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SF Speak Out At SF Chinese Consulate- Hands Off Namibian Labor Lawyer Beukes & Miners

sm_namibia_chinese_leave_us_alone_husab_mine.jpeg
Date:
Friday, May 19, 2023
Time:
4:00 PM - 5:00 PM
Event Type:
Protest
Organizer/Author:
United Front Committee For A Labor Party
Location Details:
San Francisco Chinese Consulate
Laguna and Geary St.
San Francisco

SF Speak Out At SF Chinese Consulate- Hands Off Namibian Labor Lawyer Hewat Beukes and Mineworkers Union Of Namibia Rossing Union Dismissed Leaders

Friday May 19th 4:00 PM

SF Chinese Consulate
Geary & Laguna St.
San Francisco

The largest investor in Namibia is now the Chinese government and private Chinese capitalists and they are engaged in busting the Mineworkers Union of Nambia MUN by firing union leaders and are targeting labor lawyer Hewat Beukes who has been defending these and other workers.

The Chinese National Nuclear Corporation of China CNNC bought the Rossing mine from Rio
Tinto in 2019 promising to abide by labor contracts and labor law. Instead they tried to bribe the union leaders and demand that they make concessions on their healthcare. They also violated labor law and the union contract by illegally bringing in Chinese nationals to replace Namibian workers at the mine. They now control the entire Namibian uranium industry and are using their power to bust the unions and bring back contract labor that was used under apartheid.

When the union leaders protested at the Rossing mine, the 9 branch union leaders were fired and they have been fighting for their jobs back since 2020. They CNNC want to starve them out and have blacklisted them from working at other companies.

At another MUN Swacop mine, a similar action was taken against MUN Swakop uranium miners by the Beifang Mining Service company. This private subcontractor was hired by Swakop which is 90% owned by the Chinese government and the SWAPO government of Namibia. They illegally fired workers at the Swakop uranium mine and the government controlled labor agencies refuses to defend the workers who were illegally fired.

Beifang Mining Service is also replacing union miners with permanent temporary contract workers and at the Rossing mine they are laying off 400 miners while hiring contract workers to replace them. This is a capitalist union busting tactic by both the Chinese and Namibian government.

Doing the bidding of these bosses the Namibian judicial system want to jail labor lawyer Hewat
Beukes with false charges. They have also shut off water and electricity to his house and office. This staged hearing is part of the frame-up to prevent Hewat Beukes to representing the unions and working people in Nambia.

Initiated by
United Front Committee For A Labor Party
http://www.ufclp.org
info [at] ufclp.org

Additional info:
The Attack On Namibian Labor Lawyer Hewat Beukes & The Namibian Working Class
https://youtu.be/FCHF-kBOK-s

The Union Busting War On Namibian Workers
https://youtu.be/twVLySyVcT8

Chinese State-owned Companies Now Control Entire Nambia Uranium Industry
https://economist.com.na/45690/headlines/chinese-state-owned-companies-now-control-entire-namibian-uranium-industry/

Namiibia Karibib Best Cheer marble processing plant strike enters third day
https://www.nbc.na/news/karibib-marble-processing-plant-strike-enters-third-day.44864
Striking employees of Best Cheer company block entrances to premises at Karibib
https://www.youtube.com/watch?v=kQ-JmoYceQc

Marble factory workers want improved conditions
https://neweralive.na/posts/marble-factory-workers-want-improved-conditions

Namibian MUN Rossing Miners Leadership Win Labor Board Ruling Against Stalling By China Owned CNNC
https://youtu.be/53-gMl-Sd3U

Namibia Mine Workers Union Rossing Leaders Report On CNNC & Letter To Chinese President Xi-Jinping
https://youtu.be/oNoaMxLiC9U

The Mineworkers Union of Namibia (MUN) Rossing Branch & The Struggle of The Namibian Working Class
https://youtu.be/1LCD5ZuAgvc

Namibian Rössing Mine Workers Face Covid-19 & Attacks From State Owned China National Uranium Corporation Limited (CNUC)
https://youtu.be/pHsDDqy_WPU

Namibia Rössing, union in wage deadlock
https://www.namibian.com.na/198882/archive-read/Rössing-union-in-wage-deadlock

China and Namibia Rössing Workers on Collision Course
https://www.facebook.com/informantenam/posts/3090166147716991/

Namibia MUN claims China National Nuclear Corporation is falling short of its Rossing promises
https://www.youtube.com/watch?v=9nLuFIxwcIM&feature=emb_logo
https://www.nbc.na/news/mun-claims-china-national-nuclear-corporation-falling-short-its-rossing-promises.29304
Namibia Rössing uranium mine union members face dismissal by Chinese owners
https://www.namibian.com.na/203896/archive-read/Rössing-union-members-face-dismissal

For more info:
Internatonal Labor Solidarity Committee For The Namibian Miners
https://ilscnamibia.wordpress.com
https://www.facebook.com/ILSCNamibianMiners

Namibia: Workers complain Chinese Owned Swakop Uranium is paying overtime with meals as negotiations falter

https://www.business-humanrights.org/en/latest-news/namibia-workers-complain-swakop-uranium-is-paying-overtime-with-meals-as-negotiations-falter/
Read more
"Swakop Uranium accused of paying for overtime with food" 13 April 2022

SWAKOP Uranium mine is accused of convincing its permanent employees to work overtime in exchange for meals worth N$200 at the mine's canteen.

This comes after negotiations on certain continuous operations clauses have failed.

The previous three-year exemption agreement on continuous operations lapsed on 21 March this year.

Employees have since been working normal hours from Monday to Friday without overtime.

Because the mine was losing out on man-hours, it is allegedly now offering workers N$200 in food vouchers per weekend shift.

This is according to workers who prefer to remain anonymous for fear of victimisation. [...]

“We are just asking for them to increase the overtime that we have worked to 23 hours,” another employee says.

This leaves 10 hours unremunerated by the mine. [...]

The Mineworkers Union of Namibia (MUN) has accused Swakop Uranium of ignoring the ongoing negotiations' rules of engagement. [...]

Swakop Uranium operations manager Irvinne Simataa yesterday declined to comment, saying the company is preparing a press statement on the issue.

“In the meantime, I would encourage you to read the relevant sections of the Labour Act with regards to continuous operations exemptions, which is a fairly obvious process which exists and is currently applied at many companies, including non-mining commpanies,” Simataa said. [...]


“DYSFUNCTIONALITY OF THE NAMIBIAN JUDICIARY”
UNITED FRONT AGAINST JUDICIAL CORRUPTION AND CRIME
jacobusjosob [at] gmail.com namab737 [at] gmail.com ericabeukes [at] yahoo.co.uk 081 219 6141 P.O. Box 3349 Windhoek
uf.internationaldispatch [at] gmail.com
MAY 2023

We can no longer tolerate the intensifying attacks against our comrades Hewat and Erica Beukes.
We resolved on Monday 8 May 2023 to defend comrades Erica and Hewat.
These comrades endured persecution first by the colonial State and now by the State of Namibia. The latest attack is a window into the nature of the political reprisals against our comrades and the working class in general. Comrade Hewat was representing miners for dismissal for union activity by the Rossing Uranium Mine. The dismissal of union officials at workplaces is part of dismantling union rights. Comrade Hewat was unlawfully punished with costs by the court. He is now pursued by the court, the mine, and its lawyers to disclose his income on a punctuated basis in the magistrate’s court, failing which he will be jailed. He is to appear in a Kangaroo court on Friday, 19th May 2023.
The past 25 years saw the Namibian State in collusion with organised criminal corporations such as the First National Bank using the organs of the State against comrades Erica and Hewat and their political associates. The actions include denying all fundamental rights and barring the family for life from access to municipal running water and grid electricity. It included attempts at false arrest, false eviction orders without orders of Court, and denial of the right to approach a competent court of law for grievances. It now includes regular harassment of the family at their residence. Police and the Special Field Force are used to violate the family.

We direct this petition to the President Hage Geingob of the Republic of Namibia.

HANDS OFF OUR COMRADES HEWAT AND ERICA BEUKES !!!
STOP THE VILE ABUSE OF NAMIBIAN COURTS TO PERSECUTE THEM !!!
RESTORE THEIR WATER AND ELECTRICITY !!!
RESTORE THEIR HOME !!!
We ask organisations and individuals to support our demands by signing this petition and to support us to fight this treacherous attack against two of Namibia’s freedom fighters and revolutionaries.

_____________________
JACOBUS JOSOB
Secretary

SWAPO Government Attack On Namibia Labor Lawyer Beukes

Hewat Beukes vs Labor Commissionn

Rule 65(4) Application: Notice of Motion

IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

CASE NO.: HC-MD—LAB-MOT-REV-2021/00195

In the matter between:

HEWAT SAMUEL JACOBUS BEUKES

APPLICANT

and

THE LABOUR COMMISSIONER

FIRST RESPONDENT

LEAH SHIMBABA, ARBITRATOR

SECOND RESPONDENT

ROSSING URANIUM LTD

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THIRD RESPONDENT

page1image1679776 page1image885104
page1image884992 page1image1681024 page1image884768 page1image1681648 page1image1681856
NOTICE OF MOTION

page1image828992 page1image1682480 page1image884320
TAKE NOTICE that the applicant intends to make application to this Court on a date to be arranged with the registrar for an order in the following terms:

Declaring that the Court lacked jurisdiction and ousted the jurisdiction of the Labour Court in a labour matter in violation of the Namibian Constitution and the Labour Act, 2007 (Act No. 11 of 2007) (the “Act”).

Declaring that the Court’s proceedings were in violation of the applicant’s fundamental rights to a fair hearing by an independent, impartial and competent Court established by law.

Declaring that the Court’s proceedings were ultra vires the Namibian Constitution and the law.

Declaring that the cost order of the Court is ultra vires the Act and not in accordance with law and precedent.

Declaring that the cost order and the consequent writ of execution issued out of this Court is invalid, and setting aside the cost order and the writ of execution.

Staying the pending Magistrate’s Court proceedings in terms of section 65A(1) of the Magistrate’s Courts Act, 1944 (Act No. 32 of 1944), conducted pursuant to the writ of execution.

Ordering any respondent to pay costs in this application in the event the respondent opposes the application.

Granting further and/or alternative relief to the applicant.

AND that the accompanying affidavit or any further affidavits of Mr. Hewat Samuel Jacobus Beukes, and any annexures thereto, will be used in support of this application.

TAKE NOTICE FURTHER that the applicant appoints the address below at which applicant will accept notice and service or delivery of any and all documents and process in these proceedings.

AND TAKE FURTHER NOTICE that if you intend to oppose this application you are required to:

(a) notify the applicant in writing within five (5) days or such period as prescribed by rule 65(5)(b) from the date of receiving this notice; and

(b) within 14 days, or such period as prescribed by rule 66(1)(b), of the service of notice of your intention to oppose, to file your answering affidavits, if any.

And further that you are required to appoint in such notification an address within a flexible radius from the Court, referred to in rule 65(5), at which you will accept notice and service of all documents in these proceedings.

If no notice of intention to oppose is given, the application will be moved after seven (7) days of the elapse of the five (5) days on a date and at a time to be arranged with the registrar.

DATED at Windhoek on 10 May 2023

....................................
Applicant
Erf 4479
Corner of Kroon Weg and Dodge Avenue Khomasdal, Windhoek

Khomas Region

TO:

The Labour Commissioner
Government - Office of the Government Attorney First Respondent’s Representative
2nd Floor

Sanlam Centre Independence Avenue Windhoek


AND TO:

Leah Shimbaba
The Arbitrator
Government - Office of the Government Attorney First Respondent’s Representative
2nd Floor

Sanlam Centre Independence Avenue Windhoek

AND TO:

Rössing Uranium Ltd
KOPPLINGER BOLTMAN LEGAL PRACTITIONERS Third Respondent’s Representative
10 Jakaranda Street
Windhoek

AND TO:

Registrar of the High Court Main Division

In the matter between:

Rule 65(4) Application: Notice of Motion

IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

CASE NO.: HC-MD—LAB-MOT-REV-2021/00195

HEWAT SAMUEL JACOBUS BEUKES

APPLICANT

and

THE LABOUR COMMISSIONER

FIRST RESPONDENT

LEAH SHIMBABA, ARBITRATOR

SECOND RESPONDENT

ROSSING URANIUM LTD

page4image3741568 page4image3741984
THIRD RESPONDENT

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page4image894960 page4image3743856 page4image891824 page4image3744480 page4image3744688
I, the undersigned,

FOUNDING AFFIDAVIT

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HEWAT SAMUEL JACOBUS BEUKES do hereby make affirmation and state the following:

I am an adult male pensioner and applicant in this matter, resident at erf 4479, Corner of Kroon Weg and Dodge Avenue, Khomasdal, Windhoek.

The facts herein contained fall within my personal knowledge, unless stated otherwise or indicated by the context, and are to the best of my knowledge and belief both true and correct. Where I make legal submissions, I do so on the advice I have received.

I was the co-applicant in the application before the arbitration tribunal, which was the subject of review before the Labour Court, and I have personal knowledge of the labour matter and the impugned proceedings in the High Court.

THE PARTIES

4. The applicant brought a review application to the Labour Court in respect of the decisions made by the arbitrator in the arbitration

proceedings detailed infra, which application was heard before the civil division of the High Court, and is now the subject of this application.

The first respondent is the Labour Commissioner appointed by the Minister responsible for labour under section 120(1) of the Labour Act, 2007 (the “Act”) and whose functions under section 121(1) of the Act include to register disputes and take appropriate action and to arbitrate disputes referred to the arbitration tribunal as contemplated by Art. 12(1)(a) of the Namibian Constitution. The Labour Commissioner constitutes arbitration tribunals in terms of section 85(5) of the Act, and is an ex officio arbitrator in terms of section 120(2) of the Act.

The second respondent is the arbitrator appointed by the Minister under section 85(3) or (4) and designated under section 85(5) of the Act to constitute an arbitration tribunal, and is the arbitrator whose decision was the subject-matter of the review application brought by the applicant.

The third respondent is Rössing Uranium Ltd, the respondent in the labour dispute before the arbitration tribunal, which was the subject- matter of the review application brought by the applicant.

NATURE OF APPLICATION AND RELIEF SOUGHT

This application is brought in terms of section 117(1) of the Act, read with section 89(4) and 89(5) of the Act, and Art. 12(1)(a) of the Namibian Constitution as a consequence of the cost order granted by this Court.

The application is also brought in terms of section 118 of the Act, read with section 119(3) and 119(4) of the Act.

The applicant seeks the following relief:

10.1. Declaring that the Court lacked jurisdiction and ousted the jurisdiction of the Labour Court in a labour matter in violation of the Namibian Constitution and the Act.

10.2. Declaring that the Court’s proceedings were in violation of the applicant’s fundamental rights to a fair hearing by an independent, impartial and competent Court established by law.

10.3. Declaring that the Court’s proceedings were ultra vires the Namibian Constitution and the law.

10.4. Declaring that the cost order of the Court is ultra vires the Act and not in accordance with law and precedent.

10.5. Declaring that the cost order and the consequent writ of execution issued out of this Court is invalid, and setting aside the cost order and the writ of execution.

10.6. Staying the pending Magistrate’s Court proceedings in terms of section 65A(1) of the Magistrate’s Courts Act, 1944 (Act No. 32 of 1944), conducted pursuant to the writ of execution.

10.7. Ordering any respondent to pay costs in this application in the event the respondent opposes the application.

10.8. Granting further and/or alternative relief to the applicant.

11. In this affidavit, I deal with the following matters in seriatim:

11.1 The factual background to the applicant’s review application.

11.2 The establishment and jurisdiction of the Labour Court.

11.3 The placement and hearing of the review application.

11.4 The proceedings and manner of proceedings before this Court.

11.5 The cost order granted by this Court.

11.6 The bill of costs, taxation proceedings and issuance of the writ of execution from this Court and the consequential proceedings.

11.7 The applicant’s conclusion of the facts and the law.

JURISDICTION OF THIS COURT

12. This Court, sitting as a civil court, became seized with the labour matter brought on review to the Labour Court and, as a direct consequence, has the necessary jurisdiction in terms of section 2 and section 16(d) of the High Court Act, 1990, read with Art. 25(2) and 25(3) of the Namibian Constitution, to deal with this application.

13. This Court has the inherent jurisdiction to hear and set aside or rescind its own order, as the matter in respect of which the applicant seeks relief is pending before the Magistrate’s Court and the execution pursuant to the cost order is the subject matter of the ongoing dispute inter se the applicant and the third respondent.

FACTUAL BACKGROUND OF REVIEW APPLICATION

The arbitrator, pursuant to the arbitration proceeding in CRSW 109-20 (Hafeni Nalusha & 5 Others v. Rössing Uranium Ltd), decided to dismiss the applicants’ application and to stay the applicants’ application pending the resolution of the separate unfair dismissal matter.

The applicant, as co-applicant in that arbitration proceeding, made application on 7 September 2021 to the Labour Court for review of those decisions. The applicant specifically alleged that:

15.1. The arbitrator’s decision was made without a hearing.

15.2. The decision was based on a separate dispute pending before the tribunal.

15.3. The decision was made outside the prescribed time period – three months from set down.

15.4. The arbitrator refused to recuse in the face of alleged coercion of an applicant.

15.5. The incomprehensible nature of the decision reflected the arbitrator’s lack of competence.

As required by the rules of the Labour Court, the applicant gave 10 days to the respondents to give notice of intention to oppose the application.

The applicant requested the record of the arbitration proceedings in the notice of the review application. By the time that the first respondent purportedly opposed the review application, the first respondent had not submitted the record.

The third respondent purportedly gave notice of intention to oppose on 20 September 2021, but this notice was never served on the applicant

at the chosen address as required by rule 6(5)(b) of the rules of the Labour Court. This notice was not date stamped by the registrar’s office and no return of service or other evidence was filed of record indicating delivery.

The first respondent purportedly gave notice of intention to oppose on 26 October 2021, but this notice was never served on the applicant at the chosen address as required by rule 6(5)(b) of the rules of the Labour Court. This notice was not date stamped by the registrar’s office and no return of service or other evidence was filed of record indicating delivery.

The applicant proceeded to apply in terms of rule 6(6) to the registrar to assign a date for the hearing of the review application, as applicant was not served with the notices of intention to oppose within the prescribed time period.

The registrar was required, after consulting with the Judge-President, by rule 6(7) to assign a date for the hearing, without notice to the respondents, set the matter down for hearing.

In terms of rule 6(8), a respondent who has not delivered a notice to oppose within 10 days is not entitled to take any part in the proceedings except to apply for extension of time to deliver notice or apply for rescission or variation of any judgment or order.

Despite the applicant’s request, no matter its form, the first and second respondents failed to deliver the record of the arbitration proceedings. Yet the Court continued with ex parte proceedings without raising the issue of the record or having any interest in considering the record for the purposes of review.

Without the record of the arbitration proceedings, the applicant could not complete the process as per the Court order within the time limits.

However, given the date of the status hearing, the applicant had time to again request the record, except that the ex parte hearing was held on a date not determined by the Court order or upon application with due notice to the applicant.

ESTABLISHMENT AND JURISDICTION OF THE LABOUR COURT

26. Section 115 of the Act provides for the establishment or continuation of the Labour Act, as a division of the High Court.

Section 116 requires the Judge-President to assign suitable judges to the Labour Court, “who must be a judge or an acting judge of the High Court.”

The Labour Court has, under section 117(1)(b)(ii), exclusive jurisdiction to:

“review decisions of the Minister, the Permanent Secretary, the Labour Commissioner or any other body or official in terms of - (aa) this Act; or (bb) any other Act relating to labour or employment for which the Minister is responsible.” Emphasis added.

The review application involves the decisions of the arbitrator, as any other official, or the arbitration tribunal as any other body, and was therefore properly before the Labour Court.

The Labour Court also has, under section 117(1), exclusive jurisdiction to:

“(d) grant a declaratory order in respect of any provision of this Act, a collective agreement, contract of employment or wage order, provided that the declaratory order is the only relief sought;

(e) to grant urgent relief including an urgent interdict pending resolution of a dispute in terms of Chapter 8;

(f) to grant an order to enforce an arbitration agreement;

(g) determine any other matter which it is empowered to hear and determine in terms of this Act;

(h) make an order which the circumstances may require in order to give effect to the objects of this Act;

(i) generally deal with all matters necessary or incidental to its functions under this Act concerning any labour matter, whether or not governed by the provisions of this Act, any other law or the common law.”

Taken together, these statutory provisions expressly and unequivocally conferred, and continues to confer, exclusive jurisdiction on the Labour Court to hear the applicant’s review application. There is no discretion to the contrary and any act inconsistent with these provisions constitutes an ouster of the Labour Court’s exclusive jurisdiction, which

should not be allowed under our constitutional precept of the rule of law.

PLACEMENT AND HEARING OF THE REVIEW APPLICATION

Although the applicant filed the review application as a labour matter in the Labour Court, the matter was set down and the proceedings conducted as a civil matter in the main division of the High Court.

The applicant objected to the placing of the labour matter in the civil court and even requested the Judge-President to intervene and have the matter remanded to the Labour Court.

The fact that a judge holds office in the High Court, as contemplated by section 116 of the Act, does not confer on that judge the office of the Labour Court. The judge must be suitable and specifically assigned by the Judge-President to the Labour Court.

The placing of the review application in the High Court ousted the exclusive statutory jurisdiction of the Labour Court and resulted in the kind of proceeding that is contrary to section 119(3) of the Act. Section 119(3) provides that:

“The Board must advise the Judge-President on Rules of the High Court to regulate the conduct of proceedings in the Labour Court with a view to effecting a speedy and fair disposal of the proceedings.” Emphasis added.

The rules of the Labour Court were accordingly specifically made to regulate the conduct of proceedings in labour matters.

The placing of the review application also resulted in the application of the rules of the High Court for civil proceedings, whereas the rules of the Labour Court adequately provided for the proceedings. This is inconsistent with section 119(4) of the Act, that provides as follows:

“To the extent that the rules contemplated in subsection (3) do not deal with a matter otherwise provided for in the Rules of the High Court, those Rules of the High Court apply.” Emphasis added.

The rules of the Labour Court provided adequately for the conduct of proceedings in that Court, and there was no place for the rules of the High Court, which, in any event, had to be applied with the necessary qualifications, modifications and adaptations as provided in rule 22 of

the rules of the Labour Court. Rule 22 is consistent with the statutory requirement of section 119(4) of the Act.

The application of rule 25(2) of the rules of the High Court as per the Case Management Conference Hearing Notice of 1 October 2021 confirms the application of rules in excess of what the Labour Court proceedings require. This rule makes for a convoluted and extensive proceeding and most of its requirements are irrelevant to labour matters and, most importantly, do not lend themselves to achieving the objects of section 119(3) of the Act.

Consistent with section 119(3) of the Act, rule 7(1) provides for a much simpler and suitable process for labour matters, in that:

“The hearing of an application must be conducted in such manner as the court considers most suitable to the clarification of issues before it and generally to the just handling of proceedings and the court must, so far as it appears appropriate, seek to avoid formality in proceedings in order to ensure a speedy and fair disposal of proceedings.”

The High Court proceedings by way of case management are anything but slow, protracted and not conducive for hearing of labour matters, especially where, and because, individuals may represent themselves.

The application of the High Court rules also confirms the Court sitting as a civil court, not as the Labour Court. And all process of this Court pointed to and confirmed that it sat as a civil court.

It is trite in our law that any judgment or order of court without jurisdiction is void and can be ignored with impunity. But precedent also states that for certainty and convenience, it is necessary to have such a judgment or order set aside by a competent court of law, as the applicant hereby does.

The cost order, granted without jurisdiction, cannot stand and must be set aside as of right.

PROCEEDINGS AND MANNER OF PROCEEDINGS BEFORE THIS COURT

45. Despite the applicant having chosen and provided the address at which to accept service of all process, no documents were served on the applicant either by the Court or by the respondents. This persisted throughout the proceedings until the applicant was served with the writ of execution in December 2022.

There is no return of service or any other acceptable evidence that the Court or the respondents ever served the following on the applicant:

46.1. The purported notices of intention to oppose by or on behalf of the first and third respondent.

46.2. Case management order dated 2 November 2021.

46.3. Case Management Conference Hearing Notice by the Court dated 1 October 2021.

46.4. Court order dated 23 November 2021.

46.5. The sanctions order by the Court dated 26 November 2021.

46.6. Notice of the taxation hearing held on 25 November 2021 and completed on 10 January 2022.

46.7. Notice of the writ of execution issued on 11 January 2022.

Failure to give notice, the cornerstone of legal process, is a blatant denial of the fundamental right to a hearing, let alone a fair hearing. This failure resulted directly in the applicant not responding or objecting to the proceedings before Court.

When the applicant became aware of the case management hearing scheduled in the civil court, albeit without notice, the applicant objected to the proceedings. The applicant placed this objection on record with the Judge-President, having the duty to assign judges to the Labour Court to be constituted by such assigned judges. But this objection fell on death judicial ears.

And, in any event, and importantly, the applicant’s participation in the civil court proceedings would have resulted in the applicant’s acquiescence in that irregular and improper proceeding.

Thus, the failure of the applicant to attend the proceedings is not an intentional act in relation to a court having jurisdiction, but an objection to being coerced into participating in proceedings in the wrong forum.

Surely, the applicant, as any other person, bringing a labour matter under the Act or any other law, was entitled to be heard before the

Labour Court having exclusive statutory jurisdiction to hear and decide such matters.

Instead, the Court, absent judicial notices to the applicant, allowed the proceedings to be conducted in an ex parte manner, in a court lacking the necessary jurisdiction.

More than that, the Court allowed the first respondent to participate in the proceedings despite the late purported notice of intention to oppose, and without any condonation application or hearing thereof or upliftment of bar or sanctions.

It is also not clear that the third respondent gave the purported notice of intention on or by the date indicated on its face, especially since the third respondent willfully failed to serve it on the applicant as required.

Besides, the notices raise an interesting spectacle: the notices are virtually identical and evoke doubt as to their probity. Perhaps a forensic investigation or an inspection in loco would reveal the truth if this matter were referred to trial?

Last, but not least, the legal practitioner representing the third respondent did not file of record any prove of authorization to act for or on behalf of the third respondent. This lack of authority, in itself, renders the cost order obtained null and void.

COST ORDER GRANTED BY THIS COURT

The Court granted a cost order on 23 November 2021 against the applicant, as a sanction, which order was signed on 26 November 2021, a day after the taxation proceedings commenced.

Section 118 of the Act provides as follows:

“Despite any other law in any proceeding before it, the Labour Court must not make an order for costs against a party unless that party has acted in a frivolous or vexatious manner by instituting, proceeding with or defending those proceedings.”

The Labour Court may thus not make an order for costs unless the conditions upon which such an order may be made have been found. In civil matters, a party acting frivolously or vexatiously may not be a consideration and an order for costs may naturally follow the results of proceedings, but not so in labour matters.

The applicant had no notice of a hearing relating to the determination of whether the applicant acted in a frivolous or vexatious manner. And, even in the absence of the applicant, there is no judicial finding that the applicant acted in a frivolous or vexatious manner by bringing or proceeding with the review application.

The cost order also does not contain or is not accompanied by any reasons pursuant to a hearing.

The Court’s sanction on the applicant was made presumably in accordance with rule 53(2)(d) of the rules of the High Court, without regard to and inconsistent with the provisions of section 118 of the Act. Rule 53(2)(d) makes no provision for determination of whether the application was frivolous or vexatious. Rules are procedural, not substantive law, and cannot supersede the provisions of an Act of Parliament.

More importantly, the applicant had no notice of the hearing on 23 November 2021, while the status hearing was scheduled by court order for 25 January 2022, and applicant consequently did not take part in that hearing. Denial of audi alterem partem, a fundamental natural right, renders this cost order invalid.

In the absence of a hearing, where the applicant could controvert any argument that applicant acted frivolously or vexatiously, the Court’s finding is arbitrary and the sanction capricious.

The cost order cannot stand and must be set aside.

COST ORDER EXECUTION PROCEEDINGS

The applicant was not served with the bill of costs or the notice of taxation. And there is no return of service or other evidence filed of record to the contrary.

The taxation proceedings commenced two days after the ex parte hearing on 23 November 2021.

The allocatur was not served on the applicant, which would at least have alerted the applicant of the hearing and the cost order.

The writ of execution that was issued on 11 January 2022, way before the status hearing on 25 January, was also not served on the applicant.

The applicant only became aware when notices for appearance in the Magistrate’s Court were served in December 2022. Section 65A(1) proceeding is currently pending in the Magistrate’s Court.

The applicant started then to prepare for the Magistrate’s Court proceedings and, upon advice, decided to deal with the cost order in this Court, as it is the basis for those proceedings.

In the circumstances of these proceedings and, in particular, the cost order, the writ of execution cannot stand and must be set aside by this Court.

As a result, the Magistrate’s Court proceedings must be stayed pending the outcome of this application that, inter alia, seeks to have the cost order and writ of execution set aside.

CONCLUSION

The Court ousted the Labour Court’s jurisdiction and thus lacked jurisdiction to hear and decide the labour matter brought by the applicant before the Labour Court. This lack or ouster of jurisdiction renders the cost order void and unenforceable.

The Court also acted in excess of jurisdiction in granting the cost order in a manner that is inconsistent with peremptory statutory provisions of the Act. This alone renders the cost order void and invalid.

The Court acted in excess of jurisdiction in conducting proceedings without notices, inconsistent with established principles of natural justice, in particular notice and fair hearing. This renders the proceedings a violation of applicant’s fundamental right to a fair hearing and thus a nullity.

It follows that the resulting writ of execution and the proceedings consequent to it are therefore invalid.

Therefore, the cost order and the writ of execution stand to be declared invalid and set aside.

In the matter between:

Rule 65(4) Application: Notice of Motion

IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

CASE NO.: HC-MD—LAB-MOT-REV-2021/00195

HEWAT SAMUEL JACOBUS BEUKES

APPLICANT

and

THE LABOUR COMMISSIONER

FIRST RESPONDENT

LEAH SHIMBABA, ARBITRATOR

SECOND RESPONDENT

ROSSING URANIUM LTD


THIRD RESPONDENT


APPLICANT’S HEADS OF ARGUMENT


Added to the calendar on Sat, May 13, 2023 12:30PM
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by United Front Committee For A Labor Party
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