NO. LCA 48/2007
TOURISM BOARD APPELLANT
TJINO KAUAPIRURA-ANGULA RESPONDENT
representation at disciplinary hearings
disciplinary code does not allow for legal representation during a
disciplinary hearing – submission that denial of legal
representation renders disciplinary hearing procedurally unfair.
have no absolute right (or an entitlement as of right) to legal
fora other than
courts of law.
at disciplinary hearings are proceedings at administrative tribunals
(which are not courts of law).
18 of the Constitution of Namibia requires administrative bodies and
administrative officials to act fairly and reasonably – these
provisions do not contain an entitlement to legal representation at
of the various role players during disciplinary hearings should be
kept separate as far as possible having regard inter
alia to the size and
structure of managerial employees of a specific employer.
procedurally unfair or irregular where witness also presented
evidence at the disciplinary hearing.
NO. LCA 48/2007
LABOUR COURT OF NAMIBIA
the matter between:
TOURISM BOARD APPELLANT
provided on: 2009.03.27
J:  This
is an appeal against the judgment of the chairperson of the district
labour court. On 21 November 2008 this court made the following
appellant’s appeal succeeds. The order of the district labour
court is set aside and substituted with the following order: The
complainant’s claim is dismissed.”
indicated that reasons would be provided in due course.
now are the reasons.
respondent was charged at a disciplinary hearing with four offences,
and disregard legitimate work-related orders:
and subsequently 09th
July 2004 you disgracefully and disrespectfully refused to be
attached to Wilderness Safaris as part of the nursery programme, a
training initiative by NTB.
discourteousness and insolence: During the second attempt, on the 09
July 2004, while Mr Nekongo was trying to explain to you the nursery
programme during a meeting between you, Mr Nekongo and myself, you
become emotional. You behaved rudely, shouted and pointed fingers to
me and used bad language in the process as well.
and offensive language: On the said dates you used insulting and
offensive language towards me when Mr Nekongo introduced the topic.
20 July 2004 you assault me. In the process you threw books and
objects, which were on my table and I was hurt in the process”.
respondent was convicted of all four charges and the chairperson of
the disciplinary hearing recommended her dismissal. Appellant
subsequently dismissed the respondent.
issue of legal representation
Kauta who appeared on behalf of the respondent in this Court
submitted inter alia
that the disciplinary hearing was procedurally unfair since the
respondent was denied any legal representation.
12.6.1 of appellant’s Human Resources Policies and Procedures
Manual states that a disciplinary action is an internal affair which
does not allow any outsider to represent its employees during a
disciplinary hearing “unless
if circumstances necessitate”,
then such an employee has to substantiate the grounds thereof which
shall be subject to appellant’s approval. Appellant recognizes the
right of representation by a fellow employee or a shop-steward.
representative from a trade union recognized by the appellant may
attend a disciplinary hearing only as an observer. Legal
representation is not allowed during a disciplinary.
chairperson of the disciplinary hearing dealt with the issue of
representation in his findings where he stated that the respondent at
the outset of the disciplinary hearing requested to be represented by
a Mr Katuuo of the Public Service Union of Namibia (PSUN), that the
parties were referred to the provisions of Clause 12.6 (supra),
that Mr Katuuo made representations in support of outside
representation for consideration by the appellant, that he allowed
the employer (appellant) “to
caucus” and make a
decision regarding representation, that Ms Kankondi-Kaiyamo
(presumably on behalf of appellant) confirmed afterwards that Mr
Katuuo could act as an observer but not as a representative, and that
the respondent thereafter decided to represent herself at the
appears from the testimony of the chairperson (in the district labour
court) that he was informed (at the disciplinary hearing) that the
reason why appellant refused outside representation was the fact that
the respondent could not explain why she could not find internal
representation which was her first option. It appears from the record
that Mr Katuuo subsequently excused himself from the disciplinary
was further submitted (on the authority of National
Union of Mineworkers & Another v Blinkpan Collieriers Ltd, (1986)
7 ILJ 579) that Mr
Katuoo’s observer status vitiated the fairness of the process.
industrial court in Blinkpan
582 J – 583 A
stated that “proper
representation does not mean mere physical but impassive presence of
another. A representative should at least be able to assist and
alleged offender in the preparation and presentation of his case …
is not done or seen to be done if such representative does not at
least … address the tribunal on the merits and punishment;”
passage must however be read in context. The employer’s code in
contrary to appellant’s code, provided that a works council
representative must be present at all investigations and proceedings
that could lead to a final warning or dismissal. Such a
representative had to confirm that the employee has had a fair
the representative did not consult with the employee, did not
question any witnesses on his behalf, did not assist the employee in
his defence, and there was no indication what actual role the
representative had played.
Hamata & Another
v Chairperson, Peninsula Technikon Internal Disciplinary Committee &
Others (2002) 23 ILJ 1531 (SCA)
the Supreme Court of Appeal (in South Africa) denied the existence of
an absolute right (or an entitlement as of right) to legal
fora other than
courts of law.
Marais AJ at 1536 A –
C emphasized this
point as follows:
has always been a marked and understandable reluctance on the part of
both legislators and the courts to embrace the proposition that the
right to legal representation of one’s choice is always a sine qua
non of procedurally fair administrative proceeding. However, it is
equally true that with the passage of the years there has been
growing acceptance of the view that there will be cases in which
legal representation may be essential to a procedurally fair
administrative proceeding. In saying this, I use the words
‘administrative proceeding’ in the most general sense, i.e. to
include, inter alia, quasi-judicial proceedings. Awareness of all
this no doubt accounts for the cautious and restrained manner in
which the framers of the Constitution and the Act have dealt with the
subject of legal representation in the context of administrative
action. In short, there is no constitutional imperative regarding
legal representation in administrative proceedings discernible, other
than flexibility to allow for legal representation but, even then,
only in cases where it is truly required in order to attain
the complaint related to a refusal to allow the first appellant to be
represented by a legal practitioner of his choice in a disciplinary
hearing. This refusal was based upon a particular construction
regulating representation at disciplinary proceedings.
Court analysed and considered this rule and concluded that the
internal disciplinary committee (IDC)) had a discretion to allow
Court continued as follows at 1539 A:
does not mean, of course, that permission to be represented by a
lawyer who is neither a student nor a member of the staff of Pentech
is to be had simply for the asking. It will be for the IDC to
consider any such request in the light of the circumstances which
prevail in the particular case.”
the Court continues as follows at 1539
C – D:
doing so, Pentech’s legitimate interest in keeping disciplinary
hearing ‘within the family’ is of course also to be given due
is trite law that the proceedings at disciplinary hearings are
proceedings at administrative tribunals (which are not courts of
Dabner v South
African Railways and Harbours 1920 AD 583; Cuppan v Cape Display
Supply Chain Services 1995 (4) SA 175 D).
CJ in Minister of
Public Works & Others v Kyalami Ridge Environmental Association &
Another (Mukhwevho intervening) 2001 (3) SA 1151 (CC) at 1184 D - E
expressed himself as follows in respect of procedural fairness before
procedural fairness depends in each case upon the balancing of
various relevant factors, including the nature of the decision, the
‘rights’ affected by it, the circumstances in which it is made
and the consequences resulting from it.”
also Bel Porto
Governing Body and Others v Premier, Western Cape, And Another 2002
(3) SA 265 (CC).
chairperson of the district labour court, in my view erred when he
held that in terms of the provisions of Article 12 of the
Constitution of Namibia, the respondent was entitled to legal
representation during her disciplinary hearing. The case law
referred to by the magistrate do not support his finding since all
those decisions dealt with proceedings in courts of law (magistrates’
18 of the Namibian Constitution dealing with administrative justice
requires that administrative bodies and administrative officials
“shall act fairly
These provisions do not, (contrary to Article 12 dealing with civil
rights or criminal charges), contain an entitlement to legal
representation at administrative tribunals.
am of the view that the appellant did not act unreasonably and
unfairly by requiring compliance with the provisions of its own code
regarding representation during this disciplinary hearing and
provided, in my view, an acceptable explanation why ‘outside’
not allowed. The respondent decided to represent herself and
subsequently participated in the proceedings by cross-examining
witnesses and testifying herself.
charges faced by the respondent, in my view, were not complex and the
fact that she eventually went through the proceedings unrepresented
did not in the circumstances vitiate the fairness of the proceedings
in the disciplinary hearing.
was submitted on behalf of the respondent that the evidence necessary
to establish charge 3 would at the same time confirm charge 2, that
the conviction on both counts in the disciplinary hearing amounted to
a duplication of convictions and for this reason the findings in the
disciplinary hearing were unfair. I agree that a conviction of these
two counts may amount to a duplication of convictions but this fact
alone does not necessarily impact upon the fairness of the findings
in the disciplinary hearing.
was further submitted that Ms Thude, a witness called on behalf of
the appellant in the disciplinary hearing, assumed the roles of
prosecutor and witness”.
I do not see any fundamental distinction between the roles of
complainant and witness since a complainant is essentially a witness
which a litigant may call to testify in proceedings.
Hailemo v Security
Force Services NLLP 1998 (1) 85 NLC at 92 – 93
O’Linn J stated the following:
the employer is a firm with several persons in its management and
with a considerable number of employees, as appears to be the
position in the instant case, one would expect a written
record to be kept of the disciplinary hearings and the function of
judge, prosecutor, investigator, and witness separated as far as
practically possible. In the instant case Mr Katjito should have
been a witness, and/or the person presenting the evidence at the
enquiry with a relatively impartial person in a senior managerial
position, as the person who had to exercise the quasae – judicial
function of deciding the important issues contained in sections 45
and 46 of the Labour Act.”
Court in Hailemo
(supra) found that
Mr Katjito acted as investigator, witness, prosecutor and judge and
found that in those circumstances that the proceedings in the
disciplinary hearing were unfair.
Thude testified during cross-examination that the appellant had a
small management staff of four persons including the chief executive
officer and that she formulated the charges in consultation with the
human resources department since the other mangers were not
available. This was in compliance with their human resources
fact that Ms Thude, the complainant, presented the evidence at the
enquiry, cannot per
se be considered to
be procedurally unfair or irregular.
where it was not considered irregular for a witness, to present the
evidence at an enquiry, as well).
ideal situation is however to separate the functions of the various
role players during disciplinary hearings.
acts of misconduct
Shareen Thude testified that she was the strategic executive manager
(marketing) of the appellant. On the day in question she was inside
her office busy preparing for a strategic session to be held the next
day when respondent entered her office demanding a report in writing
why a certain tour operator had been selected to go Luanda (in order
to obtain market-intelligence) instead of respondent herself and why
she (respondent) was not permitted to go to Brussels as was allegedly
requested by the then Namibian ambassador to Belgium. Respondent
apparently needed this report in writing in order to provide it to
the Ombudsman. Ms Thude testified that she informed respondent that
she was very busy at that stage and that she would provide respondent
with the requested report in due course. Respondent persisted to
have the report immediately and threatened to see the Deputy Minister
should the report not be provided to her. Ms Thude testified that
she told the respondent that she simply did not have the time at that
stage to provide her with the requested report whereupon respondent
became very angry. She tried to calm the respondent who in response
started with derogatory remarks and said:
know you are treating me like shit and you came with these racist
manners, and you are just like the Boers”.
Ms Thude asked
her to sit down whereupon respondent grabbed a “note
pad cube” and
threw it towards her face. She covered her face with her hand and
the object cut her hand. She testified that at stage respondent
really started to scream at her. Her secretary and the secretary to
the CEO then entered her office. Ms Mbako the personal assistant to
the CEO asked her what was going on and respondent kept on saying
woman she is treating me like shit and you know I don’t know who
she thinks she is”.
to come around her table and respondent then threw the telephone
directory and other books at the face of Ms Thude. Ms Thude
testified she asked Ms Mbako to take the respondent out of her
office. The CEO Mr Shilongo intrigued to know what the row was
about, was informed by Ms Thude what happened. He then ordered that
the police be called and respondent was subsequently removed from the
premises by the police.
Thude further testified that respondent was at one stage requested to
attend a nursery programme at a tour operator in order to acquaint
herself with the operational intricacies of a tour operator. The
respondent refused, explaining that she was acquainted with tour
operators, she didn’t need it and felt that she was being treated
like a child. She testified that on 9 January 2004 when Mr Nekongo
(head of personnel of respondent) in a second attempt tried to
explain to respondent the nursery programme she started to behave
rudely, shouting insulting and offensive language to the following
the things that she said is that she called Mr Nekongo a ‘moffie’
and that he is just my ‘moffie’ and he is a stooge and he is
stupid. And she said to me that she is not my bitch and I am just a
‘hotnot’ and you know like these Coloureds and racists and I am
behaving just like “Boere” and really using all these derogatory
language. At one stage, we said to her, look, this is the programme,
it is not my programme or Mr Nekongo’s programme, it’s a
programme that was actually, it was part of our strategy and it was
also adopted by our Board of Directors.”
Thude testified that respondent walked out and then returned and
respondent “had her
hand like this as if to slap me and I caught her hand”.
further testified that the respondent had a history of ‘turbulent’
behaviour, had been involved in incidents where she swore at her
previous supervisor and had “various
her colleagues. Ms Thude testified that the day that respondent
threw objects at her she was seated behind her desk and had in no way
provoked the respondent. She did not retaliate because she knew it
would have been improper for her as supervisor to do so.
Omarano Mbako, the personal assistant to the chief executive officer
testified that on 20 July 2004 she heard loud voices from the office
of Ms Thude. She went to investigate and found respondent there. Ms
Thude was seated behind her desk and respondent was standing and
shouting. She asked what was going on and respondent replied in the
Otjiherero language “I
have told you people that I will beat this woman one day.
This woman is full
of shit”. The
respondent grabbed the telephone and wanted to throw it at Ms Thude.
Ms Mbako prevented her from doing so. She then took the respondent
out of the office. She testified that she saw Ms Thude bleeding on
one of her hands and a lot of note pads were laying behind Ms Thude.
confirmed that Ms Thude did not retaliate but only requested her to
take respondent out of the office.
Christine January testified that she was as the time of the incident
on 20 July 2004 employed by appellant as marketing secretary for Ms
Thude. That morning the respondent, uninvitedly, entered the office
of Ms Thude while Ms Thude was busy on the telephone. She could hear
that respondent asked Ms Thude to do something for her. Ms Thude
replied that she was busy at that stage and that respondent could
leave the document on her table as she would deal with it at a later
stage. Respondent replied that she didn’t want to wait and wanted
Ms Thude to deal with the matter immediately. Ms Thude again replied
that she was busy and then she heard respondent started screaming at
Ms Thude telling her not to play with her as she did not know whom
she was dealing with. She heard something fell. Ms Mbako came and
entered the office and asked respondent why she was screaming. Ms
Thude was seated on her chair behind her desk and on the opposite
side of the desk Ms Mbako and respondent were standing next to each
other. Ms Mbako tried to calm down the respondent who was furious at
that time and asked how could Ms Thude ask her who she thought she
was to tell Ms Thude what to do. Respondent wanted to move around
the table but was stopped by Ms Mbako. She testified that Ms Thude
asked Ms Mbako to take respondent out of her office.
Tuhafeni Nekongo, the head of Human Resources, testified that the
management of appellant initiated a programme called a nursery
programme in order to help their employees to disseminate proper
information to tourists. In order to achieve this employees were
attached to different institutions which provide tourism services.
During July 2004 he approached the respondent and informed her that
Wilderness Safaris was ready to take in the next employee and before
he could finish respondent said:
told you that I am not going to take part in fucking Shareen’s
nursery programme. You are being manipulated by Shareen. You are a
‘moffie’, you behave like a ‘moffie’. I will deal with
Shareen. Shareen has to write it to me first before I participate in
respondent walked out of his office. The next morning on the 9th
of June 2004 he accompanied respondent to the office of Ms Thude and
introduced the topic of the nursery programme. The respondent
repeated that she was not going to participate in Shareen’s
told Ms Thude that she would “deal
with” Ms Thude
pointing her finger at Ms Thude and tried to press her finger against
the forehead of Ms Thude. Ms Thude prevented her from doing so. The
respondent then left the office of Ms Thude. The respondent did not
mention at that stage any other reason why she was not willing to
participate in the nursery programme which was due to start on 12
July 2004. At a later stage in a letter dated 13 July 2004
respondent explained that she could not participate in the nursery
programme due to health reasons (apparently back problems). Mr
Nekongo testified that respondent’s placement with the tour
operator would have been in Windhoek and would have entailed an
which would not have negatively affected respondent’s health.
respondent testified that she was employed with appellant as a
promotion officer which entailed that she had to co-ordinate with
embassies and high commissions abroad and also had to deal with
domestic tourism promotion. Respondent testified that she received
an invitation from the Namibian Embassy in Belgium to open a “tourism
desk” in Belgium
but that her manager Ms Thude did not allow her to go to Belgium and
respondent realised that Ms Thude did not want her to participate in
any activities as promotion officer but wanted to utilise her only as
a store lady. She testified that when she complained about this Ms
Thude said that it was costly and respondent should not be asking her
about those matters. She afterwards approached Mr Nekongo who in
turn referred her back to Ms Thude. She returned at a later stage to
Ms Thude and confronted her but Ms Thude was not in a “mood
to give her a proper answer”. She
testified that she went to the office of Ms Thude because she was
requested by the Deputy Minister of Environment and Tourism to get a
reply from Ms Thude in writing why she was not allowed to travel to
the charge relating to her refusal to attend a nursery programme
(charge 1) respondent testified that the nursery programme“was
not designed for her”,
that Mr Nekongo informed her that another employee, Mr Kavena
Kakwashivi, was suppose to attend the program but that he was not
willing to go to Wilderness Safaris and had told respondent that she
had to go there instead. She refused stating that it was too short a
notice; that she already “came
from the same training”;
that she did not need it, and that she had a back problem and was
not suppose to carry heavy articles. This concluded her evidence in
chief in the district labour court. Respondent never testified about
the other charges (charge 2 and 3) and never testified about the
incident during which she allegedly assaulted Ms Thude.
the proceedings in the district labour court it was never put during
cross-examination to Mr Nekongo or Ms Thude that the respondent
raised the issue that she could not have attended for health reasons.
It was never put to Ms Thude or Mr Nekongo that the respondent had
been requested to attend the nursery programme because another
employee had refused to go on such programme. The respondent’s
version regarding the charge of assault was also never put to Ms
Thude during cross-examination by respondent’s legal
representative. It is trite law that failure to cross-examine or
failure to put the opponents view in respect of a specific fact in
issue may prevent a party from later disputing the evidence of a
witness who testified about such issue.
Goagoseb v Arechenab
Fishing and Development Co. (Pty) Ltd NLLP 1998 (1) 142 NLC ).
respondent during cross-examination in the district labour court
denied the allegations contained in charges 2, 3 and 4.
was confronted with a passage of the record in the disciplinary
hearing and her reply thereto. The following appears from the record
of the district labour court.
you agreed with what the witness said. ‘Ja I was trying maybe to
throw something to her or whatever because she (inaudible) laying
down on the floor and all kinds of things’….”
Daniels, (an external chairperson at the disciplinary hearing) in
respect of the charge of assault, stated that the evidence of Ms
Mbako was conclusive that an assault, in the form of a telephone
directory that was thrown at the face of Ms Thude took place, that
the respondent had threatened Ms Thude with a telephone and had
threatened to physically assault her. He further found that the
respondent confirmed the evidence of Ms Mbako relating to the assault
incident in the office of Ms Thude.
is further clear from the answer given in reply to a question during
the proceedings in the district labour court that respondent admitted
the assault on Ms Thude. It is further significant during the
proceedings in the district labour court that respondent never
testified in her evidence in chief about the assault on Ms Thude and
it was furthermore never denied, during the cross-examination of Ms
Thude, that the respondent assaulted her.
submission made on behalf of the respondent that the incident should
be seen as an altercation between two female employees is in my view
not supported by the facts. On the contrary, it has in my view been
proved beyond doubt that the respondent was the aggressor the day she
assaulted Ms Thude and that Ms Thude did not in any way retaliate.
chairperson of the district labour court misdirected himself when he
found that none of the witnesses told the court who started the
was never in dispute that Ms Thude’s hand was bleeding from an
injury sustained when an object was thrown at her face (the
respondent admitted throwing an object at Ms Thude !).
chairperson of the district labour court furthermore misdirected
himself by embarking upon speculation that there was a possibility
that Ms Thude’s finger could have been cut when respondent tried to
dispossess her of a certain report. This is farfetched. Respondent
never testified about such an incident and it was never put to Ms
Thude that this was the manner in which she could have been injured.
respect of the charge of insubordinance the chairperson of the
disciplinary hearing accepted the testimony of Mr Nekongo whom he
described as an honest witness who presented his testimony in a clear
and factual manner. The testimony of the respondent was rejected as
being inconsistent. The respondent herself was described as showing
high levels of aggression and intolerance at the hearing. It was
submitted on behalf of the respondent that respondent’s
explanations why she could not have attended the nursery programme
were common cause and that no issue was taken by appellant in the
hearing in the court a quo. However the respondent never disputed
the evidence that when she was informed of the necessity of attending
the nursery programme she never mentioned any reason why she could
not have participated in the nursery programme except to state that
she was not going to participate in Shareen’s “fucking
It was only after the programme was scheduled to have started that
an explanation was offered by the respondent. It has furthermore not
been shown where the chairperson of the disciplinary hearing had
misdirected himself in rejecting the testimony of the respondent in
respect of this charge. The chairperson of the district labour court
misdirected himself (on the facts) by finding that no evidence was
led that the respondent refused to attend a training programme in
respect of which she received instructions to attend.
respect of charges 2 and 3 it was submitted on behalf of the
respondent that viewed in proper context the words directed to Ms
Thude were directed to the programme and not to herself and that the
language used in respect of the conduct of Mr Nekongo did not amount
a subordinate uses words to the effect that she is not the “bitch”
of her superior or that her superior is a “hotnot”
and a “racist”
and behaves like “Boere”,
that her superior treats her like “shit”,
that she would beat up her superior because the superior is full of
and that she would “deal
superior, simultaneously pointing a finger at her superior, then to
argue that the subordinate was not grossly discourteous, insolent,
insulting, and offensive would be to close one’s eyes (and ears)
(figuratively) to the obvious.
chairperson of the district labour court again misdirected himself
(on the facts) by holding that Ms Thude intended to deliberately
frustrate the respondent, showed discourteous and insolent conduct
towards the respondent and had set a bad example to the respondent.
chairperson of the district labour court further misdirected himself
by justifying the conduct of the respondent by stating that because
of the behaviour of Ms Thude (referred to supra) respondent “could
not have distinguished that her reaction to such words will (sic)
constitute … a misconduct”.
my view respondent’s conduct justified the conviction by the
chairperson of the disciplinary hearing on either of charges 2 or 3.
If it is accepted that there was a duplication of convictions it
wouldn’t make any difference since the conviction on each charge
was a dismissable offence.
is not disputed that the respondent had on a previous occasion during
a disciplinary hearing been convicted and sentenced to a final
written warning. This written warning was valid for a period of 12
months and was signed by the respondent on 25 March 2004. This
warning stated inter
alia that should
respondent commit any other serious offence, whilst the warning
remained effective this would result in the immediate termination of
the services of the respondent.
one of the four offences of which the respondent had been convicted
of in the disciplinary hearing is a serious and dismissable offence.
respondent claimed in her particulars of complaint “reinstatement
and compensation for loss of income plus damages”.
No specific amount was claimed in respect of “compensation”.
chairperson of the district labour court ordered the reinstatement of
respondent and compensation in favour of respondent in the amount of
N$538 732.32 “as
her net salary from November 2004 to 20 March 2007”.
evidence was presented at the proceedings of the district labour
court to support such an amount.
any event in the light of my finding confirming the dismissal of the
respondent by the appellant the relief claimed by the respondent
becomes academic. The respondent is not entitled to any relief (i.e.
reinstatement and/or compensation).
BEHALF OF THE APPELLANT: ADV. HEATHCOTE
by: KOEP & PARTNERS
BEHALF OF THE RESPONDENT: MR KAUTA
by: DR WEDER, KAUTA & HOVEKA INC.