The Masule vs Prime Minister chronicles
ON or about November 2019, a vacancy for the position of chief: investigations and prosecutions grade three at the Anti-Corruption Commission (ACC) was advertised in local newspapers. The advertisement listed the requirements which the applicants had to meet to qualify to be invited to an interview. This included the attachment of certain documents to the application, with the condition that incomplete applications without confirmation of satisfactory completion of the probationary period would be disqualified.
Masule, an employee of the ACC, was one of the persons who applied for the position, and was shortlisted in 2020. The interviews were conducted on 16 June 2020, and he emerged as the second- highest candidate, while another candidate was the highest candidate. The interview panel recommended Masule for the position. On 24 June 2020, the executive director of the ACC addressed a submission to the deputy director for the department of the Public Service Commission (PSC) Secretariat, recommending the candidate who scored the highest for the position, essentially overriding the recommendation of the interview panel.
This recommendation was forwarded to the PSC, and they communicated their decision to the director general of the ACC in a letter dated 14 July 2020. In essence, they concluded that the highest candidate did not submit all the needed documentation with his application, and was asked to do so after the closing date for submitting the applications. He should thus have been excluded from the selection process since his application was incomplete.
On 16 July 2020, the director general called Masule to his office at the ACC to inform him that he was the successful candidate for the position, and handed him a letter confirming same. The news about Masule’s promotion was widely circulated to his colleagues throughout the ACC, and was published on the ACC’s website. The week of 20 July 2020, the appellant moved into his new office. In a letter addressed to both the Prime Minister and the director general of the ACC dated 17 July 2020, the highest candidate complained that although he attached both his driver’s licence and the confirmation of probation letter to his original application, he was called at a later stage to again submit those documents.
He further claimed that the security screening which should form part of the required process did not take place, and the process proceeded without it. The recommendation of the interview panel was in favour of promoting an ACC staff member, and not the best performer in the interview. He then requested an investigation into his complaint.
On 3 August 2020, Masule received a letter dated 16 July 2020 from the Prime Minister of the Republic of Namibia, which set aside his appointment. The Prime Minister purported to do so in terms of section 7(2)(b) of the Public Service Act, 13 of 1995. The letter further stated that the appointment was set aside due to a complaint laid with the Prime Minister’s office on alleged irregularities that may have taken place during the recruitment p rocess, which the Prime Minister intended to investigate in due course. Mr Masule was further invited to make written
submissions to the Prime Minister’s office, showing cause as to why the Prime Minister’s decision should not be made final in the event that he was aggrieved by the decision.
After back and forth correspondence, Masule lodged, on an urgent basis, an application in the High Court, where he sought an order interdicting and restraining the respondents from further implementing the Prime Minister’s decision, and reviewing and setting aside the Prime Minister’s decision to set aside his appointment.
Three preliminary issues of law were raised at the hearing in the High Court, and the one relevant was that the High Court lacked jurisdiction to hear and determine the matter. The High Court relying on the authorities of Haindongo Shikwetepo v Khomas Regional Council & others (an unreported judgement per Parker AJ, case no A364/2008, delivered 24 December 2008), Usakos Town Council v Jantze & others 2016 (1) NR 240 (HC), and Katjiuanjo v The Municipal Council of the Municipality of Windhoek (case no I 2987/2013 [2013] NAHCMD 311 delivered 21 October 2014), held the view that the legislature intended to exclude the jurisdiction of the High Court in the instances contemplated in section 117(1) (a) – (i) of the Act. It accordingly declined to condone appellant’s non-compliance with the rules of the High Court and to hear the application on an urgent basis, struck it from the roll, and ordered the appellant (Mr Masule) to pay costs for the 1st, 5th, 6th and 10th respondents.
Masule v Prime Minister of the Republic of Namibia & others NASC 04 February 2022 – whether the labour court is separate from the High Court:
Aggrieved by the decision of the High Court, Masule lodged an appeal to the Supreme Court.
On appeal, the Supreme Court had to consider the controversial issue of whether section 117(1) of the Labour Act 11 of 2007 ousts the jurisdiction of the High Court in all labour-related matters/disputes. In a concurring judgement (but for different reasons) Damaseb DCJ supported the order proposed by Mainga JA; - to allow the appeal, set aside the order and judgement of the High Court and remit the matter to the High Court to be heard on the merits by a judge assigned to the Labour Division.
Held per: Damaseb DCJ (Hoff JA concurring) That the Labour Court is not a court separate from the High Court envisaged by article 78(1)(b) of the Constitution. It is only a division created for administrative convenience to deal with labour matters, presided over by judges appointed to the High Court and working under the supervision of the Judge President.
Held per: Mainga JA
a) That jurisdiction is determined by the nature of the proceedings, or the nature of the relief claimed therein, or in some cases both the nature of the proceedings and the relief claimed. b) That the intention of the Legislature in the promulgation of section 117 of the Act was to grant the Labour Court exclusive jurisdiction in the field of labour relations.
c) That the scope of the exclusivity of the Labour Court is limited to cases enumerated in section 117 of the Act.
d) That the general exclusive jurisdiction clause in section 117(1)(i) does not oust the common law functions of the High Court in labour matters. If Parliament intended to oust the High Court in the exclusive jurisdiction of the Labour Court or the High Court’s functions in the employer-employee relationship at common law, section 117 would have said so in no uncertain terms.
e) That section 117(1)(i) of the Act confers, both the Labour Court and the High Court, with concurrent jurisdiction. f) That on the authority of Onesmus v Minister of Labour 2010 (1) NR 187 (HC), this court agrees that the High Court does not draw on any statute for its powers; it derives them directly from the Supreme Law of Namibia. Without a constitutional amendment, those powers cannot be derogated from or diminished by any Act of Parliament, including the Labour Act.
g) That Part A of the appellant’s prayers fall within the province of the High Court, and prayers 2 and 4 of Part B cannot be granted by the Labour Court.
h) That even if the Labour Court had jurisdiction, the High Court would have concurrent jurisdiction, and the Labour Court cannot claim exclusive jurisdiction. The High Court is one of the two superior courts granted the original jurisdiction not only to hear and adjudicate upon civil disputes and criminal prosecutions, but include the interpretation, implementation and upholding of the Constitution and the fundamental rights and freedoms guaranteed thereunder.
As a result, the appeal succeeded, and the matter was referred back to the High Court to be heard and determined by a judge assigned by the Judge President to the Labour Division of the High Court.
Masule v Prime Minister of the Republic of Namibia
(HC-MD-CIV-MOTGEN-2020-00290) [2023] NAHCMD 220 (25 April 2023)
When the matter was returned to the High Court, the court had to deal with the merits of the main application – Part B of the initial application. The Prime Minister filed a counter-application in terms of which she, among other things, asked for orders reviewing and setting aside the Public Service Commission’s decision of 14 July 2020 to recommend Masule for the position, reviewing and setting aside the decision of the Executive Officer of 16 July 2020 to appoint him to the position, and directing the recruitment and appointment process for the position to start afresh.
The matter was heard, where it was argued on behalf of Masule that the impugned decision came as a result of a complaint from the highest candidate. The record should have at least shown that the Prime Minister conducted some investigations into the allegations, which it did not. This made her actions arbitrary. It was further argued that on a proper interpretation of the Public Service Act, the Prime Minister could not set aside the appointment because she has no actual decision-making powers and discretion when it comes to appointments of members of the public service.
The Prime Minister performed her functions as per the duty created in section 7 of the Public Service Act, although not in terms of section 7(2)(b) as she initially indicated in her letter, but in terms of section 7(2)(a). This section allows her to set aside or vary any decision she has taken. Although the act only then calls for the person affected by the decision to then make written permissions within 14 days, it still allows for audi. It was argued that the letter of 31 July 2o2o was an attempt to merge the provisions of section 7(2)(b) with the provisions of Article 18 of the constitution, as it is clear that she had not yet arrived at a conclusion.
After considering the legal principles applicable to review applications (Bel Porto School Governing Body and Others v Premier of the Western Cape Province and Another 2002 (3) SA 265 and the applicable statutory provisions, the court found that:
a) In terms of section 9 of the Act, only the President may vary or reject any recommendation relating to the public service made by the PSC, and the Prime Minister’s role is limited to the rejection of advice provided by the PSC. b) It was found further that the Prime Minister clearly acted in circumstances where she had no power to act. The determination of complaints rested with the PSC, as the impartial and independent body created by law to deal with complaints. At best, the Prime Minister could have looked into the decision and advised the President as he is the next role player who could decide to either confirm or set aside the recommendations of the Public Service.
Her decision was accordingly set aside.
In respect of the counterclaim: the respondents chose to file one answering affidavit, combined with an affidavit in support of a counter-application. It was clear that an applicant in a counter- application must file the said application, consisting of a notice of motion and an affidavit supporting that application (Hamupolo v Simon N.O and Others (HC-MD-CIV-MOT-GEN 78 of 2020 [2022] NAHCMD 37 (8 February 2022). The respondent to the counterapplication must be afforded time to deal with the counter-application as would then be the case in an ordinary application.
This was not done. As such, the court found that there was no counterapplication, properly so-called, to be dealt with. The court was accordingly confined to dealing with the application (of Mr. Masule) and the basis of the opposition, properly before it. The rules, even when generously interpreted, do not conceive a fusion of two applications, namely an application and a counter-application on one answering affidavit.
The counter-application was accordingly dismissed.