Automated Summary
Key Facts
The Namibia Estate Agents Board (appellant) dismissed the first respondent (Phelem Manyando Like) for theft and fraud, leading to an arbitration award in his favor. The award was set aside on appeal due to fundamental irregularities in the arbitration process. The court ruled that the arbitrator (second respondent) acted with bias and in bad faith, resulting in a de bonis propriis costs order against her. The first respondent's application to refer the matter back to arbitration was rejected as res judicata.
Issues
- The court evaluated whether the second respondent (arbitrator) should be ordered to pay the applicant's and first respondent's costs de bonis propriis on a scale between attorney and client. The applicant and first respondent alleged bias during the arbitration, including accepting undisclosed documentation and refusing recusal. The court found the second respondent's conduct constituted bias and her opposition to the costs order was frivolous, leading to the adverse costs order.
- The court considered whether it could refer the matter back to arbitration in the review application, given that the appeal had already set aside the arbitration award. The applicant argued that the first respondent should not be allowed to seek a referral back as the award was res judicata and the merits of the review had become moot. The court ultimately ruled that the referral back was precluded because the award had been set aside and the only remaining issue was costs.
Holdings
- The court ordered the second respondent (arbitrator) to pay the applicant's and first respondent's costs in the review de bonis propriis on a scale as between attorney and client. This was based on her biased conduct during the arbitration (accepting undisclosed documentation favoring the first respondent) and her frivolous opposition to the costs order by failing to dispute material allegations in her answering affidavit.
- The court refused the first respondent's application to refer the matter back to arbitration, holding that the appeal judgment set aside the arbitration award in toto, rendering the issue res judicata in the review. The court emphasized that the only remaining issue in the review was costs, and a referral back cannot be mounted on that basis as the merits of the review had become moot.
Remedies
- The first respondent's application to have the matter referred back to arbitration is refused.
- The second respondent was ordered to pay the applicant's and first respondent's costs in the review de bonis propriis on a scale as between attorney and client, due to her conduct during the arbitration and frivolous opposition to the costs order.
Legal Principles
- The court held that the appeal judgment setting aside the arbitration award had become res judicata between the applicant and first respondent, precluding the review application from proceeding on the merits. This principle was central to dismissing the referral back request in the review.
- Under Section 134 of the Labour Act, the arbitrator's undisputed bias and refusal to act impartially (including accepting evidence without notice and refusing recusal) demonstrated lack of good faith, removing her statutory immunity from personal liability for costs.
- The court found the arbitrator's conduct during the arbitration (accepting undisclosed evidence, refusing recusal) constituted bias and lack of good faith. Her subsequent frivolous opposition to the costs order under Section 118 of the Labour Act led to a de bonis propriis costs order against her.
- The second respondent contested the admissibility of the applicant's allegations as hearsay in affidavits. However, the court found her bald denials insufficient to create material disputes of fact, allowing the costs issue to be determined on the existing evidence.
Precedent Name
- Maclean v Haasbroek NO and Others
- Commercial Investment Corporation v Namibian Food and Allied Workers Union
- National Sorghum Breweries Ltd v International Liquor Distributors (Pty) Ltd
- Firestone South Africa (Pty) Ltd v Gentiruco AG
- Regional Magistrate Du Preez v Walker
- Geldenhuys v Resident Magistrate, Sutherland
- National Housing Enterprise vs. Beukes and Others
Cited Statute
- Namibian Estate Agents Act
- Labour Act, 2007
Judge Name
Hans Geier
Passage Text
- The court found that the appeal judgment set aside the arbitration award in toto, rendering the issue res judicata in the review. The only remaining issue in the review was costs, and no referral back could occur as the merits had become moot.
- The court stated that the second respondent's 'bald and blanket denials' in response to allegations of irregular conduct during the arbitration were insufficient to create a material dispute of fact, allowing the court to determine the costs issue on the papers before it.
- The court concluded that the second respondent's conduct in the arbitration demonstrated bias, and her failure to deny material allegations in her answering papers rendered her opposition to the costs order 'frivolous' under section 118 of the Labour Act.