1. An employee who unjustifiably refuses a lawful and reasonable instruction to testify about workplace misconduct may face disciplinary action, including dismissal in a sufficiently serious case. The employer must establish the employee’s ability to comply, consider the explanation offered and follow a fair process. In Namibia the Labour Act 11 of 2007 governs the fairness of any such disciplinary action.[1]

2. In Vincent v Epiroc Mining Namibia the Labour Court distinguished wilful and serious defiance of authority from imperfect compliance caused by genuine practical difficulties. The employee had explained operational obstacles to daily reporting and had submitted some reports. On those facts insubordination was not established: disagreement or incomplete compliance does not, without more, prove deliberate defiance.[2]

2.1. The instruction must also be lawful. In La Croix Sub Holdings v Indombo employees could not validly be dismissed for refusing to work overtime that the employer was not entitled to require.[3] Applied to witnesses, an employer may require truthful evidence, but it cannot insist on fabricated testimony, on management’s preferred version, or on the concealment of facts favourable to the accused employee.

3. In Kaefer Energy Projects v CCMA an employee witnessed and intervened in a workplace altercation. She confirmed her recollection and agreed to testify, then withdrew on the Friday evening before the Monday arbitration without an acceptable excuse. The South African Labour Appeal Court held that her insubordination justified dismissal.[4]

3.1. The court examined the lawfulness and reasonableness of the instruction, the employee’s ability to comply and whether there was a valid excuse. A subpoena was not a prerequisite to disciplinary action, and the employee could not simply decide that her evidence would be useless. Threats or other pressures brought to bear on a witness may, however, justify a refusal and require the employer to arrange protection.

3.2. The Labour Appeal Court overturned the Labour Court’s reliance on section 5(3) of South Africa’s Labour Relations Act. Section 5(3) prohibits giving or promising an employee or job applicant an advantage in exchange for not exercising a right under the Act or not participating in proceedings under it. The Labour Court treated that provision as implying that an employee could not be prejudiced for refusing to testify; the Labour Appeal Court rejected that reasoning. Namibia has no identical provision. Its section 6 protects employees and individuals seeking employment from prejudice for exercising specified rights, making protected disclosures or refusing unlawful requirements. Those protections do not themselves establish a general right to refuse a lawful and reasonable instruction to testify. Any discipline must still be justified by the instruction, the employee’s capacity and explanation, and a fair process [1, 4]

3.3. We are not aware of a reported Namibian judgment directly deciding a dismissal for refusing to testify against a fellow employee. In our view the Namibian courts would likely follow the core approach in Kaefer, consistently with Vincent and La Croix, subject always to the Labour Act and the facts of the particular case. The South African authorities are persuasive, not binding.[1–4]

4. An employer should investigate a claimed fear of reprisals and arrange appropriate protection before treating a refusal as misconduct. In NUMSA obo Nganezi v Dunlop the Constitutional Court overturned the 2018 Labour Appeal Court decision, emphasising reciprocal good faith, the safety of employees and proof of each employee’s individual knowledge in a violent strike.[5] Non-disclosure of strike misconduct must, however, be distinguished from a known witness’s unjustified refusal of a specific instruction to testify.

4.1. Vincent supports the distinction between genuine inability and deliberate defiance. By analogy, a witness who honestly explains the gaps in his or her recollection should not be treated as insubordinate merely because of those gaps. That does not excuse non-attendance, or a refusal to testify about what the witness does remember.[2, 4]

Self-incrimination and the accused employee

5. A witness may also face personal criminal exposure. Any claim of privilege against self-incrimination must be assessed under the law governing the particular proceeding, and advice should be obtained before an employee is disciplined for withholding potentially incriminating answers. Neither a blanket right to refuse every workplace question nor an unrestricted duty to answer should be assumed.

5.1. Hillside Aluminium v Mathuse concerned an employee’s refusal to co-operate in an investigation into his own alleged misconduct under a contractual co-operation rule. The Labour Court remitted the questions of guilt and sanction for determination; it did not finally uphold the dismissal.[6]

A fair disciplinary response in Namibia

6. Before instituting proceedings, record the instruction, its purpose and the employee’s response. Address any genuine impediment, apply the applicable disciplinary framework and afford a fair hearing. In deciding on sanction, weigh the following:

a) the seriousness and persistence of the refusal;

b) the employee’s circumstances and disciplinary record;

c) consistency with the treatment of comparable cases; and

d) whether a sanction short of dismissal would suffice.

6.1. Section 6(1)(a) to (c) of the Labour Act protects an employee against prejudice for exercising a right, making a disclosure the employee is entitled or required to make, or refusing to do something the employer may not lawfully require; section 33(2)(a) to (c) renders a dismissal for those reasons unfair. Section 33(1) requires a valid and fair reason and a fair procedure, and under section 33(4) a dismissal is presumed unfair once the employee establishes it, unless the employer proves the contrary. Section 48 extends section 33, with the necessary changes, to all other forms of disciplinary action. These safeguards apply to witnesses as to any other employee.[1]

6.2. Separately, section 86(8)(a) empowers an arbitrator to subpoena any person whose attendance will assist in resolving the dispute, and section 86(9) makes it an offence, without lawful excuse, to fail to comply with such a subpoena or to refuse to answer a question put by the arbitrator under section 86(8)(c). That statutory process is distinct from employment discipline for disobeying an employer’s instruction.[1]

6.3. Köpplinger Boltman Van Greunen advises on witness co-operation, disciplinary charges and the fair conduct of workplace and arbitration proceedings. Because the fairness of disciplinary action depends on the circumstances of each case, clients are encouraged to obtain advice on their specific circumstances before instituting disciplinary action.

Authorities

[1] Labour Act 11 of 2007 (Namibia), ss 6(1)(a)–(c), 33, 48 and 86(8)–(9).

[2] Vincent v Epiroc Mining Namibia (Pty) Ltd and Others (HC-MD-LAB-APP-AAA-2025/00108) [2026] NALCMD 36 (12 June 2026) paras 19–29.

[3] La Croix Sub Holdings (Pty) Ltd t/a Truck & Cab v Indombo NO and Others (HC-MD-LAB-APP-AAA-2018/00029) [2018] NALCMD 29 (30 October 2018) paras 5–12.

[4] Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA59/20) [2021] ZALAC 42; (2022) 43 ILJ 125 (LAC) paras 8–9 and 13–34; Labour Relations Act 66 of 1995 (South Africa), s 5(3).

[5] National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others [2019] ZACC 25; (2019) 40 ILJ 1957 (CC) paras 71–82.

[6] Hillside Aluminium (Pty) Ltd v Mathuse and Others (D178/2014) [2016] ZALCD 12; (2016) 37 ILJ 2082 (LC) paras 6–9 and 110–115.