act 2007 is a competent court within the meaning of Article 25 (2) of the Namibian Constitution; and is capable of protecting the basic human right guaranteed to the applicant by Article 18 of the Namibian Constitution, because, as I have already demonstrated, that Court is also bound in terms of the Constitution to apply the Article 18 requirements in the exercise of its exclusive review jurisdiction under the Labour Act and a fortiori it is a division of the High Court. It is not, unlike the Labour Court under the repealed Labour Act 1992, a “Lower Court” (see Laimi Dessa Onesmus supra at p. 14). Accordingly, the Labour Court, being a division of the High Court, has inherent powers. Furthermore, since it is a division of the High Court, its judgments and orders are appealable to the Supreme Court; and so the Labour Court is not “a ‘specialist’ court with final jurisdiction to adjudicate a particular constitutional issue” – to borrow the words of Maritz, J (as he then was) in Laimi Dessa Onesmus supra at p. 15.


[14] From all the above analyses and conclusions and reasons therefor, I come to the following irrefragable and reasonable conclusion: by enacting s 117 (1) (c) of the Labour Act, 2007, the Parliament has not ‘notionally’ amended the Constitution, i.e. “at least to the extent that the High Court would no longer have jurisdiction in matters it previously had under the Constitution” – again to respectfully borrow the words of Maritz, J (as he then was) in Laimi Dessa Onesmus supra loc. cit.; and a priori, the application of s 117 (1) (c) is not inconsistent with the Constitution, if regard is had to (1) that the Labour Court is a division of the High Court, and (2) that in the exercise of its exclusive review power under s 117 (1) (c), the Labour Court must apply the Article 18 requirements. In sum, it cannot be controverted that the Labour Court is capable of exercising all the powers of the High Court referred to in Article 80 (2) of the Namibian Constitution, particularly, where an aggrieved person seeks to enforce his or her right under Article 18, as is the case in the present matter, so long as the matter he or she is dissatisfied with is within the scope of the Labour Act 2007, as is also the case in the present matter, as I shall demonstrate in due course.


[15] For all the above considerations and conclusions, I do not think Naholo supra is of any real assistance to the point under consideration. To start with, Naholo was decided, as Ms Schimming-Chase correctly submitted, on the interpretation and application of s 15, s 16 and s 18 of the repealed Labour Act, 1992; and I find that those provisions are poles apart from the provisions of s 115 and s 117 of the Labour Act, 2007. Furthermore, it must be remembered that in Naholo, as to the jurisdictional challenge, the tussle was between the High Court and the district labour court. In casu, there cannot be any tussle between the Labour Court and the High Court because the Labour Court is a division of the High Court; and so for that reason, any “inherent” jurisdiction that the High Court has in terms of any Act or any law, the Labour Court is entitled to exercise it. By a parity of reasoning, the fears and concerns raised by the High Court in Laimi Dessa Onesmus supra bearing on the constitutional challenge in casu no longer exist; and so the decision in that case touching on the jurisdictional challenge is also not of any real assistance on the point under consideration. In this regard, I respectfully accept Ms Schimming-Chase’s submission that the Labour Act, 2007 has conflicted with the decision in Laimi Dessa Onesmus supra concerning the jurisdiction of the Labour Court; that is, the Labour Court under the Labour Act, 2007. But, I think even the better view is that the Labour Act, 2007 has effectively rendered the decision in Laimi Dessa Onesmus (and also in Naholo) absolutely irrelevant and totally inapplicable as far as the jurisdiction of the Labour Court under the Labour Act, 2007 is concerned. In this regard, I also respectfully accept Ms Schimming-Chase’s submission that the South African authorities inasmuch as they are set up to support the argument that the Namibian Labour Court cannot enjoy exclusive review jurisdiction are absolutely irrelevant and of no use at all and, therefore, cannot offer any real assistance on the consideration of the point in hand.


[16] Having disposed of the issue of “inherent” review jurisdiction of the High Court, sitting as the High Court, vis-à-vis the exclusive review jurisdiction of the Labour Court in terms of the Labour Court, 2007, the next first logical port of call in deciding the jurisdiction challenge is indubitably the interpretation and application of s 117 (1) (c) of the Labour Act, 2007. In this connection, I state at the outset, as I have already held, that as far as I am aware, the constitutionality and, therefore, validity, of s 117 (1) (c) has not been challenged in any competent court, and Mr. Namandje does not seek to do so in these proceedings. It follows that up to this point in time s 117 (1) (c) of the Labour Act 2007 is consistent with the Namibian Constitution, the Supreme Law, and, therefore, valid; and consequently, this Court has a bounden duty to give effect to that provision by applying it – and applying it, it must to the fullest extent. Accordingly, in my opinion, no amount of hullabaloo about the “inherent” jurisdiction of the High Court can legally wish away a provision in legislation, a written law, which a fortiori is, as matters stand, consistent with the Namibian Constitution, as I have said ad nauseam, and, therefore, an applicable law.


[17] I pass to interpret and apply s 117 (1) (c) of the Labour Act 2007 which provides:


The Labour Court has exclusive jurisdiction to –


(c) review, despite any other provision of any Act, any decision of any body or official provided for in terms of any other Act, if the decision concerns a matter within the scope of this Act; … [My emphasis]


[18] On the approaches to the interpretation of statute I remarked as follows in Jacob Alexander v The Minister of Justice and others Case No.:A210/2007 (Unreported) at p.18:


As I said in Japhta Jacobs v The State Case No.: 198/2007 (Unreported), it is trite that in interpreting statute, recourse should first be had to the golden rule of construction. In Paxton v Namibia Rand Desert Trails (Pty) Ltd 1996 NR 109 at 111A-C, and Sheehama v Inspector-General of Namibia Police 2006 (1) NR 106 at 114G-I, this Court relied on the restatement of the golden rule by Joubert, JA in Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3) SA 800 (A) at 804B-C in the following passage:


The plain meaning of the language in a statute is the safest guide to follow in construing the statute. According to the golden or general rule of construction the words of a statute must be given their ordinary, literal and grammatical meaning and if by so doing it is ascertained that the words are clear and unambiguous, then effect should be given to their ordinary meaning unless it is apparent that such a literal construction falls within one of those exceptional cases in which it would be permissible for a court of law to depart from such a literal construction, e.g. where it leads to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative intent. See Venter v Rex 1907 TS 910 at 913-14, Johannesburg Municipality v Cohen’s Trustees 1909 TS 811 at 813-14, Senker v The Master and Another 1936 AD 136 at 142; Ebrahim v Minister of The Interior 1977 (1) SA 665 (A) at 678A-G.



In Tinkham v Perry [1951] 1 All ER 249 at 250E, which Hannah, J cited with approval in Engels v Allied Chemical Manufacturers (Pty) Ltd and another 1992 NR 372 at 380F-G, Evershed, MR said:


Plainly, words should not be added by implication into the language of a statute unless it is necessary to do so to give the paragraph sense and meaning in its context.


[19] The plain meaning of the language in s 117 (1) (c) of the Labour Act, 2007 respecting the Labour Court’s exclusive review jurisdiction is that notwithstanding anything to the contrary contained in any Act, the Labour Court enjoys review jurisdiction in terms of the Labour Act, 2007 to the exclusion of all other courts, including the High Court, sitting as the High Court. (As I have already demonstrated, I use “sitting as” advisedly.) The ordinary, literal and grammatical meaning of the phrase “despite any other provision of any Act” is that s 117 (1) (c) prevails over any inconsistent provision in any other Act. (See Thornton, Legislative Drafting (1987): p 88.) Thus, notwithstanding anything to the contrary contained in any other Act, the Labour Court’s exclusive review power in terms of the Labour Act, 2007 is exclusive to the Labour Court. Accordingly, if s 117 (1) (c) is in conflict with any other provision in any other Act, s 117 (1) (c) comes off best. I find that there is no ambiguity in the provisions; and the meaning I have given to the provisions are in tune with the clear intention of the Parliament expressed clearly and unambiguously in s 117 (1) (c) of the Labour Act, 2007.


[20] In this connection and for the reasons I have outlined previously, it must, for the avoidance of doubt and ex abundanti cautela, be stated that s 117 (1) (c) is not in conflict with s 2 of the High Court Act; a fortiori, since the Labour Court is a division of the High Court. Section 2 reads:


The High Court shall have jurisdiction to hear and to determine all matters which may be conferred or imposed upon it by this Act (i.e. the High Court Act) or the Namibian Constitution or any other law.




[21] Thus, what s 117 (1) (c) has done – in essence – is that it has created a division of the High Court which is the only forum that has the jurisdiction – and it shares that jurisdiction with no other Court – to review acts of administrative bodies and administrative officials so long as such acts concern matters within the scope of the Labour Act, 2007.


[22] For all the above analyses and conclusions and reasons therefor, I make the following reasonable and inexorable conclusions. The applicant is neither permitted nor entitled to go forum-shopping for the following reasons; on that score I respectfully accept Ms Schimming-Chase’s submission. The applicable law, the Labour Act, 2007 says clearly, as I have already demonstrated, that the Labour Court, which is a division of the High Court, has exclusive jurisdiction to review, irrespective of any provision of any other Act to the contrary, any act of an administrative body or administrative official provided for in terms of any other Act, so long as the act concerns a matter that falls within the scope of the Labour Act, 2007. Moreover, in casu, the act (i.e. the decision taken by the 1st respondent not to extend the contract of employment with it) sought to be reviewed and corrected or set aside by the applicant was done (or taken) in terms of the Regional Councils Act, 1992 (Act No. 22 of 1992). Furthermore, it cannot be disputed that the decision concerns a matter which is within the scope of the Labour Act 2007. In this regard, it is worth noting that the matters that are within the scope of the Labour Act, 2007 are set out in general terms in its long title and its preambular clauses.

[23] The last issue remaining to be determined is whether the Labour Act, 2007 applies to the present application. Ms Schimming-Chase says, it does, but Mr. Namandje says otherwise. The answer, in my view, lies in the interpretation and application of item 15 (2) of Schedule 1 of the Labour Act, 2007. Schedule 1 contains transitional provisions. Item 15 of Schedule 1 inasmuch as it is relevant to the point under consideration provides:


A dispute that –

  1. arose in terms of circumstances that occurred before the effective date; and

  2. could have been brought before a district Labour Court, or before the Labour Court, in terms of any provision of the previous Act; but

  3. was not pending before district Labour Court, or the Labour Court, as the case may be, on the effective date,

must be proceeded with in terms of this Act. (My emphasis)



[24] From the papers, it seems to me clear that it is not disputed that the dispute in casu arose in circumstances that occurred before the effective date, which is 1 November 2008, being the date on which the Labour Act 2007, including s 115 and 117 thereof, came into operation (Government Notice No. 260 of 2008). This conclusion disposes of item 15 (2) (a). The next question is under item 15 (2) (b); namely, could the present matter have been brought before the Labour Court, in terms of any provision of the repealed Labour Act 1992? Ms Schimming-Chase’s answer was in the affirmative. Mr. Namandje took the opposite view. On this question I must direct my attention to s 18 (1) of the repealed Labour Act 1992 which reads:


Jurisdiction and powers of Labour Court


18. (1) The Labour Court shall have exclusive jurisdiction –


(a) to hear and determine –


    1. any appeal from any district labour court;


    1. any appeal noted in terms of section 54 (4), 68 (7), 70 (6), 95 (4), 100 (2) or 114 (6);


  1. to consider and give a decision on –


    1. any application made to the Labour Court in accordance with the provisions of this Part in terms of any provisions of this Act;


    1. any application to review and set aside or correct any decision taken by the Minister or the Permanent Secretary, the Commissioner, any inceptor or any officer involved in the administration of the provisions of this Act;


  1. to review the proceedings of any district labour court brought under review on the grounds mutatis mutandis referred to in section 20 of the High Court Act, 1990 (Act 16 of 1990);


  1. to grant in any application referred to in paragraph (b) or (c) any urgent interim relief until a final order has been made in terms of the said paragraph (b) or (c).


  1. 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;


  1. 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;


  1. 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, or any other law or the common law.


[25] The answer to the question under item 15 (2) (b) of Schedule 1 lies in the interpretation and application intertextually of paragraphs (b) (i), (d), (f) and (g) of s 18 (1) of the repealed Labour Act 1992, which contained some of the functions of the Labour Court in terms of the repealed Labour Act. In terms of paragraph (b) (i) of that Act, the Labour Court had exclusive jurisdiction to consider and give a decision on any application made to the Labour Court in accordance with the provisions of this Part (i.e. Part IV which dealt with the Labour Court and the district labour court) in terms of any provisions of the repealed Labour Act. Part IV provided for the procedures whereby applications in terms of any provision of that Act could have been made to the Labour Court and the district labour court. Paragraph (d) of s 18 (1) empowered the Labour Court to grant urgent interim relief pending finalization of an application brought in terms of paragraph (b) (or paragraph (c)) thereof. Paragraph (f) of s 18 (1) gave the Labour Court exclusive power to make any order which it was not only authorized to make under any provision of the repealed Act, but also where the circumstances required that it could make such an order so as to give effect to the objects of the repealed Labour Act. Those objects were set out in the long title of that Act. For the purposes of the present matter those objects that are apposite and must be highlighted are: (1) regulation of conditions of employment of employees, (2) regulation of termination of contracts of employment, and (3) settlement of disputes between employees and employers. This is the ‘clincher’, so to speak, with regard to the point under consideration: according to paragraph (g) of s 18 (1), the Labour Court could generally deal with all matters that were either “necessary” or “incidental” to the performance of its functions (some of which I have set out above); and more important, the functions included any labour matter “whether or not” such matter was governed by the repealed Labour Act or “any other law” or “the common law”.


[26] With such plenitude of functions, I do not think it can seriously be argued that the applicant could not have brought his application which (1) concerned a settlement of a dispute between him and his employer (the 1st respondent), (2) which concerned a condition of his employment, and (3) which concerned termination of his employment, to the Labour Court under the repealed Labour Act 1992. As the Supreme Court (per O’Linn, AJA) correctly observed in Cronje v Municipality Council of Mariental NLLP 2004 (4) 129 NSC at 156, the “objects” referred to in s 18 (1) (f) is a term with wide import, and also that “‘its functions under this Act’ in subsection (g) are similarly words of wide import.” Thus, if paragraphs (b) (i), (d), (f) and (g) of s 18 (1) are read intertextually, it will be seen that the Labour Court under the repealed Labour Act had extensive powers with wide import. (Cronje supra)


[27] For all the above, it is my opinion that the applicant could have brought the application for an urgent interim interdict before the Labour Court under the repealed Labour Act 1992 for the relief he now seeks. But then, Mr. Namandje argued that the applicant could not, because the exclusive jurisdiction of the Labour Court under s 18 of the repealed Labour Act had been rejected by the courts. He referred to me Cronje supra, particularly. I do not think Mr. Namandje is correct. In Cronje the Supreme Court held that s 18 (1) (g) of the repealed Labour Act 1992 provided for a power to deal with all matters necessary or incidental to that Court’s functions under the repealed Act, whether or not it was governed by the provisions of the repealed Labour Act, any other law (e.g. the Regional Councils Act 1992) or the common law. The Supreme Court also held that although generally the Labour Court under the repealed Act 1992 had no inherent jurisdiction but s 18 on its own gave very extensive powers, with wide import, to the Labour Court. In any case, it did not matter whether the Labour Court under the repealed Labour Act 1992 did not have exclusive jurisdiction to have dealt with the applicant’s application because the High Court had concurrent jurisdiction in the matter. (See Naholo supra.) But that would not for that reason alone mean that the applicant could not have brought his application before the Labour Court in terms of s 18 (1) (b) (i), (d), (f) and (g) of the repealed Labour Act 1992, even if he could also have brought it before the High Court. To argue otherwise will, in my opinion, be a dangerous fallacy. This conclusion disposes of the question in item 15 (2) (b) of Schedule 1 of the Labour Act 2007.


[28] I pass on to deal with the last issue under item 15 (5) (c) of Schedule 1 of the Labour Act 2007. It seems to me clear – and it is not disputed – that the dispute was not pending before the Labour Court under the repealed Labour Act 1992. This disposes of the question in item 15 (2) (c) of Schedule 1 of the Labour Act, 2007.


[29] For the conclusions I have already reached about the interpretation and application 15 (2) of Schedule 1, the only reasonable and inexorable final conclusion that I can make judicially is that the applicant’s present application is caught within the purview of the Labour Act 2007; and so item 15 (2) of the Labour Act, 2007 must most certainly apply to it.


[30] It follows that the 1st respondent’s point in limine challenging the jurisdiction of this Court, sitting as the High Court, succeeds: and so the applicant’s application fails.


[29] In the result, I make the following orders:

  1. The applicant’s application is dismissed.

  2. This Court (sitting as the High Court) has no jurisdiction to consider the applicant’s application for the relief sought in the Notice of Motion.

  3. The applicant is ordered to pay the costs of the 1st respondent.


_________________________

Parker, J


ON BEHALF OF THE APPLICANT: Mr Sisa Namandje

Instructed by: Sisa Namandje & Co


ON BEHALF OF THE 1ST RESPONDENT: Adv. E Schimming-Chase

Instructed by: Metcalfe Legal Practitioners

ON BEHALF OF THE 2ND, 3RD

AND 4TH RESPONDENTS: No appearance



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