Mbangu v Awarab N.O. [2024] NAHCMD 386 (16 July 2024)

Facts 

The appellant (Mr. Mbangu), an employee of the third respondent (the University of Namibia – Unam) was facing charges under Unam’s Disciplinary Policy. On 9 June 2023, the applicant was called to a disciplinary hearing scheduled for 26 to 30 June 2023, and in the notice of the hearing, the applicant was informed in para 6 thereof, as follows:

‘6) Kindly be informed that in terms of the University’s Disciplinary Policy (approved by Council on 13 December 2021: Resolution Number: C/21/615/55) you may not be represented by a person not employed by the University. You may be represented by a colleague or shop-steward at the hearing;’

On 14 June 2023, the applicant submitted a notice denying the charges. He noted his intention to seek legal representation for the disciplinary hearing, and provided reasons for deviating from policy and the seriousness of the charges. Unam responded via correspondence that the charges were not complex to warrant a deviation from Unam’s Disciplinary Policy, which was peremptory. At a subsequent hearing, the applicant applied twice to two respective chairpersons (first and second respondents) for leave to engage an external legal practitioner to represent him during a disciplinary hearing, and the applications were refused in both instances. 

The first chairperson’s refusal was based on the fact that the chairperson did not have the discretion to deviate from the Disciplinary Policy. The first chairperson indicated in his ruling that he did not consider the merits of the application but made his decision purely on the application of the Disciplinary Policy. The second chairperson provided the applicant with comprehensive reasons for his decision. 

On 2 October 2023, the applicant filed this review application to the High Court seeking, among others, orders a) Reviewing and setting aside the decision of the first and second respondents, respectively, refusing his application for legal representation; b) Declaring that clause D.5.7 of the third respondent’s Disciplinary Policy confers a discretion on the chairperson of the disciplinary committee to decide whether or not to allow legal representation, alternatively that exceptional circumstances existed which entitled the applicant to be legally represented; and c) Directing the first respondent to allow legal representation. 

Issues

The main order sought by the applicant was an order directing the respondents to allow external legal representation at the disciplinary hearing. Therefore, the issue for determination was whether the first respondent, (being the second chairperson) had the discretion to allow outside legal representation and whether his discretion was judicially exercised. 

Discussion

The court considered the relevant clauses of Unam’s Disciplinary Policy, Regulations and Procedures in respect of the charges and workings of a disciplinary hearing. 

‘Onus

[60]     It is common cause between the parties that the applicant is responsible for proving to the court that good grounds exist to review the conduct complained of. 

Discussion

[63]     In two separate instances, the applicant applied to the respective chairpersons for leave to engage an external legal practitioner to represent him during the disciplinary hearing, and the applications were refused in both instances. 

[64]     The first chairperson’s refusal was based on the fact that, as chairperson, he did not have the discretion to deviate from the Disciplinary Policy. The second respondent indicates in his ruling that he did not consider the merits of the application but made his decision purely on the application of the Disciplinary Policy.

[65]     Written submissions served before the first respondent during the second application to be granted leave to use an external legal practitioner. In the papers of the applicant, he focused more on the stay of the disciplinary proceedings pending the outcome of the High Court proceedings than the application regarding legal representation. The decision of the first chairperson was criticised and the averment of institutional bias was made with respect to that chairperson in his strict interpretation and adherence to the Disciplinary Policy.

[66]     The first respondent provided the applicant with comprehensive reasons for his decision. His reasoning, in order to reach the decision set out under para [21] above, was that Unam’s Disciplinary Policy is the University’s regulatory document and with reference to the Council of the City of Windhoek v Pieterse and the Riekert’s Basic Employment Law,  the first respondent contended that where an employer introduced certain procedural standards to be followed prior to dismissal, the employer is held to those self-imposed standards.  He further contended that it would be improper for the employer not to follow such a policy. Hence, where Unam has established such a policy that sets out certain procedures, these procedures need to be followed to the extent that they are lawful. 

[67]     The first respondent was alive to the fact that legal representation may be allowed if exceptional circumstances existed, which would include the complexity of the case, the seriousness of the charge and the possible sanction of dismissal or such severe sanctions if found guilty of the charges. He, however, held that the applicant (accused employee) failed to indicate with sufficient clarity the extent to which he would suffer prejudice if the application for external legal representation was refused.’

The court discussed the applicable legal principles in detail in paragraphs 68 – 94, highlighting principles laid down in common law, and case law – President of the Republic of Namibia and Others v Shivute(SA 86/2022) [2024] NASC 11 (14 May 2024); Hamata & another v Chairperson, Peninsula Technikon Internal Disciplinary Committee & others 2002 (5); Kurtz v Nampost Namibia Ltd and Another 2009 (2) 696 (LC) and other authorities, and concluded that:

‘[95]    Having considered all the facts before me and in light of my discussion above I am of the view that the applicant failed to make out a case on a balance of probabilities why the relief sought should be granted.’

Determination

Held that the general rule at common law is that there is no absolute entitlement to legal representation at internal administrative disciplinary hearings simply because they are not arbitral or judicial proceedings.

Held that the third respondent’s representation clause can be found in para D.5.7, which provides that the accused employee may be represented by a fellow colleague at Unam or a shop steward employed by Unam if the employee so desires. No representation shall be allowed by a legal practitioner, labour consultant, or any person not in the employment of Unam. 

Held that there is no blanket prohibition on having a legal representative during disciplinary proceedings, and there is no bar against engaging a legal representative in the university’s employ. The applicant has an absolute right to representation regardless of the nature of the charge. 

Held that the right to be represented is encompassed in para E.6.1(c). This right does not extend to external representation, but there is an exception to the rule against external legal representation.

Held that para E.6.1(e) provides that if Unam makes use of an external legal practitioner or labour consultant as the initiator, the right is automatically extended to the accused employee. 

Held that para E.4.3 provides for the duties of the chairperson of a disciplinary hearing, which includes ruling on procedural issues during the hearing, such as sufficient time to prepare, representation, and postponement during the hearing. Although para E.4.3 does not pertinently refer to legal representation, it is safe to regard the word representation to include legal representation. If the chairperson had no discretion to consider the particular circumstances of each case, it would militate against procedurally fair administrative procedures depending on the circumstances of each case.

Held that none of the purported complexities alleged by the applicant were placed before the first respondent to consider. The application before the first respondent was a fresh application, not a single reference was made to the factors relied upon in the second ground of review.

Held that the applicant seeks to review and set aside the decision of the second respondent despite the fact that he recused himself and the proceedings started afresh before another chairperson. The exercise in this regard would be purely academic as it would have no effect on the further conduct of the proceedings. 

Held that our courts have repeatedly held that a party is not entitled to approach the court for what amounts to a legal opinion upon an abstract or academic matter.  The court will not make a declaration of rights unless there are interested parties upon whom the declaration would be binding.

Held that the applicant failed to make out a case on a balance of probabilities as to why the relief sought should be granted.

Court order

The application for the relief set out in the Notice of Motion dated 2 October 2023 was dismissed with costs. 

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