Court name
Labour Court Main Division
Case number
52 of 2011
Title

Mokwena v Shinguadja and Another (52 of 2011) [2013] NALCMD 10 (28 March 2013);

Media neutral citation
[2013] NALCMD 10
Coram
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA



LABOUR COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: LC 52/2011








In the matter between:








PETER MOKWENA
.....................................................................................APPLICANT








and








SHINGUADJA B M
......................................................................FIRST
RESPONDENT



ENGEN NAMIBIA (PTY)
LTD .................................................SECOND
RESPONDENT








Neutral citation:
Mokwena vs Shinguadja (LC 52/2011) [2013] NALCMD 10 (28 March
2013)








Coram: PARKER AJ



Heard: 1 March
2013



Delivered: 28
March 2013








Flynote: Labour
Law – Arbitral award – Application to review and set
aside of award in terms of the Labour Act 11 of 2007, s 89(4) and (5)
and (10) – The Labour Act sets out exhaustively the grounds,
any one of which, the applicant should prove exists in order to
succeed.








Flynote: Labour
Law – Arbitral award – Application to review and set
aside award in terms of the Labour Act 11 of 2007, s 89(4) and (5)
and (10), read with rule 6(1) of the Rules of the Labour Court –
Facts (or grounds) not set out in the notice of motion not available
to applicant during the hearing.








Summary: Labour
Law – Arbitral award – Application to review and set
aside award in terms of the Labour Act 11 of 2007, s 89(4) and (5) –
Court setting out the four categories of judicial review in our law
and concluding that review under s 89 of the Labour Act is a category
of judicial review governed by the Labour Act as the applicable
legislation – Consequently, court holding that for the
applicant to succeed the applicant must prove the existence of one or
more of the grounds set out in subsection (4), read with subsection
(5) of s 89 of the Labour Act – Court holding further that an
arbitration is a tribunal within the meaning of Article 12(1)(a) of
the Namibian Constitution.








Summary: Labour
Law – Arbitral award – Application to review and set
aside award in terms of the Labour Act 11 of 2007, s 89(4) and (5),
read, with rule 6(1) of the Rules of the Labour Court – Court
holding that facts (or grounds) not set out in the notice of motion
not available to applicant during hearing – Accordingly,
submissions by counsel (oral or written) during the hearing of
application are not facts within the meaning of rule 6(1) of the
Rules of the Labour Court and therefore should not be considered by
the court as such.










ORDER










(a)
The application to review and set aside arbitration award no.
CRWK
#857-10 (dated 25 March
2011) is dismissed.








(b) There is no order as
to costs.










JUDGMENT










PARKER AJ:








[1] In this proceeding the applicant
(who was an employee of the second respondent) has launched an
application and prayed for relief in the following terms:








(a) the setting aside of
the award made by the arbitrator (the first respondent) (in
arbitration no. CRWK
#857-10,
dated 25 March 2011) (‘the arbitration award’);



(b) referring the matter
back for (fresh) conciliation and (fresh) arbitration;



(c) costs of this
application;



(d) further and/or
alternative relief.








The second respondent has
moved to reject the application. The first respondent has not filed
any papers; he should, therefore, abide by the decision in this
proceeding.








[2] Review of arbitral awards is
governed by subsection (4), read with subsections (5) and (10), of s
89 of the Labour Act 11 of 2007. Broadly speaking there are four
distinct categories of judicial review. The first type of review
relates to irregularities and illegalities in the proceedings before
a lower court (‘category 1 reviews’). Section 20 of the
High Court Act 16 of 1990 contemplates precisely this type of review.
The second category is meant to control proceedings before tribunals
(‘category 2 reviews’). The third category is meant to
control acts of administrative bodies and administrative officials
(‘category 3 reviews’). The fourth (and last) category
comprises reviews provided by other legislation (‘categories 4
reviews’).








[3] Article 18 of the Namibian
Constitution does not apply to category 1 reviews; it does not also
apply to category 2 reviews. Furthermore, that Article does not also
apply to category 4 reviews unless the act sought to be reviewed and
set aside under the applicable legislation is the act of an
administrative body or administrative official within the meaning of
that Article.








[4] Review of arbitral
awards under the Labour Act falls under category 4 reviews; and since
an arbitration is a tribunal within the meaning of Article 12(1)(a)
of the Namibian Constitution, Article 18 of the Namibian Constitution
does not apply to such arbitration. The proposition of law about
judicial review and the conclusions reached thereanent in paras (2)
and (3) impel me to the following overall conclusion that is germane
to the present proceeding; that is to say, there are only four
grounds under the Labour Act (the applicable legislation) for
reviewing and setting aside an arbitration award, and they are those
expressly delineated in s 89(5)(a) and (b) of the Act,
namely, that –








(a) the arbitrator has
committed misconduct in relation to the duties of an arbitrator
(‘statutory ground 1’);



(b) the arbitrator has
committed a gross irregularity in the conduct of the arbitration
(‘statutory ground 2’);



(c) the arbitrator has
exceeded his power (‘statutory ground 3’);



(d) the award has been
obtained improperly (‘statutory ground 4’).








I, accept submission by
Mr Van Zyl, counsel for the second respondent, on the point. I
conclude, therefore, that in order to succeed in this application the
applicant must prove the existence of one or more of those four
statutory grounds, and the respondents bear no burden to prove
anything. Furthermore, it must be remembered that this proceeding
concerns judicial review of the arbitration award, and so I shall not
concern myself with what the chairperson of the second respondent’s
internal disciplinary hearing did or did not do. Indeed, the
chairperson is not a party to these proceedings. Keeping this
conclusion and considerations in my mind’s eye, I now proceed
to consider what the applicant puts forth as grounds for reviewing
and setting aside of the arbitration award, as set out in his notice
of motion.








[5] Under ground 3.1 in
the notice of motion it would seem the applicant contends the
existence of the statutory grounds 1, 2 and 3. And what is the basis
of the applicant’s contention? It is that the first respondent
denied the applicant representation ‘by a Labour consultant’.
And as respects this ground 3.1 in the notice of motion; Mr Phatela,
counsel for the applicant, submits that ‘there is no indication
whatsoever in the record that the arbitrator adhered to the strict
and peremptory requirements of s 89 …’ Counsel submits
further, ‘section 89(13)(b) is very different from
section 89(14). Regrettably it is evident that the arbitrator paid
more attention to the requirements of section 89(13) in deciding to
unlawfully deny the applicant necessary and appropriate
representation.’ I think counsel is referring rather to s
86(13) and 86(14); for, the context so indicates, because at times he
refers to 86(14). This is a mistake anybody can make. But, as I have
said, the context indicates clearly that counsel is making reference
to s 86 of the Act. By a parity of reasoning, the context in the
record of the arbitration proceedings indicates clearly that the
arbitrator was making reference to subsection (13)(b), read
with subsection (14), of s 86, the person, because the person the
applicant had lined up to represent him (a Poshigo) is a labour
consultant, and not a legal practitioner.








[6] In any case, I do not
accept Mr Phatela’s submission that s 86(13)(b) is very
different from s 86(14). The two provisions are intertwined: the
application of s 86(13)(b) is the exercise of guided
discretion, that is, guided by the provisions of s 86(14). As Mr Van
Zyl submitted, the Minister has not issued any such guidelines in
terms of s 86(14) of the Labour Act. I did not hear Mr Phatela to
contradict Mr Van Zyl. Thus, in the absence of any such guidelines,
what remains is, therefore, the exercise of the unguided discretion
of the arbitrator under s 86(13)(b) of the Act. In this
regard, I should say that it can clearly be seen from the record of
the arbitration proceedings that the arbitrator was alive to the
requirements of s 86(13)(b) of the Labour Act and he did bring
his mind to bear on the interpretation and application of that
provision before he decided; that is, he did exercise discretion
under that provision before he decided. Mr Phatela’s contention
is, therefore, incorrect. The arbitrator gave a real hearing to ‘the
other individual’, Poshigo, who had been selected by the
applicant to represent him and also to the second respondent before
he decided not to permit Poshigo to represent the applicant. On that
score I conclude that the arbitrator exercised discretion under
86(13)(b). And it has not been established by the applicant
that the arbitrator exercised the discretion wrongly. That being the
case, I have no good reason to fault the arbitrator’s exercise
of discretion under s 86 of the Labour Act when he decided not to
permit ‘the other individual’ (Poshigo) to represent the
applicant at the arbitration proceedings. It is also my view that the
arbitrator exercised the discretion properly.








[7] It follows that the
applicant’s reliance on statutory grounds 1, 2 and 3 to
establish his ground 3.1 in the notice of motion fails: the applicant
has failed to prove the existence of statutory grounds 1, 2 or 3 in
relation to ground 3.1 in the notice of motion.








[8] I pass to consider
the applicant’s other grounds. The applicant relies again on
ground 1; but this time based on the arbitrator’s alleged
failure to keep a proper record. And why does the applicant contend
that the first respondent failed to ‘keep a proper record’?
The applicant avers that ‘the purported record of the
arbitration proceedings (is) in only partially English language. The
rest of it is in one of the local languages which do not form an
official language of the Republic of Namibia’.








[9] The statutory ground
based on the record cannot take the applicant’s case any
further. To start with – and this is important – this
ground is not raised in the applicant’s notice of motion. This
observation goes also for Mr Phatela’s submission that the
arbitrator placed the duty on the applicant to prove that he was
unfairly dismissed. It must be borne in mind that submissions by
counsel – oral or written – are not facts within the
meaning of rule 6(1) of the Labour Court Rules, and so they should
not be considered as such. A ground which does not exist in the
notice of motion cannot be created by counsel during submissions from
the Bar or in writing.








[10] In any event, as
respects the record; as far back as 15 June 2011 the applicant issued
a ‘Certificate’ in which he did certify that to the best
of his knowledge ‘the copies of the original record herein are
correct’. And as respects proof of unfair dismissal; it would
seem Mr Phatela has misread the record. As Mr Van Zyl submitted, the
arbitrator was clearly aware as to the burden which the applicant
should discharge in terms of s 33(1), read with s 33(4), of the
Labour Act, that is, ‘once you prove that there was a
dismissal, that’s all’, so said the arbitrator. ‘The
whole thing shifts to the respondent, that’s the employer, to
prove that the dismissal was effected within a fair procedure. Yours
is just to establish that there was a dismissal; that’s all’,
so the arbitrator said further.








[11] The applicant’s
other ground in the notice of motion (ground 3.2) is the ‘admission
of the CCTV footage into evidence, which the first respondent refused
and/or failed to discover to the applicant, prior to the disciplinary
hearing and the arbitration hearing’. As respects this ground
3.2, Mr Phatela submitted that the first respondent admitted unlawful
evidence which, according to him, is clearly prohibited by the
Computer Evidence 32 of 1985.








[12] Mr Van Zyl’s
response is that in the first place the applicant did not request the
arbitrator to make an order as to the disclosure of documents in
terms of rule 26 of the Rules Relating to the Conduct of Conciliation
and Arbitration before the Labour Commissioner. Thus, counsel
submitted, the applicant never raised the issue of the CCTV footage,
including the authenticity of the footage, during the arbitration
proceedings and that if the applicant had raised the issue the second
respondent would have had the opportunity to address the issue. For
counsel, it is, therefore, too late in the day for the issue of the
CCTV footage to be raised in the present proceeding. I accept
submissions by Mr Van Zyl. Besides, s 86(7)(b) of the Labour
Act enjoins an arbitrator to deal with the substantial merits of the
dispute before him or her with the minimum of legal formalities.
Furthermore, rule 18 of the Rules Relating to the Conduct of
Conciliation and Arbitration before the Labour Commissioner provides
peremptorily that the ‘arbitrator must conduct the arbitration
in a manner contemplated in section 86(7) of the Act and may
determine the dispute without applying strictly the rules of
evidence’. In my opinion, the arbitrator can do all that so
long as the proceedings are conducted fairly.








[13] In this regard, I
consider the Computer Evidence Act 32 of 1985 to be a legal formality
and a strict rule of evidence; and so the arbitrator was entitled not
to apply that Act strictly or at all; and more important, on the
facts and in the circumstances of the case, it is my view that the
acceptance of the CCTV footage by the arbitrator is fair and it is in
accordance with justice. Consequently, I conclude that the arbitrator
did not commit misconduct in relation to the duties of an arbitrator
(statutory ground 1) and did not commit gross irregularity in the
conduct of the arbitration proceedings (statutory ground 2). The
applicant’s reliance on these statutory grounds based on the
CCTV footage (ground 3.2), therefore, also fails. Accordingly, I
conclude that the applicant has not established the existence of
those two statutory grounds in relation to ground 3.2 in his notice
of motion.








[14] I proceed to deal
with the applicant’s reliance on yet again statutory grounds 1
and 2; this time based on the alleged failure of the arbitrator to
consider the documentary evidence and the testimony of the
applicant’s witness adduced during the arbitration proceedings
(Ground 3.3 in the notice of motion).








[15] It is clear to me
from the award that the arbitrator duly considered Exhibit 2. He also
considered the evidence surrounding the ‘inspection in loco’
in respect of the disciplinary hearing and other relevant evidence.
The applicant has failed to point it out to the court any particular
evidence the arbitrator unjustifiably excluded. It is trite that the
fact that a court or tribunal does not in its judgment or award
itemize point by point all the series of evidence placed before it
does not ipso facto lead to the inference that the court or tribunal
did not consider all the pieces of evidence placed before it. It is
within the power of the court or tribunal to consider such evidence
that has probative value and assists it and so make reference to only
such evidence in its award or judgment. Accordingly, I find that the
applicant has failed to establish the existence of statutory grounds
1 or 2 in relation to ground 3.3 in his notice of motion.








[16] The last ground
raised by the applicant in his notice of motion (ground 3.4) is this:
‘The manner, in which the arbitration hearing was conducted,
was bias and prejudice towards the applicant’. On the need and
necessity to specify grounds of appeal I had the following to say in
Shoprite Namibia (Pty) Ltd v Faustino Moises Paulo and Another
LCA 02/2010 (judgment delivered on 7 March 2011) (Unreported) para 3:








It
is trite that a notice of appeal must specify the grounds of the
appeal and the notice must be carefully framed, for an appellant has
no right in the hearing of an appeal to rely on any grounds of appeal
not specified in the notice of appeal. In this regard it has also
been said that precision in specifying grounds of appeal is “not
a matter of form but a matter of substance … necessary to
enable appeals to be justly disposed of (
Johnson
v Johnson

[1969] 1 W.L.R. 1044 at 1046
per
Brandon J). The
locus
classicus

of a similar proposition of law by the Court is found in
S
v Gey Van Pittius and Another

1990 NR 35 at 36H where Strydom AJP (as he then was) stated, “The
purpose of grounds of appeal as required by the Rules is to apprise
all interested parties as fully as possible of what is in issue and
to bind the parties to those issues”. That case concerned a
criminal appeal, but I see no good reason why the principle
enunciated by the Court should not apply with equal force to appeals
in terms of the Labour Act.’








[17] I see no good reason
why this proposition regarding appeals under the Labour Act should
not apply to review under that Act. In the instant proceedings the
applicant has not placed before the court anything of substance and
precise that is capable of sustaining his averment. The bare averment
does not enable the review to be disposed of as far as ground 3.4 is
concerned. And in my opinion there is nothing in the record of
proceedings and the arbitrator’s award that establishes the
appearance of judicial bias as explained in Sikunda v Government
of the Republic of Namibia (1)
2001 NR 67 (HC) at 83I-84A. I,
therefore, find that the applicant has failed to prove that statutory
grounds 1, 2 or 3 exists in relation to ground 3.4 in the notice of
motion. Accordingly, I conclude that ground 3.4 also fails.








[18] As respects costs;
in the interpretation and application of s 118 of the Labour Act, I
do not find any good reason to order costs in these proceedings.








[19] For all the
aforegoing, I hold that the applicant has failed to prove the
existence of any of the statutory grounds he relies on in his notice
of motion. Whereupon; I make the following order:








(a)
The application to review and set aside arbitration award no.
CRWK
#857-10 (dated 25 March
2011) is dismissed.








(b) There is no order as
to costs.






































----------------------------



C Parker



Acting Judge













APPEARANCES








APPLICANT: T C Phatela



Instructed by Diedericks
Inc., Windhoek













FIRST RESPONDENT: No
appearance



SECOND RESPONDENT: C J
Van Zyl



Instructed by GF
Köpplinger Legal Practitioners, Windhoek