We will fight on, despite court ruling
By Immanuel Ngatjizeko

On behalf of the Government of the Republic of Namibia, and particularly, the Ministry of Labour and Social Welfare, I note our disappointment with the long-awaited judgment of the Supreme Court in the matter of Africa Personnel Services v. Government of the Republic of Namibia and others, declaring the ban on labour hire contained in Section 128 of the Labour Act, 2007 to be in conflict with Article 21(j) of the Namibian Constitution, which provides for the right to do business or practice a profession. It is ironic that a provision of the Namibia Constitution that was intended to eradicate apartheid practices that subjected black workers to the injustice and humiliation of job reservation, influx control and the like has now been interpreted to turn a blind eye to commercial arrangements for the rental of human labour in order to avoid the protections afforded to workers by the labour laws.

The Supreme Court has spoken. As a nation built on the rule of law, the Namibian Government respects the final authority of the Supreme Court to interpret the Namibian Constitution. However, Government would be remiss if it did not exercise its constitutional right to voice its disagreement with the Court’s judgment.

The Supreme Court asserts in its judgment that modern labour hire, and the contract labour system (which the Court appears to believe, erroneously, was also known as “labour hire”) have very little in common because contract labour was part of the old system of apartheid, while labour hire operates under a democratic and constitutional dispensation in which both employers and employees have equal freedom of contract.

We must respectfully disagree. Although this may appear to be a valid theoretical distinction, the reality of the Namibian labour market demonstrates otherwise.

The ban on labour hire was enacted by Parliament in response to the actual situation on the ground and to the exploitation of people working under a labour system which includes the following characteristics:

• employees have no choice of their actual employer or place of work;

• employees are referred to by those who use their labour as “bodies” with identification numbers, rather than by their names;

• sick leave, maternity leave and vacation are denied to labour hire employees under the principle of “no work no pay”;

• employees may be dismissed at will without legal protection, regardless of how long they have worked for a particular client company;

• employers may ignore the Labour Act’s .protections for retrenched employees;

• the labour hire company and the client company may agree (and indeed have so agreed, in the contracts before the Supreme Court in the APS case) to exclude trade unions from having access to employees at their the work place, despite express provisions of the Labour Act which require that employers grant access to trade unions.

The commonality of the contract labour system and labour hire is well known to the ordinary Namibian citizens who suffer daily under the labour hire system, some of whom have worked under the old contract labour system. Both the contract labour system and labour hire in Namibia today ensure a cheap labour supply to employers unfettered by labour protections or workers’ rights.

Today’s labour hire is notorious for its low pay, employment insecurity and the absence of minimum conditions of employment and health and safety protections. Employers sometimes create labour hire companies and then move their employees to the payroll of the new company in order to cut labour costs and to shed the responsibility for the employees’ well-being. We are aware that, just as was the case in the days of SWANLA, unemployed persons in Namibia take up employment today with labour hire companies because most have few or no other options for gainful employment.. It is therefore obvious that labour hire employees are among the most vulnerable workers in our country and that they require protection by the organs of the State. Unfortunately, the Supreme Court, from its perspective, appears not to appreciate that the vestiges of apartheid colonial exploitation continue to plague Namibia today, sometimes in new forms. Without such an appreciation, the Court may fail in its duty to give effect to the promises made to the Namibian people by the founding mother and fathers who drafted the Constitution.

The short title of Section 128 is “prohibition of labour hire.” The Supreme Court in its judgment asserts that the term “labour hire” “has no firm meaning”, and therefore gives little assistance to the Court in understanding the meaning of Section 128. Again, I respectfully disagree. I sincerely believe that most Namibians, and in particular, Namibian workers and Namibian employers utilizing labour hire companies, as well as the members of the Namibian Parliament who debated the prohibition of labour hire, understand very clearly what is meant by labour hire and why Parliament sought to ban it.

The Supreme Court, on the other hand, asserts that Section 128 actually prohibits what the Court refers to as “agency work,” a term that did not feature in the public discourse over labour hire, in the Parliament debate, in the Court litigation and which cannot be found in the Labour Act, 2007. “Agency work,” as the Court has fashioned this term, lumps together the services of persons falling within the Labour Act’s definition of “employee”, to whom the provisions of the Labour Act apply, and the services of independent contractors, who are expressly excluded from the coverage of the Labour Act. According to the Court, “agency work” is prohibited by Section 128 includes the services, among others of “modeling agencies or casting agencies which make fashion models or actors/characters available to fashion houses, advertising agencies or production agencies under whose direction they are engaged for fashion shows, promotional photography or cinematographic production ...” We respectfully disagree with the Court’s line of reasoning, which is an important basis for its holding that Section 128 is unconstitutionally overbroad.

We do not comprehend how the Court could interpret Section 128 to address the business activities of persons who fall outside the coverage of the Labour Act. In addition, it is very puzzling, to say the least, that the Court could imagine that Parliament had intended to criminalise the activities of modelling agencies and actor’s agents.

Members of the Media, Ladies and gentleman:
It is not my intention to analyze the Court’s judgment further today. I want to talk about what we are going to do. While the Court held that Section 128 as it is presently written does not conform to the requirements of the Constitution, it did not preclude Government from enacting a new law to address the problems of labour hire. In this regard, I remind you that Article 81 of the Namibian Constitution provides as follows.

“A decision of the Supreme Court shall be binding on all other Courts of Namibia and all persons in Namibia unless it is reversed by the Supreme Court itself, or its contradicted by an Act of Parliament lawfully enacted.”

I therefore wish to assure the Namibian nation-that our Ministry will not allow the Supreme Court’s judgment to divert it from its duty to protect the most marginalised and vulnerable workers in our country. In light of the Supreme Court’s judgment, the Government is more determined now than ever before to pursue the goals of dignity and justice for employees working in the labour hire system. I hereby pledge that our Ministry, after studying the Court’s judgment in the fullest detail and implication, will prepare legislation that will put an end to the practice of labour hire as we know it today, in accordance with Constitutional requirements, and will create a strong administrative framework to enforce such legislation.

We will undertake this project as speedily as possible and will fashion interim measures to afford protection to labour employees under existing law.

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