Court name
Labour Court
Case name
Van Wyk v Gowases and Another
Media neutral citation
[2008] NALC 3


















Special Interest






SUMMARY



Case No.: A 4/2008



AFRICAN PERSONNEL SERVICES



and


GOVERNMENT
OF NAMIBIA AND OTHERS



Heard on: 2008 November 24



Delivered on: 2008 December 1



PARKER, J
et
NDAUENDAPO, J
et
SWANEPOEL, AJ



___________________________________________________________________________



Constitutional
Law
- Human Rights –
Right to carry on any business or trade under Article 21 (1) (j) of
Namibian Constitution – Derogable – Only a business or
trade that is lawful can claim protection under Article 21 (1) (j) of
the Namibian Constitution.







Constitutional
Law
– Human
rights –
Locus
standi in judicio

Article 21 (1) (j) rights vest in all persons, citizens of Namibia
and non-citizens of Namibia so long as the non-citizens are lawfully
within Namibia and they meet certain statutory requirements, e.g.
work permits and permanent residence permits – Court reasoned
that naturally and logically, while some of the Article 21 (1) rights
can be exercised by natural persons only, others may be exercised by
both natural and legal persons.







Constitutional
Law
– Legislation
– Section 128 of Labour Act, 2007 (Act No. 11 of 2007) –
Constitutionality and validity of – Court finding that
applicant has failed to establish he has legal right to carry on
business or trade of labour hire and therefore protectable right
under Article 21 (1) (j) of Namibian Constitution.







Constitutional
Law
– Separation
of powers – Principle firmly embedded in Namibia’s
constitutionalism – Power of the High Court to declare statutes
that are repugnant of the Constitution unconstitutional – Such
power not violative of principle of separation of powers.







Labour Law
– Namibia’s
labour Law – Based on the common law of contract of employment,
as modified by statute and Namibia’s obligation under ILO
Constitution and ILO Conventions and Standards







Labour Law
– Contract of employment – Governed by general
principles of contract – Additionally, it is derived from
locatio conductio
operarum
; i.e.
letting and hiring of personal service between a servant and his
master for monetary return, under Roman Law – This form of
letting and hiring contrasted with
locatio
conductio operas

(
faciendi),
i.e. present-day independent contractor and also with
locatio
conductio rei
, i.e.
the letting and hiring of a specified thing for reward, e.g. the
hiring of a slave, as the thing (
res)
by his slave-master to another person for reward under Roman Law.



Labour
Law
Labour hire –
What constitutes –– Imposition of a third person, i.e.
the labour hire company, in the employer-employee relationship,
though agency not privy to the contract of employment – Having
no basis in Namibian labour law because it offends the common law,
statute law, and Namibia’s international obligation under the
ILO Constitution, which prohibits commoditization of labour, and
further smacks of
locatio
conductio rei
in
Roman Law –







Practice
Affidavit – Hearsay evidence in – As a general rule
hearsay evidence not permitted in – Where deponent includes in
affidavit facts of which deponent has no first-hand knowledge,
deponent may annex to his or her affidavit verifying affidavit of
person who has first-hand knowledge of facts – If such deponent
fails to do so such facts in his or her affidavit remains
inadmissible hearsay evidence. – Court finding certain
paragraphs in respondents’ affidavits constituting inadmissible
hearsay evidence and therefore striking them out







Practice
Disputes of facts on the papers – Approaches by the
Courts in dealing with such disputes of facts – Courts must
critically examine the alleged disputes of facts in order to see if
really they are genuine disputes of facts that cannot satisfactorily
be determined without the aid of oral evidence – In casu
Court finding that though some disputes of facts exist but they are
irrelevant to the determination of the constitutional challenge Court
is seized with.









Held: The Article 21 (1) (j)
right is derogable.





Held: Not
every business or trade is protected by Article 21 (1) of the
Namibian Constitution







Held: Before an
applicant can successfully complain of violation of the Article 21
(1) (j) right, applicant must establish, first, that applicant has a
legal right to carry on the particular business or trade, and second,
that that right is also a fundamental right.



Held: A lawful
business or trade in terms of Article 21 (1) (j) is that business or
trade, which is not criminal or which has legal basis in Namibian
law.



Held: Contract of
employment is governed by general principles of contract.



Held: Labour hire
has no legal basis in Namibian law in terms of the common law,
statute law or the ILO Constitution and consequently it is not
lawful; and so labour hire is not a business or trade protected by
Article 21 (1) of the Namibian Constitution.



Held: Applicant, a
labour hire company, has no legal right to carry on business or trade
of labour hire and therefore no right that is protectable by Article
21 (1) (j) of the Namibian Constitution.



Held: Article 21
(1) (j) rights vest in all persons, natural and legal, and in
citizens of Namibia and non-citizens of Namibia.






Held: Section 128 of Labour Act,
2007 is constitutional and, therefore, valid.







Held: Every
legislation or section of it, irrespective of whether it regulates an
economic activity, if inconsistent with Article 21 and if it does not
meet the requirements of Article 21 (2), read with Article 22, is
repugnant to the Constitution and is
pro
tanto
void.



Held: When the High
Court declares a statute or section of it unconstitutional, it does
not by so doing violate the principle of separation of powers.



Held: Hearsay
evidence in affidavit constitutes inadmissible evidence.



Held: Court may only call in aid oral evidence to
resolve genuine disputes of facts where disputes are such that the
issues cannot satisfactorily be determined without the aid of oral
evidence.














CASE NO.: A 4/2008



IN THE HIGH COURT OF NAMIBIA







In the matter between:







AFRICA PERSONNEL SERVICES (PTY) LTD     Applicant


and


GOVERNMENT
OF NAMIBIA     1
st
Respondent


SPEAKER
OF THE NATIONAL ASSEMBLY     2
nd
Respondent



CHAIRPERSON OF THE NATIONAL COUINCIL OF THE REPUBLIC OF NAMIBIA     3rd
Respondent



THE PRESIDENT OF THE REPUBLIC OF NAMIBIA     4th
Respondent










CORAM: PARKER, J et
NDAUENDAPO, J
et
SWANEPOEL, AJ


Heard on:
2008 November 24, 25


Delivered on:
2008 December 1



­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­_____________________________________________________________



JUDGEMENT:



PARKER, J.:



Introduction



[1] In this matter, application is made on notice of
motion by the applicant in which it has prayed for orders in the
following terms:






  1. striking
    down s 128 of the Labour Act, 2007 (Act No. 11 of 2007) as
    unconstitutional.








  1. costs
    of suit.







  1. Further
    and/or alternative relief.








[2] The applicant’s founding
affidavit and replying affidavit are deposed to on its behalf by
Johannes Arnoldus Botha who describes himself as the executive
chairperson of the board of directors of the applicant. The
applicant is represented by Mr. Smuts. The 1
st
and 4
th
respondents’ answering affidavit is deposed to on their behalf
by Ms Ulitala Hiveluah who describes herself as the Permanent
Secretary of the Ministry of Labour and Social Welfare. The 1st and
4
th respondents
(the respondents) are represented by Mr. Chaskalson. The 2
nd
and 3
rd
respondents have not filed any answering affidavits. This is an
application that challenges the constitutionality of a section of a
statute. In terms of Article 25 (1) (a), this Court has the power
and the discretion, instead of declaring the section sought to be
impugned invalid, allow Parliament or the Executive to correct any
defect in the impugned law within a specified period, subject to any
specified conditions. It is a reality of our statute law that since
Independence it has only been the Executive that has tabled before
Parliament legislative proposals for Parliament’s consideration
and enactment. No private members’ Bills have been enacted
since Independence. I, therefore, find that it is enough that the
1
st and 4th
respondents have been cited and they have caused an answering
affidavit to be filed on their behalf in opposition to the
application.







[3] The papers from either side have been embellished
with innumerably copious annexes and attachments, including
confirmatory affidavits. The main attachments to the applicant’s
founding and replying affidavits, including confirmatory affidavits,
primarily seek to glorify the virtues, benefits and advantages of
labour hire. For instance, in his submission, Mr. Smuts mentioned
how labour hire contributes greatly to the economy of the country,
particularly in fulfilling seasonal-short-term labour requirements in
such sectors as mining, fishing, agriculture, transportation and
construction. The main attachments of the respondents’
answering affidavit, including confirmatory affidavits, on the other
hand, basically highlight the ills and the dangerously exploitative
nature of labour hire. For example, Mr. Chaskalson mentioned in his
submission how labour hire shared certain attributes with the
erstwhile notorious, inhuman, apartheid-coloured SWAWLA system and
how labour hire commoditized labour and, thus, took away the dignity
of those whose labour labour hire agencies hired out to their
clients. In this regard, I think I must make the point that despite
this lush of plenteous pages and pages of papers upon papers, the
question that must be determined in the present application is not so
dense and wide.







[4] I will first of all consider the applicant’s
interlocutory application to strike out paras. 40.2 (record 224),
40.5 (record pp 224-5) and 48.4 (record p 230) in Hiveluah’s
affidavit, and the whole of paragraphs 6 and 7, inclusive of their
annexures, in Musukubili’s affidavit. Mr. Smuts argued that
those paragraphs ought to be struck out because they constitute
hearsay evidence. Mr. Chaskalson opposed the application, but
conceded that, indeed, para 40.5 may be struck out. Mr. Smuts, too,
conceded that annexure FM2 did not constitute hearsay evidence







[5] In the authoritative work Herbstein
and Van Winsen: The Civil Practice of the Supreme Court of South
Africa
, 4ed at pp 368-9, the following
general rule is put forth:







As a general rule … hearsay evidence is not
permitted in affidavits. It may accordingly be necessary to file
affidavits of persons other than the applicant who can depose to the
facts. Indeed, this is very often done. Alternatively, when a
deponent includes in his affidavit facts in respect of which he does
not have first-hand knowledge he may annex a verifying affidavit by a
person who does have knowledge of those facts.







[6] Having applied this general rule to the facts, I
think I agree that paras. 40.2 and 6 (apart from annexure FM2)
constitute hearsay evidence. The same cannot be said of para. 7 of
Musukubili’s affidavit. Musukubili deposes to facts within his
knowledge: he has first-hand knowledge of the facts he deposes to.
He says, he enquired from Namib Bottle Sorting; he spoke to a Mr. De
Preez; and he called applicant’s offices and spoke to a Mr.
Kondo. What he states cannot constitute hearsay evidence; he does
not put forth the statement to show the truth of what Mr. De Preez or
Mr. Kondo had told him. In short, he had first-hand knowledge of
what these people told him because they told it to him directly, not
through a third party.







[7] The result is that paras 40.2 and 40.5 and 48.4 are
struck out. Para 6, apart from annexure FM2, is also struck out. It
is my opinion that the applicant’s application to strike out
succeeds to the extent set out above, i.e. about 60%. The applicant
must therefore have its costs to the extent of that percentage.







[8] I now proceed to deal with the main
application (the application). Suggestions were made by Mr. Smuts –
though not vigorously, as I gathered – that if the Court found
that the application could not be determined on the papers due to the
existence of disputes of facts, the Court may order that oral
evidence be led to resolve any such disputes. Mr. Chaskalson
appeared to agree with Mr. Smuts. On my part, I do not think that
would be necessary. As was observed in
Ter
Beek v United Resources CC and another
1997
(3) SA 315 (C), and adopted by this Court in
Kahuure
and others v Mbanderu Traditional Authority and others

Case No.: (P) A 114/2006 (Unreported), it is not every dispute of
fact that must go for oral evidence. Having examined the alleged
disputes of fact, I am of the view that the present application,
which is primarily a constitutional challenge of a statutory
provision, can satisfactorily be determined without the aid of oral
evidence. In other words, there may be disputes of fact on certain
matters; but they are not so relevant as to be capable of impeding a
proper determination of the present application. For instance, there
is no dispute that the activity that the applicant carries on is
labour hire as referred to in s 128 of the Labour Act; the section of
the Act sought to be impugned in the present application.










[9] I will, at outset, concerning the main
application get out of the way the respondents’ contention that
the applicant has no
locus standi
to bring the application primarily on the basis that the right
guaranteed by Article 21 (1) (j) (hereinafter referred to as “the
Article 21 (1) (j) right”) vests in natural persons who are
Namibian citizens. I am of the view that the right which is the
subject matter of the present application vests in all persons
whether they are citizens or non-citizens of Namibia, but, of course
nothing precludes Parliament from enacting legislation which
restricts the enjoyment of the right to non-citizens who meet
prescribed statutory requirements, e.g. work permits and permanent
resident permits, allowing them to lawfully reside in Namibia in
order to practise any profession, or carry on any occupation, trade
or business.







[10] The other leg of the respondents’
position is that the Article 21 (1) (j) right vests only in natural
persons. I do not think that is correct either. (See
Fantasy
Enterprises CC t/a Hustler the Shop v Minister of Home Affairs and
another
; Nasilowski
and others v Minister of Justice and others

1998 NR 96.) Granted, some of the rights guaranteed by Article 21
(1) can naturally only be enjoyed by natural persons, e.g. the right
to freedom of speech (para. (a)), to freedom of thought, conscience
and belief (para. (b)), to freedom to move freely throughout Namibia
(para. (g)), and to freedom to practise any profession (para. (j)).
However, some of the rights may be enjoyed by both natural and legal
persons, and some by legal persons only, i.e. the right to freedom of
the press and media (para. (a)), to freedom of association (para.
(e)) to freedom to carry on any trade or business (para. (j) (the
subject matter of the present application). If it was the intention
of the makers of the Constitution to restrict the enjoyment of all
the rights in Article 21 (1) to only natural persons who are Namibian
citizens they would have made such of their intention known by clear
words. Indeed, nothing could have prevented them from defining
persons in the definitions provisions (Article 146) or from defining
the word “person” specifically for purposes of Article 21
(1) only, as is done in many statutes. The result is that I find
that the respondents’ position is indefensible and their
submission baseless. I rather accept the applicant’s counsel’s
argument on the issue. In any case, as far as this Court and the
present application are concerned, the respondents’ counsel
does not advance any submissions on the point: counsel reserved the
respondents’ right to argue the matter on appeal, should it
become necessary.







[11] As I have already intimated, the present
application has been brought by notice of motion to strike down as
unconstitutional s 128 of the Labour Act, 2007 (Act No. 11 of 2007)
(the Labour Act 2007). The applicant’s position is that s 128
of the Labour Act 2007 is inconsistent with the applicant’s
right to the fundamental freedom “to carry on a trade or
business” guaranteed to it by Article 21 (1) (j) of the
Namibian Constitution. In sum, by this application, the applicant
seeks to impugn s 128 of the Labour Act 2007 on the basis, so the
applicant contends, that the section infringes the applicant’s
Article 21 (1) (j) right.







[12] Article 21 of the Namibian Constitution, inasmuch
as it is relevant to the present application, provides:






(1) All
persons shall have the right to:





(j) …
carry on any … trade or business.






Section 128 of the Labour Act provides:






Prohibition
of labour hire



128. (1) No
person may, for reward, employ any person with a view to making that
person available to a third party to perform work for the third
party.






(2) Subsection
(1) does not apply in the case of a person who offers services
consisting of matching offers of and applications for employment
without that person becoming a party to the employment relationships
that may arise therefrom.





(3) Any
person who contravenes or fails to comply with this section commits
an offence and is liable on conviction to a fine not exceeding
N$80,000 or to imprisonment for a period not exceeding five years or
to both such fine and imprisonment.






(4) In so far as this section
interferes with the fundamental freedoms in Article 21 (1) (j) of the
Namibian Constitution, it is enacted upon the authority of
Sub-article 2 of that Article in that it is required in the interest
of decency and morality.







[13] The Article 21 (1) (j) right is derogable because
it is not one of those rights declared underogable by Article 24 (3)
of the Namibian Constitution: this is significant. Equally
significant – and it arises from the derogability of that right
– is that the exercise of the right is not boundless: it is
subject to a restriction insofar as the exercise of the Article 21
(1) (j) right is “subject to the law of Namibia”. The
constitutional restriction or limitation to the exercise of that
right is provided for in Article 21 (2) of the Namibian Constitution
in this way:







The fundamental freedoms
referred to in Sub-Article (1) hereof shall be exercised subject to
the law of Namibia, in so far as such law imposes reasonable
restrictions on the exercise of the rights and freedoms conferred by
the said Sub-Article, which are necessary in a democratic society and
are required in the interests of the sovereignty and integrity of
Namibia, national security, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an
offence.







[14] Thus, the constitutional restriction or limitation
in the main clause of Article 21 (2) to which the Article 21 (1) (j)
right is subject is also not limitless: the restriction is in turn
circumscribed by the proviso in the above-quoted Article 21 (2).







[15] The effect of the derogability of the
right in terms of Article 24 (3) and the restriction and the proviso
to the restriction in terms of Article 21 (2) is this: the Parliament
may make law that is inconsistent with Article 21 (1) (j) or which
takes away the right, provided this inconsistency or taking away was
reasonable, necessary in a democratic society, and was in the
interests of the different matters mentioned in Article 21 (2), as
the Supreme Court of India observed in
Narendra
Kumar v Union
(1960) 2 SCR 375 at 387. In
that case, the Supreme Court of India was seized with interpreting
Article 19 (1) (g) of the Indian Constitution whose provisions are
almost identical to those of Article 21 (1) (j) of the Namibian
Constitution. It follows that in my view what Article 21 (1) (j) has
granted is not an absolute right but a right subject to permissible
restrictions.







[16] The makers of the Namibian Constitution were not
just content with providing only for a statutory restriction on the
Article 21 basic rights (including the Article 21 (1) (j) right) that
are derogable; they went further than that. The makers of the
Namibian Constitution provided in Article 22, entitled “Limitation
upon Fundamental Rights and Freedoms”, that whenever a statute
takes away a derogable right under the Constitution, the law in
question must be of general application and certain requirements must
be worked into the Act or a provision thereof; showing the extent of
the limitation and the authority in terms of the Constitution, on
which the limitation is based. Article 22 provides:







Limitation upon Fundamental
Rights and Freedoms



Whenever or wherever in terms of
this Constitution the limitation of any fundamental rights or
freedoms contemplated by this Chapter is authorised, any law
providing for such limitation shall:







  1. be
    of general application, shall not negate the essential content
    thereof, and shall not be aimed at a particular individual;








  1. specify
    the ascertainable extent or such limitation and identify the Article
    or Articles hereof on which authority to enact such limitation is
    claimed to rest.








[17] The object of Article 21 (2), read
with Article 22, of the Namibian Constitution is, therefore, to save
laws that are otherwise inconsistent with Article 21 (1), or which
take away the rights conferred by Article 21 (1). Accordingly, a
legislation or a section of it, which is inconsistent with Article 21
(1) and which does not meet the requirements of Article 21 (2), read
with Article 22, is repugnant to the Constitution and, therefore,
pro
tanto
void (Marbury v
Madison
(1803) 1 Cranch 137).







[18] To repeat what I have said previously;
the applicant says that its Article 21 (1) (j) right is infringed by
s 128 of the Labour Act 2007. Doubtless, the first port of call in
the present enquiry must perforce be the interpretation and
application of Article 21 (1) (j) inasmuch as it is relevant to the
present application. As I understand Article 21 (1) (j), not every
“trade or business” is entitled to the protection of
Article 21, e.g. a business that is for a criminal enterprise. Thus,
a person who is in the business of, for instance, stock theft, the
keeping of a brothel, trafficking in women or children, and slavery
cannot be heard to claim a right under Article 21 (1) (j) of the
Constitution on the basis that the business or trade yielded a profit
or income. That much Mr. Smuts is in agreement with. The reason –
and this is very important for our present purposes, as I shall
demonstrate in due course - is not only because such activity is
criminal; it is also because it has no basis in law. In my view, if
the business or trade has no basis in law, it is not lawful; and as
Maritz, J (as he then was) correctly stated, in
Hendricks
and others v Attorney-General, Namibia and others

2002 NR 353 at 357H, “It is, in my view, implied by that
article (i.e. Article 21 (1) (j)) that the protected right relates to
a profession, trade, occupation or business that is
lawful.”(My
emphasis) It is also my view that “lawful” ought to be
understood in its wider signification, namely that the activity
involved in the business or trade is lawful when it is not a crime or
when it has legal basis in Namibian law. In this regard, as I will
demonstrate shortly, in Namibia labour hire is not
lawful
because it has no legal basis in Namibian law.







[19] What is “labour hire”?
The use of a labour-hire arrangement involves splitting, so to say,
what would otherwise be a contract of employment into a number of
contracts for the provision of personal service between X (a person
who is to supply the service) and Y (a labour-hire agency) and
between Y and Z (a host or a client of Y, i.e. the one for whom X
renders his or her personal service). In “Labour Hire in
Namibia: Current Practices and effects” (May 2006) at p.8,
LaRRI, a labour resource and research institute, describes labour
hire as an arrangement whereby an agency provides individual workers
to a client or host. According to LaRRI, “Labour hire
employment involves three parties and creates ‘triangular
employment relationship” which differs from the traditional
type of employment involving two parties (the employer and
employee)”. With respect, this is muddled theorizing. To
start with, there is no such thing as “triangular employment
relationship” in our law. LaRRI also describes labour hire in
the above-quoted publication as “form of a global trend towards
more ‘flexible’ forms of employment …”

(ibid.
at p 5). Mr. Smuts adopts this LaRRI statement in his submission.
With respect, LaRRI’s characterization of labour hire as form
of “employment” is obfuscatory, unless LaRRI does not use
the term “employment” in its legal signification;
otherwise, the characterization has no relevance in law; and so it
must be rejected for the purposes of our present enterprise.







[20] A legal definition of labour hire has been
suggested by an employer and industrial lawyer in Australia, a
country where such arrangement has proliferated in recent years –
but not without controversy – as follows:







Labour hire is a form of
indirect employment relationship in which the employer (the agency)
supplies its employees to work at a workplace controlled by a third
party (the client) in return for a fee from the client. A typical
agency will direct an employee to work for a period (assignment)
ranging from a single day to a number of years.







[Charles Power, “Labour hire: the new
industrial law frontier,”
Law Institute
Journal
, vol. 76, No. 6 (July 2002), p 64.]







[21] In the applicant’s founding affidavit, the
applicant says that it concludes agreements to provide its services
to its clients on the one hand and on the other hand has employment
agreements with its own employees. The deponent states further that
“the applicant enters into a written agreement with the client
for the supply of the required labour force from the applicant to the
client on terms and conditions set out in the agreement.” I
have not one iota of doubt in my mind that the arrangement the
deponent describes is indubitably labour hire as defined by Power.
In any case, there is no dispute that the business or trade the
applicant carried on is labour hire.







[22] Is labour hire “a form of
employment” in our law? Employment of whom by whom? To answer
the question we must direct our attention to the following enquiry:
what is a contract of employment in our law? A contract of
employment is an agreement whereby an individual (the employee, i.e.
X) agrees to render his or her personal service to another person
(the employer, i.e. Y) for an indefinite or definite period in return
for an ascertainable wage or other remuneration. The agreement also
entitles Y to determine, among other things, what X’s personal
service will be, to generally supervise X when X is performing his or
her personal service, and to generally control the manner in which X
discharges such personal service. Van den Heever, AJ put it simply
in
National Automobile & Allied Workers
Union (now known as National Union of Metalworkers of SA) v
Borg-Warner SA (Pty) Ltd
in this way:







Under the common law, parties
conclude a contract under which one of them is to provide services in
return for payment. Their agreement determines when the relationship
so constituted starts; what reciprocal rights and duties are acquired
and incurred by each; and, if it is to be of indefinite duration, how
it may be terminated.







(1994 15 ILJ509 (A) at 515G)







[23] The general principles of contract
apply to a contract of employment. (See e.g.
Paxton
v Namib Rand Desert Trails (Pty) Ltd
1996 NR
109.) Accordingly, in terms of our common law a contract of
employment is between X (the servant, i.e. employee) and Y (the
master, i.e. employer); a third party, e.g. a labour hire company, Z
, is not, and cannot be, privy to such contract. What is more, the
contract of employment under our common law is based on the Roman Law
of
locatio conductio operarum,
i.e. the letting and hiring of personal service in return for a
monetary return. Joubert, JA described such contract in the landmark
case of
Smit v Workmen’s Compensation
Commissioner
1979 (1) SA 51 (A) at 56E as
follows:







This was a
consensual contract whereby a labourer, workman or servant as
employee (
locatio
operarum
) undertook
to place his personal services (
operae
suae
) for a certain
period of time at the disposal of an employer (
conductor
operarum
) who in turn
undertook to pay him the wages or salary (
merces)
agreed upon in consideration of his services.







This species of letting and hiring under
Roman law stands in contradistinction to
locatio
conductio rei
, i.e. the letting and hiring of
a specified thing for reward. But, since Roman Law recognized
slavery of persons who are not Roman citizens, a slave could form the
thing (
res) in a
locatio conductio rei,
and, therefore, the master of a slave could hire or rent the slave to
another person for whom the slave performs personal service. The
other species of letting and hiring under Roman Law which is also
part of our common law was
locatio conductio
operas
(faciendi),
i.e. the present-day independent contractor. (See Smit supra at
57C-E).







[24] It follows that at common law, the
basis and essence of a contract of employment is the rendering of
personal service by the
locator operarum
(servant) to
conductor operarum
(master). There is, therefore, no room for a third party in the
servant (employee)-master (employer) relationship in our law. This
legal reality was confirmed statutorily by the repealed Labour Act,
1992 (Act No. 6 of 1992): the definition of “employee”
and of “employer” in s 1 of the repealed Labour Act 1992
is based primarily on the common law contract of employment.
According to s 1 of the 1992 Act,







employee”
means any natural person –







  1. who
    is employed by, or working for, any employer and who is receiving,
    or entitled to receive, any remuneration; or








  1. who
    in any manner assists in carrying on or the conducting of the
    business of an employer;








and “employed” and
“employment” shall have corresponding meanings;






employer”
means any person, including the State –







  1. who
    employs, or provides work for, any person and who remunerates or
    expressly or tacitly undertakes to remunerate him or her;








  1. whom
    permits any person to assist him or her in any manner in the
    carrying on, or conducting of, his or her business.








And “employ” and
“employment” shall have corresponding meanings;










Similar provisions are in the Labour Act 2007. Section 1
of that Act provides:









employee”
means an individual, other than an independent contractor, who –






  1. works
    for another person and who receives, or is entitled to receive,
    remuneration for that work; or








  1. in
    any manner assists in carrying on or conducting the business of an
    employer;…




And,


“employer”
means any person, including the State who –






  1. employs
    or provides work for, an individual and who remunerates or expressly
    or tacitly undertakes to remunerate that individual; or








  1. permits
    an individual to assist that person in any manner in the carrying
    or, conducting that person’s business.








[25] Accordingly, I respectfully accept Mr. Chaskalson’s
submission that in the labour-hire arrangement there is the
interposition of a third party (the labour hire agency’s
client) in the employer-employee relationship. It is my view that
this third-party interposition creates an unacceptable situation that
has no legal basis in our law of contract of employment. In this
regard, I accept Mr. Chaskalson’s submission that the whole
core nature and character of labour hire is to hire out or rent
labour. In my opinion, it is letting or hiring of persons as if they
were chattels.







[26] In sum, in terms of our law the legal
basis for the employment relationship remains contractual, even if
terms of such contract are today modified by a large number of
legislative enactments (
Van der Berg v
Chairman of the Disciplinary Committee
1991
NR 417). I must add that the employee (X) can have two or more
employers (W, Y, S, T, etc.) at the same time, so long as X has a
valid contract of employment with W, Y, S, and T, and the contracts
of employment permit X to have a multiplicity of employers at the
same time.







[27] It seems to me clear, therefore, that
the hiring or renting of one’s employee to another person, for
reward, in order for such employee to render personal service to that
other person is not only not part of our law of contract of
employment but it also smacks of the hiring of a slave by his
slave-master to another person under
locatio
conductio rei
in Roman Law.







[28] I have taken some time to consider our
law respecting contract of employment at common law and as modified
by statute for a very good reason. It is to show that any form of
business or trade involving the splitting of what
would
otherwise be a contract of employment
into a
number of contracts for the provision of personal service between a
person who is to supply the service and an agency and between the
agency and a client of the agency to whom the person renders his or
her personal service is unknown to our law of contract of employment.
If one may ask, under what Namibian law is the applicant entitled to
enter into a contract of employment with persons and then hire or
rent them, for reward, to third parties? In my opinion, there is no
such law. To start with, in a labour-hire arrangement, there are
protectable, contractual reciprocal rights and duties as between an
employee (X) and his or her employer (Y), i.e. the agency which hires
or rents X to Y’s client (Z); but there are no protectable,
contractual reciprocal rights and duties between X and Z and yet it
is to Z that X renders personal service.







[29] As I say, this arrangement whereby an
employer (the agency) supplies his or her employees to work at a
workplace controlled by a third party (the client) in return for a
fee from the client is unknown, nay, offensive of, our law of
contract of employment at common law or in terms of statute, and
accordingly, such arrangement has no legal basis at all in our law,
and additionally, it violates a fundamental principle on which the
ILO is based, namely, that “labour is not a commodity.”
[Annex to ILO Constitution and Philadelphia Declaration, entitled
“Declaration concerning the aims and purpose of the
International Labour Organization]. Accordingly, I hold that the
labour-hire arrangement has no legal basis in Namibian law in terms
of the common law and statute law and in terms of Namibia’s
international obligation under the ILO Constitution; it cannot,
therefore, create a legal right in favour of any person. And it has
been stated authoritatively that before a person can complain of the
violation of a fundamental right under Article 21 (1), it must be
established that the right claimed is, first, a legal right and
second, that it is a fundamental right. (See Seervai,
Constitutional
Law of India
, 4 ed: p 908.) Seervai was
writing about fundamental rights under the Indian Constitution which,
as I have already said, are almost identical to the fundamental
rights under the Namibian Constitution. In other words, the threshold
that a person, like the applicant, seeking to enforce his or her
Article 21 (1) (j) right must cross is that he or she must establish
that he or she has a legal right to carry on the particular business
or trade; and he or she can only do that if he or she is able to
establish that the activity involved is lawful; in the sense that it
is not a crime or that it has legal basis in our law. As I have
already held, labour hire has no legal basis at all in Namibian law,
and, therefore, it is not lawful.







[30] Both counsel referred to the Court Parliamentary
debates to support their respective positions. According to Mr.
Smuts the Parliamentary debates go to show that all along, before
clause 128 (I use the term “clause” advisedly) was
passed, the then Minister of Labour and Social Services, for example,
stated that in introducing clause 128, “we are merely trying to
regulate what is there.” Mr. Smuts added that the debates were
significant. I rather read that some of the Parliamentarians who
contributed to the debate both in the National Assembly and the
National Council inveighed contumeliously against labour hire ––
mainly because, according to them, labour hire bore a close affinity
with the SWANLA system of yester-apartheid days; a system described
by Mr. Smuts as “pernicious”.







[31] I respectfully agree with Mr. Smuts
that the Parliamentary debates are significant; but in my view, they
may have only very limited significance, and for a different purpose.
It is my opinion that such debates may assist one to understand the
history of the particular legislation, but they cannot be used to
prove any point or support any contention in judicial proceedings.
The following passage from
Trav.-Cochin v
Bombay Company Ltd
(1952) SCR 1112 at 1121,
decided by the Supreme Court of India is insightful and instructive
because it says it all:







“… the use made by … Judges below of
the speeches made by the members of the Constituent Assembly in the
course of the debates on the draft Constitution is unwarranted. That
this form of extrinsic aid to the interpretation of statues is not
admissible has been generally accepted in England, and the same rule
has been observed in the construction of Indian Statutes – See
Administrator-General of Bengal v. Prem Nath Mallick. The
reason behind the rule was explained by one of us in Gopalan
thus: ‘A speech made in the course of the debate on a bill
could at best be indicative of the intent of the speaker, but it
could not reflect the unarticulated mental process lying behind the
majority vote which carried the Bill. Nor is it reasonable to assume
that the minds of all those legislators were in accord.’ Or,
as it is more tersely put in an American case – ‘Those
who did not speak may not have agreed with those who did; and those
who spoke might differ from each other.’ U.S. v.
Trans-Missouri Freight Association.







[32] Thus, as far as I am concerned, after
a statute has been passed the Parliamentary debates that led to the
passing of the particular statute pale into complete insignificance
and absolute irrelevance as far as the law that has been passed is
concerned, as is the case with the Labour Act 2007. From the
excerpts of the
Hansard,
it is clear to me that the minds of all the legislators were not in
accord with that of the Minister of Labour and Social Services.
Indeed, the Minister’s was a lone voice. In sum, as far as
these proceedings are concerned, what we must determine is s 128 of
the Labour Act 2007 as passed by the democratically elected
representatives of the people of Namibia who have the constitutional
power to make and unmake legislation in terms of Chapter 7 of the
Namibian Constitution. What Member of Parliament so-and-so said, or
did not say, can only have interest for historians and researchers –
not a court of law.







[33] Related to the issue of Parliamentary debates is M.
Smut’s argument that the Labour Advisory Council (LAC)
recommended that labour hire be regulated in the terms as set out in
draft regulations submitted to the Ministry of Labour and Society
Welfare. According to Mr. Smuts, by not taking further steps to
implement the LAC draft regulations, the respondents breached an ILO
Convention requiring consultation by the respondents with employer
organizations and unions on changes to, and the development of,
labour legislation. With the greatest deference, this is a very weak
argument and it cannot take the applicant’s case any further.







[34] The LAC was established under s 7 of
the repealed Labour Act, 1992 (Act No. 6 of 1992) and it functioned
in terms of Part III of that repealed Act. It may be said in
parentheses that the Labour Act 2007also provides for the

LAC. Doubtless,
the LAC was, and is, established in line with Article 2 of ILO’s
C144 Tripartite Consultations (International Labour Standards)
Convention, 1976. The, LAC is a statutory machinery for promoting
tripartite social dialogue, involving representatives of Government,
of employers and of workers. The LAC is, as the name suggests, and
in line with ILO standards, a consultative body, having advisory and
recommendary functions. Indeed, as the
chapeu
of s 8 of the repealed 1992 Labour Act provides,







The functions of the Council (LAC) shall be to make such
investigations as it may be necessary, and to advise the
Minister (responsible for Labour) generally or in respect of any
particular case (in any matter listed in that section) … (My
emphasis)







[35] Thus, no one can seriously argue that whatever the
LAC advised or recommended should become law. The LAC could not by
any stretch of legal imagination replace the Parliament, which has
the power to make legislation, or the Minister who has the power to
make delegated legislation in terms of Article 40 of the Namibian
Constitution. In any case, there is nowhere in the ILO’s C144
Convention that enjoins State Parties to the Convention to accept
without question tripartite recommendations and advice. The
Convention does not say so; and the repealed Labour Act 1992 did not
say so, either.







[36] Mr. Smuts’s further related
argument is that in terms of s 126 of the Labour Act, 2004 (Act No.
15 of 2004) the respondents accepted the existence of labour hire in
Namibia. That may be so; but I fail to see how this argument can
possibly assist the applicant. To start with, though the Labour Act
2004 was passed, it never came into operation as was envisaged by s
140 of that Act.
A fortiori,
that Act has been repealed by the Labour Act 2007, and the said s 126
of that Act was not saved by the transitional provisions in the
Labour Act 2007. The result is that as far as a court of law is
concerned, a provision of a statute that has been repealed, as the
said s 126 has been, is totally irrelevant in judicial proceedings as
the present; particularly when determining the constitutionality of a
provision of a statute that is in operation, even if the repealed
provision and the current enforceable one are on the same subject
matter. For this Court to pay any attention to a provision of a
statute that has been repealed would amount to this Court telling the
respondents that the Parliament has no power to make and unmake
legislation. We cannot do so without offending the doctrine of
separation of powers which, as I observed in
Jacob
Alexander v The Minister if Justice and others
Case
No.: A 210/2007 at p31 (Unreported), “is firmly embedded in
Namibia’s constitutionalism.”







[37] In short, by repealing the Labour Act
1992 and the Labour Act 2004 and enacting the Labour Act 2007, the
Legislature has made its choice, which it has the constitutional
power to do, namely to prohibit altogether labour hire in Namibia,
and the Judiciary must, as I say, respect the Legislature’s
choice. Of course, in a proper case, and the present one is not one
of them, the Court may intervene, as I have already said, if a
legislative provision is repugnant to the Constitution. In that case
it would not matter whether the provision sought to be impugned is a
legislation affecting an area of the economy. Section 128 of the
Labour Act 2007 also demonstrates the Parliament’s desire to
prohibit labour hire, not to regulate it, as Mr. Smuts submitted was
the purpose of the LAC draft regulations which the respondents
ignored. To “regulate” a supply of water does not mean
to shut it off altogether; it is to control and manage it.
(Greenberg,
Strout’s Judicial Dictionary
of Words and Phrases
, 6ed) In my opinion,
where an activity has no legal basis and is, therefore, not lawful,
such as labour hire, it would make no sense to make regulations to
control and govern or manage it. For this reason I do not think
Namibia Insurance Association v Government of
the Republic of Namibia and others
2001 NR 1;
and
Mweb Namibia (Pty) Ltd v Telecom Namibia
Limited and others
Case No.: A 91/2007
(Unreported) are of any real assistance on the point under
consideration.







[38] I have amply demonstrated that the
labour hire arrangement has no legal basis whatsoever in our law; it
is, therefore, not lawful, and accordingly, such arrangement cannot
create any legal right in favour of the applicant and,
a
priori
, cannot create a fundamental right in
terms of Article 21 of the Namibian Constitution. In this regard, I
reiterate the point that the core nature and character of labour hire
partake of some of the aspects of letting and hiring of slaves as
chattels under Roman Law, and, therefore, cannot have a lawful place
in Namibia.







[39] For all the above conclusions and reasons therefor,
I respectfully accept the respondents’ contention that in
Namibia labour hire is not a business or trade that is entitled to
the protection of Article 21 of the Namibian Constitution. Having so
held, it serves no useful purpose – indeed, there is no need –
to consider whether the requirements in Article 21 (2), read with
Article 22, of the Constitution have been met.







[40] In a rearguard action, Mr. Smuts
argued that by legislating s 128 (4), the respondents acknowledged
that s 128 (1) limited the applicant’s Article 21 (1) (j) right
in respect of carrying on trade or business of labour hire. My
answer to that is that, as I see it, in providing for a justification
for limiting a person’s right to carry on business or trade of
labour hire in terms of s 128 (4) of the Labour Act, the Parliament
acted in the mistaken belief and under the misapprehension that
labour hire is an economic activity protected by Article 21. Thus,
it is my view that the Parliament only acted
ex
abundanti cautela
when it legislated in terms
of s 128 (4). This legislative excess of caution and supererogation
do not, in any way, detract from my holding that labour hire is not a
lawful activity and is accordingly not entitled to protection under
Article 21 of the Namibian Constitution. If that is the case, as I
say it is, then Article 21 (2), read with Article 22, of the
Constitution does not and cannot apply to labour hire.







[41] Mr Smuts submits that labour hire cannot be equated
with the SWANLA arrangement. Counsel submits further that while the
SWANLA arrangement was deplorable and oppressive and was abolished in
1972, the labour hire arrangement is a form of business engaged in
internationally and in Namibia since 1996. That may be so; but it is
still my considered opinion, and for all the reasons given, that in
Namibia, labour hire is not an economic activity protected by Article
21 of the Namibian Constitution. A great number of the papers
annexed to applicant’s affidavits also appear to extol, as I
intimated earlier on, the economic advantages and benefits of labour
hire for employees of the applicant, including provision of training,
and for the economy of the country. The applicant’s counsel
also added that labour hire is carried on internationally. With
respect, these arguments cannot take the applicant’s case any
further. The same arguments can be made by a person who carries on a
trade or business of trafficking in women and children, and slavery.







[42] Considering the core nature of labour hire, as I
have already described it, coupled with the fact that it has no legal
basis in Namibia and, therefore, not lawful, the respondents are
entitled to reasonably take the view that that activity must be
rooted out and not regulated in Namibia, as they have done by s 128
of the Labour Act; for, as I have intimated previously, it is otiose
to make regulations to regulate an activity that does not exist in
the eyes of the law. In that case, this Court could not say that the
respondents were wrong in prohibiting and criminalizing the activity
as a way of discouraging persons from dabbling in the activity, and
in visiting criminal sanctions prescribed in s 128 (3) of the Labour
Act on those who persist in carrying on the activity. It would be
presumptuous of a court to consider whether the object of s 128 (1)
could have been better achieved by different methods.







[43] For completeness, I turn to consider
the remaining subsection, i.e. subsection (2), of s 128 of the Labour
Act 2007. What s 128 of the Labour Act prohibits is labour hire: the
prohibition does not, according to s 128 (2), apply to the activity
in which X offers a service whereby X matches offers of, and
applications for, employment in which X does not become a party to
any contract of employment that may ensue from X’s services.
This arrangement is undertaken by the recruitment industry (Steve
O’Neill, “Labour hire: issues and responses,”
Research Paper No. 9
2003-04, Dept. of Parliamentary Services,
Australia). In this arrangement in which some companies outsource
their personnel recruitment functions, a specialist recruitment
company (A) provides shortlists of suitable candidates or tests such
candidates and makes appropriate recommendations to the organization
wishing to recruit the candidates (B). A is not a party to any
contract of employment that may be concluded between B and its
employee that may arise as a result of A’s recruiting exercise.







[44] For all the above conclusions and reasons for them,
I hold that s 128 of the Labour Act, 2007 (Act No. 11 of 2007) is not
unconstitutional; that section of that Act is, therefore, valid.
Accordingly, the applicant’s application must fail.







[45] I think this is a case where it is fair and just
that costs should follow the event; and so the respondents must have
their costs in the application.







[46] In the result, I make the following order:








  1. The application is dismissed with costs.



Paragraphs
40.2, 40.5 and 48.4 (in Hiveluah’s affidavit) and paragraph 6,
apart from annexure FM2, (in Musukubili’s affidavit) are struck
out with 60% of costs in favour of the applicant.










____________________________


Parker, J








I agree.








____________________________


Ndauendapo, J








I agree.








____________________________


Swanepoel, AJ










ON BEHALF OF THE APPLICANT: Adv.
D. Smuts, SC



Adv. E. Schimming-Chase


Instructed
by: M B De Klerk & Associates






ON BEHALF OF THE 1ST
AND


4TH
RESPONDENTS:
Adv. M. Chaskalson



Instructed by: The Government Attorney






ON BEHALF OF THE



2ND
RESPONDENT:
No appearance







ON BEHALF OF THE



3RD
RESPONDENT:
No appearance