Automated Summary
Key Facts
The Labour Court of Namibia reviewed and set aside an arbitration award issued by Dionysius Louw (arbitrator) on 22 August 2022 under case number SSRMA 71-21. The applicants (Minister of Education, Arts & Culture, Office of the Prime Minister, and Public Service Commission) applied for the arbitrator's recusal due to perceived bias and lack of impartiality, as demonstrated by the arbitrator's language, procedural actions, and personal animosity towards the applicants' legal counsel. The court found the arbitrator's conduct cast reasonable doubt on his impartiality, leading to the decision under s 89(4) of the Labour Act 11 of 2007. No costs order was made for the review application.
Issues
- The court reviewed the validity of the arbitration award issued by the arbitrator, particularly the costs order against the applicants' legal counsel, which was not requested or argued in the proceedings.
- The court had to determine whether the arbitrator should be recused due to perceived bias and subjective involvement in the proceedings, which the applicants argued undermined his impartiality.
- The court considered the legal basis for the Labour Court to review and set aside the arbitration award under section 89(4) of the Labour Act 11 of 2007.
Holdings
- The decision/award issued by the arbitrator that the legal counsel for the applicants shall pay the costs of the third respondent for the opposition of the recusal application de bonis propriis and on the scale as between attorney and client, is reviewed and set aside.
- The matter is regarded as finalised and removed from the roll.
- The whole arbitration award issued by the first respondent (the 'arbitrator') on 22 August 2022 under case number SSRMA 71-21 is hereby reviewed and set aside in terms of s 89(4) of the Labour Act 11 of 2007 (the 'Labour Act').
- No order in respect of costs of this review application is made.
Remedies
- No order in respect of costs of this review application is made.
- The entire arbitration award issued by the arbitrator on 22 August 2022 under case number SSRMA 71-21 is reviewed and set aside in terms of section 89(4) of the Labour Act 11 of 2007.
- The arbitrator's decision/award requiring the legal counsel for the applicants to pay the third respondent's costs for the opposition of the recusal application de bonis propriis on an attorney-client scale is reviewed and set aside.
- The matter is regarded as finalised and removed from the roll.
Legal Principles
The Labour Court of Namibia found that the arbitrator's conduct, including issuing orders not requested and using biased language, violated the principle of Natural Justice. The court held that the arbitrator's actions created a reasonable apprehension of bias, thereby dislodging the presumption of judicial impartiality under this doctrine.
Precedent Name
- Christian v Judicial Service Commission
- Minister of Safety and Security v Kennedy
- Agricultural Bank of Namibia v Gaya
- S v Lameck and Others
- S v Shackell
Cited Statute
Labour Act 11 of 2007
Judge Name
G H Oosthuzien
Passage Text
- The fact that the arbitrator issued orders and made awards not requested from him and not argued before him cast a reasonable shadow of doubt over his open mindedness to such an extent that reasonable people in the position of the applicants and their legal practitioner, would reasonably apprehend that the arbitrator will not be impartial in adjudicating their case or defence. The arbitrator himself has dislodged the presumption of judicial impartiality.
- The whole arbitration award issued by the first respondent (the 'arbitrator') on 22 August 2022 under case number SSRMA 71-21 is hereby reviewed and set aside in terms of s 89(4) of the Labour Act 11 of 2007 (the 'Labour Act').
- The arbitrator's use of language and his modus operandi to pose questions to himself and the reader and to use the third respondents as his alter ego, are, to say the least, pretentious and disturbing.