Court name
Labour Court
Case name
Tjivikua v Minister of Works Transport and Communication
Media neutral citation
[2005] NALC 1











CASE NO.: LCA 6/2003







SUMMARY








EPSON TJIVIKUA versus THE MINISTER
OF WORKS, TRANSPORT & COMMUNICATION







SILUNGWE, P



2005.07.07






LABOUR LAW – Public
Service – Staff member – Misconduct – Staff member absenting
himself from duty for period exceeding 30 days – Effect of section
24(5)(a) of Public Service Act 13 of 1995 – Such absence deeming
staff member to have been dismissed – Permission for leave of
absence can only be granted by Permanent Secretary of the office,
Ministry or agency where staff member employed - Deeming provisions
of section 24(5)(a) not only peremptory but also come into effect by
operation of law – Hence, exercise of discretion by relevant
authority by invoking provisions of section 26 of the Act does not
arise – Attempt to introduce new ground to challenge Prime
Minister’s exercise of discretion in terms of section 24(5)(b) -
Absence of notice to amend grounds of appeal – Notice serves to
inform respondent of case to be met; crystallises issues; and informs
Court of such issues – Such introduction of new ground
impermissible.



CASE NO.: LCA 06/2003



IN THE LABOUR COURT OF NAMIBIA








In
the matter between:









EPSON TJIVIKUA Appellant











and











THE
MINISTER OF WORKS, TRANSPORT



AND COMMUNICATION Respondent














CORAM: SILUNGWE,
PRESIDENT











Heard
on: 2004.06.18





Delivered
on: 2005.07.07










JUDGMENT





SILUNGWE, P.: The
appellant appeals against a judgment of the Windhoek District Labour
Court dismissing his complaint of unfair dismissal, victimisation and
unfair labour practices by the respondent.





At the outset, I would like to tender
my apology to the parties and their legal representatives for the
delay in the disposal of this matter. I was regrettably taken
seriously ill in September 2004 during Court recess and was
thereafter placed on sick leave. I resumed duty in mid-January 2005
although I was then, and for a considerable time subsequently, far
from operating at full strength. Since then, pressure of official
work has militated against an earlier preparation and delivery of
this judgment.





I now come to the merits of the case
the facts of which are simple. At the beginning of October 1980, the
appellant became an employee of the respondent. By the time that the
cause of action arose in the matter, he was employed as a
driver/messenger. The following facts are not in dispute. In a
circular letter of July 19, 1999, addressed to all Permanent
Secretaries concerning appointment and secondment of public servants
to the Electoral Commission to assist with registration of voters and
the electoral process and during the Presidential and National
Assembly Elections, the Director of Elections wrote, inter alia,:






We acknowledge with gratitude
the numerous positive responses received from various Government
offices…to release public servants to assist in the forthcoming
supplementary registration of voters.







Kindly take note that public
servants who accept the appointment and secondment to the Electoral
Commission do need not to apply for any leave from work as they will
be on official duty during the period in question. These officials
only need to seek permission from their respective permanent
secretaries for the period indicated on their appointment letter.



Although the said officials must
obtain permission from their respective Permanent Secretaries, they
need not apply for leave as electoral work is considered as official
duty.







Secondly, we are hoping that all
Government offices…are working on the compilation of their lists of
staff to be seconded to the Electoral Commission for the forthcoming
election.



…”





Consequently, the Secretary to
Cabinet dispatched a circular letter addressed to, inter alia,
all Permanent Secretaries which read:






RE: SECONDMENT OF CIVIL
SERVANTS TO THE DIRECTORATE OF ELECTIONS







1. I hereby forward
correspondence from Mr. J Rukambe, the Director of Elections,
requesting all Accounting Officers to second staff members to the
Directorate of Elections to assist with the Electoral process.







2. As discussed in the
Management Committee meeting of Senior Civil Servants held on
09.09.99, Public Servants who are not nominated by their Accounting
Officers may not be allowed to participate in this process.







3. For more information, please
do not hesitate to contact the Directorate of Elections directly.”





On September 20, 1999, the appellant
applied to the respondent, through the Public Service Union of
Namibia (PSUN), for secondment to the Electoral Commission. When the
respondent did not respond favourably, the appellant successfully
sought leave for the period of November 29 to December 9, 1999.
Although he was to resume duty on December 13, 1999, he failed to do
so. On January 6, 2000, the Director of Elections surprisingly (but
possibly because he had assumed that the appellant had been seconded
to his Directorate when he initially worked there from November 29 to
December 9, whereas in truth, the appellant had officially taken
leave of absence during that period) addressed a letter to the
respondent’s Permanent Secretary in the following terms:






RE: SECONDMENT OF MR EPSON
T. TJIVIKUA



1. Approval was granted by your
Ministry for the secondment of Mr E. Tjivikua to assist the Electoral
Commission during the Presidential and National Assembly Elections
1999.







2. His services are still
urgently required at the Office of the Electoral Commission till 31
January 2000. It will be appreciated if approval can be granted to
release Mr E. Tjiviakua for the above-mentioned period to the
Electoral Commission.







3. Your assistance will be
highly appreciated.”





In his reply of January 25, 2000, the
respondent’s Permanent Secretary indicated in no uncertain terms
that no approval of the appellant’s secondment to the Electoral
Commission had ever been granted as alleged; and drew attention to
the provisions of section 24(5)(a)(i) (but I will include
sub-paragraph (ii) as this is relevant) of the Public Service Act No
13 of 1995 (the Act) which read:






24(5)(a) Any staff member
who, without permission of the Permanent Secretary of the office,
ministry or agency, in which he or she is employed-








  1. absents himself or herself from
    his or her office or official duties for any period exceeding 30
    days; or









  1. absents himself or herself from
    his or her office duties and assumes duty in any other employment;








shall be deemed to have been
discharged from the public service on account of misconduct with
effect from the date immediately succeeding his or her last day of
attendance at his or her place of employment.”





It is equally apposite to add
paragraph (b) of section 24 (5) which provides that:






The Prime Minister may, on
the recommendation of the Commission, and notwithstanding anything to
the contrary contained in any law, reinstate any staff member so
deemed to have been discharged in the Public Service in the post or
employment previously held by him or her, or in any other post or
employment on such conditions as may be approved by the Prime
Minister on the recommendation of the Commission, but with a salary
or scale of salary or grade not higher than the salary or scale of
salary or grade previously applicable to him or her, and in such a
case the period of his or her absence from his or her office or
official duties shall be deemed to have been absence on vacation
leave without pay or leave on such other conditions as may be
approved by the Prime Minister on the recommendation of the
Commission.”





It is further not in dispute that the
appellant was at all material times a staff member of the respondent;
that he was neither seconded to the Directorate of Elections by the
respondent’s permanent secretary nor did his name appear on a list
of staff members nominated by the respondent for secondment to the
Directorate of Elections; that he kept away from his official duties
(and/or his office) for a period in excess of 30 days; and that,
during that period, he was working for the Directorate of Elections.
Mr Ueitele, appearing for the appellant, concedes that the appellant
had no permission from the respondent’s Permanent Secretary and
that, as such, the statutory requirements were (in strict terms) not
met. In point of fact the following confirmation appears in paragraph
1.7.2 of the appellant’s heads of argument:






The evidence also established
that other employees were seconded by the Ministry to go and work at
the Directorate of Elections. There is no plausable explanation on
record why the Appellant’s request to be seconded to the
Directorate of Elections was treated differently from the other
employees.”





The primary bone of contention is
whether the appellant had been granted permission by a Ms Britz, his
then immediate supervisor, to carry on working at the Directorate of
the Elections. Mr Ueitele argues that his client did have such
permission. This is indeed echoed in paragraph 1.7.3 of the
appellant’s written heads of argument which reads in part:






On the appellant’s version,
he then approached his immediate supervisor, one Britz, and informed
her that he is at the Directorate of Elections and wished to continue
there and was allowed to do so. That evidence was never displaced by
the respondent. In fact, Ms Britz was never called as a witness by
the respondent. The evidence of the appellant that he had authority
to continue to work at the Directorate of Elections remains
uncontraverted and must be accepted.”





On the contrary, a reading of certain
parts of the proceedings in the District Labour Court, referred to by
Mr Ueitele (pp.140-141), reveals the following:






Q. Now after the 09th
December why didn’t you come back to work at the Ministry?



A. I came back three times
(indistinct) and I came to see my supervisor to tell him.







Q. To tell her what?



A. So I told her that I was at
the elections department of (indistinct).







Q. Who is this supervisor?



A. Britz.







Q. What did she say?



A. She (sic) said yes.







Q. She allowed you to be at the
Elections Directorate is that what you’re saying?



A. She never refused and never
showed that she didn’t want (indistinct), I even went to Mr Kauria
(indistinct).









Q. And did Britz know during
this time where you were?



A. Yes, she knew where (sic) I
was.







Q. Did you know that you were
not allowed to be at the Directorate of Elections?



A. So they did not come up with
the truth to allow me. That’s why (indistinct).







Q. Did anybody while you were at
the Directorate of Elections call you and say Mr Tjivikua you are
illegally at the Directorate, we want you to come back? Did you get
any message of that kind?



A. No.





It is evident from the foregoing
excerpt that, although Ms Britz was apparently aware of the
appellant’s whereabouts after the expiry of his official leave, she
reportedly remained non-committal either way, on the critical
allegation that she had given the appellant permission to work at the
Directorate of Elections. Mr Marcus contends, on behalf of the
respondent, that Ms Britz did not give permission as alleged. It is
clear that, on the appellant’s own version, one can not reasonably
say that Ms Britz gave him permission as alleged. However, even if
the allegation were true (but, as previously shown, it was not) this
would merely have brought cold comfort to the appellant as the
alleged permission could only have been validly given by the
respondent’s permanent secretary, in terms of the law. In any
event, not only is there unassailable evidence on record to show, but
there is also no dispute, that the appellant never obtained
permission from the respondent’s Permanent Secretary. In reality,
he merely took French leave.





Mr Ueitele further argues that, in
the event of the Court finding that the appellant had no authority to
be at the Directorate of Elections then, it was an improper exercise
of the respondent’s power under section 24(5)(a) of the Act to wait
until the expiry of the period of 30 days in order to dismiss him for
absconding, when it was possible and reasonable to charge him with
misconduct under section 26 of the Act. The authorities, he
continues, had a discretion to apply either section 24(5)(a) or
section 26. My understanding of the point made here is that the
respondent’s application of section 24(5)(a) was an improper
exercise of its discretion as it could have charged the appellant
with misconduct prior to the expiry of the 30 day period stipulated
in section 24(5)(a). This, it appears to me, smacks of a bold attempt
to get the appellant off the hook that he had consciously swallowed,
obviously because of an alluring monetary bait that he had
spotted at the Directorate of Elections. The deeming provisions of
section 24(5)(a) of the Act are not only peremptory but also come
into effect by operation of law; and, in point of fact, the
respondent’s Permanent Secretary had drawn these provisions to the
attention of the Director of Elections in reply to the latter’s
request to sanction the appellant’s stint at the Director of
Elections. As both the Director of Elections and the appellant were
apparently anxious to regularise the appellant’s position at the
Directorate of Elections, it is at best likely, and at least
possible, that the appellant was informed, or that he became aware,
of the contents of that reply. In any case, the appellant can not
legitimately point an accusing finger at the respondent’s Permanent
Secretary for having allowed the law to take its course. And so,
there was no wrong-doing whatsoever on the part of the respondent.
For ease of reference, section 26 provides (in so far as it is
relevant) that:






26 (1) If a permanent
secretary has reason to believe that any staff member in his or her
office, ministry or agency is guilty of misconduct, he or she may
charge the staff member in writing under his or her hand with
misconduct.







(2)(a) The permanent secretary
concerned may, on the recommendation of the Commission, suspend any
staff member at any time before or after he or she is charged under
this section if the permanent secretary has reason to believe that
the member is guilty of misconduct: Provided that the staff member
shall be suspended only where the nature of the misconduct dictates
that the staff member be removed from his of her duty or if the
possibility exists that the staff member may interfere or tamper with
witnesses or evidence.



….”





A close scrutiny of section 24(5)(a)
of the Act demonstrates, as previously shown, that the deeming
provisions of that section come into effect by operation of law. See:
Mwellie v Ministry of Works, Transport & Communication and
Another
1995 (a) BCCR 1118 (NmH) at 1142E-F. Hence, the exercise
of discretion by any relevant authority to invoke the provisions of
section 26 of the Act does not arise. Moreover, it is apparent in
this regard that no hearing was either necessary or contemplated by
the legislature. See: Njathi v Permanent Secretary, Ministry of
Home Affairs
NLLP 2002 (2) 34 at 39 (2nd paragraph
from the top); 1998 NR 167 at 171G. Accordingly, the principle of
audi alterem partem is of no application to the present case.
In Njathi’s case, supra, Strydom, P (as he then was)
aptly made the following observations at 38; 1998 NR at 170I-171A:






As was pointed out by Hugo,
J. in Mkhwanazi v Minister Agriculture and Forestry. Kwazulu,
1990 (4) SA 763 at 768 (D&C) the words “absents himself”
clearly imports an element of volition on the part of the absentee.
The deeming clause terminating the employment comes to the rescue of
the employer who was placed in an invidious position of not knowing
why and how long such absence would continue, to again fill the
position so that the work can be done. In my opinion the termination
is final unless and until the provisions of sub-section (b) are
invoked and a discretion is exercised by the Prime Minister on the
recommendation of the Commission.”





Finally, an attempt has been made by
Mr Ueitele during oral argument to introduce a new ground of appeal,
in the absence of an application to amend the notice of appeal. It is
alleged that there was an improper exercise of discretion by the
Prime Minister in terms of section 24(5)(b) of the Act. But Mr
Marcus’s resistance to that attempt is both prompt and spirited. He
points out that it is a trite principle of procedural fairness that a
party who intends to amend his or her notice of appeal is required to
give due notice thereof to the other party.





Indeed, Mr Ueitele’s concession
does not come to me as a surprise. This is so because the fundamental
reasons underlying the requirement to file an amended notice of
appeal that introduces a new ground (or new grounds) of appeal are
salutary. Evidently, such a notice serves to inform the respondent of
the case it is required to meet; to crystallize the issues; and to
inform the Court of Appeal of such issues. See: S v Ngonga
2004 (10) NCLP 80 at 89-90. In casu, no notice of amendment of
the grounds of appeal has either been filed or applied for. In other
words, no foundation whatsoever has been laid for the introduction of
the new ground. In the circumstances, any such introduction would be
impermissible.





In the final analysis, this appeal
fails. Accordingly, it is dismissed.














______________


SILUNGWE,
P.






ON
BEHALF OF THE APPELLANT: Mr S. F. I. Ueitele





Instructed
By: Conradie & Damaseb











ON
BEHALF OF THE RESPONDENT: Mr N. Marcus





Instructed
By: Government Attorneys