Africa-Press – Namibia. A SENIOR Anti-Corruption Commission (ACC) investigator whose promotion was reversed by prime minister Saara Kuugongelwa-Amadhila a year and a half ago is heading back to the High Court with a challenge against the premier’s decision.
ACC investigator Phelem Masule’s case about the cancellation of his appointment as the ACC’s head of investigations and prosecutions will return to the High Court to be heard once a judge has been assigned to deal with the matter, Masule’s lawyer, Kalundu Kamwi, said yesterday.
An attempt by Masule to challenge the prime minister’s decision to reverse his appointment in July 2020 failed in the High Court in September 2020, when a judge ruled that the court did not have the jurisdiction to deal with a case which should have been reserved for the Labour Court.
That decision has now been overturned by the Supreme Court, which on Friday found that the High Court indeed has the required jurisdiction to hear and decide the matter.
The Supreme Court referred the case back to the High Court.
The executive director of the ACC notified Masule in July 2020 that he had been appointed as the anti-graft body’s chief of investigations and prosecutions, after he had applied for the post and had been interviewed and shortlisted.
The appointment was effective from the start of August 2020.
However, on 3 August 2020, Masule received a letter from Kuugongelwa-Amadhila in which she informed him she had set aside his appointment due to a complaint laid with her office about alleged irregularities during the recruitment process.
Masule did not meekly accept this turn of events.
He approached a lawyer and in September 2020 filed an urgent application in the Windhoek High Court in an attempt to have the prime minister stopped from implementing her decision to reverse his appointment, and to have that decision reviewed and set aside.
The three judges who heard Masule’s appeal against the High Court’s decision agreed about the outcome of the appeal, but differed about the reasoning that led to their conclusion.
Judge of appeal Sylvester Mainga said the Constitution gives the High Court original jurisdiction to hear and decide all civil disputes, and stated that it is not possible for the parliament to remove the court’s jurisdiction to also deal with labour-related matters.
He said it appeared to him that the Labour Act, which gives jurisdiction to the Labour Court, applies only where there are allegations of unfairness.
Where it is alleged that there had been unlawfulness in an employment setting, that is a matter for the High Court to deal with, Mainga said.
Deputy chief justice Petrus Damaseb, with whom appeal judge Elton Hoff agreed, stated there was “a fundamental misconception” that the Labour Court, created by the Labour Act, is different from the High Court.
In fact, the Labour Court is a division of the High Court, and it is a misdirection for a judge of the High Court to decline to hear a matter on the grounds that it falls within the jurisdiction of the Labour Court, Damaseb said.
In Masule’s case, the judge should have heard the matter and considered whether it is the kind of dispute covered by the Labour Act, if it was brought to court in terms of the rules governing labour disputes, and if the order the court is asked to make is competent under the Labour Act, Damaseb said.
Masule was represented by legal counsel Gerson Narib, instructed by Kamwi, in the appeal.
Ramon Maasdorp represented the prime minister.
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