Court name
Labour Court Main Division
Case number
5 of 2015
Title

Stantoll Properties CC v Shiimi and Others (5 of 2015) [2015] NALCMD 15 (22 July 2015);

Media neutral citation
[2015] NALCMD 15
Coram
Masuku AJ










REPUBLIC
OF NAMIBIA


LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


LC
5/2015


DATE:
22 JULY 2015


In
the matter between:


STANTOLL
PROPERTIES
CC........................................................................................APPLICANT


And


JAFET
M. SHIIMI AND 180
OTHERS.............................................1ST
TO 181ST RESPONDENTS


B.M.
SHINGUADJA
N.O...................................................................................182ND
RESPONDENT




Neutral
citation: Stantoll Properties CC v Shiimi (LC 5-
2015)
[2015] NAHCMD 15 (22 July 2015)


CORAM:
MASUKU, AJ


Heard:
3 July 2015


Delivered:
22 July 2015


Flynote:
LABOUR LAW – application for review of arbitral award in
terms of the provisions of section 89 (4) and 117 of the Labour Act
considered; procedure for leading evidence in arbitration proceedings
and failure to call witnesses in support of claim ; applicability of
rules relating to class action and failure to comply therewith; the
procedure to be followed in applications for legal representation in
arbitration proceedings revisited – the twin considerations of
prejudice and complexity of a dispute.


Summary:
The applicant applied in terms of section 98 and 117 of the
Labour Act for a review of an award granted against it by the
arbitrator. Meaning of the word defect, in terms of the Act
discussed. The court considered the record of proceedings and held
that the calling of one witness in support of a claim involving 181
other individuals was irregular and that the claim could only have
been established with the calling of the said witnesses.


Failure
to follow the rules relating to instituting class actions revisited.
It was held that failure to follow the mandatory provisions of the
said rules was fatal.


Legal
Representation – the court set out the procedure to be followed
by arbitrators where applications for legal representations are made.
Held that where an objection is made to an application for legal
representation, the court should consider the complexity of the case,
together with issues of prejudice to the other party. Application for
review allowed with no order as to costs.


ORDER


Application
for review allowed. No order as to costs.


JUDGMENT


MASUKU,
AJ


[1]
This is an application for review brought in terms of the provisions
of section 89 of the Labour Act (‘the Act’).[1]
The applicant, a close corporation, following an award issued by the
second respondent, approached this court seeking a review of the said
award on grounds that shall be adverted to below.


[2]
This application was not opposed by any of the respondents and as
such, no opposing affidavits were filed. There was, however, some
heads of argument filed on behalf of the 1st to 181st
respondent, which appear to support the award. I have taken them into
consideration in this judgment.  


[3]
On 3 July 2015, having listened to argument by Mr. Rukoro, for the
applicant, I granted an order reviewing and setting aside the award
in terms of prayer 1 captured in paragraph [7] below only and
indicated that reasons for the order issued will delivered in due
course. I should mention that I took the view that the prayers
sought, which as will be seen below, were geared towards addressing
every conceivable eventuality, allowing not a drop to escape
scrutiny, however had a touch of tautology to them. Granting prayer
1, as indicated above, to my mind serves to impugn the entire
proceedings and no offspring therefrom is able to survive
independently of the proceedings having been declared irregular. The
reasons now follow.


[4]
The applicant was the employer of the 1st to the 181st
respondent. On 10 September 2014, the respondents referred a dispute
to the Labour Commissioner’s office, alleging that the
applicant was engaging in an unfair labour practice, namely paying
the said respondents lesser amounts than those prescribed as the
mandatory minimum wage. A month later, a certificate of unresolved
dispute was issued by Ms. Martha Shipushu who had been appointed as
the Conciliator of the dispute.


[5]
The dispute was arbitrated by the 182nd respondent (the
‘arbitrator’) on 1 December 2014. Having finalized the
proceedings, the arbitrator found in favour of the 1st to
181st respondents. In his award, he found and held as
follows:


(a)
that the applicant had committed an unfair labour practice as
aforesaid in contravention of a prevailing collective agreement in
the construction industry;


(b)
the applicant unilaterally changed the minimum wage of Mr. Israel
Shikalepo, a formally trained and semi-skilled artisan in accordance
with the National Vocational Training Act[2],
and the collective agreement in the construction industry;


(c)
the applicant shall pay 80 labourers listed the difference owed to
them in the total amount of N$ 279 260-95 in accordance with a list
which was duly attached to the award; and


(d)
that the applicant must pay Mr. Israel Shikalepo a difference of his
minimum wage i.e. an amount of N$ 2 689. 00.


[6]
The arbitrator further ordered that the money due to the individual
employees should be paid into their bank accounts via electronic fund
transfer or by signing bank guaranteed cheques bearing the name of
each of the said employees by 25 January 2015. Proof of such payment
was to be forwarded to the Labour Commissioner. Finally, the award
was declared to be final and binding on all the parties. The other
parts of the award are not necessary to specify presently.


[7]
The applicant, dissatisfied with the award, approached this court
seeking the following order:


1.   
‘Reviewing, correcting or setting aside the entire arbitration
proceedings presided over by the 182nd respondent under
Case No. NRSO 108-14 as well as the award dated 24 December 2014
issued subsequent thereto;


2.   
Reviewing, correcting or setting aside the 182nd
respondent’s decision that the applicant has committed an act
of unfair labour practice by unilaterally changing the minimum wages
of labourers in contravention of the collective agreement applicable
to the construction industry in Namibia;


3.   
Reviewing, correcting or setting aside the 182nd
respondent’s decision that the applicant has unilaterally
changed the minimum wage of Mr. Israel Shikalepo in contravention of
the collective agreement applicable to the construction industry;


4.   
Reviewing, correcting or setting aside the 182nd
respondent’s decision that the applicant must pay the 90
labourers (whose names appear on the list) the total amount of N$ 279
260.94; and


5.   
Reviewing, correcting or setting aside the 182nd decision
that the applicant must pay Mr. Israel Shikalepo a total amount of N$
2 689.00;


6.   
Reviewing, correcting or setting aside the 182nd decision
that the applicant must pay a total of N$ 281 949.90 into the
respective employees bank accounts by not later than 25 January 2015.


7.   
An order dismissing the complaint of unfair labour practice by 1st
to 181st respondents.’


 


[8]
The grounds upon which the award has been challenged may be
summarized as follows:


(a)
the provisions of rule 17 (1) were not complied with in relation to
the conduct of the conciliation and arbitration


(b)
only one witness represented and proceeded to testify on behalf of
all the 181 labourers who were applicants in the proceedings;


(c)
that the loss or damages claimed were not proven;


(d)
that the 182nd respondent should not have presided on the
proceedings but one Ms. Martha Shipushu should have;


(e)
although 181 complainants, the 182nd respondent made an
award only in relation to 90 and the said Mr. Shikalepo;


(f)
the Labour Commissioner issued a certificate of unresolved dispute
and thus became functus officio and could thus not properly
conduct the arbitration of the matter.


[9]
As indicated above, the application is brought in terms of section 89
(4) as read with section 117 of the Act. Section 89 (4) provides the
following:


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.’


It
is clear from the papers that the reasons for seeking to impugn the
award are not based on any allegations of corrupt conduct and it
therefore stands to reason that the applicable section is the one
cited above. The question, is whether the application for review was
launched within the period stipulated by the section quoted above.


[10]
A reading of the award indicates that the hearing was conducted on 1
December 2014 and the award was delivered on 24 December 2014. The
notice of application for review on the other hand, is dated 21
January 2015 and it indicates receipt by the 181 respondents’
representatives and the 182nd at the Labour Commissioner’s
office on 23 January 2015. It would appear to me therefore that the
application for review was launched timeously and within the time
limits stipulated in the above section and nothing serves to indicate
a contrary position.


[11]
The other provision relevant to review, which has been referred to by
the applicant is section 117 of the Act which arrogates exclusive
jurisdiction to this court to review arbitration tribunals’
awards in terms of this Act.[3]
There is no gainsaying that the present proceedings relate to the
review of an award issued in terms of the Act. I am of the considered
view that all the jurisdictional facts that bring this matter within
the purview of the Act have been met and this court is properly
placed to consider the merits of the application for review.


Grounds
for review


[12]
As indicated above, the award has been attacked on a number of bases.
I shall not follow the sequence in which these have been raised by
the applicant. I propose to start with the one relating to the
evidence led at the arbitration and the effect thereof on the
findings.


Leading
of evidence


[13]
It is common cause that there were 181 complainants in the referral.
During the arbitration proceedings, it transpired that the 1st
applicant Mr. Jafet M. Shiimi was no longer part of the dispute but
he was not removed from the proceedings. I say nothing more of this.
The record reflects that of all the applicants who were part of the
referral, only one was called as a witness and this is Mr. Israel
Shikalepo, a 26 year old male. His sworn evidence reflected that he
started working for the applicant on 30 March 2014 as a bricklayer
and was informed by a Mr. Nestor that he would receive N$20,80 per
hour. It was his further evidence that notwithstanding this
information, he was instead paid an amount of N$14,50 per hour.





[14]
Upon seeing the disparity between what he was informed he would earn
and what he actually earned, he made enquiries and he was informed
that he was not qualified to earn the amount he claimed and that his
productivity levels were in any event low. The deponent to the
applicant’s affidavit, Mr. Zaaruka is alleged to have told Mr.
Shikalepo that his interest was not in paper qualifications but in
the actual productivity levels of the employee concerned. Mr.
Shikalepo testified further that he reported the underpayment to a
Mr. Fillemon Ndeitwa who promised to address the issue but never did.
The applicant was afforded an opportunity to put questions to the
witness but I find it unnecessary to chronicle the questions and
answers that emanate from that exchange.


[15]
It would appear that thereafter, the respondent was afforded an
opportunity to place its version to the arbitrator. Its case appears
to be that the complainants were unable to reach the set productivity
levels that would entitle them to earn the wages they claimed. In
support of its case, the applicant called Mr. Ndeitwa, who it is
stated had been present during the proceedings and only left the
place where the proceedings were being conducted when it was
indicated that he would be called as a witness for the respondent.


[16]
His version was that Mr. Shikalepo came to enquire from him about the
hourly rate of pay and he undertook to revert to the said Mr.
Shikalepo. On enquiry, he discovered that Mr. Shikalepo, was
classified into group B which was a group of workers who knew a
little bit about the work and who were entitled to N$14,50 per hour.
It was his version that Mr. Shikalepo claimed to be a brick layer but
he was not good enough as he could not handle the requisite number of
bricks. After him, no other witness was called by either party. It
would seem that this marked the close of the entire case.


 


[17]
As indicated above, the complainants only called one witness to
testify. The arbitrator dealt with the evidence of Mr. Shikalepo and
in his award stated that he accepted that the former was unable to
meet the required levels of productivity and was for that reason
entitled to N$ 15,95 from the date of his employment i.e. 31 March
2014 and N$17,46 from 1 June 2014 till the fixed contract came to an
end.[4] At the foot of page 31
of the record, the arbitrator proceeded and said, ‘The next
category was that of labourers who were 90 in total according to the
list and claim at the arbitration. It has been proven that they were
extremely underpaid at N$6 and a few at N$7,50 per hour respectively
in total violation of the Collective Agreement that set the rate of
labourers at N$12,11 per hour till 31 May 2014, and at N$13,26 per
hour respectively as from 1
st
June 2014. It has been proven as an established fact that the
respondent has unilaterally altered the conditions of employment of

all
the labourers and one semi-skilled artisan.’



 


[18]
It will have been clear from the foregoing chronicle that no other
evidence than that of Mr. Shikalepo was led. Consequently, it remains
a mystery as to how the arbitrator was able to make such far-reaching
findings and conclusions about the alleged underpayment in the
absence of evidence. How he was able to establish the fact of
underpayment and the harrowing levels of non-compliance he found is
simply mindboggling. It does not even appear that he afforded the
applicant an opportunity to address those issues, which would have
been wrong in any event, in the absence of evidence. As one goes
through the record, one sees a litany of documentary exhibits and it
is unclear how these were received in evidence and as to who
presented them and whether those who did were competent in terms of
the law to do so.


[19]
A case in point in this regard, to demonstrate the fracture of
procedure, was a document entitled ‘Breaking down of
calculation for applicants’, dated 26 November 2014. It is
under the signature of Ms. Justinah Hamukwaya, described as the
applicants’ representative. To it is attached a list of 96
employees with amounts allegedly owing to each one of them. There is
no evidence that even this lady was called to adduce evidence,
whatever it could have been worth in the absence of the claimants.
The procedure followed goes against the prescriptions stipulated by
Smuts J (as he then was) in
Springbok
Patrols v Jacobs And Others
[5]
where the learned Judge made the following lapidary remarks:


 


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


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


 


[20]
It would appear that Mr. Justice Smuts had, for the most part, this
case in mind when he made those enlightening remarks. It is clear
that most of what he complained about has not been heeded in the
proceedings under review. The onus of proof and evidential burden
have been misplaced; the purpose, place and value of opening
statements and submissions were elevated to evidence, to mention but
a few irregularities apparent in this matter as well. It is in my
view apparent that the procedure followed was most irregular and
constitutes defects in the proceedings, as envisaged in section 86
quoted above. The award cannot, just on this basis alone, stand.


 


 [21]
I have considered the provisions of section 133 (4) of the Act which
allow a presumption to operate against an employer, namely that the
employer failed to pay his employees at the rate of pay prescribed.
For the presumption to hold, the section calls for
proof
that the employee was in the employ of the employer and that the
provision prescribing the rate of pay binds the employer.[6]
It is accordingly evident that for the presumption to hold and for it
to be properly held to apply, evidence must be led. It is clear, as
indicated above, that no evidence was adduced in the instant case to
bring the instant matter within the realms of the presumption and for
that reason, I am of the considered opinion that the presumption in
this case cannot properly be applied. The above section does not
assist the arbitrator nor indeed the respondents in this matter.


 


[22]
In their heads of argument in support of the award[7],
the respondents claim that the arbitrator informed the parties from
the onset that only one employee would be called to adduce evidence
in support of the claim and that ‘at no stage did the
respondent object to the proceeding’. This may well be the
case. What cannot be denied though is that the procedure followed was
irregular as shown in the cases cited above and that the applicant
participated in the irregular process without demur does not then
infuse the proceedings with even a modicum of regularity. This may
well serve to show that the applicant was correct in seeking the
services of a legal representative who could have assisted the
arbitrator in following the correct procedure.


 


[23]
That the applicant did not object to the wrong procedure being
adopted cannot avail the respondents, nor can it assist the
arbitrator. The principle volenti non fit injuria i.e. to one
consenting, no harm is done, that the respondents appear determined
to invoke does not apply in such circumstances. For the maxim to
apply, the person who suffers harm must know of the harm and be fully
appreciative of the harm and consequences heralded by the consent,
which is not the case in the instant matter.


 


[24]
Equally unmeritorious, in the face of the authority referred to
above, is the respondents’ submission that, ‘The
testimony induced (sic) during the arbitration included all
the employees’. This was simply not the case as is evident from
what I have said above. The only way in which oral evidence would
have been dispensed with is if an agreed statement of facts was
produced and signed by the parties as a basis for the factual
position. Any other route, however convenient, time and cost-saving
as it may well be, is neither regular, good, reliable nor acceptable.


[25]
Another disconcerting feature of the case relates to the fact that
the arbitrator inexplicably made an award in favour of only 90 of the
employees. No reasons are given as to why the others were apparently
non-suited. This is not to suggest that they were entitled to a
favourable order, regard had to the criticisms levelled at the
procedure followed and not followed as discussed above. The
unexplained disparity in treatment of complainants who were for all
intents and purposes seeking more or less the same relief and based
on largely similar circumstances even drew the criticism of the
respondents’ representatives in the present proceedings.[8]


[26]
The other disturbing feature is the presence in the proceedings of
Mr. Ndeitwa who was eventually called as a witness for the
applicants. It appears that he was present throughout the proceedings
when the respondents were conducting their case and only came out
when it was notified that he would be called as a witness. The
arbitrator does not say in his award what level of caution, if any,
he employed in the receipt of Mr. Ndeitwa’s evidence and
whether what Mr. Ndeitwa said in his evidence had a bearing on the
evidence led whilst he was sitting, presumably in the gallery. The
court is simply left in the dark as to what weight, if any, was
attached to Mr. Ndeitwa’s evidence in the light of his presence
earlier in the proceedings.


 


[27]
In view of the foregoing irregularities in the procedure followed, I
am of the view that the proceedings, even on this ground alone,
cannot be allowed to stand.


Non-compliance
with Rules relating to class disputes in arbitration


[28]
The other salvo unleashed by the applicant is that the arbitrator
failed to comply with the rules applicable to class disputes in
arbitration.[9] These are
contained in rule 17 and they provide as follows:


(1) 
‘One or more of a class of employees or employers (hereinafter
referred to as a “representative party”) may refer a
dispute to arbitration (hereinafter referred to as a “class
dispute”) on behalf of all members of such a class, and must,
in addition to complying with rule 14, file with the Labour
Commissioner and serve the respondent with an application for class
certification on Form LC 38.


(2) 
The application for class certification referred to in subrule (1)
must describe the class and contain sufficient particulars to
establish that –


 


(a) 
The members of the class in question are such a number that joinder
of all such members is impracticable;


(b) 
There is a question of law or fact common to the class;


(c) 
The dispute referred by the representative party or parties is of a
similar nature as the disputes to which the other members of the
class are parties;


(d) 
The representative party or parties will fairly and adequately
protect the interests of the other members of the class;


(e) 
The hearing of separate disputes and before different arbitrators
will likely create a risk of inconsistent or varying decisions of the
arbitrator;


(f)  
The respondent or respondents against whom a class dispute has been
referred has acted or refused to act on grounds generally applicable
to the class; and


(g) 
The question of law or fact common to the members of the class
predominate over any questions affecting only some members, and a
class arbitration is superior to other available methods for the air
and efficient resolution of the issues.


 


(3) 
On service of the application, the respondent or respondents has 14
days to file opposing affidavits or statements, if any, and the
representative party has five days to reply.’


 


[29]
The applicant contends that the provisions of the above rule were not
complied with by the respondents in the proceedings
a
quo.
For
that reason, the applicant alleges that the proceedings conducted by
the arbitrator are therefore defective and ought for that reason to
be set aside. In the award, the arbitrator stated that this issue was
never raised in the proceedings but was included in the submissions
at the end of the case.[10] In
dealing directly with the issue in the award, the arbitrator relied
on
Purity
Mangenese (Pty) Ltd v Katjivena,
[11]
where he states, the court held that where there has been
participation in conciliation, would not result in an award being
declared a nullity. He also relied on the provisions of section 59
(1) of the Act, which allow a trade union to represent its members.





[30]
I will start with the latter argument. It is true that section 59 (1)
(a) grants a trade union the right to ‘bring a case on behalf
of its members and to represent its members in any proceedings
brought in terms of this Act.’ The difference is that in the
instant case, it is not the trade union which brought the case on
behalf of its members but it was the members themselves and in their
personal capacities. Had it been the former, the case would have been
brought in the name of the union, which is certainly not the case
when one has regard to the parties to the dispute. The trade union
does not feature at all and did not, from the information available,
“bring” any proceedings on behalf of the respondents in
this matter. The provisions referred to have no application in the
current case.


 


[31]
It may well be on reading the award[12]
that Mr. Victor Hamunyela of the Namibia Building Workers Union
represented the respondents during the application but it is clear as
noonday that it is not the said union which brought the application
because had it done so, as indicated above, the dispute would have
been in its name. Bringing an application on behalf of members and
representing those members are not necessarily synonymous. It may be
possible to do both but the situation in the instant case suggests
inexorably that the trade union only represented the respondents but
did not ‘bring’ the dispute on behalf of the respondents
as appears to be conclusion of the arbitrator. In this, the
arbitrator erred.


 


[32]
In relation to the
Hamunyela
case,
it must be pointed out that the said case dealt with a different
section and aspect of referring a dispute and has no direct relevance
to the issue at hand. I say so because the provisions in question
relate to class actions. A case in point that deals with the very
procedure to be followed when class disputes are referred and on
which the applicant laid a lot of store, is
Springbok
Patrols (Pty) Ltd v Jacobs And Others.
[13]
There the learned Judge said the following:


Not
one of the applicants signed a joint referral. No accompanying
statement was attached authorizing the union signatory. This
non-compliance vitiated the proceedings.’


 


[33]
In my considered view, the certification of the class referral is not
just an idle or inconsequential formality. It serves a very useful
purpose namely, to make sure that the parties sought to be
represented know about the class action and that they have personally
made common cause with the referral and that no impostor or busybody
masquerading as their representative has pulled the carpet under
their feet and purports to represent them in a class dispute they may
have no knowledge of. As a result, they should agree to be bound by
the findings and not later make a volte face and claim they
did not know about the fact that they were represented in the
proceedings. For this reason, the non-compliance with this provision,
in my considered opinion, constituted a defect that entitles this
court to set aside the proceedings as irregular as I hereby do. There
was not proper evidence before court that the applicants had agreed
to launch a class action as no application for such was made as
mandatorily required by the rules.


Denial
of legal representation


[34]
Another issue, which caused spasms of disquiet within me and which
was not raised by the applicant but to which I attach some
importance, relates to the application by the applicant to have legal
representation during the arbitration and how flippantly it was
thrown out with both hands by the arbitrator, and as it appears,
without any reference to or consideration of the relevant provisions
of the Act.  It would appear that the applicant applied for
legal representation during the arbitration proceedings and this
application was denied. In the award[14],
the arbitrator states the following regarding that issue, ‘The
respondent earlier on applied for the legal representation which was
declined by the arbitrator as the applicant’s representative
also
objected to such representation.’ (Emphasis added). What this
appears to suggest is that the arbitrator was also opposed to the
application for legal representation and did not only rely for his
decision to decline the application on the opposition of the
claimants’ representative to the application.


[35]
The relevant provision of the Act dealing with this issue is section
86 (13), which provides the following:


An
arbitrator may permit –


(a) 
A legal practitioner to represent a party to a dispute in arbitration
proceedings if –


 


(i)
the parties to the dispute agree; or


(ii)
at the request of a party to the dispute, the arbitrator is satisfied
that –


(aa)
the dispute is of such complexity that it is appropriate for a party
to be represented by a legal practitioner; and


(bb)
the other party will not be prejudiced;’


[36]
The section allows a party to a dispute to apply for legal
representation and it would appear that if the other party has no
objection thereto, the application should be granted. This would be
by agreement of the parties. If there is an objection by the other
party to the dispute, however, it would seem to me that the
arbitrator must consider the dispute as a whole, its merits and
demerits, its nuances and twists and turns, if any, and make a value
judgment as it were, as to whether or not the dispute is not one that
is complex in nature such that it might require or benefit from the
engagement of a legal representative. Cases differ in nature, content
and ramifications. There are those run of the mill cases which may be
straightforward. The arbitrator may be well within his or her rights
on application, to refuse legal representation in those
circumstances. On the other hand, there may be those matters that
involve intractable disputes or raise novel questions and it is in
these matters that legal representation may be necessary and should
be allowed, even if the other party will have objected.


 


[37]
I should mention that en passant that legal representation
does not only benefit the party which seeks to be represented, but
may also assist the arbitrator in properly identifying and
delineating the issues and may also assist in presenting different
and beneficial perspectives to the entire dispute. Furthermore, it
may even serve to curtail the dispute if the legal practitioner takes
the view, as sometimes happens, that his or her client does not have
a good case.


 


[38]
The second leg of the enquiry, is whether or not the other party will
be prejudiced by granting the application for legal representation.
Prejudice, in this case appears to refer to a disadvantage which may
detrimentally affect that party’s rights and interests during
the conduct of the arbitration proceedings. In this regard, Black’s
Law Dictionary[15] defines
prejudice as ‘Damage or detriment to one’s legal rights
or claims’. It therefore means that the arbitrator must bring
his or mind to bear and carefully consider whether the other party’s
rights or interests may be dealt a blow by allowing legal
representation for the opposite party. This decision must be
undertaken in a completely dispassionate spirit and setting,
eschewing any predilections and personal idiosyncrasies that the
arbitrator may harbour regarding the issue of legal representation.
The main focus must be on the two-pronged questions mentioned above
and no more.


[39]
In this matter, it would appear that the arbitrator was himself
averse to the application from the onset and found solace in the
other party also objecting to the application. The provisions of the
section as stipulated above, were not considered at all. It is
important to recall that legal representation is otherwise a
constitutional right and where it is refused, there must be a proper
basis for doing so and one which is fully steeped in the provisions
of the Act and not one that is arbitrary, irrational or unreasonable.
The decision in this case was made on the basis of irrelevant
considerations and should, all things being equal be open to fresh
determination in line with the guidelines discussed above.  I
raise the issue, not because it is a reason for the review
application succeeding but as a means of giving guidance to
arbitrators as to how to approach the issue of legal representation,
particularly in cases where it is ultimately denied.


 


[40]
In
Nedbank
Namibia Limited v Duncan Arendorf and Another
[16]
Smuts J (as he then was), had occasion to deal with the issue of
legal representation and the proper approach to that question by an
arbitrator in the following terms, which as will be seen, coincide
with my own views expressed above on this very point. At page 8 [para
22-23], the learned judge said:


 


[22]
It is clear to me from the reasons provided by the arbitrator show
that he had not properly applied his mind to the requirements of the
section. He had plainly not considered the complexity of the matter
and the role of the legal representative which could significantly
assist the tribunal in dealing with complex evidential issues. It
would also appear to me that the arbitrator rigidly adhered to a
predetermined approach to requests for legal representation where one
of the parties would not have been represented without considering
the factual matter raised in the request made to him.


[23]
An arbitrator is clearly required to consider the request of this
nature upon the facts and circumstances of each individual case
placed before him. In this matter, it is clear from the uncontested
facts put before me that the dispute raises highly complex factual
questions and no doubt reasonably complex question of law as well.
This was correctly conceded by the first respondent. It is also clear
to me that this aspect was not properly considered by the arbitrator
in making his decision. Furthermore, it would appear that the
question of prejudice was also not properly entertained at the time.
It was not properly specified in his reasons and would appear to be
an afterthought raised in opposition to this application after legal
advice had sought.’


 


[41]
It would appear that the learned judge again had the present matter
in mind. I unfortunately have not been placed in possession of the
relevant documents relating to the motivation for the application for
legal representation as was the learned judge, but from his reasons
advanced, it is very clear that the arbitrator in this case committed
a misdirection in the application of the law which from the paucity
of information at my disposal, does not place me in a position to
state authoritatively whether this was a proper case in which legal
representation was necessary.





[42]
What cannot be denied though is that some of the mistakes of colossal
proportions committed by the arbitrator pointed out above, would have
been avoided had the application been allowed. I may add that
although this is not included in the considerations, where the
dispute is likely to involve large sums of money in the case of an
award being successful, an arbitrator should not lightly deny
representation to a party that makes application, especially where
the issue of prejudice to the other party points in the direction of
allowing legal representation.





[43]
In closing, I cite the judgment in
Bester
v Easigas (Pty) Ltd
[17]where
Brandt A.J. (as he then was) stated the standard fitting to result in
proceedings being set aside on the basis that they are irregular. The
learned judge said:


From
these authorities it appears, firstly that the ground of review
envisaged by the use of the phrase [i.e. gross irregularity] relates
to the conduct of the proceedings and not the result thereof . . .
But an irregularity in proceedings does not mean an incorrect
judgment; it refers not to the result but to the method of a trial,
such as, for example, some high-handedness or mistaken action which
has prevented the aggrieved party from having his case fully and
fairly determined. Secondly, it appears from these authorities that
every irregularity in the proceedings will not constitute a ground
for review on the basis under consideration. In order to justify a
review, the irregularity must have been of such a serious nature that
it resulted in the aggrieved party not having had his case fully and
fairly determined.’


The
issues raised above, individually and more so, when considered
cumulatively, meet the standard set by the learned judge.


[44]
In view of the positive findings I have made regarding the above
points, which as I have said, amount to defects as envisaged in the
Act, I am of the view that it is unnecessary to flog what is
evidently a dead horse by considering the other grounds of review
raised by the applicant herein. This would include the attack on the
Labour Commissioner himself having become functus officio and
him personally dealing with the matter and not the conciliator.


[45]
For the foregoing reasons, I granted the order in the following
terms:


(1) 
The entire arbitration proceedings presided over by the 182nd
respondent as well as the award issued subsequent thereto dated 24
December 2014 under Case No: 108-14 are hereby reviewed, corrected
and set aside.


(2) 
There shall be no order as to costs.





TS
Masuku, AJ


APPEARANCES


APPLICANT:
S. Rukoro


Instructed
by Dr Weder, Kauta & Hoveka Inc.


RESPONDENTS:
Non appearance



[1]
Act No. 11 of 2007.




[2]
Act 18 of 1994.




[3]
Section 117 (1) (b) (a).




[4]
Page 31 of the record.




[5]
CLA 7020/2012.




[6]
Section 133 (4) (a) and (b) of the Act.




[7]
Page 57 of the record paragraph 11.




[8]
Page 58 of the record at para 14 and 15.




[9]
Rules applicable to class action in arbitration.




[10]
Page 25 of the record.




[11]
(LC 86/2012 [2014] NALCMD 10.




[12]
Page 2 of the award; page 18 of the record at paragraph 1 on
representation.




[13]
(LCA702/2012) [2013] NALCMD 17 (2013).




[14]
Page 18 of the record.




[15]
Third Pocket Edition, 2006.




[16]
(LC 208/2013) [2014] NAHCMD 29 (25 June 2014).




[17]
1993 (1) SA 30 (C).