Court name
Labour Court
Case number
21 of 2011
Case name
National Housing Enterprise v Hinda-Mbaziira
Media neutral citation
[2011] NALC 10





CASE NO











Not
Reportable”







CASE NO.: LC 21/2011











IN THE LABOUR COURT OF NAMIBIA







In the matter between:











NATIONAL HOUSING ENTERPRISE
….........................................................Applicant







vs







MAUREEN HINDA-MBAZIIRA
…...............................................................Respondent











CORAM: UNENGU, AJ







Heard on: 2011 March 17



Delivered on: 2011 April 1



__________________________________________________________________







JUDGMENT



__________________________________________________________________



UNENGU, AJ [1] This is
an application in which Applicant is seeking an order in the
following terms:







1.
Dispensing with the forms and service provided for in the rules of
Court and hearing this application as one of urgency;







2.
Directing and ordering that the execution of the arbitration award in
favour of Respondent, under case number CRWK361/10 handed down on 9
February 2011, be stayed / suspended pending finalisation of the
appeal noted by applicant against the award;







3.
Granting to applicant such further and/or alternative relief as this
Honourable Court may deem fit.’







Meanwhile, Respondent has filed a
Notice of Intention to oppose the application.







[2] The application is a result of an
arbitration award granted in favour of the Respondent by an
arbitrator in the office of the Labour Commissioner on 9 February
2011 in which the Applicant was ordered as follows:







(a)



-
that the Respondent reinstates the Applicant as of the 1 March 2011;



-
that the Respondent gives a 6 months written warning to Mrs
Hind-Mbazira;



-
that the Respondent also reprimand Ms Alex and Mr Shimuafeni on the
issue of the Loan to Ms Kavejandja;



-
that Respondent pays to the Applicant an amount equal to her 4
months’ salary; i.e. N$186.390.12 and



-
that the Respondent sends the Applicant on a refreshing training on
matters that the Respondent feels Applicant needs help.







Or
alternatively







(b)
that the Respondent pays the Applicant salary from 16 September 2009
to 28 February 2011 i.e. N$46 597.53 x 17 = N$792 158.01;



-
plus an amount equal to 12 months for early termination and
compensation for the dismissal i.e. N$46.597.53 x 12 = N$559.170.36.







If
there have been increments to this position during the period the
Applicant has been dismissed, the calculations should be adjusted to
such increment.”







[3] On 18 February 2011 applicant
through its legal representative sent a letter to Employment
Solutions Consultants the representative of the respondent in the
following terms:







Our
Ref: RM/fas/57608 18 February 2011



Your
Ref:







Employment
Solutions Consultants



Windhoek







Att:
Podewiltz Telefax: 309653







Dear
Sir,







ARBITRATION
AWARD – NHE // HINDA







We
are instructed to inform you that our client’s intend appealing
against the arbitration award.







Further,
in the event of our client being successful in such appeal, our
client herewith wishes to inform that it intends to choose the
alternative order indicated in such award, under (b) thereof.







In
as far as enforcement of the award is concerned, please inform
whether your client is prepared to consent to a stay of the execution
of the award pending finalization of the appeal.







In
the event that your client is not consenting to a stay, kindly
indicate what security your client can provide for repayment of the
amount as per the award, with interest, so that our client can
consider such security. If our client is satisfied that such security
is sufficient, our client could than pay over the amount as per the
award, to be repaid in the event of our client being successful with
the appeal. It is for that purpose that sufficient and proper
security is to be provided by your client, to our client’s
satisfaction.







Alternatively
our client could pay the amount as per the award into our trust
account, for investment in an interest bearing account, pending
finalization of the appeal.







In
as far as the reinstatement order is concerned, please inform if your
client insist on such portion of the award.







Your
soonest reply is awaited.







Yours
faithfully







KOEP
& PARTNERS



R
T D MUELLER







[4] Employment Solutions Consultants
did not reply and as a result another letter dated 24 February 2011
was addressed to the same Employment Solutions Consultants for the
attention of Mr Podewiltz, the legal representative of Respondent:
The contents of this letter read as follow:







Our
Ref: RM/fas/57608 24 February 2011



Your
Ref:







Employment
Solutions Consultants



Windhoek







Att:
Podewiltz Telefax: 309653







Dear
Sir,







ARBITRATION
AWARD – NHE // HINDA







Our
letter of 18 February 2011 refers.







We
have not received a response thereto. Unless we receive a reply to
the contrary, also properly addressing the issues raised in our
previous letter, by close of business tomorrow, we will accept that
your client consents to the stay of enforcement of the award, pending
finalization of the appeal, in all aspects.







Yours
faithfully







KOEP
& PARTNERS



R
T D MUELLER



(Windhoek
office)”







[5] In his letter to the legal
representative of the applicant, Mr Podewiltz of Employment Solutions
Consultant, informed the applicant that the arbitration award was
made an order of the High Court of Namibia under case number LC 21/11
in accordance with the provisions of section 87(1)(b) of the above
Act 2007, (Act 11 of 2007) and attached a copy of the order for the
applicant’s record. In addition, Mr Podewiltz, on behalf of his
client requested compliance of the award by the applicant. He
indicated that the respondent will seek enforcement of the award if
not complied with soon by the applicant.







[6] Thereafter, further correspondence
were exchanged between the two legal practitioners, but they failed
to reach an agreement on the issues of security and the stay of the
execution of the arbitration award pending the appeal.







[7] Consequently, the applicant filed
its Notice to appeal the arbitration award on 4 March 2011, four days
after the arbitration award was converted into an order of the Labour
Court in terms of section 87(1)(b) of the Labour Act, supra.







[8] Upon receipt of the Notice of
Appeal by the applicant, Mr Podewiltz, the legal practitioner of the
respondent addressed another letter dated 8 March 2011 for the
attention of Mr Mueller, the legal practitioner of applicant and
marked it “EXTREMELY URGENT”. In this letter Mr
Podewiltz, in paragraph 2 thereof wrote as follows: I quote verbatim







To
date hereof no application to stay the award was made. Our client, in
view of the provisions of section 89(6)(b) of the Labour Act, still
insist on compliance with the High Court order. We have already
reminded you that your client is in contempt. It is our understanding
that our client is intending to approach the Namibian Police in this
week to lay a criminal charge but does not wish that this matter goes
that far. We are also informed that the matter will be handed over to
a Law firm for civil proceedings to be instituted against NHE to
recover the amount due plus costs.







In
view of the above, kindly revert to us with regard to your stance on
compliance within three (3) days from date hereof. In the event of
failure to reply we will accept that the company does not wish to
adhere to the High Court order and action will be taken without
further notice to you.”







[9] It would appear though that the
applicant, after receiving this letter, realized that the respondent
was serious and adamant to enforce the order. Seemingly, in view of
the threats of the contempt of court, the laying of a criminal charge
and the handing over of the matter to Law firm for civil proceedings,
the applicant decided to approach the Court on an urgent basis to
apply for the stay/suspension of the arbitration award pending the
outcome of the appeal lodged.







[10] Mr Vinson Hailulu, the Chief
Executive Officer of the applicant disposed to the founding affidavit
of the applicant. The confirmatory affidavits were deposed to by
Messrs Mueller and Alex Shimuafeni. Ms Maureen Hinda-Mbaziira deposed
to the opposing affidavit. As indicated above, this application is
being opposed and as such was set down for hearing on 17 March 2011
at 09h00. At the hearing, Mr Barnard appeared for the applicant and
Mr Ueitele for the respondent. Both counsel submitted heads of
argument which they amplified with oral submissions during the trial.











[11] At the commencement of the
proceedings, Mr Barnard informed the Court that the application was
filed late for a day or so, and that he was asking for condonation
thereof. Mr Ueitele did not object to the application for
condonation. Therefore, condonation was granted. Mr Barnard again
informed the Court that the applicant would present its full case
first whereafter the respondent would follow. The correct approach
was to allow counsel for respondent to begin with his points in
limine
and thereafter to give the applicant the opportunity to
reply. Be that as it may. Mr Barnard presented the case for applicant
first and Mr Ueitele followed thereafter. In this judgment I shall
start with the points in limine raised by counsel for
respondent and then, if necessary, shall proceed to deal with the
merits of the application itself. The respondent in her heads of
argument raised the following points in limine:







The
Respondents submits that the points,
in
limine

below in that the application before this Honourable Court is not
competent for the following two reasons:








  1. It
    is against an award made an order of the Court;









  1. An
    appeal of an award made an order of the Labour Court is not
    competent unless the Labour Court Order is first withdrawn,
    rescinded, or set aside.








Further,
in paragraph 7 of the Heads of Argument, Respondent submits that
making an award an order of this Court in accordance with section 87
give rise to certain legal consequences. Once an award has been made
an order of Court, a change takes place in the legal status of the
award. The award becomes an order of this Court like any other order
of this Court.”







[12] This argument was amplified by Mr
Ueitele with oral submissions. He argued that, once an award of the
arbitrator has been made an order of the Court, it becomes an order
of the Court. Therefore, he contended, the right thing to do, is for
the applicant first to apply for the rescission of the order of the
Court, and, if successful, then to apply for the stay of the award.
In support of his objection, Mr Ueitele referred the Court to South
African Labour Court cases of Potch Speed Den v Rajah (1999)
20 ILJ 2676 (LC) and Blue Marine (Pty) Ltd v CCMA e-a, Case
No. J 5372/2001. In the Potch Speed Den case supra, Zondo, J
said the following about an award which was made an order of the
Court.







In
fact it is wrong to speak of award once an award has been made an
order of Court. It is more accurate to speak of an order of this
Court.”







[13] On his part, Mr Barnard for the
applicant applied for an amendment to the Notice of Application by
insertion of an additional prayer in the following terms:







2.2In
the alternative directing and ordering that the execution of the
Court order of 25 February 2011 bearing Case No. 21/11 that reflected
the award of 9 February 2011 in terms of the provisions of section
87(1)(a) of the Labour Act No. 11 of 2007, be stayed/suspended
pending the finalization of the Appeal noted by the Applicant.”







This was done on the authority of the
matter between Nedbank Namibia Limited versus Jacqueline Wanda
Louw
, Case No. LC 66/2010 (Unreported) delivered on 30 November
2010. This is a Namibian Labour Court case by Henning, AJ (as he then
was). Further, Mr Barnard submitted that South African Labour cases
only have persuasive force, hence, he urged the Court to dismiss the
point in limine.







[14] However, Mr Ueitele reiterated
and said that no local authority does exist to assist the Court in
disposing of the matter, and indicated that respondent objected to
the proposed amendment to the Notice of Application by the applicant.
He further said, that the facts of the Nedbank case cited by
the applicant and those of the present matter differed, and stated
that the point in limine stood well. He intimated that the
applicant should apply for a rescission of the Court Order.







[15] I think there is substance in the
points raised by the respondent. The problem the applicant has is the
request to the Court in paragraph 2 to direct and order the execution
of the arbitration award in favour of the respondent, under case
number CRWK 361/10 handed down on 9 February 2011, to be
stayed/suspended pending the finalisation of the appeal noted by
applicant against that award. That award is no more an award of the
arbitrator in the office of the Labour Commissioner, but an order of
the Court as from 25 February 2011, when it was filed in terms of
section 87(1)(b) of the Labour Act, (Act 11 of 2007). Section 87 of
Act 11 of 2007 provides as follows:








  1. An arbitration award made in terms of
    this Part –









  1. ..........................









  1. becomes order of the Labour Court on
    filing the award in the Court by –









  1. any party affected by the award; or









  1. the Labour Commisioner.




This is what happened in the present
matter. Therefore, I am inclined to agree with the sentiments
expressed in the Labour case of Potch Speed Den v Rajah
(supra) cited by counsel for respondent where it states that it is
wrong to speak of an award once the award has been made an order of
the Court, that is more accurate to speak of an order of the Court.







[16] I note that in the heads of the
respondent it is stated that the applicant was advised orally on 14
February 2011 that the respondent intended to make the arbitration
award an order of Court. The oral notice to the applicant was
improper and cannot be sufficient Notice for respondent to obtain an
order from the Labour Court. This is an issue which the applicant can
pursue. This happened, while the applicant and the respondent were
busy exchanging letters between each other. Besides, Mr Podewiltz, at
some stage, was absent from town, and also the fact that section
89(2) affords a right to the applicant the time to appeal against an
arbitrator’s award through subsection (1), by noting an appeal
in accordance with the Rules of the High Court, within 30 days after
the award being served on it. In my view, the respondent was in a
hurry to file the award for an order of Court. The applicant still
had a few days left within which to note the appeal against the award
when the award was made an order of the Court on the 25 February
2011.







[17] That I just said in passing. I
cannot reverse the order even if I regard the order to have been
obtained on an irregular basis. The applicant sought a relief against
an arbitration award of the arbitrator in the office of the Labour
Commissioner at the time when that award was already converted into
an order of the Labour Court. In those circumstances this Court does
not have a choice other than to upheld the points in limine
raised by the respondent.







[18] Accordingly,








  1. the application is dismissed.









  1. There is no order as to costs made.




















_______________________



UNENGU, AJ















COUNSEL ON BEHALF OF THE APPLICANT:



Adv. Barnard







Instructed by: Koep &
Partners











COUNSEL ON BEHALF OF THE
RESPONDENT:



Mr Ueitele







Instructed by: Ueitele &
Hans Legal Practitioners