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

Shaama v Roux (51 of 2011) [2014] NALCMD 39 (30 September 2014);

Media neutral citation
[2014] NALCMD 39
Coram
Van Niekerk J










REPUBLIC OF NAMIBIA





LABOUR COURT OF
NAMIBIA, MAIN DIVISION, WINDHOEK





JUDGMENT





Case No: LCA 51/2011





DATE: 30 SEPTEMBER 2014





REPORTABLE





In the matter between:





ANDREW LWEENDO
SHAAMA...................................................................................APPELLANT





And





DAAN CORNELIUS
ROUX.........................................................................................RESPONDENT








Neutral citation: Shaama v Roux
(LCA 51-2011) [2014] NALCMD 39 (30 September 2014)





Coram: VAN NIEKERK J





Heard: 17 February 2012





Delivered: 30 September 2014





Flynote: Arbitration – Sections
89(1)(a) and 89(4) of the Labour Act, 2007 (Act 11 of 2007) -
Appellant raising issue of whether arbitrator conducted proceedings
in fair and just manner based on certain procedural defects –
This is a question of law – Where defect complained of does not
appear from record itself, a party would have to employ procedure
provided by section 89(4) of the Labour Act because fact that such
defect occurred or exists must be established by way of application
supported by affidavits – Labour Act does not expressly or
impliedly prohibit raising of defects which do not need to be proved
by affidavit – The only limitation in section 89(1)(a) is that
right to appeal exists only in respect of questions of law –
Where defect in proceedings raises question of law and such defect is
apparent from record, a party would be able to bring the matter
before the Labour Court either by way of appeal or review.


.





ORDER





1. The award by the arbitrator dated 8
June 2011 is set aside.





2. The matter is referred back to the
Labour Commissioner to appoint a new arbitrator to hear the
arbitration de novo.





JUDGMENT





VAN NIEKERK J:




[1] The appellant in this matter is a
former employee of the respondent. In terms of the Labour Act, 2007
(Act 11 of 2007), the appellant referred to arbitration a dispute
concerning his claim against the respondent for payment for work
allegedly performed on Sundays and public holidays during the period
August 2006 and November 2010.





[2] On 8 June 2011 the arbitrator held
as follows:





‘The applicant failed to
substantiate his claim and how did he come (sic) to the amount his
(sic) claiming, as there was no agreement that was presented by the
applicant to substantiate the claim. The law is very clear, section
86(2)(b) of the Labour Act (Act 11 of 2007) states that any party to
a dispute may refer the dispute to the Labour Commissioner within one
year after the dispute arising, in any other case (sic). In this
case the dispute arose in 2006 and it was only referred to the Labour
Commissioner in 2010 upon his resignation.





The applicant’s claim has
prescribed considering the fact that the applicant is alleging he
never received payment for the Sundays and Public holidays since 2006
when he stated (sic) working for the respondent. I believe the
applicant had ample time to institute his claim within the time frame
stipulated in the Labour Act.’





[3] The arbitrator thereupon found that
the appellant had no case and dismissed his claim.





[4] On 23 June 2011 the appellant filed
a notice of appeal in which he gave notice that he would ask this
Court for an order (1) upholding the appeal and setting aside the
arbitration award; and (2) that the respondent should compensate the
appellant for work performed on Sundays and public holidays during
the period of 12 months immediately preceding the date of referral of
the dispute, i. e. 1 December 2010. The appellant set out certain
grounds for the appeal.





[5] After the transcribed record became
available, the appellant filed an amended notice of appeal in which a
so-called point in limine was included. I say ‘so-called’
because what was included is really an additional ground of appeal.
The grounds of appeal referred to in the previous paragraph (supra)
were retained and the order sought by the appellant remained
unaltered. The full grounds for the appeal are set out as follows in
the amended notice of appeal:


‘1.





In limine:





The arbitrator failed to conduct the
proceedings in a fair and just manner.





(i) The arbitrator erred in law to
properly explain the process to be followed in the arbitration;





(ii) The Arbitrator failed to inform
the applicant on (sic) his right to testify personally;





(iii) The Arbitrator erred in law in
failing to allow the Appellant/Applicant to cross-examine the
Respondent and/or to challenge the Respondent’s evidence
through cross-examination.





1.1 The Arbitrator determined that the
Appellant’s total claim for payment for work performed on
Sundays and public holidays since 2006 has become prescribed in terms
of the Labour Act.





1.2 Consequently, the following
question of law fall (sic) for determination:





(a) “Whether the arbitrator erred
in law in finding that the Appellant’s total claim has indeed
become prescribed?”





1.3 The grounds on which the appellant
relies are the following:





(i) The appellant, a former employee of
the respondent has referred a dispute claiming payment for work
performed on Sundays and Public Holidays during the period August
2006 to November 2010. Such dispute was referred on 1 December 2010.
In respect of the period November 2009 to November 2010, the
Appellant’s claim could not have been prescribed.’





[6] The respondent opposes the appeal
on several grounds. The first is that the grounds raised in the
so-called point in limine relates to defects and irregularities in
the proceedings which should have been raised by way of review and
not by way of appeal. In this regard Mr de Beer, who appears on
behalf of the respondent, submitted that the Labour Act distinguishes
between appeals and reviews and referred to subsections (1), (4) and
(5) of section 89 of the Labour Act, which provide as follows:





‘(1) A party to a dispute may
appeal to the Labour Court against an arbitrator’s award made
in terms of section 86, except an award concerning a dispute of
interest in essential services as contemplated in section 78-





(a) on any question of law alone; or





(b) in the case of an award in a
dispute initially referred to the Labour Commissioner in terms of
section 7(1)(a), on a question of fact, law or mixed fact and law.





(4) A party to a dispute who alleges a
defect in any arbitration proceedings in terms of this Part may apply
to the Labour Court for an order reviewing and setting aside the
award-





(a) within 30 days after the award was
served on the party, unless the alleged defect involves corruption;
or





(b) if the alleged defect involves
corruption, within six weeks after the date that the applicant
discovers the corruption.





(5) A defect referred to in subsection
(4) means-





(a) that the arbitrator-





(i) committed misconduct in relation to
the duties of an arbitrator;





(ii) committed a gross irregularity in
the conduct of the arbitration proceedings; or





(iii) exceeded the arbitrator's power;
or





(b) that the award has been improperly
obtained.’





[7] Mr Philander, who appears on behalf
of the appellant, on the other hand, in effect submitted that the
grounds of appeal based on the irregularities committed by the
arbitrator raise a question of law, namely whether the appellant
received a fair and just hearing. As such, he submitted, the matter
is appealable.





[8] Mr Philander referred to the matter
of Roads Contractor Company v Nambahu and Others 2011 (2) NR 707 (LC)
in which the appellant followed the same procedure by raising, on
appeal, irregularities which rendered the arbitration hearing unfair.
The specific ground of appeal in that amended notice of appeal was
also labelled a ‘point in limine’ and read as follows:
‘In limine: The arbitrator failed to conduct the proceedings in
a fair and just manner.’ (see 708H).





[9] From the reasons for the judgment
it is not possible to establish whether Muller J heard any argument
on the issue of whether the matter should have been dealt with in
terms of section 89(4) of the Labour Act by way of review and not by
way of appeal. However, I can hardly imagine that section 89(4)
would have been overlooked. Be that as it may, in that case the
respondent’s counsel objected to the specific ground of appeal
and submitted that ‘this is a procedural issue and not a
substantive one and that the particular ground of appeal in the
amended notice of appeal is not stated clear enough’ (at 711F).
Muller J, without specific discussion of the submissions, summarily
rejected them as having ‘no substance’ (at 711F).





[10] It seems to me that what weighed
throughout with the learned judge is that the particular conduct of
the arbitrator complained of rendered the arbitration hearing unfair
and therefore unlawful. This was abundantly clear from the record as
he illustrated by way of numerous quotations from the transcription.
Throughout the judgment he emphasized the appellant’s right to
a fair trial and stated as follows (at 710E-F):





‘[9] Article 12 of the Namibian
Constitution guarantees that any person is entitled to a fair trial.
Article 12(1)(a) reads as follows:





'(1)(a) In the determination of the
civil rights and obligations or any criminal charges against them,
all persons shall be entitled to a fair and public hearing by an
independent, impartial and competent Court or Tribunal established by
law; provided that such Court or Tribunal may exclude the press
and/or the public from all or any part of the trial for reasons of
morals, the public order or national security, as is necessary in a
democratic society.'





[11] Although the more specific focus
of the Court in the case of Roads Contractor Company v Nambahu was
the irregularity that the arbitrator was not impartial in the manner
he conducted the hearing, the learned judge also considered other
irregularities which contributed to the result that the arbitration
hearing was unfair. For example, he stated (at 711H-I):





‘Furthermore, the whole procedure
and the way that the hearing was conducted, made it impossible for
any witness to testify, because the arbitrator constantly and nearly
after each and every sentence in the evidence of a witness,
intervened and asked questions which were not only based on
assistance or clarification. The arbitrator not only interfered in
the evidence and cross-examination of witnesses, but he seemed the
most active questioner. In this regard certain guidelines in respect
of the manner in which arbitration ought to be conducted to ensure a
fair hearing will be provided for the edification of arbitrators at
the end of this judgment.’





[12] Muller J also cited several
instances in the record of proceedings which provided indications
‘that the arbitrator was at a loss as to how the arbitration
should be conducted’ (e.g. at 711J; 712C-G; 712G-713B; 713B-G).
These were all concerned with the proper procedure to be applied in
order to provide a fair hearing to all parties. In this regard he
said with apparent approval (at 710I-711A):





‘[12] Mr Philander submitted that
throughout the arbitration before him the conduct of the arbitrator
can be regarded as misconduct in respect of his duties and that he
consequently committed a gross irregularity. In this regard he
referred to the case of Klaasen v CCMA and Others (2005) 10 BLLR 964
at 27 and Naraindath v CCMA and Others (2000) 21 ILJ 1151 (LC) at 27.
In respect of what has to be understood from the expression of
misconduct, Mr Philander referred to the 4 edition of re-issue of
Halsbury, vol 2 para 694, where the following is stated:





'Misconduct has been described as such
a mishandling of the arbitration as is likely to amount to some
substantial miscarriage of justice . . . An arbitrator will
misconduct himself if he acts in a way that is contrary to public
policy. In particular, it will be misconduct to act in a way which
is, or appears to be, unfair.'’





[13] The learned judge eventually
concluded as follows (at 722D):





‘[25] In the light of my finding
that the arbitrator did not act in an independent and neutral manner
and that the applicant (and even the two respondents) did not receive
a fair trial before the arbitrator, the arbitrator's award has to be
set aside.’





[14] As promised the Court provided
guidelines for a fair hearing after stating the following (at
724E-G):





‘[31] It is against this
background and having considered the manner in which the current
arbitration had been conducted, as shown above, that the distinct
impression is gained that some guidelines or at least 'tips' to
conduct a fair hearing may be necessary. In providing these
guidelines the court is conscious of the more informal manner that
the Labour Act requires proceedings of the arbitration tribunal
should be conducted, as well as the empowerment of the arbitrator in
this regard. Despite these legislative provisions contained in the
Labour Act and its rules, the forum remains a tribunal and the
requirements of the Namibian Constitution in respect of a fair
hearing remains paramount. Other legal requirements in respect of
what constitutes a fair hearing, cannot be ignored.’





[15] It is not necessary to set out the
guidelines in full. Most of them are concerned with the impartiality
of the arbitrator. However, the first three mentioned by the learned
judge pertain to other matters (at 724H-I):





‘(a) The arbitrator must acquaint
himself with what the dispute(s) of the complainant are.





(b) The arbitrator has to be aware on
whom the onus rests and determine who should commence.





(c) The arbitrator should ensure that
the parties are properly informed and understand how the proceedings
will be conducted.’





[16] Counsel for the respondent
submitted in paragraph 5.2 of his heads of argument that the appeal
before me ‘is not based on a question of law alone, but
includes aspects which indicate irregularities and that the appeal
may not include such matters.’ This submission was, in
substance, persisted with in oral argument. For this submission
counsel relies on the unreported judgment by this Court in Patrick
Geinkop v Commercial Investment Corporation (Pty) Ltd and another
(Case No. LCA 54/2011 – delivered on 18 November 2011).





[17] In that matter the appellant
appealed against the ruling of the arbitrator who dismissed his claim
arising from an alleged unfair dismissal by his employer. In an
amended notice of appeal the appellant included an appeal ground that
the arbitrator had misdirected herself and erred in law and in fact
by allowing the employer’s representative to testify and hand
in certain exhibits during the arbitration proceedings. During the
appeal the legal point was taken that the appellant’s right of
appeal was confined to ‘any question of law alone’ in
terms of section 89(1)(a) of the Labour Act, because the dispute
referred to the Labour Commissioner was not a dispute in terms of
section 7(1)(a) of the Act, i.e. a dispute concerning ‘a matter
within the scope of this Act and Chapter 3 of the Namibian
Constitution.’ The Court upheld the point and found (at para.
[15]) that the appeal was not sanctioned by the provisions of section
89(1)(b) of the Labour Act, but that section 89(1)(a) was applicable
to the appeal.


This meant therefore that the appellant
could not appeal on a question of fact or mixed fact and law.





[18] The Court was further of the view
(at para [14]) that ‘[w]hen one has regard to the grounds as
well as the amended grounds then in my view it should be apparent
that these grounds are not concerned with questions of law alone, but
also include questions of fact as well as an alleged irregular
procedure allowed by the arbitrator.’ The Court further stated
in para. [17]:





‘The alleged procedural
irregularity during the arbitration proceedings referred to in the
amended notice of appeal is in my view subject to review proceedings
and cannot form a ground of appeal.’





[19] In my most respectful view this
finding was correct. The manner in which the appeal ground relating
to the said procedural irregularity was framed precluded an appeal.
It alleged that the arbitrator erred ‘in law and in fact’.
I do not think that the Geinkop judgment can be read as authority for
the general proposition that procedural irregularities which raise
questions of law only may never be raised by way of appeal.





[20] It is evident that, where the
defect complained of does not appear from the record itself, a party
would have to employ the procedure provided by section 89(4) of the
Labour Act because the fact that such a defect occurred or exists
would then have to be established by way of application supported by
affidavits as envisaged in rule 14 of the Labour Court rules.
Clearly such matters can never be raised by way of appeal as in an
appeal one is bound to the four corners of the record. However, the
Act does not expressly or impliedly prohibit the raising of defects
which do not need to be proved by affidavit. The only limitation in
section 89(1)(a) is that the right to appeal exists only in respect
of questions of law. (For purposes of this discussion I do not
include matters which fall within the provisions of section 89(1)(b)
of the Labour Act as they do not apply to this case).





[21] It seems to me that where a defect
in the proceedings raises a question of law and such a defect is
apparent from the record, a party would be able to bring the matter
before the Labour Court either by way of appeal or by way of review.





[22] In passing I note in the context
of this discussion that this Court in Labour Supply Chain Namibia
(Pty) Ltd v Hambwata (Case No. LCA 14/2010, Unreported, 3 February
2012, at para. [34]) was inclined on appeal to set aside arbitration
proceedings on the basis of fatal irregularities which were apparent
from the record, were it not for the fact that the Court had already
decided that the appeal should be upheld and the award set aside on
the basis of one of the questions of law raised by the appellant.





[23] In my respectful view a pragmatic
approach is to be followed, especially where the defects are raised
as questions of law, or where the defects provide the basis for a
question of law to be raised, in an appeal wherein other questions of
law are also raised. Otherwise litigants would have to approach this
court in the same matter by way of both appeal and review. This
would certainly mean increased work and costs.





[24] Having said this I think it is
wise to sound a word of caution. Although the procedure contemplated
by section 89(4) and rule 14 of the Labour Court rules may be more
cumbersome, it seems to me that it might often be preferable as it
avoids the pitfalls inherent in the appeal procedure, concerned as it
is with questions of law. A reading of relevant case law both in
Namibia and in South Africa indicates that the formulation of
questions of law is notoriously tricky. An appellant therefore
always runs the risk of the appeal ground not being entertained
because of defective formulation or because this Court might hold
that the question is not a question of law, but one of fact, or one
of mixed fact and law. The requirement that the facts on which the
question of law is to be decided should not be in dispute should also
not be overlooked.





Does the complaint that the arbitrator
failed to conduct the proceedings in a fair and just manner amount to
a question of law?





[25] The next question to be answered
in this appeal is whether the in limine statement in the amended
notice of appeal raises a question of law only. Put differently,
does the complaint that the arbitrator failed to conduct the
proceedings in a fair and just manner by (i) failing to properly
explain the process to be followed in the arbitration; (ii) failing
to inform the applicant of his right to testify personally; and/or
(iii) failing to allow the Appellant/Applicant to cross-examine the
Respondent and/or to challenge the Respondent’s evidence
through cross-examination, amount to a question of law?





[26] In S v Basson 2004 (1) SACR 285
(CC) the Constitutional Court of South Africa considered whether the
determination of what is fair in the context of an accused’s
right to a fair trial under section 35(3) of the South African
Constitution raises an issue of fact or of law. In this regard it
stated the following (at 310F-H):





‘[54] The State seeks to
challenge the decision of the High Court that the bail record was
inadmissible as evidence in the criminal trial. In essence, the High
Court found that the admission of the evidence against the respondent
would, in all the circumstances, be unfair. The SCA correctly held
that an accused was entitled to a fair trial, that it was necessary
for the High Court to determine what would be fair under the
circumstances and that s 35(3) of the Constitution justifies the
exclusion of evidence the admission of which would be unfair to an
accused. However, the SCA, relying on certain reasoning in
Attorney-General, Transvaal v Kader [1991 (4) SA 727 (A) at 740F-J]
held that the determination of the High Court as to what was fair
raised an issue of fact and not an issue of law. It is now necessary
to consider whether this decision was correct.’





[27] During the course of the Court’s
reasoning that followed, it stated as follows (at 311F-313A):





‘The ruling of the High Court was
in effect that the evidence of the bail record was not admissible.
The part of the judgment in Magmoed [v Janse van Rensburg and Others
1993 (1) SACR 67 (A)] which dealt with admissibility challenges, is
instructive. In determining whether the High Court's refusal to admit
evidence given in inquest proceedings by the accused raised a
question of law, the Court held:





'The admissibility of evidence may well
turn solely on an issue of fact. An obvious example of this is the
case where the admissibility of an extra-curial statement by the
accused is in issue and this depends on whether it was made freely
and voluntarily and without undue influence or whether it was induced
by some form of physical coercion. This is a question of fact; and
the only way in which it could be raised by an accused person as a
point of law reserved would be to pose the question as to whether
there was any legal evidence upon which the Judge could properly have
found that the prosecution had discharged the onus on this issue (see
R v Nchabeleng 1941 AD 502 at 504; R v Ndhlangisa & Another 1946
AD 1101 at 1103 - 4). Admissibility may, on the other hand, turn
purely on a question of law, for example whether a certain statement
constitutes a confession (see R v Becker 1929 AD 167 at 170; R v
Viljoen 1941 AD 366 at 367). Furthermore, in a particular case
admissibility may depend upon both law and fact.





It seems to me that the decision of
Williamson J on the admissibility of the inquest evidence falls into
the last-mentioned category. In effect he found (i) that the failure,
after a certain stage in the proceedings, on the part of the
respondents (and their counsel) to object to answering incriminating
questions was the result not of a free election to do so, but of
their having been discouraged or inhibited from so objecting by the
general ruling of the magistrate and his approach to this issue; and
(ii) that this rendered the evidence of the respondents inadmissible.
Finding (i) is clearly one of fact or of factual inference; whereas
finding (ii) is a matter of law.'





[58] It is apparent from this passage
that there is a two-step process in the adjudication of issues
concerning the admissibility of evidence. The first is to determine
the facts. These may be primary facts provable by direct evidence or
secondary facts established by inference. The determination of the
facts is essentially separate from the second enquiry. The second
stage is concerned with whether, on the basis of the facts determined
in the first stage, it is fair for the evidence to be admitted.








[60] The reasoning in Magmoed in
relation to admissibility is sound both in principle and in law. It
is, moreover, directly applicable to the admissibility challenge in
this case. The High Court in considering the admissibility challenge
did two things. In the first place, it determined the facts. In the
second place, it measured the facts against the test of fairness in
order to determine whether the evidence was admissible. The second
enquiry raised a question of law. We conclude therefore that in this
regard, as well, the SCA erred.’





[28] In my respectful view the same
reasoning should be applied in the present matter. I have no doubt
that when this Court is faced with the enquiry of whether arbitration
proceedings measure up to the standard of a fair trial, a right
expressly protected by the Constitution, the standard employed is a
legal one. This was also, in effect, the approach followed
throughout by this Court in Roads Contractor Company v Nambahu
(supra).





[29] In the present matter the appeal
ground is based on the assumption that the facts are clear from the
record. In other words, the fact that the alleged procedural defects
set out in paragraphs (i) – (iii) of the amended notice of
motion occurred must be common cause or appear clearly from the
record. Whether these procedural defects, singly or jointly, have
the effect that the trial was not just and fair, is a question of
law.





[30] To conclude, the finding of this
Court is therefore, that the amended notice of appeal does raise a
question of law on the issue under discussion (‘the first
question of law’) and that the appellant may use the appeal
procedure to bring this matter before this Court.





The first question of law – was
the arbitration hearing fair and just?





[31] I now turn to a consideration of
the merits of the first question of law. In my view parts of the
heads of argument filed by the appellant’s counsel venture
outside the scope of the procedural errors mentioned in the amended
notice of appeal. I shall therefore only consider those arguments
which a covered by the said notice.





(i) The failure to properly explain the
process to be followed in the arbitration





(ii) The failure to inform the
applicant of his right to testify personally





[32] The first two errors complained of
may conveniently be considered together, as the failure to inform the
appellant of his right to testify in person is a specific instance of
the failure to properly explain the process to be followed in the
arbitration.





[33] It is common cause that both
parties are lay persons who appeared in person at the arbitration
proceedings. A reading of the transcribed record shows that the
arbitrator commenced with a very general explanation of the various
stages through which the proceedings would be conducted. She did
this as follows (at p12, line 8 – p13, line13)(the extract is
rendered exactly as it appears in the record):





‘The 1st (first) stage it’s
the introduction where I will introduce myself and the parties. Also
they will have a chance to introduce themselves. And we’ll go
to the 2nd (second) stage, that is the opening, opening statement uh
by the parties. In this opening statement the parties will enable or
applying what exactly they want and what they are claiming and the
outcome they seek from all this. And the 3rd (third) stage is
narrowing all the issues where you will clarify what is in dis, in
dispute and what is admitted. Then there is the 4th (fourth) stage,
that is conciliation. If parties still wish to go back to
conciliation I will switch off my recording and then go back to
negotiate, to, to, to conciliation and negotiate this matter. Then
we will move to if, if, if, if, parties they don’t seek to go
back to conciliation we will move to the 5th stage (fifth) uh stage,
that is evidence where parties will call witnesses. If you have
witness, witnesses you will examine your witnesses and uh the
Respondent is also given a chance to cross-examine and then you will
re-examine again. From the 5th (fifth) stage we go to the 6th
(sixth) where you present your argument. In this you explain what is
the legal conclusion that you want to draw from all the evidence that
is presented uh through in these proceedings. Then the 7th (seventh)
stage and the 8th (eighth) it will be mine, my, my, my 7th (seventh)
its closure where I will explain what will happen after the hearing
is over. And then the last stage is the Award that I’m
required to write within 30 (thirty) days to make a decision of what
has transpired and uh...’





[34] After this explanation the
proceedings went through the said stages in some form or other until
the fifth stage was reached. The following was then recorded (at
p24, lines 1-10):





‘MADAM CHAIRPERSON: Okay. Then we
move to the 5th (fifth) stage where parties will prevent, present
their evidence. And in this case uh if you have witnesses uh you may
call your witnesses to come. But uh I just want to know how many
witnesses do you now, do you have?





FOR APPLICANT: I have 3 (three) that
are on their way and then there’s 1 (one) that was here. He’s
left because time is catching up with him. He had to go to work, as
I mentioned earlier. I wanted us to deal with that one and that he
could be released and a, and at an earlier stage.’





[35] The record then indicates that a
recess was taken after which the arbitrator explained the difference
between taking the oath and making an affirmation, where after the
first of the appellant’s witnesses was sworn in. He called
four witnesses. After the evidence of the fourth witness was
completed, the arbitrator called on the respondent to present his
evidence as follows (at p59, line 20-p60, line 5):





‘MADAM CHAIRPERSON: Uhm since we
are done with the applicant’s witnesses and evidence uh its
your turn Mr ...





CASE FOR THE APPLICANT:





FOR RESPONDENT: Uh yes as I said uh,
uh ...





MADAM CHAIRPERSON: Shaama ...





FOR RESPONDENT: uhm.





MADAM CHAIRPERSON: I mean Mr Daan to
present your evidence.’





[36] At no stage did the arbitrator
explain to the appellant (or to the respondent) that he was entitled
to testify in support of his claim. What did occur is that the
appellant made an unsworn ‘opening statement’ in respect
of which the arbitrator on various occasions invited him to state
‘what exactly’ he ‘wants’, what he is
claiming, and what outcome he seeks (p12, line 13-14); to ‘explain
... what this dispute is all about’ and ‘what outcome you
seek in this matter’ (p14, lines 7-9); and ‘to start from
the beginning that you started working for the Respondent from this
period and what transpired, exactly the whole thing that happened ’
(p15, lines 3-6). (Further examples occur on p15, line 16; p15, line
22 – p16, line 14).





[37] Mr de Beer in effect submitted
that as the appellant had an opportunity to state exactly what his
claim was all about and what exactly he wanted, he cannot really
complain. In his opening statement he did not set out precisely on
which Sundays and public holidays he worked and therefore did not
present proper information about the computation of his claim. This
was also not indicated by way of any documentation handed in during
the hearing, although the respondent during his opening statement
challenged the appellant to provide proof of exactly which days he
did work.





[38] I take note of this, but to my
mind the invitation to make a full opening statement cannot take the
place of a proper explanation to a party that he has the right to
testify in support of his own claim. In any event, an ‘opening’
statement merely sets the stage of what is to follow. In it a party
is supposed to state what the case is about and what is intended to
be proved by way of presenting evidence when that stage of the
proceedings is reached. An opening statement cannot properly take
the place of evidence under oath. In fact, the arbitrator should
have explained to the appellant that what he stated in his opening
statement does not constitute evidence and that, if he wanted the
court to take notice of the contents, he should repeat it under oath.
However, I remain mindful that this failure does not constitute part
of the notice of appeal.





[39] While it is tempting to speculate
that the appellant would probably not have stated his case better
under oath and that he would, therefore, in any event not have
substantiated his claim as the arbitrator indeed found, the fact is
that one simply does not know what he would have stated in evidence
if he had availed himself of that opportunity after proper
explanation of his right to testify in person. The failure to
provide this explanation constitutes a gross irregularity which
renders the trial unfair.





(iii) The failure to allow the
appellant to cross-examine the respondent and/or to challenge the
respondent’s evidence through cross-examination





[40] As far as the third error is
concerned, it is clear from the record that after the appellant
closed his case, the arbitrator invited the respondent to present his
evidence. Without being sworn, he proceeded to hand in a series of
documents, including written calculations, which were marked as
exhibits and in regard to which he gave certain explanations. While
he was still busy with this, the arbitrator intervened and asked the
appellant whether he wanted to say something (p64, line 18-19). The
appellant then handed in a document which he claimed provided some
indication that a certain aspect of the respondent’s evidence’s
is not correct. After this the respondent continued to explain the
documents he had handed in. At the end of the explanation the
arbitrator stated:





‘Lets move on to argument. In
this stage you have to explain what legal conclusion do you seek from
the evidence that is, that was given to your side and his side.’





[41] It is abundantly clear that the
arbitrator did not provide any opportunity to the appellant to
cross-examine the respondent. Included amongst the documents which
the respondent handed in were documents which, according to the
respondent, indicated the Sundays that the appellant worked and those
on which he did not work (p61, lines 16-19). This is obviously a
document on which the appellant might have posed questions or which
he might have sought to challenge in some way if he had had the
opportunity. Besides, during cross-examination a party is entitled
to elicit evidence in his favour. Also in this respect one will
never know what may have been stated in evidence if the appellant had
had the chance to pose questions in cross-examination. The failure
to provide him with such a chance is fatal to the procedural fairness
of the hearing (see also Novanam Ltd v Jose MT Crespa (Case No. LCA
10/2009 – Unreported judgment delivered on 21 January 2011).





[42] Mr de Beer submitted that the
arbitrator merely exercised her discretion in terms of section
86(7)(a) of the Labour Act to conduct the arbitration in a manner she
considered appropriate to determine the dispute fairly and quickly
and that she dealt with the substantial merits of the dispute with
the minimum of legal formalities as required by section 87(7)(b).





[43] While taking note of the
provisions of section 87(7), I do not agree with these submissions.
These provisions may never be used to fundamentally undermine the
right to a fair hearing under the Constitution. Essentially the same
view is also expressed in Roads Contractor Company v Nambahu (supra)
(at 724A-G) and in Strauss v Namibia Institute of Mining &
Technology & Others NLLP 2014 (8) 390 LCN (para. [51]).





[44] Mr de Beer submitted that if one
party is required to testify under oath but the other is not, it
would suggest irregularity. However, the submission continued, in
this matter both the appellant and the respondent were allowed to
make verbal statements to present their case; both did not testify
under oath and both were not given the chance to cross-examine. Both
were treated equally. There is no merit in this submission. It
amounts to saying that if the arbitrator is equally unfair to both
parties the hearing is fair. The fact that both parties in this case
were subjected to the same irregularities by failure to explain their
right to testify; to take their evidence under oath; and to allow
cross-examination by the opposing party, cannot save the hearing from
being judged a fundamental miscarriage of justice. At most it might
mean that the arbitrator was impartial in committing those
irregularities which ultimately rendered the trial unfair to both
parties, although in this case the respondent is not inclined to
complain about it. Clearly the fairness of a hearing should be
judged not only by assessing whether the tribunal treated both
parties equally.





[45] Mr de Beer relied on an obiter
remark made by Smuts, J in Labour Supply Chain Namibia (Pty) Ltd v
Hambata (supra) at para. [33] where he stated as follows:





‘[33] In setting aside the award,
I also wish to refer to certain irregularities which occurred in
these proceedings. Despite the representative expressly requesting
it, the arbitrator declined to require that the respondent give her
evidence under oath. She merely made a statement even though the
arbitrator permitted cross-examination of her. On the other hand, he
required that the appellant’s witnesses to (sic) give their
evidence under oath. This amounts to an irregularity. Parties are
to be treated alike.’





[46] I do not consider this passage to
be support for counsel’s submission. Seen in context with the
very next passage in the judgment the learned judge was concerned
with irregularities which were of such a nature that he felt inclined
to set aside the proceedings. The failure to place a party under oath
when he or she is about to give evidence is irregular, but in the
context of arbitration proceedings, this irregularity in itself might
not necessarily be fatal to the proceedings. However, if the other
party is required to present evidence under oath, the treatment will
be unequal and this latter irregularity would probably be fatal, as
indeed the learned judge was inclined to find (see para. [34]). What
probably also weighed with the learned judge is that the arbitrator
did not merely by way of oversight omit to put the respondent under
oath, but specifically declined to do so while requiring the
appellant’s witnesses to testify under oath. This suggests a
deliberate decision to treat the parties unequally.





[47] In the matter before me the
irregularities complained of are, by their very nature, such that
they render the hearing fundamentally unfair and no amount of ‘equal
treatment’ can rescue the hearing from its fate of being set
aside.





The second question of law –
‘prescription’ of claim





[48] Although I have come to the
conclusion that the appeal must succeed on the first question of law,
I wish to deal briefly with the second question of law in order to
provide clarity. In Roads Contractor Company v Nambahu (supra)
Muller J dealt with the very same issue as follows (at 723C-I):





‘[28] Section 86(2) of the Labour
Act 2007 provides as follows:'86(2) A party may refer a dispute in
terms of ss (1) only —





(a) within six months after the date of
dismissal, if the dispute concerns a dismissal; or





(b) within one year after the dispute
arising in any other case.'





What is commonly referred to as
prescription, is in fact not prescription in the sense of a debt
being prescribed according to the Prescription Act 68 of 1969. It is
more of a limitation on the institution of a claim. This is not a
matter of unfair dismissal and consequently s 86(2)(b) is applicable.
Consequently, the claim has to be instituted within one year from the
time when the dispute arose. This is common cause. Mr Philander
referred to the decision by Henning AJ, a judgment delivered on 30
November 2010 in the case of Nedbank Namibia Ltd v Louw [Now
reported at 2011 (1) NR 217 (LC) — Eds.] where an arbitration
award was based on a dismissal in terms of s 86(2)(a) of the Act and
where the claim had been launched out of time. The learned acting
judge held that the arbitrator was not authorised to consider this
issue at all; ' . . . (it) was ultra vires his authority and
consequently a nullity.' On that basis the award was also a nullity
and that award was set aside.





[29] The situation in this matter is
somewhat different. The two respondents (co-complainants) claimed for
underpayment over a long period. It seems to me that Mr Barnard
considered that part of the payment, namely before May 2008, might be
ultra vires the authority of the arbitrator in terms of the provision
of s 86(2)(b), but that the salary payment from May 2008, as well as
future payments, are not affected by the provisions of s 86(2)(b). If
I had to consider this issue, called 'prescription', I would only
have dealt with claims arising from May 2008, depending of course if
it could be found that the claimants were indeed entitled to such
salary payments. In the light of my decision that the award should be
set aside and referred back, I do not make any finding in respect of
this issue.





[49] Before me the parties are in
agreement that the arbitrator did err in holding that the whole claim
for the full period of August 2006 to November 2010 has ‘prescribed’,
but that the appellant’s claim in respect of the one year
period before he instituted the claim has not ‘prescribed’.
In the amended notice of appeal the statement is made that ‘In
respect of the period November 2009 to November 2010, the Appellant’s
claim could not have been prescribed’. However, I agree with
Mr de Beer that a proper calculation results therein that the period
commences on 1 December 2009 and ends on 30 November 2010.





Order





[50] In conclusion the following order
is made:





1. The award by the arbitrator dated 8
June 2011 is set aside.





2. The matter is referred back to the
Labour Commissioner to appoint a new arbitrator to hear the
arbitration de novo.





K van Niekerk





Judge





APPEARANCE





For the appellant: Mr S R Philander





of LorentzAngula Inc





For the respondent: Mr P J de Beer





of De Beer & Keulder Legal
Practitioners