Court name
Labour Court
Case number
34 of 2010
Case name
Namibia Dairies (Pty) Ltd v Hangombe and Another
Media neutral citation
[2011] NALC 4





















CASE NO.: LCA
34/2010



IN THE LABOUR
COURT OF NAMIBIA







In the matter
between:










NAMIBIA
DAIRIES (PTY) LTD

….....................................................
APPELLANT







and










ELIAS
HANGOMBE

…...........................................................1st
RESPONDENT







REINHOLD
NAKALANGA

…...................................................
2nd
RESPONDENT










CORAM:
MULLER
J







Heard
on:
4
February 2011



Delivered
on:
4
February 2011










REASONS FOR
JUDGMENT



MULLER,
J.:
[1]
Three employees of the appellant were dismissed after a disciplinary
hearing. These three were the two respondents as well as a certain
Nikanor. The disciplinary hearing was held on 26 November 2008 and
presided by an employee of the appellant.



The respondents
unsuccessfully appealed against their dismissal. Thereafter each the
respondents filed a complaint in the District Labour Court on the
ground of an unfair dismissal.



[2] The hearing in
the District Labour Court commenced on 14 May 2009 with both
complainants (respondents) legally represented by Ms Shilongo of the
firm Sisa Namandje Legal Practitioners and by Mr Mark Kutzner of the
firm Engling, Stritter and Partners who appeared for the appellant.
After hearing evidence on behalf of the appellant and the
respondents, the District Labour Court found in favour of the
respondents, namely that the dismissals of both respondents were
unfair and ordered their reinstatement, as well as making
compensatory orders.











[3] This appeal is
against the decision of the District Labour Court. Heads of arguments
were filed on behalf of the appellant and the respondents. In this
court appellant was represented by Advocate Bassingthwaighte and the
respondents by Ms Shilongo, respectively.











[4]
At the commencement of the appeal and before hearing the arguments
the court indicated to Ms Bassingthwaighte ,on behalf of the
appellant, that the court requires her to address in the first
instance a point raised by the court
mero
moto,
namely
whether the procedure followed by the Chairman of the Disciplinary
Committee in dismissing the respondents from their employement had
not been so procedurally unfair that it constituted a nullity. Ms
Bassingthwaighte could not convince the court otherwise and in fact
received instructions to accept the court's indication that the
dismissal of each respondent constituted a nullity. The appeal was
therefore dismissed. The following are the reasons for the dismissal
of the appeal.



[5] Article 12 of
the Namibian Constitution provides that any person is entitled to a
fair trial by a court or a tribunal. A fair trial embraces the right
of the person to be treated fairly, which includes the right to be
present in the court or tribunal when he is tried and to respond to
allegations made against him. Act 12(1)(d) specifically provides:



"All
persons shall be afforded adequate time and facilities for the
preparation and presentation of their defence, before the
commencement of and during their trial, and shall be entitled to be
defended by a legal practitioner of their choice."











[6]
In the case of
Cape
Dairy and General Livestock Auctions v Sim
1924
AD 167 in respect of the sale of livestock on a Sunday, prohibited by
an Act no. 28 of 1896, which Act made such a sale not only a crime,
but an unlawful transaction, the court referred to what the trial
judge in the TPD had said, namely:



"It is the
duty of the court not to enforce any contract which is in violation
of the law, whether or not the parties raise the question."



(Eastwood
v Shepstone
1902
TS 294:
Mahomed
v Ispanhani
1921,
90 L.J. K.B 821) In the same
Cape
Dairy
case
Innnes CJ said the following at 170:



"When a
Court is asked to impose or uphold a contract which the law expressly
forbids, it is not only justified but bound to take cognisance of the
prohibition and consequent illegality. And that course has been
repeatedly followed by the South African Courts."



In
Strydom
v Die Land-en Landboubank van Suid Afrika
1972
(1) SA 801 A it was held that where a statutory body acted
ultra
vires
an
Act, it has not acted in law, furthermore if the action of the
statutory body is
ultra
vires
and
void, no cause of action can be founded on it against the statutory
body. (Also
Eastern
Cape Provincial Government and Others v Contractprops 25 (Pty) Ltd
2001
(4) SA 142 (SCA). The Appeal Court of South Africa further stated in
Yannakou
v Apollo Club
1974
(1) 614 (A) at 623G-624D that:



.....it
is the duty of the court to take the point of illegality mero moto,
even if the defendant does not plead or raise it;..."











[7]
It is common cause that in considering whether a dismissal was fair
or not, the court should first decide whether the procedure was fair
and thereafter the court considers whether the dismissal was fair, or
not. It is also common cause that the
onus
rests
on the employer in respect of the question whether the employee had
been unfairly dismissed or not.
(SPCA
v Terblanche
NLLP
1998 (1) 148 NLC at 150). The court is also conscious of previous
decisions of this court that in certain cases the dismissal of an
employee had been considered not to be unfair, although the employer
could not prove that a fair procedure had been applied, because there
existed a fair reason for the dismissal.
(Kamanya
and Other v Kuiseb Fish Products Ltd
1996
NR 123 (LC);
Kahoro
and Another v Namibia Breweries Ltd
2008
(1) NR 382 (LC) and the unreported case of
H.S.
Limbo v Ministry of Labour
in
the Labour Court of Namibia, no LCA 01/2008, delivered on 10 February
2010.)



[8] The history of
the matter that led to the charges against the respondents is briefly
that they did not return 450 items of butter to the appellant, which
items were apparently sent back by a client, Woerman and Brock. The
respondents were respectively the lorry driver and assistant driver,
charged with the delivery of products of the appellant (including
butter) to its clients in Windhoek. Upon their return to the
appellant's premises Nikanor signed for the return of the butter. All
three of them were charged with the following charges, to which they
all pleaded not guilty:



"Charge 1:
Dishonesty/Breach of Trust.



Charge 2:
Theft, alternatively unauthorised possession of company product."



Nikanor admitted
to his senior Mr Albina Mbindina that he received the butter back,
but sold it to a certain Portuguese speaking man. The respondents
throughout denied their guilt and were adamant that they did return
the butter to the appellant.











[9] At the end of
the disciplinary hearing all three (the respondents and Nikanor) were
found guilty and dismissed. It is not clear what happened to Nikanor
subsequently. He apparently left Windhoek, but it is certain that he
did not take the matter further. As mentioned, the respondents
unsuccessfully appealed internally and thereafter lodged complaints
in the District Labour Court. In that court several issues were dealt
with, i.a. the fact that they were convicted on all the charges
against them in the disciplinary hearing, the receipt of the butter
by Nikanor, the time it would normally take to make deliveries, etc.
These issues all pertain to the merits of the matter. However, in
respect of the fairness of the disciplinary hearing, it seems that
that important consideration was never in issue, except for the
appellant's contention that because the chairman of the disciplinary
committee worked according to a check list, a fair hearing was
conducted.











[10] The
disciplinary hearing was recorded, but Mr Justin Joe, who was
responsible for the tape recording thought it wise to provide minutes
of the hearing according to these notes, which he apparently verified
against the tape recording. The minutes prepared by him were the only
record of the proceedings available. There is no transmitted record
of the disciplinary hearing. Mr Joe is an employee of the appellant
and testified in the District Labour Court to this effect on behalf
of the appellant.











[11] The record of
the disciplinary proceedings clearly indicates that the two
respondents (and Nikanor) were not afforded a fair hearing and the
procedure followed by the chairman of the disciplinary committee was
fundamentally unfair. The following extracts from the minutes
illustrate that the proceedings were so unfair that it constituted a
nullity. On page 36 of the minutes of the disciplinary hearing the
following appeared after the charges had been put to the two
respondents and Nikanor:



"Mr
R Nakalonga and Mr E Hangombe were excused."
That
means that both respondents had to leave the room and with only
Nikanor remaining. During that time the employer presented evidence
by the head of the warehouse, Mr Albina Mbindama who gave evidence in
respect of exactly the same situation that let to the charges against
the respondents. His evidence was also used against the two
respondents. On page 41 of the record, and apparently after Nikanor's
case had been finalised, the following appears:



"Mr David
Nikanor was then excused and Mr Elias Hangombe was called



in."



Evidently the
second respondent still remained outside when Nikanor was sent out.
The first respondent was then brought in and his case was dealt with.
It is significant that Mr Albina Mbindama did not testify again and
neither the first nor the second respondent heard his evidence and
could cross-examine him. On page 44 of the record the following
appears:



"Mr Elias
Hangombe was then excused and then Mr Reinhold Nakalonga



was called in."



Evidently the
first respondent had to leave the room and join Nikanor outside while
the case of the second respondent was dealt with in his presence
only. All three were then found guilty as charged. On page 47 of the
record two inscriptions appear when the issue of mitigation regarding
Nikanor and the two respondents were dealt with. The first
inscription reads:



"Mr
Nikanor was excused and Mr E Hangombe called."
This
occurred after evidence by Nikanor was given in respect of
mitigation. The first respondent then repeated in mitigation that he
does not understand why he was found guilty and did not provide
anything in respect of mitigation. The second inscription reads:



"Mr E
Hangombe was excused and Mr R Nakalonga called."











[12] From the
minutes of the proceedings in the disciplinary hearing of Nikanor and
the two respondents it is abundantly clear that the chairman
considered it fair procedure if only the person with whom he dealt
with at a particular stage remains in the room and the other persons
charged are sent out. They could consequently not hear what the
evidence of a crucial witness, Mr Mbindama, was and were also not
afforded the opportunity to cross-examine that person. Their
constitutional rights were obviously infringed.











[13] What makes it
obvious that the procedure followed by the chairman of the
disciplinary hearing was procedurally wrong and unfair and
prejudicial to the respondents is underlined by what happened during
the cross-examination of the first respondent in the District Labour
Court. The first respondent was criticized because he did not put
certain questions to Mr Albina Mbindama during the disciplinary
hearing. Mr Kutzner, representing the appellant at that stage,
referred to Mr Mbindama's evidence. The first respondent stated that
he heard that for the first time in the District Labour Court. Only
when Mr Kutzner wanted to dispute this statement by the first
respondent by referring to the minutes of the disciplinary hearing,
did he realise that he could not pursue this line of questioning,
because the respondent was not present when Mr Mbindama gave evidence
before the disciplinary hearing. On page 267, line 26, to page 268,
line 4, the following is recorded in the record of the proceedings of
the District Labour Court:



"No,
no, no I said Nikanor went to Mr Albina on a Sunday to confess that
the botter (butter) did not come back to stock that is what Mr Albina
testified whether he can recall that? ....
However,
it was the first time to hear that yesterday when it was mentioned in
this court. It was not even testified to in the hearing.



Interesting
may I ask you to turn to page 38 please.
My
apology Mr Chairman he could not have heard that because he was not
present at that time.



CHAIRPERSON:
Ja,
because they were then called one by one
."
(My
underlining)







[14] It is a
fundamental failure not to afford a person charged of an offence,
even in a disciplinary hearing, to be present when evidence is given
that involves him to hear such evidence and to cross-examine such a
witness. One can only imagine what the situation would be if three
accused are charged in a criminal trial and only one is allowed to be
present when evidence is given involving him and the others sent out
and not afforded the right to hear such evidence and to cross-examine
that witness. S 158 of the Criminal Procedure Act, no 51 of 1977, as
amended, (CPA) provides:



"Except as
otherwise expressly provided by this Act or any other law, all
criminal proceedings in any court shall take place in the presence of
the accused."



In
S
v Roman
1994(1)
SACR 436(A) the decision by the trial judge to order the removal of
one accused because his presence in court made the other accused
uncomfortable, was set aside on appeal, because it was held that the
trial judge had no discretion to order the temporary removal of the
other accused. The Appeal Court held that the provisions of S 158 are
peremptory.
(Schmidt
- Law of Evidence
at
9-47). Although S 158 of the CPA deals with criminal trials and is
only mentioned by way of illustration, the same basic principle
applies in respect of proceedings before a tribunal. This principle
is emphasised by the provisions of Art 12 of the Namibian
Constitution, referred to above, which specifically includes a
tribunal.











[15]
It is trite that the procedure to be followed in a disciplinary
hearing is more flexible than that in a magistrate's court.
(Grogan
- Dismissal, Discrimination and Unfair Labour Practices
-
second edition, p 324). However it is fundamental that the person
charged should be able to cross-examine any witness and he can only
do that if he is present and able to hear what such witness
testified. To simply follow a check list, while ignoring that
fundamental right of the person charged does not make the proceedings
fair. In respect of the practice to follow a check list to constitute
fair procedure
Grogan,
supra,
has
the following to say at p 332:



" It is
difficult, if not impossible, to set out a complete list of the
requirements of a fair procedure, and it may be dangerous to assume
that fairness can be attained simply by following a prescribed
checklist. Procedural fairness is a subtle concept; an employer who
assiduously follows a prescribed procedure may nevertheless overlook
some small but important step, which omission may prejudice the
employee. Furthermore, a minor procedural lapse at the start of the
process may infect subsequent stages of the procedure."



The
two respondents' rights were infringed and they were undoubtedly
prejudiced by the procedure followed by the chairman of the
disciplinary committee. The consideration expressed in the
Kamanya
case, supra,
that
there was a reason for the dismissal, although the procedure in the
disciplinary



hearing might not
have been fair, it is not applicable here where a basic requirement
of natural justice was absent. The respondents were clearly
prejudiced by this unfair procedure.











[16]
The law is in my opinion clear as set out in the cases referred to
earlier herein. If the action not allowed by legislation or an
agreement it is
ultra
vires
and
illegal, any decision in that regard constitutes a nullity. In the
same vein the decision by the chairman of the disciplinary committee
in respect of the two respondents (and Nikanor) constituted a
nullity. From the minutes it appears that the chairman did not
recommend to the employer that they be dismissed. He dismissed them.
They could not have been dismissed and any actions taken by the
chairman in that regard is illegal, constitutes a nullity and has no
force and effect. This court is not only entitled to raise this issue
mero
moto,
but
is in fact duty bound to do it. It is surprising that it was never
picked up that the dismissal of the two respondents by the chairman
of the disciplinary committee was a nullity, namely after the
disciplinary hearing, during the proceedings before the District
Labour Court and even thereafter. In the light hereof the decision
can not stand and the appeal against the decision of the District
Labour Court has to be dismissed.











[17]
When the current situation is approached from the view of whether an
irregularity had been committed by the chairman of the Disciplinary
Committee one cannot come to any other conclusion as the one that
this court has arrived at. In the case of
S
v Shikunga and Another
1997
NR 156 (SE) Mahomed CJ considered not only the effect of the general,
as well as the exceptional categories of irregularities committed
during a trial, but also whether such an irregularity would
constitute a constitutional breach. He came to the conclusion that it
did not and that the common law in this regard remained unaffected
since the adoption of the Namibian Constitution. If an irregularity
was of the kind committed by the chairman of the Disciplinary
Committee in respect of the respondents was committed in a criminal
case, it would have been an exceptional category. Mahomed CJ
formulated it as follows



"This was
elaborated on in Mkhise (supra) where the court stated that in order
to decide whether an irregularity falls into the exceptional category
the enquiry is whether the nature of the irregularity was so
fundamental and serious that the proper administration of justice and
the dictates of the public policy regime it to be regarded as fatal
tot he proceedings in which it occurred."



(S
v Shikunga, supra
at
165 J - 166A). In my opinion the principle remains the same, whether
such an irregularity is committed in a criminal trial or in
disciplinary proceedings before a tribunal. Such a fatal irregularity
constituted a result that was a nullity.











[18] I have been
tempted to award costs against the appellant, because the proceedings
by the employer might be regarded as vexations and frivolous
concerning the expenses that the respondents were forced to incur,
namely to appoint a legal representative to represent them in this
appeal. However, because even the respondents' legal representative
did not detect the nullity of the conduct by the appellant's
disciplinary committee, I have decided against such an order.







[19] In the result
the appeal was dismissed.







MULLER, J.



ON BEHALF OF
THE APPELLANT: ADV BASSINGTHWAIGHTE







INSTRUCTED BY:
ENGLING, STRITTER & PARTNERS



ON BEHALF OF
THE RESPONDENT: MS SHILONGO



INSTRUCTED BY:
SISA NAMANDJE & CO. INC.