Labour hire appeal first 2009 Supreme Court test

JUST how far does the Constitution allow Parliament to go when the legislature wants to intervene in and regulate economic activity in Namibia?

That is the central question before the Supreme Court in the appeal on the legality of a ban on labour hire that was heard in that court on Tuesday.The appeal is the first case to be heard in the Supreme Court this year. It presents the five-Judge bench that heard arguments in the matter with a case of which the outcome could not only result in new ground being broken with the interpretation of the Constitution’s guarantee of fundamental freedoms, but that could also have an effect on employment arrangements in an ever-changing economy for years to come.Chief Justice Peter Shivute, Judge of Appeal Gerhard Maritz and Acting Judges of Appeal Johan Strydom, Simpson Mtambanengwe and Fred Chomba reserved judgement in the appeal late on Tuesday afternoon.In the case before them, labour-hire company Africa Personnel Services wants the five Judges to overturn a High Court ruling in which an attack on the constitutionality of the 2007 Labour Act’s prohibition of labour hire was dismissed on December 1 last year.APS is basing its attack against the Labour Act’s ban on labour hire on the part of the Constitution’s guarantee of fundamental freedoms that gives all persons the right to ‘practice any profession, or carry on any occupation, trade or business’.Senior counsel Dave Smuts, representing APS with Esi Schimming-Chase, told the court on Tuesday that a limitation on a constitutional right must be reasonable to withstand the scrutiny of the court. The 2007 Labour Act’s section 128, which prohibits anyone from employing any person with a view to making that person available to a third party to perform work for that third party, is not a reasonable limitation to APS’s right to carry on its chosen business, Smuts argued.He argued that a blanket prohibition of labour hire, under the threat that anyone engaging in labour hire would be committing a crime and could be sentenced to pay a fine of up to N$80 000 or be sent to jail for up to five years, is not a reasonable restriction of the rights that are protected in the Constitution’s Article 21(1)(j).The Labour Act’s provision that banned labour hire is too wide, is over-broad, and should be struck down as unconstitutional, Smuts argued.He told the court that in its current form, the ban on labour hire would for example make it a crime for a cleaning services company to provide staff to a shopping mall to keep the mall clean. It would also for instance make it a crime for an auditing firm to provide staff to a client with problems in its accounting department to perform accounting functions for the firm, Smuts said. Under some circumstances a company employing security guards would now also be committing a crime when it places its guards at another company to work there, Smuts added.But according to the argument of Matthew Chaskalson, representing Government in the appeal, labour hire is offensive because it turns labour into a commodity. Labour hire, he said, is fundamentally destructive to the dignity of persons affected by it. It is ‘the sale of human beings without regard to their dignity,’ he charged.Chaskalson argued that labour hire is a scheme to circumvent the protection that labour laws give to employees in Namibia. By using labour hire, the user company disavows its responsibilities to employees in terms of labour laws, he argued.What the case before the Supreme Court is ultimately about, is Parliament’s authority to regulate the labour market, Chaskalson told the Judges.He remarked that some may think Parliament’s ban on labour hire was wise, while others may deem it foolish, but even if a court considered it foolish, that did not make it unconstitutional. The principle of the separation of powers between the legislature, executive and judiciary requires the judiciary to give due respect to the choices that the legislature has made, Chaskalson said.The broad choice whether to regulate labour hire or ban it outright is that of the legislature, and not the courts’, he argued.Chaskalson told the court that his argument was that APS, which is not a person, did not have the legal standing to claim the court’s protection of constitutional rights. He also argued that the article of the Constitution that APS was relying on, does not protect economic activities as such, but actually protects equal access to economic activities.Even if the court were to find that the labour hire ban limited APS’s constitutional rights, such a limitation was justified and as a result not unconstitutional, Chaskalson said. The labour hire ban was set to come into operation on March 1. By an order of the High Court it was suspended last week until the Supreme Court has given its ruling in the appeal.werner@namibian.com.na