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High Court has jurisdiction in labour matters

2022-02-07  Roland Routh

High Court has jurisdiction in labour matters

The Supreme Court on Friday determined that the High Court of Namibia has jurisdiction to hear labour matters. 

This set aside a judgment by Windhoek High Court Judge Eileen Rakow that the High Court does not have jurisdiction to hear labour matters.

Justices Petrus Damaseb, Elton Hoff and Sylvester Mainga concurred, although, for different reasons that the High Court derives its powers from the constitution itself and without constitutional amendment, those powers cannot be derogated from or diminished by any act of parliament, including the Labour Act. 

In her judgement, Rakow said that the labour court has usurped the power of the high court to hear labour matters according to the Labour Act. The appeal judges, however, found that even if the labour court had jurisdiction, the High Court would have concurrent jurisdiction and the labour court cannot claim exclusive jurisdiction.

“The High Court is one of the two superior courts granted the original jurisdiction not only to hear and adjudicate upon civil disputes and criminal prosecutions, but includes the interpretation, implementation and upholding the constitution and the fundamental rights and freedoms guaranteed thereunder,” the judges stated.

The matter emanates from an urgent application Phellem Masule, a chief investigator at the Anti-Corruption Commission (ACC) brought against Prime Minister (PM) Saara Kuugongelwa-Amadhila for his removal as the chief of investigations and prosecutions at the ACC.

Rakow struck the matter from the roll after agreeing with the PM that the High Court had no jurisdiction to hear the matter and that the correct court to hear the matter was the labour court. Masule then appealed that decision to the Supreme Court.

Appeal judges Damaseb and Hoff found that the labour court is not a separate court from the High Court envisaged by article 78(1)(b) of the constitution, which states that the judicial power shall be vested in the courts of Namibia. 

It is only a division created for administrative convenience to deal with labour matters, presided over by judges appointed to the High Court and working under the supervision of the judge president. 

Although he concurred with the opinions, Judge Mainga held that jurisdiction is determined by the nature of proceedings, or the nature of the relief claimed therein, or in some cases, both the nature of the proceedings and the relief claimed. 

He further found that the intention of the legislature in the promulgation of Section 117 of the Labour Act was to grant the labour court exclusive jurisdiction in the field of labour relations and that the scope of the exclusivity of the labour court is limited to cases enumerated in the section. However, he said, the general exclusive jurisdiction of the labour court does not oust the common law functions of the High Court in labour matters and that if parliament intended to oust the High Court in the exclusive jurisdiction of the labour court or the High Court’s functions in the employer-employee relationship, it would have said so in no uncertain terms. And as such, he said, the Act confers, both the High Court and the labour court with concurrent jurisdiction. For those reasons, the judges referred the matter back to the High Court to be heard on the merits by a judge assigned to the labour division.  

Masule was represented by advocate Gerson Narib instructed by Kalundu Kamwi and the PM by advocate Ramon Maasdorp on instructions of the Government Attorney.

2022-02-07  Roland Routh

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