Matsi v Roads Contractor Company (Pty) Ltd (HC-MD-LAB-APP-AAA-2022-00012) [2022] NALCMD 49 (2 September 2022) – Arbitrator has no jurisdiction to deal with dispute lodged out of time:
The appellant was the acting general manager for operations at Roads Contractor Company (RCC) from 1 January 2016 until 31 August 2021. When he was not awarded a permanent position by the respondent, he referred a disputed to the Labour Commissioner’s Office. The arbitrator concluded that the dispute arose on 1 February 2017, and that the claim had prescribed, therefore, the tribunal lacked jurisdiction to hear the dispute. The appellant appealed against this award, stating that the arbitrator wrongly came to this conclusion and that the dispute arose when the appellant became aware of the unilateral change. The court considered the appeal and legal principles applicable, and held that:
The dispute was subject to section 86(2) (b) of the Labour Act, 11 of 2007, and had to be lodged within one year after it arose.
The arbitrator correctly concluded the dispute arose on 1 February 2017, which correctly stands to be the 13th month. The appellant may not have known whether or not the employer could employ anyone in the permanent position; however, the employee was aware of clause 8(4) of the Policy in that he qualified to be appointed as the permanent general manager for operations after 12 months of acting in that position. Hence, when he was not appointed on 1 February 2017, the dispute arose. The appellant had one year from that date to lodge the dispute with the Labour Commissioner. The dispute was lodged only on 14 December 2020, which was two years, ten months and fourteen days after the dispute had prescribed.
In the result, the court found that the arbitrator had no jurisdiction to deal with the dispute, as it was lodged out of time, and dismissed the appeal.
ADIDAS (South Africa)(Pty) Ltd v Jacobs (HC-MD-CIV-ACT-CON-2019-02339) [2022] NAHCMD 451 (01 September 2022) – Can a provision in a contract oust the jurisdiction of the local high court?
Whereas clause 19 (k) of the agreement relied upon by the plaintiff provided as that:
‘The contract and any other contract between the seller and the buyer shall be deemed in all respects as being performed and construed according to the laws of South Africa and the parties submit to the exclusive jurisdiction of the Western Cape High Court, Cape Town.’
The defendant raised a special plea that the parties agreed to the exclusive jurisdiction of the Western Cape High Court in Cape Town – and as such, the High Court of Namibia did not have jurisdiction to entertain any proceedings brought by the plaintiff.
The court had to determine whether that special plea had merit, and stated that it is a settled principle of law that a foreign jurisdiction clause in an agreement does not exclude the court’s jurisdiction. In other words, the parties to an agreement may not exclude the jurisdiction of the court by their agreement. The court has discretion in deciding whether or not the exercise of that jurisdiction should be stayed pending the outcome of foreign proceedings.
Evidence must be led to establish why the court should exercise that discretion and uphold the special plea. However, no facts were placed before the court on which the special plea could be determined. As a result, the court held the view that in the absence of facts supporting the special plea, such plea stood to be dismissed with costs.
In the result, the special plea of lack of jurisdiction was dismissed with costs.
S v Stuurman (CC 3-2021) [2022] NAHCMD 454 (1 September 2022) –Criminal law – maternal filicide – violent and cruel repertoire calls for substantial form of punishment:
The accused was convicted of murder with direct intent for having killed her biological son of 6 months old. In mitigation, she testified of a difficult childhood, as she was abandoned at the age of two years and was taken in by another person. She testified that she has three minor daughters, that she regrets her deed and that the consequences of the deed will accompany her for life. She stated the reason for her having committed the deed was to show the baby’s father who rejected her once she told him that she was expecting his baby and did not accept any parental responsibility. She became frustrated with the situation and took it out on the baby when she consumed alcohol. In imposing an appropriate sentence, the court held, inter alia, that:
Although the accused was deserted in early childhood, she was not totally deserted, as she was taken in by someone she came to love and developed family bonds with.
The accused was not so inebriated that her mental faculties were diminished.
The accused engaged in repertoire of cruelty and violence. Prior to the incident, she severely assaulted the baby and expressed an intent to kill him. On the day of the incident, she refused to breastfeed the baby, knowing that he had been without milk for half the day. That afternoon, after having been reported to the police, she abandoned the baby at home. Later that night, she repeatedly hit him against a hardened floor surface, basically smashing his skull in multiple fractures.
It is an aggravating feature that the baby lost his life not at the hands of a stranger but at the hands of his biological mother.
The reason provided for the deed is that she was rejected by the baby’s father once he learnt of the pregnancy, and the father did not accept parental responsibility; although an unenviable position, it is not a solution to kill the child.
The court has to speak up for the children whose voices have been silenced by their irresponsible and callous parents. In such instances, the court has to protect the interest of society, intercede and stop this horrendous phenomenon by imposing the kind of sentence that will unequivocally express that those who engage in violent crimes should expect to meet the full rigour of the law.
In the result, the accused was sentenced to 28 years’ imprisonment.
S v Gebhard (CR 92-2022) [2022] NAHCMD 453 (1 September 2022) – Criminal law – review of conviction on competent verdict:
This was a review in terms of section 304 (4) of the Criminal Procedure Act, 51 of 1977 (the CPA). The accused was charged in the Magistrate’s Court in the district of Gobabis with the offence of theft of a motor vehicle, read with the provisions of sections 2, 3, 4, 13(1), 13(2), 14, 15, 20(1), 20(2), 21, 22 and 23 of the Motor Vehicle Theft Act 12 of 1999, as amended (the Act), in that upon or about the 10th day of October 2020 and at or near Tswana Block Epako in the district of Gobabis, the accused did wrongfully, unlawfully and intentionally steal a motor vehicle, the property of or in lawful possession and control of another person.
After evidence was heard, the court convicted the accused on the competent verdict of the unlawful use of property in contravention of s 8(1) of the General Law Amendment Ordinance 12 of 1956 and sentenced him to pay a fine of N$15 000 or 3 years’ imprisonment. The review court queried the presiding magistrate about the propriety of finalising the matter in the district court. In his reply, the magistrate conceded he had no jurisdiction to do so. He reminded the review court that the accused was not convicted as charged, but on a competent verdict. He requested this court to endorse the conviction and sentence if it is in order, alternatively to set it aside and for the matter to commence afresh (de novo).
The court considered whether the conviction was in accordance with justice and found that the court a quo misdirected itself when convicting on a competent verdict. In addition, the court found that the evidence was sufficient to convict the accused as charged, i.e. theft of a motor vehicle, read with the provisions of the Motor Vehicle Theft Act 12 of 1999, as amended. As regards, an appropriate sentence, the court found it appropriate to remit the matter for submissions or evidence on sentencing afresh, as the accused was now convicted of a more serious offence.
In the result, the court set aside the conviction and sentence of the magistrates court and substituted the conviction with one of theft of a motor vehicle, read with the provisions of the Act and remitted the matter back to the trial court for it to invoke section 116 of the CPA and commit the accused for sentencing by a regional court having jurisdiction.
Likoro v S(SA 19-2018) [2022] NASC (12 April 2022) –High Court may not exercise jurisdiction as an appeal court in respect of its own previous order – review section 16 of supreme court act:
Having heard arguments in respect of an appeal on 14 October 2019 – and in the process of writing judgment in respect of the appeal – the Supreme Court had reason to believe that an irregularity might have occurred during the proceedings in the High Court in that on 8 December 2017, two justices of the High Court refused and struck from the roll appellant’s condonation for late noting of his appeal, holding that there were no prospects of success on appeal.
On 20 March 2018, a slightly differently constituted Bench of the High Court granted the appellant leave to appeal to the Supreme Court, holding that there were prospects of success on appeal. One of the justices presided on both matters.
The Supreme Court exercised its powers in terms of section 16 the Act to, on its own accord (mero motu),review the proceedings of the High Court whenever it comes to its attention that an irregularity has occurred. The Supreme Court justices considered the matter and held that:
The appeal against the refusal of condonation application lies as of right to the Supreme Court and no leave to appeal from the trial court is necessary.
Two contradicting orders existed side by side since the first order (of 8 December 2017) had not been set aside by a competent court of law.
It was a grave irregularity for the second constituted High Court to overrule an order of the first court. The High Court may not exercise jurisdiction as an appeal court in respect of its own previous order.
The second judgment and order offend against the principles of functus officio and res judicata.
The appeal was not procedurally placed before the court, but it came to it through a highly irregular March 2018 order.
There were vitiating irregularities, and the second judgment and order could not stand; as such, they were reviewed and set aside.
The judgment and order of 20 March 2018 constituted an irregularity and were reviewed and set aside.
The notice of appeal filed by the appellant on 23 April 2018 with the Registrar of the Supreme Court constituted an irregularity and was reviewed and set aside.
The proceedings hear by the court on 14 October 2019 were struck from the roll.
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Fedden Mainga Mukwata writes in his personal capacity as an admitted legal practitioner and founder of FASZ Legal Consultancy as part of his efforts to promote access to law and justice. He may be reached at consultfasz@gmail.com.