. . . as job losses mount
Andrew Kathindi
Attorney General, Festus Mbandeka has said government will appeal the ruling of the High Court, which prevents government from barring employers from retrenching and slashing salaries during the COVID-19 lockdown.
“After a thorough legal assessment of the judgment and taking into account its implications on the interpretation and implementation of Article 26 of the Constitution, Government will certainly appeal as a matter of principle,” Mbandeka said. This comes as job losses have continued to skyrocket following the High Court ruling last month. As part of state of emergency regulations, President Hage Geingob in April made proclamations to prohibit companies from retrenching workers or cutting their salaries during lockdown. Meanwhile, it was on this understanding that government was providing subsidies through the Social Security Commission (SSC) and the Ministry of Finance to the hardest hit industries.
The proclamations by Geingob were however successfully challenged by the Namibian Employers’ Federation (NEF), the Namibian Employers Association and other applicants. Labourt expert, Herbert Jauch, however, believed government could stand a chance with its appeal as he found the judge’s interpretation of the Presidential powers during a state of emergency very narrow. “I think this where the chance comes in. The substantive issue is, in a pandemic like this, does the President have a right to make regulations that protect livelihoods of people? On that aspect, it might well be the Supreme Court will come to a different conclusion,” he told Windhoek Observer.
Jauch argued that while the ruling concluded that the President can only make regulations if they directly link to the cause of the virus, “there is nothing the President can do about the coronavirus, and the only thing the he could have done in the situation was to protect the interests and health of people during such the pandemic.”
“The court says it’s an unconstitutional intervention to protect workers. So now you have a scenario where employers feel basically encouraged to go ahead with retrenchments and that’s the wrong signal to send in a time like this with such a crisis. The court judgment is just not helpful here.”
Jauch also noted that the appeal may, however, be too late to save current job losses due to retrenchments, while questioning the capacity of the Office of the Labour Commissioner. “We will see them go ahead at an unprecedented scale. What we must do about current retrenchments is check through the office of the Labour Commissioner to see if these retrenchments were procedural or if they were unfair. There we seem to have a problem because that office seems to lack capacity to do that effectively, but that is what we need to use in the short term to protect jobs and workers.”
Jauch added, “The court judgment is more important going forward, if we have a crisis like this again. Can the President under a state of emergency pass regulation to protect livelihoods, in that sense I think the Supreme Court judgment is still important.”
Henry Brewer of Namibia Employers’ Association, (NEA) told the Windhoek Observer that the planned government appeal will not impact the judgment delivered last month. “They can only appeal the constitutionality, as per the judgment. That doesn’t mean the judgment on the regulations will be reversed. As far as we’re concerned, it’s difficult to really say whether they will have a good prospect of success. All we can say is good luck with their attempted appeal. It does not change everything in terms of the illegality or the in validness of the regulation,” Brewer said.
He further noted that he was not yet aware as to whether the Attorney General had tabled the application for appeal, but once that is done, “We will have to consult our legal team and be guided by them. If they are successful in lodging the appeal, obviously we will have to table answering affidavits.”
