A conglomerate of Namibian employers and their representative organisations approached the High Court with an urgent application seeking an order that would declare specific parts of regulation 19 of Proclamation 16 and regulation 12 of Proclamation 18 null and void.
The conglomerate consisting of the Namibian Employers Federation (NEF) Namibia Employers Association (NEA), Huab Safari Ranches, John Meinert Printing, FP Du Toit transport, Jet X Couriers and Skycore Aviation’s application got underway before High Court Judge Shafimana Ueitele earlier on Friday.
The employers are challenging the constitutionality of parts of the President Geingob’s amendment of the Labour Act, which prevents employers from retrenching workers while the country is under a State of Emergency.
At the outset legal representatives of the group argued that the President was ill advised on the consequences of the implementation of the regulations before it was proclaimed in the specific Government Gazette.
According to the NEF’s founding affidavit the State of Emergency regulations the impugned provisions and makes no distinction between rich and the poor employers. The NEF stated that less well off employers referred to as middle and lower working class and small business owners are not likely not survive continued restrictive measures and that most will go bankrupt.
“The suspension of the identified sections of the Labour Act contained in proclamations 16 and 18 are not necessarily for the protection of national security, public safety and the maintenance of law and order as required by Article 26 (5) of the constitution. The President, in the proclamation went much further than what is permitted by the Namibian Constitution.”
The proclamation prevents employers from dismissing workers or to force workers to take unpaid or annual leave. The provisions also prevent employers from cutting employees’ salaries.
Employees dismissed before 28 April were also required to be reinstated.
The NEF argues in their affidavit that this particular provision forces the employer to reinstate the employee while no provision is made for the employee to repay the retrenchment package received.
The NEF maintains that the criminalisation of the acts which were lawfully done in the past does not heal anybody, nor does it prevent or suppress the spread of the coronavirus.