Court name
Labour Court Main Division
Case number
31 of 2005

Gouws v The Office of the Prime Minister (31 of 2005) [2013] NALCMD 23 (05 July 2013);

Media neutral citation
[2013] NALCMD 23
Hoff J





Case no: LCA 31/2005

In the matter between:




Gouws v The Office of the Prime Minister (LCA
31/2005) [2013] NALCMD 23 (05 July 2013)


14 June 2013

Delivered: 05
July 2013


The application for leave
is granted in respect of grounds 3 and 4 only of the application for
leave to appeal.



[1] This is an
application for leave to appeal against the appeal judgment of this
court in which this court confirmed the dismissal of the appellant.

It is common cause that the dismissal was done in terms of the
provisions of s 24(5)
of the Public Service Act 13 of 1995 which reads as follows:

staff member who, without the permission of the permanent secretary
of the office, ministry or agency in which he or she is employed –

absents himself or herself from his or her office or official duties
for any period exceeding 30 days;

be deemed to have been discharged from the Public Service on account
of misconduct with effect from the date immediately succeeding his or
her last day of attendance at his or her place of employment.’

[3] This court found in a
judgment delivered on 29 April 2011 that the applicant had been
absent for 34 days. In its judgment this court explained the
computation of days and I am not convinced that this court erred in
any way in the computation of the days the applicant had been absent
of office without the permission of the permanent secretary.

This court also referred with approval to the case of
v The Permanent Secretary, Minister of Home Affairs
NR 167 where the court per Strydom JP stated that the ‘deeming
clause terminating the employment comes to the rescue of the employer
who was placed in the invidious position of not knowing why and for
how long such absence would continue, to again fill the position so
that the work can be done’.

[5] This court found that
even though the applicant informed the respondent of his whereabouts
respondent never knew for how long such absence would continue. This
court also found due to the applicant’s history of absenteeism,
that the applicant was a habitual absentee.

The applicant in his application for leave to appeal referred to five
grounds of appeal and Mr Strydom who appeared on behalf of the
applicant, though not abandoning the other grounds of appeal,
concentrated on grounds 3 and 4 which he submitted is in fact a
challenge to the constitutionality of the provisions of s 24(5)
of the Public Service Act (as amended).

I have indicated (supra) that I am not persuaded that this court
erred in coming to certain conclusions, but I shall instead consider
the submissions in respect of the constitutionality or otherwise of
the said s 24(5)

[8] Grounds 3 and 4 deal
with the substantive and procedural unfairness of the dismissal of
the applicant in terms of s 24(5)(a)(i).

Mr Strydom submitted that s 24(5)
fails the test of constitutionality if one has regard to the
provisions of Article 10(1) (which requires that all persons shall be
equal before the law); Article 12(1)
(which provides that all persons shall be entitled to a
fair trial); and Article 18 (which provides that administrative
bodies and administrative officials shall act fairly and reasonably
and comply with the requirement imposed upon such bodies and
officials by common law and relevant legislation). It was further
submitted that any limitation upon these fundamental rights, as
provided for in Article 22, must be sanctioned by the Constitution

This court was referred to an unreported case of the Labour Court in
South Africa in the matter between
(first applicant) Moultire
(second applicant) and MEC for
(respondents) case no. D 218/03
delivered on 18 August 2003 as per Pillay J which dealt with the
constitutionality of s 24(5)
of the Public Service Act, Proclamation 103 of 1994, similarly worded
as s 24(5)
(a)(i), in
which the court dealt with the jurisdictional prerequisites for
invoking the provisions of s 17(5)(a). The court remarked that s
(a) calls for a
purposive interpretation to give effect to the constitutional
objective of the right to fair labour practices.

[11] The court found that
in view of the deeming provision, when the employees are discharged,
they are deprived of all the rights and protections afforded by the
unfair dismissal laws. The court at paragraphs 36 and 37 expressed
itself as follows:

. . . Section 17(5)
not merely restricts, but excludes the employees’ right to a
fair hearing before being found guilty and dismissed. It deprives the
employees of challenging the termination of their services through
conciliation and arbitration. It automatically deprives employees of
their employment.

All in all, section 17(5) is a draconian procedure. It must be used
sparingly and only when the code cannot be invoked when the employer
has no other alternative. That would be so, for example, when the
respondents are unaware of the whereabouts of the employees and
cannot contact them. Or, if the employees make it quite clear that
they have no intention of returning to work.’

Mr Ncube who appears on behalf of the respondent submitted that the
deeming provision in s 24(5)
passes the test of constitutionality. He submitted that where a civil
servant has absented himself for such a long period without leave or
valid reason, such employee has breached the duty to render personal
service to his employer, such breach going to the root of the
contract of employment entitling the employer to summarily dismiss
the employee.

This court was referred inter alia to the case of
v CCMA and Other
(2001) 22 ILJ 18 where the
South African Labour Court held that it would be silly to require an
employer to hold a hearing for an employee who had deserted and
indicated an unequivocal intention not to return to work. Mr
Strydom’s submission is that there is no evidence of an
unequivocal intention not to return to work by the applicant.

Mr Ncube also referred to the matter of
Office of the Premier of Western Cape and Another v SA Medical
on behalf of Broens and Others
(2011) 32 ICJ 1077 (CC) where the following appears:

v Minister of Education and Other
the Supreme Court of Appeal explained the purpose of a deeming
provision in the Employment of Education Act similar to that in
section 17(5) (a) of the Public Service Act as follows -

in my view, the provision creates an essential and reasonable
mechanism for the employer to infer ‘desertion’ when the
statutory requisites are fulfilled. In such a case there can be no
unfairness for the educator’s absence is taken by the statute
to amount to a “desertion”. Only the very clearest cases
are covered. Where there is in fact not the case, the Act provides
ample means to rectify or reverse the outcome.’

Mr Strydom in reply stated that on the facts of this case and in
particular the constant communication between the applicant and his
employer the inference of desertion cannot be drawn neither that the
applicant no longer regarded himself to be bound to his terms of
employment (contractual obligations). Mr Strydom submitted that s
(a)(i) does not
include a fair and reasonable procedure as envisaged by the Labour
Act 6 of 1992 and the Articles referred to in the Constitution of
Namibia and cannot exclude an employee’s right to a fair
hearing before being dismissed. It was submitted by Mr Strydom that
the constitutional challenge to the provisions of s 24(5)
is an appeal on a point of law.

In my judgment of 29 April 2011, I expressed the view that the
provisions of s 24(5)
were also applicable in the circumstances of the present case and not
only in those circumstances where an employee disappears or absconds.
Upon reflection, and with due regard to the particular circumstances
of this case, I now hold the view that another court may come to a
different conclusion.

[17] In the result the
application for leave is granted in respect of grounds 3 and 4 only
of the application for leave to appeal.






Instructed by Du Pisani
Legal Practitioners, Windhoek


Of Government Attorney,