CASE
NO. SA 24/2003
IN THE
SUPREME COURT OF NAMIBIA
In
the matter between:
|
HEWAT
BEUKES
ANNEMARIE
WENTZEL
|
FIRST
APPELLANT
SECOND
APPELLANT
|
And
|
CIC
HOLDINGS LTD
|
RESPONDENT
|
CORAM: O’Linn,
A.J.A. Chomba, A.J.A. et Mtambanengwe, A.J.A. ,
Heard
on: 2005/04/04
Delivered
on: 2005/06/24
APPEAL JUDGMENT
O’LINN,
A.J.A.: I have divided this judgment into various sections as
follows:
I: INTRODUCTORY
REMARKS AND FACTS WHICH ARE EITHER COMMON CAUSE OR NOT SERIOUSLY
DISPUTED BY THE PARTIES.
II: THE
LEGAL ISSUES RAISED.
III: CONCLUDING
REMARKS.
I: INTRODUCTORY
REMARKS AND RELEVANT FACTS WHICH ARE EITHER COMMON CAUSE OR NOT
SERIOUSLY DISPUTED BY THE PARTIES
1. This
is an appeal by Hewat Beukes, first appellant and Annemarie Wentzel,
second appellant against CIC Holdings Ltd, respondent. In view of
several applications where the parties are applicants in one instance
and respondents in another, I will hereinafter refer to the parties
as Beukes, Wentzel and CIC Holdings to avoid some confusion. Beukes
and Wentzel each appeared without a legal practitioner in this Court
and in the High Court but Wentzel throughout merely associated
herself with the arguments of Beukes.
In
the District Labour Court Beukes was not a respondent but appeared as
the representative of Wentzel. Beukes was cited as first respondent
in the Court a quo and as first appellant before this Court.
Although the Labour Act provides in Section 19(3) that any
complainant may be represented in a District Labour Court by any
person duly authorized by the complainant, notwithstanding that
he/she is not a duly qualified and registered legal practitioner,
Beukes could and did represent Wentzel in the District Labour Court,
but could not represent Wentzel as such in the High Court and in this
Court. Both he and Wentzel thus represented themselves.
CIC
Holdings did not appear in the first District Labour Court hearing
presided over by magistrate Shaanika on 3 March 2003, but was
represented by Advocate Heathcote, instructed by Engling Stritter and
Partners, at the hearing on 22.4.2003 and subsequently in the High
Court and before us in the hearing of this appeal.
2. Wentzel
was employed by CIC Holdings from a date in 1974 until 3rd
October 2001, when she left the employment after resigning.
3. A
dispute arose between Wentzel and CIC Holdings. Wentzel held the
view that she was entitled to a much larger sum than that paid to
her, especially from the proceeds of an incentive Trust Fund set up
by CIC Holdings for the benefit of its employees as well as proceeds
from a share trust scheme.
4. Wentzel
launched proceedings before the District Labour Court for the
recovery of the amounts allegedly due to her up to and including 16th
October 2002.
4.1 On
16th of October 2002 the notice of hearing of the
complaint was served on the respondent CIC Holdings giving the date
of the intended hearing as 3rd March 2003. The notice was
duly served in terms of Rule 5 of the Rules of the District Labour
Court on the complainant Wentzel and the respondent CIC Holdings.
The notice was in accordance with the prescribed Form 3(a) of the
Rules, which inter alia informs the respondent as follows:
“You
are required to file your reply to the complaint with the clerk of
the Court and to serve a copy of your reply upon the complainant
within 14 days of service of the complaint upon you. Your reply must
state whether you intend to oppose the complaint and, if so, must
contain sufficient particulars so as to inform the complainant of
your grounds of opposition. Except with leave of the Court, on good
cause shown, a respondent who has not filed a reply, within the time
prescribed, will not be entitled to take any part in the
proceedings…..
The complaint has been
referred for settlement to a labour inspector at (Address or
telephone number) and you must cooperate with the labour inspector
and attempt to settle the dispute before the date of hearing. If you
fail to file a reply to the complaint within a period of 14 days
or fail to appear at the hearing, the Court may determine the
complaint and make such award or order as is authorized by the, Act,
notwithstanding your failure to file a reply or to appear……”
4.2 There
was a conference between the parties and the labour inspector as
provided for in Rule 6, but no record of this conference was
available at the Court hearing on 3/3/2002.
4.3 Respondent
did not give notice of opposition within 14 days and did not appear
at the hearing on 3rd March nor at any subsequent hearing
thereafter.
5. Beukes,
on behalf of Wentzel appeared at the hearing on 3.3.2002 and asked
for a default judgment for an amount of N$99 198.03 plus 20 percent
interest.
A default judgment was obtained.
The only record of the proceedings of the District Labour
Court hearing on 3/3/2002, was that attached to the Founding
Affidavit of one Nico Du Raan, the general manager of CIC Holdings,
in the application proceedings in the High Court launched on 25th
April 2003. This record was not certified as a true record of
those proceedings and contained several obvious mistakes in the
wording. Du Raan, on behalf of CIC Holdings, did not dispute any
of the statements contained in this record even though it was
obvious that this record was an abbreviated record as noted down by
the presiding chairperson and contained some obvious mistakes as
will be discussed hereinafter. The Chairperson Shaanika noted the
following on this record:
“Complainant
lodged an application for a default judgment in absentia of
respondent. He was duly served 16/10/2002 at place of business,
Corner of Isine Northern Industry. Respondent did not file a reply
nor notice of opposition…”
It is further clear from this record
that Beukes then stated:
“Respondent
didn’t turn up this hearing – I therefore ask for default
judgment in terms of claim unlawful detention. She resigned in
September 2001. Various benefits have to be paid out May 2002 but it
was not paid out.”
Then various amounts allegedly due were set out and Beukes said
according to the record:
“Total amount N$99 198.03 claim ask the Court to deduct her
this money with 20% per annum.” (The underlined word deduct’
probably meant ‘award’).
The record then
continuous:
“Court asks for somebody in the Court to go out and call a
representative from CIC Holdings …Respondent CIC Holdings called
three times @ 10:00 am but to no response.”
It is then
recorded:
“Court: Default judgment granted in favour of complainant.
Respondent in absentia occur to pay complainant an amount of
N$99 198.03 that entails share trust, ordinary shares and other
ordinary shares with 20% interest per annum thereof or else show good
case to why the order should will be made final on the
14/3/2003 @ 10:00 am.”
The said record
further stated:
“Complainant Rule 6 was held over, went back to Labour Inspector
Aron Seibeb he promised that he would file Rule 6 letter dated
21/1/2003 and marked as Exhibit “A”.”
Exhibit “A” was however not attached to the record produced by
Mr. du Raan.
It is reasonable to assume that the
underlined word “occur” in the order should read “ordered”
and the underlined word “will” in the last line of the order
should read “not”. The order is then reasonably intelligible and
would read:
“Default judgment granted in favour of applicant. Respondent in
absentia ordered to pay complainant an amount of N$99 198.03
that entails share trust, ordinary shares and other ordinary shares
with 20% interest per annum thereon or else show a good case why the
order should not be made final on the 14th/3/2003 @
10:00 am.”
(I underlined the words inserted in the record for those which were
obviously wrong).
It must be noted from the outset that
although the last part of the aforesaid default judgment was in the
form of a conditional order and not in the form of a conventional
rule nisi, that part of the order was thereinafter
continuously referred to as a “Rule nisi”.
The aforesaid record shows that Beukes at no stage asked for
a rule nisi or some other form of provisional order. He
only asked for a default judgment for the stated amounts and
interest. There is also no indication of the reason for adding a
condition to the default judgment as provided for in the rules.
There was no request by or on behalf of
respondent for condoning its default in not complying with the above
stated Rule 7. Not only did CIC Holdings not show any good cause,
but no good cause for such condonation appears from the record. The
effect of the provisional part of the aforesaid default judgment was
that CIC Holdings was now allowed to take part in the proceedings on
a purported return day of a provisional order, whereas Rule 7(3)
provides that a respondent who has not complied with subrules (1) and
(2) of Rule 7, “shall not be entitled to take part in the
proceedings of the Court.”
5.4 The aforesaid
provisional order was not served on the respondent, probably because
the respondent had failed to comply with Rules 7(1) and 7(2) and
consequently was not entitled to take any part in the proceedings of
the Court.
CIC Holdings however knew the date of hearing and was
obviously in a position to ascertain what transpired in Court on
that date. CIC Holdings nevertheless neither paid nor gave any
notice at any stage of an intention to show cause (or make a good
case) why the default judgment should not be made final on the 14th
and did not appear on the 14th March.
As a consequence the complainant also
did not appear on the 14th March 2003 or at any time
thereafter and no further hearing took place on that date.
6. On the 2nd
April 2003, Beukes, on behalf of Wentzel applied to the Clerk of the
Court for a Warrant of Execution against CIC Holdings. The Clerk of
the Court then issued such a warrant. In the warrant, the authority
for the warrant was stated to be a judgment of 3rd March
2003 and not the 14th March and the judgment debt was
stated to be N$128 960 and the total due also N$128 960. In another
column on the right hand side of the warrant it was stated that the
judgment debt obtained was N$128 960.43, the words added:
“(excluding interest still to be added to the capital amount).”
However in the
second paragraph of the right hand column it is said in the
authorization to the sheriff.
“This
is therefore to authorize and require you to raise on the property –
Cnr Iscor and Sollingen Streets, Northern Industrial Area of the said
Execution Debtor, the sum of N$128 960.43, together with your costs
of this execution and pay to the said Execution Creditors Attorney
the aforesaid sum of 128 960.43 and return to this Court what you
have done by virtue thereof.”
It appears from the above that the
words “excluding interest still to be added” is inconsistent with
the paragraph immediately following where the authorization to the
Deputy Sheriff makes no mention of interest still to be added to the
capital amount but only “your costs of the execution” to
be added.
It is obvious that the amount of N$128
960 includes 20 % interest on N$99 198 as from the date when Wentzel
left the employment of CIC Holdings, i.e. 3rd of October
2001, up to and including the date of the issue of the warrant on 2nd
April 2003, i.e. a period of approximately 18 months. This amount of
interest was then capitalized to bring the judgment debt, which
included 20% interest, to N$128 879, which is only N$81 short of the
capitalized amount as reflected in the warrant. This small
discrepancy is probably an error in calculation.
The statement in the first paragraph on
the right hand side, that the judgment debt amounted to N$128 960.43
(excluding interest still to be added to the capital amount) is then
also not inconsistent with the statement that the judgment debt is
N$128 960.43 in that the interest up to the date of the issue of the
warrant on 2nd April 2003 was already capitalized and
included in the amount of N$128 960.43 but does not include interest
from that date until actual payment. Interest for that period i.e.
from date of Warrant of Execution until final payment could obviously
not be included in the amount for which the Deputy Sheriff was
authorized to execute and could only be added at a later date when
the matter is brought to finality by full payment of the capital
amount plus interest until date of payment.
The probable reason why the warrant
refers to a judgment on the 3rd of March and not the 14th
March 2003, was because it was thought, rightly or wrongly by Beukes
as well as the clerk of the Court, that it was the judgment of the
3rd of March which became final on the 14th
March 2003 by mere operation of law, when CIC had still not shown any
cause why the judgment of the 3rd should not be made
final.
The Warrant of Execution was handed to
the Deputy Sheriff on 3 April 2003 for execution.
7. No attachment
was ever made of any property of CIC Holdings because when Mr.
Hennes, or a deputy of Mr. Hennes presented the warrant to an
official or employee of CIC Holdings, another official, who was said
to be the accountant, according to Mr. Hennes, said he will pay the
warrant.
This person was
never identified by CIC Holdings and no affidavit from such person
was filed in the High Court proceedings. The cheque by CIC Holdings
made out to the Messenger of the Court for payment of the purported
judgment debt was also never produced by any of the witnesses for CIC
Holdings in their affidavits.
The only cheque
produced was the cheque drawn on the Messenger of the Court Trust
Account in favour of Wentzel for the amount of 128 960.43.
7.1 It was not
stated in the affidavits in the High Court when Mr. Hennes first
informed CIC Holdings of the Warrant of Execution and precisely when
CIC Holdings handed over its cheque to Mr. Hennes or one of his
deputies.
In the replying affidavit by Nel, the
accountant of CIC Holdings in the High Court proceedings, this cheque
drawn on the account of the Messenger of the Court Trust Account at
Barclays National Bank, was attached.
The cheque bore an endorsement in the
top right hand corner – “stop payment”.
According to Nel, the words “stop
payment” “was only inserted subsequent to payment having been
made to the respondents, and when the Deputy Sheriff informed Bank
Windhoek about the fact that the warrant was set aside.” Nel did
not say precisely when and by whom and in which Bank this endorsement
was made and whether or not he was present when this was done.
8. Mr. Hennes in
turn gave a cheque for an amount of 128 960.43 dated 17.4.2003 to
Wentzel on or before that date drawn on the Messenger of the Court
Trust Account and made out to Wentzel.
9. Wentzel paid
that cheque into her banking account at Bank Windhoek on Saturday the
19th April 2003 and requested special clearance.
10. On Tuesday
22nd of April about 10:30 Beukes received a telephone call
from one Kutzner, who identified himself as a legal representative of
CIC Holdings. Kutzner informed him that CIC Holdings would apply in
the District Labour Court at 11:00 for the setting aside of the
Warrant of Execution.
10.1 Beukes
attended the hearing beginning at 11:00 but despite his objections,
the hearing continued until about 15:30 when judgment was given
setting aside the Warrant of Execution.
Mr. J J F Britz presided over this hearing of the District
Labour Court.
11. Although the
legal representatives of CIC Holdings indicated before the District
Labour Court hearing on 22 April 2003 that CIC Holdings would later
bring an application for the setting aside of the purported default
judgment of 3 March 2003, it never brought such an application.
12. On 25th
April 2003, at 15:30, CIC Holdings brought an ex parte
application against both Beukes and Wentzel as first and second
respondents, for a rule nisi and interim interdict for payment
of the amount of N$128 960.43, jointly and severally and a purported
interim interdict.
The interim
interdict granted ex parte was however in the form of a
mandamus, operative with immediate effect. That part read:
“2.1 That the respondents pay the amount of N$128 960.43 to the
applicant jointly and severally, the one paying, the other to be
absolved;
2.2 that the Deputy Sheriff of the District of Windhoek be authorized
to attach so much of the movables and/or immovables of the
respondents, in satisfaction of this order, but that no sale in
execution shall take place, or any moveable so attached be paid over
to the applicant, pending finalization of this application.”
12.1 This form of
interdict was rightly described by Beukes as “punitive”. It
should not have been granted ex parte.
13. The rule
nisi, issued by His Lordship Mr. Justice Mainga was confirmed by
her Lordship Justice Gibson in her judgment on 1st August
2003.
14. Beukes and
Wentzel appealed to this Court by notice of appeal dated 16th
October 2003 against the judgment of the High Court delivered on 1st
August 2003. The notice of appeal also set out the grounds of appeal
and these grounds make it clear that the appeal is against the whole
of the judgment.
II. THE GROUNDS
OF APPEAL AND THE LEGAL ISSUES RAISED
The High Court had no jurisdiction to hear the matter.
2. The learned
judge presiding in the High Court dealt with this objection as
follows:
“The
respondents have attacked the present proceedings on the grounds that
this matter is one for the Labour Court only, because by virtue of
Section 18 of the Labour Act, the Labour Court has exclusive
jurisdiction in labour disputes. Mr. Heathcote has submitted rightly
that this is true but only in certain respects – as is made clear
in Section 18 itself.
On
the question of the validity of the warrant, Mr. Heathcote argued
that the effect of non-appearance of the parties on the 14th
March 2003, was that the rule nisi granted by the District
Labour Court on 3/3/2003 lapsed.”
The learned judge
articulated her finding as follows:
“In
the instant case there was, as is common cause, no appearance by the
respondents to argue for confirmation nor did the applicant appear to
ask for the discharge of the rule. Thus the rule nisi
simply fell away. It follows therefore that any steps taken on
the strength of that lapsed rule are simply null and void, and, that
must include any monies paid in execution of such order, for there
was no judgment upon which to levy execution. The cause of action
thus become one of delict, and this Court is the right and proper
forum to pronounce on the rights and wrongs of the situation.”
3. In my
respectful view, the learned judge seriously misdirected herself in
this regard. I say so inter alia for the following reasons:
From the very outset the learned judge wrongly assumed that
the tailend of the default judgment was a “Rule Nisi” in the
conventional sense as it was used in the High Court and Courts of
the same status in South Africa, whereas the said tailend of the
order was not in the form of such a conventional Rule Nisi
and was not even referred to as a Rule Nisi by the
Chairperson who issued it. At best the phrase used was a
conditional order, whereby CIC Holdings could avoid payment
of the default judgment, provided it showed a good case on
the 14th March why the default judgment should not
become final or be made final. Consequently the Court failed from
the very beginning to distinguish the unique type of conditional
order issued by the Chairperson of the District Labour Court from
the aforesaid conventional Rule Nisi’s lawfully issued in
other Courts in accordance with the procedures of those Courts. In
the result the High Court, as well as the District Labour Court,
simplified a difficult issue by again assuming: There was no
appearance for the complainant on the return day, “thus the Rule
Nisi simply fell away”. And because the Rule Nisi fell
away, there could be no valid warrant of execution and because the
warrant of execution was invalid, there could be no valid payment by
the alleged debtor CIC Holdings to Wentzel.
None of the decisions referred to is any authority for the
proposition that once a delict is allegedly committed by an
employee in the course of a dispute with an employer, it is no
longer a labour matter and the Labour Court’s exclusive
jurisdiction falls away.
Beukes and Wentzel never accepted that the default judgment
obtained on 3/3/2003 against CIC Holdings was a nullity and thus of
no force and effect; but only that the “rule nisi” part
was a nullity. According to them the warrant of execution was valid
and the receipt of the payment made by CIC via the Messenger of the
Court, was lawful. The fact is that the labour dispute between CIC
Holdings and Wentzel remained unresolved. This dispute was that
Wentzel and her representative Beukes claimed throughout, that CIC
Holdings owed her an amount of N$99 198.03 plus interest at the rate
of 20% from the date of her leaving the employment of CIC Holdings,
being 3rd of October 2001 up to and until date of payment
and had obtained a judgment and warrant of execution and payment via
the Messenger of the Court in that regard. Furthermore, the very
issue of the judgment granted by the District Labour Court on
3.3.2003, the warrant of execution and the payment by CIC Holdings,
were still in dispute when one aspect, being the payment by CIC
Holdings and its claim of repayment of the amount, was taken to the
High Court on the basis of urgency. As appears from the judgment,
of the High Court, the whole question of the validity of the
judgments of the District Labour Court on 3 March 2003 and 22 March
2003, the validity of the warrant and the payment in regard thereto,
were disputed before the High Court. The High Court even made
findings on these issues, even though there was no appeal or review
before it and the time for such review and/or appeal to the Labour
Court had not expired.
(iv) The Labour
Court has the power inter alia, to hear appeals and reviews
from the District Labour Court in accordance with Section 18 of the
Labour Act.
Section 18(1)(d) also empowers that
Court, where urgent relief is required, to grant such urgent interim
relief until a final order is made in terms of subparagraph (b) and
(c) of Section 18(1).
Furthermore, in terms of subsection (3)
of Section 18, the Labour Court has, in the exercise of its powers
and functions, “all the powers of the High Court of Namibia under
the High Court Act of 1990 (Act 16 of 1990), as if its proceedings
were proceedings conducted in, and any order made by it were an order
of, the said High Court of Namibia.”
In the circumstances there was no legally
justifiable reason for excising one aspect of a dispute and take it
to the High Court on the ground that that aspect of the dispute
constitutes a delict. By doing so, the crux of the dispute was left
unresolved.
It was never the intention of the Labour Act to allow a
piecemeal resolution of different aspects of what essentially was
and remains a labour dispute and to allow those aspects to be
decided in different courts, namely the Labour Courts on the one
hand and the High Court on the other.
It appears that the learned judge had failed to consider the
impact of the extent of the exclusive jurisdiction of the Labour
Court, provided for in Section 18(1)(g) which reads as follows:
“The
Labour Court shall have exclusive jurisdiction generally to deal
with all matters necessary or incidental to its functions under
this Act, including any labour matter, whether or not governed
by the provisions of this Act, any other law or the common law.”
(The emphasis is mine).
The
attempt to recover the payment made by the employer CIC Holdings to
the former employee Wentzel, in payment of the amount alleged by
Wentzel to be due to her, is certainly covered by the wide wording –
“any labour matter” and is furthermore covered by the words
“incidental to its functions under the Act.”
Even if
the attempt to recover the payment on the basis that it was made
under the influence of a District Labour Court order which had lapsed
and a warrant of execution issued in pursuance thereof and even if
the acceptance and appropriation of such a payment by the employee
amounted to a delict in the common law, the common law in such a case
is again covered by the words in Section 18(1)(g) which expressly
says: “….any labour matter, whether or not
governed by the provisions of this Act, any other law or the
common law.”
It must
be kept in mind that the Labour Act, No. 6 of 1992 set up a hierarchy
of Labour Courts and other institutions to deal exclusively with
labour matters and inter alia “to promote sound labour
relations and fair employment practices.”
In this regard the following provisions
of the Labour Act and the rules are significant:
Section
20 of the Act provides that an order for costs may not be made
against any party by the Labour Court or District Labour Court unless
such Court is of the opinion that a party has, “in instituting,
opposing or continuing any such proceedings, acted frivolously and
vexatiously.”
Section
21 provides that any party to proceedings before the Labour Court
can only appeal to the Supreme Court if special leave is obtained on
petition to the Supreme Court “on any question of law,”
Rule 10(1) of the
Rules of the District Labour Court provides that:
“the hearing of a complaint shall be conducted in such manner as
the chairperson considers most suitable to the clarification of
the issues before the Court and generally to the just handling of the
proceedings and the Chairperson shall, so far as it appears
appropriate, seek to avoid formality in the proceedings and, except
in terms of the provisions of Section 110 of the Act, shall not be
bound by any law relating to the admissibility of evidence.”
Rule 10(3) provides inter alia
that any complainant may be represented by a person designated by the
Permanent Secretary, Labour or Human Resources Development, and any
complainant or respondent may be represented by his own advocate or
attorney or by any other person authorized by such complainant or
respondent, as the case may be.
The procedure as to complaints and its hearing is
simplified to achieve the objects of the Act.
4. The Learned
Judge Gibson in the instant case, relied for her judgment on several
decisions of other courts, mostly referred to by Mr. Heathcote,
counsel for CIC Holdings and dealing mostly with the procedures
relating to the issue and effect of a rule nisi.
In doing so, the
Court failed to give proper consideration to the procedure prescribed
in District Labour Courts relating to default judgments and the
procedure to set such judgment aside.
The Court relied on the following
decisions but had failed to distinguish them from what is required in
Labour Courts:
(i) “In Fisher v Fisher 1965 (4) 641 TPD the Court held that
“once a rule nisi was set aside or has already lapsed, it
was not the purpose of Rule 27 to revive it. A rule nisi is
an order of Court to which a fixed time for being legally effective
is attached. Once that period has elapsed, the rule nisi lapses.”
(My free translation from the Afrikaans)
The rule nisi
issued in Fisher v Fisher was the usual order in an action for
divorce where the rule nisi calls upon the defendant to
restore conjugal rights on or before a certain date and to show cause
on a second date why the order should not be made final. This type
of rule nisi was specifically provided for in Rule 27(1) of
the Rules of Court to suit the special circumstances of a divorce
action.
The Court also
found that Rule 27(1) of the Uniform Rules of the Supreme Court of
South Africa which provides that the Court may extend any period laid
down in the rules on good cause shown, cannot be invoked to extend
a rule nisi which has already been set aside or which has already
lapsed.
The Rule 27(1) referred to in this
case, corresponds to Rule 27(1) of Rules of the High Court of
Namibia. However Rule 27 (3) of the Namibian rules provide that the
High Court can, on good cause, condone any non-compliance with
the rules.
Rule 27(4) provides:
“After
a rule nisi has been discharged by default of appearance by
the applicant, the Court or a judge may revive the rule and direct
that the rule so revived need not be served again.”
The learned judge in Fisher v Fisher did not refer to or
consider any rule nisi with provisions such as that in the
above quoted Namibian Rule 27(3) and 27(4). Rule 27(4) was only
enacted later.
The decision in Fisher v Fisher in regard to the revival of
the rule nisi would probably have been different if the Court applied
Rule 27(3) or if Rule 27(4) was available. Fisher v Fisher is
consequently distinguishable and is no authority for the Namibian
High Court and even less so for the Namibian Labour Courts in this
regard.
But what has apparently been missed by counsel for CIC Holdings
and the Namibian High Court, was that Fisher v Fisher’s
ruling was restricted to not reviving a rule nisi which had
been discharged or had lapsed.
The learned judge in Fisher in actual fact issued a new rule
nisi, in order to make it unnecessary to institute action de
novo and in order to prevent the wasting of time and to save
costs.
Fisher’s case, in view of the new rule nisi granted, is
not any justification for the procedure followed and order made by
Chairperson Britz in the second District Labour Court.
It further follows that if Rule 27(4) applied to our District
Labour Court, then the second District Labour Court under the
chairmanship of Mr. Britz, would have had direct authority to revive
the rule nisi in that case even on the assumption that it had
lapsed.
Rule 21 of the rules of the Namibian District Labour Court
provides as follows:
“The chairperson may, upon application and on good cause shown, at
any time –
condone any
non-compliance with the rules;
extend or
abridge any period prescribed by these rules, whether before or
after the expiry of such period."
Rule 21(a) and (b) therefore corresponds to Rule 27(1), 27(2) and
27(3) of the Rules of the High Court, but do not have a specific
provision regarding a rule nisi as contained in Rule 27(4) of
the Rules of the High Court.
Nevertheless Rule 21(a) read with Rule 21(b) are wide enough to
cover an order such as that provided for specifically in the High
Court Rule 27(4). It seems that subrule (4) was enacted to leave no
doubt that such an order may be given in the High Court, in the light
of decisions in South African courts, such as Fisher v Fisher
which cast doubt on whether the Courts in South Africa had the power
to reinstate a rule nisi once it had been discharged or had
lapsed.
I have no doubt that even if the District Labour Court had the
power to issue a rule nisi, it would also have the power by
virtue of rule 21(a) and 21(b), to either revive such rule nisi
or issue a new rule, rather than merely assuming that the rule had
lapsed and that that was the end of the matter.
(ii) The decision in
Cohen Lazer & Co TPD 1922 at 142, relied on by counsel for
CIC and the High Court, is also distinguishable and of no assistance
in the present appeal. In that case – there was no judgment at
all – only a written request for a default judgment. Without
any judgment, the Clerk of the Court was induced to issue a warrant
of execution.
In the instant case, the complainant
went through all the stages set by the rules and obtained a judgment.
There is no evidence that the clerk of the Court was induced
to issue the warrant of execution as was the case in Cohen Lazar and
Company. To apply to the instant case the remarks of the judge in
that case as to how “revolting” such an act is, is clearly not
justified; neither could it justify the urgency for CIC to apply for
the warrant of execution to be set aside as null and void.
The next case relied on by the Court was Karabo &
Others v Kok & Others 1998 (4) SA 1014. This was a
decision of the Land Claims Court established in terms of the
Extension of Security of Tenure Act 62 of 1997 to give effect to the
provisions and aims of that particular Act.
It follows that
the judgment in that case dealt with the provisions of the aforesaid
Act and some provisions of the Labour Relations Act 66 of 1995.
On the 7th
January 1998, the Magistrate in Krugersdorp issued an order which
read:
“That
the Deputy Sheriff is ordered to eject respondents from a property
known as part 103 of the farm Lindley, district Krugersdorp. Should
the respondents wish to provide reasons why the order of ejectment
and costs should not be made final, they should for that purpose
appear before Court on Wednesday, 28th January 1998, at
08:30. The respondents may anticipate the return date on 12 hours
notice to the applicants.” (My free translation from the
Afrikaans)
On 26th January the 64 labourers filed a notice stating
that they would oppose the application. On the 30th
January 1998, after the return date was extended to 4th
February, the respondents filed their opposing affidavits.
On the return date, the matter was argued by both sides. The
provisions of the Tenure Act were brought to the Court's attention.
The Magistrate then struck the matter from the roll pending an action
already instituted.
The Land Claims Court was also a Court of automatic review in
cases under the Extension of Security of Tenure Act. When the matter
was brought before the Land Claims Court the Court, per Geldenhuys, J
in the course of its judgment inter alia said:
“The
applicants are correct in their view that the order which the
magistrate gave on 7th January 1998, no longer exists.
Although the wording of the order may not be as clear as desired, it
was apparently intended to be of force only until the return date,
when it would in the normal course of events either be confirmed or
discharged. If none of that happens, the order lapses.”
It was on this remark that Mr. Heathcote, counsel for CIC Holdings
and the learned judge a quo relied as some authority in the
instant case for its finding that as the rule was neither confirmed
on the return date nor discharged, it lapsed. This was the practice
in the case of proper rule nisi’s when such orders are
provided for in terms of the rules of such courts. At any event, the
order referred to by Geldenhuys J was apparently unclear and when the
matter was eventually raised before Geldenhuys J, the magistrate’s
court that initially issued the order, had already struck it from the
roll on the return date, because it did not comply with provisions of
the Tenure Act.
The Land Claims Court itself indicated that the Tenure Act was an
involved piece of Legislation. Geldenhuys, J also remarked that
there was no acceptable explanation why the order was applied for ex
parte with no notice to the labourers.
In the application for default judgment before the District Labour
Court, different rules apply to attain the aims of the Labour Act.
In the instant case Beukes, on behalf of Wentzel, applied for a
default judgment to which Wentzel was entitled, in view of the
failure of CIC Holdings to give notice of opposition, and of the
nature of their defence.
Although a sort of conditional default judgment was granted, the
respondents were no longer entitled to be heard and at any event had
not, after the issue of the alleged “rule nisi”, given any
indication that it intended showing cause on the return date why the
order of the 3rd March should not become or be made final.
In the instant case, there was no duty on the applicant to appear on
the return date and no rules requiring such appearance. In the
circumstances, it was not the default judgment as such that lapsed,
but the “rule nisi”, part, assuming for the purpose of
this argument, that the “rule nisi” part was not null and
void from the start.
In conclusion in this regard, the Karabo decision is not helpful
in the instant case.
(iv) Another
decision referred to was Shindling v Southern Union
Manufacturing, CPD 1933, at 607. In that case it was said
that the Magistrates Court, where a writ had been issued, was the
right Court to set aside an attachment. The Court held that a
litigant wishing to apply for a setting aside of an attachment must
first exhaust its remedies in that Court. Only if such remedy was
wrongly refused in such Court, could the applicant proceed to the
High Court. This case does also not assist CIC Holdings in this
case.
It is accepted
that CIC Holdings had first to approach the Court of first instance,
namely the District Labour Court if it wished to apply for the
setting aside of the judgment, or warrant of execution or an
attachment made in terms thereof. But in the instant case there was
no attachment. Instead there was payment by the debtor, CIC Holdings
and thereafter an application for setting aside the warrant and
following on that, an application to the High Court for repayment of
the amount paid and an interdict.
On the analogy of
the Shindling decision, it could rather be argued that the
latter application had also to be brought in the District Labour
Court and if unsuccessful, then an appeal or review to the Labour
Court and not to the High Court.
(v) The decision
in Williams v Landmark Properties SA and Another;
Witwatersrand Local Division, 1998 (2) SA 582, was also relied
upon but does not assist CIC Holdings. The headnote of the report
correctly sums up the case as follows:
“The applicant had brought an application ex parte for the
attachment ad confirmandum jurisdictionem of certain monies
held by the second respondent on behalf of first respondent. A rule
nisi had been granted which, inter alia, provided that the
applicant was to institute an action against the first respondent
within 30 days of the order, failing which the order would lapse and
the monies repaid to second respondent.
The applicant failed to institute the action within 30 days
of the order. The Court held, on the extended return day of
the rule nisi, that it was not empowered by Rule 27(4) of the
Uniform Rules of Court to revive a rule nisi which had lapsed
because of the fulfillment of a resolutive condition being in
casu the failure to have taken a prescribed step timeously."
The decision in
Fisher v Fisher supra was referred to because Rules 27(1) and
27(2) were interpreted in that decision. Rules 27(1) and 27(2) were
then the rules applicable to the Court of the Witwatersrand Local
Division. The decision of the Court in Fisher v Fisher to
issue a fresh rule nisi to avoid unnecessary costs was also
noted but it was pointed out that Rule 27 was in later years amended
by the addition of paragraph (4) which read:
“After
a rule nisi has been discharged by default of appearance by
the applicant, the Court or a Judge may revive the rule and
direct that the rule so revived need not be served again.”
This Rule 27(4) was later in 1990
incorporated in Rule 27(4) of the Rules of Court of the High Court of
Namibia.
According to Wunsh J, who gave the
judgment of the Court in the Williams case, “the amendment was, so
it seems, inspired by cases like Fisher v Fisher, (supra)
often sequestration and liquidation applications in which there was
no appearance for the applicant on the return day of a rule nisi…”
Wunsh J referred to the following dicta
of Fleming DJP in the case of S & U TV Services:
“Rule
27(4) discloses no intent to override or detract from the rights or
interests of a litigious opponent or of 3rd parties….”
“Neither
does it diminish the need to care for such interests. The
application of Rule 27(4) must therefore be strongly influenced
by the particular instance before Court.”
Wunsh J, then
concluded:
“Therefore,
even if Rule 27(4) empowered the Court to revive and extend a rule
nisi which has lapsed because of a resolutive condition, I
have to cautiously look at the prejudice caused to the first
respondent by the revival of the lapsed order in this case.”
In the present case, the order issued
by the District Labour Court did not call on Wentzel, the then
applicant, to do anything, but called on respondent CIC Holdings, to
show cause why the default judgment for a specified amount should not
become final.
It was thus a resolutive condition, but
one which the respondent CIC Holdings had to fulfill and not the
applicant Wentzel. The Rules of the District Labour Court only
provide in one instance for the applicant to appear and that is at
the hearing of the complaint provided for in Rule 10(4) which
provides: “If the complainant fails to appear at the hearing,
the chairperson may dismiss the complaint.” (The hearing here
referred to is the hearing of the complaint in terms of Rule 10).
The respondent on the other hand is disqualified in terms of Rule 7
from taking part in the proceedings if such respondent had failed
within the stipulated time of 14 days, to file a notice of opposition
in terms of Rule 7(1) or 7(2) unless the Chairperson had on good
cause shown, given leave to the respondent to further participate in
the proceedings. However the respondent retains the remedy provided
by Rule 22, for the rescission of any judgment or order given by
default.
The application for this remedy must
however be lodged within 14 days after such judgment or order has
come to his or her knowledge. The order given on 3 March 2002,
was such a “judgment or order”.
In the instant case, the respondent at
no stage gave any notice of any intention to show cause, did not
appear at the hearing or show cause on the return day of the
so-called "rule nisi", why the default judgment against it
should not be made final.
5. The Rules of
the District Labour Court have no provision for a rule nisi.
Even if the rules of the Magistrates Court could be invoked, those
rules only provide for a rule nisi in the case of an interdict
pendente lite obtained ex parte in terms of Rules 56
and 57 and in the form as provided in the prescribed Form No. 16.
Rule 56 provides for arrest tamquam
suspectus de fuga, interdicts, attachments to secure claims and
mandamenten van spolie read with Section 30 and 31 of the
Magistrates Court Act 32 of 1944 as amended.
Rule 57 provides for attachment to
found or confirm jurisdiction, read with Section 30 (bis) of
the Magistrate’s Court Act.
At no stage was a rule nisi
asked for or given in the District Labour Court, purporting to be in
terms of the Magistrate’s Court Act and its rules aforesaid.
In Courts of law where rule nisi’s
are issued in accordance with the governing Act and rules, the form
of rule nisi issued in the instant case by the District Labour
Court on 3rd March 2003, is not allowed and is not used.
A default judgment for a money debt is also never made
subject to a rule nisi. Rule 22 of the Rules of the District
Labour Court specially provides for applying subsequently for the
setting aside of default judgments. Consequently there is no need
and no justification whatever for a rule nisi to be attached
to the default judgment for a money debt.
7. Mr. Heathcote
also referred in his argument before the High Court to the case of
Clissold v Cratchley and An., [1910] KB 244, but the
Honourable Gibson J did not refer to it or rely on it. This
important decision does not in the least support the case of CIC
Holdings but rather tends to affirm an argument by Beukes that the
warrant of execution had become a nullity when CIC Holdings paid the
judgment debt by cheque.
The Kings Bench Division in this case
held in effect that when a judgment debt is paid, a writ of execution
issued thereafter is a nullity as the judgment upon which it would
otherwise have been premised is fully satisfied. In these
circumstances, the application to the District Labour Court to set
aside the warrant, was unjustified and should have been dealt with by
the High Court as a nullity.
This point was also made by Mr. Beukes.
The point was strengthened by the fact that the Messenger of the
Court had followed up the receipt of the CIC cheque by paying it into
the Messenger of the Court Trust account and had in turn handed over
this Trust Account cheque to Wentzel in payment of the debt.
The warrant of execution had thus been
overtaken by subsequent events. That being so there was not only no
urgency for setting aside the warrant of execution, but the whole
basis for the application had fallen away.
8. The
proceedings of the District Labour Court on 22 April 2003 under
Chairmanship of Mr. Britz relied on by CIC Holdings and the High
Court, was also gravely irregular in other respects.
8.1 The
application for setting aside was not brought on written notice, but
by telephone on half an hours notice. It was not accompanied by any
supporting affidavit and contained no indication of the order
requested. There is no provision in the Rules of District Labour
Court for an application of this nature and in this form. Rule 20
however provides:
“Unless
otherwise provided in these rules, an application in terms of
these rules to the Court for an order affecting any person, shall be
by delivery of a notice (form 15) in which it shall be stated briefly
the terms of the order applied for and the date when the application
will be made to the Court, which date shall be not less than 5 days
after delivery to such person of such notice.”
Although Rule 21 allows the Chairperson
to condone any non-compliance with the Rules on good cause shown,
there was no reason whatever why at least a notice setting out the
order sought could not and should not have been served, even if there
was urgency.
8.2 At any event,
even if there was urgency, the urgency must not be self-induced, i.e.
come about by the negligence and fault of the party who comes to
Court on an urgent basis. In this matter the order relied on for the
warrant was already made on the 3rd March 2003. If CIC
Holdings did not know about this development, it was clearly due to
its own reckless or negligent conduct or that of its legal
representatives.
The warrant of execution was already
issued on the 2nd April 2003 and must have come to the
notice of CIC Holdings on or before the 16th April 2003,
when CIC Holdings handed its cheque for the purported judgment debt
to Mr. Hennes, the Deputy Sheriff or one of his deputies.
Mr. Hennes, called by CIC Holdings as
their witness in the District Court proceedings, admitted under
cross-examination that he had served the warrant on CIC Holdings
already on 4th April 2003, together with a copy of the
judgment of the 3rd March 2003. The Deputy Sheriff did
not then or at any time thereafter, attach any property of CIC
Holdings, in pursuance of the warrant.
Asked by Beukes in cross-examination
what happened the day after the 4th April, Hennes
testified:
“I
send out my officer to execute the warrant. You must have the right
prospective of the whole thing. If you take a warrant of execution
it is not a criminal case. I take it to the person to inform him.
Alright, I’ve got a warrant of execution against you. Are you
going to pay or are you not going to pay? I myself did not deal with
this Warrant of Execution – it was dealt by one of my deputies. My
deputy went on Tuesday the 8th went there and a certain
Mr. du Raan was not present. He has to show us – he has to point
out executable items and he was not present he could only be back on
last Tuesday. And last Tuesday, Mr. Engelbrecht then went to CIC and
Mr. du Raan was present and said no – wait this whole story has to
be something about. And I believe from then on pressure was put onto
tem and we have approached again on Wednesday morning. On Wednesday
morning we went there and a certain Mr., I’m not sure what his name
is – he was the accountant said 'we will pay the warrant but can it
be kept because they are going to file an appeal.' My words were to
him, ‘…Right if you present that cheque to me, I have to put it
into my trust account nowhere – there’s no other way about it.
Because if I go with the warrant of execution that cheque must be
made out to the Messenger of the Court. And I can have it in my
trust account but if you want me to, if I have to keep it in my trust
account, I must have written authority that you are appealing and
that must be stamped by the Court. Then only can I keep an amount in
my trust account. That is the procedure.’”
It is clear from
the above testimony, of its own witness, that CIC Holdings had ample
opportunity to take whatever legal action it was entitled to, but on
proper notice and in proper form so that the opposing party is not
prejudiced or so that such prejudice is reduced as far as reasonably
possible in the circumstances.
8.3 What now
remained for CIC Holdings was to apply for an interdict pendente
lite, which could even have been obtained ex parte, as is
provided in Rule 56 and Form 16 of the Rules of the Magistrate’s
Court, which would be applicable also in the District Labour Court by
virtue of its Rule 27(2). However it will be noted that even an ex
parte application in such a case would have had to be “upon
affidavit, stating shortly the facts upon which the application is
made and the nature of the order applied for.”
Such application for an interdict
pendente lite would have had to cite not only Wentzel as the
first respondent, but the Messenger of the Court/Deputy Sheriff as
second respondent, in view of his/her interest in the cheque, drawn
on the Messenger’s trust account, which the Messenger/Deputy
Sheriff had in turn given to Wentzel.
8.4 Notwithstanding
the objection made by Beukes in limine and the objections in
the course of the leading of evidence by Mr. Heathcote on behalf of
CIC Holdings, Beukes was placed in the position where he had no
opportunity to prepare on the law applicable, for cross-examining and
meeting the viva voce evidence produced by CIC Holdings and
for considering and possibly launching a counter application and a
counterclaim.
8.5 Mr. Heathcote
called Mr. Kutzner, the attorney for applicant and Mr. Hennes the
Deputy Sheriff/Clerk of the Court. It was not made clear in the
evidence what the correct designation of Mr. Hennes was. These
witnesses were cross-examined by Mr. Beukes.
During the cross-examination of Hennes
it was made clear by Beukes that the cheque by the Messenger issued
to Wentzel, had already been paid into her bank for collection. The
issue was then raised of whether Hennes had ordered the cheque to be
stopped and he denied it. The Court adjourned to 14:00. At the
resumption at 2pm Beukes asked for an inspection at the Bank to
establish who ordered payment of the cheque to be stopped. After
resumption of the proceedings at 2pm, he told the Court that the Bank
had informed him that it had instructions not to pay out the cheque.
He argued that it is important to establish who had stopped payment
of the cheque, because if applicant CIC Holdings had done so, it was
a unilateral action pre-empting the remedy it was asking in Court.
Beukes now also took the point that the Deputy Sheriff who had issued
the cheque was not cited as respondent. He said that:
“The
case law says that the person who perpetrated the action that is the
Deputy Sheriff issuing the cheque has not been cited. To whom does
the Court want to give an order? I do not understand? Is it to …”
The Chairperson then overruled the
objection against the non-citing of the Deputy Sheriff on the ground
that he was only dealing with an application to set aside the
warrant. The application for the inspection at the Bank was also
refused. As to the point that someone had pre-empted the Courts
function to decide on the remedy asked for, the following exchange
took place between him and the Court:
“Until
this morning it is trite law and I can bring documents if I have time
to do so. Case law that says (intervention)
MR
CHAIRMAN: The whole time now since 12:30 until now?
MR.
BEUKES: My Lord is that time? Is that time to run into the Bank
and try to find a cheque that had been stopped? And then I must
still bring documents?
MR CHAIRMAN: No I am referring to the case law…”
8.6 Beukes decided
to call no witnesses. In this regard he said:
“I
would have brought evidence but its clear my evidence is of no
consequence it is pointless that I do bring evidence before this
Court.”
8.7 Mr. Heathcote
then addressed the Court and in the course thereof also referred to
several decided cases. Mr. Beukes again referred to the failure to
bring the application in the proper way and said he and Wentzel were
disadvantaged as a result thereof. He pointed out that CIC Holdings
and their lawyers had notice of the warrant and all relevant facts
already on the 14th and that there was no justification
for not complying with the Rules on the ground of alleged urgency.
Beukes also pointed out:
“But
then what the Court normally does in cases like that is to issue a
rule nisi and show on the return date but not even that…”
(He was referring here to what CIC Holdings should have asked for
before the District Labour Court on the 22nd of April 2003
and what that Court could do.
8.8 In the course
of the Chairperson’s judgment he committed an irregularity by
relating as part of his judgment, that he had allegedly called in his
clerk who’s signature appeared on the warrant of execution. He
then said:
“And
I called her in and we did some effort to try and stop this possible
use to sign and issue a warrant of execution for whatever amount any
person would like to get. But then I was informed that it was in
fact not issued but completed by the Clerk of the District Labour
Court it was just brought from somewhere it was either brought from
the Labour Inspectors or whatever and they only stamp it and sign it
without even checking it or comparing it with a possible order. So
that is luckily for once not the mistake of the Clerk of the District
Labour Court as far as the amount is concerned. As far as issuing a
warrant of execution against property without even comparing indeed
it is a slip up from the Clerk of the District Labour Court…”
The clerk of the
Court was not called as a witness. What the Chairperson related as
their conversation was at any event confusing. One could not
distinguish what the clerk allegedly explained and what the learned
chairperson commented and what was an allegation of fact and what
mere conjecture.
8.9 When dealing
with the interest the chairperson had this to say:
“Secondly
as far as the judgment debt is concerned I think it is clear enough
that although the attempt to a Court order or an attempt to a default
judgment on the 3rd of March made note of interest to be
added from whenever I don’t know. But even from p4 of the bundle
handed in excluding interest still to be added to the capital amount.
I don’t think that even if the Court order that interest of 20%
should run from 20th September 1999 until the 3rd
of March 2003. That that interest became part of the capital amount.
The judgment debt remains 99 198 and not a cent more, a cent less.”
This is
notwithstanding the following explanation by Beukes in the course of
argument shortly before judgment by the Chairperson the Honourable
Britz:
“What
I have asked in the judgment it is said she resigned in September. I
set out various amounts which were payable by September at that date.
And I said that I asked for 20% to be awarded as interest. Now
obviously when interest decrease and the time of judgment it
becomes part of the capital amount. And this is an argument that can
go for payment of pension etc. I do not have the legal documents
here in front of me but interest running before judgment becomes
part/of the capital amount.”
The learned chairperson ignored this
explanation and did not care to take issue with it. The fact of the
matter was that if complainant was entitled to the “capital”
amount of N$99 198.03, she would also have been entitled to interest
on that amount at the rate of 20% per annum from date that she left
the employment of CIC Holdings to date of payment.
The interest for the period from the
date of leaving the employment and the date of the warrant of
execution was 18 months and one day. This interest could therefore
be capitalized and was capitalized bringing the amount of the
judgment debt to the amount stated in the warrant as the capital
amount. The amount still due for interest from the date of the
warrant to date of payment, could not be capitalized at the date of
the warrant and not included. Consequently the words in the right
hand column in the warrant giving the judgment debt as N$128 960.43
followed by “(excluding interest still to be added). (See also
supra, Section I, point 5.6). It was thus a misdirection by the
learned chairperson when he held that: “The judgment debt remains
N$99 198.03 and not a cent more or a cent less.
8.10 The said
Chairperson further misdirected himself when he failed, suo moto,
to correct the patent error in the judgment in not specifying the
date from which the interest would run to the date of payment. If
the facts as to these dates were unclear, he should have ensured that
he obtained the full record, certified as correct, of the District
Labour Court hearing on the 3rd March 2002 and/or had
these dates clarified in viva voce evidence. As it stood, the
chairman on the 14th March had the uncontested statement
in argument by Beukes as to what he had asked for on 3/3/2002 and
from which date the interest had to run. The date up to which
interest had to run, as being the date of payment, follows as a legal
principle which is trite law.
There can be no
question about his power to correct such a patent error. I refer
here to Section 36(c) of the Magistrate’s Court Act which is made
applicable to the District Labour Court by Section 19(4) of the
Labour Act 6 of 1992.
Section 36 as a whole reads as follows:
“What
judgments may be rescinded.
The
Court may upon application by any person affected thereby, or, in
cases falling under (c), suo moto –
(a) rescind or vary any judgment granted by it in the absence of the
person against whom that judgment was granted;
(b) rescind or vary any judgment granted by it which was void ab
origine or was obtained by fraud or by mistake common to the
parties;
(c) correct patent errors in any judgment in respect of which no
appeal is pending;
(d) rescind or vary any judgment in respect of which no appeal lies…”
8.11 The learned
Chairperson misdirected himself by not correcting or setting aside
the “rule nisi” part of the order of 3/3/2002, which part
Beukes had submitted was null and void.
The learned chairperson on 14/3/2002
uttered further confusing arguments such as:
“…Even
if it was (a default judgment) it still says nothing. Because I
can’t make sense out of that attached a further rule nisi or
a judgment or whatever it is supposed to be. Even if I am wrong
that it was in fact a proper judgment still the Warrant of Execution
is (indistinct). Therefore the Warrant of Execution issued on the
3rd of April is then hereby cancelled…”
Earlier in the judgment the learned Chairperson at least gave a
more intelligible reason but still confusing. He referred to the
words at the end of the judgment reading:
“And it would be made final”. "In other words it would have
been made final on the 14th March. It was not final on
the 3rd of March. Short and sweet as that. On the 3rd
March nothing happened and this whole rule nisi lapsed. If it
didn’t lapsed it is still a rule nisi until if you ignore
the 14th March.”
If the learned Chairperson could not “make sense out of that
attached a further rule nisi,” he should have realized, that
this part of the default judgment, particularly also in the light of
the fact that there was no authority or justification for the
attachment of such a clause to a default judgment in the District
Labour Court or Magistrate’s Court, was in fact either a “patent”
mistake or an order which is “ab origine void” and should
have struck it down as such.
If Mr. Beukes’s objection and argument in regard to this part
being a nullity was not sufficient, the failure of the complainant to
bring an application on notice to set aside the rule nisi part,
should have been condoned and the aforesaid “rule nisi” part
of the order set aside as “ab origine void” and the
application for setting aside of the warrant of execution refused.
8.12 The learned
Chairperson further misdirected himself when dealing with whether or
not he should do anything about the rule nisi and argued:
“I actually can’t make any order as far as the rule nisi is
concerned because if I make an order that the rule nisi be revived it
will be expected from me if the applicant again fails to appear
that I must make lets call it an order of the 3rd of
March to be final. I can’t. So there is no order as far as
the rule nisi is concerned.”
The reasoning here is absurd and
unintelligible and also a refusal to act in the letter and spirit of
the Labour Act. The applicant before him was CIC Holdings. Surely
if CIC Holdings once again failed to appear at a revived return date,
the order of the 3rd of March should have become final on
such revived return date (again assuming the rule nisi was
proper, for the sake of argument).
Whether the application by the CIC
Holdings to the District Labour Court and the procedure followed was
flawed or not and whether or not the order for cancellation of the
warrant should not at least have been accompanied by a further order
reviving the “rule nisi” or extending the return date, was
not properly considered.
9. The first
impression when reading the judgment of Gibson J in the High Court is
that the learned judge regarded the judgment of District Labour Court
of 22 April 2003 as a sort of fait accompli, as a result of which the
High Court was entitled to assume jurisdiction. On the other hand
the High Court did express itself on the correctness or otherwise of
the judgment of the District Labour Court, notwithstanding that it
was not sitting as a Court of Appeal or Review and in fact had no
jurisdiction to do so.
In this regard the Court stated:
“There
is enough evidence on balance on the papers to enable the Court to
assess the validity or lack of it of the warrant of execution and to
decide whether monies paid out on the strength of the irregular
warrant were legally and validly paid.”
The learned judge
further stated in another part of the judgment:
“Clearly therefore, the District Labour Court had the power to set
aside the warrant.”
This much is conceded as far as it goes. The learned judge then
however proceeded:
“Once that was done the matter before the Labour Court was at
an end unless one or other side appealed, or otherwise had the
matter reviewed.” (My emphasis added)
9.1 I have already
indicated supra that the Labour Court continued to retain exclusive
jurisdiction by virtue of Section 18(1)(g) of the Labour Act and need
not repeat that. However, the matter at the time of the launching of
the urgent application in the High Court on the 25th April
2002, was also not at an end, because the time for a review
and appeal to the Labour Court had not expired when the High Court
assumed jurisdiction. As a matter of fact, Wentzel had scarcely
emerged from the proceedings of the District Labour Court also
brought as a matter of urgency on 22 April 2002, when she was
confronted with an application in the High Court, also brought on an
alleged urgent basis, but with the difference that her legal
representative in the District Labour Court, was now cited as a first
respondent and could no longer act as her representative. The High
Court saw the application before it as a means to bring the mater to
finality as a matter of urgency. The urgency of giving CIC
Holdings its remedy was stressed. This is apparent from the
following reasoning by the Court.
“There
is enough evidence on balance on the papers to enable the Court to
assess the validity or lack of it of the warrant of execution and to
decide whether the monies paid out on the strength of the irregular
warrant were legally and validly paid.”
The application in the High Court at the stage when it was brought
thus pre-empted the right of Wentzel to take the decision of 27 April
2003 in the District Labour Court on appeal or review to the Labour
Court and usurped the function of the Labour Court.
Such appeal or review by Wentzel, would have meant that the
judgment of the District Labour Court setting aside the warrant of
execution, could be overruled. That would then mean that the payment
by CIC Holdings to Wentzel allegedly in satisfaction of the warrant
of execution, could not be recovered because the warrant which was
allegedly null and void, was in fact valid. By pre-empting a review
or appeal to the Labour Court, the jurisdiction of the High Court
would then stand in opposition to that of the Labour Court and a
chaotic position would ensue.
Surely such a situation cannot be tolerated. That is another
reason why Section 18(1)(g) of the Labour Act gave exclusive
jurisdiction to the Labour Court in what were essentially labour
disputes.
9.2 As I
understand the attitude of CIC Holdings and their legal
representatives and which was upheld in the High Court judgment, a
delict was committed by Beukes and Wentzel in obtaining a
warrant of execution in some underhand manner without a
judgment to support it and then obtained payment from CIC Holdings,
via a cheque of the Deputy Sheriff, and then appropriated the
proceeds of the cheque also in such fraudulent and underhand manner.
9.3 Although I
have shown that such allegations, even if true, would still not take
the matter out of the jurisdiction of the Labour Court, I find it
necessary to deal with the grounds of these allegations as put
forward by CIC Holdings and their legal representatives and
articulated and accepted by the High Court. The learned judge said:
“On the
3/4/2003 a warrant of execution for an amount of N$128 960.43 was
issued by the clerk of the Court under obscure circumstances.”
In another part of the judgment she again referred to the
obtaining of the warrant and commented:
“Given
the circumstances of this case, especially the dubious
circumstances in which the warrant came into existence…”
I have extensively dealt supra in Section I, point 6 with the
obtaining of the warrant and the reasons for the action of Wentzel
and Beukes in that regard. I also dealt fully with the legality and
correctness of the proceedings in the District Labour Court on the
3rd of March and 22 April 2003.
From the above it is clear that Wentzel was entitled to get a
default judgment, without any qualification or condition. Wentzel
and Beukes bona fide believed that Wentzel was entitled to
payment from CIC Holdings and took the matter to the appropriate
tribunal. Wentzel and Beukes again clearly believed that the burden
in the “rule nisi” part to show cause on the 14th
of March 2002 was on the CIC Holdings and it was not necessary for
them to appear on the return day. They similarly believed that
Wentzel was entitled to obtain a warrant of execution after the 14th
of March 2002 and did obtain such warrant. The meaning of the
wording on the warrant of execution, the capitalization of the 20%
interest has been explained in paragraph 6 of Section I of this
judgment. Even if the order in the judgment of 3rd March
2002 did not stipulate the date from which the interest had to run,
the fact is that if Wentzel was entitled to the capital sum of 99
198.03, she would also have been entitled to the interest to run from
the 3rd of October 2001 until date of payment.
Even if the judgment as it appears in the uncertified record
produced by Nel, the witness for CIC Holdings, was defective in not
stipulating the date from which the interest had to run, there was no
evidence whatever that the warrant was obtained “under obscure
circumstances” or “dubious circumstances”. The
clerk of the Court was never called upon to testify and to explain
why he issued the warrant as he did and Beukes in his affidavit
explained his state of mind and there was nothing to controvert that.
"When
the warrant was served on the applicant by the Deputy Sheriff there
was panic."
The applicant, through one of its
representatives issued a cheque for the full sum in favour of second
respondent. Again there was no evidence to substantiate this
allegation. The person who issued the CIC cheque was not identified
by CIC Holdings and no statement was filed by that person to explain
the circumstances under which the cheque was drawn and handed over to
the Deputy Sheriff.
Hennes, the Deputy Sheriff/Messenger of
the Court did testify on behalf of CIC Holdings at the second
District Court hearing on the 22 April 2003 and divulged that he had
already informed CIC Holdings about the warrant on the 4th
April 2003 and served it by the 8th April and CIC handed
him a cheque in payment by the 17th April 2003.
CIC Holdings was also represented
throughout by instructing legal counsel and senior legal counsel in
the District Labour Court on 22 April 2003 and in the High Court as
from the 25th April 2003. There was no reason for “panic”
on the side of CIC Holdings. I must conclude in the circumstances
that the learned judge made a wrong assumption and thereby
misdirected herself.
“The
facts of this case are of real concern. That a warrant of execution
should have been issued
without any order of the Court to back it, be served by the Deputy
Sheriff on the applicant is bad enough, the respondents actions, for
by then they were acting together, in going to the bank, even as
proceedings to set aside the warrant were in progress, and to secure
the clearance of the cheque before returning to Court to continue the
proceeding is an affront to standards of decency in any society, if
not dishonest.”
This whole
paragraph of accusations and severe criticism of Beukes and Wentzel,
is not built on a solid foundation and is not justified. I say so
for the following reasons:
(a) I have already
dealt with, supra, obtaining of the warrant and its service on CIC
Holdings and found the actions of Beukes and Wentzel understandable
and reasonable in the circumstances.
(b) Although they
were acting together, the complainant Wentzel was acting on the
advice of Beukes. Even if criticism of deception could be leveled at
Beukes in this regard, that criticism could not be applied to
Wentzel. I also sincerely doubt whether there was any evidence for
such a criticism against Beukes.
(c) There was no
evidence that Beukes and Wentzel “deceptively” went to the Bank
during the adjournment. There was no evidence whatever that either
Beukes or Wentzel or both of them went to the Bank “deceptively”
and/or “to secure the clearance of the cheque.” (The
Court even failed to indicate which cheque it had in mind, was it the
cheque drawn by CIC Holdings and issued to the Messenger of the Court
or the cheque of the Messenger to Wentzel). What was probably relied
on by the Court, and misunderstood by it, was the affidavit of the
witness Gille, who said in her affidavit in support of the case of
CIC Holdings:
“The request for clearance voucher for the cheque in the amount of
N$128 960 was received by First National Bank from Bank
Windhoek on 22 April 2003. The cheque was signed by the Messenger of
the Court and made out to the second respondent herein (one
Wentzel)”.
Gille did not say that Beukes and/or
Wentzel came to the Bank to ensure the clearance, and also not that
this happened during the Court adjournment, but only that this
request was from “Boland Bank”.
The uncontested
version of Beukes and Wentzel was that Wentzel asked her Bank for
urgent clearance, when she paid in her cheque to her Bank, Boland
Bank on the 19th April 2003. Although Gille testified
that the “clearance process” was completed at approximately 14:03
on 22 April 2003. What was meant by “clearance process” was also
not explained. It probably merely meant that a “clearance voucher”
for payment of the cheque was given by First National Bank to Bank
Windhoek. It does not say when the money was actually paid to
Wentzel.
The Court completely
misconstrued certain paragraphs of the affidavit by Beukes in
support of her finding that
“The extent of the deception is spelt out by first respondent in
his supplementary affidavit, where he says: ‘On the 22 April
2003 at 11:00 I raised objection that I was instructed by second
respondent that the first National Bank would not clear the cheque,
because it was stopped by the Deputy Sheriff and that the applicant
was merely attempting to abuse and use the Court to legitimize and
legalise this unlawful action;
8. Under cross-examination I asked the Deputy Sheriff whether he had
stopped the cheque. He denied that he had done so;
9. Over the lunch hour I went to the said Bank when an
official refused to respond to my query whether the cheque had been
stopped.”
The
first respondent points to the endorsed ‘stop payment’ on the
cheque which is an exhibit in the papers. The applicant explains
that this only occurred after the warrant was set aside. My bold
view is that the probabilities support the applicant's version. In
any event what first respondent says above is in conflict with his
own words, a few paragraphs down in his own affidavit. At paragraph
12 of his supplementary affidavit he reports,
She,
(meaning second respondent) informed me that she was informed by
the Bank that the Deputy Sheriff had phoned over the lunch hour
to the First National Bank to clear the cheque.’”
There is no
conflict as alleged by the learned judge. The learned judge did not
say in which affidavit the “applicants version” is contained and
did not give any reason why “her bold view is that probabilities
support the applicants version” regarding the time and stage
when the endorsement “stop payment” was placed on the Messenger
of the Court cheque made out to Wentzel. The said paid cheque was
paid into her account on the 19th April 2003 and urgent
clearance requested but not completed until 22/4/2003. When
considering the evidence of Hennes that the representative of CIC
Holdings had asked him not to pay out the CIC cheque immediately but
to hold it in reserve, it was quite possible that the “stop
payment” endorsement on the Messenger of the Court cheque could
have been placed on the cheque prior to the actual order by the
District Labour Court on 22/4/2003 between 3-4 pm to cancel the
warrant of execution.
At any event, if the Court allowed the
inspection asked for by Beukes this issue could easily have been
cleared up. The applicant CIC Holdings, who brought the urgent
application on ½ hours notice of the application by telephone,
was in the best position to bring that evidence before Court by viva
voce evidence of the person who stopped payment. It must be
remembered that Beukes and Wentzel were brought before Court
unprepared, without notice of the application and the order sought
and without the opportunity to prepare evidence and Wentzel’s
defence.
(e) As to the
alleged conflict between paragraph 9 and, 12 of the Supplementary
Affidavit by Beukes filed in the High Court application, the conflict
is more apparent than real.
In paragraph 9 of his supplementary affidavit, Beukes said that –
“over the lunch hour I went to the Bank when an official refused to
respond to my query whether the cheque had been stopped.”
In paragraph 12 he
again said:
“She
(meaning) second respondent informed me that she was informed by the
Bank that that the Deputy Sheriff had phoned over the lunch hour to
the First National Bank to clear the cheque.”
The
two above statements can be reconciled. Paragraph 12 does not say or
purport to say that Wentzel was at the Bank during the lunch hour and
that she was informed during the lunch hour.
She
could have been informed by the Bank at a later stage that the Deputy
Sheriff had phoned over “the lunch hour to the First National Bank”
to clear the cheque. That would explain why the so-called
“clearing process” was completed as Gille says, at 14:03
on 22 April 2003, because the Deputy Sheriff/Messenger of the Court
ordered his cheque to be cleared, in the light of the insinuations by
Beukes that the said cheque was stopped unilaterally and unlawfully.
The probability is that the order to stop payment came from Hennes,
the Messenger of the Court, because he was the only person who could
order his Bank to “stop payment” of the cheque drawn on the
“Messenger of the Court’s Trust account” and also the only
person who could again reverse that order and say – “clear the
cheque”.
This explanation of the alleged conflict is further strengthened
by the fact that in paragraph 9 above quoted, Beukes expressly
said that: “Over the lunch hour I went to the Bank…”
This fact is also confirmed by the certified record of the hearing of
the District Labour Court on 22 April 2003 where Beukes told the
Court: “I’ve gone to the Bank…” It follows that the
uncontested evidence was that Beukes went to the Bank over the lunch
hour – not Beukes and Wentzel.
In my respectful view it follows from the above that there was no
justification for the finding that “the depth of the attempt to
mislead by the respondents is also shown in paragraph 25 of the
applicants’ founding affidavit.
(iv) The
learned judge then gives the final reason for her harsh criticism of
Beukes and Wentzel. She says:
“The
depth of the attempt to mislead by the respondents is also shown in
paragraph 25 of the applicant’s founding affidavit.
‘In
fact after lunch on 22 April 2003, the first respondent stated to the
Court that during the lunch hour, they (the respondents’)
endeavoured to get payment in respect of the cheque, but
that they were informed that the cheque was stopped. The second
respondent then accused the applicant (and its legal practitioners)
of illegal tactics.’”
The
Court then continues:
“This
statement is not refuted by the respondents. In
dealing with this paragraph among others, the first respondent
referred to the affidavit of second respondent to counter the
applicant’s claim. The second respondent however has also omitted
to deal with serious allegation.”
In my respectful view, the learned judge also misdirected herself
in this regard.
(a) I deal firstly
with the last paragraph quoted above from the judgment. The fact is
that first respondent did refute the allegations appearing in
paragraph 25 of the applicants’ affidavit by stating in paragraph
65 of the Beukes affidavit:
“Ad paragraphs 23 - 29 thereof.
These
paragraphs are devoid of all truth and relevance and will be dealt
with by second respondent.”
Second
respondent in turn said in paragraph 3 of her affidavit in regard to
paragraph 65 of the Beukes affidavit:
“I have read the affidavit of Hewat Beukes in this matter and I
confirm the truth of the contents therein as far it pertains to
myself.”
Although these denials were of a
general nature, it is a far cry from the Court’s criticism that:
“This statement
is not refuted by the respondents.”
Beukes further pointed out in his
paragraph 34 referring to paragraph 1 of the statement of Du Raan,
the general manager of the applicant:
“The deponent did
not attend the hearing to which he refers and he was not personally
acquainted with the facts in reference to the hearing.”
Although CIC Holdings filed answering
affidavits, there was no replying affidavit by Du Raan. The
allegation that he was not present in the District Court was thus not
refuted.
A curious situation arose here. CIC
Holdings in reply filed an affidavit by one Nel, allegedly an
accountant of the applicant. Nel now alleged that he is
acquainted with the facts. But even he, does not say that Du Raan
was present at the hearing. Nel however says that “applicant
stands by its allegations in the founding affidavit”. There was no
explanation why Du Raan did not file a replying affidavit. Nel
furthermore does not refer to any allegation by Beukes and Wentzel in
any respect. The same applies to the affidavits of applicant’s new
witnesses, Gille, an employee of First National Bank and Kutzner, the
attorney of CIC Holdings. The allegation by Du Raan in paragraph 25
of Du Raan’s affidavit relied on by the Court is thus either
hearsay or mere conjecture.
(b) Furthermore,
the record of the hearings at the District Labour Court on the 3rd
and 22 March 2003 were not before the High Court and the Beukes
protest in this regard was also overruled. That record if duly
authenticated and certified as correct, would have showed the
correctness or otherwise of the allegation made by Du Raan in
paragraph 25 of his founding affidavit. The record of the hearing on
the 22nd April 2003 was however part of the appeal record.
What this record indicates is that
Beukes had told the Court on the resumption of the hearing after the
lunch break:
“My
Lord I have to ask for an inspection. I’ve gone to the Bank
and they’ve received instructions not to pay out that cheque. Now
its pointless to continue with this matter if the respondent came to
this Court to legitimize the unilateral actions, which only the Court
may do… I am asking for the right because if the Court should find
that they have, I cannot produce proof if they have stopped the
cheque themselves – then it’s a pre-emption of the role of the
Court. So I ask for an inspection. The Bank is not far from here My
Lord…”
There is no
conflict between this record and the aforesaid Beukes affidavit.
The part of Du Raan’s affidavit in
paragraph 25 to the effect that Beukes had told the Court that
“they endeavoured to get payment for the cheque” is
clearly untrue.”
This analysis also demonstrates, in
my respectful view, that there were no reasonable grounds for finding
that the two respondents had been guilty of grave deception or fraud.
It also follows that there were no reasonable grounds for finding
that a delict had been committed by Beukes and Wentzel and for citing
Beukes as a respondent in the application in the High Court.
Mr. Heathcote, for CIC Holdings, did not find it necessary in his
heads of argument and in his viva voce argument before us to
raise any new points. He was confident enough to prepare only very
brief heads of argument wherein he associated himself with the
judgment and reasons for it given by the learned Gibson J. It is
therefore not necessary to deal separately with any of the points
dealt with in argument by Mr. Heathcote.
Beukes and Wentzel also took the point in limine at the
hearing of the appeal, that the respondent CIC Holdings, did not file
a proper power of attorney not only in this Court, but also not in
the High Court. In view of the result arrived at in this appeal, I
find it unnecessary to deal with that objection.
In the result the following order is made:
1. The appeal succeeds.
2. The order of the
High Court of 1 August 2003 is set aside, as well as any attachment
made of property of the appellants in regard thereto.
3.1 The order of the
District Labour Court of 3 March 2003 is amended to read:
“Default judgment is granted in
favour of the complainant for payment by respondent to complainant of
an amount of N$99 198.03 together with interest at the rate of 20%
per annum on that amount from 3 October 2001 to date of payment."
3.2 The order of the
District Labour Court of 22 April 2003 cancelling the warrant of
execution dated 2nd April 2003, is set aside.
4. CIC Holdings Ltd
is given leave to apply within 14 days of this judgment, for the
setting aside in accordance with Rule 22 of the Rules of the District
Labour Court of the default judgment as amended in paragraph 3.1
supra and to apply simultaneously for the setting aside of the
warrant of execution dated 2nd April 2003, should the
application for setting aside the default judgment be successful.
5. The respondent is
ordered to pay the taxed costs of the appellants both in this Court
and in the Court a quo.
________________________
O’LINN, A.J.A.
I agree.
________________________
CHOMBA, A.J.A.
I agree
_________________________
MTAMBANENGWE, A.J.A.
COUNSEL ON
BEHALF OF THE APPELLANTS: In Person
COUNSEL ON
BEHALF OF THE RESPONDENT Mr. R Heathcote
Instructed
by: Engling, Stritter & Partners
Beukes and Another v CIC Holdings Ltd (SA 24/2003) [2005] NASC 5 (24 June 2005);