- September 21, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The court was seized with three special pleas, namely: lack of jurisdiction, res judicata, and prescription. The plaintiff being in the employment of the defendant was dismissed owing to his unauthorised absence from work for a period exceeding two days. The plaintiff lodged a complaint with the District Labour Court where it was found that the dismissal was both procedurally and substantively unfair, and dismissal was set aside.
The defendant contended that this is a labour matter which falls only within the jurisdiction of the Labour Court established in terms of s 115 of the Labour Act, and that this court, therefore, lacks jurisdiction.
Sibeya J:
‘[15] There were several contradictory decisions from this court regarding the exclusive jurisdiction of the Labour Court in labour matters. In Haindongo Shikwetepo v Khomas Regional Council & others A 364/2008, delivered on 24 December 2008; Usakos Town Council v Jantze and others 2016 (1) NR 240 (HC); and Katjiuanjo and others v Municipality of Windhoek (I 2987/2013) [2014] NAHCMD 311 (21 October 2014), this court, differently constituted, concluded that the Labour Act created a Labour Court with exclusive jurisdiction in labour matters. These issues have been settled by the Supreme Court in Masule v Prime Minister 2022 (1) NR 10 (SC) of the Republic of Namibia and Others.
[17] The Supreme Court in Masule, found that it is a misconception to conclude that s 115 and 117(1)(i) of the Labour Act have the effect that the Labour Court, created in s 115 of the Labour Act, is a court other than a court contemplated by art 78(1)(b) of the Namibian Constitution. The Supreme Court remarked further that:
‘[47] The Labour Court, just like the other divisions, is a division of the High Court established by art 78(1)(b), read with art 80 of the Constitution. It is not a court separate or independent from the High Court created by the Constitution. The procedures that the division uses and the scope of remedies that it can grant are determined by the legislation that creates the division. Those procedures and remedies are the litigants’ first point of call and make them subject to the limits they impose. That is the constitutional principle of subsidiarity.
[48] A judge of the High Court faced with a dispute which is governed by the Labour Act is required by the principle of subsidiarity to apply the procedures set out under the Labour Act and the rules made by the Judge President on its authority; and to grant the remedies chosen by the legislature for such disputes. Such a judge does so as a judge of the High Court.’
[18] It has been made clear by the Supreme Court in Masule that the Labour Court is a division of the High Court created by Article 78(1)(c) of the Constitution. The Labour Court is, therefore, not a court created by the Labour Act distinct from the High Court, but it is part of the High Court. As a result, a judge of the High Court cannot refuse to exercise jurisdiction over matters that come before him or her on the basis that such matters fall within the jurisdiction of the Labour Court.
[19] The above conclusion and the finding in Masule (supra) that the Labour Court is but a division of the High Court, negates the contention by the defendant that this court lacks the necessary jurisdiction to adjudicate this matter. On the strength of Masule, I find that this court has jurisdiction to adjudicate this matter, and as a matter of consequence, I find that the special plea of lack of jurisdiction lacks merit.
Res judicata and prescription
[21] The rationale behind citing the special pleas of res judicata and prescription is that during arguments, both in the written heads of argument and in oral argument, Mr. Ikanga attempted to expand on the special pleas by introducing another dimension relating to the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970. Such new ground was not pleaded and I shall not have regard to it.
[22] Masuku J, in Swanu of Namibia v Katjivirue (HC-MD-CIV-ACT-OTH-2021/03315) [2022] NAHCMD 98 (09 March 2022) cited with approval a passage from Herbeinstein & Van Winsen, The Civil Practice of the High Court of South Africa, where it is stated that:
‘Special pleas … do not appear ex facie the pleading. If they did, then the exception procedure would have to be followed. Special pleas have to be established by the introduction of fresh facts from outside the circumference of the pleading, and these facts have to be established in the usual way.’
[23] Masuku J, in Swanu of Namibia at para 19 – 20, further stated that in a trial, the usual way of establishing facts is to elicit or establish facts by adducing oral evidence through witnesses. The other approach is where most of the facts are common cause between the parties, and such parties invoke the provisions of rule 63 and make a written statement of agreed facts. In some instances, special pleas may be determined only on the pleadings.
[24] In casu, no evidence was led to establish facts. No statement of agreed facts as provided for by rule 63 was delivered by the parties. It follows that no facts were established where the special pleas raised could be based.
[25] As alluded to above, the defendant’s special pleas of res judicata and prescription are based on the ruling of the arbitrator dated 20 May 2017. The plaintiff in replication to the special pleas contends that the award made by the arbitrator constitutes a nullity as the arbitrator could not adjudicate on an order emanating from the District Labour Court. The plaintiff further contends that his claim has not been prescribed as it is based on a judgment debt delivered by the District Labour Court.
[26] The above reveals the contested issues which, if established as facts, could assist the court in the determination of the special plea raised. I find that the special pleas of res judicata and prescription raised, required evidence to be adduced in support of such special pleas.
[27] The absence of admissible evidence, or established facts properly placed before the court, deprives the court of an opportunity to properly adjudicate the matter. In my view, the failure by the defendant to establish facts or lead admissible evidence on which the special pleas are based is fatal to the special pleas of res judicata and prescription raised. It follows that on this basis, the special pleas of res judicata and prescription must fail.
In the result, it was ordered that the defendant’s special pleas of lack of jurisdiction, res judicata, and prescription, be dismissed. The defendant must pay the plaintiff’s costs for opposing the special pleas.