Justicia Shipena
QKR Navachab Gold Mine has won a limited victory in the High Court in a case where it tried to recover more than N$1.4 million paid to former employee Petrus Nambondi under an arbitration award that was later set aside.
The court ruled that Nambondi must repay only N$149 838, plus interest.
He does not have to return the rest of the money he received during his reinstatement period.
The matter began when Nambondi was dismissed and later won an arbitration case in May 2020.
The arbitrator ordered Navachab to reinstate him with full benefits and to pay him N$149 838 for lost income.
Navachab appealed the award but did not ask the Labour Court to suspend it. This meant the award stayed valid.
In early 2021, after Nambondi moved to enforce the award, Navachab reinstated him with effect from 1 July 2020.
The mine paid his salary and benefits but told him not to report for duty. He was required to stay in Karibib during working hours and apply for leave when he needed to travel. Although he did not resume his duties, he remained under the company’s control and was considered available for work.
Navachab paid N$291 158 in February 2021. This amount included the N$149 838 compensation, interest and accumulated salary and benefits.
The mine continued paying his salary, medical aid, provident fund contributions, bonuses and other benefits until June 2023.
In total, Navachab asked the court to order repayment of N$1.45 million.
In June 2023, the Labour Court overturned the arbitration award.
Navachab then approached the High Court, saying all payments made under the award should be refunded.
The mine claimed it paid under protest and under pressure from Nambondi.
The High Court rejected most of these claims.
High Court judge Beatrix de Jager found no evidence of duress. The court said Nambondi acted within his rights when he enforced the award, because Navachab had decided not to suspend it.
The court also said a lawful enforcement process cannot be treated as coercion.
The court separated the compensation payment from the monthly salary and benefits.
It ruled that the N$149 838 compensation must be repaid because that payment depended directly on the arbitration award.
Once the award was set aside, the legal basis for that payment disappeared and Nambondi had to return it.
The court reached a different conclusion for the salary and benefits paid between July 2020 and June 2023.
It found that Nambondi was not enriched by receiving these payments.
Navachab had reinstated him and told him not to report for duty.
His services were available to the company, and he remained under its control.
The court said Nambondi cannot be penalised for not working when the mine instructed him to stay away.
Because the award was never suspended, Navachab was required by law to pay him during that entire period.
The court also found that payments made on Nambondi’s behalf, such as provident fund contributions, medical aid, and housing allowances, could not be recovered because the mine failed to show how these payments enriched him.
Navachab recovered only about 12% of the total amount it claimed.
