Court dismisses application by govt… And the strike is on
Scenes of jubilation greeted the ruling of Judge Thomas Masuku yesterday evening at around 18h50 when he dismissed an application by government to interdict teachers from commencing with their planned strike. Members of Nantu (Namibia National Teachers’ Union) triumphantly toyi-toyied in the street in front of the High Court, temporarily interrupting traffic, following the court ruling.
While the judge did not give reasons for his decision, saying they will be availed on November 14, he did say it was a mammoth task.
He also said the issue of costs is reserved until the reasons for his decision are delivered.
Legal heavyweights Andrew Corbett SC, assisted by Thabang Phatela on instructions from the Attorney General, for the government, and Raymond Heathcote SC, assisted by Yulietta Campell, instructed by Metcalfe Attorneys, for Nantu, argued on behalf of their respective clients for most of yesterday, apart from an hour utilised by lawyer Khadila Amoomo who appeared on behalf of police chief Lieutenant General Sebastian Ndeitunga.
Amoomo mainly put forward the inspector general’s fears that he will not be able to handle the mass industrial action should something amiss happen.
Heathcote, on the other hand, brushed aside the fears of Ndeitunga, saying that a police presence is not needed. He said that it is not necessary for the police to look after the teachers as if they are children.
Corbett did not pull any punches though, calling the teachers selfish in putting their wellbeing above that of learners that are in the final stages of their school careers. According to him, huge issues are at stake for the country, the future of the educational system and the future of all learners in Namibia. He said it is important that these issues are given sufficient weight in balancing the interest of government and its constitutional and other obligations towards its learners, as opposed to its employees in their quest to improve their salaries by resorting to industrial action.
According to Corbett, government is not seeking to stop the teachers from exercising their constitutional right to strike, but is merely asking them to delay their action to give government time to put up measures to protect innocent third parties. These third parties, he said, include vulnerable learners from the age of seven years, to learners in their late teens, currently enrolled in schools around the country.
“Government has a duty to take the necessary steps to ensure that at a time of heightened tension nationally within the educational system, measures are in place to protect the constitutional rights of learners to education,” he argued.
Heathcote argued that the application is frivolous because government is asking the court to do something impossible, namely to stop a lawful strike. He further said that government’s assertion that irreparable harm will be done to the education system is a smokescreen, as more than 6 000 teachers that will not take part in the strike are available for contingency plans.
“This is where the buck has to stop,” he said. “The High Court has never had, and the Labour Court certainly does not have, the power to interdict lawful action.”
He continued: “So we submit, in essence, that just as this coming Sunday’s churchgoers in every town in Namibia should be left alone to gather peacefully, so the teachers must be left to strike and gather peacefully.”
According to him all the gross exaggerations contained in the founding affidavit, including the false assumption that all teachers will go on strike, and even making provision for every irreparable harm feared, do not negate the fact that the strike is sanctioned. That is so, he said, because it is an inherent constitutional right to participate in a lawful strike and the government admits it is a lawful strike.
“Once the concession that the strike is lawful, which could only have been made after proper legal advice was obtained, and after thorough consideration of the issues at hand, the interdict can simply not be issued,” Heathcote maintained.
The submissions and counter-arguments formed part of an urgent application hearing by the Office of the Prime Minister, made in the Labour Court at the Windhoek High Court, to impede the strike, scheduled to begin today, by the majority of the teaching profession.
The Prime Minister was the first applicant, the Public Service Commission the second applicant and the Minister of Education, Katrina Hanse-Himarwa the third. The respondents were Nantu, the Labour Commissioner, the Conciliator Bester Maiba and the Inspector General of the Namibian Police. The application asked the court to interdict and restrain Nantu and the teachers represented by it from embarking on a strike scheduled to commence today, pending the outcome of a dispute relating to the strike rules lodged with the Labour Commissioner. The applicants furthered asked the Labour Court to interdict and restrain Nantu and the teachers represented by it from carrying out, or performing, any activity in furtherance of the strike and to pay the costs of the application.