LABOUR LAW – PRACTICE – UNOPPOSED REVIEW APPLICATIONS MUST STILL BE PROVED

LABOUR LAW – PRACTICE – UNOPPOSED REVIEW APPLICATIONS MUST STILL BE PROVED

 

In this matter, the first main charge alleged that the applicant, a School Principal, prompted a fight between herself and a teacher and the applicant used abusive language within the earshot of pupils. The second alternative charge alleged that the applicant wilfully failed to carry out lawful instructions of the Inspector of Education. Both charges are dismissable offences. The chairperson of the disciplinary hearing denied the applicant legal representation at the hearing, prompting the applicant to launch an application to review and set aside the chairperson’s decision and for an order of mandamus to allow legal representation at the hearing.

 

At the onset, PARKER AJ stated that:

 

‘[2]         It is important to note at the threshold that none of the five respondents have filed opposing papers. Nevertheless, ‘the absence of opposition (in motion proceedings) does not entitle the applicant to judgment – as if by default.’… ‘The onus rests upon the applicant for review to satisfy the court that good grounds exist to review the conduct complained of’ (Christian v Metropolitan Life Namibia Retirement Annuity Fund 2008 (2) NR 753 (SC) para 15). Consequently, Mr. Mayumbelo, counsel for the applicant moved the application and made oral submissions.  I should say to the credit of Mr. Mayumbelo that he did well to refer the court to the relevant authorities emanating from the Labour Court and the Supreme Court on legal representation at internal administrative disciplinary hearings involving employees.’

 

and concluded that:

 

[11]         … the applicant has been successful; and so, she is entitled to an order setting aside the decision and an order of mandamus.  In the result, I order as follows:

1. The decision of the first respondent taken on 22 August 2022, refusing the applicant to have legal representation at her disciplinary hearing, is reviewed and set aside.
2. The first respondent, or any person acting in his stead or in the position of chairperson of the disciplinary hearing must allow the applicant to have legal representation at her disciplinary hearing.
3. There is no order as to costs.

 

Silumbu v Kapapero N.O. (HC-MD-LAB-MOT-REV-202200209) [2022] NALCMD 72 (16 November 2022) – Unopposed application must still be proved