High Court Judge Orben Sibeya, dismissed the application with costs on a party-to-party basis in which Tjitemisa and Associates sought to avoid paying a former employee her dues.

Gelia Etty Nyandoro, a Zimbabwean national, was employed at Tjitemisa and Associates from 22 January 2014 to 31 August 2021. After her departure, the firm petitioned the Labour Court to have her declared a prohibited immigrant, asserting she was unlawfully in Namibia throughout her employment.

However, Sibeya, who presided over the matter, found that the Labour Court’s jurisdiction is limited to cases of unfairness, not unlawfulness. “I, therefore, find that the determination of the questions of unlawfulness and unenforceability falls beyond the jurisdiction of this court,” the judge concluded. 

The firm’s application, which also cited the Labour Commissioner, the chairperson of the Immigration Selection Control Board, and the Chief of immigration, aimed for a declaratory order that her employment contract was invalid due to her immigration status. Only Nyandoro opposed the application.

Following the firm’s refusal to pay her dues, she lodged a complaint with the Labour Commissioner, which is still pending. In reaction, Tjitemisa and Associates filed in the Labour Court to have her classified as a prohibited immigrant, asserting that her employment was, therefore, illegal.

Nyandoro objected, claiming that the Labour Court’s jurisdiction to hear the case is limited to unfair labour practices, and not the alleged unlawfulness or unenforceability of contracts. She claimed such issues fall under the High Court’s jurisdiction, noting that the Labour Court can only issue declaratory orders related to collective agreements or employment contracts if no other relief is sought. Since Tjitemisa’s claim was based on the Immigration Act rather than the Labour Act, Nyandoro argued, the matter was outside the Labour Court’s authority.

Norman Tjombe, representing Tjitemisa, countered that Nyandoro’s argument was incorrect, asserting that a person can be considered a prohibited immigrant if certain facts are established, such as being in Namibia illegally, and working without a permit. 

Tjombe has since filed for leave to appeal the ruling in the Supreme Court.

Nyandoro was represented by Nelao Alexander from Sisa Namandje & Co.