NOT
REPORTABLE

CASE
NO.: LC 16/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

NAMIBIA
AIRLINE PILOTS' ASSOCIATION
…...................................Applicant

and

AIR
NAMIBIA (PTY) LTD
…..........................................................Respondent

CORAM:
PARKER
J

Heard
on: 2011
February 21

Delivered
on: 2011 February 24

JUDGMENT

PARKER
J:
[1]
The applicant launched an application by way of Notice of Motion
filed with the Court on 18 February 2011 in which the applicant
prayed for relief on urgent basis in terms of the prayers set out in
the Notice of Motion, and relied on a founding affidavit deposed to
by Captain Tyron Mario Meyer. On 21 February 2011 by a Notice of
Opposition supported by the respondent's answering affidavit deposed
to by Theopoltina Miriam Namases the respondent moved to oppose the
application. In its answering affidavit the respondent raised a point
in
limine to
the effect that the relief sought, if granted will affect Giovanni
Scholtz, Patrick Schaubode, Heino Windhisch and Patrice Katanga ('the
pilots') and yet the pilots have not been joined and, according to
the respondent, 'the failure to join the pilots is fatal and
therefore the Court should not deal with the matter without a joinder
being affected.' On that basis the respondent prays the Court to
dismiss the application with costs.

[2]
Faced with that preliminary objection, the applicant then filed on 22
February 2011 at 07H45, that is less than two hours to the time set
down for the hearing of the application, what it calls 'Amended
Notice of Motion'. Ms. Bassingthwaighte, counsel for the applicant,
informed the Court that the same founding affidavit that had been
filed in support of the original Notice of Motion is also in support
of the 'Amended Notice of Motion'.

[3]
It is worth noting that, as I see it, the original Notice of Motion
had relied on 'the
provision of Part D of the respondent's flight operations manual
(Annexure
TM 12' to the founding affidavit)' ('the manual') as the legal basis
on which the application rests for life. But the Amended Notice of
Motion relies for life on 'the provisions
of Part D of the respondent's fight operations manual and (in
compliance with) the
provisions of the collective agreement between the parties' (Annexure
TM5' to the founding affidavit)'. (Italicized for emphasis).

[4]
It would seem realizing that it has no legal answer to the
respondent's preliminary objection respecting non-joinder of the
pilots if it relied on the manual only, the applicant then decided to
file with the Court barely two hours before the hearing of the
application, as aforesaid, an amended Notice of Motion so as for the
application to rest on the manual and the collective agreement for
life. It is, therefore, to the interpretation and application of the
manual and the collective agreement that I now turn my attention to
see if the manual and the collective agreement can sustain the
applicant's answer to the respondent's preliminary objection
concerning the non-joinder of the pilots.

[5]
The golden thread that runs through the applicant's amended Notice of
Motion is that in virtue of the manual and the collective agreement
no training (referred to in prayer 2.1 of the Notice of Motion), no
appointment (referred to in prayer 2.2), no appointment (referred to
in prayer 2.3) and no promotion, employment or training (referred to
in prayer 2.4) should take place without the approval of the
respondent's selection board in terms of the manual and the
collective agreement.

[6]
The selection board appears at para 1.2.14.1 of the manual and it
consists of six members as follows:

1. 
   Responsible
   Person Flight Operations:
   Chairman

   
   

2. 
   Chief
   Pilot: Member
   (Alternate
   Chairman)

   
   

Responsible
Person Training:
Member
(Alternate
Chairman)

3. 
   Fleet
   Training Captains (Instructors):
   Member

   
   

Fleet
Captains: Member

Manager,
Human resources:
Member

The
executive members of the applicant are not members of the board; they
have merely observer status on the board; and so they cannot take
part in the making of any decision by the board. That being the
indubitable fact, the applicant cannot speak for the board, as it
appears to be doing in these proceedings; and the applicant has not
shown that it has the authority of the board to speak for it. But,
more important, the function of the board as appears immediately
after the membership provision as set out previously is this:

The board will
convene to consider candidates for upgrade or downgrade and to select
Cadet Entry Pilots and Direct Entry Pilots.'

[7]
As Mr. Hinda, counsel for the respondent, submitted more than once,
the pilots are already employed as pilots by the respondent and what
the board may 'convene to consider' does not include in-service
training of pilots. Thus, by bringing this application and relying on
Part D of the manual in order not to cite the pilots, who are the
persons being trained and who on any pan of scale have a direct and
substantial interest in the outcome of this application, the
applicant has been flying but it cannot reach its destination, being
the pursuance of the application.

[8]
But that it not the end of matter, in a rearguard action - and that
is what the Amended Notice of Motion is, as explained previously -
the applicant now relies on the collective agreement to say that the
non-joinder of the pilots is not fatal to the application. In
considering this point, I must keep it firmly in my mental spectacle
that what we have here is a labour matter involving employees
governed by the Labour Act, 2007 (Act No. 11 of 2007) and so the
consideration of the applicant's reliance on the collective agreement
must perforce be subjected to the relevant provisions of the Labour
Act.

[9]
On this point Ms Bassingthwaighte submits as follows. The applicant
is recognized as 'the bargaining agent' in the respondent, qua
bargaining
unit, in terms of the 'Amended Recognition as Bargaining Agent
Agreement' (Annexure TM4' to the founding affidavit). The pilots are
employees represented by the applicant in the bargaining unit (i.e.
the respondent). The pilots are bound by the collective agreement.
The applicant has approached the Court to enforce the collective
agreement against the respondent. No order is sought against the
pilots. Ergo,
the
pilots are not entitled to be joined as parties to the application
and their non-joinder is not fatal. With the greatest deference to Ms
Bassingthwaighte, that submission has no merit. First, the applicant
is not recognized as 'the exclusive bargaining agent' of the
employees within the respondent within the meaning of s. 64 of the
Labour Act. In my opinion, Ms Bassingthwaighte cannot in these
proceedings claim for the applicant statutory powers and advantages
which the applicant does not have and cannot have. I am fortified in
my view by the provisions of s. 64 (1), read with s. 70 (1) (d), of
the Labour Act which in relevant parts provide:

Recognition as
exclusive bargaining agent of employees

64.
(1) A registered trade union that represents the majority of the
employees in an appropriate bargaining unit is entitled to
recognition the
exclusive bargaining agent of the employees in
that bargaining unit for the purpose of negotiating a collective
agreement on any matter of mutual interest.

….........

Legal effect of
collective agreements

70. (1) A
collective agreement binds -

(a) the parties to
the agreement;

(b) ...

(c) ...

(d)
the employees in the recognised bargaining unit, if a trade union
that is a party to the agreement has
been recognised as an exclusive bargaining agent in terms of section
64; and

(e).....

(Italicized for
emphasis)

[10]
The irrefragable fact that remains in
casu is
that the applicant's position in terms of the Labour Act is that of
recognized bargaining agent. It has not been recognized as 'the
exclusive bargaining agent' in the bargaining unit. As I have said
previously, the issues raised in the application are governed by the
Labour Act. This Court is not entitled to assume that which is outwit
the Labour Act. This Court cannot assume that since the applicant is
a bargaining agent in the respondent it follows without more that it
is an exclusive bargaining agent, too, capable of claiming what s. 64
and s. 70 of the Labour Act give to exclusive bargaining agents. That
would be amending the statute; an exercise which this Court has not
one jot or tittle of power to do. Accordingly, I find that that
applicant relies on that which does not exist to support its
contention that the pilots are not entitled to be joined as parties
in the application.

[11]
For the aforegoing reasoning and conclusions, I feel confident to
uphold the respondent's point in
limine respecting
the non-joinder; the failure to join the pilots is without a doubt
fatal for the instant application. The application cannot be
sustained.

[12]
Mr. Hinda submitted that the application should be dismissed with
costs. In my opinion, the applicant may have been misguided and
overzealous in bringing the application; but I do not think its
conduct has reached the mark of vexatiousness or frivolousness within
the meaning of s. 118 of the Labour Act to attract the Court's
discretion to award costs in favour of the respondent.

[13]
Whereupon, I make the following orders:

(1)
The application is dismissed.

(2)
There is no order as to costs.

PARKER
J

COUNSEL
ON BEHALF OF THE APPLICANT:

Adv.
N Bassingthwaighte

Instructed
by: GF
Kopplinger Legal Practitioners

COUNSEL
ON BEHALF OF THE RESPONDENT:

Adv.
G Hinda

Instructed
by: Koep
& Partners