LABOUR LAW – REVIEW PROCEEDINGS – WHEN REVIEW MAY BE BROUGHT

The applicant, by notice of motion, commenced proceedings in this Court in terms of which he, amongst other orders, sought an order reviewing and setting aside the ruling issued by the second respondent on the 14^th day of October 2020, dismissing his application for her recusal from arbitrating a dispute of unfair dismissal which he referred to the Labour Commissioner.

The applicant set out various grounds upon which the ruling of the second respondent ought to be reviewed and set aside, inter alia, the manner in which the conciliation meeting was conducted, and the first respondent’s failure to file Form LC 39 together with a proper answering affidavit.  The second and third respondents withdrew their opposition and indicated that they will abide by the Court’s decision. The review application was opposed only by the first respondent.

UEITELE J made the following observations on the law relating to the review of decisions or proceedings of persons or administrative bodies or inferior courts:

‘[11]        …. One of the decisions to which I turn for guidance is the English case of Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, where Lord Brightman said:

‘I do observe again that it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached, and particularly in such a case as the present the need for giving to the party dismissed an opportunity for putting his case. Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.’

[12]         In this Court Hoff AJ (as he then was) in the case of Ellen Louw v The Chairperson of the District Labour Court and JP Snyman & (Namibia) (Pty) Ltd Case No LCA 27/1998 at page 11 (unreported) said the following:

‘Where the reason [i.e., to have a judgement, order, or ruling set aside] is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the real grievance is against the method of the trial it is appropriate to bring the case on review. The … distinction depends therefore on whether it is the result only or rather the method of the trial which is to be attacked. The giving of a judgment not justified by the evidence would be a matter of appeal and not review upon this test.

The second main distinction between procedure on appeal and procedure on review is that in the case of the former, the matter is usually a question of argument on the record alone, whereas in review the irregularity generally does not appear from the record. In an appeal the parties are bound by the four corners of the record, whereas in a review it is competent for the parties to travel outside the record to bring extrinsic evidence to prove the irregularity or illegality.’

[13]         Mr. Xoagub’s complaint with respect to his application for the arbitrator to recuse herself is directed at the manner in which the arbitrator conducted the hearing.

[14]        At the hearing of this application, Mr Rittman who appeared for Eagle Night Watch Security CC, simply argued that most of Mr Xoagub’s contentions as to why the arbitrator’s ruling of 14 October 2020 must be set aside are based on perception and suspicion.

[15]         The impression I got from Mr Rittman’s submission was that he did not appreciate the fact that Mr Xoagub’s complaint was not so much about the correctness of the arbitrator’s decision, but that Mr Xoagub’s complaint was about the procedure followed by the arbitrator in arriving at the decision not to recuse herself from arbitrating the dispute of unfair dismissal between him and Eagle Night Watch Security CC. The question that needs to be answered is therefore whether the procedure followed by the arbitrator was flawed or irregular.

[17]         It is clear that rule 28(5) requires any person that wishes to oppose an application to serve and file its opposition to the application on Form LC 39, together with an answering affidavit within seven days from the day on which the application was served on that party.

Held that:

1. An affidavit is a written statement made under oath. It, therefore, follows that the answering affidavit accompanied by Form LC 39 must satisfy the general requirements for affidavits as contained in the Regulations promulgated in terms of the Justices of the Peace and Commissioners of Oaths Act.
2. Held further that by taking into consideration allegations made in a document not compliant with the general requirements for affidavits as contained in the Regulations promulgated in terms of the Justices of the Peace and Commissioners of Oaths Act, the second respondent committed a fatal irregularity.

As a result, the proceedings before the arbitrator which resulted in a ruling in terms of which the applicant’s application for recusal from the arbitration proceedings of unfair dismissal between the applicant and Eagle Night Watch Security CC was reviewed and set aside.

Xoagub v Eagle Night Watch Security CC (HC-MD-LAB-MOT-REV-2020-00267) [2022] NALCMD 51 (16 September 2022)