THE LABOUR COURT OF NAMIBIA
no: LC 93/2012
02 OCTOBER 2014
the matter between:
citation: Ruben v Hagen (LC 93/2012)  NAHCMD 40 (2 October
24 September 2014
2 October 2014
Application to review an arbitrator’s
award under s89 of Act 11 of 2007. The applicants failed to properly
set out and establish review grounds contemplated under s89(5) of Act
11 of 2007. Application dismissed.
application is dismissed. No order as to costs.
is an application brought by the applicants under s89 (4) of the
Labour Act , 2007 to review
and set aside an award of an arbitrator of 21 June 2012 at Luderitz.
The applicants are represented by Mr
S. Rukoro. The arbitrator in the matter is cited as the first
respondent. She did not oppose the application. The second respondent
is represented by Mr R. Philander.
The applicants were employed by the
second respondent. On 13 September 2011 they each received a notice
of termination of their services by way of retrenchment for economic
reasons. The retrenchment was to be effective from 15 October 2011.
The first applicant filed a grievance against the notice and a
subsequent retrenchment notice was served with the retrenchment set
for 15 December 2011.
On 16 December 2011 the applicants
brought an urgent application in this court seeking to interdict
their retrenchment. That application was dismissed. The applicants
subsequently and on 23 December 2011 referred the dispute to the
office of the labour commissioner claiming illegal and unprocedural
retrenchment. That dispute related to their retrenchments which the
applicants contended were unfair.
The first respondent was assigned as
arbitrator in that dispute. It was initially set down for 10 February
2012 but eventually proceeded on 14 March 2012. In the meantime, the
applicants, through a labour consultant, applies to the Labour
Commissioner for the recusal of the first respondent. The affidavit
in support of their application for recusal contained allegations of
impropriety against the arbitrator.
When the dispute proceeded on 14
March 2012, the applicants instead applied for the dismissal of their
disputes. The transcript of those proceedings is annexed to the
founding affidavit. The arbitrator questioned both applicants about
the allegations in support of recusal and enquired whether either of
them had ever appeared before her. Both denied that and they both
disavowed the allegations in support of recusal saying that these
statements had been inserted by their labour consultant, a certain S.
Ekandjo, in their affidavit and they were not true. They were told he
had written the affidavit but could not confirm it as the truth. The
arbitrator then enquired whether the matter could continue before
her. The applicants replied in the affirmative.
The respondent’s employee
representing it at the hearing took the point that the referral was
the same matter which had been dismissed by the Labour Court in
December 2011. The first applicant stated that the cases were not
identical. She was then afforded a break in proceedings. The
arbitrator afforded the applicants a short break to consider their
positions. Upon the resumption of the proceedings the applicants
stated they did not intend to take their referrals any further. Then
the arbitrator enquired as to whether they were withdrawing the
referral. They stated that it would not be withdrawn and would rather
be proceeding to the Labour Court. The arbitrator pointed out that
the referral was made by them and would need to proceed further to
the stage of finality.
The applicants stated that their
referrals had not been finalised within 30 days as the Act requires.
The arbitrator pointed out that the applicants had not attended at
the commissioner’s office when the matter was previously called
on 12 February. The applicants then confirmed that they did not want
to proceed with the matter. Upon a question by the arbitrator to the
effect ‘you dismiss the case at the arbitration forum’,
both applicants answered in the affirmative.
When the arbitrator canvassed the
issues with the second applicant, she indicated that she did not
intend to proceed further with the referral but intended to take it
to the Labour Commissioner. It was pointed out to her that
arbitration proceedings emanate from a referral to the Labour
Commissioner. The second applicant then reiterated that they intended
to proceed to the Labour Court. The second applicant indicated that
the referral should be dismissed and also said that the referral
should be withdrawn.
The arbitrator then make the
The case was heard on the 14 March 2012 in Luderitz in the Boardroom
of Ministry of Labour and Social Welfare.
The case was made by the applicants for illegal and unprocedural
The applicants asked for a five minute adjournment to consult with
their Labour consultant which was granted to them. After the five
minute adjournment the applicants came back and asked that the case
The arbitrator explained to the applicants what the consequences will
be if they withdrew the case. The applicants stated that they
understood what the arbitrator said but persisted to have the case
applicants withdrew the case the case was withdrawn by the
above-mentioned case is dismissed.’
Subsequent to this award, the
applicants referred a dispute against the second respondent again at
the office of the Labour Commissioner, again in respect of their
retrenchments although this time using the label of an ‘unfair
dismissal’ to describe their dispute. The Labour Commissioner
referred the matter again to the first respondent as arbitrator.
The proceedings again came before
the arbitrator on 21 June 2012. On that occasion, another application
for recusal was brought. It was opposed by the second respondent. The
matter was set down for 30 May 2012. The second respondent took the
point that no grounds for the arbitrator’s recusal were stated
and referred to the fact that the same dispute had been previously
referred and had been dismissed on 14 March 2012. The point was taken
that the applicants did not apply for rescission of that award or
appeal against it and that the matter was res
judicata and that the further referral
constituted an abuse.
The transcript of the oral
proceedings before the arbitrator was attached to the application.
The second respondent’s representative also referred to the
prior application made to the Labour Court being dismissed, to the
previsious referral which was withdrawn and dismissed and pointed out
that the same facts namely the applicant’s retrenchment, formed
the basis of these proceedings.
The applicants acknowledged that the
same facts were involved in each of the proceedings, and particularly
the prior dispute which had been referred and had been dismissed and
withdrawn on 14 March 2012. They were also asked as to whether they
had any complaint about arbitrator’s conduct to which they
explained that the complaints emanated from their labour consultant
and explained that they did not have any complaint about the
arbitrator, despite the strongly stated complaints raised in the
recusal application. The arbitrator put it to the applicants that she
regarded the prior referral as finalised and explained that the
second respondent had sought a costs award against them on the
grounds of the further referral constituting an abuse. The arbitrator
proceeded to dismissed the referral. Her award, dated 21 June 2012
stated the following:
The case was made by the applicants for unfair dismissal.
The applicants and the respondent were present at the meeting.
The respondent stated that the case could not continue as it was the
same case that the applicants made at the Labour Court and it was
dismissed in the court and the Labour Commissioner’s office and
the case number was SLU1/2012.
The respondent asked for cost as they stated that the case was
frivolous and vexatious.
The respondent admitted that it was the same case that they made just
under the different name. After listening to both the
respondent and applicants I withdrew (sic) the case as it was the
third time the case was made by the applicants by their own
The applicants thereafter proceeded
to bring an application to review and set aside the arbitrator’s
award of 21 June 2012. Their application was dated 2 July 2012.
In the founding affidavit, the first
applicant contended that the arbitrator was bound by Rule 20 which
required that unless a dispute had been conciliated, the arbitrator
must resolve it through conciliation before beginning with
arbitration. It was contended that no fair and impartial arbitrator
could have made such a ruling as it has been given in the matter
whereas the arbitration itself on the merits had not occurred.
The first applicant also explained
that she had been advised by her labour consultant that at the set
down of the arbitration for 14 March 2012, it was her intention to
raise a point relating to time prescription. This was not explained
in either her affidavit or in the oral argument. The first applicant
also took the point that even though the arbitrator’s recusal
was sought, she proceeded to adjudicate on the matter and issued her
award of 21 June 2012.
The first applicant concluded that
the award was vitiated by gross irregularities and misuse of power.
In explaining this, the first applicant stated that the arbitrator
had exceeded her statutory authority and misdirected herself in
ruling that the matter was registered three times without proof (of
that) and that the arbitrator had no statutory right to withdraw the
matter from the arbitration roll and to decline to hear the matter
and that the award should be set aside on review.
The second respondent filed an
answering affidavit referring to the factual background of the matter
which I have set out already. The second respondent also disputed
certain of the factual averments which were raised in support of the
recusal application. The second respondent primarily took the point
that the applicants had not made out a case in their founding
affidavit to review and set aside the award under s89. The second
respondent further contended that the principle of res
judicata should apply and that the
arbitrator was correct in her ruling that the application should be
When the matter was argued, Mr
Rukoro on behalf of the applicant submitted that the requisites for
had not been met. Although the parties were the same and that
essentially the same dispute was raised in both referrals, he pointed
out that a final judgment had not been given on the merits of the
matter and for that reason the defence of res
judicata should not have been upheld.
He accordingly submitted that the arbitrator was wrong to have done
so. When he made that submission, I pointed out to him that if the
applicants were dissatisfied as to the correctness of the ruling,
then the applicants’ remedy should have been an appeal. Whilst
conceding that, he pointed out that the applicants were not legally
represented at the time when the review application was drafted or in
their referrals on the arbitration proceedings. Although the notice
of motion in the review application was signed by the first
applicant, this was care of a legal practitioner’s address.
Mr Rukoro also submitted that the
arbitrator exceeded her power under the Act in dismissing the
referral. But this point is not properly raised in the founding
affidavit. Even they were not represented, this application is
confined to the review grounds raised in it. I also take into
account that the applicants did not reply to the second respondent’s
answering affidavit. At that time the applicants were represented by
a legal practitioner, Mr T Mbaeva, who had since withdrawn.
Mr Philander argued that the
applicants’ review did not fall within the ambit of s89. He
submitted that even if the requisites for res
judicata had not been met, the
applicants had in the circumstances abandoned their right to proceed
with their referrals. He submitted they had made an election and were
bound by it and could not repeatedly proceed against their employer
in referral the same dispute again and again. Although only two
referrals had been made, the applicants had also unsuccessfully
brought an application in the labour court in respect of precisely
the same facts. He submitted that the applicants’ conduct in
the circumstances constituted an abuse and that the arbitrator was in
any event entitled to dismiss the referral when it came up again on
30 May 2012.
The provisions of s89 confine
reviews to instances where a defect has occurred in arbitration
proceedings. A defect contemplated by s89(4) is defined in s89(5)(a)
that the arbitrator –
Committed misconduct in relation to the duties of an arbitrator;
Committed a gross irregularity in the
conduct of the arbitration proceedings; or
Exceeded the arbitrator’s power; or
The award has been improperly obtained’
In the applicants’ founding
affidavit they do not spell out the precise respects in which the
arbitrator is alleged to have committed misconduct, a gross
irregularity or exceeded her powers, except in the sense as I have
Applicants in review applications
under s89 have an onus to establish one or more of the review grounds
provided for in s89. An applicant, even when not represented, is
required to make out a case for misconduct or an irregularity or
exceeding powers by sufficiently explaining in what respects the
arbitrator is alleged to have committed such misconduct or an
irregularity or had exceeded her powers. This the applicants failed
to do. Even after the answering affidavit had been provided, the
applicants did not apply to supplement their review grounds in a
replying affidavit and invite both respondents to deal with such
further grounds. This was at a time when they were represented.
The thrust of Mr Rukoro’s
argument was that the arbitrator was wrong in finding that the
requisites of res judicata were
established. That is the language of an appeal and not of a review. I
furthermore found it difficult to discern what applicant’s case
was from the founding affidavit. It is convoluted and does not set
out review grounds with sufficient particularity to alert the first
respondent whose decision making was sought to be set aside or the
second respondent as the case which they had to meet.
As the applicants bear the onus to
establish review grounds and failed to do so in their founding
affidavit, it follows that the application for the review of the
arbitrator’s award of the 21 June 2012 cannot succeed and is to
Even though the second respondent
contended that the conduct of the applicants amounted to an abuse of
process, it would seem to me that they were wrongly advised at
different junctures by their labour consultant who also placed
material in their affidavits in support of recusal and in their
founding affidavit which should not have found their way into those
affidavits. Although the labour consultant had not been placed upon
terms, it would at first blush appear that the abuses can be ascribed
to his ineptitude rather than to the applicants even though they had
engaged him. I am therefore disinclined to find that their conduct
was vexatious or frivolous in circumstances. I accordingly make no
order as to costs.
The order I make is the following:
application is dismissed. No order as to costs.
by: Legal Aid
RESPONDENT: R Philander
by: LorentzAngula Inc.