• July 10th, 2020

Supreme Court goes digital

The Namibian Supreme Court has joined other jurisdictions in the region by having its first e-hearing or video conference hearing on Friday in a matter involving the government and the Namibia National Teachers Union. 
According to a media statement issued by the Judiciary, the matter was heard before judges of appeal Sylvester Mainga, Elton Hoff and Dave Smuts and involved senior counsels from South Africa.

“The e-hearing of cases has been necessitated by the outbreak of Covid-19, which caused borders to many countries to remain closed. Therefore, it was prudent for the Supreme Court and the Judiciary as a whole to anticipate that all parties in matters before the court would be able to appear physically,” said Judiciary spokesperson Ockert Jansen. He noted that in this case, all counsel for the hearing appeared from South Africa and argued their merits through video conferencing.

He further said that Chief Justice Peter Shivute issued protocols on how these remote hearings will be conducted and will soon make an amendment to the Supreme Court rules that will make provision for such remote hearings.  According to Jansen, Namibia now joins other countries in the sub-region such as Lesotho’s Court of Appeal, South Africa’s Supreme Court of Appeal and Constitutional Court and other specialists’ courts in the region.

The matter that was heard on Friday involved an appeal by the Namibian government against a ruling in the Windhoek labour court that qualifying teachers working in rural areas are entitled to incentives.
In his ruling, High Court Deputy President Hosea Angula set aside a ruling by an arbitrator of the labour court that qualified teachers in rural areas are not entitled to incentives for them to continue working in harsh conditions with regards to two agreements signed between the union and the Office of the Prime Minister.

According to those agreements, known as the 2009 and 2010 agreements, the government is obliged to pay the incentives agreed upon. However, the government introduced a new agreement in 2012 with a remoteness allowance, which it said lapsed the incentive agreements of the 2009 and 2010. Aggrieved by this, the union then applied with the labour ministry to have the government obliged to comply. An arbitrator of the labour ministry, however, found that the government is not obliged to adhere to those agreements and the union appealed to the labour court.

In his ruling of February 2018, Angula, however, found that government is obliged to comply with the provisions of the 2009/2010 agreements and that the teachers are entitled to the incentives. “The 2009 agreement was not amended or replaced by the 2012 agreement. Nowhere did the 2012 agreement purported to replace or amend the terms and incentives accorded to the qualified teachers by the 2009 agreement. No reference is made to the 2009 in the 2012 agreement. In the absence of a clause in the 2012 agreement purporting to amend or replace the 2009 agreement, there is no basis for contending that the 2009 agreement was amended or replaced by the 2012 agreement. As a result, the qualified teachers’ incentives did not lapse with or they were amended by nor were they incorporated or harmonised into the 2012 agreement. The court, therefore, found for the appellant that the qualified teachers’ incentives were still valid and due to such teachers,” Angula found. He thus upheld the appeal.

The government then approached the Supreme Court to have that appeal overruled.
According to them, the labour court erred in finding that the 2012 agreement imposed an obligation to the government with regards to qualifying teachers, additional to its obligations under the 2009 agreement.
Also that the labour court failed to find that the 2009 agreement was incorporated and/or was suspended by the 2012 agreement and that the ruling in effect means that qualifying teachers are now entitled to a duplication of incentives.
The government was represented by Advocate Geoff Budlender on instructions of the Government Attorney and Nantu by Advocate Russel McWilliams SC on instructions of Metcalfe Attorneys. 
 – rrouth@nepc.com.na 

Roland Routh
2020-06-22 08:53:48 | 17 days ago

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