CASE NO. LC 81/2009
IN THE LABOUR COURT
In the matter between:
F C JACOBS
R H S
CHAIRPERSON OF THE
(MRS L M SHAANIKA) 3RD
THE MESSENGER OF THE
COURT, WINDHOEK 4TH
CORAM: HOFF, J
Reasons on: 2009.12.03
J:  This is an application in which the applicant
prayed for condonation of applicant’s non-compliance with the
forms and service as provided for in the Rules of the Labour Court
authorising applicant to bring this application on an urgent basis.
also prayed that a rule nisi be issued calling upon the
respondents to show cause, if any, on a date to be determined by this
Court why an order in the following terms should not be granted:
“2.1 That the judgment
delivered in favour of first and second respondents on 10th
of November 2009 by the chairperson of the district labour court of
Windhoek, Mrs L M Shaanika, be stayed pending the outcome of the
appeal noted by the applicant.
2.2 That the warrant of
execution issued out of the district labour court against the
applicant in the amount of N$160 067.35 in favour of first and second
respondents be stayed pending the finalisation of the appeal
2.3 Interdicting and
restraining the messenger of the court, Windhoek from attaching any
property or funds of the applicant at the behest of first and second
respondents pending the finalisation of the appeal proceedings.
2.4 That prayers contained in
paragraphs 2.1, 2.2, and 2.3 become operative with immediate effect
as an interim order, pending the outcome of the appeal.
3. An order that the
applicant pays the costs of this application (save for any costs of
application was opposed by the first respondent. The second
respondent (wife of first respondent) passed away during January 2009
before she could testify in the district labour court.
first respondent raised two points in limine firstly on the
grounds that there is no urgency in hearing this application and
secondly, that the applicant “seeks relief on the basis of
(an) illegality”. The first respondent, who had been
represented in the court a quo by Mr H Beukes, now appears in
applicant is represented by Mr Boesak.
issue of lack of urgency
first respondent submitted, inter alia, that applicant did not
set out (in his founding affidavit) any reasons why the application
should be heard as a matter of urgency, that applicant did not comply
with the Rule of this Court (presumably Rule 6 (5)(b) ) which
requires that an applicant shall inform the respondent that if the
application is opposed such respondent has a period of 5 days, after
service of the notice motion upon respondent, to deliver to the
registrar a notice to oppose the application (applicant brought the
application two days’ notice), and that he had been prejudiced
since he did not have adequate time to obtain legal representation.
applicant in his founding affidavit however did provide reasons in
support of which he prayed that the matter be heard as one of urgency
and referred firstly to the fact that written reasons for the ruling
by the chairperson of the district labour court was received on 13
November 2009, that on 17 November 2009 first respondent directed
fourth respondent to attach several of the assets of the applicant in
satisfaction of a warrant of execution issued by the district labour
court on 17 November 2009 in favour of first and second respondent,
and that fourth respondent had informed him that a sale in execution
would take place on 5 December 2009.
is common cause that an advertisement appeared in a daily newspaper
on 26 November 2009 in which the notice of a sale in
execution, that certain movable property of the applicant would be
sold by fourth respondent on 5 December 2009 was advertised.
served the notice of motion on Mr Beukes (first respondent’s
representative in the court a quo) on 27 November 2009 (i.e.
the next day after the advertisement had appeared in the newspaper)
setting down the application on 2 December
2009. The first respondent was clearly mistaken when he boldly
stated that no grounds for urgency had been set out by the applicant.
issue of an illegality
appears to me that this point has its roots in a point in limine
referred to as a special plea in the court a quo in which the
applicant raised the point that he was wrongly cited as the
respondent since there was no proof of an employer – employee
relationship between himself and the complainant. It was submitted
by Mr Boesak that the first and second respondents had been employed
at Otjipiro Waterberg Lodge (Pty) Ltd, a separate legal
entity, and not by the applicant. Applicant himself was
employed as a director of Otjipiro Waterberg Lodge (Pty) Ltd.
respondent now submitted that is was common cause that “applicant
employed respondents verbally”, that the agreements had not
been reduced in writing, and that the company itself could only have
been a party to the contract of employment where such contract had
been reduced to writing. First respondent then referred to the
provisions of the Companies Act 61 of 1973 (s. 204) requiring the
keeping of minutes of meetings by companies failing which such
company shall be guilty of an offence; and also referred to the
provisions of section 4 of the Labour Court Act 6 of 1992 which
requires the employer to keep record of payments, of employment
contracts, remuneration, termination, reasons for termination etc
which applicant did not keep according to first respondent. The
“illegality” appears from the answering affidavit
of the first respondent to be founded in the averment that applicant
had not complied with certain mandatory legislative prescripts
together with the fact that applicant personally employed the
view even if it is accepted that applicant has failed to comply with
certain duties prescribed by statute that such failure is irrelevant
for the purpose of this application which relates in essence to a
stay of execution of the judgment delivered by the chairperson of the
district labour court.
question whether there had or had not been an employment contract
between the applicant and respondents or between Otjipiro Waterberg
Lodge (Pty) Ltd and the respondents is a factual dispute and for the
appeal court to consider.
is thus for this reason that the second point in limine must
fail as well.
is presently a dispute between the parties as seen (supra) who
the employer of the respondents was. It would appear safe to state
that the respondents had been employed at Otjipiro Waterberg
Lodge in contradistinction of having been so employed by
Otjipiro Waterberg Lodge (Pty) Ltd from 01 October 2004 to 30 April
2005 on a salary of N$5 00.00 per month. In a letter dated 30 April
2005 the services of respondents were terminated. The respondent
subsequently instituted a claim for compensation in the district
labour court alleging that they had been unfairly dismissed. The
chairperson found that the respondent (present applicant) had not
proved on a “balance of probabilities” that there
was a fair and valid reason for terminating the complainants’
(now respondents) contracts of employment and ordered present
applicant to pay the following amounts: (i) outstanding
salaries for 7 months in respect of each complainants (i.e. a total
amount of N$70 000.00 plus interest at 20% per annum from (?) (date
was not inserted); (ii) expenses incurred on behalf
of the lodge by the complainants in the amount of N$31 579.20; (iii)
additional compensation for overdraft facility incurred by
complainants in the amount of N$58 488.15. The total amount
applicant was ordered to pay respondents was N$160 067.35.
addition the applicant was ordered to pay costs in terms of section
20 of the Labour Act 6 of 1992.
applicant denies that the amount of N$160 067.35 was owed to the
terms of Rule 6 (23)(c) of the Rules of the Labour Court Act 6 of
1992 in every affidavit in support of an urgent application the
applicant shall set forth explicitly –
circumstances which he or she avers render the matter urgent; and
(ii) the reasons why he or she could not be afforded substantial
redress at a hearing in due course.
(23)(c)(iii) is not applicable in this application.
have already referred (supra) to the reasons by the applicant
why this application should be dealt with on an urgent basis.
the requirement set out in Rule 6 (23)(c)(ii) (supra) the
applicant states that first respondent does not own any substantial
assets (movable or immovable), that first respondent is not a
Namibian citizen and may leave the country after receipt of payment,
that the prospect of successfully instituting legal proceedings in
Namibia, in the event of first respondent leaving this country is
very limited, and that nothing would prevent first respondent from
dissipating the money (N$160 067.35) as soon as he receives such
monies resulting in the inability of applicant to recover such amount
from first respondent should applicant be successful on appeal.
first respondent in his affidavit did not dispute these grounds in
his answering affidavit in the sense that he did not deal with those
grounds at all.
respondent in his submissions conceded that he is figuratively
speaking financially at the end of his tether. This concession
supports the averment by the applicant that respondent does not own
any substantial assets.
respondent though denied that he would abscond Namibia, stating that
he has been a permanent resident in Namibia since 1949.
is trite law that when a party wishes to oppose an application such a
party must set out his defence in such affidavit and must
specifically deal with those averments in the applicant’s
founding affidavit which are in dispute. The first respondent failed
to deal with a number of averments set out in applicant’s
has been held that the procedure of a rule nisi is usually
resorted to in matters of urgency and where the applicant seeks
interim relief in order to adequately protect his immediate
interests. It is a useful procedure and one to be encouraged rather
than disparaged in circumstances where the applicant can show, prima
facie, that his rights have been infringed and that he will
suffer real loss or disadvantage if he is compelled to rely solely on
the normal procedures for bringing disputes to Court by way of notice
of motion or summons.
Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport
Commission 1982 (3) SA 654 AD at 674 H – 675 A).
applicant further stated in his founding affidavit that he has a
reasonable prospect of success on appeal. In this regard with
reference to his special plea, in the court a quo, his
submission is that the chairperson erred in law and/or fact in
finding that first and second respondents were employed by himself
whilst accepting in her judgment that Otjipiro Waterberg Lodge (Pty)
Ltd employed the respondents, and that the respondents despite
objections continued in the action against him and failed to amend
their papers to reflect the proper citations in respect of both the
complainants and respondent.
further stated that the chairperson erred in law and/or fact in
finding that the court is entitled simply to rely on the evidence
tendered with regard to the case for the first respondent in support
of a claim of second respondent. It is common cause that second
respondent passed away before she could testify in the court a
quo. It was submitted that the chairperson failed to treat each
claim on its own merits.
in his founding affidavit also substantiated why the chairperson
erred in law and/or fact on the evidence presented, that respondents
had been dismissed without a valid reason and without following a
addition applicant referred to numerous errors by the chairperson
with regard to factual matters placed before her and that she also
relied on matters not placed before her in coming to her findings.
ground in support of the submission of reasonable prospects of
success on appeal (referred to in the founding affidavit) is the fact
that applicant was ordered to pay costs in terms of the provisions of
section 20 of Act 6 of 1992 in circumstances where defending the
complaint was not frivolous and vexations.
fact no reason appears from the judgment of the presiding officer why
such an order was made !
the applicant stated in his affidavit that the balance of convenience
lies in his favour.
am satisfied that the applicant has made out a case why this matter
should be heard as a matter of urgency, that applicant has shown
prima facie that he would suffer irreparable harm or prejudice
if he is not granted the relief prayed for in his notice of motion,
and has shown why he could not be afforded substantial redress at a
hearing in due course.
first respondent did not in his answering affidavit specifically deal
with the averments by the applicant in support of his submission that
there are reasonable prospects of success on appeal save to say that
the appeal has no prospects of success whatsoever and as such
applicant cannot suffer irreparable harm.
satisfied that the applicant has made out a case for the relief
prayed for in the notice of motion.
the result the following orders are made:
1. That the applicant’s non-compliance with the forms and
service as provided for in the Rules of the Labour Court is condoned
and the matter is heard as a matter of urgency.
2. That a rule nisi be issued calling upon the respondents to
show cause, if any, on 22 January 2010 why an order in the following
terms should not be granted:
2.1 That the judgment delivered in favour of first and second
respondents on 10th and 13th of November 2009
by the chairperson of the district labour court of Windhoek, Mrs L M
Shaanika, be stayed pending the outcome of the appeal noted by the
2.2 That the warrant of execution issued out of the district labour
court against the applicant in the amount of N$160 067.35 in favour
of first and second respondents be stayed pending the finalisation of
the appeal proceedings.
2.3 Interdicting and restraining the messenger of the court, Windhoek
from attaching any property or funds of the applicant at the behest
of first and second respondents pending the finalisation of the
2.4 That prayers contained in paragraphs 2.1, 2.2, and 2.3 become
operative with immediate effect as an interim order, pending the
outcome of the appeal proceedings.
the applicant pays the costs of this application.
BEHALF OF THE APPLICANT: ADV. BOESAK
by: B D BASSON INC.
BEHALF OF THE 1ST RESPONDENT: MR
by: IN PERSON