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RULING
DELIVERED BY H.E. JUSTICE I.J. MTAMBO, SC.
[1] The dispute between the parties is about the termination of the contract
of employment. The allegation is that the contract was unlawfully and
unprocedurally terminated by the Respondent.
[2] There are three preliminary objections to the application. Firstly, that
the same matter is pending before the District Labour Court (DLC) for the
District of Windhoek, a municipal court of the Republic of Namibia with
competent jurisdiction to adjudicate on employment matters. Secondly, that
the application to this Tribunal is premature in that the Applicant has
failed to lodge an appeal in accordance with her conditions of employment
and has thus failed to exhaust her internal remedies. Thirdly, that the
Tribunal does not have jurisdiction in that it only has power to interpret
the Southern African Development Community Treaty (the SADC Treaty),
Protocols, Subsidiary Instruments and acts of the Institutions of the
Community and such other matters as may specifically be provided for in any
other agreements that Member States may conclude among themselves or within
the Community, and which confer jurisdiction on the Tribunal - vide Article
14 of the Protocol on Tribunal (the Protocol).
[3] We will first consider the third objection. For easy comprehension of
the case, we replicate Article 14 of the Protocol as follows:
“The Tribunal shall have jurisdiction over all disputes and all applications
referred to it in accordance with the Treaty and this Protocol which relate
to:
(a) the interpretation and application of the Treaty;
(b) the interpretation, application or validity of the Protocols, all
subsidiary instruments adopted within the framework of the Community, and
acts of the institutions of the Community;
(c) all matters specifically provided for in any other agreements that
Member States may conclude among themselves or within the community and
which confer jurisdiction on the Tribunal.”
[4] Of relevance, for the present purpose, is paragraph (b) above which
provides that the Tribunal shall have jurisdiction over all disputes which
relate to “. . .acts of the institutions of the Community”. The crucial
question then becomes whether the Respondent is an institution of the
Community, and, if so, whether it has done an act which has given rise to
the dispute now before the Tribunal.
[5] Article 9 (1) of the SADC Treaty stipulates six institutions as having
been established. Under paragraph (2) the Community may establish other
institutions “ . . . as necessary.” On or about September 8, 1997, the
Summit, held in Blantyre in the Republic of Malawi, established the
Respondent as follows:
“7.8. The Summit approved the establishment of the SADC Parliamentary Forum
as an autonomous institution of SADC, in accordance with Article 9 (2) of
the Treaty.”
[6] The question whether the Respondent is an institution of the SADC must
therefore be answered in the affirmative. There can be no doubt that it is
such an institution.
[7] Regarding the question whether the Respondent has done an act which has
given rise to the dispute now before us, must also be resolved in the
affirmative.
[8] The allegation is that the Respondent has unlawfully and unprocedurally
terminated the Applicant’s employment with it, and Article 19 of the
Protocol confers on the Tribunal exclusive jurisdiction over all disputes
between the Community and its staff relating to their conditions of
employment. The Article provides as follows:
“Subject to the provisions of Article 14 of this Protocol the Tribunal shall
have exclusive jurisdiction over all disputes between the Community and its
staff relating to their conditions of employment.”
[9] Surely, contrary to what the Applicant’s Agent contended –
(a) an allegation of unlawful or unprocedural termination of a contract of
employment would, in our opinion, have to do with, or relate to, the
conditions of employment;
(b) in the Protocol the term “the Community” which is significantly not
defined in the Protocol must, in our view, be given a broad and purposive
meaning according to its context and accordingly include all the
institutions of the Community such as the Respondent, under Article 19 of
the Protocol. The context is, however, different in the SADC Treaty since
the Community is expressly defined in Article 2 thereof as the Southern
African Development Community or SADC.
[10] We now refer to the first objection which is that the same matter is
pending before the DLC for the District of Windhoek which is a court of
competent jurisdiction on employment matters, as indicated already. We agree
that persons should be prevented from abuse of remedies through concurrent
proceedings, a generally recognized rule of international law. But we
consider that this is a matter, in terms of the Protocol, over which the
Tribunal is better placed to exercise jurisdiction than any other court or
tribunal by reason that it has exclusive jurisdiction to do so – vide Art.
19 of the Protocol (supra).
[11] Finally, with regard to the second objection, namely, that the
Applicant has not exhausted internal remedies in that she has not lodged an
appeal in accordance with her conditions of employment, and that this
application is premature, we take the view that the objection is certainly
not about the jurisdiction of the Tribunal. It is a matter which would be
decided on the evidence and, therefore, it cannot be raised at this stage of
the proceedings.
[12] In the result, we dismiss all the preliminary objections. The Applicant
is properly before us and we have jurisdiction to consider her application.
It is so ordered.
Delivered in open court this 5th day of February 2010, at Windhoek in the
Republic of Namibia.
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