Transnamib Limited v Poolman and Others (SA 6 of 1999) [1999] NASC 4 (17 November 1999);
CASE NO.: SA 6/99
IN THE SUPREME COURT OF NAMIBIA
In the matter between
TRANSNAMIB LIMITED
APPELLANT
And
W.F. POOLMAN AND 150 OTHERS
RESPONDENTS
CORAM: Mtambanengwe, A.J.A.; Silungwe, A.J.A, et O'Linn, A.J.A. HEARD ON: 1999/10/05 DELIVERED ON: 1999/11/17
APPEAL JUDGMENT
The Labour Court made the following order:
Both the Labour Court and High Court declined to make any order as to costs. 3
argument, this Court, per O'Linn. A1Ar raised certain legal issues in limine, which had neither been raised at all in the Labour Court nor in the Court a quo.
These issues were the following:
8 9
issue that Poolman was correct In basing the application for special leave on section 48oftheNTCAct.
The main reasons for my aforesaid view on the main issue can be briefly stated as follows:
12
As Mr. Light correctly points out in his heads of argument: See the decisions also referred to by Mr. Light:
S v Marwane, 1982(3) SA 71 7 (A) at 747 H - 748 D, per Miller, JA;
S v Van den Berer 1996(1) SACR 19 (Nm) at 38 D - ] per O'Linn, J, as he
then was;
De Beer v Commissioner for inland Revenue, 1932 CPD 443 per Sutton, J;
Levitt v Schwartz, 1938 CPD 47 at 51, per Centlivres, J;
Standard General Insurance Co Ltd v Verdun Estates (Ptv) Ltd and An.
1990(2) SA 693 (A) per Goldstone, AJA;
Road Accident Fund v Smith NO. 1999( 1) SA 92 (SCA) at 98 B - D;
Concise Oxford Dictionary, 4th edition for ordinary meaning of the phrase
"notwithstanding".
The effect of the phrase "notwithstanding the provisions of any other law to the contrary" is consequently clearly that it overrides any clause in any earlier law to the contrary. If that was not the intention, the words "subject to section 48 of the NTC Act", would have been used.
See: Devinish - Interpretation of Statutes, 1996, pp. 177-178.
For this proposition Mr. Smuts referred the Court to:
Khumalo v Director General of Cooperation and Development 1991(1) SA 158(a) AT 164 E- 165 E.
Sedeefield Ratepayers & Voters Association v Government of RSA 1989(2) SA 685(C) at 700 A - E.
See: New Modderdam Gold Mining Co v Transvaal Provincial Administration See: Government of the Republic of South Africa v Government of KwaZulu 1983(1) SA 164(A) at 200 A-201 H; Devenish at pp. 281 - 284.
1919 AD 367 at 397; and
Devenish. Interpretation of Statutes 281.
Mr. Light argued in conclusion:
alleged contravention of, or alleged failure to comply with any provision of the Labour Act. Respondents have already complied with section 24 of the Labour Act and lodged a complaint, so there is no need to make a further order in this regard. It is further submitted that regardless of the outcome of this appeal, a costs order should not be made for the reasons advanced in Respondents' heads of argument." Although Mr. Light suggests that the order of the Labour Court be set aside by this Court, he probably has in mind the first of the two orders, i.e. in so far as the Labour Court granted special leave in terms of section 48 of the NTC Act.
19 That, in my view, is the correct position. The wording of section 24 is It was clearly the intention of the Legislature, as expressed in these
clear. The material part of the section reads:
words, that approval to institute proceedings out of time in the Labour
Court shall be given by the Labour Court and that approval to lodge a
complaint out of time in a district labour court shall be given by that
court. The parties cannot, by agreement, confer on this Court
It is also clear from Mr. Smuts' submissions that he accepts that the district labour court is the correct Court of first instance for an application in terms of section 24. I agree that if a complainant wishing to lodge a complaint with the district labour court is late in terms of section 24, then the district labour court is also the exclusive Court of first instance for giving leave for the late lodging of the complaint.
Examples of decisions per incuriam or sub. silentio are: A court overlooks a statute or rule having statutory effect, knowledge or which would have led the Court to give a decision different from the one it gave; or Those in which a Court overlooks a statute affecting jurisdiction - the type of incuria referred to "which seminally affects its ratio decidendi", can vitiate the decision and even a lower court could impugn the decision on such ground. See: State v Vries 1996(2) SACR 638 (Nm) the judgment of O'Linn J, at
654 g - h, and the authorities therein cited;
Trade Fairs sc Promotions v Thomson & An 1984(4) SA 177 (WLD) at
185 D- 186 D;
Shifren &C Ors v Sentrale Kooperatiewe Graanmaatskappv Bpk 1964(2) SA
343 (0)at344F-H.
Namunjepo et Ors v Commanding Officer of the Windhoek Prison sr, Ors.
High Court, FA 7/98, unreported, where the Full Bench per O'Linn A],
pointed out that a decision vitiated by illegality or given per incuriam is not a
valid decision.
Hahlo & Kahn, the South African Legal System 1968, Juta, at 253
Kahnr SALJ Vol. LXXXIV, p 314/315
Van Zvl & Van den Heever, Inleiding tot die Regswetenskap, 2nd ed, 1982,
at 402.
S v Cassidv 1978(1) SA 687 AD at 690 B - 691 C.
In the result it is not a question of the "appeal succeeding", because the points taken by the Court mero moto, were not the grounds of appeal.
Mr. Smuts nevertheless asked for a special order as to costs. Mr. Light submitted that no order should be made in the circumstances.
In my respectful view, no order should be made as to costs in the circumstances pertaining to this appeal.
IN THE RESULT:
The proceedings and orders in both the Labour Court and High Court are set aside.
O'LINN, A.J.A
I agree.
MTAMBANENGWE, A.J.A.
agree.
SILUNGWE, A.J.A.
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COUNSEL ON BEHALF OF THE APPELLANT: Mr. D.F. Smuts
(Ellis & Partners)
COUNSEL ON BEHALF OF THE RESPONDENTS: Mr. C. Light