REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LCA14/2015

In the matter between:

LYDIA KATJOTJO APPELLANTand

MINISTRY OF HOME AFFAIRS AND IMMIGRATION 1st RESPONDENTCHAIRPERSON OF THE PUBLIC SERVICECOMMISSION OF THE REPUBLIC OF NAMIBIA 2nd RESPONDENTOFFICE OF THE PRIME MINISTER 3rd RESPONDENTCHRISTOFINA MAGGY MBANGO N.O. 4th RESPONDENT

Neutral citation: Katjotjo v Ministry of Home Affairs (LCA 14-2015) [2016]

NALCMD 1 (18 January 2016)

Coram: Schimming-Chase AJ

Heard: 24 July 2015

Delivered: 18 January 2016

Flynote: Appeal in terms of section 89 of Act 11 of 2007. Alleged

non-compliance with Rule 5 of Rules Relating to the Conduct of Conciliation and

NOT REPORTABLE

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Arbitration. The appellant’s union representative signed the Form LC21. The

respondents taking point that Form LC21 not signed by appellant herself and

accordingly a nullity. Form LC21 making clear (and exclusive) provision for

signature by union representative. This was not a joint complaint. Union

representative entitled to represent appellant in terms of section 86(12)(a) of the

Labour Act, No 11 of 2007 read with Rules 5 and 14 of the Rules relating to the

Conduct of Conciliation and Arbitration. In any event, any non-compliance

would not have vitiated the proceedings in the circumstances.

Exhausting local remedies. Respondents alleging that appellant was required to

exhaust her local remedies under the Public Service Act, No 13 of 1995 before

approaching the Labour Commissioner. She apparently failed to do so by failing

to timeously launch her appeal, thus the appellant was deemed dismissed by

operation of law. In the alternative respondents submitted that Form LC21 was

not the appropriate form to refer the dispute and the signing of it vitiated the

proceedings. Applicant’s claim should have been launched in terms of Chapter

5 of Act 11 of 2007, instead of in terms of section 82(7) and 86(1) read with

Rules 11 and 14. The Labour Act specifically includes the State in the definition

of an employer except for the circumstances mentioned in section 2. The

appellant as an employee is entitled to approach the Office of the Labour

Commissioner when she believes she has been dismissed without valid or fair

reason and without following proper procedure. The purpose of the Labour Act

is to resolve labour disputes. Appeal accordingly upheld.

ORDER

1. The appeal is upheld.

2. The matter is referred back to the arbitrator for a decision on the merits.

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JUDGMENT

SCHIMMING-CHASE, AJ

[1] This is an appeal against the ruling made by the arbitrator (the fourth

respondent) in which she upheld two points in limine in favour of the

respondents raised at the outset of arbitration proceedings. This appeal is

against these findings.

[2] The appellant was employed by the first respondent as a Clerk. In April

2009, the appellant was charged with misconduct and a disciplinary hearing was

conducted in terms of the Public Service Act, No 13 of 1995 (“the Public Service

Act”).

[3] The appellant was found guilty for the misconduct for which she was

charged and subsequently dismissed. Thereafter, she noted an appeal against

her dismissal in terms of section 27(14)(a) of the Public Service Act. The appeal

was denied by the first respondent because it was not noted within the time

periods prescribed by the Public Service Act for noting of an appeal. In this

regard, section 26(14)(a) provides that a staff member may within 14 days from

the date of receipt by him or her of the record, statement, reasons and

recommendations in respect of a disciplinary proceeding, appeal in writing to the

Prime Minister against the finding of the disciplinary committee.

[4] It is common cause that the appellant calculated her leave days using

court days as opposed to calendar days, which is the manner in which days are

calculated in terms of the Public Service Act.1 Thus she was four days late in

noting her appeal.

1 Interpretation of Laws Proclamation 37 of 1920; Gouws v Office of the Prime Minister 2011 (2)

NR 428 (LC) at 433

4

[5] It is also common cause that the Public Service Act does not contain any

provisions permitting an appellant in a disciplinary context to apply for

condonation for failure to comply with the time limits prescribed for the noting of

an appeal in terms of the Public Service Act, outside the provisions contained in

section 26(17) which allows the Prime Minister to approve the recommendation

of the Disciplinary committee in the absence of inter alia, a timeous noting of an

appeal.

[6] Subsequent to her failed attempt at appeal in terms of the Public Service

Act, the appellant lodged a dispute of unfair dismissal with the office of the

Labour Commissioner on 15 February 2010. Following arbitration proceedings,

the following award was made in favour of the appellant:

6.1. the appellant’s appeal was found to be properly noted within the

prescribed time period provided for in the Public Service Act;2

6.2. the third respondent was ordered to consider the appellant’s

appeal as he was the only person in terms of Section 5 of the Public

Service Act with the power to dismiss a member from the Public Service;

6.3. the appellant would remain an employee in the public service until

the third respondent had pronounced himself on the appellant’s appeal;

6.4. the appellant would remain entitled to the same terms and

conditions which applied prior to her dismissal.

[7] In spite of the above award, the appellant was not reinstated. Following

an application launched by the appellant in this court during May 2012, she

received two letters from the acting permanent secretary of the first respondent;

one dated 1 October 2012, informing the appellant that she was discharged due

2Mr Jones, counsel for the appellant, correctly conceded that the computation of days in terms of

the Public Service Act was based on calendar days and not court days and that this finding was

incorrect.

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to misconduct with effect from 24 May 2012, and another letter dated 4 October

2012, stating that the third respondent had ordered that the appellant be

reinstated from 14 January 2010 to 24 May 2012.

[8] The appellant thereafter lodged a dispute of unfair dismissal on 12 March

2013, which culminated in the award that is the subject matter of this appeal.

[9] At the hearing of the arbitration, the respondents took two points in

limine. The first point was that the applicant’s referral was contrary to the

provisions of Rule 5 of the Rules Relating to the Conduct of Conciliation and

Arbitration before the Labour Commissioner published under GN 262 in GG

4151 of 31 October 2008 (“the Conciliation and Arbitration Rules”) because the

form LC 21 was signed by a NAPWU representative, namely LR Kasera, its

Branch Organiser, and that there was no statement from the appellant herself

authorising the institution of proceedings. As a result there was no referral

because the dispute had not been properly referred, resulting in a nullity. The

second point was that the applicant was deemed to be guilty of misconduct by

operation of law due to the provisions of section 26(14) read with section 26(17)

of the Public Service Act. This point was also couched as a failure on the

appellant’s part to exhaust internal remedies (because her appeal was late), as

well as a waiver on the part of the appellant.

[10] The arbitrator found in favour of the respondents on these two points in

limine. This is the subject matter of the appeal.

[11] The appellant also submitted in her grounds of appeal, that the arbitrator

erred in law in concluding that the effect of the second point in limine, was that

the Office of the Labour Commissioner had no jurisdiction to hear the matter,

and that the arbitrator erred in law in finding that the appellant’s dispute

concerned a violation of Chapter 3 of the Namibian Constitution, which resulted

in the arbitrator suspending the arbitration proceedings in terms of Rule 19 of

the Conciliation and Arbitration Rules. From a consideration of the arbitrator’s

reasons and ruling, she did not make an order suspending the arbitration, and

the ruling on jurisdiction ties in with her ruling on the second point in limine. I will

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therefore in this judgment only deal with the two points in limine that found

success with the arbitrator.

[12] On these points in limine, the arbitrator followed the reasoning of the

respondents presented by Mr Ndlovu from the Government Attorney, and

presented in this court, which I repeat herein for ease of reference:

12.1. the Form LC21 is a nullity, because it was signed by the

appellant’s union representative and not by her, and this accordingly

vitiates the proceedings entirely;

12.2. alternatively, the appellant is guilty by operation of law because

she did not appeal within the timeframe set out under section 26(14) of

the Public Service Act and is accordingly deemed to have been found

guilty of misconduct in terms of section 26(17) of the Public Service Act

because no valid appeal was noted. She thus failed to exhaust her

internal remedies and cannot now approach the Labour Commissioner’s

office which has no jurisdiction.

[13] Mr Ndlovu also argued at the hearing of the appeal, that in the

alternative, the use of the Form LC21 was not the appropriate form to use for

the referral of a dispute. In this regard, Mr Ndlovu submitted that the appellant’s

case was one of unfair dismissal which should have been dealt with under

Chapter 5 of the Act dealing with unfair labour practices.

[14] Mr Jones appearing for the appellant, argued that the grounds raised on

behalf of the respondents are without merit. He submitted that the form LC21 is

indeed compliant with the Conciliation and Arbitration Rules. He further

submitted that the procedure followed in terms of the Labour Act as well as the

rules was properly followed, and that the appellant was entitled by virtue of the

provisions of the Labour Act, to approach the office of the Labour Commissioner

to remedy a substantively and/or procedurally unfair dismissal.

[15] With regard to the argument that the appellant had not exhausted her

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internal remedies, Mr Jones submitted that the appellant had indeed exhausted

all remedies and avenues open to her by following the appeal procedure and

that since the State had deemed her to be dismissed as set out in their

correspondence, she had no option but to approach the Labour Commissioner

on the grounds of an unfair dismissal. In the alternative, he argued that in any

event, where domestic remedies were provided for in terms of a statute the

provision must be examined in order to ascertain how far the jurisdiction of the

courts are excluded or deferred.3

[16] I will firstly deal with the issue of the Form LC21.

[17] Rule 14 of the Conciliation and Arbitration Rules provides as follows:

“14. Referral of dispute to arbitration

(1) A party that wishes to refer a dispute to the Labour

Commissioner for arbitration must do so by delivering a completed –

(a) …

(b) Form LC21, in case of any other dispute (‘the referral

document’ in both cases).

(2) The referring party must –

(a) sign the referral document in accordance with rule 5;

(b) …

(c) …”

(emphasis supplied)

[18] Rule 5 provides as follows:

“5. Signing of documents

3 Swarts v Smuts 1971 (1) SA 819 (A) approved in Purity Manganese (Pty) Ltd v Katjivena (LC

86/2012) [2014] NALCMD 10 (26 February 2014) at page 12.

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5(1) A document that a party must sign in terms of the Act or

these rules may be signed by the party or by a person entitled in terms of the Act or these rules to represent that party in the proceedings.

5(2) If proceedings are jointly instituted or opposed by more

than one employee, the employees may mandate one of them to

sign documents on their behalf.

5(3) A statement authorising the employee referred to in sub-

rule (2) to sign documents must be signed by each employee

and attached to the referral document or opposition, together

with a legible list of their full names and addresses.”

(emphasis supplied)

[19] Section 86(12) of the Act provides that:

“In any arbitration proceedings a party to a dispute may appear in

person, if the party is an individual, or be represented, only by -

(a) an office bearer or official of that party’s registered trade union or

of a registered employer’s organisation;

(b) if the party is an employee, a co-employee; or

(c) if the party is a juristic person, an employee of that person,

but a person who is a legal practitioner must not appear on behalf of a

party except in the circumstances referred to in (13).”

(emphasis supplied)

[20] Rule 5(1) of the Conciliation and Arbitration Rules was interpreted in the

case of Waterberg Wilderness v Menesia Uses and 27 Others 4 where Van

Niekerk J held that the party referring the matter must sign the referral form

4 Unreported Case No LCA 16/2010 delivered on 20 October 2011.

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(Form LC 21) and that this this requirement is not a mere technicality.5

[21] The Form LC21 has also been aptly described as “inaccurately

prepared.”6 The form is attached to the Conciliation and Arbitration rules. It is

titled “Referral of Dispute for Conciliation or Arbitration”. It sets out a number of

items which are to be completed and includes the full name of an applicant,

physical address, postal address and other contact details. It requires an

applicant to identify the nature of the dispute with reference to different

possibilities posited on the form. An applicant must also complete an item

setting out the date on which the dispute arose. At the end of the section to be

completed, is a place for signature below which states the following:

“Representative of applicant (print name and sign).”

Adjacent to this, the word “position” appears.7

[22] To my mind, a reading of rules 5 and 14 together with section 86(12)

leads me to the conclusion that ex facie Form LC21, it was properly signed in

terms of the abovementioned rules by the appellant’s representative and at the

correct place. I say this for the following reasons. Firstly, I understand Rule 14

on its own to say that the party must sign the form. But according to Rule 14,

the form must be signed in accordance with Rule 5. Rule 5, on its clear

grammatical interpretation, states that a document that a party (i.e. the

appellant) must sign may be signed by the party, or by a person entitled in terms

of the Act or these rules to represent that party in the proceedings. Thus, I

understand the rule to mean that the form may be signed either by “the party”,

namely the appellant, or by the union representative, who is entitled to represent

the appellant at the proceedings. Section 86(12) makes it clear that only a

5 At paragraphs [10] to [12]6 See Purity Manganese supra at para 227 Whilst I am in respectful agreement with the description of Form LC21 as set out by Smuts J

(as he then was) in paragraph 14 in the Purity Manganese case, I do not interpret the form to

state where the word “position” is located , that this is the place for only the applicant to indicate

his or her position of employment per se. This is ambiguous. It could refer to the position of the

representative at the union or it could be the position of the applicant.

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union representative has an automatic right to represent a party to a dispute,

thus a union is entitled to represent the party. (Emphasis supplied)

[23] The Form LC21 also only makes provision for the signature of the

representative of the party and not the party herself.

[24] Mr Kasera, the common cause representative of the applicant, and a

member of the appellant’s registered trade union clearly signed as

representative of the applicant and also indicated what his position was. It is

common cause that Mr Kasera represented the appellant.

[25] Even though Van Niekerk J may have had a different interpretation on

the question of a party’s signature in the Waterberg Wilderness case, it was

clear on the facts that that case concerned a joint complaint made by 28

employees of Waterberg Wilderness Lodge. The LC21 specifically stated that

the applicant was one Menesia Uses plus 27 others. At the place for signature

of the “representative of the applicant”, the following was inscribed “Menesia

Uses plus others” and only “M Uses” signed the document. In paragraph 11 of

the Wilderness case, Van Niekerk J also made specific reference to the fact that

the form made provision for signature by the representative of the applicant, but

not for signature by the applicant.

[26] In the Springbok Patrols (Pty) Ltd v Jacobs 8 where the above statement

by Van Niekerk J found approval with Smuts J, there were also 24 claimants

involved in the complaint as opposed to one individual. Only one claimant’s

name was referred to by name on the form. This form was not signed by any

one of the respondents, but by a union representative who purported to

represent the claimants at the arbitration hearing. No attachment was provided

with the names of the other applicants and the applicants formally disputed the

authority of the union representative. This case also clearly dealt with the issue

of joint complaints covered by rule 5(2).

8 (LCA 702/2012) [2013] NALCMD 17 (2013)

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[27] In Agribank of Namibia v Simana 9 Hoff J also followed this same line of

reasoning.10 However in that case, the legal practitioner signed the Form LC21.

It is clear from section 82(13) of the Act that a legal practitioner does not have

the same right to represent “a party” as a representative of a registered trade

union. Thus, the signature by the legal practitioner was premature resulting in

an invalid or defective referral of a dispute.11

[28] In Purity Manganese (Pty) Ltd v Katjivena 12 Smuts J dealt with a case on

similar facts as the Agribank case, where the LC21 form was not signed by the

employee (referring party) himself or a union representative, but by the legal

practitioner. Conciliation had also already taken place without success. The

point on the failure to properly sign the LC21 was raised at the beginning of the

arbitration proceedings. After having heard argument, the court held13 that the

question arose as to whether the failure to have signed the referral form

constituted a vitiating irregularity resulting in the proceedings being a nullity.

[29] Smuts J specifically dealt with the purpose of arbitration tribunals, namely

that they exist for the resolving of labour disputes as established in terms of

section 85 of the Act with powers under the auspices of the Labour

Commissioner to have jurisdiction and to hear and determine labour disputes,14

and I am in respectful agreement with this principle. It would appear that Smuts

J also took into consideration that the Conciliation and Arbitration rules did not

empower an arbitrator to condone anything more than the failure to comply with

time periods and that in respect of other requirements such as the requirement

to sign a referral form, the arbitrator was not vested with a power of

condonation, which could have very harsh and unjust consequences if a point of

this nature was taken especially on appeal. This was referred to as an omission

on the part of the drafter of the rules. It was pointed out that the usual approach

9 (LCA 32/2013) [2014] NALCMD 5 (17 February 2014)10 Footnote at para 1811 See paragraphs 16, 21 and 2412 (LC 86/2012) [2014] NALCMD 10 (26 February 2014) 13 At para 1114 At para 12

12

of the courts where there has been a causus omissus in a text which does not

cater for an eventuality (such as a power of condonation in respect of non-

compliance with rules not containing time periods), is that a court would

generally refuse to fill a gap which the legislature has created, leaving it to the

legislature to address the issue.15

[30] As regards the provisions of 86(12) it was stated that this section

“… however permits representation by a union or employers’ organisation. But

this subsection refers to representation in arbitration proceedings in the context

of appearances and not in respect of proceeding referrals. Even if an

applicant’s representative on Form LC21 refers to a representative under

section 86(12) (which is by no means clear because of the wording of section

86(12), this does not clear up the massive potential confusion created by the

ineptly drafted form. Instead of facilitating matters, it serves to create confusion

and potential prejudice to unrepresented applicants.”

[31] I am in respectful agreement with the findings of Smuts J, especially with

regard to the immense difficulties in interpretation (especially with regard to the

rights of employees) of ambiguous and, at times perhaps, ill-conceived

provisions of our labour legislation which only serves to frustrate the process of

labour disputes when exactly the opposite was intended.

[32] I must also hasten to add that for purposes of this case that I respectfully

disagree with the interpretation of Rules 14 and 5 read with section 86. It is true

that Rule 14 provides that the party must sign the referral document. But Rule

14 refers to Rule 5, which must also be read with section 8(12). Rule 5 provides

that the document that a party must sign in terms of the Act or the rules, may be signed either by a party or by a person entitled in terms of the Act or the rules to represent the party in the proceedings. The union representative is

accordingly entitled by virtue of the provisions of section 86(12), to represent a

party in the “proceedings” which are arbitration proceedings. There is only one

party in these proceedings. In my opinion there is proper compliance with rule 5

15 At paras 20 and 21 and the authorities collected at footnote 5

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in this matter.

[33] In any event, it must be noted that the appellant had already lodged a

dispute to the Labour Commissioner and obtained an award in her favour, which

the respondents ignored, resulting in the lodging of a dispute for unfair dismissal

in 2012. Conciliation proceedings were also proceeded with. Respondents had

ample opportunity to raise this point at the outset, and if I am wrong in my

interpretation of the Rules and the Act on this point, I find that the respondents’

participation in the earlier proceedings vitiated any irregularity, following the

reasoning in Purity Manganese.

[34] In the case of Auto Exec CC v Johan van Wyk 16 the court followed Purity

Manganese in holding that the rule giver had not intended that proceedings

would result in nullity where the referral form had not been signed and where the

parties had participated in the proceedings. That is because the participation

amounted to a rectification of the unsigned form. I point out at this stage that in

the Purity Manganese matter, conciliation had taken place and the point was

raised at the commencement of arbitration proceedings.17 In the Autotec matter,

the point was raised after arbitration proceedings.

[35] What is also particularly confusing to me, is that the arbitrator in the body

of her judgment made it clear that she did not agree with the respondents’ point

on the nullity of Form LC 21 for the same reasons mentioned above, yet in her

order, she upheld the point.

[36] I now propose to deal with the second point in limine.

[37] It is apposite to deal with the relevant provisions of the Public Service

Act. Section 26 deals with provisions relating to misconduct and suspension of

staff members. Section 26(14)(a) allows a staff member to appeal inter alia

against a finding of guilt by the disciplinary committee. In terms of this section a

staff member may appeal within 14 days of receipt of the reasons and

16 (LC150/2013) [2014] NALCMD 16 (16 April 2014)17 See paras [7] and [8]

14

recommendation of the disciplinary committee, stating fully the grounds of

appeal.

[38] Section 26(17) provides that:

“If the staff member charged is deemed to have been found guilty or has been

found guilty of misconduct in terms of subsection (4) or (11), respectively and

has not appealed against the finding within the period mentioned in subsection

(14)(a), or has appealed against the finding and the appeal has been dismissed

in whole or in part under subsection (15)

(a) the permanent secretary concerned may approve the recommendation

made by the disciplinary committee in terms of section 12(a)(i) or (ii), or, if the

staff member charged is deemed to have been found guilty, take any action

which he or she could have taken if the disciplinary committee had

recommended it in terms of that subsection;

(b) The Prime Minister may, on the recommendation of the commission,

approve the recommendation made by the disciplinary committee in terms of

section (12)(a)(iii), (iv) or (v), or, if the staff member charged is deemed to have

been found guilty, take any action, on the recommendation of the commission,

which he or she could have taken if the disciplinary have recommended it in

terms of that subsection.”

[39] As I understand Mr Ndlovu’s argument, the appellant’s failure to note an

internal appeal within the time period set out in the Public Service Act resulted in

her being deemed to have failed to exhaust the internal remedies, and she was

therefore precluded from instituting proceedings in the office of the Labour

Commissioner. It also meant that the appellant was guilty by operation of law.

Alternatively, so the argument went, the appellant waived her rights to appeal

because she appeared late.

[40] It is common cause that the appellant did not note her appeal within the

timeframe set out in the Public Service Act due to a miscalculation of the

computation of the applicable dies. The effect was that if one calculated court

15

days, the appellant was in time for noting her appeal, and if one calculated the

calendar days, she was 4 days late. The result, according to Mr Ndlovu, is that,

in the absence of any provisions in the Public Service Act for condonation for

the failure to appeal on time, in terms of section 26(17) of the Public Service Act,

the appellant was deemed to have been found guilty because she had not

appealed against the finding within the requisite period. If I understand Mr

Ndlovu’s argument, the effect of this section is that, even if the appellant had

been involved in a motor accident resulting in her being in a coma for 4 days,

resulting in her filing a notice of appeal late, that would be the end of the matter

for the appellant, and she would have absolutely no recourse to the Labour

Commissioner.

[41] In support of this argument Mr Ndlovu relied on the Gouws case supra.

This case concerned and dealt with the provisions of section 24(5)(a)(i) of the

Public Service Act which states that any staff member who, without the

permission of the Permanent Secretary of the office, ministry or agency in which

he or she is employed, absents him or herself from his or her office of official

duties for any period exceeding 30 days shall be deemed to have been

discharged from the public service on account of misconduct with effect from the

date immediately succeeding his or her last day of attendance at his or her

place of employment. (Emphasis supplied)

[42] The employee in question absented himself without permission for this

period, after which he received a letter of dismissal. There was no disciplinary

hearing. He lodged a complaint with the District Labour Court, and the

complaint was dismissed. This case also dealt with the manner of computation

of the “days” referred to in the Public Service Act. Hoff J held that the days

referred to were calendar days as opposed to court days. In an application for

leave to appeal, a challenge to the constitutionality of the deeming provisions of

s 24(5)(a)(i) of the Public Service Act was raised, for want of compliance with

Articles 10(1), 12(1)(a) and 18 of the Constitution, and leave to appeal to the

Supreme Court was granted by Hoff J on 5 July 2013 in a judgment delivered in

Gouws v The Office of the Prime Minister 18 . 18 (LCA 31/2005) [2013] NALCMD 23 (5 July 2013).

16

[43] This appeal is still pending. But what is clear is that the Gouws case

dealt with a clear deeming provision of automatic termination without the

necessity of holding a disciplinary hearing in instances where the public servant

absents him or herself for more than 30 days.

[44] This case, again, is on different footing. A disciplinary hearing was

conducted in respect of the appellant. The appellant was found guilty of

misconduct. She noted an appeal which was late, but the provisions of section

26 still allowed the Prime Minister or Permanent Secretary to approve the

recommendations of the committee. Furthermore, the appellant lodged a

complaint with the Labour Commissioner in 2010 already and obtained an

award in her favour in 2012. It is only because the award was ignored by the

respondents that she launched a complaint based on the correspondence she

received reinstating her till 24 May 2012, and then dismissing her on 24 May

2012. Mr Ndlovu’s argument does not assist the respondents in this matter as a

result.

[45] Mr Ndlovu’s argument also loses sight of the provisions of section 2(2) of

the Labour Act which provides as follows:

“(2) Subject to subsections (3) to (5), all other sections of this Act apply to all

employers and employees except to members of the-

(a) Namibian Defence Force, unless the Defence Act, 2002 (Act 1 of

2002) provides otherwise;

(b) Namibian Police Force and a municipal police service referred to

in the Police Act 1990 (Act 19 of 1990), unless the Police Act, 1990 (Act

19 of 1990) provides otherwise;

(c) Namibian Central Intelligence Service, unless the Namibia

Central Intelligence Service Act, 1997 (Act 10 of 1997) provides

otherwise; and

(d) Correctional Service Act, 2012 (Act 9 of 2012), the Correctional

17

Service.

(3) The Minister may, by notice in the Gazette, declare-

(a) that any provision of a law listed in subsection (5) does not apply

to an employee if-

(i) it relates to the employee's remuneration, or other

conditions of service; and

(ii) it conflicts with this Act; or

(b) that any provision of this Act applies, with such modifications as

may be specified by the Minister in such notice, in relation to an

employee referred to in paragraph (a).

(4) If there is a conflict between a provision of this Act and a provision of a

law listed in subsection (5), in respect of which the Minister has not made a

declaration contemplated in subsection (3)-

(a) the provision of that other law prevails to the extent of the

conflict, if it is more favourable to the employee; or

(b) the provision of this Act prevails to the extent of the conflict, in

any other case.

(5) The laws referred to in subsections (3) and (4) are-

(a) the Apprenticeship Ordinance, 1938 (Ordinance 12 of 1938);

(b) the Merchant Shipping Act, 1951 (Act 57 of 1951); or

(c) any law on the employment of persons in the service of the

State.”

(Emphasis supplied)

18

[46] The Public Service Act is a law that “deals with the employment of

persons in the service of the State”. It is also apparent that the Public Service

Act conflicts with the Labour Act to the extent that it is less favourable to the

appellant, insofar as Mr Ndlovu’s interpretation of the relevant provisions of the

Public Service Act is concerned. Furthermore, the Minister has not yet declared

that this particular section does not apply to an employee in service of the State.

More importantly, according to subsection 2(4), if there is a conflict between the

provision of the Labour Act and the Public Service Act, if the provision of the

provision of the Public Service Act is less favourable to the employee, it cannot

prevail. Thus, the relevant provisions of the Public Service Act could have been

ignored by the arbitrator for purposes of determining whether or not the

appellant had been correctly, procedurally and substantively fairly dismissed or

not. It was not even necessary in the circumstances for the arbitrator to delve

into the arena of the constitutionality of the Public Service Act or any suspension

of proceedings in terms of rule 19 of the Conciliation and Arbitration Rules,

considering that the point had not even been raised. In light of the foregoing the

second point was clearly without merit, and Mr Jones’ submission that the

arbitrator erred was sound.

[47] I now propose to deal shortly with a further argument addressed by Mr

Ndlovu, namely that the Form LC 21 referral was the incorrect route to follow

because the appellant’s claim lay in chapter 5 of the Labour Act which deals

with unfair labour practices, instead of chapter 8 which deals with prevention

and resolution of disputes. What Mr Ndlovu’s argument fails to properly consider

is that section 51 of the Act provides that if there is a dispute about the non-

compliance with, contravention, application or interpretation of Chapter 5, any

party to the dispute may refer the dispute in writing to the Labour Commissioner.

Section 51(2) provides that the person who refers the dispute must satisfy the

Labour Commissioner that a copy of the notice of a dispute has been served on

all parties to the dispute. Section 51(3) provides that the Labour Commissioner

must then refer the dispute to an arbitrator to resolve the dispute through

arbitration in accordance with Part C of Chapter 8 of the Act. Chapter 5

disputes must also be referred to the Labour Commissioner to deal with Chapter

8. To my mind, this belated argument is also devoid of merit.

19

[48] In light of the foregoing I make the following order:

1. The appeal succeeds.

2. The matter is referred back to the arbitrator for consideration on

the merits.

______________________

SCHIMMING-CHASE

Acting Judge

20

APPEARANCES

FOR THE APPELLANT Mr Jones

Instructed by Köpplinger Boltman

FOR THE RESPONDENTS Mr M Ndlovu

Instructed by Government Attorney