Mouton v Namibia Rugby Union

DETAILS OF HEARING AND REPRESENTATION

[1] This is an urgent application brought in terms of Rule 28 (1) (c) of the Rules
Relating to the Conduct of Conciliation and arbitration proceedings, which rules are
made in terms of Section 135 of the Labour Act 11 of 2007. The applicant herein is
Mr. Isak Mouton, the suspended Chief Executive Officer of the First Respondent
herein. The First Respondent is Namibia Rugby Union an unincorporated entity and
for that reason this case is also brought against members of its Executive
Committee who are cited as Second to Seventh Respondents respectively in their
personal capacities. Applicant was represented by Mr. Ruben Philander from the Law
Firm Lorentz Angula Incorporated, while the respondents were represented
collectively by Mr. Otniel Podewiltz from Employment Solutions CC.
[2] The matter was initially set for hearing of arguments on the 8 th April 2011, and
by agreement between the parties hereto, it was accordingly agreed that the matter
be remanded to the 11th April 2011, which request was necessary so as to allow the
Respondents to secure legal representation. When we resumed on the 11 th April
2011, again another postponement was sought by mutual agreement between the
parties so as to allow the Applicants representative to reply to an opposing affidavit
deposed to by the Acting CEO of the first respondent and to prepare written heads
of argument. Subsequently, the hearing took place on the 12 th April 2011 at the
Office of the Labour Commissioner, Windhoek.
BACKGROUND TO THE DISPUTE
[3] Applicant herein was appointed by the First Respondent as a Chief Executive
Officer on the 1st June 2009. In terms of the employment contract, applicants
remuneration comprise of a monthly salary of N$ 23, 000, a bonus equal to a
months salary and a 10% of the value of any sponsorship secured during the
subsistence of the employment relationship. During year 2010, his salary was
increased to N$ 24,675. On the 9 th December 2010, applicant was suspended from
office for an alleged misconduct, and it was a condition of his suspension that he
would receive his full pay.
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[4] On the 12th January 2011, applicant was served with a notice of disciplinary
hearing, in terms whereof it is indicated that he may be represented by any
representative of choice. Based on this condition, applicant secured the services of
a Legal Practitioner to represent him at that hearing due to the complexity of his
case.
[5] The hearing was initially set to take place on the 18 th January 2011, which could
not take place as the applicant raised an objection against the appointed
chairperson of the disciplinary inquiry and also the further particulars which were
not in possession of the applicant.
[6] In the days that ensued, several postponements were sought and it was then
decided that the matter should continue on the 4 th April 2011. Again on that day,
the hearing could not proceed as a result of the withdrawal applicants
representative due to non-payment for his services by the applicant. From that day,
it was then decided by the chairperson of the disciplinary inquiry that the matter
would continue on the 11th April 2011, with or without legal representation on the
part of the applicant.
[7] Applicant is of the view that, given the fact that his monthly salary has not been
paid for the months of January, February and March 2011, which situation has
placed him in a worse financial situation to an extent that he is unable to foot the
bill of his legal representative. As a result, applicant now brought this urgent
application to restrain the respondent from proceeding with the said hearing
pending payment of all his salaries for the month of January, February and March
2011 so as to enable him to pay the legal fees associated with his disciplinary
hearing.
ISSUES FOR DETERMINATION
[8] The main thrust of this application, as aptly encapsulated in the applicants
founding affidavit and the subsequent arguments thereto, is to seek an order in the
following terms:
(i) Dispensing as far as may be necessary with the forms and service and
compliance with the time limits prescribed by the Rules of this forum, condoning
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applicants failure to comply therewith and directing that this matter be heard as
one of urgency as envisaged by Rule 28 of the Rules Relating to the Conduct of
Conciliation and Arbitration before the Labour Commissioner,
(ii) that a rule nisi be issued calling upon the respondent to show good cause, if any,
on a date to be determined by the Arbitrator why an order in the following terms
should not be made final:
(a)

That the continuation of the pending disciplinary enquiry against the

applicant be stayed pending payment of the applicants outstanding
remuneration by the First to Seventh Respondents, the one paying the other

(b)

to be absolved;
Alternatively, that the continuation of the pending disciplinary enquiry
against the applicant be stayed pending the outcome of the dispute dated 15
March 2011 (served on the First to Seventh Respondents on 16 March 2011)
and registered with this forum;

(iii) Ordering that either order made in terms of (ii) (a) or (ii) (b) above operate as
interim order with immediate effect;
(iv) Costs of this application
(v) Further and alternative relief.
[9] The respondent has raised its objection to the above order being granted on the
grounds that the matter is not urgent and further that this forum lacks jurisdiction.
The respondents representative has referred me to a host of decided cases in
support of this argument, which I shall look at later in this award. For present
purposes however, it is my intention to look at one of the grounds raised by the
respondents representative, this being the jurisdiction of the Office of the Labour
Commissioner to deal with labour matters on urgent basis.
Jurisdiction of the Office of the Labour Commissioner to deal with urgent
applications
[10] It is apposite here to mention that the jurisdiction of any forum is an important
criteria and lack thereof can render any proceedings a nullity. For this reason, I
purposely decided to inquire into the jurisdictional ground of this application so as
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to pave the way forward on whether this matter is properly before me and that I am
rightly positioned to grant or to refuse the order so sought. As a point of departure
therefore, I must state that since Arbitration Tribunals are a creature of statute, the
enquiry will proceed from looking at the enabling statute this being the Labour Act
11 of 2007, in terms whereof Arbitration Tribunals are created as per Section 85
thereof. The jurisdiction of such Tribunals and the rulings which can be made by
them can be discerned from the provisions of Section 86 (15) which reads as
follows:
(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 subject to subsection (16), an order for costs.

[11] In addition to the above Section, there are Regulations made pursuant to
section 135 of the Labour Act. The most significant one in the instant case are the
Rules Relating to the Conduct of Conciliation and Arbitration, of which Rule 28 (g)
reads as follows:
Manner in which applications may be brought
28. (1) This rule applies to
(a) an application for postponement, condonation, substitution, variation or resicission;
(b) an application for class certification
(c) any other application for preliminary or interlocutory relief, such as an application for
consolidation or joinder.
(2)
(3) the application must state clearly the relief sought and must be supported by an
affidavit, or if permitted by the arbitrator, a written and signed statement.
(4) The affidavit or statement referred to subrule (3) must clearly and concisely set out(a) the names, description and addresses of the parties;

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(b) a statement of the material facts, in chronological order, on which the application is
based, in sufficient detail to enable any person opposing the application to reply to the
facts;
(c) the reasons that the applicant has applied for the requested relief;
(d) the provisions of the Act, if any which support the request for relief;
(e) any other grounds to support the request for relief;
(f) if the application is filed outside the relevant time period, grounds for condonation in
accordance with rule 10; and
(g) if the application is brought urgently, the circumstances why the matter is urgent and
the reasons why it cannot be dealt with in accordance with the time frames prescribed in
the rules.
(5)
(6) ..
(7) .
(8) .
(9) in an urgent application, the arbitrator
(a) may dispense with the requirements of this rule; but
(b) may only grant an order against a party that has been given reasonable notice of the
application and an opportunity to be heard.
(10) (my underlining)

[12] From the foregoing, it is evidently clear that an arbitrator is in a position to deal
with an urgent application and the argument that this forum lacks jurisdiction to
deal with the matter is a non-starter to say the least.
Arguments
[13] Having dealt with the jurisdiction, I now turn to the arguments advanced by
both parties in support and in opposition to the application respectively. I must state
here that I am indebted to the representatives of both parties for their industry in
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compiling their arguments, especially if regard is to be had to the limited time

within which this application was brought. I must further state here that for
expediency, and of course given the limited time within which I had to decide this
matter, it is not my intention to replicate their arguments here verbatim, but merely
to single out arguments which are central to this application.
Applicants arguments
[14] Mr. Philander, on behalf of the applicant, argued that applicants case is
premised on a breach of contract in terms of which the interim relief is sought. He
argued that the requisites for an interim relief are trite and to this end he made
reference to these requirements as set out in LAWSA Vol. 11, paragraph 403
thereof; which are:
(a) (a) a prima facie right
(b) a well-grounded apprehension of irreparable harm if the interim relief is not granted and the
ultimate relief is
eventually granted;
(c) The balance of convenience favours the granting of an interim interdict;
(d) That the applicant has no satisfactory remedy.

[15] With regard to urgency, he argued that the grounds for urgency were clearly
set out in applicants founding affidavit, in paragraphs 24 and 25 respectively. With
regard to jurisdiction, he cited certain provisions of the Labour Act (Act 11 of 2007)
which in his view confers jurisdiction on this Tribunal to deal with the matter at
hand. He referred me to section 84 and 85 insofar as those sections empower this
Tribunal to deal with Labour disputes, including the present application.
[16] He also referred me further to section 86 (15) which I have cited hereinbefore,
insofar as that section deals with the nature of remedies that this Tribunal is
empowered to make. In fortifying his arguments in favour of the jurisdiction of this
Tribunal, Mr. Philander referred me to the matter of National Union of
Mineworkers v Elandsfontein Colliery (Pty) Ltd (Case No. J81/98, unreported
judgment of the Labour Court of South Africa) wherein the court considered whether
Section 158 (1) of the Labour Relations Act of South Africa, which corresponds with
Section 86 (15), save that it deals with the powers of the Labour Court.

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[17] According to that judgment as per the dictum that he extracted therefrom, the
court is empowered to direct the performance of any act that will remedy a wrong
and give effects to the primary objects of the Act. He contended that similarly, even
though the instant forum is not a court per se, Section 86 (15) empowers it to make
such order as to give effects to the primary objects of the Act.
[18] He contended that these duties are the naturalia of the employment
agreement and to this end he made reference to Grogan: Workplace Law (8th
Edition) at 52 as well as the case of Council for Scientific & Industrial
Research v Fijen (1996) 17 ILJ 18 (A). He also made further reference to R H
Christie: The Law of Contract in South Africa (3 rd Ed Butterworths 1996) at
467 where the learned author stated that the principle of reciprocity recognizes the
fact that in many contracts the common intention of the parties , expressed or
unexpressed is that there should be an exchange of performances. Further, in any
bilateral or synallagmatic contract, i.e. one in which each party undertakes
obligations towards the other (such as an employment contract) the common
intention is that neither should be entitled to enforce the contract unless he has
performed or is ready to perform his own obligations. He further referred me to the
case of 3M SA (Pty) Ltd v South Africa Commercial Catering and Allied
Workers Union (Paragraph 8) as authority for the view that a contract of
employment is such a synallagmatic contract and to the case of Harley v Bacarac
Trading 39 (Pty) Ltd 2009 30 ILJ 2085 as authority for the proposition that
failure to pay the Applicants monthly salary is a breach of contract and smacked an
act of victimization.
[19] He argued that since the ability or right to discipline an employee is a
concurrent condition to the duty to remunerate the employee, the respondents are
barred in law from relying on its rights stemming from the employment contract as
it is in flagrant breach of the very same contract. He submitted that as a result, the
respondents should first purge their contempt before it can proceed to discipline the
applicant.
[20] It was also the representatives further argument that applicant has a right to a
fair hearing, which right can only be realized if he is paid his salary for him to be
able to pay his representative of choice. With regard to the issue of procedural
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fairness, he referred this Tribunal to the case of Malope v Commissioner Mbha &
Others (2005) 26 ILJ 283 at 291 where it was held that procedurally fair and just
hearing embraces the right to representation, which is not a matter of discretion,
nor is it tied to the exercise of a prerogative or indulgence.
[21] He contended further that since there were no internal persons available to
represent

Applicant,

resultantly any

representation

of

the

applicant

would

necessarily be external. He further also submitted that given the complexity of the
charges faced by the applicant and the skills of the initiator of the disciplinary
enquiry, the scales are not balanced and consequently, representation at the
enquiry is compelling. Using the case of NUNW v Blinkpan Colliers Ltd (1986) 7
ILJ 579 (IC), he submitted that the purpose of representation is to give moral
support and help balancing the scales; to ensure that justice is done; and ensuring
that the playing field between the employer and employee is leveled in particular
where one party is more knowledgeable than the other. He submitted that from the
conduct of the respondent, it was evident that the respondent intended to have the
applicant dismissed, hence the refusal to remunerate him, thereby depriving him of
his right to obtain legal representation.
[22] With regard to the issue of whether a prima facie right has been established, he
argued that this right was established through the right to representation as well as
the right to remuneration. Mr. Philander relied on the cases of Old Mutual Life
Assurance Co SA v Gumbi (2007) 28 ILJ (SCA); 2007 BLLR 699 (SCA) and
Attorney-General Eastern Cape v Blom & Others 1988 (4) SA 645 (A) at 664
to substantiate his argument in support of a right to a fair hearing in every contract
of employment. Referring to the case of S v Luboya 2007 [1] NR 96 (SC), he
argued that the mere informing of a right to representation is not sufficient in all
circumstances.
[23] As to the apprehension of irreparable harm, it was applicants representatives
submission that this was established as evident from the conduct of the relevant
respondents that their intention was to terminate applicants services by hook or
crook. He argued that the balance of convenience must favour the granting of the
order sought. He contended that the prejudice that the applicant will suffer if the
order is not granted must be weighed against the prejudice that the respondent will
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suffer if the order is granted. He went on to argue that the exercise of discretion
requires considering the prospects of success and the balance of convenience; the
stronger the prospects of success, the less the need for such balance to favour the
applicant and vice versa.
[24] It was further applicants representative submission that there was no
alternative remedy since applicant had sought within the disciplinary hearing to
assert his rights and prejudice caused by the relevant Respondents failure to
comply with its contractual obligations. As regard the urgency of the matter, he
referred me to the Harley case, supra where the South African Labour Court held
that where the respondent had unilaterally terminated the payment of remuneration
to the employee and could not dispute the dire financial consequences of the
suspension, the court, in the exercise of its discretion, was satisfied that the
application was urgent and that the applicant was not abusing the processes of the
court.
[25] Finally, Mr. Philander prayed for costs against First to Seventh respondents, on
the ground that their conduct is fallacious and frivolous, hence warranting an order
as to costs.
Respondents arguments
[26] Mr. Podewiltz, on behalf of the respondents contended in his written heads of
argument that the question in every application brought as a matter of urgency is
whether the application is urgent, and whether the remaining requirements for
interim or final relief (as the case may be) have been met. To this end he cited the
case of Habenicht v Chairman of the Board of Namwater Ltd and others
NLLP 2004 (4) 12 (NHC). He contended further that the principles relating to the
granting of interdicts are settled law in Namibia and to this end he referred me to
the recent judgment of Oscar Sheehama v Inspector-General of the Namibian
Police, (Unreported Judgment of the High Court of Namibia Case No. (P) A
284/2005, delivered on 2005.10.05) where the court dealt with the requisites of
interim interdicts. He argued that the applicants ground for justifying a finding that
the matter is urgent is essentially based on the fact that the applicant is not

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receiving his salary and is hence unable to secure legal representation at the
disciplinary hearing.
[27] He countered this view that, it is trite that financial inconvenience such as loss
of income and other benefits are not sufficient grounds to establish urgency. To
substantiate this proposition, he cited the case of Hultzer, Norman v Standard
Bank of South Africa (Pty) Ltd [1999] 4 BLLR 421 (LC) where the court has
considered the grounds for urgency in regard to a dismissed employee and where it
was authoritatively held that financial hardships or loss of income is not regarded
as a ground for urgency.
[28] To the cases above, he also added that of Jeremy Veary v The Provincial
Commissioner of Police & Three Others (citation not supplied) where the court
held that the mere loss of income is no ground for granting urgent relief, special
circumstances must exist. He argued further that the above principles were applied
with approval by the Namibian Labour Court in the case of Edwin Beukes and
Others v National Housing Enterprise (unreported Labour Court case, case no.
LC 30/06 delivered on 18 January 2007), which case he argues, is not dissimilar to
the instant matter. In that case the court held that financial loss or other
consequential hardships do not per se constitute a ground for urgency, and as a
result it ruled that the case for urgency has not been made out.
[29] As regards legal representation, it was Mr. Podewiltzs submission that it is
general principle that legal representation at internal disciplinary hearings is not a
must. He argued that a fellow employee or a union representative can assist the
employee, if he fails to secure legal representation due to funds. He cited the case
of Namibia Tourism Board v Tjino Kauapirura-Angula (unreported Labour
Court case no. LCA 48/ 2007, delivered on 29 March 2009) as authority for
the view that legal representation at internal disciplinary hearings is not an absolute
right.
[30] He contended that the averment that applicant will suffer irreparable harm and
that he would not get redress at the hearing in due course is untenable. He argued
that the claim for unpaid salary is tantamount to a material breach of the
employment contract and hence unfair dismissal. He argued that the fact that this is
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styled as an application for an interdict does not change the essential nature of the
relief sought, and therefore the application is essentially asking the arbitrator to
determine unfair dismissal on papers. It was further Mr. Podewiltzs argument that
the applicant has alternative remedies both internally and externally, since he has
an option to approach the Labour Commissioner in the event of an unfair
disciplinary hearing and the Labour Court subsequent to conciliation and arbitration.
[31] On whether a prima facie right has been established, he argued, citing the case
of Ronald Patrick Kurtz v Nampost Limited, (unreported Case No. LC 29/2005)
where the court stated that the allegations that a prima facie right has been
established is misguided because the disciplinary hearing process is far from
complete and it is premature for him to allege that the hearing will in due course be
unfair. He argued further that the applicant has unreasonably delayed bringing this
application and is doing so now with the sole purpose of stopping the disciplinary
hearing against him.
[32] He argued that the applicant was since 12 January 2011 aware that a
disciplinary hearing against him will be held and that since November 2010 he has
not been receiving his full salary, and this notwithstanding, the applicant is only
now seeking an urgent order some three months after the date of the cause of
action. On the issue of urgency, it was respondents representative argument that
an applicant is not entitled to rely on self-created urgency when seeking a deviation
of the rules. He referred me to the case of Hlope, Victor Z and Others v Minister
of Safety and Security [2006] 3 BLLR 297 (LC) where the court held that injury
to reputation is not a ground for urgent interim relief.
[33] As regarding the jurisdiction of the Arbitrator, he argued that it was a trite
principle in labour law that courts are reluctant to interdict employers from
proceeding with disciplinary hearings and that interference is only justified in
exceptional cases. He submitted that the same principles also apply to the Tribunals
under the auspices of the Labour Commissioner. He argued further that applicant
did not indicate what exceptional circumstances exist justifying the interference by
the Labour Commissioner in the internal disciplinary hearing. He cited the matters
of Ndhlela, Joe v Premier Soccer Club and Another (citation not supplied) and
Nomgcobo Jiba v Minister of Justice and Constitutional Development and
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16 Others (citation not supplied) as authority for the proposition that courts are
loathe at intervening in proceedings where a final decision has not been made.
[34] As regards the granting of an interdict, he referred me to the matter of R
Booysen v South African Police Services and Ministry of Safety and
Security [2008] 10 BLLR 928 (LC) where the court as per Cheadle J held that an
interdict is a discretionary remedy and the courts have over a long period of time
set their face against interference in uncompleted proceedings except in
exceptional circumstances.
[35] As regards the charges faced by the applicant, it was Mr. Podewiltzs argument
that although the charges are serious, they are not complicated as claimed. He
argued that, given applicants background, he was perfectly able to represent
himself. He argued that for these reasons, inter alia, the arbitrator should not grant
the relief prayed for in the Notice of Motion attached to the applicants founding
affidavit.
ANALYSIS OF ARGUMENTS
[36] In the foregoing paragraphs, I endevoured, to the best of my abilities to
summarize the arguments advanced by both parties in respect of whether or not
the relief sought should be granted. Again, as I have mentioned earlier on in this
matter, I am indebted to both parties representatives for their thorough research
on the matter before me.
[37] Having summarized the arguments by both parties, my approach will be to
scrutinize the points raised by each party so as to determine whether, given the
peculiar facts of the instant application, a prima facie case is made out against the
respondent that warrants intervention by the arbitrator into the impending
disciplinary hearing of the applicant. From the papers before me as well as
arguments advanced by applicants legal representative, the urgent application was
triggered by the non-payment of applicants salary for the months of January,
February and March 2011, which is said to have plunged the applicant in a
precarious financial situation insofar as he is unable to pay for the fees in order to
secure representation.
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[38] This non-payment, as was rightly submitted by counsel for the applicant during
oral arguments, does not only put applicant in a difficult financial situation, but is in
itself a breach of contract and a direct violation of Section 11 of the Labour Act (Act
11 of 2007) of which the relevant portion reads as follows:
11 (1) An employer must pay to an employee any monetary remuneration to which the
employee is entitled
(a) Not later than one hour after completion of the ordinary hours of work on the normal
pay day, which may be daily, weekly, fortnightly or monthly (my emphasis)

[39] The provisions of the above section enforce the reciprocal obligations which
exist between the employer and the employee. I shall not dwell much on these
obligations for they are trite in our law. The point I am getting to here is whether
given the requisites of an urgent relief referred to hereinbefore in the arguments,
there existed a prima facie right to warrant an order for an urgent relief.
[40] With this being said, it is an undisputed fact that the respondent, when it
suspended applicant, it made it a condition of such suspension that he will be
entitled to full remuneration and hence there appears to be no good reason why it
has failed to make good its promise to keep remunerating applicant during the
currency of his suspension. On the basis of this, I am fully satisfied that there is a
right which has been violated thereby entitling applicant to seek an order
restraining the respondent to comply with its contractual obligations in as much as
it is desirous to enforce its contractual right to discipline applicant. On this point, I
am in concurrence with the applicants representative argument and the authorities
thereto that a right to discipline an employee is a concurrent condition to the duty
to remunerate the employee.
[41] Having established that a prima facie right entitling applicant to the relief
sought does exist, I now proceed to examine as to whether other requirements for
granting an interdict as stated herein above have been complied with. As regards
the question as to whether a well-grounded apprehension of irreparable harm if the
interim relief sought is not granted, it was argued by the applicants representative
that this was established as per the conduct of the relevant respondents that their
intention is to terminate applicants services by hook or crook. While I cannot pre-

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empt the outcome of the applicants disciplinary hearing, I must state that the
conduct of the respondent so far leaves much to be desired.
[42] By withholding applicants salary, a view can be constructed that applicant is
treated as if he were already dismissed. The counter argument of the respondent is
that, it is not in a position to pay applicant as a result of financial difficulties which
applicant has occasioned. Again, this line of reasoning is in itself indicative of the
malicious intention of the respondent in treating applicant as a convict rather than
an accused. In my view, the requirement of an apprehension for an irreparable harm
has been adequately established.
[43] Regarding the requirement of the balance of convenience, it was argued by the
applicants representative that the prejudice that applicant will suffer if the order is
not granted must be weighed against the prejudice that the respondent will suffer if
the order is granted. It is apparent that the main reason why applicant wants his
salary paid is to enable him to hire an external representative to represent him in
the pending disciplinary hearing. Although I take cognizance and am in agreement
with the respondents argument that legal representation in disciplinary hearings is
not mandatory, in the instant case applicant is availed this right by the respondent
of its own accord.
[44] Hence, given the seriousness and complexity of the matter, applicant is
certainly entitled to be represented by a representative of choice and since he is a
salaried employee, he has every right to his salary which he can use for whatever
purpose including paying the fees of a legal representative. Failure to pay
applicants salary for him to be able to do whatever he wishes with his salary is a
flagrant disregard of the provisions of the Labour Act warranting an urgent action in
the circumstances. What is striking in this matter is the fact that the respondent is
so anxious to assert its rights in terms of the contract to discipline the applicant, yet
it disregards its concomitant obligation to remunerate applicant. In the premise
therefore, I am in agreement with applicants representative submission that the
balance of convenience must be in applicants favour.
[45] Lastly, as a requirement for granting an urgent order, the applicant must not
have a satisfactory remedy. It is apparent from the instant case that applicant had
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on numerous occasions, including at the pending disciplinary hearing, indicated that

he wanted legal representation, which he can obtain only if his salary arrears are
paid. This notwithstanding, the respondents have been adamant to proceed with the
hearing whether applicant is represented or not. In my view, as far as internal
procedure is concerned, applicant has already exhausted all the remedies available
to him insofar as his right to remuneration and the ancillary right to legal
representation is concerned. As a result therefore, it cannot be said that he had
alternative remedy.
[45] Mr. Podewiltz pointed out correctly on behalf of the respondents that applicant
can still approach the Labour Commissioner and the Labour Court eventually if he is
not happy with the result. This is exactly what applicant did when he realized that
he would never be served justice internally. It suffices to mention that the essence
of the relief sought is not per se to interfere with the internal disciplinary hearing,
but to seek an order compelling respondent to comply with its contractual
obligations of failing to pay applicant, before it asserts its rights, which it derives
from the very contract, to discipline the employee.
[46] On a preponderance of probabilities, I am fully convinced that all the
requirements for granting an urgent application have been met. I had occasion to
peruse through a plethora of cases that both parties have referred me to, solely
with a view to ascertain their relevance to the instant matter. To start with, the
Hultzer case had to do with an urgent application in regard to a dismissed
employee. It is my respectful view that this case is not relevant as the relief sought
by a dismissed employee is uncertain as opposed to a right which is undisputed in
the instant case.
[47] In cases of unfair dismissal, it is not clear, until it is decided whether your
dismissal was unfair or not in that you are entitled to loss of income. In the matter
before me, applicant has a well-established right to his salary and hence it cannot
be equated with the one above. Further, in the Beukes case on which respondents
representative relied heavily, a Namibian judgment of the Labour Court, the court
was also faced with a different case in that applicants alleged that their contracts of
employment were terminated contrary to section 50 of the Labour Act and hence
sought for an order on urgent basis for reinstatement. Again, this was an allegation
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which needed to be established whether or not their termination of service really

amounted to a violation of Section 50 of the now repealed Labour Act 6 of 1992.
[48] The difference is so apparent that in the instant case, respondents do not at all
deny owing applicant his salary save for excuses that the First Respondent is in a
worse financial position to remunerate the applicant and other employees, yet it has
money to hire a Labour Consultant to proceed with this hearing. Mr. Podewiltz
argued that applicant cannot say that he does not have money to be represented at
the disciplinary hearing, yet he is able to hire a Legal Practitioner to represent him
at this hearing. In my view, this argument is not well-founded, what applicant wants
in the instant application is an order compelling the respondents to continue
honouring their contractual obligations.
[49] It suffices to mention here that the cases referred to me are so many and it is
not my intention here to analyze each of them, however, at least I am glad to state
that the majority of the decisions support the view that the decision as to whether
an urgent application should be granted is discretionary, depending on the merits of
each case. In my view, special circumstances do exist in the instant matter and
hence an urgent relief is warranted.
Award
[50] Having arrived at the above conclusions and findings, I now make the following
order:
1. that the applicants non-compliance with the Rules of this Tribunal and the
time periods prescribed therein are condoned and the matter is heard as a
matter of urgency.
2. that the Rule Nisi do hereby issue calling upon the First to Seventh
Respondents to show cause if any, on the 3 rd May 2011 at 14h00 why they
should not be permanently interdicted and restrained from:
2.1continuing with the pending disciplinary enquiry against the applicant
pending payment of the applicants outstanding remuneration by the First
to Seventh Respondents, the one paying the other to be absolved;
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2.2Alternatively, that the continuation of the pending disciplinary enquiry

against the applicant be stayed pending the outcome of the dispute dated
15 March 2011 (served on the First to Seventh Respondents on 16 March
2011) and registered with this forum.
3. That paragraphs 2.1 and 2.3 above shall operate as interim orders with
immediate effect pending the return of the Rule Nisi.
4. The costs of this application shall be paid by First to Seventh Respondents,
the one paying the other to be absolved, on the scale between party and
party.

[51] This award is binding on both parties hereto, and will be filed with the Labour
Court in accordance with Section 87 of the Labour Act (Act No. 11 of 2007)
Dated at Windhoek this 15th day of April 2011.

_________________
Moses Shitaleni Iinane
Arbitrator
Office of the Labour Commissioner

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