REPORTABLE
REPUBLIC OF NAMIBIA
LABOUR COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: LC 86/2013
In the matter between:
NATIONAL HOUSING
ENTERPRISE
..........................................................APPLICANT
and
EDWIN BEUKES
..........................................................................FIRST
RESPONDENT
LAUPLEZWI SLUYSKEN
SAMUPOFU ..................................SECOND
RESPONDENT
GODFRIED UAENDERE
.............................................................THIRD
RESPONDENT
AARON HAGE STEPHANUS
..................................................FOURTH
RESPONDENT
HANS ISAAKS
..............................................................................FIFTH
RESPONDENT
SIMON PHILEMON NUJOMA
......................................................SIXTH
RESPONDENT
TJIJANDJEUA DIMETRIUS
KAMUNDU ...............................SEVENTH
RESPONDENT
EVELINE UANIVI
......................................................................EIGHTH
RESPONDENT
LORETTE PHILANDER
...............................................................NINTH
RESPONDENT
GUSTAVE HANGANEE
MUPURUA ..........................................TENTH
RESPONDENT
CATHLEEN MULLER
..........................................................ELEVENTH
RESPONDENT
THE MAGISTRATE,
DISTRICT LABOUR
COURT, WINDHOEK
.............................................................TWELFTH
RESPONDENT
Neutral citation:
National Housing Enterprise vs Beukes (LC 86/2013) [2013]
NALCMD 22 (4 July 2013)
Coram: PARKER AJ
Heard: 7 June
2013
Delivered: 7
June 2013
Reasons: 4 July 2013
Flynote: Labour
Law – Complaint lodged on 16 June 2011 with the magistrates’
court, Windhoek, in terms of the previous Act (the Labour Act 6 of
1992) – Court found that no district labour court exists in law
after the coming into force on 1 November 2008 (‘effective
date’) of the Labour Act 11 of 2007 to hear complaints lodged
by employees and employers.
Summary: Labour
Law – Complaint lodged on 16 June 2011 by respondents (former
employees of the applicant employer) – Court held that the
Labour Act 11 of 2007 abolished the district labour court system in
our Labour Law as from the effective date (ie 1 November 2008) and
only saved it for the benefit of pending matters in terms of item 15
of Schedule 1 to that Act – Court held further that no district
labour court exists that can hear complaints of employees and
employers in a matter that was not pending within the meaning of item
15 of Schedule 1 to the Labour Act 11 of 2007 – In the instant
case, the court concluded that the clerk (or assistant registrar) of
the magistrate court, Windhoek, should not have accepted the
complaint lodged by the respondents; any learned Magistrate should
not constitute a district labour court and clothe himself or herself
with authority of chairperson of such district labour court in order
to hear the matter – Consequently the court granted an order
staying and suspending any proceedings in the matter enrolled on 16
June 2011in the magistrates court so as to avert the perpetuation of
a clear illegality by any learned magistrate who may be minded to
metamorphose himself or herself into a chairperson of a district
labour court and constitute a district labour court and entertain and
hear the matter enrolled on 16 June 2011 in clear violation of the
Labour Act 11 of 2007.
JUDGMENT
PARKER AJ:
[1] This is an application brought by
the applicant on notice of motion in which the applicant prayed for
the relief set out in the notice of motion. The first, fourth, tenth
and eleventh respondents moved to rejected the application, and filed
a notice of intention to oppose the application. At the hearing of
the matter on 7 June 2013 Mr Barnard represented the applicant, and
Mr Rukoro the first, second, third, fourth, fifth, sixth, seventh,
eighth, ninth, tenth and eleventh respondents (‘the
respondents’). Having heard counsel and having been satisfied
that a case had been made out for the relief sought to the extent
appearing in the order, I granted the application and made the
following order:
‘1.
The forms and service of process in terms of the rules of the Labour
Court are dispensed with and the matter is heard as one of urgency.
2.
All proceedings in the District Labour Court under case number DLC
134/2007 are stayed and must be suspended pending the finalization of
the appeal lodged by the applicant against the judgment of the Labour
Court, per Kauta AJ, on 27 February 2013 under case number LC
67/2012.
3.
The respondents are interdicted and restrained from taking any
further steps intended or having the effect of advancing or promoting
the finalization of the proceedings under case number DLC 134/2007
prior to the finalization of the appeal lodged by the applicant
against the judgment of the Labour Court, per Kauta AJ, on 27
February 2013 under case number LC 67/2012.
4.
There is no order as to costs.’
These are my reasons.
[2] To start with, I give a brief
survey of the history of the matter. The survey is necessary to open
the way to the determination of the present application. Certain
complainants who were then described simply as ‘Edwin Beukes
(the first respondent) & seven Others’ brought a complaint
of unfair dismissal and certain relief in terms of the previous Act
(the Labour Act 6 of 1992) against the applicant in proceedings
initiated in early 2007 before the defunct District Labour Court
(‘DLC’), Windhoek, under the previous Act. The DLC gave
its judgment on 28 October 2008. The applicant appealed from that
decision before the Labour Court. In a judgment delivered by the
Labour Court on 13 May 2011, the court stated:
‘Having
found that the proceedings before Ms Shaanika are to be set aside in
their entirety including the judgments and orders which she made, it
would not be open to me to then dismiss the complaint on the basis of
the matter which was stated in those proceedings with reference
formulation of the complaint and the relief sought in it. That would
be a matter for the District Labour Court to consider in the context
of an appropriate application or upon the evidence adduced in the
complaint proceedings which should commence de
novo.
It would then be a matter for NHE to raise in that forum.’
[3] After the Labour Court judgment
had been handed down on 13 May 2011 the magistrates’ court,
Windhoek, respondents trudged to and enrolled the matter on 16 June
2011 for hearing in a district labour court from 7–18 November
2011 (see the judgment by Kauta AJ, para 4). On 29 June 2012 the
applicant brought an application in the Labour Court in which the
applicant sought an order to set aside the proceedings the
respondents were pursuing in the magistrates’ court, Windhoek,
as aforesaid, and to set aside the relief sought by the respondents
in that court. In the alternative, the applicant sought an order,
directing each of the respondents to provide security for the costs
of the applicant that maybe incurred in the trial proceedings in the
DLC under case number DLC 134/2007, in the sum of N$350 000,00.
[4] The Labour Court (per
Kauta AJ) heard the application on 29 June 2012 and delivered its
judgment on 27 February 2013 in which the court dismissed the
application. The applicant filed a notice of appeal against that
Labour Court judgment (per Kauta AJ).
[5] In determining the
present application it is extremely important – as a matter of
law – at the threshold to interpret and apply item 15 of
Schedule 1 to the Labour Act 11 of 2007 (‘the Labour Act’);
for, the interpretation and application of item 15 holds the key to
the proper determination of the present application. This is what the
chairperson of the so-called ‘DLC’ (‘the
chairperson’) should have considered for her to decide whether
there was a district labour court in existence in relation to the
complaint that was launched on 16 June 2011 over which she could
preside in order to hear the matter that was enrolled on 16 June
2011, that is, close to three years after ‘the effective date’,
the date on which the Labour Act came into operation.
[6] The Labour Act which
came into operation on 1 November 2008 (except s 28 of that Act)
repealed the previous Act (ie the Labour Act 6 of 1992), ‘subject
to the transitional provisions set out in the Schedule’) (see s
142(1) of the Labour Act). The item which is relevant in this
proceeding is item 15(1), and it reads ‘In this item, “pending”
means that a matter has been filed with the registrar of a district
Labour Court, or the Labour Court, as the case may be, and has been
issued a case number in terms of the laws governing the operation of
the court’.
[7] In casu, the matter
that was enrolled in the magistrates’ court, Windhoek on 16
June 2011 was not by any stretch of legal imagination ‘pending’
within the meaning of item 15(1) of Schedule 1 to the Labour Act 11
of 2007. The reason is simple. The matter that was enrolled in the
district labour court, Windhoek, in 2007 was heard by the chairperson
of that district labour court, the learned Magistrate Shaanika, in
2007, and she gave her judgment on 28 October 2008, that is, some
four days before the repeal of the previous Act by the Labour Act 11
of 2007. The Labour Act 11 of 2007 abolished the district labour
court system in our Labour Law, and only saved it for the benefit of
pending matters. Thus, no district labour court exists that can hear
complaints of employees and employers in a matter that was not
pending. It follows that when the learned Magistrate Shaanika’s
decision was set aside on appeal by the Labour Court (per Smuts J),
nobody, including the respondents (ie the complainants) or a
magistrate, could resuscitate it and give it life before a so-called
district labour court because there was then simply no district
labour court in existence anywhere in Namibia competent to hear that
matter which was enrolled after the effective date. In sum, as far as
the matter is concerned, there is no district labour court in
existence that is competent to receive the complaint and adjudicate
it. Counsel who appeared before the Labour Court (presided over by
Kauta AJ) should have drawn Kauta AJ’s attention to item 15 of
Schedule 1 to the Labour Act 11 of 2007, for, the so-called district
labour court that was to be presided over by a learned Magistrate
after 1 November 2008 in that matter did not exist in our law.
[8] What all this means
is this. The judgment of the Labour Court (per Smuts J) in the matter
brought to a complete and unrevivable end, as far as the defunct
district labour court system is concerned. And, as I have said more
than once, there is no district labour court in existence in our law
which can entertain any matter enrolled after 1 November 2008; for
there is no such court before which a matter could be enrolled. Thus,
the clerk (or assistant registrar) of the magistrates’ court,
Windhoek, should not have accepted for enrollment the complaint
lodged on 16 June 2011. And the applicant (in the present proceeding)
could have simply ignored the so-called enrollment of the matter in
the magistrates’ court, Windhoek; but of course, it is
convenient to have the court to declare the enrolment to be in
violation of the Labour Act 11 of 2007.
[9] For the aforegoing
reasoning and conclusions, this court was entitled to hear the matter
on urgent basis and to grant the relief sought so as to avert the
perpetuation of a clear illegality by any learned magistrate who may
be minded to metamorphose himself or herself into a chairperson of a
district labour court and constitute a district labour court and
entertain and hear the matter enrolled on 16 June 2011 in clear
violation of the Labour Act 11 of 2007.
----------------------------
C Parker
Acting Judge
APPEARANCES
APPLICANT: T Barnard
Instructed by Koep &
Partners, Windhoek
FIRST, SECOND, THIRD,
FOURTH,
FIFTH, SIXTH, SEVENTH,
EIGHTH, NINTH,
TENTH AND ELEVENTH
RESPONDENTS: S Rukoro
Instructed by Diedericks
Inc., Windhoek
TWELFTH RESPONDENT: No
appearance
National Housing Enterprise v Beukes and Others (LC 86/2013) [2013] NALCMD 22 (07 June 2013);