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CASE NO. LCA 48/2007

REPORTABLE

IN THE LABOUR COURT OF NAMIBIA

In the matter between:

NAMIBIA TOURISM BOARD APPELLANT

and

TJINO KAUAPIRURA-ANGULA RESPONDENT

CORAM: HOFF, J

Heard on: 2008.10.24

Delivered on: 2008.11.21

Reasons provided on: 2009.03.27

JUDGMENT:

HOFF, J: [1] This is an appeal against the judgment of the chairperson of the district labour court. On 21 November 2008 this court made the following order:

“The appellant’s appeal succeeds. The order of the district labour court is set aside and substituted with the following order: The complainant’s claim is dismissed.”

I indicated that reasons would be provided in due course.

These now are the reasons.

[2] The respondent was charged at a disciplinary hearing with four offences, namely:

“Charge 1:

Disobeys and disregard legitimate work-related orders: On the 08^th and subsequently 09^th July 2004 you disgracefully and disrespectfully refused to be attached to Wilderness Safaris as part of the nursery programme, a training initiative by NTB.

Charge 3:

Gross discourteousness and insolence: During the second attempt, on the 09 July 2004, while Mr Nekongo was trying to explain to you the nursery programme during a meeting between you, Mr Nekongo and myself, you become emotional. You behaved rudely, shouted and pointed fingers to me and used bad language in the process as well.

Charge 2:

Using insulting and offensive language: On the said dates you used insulting and offensive language towards me when Mr Nekongo introduced the topic.

Charge 4:

Assault: On 20 July 2004 you assault me. In the process you threw books and objects, which were on my table and I was hurt in the process”.

[3] The respondent was convicted of all four charges and the chairperson of the disciplinary hearing recommended her dismissal. Appellant subsequently dismissed the respondent.

The issue of legal representation

[4] Mr Kauta who appeared on behalf of the respondent in this Court submitted inter alia that the disciplinary hearing was procedurally unfair since the respondent was denied any legal representation.

[5] Clause 12.6.1 of appellant’s Human Resources Policies and Procedures Manual states that a disciplinary action is an internal affair which does not allow any outsider to represent its employees during a disciplinary hearing “unless if circumstances necessitate”, then such an employee has to substantiate the grounds thereof which shall be subject to appellant’s approval. Appellant recognizes the right of representation by a fellow employee or a shop-steward.

A representative from a trade union recognized by the appellant may attend a disciplinary hearing only as an observer. Legal representation is not allowed during a disciplinary.

[6] The chairperson of the disciplinary hearing dealt with the issue of representation in his findings where he stated that the respondent at the outset of the disciplinary hearing requested to be represented by a Mr Katuuo of the Public Service Union of Namibia (PSUN), that the parties were referred to the provisions of Clause 12.6 (supra), that Mr Katuuo made representations in support of outside representation for consideration by the appellant, that he allowed the employer (appellant) “to caucus” and make a decision regarding representation, that Ms Kankondi-Kaiyamo (presumably on behalf of appellant) confirmed afterwards that Mr Katuuo could act as an observer but not as a representative, and that the respondent thereafter decided to represent herself at the disciplinary hearing.

It appears from the testimony of the chairperson (in the district labour court) that he was informed (at the disciplinary hearing) that the reason why appellant refused outside representation was the fact that the respondent could not explain why she could not find internal representation which was her first option. It appears from the record that Mr Katuuo subsequently excused himself from the disciplinary hearing.

[7] It was further submitted (on the authority of National Union of Mineworkers & Another v Blinkpan Collieriers Ltd, (1986) 7 ILJ 579) that Mr Katuoo’s observer status vitiated the fairness of the process.

The industrial court in Blinkpan (supra) at 582 J – 583 A stated that “proper representation does not mean mere physical but impassive presence of another. A representative should at least be able to assist and alleged offender in the preparation and presentation of his case …

Justice is not done or seen to be done if such representative does not at least … address the tribunal on the merits and punishment;”

[8] This passage must however be read in context. The employer’s code in Blinkpan, (supra), contrary to appellant’s code, provided that a works council representative must be present at all investigations and proceedings that could lead to a final warning or dismissal. Such a representative had to confirm that the employee has had a fair hearing.

In Blinkpan (supra) the representative did not consult with the employee, did not question any witnesses on his behalf, did not assist the employee in his defence, and there was no indication what actual role the representative had played.

[9] In Hamata & Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee & Others (2002) 23 ILJ 1531 (SCA) the Supreme Court of Appeal (in South Africa) denied the existence of an absolute right (or an entitlement as of right) to legal representation in fora other than courts of law.

[10] In Hamata (supra), Marais AJ at 1536 A – C emphasized this point as follows:

“[11] There has always been a marked and understandable reluctance on the part of both legislators and the courts to embrace the proposition that the right to legal representation of one’s choice is always a sine qua non of procedurally fair administrative proceeding. However, it is equally true that with the passage of the years there has been growing acceptance of the view that there will be cases in which legal representation may be essential to a procedurally fair administrative proceeding. In saying this, I use the words ‘administrative proceeding’ in the most general sense, i.e. to include, inter alia, quasi-judicial proceedings. Awareness of all this no doubt accounts for the cautious and restrained manner in which the framers of the Constitution and the Act have dealt with the subject of legal representation in the context of administrative action. In short, there is no constitutional imperative regarding legal representation in administrative proceedings discernible, other than flexibility to allow for legal representation but, even then, only in cases where it is truly required in order to attain procedural fairness.”

[11] In Hamata (supra) the complaint related to a refusal to allow the first appellant to be represented by a legal practitioner of his choice in a disciplinary hearing. This refusal was based upon a particular construction regulating representation at disciplinary proceedings.

The Court analysed and considered this rule and concluded that the internal disciplinary committee (IDC)) had a discretion to allow ‘outside’ legal representation.

The Court continued as follows at 1539 A:

“That does not mean, of course, that permission to be represented by a lawyer who is neither a student nor a member of the staff of Pentech is to be had simply for the asking. It will be for the IDC to consider any such request in the light of the circumstances which prevail in the particular case.”

and the Court continues as follows at 1539 C – D:

“In doing so, Pentech’s legitimate interest in keeping disciplinary hearing ‘within the family’ is of course also to be given due weight …”

[13] It is trite law that the proceedings at disciplinary hearings are proceedings at administrative tribunals (which are not courts of law).

(See Dabner v South African Railways and Harbours 1920 AD 583; Cuppan v Cape Display Supply Chain Services 1995 (4) SA 175 D).

[14] Chaskalson CJ in Minister of Public Works & Others v Kyalami Ridge Environmental Association & Another (Mukhwevho intervening) 2001 (3) SA 1151 (CC) at 1184 D - E expressed himself as follows in respect of procedural fairness before administrative tribunals:

“Ultimately, procedural fairness depends in each case upon the balancing of various relevant factors, including the nature of the decision, the ‘rights’ affected by it, the circumstances in which it is made and the consequences resulting from it.”

(See also Bel Porto Governing Body and Others v Premier, Western Cape, And Another [2002] ZACC 2; 2002 (3) SA 265 (CC).

[15] The chairperson of the district labour court, in my view erred when he held that in terms of the provisions of Article 12 of the Constitution of Namibia, the respondent was entitled to legal representation during her disciplinary hearing. The case law referred to by the magistrate do not support his finding since all those decisions dealt with proceedings in courts of law (magistrates’ courts).

[16] Article 18 of the Namibian Constitution dealing with administrative justice requires that administrative bodies and administrative officials “shall act fairly and reasonably”. These provisions do not, (contrary to Article 12 dealing with civil rights or criminal charges), contain an entitlement to legal representation at administrative tribunals.

[17] I am of the view that the appellant did not act unreasonably and unfairly by requiring compliance with the provisions of its own code regarding representation during this disciplinary hearing and provided, in my view, an acceptable explanation why ‘outside’ representation was not allowed. The respondent decided to represent herself and subsequently participated in the proceedings by cross-examining witnesses and testifying herself.

The charges faced by the respondent, in my view, were not complex and the fact that she eventually went through the proceedings unrepresented did not in the circumstances vitiate the fairness of the proceedings in the disciplinary hearing.

The Charges

[18] It was submitted on behalf of the respondent that the evidence necessary to establish charge 3 would at the same time confirm charge 2, that the conviction on both counts in the disciplinary hearing amounted to a duplication of convictions and for this reason the findings in the disciplinary hearing were unfair. I agree that a conviction of these two counts may amount to a duplication of convictions but this fact alone does not necessarily impact upon the fairness of the findings in the disciplinary hearing.

[19] It was further submitted that Ms Thude, a witness called on behalf of the appellant in the disciplinary hearing, assumed the roles of “complainant, prosecutor and witness”. I do not see any fundamental distinction between the roles of complainant and witness since a complainant is essentially a witness which a litigant may call to testify in proceedings.

[20] In Hailemo v Security Force Services NLLP 1998 (1) 85 NLC at 92 – 93 O’Linn J stated the following:

“Where the employer is a firm with several persons in its management and with a considerable number of employees, as appears to be the position in the instant case, one would expect a written record to be kept of the disciplinary hearings and the function of judge, prosecutor, investigator, and witness separated as far as practically possible. In the instant case Mr Katjito should have been a witness, and/or the person presenting the evidence at the enquiry with a relatively impartial person in a senior managerial position, as the person who had to exercise the quasae – judicial function of deciding the important issues contained in sections 45 and 46 of the Labour Act.”

[21] The Court in Hailemo (supra) found that Mr Katjito acted as investigator, witness, prosecutor and judge and found that in those circumstances that the proceedings in the disciplinary hearing were unfair.

[22] Ms Thude testified during cross-examination that the appellant had a small management staff of four persons including the chief executive officer and that she formulated the charges in consultation with the human resources department since the other mangers were not available. This was in compliance with their human resources policies.

The fact that Ms Thude, the complainant, presented the evidence at the enquiry, cannot per se be considered to be procedurally unfair or irregular.

](See Hailema (supra) where it was not considered irregular for a witness, to present the evidence at an enquiry, as well).

[23] The ideal situation is however to separate the functions of the various role players during disciplinary hearings.

Alleged acts of misconduct

[24] Ms Shareen Thude testified that she was the strategic executive manager (marketing) of the appellant. On the day in question she was inside her office busy preparing for a strategic session to be held the next day when respondent entered her office demanding a report in writing why a certain tour operator had been selected to go Luanda (in order to obtain market-intelligence) instead of respondent herself and why she (respondent) was not permitted to go to Brussels as was allegedly requested by the then Namibian ambassador to Belgium. Respondent apparently needed this report in writing in order to provide it to the Ombudsman. Ms Thude testified that she informed respondent that she was very busy at that stage and that she would provide respondent with the requested report in due course. Respondent persisted to have the report immediately and threatened to see the Deputy Minister should the report not be provided to her. Ms Thude testified that she told the respondent that she simply did not have the time at that stage to provide her with the requested report whereupon respondent became very angry. She tried to calm the respondent who in response started with derogatory remarks and said:

“You know you are treating me like shit and you came with these racist manners, and you are just like the Boers”. Ms Thude asked her to sit down whereupon respondent grabbed a “note pad cube” and threw it towards her face. She covered her face with her hand and the object cut her hand. She testified that at stage respondent really started to scream at her. Her secretary and the secretary to the CEO then entered her office. Ms Mbako the personal assistant to the CEO asked her what was going on and respondent kept on saying “this woman she is treating me like shit and you know I don’t know who she thinks she is”. Respondent wanted to come around her table and respondent then threw the telephone directory and other books at the face of Ms Thude. Ms Thude testified she asked Ms Mbako to take the respondent out of her office. The CEO Mr Shilongo intrigued to know what the row was about, was informed by Ms Thude what happened. He then ordered that the police be called and respondent was subsequently removed from the premises by the police.

[25] Ms Thude further testified that respondent was at one stage requested to attend a nursery programme at a tour operator in order to acquaint herself with the operational intricacies of a tour operator. The respondent refused, explaining that she was acquainted with tour operators, she didn’t need it and felt that she was being treated like a child. She testified that on 9 January 2004 when Mr Nekongo (head of personnel of respondent) in a second attempt tried to explain to respondent the nursery programme she started to behave rudely, shouting insulting and offensive language to the following extent:

“But the things that she said is that she called Mr Nekongo a ‘moffie’ and that he is just my ‘moffie’ and he is a stooge and he is stupid. And she said to me that she is not my bitch and I am just a ‘hotnot’ and you know like these Coloureds and racists and I am behaving just like “Boere” and really using all these derogatory language. At one stage, we said to her, look, this is the programme, it is not my programme or Mr Nekongo’s programme, it’s a programme that was actually, it was part of our strategy and it was also adopted by our Board of Directors.”

[26] Ms Thude testified that respondent walked out and then returned and respondent “had her hand like this as if to slap me and I caught her hand”.

[27] She further testified that the respondent had a history of ‘turbulent’ behaviour, had been involved in incidents where she swore at her previous supervisor and had “various conflicts” with her colleagues. Ms Thude testified that the day that respondent threw objects at her she was seated behind her desk and had in no way provoked the respondent. She did not retaliate because she knew it would have been improper for her as supervisor to do so.

[28] Ms Omarano Mbako, the personal assistant to the chief executive officer testified that on 20 July 2004 she heard loud voices from the office of Ms Thude. She went to investigate and found respondent there. Ms Thude was seated behind her desk and respondent was standing and shouting. She asked what was going on and respondent replied in the Otjiherero language “I have told you people that I will beat this woman one day. This woman is full of shit”. The respondent grabbed the telephone and wanted to throw it at Ms Thude. Ms Mbako prevented her from doing so. She then took the respondent out of the office. She testified that she saw Ms Thude bleeding on one of her hands and a lot of note pads were laying behind Ms Thude.

[29] She confirmed that Ms Thude did not retaliate but only requested her to take respondent out of the office.

[30] Ms Christine January testified that she was as the time of the incident on 20 July 2004 employed by appellant as marketing secretary for Ms Thude. That morning the respondent, uninvitedly, entered the office of Ms Thude while Ms Thude was busy on the telephone. She could hear that respondent asked Ms Thude to do something for her. Ms Thude replied that she was busy at that stage and that respondent could leave the document on her table as she would deal with it at a later stage. Respondent replied that she didn’t want to wait and wanted Ms Thude to deal with the matter immediately. Ms Thude again replied that she was busy and then she heard respondent started screaming at Ms Thude telling her not to play with her as she did not know whom she was dealing with. She heard something fell. Ms Mbako came and entered the office and asked respondent why she was screaming. Ms Thude was seated on her chair behind her desk and on the opposite side of the desk Ms Mbako and respondent were standing next to each other. Ms Mbako tried to calm down the respondent who was furious at that time and asked how could Ms Thude ask her who she thought she was to tell Ms Thude what to do. Respondent wanted to move around the table but was stopped by Ms Mbako. She testified that Ms Thude asked Ms Mbako to take respondent out of her office.

[31] Mr Tuhafeni Nekongo, the head of Human Resources, testified that the management of appellant initiated a programme called a nursery programme in order to help their employees to disseminate proper information to tourists. In order to achieve this employees were attached to different institutions which provide tourism services. During July 2004 he approached the respondent and informed her that Wilderness Safaris was ready to take in the next employee and before he could finish respondent said:

“I told you that I am not going to take part in fucking Shareen’s nursery programme. You are being manipulated by Shareen. You are a ‘moffie’, you behave like a ‘moffie’. I will deal with Shareen. Shareen has to write it to me first before I participate in this appearance.”

[32] Thereafter respondent walked out of his office. The next morning on the 9^th of June 2004 he accompanied respondent to the office of Ms Thude and introduced the topic of the nursery programme. The respondent repeated that she was not going to participate in Shareen’s “fucking nursery programme”. She told Ms Thude that she would “deal with” Ms Thude pointing her finger at Ms Thude and tried to press her finger against the forehead of Ms Thude. Ms Thude prevented her from doing so. The respondent then left the office of Ms Thude. The respondent did not mention at that stage any other reason why she was not willing to participate in the nursery programme which was due to start on 12 July 2004. At a later stage in a letter dated 13 July 2004 respondent explained that she could not participate in the nursery programme due to health reasons (apparently back problems). Mr Nekongo testified that respondent’s placement with the tour operator would have been in Windhoek and would have entailed an ‘office job’ which would not have negatively affected respondent’s health.

[33] The respondent testified that she was employed with appellant as a promotion officer which entailed that she had to co-ordinate with embassies and high commissions abroad and also had to deal with domestic tourism promotion. Respondent testified that she received an invitation from the Namibian Embassy in Belgium to open a “tourism desk” in Belgium but that her manager Ms Thude did not allow her to go to Belgium and respondent realised that Ms Thude did not want her to participate in any activities as promotion officer but wanted to utilise her only as a store lady. She testified that when she complained about this Ms Thude said that it was costly and respondent should not be asking her about those matters. She afterwards approached Mr Nekongo who in turn referred her back to Ms Thude. She returned at a later stage to Ms Thude and confronted her but Ms Thude was not in a “mood to give her a proper answer”. She testified that she went to the office of Ms Thude because she was requested by the Deputy Minister of Environment and Tourism to get a reply from Ms Thude in writing why she was not allowed to travel to Belgium.

Regarding the charge relating to her refusal to attend a nursery programme (charge 1) respondent testified that the nursery programme“was not designed for her”, that Mr Nekongo informed her that another employee, Mr Kavena Kakwashivi, was suppose to attend the program but that he was not willing to go to Wilderness Safaris and had told respondent that she had to go there instead. She refused stating that it was too short a notice; that she already “came from the same training”; that she did not need it, and that she had a back problem and was not suppose to carry heavy articles. This concluded her evidence in chief in the district labour court. Respondent never testified about the other charges (charge 2 and 3) and never testified about the incident during which she allegedly assaulted Ms Thude.

During the proceedings in the district labour court it was never put during cross-examination to Mr Nekongo or Ms Thude that the respondent raised the issue that she could not have attended for health reasons. It was never put to Ms Thude or Mr Nekongo that the respondent had been requested to attend the nursery programme because another employee had refused to go on such programme. The respondent’s version regarding the charge of assault was also never put to Ms Thude during cross-examination by respondent’s legal representative. It is trite law that failure to cross-examine or failure to put the opponents view in respect of a specific fact in issue may prevent a party from later disputing the evidence of a witness who testified about such issue.

(See Goagoseb v Arechenab Fishing and Development Co. (Pty) Ltd NLLP 1998 (1) 142 NLC ).

The respondent during cross-examination in the district labour court denied the allegations contained in charges 2, 3 and 4.

She was confronted with a passage of the record in the disciplinary hearing and her reply thereto. The following appears from the record of the district labour court.

“Actually you agreed with what the witness said. ‘Ja I was trying maybe to throw something to her or whatever because she (inaudible) laying down on the floor and all kinds of things’….”

[34] Mr Daniels, (an external chairperson at the disciplinary hearing) in respect of the charge of assault, stated that the evidence of Ms Mbako was conclusive that an assault, in the form of a telephone directory that was thrown at the face of Ms Thude took place, that the respondent had threatened Ms Thude with a telephone and had threatened to physically assault her. He further found that the respondent confirmed the evidence of Ms Mbako relating to the assault incident in the office of Ms Thude.

[35] It is further clear from the answer given in reply to a question during the proceedings in the district labour court that respondent admitted the assault on Ms Thude. It is further significant during the proceedings in the district labour court that respondent never testified in her evidence in chief about the assault on Ms Thude and it was furthermore never denied, during the cross-examination of Ms Thude, that the respondent assaulted her.

The submission made on behalf of the respondent that the incident should be seen as an altercation between two female employees is in my view not supported by the facts. On the contrary, it has in my view been proved beyond doubt that the respondent was the aggressor the day she assaulted Ms Thude and that Ms Thude did not in any way retaliate.

[36] The chairperson of the district labour court misdirected himself when he found that none of the witnesses told the court who started the assault.

It was never in dispute that Ms Thude’s hand was bleeding from an injury sustained when an object was thrown at her face (the respondent admitted throwing an object at Ms Thude !).

The chairperson of the district labour court furthermore misdirected himself by embarking upon speculation that there was a possibility that Ms Thude’s finger could have been cut when respondent tried to dispossess her of a certain report. This is farfetched. Respondent never testified about such an incident and it was never put to Ms Thude that this was the manner in which she could have been injured.

[37] In respect of the charge of insubordinance the chairperson of the disciplinary hearing accepted the testimony of Mr Nekongo whom he described as an honest witness who presented his testimony in a clear and factual manner. The testimony of the respondent was rejected as being inconsistent. The respondent herself was described as showing high levels of aggression and intolerance at the hearing. It was submitted on behalf of the respondent that respondent’s explanations why she could not have attended the nursery programme were common cause and that no issue was taken by appellant in the hearing in the court a quo. However the respondent never disputed the evidence that when she was informed of the necessity of attending the nursery programme she never mentioned any reason why she could not have participated in the nursery programme except to state that she was not going to participate in Shareen’s “fucking nursery programme”. It was only after the programme was scheduled to have started that an explanation was offered by the respondent. It has furthermore not been shown where the chairperson of the disciplinary hearing had misdirected himself in rejecting the testimony of the respondent in respect of this charge. The chairperson of the district labour court misdirected himself (on the facts) by finding that no evidence was led that the respondent refused to attend a training programme in respect of which she received instructions to attend.

[38] In respect of charges 2 and 3 it was submitted on behalf of the respondent that viewed in proper context the words directed to Ms Thude were directed to the programme and not to herself and that the language used in respect of the conduct of Mr Nekongo did not amount to insolence.

[39] Where a subordinate uses words to the effect that she is not the “bitch” of her superior or that her superior is a “hotnot” and a “racist” and behaves like “Boere”, that her superior treats her like “shit”, that she would beat up her superior because the superior is full of “shit”, and that she would “deal with” her superior, simultaneously pointing a finger at her superior, then to argue that the subordinate was not grossly discourteous, insolent, insulting, and offensive would be to close one’s eyes (and ears) (figuratively) to the obvious.

[40] The chairperson of the district labour court again misdirected himself (on the facts) by holding that Ms Thude intended to deliberately frustrate the respondent, showed discourteous and insolent conduct towards the respondent and had set a bad example to the respondent.

The chairperson of the district labour court further misdirected himself by justifying the conduct of the respondent by stating that because of the behaviour of Ms Thude (referred to supra) respondent “could not have distinguished that her reaction to such words will (sic) constitute … a misconduct”.

[41] In my view respondent’s conduct justified the conviction by the chairperson of the disciplinary hearing on either of charges 2 or 3. If it is accepted that there was a duplication of convictions it wouldn’t make any difference since the conviction on each charge was a dismissable offence.

[42] It is not disputed that the respondent had on a previous occasion during a disciplinary hearing been convicted and sentenced to a final written warning. This written warning was valid for a period of 12 months and was signed by the respondent on 25 March 2004. This warning stated inter alia that should respondent commit any other serious offence, whilst the warning remained effective this would result in the immediate termination of the services of the respondent.

Each one of the four offences of which the respondent had been convicted of in the disciplinary hearing is a serious and dismissable offence.

[43] The respondent claimed in her particulars of complaint “reinstatement and compensation for loss of income plus damages”. No specific amount was claimed in respect of “compensation”.

[44] The chairperson of the district labour court ordered the reinstatement of respondent and compensation in favour of respondent in the amount of N$538 732.32 “as her net salary from November 2004 to 20 March 2007”.

No evidence was presented at the proceedings of the district labour court to support such an amount.

In any event in the light of my finding confirming the dismissal of the respondent by the appellant the relief claimed by the respondent becomes academic. The respondent is not entitled to any relief (i.e. reinstatement and/or compensation).

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HOFF, J

ON BEHALF OF THE APPELLANT: ADV. HEATHCOTE

Instructed by: KOEP & PARTNERS

ON BEHALF OF THE RESPONDENT: MR KAUTA

Instructed by: DR WEDER, KAUTA & HOVEKA INC.

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