Delict – Fraudulent representation – Elements thereof – Defendant representing to the plaintiff that a certain person was a legitimately funded student of the plaintiff and was therefore entitled to receive certain payments – Representation found to have been fraudulently made – Defendant found liable for damages suffered by the plaintiff.

This is an appeal of certain orders of the Labour Court sitting on an appeal from an award given by an arbitrator, instituted by the appellant who was employed as Chief Executive Officer of the Namibia Students Financial Assistance Fund (NSFAF) from March 2013 until her dismissal on 7 February 2020. Prior to her dismissal and on 16 April 2018, the appellant was suspended from her position pending an investigation into charges for which she was facing a disciplinary hearing. On 6 February 2020, the respondent’s Board resolved to dismiss the appellant without finalising the disciplinary hearing, citing delays attributed to the appellants conduct from the date of suspension to the date of dismissal, which according to the respondent made it impossible to bring the disciplinary hearing to finality.

The respondent, dissatisfied with the arbitration award which found in favour of the appellant, appealed to the Labour court which held that the dismissal of the appellant was without a fair and valid reason and without a fair procedure being followed. However, it set aside the arbitrator’s award which reinstated the appellant and replaced it with an order directing the respondent to pay the appellant the monthly remuneration she would have received from 8 February 2020 until 15 July 2021.

On appeal to this Court is the finding of the Labour court relating to the order setting aside appellant’s reinstatement as well as an order backdating appellant’s payment of monthly remuneration to 15 July 2021. The main issue for determination in this Court is whether or not the Board’s decision of 06 February 2020 dismissing appellant was null and void on the basis that the Board was not properly constituted in terms of the NSFAF Act, therefore giving rise to other ancillary relief relating to reinstatement and payment of remuneration. The respondent noted a cross- appeal, directed against the court a quo’s finding that the dismissal of the appellant was without a fair and valid reason and without a fair procedure being followed. The respondent also attacked the court a quo’s decision ordering it to pay the appellant compensation.

Part of the issues raised by the respondent was whether or not the Minister of Higher Education, Technology and Innovation was obliged to state in the appointment letter of an additional member, the particular purpose for such appointment, and whether an additional member who was statutorily prohibited from voting at board meetings, but who voted to dismiss the appellant resulted in the decision of the Board being unfair and null and void.

Held that, a decision of the majority of the voting members of the board present at a meeting constituted a decision of the board. The fact that a member who was not entitled to vote, voted to dismiss the appellant at a properly constituted board meeting, did not invalidate the votes of the majority of the members entitled to vote at the meeting. The decision taken was therefore validly taken and at a properly constituted board meeting.

Held that, the fact that the purpose for which an additional member had been appointed was not reflected in the letter of appointment did not invalidate the appointment of the additional member and the decision taken to dismiss the appellant cannot for that reason alone be null and void.

The evidence presented during the arbitration proceedings on behalf of the respondent described the relationship with the appellant as ‘unbearable’, acrimonious’, disruptive and uncooperative’, no trust in the leadership of the appellant’. The appellant herself stated that the animosity and hatred towards her by the board were ‘acutely raw’.

Held that, the relationship of trust and confidence between the appellant and the respondent had irretrievably broken down based on substantially the conduct of the appellant in the circumstances of this case, which made the continuation of the employment relationship impossible.

Another issue was whether a medical report was required in addition to a medical certificate in order to determine the appellant’s ability to attend the disciplinary hearing.

Held that, in respect of the medical certificate tendered in support of an application for a postponement of the disciplinary hearing, the employer is not required to confine itself to a medical certificate but is entitled to request a medical report from a doctor as proof of illness, especially in the case where the sick leave has been granted for an extended period. This would apply not only in the case of the employee’s physical inability to perform normal work activities but also to his or her mental ability.

Held further that, the respondent acted reasonably and in accordance with its policies by demanding to be provided with a medical report or for appellant to be subjected to an examination by a psychiatrist of its choice, since it was important to establish whether the appellant was genuinely incapacitated and that the medical certificate was not employed as a delaying tactic by the appellant.

Held that, the breakdown in the relationship between the appellant and the respondent provided a valid and fair reason for the dismissal of the appellant and renders the dismissal substantively fair.

Consequently, the appeal is dismissed and the cross-appeal is upheld with costs.