Patience Makwele
More than 500 contract workers cleaning Windhoek’s streets face continued uncertainty after the High Court overturned a ruling that would have made them permanent employees.
High Court judge Thomas Masuku on Monday set aside the arbitration award, stopping the immediate absorption of the workers into the City of Windhoek’s (CoW) permanent workforce.
Masuku in his ruling brought attention to the municipality’s financial position and use of long-term contracts.
Initially, the workers won at arbitration, where the court found that CoW’s use of fixed-term contracts constituted unfair discrimination.
Many have worked for years on rolling contracts without pension, medical aid or other benefits.
CoW challenged the ruling, saying it could not afford to implement it.
“This court was thus moved to set the award aside,” Masuku said.
He said the law aims to stop abuse of fixed-term contracts but found the situation more complex.
“The mischief sought to be corrected by the provisions of section 128C of the act was to bring to an abrupt halt the practice by some unscrupulous employers who engage employees on fixed-term contracts, which are renewed from time to time but devoid of the element of permanence,” said Masuku.
Masuku said CoW presented evidence of financial limits.
“In the instant case, the City of Windhoek placed admissible evidence before the arbitrator suggesting that its financial state does not presently allow that such a huge number of employees be treated in terms of the provisions of 128C of the act.”
The court also noted the workers’ situation, stating that evidence showed the City of Windhoek was considering viable options to alleviate the workers’ plight.
The court has given CoW nine months to develop a plan and must report to the court every three months.
Workers said the ruling is a setback after years of waiting.
“We really thought this was finally our chance to be recognised. I have been working like a permanent employee all these years but without any benefits. When this matter was back in court, we were confident we would get good news, but now it feels like we are back at the beginning again.”
They said the lack of job security affects their lives.
“You can’t plan anything. Every time your contract ends, you don’t know if it will be renewed. We have families depending on us, but we are treated like temporary people in a permanent job.”
Community activist Shaun Gariseb said the ruling is a setback and raised concerns about union representation.
“This is definitely a setback. Firstly, the union representing the cleaners failed them to a certain extent by not properly using its bargaining power or allowing stronger structures to negotiate on their behalf. Workers were signed up but then left to fend for themselves,” he said.
He questioned the legal approach taken earlier.
“I don’t understand why the union didn’t seek stronger legal measures, like an interdict for exclusive agency. That could have strengthened their position,” he said.
Gariseb said the outcome leaves uncertainty.
“It is a bad ruling for the cleaners and their labour rights. What happens if the city comes back after nine months and says they are still financially constrained? The judgement doesn’t give a definite outcome; it does not fully address the workers’ situation.”
He also raised concerns about the city’s finances, noting that there have long been questions about its financial position and that previous claims of financial stability have led workers to question the situation.
Gariseb said the workers play an important role in the city.
“Their importance became clear when they downed tools; waste management issues increased immediately. These workers must be valued and respected. They are essential to the functioning of the city.”
Labour law expert advocate Paulus Nambili said the judgement reflects a balance between worker rights and financial limits.
“Section 128C is very clear in its intention to prevent the abuse of fixed-term contracts. However, the court must also consider practical realities. In this case, the judge accepted that enforcing permanent employment immediately could have serious financial implications for the city.”
He said the nine-month period will be important.
“The real test now is whether the City of Windhoek will use this period meaningfully to design a fair and lawful employment framework. Otherwise, this matter could easily return to court.”
Another labour expert Matilda Namasiku Lishokomosi said the ruling is legally sound but does not remove workers’ concerns.
“Section 128C is designed to prevent the abuse of fixed-term contracts, but it does not operate in isolation. The court had to weigh that objective against the employer’s financial position. In this case, the judge accepted that immediate permanent employment was not feasible, but that does not invalidate the workers’ complaint; it simply postpones the remedy.”
She said financial constraints are not a long-term justification.
“Employers cannot indefinitely rely on fixed-term contracts to avoid statutory obligations. What the court has effectively allowed here is a structured transition period, not a permanent escape from compliance.”
She said failure to act could lead to further legal action.
“The requirement for the City of Windhoek to file reports every three months shows that the court expects progress. If the municipality fails to produce a credible model, it risks renewed litigation or enforcement measures. This is a compliance window, not a delay tactic.”
Questions were sent to the City of Windhoek for comment, but no response was received at the time of publication.
