Namibia Students Financial Assistance Fund v Nghiwete (HC-MD-LAB-APP-AAA-2021-00056) [2022] NALCMD 50 (16 September 2022) – Summary dismissal in the midst of a disciplinary hearing; whether reinstatement would be fair in the circumstances 

An employee was summarily dismissed by the Board of NSFAF on 7 February 2020 while there was an ongoing disciplinary hearing conducted by an independent disciplinary chairman appointed by the Fund. The employee referred a dispute to the office of the Labour Commissioner and the arbitrator made an award in her favour. The Fund appealed to the Labour Court which held that: 

The onus to prove a fair dismissal was on the Fund.  In order to satisfy that onus, the Fund must have proved that the dismissal was for a valid and fair reason, and that it was in accordance with a fair procedure.

The basic requirement of fairness towards the employee required the Fund, to oppose the employee’s application for a postponement within the confines of the ongoing scheduled disciplinary hearing.  

For the Fund to submit that there was no admissible evidence on the medical condition of the employee was premature. The Fund was not seized with the hearing, the independent chairperson was. There is nothing in the Appellant’s disciplinary code giving the Board authority and competence to adjudicate and pronounce on evidentiary matters while was not seized with the hearing.

The minutes of the Special Board meeting of 6 February 2020 and the dismissal letter of 7 February 2020, viewed objectively with the disciplinary code and in the circumstances of this case, evidenced an inopportune arrogation and exercise of powers by the Fund’s Board. The employee’s dismissal was invalid and unfair.  The procedure followed was likewise unfair.

The Fund’s allegations against the employee, which were presented in the Fund’s letters during January 2020, in the Board minutes of 6 February 2020 and in the dismissal letter of 7 February 2020 as facts, are and remain untested at the correct forum (the disciplinary hearing) until today.

The Board of the Fund was wrong to dismiss the employee without due process.

The Board ought to have seen to it that its Department of Human Capital investigate the new complaints and formulated charges which should have been added to the existing charges for an independent adjudication by the independent chairman of the disciplinary hearing whether he allowed the postponement or not.  

There was no vitiating misdirection or irregularity on the side of the arbitrator when she found that the dismissal of the employee was substantially invalid and unfair and that the procedure followed was also unfair.

Taking into account the five factors quoted by the arbitrator in her award when reinstatement is to be considered together with the totality of the evidence tendered in the arbitration proceedings (inclusive of the evidence of the employee), it was concluded that another arbitrator or court acting reasonably would have come to a different conclusion, i.e. not to order reinstatement due thereto that the employment relationship and trust between the parties had broken down.

Noteworthy is that, there was evidence of a breakdown in trust between the current Board of the Fund and the employee on the evidence led on behalf of the Fund. The employee’s evidence supported the fact that the parties do not trust each other. The employment relationship between the parties was de facto non-existent since April 2018 to date.

The evidence tendered by the employee in the arbitration proceedings viewed with the evidence of the Fund counts against reinstatement.

Factors to be taken into account in declining to order reinstatement are where an employment relationship has broken down or trust irredeemably damaged. "These factors are not exhaustive. Plainly the remedying award is not only to be fair to employees but also to employers."

As a result, it was ordered that the dismissal of the employee was without a valid and fair reason and no fair procedure was followed. The appeal against the first order of the arbitrator was dismissed. The appeal against the employee’s reinstatement succeeded. The Fund was ordered to pay the employee monthly remuneration she would have received from 8 February 202 to 15 July 2021, subject to statutory deductions. 

Nedbank Namibia Limited v Mouton(HC-MD-LAB-APP-AAA-2022-00004) [2022] NALCMD 54 (29 September 2022) – Labour appeal – compensation in labour matters not be equated with civil or delictual damages

The respondent was employed by the appellant as branch manager in Rehoboth. After about 12 months of employment, Nedbank dismissed the employee on 28 April 2016 following a disciplinary hearing, for authorising the deposit of a non-transferable cheque into the account of an individual who was not the payee of the cheque. The employee pleaded guilty to ‘Failure to Adhere to Laid Down Procedures’ at his disciplinary hearing. 

The employee’s dismissal was confirmed in an internal appeal and he referred a dispute to the Labour Commissioner. This culminated in the arbirtrator awarding the employee compensation of six months’ salary. Nedbank appealed against the findings and the compensation awarded. The employee counter appealed against the award. The Labour Court considered the appeal and held that:

Compensation in a labour matter should not be equated with civil or delictual damages. There are a number of factors that an arbitrator should take into account, such as, whether the employee obtained employment in the meantime and the period of employment before his dismissal.

The arbitrator erred in awarding six months’ salary as compensation while the employee was employed for only twelve months by Nedbank. A more appropriate award would be one month’s salary.

As a result, the arbitration award of compensation in favour of the employee was set aside and Nedbank was ordered to pay the employee one month’s salary as compensation, plus interest. 

Newpoint Electronic Solutions (Pty) Ltd v PS, Office of the Prime Minister (SA15-2020) [2022] NASC (3 October 2022) – cancellation of contract – whether remedy lies in review on contract

During 2015 the then Tender Board of Namibia (the board), placed adverts in the media inviting expressions of interest from interested bidders for the implementation of the Oracle Payroll, Maintenance and Support of the Existing Human Capital Management Service to be implemented at the Office of the Prime Minister. On 5 April 2016, the secretary to the board informed the appellant that it was the successful bidder and it was awarded the tender. 

A Service Level Agreement was signed and the appellant proceeded to perform the contract, at least in part. On 12 June 2018, the Government Attorney on behalf of the respondents sent a letter to the appellant, informing the appellant that the agreement was unenforceable and invalid ab initio. On 18 August 2018 commenced review proceedings in the High Court seeking an order setting aside the ‘cancellation’ of the tender by the first respondent.

The respondents opposed the appellant’s review application on the basis that the remedy for the alleged breach of the agreement was not a matter of administrative law but a contractual one. The High Court held that, the claim of the appellant sounded in contract, and that the appellant ought to find its relief in contract law, and refused the review application. The court a quo further held that, the agreement was void ab initio, as it was entered into in contravention of the provisions of the Tender Board of Namibia Act. 

On appeal, the Supreme Court held that, the appeal turns on whether on the proven and undisputed facts, the agreement concluded between the appellant and the second respondent was validly concluded.

If public functionaries purport to exercise powers or perform functions outside the parameters of their legal authority, they, in effect, usurp powers of the State entrusted to other public functionaries.

The Act does not alter or purport to alter the common law by excluding the State or its agencies’ power to contract or conclude agreements, but solidifies that, as a legal persona, the State acts through functionaries, be it natural persons or statutory bodies.

When it comes to the procurement of services for or on behalf of the State, s 7(1) of the Act provides that unless otherwise provided in the Act or any other law, the board shall be responsible for the procurement of goods and services for the Government and s 21 of the Act expressly states that the second respondent is bound by the Act. 

The respondents could not validly conclude a contract with the appellant for the provision of services. 

Roolfs v Von Zelewski (HC-MD-CIV-ACT-CON-2020-04676) 2022 NAHCMD 529 (3 October 2022) – Application for rescission of judgment where there was flagrant non-observance of the rules of court

During January 2021, the respondent instituted action against the applicant for payment of certain sums allegedly due and payable to the respondent, as a result of a loan agreement allegedly concluded between them. The applicant defended the action. On 31 January 2022, the court granted default judgment in favour of the respondent following defendant’s failure to deliver her plea  as per court orders and was ipso facto barred from [doing] so and the matter was regarded as unopposed. 

On 22 February 2022, the applicant filed an application for the rescission of the default judgment, which was opposed by the respondent. The High Court considered the matter and held that:

The applicant’s explanations for the non-compliances showed an unacceptably glib and nonchalant attitude to the rules of court and compliance with court orders. The applicant failed to deliver a plea in breach of a court order on two separate occasions. The applicant also failed to comply with an additional order of the court directing her to file an affidavit explaining her failure to file a plea and her failure to appear at court.

In cases where there is a flagrant non-observance of the rules of court coupled with an unsatisfactory explanation for the non-observance, the applicant runs a risk of failing at the first hurdle of the rescission application. 

As a result, the  application for rescission was dismissed. 

S v Boois (CC 3-2022) [2022] NAHCMD 532 (5 October 2022) – Criminal law – unsolicited sponteneous statements made voluntarily admissible; murder – direct intention to kill

The accused person was indicted on a single count of murder read with the provisions of the Combating of Domestic Violence Act 4 of 2003. It was alleged that the accused did unlawfully and intentionally kill an 18 year old female person with whom he had a romantic relationship. The accused pleaded not guilty to the charge and denied that he stabbed the deceased at all let alone to death. The High Court considered the matter as follows.

There were no eye witnesses and the State rested its case on circumstantial evidence and spontaneous admissions made by the accused to his sister that he had stabbed his girlfriend, the deceased. The accused handed over the knife that he used to stab the deceased. The sister and one State witness went to the accused’s place to confirm whether the deceased was indeed dead. They confirmed that the deceased was dead. The knife that was given by the accused to his sister was taken for DNA analysis and the blood swab taken from the knife tested positive for the deceased’s DNA profile. The court held that the spontaneous admissions made by the accused to his sister were unsolicited and were made voluntarily. Therefore, they were admissible against the accused.

In respect of Murder – direct intent, the accused stabbed the deceased with a knife multiple times on her vital organs. The deceased died due to stab injuries to the heart and lung. By directing the assault to the deceased’s vital organs is a clear indication that the accused acted with direct intent to kill her.

As a result, the accused was found guilty of murder with direct intent.