Tjitemisa & Associates v Nyandoro and Others (HC-MD-LAB-MOT-GEN-2024/00029) [2024] NALCMD 45 (1 November 2024)

REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

Case Number: HC-MD-LAB-MOT-GEN-2024/00029

In the matter between:

TJITEMISA & ASSOCIATES APPLICANT

and

GELIA ETTY NYANDORO FIRST RESPONDENT THE LABOUR COMMISSIONER SECOND RESPONDENT

THE CHAIRPERSON OF THE IMMIGRATION

SELECTION CONTROL BOARD THIRD RESPONDENT

THE CHIEF OF IMMIGRATION FOURTH RESPONDENT

Neutral citation: Tjitemisa & Associates v Nyandoro (HC-MD-LAB-MOT-GEN-2024/00029) [2024] NALCMD 45 (1 November 2024)

Coram: SIBEYA J

Heard: 12 August 2024

Delivered: 1 November 2024

Flynote: Legislation – Labour Act – Declaratory order – Application for an order to declare a contract of employment unlawful and unenforceable in terms of s 117(1)(d) of the Labour Act 11 of 2007 – Point of law in limine that the Labour Court lacks jurisdiction to hear and adjudicate the application raised.

Summary: The court is seized with an application by the applicant to declare an employment contract between it and the first respondent to be unlawful and unenforceable on account of the first respondent being a prohibited immigrant. The first applicant opposed the application and raised a point of law in limine that the Labour Court lacks the necessary jurisdiction to adjudicate the alleged unlawfulness and unenforceability of a contract of employment.

Held: That in order to determine whether the court has jurisdiction to adjudicate a matter, it is critical to pay attention to the relief sought as the determinative factor to the question whether or not the court has the necessary jurisdiction to adjudicate the matter. The following must, therefore, be considered: (a) the nature of the proceedings, (b) the nature of the relief claimed therein, or (c) in some cases both (a) and (b)¹.

Held that: The Supreme Court in Masule v Prime Minister of the Republic of Namibia and Others,² found that Chapter 3 of the Labour Act headed, ‘basic conditions of employment’, (part F), particularly s 33 provides for unfair dismissal and Chapter 5 for ‘unfair labour practices’ in particular ss 48, 49 and 50, provide for unfair disciplinary action and unfair labour practices respectively, and the Labour Act is silent on wrongful/unlawful dismissal, therefore, s 117 is only applicable where there are allegations of unfairness. Where the allegation pleaded for is that of unlawfulness, that determination is in the province of the High Court.

Held further that: Based on the Masule judgment, the Labour Court has jurisdiction to adjudicate labour disputes where unfairness is alleged. Where, however, the subject of the dispute is alleged unlawfulness, the Labour Court lacks such jurisdiction and thus, the determination of the unlawfulness and unenforceability of the contract of employment in this matter falls beyond the jurisdiction of this Court.

The applicant’s application is dismissed with costs – para 29.

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ORDER

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1. The applicant’s application to declare an employment contract between it and the first respondent, for the period 22 January 2014 to 31 August 2021, to be unlawful and unenforceable on account of the first respondent being a prohibited immigrant in Namibia for that period, is dismissed.

2. The applicant must pay the costs of the first respondent on a party-party scale.

3. The matter is removed from the roll and is regarded as finalised.

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JUDGMENT

___________________________________________________________________

SIBEYA J:

Introduction

[1] The court is seized with an application to declare an employment contract between the applicant and the first respondent to be unlawful and unenforceable on account of the first respondent being a prohibited immigrant in Namibia.

[2] The application is opposed by the first respondent.

Parties and representation

[3] The applicant is Tjitemisa & Associates, a firm of legal practitioners, with its principal place of business situated at 5 Webb Street, Windhoek-North, Windhoek.

[4] The first respondent is Ms Gelia Etty Nyandoro, an adult female, resident of Windhoek and employed at Gaenor Michaels & Associates, situated at 3 Schonlein Street, Windhoek.

[5] The second respondent is the Labour Commissioner, duly appointed in terms of s 12(1) of the Labour Act 11 of 2007 (‘Labour Act’), with her offices situated at 32 Mercedes Street, Khomasdal, Windhoek.

[6] The third respondent is the Chairperson of the Immigration Selection Board, an official appointed to the Immigration Selection Board, a body established in terms of s 25(1) of the Immigration Control Act 7 of 1993 (‘Immigration Act’), with his principal place of business situated at the Ministry of Home Affairs, Immigration, Safety and Security, corner of Hosea Kutako Drive and Harvey Street, Windhoek North, Windhoek.

[7] The fourth respondent is the Chief of Immigration, an official appointed in terms of s 3 of the Immigration Act, with his principal place of business situated at the Ministry of Home Affairs, Immigration, Safety and Security, corner of Hosea Kutako Drive and Harvey Street, Windhoek North, Windhoek.

[8] The applicant’s application is opposed by the first respondent only, therefore where strictly speaking, the first respondent is the only respondent to this application, she shall be referred to as the ‘respondent’. Where it becomes necessary to refer to the other respondents, they shall be referred to by their appellations. Where reference is made to the applicant and the respondent jointly, they shall be referred to as ‘the parties’.

[9] The applicant is represented by Mr Tjombe while the respondent is represented by Ms Alexander.

Relief sought

[10] As per the notice of motion filed, the applicant seeks the following order:

‘1 Declaring the employment contract between the applicant and the first respondent, for the period from 22 January 2014 to 31 August 2021 to be unlawful and unenforceable on account of the first respondent being a prohibited immigrant during that period.

2 Further and/or alternative relief as the Honourable Court may deem fit.’

Points in limine: Jurisdiction

[11] The respondent raised a point of law in limine that this court lacks the necessary jurisdiction to adjudicate the applicant’s application for an order declaring her employment contact with the applicant for the period of 22 January 2014 to 31 August 2021 to be unlawful and unenforceable. This was on account of the first respondent being a prohibited immigrant during that period, when there is no decision by the High Court, third respondent or any other competent body that declared her to be a prohibited immigrant for the mentioned period.

[12] The respondent contended that this Court (the Labour Court) has no jurisdiction to determine her legal status in Namibia between the period of 22 January 2014 to 31 August 2021, as such jurisdiction is conferred on the High Court

[13] The respondent contended further that this court is only empowered by s 117(1)(e) of the Labour Act to grant a declaratory order, in respect of the provisions of the Labour Act, a collective agreement, employment contract or wage agreement, provided that the declaratory order is the only relief sought, by an applicant. The relief sought, she contended further, is based on the Immigration Act and not the Labour Act, therefore, this court lacks the necessary jurisdiction. On this basis, she prayed for a dismissal of the application with costs on an attorney and client scale.

[14] In the replying affidavit deposed to on behalf of the applicant by Mr Jafta Tjitemisa, it is stated, inter alia, that:

‘4. …the purpose of this application is to seek an order, as contemplated in section 117(1)(d) of the Labour Act, declaring the employment contract between the applicant and the first respondent is (sic) unlawful and therefor unenforceable. In the determination thereof, this Honourable Court would have to consider the facts and the law regarding the lawfulness or otherwise of Ms Nyandoro’s residence and employment in Namibia during the relevant time. It remains a matter of adjudication of the contract of employment of Ms Nyandoro – and this Honourable Court has jurisdiction to grant a declaratory order in respect of an employment contract – i.e. the validity and lawfulness of that contract of employment.

5. Therefore, ... the point in limine on jurisdiction must be dismissed.’

Arguments

[15] Ms Alexander argued that matters that involve the determination of a person’s immigration status fall within the jurisdiction of the High Court and not the Labour Court. She submitted further that the Supreme Court in Masule v Prime Minister of the Republic of Namibia and Others,³ cleared the air, so to speak, when it remarked at para 77 that the jurisdiction of the Labour Court provided for in s 117 of the Labour Act pertains to issues of unfairness, such as unfair dismissal or unfair labour practices and not to claims of unlawfulness.

[16] Ms Alexander argued with every ammunition in her arsenal at her disposal that the applicant’s attempt to seek a declaration of unlawfulness and unenforceability of the employment contract in relation to the respondent’s immigration’s status must be adjudicated in the High Court as it falls outside the jurisdiction of the Labour Court, and she asked for the point in limine to be upheld.

[17] Mr Tjombe argued to the contrary, namely, that the point of law in limine that this court lacks the necessary jurisdiction to adjudicate this matter must be dismissed for being meritless. He argued that the applicant is wrong in law to contend that she must first be declared a prohibited immigrant by the High Court, Immigration Selection Board or any other competent body before she can be referred to as a prohibited immigrant.

[18] Mr Tjombe submitted that a person can be referred to as a prohibited immigrant by operation of law if certain facts are present. He referred to s 39(1) and (2) of the Immigration Act for the contention that by operation of law, the respondent was, during the relevant period, illegally in Namibia and was employed without an employment permit. He also relied on Namrights Inc v Government of Namibia and Others⁴ for his contention. On this basis, he argued, the respondent was a prohibited immigrant and need not be declared as such.

[19] Mr Tjombe argued further that the applicant seeks no more than what is set out in s 117(1)(d) of the Labour Act, that is a declaratory order in respect of the contract of employment. On that basis, he submitted that this court has jurisdiction to determine this application and the point in limine raised must be dismissed.

Analysis

[20] Section 115 of the Labour Act,⁵ establishes the Labour Court as a division of the High Court.

[21] Section 117(1) on the other hand sets out the jurisdiction of the Labour Court as follows:

‘(1) The Labour Court has exclusive jurisdiction to -

…

(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;’

[22] The above provisions, in my view, demonstrate that the Labour Act established a Labour Court which is separate from the High Court. This position appears common between the parties. This proposal further finds support from Haindongo Shikwetepo v Khomas Regional Council & others;⁶ Usakos Town Council v Jantze and others;⁷ and Katjiuanjo and others v Municipality of Windhoek,⁸ to name but a few.

[23] The jurisdiction of the Labour Court was discussed in Masule (supra). It should however, be mentioned that Mr Masule approached the High Court on what the High Court perceived as a labour matter, and declined to exercise jurisdiction on the basis that the Labour Act provides exclusive jurisdiction over labour disputes to the Labour Court. It is on this premise that the Supreme Court found that the Labour Court is a division of the High Court, and is not separate or distinct from the High Court, created by Art 78(1)(c) of the Constitution.

[24] The issue for determination in this matter is whether or not the Labour Court, which is established in terms of s 115, has jurisdiction to adjudicate this matter. It is settled law that jurisdiction is determined depending on (a) the nature of the proceedings, (b) the nature of the relief claimed therein, or (c) in some cases both (a) and (b)⁹. It is, therefore, critical to pay attention to the relief sought as the determinative factor to the question whether or not this court has the necessary jurisdiction to adjudicate the matter. What the applicant seeks in casu, is an order declaring the concerned contract of employment unlawful and unenforceable based on the respondent being a prohibited immigrant at the time.

[25] The Supreme Court in Masule remarked as follows regarding jurisdiction of the Labour Court:

‘[76] There can be no doubt that the intention of the Legislature in the promulgation of s 117 of the Act was to grant the Labour Court exclusive jurisdiction in the field of labour relations. But on a reading of s 117, it does not purport to confer exclusive jurisdiction upon the Labour Court generally in labour matters i.e. employer and employee, but enumerates the matters that may serve before the Labour Court or rather prescribes that court’s jurisdiction. In other words, the scope of the exclusivity of that court is limited to cases enumerated in subsec 1(a) - (i) and subsec 2 and nothing more. It is only in subsection 1(i) where it provides the general exclusive powers to deal with all matters necessary or incidental to its functions under the Act concerning any labour matter, whether or not governed by the provisions of the Act, any other law or the common law.

[77] The question then remains whether the ‘general exclusive jurisdiction’ in subsec 1(i) ousts the common law functions of the High Court in labour matters. The answer is an emphatic no. Firstly, s 117 would have said so, without mincing words. Secondly, the Labour Court even where it was manned by knowledgeable, experienced and expertise in labour relations, cannot profess to have greater power than the High Court judges have - where the applicant pleaded a common law claim for damages arising from the unlawful premature repudiation of the fixed-term contract or where a contract of employment is breached on ordinary principles of the common law. In fact, in Chapter 3 of the Act headed, ‘basic conditions of employment’, (part F), particularly s 33 provides for unfair dismissal and Chapter 5 ‘unfair labour practices’ particularly ss 48, 49 and 50, provides for unfair disciplinary action and unfair labour practices respectively. The Act is silent on wrongful/unlawful dismissal. It appears to me that s 117 is only applicable where there are allegations of unfairness. Where the allegation pleaded for is that of unlawfulness, that is in the province of the High Court.

…

[80] The majority of the Supreme Court of Appeal (Howie, Marais, Mpati JJA and Nugent AJA), Froneman AJA dissenting rejected that argument and on the issue before us in paras 25-28 said the following:

“[25] Furthermore s 157(1) does not purport to confer exclusive jurisdiction upon the Labour Court generally in relation to matters concerning the relationship between employer and employee. Some of the implications were recently discussed by Zondo JP in Langeveldt v Vryburg Transitional Local Council & others (2001) 22 ILJ 1116 (LAC); [2001] 5 BLLR 501 (LAC). Its exclusive jurisdiction arises only in respect of ‘matters that elsewhere in terms of this Act or in terms of any law are to be determined by the Labour Court’. Various provisions of the 1995 Act identify particular disputes or issues that may arise between employers and employees and provide for such disputes and issues to be referred to the Labour Court for resolution, usually after attempts at conciliation have failed (see for example ss 9, 24(7), 26, 59, 63(4), 66(3), 68(1), 69, etc). In my view those are the ‘matters’ that are contemplated by s 157(1) and to which the Labour Court’s exclusive jurisdiction is confined (though there may be some debate in particular cases as to their ambit: See for example Mondi Paper (A Division of Mondi Ltd) v Paper Printing Wood & Allied Workers Union & others (1997) 18 ILJ 84 (D); Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Other Workers & others 1998 (1) SA 685 (C); (1998) 19 ILJ 43 (C).

[26] The only provisions relied upon in the present case in support of the submission that the respondent’s action is such a ‘matter’ were the provisions of chapter VIII. Section 191 provides that ‘a dispute about the fairness of a dismissal’ may be referred to the appropriate body for conciliation. If it is not resolved it may thereafter be referred to the Labour Court for adjudication if the dismissal was based on the employer’s operational requirements.

[27] Whether a particular dispute falls within the terms of s 191 depends upon what is in dispute, and the fact that an unlawful dismissal might also be unfair (at least as a matter of ordinary language) is irrelevant to that enquiry. A dispute falls within the terms of the section only if the ‘fairness’ of the dismissal is the subject of the employee’s complaint. Where it is not, and the subject in dispute is the lawfulness of the dismissal, then the fact that it might also be, and probably is, unfair, is quite coincidental for that is not what the employee’s complaint is about. The dispute in the present case is not about the fairness of the termination of the respondent’s contract but about its unlawfulness and for that reason alone it does not fall within the terms of the section (even assuming that the termination constituted a ‘dismissal’ as defined in chapter VIII). In those circumstances the respondent’s action is not a ‘matter’ that is required to be adjudicated by the Labour Court as contemplated by s 157(1) and the special plea was correctly set aside.”’(My emphasis)

[26] It is apparent from the Masule judgment that the Labour Court has jurisdiction to adjudicate labour disputes where unfairness is alleged. Where the subject of the dispute is unlawfulness, the Labour Court lacks jurisdiction. I, therefore, find on the basis of the Masule judgment that determination of the questions of unlawfulness and unenforceability fall beyond the jurisdiction of this court.

Conclusion

[27] In view of the foregoing conclusions and findings, I hold the view that the applicant’s application for an order to declare an employment contract between the applicant and the respondent to be unlawful and unenforceable on account of respondent being a prohibited immigrant, falls to be dismissed, as hereby do. This is due to this court lacking the necessary jurisdiction to adjudicate the matter. In light of the conclusion reached, I consider it unnecessary to determine other issues where the parties locked horns.

Costs

[28] Section 118 in the Labour Act, provides that the court is only permitted to award costs if it is established that the application was instituted, proceeded with or defended frivolously or vexatiously. In casu, I found, on the strength of the Masule judgment, that the challenge to the lawfulness of the contract of employment falls outside the jurisdiction of this court.

[29] For the reason and considering that the provisions s 118 relates to proceedings properly brought before court where it has jurisdiction, and this matter is not one of them, I find no reason why the applicant should not be awarded costs for succeeding in her contention that this court lacks jurisdiction to adjudicate this matter.

[30] After all, I hold the view that the protection against an adverse costs order provided for in s 118 applies to proceedings properly before the Labour Court and in matters falling within the jurisdictional authority of the Labour Court. I see no reason why a party that approaches the Labour Court on a matter that is beyond its jurisdiction should benefit from s 118 which is meant for the determination of labour disputes where the Labour Court has jurisdiction over. As concluded hereinabove, this is a matter that is beyond the jurisdiction of the Labour Court and I am persuaded that the applicant should be awarded costs albeit on the ordinary scale.

Order

[30] In view of the foregoing findings and conclusions, I make the following order:

1. The applicant’s application to declare an employment contract between it and the first respondent, for the period 22 January 2014 to 31 August 2021, to be unlawful and unenforceable on account of the first respondent being a prohibited immigrant in Namibia for that period, is dismissed.

2. The applicant must pay the costs of the first respondent on a party-party scale.

3. The matter is removed from the roll and is regarded as finalised.

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O S Sibeya

Judge

APPEARANCES

FOR THE APPICANT: N Tjombe

Of Tjombe-Elago Inc,

Windhoek

FOR THE 1^ST RESPONENT: N Alexander

Of Sisa Namandje & Co Inc,

Windhoek