REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT

In the matter between: Case no: LCA 58/2015

ERASTUS IPINGE NEGONGA 1ST APPELLANT

JOSEPH S. IITA 2ND APPELLANT

and

SECRETARY TO CABINET 1ST RESPONDENTPRIME MINISTER OF THE REPUBLIC OF NAMIBIA 2ND RESPONDENTGOVERNMENT OF THE REPUBLIC OF NAMIBIA 3RD RESPONDENTPUBLIC SERVICE COMMISSION 4TH RESPONDENTMARTHA MBOMBO 5TH RESPONDENTABRAHAM NEHEMIA 6TH RESPONDENT

Neutral citation: Negonga and another v Secretary to Cabinet and others (LCA

58/2015) [2016] NAHCMD 19 (06 June 2016)

Coram: GEIER J

Heard: 22 April 2016Delivered: 06 June 2016

Flynote: Labour law — Appeal — From decision of arbitrator — Public service - Public servants - Dismissal — Unfair dismissal — Arbitrator making award in favour of employees by way of granting compensation - arbitrator declining to grant reinstatement as he considered reinstatement in the circumstances not practical due to the fact that the applicants had in the

REPORTABLE

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meantime attained the statutory mandatory retirement age in the public service of 60 — Employees, who had sought reinstatement throughout, noting appeal against arbitrator's award thus seeking reinstatement on appeal — Effect of s 10A and 14 of Public Service Act 2 of 1980 on employment contracts of public servants in question - terms of the statute superimposed on the relevant employment contracts of the appellants – effect of statute and residual terms on contract such that it had to be said that the arbitrator, when opting to award compensation did not misdirect himself in not awarding reinstatement -such decision also not being a decision which no reasonable arbitrator would have made - appeal consequently dismissed —

Labour law — Arbitration — Arbitrator's duties when making an award — the ‘remedy catalogue’ provided by the Legislature in section 86 (15) of the Labour Act 2007 must form the backdrop against which an arbitrator has to determine the award he has to make – in this regard he is further free to impose any ‘any appropriate award including …’ those that that are listed in sub-section 86 (15). If an arbitrator has to decide whether or not to award reinstatement or compensation he should further keep in mind that‘ … reinstatement is not the 'primary' remedy; an award of compensation is considered just as important. … ‘.

Labour law — Appeal — From decision of arbitrator — Public service - Public servants - Dismissal — Unfair dismissal — Arbitrator making award in favour of employees by way of granting compensation - arbitrator declining to grant reinstatement – Appeal court holding that in the circumstances of the case there could be no doubt that the arbitrator was correct when he took the applicable statutory and contractual framework into account when he considered what remedies were to be afforded to the appellants, and ultimately, when exercising his discretion, in not awarding reinstatement to the appellants. The statute and its impact on the contracts was not only a further important background consideration, at the time, for the arbitrator, but also one, which he could not ignore and which he had to apply.

Also the fact that the parties had historically not complied with the statute and

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its requirements as imposed on the employment contracts in question could not avail the appellants. It was held that neither the arbitrator nor the court of appeal could ignore the requirements of the law.

In any event also the Labour Court, with its wide jurisdictional of powers to grant appropriate relief, would not make an order which would be inconsistent with the rule of law and which would be in breach of a statute. The sought reinstatement would in this instance not only be inappropriate, as it would compel Cabinet to employ the appellants, in circumstances, in which they did not want to, but any such order would also be so far-reaching that the court would thereby also take over the functions which Parliament had assigned to the Public Service Commission and Cabinet. What the appellants were thus asking would further be inappropriate as it would ultimately also be in breach of the separation of powers doctrine. The decision not to grant reinstatement was thus correctly made and could also not be granted on appeal.

Court holding further that it was beyond doubt that it would be inappropriate for any court of law not to recognize and uphold- and apply the applicable valid statutory provisions, as the courts are fundamentally, obliged ‘to administer justice in accordance with the laws of the Republic of Namibia’. Summary: ‘First and second appellants respectively occupied the positions of Permanent Secretary in the Ministry of Gender Equality and Child Welfare and in the Ministry of Agriculture, Water and Forestry on five-year fixed-term contracts. Their contracts expired on 20 March 2015 and 22 March 2015 respectively. They continued to work until 2 April 2015, when they were issued with notices informing them that their employment contracts had come to an end. It was common cause that the Cabinet neither considered nor approved the extension of the appellants’ terms of office, that the appellants reached the age of 60 in August and September respectively, that the Public Service Commission neither considered nor recommended their retention in office beyond the age of 60, that The Cabinet did not approve their retention in office beyond the age of 60. On 1 June 2015 appellants filed a complaint of unfair dismissal with the Office of the Labour Commissioner. They claimed reinstatement in their positions as Permanent Secretaries, and compensation.

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The appellants contended that their fixed-term contracts were tacitly extended for a period of five years by virtue of the fact that respondents failed to reply to their letters querying the non-extension of their contracts, and they were allowed to continue to work until 2 April 2015. Appellants also claimed that the Secretary to Cabinet unfairly dismissed them when he issued them with termination letters on 2 April 2015. The arbitrator did not agree that appellants’ fixed-term contracts had been tacitly extended for another five year period. He found that their fixed-term contracts had expired on 20 March and 22 March 2015 respectively. With regard to the period during which appellants continued to work after the expiry of those contracts (23 March 2015 to 2 April 2015), the arbitrator found that they had been unfairly dismissed by the Secretary to Cabinet on 2 April 2015.

The arbitrator did not order reinstatement. He found that this was not practical, because appellants had in the meantime reached the retirement age of 60 years applicable to the public service. He instead awarded the appellants compensation until the period of the award or when they reached retirement age. He accordingly awarded them the equivalent of six months’ salary.

The Appellants were dissatisfied with the refusal by the arbitrator to order reinstatement. They appealed against that decision.’

The Labour Court held that it had not been shown that the exercise of the arbitrator discretion, to award compensation instead of reinstatement, could be assailed on the applicable principles. Appeal accordingly dismissed.

ORDER

The appeal is dismissed

JUDGMENT

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GEIER J:

[1] ‘The appellants formed part of thousands of Namibian men that took to the

battle front from the early 70s to 1989 to wage the war for national liberation and

independence of Namibia. Their contribution both before and after Independence

has been markedly recognized by the respondents. They are in fact decorated

freedom fighters and public servants.’ 1

[2] Both appellants, upon being afforded the opportunity, in terms of section 37(2)

of the Public Service Act, Act 13 of 1995, when it came into operation, elected that

their respective employment relationships should be dealt with in terms of section

10A of the repealed Public Service Act 2 of 1980. Any extension or non-extension of

their employment contracts would thus be in terms of the repealed Act.

[3] The effect of the aforesaid election by the appellants was that,

notwithstanding that Act 13 of 1995 had almost wholly replacing Act 2 of 1980,

sections 10A and 14 of the repealed Act (Act 2 of 1980) were kept alive so as to

enable staff members in the public service, such the Permanent Secretaries, to

choose whether or not they would be dealt with in terms of the new Act (then) i.e. Act

13 of 1995, or in terms of section 10A of the repealed Act 2 of 1980.

[4] It will already have been noted from the above introductory remarks that the

case, which now serves before this court, relates to an appeal. Counsel for the

respondents, in their heads of argument, sketch the current background to this

labour appeal as follows:

‘First and second appellants respectively occupied the positions of Permanent

Secretary in the Ministry of Gender Equality and Child Welfare and in the Ministry of

Agriculture, Water and Forestry on five-year fixed-term contracts. Their contracts expired on

20 March 2015 and 22 March 2015 respectively. They continued to work until 2 April 2015,

when they were issued with notices informing them that their employment contracts had

come to an end.

1 This is how the appellants portrayed themselves.

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The relevant provisions of the Public Service Act 2 of 1980 are applicable to the appellants.

They provide that:

1.1 The Cabinet may approve the extension of the term of office of a Permanent

Secretary for at least one year and not more than five years;

1.2 The retirement age is 60; but if it is in the public interest to retain an officer

beyond that age, he may with his consent be retained on the recommendation of the

Public Service Commission and subject to the approval of the Cabinet until the last

day of the month in which he reaches the age of 67.

It is common cause that:

1.3 The Cabinet neither considered nor approved the extension of the appellants’

terms of office.

1.4 The appellants reached the age of 60 in August and September respectively.

1.5 The Commission neither considered nor recommended their retention in

office beyond the age of 60.

1.6 The Cabinet did not approve their retention in office beyond the age of 60.

On 1 June 2015 appellants filed a complaint of unfair dismissal with the Office of the Labour

Commissioner. They claimed reinstatement in their positions as Permanent Secretaries, and

compensation.

The appellants contend that their fixed-term contracts were tacitly extended for a period of

five years by virtue of the fact that respondents failed to reply to their letters querying the

non-extension of their contracts, and they were allowed to continue to work until 2 April

2015.

Appellants claimed that the Secretary to Cabinet unfairly dismissed them when he issued

them with termination letters on 2 April 2015.

The arbitrator did not agree that appellants’ fixed-term contracts had been tacitly extended

for another five year period. He found that their fixed-term contracts had expired on 20

March and 22 March 2015 respectively.

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With regard to the period during which appellants continued to work after the expiry of those

contracts (23 March 2015 to 2 April 2015), the arbitrator found that they had been unfairly

dismissed by the Secretary to Cabinet on 2 April 2015.

The arbitrator did not order reinstatement. He found that this was not practical, because

appellants had in the meantime reached the retirement age of 60 years applicable to the

public service. He instead awarded the appellants compensation until the period of the

Award or when they reached retirement age. He accordingly awarded them the equivalent

of six months’ salary.

The Appellants are dissatisfied with the refusal by the arbitrator to order reinstatement. They

appeal against his decision.’

[5] The personal history, of each appellant, was more specifically then set out, on

their behalf, by their counsel:

‘THE FIRST APPELLANT: NEGONGA

1. Negonga was appointed Deputy Permanent Secretary in the Ministry of Defence on

21 March 1990.

2. On 28 March 1995 he was appointed Permanent Secretary in the Ministry of Defence

with effect from 21 March 1995.

3. Negonga was given the choice in terms of section 37(2)(a) of the Public Service Act

13 of 1995 (“1995 Act”) to elect, whether section 10A and 14 of the 1980 Act or the

provisions of the 1995 Act should apply to him.

4. Negonga chose that section 10A and 14 of the 1980 Act should apply to him.

5. Negonga did not receive a notice by Cabinet, as required by section 10A(2)(a) of the

1980 Act, before the expiry of his contract on 21 March 2000.

6. On or about 29 January 2001 Negonga was informed that approval had been granted

by the Prime Minister for his contract to be extended for a further period of 5 years with

effect from 21 March 2000.

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7. Negonga accepted the extension of his contract for a further 5 years with effect from

21 March 2000 on 5 February 2001.

8. No notice was given to Negonga, in terms of section 10A(2)(a), before the expiry of

his contract on 21 March 2005.

9. Negonga continued to work as Permanent Secretary for a further contract of 5 years.

10. On 2 December 2009 Negonga was informed by the Secretary to Cabinet that his

contract would end on 31 May 2010.

11. On 29 December 2009 Negonga informed the Secretary to Cabinet and the Prime

Minister on 18 January 2010 that he did not accept the notice dated 2 December 2009, as it

did not comply with the 6 months’ notice period.

12. During May 2010 Negonga approached the Labour Court on an urgent basis, asking

the Court to declare that his contract of employment is extended for a further term of 5 years

with effect from 21 March 2010 and to set aside of the notice dated 2 December 2009.

13. Before the Labour Court, the Prime Minister conceded that the notice did not comply

with section 10A (the 6 months’ notice period). The Court accordingly declared the notice

unlawful and set it aside. The declaratory relief was postponed without a date, but not

enrolled again for argument.

14. Negonga continued to work in his position as Permanent Secretary for the period

2010 to 2015.

15. During 2014 Negonga was called to a meeting with the previous Secretary to

Cabinet, Mr Frans Kapofi.

16. On 11 September 2014 Kapofi informed Negonga in writing that his contract will

expire in terms of section 10A of the 1980 Act, read together with section 37 of the 1995 Act

on 20 March 2015.

17. The 11 September 2014 notice, like previous notices to Negonga, was sent by the

Secretary to Cabinet without a decision of Cabinet as contemplated by section 10A of the

1980 Act.

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18. On 9 October 2014 Negonga’s legal practitioner wrote a letter to the Secretary to

Cabinet, the Prime Minister, the Chairperson of the Public Service Commission and the

Attorney-General principally questioning whether there was a Cabinet decision before the

notice was written to Negonga.

19. On 8 December 2014 Negonga’s legal practitioner wrote another letter to the Prime

Minister, the Chairperson of the Public Service Commission and the Attorney-General

stating that since no Cabinet decision was produced they assumed that no Cabinet decision

existed. The letter further stated that Negonga was advised to ignore the purported notice

and to arrange his affairs on the basis that there was no notice to him and that he is entitled

to remain in the office beyond the date set out in the notice.

20. Both letters were not responded to by any of the parties to whom it had been

addressed.

21. Negonga continued to work as Permanent Secretary after 20 March 2015 until 2 April

2015.

22. On 2 April 2015 the Secretary to Cabinet, Mr George Simataa, called Negonga to his

office and gave him a letter informing him that his employment contract expired on 20 March

2015.

THE SECOND APPELLANT: IITA

23. On 28 March 1995 Iita was appointed as Permanent Secretary in the Ministry of

Lands Resettlement and Rehabilitation on 12 calendar months’ probation, for 5 years, in

terms of section 10A of the 1980 Act.

24. On 10 July 1996 Iita was informed that the Prime Minister approved his confirmation

of his permanent appointment as Permanent Secretary of the Ministry of Lands,

Resettlement and Rehabilitation with effect from 22 March 1996.

25. Iita was given the choice, in terms of section 37(2)(a) of the Public Service Act 13 of

1995, to elect whether section 10A and 14 of the 1980 Act or the provisions of the 1995 Act

should apply to him. Iita chose that section 10A and 14 of the 1980 Act should apply to him.

26. On 26 April 2000 Iita received a letter informing him that the Prime Minister had

decided to transfer him to the Ministry of Mines and Energy as Permanent Secretary with

effect from 31 March 2000.

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27. On 26 January 2001 Iita was informed that the Prime Minister had approved the

extension of his term of office as Permanent Secretary for a further period of 5 years with

effect from 21 March 2000. He did not receive the requisite 6 months’ notice prior to that.

28. On 10 November 2004 Iita was requested to indicate whether he was available for an

extended term of employment and requested to reply within a week of the date of the letter.

This letter did not comply with the 6 months’ notice requirement contemplated under section

10A(2)(a) of the 1980 Public Service Act.

29. On 13 April 2005 Iita was informed that his contract of employment as Permanent

Secretary was extended to 22 March 2010.

30. On 18 April 2005 Iita accepted the extension of his contract of employment to 22

March 2010.

31. On 30 November 2009 Iita was informed by the Secretary to Cabinet that his

employment contract would expire on 30 May 2010. Iita was asked to indicate whether or

not he was available for a further extension of his contract. This letter did not comply with

the required 6 months’ notice period as contemplated under section 10A(2)a) of the 1980

Act.

32. On 4 December 2009 Iita wrote to the Secretary to Cabinet indicating that he was

available for a further 5 year extension of his contract.

33. On 6 April 2010 Iita was informed by the Prime Minister, on behalf of Cabinet, that his

contract had been extended with effect from 23 March 2010 to 22 March 2015.

34. On 8 April 2010 Iita accepted the extension of his contract for a further 5 years to 22

March 2015.

35. During 2014 Iita was called to a meeting by the Secretary to Cabinet (Kapofi).

36. On 12 August 2014 Iita after the meeting with Kapofi addressed a letter to the

Secretary to Cabinet stating, amongst other things, that he is not seeking an extension

beyond the expiry of his contract on 22 March 2015.

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37. On 9 December 2014 Iita wrote a letter to the Secretary to Cabinet withdrawing his

letter of 2 August 2014 and stating that he was willing to renew his contract beyond 22

March 2015 for another 5 year contract and that the contract was so renewed and explaining

the reason why he wrote the letter of 12 August 2014.

38. On 11 December 2014 Iita wrote another letter which made a correction and an

addition to the 9 December 2014 letter.

39. All 3 letters by Iita were not responded to by the Secretary to Cabinet, the Prime

Minister and the Public Service Commission.2

40. Iita continued to work as the Permanent Secretary until 2 April 2015.

41. On 2 April 2015 the Secretary to Cabinet, Mr George Simataa, called Iita to his office

and gave him a letter informing him that his employment contract expired on 22 March

2015.’

THE CORE FINDINGS AND AWARD

[6] It was against this background that the aforementioned labour dispute arose,

and which, after the lodging and hearing of the related labour complaint at

arbitration, culminated with the arbitrator making the following core findings:

‘1. The dismissal of Messrs Erastus Negonga and Joseph Iita on the 2nd April 2015 by

the respondent is both procedurally and substantively unfair.

2. Reinstatement in the circumstances is not practical due to the fact that the applicants

have in the meantime attained retirement age of 60.

3. The respondent, Government of the Republic of Namibia is hereby ordered to

compensate the two applicants, (Negonga and Iita), by paying them an amount equaling

(sic) to six months’ salaries made up as follows:

3.1 Erastus Negonga: N$64,390.16 x 6 = N$386,340.96

3.2 Joseph Iita: N$64 930.16 x 6 = N$386,340.96.’

2 Their silence, in the circumstances does not only amount to a tacit agreement to extend the appellants employment contracts beyond March 2015, but also as an approval for appellants to work beyond 60 years as contemplated under section 14(3) of the Act. This cannot be seriously disputed by the respondents.

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[7] The appellants, dissatisfied with their failure to be reinstated, then noted an

appeal only against the findings relevant to that part of the award, ie. the core

findings reflected under 2. and 3. above.

THE GROUNDS OF APPEAL

[8] The grounds of appeal that were formulated in this regard by the appellants

were:

‘(a) The Arbitrator erred, in law, in finding that reinstatement of the applicants

would be inappropriate and by ordering that the appropriate remedy should be compensation

for six months notwithstanding him having effectively found that the contracts of the

applicants were extended beyond March 2015 and that they would have been working as

Permanent Secretaries if it was not for the unlawful action of the Secretary to Cabinet Mr

Simataa. A reasonable Arbitrator given his findings on the merits would have granted the

relief sought by the applicants in its entirety.

(b) The Arbitrator further erred, in law, in holding a view that due to the fact that the

applicants have reached the age of 60 and that “no evidence was placed before me that a

decision was made to allow any of the two to serve beyond the retirement age” such is a bar

to the reinstatement of the applicants into their respective positions and/or to a declarator

that the applicants’ contracts were extended for 5 years.

(c) The Arbitrator erred in law in that he, having found that the applicants were unfairly

dismissed both in respect of substance and procedures he nevertheless opted for

compensation of 6 months instead of reinstatement when all evidence proves that there was

no breakdown of the relationship, there was no breakdown of trust and in fact the

respondents through their conducts and impliedly wanted the applicants to work beyond the

period of their respective erstwhile 5 years contracts for another 5 years contracts.

(d) The Arbitrator ruled that there was no evidence of the applicants’ concerned letters

having been placed before Cabinet. 3 In that respect the Arbitrator erred in that once receipt

and acceptance of the applicants’ letters by the Secretary to Cabinet are admitted by the

respondents it would follow that the applicants’ letters of November and December 2014 had

been received by Cabinet given the constitutional duties of the Secretary to Cabinet.’

3 This is notwithstanding the fact that both Ms Mbako and Mr Kapofi, former Secretaries to Cabinet received the appellants’ letters of October, November and December 2014. They received such letters on behalf of Cabinet and the President.

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THE GROUNDS OF OPPOSITION

[9] The respondents, with the exclusion of the fourth to sixth respondents (who

are all abiding with any decision) and without a cross-appeal have opposed the

appeal and the filed grounds of opposition read as follows:

‘1. The arbitrator was correct, and did not err, in not finding either that there had

been a tacit renewal, or that appellants had a substantive and enforceable legitimate

expectation that their contracts would be renewed for a further 5 years.

2. The arbitrator was precluded from granting an order reinstating the appellants, as they

had attained the retirement age in the public service, namely 60 years, and the statutory

preconditions for the retention of an officer beyond 60 years had not been met.

3. The arbitrator correctly found that

3.1 the appellants had not been retained in employment in accordance with the

requirements of the Public Service Act 2 of 1980 or the Public Service Act 13 of 1995;

3.2 he was precluded from making an order reinstating the appellants, alternatively

in the exercise of his discretion he should not grant an order reinstating the applicants,

having regard to the requirements of section 14(3) of the Public Service Act 2 of 1980

and/or section 24(2) of the Public Service Act 13 of 1995 for the retention of an officer

beyond retirement age, which had not been complied with.

4. The arbitrator correctly had regard to

4.1 the right of the employer [Cabinet] to decide, once it had followed the statutory

procedures, whether to retain the employees who had reached retirement age, and if so

for how long;

4.2 the fact that Cabinet had expressed itself (albeit belatedly) against retaining

appellants beyond the retirement age.

5. The arbitrator in terms of section 86 (15) of the Labour Act has a discretion as to the

relief to be granted in a particular case. The appellants have not demonstrated any legally

cognisable basis for

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5.1 finding that the arbitrator did not exercise his discretion in the manner required

by law; and

5.2 setting aside the arbitrator’s decision, and substituting it with a decision of the

court.’

WRITTEN ARGUMENT ON BEHALF OF THE APPELLANTS

[10] Prior to the hearing the appellants’ heads reflected the following written

arguments in support of the appeal:

‘B CERTAIN EVIDENCE AND OTHER ISSUES, CONSIDERATION OF WHICH

SUPPORTS THE APPELLANTS’ APPEAL

42. Flowing from the aforesaid common cause facts is that, throughout numerous

extensions over the period of more than 20 years, the appellants until the date of their

dismissal4 enjoyed employment contractual rights flowing from their choice that they would

be dealt with in terms of section 10A of Act 2 of 1980.

43. Therefore any extension5 (as it has been done before) would be done in terms of that

Act so that once it is accepted that the preceding five-year contracts of the appellants ended

on 20 and 22 March 2015 the new employment contract with effect from 20 and 22 March

2015 onward, respectively, would likewise be subjected to the provisions of section 10A(c)

which provides that:

“an officer’s term of office as a head of department as prescribed in paragraph (a) or

(b) may, subject to the provisions of subsection (2), be extended at the expiry thereof

for a period or successive periods of at least one year, but not exceeding five years,

as the cabinet or executive authority of a representative authority may approve.”

44. We accordingly submit that following the appellants’ written position and

representations (proposing tacit terms) to the respondents, including the fourth respondent6,

during October, November and December 2015,7 that they would arrange their affairs on the

basis that their contracts will be extended beyond March 2015 (as it turned out) seeing that

4 2 April 20155 Including the last extension from 20 and 22 March 2015 respectively6 The Public Service Commission7 Record p 24 – 30 and 114 - 116

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there was no requisite lawful six month notice prior to the expiry, it should follow that the new

extension from 20 and 22 March 2015 onwards will be for at least a year but not exceeding

five years, as contemplated by section 10A(c), notwithstanding the then approaching 60

years’ age of the appellants between March 2015 and September 2015.

45. In any event we submit further that the respondents’ silence and conducts between

October 2014 to April 2015 actually confirms the requisite approval for the appellant to work

beyond the age of 60 as per section 14(3). This is more so because the respondents’

witnesses never suggested that it was not in the interest of the public for the appellants to

work beyond the age of 60.

46. We contend further that it was up to the respondents to have coordinated the expiry

of the appellants’ contracts to coincide with the retirement or to have extended their

contracts in the past to a shorter period of time than five years (but not less than one year)

and to give a proper requisite six months’ notice if they did not want another extension of the

appellants’ employment contracts. Both parties’ witnesses at the Arbitration hearing

confirmed that once there is an extension the 60th years’ birthday of the employee in

between becomes irrelevant.8 The first appellant gave undisputed past examples of people

like Ndeutala Angolo and Others including Mr Kapofi who all worked beyond 60 years.

47. The respondents acknowledged the correctness of such legal position when they

recorded at page 141, paragraph 9.5 of the Record that:

“An extension of their employment contracts for a period shorter than one year is not

possible, because of the provisions of section 10A(1)(c) of the 1980 Act which

requires an extension of at least a year by Cabinet.” (Own emphasis)

48. The aforesaid recordal and submission was made at the time the respondents were

contending that the appellants were not dismissed as their contracts expired on 20 and 22

March 2015 respectively by efluxion of time. This contention was rejected by the Arbitrator

when he accepted that the preceding five years contracts ended on 20 and 22 March 2016

but a new contract of employment came into force, hence the appellants’ dismissal on 2 April

2015. The new contract of employment, as before and as chosen by the appellants, was

likewise an extension in terms of section 10A of the Act.

49. We contend therefore that once the Arbitrator found that as a matter of law after 20

and 22 March 2015 the appellants started serving on new employment contracts and the

8 Record p 292 – 294, 301 – 302, 439 – 440 and 502

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parties are ad idem that any extension can only be in terms of the chosen section 10A of the

Public Service Act of 1980, then it would follow (in the absence of a cross-appeal by the

respondents) that the appellants’ new contracts could never be less than a year and more

than five years, as contemplated in terms of section 10A(1)(c) irrespective of their respective

60th year approaching.

50. The above position is reinforced by the appellants’ legal position as put to the

respondents in writing during October, November and December 2014 (and which position

the respondents accepted through their silence) that the appellants would work beyond

March 2015.9

B. DEMONSTRABLE ERRORS BY THE ARBITRATOR [THE ARBITRATOR ERRED IN NOT

ORDERING REINSTATEMENT]

51. The Arbitrator effectively rejected the respondents’ contention at arbitration which

was to the effect that:

“the respondents contended that in the absence of a renewal of Negonga and Iita’s

employment contracts, the contracts expired by efluxion of time on 20 March 2015

and 22 March 2015.”10

52. We contend that once the Arbitrator rejects such respondents’ position he was

understandably driven to find, as he found, that:

“the dismissal agreed to relates to the new contract allegedly tacitly entered into by

the parties according to the applicants’ contention, and in any event no dismissal

could exist in respect of the contract that came to an end in March 2015. ...”11

53. It is clear from the aforesaid that the Arbitrator accepted that the preceding five years

employment contracts of the appellants ended on 20 and 22 March 2015, and new

employments contracts commenced immediately so that by 2 April 2015 (the date on which

the appellants were unlawfully dismissed) the appellants were, as found by the Arbitrator, on

new employment contracts.

9 Stier and Another v Henke, 2012 (1) NR 370 (SC)

10 Record, p. 140, para. 811 Record, p. 257, para. 122

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54. Those new employment contracts, we submit, are another extension which occurred

in terms of the appellants’ chosen provisions of section 10A of the Public Service Act of

1980. Such contract cannot be for less than a year or more than five years.

55. The Arbitrator, having correctly found that the appellants were on a new contract, and

appreciating that any extension would be in terms of the chosen provisions of section 10A of

the Public Service Act of 1980, regrettably found unsound reasons to deny the appellants

reinstatement. Those unsound reasons appear to be only:

66.1 That the appellants were approaching retirement age, and that they could not

work beyond 60 years as neither their Ministries nor the appellants themselves have

submitted a well-motivated request to government on recommendation of the Public

Service Commission, to work beyond the age of 60.12 But the appellants had written

to all respondents and expressed their unequivocal intention to continue working

during October, November and December 2014. All what is required in terms of

section 14(3) is their consent. They gave it.

66.2 The Arbitrator explicitly (but mistakenly) relied on the provisions of section

24(2) of the Public Service Act of 1995, which is inapplicable to the appellants as

they chose to be dealt with in terms of section 10A and 14 of Act 2 of 1980.

66.3 The other reason that found favour with the Arbitrator when he opted against

the reinstatement was the fact, as captured under paragraph 129 of the Award,13 that:

“[129] It would seem the respondents had no problem in principle to allow

the applicants to continue working beyond the expiry of their contracts and up

until when they reached retirement age. The problem appears to emanate

from a prohibition in the 1980 Act that the minimum extension period is for 1

year. For the one year extension to be granted, certain procedures must have

been followed and as earlier indicated none of those options were exercised

by the applicants and or their respective Ministries. No evidence was adduced

to suggest that the applicants were in any way prevented from exercising their

rights and make representations to the respondent in terms of section 24(2) of

12 Record, p. 255 para. 111. That reasoning is unduly formalistic and wrong. The appellants respective Ministers were surprised by the dismissal of the appellants. The Prime Minister, who is the leader of the Government Businesses was also surprised. The Public Service Commission did not object then during October/November 2014 and did not oppose the appellants’ reinstatement in these proceedings. It is still not objecting.13 Record, p. 258. The not less than one year prohibition under section 10A(c) is actually in favour of the appellants’ case not the other way.

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the Public Service Act, (Act 13 of1995), and or similar provisions in the 1980

Act.” (Own emphasis)

56. While the Arbitrator appreciated that any extension of the appellants’ employment

contract cannot be less than a year, he erratically however found that he was unable to grant

the appellants a reinstatement beyond 60 years, or at least for one year, as no evidence was

adduced to suggest that the appellants have made representations to the respondents in

terms of section 24(2) of the Public Service Act, Act 13 of 1995.

57. We submit that such reasoning is self-destructive and irreconcilable with the facts

and the law as the appellants with the tacit agreement and concurrence of the respondents

made their position clear in writing during October, and November 2014, that their contracts

were to be extended (of course in terms of section 10A of the Public Service Act of 1980)

from March 2015, a further period in terms of section 10A.

58. We submit the respondents, including the Cabinet and the fourth respondent,

accepted the appellants’ position with regards to the extension of their employment which

cannot be less than a year in terms of section 10A(c) –through their firm, clear and overt

silence in the face of a duty to speak out. In addition the respondents admittedly caused the

appellants to work beyond 20 and 22 March 2016. They have thus tacitly agreed to another

five years employment contract and have thus granted their approval for the appellants to

work beyond 60 years. See Stier and Another v Henke-supra at p 379 F-J:-

"(c) Mr Heathcote then goes on to submit that the best which can be said

for respondent is that she had a reservation in her own mind and quotes in Pieters

and Company v Salomon 1911 AD 121 where it was said at 137:

'When a man makes an offer in plain and unambiguous language, which is

understood in its ordinary sense by the person (to) whom it is addressed, and

accepted by him bona fide in that sense, then there is a concluded contract.

Any unexpressed reservations hidden in the mind of the promisor are in such

circumstances irrelevant.'

Mr Strydom referred to a number of cases where it was emphasized that an offer and

an acceptance must be unequivocal direct or unambiguous. In the circumstances of

this case, I find nothing ambiguous or equivocal in Stier having drafted and

distributed the document to the partners after it was admittedly agreed that an

19

agreement be drafted, a collective decision, as I have already said, “to stipulate the

relationship to the parties”. The unexpressed reservation by respondent for nearly

two years, after she typed the document and had full knowledge of its contents, is a

silence that speaks volumes against her. It is trite that inaction or silence in law

amounts to an act, like the act of omission, particularly where you have a duty to

speak out. Mr Stier repeatedly said he expected comments to come from his

partners and concluded, in the absence of any such comments, that the document

was accepted by them. A chartered accountant is not a simple unsophisticated

person from the street.

And at 380 A – J:

(d) Mr Heathcote lastly submitted, correctly, I must say, that the unsigned

partnership agreement did not stipulate what mode of acceptance will

constitute an agreement, and referred to Seeff Commercial and Industrial

Properties (Pty) Ltd v Silberman, supra, at para [19] where the following was

stated:

“In my view, the defendant did not require or expect acceptance of its

proposal as regards para 1 of A1. The comment, however, clearly

placed a duty on the plaintiff to object to the proposal if he did not

agree to it. The plaintiff’s silence and his conduct in proceeding with

the project constituted acceptance of the said proposal and it was so

understood by the defendant. The evidence in this case brings the

matter squarely within the principle discussed above and expressed as

follows by Miller JA in McWilliams v First Consolidated Holdings (supra

at 10E):

‘I accept that “quiescence is not necessarily “acquiescence” (see

Collen v Rietfontein Engineering Works 1948(1) SA 413 (A) at 422)

and that a party’s failure to reply to a letter asserting the existence of

an obligation owed by such party to the writer does not always justify

an inference that the assertion was accepted as the truth. But in

general, when according to ordinary commercial practice and human

expectation firm repudiation of such an assertion would be the norm if

it was not accepted as correct, such party’s silence and inaction,

unless satisfactorily explained, may be taken to constitute an

admission by him of the truth of the assertion, or at least will be an

20

important factor telling against him in the assessment of the

probabilities and in the final determination of the dispute.’”

(e) Mr Heathocte concluded his submissions by stating:

“22.7 Moreover, the respondent must have seen the material

differences, if compared with the old agreement. It is submitted that

the McWilliams – case quoted above finds downright application

given the fact that partners owe good faith to each other. The

defendant had to speak out, particularly in circumstances where, in

her presence, it was said that the agreement should be signed. Yet,

she did not do so until she decided to resign.”

[13] I agree with the above submissions and must repeat that Stier

was asked several questions in cross-examination, all of which putting

to him that all that he did was to ask respondent to type the unsigned

agreement; he repeated and emphasized that the other partners,

including respondent, were asked to comment on the new agreement,

that this went on for over a year, and that respondent had over fifty

opportunities when she could have expressed her unhappiness or

suggested any changes or alterations to the draft in areas she might

have had problems with. In the circumstances I find it was reasonable

for Stier to conclude, as he said in evidence, that the agreement was

accepted by respondent and Vente."

See further Christie The Law of Contract in South Africa, 3rd ed. p. 89:

"An inquiry into whether a contract has been concluded by conduct

differs from an inquiry into whether a contract has been concluded by

quasi-mutual assent. In the quasi-mutual situation it is accepted that

there is no true consensus ad idem. The one party says "But I never

agreed", to which the court replies "Quite so, but your conduct led the

other party reasonably to believe you agreed, so you will be treated as

if you had agreed". The inquiry is concerned with the effect of the one

party's conduct upon the other as a reasonable man. In the tacit

agreement situation the one party says "But we truly agreed; our (or

my, or his) conduct proves it", and the inquiry is concerned with the

proper inference to be drawn from the proved facts. The relevant facts

21

must be both pleaded and proved." (Own emphasis)

59. Further we submit that in any event, it can be taken on the facts (particularly in view

of the fact that the fourth respondent is abiding by any decision) that it would be in the public

interest for the appellants to work beyond the age of 60 as contemplated in terms of section

14(3) of Act 2 of 1980, which reads as follows:

“…

14(3) If it is in the public interest to retain any officer in employment in his post

beyond the age at which, in accordance with subsections (1) and (2), he shall be

retired he may, with his consent, be so retained from time to time on the

recommendation of the Commission and subject to the approval of the Cabinet for

any further period expiring no later than the last day of the month in which he attains

the age of sixty-seven years. [Public Service Amendment Act, 1990 (Act 24 Of

1990)].

… .”

60. The above is confirmed by the Arbitrator himself by finding that “there was no

evidence suggesting that the appellants were bad employees”.14 We submit that the

evidence that both the Prime Minister and the appellants’ respective Ministers were shocked

by the abrupt dismissal of the appellants; the appellants’ various commendations and

medals over the years, all inherently and compellingly confirm that the appropriate remedy is

the reinstatement for further five years or for another period not less than one year.

61. More devastating to the respondents’ case is further the fact that while the Arbitrator

held himself as unable to order reinstatement of the appellants in their positions on the basis

of the alleged retirement age of the appellants – in the case of the first appellant on 16

September 2015 and in case of the second appellant on 6 August 201515 – the Arbitrator,

inconsistently with his aforesaid reasoning, proceeded and compensated the appellants by

ordering a payment of a six-months salary to each which salary period in both cases

extended beyond the respective 60 years of the appellants.16

62. If one counts six months from 2 April 2015, in both cases such period exceeds the

retirement age of both appellants. The Arbitrator’s reasoning was therefore self and

14 Record p 25615 Record, p. 141 para. 9.216 Record, p. 259. This completely undermines his reasoning about the retirement age. There is no cross-appeal against six months’ salary ordered. This is fatal.

22

mutually destructive. It would follow that without a cross-appeal by the respondents a

retirement age could never be and was not a bar to a reinstatement in the circumstances of

the appellants.

63. In summary we therefore submit that the Arbitrator did not properly exercised his

discretion when notwithstanding him having found that the appellants’ contracts were

extended beyond March 2015 (which extension in terms of section 10A cannot be less than

a year and not more than five years) he held himself being unable to order reinstatement on

the basis of misconstruction of section 10A in particular section 10A(c) of the Public Service

Act of 1980 and not properly considering the common cause facts. A reasonable Arbitrator in

his position would therefore have granted the relief sought by the appellants.17

64. We further submit that the Arbitrator’s reasoning that no evidence was placed before

him that a decision was made to allow the appellants to work beyond the retirement is erratic

in that section 14(3) of the Public Service Act of 1980 quoted above makes it possible for a

person to work up to the age of 67 if it is in the public interest. In the view of the excellent

performance of the appellants over the years, the pleaded tacit agreement if one has regard

to the appellants’ correspondences during October and November 2014, and the fact that

the Public Service Commission did not oppose the arbitration (thereby abiding by the

decision of the Arbitrator), the Arbitrator should have found that on the facts the parties have

agreed to the extension incorporating appellants working beyond the age of 60.18

65. We further submit that once the Arbitrator found that the appellants’ were unfairly

dismissed - opting for compensation of six months instead of reinstatement in the

circumstances where there was an excellent relationship between the appellants and the

their Ministers19 would be unreasonable and wrong. The above is reinforced by the evidence

that the Prime Minister was surprised by the dismissal of the appellants and the appellants’

respective Ministers were also surprised by the unlawful decision of the first respondent.20

66. Finally we submit that the Arbitrator got it wrong in reasoning that notwithstanding the

first respondent (who is the Secretary to Cabinet in the person of Ms Mbako and Mr Kapofi)

admitting to have received and considered the appellants’ correspondences during October

and November 2014 the Arbitrator unreasonably still reasoned that there was no evidence

that such letters were given to Cabinet notwithstanding that it would be sufficient for an

outsider to prove delivery and acceptance of any correspondence to the Secretary to

17 First ground of appeal18 Second ground of appeal19 Representing the respondents. The Ministers are members of Cabinet. 20 Third ground of appeal

23

Cabinet as proper service of correspondences to Cabinet given the constitutional powers of

the Secretary to Cabinet.

67. We therefore boldly contend that a strong case has been made out for the

Arbitrator’s award in as far as it relates to compensation instead of reinstatement to be set

aside and replaced with the reinstatement sought.

68. We submit that this court would be in a better position and would have an obvious

comfort to order reinstatement for the following reasons:-

79.1 the dismissal occurred recently – that is twelve months ago;

79.2 the respondents were restrained by this court to fill the appellants’ respective

positions pending finalization of the appeal; so the positions are still open;

79.3 none of the recognized factors that may discourage a reinstatement would be

applicable; and

79.4 the factors count against reinstatement listed by the Supreme Court in

Nicolaas Swartbooi and Another v Mwanawina Sonnyboy Mbengela NO and 2

Others,21 under para 46 do not apply.

21 Case Number SA 73/2013, Supreme Court of Namibia Judgment delivered on 24 November 2015 at para 46:-

‘[46]  The appellants had been dismissed in May 2010, nearly five and a half

years before this appeal was heard. Their positions with the third respondent would

no doubt have been filled in the intervening period. The Labour Court has declined to

order reinstatement in cases of delay, given that prejudice could result to innocent

third parties who have positions held by successful appellants. Other factors to be

taken into account in declining to order reinstatement have been where the

employment relationship has broken down or trust irredeemably damaged. These

factors are not exhaustive. Plainly the remedying award is not only to be fair to

employees but also to employers. In this instance, the delay of more than five years

from the dismissals renders a reinstatement impractical, inappropriate and unfair to

an employer as was understandably accepted by Mr Rukoro on behalf of the

appellants.’

24

C. CONCLUSION

69. The respondents’ grounds of opposition (without a cross-appeal) are almost

ineffectual and irrelevant given the fact that the respondents’ main argument during the

hearing at Arbitration was that there was no extension of the appellants’ employment

contracts beyond 20 and 22 March 2015.

70. Once that argument was rejected and the Arbitrator finding that new employment

contracts came into force and that the appellants were unfairly dismissed while serving on

the new employment agreement we submit that for the respondents to be better positioned

to effectively oppose this appeal, they ought to have filed a cross-appeal.

In view of the aforesaid ill-advised and fatal omission to file a cross-appeal we submit that

the appellants have made out a case for the appeal to succeed and for the court to order the

reinstatement of the appellants for a period of five years or any appropriate period between

one year and five years together with compensation for all unpaid salaries.’

WRITTEN ARGUMENT ON BEHALF OF THE RESPONDENTS

[11] The written counter arguments filed on behalf of respondents read as follows:

‘The ruling by the Arbitrator

4 The arbitrator found that the following facts had been established:22

a) The notices issued to appellants were not based on a Cabinet decision;

b) It was Cabinet’s prerogative to decide whether to extend the employment contracts of

appellants;

c) The Secretary to Cabinet had no authority to decide on the extension or otherwise of

the contracts of appellants;

d) Several letters written by appellants concerning their non-extension of their contracts

were not replied to by respondents;

e) Appellants were entitled to receive six months’ notice before their contracts came to

22 Record page 252-3 para 100

25

an end;

f) Appellants continued to work as Permanent Secretaries after their five-year contracts

expired on 20 and 22 March 2015;

g) Appellants were informed and knew six months in advance that Government did not

want to employ them beyond the expiry of their employment contracts;

h) Appellants’ contracts could, in terms of the 1980 Public Service Act, only be

extended by a period of not less than one year and not more than five years;

i) During the 25 years that appellants were employed, information regarding extensions

of their contracts was always received from the Secretary to Cabinet;

j) When the previous extension notices did not refer to Cabinet decisions, appellants

did not inquire whether the extensions were supported by a Cabinet decision;

k) Several individuals served in the office of the Secretary to Cabinet between July

2014 and March 2015, either as Cabinet Secretaries or as Acting Cabinet Secretary;

l) The letters written by first appellant’s legal representative were never placed before

Cabinet23;

m) Government’s position was that it did not want to extend the contracts of appellants

when they came to an end;

n) The parties to the alleged tacit agreement were appellants and Cabinet;

o) It was not proven, even on a balance of probabilities, that there was consensus on

the extension of the contracts;

p) Appellants and their Ministries did not make a submission to the Public Service

Commission to motivate their retention beyond retirement in terms of section 14(3) of the

1980 Act or section 24(2) of the 1995 Act;

q) Appellants knew that their imminent retirement affected the extension of their

contracts;

23 The evidence also established that the letters written by second appellant were also not brought to the attention of Cabinet.

26

r) For an extension of the contract beyond retirement age to occur, there must be a

Cabinet decision;

s) Cabinet did not decide to extend the contracts of appellants beyond their retirement

age;

t) Cabinet pronounced itself, albeit belatedly, that appellants’ contracts should not be

extended beyond their retirement age.

5 Against the backdrop of these facts, the Arbitrator considered the correctness of the

contention of the appellants that their contracts had been tacitly extended by the failure

of Cabinet to respond to their letters, and by their having been allowed to stay in the

office for nine working days after their contracts came to an end.

6 The Arbitrator did not accept the argument by appellants that these facts led to the

conclusion that Cabinet had tacitly agreed to allow appellants to renew the contracts of

the appellants for a further five-year period.

7 The Arbitrator was unwilling to infer the conclusion of a tacit agreement, when the

evidence showed that Cabinet had in fact not received and considered the letters

written by appellants. He asked rhetorically whether it would be fair to expect Cabinet

to respond to something that it was not aware of.24

8 The Arbitrator referred to the evidence that explained why the letters had not been

brought to the attention of Cabinet: Mr Kapofi no longer wanted to take decisions

affecting the Public Service, as his term as Secretary to Cabinet was coming to an

end. Ms Mbako, who had been appointed as Acting Secretary to Cabinet from 21

January 2015 to 20 March 2015 was unwilling to take charge of the matter, as she

believed that it should be done by a person who was occupying the post of Secretary

to Cabinet on a permanent basis.25

9 The Arbitrator also did not accept the contention that appellants’ contracts had been

tacitly extended by the fact that they were allowed to continue working for nine days

after the contracts expired. The Arbitrator found that this could not give rise to a tacit

extension. The practice showed that decisions regarding extensions of the contracts

were always made after the contracts had expired.26

24 Record page 256 paras 116-725 Record page 254 para 10226 Record page 255 para 109

27

10 The Arbitrator pointed out that although Cabinet may not have been involved in

decisions regarding the extensions of appellants’ contracts over the years, it was

always accepted that the communications by the Secretary to Cabinet represented the

collective position/decision of Government on whether a contract would be extended.27

11 In the result, the Arbitrator found that the fixed-term contracts expired on 20 and 22

March 2015. He did not find that the contracts had been extended on the basis of a

legitimate expectation or on the basis of a tacit agreement as claimed by appellants.

He observed that there could be no dismissal in respect of the contracts that came to

an end in March 2015.28

12 The appellants had however in fact continued to work as Permanent Secretaries after

20/22 March 2015. The Arbitrator found that appellants had been unfairly dismissed

by the Secretary to Cabinet on 2 April 2015.29

13 The Arbitrator noted that appellants had in the meantime attained retirement age. He

could accordingly only remedy their situation up to the time when they reached

retirement age, as there had been no decision to allow them to serve beyond

retirement age.30

14 The Arbitrator accordingly refused reinstatement and ordered Government to pay

compensation to appellants equal to six months’ salary.31 This is the same period as

the notice period required by the statute.

No tacit renewal of the fixed term contracts

No tacit renewal in fact

15 The test for a tacit relocation of a contract has been stated as follows by this Court:32

“A tacit relocation of an agreement is said to arise where the parties after the

termination of the initial agreement conduct themselves in a manner that gives rise to

27 Record page 255 para 10728 Record page 257 para 12229 Record page 256-258 paras 119-12530 Record page 255-6 paras 110-11231 Record page 25932 Kalipi Ngelenge t/a Rundu Construction v Anton e van Schalkwyk t/a Rundu Welding & Construction 2010 (2) NR 406 (HC) para 12

28

the inescapable inference that both desired the revival of their former contractual

relationship on the same terms as existed before. A tacit relocation of an agreement

is a new agreement and not the continuation of the old one: Golden Fried Chicken

(Pty) Ltd v Sirad Fast Foods CC and Others 2002 (1) SA 822 (SCA) at 825D – E. An

essential prerequisite of a relocation of a lease is that it must be unequivocally

inferred from the conduct of the parties that a renewed or new lease had come into

effect.” (emphasis supplied)

16 The Court will have regard to the conduct of the parties and the circumstances of the

case generally. The approach to the facts of the case is an objective one. The subjective

views of a party as to the effect of his or her actions are normally not relevant.33

Failure to reply to the letters

17 Failure to reply to letters may under certain circumstances be taken to be an

acceptance of the position put forward in the letter. The following passage was cited with

approval by the Supreme Court in the Stier case:

“…Thus if a merchant writes to his constant correspondent that he will forward to him

certain goods at a certain price unless he hears from him to the contrary, and the

addressee receives the letter but neglects to reply, the court may well consider that

silence in such a case gives consent…”34 (emphasis supplied)

18 The Supreme Court further cited the following passage with approval:

“I accept that ‘quiescence is not necessarily acquiescence’…and that a party’s failure

to reply to a letter asserting the existence of an obligation owed by such party to the

writer does not always justify an inference that the assertion was accepted as the

truth. But in general, when according to ordinary commercial practice and human

expectation firm repudiation of such an assertion would be the norm if it was not

accepted as correct, such party’s silence and inaction, unless satisfactorily explained,

may be taken to constitute an admission by him of the truth of the assertion, or at

least will be an important factor telling against him in the assessment of the

probabilities and in the final determination of the dispute.”35

33 Joel Melamed and Hurwitz v Cleveland Estates 1984 (3) SA 155 (AD) page 16534 Page 374 paragraph 635 Page 381 para 12

29

19 When determining whether a tacit contract was concluded, it is necessary first to

determine the identity of the parties who are alleged to have concluded a contract, and what

was in fact their intention.

20 In this case, Cabinet (the authorised decision-maker) never received or considered

the letters. There is no factual basis for a finding that Cabinet tacitly decided to extend the

contract, where in fact the matter was never considered by Cabinet at all. That being so, no

tacit contract can conceivably arise.

21 The factual reason for the failure by Cabinet to respond to the letters was explained

through the evidence of Kapofi and Mbako.

22 George Simataa testified that, when he was appointed as Secretary to Cabinet

Government’s position was still that it had no intention to extend appellants’ contracts.36

23 The facts show that Nangula Mbako’s term as Acting Secretary to Cabinet ended on

20 March 2015. George Simataa was only appointed on 24 March 2015 as Secretary to

Cabinet. The absence of a Secretary to Cabinet appears to be the main reason why

appellants were able to continue to work beyond the expiry of their contracts on 20 and 22

March 2015.

24 When George Simataa assumed office he was immediately briefed by the previous

Secretary to Cabinet (Kapofi) on ‘the ongoing dispute’ with the appellants.37

25 On 26 March 2015 Simataa wrote to the Attorney-General requesting a legal opinion

on the matter. The opinion and draft termination letters were received from the Attorney-

General on 1 April 2015. Simataa signed those letters and handed them to appellants on 2

April 2015.38

26 At best for appellants, they were unaware of these developments and subjectively

believed that Government’s position had changed. The subjective views of appellant are

however irrelevant as the approach to determining whether there has been tacit consent is

objective.39

27 In truth, first appellant knew full well that silence on the part of the Government did

36 Record page 605 line 1637 Record page 572 line 1138 Record page 572-339 Joel Melamed and Hurwitz page 165

30

not mean consent. In 2010, when first appellant did not receive the desired confirmation by

Government, he correctly assumed that there was a dispute as to the extension of his

contract. He therefore approached the Labour Court for declaratory relief in that regard.40

The terms of the alleged new fixed contract

28 There is also a fundamental gap in the appellants’ case: if the contract was renewed

for a fixed term, what was the fixed term? The appellants were not able to provide any

sensible explanation for why they contended that this was a contract for a further five years.

All they could say was that previous contracts were for five years.41 But of course

contracting with a man who is about to reach retirement age is very different from contracting

with a younger man. Different considerations would inevitably apply.

29 Where an employee on a fixed-term contract continues to work beyond the date on

which the contract terminated, it must be determined on the facts of the case whether the

parties agreed to a new fixed-term contract on the same terms, or continued the relationship

on the basis of an indefinite employment relationship.42 Professor Grogan in his book

Workplace Law states:

“If after the agreed date for the termination of the contract the employee remains in

service and the employer continues to pay the agreed remuneration, the contract is

deemed to have been tacitly renewed, provided that an intention to renew is

consistent with the parties’ conduct. The relocated (novated) contract will continue on

the same terms and conditions as the previous fixed-term contract, except that the

duration of the contract need not be the same as that of the original contract; the life

of the relocated contract must be determined in the light of the particular

circumstances of each case. However, unless a contrary intention can be inferred

from the facts, it will generally be assumed that the parties intended the new contract

to be of indefinite duration, terminable by reasonable notice given by either party.”43

(emphasis supplied)

30 At the very best for the appellants, there might have been a tacit decision (by

an undetermined person on behalf of the government) to enter into a contract of

indefinite duration, terminable by operation of law upon appellants reaching

40 Record page 164 paras 19 and 2041 Record page 255 para 107.42 Owen v Department of Health, KwaZulu Natal (2009) 30 ILJ 2461 (LC)43 Page 45

31

retirement age,44 or on reasonable notice. That is the effect of the Arbitrator’s award.

Government declined to extend the contracts, and communicated this

31 There is yet another reason that stands in the way of a tacit agreement as

claimed by appellants: The decision not to extend the contracts of appellants was

communicated to them orally on 23 July 2014, and in writing to first appellant on 11

September 2014, and was never withdrawn. The decision was taken by the Prime

Minister in consultation with the President and communicated to appellants by the

Secretary to Cabinet.45

32 Two consequences flow from this:

32.2 First, these facts contradict and fatally undermine the contention that Cabinet

or anyone purporting to act on its behalf had agreed to renew the fixed-term

contracts.

32.3 Second, although the decision may have been invalid because it was not

taken by Cabinet, it existed in fact and could not simply be disregarded. Until it was

set aside by a court it exists in fact and legal consequences.46

33 We submit that the Arbitrator was correct in refusing to find that the evidence showed

a tacit renewal of the contracts, whether for five years or at all.

No tacit renewal in law

34 For an express contract to be valid, it must comply with the law. The same must

necessarily apply to an implied contract.

35 In this instance, it is indisputable that the statute prescribed who was authorised to

take the decisions in question; and it is indisputable that they did not do so:

35.2 The Cabinet is the only body authorised to extend the contract. It did not do

so.

44 Compare: Cronje v Municipal Council of Mariental 2004 (4) NLLP 12945 Record page 449 line 20, page 454 line 9 and 1046 Black Range Mining (Pty) Ltd v Minister of Mines and Energy and Others NNO 2014 (2) NR 320 SC para [18]; Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) page 241-2 para 26

32

35.3 The retention of a person who has reached retirement age can only be done

“on the recommendation” of the Public Service Commission. That phrase means that

the Commission must make a recommendation in favour of the retention.47 Not only

did the Commission not recommend this: no application was made to it, and it did

not consider the matter.

35.4 The approval of the Cabinet is required for retention of a person who has

reached retirement age. The Cabinet never considered the matter until after the

event. When it did consider the matter, it expressed itself against retention.48

36 Any renewal for less than a year would have been in breach of the Public Service

Act, which prescribes a minimum of a year.

37 Any renewal for longer than a year would also have been in breach of the Public

Service Act, because there had not been a valid decision to retain the appellants beyond

retirement age.

Continued employment after the fixed-term contracts came to an end

38 After the appellants’ fixed-term contracts came to an end by the effluxion of time (20

and 22 March 2015 respectively), their further employment could only have continued until

retirement age.

39 Retirement age for the appellants is set by section 14 of the 1980 Act. Section 14(1)

states:

“any officer shall have the right to retire from the public service on attaining the age of

sixty years and shall be so retired on reaching the said age.”

40 It follows that in the ordinary course, the first and second appellants’ dates of

retirement from the Public Service were 16 September 2015 and 16 August 2015

respectively, when they reached 60 years. Ordinarily, they could not be employed beyond

those dates.

41 Section 14(3) creates the possibility of the retention of an officer beyond retirement

age. It states:

47 Minister of Health and another NO v New Clicks South Africa (Pty) Ltd and others (Treatment Action Campaign and another as amici curiae) 2006 (2) SA 311 (CC) para 13848 Record page 209.

33

“If it is in the public interest to retain any officer in employment in employment in his

post beyond the age at which, in accordance with subsections (1) and (2), he shall be

retired he may, with his consent, be so retained from time to time on the

recommendation of the Commission and subject to the approval of the Cabinet for

any further period expiring no later than the last day of the month in which he attains

the age of sixty-seven years.”

42 Chapter E.XI of the Public Service Staff Rules (“the Staff Rules”), promulgated in

terms of section 35 of the Public Service Act 13 of 1995 (“the 1995 Act”), explains how the

retirement date is applied. Although it deals with retirement of staff members under section

24 of the 1995 Act, it is instructive given the almost identical wording of section 14 of the

1980 Act and section 24 of the 1995 Act.

43 Clause 4.1 of the Staff Rules states that it is unnecessary to formally approve the

retirement of a staff member and to give notice to him or her on attaining the retirement age,

as would be the case with a discharge, because of the specific wording of the section

dealing with retirement.

44 Retention of a staff member beyond retirement occurs under two circumstances: at

the request of the Office, Ministry or Agency (“OMA”), or at the request of the staff member

(clause 5).

45 A request by the OMA must be submitted to the Secretariat of the Public Service

Commission at least six calendar months before the retirement date. The request must be

fully motivated stating:

a) Whether the staff member has agreed in writing to the requested extension (a

request will not be considered without such written consent); and

b) The proposed period of extension, either to a specific date or when the staff

member concerned attains a particular age.

46 Clause 5.1.2 deals with the situation where the request for extension emanates from

the staff member:

“Cabinet resolved (15th/04.06.96/001) that a staff member may request the Prime

Minister, on recommendation of the Public Service Commission, to approve an

34

extension of his/her service after reaching the retirement age only where s/he may as

a result of past historical practices not have had the opportunity to attain enough

years of pensionable service to ensure a proper pension. Such request must be

motivated based on veritable evidence and supported by the OMA.”

47 The Arbitrator found, correctly, that none of the above procedures were followed, and

no decision was made to retain the appellants in service beyond the prescribed retirement

age.

48 As a matter of fact, the appellants continued to work for nine days after their fixed-

term contracts had come to an end. If this gave rise to a new contract of employment, as the

Arbitrator in effect found, then at best for the appellants it was a contract of indefinite

duration, terminable by operation of law upon appellants reaching retirement age, or on

reasonable notice.

49 The Arbitrator decided to order that the appellants be compensated roughly up to the

end of the period during which they could possibly have been so employed, i.e. retirement, if

the Secretary to Cabinet had not terminated their employment. He awarded them

compensation equivalent to six months’ remuneration.

50 If the Arbitrator’s award can be criticised, it can only be on the basis that he erred on

the side of generosity to the appellants.

The refusal to order reinstatement

51 Section 86(15) of the Labour Act confers a wide discretion to grant any appropriate

relief once the arbitrator finds there was an unfair dismissal. The award may include

compensation or reinstatement or both.

52 This Court in Paulo v Shoprite Namibia (Pty) Ltd and Others49 said:

“…in terms of the 2007 Labour Act (s 86(15)), reinstatement is not the ‘primary’

remedy; an award of compensation is considered just as important.”

53 If the Arbitrator had ordered reinstatement, he would have ordered the respondents

to employ the appellants in breach of the statute. We submit that this would not have been

permissible. At the very least, it would not have been “appropriate”.

49 2013 (1) NR 78 (LC) para 11

35

54 On the findings made by the arbitrator reinstatement was not possible as appellants

had already reached retirement age. Granting compensation for the duration of the new

contracts was the only appropriate remedy which was available in the circumstances.

55 There were other factors which also militated against an order reinstating appellants.

Appellants are part of a group of permanent secretaries who occupied these posts for 20

years and more. These persons were all close to reaching retirement age. Government

wanted new people to fill these posts. There was a perception that they had stayed in the

positions for too long and were becoming a liability.50

56 We submit that, although this might not be a valid ground of dismissal, as the

arbitrator found, it is a relevant consideration in deciding whether reinstatement or

compensation should be ordered.

57 Another relevant factor is that on 28 July 2015 Cabinet did, albeit belatedly,

pronounce on whether the contracts should be extended. By taking the decision, Cabinet

effectively shut the door on the argument that it was possible that permission would be

granted for appellants to be retained past their retirement age.

58 The arbitrator correctly found that reinstatement in the absence of a decision by

Cabinet for appellants to be retained beyond their retirement age was not possible.

59 The discretion exercised by the arbitrator in deciding whether to order reinstatement

was a judicial one, and involved a value judgment to be exercised having regard to all of the

circumstances. This Court siting as a court of appeal will not interfere with the decision of

the arbitrator simply because it would make a different value judgment to that of the

arbitrator.51 The appeal lies only on questions of law.

60 The test for intervention by this Court, in the absence of an error of law, is the

following:

“It is only when there is no evidence which could reasonably support a finding of fact

or where the evidence is such that a proper evaluation of that evidence leads

inexorably to the conclusion that no reasonable court could have made the finding

50 Record page 463-451 Rally for Democracy and Progress and Others v Electoral Commission of Namibia and Others 2013 (3) NR 664 (SC) paras 106-7

36

that this court will be entitled to interfere.”52

61 The Arbitrator exercises a judicial function and not an administrative function.53

However, the test for intervention is strikingly similar to the common law test for when an

administrative decision should be reviewed and set aside on the ground of gross

unreasonableness.54

62 Even where a court makes such a finding in judicial review of administrative action, it

will not usually substitute its own decision for that of the decision-maker. It will remit the

matter to the decision-maker unless there are exceptional circumstances.55 In this case, the

appellants in effect contend that the Arbitrator should have substituted his own decision for

the decision of the Cabinet as to whether the contracts should be extended, and for the

discretion of the Commission and the Cabinet (which have not yet had the opportunity to

consider the matter) as to whether the appellants should be retained in service beyond their

retirement age.

63 We submit that the Arbitrator correctly declined to do this. But whether or not he was

“correct”, this was a decision which he was entitled to take in the proper exercise of his

judicial discretion.

Conclusion

64 The respondents accordingly ask that the appeal be dismissed.’

ORAL ARGUMENT ON BEHALF OF APPELLANTS:

[12] At the commencement of oral argument Mr Maleka SC, who appeared with Mr

Namandje, emphasised that the only issues before the court where those as raised

in the appellants’ notice of appeal. That notice did not attempt to assail the first

finding56 made by the arbitrator, but, related to his findings made under numbers 2 57

52 House and Home v Majiedt and another 2013 (2) NR 333 (LC) page 336 para 553 Swartbooi and Gaes v Mbengela NO and others Supreme Court case SA 73/2013, judgment delivered 24 November 2015 para 33.54 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) para 4355 Minister of Education and Others v Free Namibia Caterers (Pty) Ltd 2013 (4) NR 1061 (SC) para [43].56 ie. that: “1.The dismissal of Messrs Erastus Negonga and Joseph Iita on the 2nd April 2015 by the respondent is both procedurally and substantively unfair.57 that: ‘ 2. Reinstatement in the circumstances is not practical due to the fact that the applicants have in the meantime attained retirement age of 60.

37

and 3.58 Two things where vital for the determination of the appeal namely, one, that

there was a dismissal and two, that such dismissal was unfair. The gist of the

arbitrator’s decision was found at page 255 of the record at paragraph 108 to 110.

Underlying the result where the findings that the appellants were employed by the

respondents and that there was a contract from which they were dismissed on 2

April 2015. That contract was a new contract which had been tacitly concluded. It

was thus clear that no dismissal could have been based on the contract was found to

have come to an end, by the effluxion of time, during March 2015.

[13] The court should thus make a distinction between the two contracts, namely

between the one, that had come to an end on 22 March 2015, and the new contract,

which came into being thereafter. The finding, that a new contract had come into

existence, should stand, as it was not an issue in the appeal. It was this new contract

that was summarily terminated on 2 April 2015, on unfair grounds.

[14] Mr Maleka, while, on one hand urging the court not to go beyond the

aforementionedd issues, nevertheless submitted on the other, that the court should

not unnecessarily restrain it’s jurisdiction in this regard. In any event, he contended

that the arbitrator had got this aspect of the case right.

[15] He then referred to the history of the matter, as gleaned from the evidence of

Mr Kapofi, from which it appeared that there had been a tradition to extend the

appellants’ employment contracts, without the required Cabinet resolutions, prior to

the end of each preceding five year term. He referred to the court challenge brought

in 2009 in which the Labour Court had set aside the notice not to renew the first

appellants next five year contract and that the history showed that there was

conduct, throughout, that the appellants’ were allowed to carry on in their jobs even

after the expiry of each five year term.

[16] Accordingly what happened, was, that a tacit arrangement, between the

parties, came into being, as was also confirmed by Mr Kapofi, who had testified that

it was a matter of tradition how the extensions were worked.

58 that: 3. The respondent, Government of the Republic of Namibia is hereby ordered to compensate the two applicants, (Negonga and Iita), by paying them an amount equaling (sic) to six months’ salaries made up as follows: … ‘

38

[17] He then turned to Mr Namandje’s letters which showed that the appellants’ did

not accept their termination and through which a duty had been placed on the

respondents’ to respond and also to subsequently take active steps not to allow the

appellants to continue to work, subsequent to the expiry of their contracts.

[18] The history of the matter further revealed that even after their termination, the

appellants continued to take decisions, as Permanent Secretaries, including financial

decisions and that therefore, for that period, the facts also showed that they were

employed until such time that they were dismissed on 2 April 2015, when, ironically,

both were engaged in meetings: the one was with the relevant Minister and the other

was with the Prime Minister. At both these meetings it was accepted that the

appellants had attended such meetings in their capacities as Permanent Secretaries,

on which occasions they were then also, paradoxically, informed that they were no

longer employees.

[19] The findings of the arbitrator in regard to the dismissals was therefore correct.

[20] This premise would then lead to the enquiry what the appropriate remedy

should have been?

[21] He then intimated that the appellants wished to raise three points on this

aspect, the most important of which, was on the aspect of reinstatement and whether

such remedy should be regarded as a ‘primary remedy’. In this regard it was

submitted further that Damaseb JP, in Paulo v Shoprite Namibia (Pty) Ltd and

Others59 had incorrectly held that ‘reinstatement was not the primary remedy’60, as

provided for in the Labour Act, which finding was not in accordance with what had

59 2013 (1) NR 78 (LC)60 [10] … In para 4.3 of his heads of argument, Mr Ueitele quotes from a South African case of Equity Aviation v CCMA and Others for which he has not provided any citation or copy. I have not been able to trace the particular case but he quotes from it as follows:

'The ordinary meaning of the word reinstate is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers' employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal.' *As I have shown, in terms of the 2007 Labour Act (s 86(15)), reinstatement is not the 'primary' remedy; an award of compensation is considered just as important. Save for that difference, nothing in the interpretation of the word 'reinstatement' by the highest courts of the three jurisdictions recognises the right of an employee who has been found to have been unfairly dismissed, to be automatically entitled to back pay and/or compensation.

39

been decided in the Equity Aviation Services case61, as such contradicted what had

been stated in the Equity Aviation case.62 Some argument also focused then on the

1980 Legislation and Section 10A, as introduced in 1990, to make provision for

individuals such as the appellants to become civil servants.

[22] It was submitted further in this regard that the imminent retirement age of the

appellant’s should not have posed any difficulties on 2 April 2015 as the appellants

had not yet reached their retirement age then. They could have continued in their

positions on reaching that age as they could then have applied for the required

extensions in respect of which a recommendation would have been required by the

Public Service Commission and in respect of which they should also been given an

opportunity to be heard on the aspect of their retirement or retention. This factor

should thus not have precluded the arbitrator to exercise his discretion against

awarding reinstatement, which discretion was thus wrongly exercised, as the

appellants had been denied this opportunity.

[23] He pointed out further that the subsequent Cabinet resolution, taken on 28

July 2015, which had confirmed the Government’s non-willingness to extend the

appellants’ employment contracts, was taken at a time that the appellants had

already been unfairly dismissed and that it was further a resolution that was not

taken in accordance with section 10A of the 1980 Public Service Act as it lacked the

required recommendation of the Public Service Commission. Although this resolution

had been taken on advice of the Attorney-General, whose opinion had been

requested, also the Cabinet decision, taken on 28 July 2015, was taken illegally and

unfairly. In this regard it should however be kept in mind that the procedural

unfairness of the earlier decision to dismiss was not challenged in the appeal.

[24] Mr Maleka sought to distinguish the matter from the principles enunciated in

the Oudekraal decision63 in terms of which an administrative decision stands until it is

61 Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others 2009 (1) SA 390 (CC)62 [36] The ordinary meaning of the word 'reinstate' is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. 42 Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers' employment by restoring … ‘.63 Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1; [2004] ZASCA 48)

40

set aside, and he urged the court to consider this case against the principles relating

to a collateral challenge to unlawful administrative action in terms of which, and if

someone had remained silent, it would still be open for such a party to resist the

enforcement of unlawful administrative action by way of a collateral challenge. This

was so as it was clear from the transcript that the appellants had never accepted the

validity of the Cabinet resolution. The appellants thus remained entitled to resist the

enforcement of the resolution on the basis of these principles.

[25] He again emphasized also that there was nothing prohibiting the appellants to

continue working after reaching the age of 60 years. The Public Service Act of 1980

made provision for the retention of the services of persons that had reached the

retirement age. Appellants however where not afforded their opportunity in this

regard. He pointed out that through the interdict which the appellants’ had obtained 64 their positions had not been filled on a permanent basis and that there were thus

no other incumbents to their positions currently, which situation demonstrated that

the remedy for reinstatement continued to be available to the appellants.

[26] On the question of monetary compensation for the appellants Mr Maleka

pointed out that, in terms of Section 10A of the Public Service Act, their remuneration

should, at the very least, least have been payment of their salaries for one year, but

not more than for five years. He emphasised though that, historically, the parties

had always opted for a five year period.

ORAL ARGUMENT ON BEHALF OF RESPONDENTS

[27] Mr Budlender SC, who appeared with Mr Marcus, accepted that when the

arbitrator had found that when the appellants continued to work that there had been

a tacit relocation of their employment contract and that, in this regard, the appellants

had presumably also been paid, for the 9 days, that they had worked, after their last

five year contract had come to an end.

[28] He pointed out that the dispute was about the terms of the relocation. If the

contract was an indefinite one it would end by the giving of reasonable notice. No

such notice was given.

64 Negonga and another v Secretary to Cabinet and others (LC 165/2015) [2016] NAHCMD 8 (09 December 2015)

41

[29] It was possible that the arbitrator had considered that a 6 months’ notice

period was reasonable and that he therefore had awarded the appellants the 6

months’ remuneration on that basis. It appeared however that the appellants were

relying on a five year contract rather than an indefinite extension. He pointed out with

reference to the record that contradictory stances had been advanced in this regard.

In the complaint it was pleaded that the contract was tacitly relocated for five years.

If that was the stance then relief for a five year term should have been then claimed.

In the appellants’ heads of argument, the position had however changed. It was now

contented that the extension was for not less than one year and not more than five

years. This, so it was submitted, was illogical if, on the other hand, reliance was

placed on the stance that the appellants’ contracts had been extended for a further

five year period.

[30] He submitted by way of a second point that it appeared that the appellants

contended that their default position was an extension for five years. This, so the

argument ran, could not be correct if one would have regard to the provisions of

Section 10A and particularly sub-section 10A(c) of the Public Service Act, in terms of

which any extension should have been not less than one year and not more than five

years.

[31] On the aspect of reinstatement being considered the ‘primary remedy’ or not

he submitted that it appeared from the Paulo v Shoprite Namibia (Pty) Ltd and

Others 65 decision, in which reference had been made to a passage from the Equity

Aviation case that this was not so, that the judge had pointed out that this position

was not in accordance with the Namibian Law and that it thus had to be concluded

that, in Namibian law, reinstatement was not the primary remedy.66

65 2013 (1) NR 78 (LC) at [10] where it was concluded ‘ … As I have shown, in terms of the 2007 Labour Act (s 86(15)), reinstatement is not the 'primary' remedy; an award of compensation is considered just as important. … ‘.66 See Paulo v Shoprite Namibia (Pty) Ltd and Others op cit at : ‘[8] Mr Ueitele has relied on South African jurisprudence in support of his argument that the legislature had intended that the employee's right to remuneration is not extinguished by the suspension order and that 'reinstatement' entitles an employee to back-pay from the date of dismissal. I have considered the authorities cited by Mr Ueitele against the backdrop of the applicable South African legislation. The South African legislation differs from its Namibian counterpart in significant respects. Firstly, the Namibian legislation does not (as does its South African counterpart) give power to the arbitrator to order retrospective reinstatement to the date of dismissal on terms applicable at the time of dimissal. Section 86(15) of the 2007 Labour Act insofar as it is relevant, empowers the arbitrator to make an award, including: '(d) an order of reinstatement of an employee; (e) an award of compensation . . . .' The 2007 Labour Act has abandoned 're-employment' as a possible remedy (vide s 46(1)(a)(ii) of the 1992 Labour Act).’

42

[32] He also put the basis of the claim for a reinstatement for five years in question

in respect of which it was not clear whether that claim was made in regard to the five

year contract, which had elapsed, or, whether it was based on the new contract,

which had been tacitly relocated.

[33] In respect of the services which had been rendered by the appellants for 9

days after their last five year term had came into an end, the question arose whether

the appellants had been acting, for those nine days, without authority, as they were

no longer Permanent Secretaries in law in respect of which the further question as to

the validity of their actions would then also arise. If there had been a tacit relocation

of their employment agreements, then the conclusion had to be that, the appellants,

had worked for 9 days on such basis.

[34] He then informed the court that the court could operate on the assumption

that there was no challenge to appellants’ case based on the tacitly relocation of the

employment agreement and that the finding, made by the arbitrator in this regard,

should, for purposes of deciding this appeal, be accepted as being correct.

[35] As to the arguments raised on behalf of the appellants that there had been

traditional extensions of the employment contracts, without Cabinet resolutions, as

required by law, he submitted that such case was deficient as the appellants could

not rely on the previous practice as firstly, they were told that their contracts would

not be renewed and, secondly, that letters had been written also informing them that

their contracts would not be extended, and, thirdly, that there was also no

subsequent confirmation of any new contract, as had happened in the past, as in this

instance Cabinet had expressly resolved not to extend their contracts for a further

term. For these reasons there could have been nothing on which the expectation

could have been based that the traditional extensions would happen again as had

occurred in the past. In any event, it was pointed out, in response to a question by

the court, that the second appellant’s contract had in any event come to an end, by

his acceptance.

[36] Counsel then went to argue that for the court to uphold the submissions made

on behalf of the appellants and for them to succeed they had to show firstly, on the

43

facts, that there had been a tacit renewal of a fixed term contract for five years,

secondly, they had to show a tacit renewal of a fixed term contract for five years, in

law, thirdly, they had to show that the order claimed was competent, and, fourthly,

they had to show, for the relief claimed to be appropriate, that the arbitrator had

acted unlawfully. Appellants had to prove all these aspects in order to succeed. If

one of these elements could not be shown the appeal should fail. The respondents’

case was that they had not proved a single one these factors.

[37] As to the first proposition ie. on the aspect that there was no tacit renewal on

the facts, the respondents also relied on the Supreme Court decision made in Stier

and Another v Henke. 67 Here it was important that the letters written by Mr

Namandje, on behalf of the appellants, regarding the renewal, were never seen by

Cabinet. Cabinet did thus not consider same and did- and could not make a

decision on this. It had also been explained why the respondents had not replied to

such letter. Accordingly no tacit relocation could be shown on the facts. In any event

the appellants’ case was compounded by the fact that they had also expressly been

told that their contracts would not be renewed. There was thus no factual basis for a

tacit relocation, as claimed.

[38] Secondly, it was pointed out that, what was missing from the evidence, was

for what term the relocation would be. Mr Budlender argued further that the

government had acted fairly promptly by terminating the appellants’ positions some 9

days after their last term contract had come to an end. He emphasised that the

appellants had the onus to show that there was a contract. On the evidence, at

least, there was nothing to show what Cabinet had thought in this regard.

[39] He submitted further that there was not really any tacit relocation of the

agreements in law, as had already been submitted in the heads of argument filed of

record.

[40] As far as the argument was concerned there was no bar to the appellants to

work beyond the age of 60, the Act was clear in that the appellants could not be kept

on if the government did not want to continue to employ them. Section 14 showed

that it was preremptory that they should be retired at the age of 60. There thus could

67 2012 (1) NR 370 (SC)

44

be no tacit contract in law beyond this.

[41] Thirdly, it was contended that the order which the appellants’ were seeking is

not competent as any such order, if granted, would be contrary to statute because

the law requires three things for an extension to work beyond the age of 60. The

three things which have to happen are that there would have to be an application for

the retention of the employee, then there should be a positive recommendation by

Public Service Commission to retain and thirdly Cabinet would have to take a

decision to retain. The decision to extend any such contract beyond retirement age

could therefore only be made by Cabinet. All these things did not happen and the

orders which the applicants were thus seeking for re-instatement would thus be in a

breach of the Statute.

[42] Although the court would have wide jurisdictional of powers to grant

appropriate relief, Mr Budlender remarked that it was doubtful that any court of law

would make any order which was inconsistent with the rule of law and in breach of a

statute. If the court would thus accede to the relief sought that would not only be

inappropriate, as it would compel Cabinet to employ the appellants in circumstances

in which they did not want to, but such order would also be far-reaching as the court

would then also take over those functions which Parliament had assigned to the

Public Service Commission and Cabinet. What the appellants were thus asking

would further be inappropriate as it would also breach of the separation of powers

doctrine. Ultimately also the thought, of the court, imposing Permanent Secretaries,

on the government, was far-reaching.

[43] Mr Budlender then submitted, thirdly, that the arbitrator had not misdirected

himself. Even if the court would find that it would have made a different decision,

this was not enough for the court to interfere. Submissions had already been made

in regard to the finding that new contracts had come into being, which in effect meant

that there might have been an indefinite relocation of the employment contracts.

From this finding stemmed the conclusion that the appellants’ employment contracts,

which had been terminated unlawfully, and as a result of which a six months’ period

of remuneration was found reasonable, was correctly made.

[44] Therefore, so it was contended in conclusion, it should firstly be accepted that

45

the appellants had on the facts failed to prove the claimed new fixed term contract.

That, secondly they could also not show, in law, that new tacit employment contracts

had came into existence. Thirdly, the order, which the court was asked to make,

was inconsistent with the statute, in the respects mentioned above. Fourthly, and if

the order claimed was somehow found to be appropriate, the compensation awarded

by the arbitrator, was in any event appropriate. Fifthly, the arbitrator had made a

decision, well within his bounds. The appeal should thus be dismissed.

REPLY

[45] In reply Mr Maleka pointed out that the respondents’ argument failed to take

into account the respondents’ own evidence where the respondents’ witnesses had

made it clear that none of the contracts, concluded since 1990, in respect of which

extensions where done on three occasions, were ever sanctioned by Cabinet

resolution. In such circumstances the relief claimed would never violate the statute

which had been ignored by government throughout.

[46] With reference to Holgate v Minister of Justice68 he countered the argument

that the re-instatement of the appellants would be against the will of Cabinet by

pointing out that this was an aspect that was never put to the witnesses during the

arbitration and that this aspect was thus never dealt with. It was uncontroverted that,

at the time to their dismissal, the appellants were conducting official duties and that

they were received by their respective ministers in their official capacities. It was

never suggested that their presence at such meetings was in appropriate.

[47] He clarified that appellants’ case had not always been based on a tacit

relocation of the agreement for five years.

[48] On the aspect that the relief sought would not be incompliance with the Public

Service Act he submitted that this aspect was never raised as a defence by the

respondents, while presenting their evidence during the arbitration and that this

aspect could thus not become an issue on appeal.

[49] He pointed out that all the letters which Mr Namandje had written on behalf of

68 1995 (3) SA 921 (E)

46

the appellants’ where copied to the Prime Minister, Cabinet and the Attorney-

General as well as the Public Service Commission. All these entities thus knew

about the appellants’ positions. He again emphasized that the court will have to

make its findings against the background placed in issue in the proceedings as

confined through the notice of appeal.

[50] On the aspect of the appropriateness of the relief claimed, he submitted that,

on the basis of the assumption, that an indefinite term contract had came into being,

and, given the underlying statutory position, a reasonable notice period, would not be

less than one year.

[51] Finally, he urged the court to uphold the appeal and order the reinstatement of

the appellants to their former positions as Permanent Secretaries.

RESOLUTION – THE IMPLICATION OF THE AGREED POINT OF DEPARTURE

[52] Firstly I wish to thank counsel for their thorough arguments.

[53] I could however not avoid the impression that, in their zeal, to represent their

clients’ cases to the full, counsel might have overcomplicated matters?

[54] Is this a case where they proverbially ‘did not see the forest for all the trees’?

[55] I formed this view, as, upon reflection, it seemed to me that, stripped to the

bone, the case essentially turns on the question whether or not the remedy, afforded

by the arbitrator, to the appellants, is to stand or not? In this regard the main ancillary

question being whether the discretion, that was exercised in this regard, can be

assailed or not?

[56] This would also be so as the parties are agreed that the arbitrator’s findings,

in regard to the dismissal, must continue to stand, irrespective of whether or not it

can be sustained in law?

[57] After all, the finding, that the appellants were unfairly dismissed, by necessary

inference, implies, that two new employment contracts must have come into being –

47

after the expiry of the two preceding five year contracts on 20 and 22 March 2015

respectively, as was found. In this regard the corollary refusal to find that there had

been a dismissal, in regard to the preceding two five year contracts, as those

contracts had expired, also continues to stand. The underlying further refusal by the

arbitrator to accept that the appellants’ contracts had been tacitly relocated,

irrespective of whether such finding can be sustained in law or in fact, so becomes

immaterial. The point of departure in this appeal must therefore be premised on the

finding that two new employment contracts had come into existence during March

2015, irrespective of how this had occurred, in respect of which the appellants were

then unfairly dismissed. This would particularly be so because the respondents have

elected not to file a cross-appeal, as was hammered home, by Mr Maleka, on

numerous occasions.

.

[58] This in turn means that this court must merely determine whether the award,

afforded by the arbitrator, can continue to stand?

CAN THE AWARD BE SUSTAINED?

[59] A court of appeal will interfere in this regard only if the arbitrator has exercised

his discretion wrongly on the application of the applicable principles.69

[60] More particularly therefore - and if this line of thinking is correct - the main

questions - on which this then appeal turns - is whether the decision to award 6

months compensation – was based upon the application of a wrong principle, or if

the arbitrator, in making the award, did not act for substantial reasons, or if he did

exercise his discretion capriciously or wrongly, or if the award was based on a

material misdirection?70

THE CHOICE OF REMEDIES AVAILABLE

[61] The starting point to this exercise must be the ‘remedy catalogue’ provided by

the Legislature in section 86 (15) of the Labour Act 2007. That section surely must

form the backdrop against which the arbitrator had to determine the award he had to

69 See : House & Home (a Trading Division of Shoprite (Pty) Ltd) v Majiedt 2013 (2) NR 333 (LC) at [5]70 See : Rally for Democracy & Progress v Electoral Commission for Namibia 2013 (3) NR 664 (SC) at [106]

48

make, given his preceding finding, that there had been an unfair dismissal. The

section did assist the arbitrator in this task in the following manner:

‘(15) The arbitrator may make any appropriate arbitration award including-

(a) an interdict;

(b) an order directing the performance of any act that will remedy a wrong;

(c) a declaratory order;

(d) an order of reinstatement of an employee;

(e) an award of compensation; and

(f) subject to subsection (16), an order for costs.’

[62] It is here that the Judge Presidents judgment in Paulo v Shoprite Namibia

(Pty) Ltd and Others71 renders further assistance in that it clarifies to those, tasked

with the awarding of a remedy, to an aggrieved party, following an unfair dismissal,

that they need to take into account also that

‘ … reinstatement is not the 'primary' remedy; an award of compensation is

considered just as important. … ‘

[63] In this regard it should now be said that I do not uphold Mr Maleka’s

submissions that this finding was incorrectly made as I believe that Mr Budlender

has correctly pointed out that the learned Judge, in Paulo, did not err in not following

the South African decision made in the Equity Aviation Services (Pty) Ltd v

Commission for Conciliation, Mediation and Arbitration and Others case, to which he

had been referred, after having expressly found – upon analysis - that the ‘ … the

South African legislation differs from its Namibian counterpart in significant respects.

… ‘.72

[64] I also cannot say, on any other basis, that the decision, made in Paulo, was

wrong, particularly as it was made after a proper and thorough comparison of the

differing underlying legislative dispensations. I will accordingly follow the decision

made in Paulo.

71 Op cit72 Paulo v Shoprite Namibia (Pty) Ltd and Others op cit at [8] to [9]

49

[65] In any event further support for this view is found in a recent judgment

delivered by this court in Iitengula v Hagen and Others73, to which counsel did not

refer me, in which the Labour Court had to consider the question whether or not a

dismissal of a complaint also constituted an ‘award’ and in which it was held

‘… Section 86(15) of the Labour Act does not limit an arbitrator to the awards listed in

that section as the statute expressly allows an arbitrator to make ‘any appropriate award

including …’ those that that are listed in sub-section (15) … ‘.74

[66] The first point that is thus to be made – and against which this appeal is then

also to be determined – is that when the arbitrator, in this instance, had to consider

what an appropriate award would be, in the appellants’ cases, serving before him –

is that - in terms of the applicable Namibian Labour legislation - he was free to

impose any ‘any appropriate award including …’ those that that are listed in sub-

section 86 (15). In the exercise of the discretion whether or not to award

reinstatement or compensation he further had to keep in mind that ‘ … reinstatement

is not the 'primary' remedy; an award of compensation is considered just as

important. … ‘. This aspect, on its own, thus cannot turn the tables in favour of the

appellants. It remains to be seen whether or not the discretion, which he exercised in

this regard can be assailed on any other of the applicable principles. I will deal with

these aspects below.

THE IMPACT OF THE AGREED FINDING RELATING TO THE FORMATION OF NEW EMPLOYMENT CONTRACTS ON THE APPEAL

[67] If one then reverts to the common cause position adopted by the parties it

emerges that this court must accept that the foundation of the arbitrator’s finding that

‘the dismissal of Messrs Erastus Negonga and Joseph Iita by the respondent on the

2nd April 2015 is both procedurally and substantively unfair’ must be based on the

accepted tacit formation of two new employment contracts which had come into

being through the continued employment of the appellants’ once their previous 5

year contracts had expired on 21 March 2015 and 22 March 2015 respectively.

[68] On behalf of the respondents Mr Budlender has clinically exposed certain

73 (LC 94/2013) [2016] NALCMD 10 (19 February 2016)74 Iitengula v Hagen and others op cit at [15]

50

material shortcomings in this regard through his arguments which were to the effect

that there could never have been a tacit relocation of the employment agreements in

question in fact or in law, which then led to his submission that ‘ … if the fact, that the

appellants continued to work for 9 days, after their fixed term contracts came to an

end, gave rise to a new contract – (which, as I have shown is to be accepted)(my

insertion) – then, at best for the appellants, it was a contract of indefinite duration,

terminable by operation of law upon the appellants reaching retirement age or on

reasonable notice‘.75

[69] Also to me it seems that the, to- be- accepted, position has its legal and

factual shortcomings, as was correctly pointed out by Mr Budlender. But this position

is to stand, rightly or wrongly?! The parties are agreed on this.

[70] In this regard I have already indicated above why, especially in the absence of

a cross-appeal, this ‘questionable point of departure’ must then be accepted. This

point of departure will therefore also have to form the backdrop to this appeal against

which the central determination must be made whether or not the arbitrator’s award

will be able to continue to stand.

[71] What then were the terms of these inferred contracts and was the election of

the appellants, to be dealt with in terms of the 1980 legislation, of any significance in

this regard?75 It is helpful to recall in this regard that the submission in this regard was supported by an extract

from Professor Grogan’s book ‘Workplace Law’ op cit in which the learned author stated: ‘Where an

employee on a fixed-term contract continues to work beyond the date on which the contract

terminated, it must be determined on the facts of the case whether the parties agreed to a new fixed-

term contract on the same terms, or continued the relationship on the basis of an indefinite

employment relationship. Professor Grogan in his book Workplace Law states: “If after the agreed

date for the termination of the contract the employee remains in service and the employer continues

to pay the agreed remuneration, the contract is deemed to have been tacitly renewed, provided that

an intention to renew is consistent with the parties’ conduct. The relocated (novated) contract will

continue on the same terms and conditions as the previous fixed-term contract, except that the

duration of the contract need not be the same as that of the original contract; the life of the relocated

contract must be determined in the light of the particular circumstances of each case. However,

unless a contrary intention can be inferred from the facts, it will generally be assumed that the parties

intended the new contract to be of indefinite duration, terminable by reasonable notice given by either

party.” (emphasis supplied)

51

DID THE PUBLIC SERVICE ACT 1980 IMPOSE ANY RESIDUAL TERMS ON THE NEW EMPLOYMENT CONTRACTS’

[72] It is here that in my view it should first be determined to what extent the

applicable sections of the Public Service Act 1980 come into play, if at all. In this

regard the terms of the newly formed employment contracts and the provisions of the

statute need to be considered in order to determine whether or not they could,

legitimately, have impacted upon the decision- making- process of the arbitrator,

when he made the award.

[73] Mr Maleka has not attempted to hide that the parties, historically have not

acted lawfully in that they, especially from the government respondents’ side, did, on

a continuous basis, flout the applicable provisions of the Public Service Act 1980,

when it came to the compliance with the prescribed formalities relating to the initial

employment contract, and the continued employment, of the appellants, on various

occasions, since 1990. When Mr Maleka thus requested this court to grant the

sought reinstatement of the appellants on the basis that this would never violate the

statute, which had been ignored by government throughout, he has in fact urged the

court to ignore the impact of the statute on this case, just because the parties,

historically, did not comply with it!

[74] He has also pointed out that reliance was not placed by the respondents on

the statute during the arbitration and that they were thus precluded from doing so

now in the appeal. The validity of his argument rests on the issue of prejudice. The

facts, especially the history, of this case are common cause. From these common

cause facts the historic non-compliances with the Public Service Act, especially from

the government respondents’ side, becomes apparent. These non-compliances were

thus common cause. They were not new and no party could be taken by surprise in

this regard. The common cause facts and the legal consequences arising therefrom

were in this sense thus fixed throughout. The new legal issues, (if they can be

regarded as being new), flowing from this were in any event already raised, in the

heads of argument, filed well in advance of the hearing. The appellants were thus

timeously placed in the position to consider such further issues on the basis of the

common cause facts to and react thereto. I believe therefore that, in such

circumstances, no prejudice attaches and reliance could properly and fairly thus be

52

placed on this new aspect during the appeal hearing.

[75] On this score it should then firstly be determined whether this court can- or

should turn a blind eye to the historic non-compliances with the relevant provisions of

the Public Services Act 1980 and its possible impact and relevance on the

arbitrator’s decision, just because the parties have done so persistently? In this

regard it is of cardinal relevance, in my view, to take into account again that the two

new employment contracts, which purportedly came into being, continue to form the

background to this appeal. Contracts and contractual terms agreed upon by parties

are sometimes impacted upon by residual terms imposed by the law. The question

thus arises whether or not the parties were really free to ignore the provisions of the

Public Service Act, as was submitted.

[76] This court has conveniently analysed the applicable law in this regard in Pinto

v First National Bank of Namibia Ltd & Another76, as a result of which it formulated

the test to be applied as follows:

‘[61] It has thus appeared that — in the enquiry — of whether or not any statutory

terms will be superimposed on a contract — one will have to consider the circumstances of

the particular case, the 'naturalium' of the agreement, whether or not the contract is of the

type in which the law implies the term and whether or not the parties have expressly

excluded such term.

[62] To this one might add that one would also have to consider whether or not the

legislature intended to use its overriding power to nullify or control any attempt by the parties

to exclude a term imposed by statute or the common law in their contract.’77

[77] If one then turns to the facts of this case it appears firstly that the applicants

were employed as Permanent Secretaries in the public service. The nature of the

underlying contracts, as well as the applicability of the Public Service Act 1980, to

their employment contracts, was formulated by counsel for the appellants, in their

heads of argument, in the following terms:

‘ … Both of the appellants, upon being afforded an opportunity in terms of section

37(2) of the Public Service Act, Act 13 of 1995 when it came into effect made a choice that 76 2013 (1) NR 175 (HC)77 Pinto v First National Bank of Namibia Ltd & Another op cit at [60] to [61]

53

their respective employment relationships shall be dealt with in terms of section 10A of the

repealed Act 2 of 1980.78 Any extension or non-extension would thus be in terms of that Act.

… ‘.

[78] This revealing statement leaves no doubt as to the applicability of the referred

to statute to the appellants’ employment agreements. After all it is expressly self-

admitted that ‘any extension or non-extension’ would be in terms of the repealed Act

2 of 1980. It must thus be concluded that it was accepted by the parties that the

terms of that statute would apply to them and that they were thus superimposed on

the appellants’ employment agreements.

[79] The next question that arises is whether or not the parties did- or could have

opted to contract out of the terms imposed by statute on the employment

agreements in question.

[80] In this regard it is firstly clear that they did not do so expressly.

[81] Secondly, a contrary intention appears also from the court challenge, made by

the first appellant, during December 2009, in terms of which he successfully resisted

the non-extension of his employment contract on the basis that the governments

notice, not to renew his employment contract, did not comply with the ‘6 months’

notice period’ prescribed by section 10A of the Public Service Act 1980.

[82] Not only does this court challenge demonstrate, beyond all doubt, that the first

appellant considered the provisions of the Public Service Act 1980 to form part of his

employment contract but also that the respondents held the same attitude, as is

shown by their consent, to have the notice, of 2 December 2009, set aside by the

Labour Court, following a concession made, by the then Prime Minister, that it did

not comply with the relied upon section 10A.

[83] There is nothing before me - and in any event it is also unlikely - that the

second appellant’s position is different.

[84] It so becomes unnecessary, in these circumstances, to determine further

78 Record, p. 39

54

whether or not the legislature intended to use its overriding power to nullify or control

any attempt by the parties to exclude the terms imposed by the Public Service Act in

their employment contracts, which in any event would have been unlikely, and which,

in this instance, they have not sought to do.

[85] It so emerges that the applicable residual terms of the Public Service Act

1980 were always part on the appellants’ previous employment agreements. It thus

follows, that when the two new employment agreements came into being, during

March 2015, these statutory- superimposed terms, again, formed part of the new

employment contracts of the appellants, which were unlawfully terminated on 2 April

2015.

THE IMPACT OF THE RESIDUAL TERMS IMPOSED BY THE PUBLIC SERVICE ACT 1980

[86] In these circumstances there can be no doubt that the arbitrator was thus

correct when he took the applicable statutory and contractual framework into account

when he considered what remedies were to be afforded to the appellants, and

ultimately, when exercising his discretion, in not awarding reinstatement to the

appellants. The statute and its impact on the contracts was not only a further

important background consideration, at the time, for the arbitrator, but also one,

which he could not ignore.

[87] Surely also this court cannot ignore the applicable statutory position, just

because the parties have done so, as was suggested by Maleka. I will revert to this

aspect below.

[88] As the appellants chose to be dealt with in terms of sections 10A and 14 of

the Public Service Act 2 of 1980 the salient provisions of the statute, as applicable to

them, should now be considered more closely. They can be summed up as follows:

a) Any person so appointed would be able to occupy such office ‘for a period of

five years or for such shorter period as the Cabinet may approve’ but any shorter

period would be subject to a recommendation by the Public Service Commission

(section 10A(a) as read with section 10A(3);

b) If such employment agreement were to be extended, such extension could

55

occur in terms of section 10A(c) as read with section 10A (2)(a);

c) The decision to extend such contract or not would have to be communicated

by the giving of a notice, at least 6 calender months before the expiry of the contract

in terms of section 10A(2)(a);

d) Any extension of a term of office would be ‘for a period or successive periods

of at least one year but not exceeding five years’; see section 10A(c);

e) Any such extension would be subject to cabinet approval: section 10A(c);

f) Retirement for members of the public service is regulated by section 14 of the

1980 Act.

g) Any officer of the public service shall have the right to retire from the public

service on attaining the age of sixty years and shall be so retired on reaching the

said age. See section 14(1);

h) Section 14(3) creates the possibility for the retention of an officer beyond

retirement age. It states:

‘If it is in the public interest to retain any officer in employment in employment in his

post beyond the age at which, in accordance with subsections (1) and (2), he shall be retired

he may, with his consent, be so retained from time to time on the recommendation of the

Commission and subject to the approval of the Cabinet for any further period expiring no

later than the last day of the month in which he attains the age of sixty-seven years.’

[89] It appears that when the arbitrator, in this instance, was faced with the task, to

make an appropriate award, he was also faced with the aforementioned applicable

statutory scenario, which had to be considered as it formed part of the applicable

contractual position.

[90] In this regard it must further be kept in mind that he had just found that two

new employment contracts had come into existence, relating to two permanent

secretaries, in the employ of the public service, that such contracts had been

unlawfully terminated, that the appellants had thus both, procedurally and

substantively, been unfairly dismissed, and, in respect of which they now claimed

56

their reinstatement for a further period of five years. In terms of Section 10A(c) the

claimed extension of such term of office could however only be ‘for a period of at

least one year but not exceeding five years’. At the same time he could surely not

disregard that the statute also retires public servants, in a mandatory manner, in

terms of section 14(1) upon reaching the age of 60. At the time of making the award

the appellants had reached the age of retirement. The award was made on 6

October 2015.The appellants had reached their mandatory retirement age on the 6 th

of August 2015 and 16th September 2015, respectively. The appellants claimed

reinstatement to their positions with retrospective effect to 2 April 2015 for a further

five years. The arbitrator was alive to the fact that the pre-conditions set by the

statute in terms of section 14(3), for the continued employment of the appellants,

beyond their retirement age, had not been met. Could he thus, in these

circumstances, as was contended, ignore the governing statutory and contractual

provisions and was the arbitrator, in such circumstances, not confronted with ‘a

statutory bar’, as far as the claimed reinstatement, of the appellants, was

concerned?

[91] I believe that both these questions have to be answered in favour of the

arbitrator, who - if he would have ordered reinstatement - would have ordered the

respondents to employ the appellants in breach of the statute and the terms imposed

by statute on the governing contracts, which would not have been permissible, or

which would, at the very least, have been “inappropriate” - as was submitted on

behalf of the respondents. On this basis, also the further submissions, to the effect

that ‘ … on the findings made by the arbitrator reinstatement was not possible, as

appellants had already reached retirement age and that the granting compensation

was the only appropriate remedy which was available in the circumstances … ’, have

to be upheld.

THE IMPACT OF THE STATUTORY BAR ON THE GROUNDS OF APPEAL

[92] If one then considers the grounds of appeal against this background the

following should be said in respect of these grounds:

Ad the first ground:

57

a) That – given the circumstances considered above - the finding of the arbitrator

- that ‘reinstatement would be inappropriate’ - cannot be held to be incorrect; and/or

b) That a reasonable arbitrator - given the findings on the merits - and in the

given circumstances considered above - should not have granted the relief sought by

the appellants for reinstatement;

Ad the second ground:

c) That the Arbitrator did not err, in law, when he found that he rather should

grant compensation as opposed to the claimed reinstatement – given the applicable

statutory and contractual position - due to the fact that the appellants had reached

the age of 60 at the time of the making of the award and in respect of which no

evidence had been placed before him that a decision had been made to allow any of

the two appellants to serve beyond their retirement age and that this situation thus

was a bar to the claimed reinstatement of the applicants to their former respective

positions;

Ad the third ground:

d) That the Arbitrator did not err in law in that he - having found that the

applicants were unfairly dismissed, both in respect of substance and procedure -

nevertheless opted for compensation of 6 months instead of reinstatement - in spite

of the situation were all the evidence proved that there was no breakdown of the

employment relationship, or that there was no breakdown of trust and where the

respondents, through their conduct, and impliedly wanted the applicants to work

beyond the period of their respective erstwhile 5 years contracts for another 5 years

contracts. - as this ground of appeal ignores the impact of the agreed position not to

assail the finding that new contracts had come into being with the residual terms

considered above and also as this ground fails to take the two common cause facts

in to account namely that the appellants had been informed, prior to their dismissal,

that their contracts would not be renewed and that cabinet, subsequently, had also

resolved not to retain their services. In this regard it should in any event be said that

even if it would have been found that there was no breakdown in the employment

relationship or that the relationship of trust between employer and employee

continued to be in tact – and - that these factors would thus not have posed a bar to

58

the claimed reinstatement - that the arbitrator’s decision was nevertheless correct, in

view of the ‘statutory bar’, posed to the claimed reinstatement, by the requirements

set by section 14(3) of the Public Service Act 1980.

Ad the fourth ground:

e) This ground was rendered irrelevant by the common cause position adopted

by that parties that two new employment contracts had come into existence

subsequent to the expiry of the last five year contract.

IS THERE ANY OTHER BASIS ON WHICH THE COURT OF APPEAL SHOULD INTERFERE WITH THE DISCRETION EXERCISED BY THE ARBITRATOR?

[93] What remains is the determination of whether there is any other basis on

which the court should interfere with the discretion exercised by the arbitrator when

he opted to award compensation to the appellants instead of reinstatement?

[94] Firstly it should be kept in mind in this regard that the Supreme Court has

found that, on the application of the applicable test, this court would not just simply

be entitled to interfere with the decision of a ‘lower court’79, here the decision of the

arbitrator, on the ground that the court of appeal would harbour a different opinion to

that of the court a quo or would have made a different value judgment, if the

discretion, which was exercised, was of a judicial nature and was made on a

consideration of the facts of the case, which involves a value judgment.80 Secondly it

should be kept in mind that the power to interfere on appeal in, such instances, is

strictly circumscribed, which will only be exercised:

‘ … if the court below 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 materially misdirected itself.’81

79 In this regard it should be kept in mind that it has been held that the arbitrator in this case exercised a judicial function. See : Swartbooi and Another v Mbengela N.O and Others (SA 73/2013) [2015] NASC 31 (24 November 2015) at [33] reported on the SAFLII website at http://www.saflii.org/na/cases/NASC/2015/31.html#_ftnref6 – Compare also : Purity Manganese (Pty) Ltd v Katzao 2012 (1) NR 233 (LC) at [21]80 See : Rally for Democracy & Progress v Electoral Commission for Namibia & Others 2013 (3) NR 664 (SC) at [106]81 See : Rally for Democracy & Progress v Electoral Commission for Namibia & Others op cit at [106]

59

THE ADDITIONAL FACTORS

[95] It is here that the further arguments mustered on behalf of the respondents

come into play. It was pointed out on this score that:

a) There were other factors which also militated against an order reinstating appellants.

Appellants are part of a group of permanent secretaries who occupied these posts for 20

years and more. These persons were all close to reaching retirement age. Government

wanted new people to fill these posts. There was a perception that they had stayed in the

positions for too long and were becoming a liability.

b) It was accepted this this might not be a valid ground of dismissal, as the arbitrator

found, but it was contended that this would nevertheless have been a relevant consideration

in deciding whether reinstatement or compensation should be ordered.

c) Another relevant factor was that on 28 July 2015 Cabinet did, albeit belatedly,

pronounce on whether the contracts should be extended. By taking the decision, Cabinet

effectively shut the door on the argument that it was possible that permission would be

granted for appellants to be retained past their retirement age.

d) The arbitrator correctly found that reinstatement in the absence of a decision by

Cabinet for appellants to be retained beyond their retirement age was not possible.

[96] With regard to what has already been said above, and also given the personal

circumstances of the appellants, it cannot be said that these additional factors should

not have been considered and/or that their consideration amounted to a material

misdirection, for instance. These aspects were clearly also relevant. Accordingly any

discretion exercised on this basis was not capriciously exercised or based on the

application of a wrong principle. It appears that the discretion that was exercised was

acted on for substantial reasons.

[97] On behalf of the appellants it was submitted that this court would be in a

better position and ‘would have an obvious comfort’ to order reinstatement for the

following reasons:

a) ‘the dismissal occurred recently – that is twelve months ago;

60

b) the respondents were restrained by this court to fill the appellants’ respective

positions pending finalization of the appeal; so the positions are still open;

c) none of the recognized factors that may discourage a reinstatement would be

applicable; and

d) the factors count against reinstatement listed by the Supreme Court in Swartbooi

and Another v Mbengela N.O and Others,82 under para 46 do not apply.’

[98] In this regard it must immediately be said that ‘no such comfort will be had’

due to the following reasons:

a) Although it was correctly pointed out that the dismissal occurred only last

year, on 2 April 2015; and despite this being a relevant consideration, obviously, this

factor cannot prevail on its own;

b) The fact that the respondents were interdicted by court order from filling the

appellants’ positions permanently, was a fact not known to the arbitrator at the time

that the award was made. He would however have known that the appellants’

positions had, at the time of the award, not been filled permanently;

c) Even if one would accept, that, at the time of the award, the above mentioned

general considerations precluding a reinstatement, were absent, this submission fails

to take into account that the arbitrator was ‘barred by the applicable statutory and

contractual provisions’ from granting reinstatement, as this judgment has clarified;

d) Therefore the perceived non- existence of the general factors against

reinstatement, as listed by the Supreme Court, in Swartbooi and Another v Mbengela

N.O and Others,83 is immaterial for the appellants cases as the abovementioned

additional ‘statutory’ considerations determine and prevail on that issue.

82 Swartbooi and Another v Mbengela N.O and Others where the court stated: [46] The appellants had been dismissed in May 2010, nearly five and a half years before this appeal was heard. Their positions with the third respondent would no doubt have been filled in the intervening period. The Labour Court has declined to order reinstatement in cases of delay, given that prejudice could result to innocent third parties who have positions held by successful appellants. Other factors to be taken into account in declining to order reinstatement have been where the employment relationship has broken down or trust irredeemably damaged. These factors are not exhaustive. Plainly the remedying award is not only to be fair to employees but also to employers. In this instance, the delay of more than five years from the dismissals renders a reinstatement impractical, inappropriate and unfair to an employer as was understandably accepted by Mr Rukoro on behalf of the appellants.”83 As listed in the cited paragraph [46]

61

[99] Also these factors thus do not impact on the decision in question.

CAN IT BE SAID THAT THERE WAS NO EVIDENCE WHICH WOULD SUPPORT THE ARBITRATOR’S FINDINGS?

[100] On behalf of the respondents it was further pointed out that the appeal can

only lie on questions of law and that the test for intervention by this Court, in the

absence of an error of law, is the following:

“It is only when there is no evidence which could reasonably support a finding of fact or

where the evidence is such that a proper evaluation of that evidence leads inexorably to the

conclusion that no reasonable court could have made the finding that this court will be

entitled to interfere.”84

[101] In the referred to authority the Full Bench dealt with this aspect more fully in

the following way:

‘ [3] In terms of the provisions of s 89(1)(a) of the Labour Act 11 of 2007 a party to a

dispute may appeal to the Labour Court against an arbitrator's award 'on any question of law

alone'.

[4] The full bench of the high court (per Mtambanengwe J) in Rumingo and Others v Van

Wyk 1997 NR 102 (HC) at 105D – stated the following on the issue of a question of law:

'The test in appeals based on a question of law, in which there has been an error of

fact was expressed by the South African Appellate Division in Secretary for Inland

Revenue v Geustyn Forsyth & Joubert 1971 (3) SA 567 (A) at 573 as being that the

appellant must show that the Court's conclusion could not reasonably have been

reached.'

[5] The full bench of the high court (per Hannah J) in Visagie v Namibia Development

Corporation 1999 NR 219 (HC) at 224 stated that the Labour Court was the final arbiter on

issues of fact and that it was not open to a court on appeal to depart from a finding of fact by

that court. Hannah J referred with approval to the decision of the Supreme Court of Appeal

in South Africa in the matter of Betha and Others v BTR Sarmcol, a Division of BTR Dunlop

84 House and Home (a trading division of Shoprite (Pty) Ltd) v Majiedt and Another op cit at page 336 para [5]

62

Ltd 1998 (3) SA 349 (SCA) where Scott JA said the following at 405F – 406A:

'In the present case, of course, this Court, by reason of the provisions of s 17C(1)(a) of

the Labour Relations Act 28 of 1956, is bound by the findings of fact of the LAC.

Accordingly, the extent to which it may interfere with such findings is far more limited

than the test set out above. As has been frequently stated in other contexts, it is only

when the finding of fact made by the lower court is one which no court could

reasonably have made, that this Court would be entitled to interfere with what would

otherwise be an unassailable finding. (See Commissioner for Inland Revenue v

Strathmore Consolidated Investments Ltd 1959 (1) SA 469 (A) at 475 et seq;

Secretary for Inland Revenue v Trust Bank of Africa Ltd 1975 (2) SA 652 (A) at 666 B

– D.) The enquiry by its very nature is a stringent one. Its rationale is presumably that

the finding in question is so vitiated by lack of reason as to be tantamount to no finding

at all.

The limitation on this Court's ordinary appellate jurisdiction in cases of this nature

apply not only to the LAC's findings in relation to primary facts, ie those which are

directly established by evidence, but also to secondary facts, ie those which are

established by inference for the purpose of establishing a secondary fact is no less a

finding of fact than a finding in relation to a primary fact. (See Magmoed v Janse van

Rensburg and Others 1993 (1) SA 777 (A) at 810H – 811G.)

It follows that it is not open to this Court to depart from a finding of fact by the LAC

merely on the grounds that this Court considers the finding to be wrong or that the LAC

has misdirected itself in a material way or that it has based its finding on a

misconception. It is only when there is no evidence which could reasonably support a

finding of fact or where the evidence is such that a proper evaluation of that evidence

leads inexorably to the conclusion that no reasonable court could have made the

finding that this Court will be entitled to interfere.'

[6] This court therefore, on the strength of these authorities, is required to determine as

question of law whether on the material placed before the arbitrator during the arbitration

proceedings, there was no evidence which could reasonably have supported such findings

and/or whether on a proper evaluation of the evidence placed before the arbitrator, that

evidence leads inexorably to the conclusion that no reasonable arbitrator could have made

such findings.’ 85

[102] If, in the application of this test, one again considers the scenario sketched

above in paragraph [90], against which the arbitrator had to make his award in this

85 House and Home (a trading division of Shoprite (Pty) Ltd) v Majiedt and Another op cit at [3] to [6]

63

instance, it must be concluded that it cannot be said that, on the material before the

arbitrator, no reasonable arbitrator could, on the evidence placed, before him, not

have made the award, which he gave in this instance.

[103] Here it should also be taken into account, that in this case, the appellants, in

effect have contended that the arbitrator should have substituted his own decision for

that of the Cabinet as to whether the contracts of the appellants should be extended,

which decision would also have substituted the discretion and decision of the Public

Service Commission and the Cabinet, (who did not then have the opportunity to

consider and decide the matter) as to whether the appellants should be retained in

service beyond their retirement age. The submission that the arbitrator correctly

declined to do this has already been upheld.

[104] Finally it should be said that also this court, as I have already intimated above,

cannot ignore the requirements of the law.

[105] Here it is apposite to again call to mind and have regard to Mr Budlender’s

oral argument which was to the effect that even if was accepted that the Labour

Court would have wide jurisdictional of powers to grant appropriate relief, that it was

nevertheless doubtful that any court of law would make an order which would be

inconsistent with the rule of law and in breach of a statute. In this regard he asked

the court to keep in mind that if the court would accede to the sought relief that this

would not only be inappropriate, as it would compel Cabinet to employ the

appellants, in circumstances, in which they did not want to, but that any such order

would also be so far-reaching that the court would thereby also take over the

functions which Parliament had assigned to the Public Service Commission and

Cabinet. What the appellants were thus asking would further be inappropriate as it

would ultimately also be in breach of the separation of powers doctrine.

-

[106] I cannot agree more with the sentiments so expressed. It is beyond doubt that

it would be inappropriate for this- or any other court of law not to recognize and

uphold- and apply the seemingly applicable valid statutory provisions, after all the

courts of this country are, fundamentally, obliged through the judicial oath of office ‘to

administer justice in accordance with the laws of the Republic of Namibia’.

64

[107] Therefore, also on the basis of the wide jurisdictional powers of this court, I

cannot find any room to interfere with the discretion exercised by the arbitrator in this

instance.

[108] It follows that the appeal cannot be sustained and must therefore be

dismissed for the above reasons.

[109] In the result I make the following order:

The appeal is dismissed.

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

H GEIER

Judge

APPEARANCES

APPELLANTS: I V Maleka SC

Instructed by Sisa Namandje & Co. Inc.,

Windhoek

1st to 3rd RESPONDENTS: G Budlender SC (with him N Marcus)

Instructed by Government Attorney,

Windhoek