Reasons for order:
DE JAGER J:
The applicant, Natalia Isak, representing herself, had the urgent application now before court (the Labour Court of Namibia) launched under HC-MD-LAB-MOT-REV-2024/00225 on 7 November 2024 after the same application was struck from the roll in the High Court of Namibia under HC-MD-CIV-MOT-REV-2024/00565 earlier in the day on 7 November 2024 for ‘improper forum’ (that is what is stated in the court order dated 7 November 2024 in that matter). The application now before court was issued at 12h27 on 7 November 2024 and set down for hearing at 16h00 on the same day. The founding papers consist of a founding affidavit of 56 pages and 75 annexures thereto, totalling hundreds of pages. The applicant afforded the court very little time to peruse her papers which raise myriads of issues.
The respondents, Reinhardt Gartner, the Namibia Civil Aviation Authority (NCAA) and the Government of the Republic of Namibia, opposed the application and were represented by Matti Asino of the Government Attorney. The respondents prayed for time to deliver answering papers. The court’s preliminary perusal of the founding papers prima facie identified a void of facts justifying the matter to have been set down at 16h00 after having issued the application on less than four hours’ notice. The court understands from the applicant that the application in the High Court was served on the respondents on 6 November 2024. The respondents may have had a day to consider the founding papers by the time it was set down in the Labour Court, but the applicant totally ignored the court’s convenience when enrolling the matter at 16h00. The parties were directed to address the court on urgency only and the respondents, upon enquiry from the court, indicated that they can do so without filing answering papers. The ruling on urgency was reserved and the matter was postponed to 8 November 2024 at 09h00 for delivery of the ruling.
The court revisited the founding papers in light of the oral submissions made and the court considered section 117 of the Labour Act 11 of 2007 (the Act) which sets out the Labour Court’s jurisdiction, in particular section 117(1)(e) thereof dealing with urgent relief, against the relief sought by the applicant, paraphrased in the following terms:
Condoning non-compliance with the rules of this court prescribing time periods and service of process and directing that the matter be heard as one of urgency.
Directing that the process served on the respondents under HC-MD-CIV-MOT-REV-2024/00565 is deemed service of the process with necessary modifications.
That a rule nisi be issued calling upon the respondents to show cause, if any, why an order should not be granted in the following terms:
The alleged disciplinary process of the NCAA against the application be invalidated, cancelled, and/or set aside with immediate effect.
The NCAA is ordered to re-employ and/or employ the applicant at executive level effective no later than March 2025.
Alternatively, that the decision by the executive director, Toska Sem, dated 30 July 2024, and the enquiry by chief legal counsel, acting company secretary, and/or initiator, Christoph Seimelo, per the notice dated 29 October 2020 and the suspension by the first respondent per the notice dated 16 July 2020, all of which are administrative decisions of an employment nature (so the applicant says), be invalidated, cancelled, and/or set aside with immediate effect.
The NCAA must re-employ the applicant on mutually acceptable and reasonable terms and conditions considering her health and compliant with Namibian laws at executive level with medical aid at the highest notch effective no later than March 2025.
Certain judgments of the court under HC-MD-CIV-ACT-DEL-2021/01536 and HC-MD-LAB-MOT-GEN-2021/00257 in favour of the respondents be cancelled and/or set aside with immediate effect.
The first respondent and the NCAA must jointly call a press conference to cause the wide circulation of a live public apology statement to the applicant’s satisfaction every Friday from the date of judgment until 31 March 2025, alternatively, the NCAA must immediately issue a public apology to the applicant through a press conference.
The third respondent must cause the declaration of a state of emergency pending conclusion of all outstanding and warranted state enquiries and actions against propagation of apartheid in breach of state policy, alternatively, the third respondent must conclude a guarantee of non-repetition with the applicant.
The respondents must pay the applicant compensation of N$696 618 931,98 jointly and severally, the one paying the others to be absolved. Alternatively, the NCAA and the third respondent must jointly and severally, the one paying the other to be absolved, compensate the applicant for reputational damage and/or defamation (N$5 268 488), loss of part-time income (N$219 888), loss of doctorate studentship (N$1 809 453,51), denial of preferential employment (N$3 314 873,87), accrued annual leave days (N$373 225,67), legal representation costs (N$1 265 000), litigation costs (N$816 000), loss of monthly income ((N$206 590,96), unpaid severance pay (N$43 275,24), consequent debt incurred ((N$100 022,34), medical and psychological injury (N$568 784 647,95) or pain and suffering (N$61 904 647,95), loss of amenities (N$396 000 000), and future rehabilitation costs (N$110 880 000).
The respondents must pay the applicant punitive damages (N$5 000 000), alternatively, the NCAA and the third respondents must do so.
Paragraphs 3(c)(i) to (g) above operate as final orders.
The court analysed the relief sought and the basis on which it is sought, including the rights asserted by the applicant, and the court considered Shoprite Namibia (Pty) Ltd v Namibia Food and Allied Workers Union and Another wherein the Supreme Court of Namibia said that:
‘[45] This court in NAFINU concluded its remarks in this context:
'Within this statutory scheme, the Labour Court's jurisdiction in granting urgent relief under s 117(1)(e) is to be of a temporary nature and limited to relief pending the final determination of a dispute by an arbitrator (in terms of ch 8).'
[46] It is also to be stressed that the Act accords the Labour Court exclusive jurisdiction to grant the remedies crafted and determined by the legislature in the Act in respect of labour disputes. Those remedies and procedures are subject to the limits placed upon them in the Act.
[47] Its jurisdiction to grant urgent relief including an urgent interdict can only be invoked pending resolution of a dispute in terms of ch 8 of the Act.
. . .
[60] Section 117(1)(e) does not qualify a dispute with reference to any of the parts of ch 8. This means that any dispute referred under ch 8 would meet this statutory requisite for jurisdiction. The purpose of the provision is to restrict access to the Labour Court for urgent relief to those matters where a dispute had first been referred and was unresolved.
. . .
[63] Section 117(1)(e) is afterall to prevent parties from approaching the court for urgent relief without first referring a dispute under ch 8 and thus requiring parties to make use of the dispute resolution mechanisms created by the Act in accordance with the legislative intention behind the provision.’
According to the applicant, the event that triggered her urgent application is a letter dated 30 July 2024 whereby she was informed that her employment with the NCAA was terminated with immediate effect. During arguments on 7 November 2024, the court enquired from the applicant whether she lodged a complaint with the Labour Commissioner following the 30 July 2024 letter and she said no because her case is not for unfair dismissal. From the founding affidavit, it appears there was a dispute lodged in 2020 but , on the applicant’s submissions, that was a different dispute than the one triggered by the 30 July 2024 letter.
The applicant alleges in the founding affidavit that the purpose of the application is for the full restoration of her fundamental human rights and freedoms as guaranteed by chapter three of the Namibian Constitution (not the Act) to review and invalidate the NCAA’s ‘administrative decision’ to endorse her dismissal and that her employment is terminated with immediate effect, to order her re-employment by the NCAA, to review and invalidate the NCAA’s reckless trading specifically by a suspension notice dated 16 July 2020, a disciplinary enquiry notice dated 29 October 2020 and an alleged disciplinary action and/or hearing, to order the third respondent to declare a state of emergency against the propagation of apartheid in breach of state policy and to order reparation as set out in the notice of motion. She further states under oath that ‘the alleged disciplinary action is not the cause of action but rather the misrepresentation which maintained/created the discrimination and/or apartheid employment barrier’ at the NCAA.
Before the court may adjudicate a matter, it must be satisfied that it has jurisdiction to do so. Based on the foregoing, the court came to the prima facie conclusion that it does not have jurisdiction to hear the matter. On 8 November 2024, instead of delivering a ruling on urgency, the court directed the parties, with reference to the case law referred to above and section 117(1)(e) of the Act, to address it on jurisdiction, which they did. The matter was stood down twice for an hour each time on the applicant’s request to consider the jurisdiction point raised by the court mero motu, which it was, in law, not only allowed, but required, to do. The respondents, in any event, also raised the point during their argument on the basis that the applicant’s disputes must be dealt with by the Labour Commissioner.
The applicant argued that the Labour Court had jurisdiction under section 117(1)(c) and 117(1)(i), read with (e). She said the phrase pending resolution of a dispute in terms of chapter 8 in section 117(1)(e) related to urgent interdictory relief and not other urgent relief. The court referred her to Haimbili and Another v Transnamib Holdings Ltd and Others where the High Court rejected such interpretation for not being ‘in harmony with the provisions of the Labour Act relating to the resolution of a dispute relating to whether a dismissal is unlawful’. The matter was then adjourned for the second time for an hour to enable the applicant to consider that case law. After the adjournment, the applicant referred the court to Kamati v Namibia Rights and Responsibilities Incorporated where the Labour Court said that:
‘[18] As far as section 117(1)(e) is concerned, it provides that the Labour Court may grant urgent relief, including an urgent interdict pending resolution of a dispute in terms of Chapter 8. It is significant that provision is expressly made for the Labour Court to grant an urgent interdict pending resolution of a dispute in terms of Chapter 8. In my view this is done precisely because the resolution of a dispute in terms of Chapter 8 does not fall within the jurisdiction of the Labour Court. It seems to me that the ‘urgent relief’ referred to in the first part of paragraph (e) must relate to a matter which falls within the jurisdiction of the Labour Court.’
Based on what the court said in Kamati v Namibia Rights and Responsibilities Incorporated, which was decided after Haimbili and Another v Transnamib Holdings Ltd and Others, the applicant’s argument that the phrase pending resolution of a dispute in terms of chapter 8 in section 117(1)(e) relates to urgent interdictory relief and not other urgent relief referred to in the first part of that section, is tempting at first blush. However, when interpreting section 117(1)(e) in Kamati v Namibia Rights and Responsibilities Incorporated, the court inserted a comma after the word ‘relief’ in section 117(1)(e) which comma does not appear in the text of the Act itself. The placement of the comma has a bearing on its interpretation. Furthermore, in Kamati v Namibia Rights and Responsibilities Incorporated the court was not referred to Haimbili and Another v Transnamib Holdings Ltd and Others (where the court heard argument from two senior counsel assisted by junior counsel), nor did it consider that judgment, the applicant represented herself in that matter and the application was unopposed. Seeing that the text of the Act does not contain a comma after the word ‘relief’ and as it currently reads, the court agrees with the approach in Haimbili and Another v Transnamib Holdings Ltd and Others to which the court is bound unless persuaded it is clearly wrong, which it is not. Thus, the Labour Court can only grant urgent relief if there is an unresolved dispute under chapter eight of the Act.
As for the applicant’s reliance on sections 117(1)(c) and (i), those sections do not find application in the matter at hand as the court is dealing with relief sought on an urgent basis.
The court is bound by Shoprite Namibia (Pty) Ltd v Namibia Food and Allied Workers Union and Another. The Labour Court’s jurisdiction to grant urgent relief is limited by section 117(1)(e) of the Act. The Supreme Court, even though it dealt with interdictory relief, did not distinguish between urgent interdictory relief and other urgent relief when it dealt with the limitation under section 117(1)(e). A dispute under chapter eight of the Act is required to meet the statutory requisite for jurisdiction. The purpose of section 117(1)(e) is to restrict access to the Labour Court for urgent relief in matters where there is an unresolved dispute under chapter eight of the Act.
On 7 November 2024, and before the first adjournment on 8 November 2024, the applicant’s position was that she approached the High Court because her case was not a labour case. She said she did her preparation, and she initially launched her application in the right court. The applicant’s position changed after the first adjournment as set out above.
Considering the founding papers and the applicant’s submissions, the bases of the relief sought (the rights asserted in support of it) do not fall within the purview of the Act and the relief sought is not competent under the Act on an urgent basis. As a result, the Labour Court lacks jurisdiction. If the court is wrong and the applicant’s case does fall within the purview of the Act and the relief sought is competent under the Act, the matter is one of remedy and the constitutional principle of subsidiarity then dictates that the applicant should have utilised the dispute resolution mechanism under the Act which is specially crafted for first instance resolution of labour related disputes. Furthermore, section 117(1)(e) specifically requires an unresolved dispute under chapter eight of the Act to meet the statutory requisite for jurisdiction on an urgent basis. Lastly, the urgent relief sought had to be temporary, not final relief which the applicant seeks under prayer 4 of her notice of motion.
Even if the court is wrong in finding that the Labour Court lacks jurisdiction, it would have struck the matter for lack of urgency. Rule 6(24) of the Labour Court Rules, which is similar to rule 73(3) of the High Court Rules, provides that the court may dispense with the forms and service provided for in the rules and dispose of the matter in accordance with such procedure which must as far as practicable be in terms of the rules. Rule 73(1) of the High Court Rules, which finds application under rule 22(1) of the Labour Court Rules, provides that an urgent application must be heard at 09h00 unless it is certified in a certificate of urgency that the matter is so urgent that it should be heard at any time. The application was set down at 16h00 on less than four hours’ notice. Extraordinary circumstances and facts were required for the matter to have been set down in that manner. Such facts and circumstances were not provided to the court’s satisfaction.
The respondents pray that the application be struck. The proper order to follow the court’s findings is as set out above. |