Court name
Labour Court Main Division
Case number
13 of 2014
Title

Air Namibia (Pty) Ltd v Sheelongo (13 of 2014) [2015] NALCMD 14 (17 June 2015);

Media neutral citation
[2015] NALCMD 14
Coram
Ueitele J










LABOUR
COURT OF NAMIBIA: MAIN DIVISION, WINDHOEK


JUDGMENT


CASE
NO.: LCA 13/2014


DATE:
17 JUNE 2015


In
the matter between:


AIR
NAMIBIA (PTY)
LTD................................................................................................APPLICANT




And





JONAS
SHEELONGO...................................................................................................RESPONDENT


Neutral
citation: Air Namibia v Sheelongo (LCA 13-2014) [2015] NALCMD
14 (17 June 2015)


Coram:
UEITELE,J



Heard on: 24
October 2014, 20 November 2014 & 03 February 215


Delivered
on: 17 June 2015


Flynote:
Labour law
— Labour Act 11 of 2007, s 87(1)(b) — Interpretation of —
T
he effect of making an arbitration award an order of the
Labour Court.


Practice
Disobedience of an arbitration award - constitutes a
practice that is not only inconsistent with the rule of law but -
which subvert the rule of law- Court refusing to hear appeal


Summary:
On 05 December 2013 the respondent
referred a dispute between him and the applicant, of alleged
unilateral change of terms and conditions of employment and unfair
labour practice to the office of the Labour Commissioner in terms of
ss 82 (7) and 86 (1) of the Labour Act, 2007 read with Regulations
16(1), 18(1) and 20(1) of the Labour General Regulations.


The
parties agreed to conduct the arbitration proceedings on the basis of
the stated case. On 28 February 2014 the arbitrator delivered his
award and he declared that the appellant had unilaterally changed the
respondent’s terms and conditions of employment. It is against
that award that the appellant appeals. The appeal was lodged and
filed on 28 March 2018.


On
09 June 2014 the Registrar of this Court informed the respondent that
the arbitration award under case No. LC 78/2014 was filed with the
High Court on 09 June 2014 and that from that date it became an order
of this court.  The court raised the question whether it has
jurisdiction to hear the appeal once the arbitration award was made
an order of Court. The respondent also raised a point in limine
namely that the appellant is non-suited to proceed with its appeal
because it has ignored the arbitration award which was made an order
of court.


Held
that from the moment that an arbitration award is
made an order of court and so long as the order of this Court making
such award an order of this court stands that order remains sun an
“order”. The consequences of that transformation are that
it would not be competent for this court to hear an appeal or review
against its own ‘order’.


Held
further that the arbitration award became an order of court
not in pursuance of any application made by a party or the Labour
Commissioner to this Court but by simply filling the award with this
Court, this court is of the view that Rule 16 of the Labour Court
Rules does not apply to circumstances where a party wishes to rescind
an order which became an order of this Court pursuant to s 87(1)(b).
Thus this court finds that Rule 22(1) of the Labour Court finds
application in this matter.


Held
furthermore
that in certain circumstances it
may be irregular for a litigant or the Labour Commissioner to file an
arbitration award with the High Court within the thirty day period
within which the other litigant has the right to appeal against the
award or to apply for the review and setting aside of the award. For
these reasons this court invokes the powers vested in it in terms of
Rule 103(1) and set aside the order making the arbitration award
under reference number LC 78/14 an order of this court.


Held
furthermore
disobedience of an arbitration award with impunity
constitutes a practice that is not only inconsistent with the rule of
law but amounts to a practice which will subvert the rule of law.


Held
furthermore
for purposes of the point in limine raised by
the respondent it is sufficient that the appellant has been and still
is in willful default of the arbitration order and that it has not
placed any exceptional circumstances before this court which will
allow the Court to hear the appeal before it has purged its default.


ORDER





1.
The appeal is struck from the roll.


2.
The appellant is granted leave to re-enroll the appeal once it has
purged its default to comply with the arbitration award dated 28
February 2014.


3.
If the appellant elects to re-enroll the appeal, it must do so no
later than 30 days from the day it purges its default to comply with
the arbitration award dated 28 February 2014.


JUDGMENT


UEITELE,
J


A
INTRODUCTION AND BACKGROUND


[1]
On 05 December 2013 Mr. Jonas Sheelongo (I will, in this judgment,
refer to him as the respondent) referred a dispute between him and
his employer Air Namibia (I will, in this judgment, refer to Air
Namibia as the appellant), of alleged unilateral change of terms and
conditions of employment and unfair labour practice to the office of
the Labour Commissioner in terms of ss 82 (7) and 86 (1) of the
Labour Act, 2007[1] read with
Regulations 16(1), 18(1) and 20(1) of the Labour General
Regulations[2].


[2]
On 09 December 2013 the Labour Commissioner in terms of s 85 (5) of
the Labour Act, 2007 read with Regulation 20(2)
of the Labour General Regulations
, designated Mr. Eliaser
Nekwaya to arbitrate the dispute which was referred to him. The
Labour Commissioner informed the parties (i.e. the respondent and the
appellant) that he has designated Mr Nekwaya (I will, in this
judgment, refer to Mr Nekwaya as the arbitrator) to arbitrate the
dispute and that the arbitration hearing would take place on 09
January 2014. On 03 January 2014 the appellant applied for a
postponement of the arbitration hearing.  The application for
postponement was granted and the arbitration hearing was postponed to
23 January 2014.


[3]
On 23 January 2014 the respondent applied for a postponement of the
arbitration hearing.  The application for postponement was
granted and the arbitration hearing was postponed to 11 February
2014. On 29 January 2014 the parties agreed to, in terms of the Rule
20 (2) of the Rules Relating to the Conduct of Conciliation and
Arbitration before the Labour Commissioner[3],
proceed by way of a stated case.  The arbitration proceedings
proceeded on the basis of the stated case. On 28 February 2014 the
arbitrator delivered his award and he declared that the appellant had
unilaterally changed the respondent’s terms and conditions of
employment and made the following award:


1
respondent shall restore applicant in the position and contractual
obligations held prior to the unilateral change in his terms and
conditions of employment;


2
respondent shall restore applicant’s contractual obligations on
or before 05 March 2014;


3
there is no order as to costs.’


[4]
It is against the above award that the appellant now appeals. The
appellant noted its notice of appeal on 28 March 2014. In the Notice
of Appeal the appellant states that it intends to appeal ‘against
the whole of the decision or order of the arbitrator…’
and also sets out the points of law on which the appeal is based.
I will later return (if necessary) to the points of law and the
grounds of appeal. On 02 April 2014 the respondent indicated that he
will oppose the appeal and on 18 June 2014 he filed the grounds on
which he opposes the appeal.


[5]
The hearing of the appeal was set down for 24 October 2014.  On
that day i.e. the 24th day of October 2014 the respondent
initiated an application by notice of motion in terms of which it
sought to introduce further evidence in opposition of the appeal. The
Appellant opposed the respondent’s application and in order to
give the appellant time to file its opposing affidavit I postponed
the matter to 20 November 2014 for hearing the appeal. On 20 November
2014 counsel for the appellant indicated that he will not persist in
his opposition of the respondent’s application to file a
further affidavit introducing additional evidence. I accordingly
admitted into evidence the additional affidavit of the respondent.


[6]
From the application and the supporting affidavit filed by the
respondent on 24 October 2014, it appears (I say appears as there is
no direct evidence that the arbitration award was filed on 28
February 2014) that on 28 February 2014 the Labour Commissioner
through a Labour Inspector requested the Registrar of the High Court
to file with the Labour Court the award made by the arbitrator on the
28th February 2014. On 09 June 2014 the Registrar of the
High Court informed the Labour Commissioner that the arbitration
award was, in terms of s 87(1)(b) of the Labour Act, 2007, filed with
the High Court on 09 June 2014 and it thus became an order of the
Labour Court. I accordingly asked counsel to, in view of the fact
that the arbitration award became an order of the Labour Court,
address me on the question whether I, sitting as a Labour Court, have
jurisdiction to hear appeals against an order of the Labour Court.
Counsel requested time to consider that aspect and I accordingly
postponed the hearing to 03 February 2015 to hear submissions on the
question of the court’s jurisdiction which I raised with them.
Both counsel submitted heads of arguments and the court is indebted
to their industry. I will now turn to consider the effect of making
an arbitration award an order of the Labour Court.


B
WHAT IS THE EFFECT OF SECTION 87(1)(b) OF THE LABOUR ACT, 2007?


[7]
Section 87 of the Labour Act, 2007 reads as follows:


87      
Effect of arbitration awards


(1)
An arbitration award made in terms of this Part-


(a)
is binding unless the award is advisory;


(b)
becomes an order of the Labour Court on filing the award in the Court
by-


(i)
any party affected by the award; or


(ii)
the Labour Commissioner.


(2)
If an arbitration award orders a party to pay a sum of money, the
amount earns interest from the date of the award at the same rate as
the rate prescribed from time to time in respect of a judgment debt
in terms of the Prescribed Rates of Interest Act, 1975 (Act 55 of
1975) unless the award provides otherwise’


[8]
In the matter of
National
Housing Enterprise v Maureen Hinda-Mbazira
[4]
Unengu, AJ said:


‘…The
problem the applicant has is the request to the Court in paragraph 2
to direct and order for the execution of the arbitration award in
favour of the respondent, under case number CRWK 361/10 handed down
on 09 February 2011, to be stayed/suspended pending the finalisation
of the appeal noted by applicant against that award.  That
award is no more an award of the arbitrator in the office of the
Labour Commissioner, but an order of the Court as from 25 February
2011, when it was filed in terms of section 87(1)(b) of the Labour
Act, (Act 11 of 2007)
…  Therefore, I am inclined
to agree with the sentiments expressed in the Labour case of Potch
Speed Den v Rajah
(supra) cited by counsel for respondent where
it states that it is wrong to speak of an award once the award has
been made an order of the Court, that is more accurate to speak of an
order of the Court.’





[9]
Mr. Barnard who appeared on behalf of the appellant, however, argued
that s 87(1)(b) must be interpreted purposively and be read to mean
that upon filing of the arbitration award, it becomes an order of the
Labour Court for purposes of execution only. I, in detail quote from
the submission of Mr. Barnard. He said:





17      
It is submitted that the meaning to be given to the provisions of
section 87(1)(b) is that upon filing of the arbitration award, it
becomes an order of the Labour Court for purposes of execution only. 
It is not a fully-fledged order made on the merits of the matter
superseding the arbitration award.  Such an interpretation would
render the provisions of section 89 affording the right of appeal and
the right to review meaningless and the provisions of section
87(1)(b) meaning which is not destructive of the other. 


 


18          
Furthermore, if the South African approach is to be applied, it would
mean that once a labour award has been filed an order of the Labour
Court comes into existence.  The only avenue for redress would
then be an appeal to the Supreme Court upon leave being granted. 
This appeal would then in effect be against the award of the
arbitrator.  It is submitted that this could not have been the
intention of the legislature.  The Labour Act, 2007 is aimed at
promoting fair labour practices.


 


19          
It is difficult to conceive any redress left to a party if the South
African approach is followed.  Once the labour award is filed
and becomes an order of the Labour Court there is no apparent basis
upon which this order of the Labour Court could be set aside. 
The Labour Act, 2007 does not make provision for any such
rescission.  It is doubtful whether this could be done in terms
of the common law. 


 


20          
The provisions of section 87(1)(b) create an artificial situation. 
An arbitration award “becomes” an order of the Labour
Court where it is not in reality so.  The award by the
arbitrator is not an order of the Labour Court in the true sense. 
The provision appears to be aimed at assisting with execution only. 


 


21          
The Labour Act, 2007 is aimed at promoting fairness and protecting
against unfair labour practices.  This purpose of the Act would
dictate an interpretation allowing redress against an arbitration
award rather than applying an interpretation that limits the right of
a party to have access to court.  


22          
It is therefore submitted that the approach of this Honourable Court
in the Nedbank v Louw matter should be followed in that
upon filing of the arbitration award it is elevated to the status of
an order of the Labour Court for purposes of execution only. 


 


23          
A court should be prepared to read words into an act or to ignore
certain words on rare occasions only.  The general rule is that
a court will not read words into an act or ignore words as it may be
usurping the function of the legislature and making law, not
interpreting it.  However, there are recognized exceptions to
the general rule:


 


23.1    
Words may be added where it is necessary to do so to give the
relevant section sense and meaning in its context;


 


23.2      
Where to insist on the literal meaning of the words would lead to an
absurdity so glaring that it could never have been contemplated by
the legislature, or if it leads to a result contrary to the intention
of the legislature; and





23.3    
If insistence upon the literal meaning of words would lead to a
result contrary to the intention of parliament as shown by the
context or by such other considerations as the court is justified in
taking into account.’  See: Engels v Allied Chemical
Manufacturers (Pty) Ltd and Another
1992 NR 372 (HC) at p.
380 and
Minister of Health and Social Services and Others v
Medical Association of Namibia Limited and Another
2012
(2) NR 566 (SC) at [100]
.





24          
It is submitted that a court should be entitled to read into the
provisions of section 87(1)(b) of the Labour Act 2007 the words “for
execution purposes only”.’


[10]
Mr Maasdorp who appeared for the respondent at the hearing of this
matter on 03 February 2015 argued that the ordinary meaning of the
words in s 87(1)(b) must prevail and that it must be left to the
legislature to revisit the statute to avoid the anomalies and
hardship that follow from a literal interpretation. He therefore
concluded by stating that
since the court
order (in terms of s 87(1)(b) ) has not been set aside, this
Honourable Court has no jurisdiction to hear the appeal.  Mr
Maasdorp, however, changed his mind and subsequent to the hearing
submitted (with the permission of the appellant and the court) an
additional note in which he argued that:


3
…a literal interpretation of section 87(1)(b) may give rise to
more than mere anomaly but to an absurdity and should therefore not
be adopted.


4
‘Anomaly’ is defined in the Shorter Oxford English
Dictionary on Historical Principles, Third Edition, volume 1 at p 76,
inter alia as “Irregularity, deviation from the natural
order,…”


5
Absurd’ is defined at p 8 of
the same text and volume as “Out of harmony with reason or
propriety, in mod use, plainly opposed to reason…”


6
Absurdity’ is also defined in
the 8
th
edition of Black’s Law Dictionary at p 10 as “The state
or quality of being grossly unreasonable; esp., an interpretation
that would lead to an unconscionable result, esp. one that the
parties or (esp. for a statute) the drafters could not have intended
and probably never considered.”


7
Much has already been said by this
Honourable Court (as set out in the heads already filed) about the
obvious intention of the drafters of the Labour Act 11 of 2007
regarding speed and informality and protection of employees when it
comes to dispute resolution.  The additional burdens that will
be imposed on parties, including potentially impecunious employees,
to labour disputes escalated from the Labour Commissioner’s
office to the Labour court, by the acceptance of the literal
interpretation of section 87(1)(b), are results which could not have
been intended by the legislature.


8
An example of the literal interpretation of
the section operating contrary to the legislative intent appears from
an attempt to reconcile such an interpretation with the intention
behind section 89(6) of the Act.  In the latter section the
legislature attempts to free an employee who must perform under an
arbitration award from the duty to do so while the employee
challenges the award.  Unlike an employer, the employee can
focus solely on the challenge.  If section 87(1)(b) is
interpreted literally, an employer who was successful in arbitration
could file that award with the Labour Court and at the very least
introduce an additional and substantial hurdle for the employee. 
It is submitted this does not fit at all into the scheme and context
of the Act and, in particular, is contrary to the legislature’s
intention gathered from the express language of Part C of Chapter 8
of the Act.


9
It is therefore submitted that the purposive interpretation adopted
by Henning AJ at paragraph 7 in
Nedbank
v Louw
,
unreported judgment in LC 66/2010 delivered on 30 November 2010[5],
should be followed.’


[11]
The starting point is to interpret the wording of s 87(1)(b). It has
long been accepted that the correct approach to interpret any legal
instrument is to give the words in that instrument their ordinary
grammatical meaning. In the matter of
Venter
v R
[6]
Innes, CJ held that:


'By
far the most important rule to guide courts in arriving at that
intention is to take the language of the instrument, or of the
relevant portion of the instrument, as a whole; and, when the words
are clear and unambiguous, to place upon them their grammatical
construction and give them their ordinary effect.'





[12]
The above pronouncements were approved by the full bench of this
court in the matter of
Van
As and Another v Prosecutor-General
[7] 
Levy, AJ said:





It
is true that a Court must start with the interpretation of any
written document whether it be a Constitution, a statute, a contract
or a will by giving the words therein contained their ordinary
literal meaning. The Court must ascertain the intention of the
legislator or authors of document concerned and there is no reason to
believe that the framers of a Constitution will not use words in
their ordinary and literal sense to express that intention.’





[13]
I find the arguments by both Messrs. Barnard and Maasdorp attractive
but which I approach with great caution because what they are both
asking is, in effect, that the Court must put words into the
subsection which are not there. In the matter of
Minister
of Health and Social Services and Others v Medical Association of
Namibia Ltd and Another
[8]
the Supreme Court cautioned that the function of a court is to
interpret the law and not to make it. Du Plessis[9]
puts it as follows:





The
interpreter judge is no legislator and must constantly remind himself
of that. Adaptive interpretation is meant to make sense of the
legislature’s law as it stands and not to substitute the
judges’ law for it.’





[14]
In the case of
Engels
v Allied Chemical Manufacturers and Another
[10]
this Court[11] said:





Although
in construing an Act of Parliament the Court must always try to give
effect to the intention of the Act and must look not only at the
remedy provided but also at the mischief aimed at, it cannot add
words to a statute or read words into it which are not there . . .'
The basic reasoning behind this approach is that by remedying a
defect which the Legislature itself could have remedied the Court is
usurping the function of the Legislature and making law, not
interpreting it. And there are cases when the literal meaning of a
statute may be departed from, where to insist on the literal meaning
of the words would lead to an





`absurdity
so glaring that it could never have been contemplated by the
Legislature, or if it leads to a result contrary to the intention of
Parliament as shown by the context or by such other considerations as
the Court is justified in taking into account.’





[15]
I am of the view that the question that I have to resolve here is, if
I give the words in s 87(1)(b) of the Labour Act, 2007 their ordinary
grammatical meaning would that lead to
an absurdity so glaring
that it could never have been contemplated by the Legislature, or
would it lead to a result contrary to the intention of Parliament? I
am of the further view that the answer to that question is in the
negative. I say so for the following reasons, once an arbitration
award has been made an order of Court, a change takes place in the
legal status of the award. The award becomes an order of this Court
like any other order of the Court, there is nothing absurd or
anomalous about that transformation.


[16]
Both Mr Barnard and Mr Maasdorp implored me to follow the decision of
Nedbank
v Louw
[12],
(I will in this judgment refer to this matter as the
Nedbank
matter)
and hold that the fact that an arbitration award has been transformed
into an order of his Court, does not preclude this Court from hearing
an appeal against the arbitration award or from reviewing the
arbitration award. I pause here and observe echo what Unengu, AJ said
in the
National
Housing Enterprise v Maureen Hinda-Mbazira

namely that it is wrong to speak of an arbitration award once the
award has been made an order of the Court, is more accurate to speak
of an order of the Court.


[17]
I am not sure whether the decision in the Nedbank matter
was that the Labour Court has jurisdiction to hear an appeal against
an arbitration award which  has become a Court order. My doubts
are based on the fact that, firstly the dictum of Henning, AJ
on which both Messrs. Barnard and Maasdorp rely was expressed without
him having heard arguments as to the status of an arbitration award
once it has been made an order of Court and the consequences arising
from that transformation. Secondly my understanding of the Nedbank
matter is that the Court in that case found that the
application to stay the arbitration award was filed before the award
became an order of court and the relief [i.e. to stay the order of
court] prayed for was thus incapable of being granted, the learned
judge said:


[3]
The relief sought by the applicant reads:


[1.1]
That the award by the arbitrator Philip Mwandingi made on 11 August
2010 in case number CRWK 767-09 be stayed pending finalisation of the
appeal.”'


Application
has now been made to add the following to the relief:


[1.2]
That the order by the Labour Court, the award in 1.1 above having
become an order of the honourable court upon filing on 23 September
2010, be stayed pending the finalisation of the appeal.”


[4]
It will be noticed that the relief referred to above reveals a
duality. The original prayer 1.1 is premised on the notion that when
an appeal has been noted, the employer may apply for the award to be
suspended. The proposed prayer 1.2 invokes the fact that the award
had been filed and accordingly became an order of this court. If the
applicant were dependent on the proposed prayer 1.2 it encounters the
problem that the application for suspension was filed some 15 days
before the award was filed and became an order of court. (See para 1
above.) The premature lodging of the application would prima facie
be a nullity incapable of culminating in relief.





[18]
Thirdly the court in the
Nedbank
matter found that the arbitration award was a nullity because it was
granted outside the time limits stipulated in the Labour Act, 2007
and that it would have caused the applicant irreparable harm if it
was not stayed. The court accordingly stayed the arbitration award
and not the Court order. Fourthly the argument that the arbitration
award is only made an order of Court for execution purposes only is
pure conjecture and has no basis at all. I say so because s 87(1)(a)
states that the award is binding on all the parties and s 90 reads as
follows:


90      
Enforcement of awards





A
party to an arbitration award made in terms of this Part may apply to
a labour inspector in the prescribed form requesting the inspector to
enforce the award by taking such steps as are necessary to do so,
including the institution of execution proceedings on behalf of that
person.’


[19]
I therefore reiterate that it is not for the Courts to legislate or
to attempt to improve on the situation achieved by Parliament in the
language it has chosen in its enactment. I must give effect to what
the Act says and not to what I think it ought to have said. If there
is a loophole in the Act and if that could lead to undesirable
consequences (as argued by both Messrs Barnard and Maasdorp), then
that is a matter for the Legislature. I am of the view that from the
moment that an arbitration award is made an order of court and, so
long as the order of this Court making such award an order of this
Court stands that order remains sun an “
order”.
The consequences of that transformation are that it would not be
competent for this Court to hear an appeal or review against its own
‘order’.


[20]
I accordingly echo the words of Zondo, J[13],
when he said a litigant who finds himself in a position where he
seeks to appeal an arbitration award which has been made an order of
Court should first seek to have the order of this Court making the
award an order of Court rescinded or set aside and then appeal to
this Court or apply to this Court to review and set aside the award
or as the case, may be. Such an approach may be cumbersome, but I do
not find anything anomalous or absurd with such an approach. Mr
Barnard’s argument that he does not see any ‘…
basis
upon which this order of the Labour Court could be set aside. 
The Labour Act, 2007 does not make provision for any such rescission.
It is doubtful whether this could be done in terms of the common
law’,
is
unconvincing for the simple reason that the award was made an order
of court in the absence of a party thereto.


[21]
Despite my finding that once an arbitration award has been made an
order of this Court and that this Court does not have jurisdiction to
entertain an appeal against such an ‘order’, I am
reluctant to order and will thus not order that the appeal in this
matter be struck from the roll on the ground that the arbitration
award was made an order of this Court and that this Court does not
have jurisdiction to hear the appeal. My reluctance stems from the
following. The arbitration award was handed down on 28 February 2014,
the appeal against the arbitration awarded was noted and lodged with
this Court on 28 March 2014. On 02 April 2014 the respondent
indicated that he will oppose the appeal. On 22 May 2014 the
appellant applied to the Registrar for the allocation of hearing date
to hear the appeal. On 09 June 2014 the Registrar of this Court
informed the respondent that the arbitration award under case No. LC
78/2014 was filed with the High Court on 09 June 2014 and that from
that date it became an order of court. It furthermore appears that
during the entire period between 28 February 2014 and 09 June 2014
the respondent was oblivious of the fact that the Labour Commissioner
had filed the arbitration award as contemplated in s 87(1)(b).


[22]
Section 89(1) of the Labour Act, 2007 grants to a person who is a
party to a dispute the right to appeal against an arbitration award
within thirty days from the date on which the award was served on
him, her or it. I am therefore of the view that in certain
circumstances the procedure contemplated by s
87(1)(b) of the Labour Act, 2007 can only be resorted to after the
expiry of the thirty days period contemplated in
s 89(1) of
the Labour Act, 2007.


[23]
I am therefore of the further view that in certain circumstances
it
may be irregular for a litigant or the Labour Commissioner to file an
arbitration award with the High Court within the thirty day period
within which the other litigant has the right to appeal against the
award or to apply for the review and setting aside of the award. It
is irregular and an abuse of the process of this Court for a litigant
or the Labour Commissioner to file an arbitration award with the High
Court as contemplated in s 87(1)(b) of the Labour
Act, 2007
once a litigant has lodged and filed a notice of
appeal or has applied for the review and a setting aside of the
arbitration award.  Having said this I will briefly digress and
consider what entails abuse of the process of the court.


[24]
In the matter of
Beinash
v Wixley
[14],
Mahomed, CJ quoted with approval from the judgment in
Hudson
v Hudson and Another
[15],
where the following was said:


'When…the
Court finds an attempt made to use for ulterior purposes machinery
devised for the better administration of justice, it is the duty of
the Court to prevent such abuse.'


[25]
The learned Chief Justice thereupon proceeded as follows:


'What
does constitute an abuse of the process of the Court is a matter
which needs to be determined by the circumstances of each case. There
can be no all-encompassing definition of the concept of ''abuse of
process''. It can be said in general terms, however, that an abuse of
process takes place where the procedures permitted by the Rules of
the Court to facilitate the pursuit of the truth are used for a
purpose extraneous to that objective…’




[26]
In my view the filing of an arbitration award in terms of s 87(1)(b)
of the Labour Act, 2007 must have a legitimate purpose. Ordinarily, a
litigant is of course entitled to execute and realize a judgment in
its favour. The procedure contemplated in s 87(1)(b) of the Labour
Act, 2007 is designed precisely to facilitate the protection of that
right, but where the procedure is employed to thwart, frustrate and
delay the pursuit of the resolution of a dispute that will constitute
an abuse of the process of court. In this matter the letter from the
Registrar indicates that the arbitration award was filed with the
High Court on 09 June 2014. By that time the intention to appeal had
already been given to the respondent and the appeal actually lodged
and filed with this court. It cannot therefore be said that the
process [i.e. of filing of an arbitration award in terms of s
87(1)(b)] was being utilized for a legitimate purpose.


[27]
I have indicated above that Mr. Barnard expressed his doubts whether
this Court has the powers to rescind or set aside an order which
became an order of this court as a consequence of s 87(1)(b). 
Rule 16 of the Labour Court Rules deals with the rescission or
variation of judgments or orders of this Court. That Rule reads as
follows:


16
Rescission and variation of judgment or order





(1)
Any party to an application or counter-application in which judgment
by default is given in terms of rule 7 may apply to the court to
rescind or vary such judgment or order, provided that the application
is made within 14 days after such judgment or order has come to his
or her knowledge.





(2)
Every such application must be an application as contemplated by rule
6(23), and supported by an affidavit setting out briefly the reasons
for the applicant's absence or default, as the case may be, and,
where appropriate, the grounds of opposition or defence to the
application or counter-application.





(3)
The court may on the hearing of any such application, unless it is
proved that the applicant was in willful default and if good cause is
shown rescind or vary any other judgment or order complained of and
may give such directions as to the further conduct of the proceedings
as it considers necessary in the interest of all the parties to the
proceedings.





(4)
If such application is dismissed, the judgment or order becomes
final.





(5)
Where rescission or variation of a judgment or order is sought on the
ground that it is void from the beginning or was obtained by fraud or
mistake, application may be made not later than one year after the
applicant first had knowledge of such voidness, fraud or mistake.





(6)
Any judgment or order of the court may, on application of any person
affected thereby who was not a party to the application or matter
made within 30 days after he or she has knowledge thereof, be so
rescinded or varied by the court.’


[28]
It is common cause that the arbitration award became an order of
court not in pursuance of any application made by a party or the
Labour Commissioner to this Court but by simply filling the award
with this Court. I am thus of the view that Rule 16 does not apply to
circumstances where a party wishes to rescind an order which became
an order of this Court pursuant to s 87(1)(b). I thus find that Rule
22(1) of the Labour Court finds application in this matter. Rule
22(1) of the Labour Court Rules reads as follows:


22
Applications of Rules of the High Court





(1)
Subject to the Act and these rules, where these rules do not make
provision for the procedure to be followed in any matter before the
court, the rules applicable to civil proceedings in the High Court
made in terms of section 39(1) of the High Court Act, 1990 (Act 16 of
1990) do apply to proceedings before the court with such
qualifications, modifications and adaptations as the court may deem
necessary.’


[29]
Rule 103 of the High Court Rules provides as follows,


Variation
and rescission of order or judgment generally


103.
(1) In addition to the powers it may have, the court may of its
own initiative or on the application of any party affected brought
within a reasonable time, rescind or vary any order or judgment -


(a)
erroneously sought or erroneously granted in the absence of any party
affected thereby;


(b)
in respect of interest or costs granted without being argued;


(c)
in which there is an ambiguity or a patent error or omission, but
only to the extent of that ambiguity or omission; or


(d)
an order granted as a result of a mistake common to the parties.’


[30]
In the matter of
Hanstein
v Hanstein
[16]
this court rescinded a judgment granted in the absence of a party
where the plaintiff adopted a wrong procedure. I held, in that case,
that where a party adopts a wrong procedure in applying for a default
judgment that party erroneously
sought
the order or judgment. In the matter of
Tshabalala
and Another v Peer
[17]
it was held that the judgment in the
De
Wet case
[18]
postulates proof of an irregularity as a prerequisite for the
conclusion that a judgment was erroneously sought or granted. I have
in this matter made the finding that filing an arbitration award as
contemplated by s 87(1)(b) of the Labour Act, 2007 is an
irregularity. For these reasons I invoke the powers vested in this
court in terms of Rule 103(1) and set aside the order making the
arbitration award under reference number LC 78/14 an order of this
court.


C
POINTS IN LIMINE


[31]
At the hearing of this appeal Mr. Maasdorp raised two points in
limine as regard the appeal. The respondent formulated his first
point in limine as follows:


The
… appellant is non-suited to proceed with its appeal as it
has, acting in bad faith, simply ignored a court order to reinstate
the respondent to the position he occupied prior to the unilateral
unauthorised change in the terms and conditions of his employment. 
The appellant has not applied for the suspension of its obligation to
comply with the arbitration award that became a court order on its
filing.  If employers are able to ignore court orders with
impunity, in particular where clear mechanisms exist for employers to
seek leave from this Court to ameliorate any undue hardship that
would follow upon having to comply with the arbitration award pending
the outcome of the appeal, this will contradict the statutory scheme
of the Labour Act for the speedy and inexpensive resolution of
employment related disputes, and including but not limited to the
dispensation created to protect employees in whose favour arbitration
awards operate.  For this reason parties it is submitted that
the appeal must be struck from the roll and only reinstated for the
determination of the merits once the appellant complied with the
order or obtained a stay of execution.’[19]


[32]
In response to the respondent’s point in limine Mr.
Barnard, on behalf of the appellant argued that the respondent’s
stance is self-serving and has no place in Namibian law which has a
constitutional dispensation. He argued that:


The
relevant principle is the “doctrine of unclean hands”.
However the doctrine finds application only in circumstances where
the conduct of an appellant is dishonest or fraudulent. It does not
find application where the conduct is merely unlawful.’


[33]
I now turn to consider the arguments of Messrs. Barnard and Maasdorp.
It is common cause that, on 28 February 2014 the arbitrator made a
finding in favour of the respondent and ordered the appellant to
restore the respondent in the position and contractual obligations
held prior to the unilateral change in his terms and conditions of
employment and that the restoration must be effected on or before 05
March 2014. It is furthermore common cause that the appellant has not
restored the respondent as ordered by the arbitrator and that it has
not applied to the Labour Court for an order contemplated in s 89(7).
Section 89(6) & (7) of the Labour Act, 2007 read as follows:


(6) When
an appeal is noted in terms of subsection (1), or an application for
review is made in terms of subsection (4), the appeal or application-


(a)
operates to suspend any part of the award that is adverse to the
interest of an employee; and


(b)
does not operate to suspend any part of the award that is adverse to
the interest of an employer.


(7) An employer
against whom an adverse award has been made may apply to the Labour
Court for an order varying the effect of subsection (6), and the
Court may make an appropriate order.’





[34]
The doctrine of ‘unclean hands’ was considered by the
Supreme Court in the matter of
Shaanika
and Others v The Windhoek City Police and Others
[20]
Writing  for the Court O'Regan, AJA said:





[27]
The doctrine of 'unclean hands' appears to have originated as an
equitable doctrine in England.  As noted in a recent decision of
this court, Minister of Mines and Energy and Another v Black
Range Mining (Pty) Ltd
, the doctrine has largely found
application in the area of unlawful competition law where its effect
is that an applicant is prevented from obtaining relief where he or
she has behaved dishonestly.  Accordingly, in Black Range
Mining
, this court refused to uphold a challenge based on the
doctrine of 'unclean hands' in the absence of any evidence showing
that the appellant had acted dishonestly or fraudulently. Although
the court in Black Range Mining did not expressly say
so, I have no doubt that in using the words 'dishonestly or
fraudulently', it would have considered bad faith or mala fides
in the conduct of litigation to be included within its formulation.’





[35]
I therefore do not agree with Mr. Barnard that we are, in this matter
dealing with the principle of ‘dirty/unclean hands’. I
say so for the simple reason that what the respondent is complaining
about is the fact that the appellant has not complied with the
arbitration award and has also not approached this Court for the
arbitration award to be stayed pending an appeal noted against the
award. In the matter of
Sikunda
v Government of the Republic of Namibia and Another (2)
[21]
this Court said:





'Judgments,
orders, are but what the Courts are all about. The effectiveness of a
Court lies in execution of its judgments and orders. You frustrate or
disobey a Court order you strike at one of the foundations which
established and founded the State of Namibia. The collapse of a rule
of law in any country is the birth to anarchy. A rule of law is a
cornerstone of the existence of any democratic government and should
be proudly guarded.'[22]





[36]
In the matter of
Kotze
v Kotze
[23]
Herbstein, J said that it is a ‘
matter
... of public policy … that there shall be obedience to orders
of Court and that people should not be allowed to take the law into
their own hands.
'
It is for these reasons that Froneman, J pointed out in
Bezuidenhout
v Patensie Sitrus Beherend Bpk

[24] that:





'An
order of a Court of law stands until set aside by a Court of
competent jurisdiction. Until that is done the Court order must be
obeyed even if it may be wrong (Culverwell v Beira 1992
(4) SA 490 (W) at 494A--C). A person may even be barred from
approaching the Court until he or she has obeyed an order of Court
that has not been properly set aside (Hadkinson v Hadkinson
[1952] 2 All ER 567 (CA); Byliefeldt v Redpath 1982 (1)
SA 702 (A) at 714).'





[37]
Hoff, J quoting from the English case of
Hadkinson
v Hadkinson

[25] said:





It
is the plain and unqualified obligation of every person against, or
in respect of, whom an order is made by a court of competent
jurisdiction to obey it unless and until that order is discharged.
The uncompromising nature of this obligation is shown by the fact
that it extends even to cases where the person affected by an order
believes it to be irregular or even void. Lord Cottenham L.C., said
in Chuck v Gremer (1) (Coop. temp. (1 Cott. 342):





A
party, who knows of an order, whether null or valid, regular or
irregular, cannot be permitted to disobey it ... It would be most
dangerous to hold that the suitors, or their solicitors, could
themselves judge whether an order was null or valid – whether
it was regular or irregular. That they should come to the court and
not take upon themselves to determine such a question. That the
course of a party knowing of an order, which was null or irregular,
and who might be affected by it, was plain. He should apply to the
court that it might be discharged. As long as it existed it must not
be disobeyed.”





Such
being the nature of this obligation, two consequences will, in
general, follow from its breach. The first is that anyone who
disobeys an order of the court (and I am not now considering
disobedience of orders relating merely to matters of procedure) is in
contempt and may be punished by committal or attachment or otherwise.
The second is that no application to the court by such a person will
be entertained until he


has
purged himself of his contempt.’





[38]
I am conscious of the fact that the authorities I have quoted above
relate to orders of court and that in this matter the appellant
disobeyed an arbitration award. In my view it is immaterial whether
what a person disobeys is a court order or an arbitration award; the
principles apply with equal force to both court orders and
arbitration awards. I say so for the following reasons: Speaking in
the matter of
Ex
parte Attorney General: in re Corporal Punishment
[26]
the late Mahomed, AJA (as he then was) said:





'The
Namibian Constitution seeks to articulate the aspirations and values
of the new Namibian nation following upon independence. It expresses
the commitment of the Namibian people to the creation of a democratic
society based on respect for human dignity, protection of liberty and
the rule of law. Practices and values which are inconsistent with or
which might subvert this commitment are vigorously rejected.'





[39]
Article 12 (1)(a) of the Namibian Constitution provides as follows:





Article
12: Fair Trial





(1)
(a) In the determination of their 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.’


[40]
It is common cause that the arbitration tribunals which made the
arbitration award which the appellant disobeyed was establish in
pursuance of Article 12(1)(a) of the Namibian Constitution.[27]It
thus follow that disobedience of an arbitration award with impunity
constitutes a practice that is not only inconsistent with the rule of
law but amounts to a practice which subverts the rule of law. I am
aware of the fact that the barring of a litigant to seek redress in a
Court of law, simply because he or she has failed to comply with an
earlier order of Court, is not an absolute one. That much has been
recognized by this Court in the case of
Hamutenya
v Hamutenya
[28]
where Maritz, J quoted with approval from the case of
Di
Bona v Di Bona and Another
[29],
and said:





'The
rule, however, that a person in contempt of Court will not be heard
is not an absolute rule. This appears clearly from the judgments of
Romer LJ and Denning LJ in Hadkinson's case and in this
regard those judgments have been adopted by our Courts in Kotze's
case supra, Clement's case supra, and in the
decision in Byliefeldt v Redpath 1982 (1) SA 702 (A).
In Hadkinson's case Romer LJ mentioned a number of exceptions to
which he said the consequence of the refusal to hear a person in
contempt is undoubtedly subject.'





[41]
For purposes of the point in limine raised by the respondent
it is sufficient that the appellant has been and still is in willful
default of the arbitration award and that it  has not placed any
exceptional circumstances before me which will allow the Court to
hear the appeal before it has purged its default. I now consider the
issue of costs. I am not persuaded that in launching this application
the appellant acted frivolously or vexatiously within the meaning of
s 20 of the Labour Act. That being the case, I think it is fair and
just that each of the parties pay their own costs.


[42]
In the result I make the following order.


1.
The appeal is struck from the roll.


2.
The appellant is granted leave to re-enroll the appeal once it has
purged its default to comply with the arbitration award dated 28
February 2014.


3.
If the appellant elects to re-enroll the appeal, it must do so no
later than 30 days from the day it purges its default to comply with
the arbitration award dated 28 February 2014.


Ueitele
SFI, Judge


APPEARANCES


APPELLANT
P Barnard


Instructed
By LorentzAngula Inc


RESPONDENT
R l Maasdorp


Instructed
By Clement Daniels Attorneys



[1]
Act No. 11 of 2007.




[2]
Labour General Regulations (Published by Government Notice No. 261
in
Government
G
azette
4151 of 31 October 2008).




[3]
Published by Government Notice No. 262 in
Government
G
azette
4151 of 31 October 2008.




[4]
An unreported judgment of the Labour Court case No.: LC 21/2011
delivered on 01 April 2011.




[5]
This judgment is now reported in 2011 (1) NR 217.




[6]
Venter v R 1907 TS 910 at 913.




[7]
2000 NR 271 (HC) at 278.




[8]
2012 (2) NR at 566 (SC).




[9]
Lourens du Plessis:
Re-Interpretation
of Statutes
at
229.




[10]
1992 NR 372 (HC) or (1993 (4) SA 45.




[11]
Per Hannah J quoting from the judgment of Lord Goddard, CJ
in
R v Wimbledon Justices; Ex parte Derwent

[1953] 1 QB 380 ([1953] 1 All ER 390 (QB).




[12]
Supra.




[13]
In the matter of
Potch
Speed Den v Rajah

(1999) 20 ILJ 2676 (LC).




[14]
1997 (3) SA 721 (SCA) at 734 - 735.




[15]
1927 AD 259 at 268.




[16]
An unreported judgment of this Court Case No. (I 483/2014) [2014]
NAHCMD 340 (delivered on 07 November 2014).




[17]
1979 (4) SA 27 (T).




[18]
De
Wet and Others v Western Bank Ltd

1979 (2) SA 1031 (A) at 1041B.




[19]
The respondent than referred me to the following authorities.
Labour
Act, 11 of 2007 – s 87(1)(b); s 89(6)(b); s 89(7); s 89(8);
Shaanika
and Others v The Windhoek City Police and Others

2013 (4) NR 1106 (SC) at par [24]-[31];
Hendrik
Christian t/a Hope Financial Services v The Chairman of the Namibia
Financial Institutions Supervisory Authority (NAMFISA) and Another

(A
244/2007) by Hoff, J delivered on 13 February 2009.




[20]
2013 (4) NR 1106 (SC).




[21]
2001 NR 86 (HC) at 92D-E.




[22]
Also see the case of
Hamutenya
v Hamutenya.




[23]
1953 (2) SA 184 (C).




[24]
2001 (2) SA 224 (E) at 229B-D.




[25]
1952 (2) All ER 567.




[26]
1991 NR 178 (SC) at 179.




[27]
See s 85(1) of the Labour Act, 2007.




[28]
2005 NR 76 (HC).




[29]
1993 (2) SA 682 (C) at 688.