Court name
Labour Court Main Division
Case number
70 of 2012
Case name
Springbok Patrols (Pty) Ltd t/a Namibia Protection Services v Jacobs and Others
Media neutral citation
[2013] NALCMD 17
Judge
Smuts J





IN THE HIGH COURT OF NAMIBIA







NOT REPORTABLE



REPUBLIC OF NAMIBIA



LABOUR COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGMENT



Case no: LCA 70/2012








In the matter between:








SPRINGBOK PATROLS (PTY) LTD t/a
NAMIBIA



PROTECTION SERVICES
.....................................................................APPELLANT








and








NDAMONOGHENDA JACOBS & OTHERS
..............1ST TO 24TH
RESPONDENTS



A HAGEN N.O.
..........................................................................25TH
RESPONDENT



SIMON HAUKONGO
.................................................................26TH
RESPONDENT








Neutral citation: Springbok Patrols
(Pty) Ltd v Jacobs & Others (LCA702/2012) [2013] NALCMD 17 (2013)








Coram: SMUTS, J



Heard: 24 May 2013



Delivered: 31 May 2013








Flynote: Appeal in terms of s
89 of Act 11 of 2007. Non-compliance with rule 5 of rules relating to
the conduct of conciliation and arbitration. Not one of the
applicants signed a joint referral. No accompanying statement was
attached authorising the union signatory. This non-compliance
vitiated the proceedings. Proceedings also defective and irregular
because applicants not required to prove their claims under oath and
the arbitrator misconceiving the nature of the onus in respect of the
claims.





ORDER





The appeal succeeds and arbitrator’s
award is set aside.















JUDGMENT










SMUTS, J









  1. This is an appeal in terms of s 89 of
    the Labour Act, 11 of 2007 (the Act) against a ruling of an
    arbitrator made on 20 August 2012 at Luderitz. In the award, the
    arbitrator ruled that the appellant is to pay the first to 24th
    respondents varying amounts set out in the award.










  1. The appellant has inexplicably cited
    arbitrator and the employees’ union representative as
    respondents in this appeal – as 25th and 26th
    respondents respectively. None of the cited respondents however
    opposes this appeal. In this judgment, I refer to the employees and
    whose favour the award was made as the respondents and refer to the
    arbitrator with reference to her capacity as such.










  1. According to the record dispatched by
    the arbitrator, the respondents’ claim set out in the referral
    form was for an unfair labour practice and over deduction. Only the
    first respondent is referred to by name on the form. It refers to
    her and 23 unidentified others as applicants. The form was not
    signed by anyone of the respondents but only by a union
    representative, Mr Simeon Haukongo. He also purported to represent
    the respondents at the arbitration hearing according to the record.
    The referral form did not contain any attachment in which the names
    of the other respondents were set out or the nature of their claim
    or even the amounts claimed by the different respondents.










  1. The matter was set down for 20 July
    2012 in Luderitz. Shortly before the date of hearing, a letter dated
    17 July 2012 was sent to the office of the Labour Commissioner for
    the attention of the arbitrator. It was signed by a number of
    signatories and stated that they were not part of the dispute and
    distanced themselves from it and disputed that Mr Haukongo had the
    necessary authority of employees. It went so far as to accuse Mr
    Haukongo of proceeding with the claim on a fraudulent basis and
    requested that the dispute be dismissed with an order of costs
    against his union. An attachment to the letter contains 23 names
    together with signatures of those employees in which they expressly
    distance themselves from the dispute. Surprisingly, this letter is
    not even referred to in the award or in the course of the
    proceedings even though it has formed part of the record of the
    proceedings provided by the arbitrator.










  1. It is also apparent from the
    transcribed proceedings that the respondents took certain
    preliminary points against the complaint. It was represented by its
    Human Resource Manager, Mr Somseb. There is however no reference in
    the record to the nature of the preliminary points themselves or how
    they were dealt with except a very brief and oblique reference to
    their dismissal by the arbitrator. This is one of several extremely
    unsatisfactory features of this arbitration. According to the notice
    of appeal, the preliminary points include the lapsing of the dispute
    by virtue of being raised beyond the time periods provided for in
    the Act for the referral of disputes. The notice of appeal also
    refers to res judicata being raised as a defence. In the appellant’s
    legal representatives certificate relating to the record, it is
    pointed out by him that the record is not complete by virtue of the
    failure to have included that portion which dealt with the
    preliminary points. Nonetheless the appellant raised the dismissal
    of those points as a ground of appeal. In the heads of argument on
    behalf of the appellant, Mr Boltman, who appeared for the appellant
    it was stated the appellant would no longer rely upon the grounds
    relating to the preliminary points. That concession was correctly
    made.










  1. When I pointed out to Mr Boltman this
    court would ordinarily be precluded from hearing appeals if the
    record were to be incomplete in material respects, he invited me to
    deal with the appeal on the other grounds raised against the award
    of the arbitrator. He submitted that these grounds would result in
    the setting aside of the award and could be dealt with on the record
    provided by the arbitrator. In view of the fact that the other
    grounds of appeal raised against the award do in fact result in the
    setting aside of that award, I was prepared to hear argument on the
    appeal despite the incomplete record. Ordinarily, it would be
    incumbent upon an appellant seeking to rely upon a ground of appeal
    which does not appear from the record to ensure that a complete
    record is filed even if this were to result in an application to
    compel an arbitrator to file a proper and complete record. Given the
    fact that other material irregularities appeared from the record
    provided by the arbitrator which vitiate those proceedings, I was
    thus prepared to hear full argument on the other grounds of appeal
    raised in the notice of appeal.










  1. The first ground of appeal raised is
    that there was no proper referral of dispute to the office of the
    Labour Commissioner by reason of fact that rule 5 of the rules
    relating to the conduct of conciliation on arbitration had not been
    complied with. This rule requires that a party must sign the
    referral and that if proceedings are instituted jointly, a statement
    authorising an employee to sign the document must be signed by each
    employee. This statement is to attached to the referral document
    together with a legible list of their full names and addresses. This
    court has held that this requirement is not a mere technicality and
    must be complied with1.
    The rule is set out in peremptory terms. In this instance, the
    referral was not even signed by any employee but by a union
    official. There was also not a statement attached to it by the
    employees (1st to 24th respondents)
    authorising Mr Haukongo to proceed with the claim on their behalf.
    The fact that this is not a mere technicality is reinforced by the
    facts of this case. Included as part of the record is the letter
    signed by several employees distancing themselves from the referral.
    Furthermore several of those in whose favour the award was made were
    not even present at the proceedings.










  1. The failure to have complied with
    Rule 5 on the facts of this specific complaint where there was not
    even an attachment to the referral setting out the names of the
    individual applicants and where it was questioned in correspondence
    forming part of the record that the union representative in fact
    acted on behalf of all of them is entirely fatal to the matter. It
    follows that there had not been a valid referral of the dispute and
    that the award must be set aside for this reason alone.










  1. As I have already indicated, there
    were however other unsatisfactory features of the arbitration
    proceedings to which I shall briefly refer. Although some of the
    respondents in whose favour the award was given were present, not
    one of them gave evidence as to their complaint of “over
    deduction”. This complaint was not properly set out in any
    sense. It was also placed in dispute by the respondents’
    representative, Mr Somseb at the hearing. It was then for the
    respondents to each prove the claim of over deduction of amounts
    from their salaries or wages. This did not occur.










  1. Only one applicant, the first
    respondent, was sworn in. But she gave absolutely no evidence as to
    her claim. After she was sworn in and stated that she was an
    employee of the appellant, the arbitrator then proceeded to engage
    the union representative further on hers and the other claims. A
    schedule setting out the claimed amounts with reference to the names
    of each of the 24 respondents was then handed in. This schedule was
    not confirmed by anyone of the individual respondents themselves –
    not even by the first respondent who had been sworn in. Quite how
    the arbitrator could consider that the union representative could
    give evidence in the matter when the amounts and extent of the
    deductions had been placed in issue is not explained in the award.










  1. The arbitrator, in her award,
    acknowledges that the appellant’s representative did not agree
    with the respondents’ claims. Yet no evidence was led as to
    the extent or nature of the claims themselves. Despite this, the
    arbitrator proceeded to make her award in favour of each of the
    respondents and even in favour of those who were not present without
    any evidence before her authorising the bringing of referral.










  1. This court has made it clear that
    where parties seek to claim an amounts owing to them under the Act,
    they must not only plead how those amounts arise but also lead
    evidence and prove those amounts, thus substantiating the exact
    extent of the claim2.
    The arbitrator however took a contrary view and operated from the
    assumption that it was for the respondent to disprove the entirely
    unspecified claims of the respondents. Not only that they not
    establish any claim in the court by way of evidence, but this
    approach is also flawed and places the appellant as employer with an
    evidential burden which is entirely incorrect. The onus of proof of
    the claims as well as the duty to adduce evidence on them rested
    with the respondents as employees in this matter.










  1. A further disturbing feature of the
    arbitration proceedings is the fact that the arbitrator seemed to
    consider that the mere say so by representatives of the parties in
    the opening statements and in the course of proceedings equated to
    evidence. This court has previously on more than one occasion3
    referred to a misdirection of this nature which constitutes an
    irregularity on the part of an arbitrator. Yet this practice seems
    to continue.










  1. I have referred to these feather
    unsatisfactory features of this arbitration even though there was an
    invalid referral which vitiated the award. I have done so in the
    hope that the office of the Labour Commissioner will impress upon
    arbitrators the need to heed the judgments of this court in order to
    avoid recurring flaws encountered in appeals against awards of
    arbitrators.










  1. In the result, the appeal succeeds
    and arbitrator’s award is set aside.



















_______________



D SMUTS



Judge








APPEARANCES








APPELLANT: J Boltman



Instructed by Köpplinger Legal
Practitioners














1Waterberg
Wildness Lodge v Uses and 27 Others
,
LCA 16/2011 unreported 20 October 2011.





2Fisheries
Observer Agency v Namibia Public Workers Union and Another

LC 12/2011 unreported 28/05/2012.





3Ok
Furniture (Pty) Ltd v Araeb & Another
LCA
38/2008, unreported 4 November 2011.