[6] Quite clearly, ss 118 and 134 deal with different subject matters and are not to be confused. Section 118 allows a court to make an order of costs against a litigant in labour disputes bearing in mind that costs are ordinarily not awarded in such proceedings. Section 134 protects a functionary under the Act from civil liability a – protective shield which is only lost if it is pleaded and established on evidence that the functionary acted mala fide or not in the performance of his or her functions as arbitrator. I shall presently set out the proper approach to s 134. The context [7] The relevant events occurred TM-S had presided over an arbitration involving the second respondent (Mr Like). After being dismissed by the first respondent, Mr Like referred a dispute of unfair dismissal to the Labour Commissioner against the first respondent. TM-S conducted the arbitration and reserved her award. In the intervening period, TM-S was accused by the legal representative of Mr Like of encouraging them, without the knowledge of the first respondent’s legal practitioner, to supplement what appeared to be a defective case. [8] Mr Like’s lawyer asked that TM-S reconvene the arbitration so she could be asked to recuse herself on account of her alleged attempt to favour Mr Like. TM-S neither recused herself nor reconvened the hearing. She proceeded to hand down an award in favour of Mr Like. The first respondent appealed to the Labour Court against the award on the ground that it was based on evidence obtained by TM-S from Mr Like after the hearing, without the knowledge of the first respondent.
[6] Quite clearly, ss 118 and 134 deal with different subject matters and are not to be confused. Section 118 allows a court to make an order of costs against a litigant in labour disputes bearing in mind that costs are ordinarily not awarded in such proceedings. Section 134 protects a functionary under the Act from civil liability – a protective shield which is only lost if it is pleaded and established on evidence that the functionary acted mala fide or not in the performance of his or her functions as arbitrator. I shall presently set out the proper approach to s 134. The context [7] The relevant events occurred TM-S had presided over an arbitration involving the second respondent (Mr Like). After being dismissed by the first respondent, Mr Like referred a dispute of unfair dismissal to the Labour Commissioner against the first respondent. TM-S conducted the arbitration and reserved her award. In the intervening period, TM-S was accused by the legal representative of Mr Like of encouraging them, without the knowledge of the first respondent’s legal practitioner, to supplement what appeared to be a defective case. [8] Mr Like’s lawyer asked that TM-S reconvene the arbitration so she could be asked to recuse herself on account of her alleged attempt to favour Mr Like. TM-S neither recused herself nor reconvened the hearing. She proceeded to hand down an award in favour of Mr Like. The first respondent appealed to the Labour Court against the award on the ground that it was based on evidence obtained by TM-S from Mr Like after the hearing, without the knowledge of the first respondent.
TM-S%20v%20Namibia%20Estates%20Agents%20Board%20(%20SA%2038-2014)[2016]NASC%20(29%20September%202016).docx