Barandonga v Namibia Wildlife Resort (HC-MD-LAB-APP-AAA-2024/00022) [2025] NALCMD 13 (4 April 2025)

Case Title:

Enginie Barandonga Appellant

and

Namibia Wildlife Resort 1^st Respondent

Marlee Calph N.O. 2^nd Respondent

The Labour Commissioner 3^rd Respondent

Case No:

HC-MD-LAB-APP-AAA-2024/00022

Division of Court:

Main Division

Heard on:

01 November 2024

Heard before:

Honourable Lady Justice Rakow

Delivered on:

4 April 2025

Neutral citation: Barandonga v Namibia Wildlife Resort (HC-MD-LAB-APP-AAA-2024/00022) [2025] NAHCMD 13 (4 April 2025)

Order:

1. The application for reinstatement of an order reinstating the applicant's appeal under the case number HC-MD-LAB-APP-AAA 2024/00022 is dismissed.

2. The court is not condoning the applicant's non-compliance with Rule 17(25) of the rules of the Labour Court insofar as the applicant failed to prosecute the appeal under case number HC-MD-LAB-AAA-2024/00022.

3. No order as to costs.

Reasons for order:

RAKOW, J:

Introduction

[1] The appellant is Enginie Barandonga, an adult female person, currently residing in Khorixas. The first respondent is Namibia Wildlife Resorts, a company established by Namibian legislation in terms of s 2(1) and 2(2) of the Namibia Wildlife Resorts Company Act 3 of 1998. The second respondent is Marlee Calph, a major female arbitrator designated and appointed as such under the Labour Act 11 of 2007, cited as the second respondent in these proceedings, in his capacity as an arbitrator, appointed as such in terms of s 85 of the act. The third respondent is the Labout Commissioner, the appointing authority of the second respondent, duly appointed as such in terms of the provisions of s 120 of the Labour Act 11 of 2007.

[2] The purpose of this application is to seek an order reinstating the applicant’s appeal under the case number HC-MD-LAB-APP-AAA-2024/00022 and condoning the applicant’s non-compliance with Rule 17(25) of the rules of the Labour Court insofar as the applicant failed to prosecute the appeal so filed within a 90 day period.

Arbitration award

[3] On 18 April 2024 the appellant noted an appeal against the whole of the arbitration award handed down by the second respondent on 18 March 2024.

[4] The following order was made:

‘AWARD

[116] Having considered the evidence and (sic) of the parties and having made findings as stated herein above, I accordingly make the following order that:

1. The applicant’s dispute with regards to unfair dismissal based on severe penalty and impartiality of the chairperson is consequently dismissed.

2. There shall be no order to costs.’

Explanation for the delay in the filing of the appeal records

[5] The appellant noted an appeal on 18 April 2024 under HC-MD-LAB-APP-AAA-2024/00022 by filing the appeal registration form, LC 41 and Form 11 together with the relevant affidavits of service. The first respondent filed its opposition to the appeal on 22 April 2024. In terms of rule 23(4) of the Rules relating to the Conduct of Conciliation and Arbitration before the Office of the Labour Commissioner, the arbitrator is required to dispatch the record of the arbitration proceedings to the Registrar of the High Court within 21 days of noting of the appeal and therefore should have been released by 3 May 2024 to the Registrar of the High Court.

[6] On 13 June 2024 the legal practitioner of the appellant, Mr Ikanga addressed a letter to the Labour Commissioner requesting the said record. On 27 June 2024 he attended to the office of the Labour Commissioner and spoke to a certain Mr Mainga who is a case management clerk employed by the Office of the Labour Commissioner and the person responsible for the management of the records of arbitration proceedings in matters before the Office of the Labour Commissioner. He was informed that Mr Mainga has not yet received the record of proceedings.

[7] On 28 June 2024 Mr Ikanga received an email from Mr Mainga informing him that his office has now received the recoding and would forward it for transcription. On 12 July 2024 Mr Ikanga enquired again via email when the transcribed record will be available where-upon Mr Mainga answered him on 16 July 2024 by forwarding a notification of transmission of the record. The record was filed with the Registrar on 19 July 2024, a day after the prosecution of the appeal has lapsed. There was also a condonation application filed for the late filing of the heads of argument of the appellant with which no issue was taken and it is therefore granted.

Prospects of success or not

[8] The appellant then proceeded in her founding affidavit and sets out the prospects of success. She referred to her grounds of appeal and also sets out what basically happened in her matter. On 16 August 2021, an employee of the respondent who served as a waitress at the time served a guest at the bar, at Terrace Bay NWR Resort and erroneously processed more drinks than ordered and immediately alerted her supervisor.

[9] The supervisor informed them that the waitress is unable to refund this amount and ordered the appellant to contribute in order to pay for the cash shortage. After she gave her the money, the supervisor further ordered them to proceed to the shop in order to get stock to the value of the amount they contributed.

[10] Insofar as the finding by the arbitrator is concerned namely that the applicant’s dismissal was both procedurally and substantively fair, the applicant submit that the arbitrator erred by disregarding the fact that the appellant acted on her supervisor’s instructions and that the arbitrator failed or misdirected herself by failing to take into consideration that no action was taken against one of the employees that was also involved.

[11] The evidence was more fully dealt with by the first respondent. The first witness which was called was Ms Aletta Keises. She was employed at the resort bar and acting supervisor. She testified that on 16 August 2021 while the appellant was working in the bar. An incident of overcharging someone occurred at the bar and the witness and the appellant were asked to contribute money towards the money that is to be returned to the tourist. Both assisted her with N$25 each. She then took the money and place it in an envelope and inside the safe with the customer’s name written on the envelope.

[12] She testified that in 2018 a certain Ms Mbomba also overcharged tourists but she was assisted by her supervisor and the problem was resolved. She still works for the first respondent, unlike a certain Engelbrecht who facilitated a double payment but when she wanted to return the money it got lost. She was fired. Ms Keises however were dismissed. She admitted that she did not have access rights to the first respondent’s system and once a mistake is made on the system, it can only be corrected by someone with access rights. It was further put to her that she and two colleagues went to the shop at the resort and represented the N$825 difference which was paid as their tip and took stock belonging to the respondent for that money.

[13] The appellant testified that she was asked to contribute N$200 on behalf of a colleague and that Ms Keises was referred to as her supervisor. After this transpired, they went to the shop and collected stock. She however conceded that she worked for almost 5 years for the first respondent and should be aware of the rules of the first respondent. She and Ms Keises went to the shop and used the CCV code of the card to collect stock to the value of their contribution.

[14] A certain Mr Murangi was appointed to investigate the matter and his report was handed in as an exhibit. He further testified that he took explanations from all concerned including the person who bought the drinks who complained to the manager that they were overcharged. One of these tonic drinks costs N$16.50 and if the version of the appellant is to be believed, their evidence was that they charged for 53 tonics instead of 5 tonics but this does not calculate to N$825. He further found no genuine error on the system when he checked the system and he testified, if there was something which was not correct, it would be hanging on the system and show up.

[15] Mr Nekwaya testified that he was the resort manager and present at the camp on 16 August 2021. There is no other supervisor other than him at the camp that day and the incident was never reported to him that day, by the three employees. He only became aware of what happened when the clients contacted him on 29 August 2021 and sent him the receipts when he confronted Ms Anna Tjivezee with the handwritten receipts. Ms Keises only phoned the clients after the investigation commenced to offer the return of the N$825. Regarding the issue of Ms Mbomba, he testified that he will correct legitimate issues if it is reported to him.

[16] Ms Petrine Smith also testified and confirmed that had the employees not informed her that the N$825 was a tip, she would never have allowed them to collect stock from the shop to that amount. This information was given to her by Ms Anna Tjivezee. Mr Simon Iiyambula also testified and his role was to provide clarity on the first respondent’s IR policy. He did not testify about his findings in the disciplinary hearing.

The arguments by the parties

[17] On behalf of the appellant it was submitted that from the record, it is apparent that the internal disciplinary hearing chairperson testified on behalf of the respondent during the arbitration proceedings.

[18] It was further submitted that substantive fairness involves the question whether the sanction of dismissal was suitable in the circumstances and the general practice both in South African Labour Court and in this Labour Court having regard to Labour litigation as a whole, seemingly is that courts enjoin employers to consider sanctions short of dismissal (final warnings, suspension, demotion) before terminating the contract for disciplinary reasons. It is a generally accepted principle of law that the burden of proof lies with the employer. In labour law where an employer wishes to dismiss an employee for misconduct it is incumbent on the employer to establish on a balance of probability that the employee is guilty of said misconduct in order for dismissal to be fair.

[19] For the respondent it was contended that this is not a permissible appeal, the appeal is not on questions of law alone as required by section 89(1)(a) of the Labour Act 11 of 2007 and the appellant has not averred nor shown that the arbitrator committed errors of fact perverse the evidence presented and that these errors constituted findings which no reasonable decision maker under the circumstance could have reached. The arbitrator’s findings were on all accounts correct.

[20] It was further argued that the grounds of appeal of the notice of appeal do not specify the error in law committed by the arbitrator, it merely alleges that the arbitrator erred in law in consideration of the facts and the application of the law, in finding that the respondent had a valid and fair reason to find the appellant guilty and that this was supported by the witness statements. The arbitrator supported all her findings with reference to the evidence of the witnesses.

[21] It was further submitted that the arbitrator’s finding that the respondent had proven the misconduct for which the applicants were charged is well founded, the finding is supported by the evidence and it is in fact correct, a reasonable arbitrator would have arrived at the same finding.

[22] Regarding the ground of appeal in paragraph 10.3 of the notice of appeal being raised against the severity of the sanction, the court was referred to the matter of Model Pick ‘n Pay Family Supermarked v Mwaala¹: Here the honourable Judge President held the following:

‘The question that this Court has to decide is this: When will, or should Courts interfere with the decision of an employer to impose the sanction of dismissal? In the words of Kroon JA in Country Fair Foods (Pty) Ltd v CCMA and others [1999] 11 BLLR 1117 (LAC) at 12 E – F:

‘“It remains part of our law that lies in the first place within the province of the employer to set the standard of conduct by its employees and to determine the sanction with which non-compliance will be visited, interference therewith is only justified in the case of unreasonableness and unfairness.”

John Grogan in his book Dismissal analyses the judgments of the Courts in South Africa where there has been intense judicial activity on the subject and comes to the following conclusion:

“…(T)he test appears to be whether the decision to dismiss can be regarded as so excessive that no reasonable person (or employer) would have taken it.”’

[23] It is also submitted that no applicant presented any evidence on the alleged biasness of the disciplinary hearing chairperson, nor was there any evidence presented by any of the applicants that they had challenged the impartiality of the disciplinary hearing chairperson during the disciplinary hearing proceedings.

Legal arguments

[24] In the matter of Fisheries Observer Agency v Everson², Angula DJP held the following:

‘I consider it improper for the chairperson of the internal disciplinary hearing to have to testify at the arbitration hearing. In my view, his evidence amounts to self-corroboration. It has no probative value. It would have sufficed to simply have handed in evidence, the records of the internal disciplinary hearing. The record speaks for itself.’

[25] In the matter of Swakop Uranium (Pty) Ltd v Moller³ , Masuku J identified circumstances in which the disciplinary chairperson is likely to testify in the following manner:

‘There are very few circumscribed circumstances in which it may be necessary for the chairperson to file an affidavit and this would be where allegations of bias, partiality or other improper conduct or motive, is levelled against him or her. One can imagine what chaos would eventuate where the procedure followed in arbitration proceedings such as the instant one, were to be a norm. Sitting as we do in the High Court, we would then be called before the Supreme Court by one or other party to give evidence regarding the proceedings before us. That would be improper and unfair, both on us as judges in the trial court, the parties and probably the Supreme Court as well. The interests of justice would possibly suffer a telling blow.’

[26] In this instance the chairperson of the disciplinary testified but his evidence was restricted to the company policies in place and he did not express his opinion regarding any of the findings he made nor did he testified about any of the evidence he heard in the disciplinary hearing.

[27] In Dominikus v Namgem Diamonds Manufacturing⁴ substantive fairness was explained as follows:

‘Substantive fairness means that a fair and valid reason for the dismissal must exist. In other words, the reasons why, the employer dismisses an employee must be good and well grounded; they must not be based on some spurious or indefensible ground. This requirement entails that the employer must, on a balance of probabilities, prove that the employee was actually guilty of misconduct or that he or she contravened a rule. The rule, that the employee is dismissed for breaking, must be valid and reasonable. Generally speaking, a workplace rule is regarded as valid if it falls within the employer's contractual powers and if the rule does not infringe the law or a collective agreement.’

Legal principles regarding an error of fact as a question of law

[28] When dealing with determining questions of law on appeal in labour matters, the court can do no better than to refer to the matter of Janse Van Rensburg v Wilderness Air Namibia (Pty) Ltd ) ⁵ wherein the Supreme Court points out what is understood regarding appeals that are limited t a question of law alone. O’Reagan AJA said:

‘[46] Where an arbitrator’s decision relates to a determination as to whether something is fair, then the first question to be asked is whether the question raised is one that may lawfully admit of different results. It is sometimes said that ‘fairness’ is a value judgment upon which reasonable people may always disagree, but that assertion is an overstatement. In some cases, a determination of fairness is something upon which decision-makers may reasonably disagree but often it is not. Affording an employee an opportunity to be heard before disciplinary sanctions are imposed is a matter of fairness, but in nearly all cases where an employee is not afforded that right, the process will be unfair, and there will be no room for reasonable disagreement with that conclusion. An arbitration award that concludes that it was fair not to afford a hearing to an employee, when the law would clearly require such a hearing, will be subject to appeal to the Labour Court under s 89(1)(a) and liable to be overturned on the basis that it is wrong in law. On the other hand, what will constitute a fair hearing in any particular case may give rise to reasonable disagreement. The question will then be susceptible to appeal under s 89(1)(a) as to whether the approach adopted by the arbitrator is one that a reasonable arbitrator could have adopted.

[47] In summary, in relation to a decision on a question of fairness, there will be times where what is fair in the circumstances is, as a matter of law, recognised to be a decision that affords reasonable disagreement, and then an appeal will only lie where the decision of the arbitrator is one that could not reasonably have been reached. Where, however, the question of fairness is one where the law requires only one answer, but the arbitrator has erred in that respect, an appeal will lie against that decision, as it raises a question of law.

[48] Finally, when the arbitrator makes a decision as to the proper formulation of a legal test or rule, and a party considers that decision to be wrong in law, then an appeal against that decision will constitute an appeal on a question of law, and the Labour Court must determine whether the decision of the arbitrator was correct or not.

[49] The advantage of the approach outlined above is that it seeks to accommodate the legislative goal of the expeditious and inexpensive resolution of employment disputes, without abandoning the constitutional principle of the rule of law that requires labour disputes to be determined in a manner that is not arbitrary or perverse. It limits the appellate jurisdiction of the Labour Court by restricting its jurisdiction in relation to appeals on fact and on those questions of fairness that admit of more than one lawful outcome to the question whether the decision of the arbitrator is one that a reasonable arbitrator could have reached. Other appeals may be determined by the Labour Court on the basis of correctness. In outline, then, this is the approach that should be adopted in determining the scope of appeals against arbitration awards in terms of s 89(1)(a).’

[29] In the matter of Jimmy-Naruses v Duiker Investment 142 (Pty) Ltd, ⁶Schimming-Chase AJ said the following:

‘In terms of section 89(1)(a) of the Labour Act a party to a dispute may appeal to the Labour Court against an arbitrator’s award made in terms of section 86 on any question of law alone. The general principle to be applied to determine whether an appeal is on a question of law is whether on the material placed before the arbitrator during the proceedings, there was no evidence which could have reasonably supported the findings made. Thus, the test is whether, on a proper evaluation of the evidence placed before the arbitrator that evidence leads inexorably to the conclusion that no reasonable arbitrator could have made such findings. Simply, the appellant must show that the arbitrator’s conclusion could not reasonably have been reached.’

[30] Just because the appellant or any superior authority would, on the same facts, have possibly reached a different finding that does not automatically justify an interference with the arbitrator’s decision. In Andima v Air Namibia (PTY) Limited and Another ⁷ the court specifically dealt with the question as to when a finding is perverse. It found:

‘that a finding is perverse if: (a) it is based on inadmissible or irrelevant evidence, (b) it fails to take into account all the relevant evidence, and (c) it is against the weight of the evidence in that it cannot be supported by the evidence on the record. Accordingly, the finding would not be perverse and appellate interference would not be justified just because, on the same facts, the superior tribunal could have come to a different conclusion.’

[31] In Reuter v Namibia Breweries Ltd, ⁸ Parker AJ said the following:

‘The function to decide acceptance or rejection of evidence falls primarily within the province of the arbitration tribunal. The Labour Court will not interfere with arbitration tribunal’s finding where no irregularity or misdirection are proved or apparent on the record. Where there is no misdirection on fact by the arbitrator the presumption is that the arbitrator’s conclusion is correct and the Labour Court will only reverse the arbitrator’s conclusion on fact if convinced that the conclusion is wrong.’

Conclusion

[32] The appellant had to make out a case that she has a good reason for not prosecuting her appeal in good time as well as that there is prospects of success. She placed certain contentions before court in her founding affidavit but did not deal extensively with the evidence, unlike the representative for the first respondent. The first respondent dealt extensively with the evidence, pointing out from the evidence why the second respondent did not err in law when she handed down her judgement.

[33] In terms of section 89(1)(a) of the Labour Act a party to a dispute may appeal to the Labour Court against an arbitrator’s award made in terms of section 86 on any question of law alone. The question that should be answered, is whether her interpretation of the evidence before her was so wrong that no reasonable arbitrator would have come to the same conclusion. In this instance it is not the case. The appellant therefore failed to make out a case for the success of the appeal and therefore the prospects of success requirement is not met. For this reason there can be no condonation.

[36] In the result, I make the following order:

1. The application for reinstatement of an order reinstating the applicant's appeal under the case number HC-MD-LAB-APP-AAA 2024/00022 is dismissed.

2. The court is not condoning the applicant's non-compliance with Rule 17(25) of the rules of the Labour Court insofar as the applicant failed to prosecute the appeal under case number HC-MD-LAB-AAA-2024/00022.

3. No order as to costs.

Judge’s signature

Note to the parties:

E RAKOW

Judge

Not applicable

Counsel:

Plaintiff:

Defendants:

M Ikanga

Of M. Ikanga & Associates Inc., Windhoek

J Boltman

Of Köpplinger Boltman Van Greunen, Windhoek