Kambonde v Lutheran Medical Services [2020] NAHCNLD 77 (29 June 2020)

REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION HELD AT OSHAKATI RULING In the matter between: Case No: HC-NLD-CIV-ACT-CON-2018/00161 REBEKKA NANGULA KAMBONDE ELIZABETH KALENINASHO KAPUKA 1ST PLAINTIFF 2nd PLAINTIFF LUKAS HAFENI KAMATI 3rd PLAINTIFF PETRINA AMUPOLO 4th PLAINTIFF MENETTE NDJENE 5th PLAINTIFF LETISIA SHIWEDA PAULUS NDANYENGWA UUGWANGA DAVID ASSER EDWARD MWANDINGI MALAPI THOMAS NDILIMEKE NKANDI JOHANNA TUMENIYENI ELAGO HILMA KIRVINENA NAMBANZA HELVI VATILIFA PLAINTIFF MARTHIN NDAMANHOMATA SAKEUS SHEKUPE NAKAAMBO JAKOB HAMBABI 6th PLAINTIFF 7th PLAINTIFF 8th PLAINTIFF 9th PLAINTIFF 10th PLAINTIFF 11th PLAINTIFF 12th PLAINTIFF 13th 14th PLAINTIFF 15th PLAINTIFF 16th PLAINTIFF ROSALIA NDAPANDA NAMENE NIKANOR HOMATENI UUKONGO HELLA KAPUNDJA GEBHARD JONA NDAMONONGHENDA SHITYENI SESILIA HAIKALI AILI AMANDUS JASON KONDJILA NANGOMBE NAHANGO MARIA NANGULA ANGULA DAVID MAFUTA NEGONGA JOHANNA NDAPEWA NEPUNDA FRIEDA KAMBONDE HELENA NDAPANDA TOMAS MATHIAS NAMBAHU GABRIEL TEGELELA AMAKALI NAEMI NAMUTENYA SHILIKOMWENYO CECILIA KAUNAPAWA HAUDILA EMILIA MATHIAS ELIAKIM ELAO HAIHAMBO TITUS NANDJEDI JAKOBUS IPANGELWA DAVID NGHIFIKEPUNYE KAARINA NAITSUWE ASHIKUTU MELKISEDEK UUKONGO JUUNO TWATEGA KANGONGA ELIZABETH NEKWAYA ANTANGA PETRUS SHIPANDENI KANKU MARIA NDANYENGWA EELU TOMAS ANGALA FILLEMON MTALENI MBENZI MATIAS ELAGO PAMWENATSE MWENDELELI 17th PLAINTIFF 18th PLAINTIFF 19th PLAINTIFF 20th PLAINTIFF 21st PLAINTIFF 22nd PLAINTIFF 23rd PLAINTIFF 24th PLAINTIFF 25th PLAINTIFF 26th PLAINTIFF 27th PLAINTIFF 28th PLAINTIFF 29th PLAINTIFF 30th PLAINTIFF 31st PLAINTIFF 32nd PLAINTIFF 33rd PLAINTIFF 34th PLAINTIFF 35th PLAINTIFF 36th PLAINTIFF 37th PLAINTIFF 38th PLAINTIFF 39th PLAINTIFF 40th PLAINTIFF 41st PLAINTIFF 42nd PLAINTIFF 43rd PLAINTIFF 44th PLAINTIFF 45th PLAINTIFF 46th PLAINTIFF 47th PLAINTIFF HELENA NDEAPO ASHIKOTO GABRIEL JOHANNES PENEHAFO MALAKIA HILMA NAKUFU TIMOTEUS BENEDICTUS SHIVUTE NAMUKUGO LINUS NDANEPETHIMBO KASHAPI MARIA KALUMBU JOHANNA TEGELELA SHIVUTE VILHO PETRUS ELIA AUENE AUENE MATHIAS KAAMBONDE SHIKONGO GEBHARD KAPUNDA JOHANNES ILEMO ELIFAS MBANGO GEBHARD NDANGI AMUNYELA SELMA SELHA AMUNYELA EUNIKE AMWELE HELVI AMAKALI FRANSISKU ABROSIUS ANNA AMUTENYA HILMA NDAKUMWA ANGULA CONSTACIA ASHIPALA NAEMI MWAYOLANGE AMULUNGU HILENI AMAKUTSI JUSTINE KANDIWAPA AMUNYELA MARTHA NDESHIHALA AYEHEAANTU JOHANNA NDAPEWA EELU TEOPOLINA ELIASER NDAMONA ENGHALI ANNA FILLEMON ANNA FILIPPUS 48th PLAINTIFF 49th PLAINTIFF 50th PLAINTIFF 51st PLAINTIFF 52nd PLAINTIFF 53rd PLAINTIFF 54th PLAINTIFF 55th PLAINTIFF 56th PLAINTIFF 57th PLAINTIFF 58th PLAINTIFF 59th PLAINTIFF 60th PLAINTIFF 61st PLAINTIFF 62nd PLAINTIFF 63rd PLAINTIFF 64th PLAINTIFF 65th PLAINTIFF 66th PLAINTIFF 67th PLAINTIFF 68th PLAINTIFF 69th PLAINTIFF 70th PLAINTIFF 71st PLAINTIFF 72nd PLAINTIFF 73rd PLAINTIFF 74th PLAINTIFF 75th PLAINTIFF 76th PLAINTIFF 77th PLAINTIFF 78th PLAINTIFF JOSEF HAKUUNDA ROSALIA HAMALWA PENEPANDULO OTTILIA HANDUNGE FRIEDA NDESHIPANDA IHUHWA MARTHA KAALE INANE KATRINA NDAPEWA JAKOB VILHO JASON HILENI JOHANNES LEMPIE JOHANNES MARTHA JOHANNES LIINA NDINELAO JOSEPH FENNI NDAPANDULA JUNIAS JAPHET KALEKELA LOIDE KAMATI MATIAS KANDJUNGU ANATOLIA KAUKUNGWA HILENI MANYA FRIEDA MATEUS HILMA NIILONGA MBANGO MARIAN KANDALI MBENZI FRIEDA OLIVIA MUTALENI JOHANNA NANGULA NAMBAHU PRISKILA NAMUKUGO TEOPOLINA NANKUDHU SYLVIA NANGULA NDAEFA NDAMONA NDEMWIIMBA ELIZABETH NEKONGO SOINI ELINA NEPANDO TADEUS HILIFAVALI NGHINYANGELWA HELVI NGHILINGANYE ELIFAS NTINDA 79th PLAINTIFF 80th PLAINTIFF 81st PLAINTIFF 82nd PLAINTIFF 83rd PLAINTIFF 84th PLAINTIFF 85th PLAINTIFF 86th PLAINTIFF 87th PLAINTIFF 88th PLAINTIFF 89th PLAINTIFF 90th PLAINTIFF 91st PLAINTIFF 92nd PLAINTIFF 93rd PLAINTIFF 94th PLAINTIFF 95th PLAINTIFF 96th PLAINTIFF 97th PLAINTIFF 98th PLAINTIFF 99th PLAINTIFF 100th PLAINTIFF 101st PLAINTIFF 102nd PLAINTIFF 103rd PLAINTIFF 104th PLAINTIFF 105th PLAINTIFF 106th PLAINTIFF 107th PLAINTIFF 108th PLAINTIFF 109th PLAINTIFF MARIA TAATSU NUUNYANGO SAKARIA ANGULA NUUYOMA JULIA MARIA NAMUTENJA SHAPAKA KAARINA SHIKANGALA KEFAS SHIKONENI LINEA NELAO UUGWANGA KATRINA UUKUNDE FRIEDA MAGANO SHIGWEDHA JASON TANGENI SHIKONGO VICTORIA SHANDUKA EMILIA SEVERUS HELENA INOETHANDJE SHUUKIFENI FIINA SHINDONDOLA YOOLOKENI TEGELELENI HILMA ELLA USIKU HILMA SHIKONGO ABRAHAM MAGANAEM SHIPANGA SAIMA NDINELAO SIMON NATANGE SHIIMI LEEVI JULIA NDAPEWEKEKA UUGWANGA EVELINA FRIEDA IMMANUEL SAIMA PHILLEMON JEREMIA MATEUS PRISKILA PANDU ABED FRIEDA NDINELAGO AMAKALI MARGARETH HAMBELELA AMWELE PAULA TANGI- NUUSIKU AUALA FIINA NDAPANDA AUTA HILMA NAMVULA EDWARD FIINA HAITAMBA ESTER HANGULA 110th PLAINTIFF 111st PLAINTIFF 112nd PLAINTIFF 113rd PLAINTIFF 114th PLAINTIFF 115th PLAINTIFF 116th PLAINTIFF 117th PLAINTIFF 118th PLAINTIFF 119th PLAINTIFF 120th PLAINTIFF 121st PLAINTIFF 122nd PLAINTIFF 123rd PLAINTIFF 124th PLAINTIFF 125th PLAINTIFF 126th PLAINTIFF 127th PLAINTIFF 128th PLAINTIFF 129th PLAINTIFF 130th PLAINTIFF 131st PLAINTIFF 132nd PLAINTIFF 133rd PLAINTIFF 134th PLAINTIFF 135th PLAINTIFF 136th PLAINTIFF 137th PLAINTIFF 138th PLAINTIFF 139th PLAINTIFF 140th PLAINTIFF HILYA MAGANO IIPITO SAIMA MARTA ILONGA HILMA JOHANNES WILHELMINA KAMBALA PLAINTIFF SELMA KANDALI INGO RAUHA PENDAPALA KONOMUUA KAARINA NAMBULA MANGUNDU SOFIA PANDULENI MICHAEL HENNI NDAWANIFA SHIKONGO MARIA MOONGO OTTILIE NDAFIMANA NIIKONGO EMMA TEGELELA NDUNGULA 141st PLAINTIFF 142nd PLAINTIFF 143rd PLAINTIFF 144th 145th PLAINTIFF 146th PLAINTIFF 147th PLAINTIFF 148th PLAINTIFF 149th PLAINTIFF 150th PLAINTIFF 151st PLAINTIFF 152nd PLAINTIFF SUAMA PANDULENI-NENYANYU NGHIKEMBUA 153rd PLAINTIFF ROSALIA NGHUUPOVALI PETRUS MATHIAS SIMON HILMA FOIBE UUGWANGA GOTTLIEB HENDRIK UUSHONA PAULINA HEDIMBI PASKALIA WILHELMINA NIITA NGHIPANGELWA ELINA NDAPEWA-OMAGANO AMUKUGO HILMA NAAPOPYE SHILONGO JOOLOKENI HAIMBALA RUUSA NDAMONO SHONGOLO OTTILIE NDESHEETELWA NDEMUULA TRESIA ANASTASIU KRONELIA NELAGO KAYUHWA ESTER NDAYANDIMIKWA DUTE KULYA LASARUS MARTHIN MALUMBU HILMA NDEAPO TOKUNDU HANNU NDEAPO- RUBEN NAMBAHU 154th PLAINTIFF 155th PLAINTIFF 156th PLAINTIFF 157th PLAINTIFF 158th PLAINTIFF 159th PLAINTIFF 160th PLAINTIFF 161st PLAINTIFF 162nd PLAINTIFF 163rd PLAINTIFF 164th PLAINTIFF 165th PLAINTIFF 166th PLAINTIFF 167th PLAINTIFF 168th PLAINTIFF 169th PLAINTIFF 170th PLAINTIFF JOHANNA NDAMONONGHENDA KANANA SAIMA SONDAHA SHONGOLO HILENI NDEAPO NAMUPALA WILHERMIN BETTY NEKOTO NDAPEWA TUYEIMO SHATIPAMBA MARIA AMUAALWA HILMA KAINEKELWA IYAMBO FRIEDA MEGAMENO KAGOGO NDAMONO TEOPOLINA MBEPO MARTHA NDATEGELELA MBOKOMA HILENI NDINELAGO NANGOLO LEENA NEKULU ANGOMBE ELIZABETH ANGULA THEOPOLINA NAAYOLE AMWAANYENA ELINA KAULINGE OBADJA REBBEKA NDAPEWA AMEYA AUGUSTE NANGOMBE KALIMBO LEA DIANA SHITUULA WILKKA MARIA AMUTENYA WILHEM NATANGWE IMALWA HILENI IYAMBO MARTHA ANGALENI IIPITO SAARA IHUTHENI SHIKUNI AUNE NDEAPO ELINDI INGA MARIA NAMUPOLO SALMI ESTER JOEL RAUNA VATILENI HELVI NDENGU LEENA MATHEUS LINEA HAFENI PETRINA IIPUMBU 171st PLAINTIFF 172nd PLAINTIFF 173rd PLAINTIFF 174th PLAINTIFF 175th PLAINTIFF 176th PLAINTIFF 177th PLAINTIFF 178th PLAINTIFF 179th PLAINTIFF 180th PLAINTIFF 181st PLAINTIFF 182nd PLAINTIFF 183rd PLAINTIFF 184th PLAINTIFF 185th PLAINTIFF 186th PLAINTIFF 187th PLAINTIFF 188th PLAINTIFF 189th PLAINTIFF 190th PLAINTIFF 191st PLAINTIFF 192nd PLAINTIFF 193rd PLAINTIFF 194th PLAINTIFF 195th PLAINTIFF 196th PLAINTIFF 197th PLAINTIFF 198th PLAINTIFF 199th PLAINTIFF 200th PLAINTIFF 201st PLAINTIFF SELMA THOMAS TAIMI NAMUPOLO IMENE SELMA MAGANO KAMATI ELIA NEKWAYA LYNDY DANIEL PETRINA UUGWANGA SUAMA SHINYAMA SESILIA NDAPANDULA SHUUDENI ISANDRA GABRIELA SIMBO VICTORIA NDESHIMANA AMAKALI HILMA KANTENE JOHANNA THIKAMA SHILONGO LOVISA NDEAPO IIKALI And 202nd PLAINTIFF 203rd PLAINTIFF 204th PLAINTIFF 205th PLAINTIFF 206th PLAINTIFF 207th PLAINTIFF 208th PLAINTIFF 209th PLAINTIFF 210th PLAINTIFF 211th PLAINTIFF 212th PLAINTIFF 213th PLAINTIFF LUTHERAN MEDICAL SERVICES 1ST DEFENDANT EVANGELICAL LUTHERAN CHURCH IN NAMIBIA 2ND DEFENDANT MINISTRY OF HEALTH AND SOCIAL SERVICES 3RD DEFENDANT Neutral citation: Kambonde v Lutheran Medical Services (HC-NLD-CIV-ACT-CON- 2018/00161) [2020] NAHCNLD 77 (29 June 2020) Coram: DIERGAARDT, AJ Heard: 25 June 2020 Delivered: 29 June 2020 Flynote: Special plea – jurisdiction – civil matters to be heard – in the high court – restricted by statute – Labour Court has jurisdiction – special plea upheld. Summary: The plaintiffs approached the high court after an alleged breach of the employment contract, in that the defendants were failing and or refusing to pay out their accrued leave days. The first and second defendant transferred all personnel in their employ over to the third defendant. The plaintiffs had prior to approaching the high court referred their matter to the Labour Commissioners office, the arbitrator declined to hear the matter as they referred the matter late in terms of the Labour Act 11 of 2007. The plaintiffs now seek direct access to the High Court (sitting as the High Court). The defendants raised a special pleas on jurisdiction. Held: This Court (sitting as the High Court) has no jurisdiction to determine a matter that falls in the ambit of s 117(1) (d), (g), (h), (i) and s 23 of the Labour Act 11 of 2007. Held: The second and third defendants special pleas are upheld. ______________________________________________________________________ ORDER ______________________________________________________________________ 1. The second and third defendants special pleas are upheld; 2. This Court (sitting as the High Court) has no jurisdiction to determine a matter that falls in the ambit of s 117(1) (d), (g), (h), (i) and s 23 of the Labour Act 11 of 2007; 3. The plaintiffs are ordered to pay the costs of the second and third defendants. ______________________________________________________________________ JUDGMENT ______________________________________________________________________ DIERGAARDT AJ: Introduction [1] At issue in this ruling is a special plea to jurisdiction is raised by the second and third defendants. The first defendant according to record no longer exist, but is cited for completeness. The court is accordingly called upon to decide whether or not the said pleas, have merit. Background [2] I briefly outline the facts that give rise to this defence, as appears from the papers. I do so in order to place all the issues that arise, into proper perspective so as to conduce to a full and proper understanding of the court’s decision in the final analysis. [3] This matter originated from a dispute that occurred between the plaintiffs and the first and second defendants. [4] The said dispute is a dispute regarding the non-payment of accrued leave days due and payable to the plaintiffs in terms of their employment with the first and second defendants and in addition, in terms of section 23 of the Labour Act, 2007 (Act No. 11 of 2007). [5] During the period between 6 June 1990 and 30 June 2015, the Plaintiffs and the 1st Defendant entered into an oral/written employment agreement/contract, in respect of their employment at the hospital (Onandjokwe Intermediate Hospital) as nurses, cleaners, labourers, pharmacists and technical assistants. [6] The plaintiffs’ dispute/complain of non-payment of accrued leave days arose on 18 July 2015, when the plaintiffs’ contracts of employment with the first and second defendants was terminated. This was not a termination in the ordinary sense of the word, there was a substitution of employer. The plaintiffs transitioned into the employment of the third defendant. This was well after the Labour Act, Act No. 11 of 2007 was implemented and brought into effect. [7] Some of the Plaintiffs then referred a labour dispute/complaint with the Office of the Labour Commissioner on 12 September 2016 under the case, NROS 123-16: Hilma Nambanza and 5 others v Onandjokwe Intermediate Hospital. [8] Upon receiving the form LC 21, the Labour Commissioner then sent a notice of dismissal and / or struck from the roll the matter for the following reason: ‘8.1 lack of jurisdiction 8.2 other (specify): The case has prescribe because the dispute arose on 18 July 2015 and it was received in our office in Windhoek on 19 July 2016. Therefore, I have no jurisdiction to hear this matter.’ [9] The Labour Commissioner’s decision to strike the case, NROS 123-16; Hilma Nambanza and 5 others v Onandjokwe Intermediate Hospital was never appealed or reviewed in the Labour Court or any other court. [10] The Plaintiffs, in this matter brought an action before the this Honourable Court against the Defendants, claiming amongst others, a breach of the contractual and/or statutory obligations by the defendants by inter alia, refusing and/or failing to pay the respective plaintiffs’ accrued leave days, despite demand. The plaintiffs’ claim [11] The plaintiffs’ in this matter brought an action before this court against the defendant claiming breach of the contractual and or statutory obligations in that the defendants are failing and or refusing to pay the plaintiffs their accrued leave, alternatively damages. In the further alternative, seek for the third defendant to “register and record the plaintiffs leave day[s] accrued in respect of their employment with Onandjokwe Hospital [Lutheran Medical Services]”. The special pleas [12] The second and defendant filed special pleas to the claim in that the High Court has no jurisdiction to determine the matter, as it is governed by the Labour Act, 11 of 2007. The defendants in their heads of argument submit that the plaintiffs claim emanates from an employment contract and it is therefore a labour case which falls to be determined by the Labour Commissioner. Mr Mutorwa appeared for the third defendant in submissions advanced that it was also not sound for the plaintiffs to have their matter determined piecemeal. [13] Plaintiffs in their heads of argument submit that the High Court’s jurisdiction is not ousted by the provisions of the Labour Act, 11 of 2007. Mr Nekwaya, counsel for the Plaitiffs argues that the High Court has inherent jurisdiction to determine the relief claimed by the plaintiffs, and further that the Labour Court does not adjudicate and grant the remedy the plaintiffs are seeking. He opines that the plaintiffs can tap into the reservoir of power held by the High Court as it is a constitutional entitlement. Mr Nekwaya submitted that a statute that negates the constitutions inherent jurisdiction does not apply, I do not agree with this view. [14] There is no doubt that the plaintiffs claim arises out of an employer and employee relationship, it also appears that the employer and employee relationship between the plaintiffs and third defendant continues. The Labour Act, 11 of 2007 regulates basic conditions of employment, including accrued leave and the labour court has exclusive jurisdiction thereto in terms of s 117(1) which reads: ‘Jurisdiction of the Labour Court 117. (1) The Labour Court has exclusive jurisdiction to - (a) determine appeals from - (i) decisions of the Labour Commissioner made in terms of this Act; (ii) arbitration tribunals’ awards, in terms of section 89; and (iii) compliance orders issued in terms of section 126. (b) review - (i) arbitration tribunals’ awards in terms of this Act; and (ii) decisions of the Minister, the Permanent Secretary, the Labour Commissioner or any other body or official in terms of - (aa) this Act; or (bb) any other Act relating to labour or employment for which the Minister is responsible; (c) review, despite any other provision of any Act, any decision of any body or official provided for in terms of any other Act, if the decision concerns a matter within the scope of this Act; (d) grant a declaratory order in respect of any provision of this Act, a collective agreement, contract of employment or wage order, provided that the declaratory order is the only relief sought; (e) to grant urgent relief including an urgent interdict pending resolution of a dispute in terms of Chapter 8; (f) to grant an order to enforce an arbitration agreement; (g) determine any other matter which it is empowered to hear and determine in term of this Act; (h) make an order which the circumstances may require in order to give effect to the objects of this Act; (i) generally deal with all matters necessary or incidental to its functions under this Act concerning any labour matter, whether or not governed by the provisions of this Act, any other law or the common law.’ [15] Not only does the Labour Court have jurisdiction over the matters aforesaid, the arbitrator in terms of s 86(15) may make an order inclusive of the following: ‘(a) an interdict; (b) an order directing the performance of any act that will remedy a wrong; (c) a declaratory order; (d) an order of reinstatement of an employee; (e) an award of compensation; and (f) subject to subsection (16), an order for costs.’ [16] I am of the view that the only issue the court is called upon to decide is whether the relief sought by the applicant falls within the category of remedies where the High Court is excluded. [17] I agree with this deduction by Damaseb JP in the matter of Katjiuanjo v The Municipal Council of the Municipality of Windhoek (I 2987/2013) [2014] NAHCMD 311 (21 October 2014) that ‘For the High Court not to entertain a matter, it must be clear that the original and unlimited jurisdiction it enjoys under Article 80 of the Constitution and s 16 of the High Court Act has been excluded by the legislature in the clearest terms.’ This cannot be said to be unconstitutional, and cannot further be said the doors of the high court have been closed to a litigant when an appropriate forum such as one finds under the Labour Act exists. In Katjiuanjo supra at p 10 Damaseb JP goes on to say ‘…Where a forum other than the High Court has been given jurisdiction, the inquiry is not so much about whether that forum is the more convenient or suitable forum but whether the legislature in express language intended to exclude the jurisdiction of the High Court.’ [18] The high court in Katjiuanjo assumed jurisdiction, in aforesaid matter plaintiff sought relief for specific performance as a result of a repudiation of some terms and conditions of employment, they sought damages for underpayments and benefits. The facts of that case are distinguishable from the current matter as the plaintiffs rely on benefits conferred by section 23 of the Labour Act, 11 of 2007. Is this also the very reason that they correctly approached the Labour Commissioner in the first instance, albeit late. [19] Section 86(15) empowers the arbitrator to direct the performance of any act that will remedy any wrong. Remedy a wrong. I submit that such powers is bestowed onto the Labour court. [20] The issue that surfaces now is the fact that the plaintiffs were not satisfied with the Labour Commissioners decision and seek recourse in the High Court to enter the claim that was not entertained by the Labour Commissioner. [21] I am also of the opinion that for the reasons I have outlined previously s 117 (1) is not in conflict with s 2 of the High Court Act; a fortiori, since the Labour Court is a division of the High Court. Section 2 reads: ‘The High Court shall have jurisdiction to hear and to determine all matters which may be conferred or imposed upon it by this Act (i.e. the High Court Act) or the Namibian Constitution or any other law.’ [22] Parker J expressed himself regarding inherent jurisdiction of the High Court in the cases of Shikwetepo vs Khomas Regional Council and other (A 364/2008) [2008] NAHC (24 December 2008) he states at para 9: ‘It follows that in my opinion the “inherent” jurisdiction of the High Court to review acts of administrative bodies and administrative officials flow logically, i.e. “inherently”, from the ultra vires doctrine whose object is the control of governmental action or, indeed, inaction; but not “inherited” from Roman-Dutch law. That is the meaning and signification of the term “inherent” jurisdiction in the context of judicial review by the High Court of acts of administrative bodies and administrative officials; and that is the meaning that is apropos and relevant to the issue at hand in the present matter. But to use the term “inherent” jurisdiction at large, without reference to any particular aspect of any particular law, is, with respect, meaningless, empty and otiose.’ [23] He further interprets in para 17, section 117(1) (c) of the Labour Act ‘I pass to interpret and apply s 117 (1) (c) of the Labour Act 2007 which provides: The Labour Court has exclusive jurisdiction to – (c) review, despite any other provision of any Act, any decision of anybody or official provided for in terms of any other Act, if the decision concerns a matter within the scope of this Act; … [My emphasis]’ [24] Parker J further in para [21] continues ‘what s 117 (1) (c) has done – in essence – is that it has created a division of the High Court which is the only forum that has the jurisdiction – and it shares that jurisdiction with no other Court – to review acts of administrative bodies and administrative officials so long as such acts concern matters within the scope of the Labour Act, 2007.’ [25] In para 22 ‘The applicant is neither permitted nor entitled to go forum-shopping.’ [26] I concur with my brother that section 115 of the Labour court creates the Labour Court as a division of the High Court and vested it with the exclusive and specialised jurisdiction to deal with all matters necessary and incidental to its functions under section 117. [27] I am in agreement that according to s 117 (1) of the Labour Act 2007, the Labour Court has exclusive jurisdiction to review, despite any other provision of any Act, any decision of anybody or official provided for in terms of any other Act, if the decision concerns a matter within the scope of this Act. [28] I am of the view that the High Court cannot entertain a matter that falls under section 117. It purely falls under the jurisdiction n of the Labour Court. [29] For the conclusions, the only reasonable and inexorable final conclusion that I can make judicially is that the plaintiffs present claim is caught within the purview of the Labour Act 2007; and so item 15 (2) of the Labour Act, 2007 must most certainly apply to it. I further direct my attention to s 18 (1) of the repealed Labour Act 1992 which reads: ‘Jurisdiction and powers of Labour Court 18. (1) The Labour Court shall have exclusive jurisdiction – (a) to hear and determine – i. any appeal from any district labour court; ii. any appeal noted in terms of section 54 (4), 68 (7), 70 (6), 95 (4), 100 (2) or 114 (6);’ [30] It follows that the second and third defendants special pleas challenging the jurisdiction of this Court, sitting as the High Court, succeeds. [31] In the result, I make the following orders: 1. 2. The second and third defendants special pleas are upheld; This Court (sitting as the High Court) has no jurisdiction to determine a matter that falls in the ambit of s 117(1) (d), (g), (h), (i) and s 23 of the Labour Act 11 of 2007; 3. The plaintiffs are ordered to pay the costs of the second and third defendants. ______________ A DIERGAARDT ACTING JUDGE APPEARANCES For the Plaintiffs: Mr E Nekwaya (with him Ms A Samuel) Instructed by Samuel & Company, Ongwediva For the First Defendant: No appearance For the Second Defendant: No appearance For the Third Defendant: Mr N Mutorwa Of Government Attorneys, Windhoek