LEGISLATION – SUSPENSION OF LABOUR LAWS DUE TO STATE OF EMERGENCY (COVID 19 NATIONWIDE LOCKDOWN)

LEGISLATION – SUSPENSION OF LABOUR LAWS DUE TO STATE OF EMERGENCY (COVID 19 NATIONWIDE LOCKDOWN)

After declaring a State of Emergency in the wake of the outbreak of the Covid-19 pandemic, the President of Namibia proceeded to impose a nationwide lockdown restricting the movement of people, save those performing ‘essential services’, purportedly in terms of Art 26(5)(b) of the Constitution. To protect workers’ salaries, the President, purportedly in terms of Art 26(5)(b) suspended certain provisions of the Labour Act 11 of 2007 (ss 12, 23 and 34). These provisions, if not suspended, would allow employers to retrench workers, reduce their working hours at reduced remuneration or to compel them to take leave without pay. The President also delegated to ministers his regulation–making power under Art 26(5)(b) (Regulations 14 and 15).

In terms of Art 26(1) and (5) (a) and (b) gives power to the President to  power to declare a state of emergency (SOE) and to make regulations to suspend the operation of any rule of the common law  or statute or any fundamental right or freedom protected by the Constitution when the nation is confronted by a national disaster, a state of national defence, or a public emergency threatening the life of the nation or its constitutional order, ‘for such period and subject to such conditions as are reasonably justifiable for the purpose of dealing with the situation which has given rise to the emergency.’

Two employers’ organisations challenged Reg. 19, principally on the basis that it was aimed solely at protecting workers’ livelihoods and did not meet the constitutional threshold of being ‘reasonably justifiable’ to deal with the situation that gave rise to the SOE. The employers’ organisations also challenged the President’s delegation of directive-making power to ministers on the basis that it was ultra vires Art 26(5)(b), as only the President is authorised to make regulations. The High Court agreed with the employers’ organisations and struck down the suspension regulations and the President’s delegation of directive-making powers. The Government appealed to the Supreme Court.

DAMASEB DCJ, MAINGA JA and SMUTS JA, considered the appeal and held that:

1. Art 26(5)(b) must be read to include an implied power for the President to make regulations to deal with the situation that has given rise to the SOE, but such regulations must themselves be reasonably justifiable for the stated purpose; that farther removed such a regulation from the situation that has given rise to the SOE, the higher the burden of justification required; such regulations must also be reasonable and be rationally connected to the legitimate objective of arresting the spread of the pandemic.
2. Reg 19 was both unreasonable and irrational and therefore the High Court’s’ order invalidating it was correct.
3. The challenge to the directive–making power was premature and the High Courts’ order declaring Regulations 14 and 15 must be set aside.

In the result, the appeal succeeded in part only.

President of Namibia v NEF NASC 23 2 September 2022