IN THE HIGH COURT OF NAMIBIA
NOT REPORTABLE
REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA
JUDGMENT
Case no: LC 51/2010
In the matter between:
NAMURA MINERAL RESOURCES (PTY) LTD
.....................................APPLICANT
and
PHILLIP MWANDINGI
..................................................................1st
RESPONDENT
THOMAS AMBUNDA
.................................................................2nd
RESPONDENT
SAMUEL NELUMBU
...................................................................3rd
RESPONDENT
WILLEM NAHENU
.......................................................................4th
RESPONDENT
PAULUS SHIKONGO
..................................................................5th
RESPONDENT
Neutral citation: Namura
Mineral Resources (Pty) Ltd v Mwandingi (LC 51/2010) [2013]
NALCMD4(23 January 2013)
Coram: Schimming-Chase, AJ
Heard: 17 January 2013
Delivered: 23 January 2013
Flynote: Application for review
of arbitration proceedings in respect of labour dispute –
Arbitrator refusing to recuse himself after it was established that
he had prior knowledge of the dispute – Arbitrator further
having discussions with one or more of the respondents before
delivering his award in the absence of the applicant.
Flynote: Practice –
Respondents raising point that they were not properly served because
case number did not appear in newspaper tear sheets – Referral
form (Form LC21) not signed.
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ORDER
%20Ltd%20v%20Mwandingi%20(LC%2051-2010)%20%5B2013%5D%20NALCMD4(23%20January%202013)_html_11a7f518.gif)
Granted in court ex tempore.
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REASONS
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SCHIMMING-CHASE, AJ
On 18 January 2013, and after hearing
submissions by counsel appearing for the applicant and counsel
appearing for the second to fifth respondents, I made the following
order with reasons to follow:
“1.
The arbitration proceedings in respect of a labour dispute between
the applicant and the second to fifth respondents before the first
respondent in his capacity as duly appointed arbitrator in case
number CRWK 207-2010 conducted on 21 May 2010 as well as the
resultant award is reviewed and set aside.
2.
Should the second respondent wish to refer this dispute for
arbitration, he must comply with Rules 14(1)(b) and 14(2) of the
Rules relating to the Conduct of Conciliation and Arbitration before
the Labour Commissioner.
3.
Should any of the other respondents wish to join the second
respondent’s dispute, they must comply with rules 5(2), 5(3)
and 14(2)(c) of the Rules relating to the conduct of Conciliation and
Arbitration before the Labour Commissioner
4.
The dispute, if so referred, shall be referred back to the labour
commissioner to appoint a new arbitrator to hear the matter de
novo.”
I now provide the reasons for the
above order.
This is an application for the review
and setting aside of the arbitration proceedings held in respect of
a dispute between the applicant and the second to fifth respondents
conducted on 21 May 2012 before the first respondent as the duly
appointed arbitrator.
The application for review is
launched in terms of sections 89(4) and (5) of the Labour Act, 11 of
2007 (“the Labour Act”) which provide that a party to an
arbitration hearing may apply for the review and setting aside of an
arbitration award if one or more of the following defects in the
arbitration proceedings are present in the arbitration proceedings.
The defects are set out in section 89(5) of the Labour Act as
follows:
“(5)
A defect referred to in subsection (4) means-
that
the arbitrator-
(i)
committed misconduct in relation to the duties of an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the arbitrator's power; or
that
the award has been improperly obtained.”
The main basis for review is that the
first respondent continued to arbitrate the dispute between the
parties, despite having received correspondence relating to the
dispute from one of the respondents before the arbitration
proceedings commenced, and further that the first respondent had
discussions concerning certain aspects of the dispute in the absence
of the applicant and its representatives, both prior to the dispute
being referred and after all evidence was led but before the award
was finalised. The first respondent did not oppose the application.
It was submitted that in the result, the first respondent committed
a gross irregularity contrary to the provisions of section 89(5)(a)
of the Labour Act.
Counsel for the applicant also relied
on two further considerations which he submitted, supported a
decision to set aside the arbitration proceedings and to refer the
dispute to arbitration de novo before a different arbitrator.
The first is that the referral form from which the arbitration
proceedings initially flowed (Form LC 21) was never signed. In this
regard, Rules 14(1)(b) and 14(2)(a) of the Rules Relating to the
Conduct of Conciliation and Arbitration before the Labour
Commissioner provide that a party that wishes to refer a dispute to
the labour commissioner for arbitration must do so by delivering a
completed Form LC 21, which is called a “referral
document” and that the referring party must sign the
referral document in accordance with Rule 5. Rule 5 in turn provides
as follows:
“5
Service
(1)
A document that a party must sign in terms of the Act or these rules
may be signed by the party or by a person entitled in terms of this
Act or these rules to represent that party in the proceedings.
(2)
If proceedings are jointly instituted or opposed by more than one
employee the employees may mandate one of their number to sign
documents on their behalf.
(3)
A statement authorising the employee referred to in subrule (2) to
sign documents must be signed by each employee and attached to the
referral documentation, together with a legible list of their full
names and addresses.”
In this regard, counsel for the
applicant relied on the unreported decision of this court delivered
on 20 October 2011 in Waterberg Wilderness Lodge v Menesia Uses
and 27 Others in case number LCA 16/2011 where it was held that
anything that flowed from an unsigned referral form is a nullity.
The second consideration (not raised
on the papers) is that it was apparent from the record of
arbitration proceedings as well as the first respondent’s
award that the second and third respondents did not testify under
oath at the arbitration proceedings. It is clear that none of the
statements made by the respondents at the hearing were made under
oath, and the cross “questioning”
of the respondents by the representatives of the applicant was also
not under oath. In this regard counsel for the applicant relied on
the unreported judgment of this court in Avbob Namibia v Sedekias
Gam-Goaseb in case number LCA 36/2011 delivered on 8 June 2012
at par [4], [5] and [6] where it was held that the arbitrator
committed a gross irregularity rendering the awards susceptible to
review by accepting as evidence statements which were not made under
oath or affirmed.
At the commencement of the hearing,
counsel for the second to fifth respondents applied for condonation
for the late filing of the second and third respondents’
opposing affidavits which were delivered 2 years after these
proceedings were instituted. No affidavits were delivered by the
fourth or fifth respondents, and no explanation was provided for
this failure. The applicant, initially opposed the application for
condonation but changed its stance on the basis that it wished to
concentrate on reaching finality in these proceedings. The
application for condonation was granted as a result, bearing in mind
the provisions of Rule 7(1) of the Labour Court Rules.
In his heads of argument, counsel for
the second to fifth respondents conceded that the matter should be
referred back to the Labour Commissioner for a hearing de novo
because the referral form (Form LC 21) was not signed, and because
the first respondent did not oppose the application. As regards the
failure of the first respondent to recuse himself during the
arbitration proceedings, counsel for the second to fifth respondents
conceded that a reasonable litigant could apprehend fear of bias in
the particular circumstances of the case.
Counsel for the second to fifth
respondents raised a further point for the first time in his heads
of argument which he submitted should bring an end to the matter in
the second to fifth respondents’ favour in spite of the above
concession. The point raised is that the second to fifth respondents
did not receive proper service of the application as a result of
which the application should be struck from the roll. I accordingly
deal with this aspect first.
It is common cause that the applicant
instituted an urgent application against the first to fifth
respondents for an order suspending the operation of the first
respondent’s award made in the above arbitration proceeding,
pending the finalisation of the applicant’s application for
review and appeal against the award. By court order dated 18 June
2010, this court granted leave to the applicant to serve the urgent
application, the review proceedings as well as to note the appeal
against the first respondent’s award via substituted service.
In terms of this court order,
substituted service was to be effected on the second to fifth
respondents by way of publication of the notices of motion for the
above relief in 2 consecutive editions of The Namibian and Die
Republikein newspapers. It is common cause that the first respondent
was properly served with these proceedings.
In particular the court ordered that
the original tear sheets of the relevant publications shall
constitute proof of service of any process or documents in the
urgent application for the suspension of the award, the application
for review of the award as well as the appeal against the award.
Ex facie the original tear
sheets of the newspapers the notices of motion in respect of these
appeared in two consecutive editions of The Namibian and Die
Republikein on 28 and 29 June respectively. This is also not
disputed on behalf of the respondents. However the case number
allocated to these applications did not appear in the newspapers.
Counsel for the second to fifth
respondents submitted that as there was no case number included in
the newspapers, service of the application was defective because the
second to fifth respondents were not apprised of the case numbers in
which the applications were launched as a result of which there was
no proper service.
Counsel for the second to fifth
respondents did not refer the court to any authority for this
proposition, and submitted that there was no authority to this
effect. The only authority that could be found was in the
Consolidated Practice Directives in particular Part V, relating to
the numbering of a court document in respect of a case. Practice
Directives 13(1) to 13(4) provide as follows:
“(1)
When a summons, application, provisional sentence summons or labour
court application is filed for the purpose of issuing any of those
processes, a court file must be opened.
(2)
The particulars of the litigants must be entered in the relevant
registers and a permanent case number must be given to the case and
that number must be placed in the right upper-hand corner of the
file.
(3)
The case number given to each case must also appear on other relevant
documents.
(4)
A case number must be in one of the following illustrative forms –
(a)
I 1/2007: in the case of action proceedings
(b)
A 1/2007: in the case of an application case
(c)
PS 1/2007: in the case of a provisional sentence case
(d)
LC 1/2007: in the case of a Labour Court application”
Practice Directive 14 provides as
follows:
“(1)
In a criminal appeal, civil appeal, criminal review, admiralty case
and Labour Court appeal, a permanent case number must be given for
each case at the time of commencement of proceedings.
(2)
A case number must be in one of the following forms:
(a)
CA No. 1/2007: criminal and civil appeals
(b)
CR No. 1/2007: criminal review
(c)
AC No. 1/2007: Admiralty Court case
(d)
LCA No. 1/2007: Labour Court appeal.”
It is clear from these Practice
Directives that when a summons, application, provisional sentence
summons or application is filed for purposes of issuing any of those
processes, a court file must be opened and a case number must be
given for each matter in the manner set out in the Practice
Directives.
Counsel for both parties attempted to
provide information concerning the practice at the Registrar’s
Office to the effect that a case number is only allocated after the
particular process has been served. However this amounted to
testimony from the bar and was thus ignored. The court initially
considered calling the Registrar to give evidence on this aspect,
but from what appears below, it was not necessary.
This court now has to determine
whether or not the substituted service was defective to the extent
that the application set down for hearing some 2 years later should
be struck from the roll. In this regard I am mindful of the
provisions of Rule 7(1) of the Labour Court Rules which provide that
the hearing of the application must be conducted in such manner as
the court considers most suitable to the clarification of the issues
before it and generally to the just handling of proceedings, and the
court must, so far as it appears appropriate, seek to avoid
formality in the proceedings in order to ensure a speedy and fair
disposal of the proceedings.
Bearing the above in mind the
following aspects merit consideration. Firstly it is not disputed
that in each of the newspaper tear sheets, the second to fifth
respondents’ names appeared in capitals. In The Namibian their
names even appeared in bold lettering. Secondly, the full extent of
the relief sought, in fact the notices of motion in their entirety
were set out in the aforesaid newspapers. Thirdly, the case number
in respect of the arbitration proceedings CRWK207-10 also clearly
appeared in the newspapers.
Furthermore, the second to fifth
respondents opposed the applications and were represented by legal
practitioners who withdrew on 22 February 2012 from the matter.
Counsel for the second to fifth respondents came on record for them
on 27 June 2012. This matter also proceeded to case management, and
counsel for the second to fifth respondents signed a joint case
management report on 28 June 2012. The second and third respondents
also filed answering affidavits, where the point of defective
service was not taken. In their answering affidavits, the second and
third respondents alleged, presumably for purposes of the
application for condonation, that they were never served with any
notice of motion and/or record by the applicant and were not able to
file their notices of intention to oppose the review application as
a result
In particular, the second and third
respondents in identical terms stated the following:
“21.
I have now been briefed by my legal practitioner of record on the
contents of the Applicant’s notice of motion and in response
would like to refer the above Honourable Court to paragraph 2 –
16 of this affidavit, and reiterate that:
21.1
I did not have any personal relationship with the First Respondent
prior to the conciliation and arbitration hearing before him.
21.2
I did not disown my retrenchment or the merits of the case with the
First Respondent before the conciliation and arbitration hearing.
22.
I am aware that the application was made for the recusal of the First
Respondent by the Applicant, however, as stated earlier, I did not
discuss the merits of the case with the First Respondent and
therefore submit that his finding is correct.”
It is clear from the above that the
second to fifth respondents became aware of the process instituted
against them when they initially opposed the matter through their
erstwhile and current legal representatives. In fact, they provided
their version of events as well as reasons why the application for
review should not be granted.
It is trite that the purpose of an
application for substituted service is to inform the opposing
parties of the process instituted against them.
In my view, the absence of a case
number could not prevent the respondents from becoming aware that an
application had been instituted against them in respect of the
arbitration proceedings bearing case number CRWK207-10. Thus the
point raised by counsel for the second to fifth respondents at the
last minute, and after the second and third respondents delivered
affidavits containing their versions to the effect that, absent the
case number service was defective is completely devoid of merit. In
the result, the point is dismissed. I now turn to the merits of the
review.
As regards the main ground of review,
the record of the arbitration proceedings reveal that the first
respondent during the arbitration proceedings of 21 May 2010, and
while questioning the fourth respondent who had not taken the oath
or made any form of affirmation that what he was stating was the
truth, stated that he had some time before the arbitration
proceedings commenced, spoken to the third respondent’s sister
who was a Human Resources Officer at the Ministry of Labour
concerning a retrenchment letter faxed to the third respondent by
the applicant during February 2010. It is common cause that the
aforesaid letter related to the dispute between the parties which
was to be adjudicated upon by the first respondent at the
proceedings.
According to the arbitrator, the
letter was faxed to him on his request. He then called the fourth
respondent to discuss the matter. The arbitrator stated the
following during the arbitration proceedings:
“I
then called him, I think your number was on it, and then we
discussed. Then you said other people are somewhere else and..... Ya.
We just discussed. They just said they were retrenched and they were
not (unclear). I said okay. I just explained the process how
retrenchment is supposed to work and he left it there. Later,
unfortunately the case came to me, like I’m picking it up now.
I didn’t even know him. Its just now when I saw Haitula here
that I remembered that”
On 26 May 2010, and before judgment
in the arbitration was handed down, the applicant launched a formal
application to the first respondent for his recusal. The applicant
alleged that on the basis of the above facts, the applicant
apprehended that the first respondent was biased as he had knowledge
of the dispute prior to it being heard, as a result of which he
should not preside over the matter.
The second to fifth respondents were
not served with this application. It is however not disputed that
the applicant made attempts to contact these respondents in order to
serve the recusal application. On the same date, the second to fifth
respondents also launched an application for joinder on the
applicant.
In his award handed down on 27 May
2010, the arbitrator dealt with the application for recusal as
follows:
“I
am not aware of any rule or provision of the act that prevented me as
an official of the Office of the Labour Commissioner to assist any
employee or employer with any employment or labour related enquiries
being telephonically or otherwise at any time during office hours. It
is therefore true that one of the applicants has spoken to me over
the telephone, after being referred by his sister who is an employee
of the Ministry of labour, either on the 1st
or
2nd
February
this year. It is also correct that he did later fax a one page
retrenchment notice to me after informing me that he was in
possession of a letter which he did not understand. The purpose was
for me to get a clearer picture and be in a position to advice (sic)
him accordingly. I recall he was calling from either Noordoewer or
Aussenkehr that day.
I
also recall that the conversation was very brief when it ended when
he indicated that he and his other colleagues were still to meet the
respondent to either get more information or to negotiate on the
package as indicated in the letter which he faxed to me. By that time
there was no discussion of the dispute at hand as it was too
premature to know that there was going to be a dispute some weeks
later. It is important to note that this was long before
9
February 2010, the day which it would seem many of the things which
led to toe dispute are alleged to have taken place. NB. I did not
appoint myself to handle this case when it was eventually referred.”
As regards the second to fifth
respondent’s application for joinder, which was never moved,
the first respondent had the following to say:
“Unfortunately
for practical reasons the
applicants in this matter later informed me
that
they would rather advice (sic)
their colleagues to refer a separate dispute to the labour
commissioner to be processed, and that I should proceed to finalise
the awards in their case, which I hereby do.”
(emphasis supplied)
In this regard the applicant alleged
in its founding papers in this review application that it became
clear to it that the first respondent had some sort of discussions
with one or more of the respondents prior to handing down his award.
In fact, this is apparent from the words “the
applicant in this matter later informed me ...”
Furthermore the applicant alleged that it was not present at or
invited to be present at these “discussions”.
It also submitted that these meetings were impermissible and served
to strengthen the applicant’s reasonable apprehension that the
first respondent would not be objective, and was biased against the
applicant.
The general rule as to the duty of a
judicial officer was summed up in S v Malindi and Others
as follows:
“Broadly
speaking, the duty of recusal arises where it appears that the
judicial officer has an interest in the case or where there is some
other reasonable ground for believing that there is a likelihood of
bias on the part of the judicial officer: that is, that he will not
adjudicate impartially. The matter must be regarded from the point of
view of the reasonable litigant and the test is an objective one. The
fact that in reality the judicial officer was impartial or is likely
to be impartial is not the test. It is the reasonable perception of
the parties as to his impartiality that is important.”
In Council of Review, South
African Defence Force and Others v Mönnig and Others
Corbett CJ (as he then was) approving the dictum in S v Malindi
also stated at 491F that the recusal right is derived from one of a
number of rules of natural justice designed to ensure that a person
accused before a court of law should have a fair trial.
I am in respectful agreement with the
principles expounded in the above judgments. It is also trite that a
judgment arriving from proceedings from which the presiding officer
or officers ought to have recused himself is a nullity as the court
would have lacked competence from the start.
The concession by counsel for the
second to fifth respondents is therefore correctly made as it is
clear from the record and the undisputed facts that the applicant
made out a clear case of a reasonable suspicion of bias on the part
of the first respondent in the arbitration proceedings as a result
of which the first respondent should have recused himself either
once he remembered receiving the letter or subsequent to the
application for his recusal. His refusal to do so thus rendered the
proceedings a nullity.
In addition, for the first respondent
to then engage in discussions with the respondents in the
applicant’s absence before handing down his award in my view
also amounted to a gross irregularity. In this regard the following
principles reiterated in Sidumo and Another v Rustenberg Platinum
Mines Ltd and Others
relating to the meaning of “gross
irregularity” are apposite:
“[262]
The basic principle was laid down in the oft-quoted passage from
Ellis v Morgan where the court said:
'But
an irregularity in proceedings does not mean an incorrect judgment;
it refers not to the result, but to the methods of a trial, such as,
for example, some high-handed or mistaken action which has prevented
the aggrieved party from having his case fully and fairly determined
.'
[263]
In Goldfields, the court qualified this general principle. This case
concerned a situation where the decision maker misconceived his or
her mandate. The court held that where a decision maker misconceives
the nature of the enquiry, the ensuing hearing cannot in principle be
said to be fair because the decision maker has failed to perform his
or her mandate. Schreiner J expressed the principle as follows:
'The
law, as stated in Ellis v. Morgan (a) has been accepted in subsequent
cases, and the passage which has been quoted from that case shows
that it is not merely high-handed or arbitrary conduct which is
described as gross irregularity; behaviour which is perfectly
well-intentioned and bona fide, though mistaken, may come under that
description. The crucial question is whether it prevented a fair
trial of the issues. If it did prevent a fair trial of the issues
then it will amount to a gross irregularity.'”
The crucial question therefore is
whether the conduct of the decision-maker complained of prevented a
fair trial of the issues.
It is clear that the applicant did not have a fair trial and the
proceedings must be set aside.
The concession made in respect of the
status of the unsigned referral form (Form LC 21) is also correct,
because, as mentioned above, anything that flows from an unsigned
referral form is a nullity.
A judicial officer is required to be
fair, biased and impartial if the rules of natural justice are to be
maintained. I reiterate the guidelines issued to arbitrators by
Muller J in Roads Contractor Company v Nambahu and Others
as follows:
“[32]
An arbitrator, who conducts arbitration in terms of the Labour Act,
should consider the following:
(a)
The arbitrator must acquaint himself with what the dispute(s) of the
complainant are.
(b)
The arbitrator has to be aware on whom the onus rests and determine
who should commence.
(c)
The arbitrator should ensure that the parties are properly informed
and understand how the proceedings will be conducted.
(d)
The arbitrator should always remain independent and impartial and
he/she cannot allow that any party gain the perception that he/she is
not a neutral and impartial adjudicator. In this regard the
arbitrator:
(i)
does not descend into the arena;
(ii)
does not cross-examine any witness;
(iii)
only ask questions for clarification or to provide guidance;
(iv)
does not interrupt or stop cross-examination, unless it is clear that
the questions being asked in cross-examination are repetitive, have
already been answered, or do not have any relevance;
(v)
never give any indication how he or she feels about the evidence or
give any indication how he or she may decide;
(vi)
allow closing arguments by all the parties.
(e)
The arbitrator should never refer to his/her personal circumstances
or experience and thereby give an indication that he/she may be
influenced by that in the decision he/she has to make.
(f)
Although the arbitrator sometimes is obliged to make rulings in
respect of the conduct of witnesses, or specific matters during the
hearing, he/she should always be cautious that no perception of
partiality should be created that the parties, or any of them, will
not receive a fair hearing.
(g)
In his/her award the arbitrator should deal with the evidence and his
or her interpretation thereof. At that stage the arbitrator has the
opportunity to decide and adjudicate.
(h)
The arbitrator should have a thorough knowledge of the provisions of
the Labour Act and its Rules and the parties appearing before him
should feel comfortable in this regard.”
(emphasis supplied)
For the above reasons I granted the
order set out above.
______________________
EM SCHIMMING-CHASE
Acting Judge
APPEARANCES
APPLICANT: Adv RL Maasdorp (with him
Mr J Boltman)
Instructed by GF Köpplinger Legal
Practitioners
SECOND RESPONDENT: Mr Mbaeva
Instructed by Mbaeva & Associates