REPUBLIC OF NAMIBIA
LABOUR COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK
EX TEMPORE JUDGMENT
Case no: LCA 38/2012
In the matter between:
NAMIBIA ESTATE AGENTS
PHELEM MANYANDO LIKE
Namibia Estate Agents Board v Like (LCA 38/2012) 
NALCMD 26 (21 June 2013)
Coram: GEIER J
Heard: 21 June
Court — Appeal from arbitrator's award — at the
arbitration respondent had failed to prove his losses – after
the completion of the arbitration hearing the arbitrator however
requested the respondent to provide her with proof of his losses -
such proof was then submitted subsequent to the hearing and without
providing the appellant the opportunity of dealing with such
documentation – such conduct then constituted one of the
grounds of appeal –
Court holding that
failure of arbitrator to afford appellant the opportunity to deal
with such evidence breaching audi alterem partem rule - thus
constituting a material irregularity in the arbitration proceedings –
conduct of the arbitrator also disclosing possibility of bias –
such possibility corroborated by letter filed of record by
respondent’s legal practitioner alleging highly irregular
conduct on part of arbitrator – respondent’s legal
practitioner requesting that arbitration be reconvened in order to
deal with recusal of arbitrator – arbitrator refusing to
reconvene arbitration proceedings – instead
of hearing the requested recusal application the arbitrator continued
to abuse her position by favouring the respondent by allowing him to
bolster a deficient facet of his case and by subsequently delivering
the arbitration award in favour of respondent.
Conduct of arbitrator
constituting material irregularities in the proceedings
Court holding that an
arbitrator, who should have recused him/herself, committing an
irregularity every minute that he/she continues to preside over a
Appeal accordingly upheld
and arbitration award set aside.
Conduct of arbitrator
referred for investigation.
1. The appeal is upheld.
Arbitration award made by Ms Tuulike Mwafufya-Shikongo, on 9
July 2012, is hereby set aside.
conduct of Ms Tuulike Mwafufya-Shikongo in this matter is
referred to the Honourable Minister of Labour and Social Services and
the Labour Commissioner for investigation and further action, if
disciplinary proceedings, the appellant dismissed the respondent from
his position as manager.
 The respondent had
been charged and was found guilty of theft and fraud.
 The matter was then
referred to conciliation and arbitration.
 The outcome of the
arbitration proved positive for the respondent who was reinstated.
The appellant was also ordered to pay back the respondent’s
salary and any increases and benefits together with all losses, as
proved, due to any delayed payments, inclusive of bank charges.
 This award forms the
subject matter of this appeal, which is unopposed, due to the
respondent having been barred, from opposing it, as a result of the
non- condonation of his failure to comply with the court’s case
management order of 22 January 2013.
 Mr Dicks, who
appeared on behalf of the appellant at the hearing, firstly addressed
the court on the issue of the appellant’s authority at the time
of disciplining the respondent. It was conceded in this regard that
the appellant’s board had been improperly constituted at the
time. However the board was subsequently properly re-constituted. It
was this properly constituted body that then ratified all the
preceding actions inclusive of the actions and steps taken against
Mr Dicks submits that such ratification is valid and cures this
initial defect, I agree.
 From the Notice of
Appeal it appears that essentially three points potentially require
determination in this appeal.
 I do however believe
that the first ground of appeal is so fundamental to the
determination of this matter that the need, to deal with the
remaining grounds of appeal, therefore falls away.
 The issue is this:
At the arbitration it had always been incumbent on the respondent to
prove his losses. This he failed to do. After the completion of the
arbitration hearing the arbitrator, Ms Tuulike Mwafufya-Shikongo,
however requested the respondent to provide her with proof of his
losses, such proof was then submitted subsequent to the hearing and
without providing the appellant the opportunity of dealing with such
 This modus
operandi obviously constitutes a fundamental irregularity in the
proceedings as it breaches the underlying audi alterem partem
 This conduct of the
arbitrator also reveals the possibility of bias on her part. Bias was
however not a ground raised in the Notice of Appeal. Such conduct was
however exposed in the course of considering the present ground of
 In this regard it
did not go unnoticed - and which aspect corroborates the inference of
bias to be made from the arbitrators aforesaid conduct – and
which aspect appears from a letter - dated 18 May 2012 - written by
Mr Marcus - to the arbitrator - in which he placed conduct, of a most
serious nature, on to the record.
 By way of the
following letter the respondent’s legal; practitioner informed
the Office of the Labour Commissioner - for attention Ms Tuulikki
Mwafufya-Shikongo – as follows:
Manyando Like // Namibia Estate Agents Board
refer to the above matter. We acknowledge receipt of your letter
dated 18 May 2012 in which you state you are unable to re-convene the
arbitration proceedings. The purpose of the request to convene the
arbitration proceedings is to formally place the following
information on record: After the conclusion of the arbitration
proceedings on 15 May 2012 our candidate legal practitioner, Ms
Mondo, informed me that during the short adjournment of the
proceedings on 15 May 2012, you asked her to tell me that I should
address the allegations that the respondent had raised, as I had not
dealt with them. You also requested her not to tell me that you had
spoken to her and that she should pretend that she was making this
note that your conduct which was clearly aimed at assisting us in the
conduct of our case is highly improper and effectively disqualifies
you from further presiding over this matter. In light of this
incident we do not believe that you will be able to fairly adjudicate
this matter Please note that that we will not be able to file our
written submissions in circumstances where we feel that the fairness
of the process is not guaranteed. Please note that we have informed
our client that your conduct leaves us with no other option but ask
for your recusal from the case.
therefore again request you to reconvene the arbitration proceedings
as a matter of urgency.
to GF Köpplinger Legal Practitioners for attention Ms Mia
 In my view this
letter does not only disclose a valid basis for an application for
the recusal of the arbitrator in this matter but it also affords
corroboration of the motive with which the subsequent material
irregularity was committed by the arbitrator when she afforded the
respondent a further opportunity to remedy the insufficiency of
having proved his quantum without first affording the appellant the
opportunity to be heard.
At the same time it becomes clear that the arbitrator had no business
to continue to preside at the arbitration or to deliver her award
subsequent to the letter of the 18th
2012 in view of the serious allegations contained therein which
provided a more than valid basis for an application for her recusal.
 Instead of hearing
the requested recusal application the arbitrator continued to abuse
her position by favouring the respondent by allowing him to bolster a
deficient facet of his case.
It has been held that a judicial officer, who continues to preside
over a matter in which he or she should have recused him or herself,
commits an irregularity every minute he continues to sit on the
 The same principle
applies to arbitrators who should be impeccably unbiased and
objective in the execution of the important role assigned to them by
the Labour Act 2007.
 The conduct of Ms
Tuulikki Mwafufyai Shikongo constitutes such a material
irregularity which conduct should be investigated and the suitability
of her executing any further role, as arbitrator, should thus
urgently be re-assessed.
 In the premises it
becomes clear that the arbitration award made by Ms Shikongo, on 9
July 2012, in favour of the respondent, is vitiated not only by the
material irregularity exposed by the first ground of appeal raised in
this matter, but also from the inferences to be drawn from the facts
and her subsequent conduct which all corroborate her biased role in
 In the result:
The appeal is upheld;
The arbitration award
made on 9 July 2012 is set aside in toto;
conduct of Ms Tuuliki Mwafufya-Shikongo
is to be referred to the Labour Commissioner and
the Minister of Labour for further investigation and for the taking
of appropriate action if necessary.
APPELLANT: G Dicks
Instructed by GF
Köpplinger Legal Practitioners,