REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 1313/2016

In the matter between:

MINE WORKERS UNION OF NAMIBIA PLAINTIFF

and

ROSSING URANIUM LIMITED DEFENDANT

Neutral citation: Mine Workers Union of Namibia v Rössing Uranium Limited

(I 1313/2016) [2017] NAHCMD 46 (24 February 2017)

Coram: OOSTHUIZEN JHeard: 29 November 2016Order Given: 17 February 2017Reasons Released: 24 February 2017

Flynote: Special Plea of Jurisdiction – Procedural Agreement - Collective

Agreement – Rectification – Whether plaintiff limited to proceed under Labour Act of

2007 only.

REPORTABLE

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Summary: Stated case – Legal Question – Whether High Court has jurisdiction over

plaintiff’s claim for rectification of a settlement agreement which is also a collective

agreement – Disagreement of parties – Whether plaintiff is limited to seek relief before

the Labour Commissioner or Labour Court by virtue of clause 6.3.1.3 of Procedural

Agreement, and sections 73, 84, 86 and 117 of the Labour Act, Act 11 of 2007 – Plaintiff

not so limited.

ORDER

Having heard Mr Barnard, for the plaintiff and Mr Maasdorp, for the defendant–

IT IS NOTED THAT:

The legal question agreed to by the parties and concerning defendant’s special plea, is:

Whether the plaintiff is limited to seek relief before the Labour Commissioner or Labour

Court by virtue of clause 6.3.1.3 of the Procedural Agreement, and section 73, 84, 86

and 117 of the Act?

Having considered the stated case and arguments by counsel -

IT IS ORDERED THAT:

1. The legal question posed, is answered in the negative and the special plea of

the defendant is dismissed.

2. Costs is awarded for the plaintiff against the defendant to include the costs of

one instructing and one instructed counsel.

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3. The judgment with neutral citation will be released on or before Friday,

24 February 2017.

4. The matter is postponed to Monday, 13 March 2017 at 11h30 for a status

hearing.

JUDGMENT

OOSTHUIZEN J:

Introduction

[1] The plaintiff instituted proceedings by way of Summons in the High Court on 26

April 20161 and the defendant defended the action and subsequently filed its notice of

intention to defend the action.

[2] The defendant then filed its plea on 27 July 20162 in which the defendant had

simultaneously raised a special plea of jurisdiction.

Stated case

[3] The parties jointly submitted a stated case which was dated and duly signed by

both parties on 17 November 2016.

1 Pleadings Bundle, p26.2 Pleadings Bundle, p12.

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[4] The plaintiff is Mineworkers Union of Namibia, a recognised and duly registered

Namibian trade union.

[5] The defendant is Rössing Uranium Limited, an employer in the Namibian mining

sector.

[6] The plaintiff is the recognised bargaining agent for all of the defendant’s

employees within grades 1 to 12.

[7] The parties’ relationship is governed by a “Procedural Agreement” concluded on

14 November 1988.

[8] The material terms of the Procedural Agreement are:

‘3.1 …it is the intention and purpose of this Agreement to set down the principles

which shall govern the relationship between the Company and the Union in terms

of the various aspects of the collective bargaining process and of the relationship

between employees, Members of the Union and the Company.’

and

‘6.3 Should any dispute arise in respect of this Agreement or other agreements

entered into between the Company and the Union, the parties shall take all

reasonable steps to resolve the dispute as expeditiously as possible.

6.3.1 THE DISPUTE PROCEDURE

6.3.1.1 The dispute procedure may be entered into for the

resolution of a procedural or substantive matter relating to

this Agreement or the relationship between the two parties.

6.3.1.2 Either party may declare a dispute and such declaration

shall be delivered in writing.

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STAGE I

As soon as possible and within five (5) days after the

declaration has been received, a meeting shall be

convened between the Company and the Union in an

attempt to resolve the dispute.

Should this fail to resolve the dispute and following a

statement confirming the failure being delivered in writing,

then:

STAGE II

The Company and Union negotiating teams will meet

within five (5) days of the receipt of the notice of failure at

Stage I and attempt again to resolve the dispute.

Should this fail to resolve the dispute and following a

statement confirming failure being delivered in writing,

then:

STAGE III

A conciliator shall be appointed to bring both negotiating

teams to agreement. Such a conciliator shall be agreed by

both parties and shall be appointed within five (5) days of

notice of failure at Stage II,

Should this fail to resolve the dispute and following a

statement confirming this failure being delivered in writing,

then:

STAGE IV

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A mediator shall be appointed to mediate between both

negotiating teams. Such a mediator shall be agreed by

both parties and shall be appointed within five (5) days of

notice of failure at Stage III.

Should this to resolve the dispute and following a

statement confirming this failure being delivered in writing,

then:

STAGE V

An Arbitration Board of three (3) people shall be appointed

to arbitrate between both parties. Such an arbitration board

shall be appointed within five (5) days of notice of failure at

Stage IV. The decision of the board shall be final and shall

be binding on both parties to the dispute.

6.3.1.3 At the end of Stage II, III or IV either party shall have

recourse directly to use the procedures and conditions of

the Ordinance or an Industrial Court (assuming such is

application to SWA/Namibia).

To abort the procedure by such action the party concerned

must inform the other party in writing giving five (5) days

notice of the intention.

6.3.1.4 The parties shall agree to pay the services of conciliator,

mediator and arbitration board in equal parts and shall

approach and agree upon such persons annually.

6.3.1.5 It is the intention that this procedure is followed completely

and that no precipitous industrial action be taken by either

party to break or force this Agreement.’

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and:

‘6.4.4 In the event of a deadlock, either party may invoke the dispute settlement procedure set

out in paragraph 6.3.1 above.

[9] On 24 June 2003 the parties concluded a written settlement agreement in full

and final resolution of a dispute then pending before the District Labour Court.

[10] The material term of the 24 June 2003 agreement is the first sentence of clause

5:

‘The parties agree that as of 1 July 2003 all 4-panel shift workers will be paid double

time for each Sunday worked during such shift cycle.’

[11] Between 1 July 2003 and 31 July 2014, the defendant paid a rate that amounted

to a triple pay for each Sunday worked during a shift cycle – double time on top of the

normal monthly remuneration.

[12] In August 2014 the defendant claimed that triple payments were mistakenly

made and started paying the 4-panel shift workers double time only.

[13] The plaintiff followed Stages I and II of the dispute resolution procedure under

paragraph 6.3, and 6.3.1.2 in particular, of the Procedural Agreement.

[14] On 12 November 2014 the plaintiff gave notice of the failure of Stage II and,

acting under clause 6.3.1.3, referred a dispute to the Labour Commissioner regarding

the defendant’s position with respect to clause 5 of the 24 June 2003 agreement.

[15] On 19 January 2015 the plaintiff withdrew its dispute before the Labour

Commissioner.

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[16] On 3 June 2015 Erich Beukes and 29 others, the actual employees affected by

the different interpretation of clause 5 of the 24 June 2003 agreement, referred a

dispute to the Labour Commissioner regarding the defendant’s position on clause 5.

[17] On 22 October 2015, the parties concluded a written memorandum of agreement

on the following terms:

17.1 The 4-panel system is reintroduced;

17.2 The employees working on the 4-panel shift system shall be paid on the same

basis as prior to 14 August 2014, before the correction by the plaintiff from triple pay to

double pay;

17.3 The payment for the 4-panel shift workers will be as per the 24 June 2003

agreement;

17.4 It was recognized that a dispute was lodged with the Labour Commissioner and

in the event that either party appeals to the Labour Court on the outcome of the case,

that the payment method shall remain in force until the case is concluded; and

17.5 When the arbitration award or appeal outcome is received the parties shall

reconvene to further decide on the matter and pave the way forward on Sunday pay.

[18] The agreement was concluded as the defendant wanted to reintroduce the 4-

panel shift system for more than 260 employees over and above the 28 employees who

had worked on the 4-panel shift system all along.

[19] Evidence was led in the arbitration of the dispute before the Labour

Commissioner and arguments raised. The arbitrator’s award was delivered on 11

December 2015. The arbitrator held for the defendant, and the affected employees

appealed. The appeal has in the meantime lapsed.

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[20] On 21 April 2016 the plaintiff referred a dispute to the High Court of Namibia,

seeking rectification of the settlement agreement. It claims that:

20.1 The parties had reached an oral agreement in June 2003 that provided inter alia

that the defendant would pay its employees working on the 4-panel shift system double

time for each Sunday worked during such shift cycle on top of the normal monthly

remuneration payable to such employee;

20.2 The parties had agreed to have their oral agreement reduced to writing;

20.3 The written agreement was supposed to but did not conform to the oral

agreement;

20.4 The incorrect formulation of in particular clause 5, was occasioned by a common

error and the parties signed the written contract in the bona fide but mistaken belief that

it recorded the true agreement between the parties.

[21] The defendant denied the alleged oral agreement to pay double time on top of

monthly remuneration, denied that there was an agreement that such oral agreement

would be reduced to writing, and denied that the parties made any common error.

[22] The defendant also raised a special plea of jurisdiction. This special plea is to be

adjudicated on the basis of this stated case.

Special plea of jurisdiction – High Court does not have jurisdiction, claim could only be referred to either the Labour Commissioner or the Labour Court (if not addressed internally)

[23] The defendant’s position is the following:

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23.1 Clause 6.3.1.2 of the Procedural Agreement sets out the stages of the agreed

dispute resolution procedure. Stages I and II must have been completed or have failed

before either party could seek relief externally under clause 6.3.1.3;

23.2 For the purpose of the defendant’s special plea, the defendant accepts that

Stages I and II have been completed or had failed. As such the plaintiff was entitled to

seek relief externally in accordance with clause 6.3.1.3;

23.3 The written agreement concluded in 2003 that is sought to be rectified with this

claim, was concluded between the plaintiff, a registered trade union, and the defendant,

an employer.

23.4 The written agreement concerns terms and conditions of employment and binds

the parties to the agreement and the defendant’s employees represented by the

plaintiff.

23.5 As such the written agreement is a collective agreement as envisaged in the

Labour Act, 11 of 2007 (“the Act”);

23.6 The issue in dispute on the plaintiff’s claim before this court is whether or not the

collective agreement should be rectified.

23.7 A dispute about rectification is a dispute about interpretation, application or

enforcement of a collective agreement;

23.8 The plaintiff could not permissibly file its claim in the High Court. Under clause

6.3.1.3 of the Procedural Agreement, and sections 73, 84, 86 and 117 of the Act, only

the Labour Commissioner, and in limited circumstances the Labour Court, had

jurisdiction to decide plaintiff’s claim.

[24] The plaintiff’s position is the following:

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24.1 The defendant relies on the provisions of sections 73(2) and 117(1)(d) for the

special plea that the High Court does not have jurisdiction to hear the claim for

rectification;

24.2. Section 73(2) places no obligation upon the plaintiff to refer the rectification issue

to the Labour Commissioner and does not exclude the jurisdiction of the High Court;

24.3 Section 117(1)(d) of the Act does not apply to the matter, as a claim for

rectification is not a declaratory order. The relief sought and the issues to be proven

differ;

24.4 Rectification of the settlement agreement is a contractual claim to be instituted by

way of action in the High Court.

The legal question

[25] The essential legal question is whether the High Court has jurisdiction over this

claim.

[26] The parties agree that the settlement agreement is a collective agreement

envisaged in the Act.

The parties disagree whether the the plaintiff is limited to seek relief before the

Labour Commissioner or Labour Court by virtue of clause 6.3.1.3 of the

Procedural Agreement, and sections 73, 84, 86 and 117 of the Act?

[27] A negative answer will defeat the special plea.

[28] A positive answer is required for the special plea to succeed.

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Jurisdiction — Statutory Framework

Namibian Constitution3

[29] Article 78(1)

‘The judicial power shall be vested in the Courts of Namibia, which shall consist of:

(a) a Supreme Court of Namibia;

(b) a High Court of Namibia;

(c) Lower Courts of Namibia.’

[30] Article 80(2)

‘The High Court shall have original jurisdiction to hear and adjudicate upon all civil

disputes and criminal prosecutions, including cases which involve the interpretation,

implementation and upholding of this Constitution and the fundamental rights and

freedoms guaranteed thereunder….’

High Court4

[31] Section 2

‘The High Court shall have jurisdiction to hear and to determine all matters which may be

conferred or imposed upon it by this Act or the Namibian Constitution or any other law.’

[32] Section 16

‘The High Court shall have jurisdiction over all persons residing or being in and in

relation to all causes arising and all offences triable within Namibia and all other matters

of which it may according to law take cognisance, and shall, in addition to any powers of

jurisdiction which may be vested in it by law, have power-

(a) to hear and determine appeals from all lower courts in Namibia;

(b) to review the proceedings of all such courts;

(c) ......

[Para (c) deleted by sec 2 of Act 10 of 2001.]

(d) in its discretion, and at the instance of any interested person, to enquire into and

determine any existing, future or contingent right or obligation, notwithstanding that such

person cannot claim any relief consequential upon the determination.’3 1 of 1990.4 Act No. 16 of 1990.

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Labour Act5

[33] Section 115

‘The Labour Court established by section 15 of the Labour Act, 1992 (Act 6 of 1992) is

continued, as a division of the High Court, subject to this Part.’

[34] Section 117

‘(1) The Labour Court has exclusive jurisdiction to-

(a) determine appeals from-

(i) decisions of the Labour Commissioner made in terms of this Act;

(ii) arbitration tribunals' awards, in terms of section 89; and

(iii) compliance orders issued in terms of section 126.

(b) review-

(i) arbitration tribunals' awards in terms of this Act; and

(ii) decisions of the Minister, the Permanent Secretary, the Labour

Commissioner or any other body or official in terms of-

(aa) this Act; or

(bb) any other Act relating to labour or employment for which

the Minister is responsible;

(c) review, despite any other provision of any Act, any decision of any body

or official provided for in terms of any other Act, if the decision concerns a

matter within the scope of this Act;

(d) grant a declaratory order in respect of any provision of this Act, a

collective agreement, contract of employment or wage order, provided

that the declaratory order is the only relief sought;

(e) to grant urgent relief including an urgent interdict pending resolution of a

dispute in terms of Chapter 8;

(f) to grant an order to enforce an arbitration agreement;

(g) determine any other matter which it is empowered to hear and determine

in terms of this Act;

(h) make an order which the circumstances may require in order to give

effect to the objects of this Act;5 Act No. 11 of 2007.

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(i) generally deal with all matters necessary or incidental to its functions

under this Act concerning any labour matter, whether or not governed by

the provisions of this Act, any other law or the common law.

(2) The Labour Court may-

(a) refer any dispute contemplated in subsection (1)(c) or (d) to the Labour

Commissioner for conciliation in terms of Part C of Chapter 8; or

(b) request the Inspector General of the Police to give a situation report on

any danger to life, health or safety of persons arising from any strike or

lockout.’

[35] Section 121

‘(1) The functions of the Labour Commissioner are-

(a) to register disputes from employees and employers over contraventions,

the application, interpretation or enforcement of this Act and to take

appropriate action;

(b) to attempt, through conciliation or by giving advice, to prevent disputes

from arising;

(c) to attempt, through conciliation, to resolve disputes referred to the Labour

Commissioner in terms of this Act or any other law;

(d) to arbitrate a dispute that has been referred to the Labour Commissioner

if the dispute remains unresolved after conciliation, and-

(i) this Act requires arbitration; or

(ii) the parties to the dispute have agreed to have the dispute

resolved through arbitration; and

(e) to compile and publish information and statistics of the Labour

Commissioner's activities and report to the Minister.

(2) The Labour Commissioner may-

(a) if asked, advise any party to a dispute about the procedure to follow;

(b) offer to resolve a dispute that has not been referred to the Labour

Commissioner through conciliation;

(c) intervene in any application made to the Labour Court in terms of section

79; or

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(d) apply on the Labour Commissioner's own initiative, to the Labour Court

for a declaratory order in respect of any question concerning the

interpretation or application of any provision of this Act.

(3) The Labour Commissioner may, where possible, provide registered

employers' organisations and registered trade unions with advice and

training relating to the objects of this Act including-

(a) designing and establishing procedures for the prevention and resolution

of disputes;

(b) the registration of trade unions;

(c) the design and content of collective agreements; and

(d) dismissal procedures.’

[36] Section 73

‘(1) Every collective agreement must provide for a dispute resolution procedure,

including an arbitration procedure to resolve any dispute about the interpretation,

application or enforcement of the agreement in accordance with Chapter 8 Part C

or D unless provision is made in another collective agreement for the resolution

of that dispute.

(2) If there is a dispute contemplated in subsection (1), any party to the dispute may

refer the dispute to the Labour Commissioner if-

(a) the collective agreement does not provide for a procedure as required by

subsection (1); or

(b) the procedure is not operative.

(3) The party who refers the dispute to the Labour Commissioner must satisfy the

Labour Commissioner that a copy of the referral has been served on all other

parties to the dispute.

(4)The Labour Commissioner may refer the dispute to an arbitrator to arbitrate the

dispute in terms of Part C of Chapter 8 or refer the matter for arbitration in

accordance with Part D of Chapter 8.’

[37] Section 84

‘For the purposes of this Part, "dispute" means-

(a) a complaint relating to the breach of a contract of employment or a

collective agreement;

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(b) a dispute referred to the Labour Commissioner in terms of section 46 of

the Affirmative Action (Employment) Act, 1998 (Act 29 of 1998);

(c) any dispute referred in terms of section 82(16); or

(d) any dispute that is required to be referred to arbitration in terms of this

Act.’

[38] Section 86(1)

‘Unless the collective agreement provides for referral of disputes to private

arbitration, any party to a dispute may refer the dispute in writing to-

(a) the Labour Commissioner; or

(b) any labour office.’

[39] Section 91

‘(1) For the purposes of this section "arbitration agreement" means any agreement

contemplated in subsection (2) and includes the arbitration procedure contemplated in

section 73.

(2) Parties to a dispute contemplated under this Act may agree in writing to refer that

dispute to arbitration under this section.’

Analysis, Application and Namibian Case Law

[40] The pertinent question to consider is whether the plaintiff is limited to seek relief

before the Labour Commissioner or Labour Court by virtue of clause 6.3.1.3 of the

Procedural Agreement, and sections 73, 84, 86 and 117 of the Act?

[41] Plaintiff claims for rectification of clause 5 of the settlement agreement (also a

collective agreement), which was reached on 24 June 2003, by adding the following

words at the end of the first sentence in paragraph 5: “… on top of the normal monthly

remuneration.”

[42] Defendant alleges that rectification is a dispute about interpretation, application

or enforcement of a collective agreement.

[43] Defendant argues as follows:

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‘11. The focus for the present purposes should be on the legislature’s choice of words in

s. 73(1). More specifically, on the use of the word ‘must’ in that subsection. Unlike an

employment agreement concluded between an employer and employee alone, by

including s.73 the legislature has compelled the parties to a collective agreement to

introduce a specific dispute resolution process that must include arbitration as

contemplated in Chapter 8, Parts C or D, of the Labour Act. (Part C deals with

arbitrations under the auspices of the Labour Commissioner and Part D with private

arbitrations.)

12. The intention of the legislature is clearly to compel parties to resolve their disputes

by arbitration – they only have a choice between statutory or private arbitrations.

13. Further support for this intention is found in the wording of ss. 84(d), 86(1) and 91(1)

of the Labour Act.’

[44] Plaintiff submitted inter alia the following:

’19. In a claim for rectification the plaintiff seeks to establish a factual situation i.e. that

the actual contract concluded is not correctly reflected in the written contract. It is factual

enquiry and such relief is normally sought in action proceedings. It is only in exceptional

circumstances that a party can succeed by way of motion proceedings.

See: Fourie’s Poultry Farm (Pty) Ltd v Kwa Natal Food Distributors (Pty) Ltd (in liquidation) and Others 1991 (4) SA 514 (N) at p. 526 E to 528 A

20. It is trite that “A party seeking to obtain rectification must show the facts entitling him

to obtain that relief….”.

See: Fourie’s Poultry Farm (Pty) Ltd v Kwa Natal Food Distributors (Pty) Ltd (in liquidation) and Others at p. 527 D

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22. It is trite that “… for the High Court not to entertain a matter, it must be clear that the

original and unlimited jurisdiction it enjoys under Article 80 of the Constitution and s 16 of

the High Court Act has been excluded by the legislator in the clearest terms.”

See: Katjiuanjo and Others v Municipal Council of the Municipality of Windhoek unreported judgment in the High Court of Namibia under case no. I 2987/20134 by the honourable Damaseb JP (as he was) then delivered on 21 October 2014 at [7] and [14]

23. Where a statutory provision purports to oust the jurisdiction of the High Court the

statutory provision must be given a strict construction. There is further a presumption

against the ousting of the jurisdiction of the High Court. If the legislator intended to do

so, it must be provided for in unequivocal language and for that unmistakable purpose.

See: Trustco Group International (Pty) Ltd v Katzao unreported judgment by the honourable Smuts J as he was then in case no. I 3004/2007 delivered on 24 November 2011 at [14] National Union of Namibian Workers v Naholo 2006 (2) NR 659 (HC) at [39] to [41]

25. The interpretation of the Labour Act 2007 the defendant contends for will have the

effect that the relief available to the plaintiff be limited. In an action for rectification the

court exercises a normal or wide discretion in deciding the matter which decision is

appealable in the normal sense. In an application for a declaratory a court exercises a

narrow discretion and an appeal court will interfere only where the discretion was not

exercised judicially. An appeal will be upheld only if it can be shown that “… the court

which heard the application exercised its discretion capriciously or upon a wrong

principle, or has not brought its unbiased judgment to bear on the question or has not

acted for substantial reasons…” or has “… committed a ‘demonstrable blunder’ or has

come to an unjustifiable conclusion’…”.

See: Southern Engineering and Another V Council of the Municipality of Windhoek 2011(2) NR 385 (SC) at [51] and [52]Hepute and Others V Minister of Mines and Energy and Another 2008 (2) NR 399 {SC) at [47]’

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[45] From the jurisdictional framework it is clear that a “dispute about the

interpretation, application or enforcement of the agreement” means the interpretation,

application or enforcement of an existing recordal of an agreement (as it is).6

[46] It is also clear that the Labour Act use the words interpretation, application or

enforcement in relation to declaratory orders.7

[47] The word ‘may’ in section 71(2) and (4) of the Labour Act refer to the exercise of

an option by either a party to a dispute or the Labour Commissioner itself. The word

‘must’ in section 71(1) clearly refers only to what must be contained in the collective

agreement i.e. arbitration procedure.

[48] The Labour Act does not exclude the High Court’s jurisdiction over claims for

rectification of labour related settlement agreements or collective agreements. Exclusion

of the High Court’s jurisdiction should not be by necessary implication. It must be in

clear and unambiguous terms.8

[49] It will be fruitless and self-destructive for plaintiff to continue with a claim for

rectification under the Labour Act which provides for interpretation, application or

enforcement of contracts as it is recorded. It does not cater for interpretation, application

and enforcement of contracts as it should read after rectification.9

[50] Defendant’s argument concerning the interpretation of section 71 of the Labour

Act departs from the premise that interpretation, application and enforcement of the

agreement, includes a claim for rectification. As pointed out above the court differs.6 Vide section 73(1) of the Labour Act, read together with the last 2 words thereof referring to “that dispute” which relates to the quoted words/phrase.7Vide sections 117(1)(d) and 121(2)(d) of the Labour Act, Act 11 of 2007.8 Vide 1) Nghikofa v Classic Engines CC 2014 (2)NR 314 (SC) at 318[18] and 319[20], 2) National Union of Namibian Workers v Naholo 2006 (2) NR 659 (HC) at 675[39] to [41] and 676[45], 3) Katjiuanjo v Municipal Council of the Municipality of Windhoek (I2987/2013)[2014] NAHCMD 311 (21 October 2014) paragraph [14], 4) Trustco Group International (Pty) Ltd v Stanley Nick Katzao (I3004/2007)[2011] NAHCMD (24 November 2011) paragraphs [14] and [16] to [18].9 Footnote 6 above.

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[51] Sections 84(d), 86(1) and 91(1) of the Labour Act do not support the submission

of defendant that the intention of the legislature is clearly to compel the parties to

resolve their disputes by arbitration in the present matter, which is for rectification.

[52] It is trite that a claim for rectification of an agreement is a claim to correct a

document that has been drawn in such a way that it incorrectly reflects the intention of

the parties. I concur with plaintiff that it seeks to establish a factual situation (when the

agreement was concluded). In other words that the actual agreement concluded is not

correctly reflected in the written contract.

[53] It is common cause between the parties that the defendant paid a rate that

amounted to triple pay for each Sunday worked during a shift cycle between 1 July 2003

and 31 July 2014, i.e. double time on top of the normal monthly remuneration for

Sundays. Defendant, during August 2014 claimed that the triple pay were mistakenly

made by it (for the previous 11 years).

[54] It is not in the exclusive domain of the Labour Commissioner or the Labour Court

to pronounce itself on the rectification of the 2003 agreement, if at all.

[55] In the event of the plaintiff succeeding in its present claim for rectification of the

2003 agreement in the future, plaintiff might very well find itself in a position where it is

limited in its choice of a forum when a dispute arises about the interpretation,

application or enforcement of the rectified agreement.

[56] This judgment is premised on the case as it was advanced before me and ought

not to be employed to endeavour an assertion that the High court will always exercise

jurisdiction in favour of labour litigants who do not want to approach the Labour

Commissioner or the Labour Court.

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[57] Even when the High Court finds that it has a concurrent jurisdiction with the

Labour Court, it might refuse to exercise it on grounds of convenience.10

[58] Having considered the stated case and arguments by counsel the following order

is made:

1. The legal question posed, is answered in the negative and the special plea of

the defendant is dismissed.

2. Costs is awarded for the plaintiff against the defendant to include the costs of

one instructing and one instructed counsel.

3. The judgment with neutral citation will be released on or before Friday,

24 February 2017.

4. The matter is postponed to Monday, 13 March 2017 at 11h30 for a status

hearing.

----------------------------

GH Oosthuizen

Judge

10 Vide Footnote 8 above, NUNW v Naholo, op cit, paragraph [48].

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APPEARANCES

PLAINTIFF: Mr Barnard

Instructed by AngulaCo Inc., Windhoek

DEFENDANTS: Mr Maasdorp

Instructed by Köpplinger Boltman, Windhoek