REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION
HELD AT OSHAKATI
RULING
Case No: HC-NLD-CIV-ACT-CON-2018/00161
In the matter between:
REBEKKA NANGULA KAMBONDE 1ST PLAINTIFF
ELIZABETH KALENINASHO KAPUKA 2nd PLAINTIFF
LUKAS HAFENI KAMATI 3rd PLAINTIFF
PETRINA AMUPOLO 4th PLAINTIFF
MENETTE NDJENE 5th PLAINTIFF
LETISIA SHIWEDA 6th PLAINTIFF
PAULUS NDANYENGWA UUGWANGA 7th PLAINTIFF
DAVID ASSER 8th PLAINTIFF
EDWARD MWANDINGI MALAPI 9th PLAINTIFF
THOMAS NDILIMEKE NKANDI 10th PLAINTIFF
JOHANNA TUMENIYENI ELAGO 11th PLAINTIFF
HILMA KIRVINENA NAMBANZA 12th PLAINTIFF
HELVI VATILIFA 13th PLAINTIFF
MARTHIN NDAMANHOMATA 14th PLAINTIFF
SAKEUS SHEKUPE NAKAAMBO 15th PLAINTIFF
JAKOB HAMBABI 16th PLAINTIFF
ROSALIA NDAPANDA NAMENE 17th PLAINTIFF
NIKANOR HOMATENI UUKONGO 18th PLAINTIFF
HELLA KAPUNDJA 19th PLAINTIFF
GEBHARD JONA 20th PLAINTIFF
NDAMONONGHENDA SHITYENI 21st PLAINTIFF
SESILIA HAIKALI 22nd PLAINTIFF
AILI AMANDUS 23rd PLAINTIFF
JASON KONDJILA NANGOMBE NAHANGO 24th PLAINTIFF
MARIA NANGULA ANGULA 25th PLAINTIFF
DAVID MAFUTA NEGONGA 26th PLAINTIFF
JOHANNA NDAPEWA NEPUNDA 27th PLAINTIFF
FRIEDA KAMBONDE 28th PLAINTIFF
HELENA NDAPANDA TOMAS 29th PLAINTIFF
MATHIAS NAMBAHU 30th PLAINTIFF
GABRIEL TEGELELA AMAKALI 31st PLAINTIFF
NAEMI NAMUTENYA SHILIKOMWENYO 32nd PLAINTIFF
CECILIA KAUNAPAWA HAUDILA 33rd PLAINTIFF
EMILIA MATHIAS 34th PLAINTIFF
ELIAKIM ELAO HAIHAMBO 35th PLAINTIFF
TITUS NANDJEDI 36th PLAINTIFF
JAKOBUS IPANGELWA 37th PLAINTIFF
DAVID NGHIFIKEPUNYE 38th PLAINTIFF
KAARINA NAITSUWE ASHIKUTU 39th PLAINTIFF
MELKISEDEK UUKONGO 40th PLAINTIFF
JUUNO TWATEGA KANGONGA 41st PLAINTIFF
ELIZABETH NEKWAYA ANTANGA 42nd PLAINTIFF
PETRUS SHIPANDENI KANKU 43rd PLAINTIFF
MARIA NDANYENGWA EELU 44th PLAINTIFF
TOMAS ANGALA 45th PLAINTIFF
FILLEMON MTALENI MBENZI 46th PLAINTIFF
MATIAS ELAGO PAMWENATSE MWENDELELI 47th PLAINTIFF
HELENA NDEAPO ASHIKOTO 48th PLAINTIFF
GABRIEL JOHANNES 49th PLAINTIFF
PENEHAFO MALAKIA 50th PLAINTIFF
HILMA NAKUFU TIMOTEUS 51st PLAINTIFF
BENEDICTUS SHIVUTE NAMUKUGO 52nd PLAINTIFF
LINUS NDANEPETHIMBO KASHAPI 53rd PLAINTIFF
MARIA KALUMBU 54th PLAINTIFF
JOHANNA TEGELELA SHIVUTE 55th PLAINTIFF
VILHO PETRUS 56th PLAINTIFF
ELIA AUENE AUENE 57th PLAINTIFF
MATHIAS KAAMBONDE SHIKONGO 58th PLAINTIFF
GEBHARD KAPUNDA 59th PLAINTIFF
JOHANNES ILEMO 60th PLAINTIFF
ELIFAS MBANGO 61st PLAINTIFF
GEBHARD NDANGI AMUNYELA 62nd PLAINTIFF
SELMA SELHA AMUNYELA 63rd PLAINTIFF
EUNIKE AMWELE 64th PLAINTIFF
HELVI AMAKALI 65th PLAINTIFF
FRANSISKU ABROSIUS 66th PLAINTIFF
ANNA AMUTENYA 67th PLAINTIFF
HILMA NDAKUMWA ANGULA 68th PLAINTIFF
CONSTACIA ASHIPALA 69th PLAINTIFF
NAEMI MWAYOLANGE AMULUNGU 70th PLAINTIFF
HILENI AMAKUTSI 71st PLAINTIFF
JUSTINE KANDIWAPA AMUNYELA 72nd PLAINTIFF
MARTHA NDESHIHALA AYEHEAANTU 73rd PLAINTIFF
JOHANNA NDAPEWA EELU 74th PLAINTIFF
TEOPOLINA ELIASER 75th PLAINTIFF
NDAMONA ENGHALI 76th PLAINTIFF
ANNA FILLEMON 77th PLAINTIFF
ANNA FILIPPUS 78th PLAINTIFF
JOSEF HAKUUNDA 79th PLAINTIFF
ROSALIA HAMALWA 80th PLAINTIFF
PENEPANDULO OTTILIA HANDUNGE 81st PLAINTIFF
FRIEDA NDESHIPANDA IHUHWA 82nd PLAINTIFF
MARTHA KAALE INANE 83rd PLAINTIFF
KATRINA NDAPEWA JAKOB 84th PLAINTIFF
VILHO JASON 85th PLAINTIFF
HILENI JOHANNES 86th PLAINTIFF
LEMPIE JOHANNES 87th PLAINTIFF
MARTHA JOHANNES 88th PLAINTIFF
LIINA NDINELAO JOSEPH 89th PLAINTIFF
FENNI NDAPANDULA JUNIAS 90th PLAINTIFF
JAPHET KALEKELA 91st PLAINTIFF
LOIDE KAMATI 92nd PLAINTIFF
MATIAS KANDJUNGU 93rd PLAINTIFF
ANATOLIA KAUKUNGWA 94th PLAINTIFF
HILENI MANYA 95th PLAINTIFF
FRIEDA MATEUS 96th PLAINTIFF
HILMA NIILONGA MBANGO 97th PLAINTIFF
MARIAN KANDALI MBENZI 98th PLAINTIFF
FRIEDA OLIVIA MUTALENI 99th PLAINTIFF
JOHANNA NANGULA NAMBAHU 100th PLAINTIFF
PRISKILA NAMUKUGO 101st PLAINTIFF
TEOPOLINA NANKUDHU 102nd PLAINTIFF
SYLVIA NANGULA NDAEFA 103rd PLAINTIFF
NDAMONA NDEMWIIMBA 104th PLAINTIFF
ELIZABETH NEKONGO 105th PLAINTIFF
SOINI ELINA NEPANDO 106th PLAINTIFF
TADEUS HILIFAVALI NGHINYANGELWA 107th PLAINTIFF
HELVI NGHILINGANYE 108th PLAINTIFF
ELIFAS NTINDA 109th PLAINTIFF
MARIA TAATSU NUUNYANGO 110th PLAINTIFF
SAKARIA ANGULA NUUYOMA 111st PLAINTIFF
JULIA MARIA NAMUTENJA SHAPAKA 112nd PLAINTIFF
KAARINA SHIKANGALA 113rd PLAINTIFF
KEFAS SHIKONENI 114th PLAINTIFF
LINEA NELAO UUGWANGA 115th PLAINTIFF
KATRINA UUKUNDE 116th PLAINTIFF
FRIEDA MAGANO SHIGWEDHA 117th PLAINTIFF
JASON TANGENI SHIKONGO 118th PLAINTIFF
VICTORIA SHANDUKA 119th PLAINTIFF
EMILIA SEVERUS 120th PLAINTIFF
HELENA INOETHANDJE SHUUKIFENI 121st PLAINTIFF
FIINA SHINDONDOLA 122nd PLAINTIFF
YOOLOKENI TEGELELENI 123rd PLAINTIFF
HILMA ELLA USIKU 124th PLAINTIFF
HILMA SHIKONGO 125th PLAINTIFF
ABRAHAM MAGANAEM SHIPANGA 126th PLAINTIFF
SAIMA NDINELAO SIMON 127th PLAINTIFF
NATANGE SHIIMI LEEVI 128th PLAINTIFF
JULIA NDAPEWEKEKA UUGWANGA 129th PLAINTIFF
EVELINA FRIEDA IMMANUEL 130th PLAINTIFF
SAIMA PHILLEMON 131st PLAINTIFF
JEREMIA MATEUS 132nd PLAINTIFF
PRISKILA PANDU ABED 133rd PLAINTIFF
FRIEDA NDINELAGO AMAKALI 134th PLAINTIFF
MARGARETH HAMBELELA AMWELE 135th PLAINTIFF
PAULA TANGI- NUUSIKU AUALA 136th PLAINTIFF
FIINA NDAPANDA AUTA 137th PLAINTIFF
HILMA NAMVULA EDWARD 138th PLAINTIFF
FIINA HAITAMBA 139th PLAINTIFF
ESTER HANGULA 140th PLAINTIFF
HILYA MAGANO IIPITO 141st PLAINTIFF
SAIMA MARTA ILONGA 142nd PLAINTIFF
HILMA JOHANNES 143rd PLAINTIFF
WILHELMINA KAMBALA 144th PLAINTIFF
SELMA KANDALI INGO 145th PLAINTIFF
RAUHA PENDAPALA KONOMUUA 146th PLAINTIFF
KAARINA NAMBULA MANGUNDU 147th PLAINTIFF
SOFIA PANDULENI MICHAEL 148th PLAINTIFF
HENNI NDAWANIFA SHIKONGO 149th PLAINTIFF
MARIA MOONGO 150th PLAINTIFF
OTTILIE NDAFIMANA NIIKONGO 151st PLAINTIFF
EMMA TEGELELA NDUNGULA 152nd PLAINTIFF
SUAMA PANDULENI-NENYANYU NGHIKEMBUA 153rd PLAINTIFF
ROSALIA NGHUUPOVALI PETRUS 154th PLAINTIFF
MATHIAS SIMON 155th PLAINTIFF
HILMA FOIBE UUGWANGA 156th PLAINTIFF
GOTTLIEB HENDRIK UUSHONA 157th PLAINTIFF
PAULINA HEDIMBI 158th PLAINTIFF
PASKALIA WILHELMINA NIITA NGHIPANGELWA 159th PLAINTIFF
ELINA NDAPEWA-OMAGANO AMUKUGO 160th PLAINTIFF
HILMA NAAPOPYE SHILONGO 161st PLAINTIFF
JOOLOKENI HAIMBALA 162nd PLAINTIFF
RUUSA NDAMONO SHONGOLO 163rd PLAINTIFF
OTTILIE NDESHEETELWA NDEMUULA 164th PLAINTIFF
TRESIA ANASTASIU 165th PLAINTIFF
KRONELIA NELAGO KAYUHWA 166th PLAINTIFF
ESTER NDAYANDIMIKWA DUTE KULYA 167th PLAINTIFF
LASARUS MARTHIN MALUMBU 168th PLAINTIFF
HILMA NDEAPO TOKUNDU 169th PLAINTIFF
HANNU NDEAPO- RUBEN NAMBAHU 170th PLAINTIFF
JOHANNA NDAMONONGHENDA KANANA 171st PLAINTIFF
SAIMA SONDAHA SHONGOLO 172nd PLAINTIFF
HILENI NDEAPO NAMUPALA 173rd PLAINTIFF
WILHERMIN BETTY NEKOTO 174th PLAINTIFF
NDAPEWA TUYEIMO SHATIPAMBA 175th PLAINTIFF
MARIA AMUAALWA 176th PLAINTIFF
HILMA KAINEKELWA IYAMBO 177th PLAINTIFF
FRIEDA MEGAMENO KAGOGO 178th PLAINTIFF
NDAMONO TEOPOLINA MBEPO 179th PLAINTIFF
MARTHA NDATEGELELA MBOKOMA 180th PLAINTIFF
HILENI NDINELAGO NANGOLO 181st PLAINTIFF
LEENA NEKULU ANGOMBE 182nd PLAINTIFF
ELIZABETH ANGULA 183rd PLAINTIFF
THEOPOLINA NAAYOLE AMWAANYENA 184th PLAINTIFF
ELINA KAULINGE OBADJA 185th PLAINTIFF
REBBEKA NDAPEWA AMEYA 186th PLAINTIFF
AUGUSTE NANGOMBE KALIMBO 187th PLAINTIFF
LEA DIANA SHITUULA 188th PLAINTIFF
WILKKA MARIA AMUTENYA 189th PLAINTIFF
WILHEM NATANGWE IMALWA 190th PLAINTIFF
HILENI IYAMBO 191st PLAINTIFF
MARTHA ANGALENI IIPITO 192nd PLAINTIFF
SAARA IHUTHENI SHIKUNI 193rd PLAINTIFF
AUNE NDEAPO ELINDI 194th PLAINTIFF
INGA MARIA NAMUPOLO 195th PLAINTIFF
SALMI ESTER JOEL 196th PLAINTIFF
RAUNA VATILENI 197th PLAINTIFF
HELVI NDENGU 198th PLAINTIFF
LEENA MATHEUS 199th PLAINTIFF
LINEA HAFENI 200th PLAINTIFF
PETRINA IIPUMBU 201st PLAINTIFF
SELMA THOMAS 202nd PLAINTIFF
TAIMI NAMUPOLO IMENE 203rd PLAINTIFF
SELMA MAGANO KAMATI 204th PLAINTIFF
ELIA NEKWAYA LYNDY DANIEL 205th PLAINTIFF
PETRINA UUGWANGA 206th PLAINTIFF
SUAMA SHINYAMA 207th PLAINTIFF
SESILIA NDAPANDULA SHUUDENI 208th PLAINTIFF
ISANDRA GABRIELA SIMBO 209th PLAINTIFF
VICTORIA NDESHIMANA AMAKALI 210th PLAINTIFF
HILMA KANTENE 211th PLAINTIFF
JOHANNA THIKAMA SHILONGO 212th PLAINTIFF
LOVISA NDEAPO IIKALI 213th PLAINTIFF
And
LUTHERAN MEDICAL SERVICES 1ST DEFENDANT
EVANGELICAL LUTHERAN CHURCH IN NAMIBIA 2ND DEFENDANT
MINISTRY OF HEALTH AND SOCIAL SERVICES 3RD DEFENDANT
Neutral citation: Kambonde v Lutheran Medical Services (HC-NLD-CIV-ACT-CON-2018/00161) [2020] NAHCNLD 77 (29 June 2020)
Coram: DIERGAARDT, AJ
Heard: 25 June 2020
Delivered: 29 June 2020
Flynote: Special plea – jurisdiction – civil matters to be heard – in the high court – restricted by statute – Labour Court has jurisdiction – special plea upheld.
Summary: The plaintiffs approached the high court after an alleged breach of the employment contract, in that the defendants were failing and or refusing to pay out their accrued leave days. The first and second defendant transferred all personnel in their employ over to the third defendant. The plaintiffs had prior to approaching the high court referred their matter to the Labour Commissioners office, the arbitrator declined to hear the matter as they referred the matter late in terms of the Labour Act 11 of 2007. The plaintiffs now seek direct access to the High Court (sitting as the High Court). The defendants raised a special pleas on jurisdiction.
Held: This Court (sitting as the High Court) has no jurisdiction to determine a matter that falls in the ambit of s 117(1) (d), (g), (h), (i) and s 23 of the Labour Act 11 of 2007.
Held: The second and third defendants special pleas are upheld.
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ORDER
______________________________________________________________________
The second and third defendants special pleas are upheld;
This Court (sitting as the High Court) has no jurisdiction to determine a matter that falls in the ambit of s 117(1) (d), (g), (h), (i) and s 23 of the Labour Act 11 of 2007;
The plaintiffs are ordered to pay the costs of the second and third defendants.
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JUDGMENT
______________________________________________________________________
DIERGAARDT AJ:
Introduction
[1] At issue in this ruling is a special plea to jurisdiction is raised by the second and third defendants. The first defendant according to record no longer exist, but is cited for completeness. The court is accordingly called upon to decide whether or not the said pleas, have merit.
Background
[2] I briefly outline the facts that give rise to this defence, as appears from the papers. I do so in order to place all the issues that arise, into proper perspective so as to conduce to a full and proper understanding of the court’s decision in the final analysis.
[3] This matter originated from a dispute that occurred between the plaintiffs and the first and second defendants.
[4] The said dispute is a dispute regarding the non-payment of accrued leave days due and payable to the plaintiffs in terms of their employment with the first and second defendants and in addition, in terms of section 23 of the Labour Act, 2007 (Act No. 11 of 2007).
[5] During the period between 6 June 1990 and 30 June 2015, the Plaintiffs and the 1st Defendant entered into an oral/written employment agreement/contract, in respect of their employment at the hospital (Onandjokwe Intermediate Hospital) as nurses, cleaners, labourers, pharmacists and technical assistants.
[6] The plaintiffs’ dispute/complain of non-payment of accrued leave days arose on 18 July 2015, when the plaintiffs’ contracts of employment with the first and second defendants was terminated. This was not a termination in the ordinary sense of the word, there was a substitution of employer. The plaintiffs transitioned into the employment of the third defendant. This was well after the Labour Act, Act No. 11 of 2007 was implemented and brought into effect.
[7] Some of the Plaintiffs then referred a labour dispute/complaint with the Office of the Labour Commissioner on 12 September 2016 under the case, NROS 123-16: Hilma Nambanza and 5 others v Onandjokwe Intermediate Hospital.
[8] Upon receiving the form LC 21, the Labour Commissioner then sent a notice of dismissal and / or struck from the roll the matter for the following reason:
‘8.1 lack of jurisdiction
8.2 other (specify): The case has prescribe because the dispute arose on 18 July 2015 and it was received in our office in Windhoek on 19 July 2016. Therefore, I have no jurisdiction to hear this matter.’
[9] The Labour Commissioner’s decision to strike the case, NROS 123-16; Hilma Nambanza and 5 others v Onandjokwe Intermediate Hospital was never appealed or reviewed in the Labour Court or any other court.
[10] The Plaintiffs, in this matter brought an action before the this Honourable Court against the Defendants, claiming amongst others, a breach of the contractual and/or statutory obligations by the defendants by inter alia, refusing and/or failing to pay the respective plaintiffs’ accrued leave days, despite demand.
The plaintiffs’ claim
[11] The plaintiffs’ in this matter brought an action before this court against the defendant claiming breach of the contractual and or statutory obligations in that the defendants are failing and or refusing to pay the plaintiffs their accrued leave, alternatively damages. In the further alternative, seek for the third defendant to “register and record the plaintiffs leave day[s] accrued in respect of their employment with Onandjokwe Hospital [Lutheran Medical Services]”.
The special pleas
[12] The second and defendant filed special pleas to the claim in that the High Court has no jurisdiction to determine the matter, as it is governed by the Labour Act, 11 of 2007. The defendants in their heads of argument submit that the plaintiffs claim emanates from an employment contract and it is therefore a labour case which falls to be determined by the Labour Commissioner. Mr Mutorwa appeared for the third defendant in submissions advanced that it was also not sound for the plaintiffs to have their matter determined piecemeal.
[13] Plaintiffs in their heads of argument submit that the High Court’s jurisdiction is not ousted by the provisions of the Labour Act, 11 of 2007. Mr Nekwaya, counsel for the Plaitiffs argues that the High Court has inherent jurisdiction to determine the relief claimed by the plaintiffs, and further that the Labour Court does not adjudicate and grant the remedy the plaintiffs are seeking. He opines that the plaintiffs can tap into the reservoir of power held by the High Court as it is a constitutional entitlement. Mr Nekwaya submitted that a statute that negates the constitutions inherent jurisdiction does not apply, I do not agree with this view.
[14] There is no doubt that the plaintiffs claim arises out of an employer and employee relationship, it also appears that the employer and employee relationship between the plaintiffs and third defendant continues. The Labour Act, 11 of 2007 regulates basic conditions of employment, including accrued leave and the labour court has exclusive jurisdiction thereto in terms of s 117(1) which reads:
‘Jurisdiction of the Labour Court
117. (1) The Labour Court has exclusive jurisdiction to -
(a) determine appeals from -
(i) decisions of the Labour Commissioner made in terms of this Act;
(ii) arbitration tribunals’ awards, in terms of section 89; and
(iii) compliance orders issued in terms of section 126.
(b) review -
(i) arbitration tribunals’ awards in terms of this Act; and
(ii) decisions of the Minister, the Permanent Secretary, the Labour
Commissioner or any other body or official in terms of -
(aa) this Act; or
(bb) any other Act relating to labour or employment for which the Minister
is responsible;
(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;
(d) grant a declaratory order in respect of any provision of this Act, a collective
agreement, contract of employment or wage order, provided that the declaratory
order is the only relief sought;
(e) to grant urgent relief including an urgent interdict pending resolution of a dispute
in terms of Chapter 8;
(f) to grant an order to enforce an arbitration agreement;
(g) determine any other matter which it is empowered to hear and determine in term of this Act;
(h) make an order which the circumstances may require in order to give effect to the
objects of this Act;
(i) generally deal with all matters necessary or incidental to its functions under this
Act concerning any labour matter, whether or not governed by the provisions of
this Act, any other law or the common law.’
[15] Not only does the Labour Court have jurisdiction over the matters aforesaid, the arbitrator in terms of s 86(15) may make an order inclusive of the following:
‘(a) an interdict;
(b) an order directing the performance of any act that will remedy a wrong;
(c) a declaratory order;
(d) an order of reinstatement of an employee;
(e) an award of compensation; and
(f) subject to subsection (16), an order for costs.’
[16] I am of the view that the only issue the court is called upon to decide is whether the relief sought by the applicant falls within the category of remedies where the High Court is excluded.
[17] I agree with this deduction by Damaseb JP in the matter of Katjiuanjo v The Municipal Council of the Municipality of Windhoek (I 2987/2013) [2014] NAHCMD 311 (21 October 2014) that ‘For the High Court not to entertain a matter, it must be clear that the original and unlimited jurisdiction it enjoys under Article 80 of the Constitution and s 16 of the High Court Act has been excluded by the legislature in the clearest terms.’ This cannot be said to be unconstitutional, and cannot further be said the doors of the high court have been closed to a litigant when an appropriate forum such as one finds under the Labour Act exists. In Katjiuanjo supra at p 10 Damaseb JP goes on to say ‘…Where a forum other than the High Court has been given jurisdiction, the inquiry is not so much about whether that forum is the more convenient or suitable forum but whether the legislature in express language intended to exclude the jurisdiction of the High Court.’
[18] The high court in Katjiuanjo assumed jurisdiction, in aforesaid matter plaintiff sought relief for specific performance as a result of a repudiation of some terms and conditions of employment, they sought damages for underpayments and benefits. The facts of that case are distinguishable from the current matter as the plaintiffs rely on benefits conferred by section 23 of the Labour Act, 11 of 2007. Is this also the very reason that they correctly approached the Labour Commissioner in the first instance, albeit late.
[19] Section 86(15) empowers the arbitrator to direct the performance of any act that will remedy any wrong. Remedy a wrong. I submit that such powers is bestowed onto the Labour court.
[20] The issue that surfaces now is the fact that the plaintiffs were not satisfied with the Labour Commissioners decision and seek recourse in the High Court to enter the claim that was not entertained by the Labour Commissioner.
[21] I am also of the opinion that for the reasons I have outlined previously s 117 (1) 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.’
[22] Parker J expressed himself regarding inherent jurisdiction of the High Court in the cases of Shikwetepo vs Khomas Regional Council and other (A 364/2008) [2008] NAHC (24 December 2008) he states at para 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.’
[23] He further interprets in para 17, section 117(1) (c) of the Labour Act ‘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 anybody or official provided for in terms of any other Act, if the decision concerns a matter within the scope of this Act; … [My emphasis]’
[24] Parker J further in para [21] continues ‘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.’
[25] In para 22 ‘The applicant is neither permitted nor entitled to go forum-shopping.’
[26] I concur with my brother that section 115 of the Labour court creates the Labour Court as a division of the High Court and vested it with the exclusive and specialised jurisdiction to deal with all matters necessary and incidental to its functions under section 117.
[27] I am in agreement that according to s 117 (1) of the Labour Act 2007, the Labour Court has exclusive jurisdiction to review, despite any other provision of any Act, any decision of anybody or official provided for in terms of any other Act, if the decision concerns a matter within the scope of this Act.
[28] I am of the view that the High Court cannot entertain a matter that falls under section 117. It purely falls under the jurisdiction n of the Labour Court.
[29] For the conclusions, the only reasonable and inexorable final conclusion that I can make judicially is that the plaintiffs present claim 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. I further 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 –
any appeal from any district labour court;
any appeal noted in terms of section 54 (4), 68 (7), 70 (6), 95 (4), 100 (2) or 114 (6);’
[30] It follows that the second and third defendants special pleas challenging the jurisdiction of this Court, sitting as the High Court, succeeds.
[31] In the result, I make the following orders:
1. The second and third defendants special pleas are upheld;
2. This Court (sitting as the High Court) has no jurisdiction to determine a matter that falls in the ambit of s 117(1) (d), (g), (h), (i) and s 23 of the Labour Act 11 of 2007;
3. The plaintiffs are ordered to pay the costs of the second and third defendants.
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A DIERGAARDT
ACTING JUDGE
APPEARANCES
For the Plaintiffs: Mr E Nekwaya (with him Ms A Samuel)
Instructed by Samuel & Company, Ongwediva
For the First Defendant: No appearance
For the Second Defendant: No appearance
For the Third Defendant: Mr N Mutorwa
Of Government Attorneys, Windhoek