Three judges ruled in favour of Shoprite Namibia in an appeal they brought against a High Court judgment denying them the use of “seasonal workers” in place of striking workers. 

The same judges, however, upheld a contempt of court order issued against the retail giant and three of its directors for failing to adhere to an order of the court.

Shoprite petitioned the Supreme Court to intervene in the matter after the Labour Court upheld a decision by an arbitrator of the labour ministry that it is unlawful for them to hire “seasonal workers” to replace striking workers. 

They also appealed a decision by Windhoek High Court acting Judge Collins Parker that found the company’s directors Paul Joshua Malan, Willem Schalk Pienaar and Cristoffel Johannes Labuschagne in contempt of court for “willfully” ignoring an order from High Court Judge Shafimana Ueitele to allow shop stewards and union representatives access to their premises for observation. 

The Supreme Court dismissed the orders granted to the union barring the company to make use of seasonal workers. 

“The union failed to establish an entitlement, as Shoprite had already engaged seasonal employees prior to the strike and upon the facts, seasonal employees were annually so engaged for more than 10 years and were also engaged to render the same services as striking employees during seasonal peak periods.”

With regards to the contempt of court appeal, the judge said the applicants did not establish an irregularity in the conduct of judge Parker, and that the petition to dismiss the order is totally without merit. 

“The misleading manner in which the petition and review were brought warrants the severe censure of this court,” the court stated.   

According to Judge of Appeal Dave Smuts, with Judges of Appeal Sylvester Mainga and Elton Hoff concurring, the issues on appeal raise important questions concerning the rights of employers during a strike and the Labour Court’s jurisdiction in terms of the Labour Act to grant urgent interim relief, whilst the review concerns whether there was an irregularity in the proceedings that led to a finding of contempt of court. 

The review proceedings also raise the manner in which petitions to the Chief Justice to invoke the Supreme Court’s review jurisdiction are to be brought. 

Accordingly, he found that the Act does not qualify a dispute unless all the requirements, including dispute resolution measures, are satisfied and unresolved. 

In fact, the judges reasoned, the Act is there to protect the rights of the striking workers and the employers – and especially section 117 was created to prevent parties from both sides from approaching the Labour Court for urgent relief without first declaring an unresolved dispute. 

Furthermore, they said, while the Act restricts an employer’s freedom of contract and its rights to carry on a business or trade, it does not per se forbids it to trade or do business. 

According to the Supreme Court Judges, there is no duty on an employer to ensure the employees to strike and associate are fulfilled. 

“The Act provides more than ample protection of those rights – and in some respects, facilitates and furthers them,” they said.

“An employer’s duty is to ensure compliance with the Act so as not to hinder or interfere with those rights – whether directly or indirectly. He said the union approached the application on the basis that the right to strike includes stopping an employer from trading at all. This is not the case.”

According to them, while the Act places a drastic infringement on the employer’s rights to trade, it does not prohibit an employer from carrying on its business, albeit it is with a skeleton staff (non-striking workers).  Accordingly, they said, it was not established by the union that Shoprite was in breach of the striking rules – and as such, there was no basis for the interdicts granted by the Labour Court – and as a result, they must be set aside.

- rrouth@nepc.com.na