‘Not Reportable’

CASE NO.: LC 105/2011

IN THE LABOUR COURT OF NAMIBIA

In the matter between:

ATLANTIC CHICKEN COMPANY (PTY) LTD Applicant

and

PHILIP MWANDINGI First RespondentVICKY KAIMU Second Respondent

CORAM: PARKER J

Heard on: 2012 March 23

Delivered on: 2012 April 25

JUDGMENT___________________________________________________________________

PARKER J: [1] The applicant has brought an application on notice of motion to

review the arbitration award made under Case No. CRWK 866-10, delivered on

22 August 2011 (copy thereof annexed to the founding affidavit as Annexure AT1).

The chapeau at p. 2 of the notice of motion, which reads ‘The proceedings and/or

decision/s which the applicant seeks to have reviewed and set aside are as

follows ...’ is, with respect, confusing. What the applicant prays the Court to review

and set aside is simply ‘the award’ as provided in the chapeau of s. 89(4) of the

Labour Act, 2007 (Act No. 11 of 2007) (hereinafter referred to as the Labour Act) and

not ‘the proceedings and/or decision/s’, as appears in the notice of motion. In the

law of arbitration ‘[t]he award is the consummation of the arbitration proceedings. ...

He (the arbitrator) must ... convey his decision to the parties in writing by means of a

document known as an award.’ (Butler and Finsen, Arbitration in South Africa: Law

and Practice (1993): para 7.1) By context, the word ‘award’ in s. 89 and passim of

the Labour Act also means the decision (i.e. ‘the judgment’) of the arbitrator.

[2] I have taken some time to discuss the meaning of ‘award’ as used in the

Labour Act so as to blow away the mist created by the formulation of the notice of

motion in the aforementioned clause: ‘... proceedings and/or decision/s which the

applicant seeks to have reviewed and set aside ...’ Having done that the next logical

thing to do is to look at the review application which the second respondent has

moved to reject.

[3] Mr Boltman, counsel for the applicant, and Mr Elago, counsel for the second

respondent, filed comprehensive heads of arguments and I am grateful for their

industry. As both counsel submitted, review of arbitration award under the Labour

Act is governed by s. 89(4) and (5) thereof; and it provides:

‘(4) A party to a dispute who alleges a defect in any arbitration proceedings

in terms of this Part may apply to the Labour Court for an order reviewing and

setting aside the award –

(a) within 30 days after the award was served on the party, unless the

alleged defect involves corruption; or

(b) if the alleged defect involves corruption, within six weeks after the

date that the applicant discovers the corruption.

(5) A defect referred to in subsection (4) means –

(a) that the arbitrator –

(i) committed misconduct in relation to the duties of an arbitrator;

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(ii) committed a gross irregularity in the conduct of the arbitration

proceedings; or

(iii) exceeded the arbitrator’s power; or

(b) that the award has been improperly obtained.’

Thus, as far as the Labour Act is concerned, the only basis upon which the Court

may review and set aside an arbitration award is when the applicant alleges and

proves ‘a defect’ in the arbitration proceedings (s. 89(4)). Significantly, the Labour

Act defines ‘defect’ (s. 89(5)). Without a doubt, the applicant must allege a defect in

the applicant’s founding affidavit and the founding affidavit must also contain ‘the

facts upon which the applicant relies for relief’ in terms of rule 6(1) of the Labour

Court Rules.

[4] In the present proceeding the founding affidavit is supplemented by a

supplementary affidavit. It appears Mr Elago does not object to the supplementary

affidavit being admitted as part of the applicant’s evidence; for, counsel submits,

‘The applicant is accordingly bound by its founding affidavit and supplementary

affidavit.’ And so it is to those affidavits that I now turn my attention to see if (1) the

applicant alleges defect in the arbitral proceedings and (2) the facts relied on in the

affidavits are sufficient to persuade the Court to grant the relief sought.

[5] In this regard it is worth noting that this is a review (and not an appeal) and ‘a

review does not as a rule import the idea of a reconsideration of the decision of the

body under review) ... Thus, judicial review is not concerned with the decision, but

with the decision-making process.’ (Gideon Jacobus Du Preez v The Minister of

Finance Case No. A74/2009 (judgment delivered on 25 March 2011) (Unreported),

para 3). That much both counsel agree. Thus, the applicant’s grievance must be

against the procedure followed in the arbitration. In all this, one cardinal principle

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stands out prominently: in a review, there is no onus on the respondent whose

conduct is the subject matter of review (in the instant case, the arbitrator (i.e. the first

respondent)) to justify his conduct. Thus, in the instant case, the onus rests on the

applicant to satisfy the Court that good grounds exist to review the award made by

the first respondent. (See Gideon Jacobus du Preez v The Minister of Finance

supra); and, a fortiori, a ground must find support in s. 89(4). Each ground must

establish a defect, in the sense that a ground must be proven on the basis of one or

more of the items adumbrated in s. 89(5).

[6] Does the applicant allege a defect or defects within the meaning of s. 89(4)

and (5) of the Labour Act? The applicant contends that the first respondent (1) was

not an independent and impartial trier of facts, (2) committed gross irregularities, (3)

committed several acts of misconduct in relation to her duties as arbitrator. What

grounds does the applicant rely on to prove its allegation of defect in the arbitral

proceeding? The applicant relies on grounds in the founding affidavit and the

supplementary affidavit. Some of the grounds in the supplementary affidavit merely

expand on the grounds in the founding affidavit, I must say. I now proceed to

consider them.

Founding affidavit grounds

Ground 1

[7] The first ground is that the arbitrator ‘committed a gross irregularity’. And why

does the applicant so contend? The applicant says the arbitrator did not allow the

applicant’s witness Tjikuzu to place before the arbitrator certain ‘bundle of

documents’ that are similar to ‘Exh C’, recording three or four transactions which,

according to the applicant, are further proof of the second respondent’s guilt of the

misconduct of ‘fraud’ with which the second respondent had been charged before a

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disciplinary hearing conducted by the applicant. In this regard, it must be

remembered that the applicant does not contend that the applicant’s witness was

prevented from placing Exh C before the arbitrator.

[8] The first respondent accepted Exh C which, according to the applicant, is

similar to the ‘bundle of documents’ and which Tjikuzu had wished to place before

the arbitrator as further proof of the first respondent’s guilt, not that Tjikuzu was

prevented from placing before the arbitrator other, that is dissimilar, evidence. One

should not lose sight of the fact that the arbitrator accepted that the second

respondent’s pin code was known to other employees, and so someone else could

have used her pin code to perpetrate the misconduct of ‘fraud’ which the first

respondent had faced at the disciplinary hearing, as aforesaid.

[9] In my view since Exh C was similar to the ‘bundle of documents’, I do not

think the first respondent can be faulted for preventing the ‘bundle of documents’

being added to Exh C which, as far as the arbitrator is concerned, would not prove

anything that Exh C has failed to prove since by the applicant’s own testimony they

are similar. It would have been a different consideration if there is anything in the

record to establish that the arbitrator prevented the applicant from calling viva voce

evidence, for instance, from the first respondent’s manager, supervisor or other

employees to contradict the first respondent’s evidence; that would be other

evidence. Indeed, to the credit of the first respondent, I must say the first respondent

adverts to this view in his award at para 19.3 thus:

‘[19.3] the responsibility to adduce evidence remained with the

parties and in this instance the respondent saw no need to call

witnesses to testify on some of the issues that are disputed by the

applicant such as the serious allegation of managers/supervisors

having access to her pin code. Strange enough it would seem the

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only basis on which the respondent was so sure that the applicant was

linked to the fraud committed was the fact that the fraud was linked to

the pin number. It would then have been reasonable to expect the

respondent to adduce evidence to prove that it was not possible for

any other person to make use of the pin number allocated to the

applicant in her absence. I have to state however that the respondent

did not and saw no need to adduce evidence in that regard.

[19.4] On the contrary, the respondent’s representative actually

admitted that there was such a practice and that such practice or

arrangement has since been done away with. The fact that the

respondent effected some changes soon after these incidents is clear

testimony (in my opinion) that there was a problem with the previous

arrangement.’

[10] With respect, I fail to see in what manner the arbitrator can be said to have

denied the applicant the right to place evidence before the arbitrator. There is rather

the failing of the applicant to place other evidence from the supervisor, manager and

the supervisor or other employees, for instance, before the arbitrator to contradict the

second respondent’s evidence – which was accepted by the arbitrator, as I have

previously said – that some other employees knew her pin code, and so someone

else could have used it to perpetrate the misconduct which had been placed at her

door. There is no failure by the first respondent to observe the audi alteram partem

rule of natural justice. Accordingly, I find that the applicant has failed to establish

that the first respondent committed misconduct in relation to the duties of an

arbitrator or committed any gross irregularity in the conduct of the arbitration

proceedings. It follows that the first ground fails.

Ground 2

[11] The basis of the second ground is encapsulated in the following statement in

the founding affidavit. ‘In my cross-examination of the second respondent I

questioned the second respondent with regards to her duty to bring it to the area

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manager’s attention that her pin code was allegedly known by other employees. She

informed me that at one stage she did so, however, when I wanted to ask her a

follow up question in this regard, and to prove that she did not comply with what was

expected of her, the first respondent intervened, and effectively stopped my cross

examination of the second respondent on this point.’ Tjikuzu asked a direct question

in cross-examination and the second respondent gave her an answer. Her answer,

in my opinion, is sufficient; and it is not ambiguous or double-talk: it is categorical,

sufficient and fully comprehensible. It would have been a different consideration if

Tjikuzu had informed the first respondent that he would want to lead evidence of the

area manager in order to contradict the evidence of the second respondent and the

first respondent had denied him the opportunity to so lead such other evidence. The

reason is that an answer by a witness under cross-examination in response to a

question which concerns matters which are relevant to the issue may be

contradicted by other evidence (Schwikkard, Principles of Evidence (1997): para 25

2 1). (Italicized for emphasis)

[12] In the instant proceeding, it is not the case of the applicant that Tjikuzu

wanted to place ‘other’ evidence before the arbitrator so as to contradict the

evidence of the second respondent on the issue of the pin code, but that applicant

wanted to bring evidence which stands in a similar position as Exh C. I am,

therefore, unable to fault the first respondent for not allowing Tjikuzu to bring in ‘a

follow-up question’. I cannot say the first respondent’s action amounts to a gross

irregularity. ‘Gross irregularity’ must be understood in terms of s. 89(5)(a)(ii) of the

Labour Act to be an irregularity which is so serious that it leads to no other

conclusion but to the conclusion that there has been a failure of justice. In fact, I find

that there is no irregularity; let alone a gross irregularity. By a parity of reasoning, I

find that on the facts the first respondent did not commit misconduct in relation to the

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duties of an arbitrator and he did not commit any gross irregularity in the conduct of

the arbitration proceedings. Accordingly, I conclude that the second ground fails.

Ground 3

[13] The third ground is formulated in the following terms: ‘After the first

respondent intervened and stopped my cross examination of the second respondent

on the issue of the pin code, he informed the hearing that the pin issue, according to

him, was dealt with. He commented that if the pin was known to more than one

person, it was no longer a secret. He made a comment to the effect that he is the

only one that is aware of the pin of his bank card, and if this is known to others then

it is no longer a secret.’ The third ground appears to be an adjunct to the second

ground. The basis of the third ground, according to the applicant, is that the first

respondent’s comment is an indication that he ‘had prejudged this issue’. I do not

agree. With respect, I fail to see how the first respondent’s comment that if the

second respondent’s pin code was known to more than one person it was no longer

a secret can be said to constitute an irregularity or misconduct committed by the first

respondent.

[14] The comment is, in my opinion, a priori of the second respondent’s

unchallenged evidence, which I have found previously in my treatment of the second

ground. And what is more; I know of no rule of Law of Arbitration – and none was

referred to me by counsel – which is contrary to this: that an arbitrator can rely on

common sense and his personal experience in an arbitral proceeding, particularly in

order to accept the truth of facts which are so well known that to prove them would

be completely unnecessary or even absurd. (See Butler and Finsen, Arbitration in

South Africa (1993): para 6.74.) If X’s automatic teller machine (ATM) pin code is

known by persons other than X that pin code is no longer a secret. That is common

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sense and human experience and a well known fact; and the first respondent was, in

my opinion, entitled to fall on common sense and his personal experience respecting

such well known fact which he applied against the aforementioned unchallenged

evidence of the second respondent.

[15] The applicant’s statement that there was undisputed evidence that the

‘second respondent had a duty to report any shortages in her till, and she failed to do

so’ cannot detract from the aforementioned unchallenged evidence. In any case, the

second respondent was not charged with the misconduct of failing to obey lawful

instruction: she was charged with fraud. I conclude that the applicant has failed to

establish that the first respondent committed any misconduct in relation to the duties

of an arbitrator or that he committed a gross irregularity, or any degree of irregularity,

in the conduct of the arbitration proceedings. It follows that the third ground fails.

Ground 4

[16] The fourth ground is based on this: ‘The first respondent, prior to the

conclusion of the matter, made a further comment to the effect that the applicant’s

faulty systems were to blame for what happened’. And according to the applicant

just because the comment was made before the first respondent had heard ‘the

closing statements of the parties, and prior to the matter having been adjourned for

the purposes of a finding’ the first respondent had ‘pre-judged the issues’. And for

that, according to the applicant, the first respondent committed misconduct in relation

to the duties of an arbitrator. With the greatest deference to the applicant, what the

applicant misapprehends is that closing statements of parties are not evidence.

Additionally, there is no rule of arbitration that an arbitrator cannot decide on a point

after hearing evidence unless and until the ‘matter’ is ‘adjourned for purposes of a

finding.’ In casu the first respondent heard evidence and considered it and having

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done that, he found that the applicant’s faulty systems were to blame for what

happened. Indeed, the applicant does not aver that there was no evidence upon

which the arbitrator could have made such factual finding.

[17] For the foregoing, I conclude that the first respondent did not commit any

irregularity that can lead to the conclusion that there has been a failure of justice: he

did not commit gross irregularity in the conduct of the arbitration proceedings; neither

did he commit misconduct in relation to the duties of an arbitrator. The result is that

the fourth ground fails.

Ground 5

[18] According to the applicant, this ground is based on the first respondent’s

finding that the chairperson of the disciplinary hearing was biased. And why does

the applicant so contend? The applicant’s contention is this: the arbitrator breached

his duty to consider ‘the uncontested appeal hearing in his award? With respect, the

applicant’s contention has not one jot or title of merit. The arbitrator was not sitting

on an appeal from the decision of the disciplinary hearing. What the Labour

Commissioner referred to the arbitrator to resolve through arbitration is the dispute

between the applicant and the second respondent (see National Housing Enterprise

v Maureen Hinda-Mbaziira and Others Case No. LCA 17/2011 (judgment delivered

on 3 April 2012) (Unreported). In my opinion, therefore, whether there was

‘uncontested evidence of a fair (disciplinary) hearing’ (according to the applicant) or

the ‘disciplinary hearing chairperson was biased’ (according to the first respondent,

as the applicant avers) is of no moment in the arbitration. The first respondent was

seized with a dispute of unfair dismissal and unfair labour practice between the

applicant and the second respondent after domestic remedies (i.e. disciplinary

hearing and subsequent appeal) had failed to resolve or settle the dispute (see

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National Housing Enterprise v Maureen Hinda-Mbaziira and Others supra). And it

was the duty of the first respondent to resolve the dispute through arbitration by

dealing with the substantial merits thereof (i.e. of the dispute) with minimum legal

formalities in terms of s. 86(7)(b) of the Labour Act. And in carrying out that duty the

first applicant heard evidence and delivered his award. I conclude, therefore, that the

applicant has failed to establish that the first respondent committed gross irregularity

in the conduct of the arbitration proceedings or that he committed misconduct in

relation to the duties of an arbitrator. The result is that the fifth ground fails.

Supplementary affidavit grounds

[19] In a rearguard action, the applicant filed by Notice a supplementary affidavit in

terms of rule 14(9) of the Labour Court Rules. And the applicant says it has done so

in order ‘to supplement and add to the grounds of review set out in the founding

affidavit.’ Rule 14(9) does not permit the applicant ‘to supplement and add to the ...

founding affidavit’. The applicant is permitted to ‘amend, add to or vary the terms of

the notice of motion’ and only ‘supplement the supporting affidavit’. (Italicized for

emphasis) Thus, pursuant to the interpretation and application of rule 14(9), the

applicant can only supplement (that is, ‘add in order to enhance or complete’

(Concise Oxford English Dictionary (11th edn)) the supporting affidavit. The applicant

is not therefore, permitted to amend or vary the supporting affidavit. The grounds in

the supplementary affidavit can only ‘supplement’ the grounds in the founding

affidavit. That is the manner in which I consider the supplementary affidavit grounds

of review. The applicant has set out 11 supplementary grounds. I now proceed to

consider them, and for the sake of clarity I shall add the letter ‘A’ to the first five

supplementary affidavit grounds of review so as to differentiate them from the five

supporting affidavit grounds of review which I have already considered.

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Grounds 1A, 2A, 3A, 4A, 5A

[20] The statements under these grounds which are put forth as facts upon which

the applicant relies for relief add nothing new and substantial. They cannot affect the

treatment I have given to Grounds 1, 2, 3, 4 and 5 and the conclusions I reached in

respect thereof. The reasoning and conclusions respecting Grounds 1, 2, 3, 4 and 5

must, therefore, apply with equal force to Grounds 1A, 2A, 3A, 4A and 5A. It follows

that Grounds 1A, 2A, 3A, 4A and 5A, too, also fail.

Ground 6

[21] The statements respecting this ground relate in a way to the disciplinary

hearing. What I said under founding affidavit Ground 5 applies to the disciplinary

hearing; and the questions by first respondent about the chairperson of the

disciplinary hearing cannot have any bearing of substance in the arbitral proceeding

that is capable of sustaining the contention that the first respondent committed

misconduct in relation to the duties of an arbitrator. It is too spineless to constitute

sufficient ground of review and the setting aside of the award. This ground, too, has

no merit, and it fails.

Ground 7

[22] Under this ground the applicant takes issue with the fact that, according to

the applicant, the first respondent’s continuous questioning of Tjikuzu amounts to

cross-examination by the first respondent and that in turn means the first respondent

‘was not impartial or independent in the conduct of the arbitration ...’ I do not agree.

One must not lose sight of the fact that the s. 86(7) entitles the arbitrator to conduct

the arbitration in a manner that the arbitrator considers appropriate in order to

determine the dispute fairly and quickly, and in doing so the arbitrator ‘must deal with

the substantial merits of the dispute with the minimum of legal formalities.’ In South

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Africa in terms of the Arbitration Act, 1965 (Act 42 of 1965) it has been said

authoritatively that the Arbitration Act confers sufficient powers on the arbitrator to

enable him or her to participate actively in the hearing by examining the parties and

their witness ‘inquisitorially’ (Arbitration in South Africa, supra: p 169). I do not see

any good reason why this textual authority should not apply with equal force to

arbitration under the Labour Act, considering s. 86(7)(a) and (b) of the Labour Act,

coupled with the act that the Arbitration Act is also the law governing arbitration in

Namibia. Of course, it would have been a different consideration if I found that the

first respondent had descended into the arena and taken part in the fight. For all the

above I find that Ground 7 has no merit and it must fail.

Ground 8

[23] The basis of this ground is that the first respondent told Tjikuzu that what

Tjikuzu was telling him was ‘a story’ not evidence; and the first respondent

proceeded to state that which, in his view, would amount to evidence. I do not see in

what manner such statements can be characterized as ‘a clear indication of the

hostile attitude of the first respondent towards’ Tjikuzu. Pace the applicant, as I have

found previously, the first respondent did not just accept the allegation of the second

respondent that someone else may have used her pin code number. I have dealt

with the evidence on this selfsame issue in extenso under the rubric of my treatment

of the evidence respecting the pin code, and it serves no purpose to rehearse it here,

particularly because what Tjikuzu now states in his supplementary affidavit adds no

weight, and so I cannot conclude otherwise. I find that the applicant was not, on this

score, denied a fair hearing of its case during the arbitration. It follows that this

ground fails.

Grounds 9 and 10

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[24] I find these two grounds to be intertwined, and so I consider them together.

According to the applicant while Tjikuzu was testifying in-chief his testimony was

interposed with the first respondent putting questions to the second respondent;

particularly the first respondent’s interjection, ‘No I want her to answer: what is the

purpose; why are you given a code? This was in retort to the second respondent’s

representative’s uncompleted attempt to answer the question. Thereafter, the

second respondent responded to the first respondent’s question, ‘I am not getting

you.’ The second respondent’s representative uttered words in Otjiherero (not

translated). Immediately after that the following exchanges ensued between the

second respondent and the first respondent:

‘Second respondent: To work the till.

First respondent: Okay. Is that how you understood it?

Second respondent: It’s supposed to be like that.’

[25] What occurs then is the uncontroverted and unchallenged testimony of the

second respondent that her pin code was known to other employees, particularly the

managers, as aforesaid. And I do not see how the interposing of Tjikuzu’s testimony

with that of the second respondent’s and the lone untranslated Otjiherero words

which apparently the first respondent understood and which the first respondent

respondent asked the second respondent to confirm in her own words can be said to

deny the applicant a fair hearing at the arbitration. Indeed, as I find, the answer ‘To

work the till’ is not an item of dispute that divided the parties. Indeed, the applicant’s

representative did not contradict that piece of evidence on the purpose of the pin

code, anyway. Besides, the question was not asked to test the credibility of the

second respondent. The first respondent was merely seeking clarification about

some testimony respecting the pin code that – I presume – was not clear. For all the

above, I do not find that the first respondent committed gross irregularity in the

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conduct of the arbitration proceedings or committed misconduct in relation to the

duties of an arbitrator that is capable of leading to the review and setting aside of the

award. In my judgment, these grounds must fail, and they fail.

Ground 11

[26] With the greatest deference to the applicant, there is not a wraith of merit in

the applicant’s characterization of the questions asked by the first respondent and

quoted in para 77 of the supplementary affidavit as leading questions. A leading

question is one which either suggests the answer or assumes the existence of

certain facts which might be in issue. (Hoffmann and Zeffert: p. 444) [Italicized for

emphasis] In my opinion, none of those questions suggests answers or assumes the

existence of facts which might be in dispute. It must be remembered that the clause

‘facts which might be in dispute’ is critical for the basis of the prohibition of leading

questions to exist. For all the aforegoing, I find that the first respondent did not

commit gross irregularity in the arbitration proceedings and he did not commit

misconduct in relation to the duties of an arbitrator. Accordingly, ground 11 also fails.

[27] Keeping the aforegoing reasoning and conclusions in my mental spectacle, I

hold that the applicant has failed to establish that it is entitled to the relief sought.

Whereupon, I make the following order:

1. The application is dismissed.

2. There is no order as to costs.

_______________PARKER J

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COUNSEL ON BEHALF OF THE APPLICANT:Mr J Boltman

Instructed by: GF Köpplinger Legal Practitioners

COUNSEL ON BEHALF OF THE SECOND RESPONDENT:Mr P S Elago

Instructed by: Tjombe-Elago Law Firm

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