Court name
High Court Main Division
Case name
Katjiuanjo and Others v Municipal Council of the Municipality of Windhoek
Media neutral citation
[2014] NAHCMD 311
Judge
Damaseb J










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: I 2987/2013






DATE:
21 OCTOBER 2014


NON
REPORTABLE






In
the matter between:






SADRACK
JEREMIA KATJIUANJO...........................................FIRST
PLAINTIFF


THEO
KOTZE..........................................................................SECOND
PLAINTIFF


PHILLIP
SHIKONGO................................................................THIRD
PLAINTIFF


SIEGFRIED
GEISEB...............................................................FOURTH
PLAINTIFF


EDWARD
MWAFILA..................................................................FIFTH
PLAINTIFF


JOHANNES
BEUKES.................................................................SIXTH
PLAINTIFF


MICHAEL
R
MOALUSI.........................................................SEVETH
PLAINTIFF


COLLIN
NGUNOVANDO......................................................EIGHTH
PLAINTIFF


TOINI
AUENE...........................................................................NINTH
PLAINTIFF


GERSON
JAMES......................................................................TENTH
PLAINTIFF


ABUID
NAGANENE..........................................................ELEVENTH
PLAINTIFF


MILTON
BEUKES...............................................................TWELFTH
PLAINTIFF


PHILLIPUS
SWARTS.....................................................THIRTEENTH
PLAINTIFF


IZAK
BABISH..............................................................FOURTEENTH
PLAINTIFF


FERDINAND
KUZATJIKE...............................................FIFTEENTH
PLAINTIFF


JACOBUS
IZAACKS.......................................................SIXTEENTH
PLAINTIFF


HILARIA
HESHEELA................................................SEVENTEENTH
PLAINTIFF


ADOLF
KAGHUYU......................................................EIGHTEENTH
PLAINTIFF


KALEB
MATHEUS.......................................................NINETEENTH
PLAINTIFF


JOHANNES
EICHAB.....................................................TWENTEETH
PLAINTIFF


VICTUS
BIHITILE....................................................TWENTY
FIRST PLAINTIFF


KENNEDY
CHUNGA............................................TWENTY
SECOND PLAINTIFF


JAN
COETZEE........................................................TWENTY
THIRD PLAINTIFF


FESTUS
TJAVARA...............................................TWENTY
FOURTH PLAINTIFF


WILLEM
AFRIKANER............................................TWENTY
FIFTH PLAINTIFF






And






THE
MUNICIPAL COUNCIL OF THE MUNICIPALITY OF


WINDHOEK....................................................................................DEFENDANT




Neutral
citation
: Katjiuanjo
v The Municipal Council of the Municipality of Windhoek

(I 2987/2013) [2014] NAHCMD 311 (21 October 2014)






Coram:
DAMASEB, JP






Heard:
5 August 2014






Delivered:
21 October 2014






Flynote:
Jurisdiction of the High Court - Ouster
of the High Court's jurisdiction is not readily assumed - Where a
forum other than the High Court has been given jurisdiction by the
legislature over a matter falling within the High Court's
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
.


ORDER






1.
This court has and assumes jurisdiction
in the case of
Sadrack Katjiuano and
24 others v The Municipal Council of the Municipality of Windhoek
,
case no I 2987/2013. The costs associated with the argument on
jurisdiction shall be in the cause.






2.
The matter is postponed to 04
November 2014 at 14h15
for case
management and for further directions and the parties are directed to
comply with their obligations in respect of the case management
conference; in particular, the parties are required in their joint
proposals to consider referring the matter to mediation in terms of
rules 38 and 39 of the Rules of Court.






3.
Any failure to comply with the obligations imposed on the parties by
this order will entitle the other to seek sanctions as contemplated
in rule 53 and 54;






4.
A failure to comply with any of the above directions will ipso
facto
make the party in default liable for sanctions, at the
instance of the other party or the court acting on its own motion,
unless it seeks condonation therefor within a reasonable time, by
notice to the opposing party.










JUDGMENT






DAMASEB,
JP:


Introduction






[1]
The plaintiffs, proceeding by way of combined summons, sought relief
on 10 September 2013 from the defendant for specific performance
resulting from the alleged ‘repudiation’ by the defendant
of certain terms and conditions of their employment contracts. The
relief sought includes an order for damages on account of alleged
underpayments of remuneration and benefits. It is alleged in the
particulars of claim that the defendant’s actions founding the
plaintiffs’ cause of action occurred on or about 11 September
2012 when their conditions of service allegedly ‘were
unilaterally altered’ by the defendant. It is apparent
therefore that when the cause of action arose, the labour law regime
in place was the Labour Act, No. 11 of 2007( 2007 Labour Act).[1]






[2]
The plaintiffs were appointed as municipal police officers by the
defendant. The following provisions of that Act are relevant in so
far as dispute resolution is concerned:


Chapter
8: Part C


Arbitration
of disputes (ss 84-90)


84
Definitions


For
the purposes of this Part, "dispute" means-


(a)
a complaint relating to the breach of a contract of employment
or a collective agreement;


(b)
a dispute referred to the Labour Commissioner in terms of section 46
of the Affirmative Action (Employment) Act, 1998 (Act 29 of 1998);


(c)
any dispute referred in terms of section 82(16); or


(d)
any dispute that is required to be referred to arbitration in
terms of this Act
.






85
Arbitration


(1)
There are established, as contemplated in Article 12(1)(a) of the
Namibian Constitution, arbitration tribunals for the purpose of
resolving disputes.


(2)
Arbitration tribunals operate under the auspices of the Labour
Commissioner, and have jurisdiction to-


(a)
hear and determine any dispute or any other matter arising from the
interpretation, implementation or application of this Act; and


(b)
make any order that they are empowered to make in terms of any
provision of this Act.




86
Resolving disputes by arbitration
through Labour Commissioner


(1)
Unless the collective agreement provides for referral of disputes to
private arbitration, any party to a dispute may refer the dispute in
writing to-






(a)
the Labour Commissioner; or


(b)
any labour office.






(2)
A party may refer a dispute in terms of subsection (1) only-






(a)
within six months after the date of dismissal, if the dispute
concerns a dismissal; or


(b)
within one year after the dispute arising, in any other case.’






[3]
As far as the Labour Court is concerned, in terms of s 117(1) (d)
of the 2007 Labour Act, the Labour Court has exclusive jurisdiction
to:






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
...’ (my underlining for emphasis)






[4]
I needed to be satisfied that the present is not the sort of matter
where this court had consistently declined jurisdiction with the
advent of the 2007 Labour Act.
In
Kamati
v Namibia Rights and Responsibilities Incorporated
[2],
van Niekerk J held that the Labour Court does not have jurisdiction
to entertain a claim for unfair dismissal and non-compliance with
basic conditions of employment; and that in terms of s 38 of the 2007
Labour Act such a dispute may be referred to the Labour Commissioner
who must, in turn, refer it to arbitration in accordance with Part C
of Chapter 8 of the 2007 Labour Act. The ratio for this approach is
the judicially recognised rationale that the legislature has chosen
conciliation and arbitration as the primary means for the resolution
of disputes under the auspices of the Labour Commissioner:  the
emphasis being on expeditious finalisation of disputes in an informal
setting, as recognised by the restriction placed on the participation
of legal practitioners in such proceedings.[3]






[5]
The concern I had was therefore two-fold:


1.
Was the matter subject to the Labour
Commissioner’s arbitration jurisdiction in terms of s 86 of the
2007 Labour Act?


2.
Failing the above, did the matter not
fall within the exclusive jurisdiction of the Labour Court
considering the relief sought involved a declarator?






[6]
Upon the matter being called before me, I had concerns if the High
Court had jurisdiction, although the parties proceeded on the
assumption that the High Court had jurisdiction. Jurisdiction is a
matter a court is entitled to raise mero motu - hence my
raising it and requiring the parties to argue it on 5 August 2014.
Both parties submitted helpful heads of argument.






[7]
During argument, I enquired from counsel why the matter was not
referred to the Labour Commissioner for conciliation and arbitration
under chapter 8 of the 2007 Labour Act. It was confirmed on the
record that the Labour Commissioner declined jurisdiction. Mr
Namandje argued that the Labour Commissioner declining jurisdiction
was no answer to the question whether this court has jurisdiction.
That is true of course, but the converse is also true: 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[4]
has been excluded by the legislature in the clearest terms.


The
issue of jurisdiction considered






Plaintiffs’
submissions


[8]
Mr Van Zyl, on behalf of the plaintiffs, submitted that the 2007
Labour Act does not apply to the present dispute for the following
reasons:


a)
The 2007 Labour Act makes no provision
for the award of damages such as the plaintiffs seek alongside the
declaratory relief;


b)
The
2007 Labour Act does not confer the power to determine contractual
damages upon an arbitrator: s 86(15) (
d)
of
the Act empowers an arbitrator to make ‘an award of
compensation’ but does not expressly mention damages.[5]


c)
The plaintiff’s fallback position
is that even if I were to find that the Act applies, the High Court’s
jurisdiction is not excluded and that the court is competent to
entertain the matter.






Defendant’s
submissions


[9]
Mr Namandje, for the defendant, advanced the following reasons why,
in his view, the High Court does not have jurisdiction in the matter
before court: The decision in
National
Union of Namibia Workers v Naholo
[6]
that the high court has inherent jurisdiction to hear a matter that
appears to be of a labour nature was based on the inherent
jurisdiction of the High court as contained in ss 2 and 16 of the
High Court Act. He further developed the argument that s 115 creates
the Labour Court as a division of the high court and vests it with
exclusive and specialized jurisdiction to deal with all matters
necessary or incidental to its functions under s 117(1) (
a)
concerning ‘any labour matter’, whether or not governed
by the provisions of the Labour Act, any other law or the common law.
Counsel argued that  the Labour Court is vested with a wide
discretion to deal with ‘any labour matter’ and that the
plaintiff was accordingly not entitled to approach the High Court but
the Labour Court.



The
law






[10]
Parker
J held in
Classic
Engines CC v Nghifoka
[7]
that the alternative dispute resolution procedure laid down in s 86
of the Labour Act, which requires a complainant to first refer a
dispute for conciliation/arbitration, did not make provision for
damages and that a claim for damages in the employment context did
not constitute unlawful dismissal and therefore fell outside the
compulsory alternative dispute resolution process of s 86 and that
the High Court was the competent forum to entertain such a dispute.
Mr Namandje seemed to accept that the arbitration jurisdiction does
not apply to the present dispute, and I am satisfied that the matter
was not susceptible of referral to such jurisdiction.






[11]
It is clear on the authority of
National
Union of Namibian Workers v Naholo
[8]
that the High Court’s jurisdiction can only be excluded in the
clearest language and that absent such clear intent, the High Court
has jurisdiction. That view finds support in the Supreme Court
judgment of
Reinhold
Hashetu
Nhikofa v Classic Engines CC
,[9]
where O’Regan AJA, stated as follows:






[18]
There is nothing in the Act that expressly purports to exclude the
jurisdiction of the High Court in relation to damages claims arising
from contracts of employment. Indeed, as pointed out above s 86(2) of
the Act provides that a party may refer a dispute to the
Labour Commissioner, and is thus not compelled to do so. A court will
ordinarily be slow to interpret a statute to destroy a litigant’s
cause of action (see Fed life Assurance Ltd v Wolfaardt 2002
(1) SA 49 (SCA) at para 16). In the absence of a clear rule that if a
litigant fails to counterclaim for damages arising from a contract of
employment that has been placed before the Labour Commissioner in
relation to a different dispute, the court will rarely conclude that
such a rule is implicit in legislation.






[20]
I conclude, therefore, that given the absence of a clear legislative
provision sustaining it, appellant’s argument that respondent
was compelled to bring its counterclaim in the proceedings under the
Act cannot be upheld.’






[12]
In
Namdeb
Diamond Corporation (Pty) Ltd v Mineworkers Union of Namibia and
Others
[10],
Smuts
J recognised that s 117(1)(
d)of
the 2007 Labour Act (to the extent that it limits the court to
granting declaratory relief in circumstances where declaratory relief
is the only relief sought) is ‘anomalous’ but does not
translate into a manifestly absurd result. The Labour Court will
decline to grant declaratory relief where it was initially sought as
part of other relief (such as an interdict) even if, when the matter
is ultimately argued, it had become the only relief sought.[11]
It becomes apparent therefore that where a party seeks a declarator
in addition to other relief, the Labour Court does not have
jurisdiction.






Application
of law to facts






[13]
As I understand Mr Namandje’s argument, the Labour Court, to
the exclusion of the High Court, has jurisdiction in this matter,
because in terms of s 115 the 2007 Labour Act, The Labour Court, as a
division of the high court, has the same inherent jurisdiction
enjoyed by the high court; that in terms of s 117 the Labour Court
has jurisdiction to entertain any labour-related matters and that, to
the extent that damages relief may be additional to the declarator
sought and thus on the face of it excluded from the Labour Court’s
jurisdiction, it falls within any ‘labour-related matter’.






[14]
The issue in my view is not so much whether the Labour Court does
have jurisdiction, but whether the legislature intended to exclude
the High Court’s jurisdiction in the kind of dispute now before
court. Nothing which Namandje has said compels me to the conclusion
that this court has no jurisdiction. The High Court authority bearing
on the subject does not appear to me to be clearly wrong and the
Supreme Court authority on the subject points to there being
jurisdiction in this court to entertain the matter. Ouster of the
High Court's jurisdiction is not readily assumed. Where a forum other
than the High Court has been given jurisdiction by the legislature
over a matter falling within the High Court's 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
.
Such clear intent lacking, this court
assumes jurisdiction in the present matter.






Order


[15]
In the premises, I make the following orders:






1.
This court has and assumes jurisdiction
in the case of
Sadrack Katjiuano and
24 others v The Municipal Council of the Municipality of Windhoek
,
case no I 2987/2013. The costs associated with the argument on
jurisdiction shall be in the cause.






2.
The matter is postponed to 04
November 2014 at 14h15
for case
management and for further directions and the parties are directed to
comply with their obligations in respect of the case management
conference; in particular, the parties are required in their joint
proposals to consider referring the matter to mediation in terms of
rules 38 and 39 of the Rules of Court.






3.
Any failure to comply with the obligations imposed on the parties by
this order will entitle the other to seek sanctions as contemplated
in rule 53 and 54;






4.
A failure to comply with any of the above directions will ipso
facto
make the party in default liable for sanctions, at the
instance of the other party or the court acting on its own motion,
unless it seeks condonation therefor within a reasonable time, by
notice to the opposing party.






PT
Damaseb


Judge-President



APPEARANCE:






PLAINTIFF:
C J Van Zyl


On
instructions of Mueller Legal Practitioners






DEFENDANT:
S Namandje


Of
Sisa Namandje & Co Inc.



[1]
Which came into force on 1 November 2008.




[2]
2013 (2) NR 452(LC).




[3]
Namdeb
Diamond Corporation (Pty) Ltd v Mineworkers Union of Namibia and
Others

LC 103/2011, unreported delivered on 13 April 2012 , paras 12-13.




[4]
Section 16 reads:
Persons
over whom and matters in relation to which the High Court has
jurisdiction


The
High Court shall have jurisdiction over all persons residing or
being in and in relation to all causes arising and all offences
triable within Namibia and all other matters of which it may
according to law take cognisance, and shall, in addition to any
powers of jurisdiction which may be vested in it by law, have power-


(a)
to hear and determine appeals from all lower courts in Namibia;


(b)
to review the proceedings of all such courts;


(c)
......


[Para
(c) deleted by sec 2 of Act 10 of 2001.]


(d)
in its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.




[5]
Although in the case of Reinhold Hashetu Nhikofa v Classic Engines
CC, Case no.: SA 53/2012, delivered on 26 March 2014, this question
was left open.




[6]
2006 (2) NR 659(HC)




[7]
2013 (4) 659.




[8]
2006 (2) NR 659(HC)




[9]
Supra, fn 3. Compare
Trusco
Group International (Pty) Ltd v Katzao (I 3004-2007) [2011] NAHC 350
(24 November 2011),

paras 14-18.




[10]
LC 103/2011, unreported delivered on 13 April 2012 at paras 26-28.




[11]
Meatco
v Namibia Food and Allied Workers Union and Others
,
NALCMD 14 (19 April 2013) at para 12.