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

Joubert v Swakop Uranium (Pty) Ltd (108 of 2014) [2015] NALCMD 24 (22 October 2015);

Media neutral citation
[2015] NALCMD 24
Coram
Geier J










REPUBLIC
OF NAMIBIA


LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


EX
TEMPORE JUDGMENT


Case
no: LC 108/2014(A)


DATE:
22 OCTOBER 2015


In
the matter between:


CHRISTEL
PATRICIA
JOUBERT...................................................................................APPLICANT


And


SWAKOP
URANIUM (PTY)
LTD.........................................................................1ST
RESPONDENT


GERTRUDE
USIKU...............................................................................................2ND
RESPONDENT


Neutral
citation: Joubert v Swakop Uranium (Pty) Ltd (LC 108-2014A)
[2015] NALCMD 24 (04 September 2015)


Coram:
GEIER J


Heard:
04 September 2015


Delivered:
04 September 2015


Reasons
released:  22 October 2015


Flynote:
Labour law—Arbitration—Review—Costs—Arbitration
award under Labour Act 11 of 2007set aside on review by Labour
Court—Court finding award tainted by bias and malice on the
part of arbitrator—In application for review of award,
aggrieved party also seeking award of costs de bonis propriis
on attorney and client scale against arbitrator – arbitrator
initially opposing such order and filing affidavit in support of
opposition but withdrawing such opposition later—By acting with
bias, arbitrator not acting in good faith and thus ‘losing
shield of immunity’ conferred by s 134 of Labour Act 11 of
2007. By opposing costs order arbitrator bringing herself within
ambit of s 118 of Act— In view of court’s ultimate
finding on the merits on the applicants version and thus implicit in
such finding – the arbitrators opposition having been withdrawn
before the hearing - arbitrator’s opposition on merits
considered frivolous as contemplated by section 118 of the Act –
Order accordingly granted that arbitrator pay costs of applicant in
the review de bonis propriis on attorney and client scale up
to the date of the withdrawal of her defence.


Summary:
The facts appear from the judgment.


ORDER


1.
The second respondent’s decision of 11 July 2014 setting the
arbitration down for hearing on 22 July 2014 contrary to Rule 15 of
the Conciliation and Arbitration Rules is hereby reviewed and set
aside.


2.
The second respondent’s decision of 22 July 2014 dismissing the
applicant’s dispute referred to the Labour Commissioner on 19
November 2013 is hereby reviewed and set aside.


3.
The second respondent is to pay the applicant’s costs of the
review application de bonis propris, on a scale as between
attorney and own client, such costs to include the costs of one
instructed- and one instructing counsel until date of withdrawal of
second respondent’s opposition on 17 August 2015.


4.
The matter is referred back for continuation before another
arbitrator.


JUDGMENT





GEIER
J:


[1]
The background in this matter has been sketched in the heads of
argument filed on the applicant’s behalf as follows:


 


6.
The applicant referred a dispute of unfair dismissal to the Office of
the Labour Commissioner, Swakopmund complaining that the first
respondent had dismissed her unfairly.


 


7.
The Labour Commissioner appointed the second respondent to arbitrate
the dispute.


 


8.
The applicant is a layperson and unacquainted with the provisions of
the Act and its Rules.  She is not a member of any trade union
and did not know any fellow employee working for the first respondent
to ask for assistance in representing her.


 


9.
The first respondent was in an entirely different position.  It
was represented by its Human Resources Official, Mr Hofni Shikongo,
who was a labour consultant for many years and also a member of the
Labour Law Committee of the Namibia Employers Federation. 
Furthermore, Mr Shikongo reported to Mr Percy McCullum, the Senior
Human Resources Manager of the first respondent.  Mr McCullum
was the Senior Human Resources Manager at Namdeb in Oranjemund for
many years before taking up similar positions with diamond mines in
Botswana.  He is vastly experienced in labour matters.


 


10.      
As a result the applicant approached Mr Frank Köpplinger of
Köpplinger Boltman to assist her.  Mr Köpplinger
advised that an application in terms of section 86(13) of the Act be
filed, applying for representation at the conciliation and
arbitration hearings.  Such application was duly filed.


 


11.      
The first respondent opposed the application for representation on
the basis that the dispute was not complex or “legal
technically”.


 


12.      
At the conciliation proceedings on 20 January 2014 the second
respondent immediately adopted Mr Shikongo’s approach, namely
that the matter was not complicated.  Mr Shikongo objected to Mr
Köpplinger’s presence and he had to leave the meeting. 
The applicant’s husband was not permitted to assist her.


 


13.      
The main thrust of Mr Shikongo’s opposition to the dispute was
that the applicant was not an employee of the first respondent and
that the Act did not apply.  The opposition was therefore based
on the issue of jurisdiction.


 


14.      
Once again the second respondent, without more, adopted Mr Shikongo’s
view, i.e. that she did not have jurisdiction to hear the dispute. 
The second respondent advised the applicant to withdraw the dispute
and to institute her case in the High Court.  The second
respondent stated that the applicant should not have referred the
matter to the Office of the Labour Commissioner.  She had
clearly exhibited pre-conceived ideas and had prejudged the issue
during the conciliation proceedings.


 


15.      
The second respondent thereafter called Mr Köpplinger back into
the meeting.  Her view had now changed and she conceded that the
issue is complex as it involves jurisdiction.  The second
respondent again stated that the applicant should withdraw the
dispute and institute the matter in the High Court.


 


16.      
The conciliation proceedings were concluded on 20 January 2014.


 


17.      
The second respondent failed to provide the parties with an
arbitration date despite letters by Mr Köpplinger and telephone
calls by his office in this regard.


 


18.      
Mr Köpplinger was constrained to report the matter to the Labour
Commissioner.  It was only then that the second respondent, on
20 June 2014, provided the parties with a notice of set down for 4
July 2014.


 


19.      
Without hearing the parties on the application for representation
lodged by the applicant, the second respondent determined such
application and refused the applicant legal representation. 
Whereas her initial reason for ejecting Mr Köpplinger from the
conciliation proceedings was that the matter was not complex, her
later written reasons were the following:


 


           
Rufusing
(sic) representation because the other party will be prejudiced,
unless both parties are represented.  Representation can only be
granted if the other party agree to it.  Otherwise not as the
issue / dispute if representation granted will prejudice the other
party if not represented.”


 


20.      
Since the second respondent had clearly not applied her mind to the
issue of representation and the requirements of section 86(13) of the
Act, Mr Köpplinger addressed a letter to the first respondent’s
human resources manager, Mr McCullum, which read as follows:


 


We
refer to the above matter and the arbitrator’s formal ruling
that legal representation will not be allowed at the arbitration
proceedings and record that we hold instructions to apply to the
Labour Court for a review of her decision in this regard.


 


Kindly,
therefore, indicate to us, as a matter of urgency, whether the
parties agree to a postponement of the arbitration proceedings
pending the outcome of the Labour Court Review.


 


We
await your urgent respondent.” 



 



21.      
No response was received to Mr Köpplinger’s aforementioned
letter.  He then advised that the applicant should file an
application for the recusal of the second respondent on account of
bias as well as an application for the postponement of the matter
pending a review to the Labour Court of her decision to refuse legal
representation.



 



22.      
Following the filing of the aforementioned applications Mr Shikongo
wrote an email to Mr Köpplinger which read as follows: 


 


           
Dear Frank


 


Your
letter dated 25th June 2014, regarding Case Number CRSW
129-13 refers;  On behalf of Swakop Uranium, I would like to
inform you that, your proposal of the arbitration proceedings
postponement is accepted
, until further notice from your good
office again.”  (emphasis supplied)


 



23.      
Thereafter Mr Köpplinger wrote a letter to the second
respondent: 


 


We
refer to the above matter and advise that the parties have agreed for
the matter to be postponed pending the outcome of a Review
Application to be lodged at the Labour Court in respect of your
refusal to allow legal representation for the Applicant.” 


 



24.      
Despite an agreement between the parties to postpone the matter
pending the Labour Court review, the second respondent was having
none of it.  She insisted that the matter must proceed. 
She pretended that she had no discretion in the matter.  The
letter she subsequently addressed to Mr Köpplinger on 4 July
2014 reads as follows: 


 


I
herewith acknowledge receipt of your letter dated 30 June 2014
informing me of an agreement on the postponement of the arbitration
hearing pending the outcome of a review application lodged at the
Labour Court in respect of my refusal to allow legal representation. 


 


The
parties do not meet the requirements as per form LC 28 on the
postponement of the matter hence the continuation of the matter as
set-down


 


I
hope you will find the above in order.”


 



25.      
Despite concerted efforts by Mr Köpplinger to comply with the
requirements expected from the second respondent for a postponement,
all attempts failed.  Through fallacious and confused reasoning,
the second respondent stubbornly insisted that the arbitration must
proceed.  This was despite:



 


25.1    
both
parties agreeing to the postponement;


 


25.2    
a
formal application for postponement having been filed;


25.3    
knowing
that a review to the Labour Court was imminent.



26.      
The second respondent’s above-mentioned attitude resulted in an
arbitration hearing on 4 July 2014.  The second respondent’s
attitude during those proceedings can be gleaned from the applicant’s
first review application. 



27.      
When the second respondent asked Mr Shikongo whether he had agreed to
a postponement, he opportunistically and dishonesty attempted to
distance himself from the clear wording of his email.



28.      
The second respondent refused to consider the applicant’s
substantive application for a postponement.  Her response was
basically “Why should I?” 



29.
When the proceedings resumed at 14h30 on 4 July 2014
Mr Shikongo
(having stated earlier that his witness would only be available at
16h00) informed the hearing that he had forgotten that he had to
leave Swakopmund by 15h00.  Without any application for a
postponement by the first respondent and upon the mere request of Mr
Shikongo, the second respondent promptly postponed the matter. 
That was after the applicant had struggled all morning to convince
the second respondent to postpone the matter, despite an agreement
between the parties and an unopposed substantive application for
postponement.



30.      
The second respondent provided her confusing reasons on the
application for postponement, the application for representation and
the application for her recusal on 11 July 2014.  Not
surprisingly the second respondent: 


30.1    
Refused
my application for representation on the basis that the first
respondent, who was represented by persons experienced in labour
matters, would be prejudiced if the applicant was also represented by
a person experienced in labour matters; 


30.2    
Dismissed
my application for her recusal on the basis that conciliation
proceedings are private and confidential, off the record and without
prejudice.  The second respondent’s reasoning seems to be
that we could not refer to her statement during conciliation that she
had no jurisdiction to hear the dispute and that I should withdraw
same and institute my case in the High Court;  





30.3    
Dismissed
the request for a postponement (despite an agreement to that effect
as well as my substantive application for a postponement) by
pretending that she had no discretion and by accepting, without more,
Mr Shikongo’s untruthful explanation why he had agreed to a
postponement; 


30.4    
Justified
ejecting the applicant’s husband from the hearing by finding
that the Act does not make provision for an observer and that Mr
Shikongo had not agreed to his presence. 


 



31.      
In the same ruling and without complying with rule 15 of the Rules
Relating to the Conduct of Conciliation and Arbitration the second
respondent (well knowing that I intended filing a review with the
Labour Court) set the arbitration proceedings down for 22 July 2014
at 11h00 in Swakopmund. 


 



32.      
The applicant filed her review application in the Labour Court on
17
July 2014.  The applicant already stated the following at the
end of her founding affidavit in the first review application under
case no LC106/2014: 


 


77.


I
point out that the second defendant is so eager to determine this
matter before I get the opportunity to review her decisions that she
ruled, in her reasons of 11 July 2014, annexure “CJ30”
hereto, that the arbitration is set down for 22 July 2014 at 11h00. 
I am advised that this is entirely contrary to Rule 15, which reads:


 


The
Labour Commissioner must give the parties at least 14 days notice of
an arbitration hearing on Form LC 28, unless the parties agree to a
shorter period.” 


 


The
parties did not agree to a shorter period.  Should the second
respondent not indicate that she will not proceed with the
arbitration on 22 July 2014 at 11h00, I have instructed my legal
practitioners to apply to this court for an interdict on an urgent
basis to prevent the arbitration taking place on that date and also
to apply that the second respondent pays the costs of such
application de bonis propriis on a scale as between attorney
and client.” 


 



33.      
On 18 July 2014 and on the applicant’s instructions Mr
Köpplinger addressed the following letter to the second
respondent: 


 


We
refer to the Review application served on the Labour Commissioner’s
Office on 17 July 2014 on behalf of our client Mrs Joubert, the
courtesy copy thereof faxed to your Walvis Bay office earlier today
and the date set down for the arbitration to continue on, i.e. 22
July 2014, as referred to in your written ruling of 11 July 2014. 


 


As
pointed out in paragraph 77 of the founding affidavit to the review
application, the contents that are incorporated herein by reference,
the date set down for the continuance of the arbitration proceedings
is contrary to Rule 15 that states that the parties must receive at
least 14 days’ notice of an arbitration hearing, on form LC28,
unless the parties agree to a shorter period.  Our client
records that she did not agree to any shorter period.  You also
failed to provide our client with any LC28 form for the intended
arbitration hearing on 22 July 2014. 


 


As
a result, the arbitration cannot take place on 22 July 2014. 


 


You
are, accordingly, requested to confirm that no proceedings will take
place on such date, as a matter of urgency.  Kindly note that
should you fail to do so and/or intend to continue on such a date
with the arbitration, we reserve our right as per our instructions to
apply to the Labour Court for an urgent interdict to prevent this
from happening, with a cost order against you personally de bonis
propriis
on a scale as between attorney and client. 


 


We
await your urgent response.” 


 


Such
letter was forwarded to the Swakopmund as well as the Walvis Bay
offices of the Labour Commissioner. 


 



34.      
The second respondent did not favour Mr Köpplinger with the
courtesy of a reply. 


 



35.      
The applicant and her husband reside in Windhoek.  For each
hearing she had to travel to Swakopmund at her own expense. 


 



36.      
Due to the defective nature and the manner in which the arbitration
was set down for 22 July 2014, Mr Köpplinger’s secretary,
Ms Kleynhans, contacted the second respondent on 21 July 2014 in
order to confirm that it would not be necessary for the parties to
appear at the hearing.  The second respondent was rude and
impatient.  She informed Ms Kleynhans that she would no longer
take calls from Mr Köpplinger’s office.  She further
informed Ms Kleynhans that rule 15 does not apply to her, but only to
the Labour Commissioner and that she was at liberty to set the
arbitration hearing down as she pleases. 


 



37. Thereafter Mr
Köpplinger wrote a further letter to the second respondent, as
follows: 


 


Our
letter of 18 July 2014 and the telephonic discussion between our
Ms
Kleinhans and yourself this morning refer. 


 


In
the aforementioned letter is it was succinctly pointed out to you
that your purported notice of the arbitration hearing as contained in
your ruling of
11 July 2014 is defective for a number of reasons,
including and most importantly that the 14 day notice required by
Rule 15 has not been complied with.  The date set for the
arbitration, namely 22 July 2014, is a nullity. 


 


On
writer’s instructions Ms Kleinhans called you this morning to
confirm that you will not proceed with the matter tomorrow, 22 July
2014, due to the defective notice.  We herewith record that your
response was that Rule 15 refers and applies to the Labour
Commissioner and not to yourself, who, as the arbitrator, can set the
matter down as you please.  You informed her that the matter
will proceed tomorrow. 


 


As
you know, our client has to travel from Windhoek to Swakopmund for
each appearance at her own expense.  In the light of the pending
review and your defective notice of the hearing, we have advised our
client not to travel to Swakopmund. 


 


Your
above response is further proof of your bias against our client and
amounts to malice.  It is a clear indication that you are not
performing your functions in good faith in terms of Section 134(c) of
the Labour Act, 11 of 2007. 


 


Be
informed that should you proceed with the matter tomorrow, 22 July
2014, and make any adverse decision against our client, we hold
instructions to also review such decision to the Labour Court and to
pray for a cost order against you personally de bonis propriis
on a scale as between attorney and client.


 


In
such event our letter of 18 July 2014 and this letter will be annexed
to the application for review in order to inform the Labour Court of
your mala fide conduct.”
(emphasis added)


 



38.
The second respondent did not reply to Mr Köpplinger’s
letter. 



39       
The applicant received a call from the second respondent on 22 July
2014 at 10h15 enquiring whether she will be attending the arbitration
hearing.  Shortly thereafter the second respondent dismissed the
applicant’s dispute.


THE
APPLICANT’S CASE ON THE MERITS


[2]
As a result of this background and the history of this matter, the
applicant contends that the second respondent’s conduct, while
presiding at the arbitration in this matter, was biased, malicious
and reprehensible, as well as indefensible.


[3]
It is on this basis that the applicant has then sought the review and
setting aside the second respondent’s decisions of 11th
July 2014 and 22 July 2014, on the latter occasion of which, she then
also dismissed the applicant’s dispute as a result of her non-
appearance. 


[4]
It was pointed out further that the first and second respondents had
conceded the merits of the review. 


[5]
I therefore agree that, in the premises, a case in this regard has
been made out and that the review relief sought by the applicant
should be granted. 


THE
ISSUE OF COSTS


[6]
The applicant is however not content with the reviewing and setting
aside of the aforementioned decisions alone but also seeks a special
punitive cost order against the 2nd respondent.


[7]
The question which arises is twofold: one, whether or not the 2nd
respondent has lost the shield of immunity afforded to arbitrators,
in labour matters, in terms of section 134 of the Act, and, secondly,
whether by opposing this matter up to a late stage, when her
opposition was withdrawn, the applicant is still entitled to a costs
order, in terms of section 118 of the Labour Act 2007.


[8]
It should be mentioned at this stage that the 2nd
respondent initially opposed the relief sought against her in that
she filed a notice of opposition and also filed an answering
affidavit in this regard.  After the matter had been set down
for hearing and also after the applicant had already filed heads of
argument, the 2nd respondent withdrew her notice of
opposition in this matter.


[9]
From the findings that I have made above, and thus also through the
granting of the main relief, namely that also the decision of the 2
nd
respondent, to dismiss the dispute on 22
nd
July, be set aside on the applicant’s version, is the inherent
finding that the second respondent conducted herself in the manner as
alleged, namely that she acted with ‘bias, with malice and in a
reprehensible, as well as indefensible way’. It is because of
this conduct, that she has lost the shield of immunity afforded to
her in terms of section 134 of the Labour Act. [1]


[10]
The question thus remains whether a costs order should also attach in
accordance with the provisions of section 118 of the Labour Act? 


[11]
Section 118 provides that ‘ … the Labour Court must
not make an order for costs against a party unless that party has
acted in a frivolous or vexatious manner by instituting, proceeding
with or defending those proceedings.’


[12]
It is clear that the second respondent, up to the date, that her
notice of withdrawal of opposition was filed, on the 17th
of August 2015, has prosecuted her case- and proceeded in defending
the review application launched by the applicant.  The question
thus arises, whether or not her opposition, in the circumstances of
this matter, can also be termed as vexatious or frivolous?


[13]
Mr Dicks has submitted in this regard that the withdrawal was
occasioned by technical motives and although no ground for the notice
of withdrawal of opposition was formally provided, it was reasonable
to infer that the withdrawal was effected for the sole reason to
shield the 2nd respondent from the adverse cost order
sought against her.


[14]
It should further be mentioned that the legal practitioner acting on
behalf of the applicant, Ms Kandjella, had written a letter to the
court, copied also to the legal practitioners acting for the 2nd
respondent, the Government Attorneys, on the 19th of
August 2015, in which she advised that the applicant’s legal
practitioners would attend at court, in spite of the withdrawal, in
their quest to pursue the adverse costs order sought against the 2nd
respondent.


[15]
As the basis on which the review application, on the merits, was
granted, indicates that the court has found that the 2
nd
respondent’s conduct in the arbitration was biased, it must be
concluded, by necessary implication, that her defence in the review
was also without basis, especially once it had been withdrawn, which
scenario then brings the 2
nd
respondent within the ambit of the word ‘frivolous’ as
contained in Section 118 of the Labour Act.[2]


[16]
In such circumstances, a case for an adverse costs order against the
2nd respondent has been made out.


[17]
As the 2nd respondent however did not persist with her
opposition in this matter to the bitter end and also did not pursue
such opposition up to- and on the date of the hearing, I am inclined
only to grant to the applicant, the costs, on the scale as prayed
for, up to the date of the filing of the notice of withdrawal of
opposition, which was the 17th of August 2015.


[18]
In the result, I therefore order that:


1.
The second respondent’s decision of 11 July 2014 - setting the
arbitration down for hearing on 22 July 2014 - contrary to Rule 15 of
the Conciliation and Arbitration Rules - is hereby reviewed and set
aside.


2.
The second respondent’s decision of 22 July 2014 - dismissing
the applicant’s dispute referred to the Labour Commissioner on
19 November 2013 - is hereby reviewed and set aside.


3.
The second respondent is to pay the applicant’s costs of the
review application de bonis propris, on a scale as between
attorney and own client, such costs to include the costs of one
instructed- and one instructing counsel until date of withdrawal of
second respondent’s opposition on 17 August 2015.


4.
The matter is referred back for continuation before another
arbitrator.


H
GEIER


Judge


APPEARANCES


APPLICANT:
Mr G Dicks


Instructed
by Köpplinger Boltman Legal


Practitioners,
Windhoek



[1]
See in this regard :
Namibia
Estate Agents Board v Like NO

2015 (1) NR 112 where the court held at
[77]
to [79] : ‘Bias – as a form of gross misconduct –
also being indicative of malice towards the one or other party –
in my view constitutes a valid basis for the granting of a
de
bonis propriis

costs order. Bias also constitutes a valid basis for finding that
the second respondent’s actions, in the performance of her
functions in terms of this Labour Act, were not performed ‘in
good faith’. This finding then also removes the shield of
immunity as conferred by Section 134 of the Labour Act 2007 from the
second respondent.’




[2]
Namibia
Seaman and Allied Workers Union v Tunacor Group Ltd

2012 (1) NR 126 (LC) at [20] – [24]