A BID by Namibia’s biggest labour-hire company, Africa Personnel Services (APS), to challenge the ban on labour hire in the new Labour Act failed in the High Court yesterday.
In his judgement, Judge Collins Parker called labour hire an unlawful activity which reduces people to personal property.
Immediately following the judgement, the company appealed.
APS, which claims to represent around two-thirds of Namibia’s labour-hire sector, last week went to court in an attempt to have the Labour Act clause on labour hire struck down as unconstitutional.
The company argued that, under the Namibian Constitution, it should be allowed to pursue any trade or business.
Parker judged, however, that this constitutional right to trade is subject to restrictions and that not all businesses or trades are entitled to constitutional protection.
‘A person who is in the business of, for instance, stock theft, the keeping of a brothel, trafficking in women or children, or slavery cannot be heard to claim a right under … the Constitution on the basis that the business or trade yielded a profit or income,’ Parker stated in his written judgement.
He contended that labour hire, like the aforementioned illegal businesses, has no legal basis in Namibian law.
‘The use of labour-hire arrangement involves splitting, so to say, what would otherwise be a contract of employment into a number of contracts for the provision of personal service between X (a person who is to supply the service) and Y (a labour-hire agency) and between Y and Z (a host or a client of Y…),’ he said.
Under Namibian law, Parker stated, there is no room for a third party in the relationship between an employer and employee.
‘It is my view that this third-party interposition creates an unacceptable situation that has no legal basis in our law on contract of employment. In my opinion, (labour hire) is the letting or hiring of persons as if they were chattels,’ he stated.
He said labour hire is not only not part of Namibia’s contract of employment law, ‘but it also smacks of the hiring of a slave by his slave-master to another person under … Roman law’.
Parker’s judgement was signed and agreed to by two fellow judges, Judge Nate Ndauendapo and Acting Judge Johan Swanepoel, who heard the case alongside him.
APS, in its application, contended that labour hire greatly contributed to the national economy, particularly in fulfilling seasonal, short-term labour requirements in sectors such as mining, fishing, agriculture, transportation and construction.
The respondent in the matter, Government, argued that the sector was dangerously exploitative in its nature and robbed workers of their dignity.
