CASE
NO.: SA 2/2007

REPORTABLE

IN
THE SUPREME COURT OF NAMIBIA

In
the matter between

BELETE
WORKU APPELLANT

And

EQUITY
AVIATION (PTY) LTD RESPONDENT

Coram:
Shivute,
CJ, Chomba, AJA et
Silungwe, AJA.

Heard
on: 05/11/2007

Delivered
on: 07/07/2009

APPEAL JUDGMENT

CHOMBA, AJA:

[1] The main point of law
which this appeal judgment will address and determine revolves around
the scope of the mandate which a legal practitioner is vested with
when his or her client, who is a party to litigation, instructs him
or her to negotiate a settlement with the other party. Incidental to
that main point of law, is the issue whether in this case the
appellant did give his legal counsel, Mr. Strydom, a mandate to
conclude a settlement agreement which would have the effect of the
appellant foregoing his right to institute a court action or actions
against the respondent for unfair dismissal. Additionally, there was
a bone of contention on whether it is competent for a court, which is
seized of a proceeding commenced by notice of motion, to prioritize
an informally lodged application over the one with which it is so
seized. However, before tackling all these issues, it is necessary
to start with an introduction which will set the scenario from which
this appeal derived its genesis. The introduction will also serve as
a basis reflective of matters which are common cause between the
parties to this appeal.

Introduction

[2] At the time when the
proceedings in this case were instituted, the respondent company bore
the name Servisair Namibia (Pty) Ltd. However at the time this court
was hearing the appeal we were informed that its name had changed to
Equity Aviation (Pty) Ltd. I shall, therefore henceforth refer to
the respondent as “Equity Aviation” or simply as “Equity”,
alternatively as “the respondent”.

[3] The appellant, Mr.
Belete Worku (Mr. Worku), formerly worked for Equity Aviation on a
contract of three years. During September, 2001, while the contract
still had 25 months to run, Mr. Worku’s service was abruptly
terminated, thereby precipitating lodgment by him against Equity
Aviation of a labour complaint in the District Labour Court. The
cause of action in the complaint he laid was unfair dismissal. After
being served with the relevant notification of the institution of the
suit, Equity did not file a notice to defend. Instead an officer or
officers from its management went and consulted a lawyer, who advised
that the dismissal was indeed procedurally unfair and therefore that
Equity had no leg to stand on in defence against the action taken
against it. Unfortunately for Equity, it was by then too late to
take any procedural step to avoid the immediate consequence of its
failure to file a notice to defend. This was because Mr. Worku had
at that stage already obtained a default judgment against it in the
sum of N$660,000. That amount was supposedly a representation of the
package to which Mr. Worku was entitled as remuneration which he
would have received had he served the uncompleted remainder of his
contract.

[4] In the understanding
of the respondent, Mr. Worku had obtained that quantum of damages
through subterfuge, since, according to the respondent, he had
materially misrepresented the facts of his claim. Moreover, Equity
had not anticipated a default judgment sounding in liquidated damages
because, to its knowledge, the complaint as lodged sought a
substantive relief of reinstatement; damages were claimed only in the
alternative. In the premises, the respondent filed an application
for rescission or variation of the default judgment. Mr. Worku in
turn filed notice of his intent to oppose that application. It would
appear that contemporaneously with the filing of the application for
rescission or variation, Equity Aviation engaged Mr. Worku in
negotiations for an ex
curiae settlement
of the dispute between them. Apparently, the negotiations were
fruitless because, pursuant to the application it had filed as
already stated, in due course Equity Aviation curiously obtained an
order from a court of cognate jurisdiction. The order was in the
following terms:

“(i) that judgment or
order by my learned colleague on 11 February is hereby varied with
the following orders.

(ii) that in terms of
section 46(1)(a)(iii) the applicant is ordered to reinstate the
respondent (i.e. Worku) in the position in which he would have been
had he not been dismissed, with immediate effect.

(iii) that in terms of
section 46(1)(a)(iii) to pay the respondent an amount which would
have been paid had he not been so dismissed.

(iv) that such an amount
including all benefits and allowances must be paid to him from 1^st
December 2001 until date of reinstatement.

(v) that should any
disciplinary hearing or action (be) taken against the respondent; it
must be chaired and conducted by an independent and unbiased person
agreed by both parties.”

[5] Regrettably, the
revised order was inexplicit and, therefore, was differently
interpreted by Equity Aviation and Mr. Worku. In the result Equity
Aviation promptly paid to Mr. Worku a sum of N$36,000 which,
according to it, represented Mr. Worku’s loss of income, benefits
and allowances in terms of the above mentioned order. On the other
hand, Mr. Worku’s calculation based on the same order, was that the
compensation due to him amounted to N$246,391.78. Having deducted
the N$36,000 which he had accepted from Equity Aviation, he caused a
warrant of execution to issue for a sum of N$210,391.78, plus
N$162.00 costs. Apparently on account of legal advice from his own
legal representatives, Mr. Worku later obtained a replacement warrant
in the amount of N$140,092.61.

[6] Subsequently, on the
strength of the replacement warrant of execution, Mr. Worku obtained
an attachment order against some of Equity’s goods. Having
effected the attachment, he was poised to sell the goods in execution
of his judgment when, in order to forestall the sale, Equity provided
a bank guarantee in the amount of N$240,295.52 and Mr. Worku was
informed accordingly. In the meantime, Equity filed yet another
application, this time in the Labour Court and sought an order
declaring the warrant of execution a nullity (the main application).
Mr. Worku in turn filed a notice to oppose this latter application,
but unfortunately for him, his counsel, Mr. Strydom, did not
timeously file an affidavit in support of his notice of intent to
oppose.

[7] At that stage Mr.
Worku was forced to, and did, file an application for condonation for
the late filling of the affidavit aforementioned. Before the return
day when the condonation application was to be heard, yet more
settlement negotiations – about which more is to be narrated under
a different caption – which form the springboard from which this
appeal emanated, were undertaken between Mr. Heathcote, acting for
Equity, and Mr. Strydom, ostensibly acting for his client, Mr. Worku.
Suffice it to state that those negotiations are reputed to have
produced the disputed settlement agreement.

[8] On the set down date
when the main application was to be heard together with Mr. Worku’s
condonation application, the parties appeared before Acting Justice
Usiku, sitting as President of the Labour Court. The application for
condonation was formally presented, and then, informally from the
Bar, Equity’s counsel submitted to the court that the matter had
been settled, but apparently that was disputed by the other side.
The order which the learned Acting Judge made pursuant to Mr. Worku’s
application was to the effect that condonation was granted for
the late filing of heads of arguments.
(Emphasis is mine).
As if
that anomaly was not bad enough, she also made another order
referring the question of settlement to oral evidence. By that order
also the main application was stayed.

[9] I pause here to
comment that the reference by Acting Judge Usiku to condonation for
late filing of heads of arguments was, without a doubt, erroneous.
The main application before her, I must stress, was for the warrant
of execution to be declared null and void, and then there was Mr.
Worku’s application for condonation for the late filing of the
aforementioned affidavit. Since there were no papers before her
concerning heads of argument, the condonation she granted will be
dealt with in this judgment as condonation for the late filing of Mr.
Worku’s affidavit. I must further emphasize that the informal
submission about a settlement agreement having been concluded would
appear to have been accepted by the Acting Judge without much ado,
despite the informal manner in which it was presented.

The Settlement
Agreement Issue

[10] Arising from the
order referring the question of the settlement agreement to oral
evidence, the parties appeared on February 8, 2005 before Maritz, P,
as he then was. Ms. Engelbrecht appeared for Equity, while Mr. Worku
appeared in person. Right at the outset, the President of the Court
could not contain his concern over the nature of the proceedings
before him. He first observed that the notice of hearing before him
showed that viva
voce
evidence was to be heard on the question whether a settlement had
been concluded. He, however, reminded the parties that when they
appeared before Usiku, AJ, on a previous occasion the matters which
fell for consideration by her were firstly the application for
declaring the warrant of execution null and void and secondly the
application by Mr. Worku for condonation for his late filing of an
affidavit in opposition to Equity’s application for the declaratory
aforementioned. He noted that Usiku, AJ granted Mr. Worku’s
application, and, therefore, wondered whether the condonation
question was not res
judicata.

[11] When Ms. Engelbrecht
conceded that the question of condonation was indeed res
judicata,
the President queried the purpose of the proceedings before him that
day. Ms. Engelbrecht informed the Court that the condonation
application was opposed on the ground that a settlement agreement had
been concluded between the parties. She further informed the court
that the proceedings before the President that day were to be the
sequel of the referral order of Usiku, AJ. It is apposite to record
here that Mr. Worku, contrariwise to Ms. Engelbrecht’s contention,
informed the Court that what was to be considered that day was the
main application in the light of the fact that condonation was
granted for the late filing of his affidavit.

[12] A lengthy debate
took place concerning the nature of proceedings to be undertaken that
day, and in due course the President made a ruling stating that what
he ought to do was to deal with the difficulty in a pragmatic
fashion. He decided to do so because he discerned that both sides
were anxious to proceed with the matter, though for different
reasons. He nonetheless noted that even though he was going to
implement the oral evidence referral order, there was no formal
application before him to support that course.

[13) The issue whether or
not a settlement was struck and whether or not Mr. Strydom had a
mandate from Mr. Worku to conclude such settlement were the most
thorny at the hearing of this appeal, as they were also in the Court
a quo.
The learned President of that Court, after hearing a plethora of
evidence from both sides, came to positive conclusions on both
scores, namely that a settlement agreement was indeed concluded and
that in achieving that result Mr. Strydom had a mandate from Mr.
Worku, his client. In amplifying that conclusion, the learned
President held that Mr. Strydom had implied or ostensible and even
actual authority from, Mr. Worku. I shall, therefore, now move on
and review the evidential facts relevant to the issues in dispute,
but, in doing so, I shall restrict the review so as to highlight the
critical aspects which bear on the first two issues as identified
above.

[14] From the evidence
already reviewed we have seen that Equity’s application for
rescission or variation of the default judgment was the subject of
consideration by the District Labour Court differently constituted.
That latten court ordered, as I have already shown, among other
things, the immediate reinstatement of Mr. Worku, but added the rider
that if he was to face disciplinary proceedings after reinstatement,
then those proceedings were to be chaired and conducted by an
independent and unbiased person the choice of whom should be agreed
to by both parties concerned. Contrary to the court’s said order,
Mr. Worku was, after reinstatement, dismissed a second time in
October or November, 2002, without following the procedural
requirements. This gave rise to the possibility that Mr. Worku might
file yet another complaint of unfair dismissal. Meanwhile, the
application for the annulment of the warrant of execution, which was
the main application, was still pending and was slated to be heard on
June 16, 2003, a Monday, in the Labour Court.

[15] According to Mr.
Heathcote’s evidence given in the Court presided over by Maritz, P,
(the Court a
quo)
early during the week preceding the Monday, 16 June, 2003, Mr.
Heathcote suggested to Mr. Strydom that the labour disputes between
their respective clients be settled. Mr. Heathcote further suggested
that a text of the settlement to be concluded should be drawn up and
subsequently be presented to the Court on the Monday so that it could
be made a Court order. Mr. Heathcote’s evidence-in-chief of how
the settlement was achieved was recorded as follows, as he was being
led in examination-in-chief by Ms. Engelbrecht:

“I
said (to Mr. Strydom), ‘Can we settle this matter? Is there any
possibility? And I suggested to him, and he said, ‘Of course, we
can try and settle it again.’ And I suggested to him because of
what happened previously with the bribing charges, and the like, I
said to him, ‘What I suggest we do is you go to your client, you
get a mandate to settle.’”

Ms
Engelbrecht: “Just go slowly. ---- And at that stage I also asked
him again, I said that during October 2002, Mr. Worku’s services
were terminated again in terms of a provision in his contract and I
asked Mr. Strydom whether Mr. Worku is also of the intention to issue
a District Labour Court complaint in relation to that other
dismissal?

Ms
Engelbrecht: “So that was the second dismissal ---- The second
dismissal.”

[16] Mr. Heathcote went
on:

“And
I also said, I also explained to him at that stage there was a
continuing investigation, those were my instructions, at the client’s
office as far as or what they called, a forensic investigation, as
far as possible irregularities committed by Mr. Worku and I said, ‘If
we settle then we must throw everything into the pot’, and that
would then include the main application, secondly, the intended
Labour Court complaint that Mr. Worku was going to institute in the
Labour Court ...(intervention). For the second dismissal and also
that we, the parties part properly and we also will then not put in
the whole issue of this forensic investigation and being, knowing the
history, I said to Mr. Strydom, ‘Now, what I suggest you do is, you
go back to your attorney and get a mandate and give an amount on that
basis.’”

[17] Later, Mr. Heathcote
went on:

“...During
the afternoon of, I can’t remember the exact day, but it was in the
week preceding the 16^th
of June, I went, I was again in Mr. Strydom’s office and he said,
‘Well, we can settle the matter on all, including the main
application, the intended Labour Court complaint in respect of the
second termination and thirdly also the forensic investigation,
continuing forensic investigation and they would accept seventy-two
thousand Namibian Dollars (N$72,000-00.)’ I then said to him,
‘Well, I don’t want to biggle (sic) (Here it would appear that
the evidence transcriber was unsure of the word Mr. Heathcote used,
but I think the word used was ‘bicker’, then Mr. Heathcote
continued) if that is the offer, I will most probably, knowing the
history and all the pain and suffering at that stage on behalf of the
client, I will most probably advise my client to accept the offer
because by that time, My Lord, we’ve had various other discussions
on previous occasions and every time it happened that as soon as it
is settled then for some or other reason Mr. Worku wants more...”

[18] Much later in his
continued evidence-in-chief Mr. Heathcote stated the following:

“....I
walked across to his (Mr. Strydom’s) chambers and I said to him
‘Albert, we have accepted the offer, you draft the settlement
agreement according to your mandate and we then, we regard the matter
as settled’. Mr. Strydom at that stage was, I must say, quite
relieved that the matter was settled and while we we’re in his
chambers, we discussed, went again over the fact that everything must
now be settled and he, at the right hand corner of his brief of a
yellow brief, I think that of PF Koep and Company, then stipped down
or in short, made hand written notes as to the settlement. I was
quite satisfied and said to him that it is now settled, that on
Monday we will just make it a Court Order, and that was the end of
the matter as far as I was concerned...”

[19] Mr. Strydom also
gave evidence, but although he was presumably the appellant’s own
witness, the trial judge allowed Mr. Worku to cross-examine him even
though he was not declared a hostile witness. His evidence on the
critical issue concerning the settlement, as he was being questioned
by Mr. Worku, is recorded as hereunder:

“Mr.
Worku: Thank you Sir. Now would you kindly inform the Court whether
Mr. Mueller told you how my case was? Was it a good case or is it a
legal case, was it anything? ---- It was a good case...

Mr.
Worku: No he told you the case is good? ----Yes

Now
did you tell me anything about my case, whether it’s good or
bad?---- I told you that you had a very solid case on the basis that
no disciplinary procedures were followed and on the basis in which
way you informed me how your dismissal took place, I told you that in
law you had a sound case...

In
other words before we went to court, you were offered through Mr.
Kopplinger a settlement offer? ---- That is correct...

Can
you remember Sir how much it was? ---- I can recall that the amount
that they offered eventually, I think, I stand to be corrected, that
it was somewhere in the vicinity of one hundred and three (N$103,000)
or one hundred and seven thousand (N$107,000) that they offered and
you were only prepared to accept on hundred and fifteen (N$115.000)
and therefore the parties could not reach a settlement.”

[20] Answering further
questions asked by Mr. Worku regarding how the negotiations
proceeded, Mr. Strydom testified as follows:

“Well
there was an amount that you were initially prepared to settle. I
believe it was a hundred and eight thousand (N$108,000) and then
later on you changed that amount I think up to hundred and fifteen
(N$115,000) or something like that and they were only prepared to
come up I think to hundred and eight (N$108,000) or hundred and ten
(N$110,000) and because of that fact that you were not willing to
reduce your offer, no settlement came into place.

[21] Mr. Strydom was
asked by Mr. Worku to recount some of the events which took place on
or about 9^th
June during the week preceding the court appearance of 16 June, 2003.
The following is what he testified:

“We
then discussed with you the problem that we anticipated we would
encounter concerning the Application and then we made certain
suggestions to you concerning a possible settlement. Eventually you
agreed that we start discussions concerning settlement with the other
side and then we embarked upon that. I then went to Advocate
Heathcote on my own and had a discussion with him on the possibility
of a settlement.

[22] Another
piece of Mr. Strydom’s evidence worth reproducing touches directly
on the reputed giving of a mandate to settle. It was given in answer
to a question which followed a previous answer Mr. Strydom gave to
the effect that he, Mr. Strydom, had talked to Mr. Worku before going
to discuss the settlement with Advocate Heathcote, viz:

“Mr.
Worku: When was that? ---- That was already that evening, Monday
evening.

Mr.
Worku: What did you inform Mr. Mueller about that settlement? ---- I
informed both Mr. Mueller and yourself that afternoon. When we had
discussions and our consultations, we then decided. You gave us a
figure upon which you would be satisfied to settle. That figure was
seventy-two thousand Namibian Dollars (N$75,000.00) (sic)”

[23] Then the following
was narrated by Mr. Strydom about some of the happenings of the
following day, Tuesday, 10^th
June:

“To
return to Tuesday, it was never put to me at any stage during our
discussions that he (i.e. Mr. Worku) was unwilling to accept that
amount. Mr.
President he gave me the instructions, upon his instruction I drafted
the Deed of Settlement.”
(Underlining is mine)

[24] Mr.
Strydom made an important statement when he appeared before Damaseb,
P, on Monday, June 16, 2003. He made it from the Bar when seeking
the leave of the Court to withdraw as Mr. Worku’s counsel. That
date was otherwise the occasion when the reputed settlement agreement
would have been presented to the court with a view of having it
recorded as a consent order. Regrettably the relationship of lawyer
and client between Mr. Strydom and Mr. Worku had by then already
ruptured. I reproduce the statement hereunder on account of the
important bearing it has on these proceedings. In giving an account
of the events which led to the estrangement between him and his
client, the following was part of his statement –

“Mr.
Strydom: Yes Mr. President. President this is a highly unfortunate
position that I find myself in. I may just mention for the record
Mr. President that when counsel and I discussed the terms of the
settlement that was on a Monday evening. I understood him to be and
to mean that such settlement would entail all claims. However
at that point I still had to go back to my client in order to discuss
it with him. That happened the next day. During our discussions
there I have to concede that I did not convey the terms of the
settlement to such an extent that he understood it to be, to
incorporate all claims.

President:
That is not (indistinct)

Mr.
Strydom: The result of that was that I subsequently drafted the deed
of settlement and was again alerted to the fact that it should
incorporate all claims. I then the day thereafter, that was on the
Wednesday, went back to my client, pointed out to him the particular
clause that was now part of the settlement and indicated to him that
this encompassed all future claims. He was then not amenable to
accept that term of settlement, whereas the parties then started
negotiations afresh in order to incorporate the second possible claim
that he wanted to institute. What then resolved was a mandate was
given and further matters then ensued between both Mr. Kopplinger and
Mr. Mueller of which I was not a part of that happened on Friday. In
all frankness to my client and the court and my learned friend and I
also indicated that to him, I am of the view that at the time when I
conveyed the settlement, that was the Tuesday, it could have been
that my client misconstrued it to mean only that part of the claim
that relate to this present application.
In order to void (sic)
any ambiguities to that effect I then again the day thereafter spoke
to him about the full effect of this settlement and what the terms
contained therein entail. It was on that point that he then withdrew
from the settlement to the extent that he wasn’t willing to accept
the 72,000 any more, he wanted more money on account of the fact
that, to also deal with the second issue, namely the issue that he
wanted to institute a further claim against the applicant. I cannot
take it any further than that in so far as that misunderstanding is
there I apologise for that but
I cannot in all fairness, there is no way that I can, well it could
have been construed as a mistake in the sense that I should have been
more frank and open to my client the time when I discussed the terms
with him.”
(Emphasis is mine).

[25] Adverting to the
prolonged questioning which Mr. Strydom had to endure from Mr. Worku,
the following question and answer relate pertinently to the issue of
what mandate, if any, Mr. Worku gave to Mr. Strydom:

Mr.
Worku: “Did you have a mandate for that from me? ---- As far as I
can recall we had a mandate concerning the amount. We
did not have a mandate concerning the settlement of all claims.”
(Emphasis added).

[26] The preceding
excerpts are not intended to cover all that Mr Heathcote or even Mr.
Strydom testified in the Court below. Both of them, and especially
Mr. Strydom, gave very extensive evidence. Indeed there were other
witnesses as well who gave viva
voce evidence.
However the two from whose evidence I have made quotations were more
or less the dramatis
personae in
this case. Moreover, it is worth noting that the Court a
quo gave
Mr. Worku a rare leeway which enabled him to ask Mr. Strydom roving,
critical and often quite intemperate questions, a great number of
them bordering on cross-examination. That unfriendly confrontation
was not surprising because by then the lawyer/client relationship
between the two had gone awry, and there was no love lost between
them.

The
Lawyer and Client Relationship

[27] The lawyer and
client relationship is no more than that of principal and agent. As
such it is trite that when an agent acts within his apparent or
ostensible authority, the principal is bound thereby even if he or
she has given private or secret instructions to the agent limiting
the authority. It is equally trite that the authority of the agent
is generally construed in such a way as to include not only the
powers expressly conferred upon him or her, but also such powers as
are necessarily incidental or ancillary to the performance of his
mandate. In order to escape liability it would be necessary for the
principal to give notice to those who are likely to interact with the
agent, qua
agent,
of the limitations imposed by him or her upon the agent’s apparent
authority. Thus in Salisbury
Bottling Co. (Pty)
Ltd.
v
Arista
Bakery (Pty) Ltd
1973
(3) SA 132 (R, AD) the respondent company was carrying on a business
at Rosarum Store, Beatrice, on the strength of a general dealer’s
licence. A man named Wilhelm was the manager of the business. For
quite a period of time the appellant was supplying goods to the
respondent and in doing so was interacting with Wilhelm. It was not
disputed that on 3^rd
June, 1972 the appellant supplied some goods to the respondent in the
same manner as it had always done, but the cheque which was handed to
the appellant in payment for the goods on that occasion was
subsequently dishonoured. The appellant thereafter sued the
respondent claiming the price of goods sold and delivered to the
respondent. The respondent’s defence to the appellant’s claim
was that the goods were not delivered to the respondent. What had
happened was that on or before 30^th
April, 1972, unbeknown to the appellant, the proprietor of the
respondent company had sold that company’s business to Wilhelm, the
manager. Despite the sale, however, business at Rosarum Store,
Beatrice, appeared to be conducted precisely in the same manner as
before, and still on the same general dealer’s licence. There was
no indication to the outside world that the business of the
respondent had changed hands. After taking into account the full
facts of the case, Macdonald, ACJ, had this to say in holding the
respondent liable for the price claimed (see at page 134E – 135A):

“Mr.
Wilhelm was the duly appointed agent of the respondent company to
conduct the respondent company’s business at Beatrice. That being
so, a presumption of fact arises that after 30^th
April he continued to be the agent of the respondent company. It is
clear in the circumstances which I have outlined that such a
presumption of fact would arise, and I need only refer on this aspect
to Phipson on Evidence,
11^th
ed., at para 291 – ‘States of mind, persons or things, at a given
time may in some cases be proved by showing their previous or
subsequent existence in the same state, there being a probability
that certain conditions and relationships continue. The presumption
of continuance, which
is one of fact and not of law, will, however, weaken with remoteness
of time, and only prevails till the contrary is shown, or a different
presumption arises from the nature of the case...

The
presumption of continuance, which undoubtedly arose from the facts
which I have outlined, gave rise to a duty on the part of the
respondent company to notify persons who had previously dealt with
Rosarum Store, Beatrice, that from 30^th
April, 1972, that business, contrary to all the indications, would
not continue as before to be conducted on behalf of the respondent
company. As I have indicated, no such notification was given, and in
the absence of notification the appellant was entitled to assume, in
view of the very short period of time which elapsed between 30^th
April and 3^rd
June, 1972, that no change in the pre-existing relationship between
Mr. Wilhelm and the respondent company had taken place.”

[28] The principle in the
Salisbury
Bottling Co. (Pty) Ltd
case, supra,
can,
prima
facie,
apply to the present case. This is because it is common cause that
since the inception of the proceedings in
casu in
the District Labour Court in February, 2002, Mr. Strydom had conduct
of this case on behalf of the appellant. That continued to be the
position up to 2003 when the matter was moved from the District
Labour Court to the Labour Court at the time when Equity’s
application for the rescission or variation of the default judgment
was launched. In fact the relationship of lawyer and client between
the two endured up to the week just before Damaseb, P, was due to
deal with yet another stage in the proceedings on June 16, 2003. It
stands to reason that the presumption of continuance applied in the
Salisbury
Bottling
case would, at face value, appear to fit into our case as well,
subject to the necessary notification being given to Equity’s
lawyers of the termination of Mr. Strydom’s authority. However, I
shall later on consider to what extent, if any at all, this principle
applies to the facts of our case

[29] Yet another
principle is applicable to the type of agency which subsists between
lawyer and client, and that was referred to by Friedman, J, in
Dlamini
v
Minister
of Law and Order and Another
1986
(4) SA 342 (D & CLD) where he is reported to have said at 346I –
347A the following:

“It
would seem to be reasonably clear that counsel, who had been properly
instructed to appear on behalf of a litigant, has implied authority
to conclude a settlement on behalf of his client, provided
he acts bona
fide in
the interests of his client”.
(The underlining is mine)

In the course of
delivering his judgment Friedman, J, quoted with approval the
following dictum from Lord Esher in Matthews
and Another v Munster
(1887)
20 QB
141 (CA) (1886 -90) All ER Rep. 251:

“One
of the things that must properly belong to management and conduct of
the trial must be the assenting to a verdict for a particular amount
and upon particular terms. In the present case the amount was £350
and the terms were that all imputations should be withdrawn. It is
impossible to say that such an arrangement must be an unreasonable
one. Counsel may see that if the case goes to the jury a verdict for
a very large amount will be given. If
the client is in court and says, ‘I will not agree to those terms’,
his counsel ought to say, ‘then I will no longer act for you’ and
ought to leave him to conduct his own case. If the client allows the
negotiation to go on and makes no audible objection the settlement
will be binding upon him because he has not withdrawn the authority
of his counsel and made that withdrawal known to the other side.
But I wish to repeat that although the authority of counsel is
unlimited until it is withdrawn, the court retains control over his
proceedings. In the present case the client was not present in court
at the time the settlement was come to and therefore could not have
put and did not put an end to the relationship of advocate and client
which existed between him and his counsel, but he comes now and says
‘I do not like what my counsel has done for me and I ask the court
to set it aside.’ There is no symptom of injustice having been
done, counsel exercised his judgment to the best of his ability in
the matter, and I have no doubt he did what was really best for his
client.” (The underlining is again mine)

[30] On the basis of the
three cases cited in the preceding paragraphs, the resultant
questions I have to consider and answer are the following, viz: (a)
Did Mr. Worku give his counsel authority to settle the pending case
of his dispute with his former employer, Equity? (b) If he did give
such authority, did he later terminate it? (c) If he did terminate
it, did he bring that fact to the attention of Equity’s lawyers?
(d) Was there any cause that might have justified Mr. Strydom to
withdraw his legal services from his client at a much earlier stage?
And (e) Can it be said
in casu that
what
Mr. Strydom did in furtherance of his said authority was done bona
fide in
the interests of his client?

Whether Authority to
Settle was Given

[31] Mr. Worku, as I have
already shown, did retain Advocate Strydom to institute proceedings
for unfair dismissal against Equity Aviation and at that stage there
is no evidence to suggest that the instructions given were anything
other than proper instructions. At that stage the pending dispute
related only to the unfair dismissal of September, 2001. Therefore,
on the basis of the ratio
decidendi
in Dlamini
v Minister of Law and Order and Another,
supra,
the authority given at that stage also embraced the settlement of
that dispute. At that time the second dismissal had not occurred and
therefore cannot be said to have been included in the authority as
initially given. The prevailing controversy, which the Court a
quo set
out to, and did, on the other hand resolve is basically whether the
authority given was inclusive of settlement of the possible dispute
emanating from the second dismissal.

[32] The issue of
including the second dismissal was broached by Mr. Heathcote,
according to Mr. Heathcote’s own evidence. To quote him again, he
testified saying, “I said to him (meaning Mr. Strydom), ‘Can we
settle this matter? Is there any possibility?’ And I suggested to
him, and he said, ‘Of course, we can try and settle it again.’
Then later on still relating to that same meeting with Mr. Strydom,
Mr. Heathcote said, ‘And I also said, I also explained to him
again, I said that during October 2002 Mr. Worku’s services were
terminated again in terms of a provision in his contract and I asked
Mr. Strydom whether Mr. Worku is also of the intention to issue a
District Labour Court complaint in relation to the other dismissal.’
At that stage Ms Engelbrecht asked whether that October 2002
dismissal was the second dismissal and Mr. Heathcote agreed. Then he
continued his evidence, adding, ‘And I also said, I explained to
him at that stage there was a continuing investigation, those were
my instructions, at the client’s office as far as or what they
called, a forensic investigation as far as possible irregularities
committed by Mr. Worku and I said ‘If we settle then we must put
everything in the pot,’ and that would then include the main
application, secondly, the intended Labour court complaint that Mr.
Worku was going to institute in the Labour Court for the second
dismissal...’”

[33] Since the issue of
an all-inclusive settlement was not raised by Mr. Worku, the
resultant subsidiary question that arises is whether Mr. Worku did
specifically give authority to his counsel to settle that one as
well. In order to answer that question, we have to advert to other
evidence on record.

[34] I have already
recorded that after Mr. Heathcote’s suggestion about the
all-inclusive settlement, he also made two other suggestions, namely
that Mr. Strydom should go to his client to obtain a mandate and that
he should also go to his instructing attorney, Mr. Mueller, and
obtain a similar mandate. Some time later when Mr. Heathcote again
went to Mr. Strydom’s office as a follow up to the request that Mr.
Strydom should seek a mandate, Mr. Strydom told him, “Well, we can
settle the matter on all, including the main application, the
intended Labour Court complaint in respect of the second termination
and thirdly also the forensic investigation, continuing forensic
investigation and they would accept seventy-two thousand Namibian
Dollars.”

[35] We have already
referred to Mr. Strydom’s evidence in relation to his
recapitulation of the events of Monday, June 9, 2003. In that
evidence he says Mr. Mueller and he explained to Mr. Worku the
problems they anticipated on June 16 at court. At the end of the
discussions he said Mr. Worku agreed that they, evidently meaning Mr.
Worku’s legal team, could start discussions concerning the
settlement with the other side.

[36] Furthermore in the
course of questioning Mr. Strydom, Mr. Worku referred to the draft
settlement agreement. The setting was on Wednesday in Mr. Strydom’s
chambers and the discussion, attended by Mr. Mueller also, was a
continuation from Monday, June 9, 2003. The specific point being
discussed was how the settlement concerning the N$72,000.00 came
about. In answer to that question Mr. Strydom testified – “Mr.
President, he (meaning Mr. Worku) gave the instruction; upon his
instruction I drafted the Deed of Settlement.” Then Mr. Worku
asked a follow up question. The dialogue went as follows:

“And
who initiated it, Sir? ---- Mr. President, we advised Mr. Worku
already on the Monday that he should settle.

So
you initiated that? ---- We initiated, we advised Mr. Worku
concerning the settlement, yes.

So
you initiated? ---- That is why we called him to come to our office
so that we can discuss it.

But
I never gave you the mandate for that initiation? ---- You never gave
us a mandate on the Monday concerning, to initiate the settlement but
you gave us already on Monday to settle for seventy-two thousand
dollars. Mr. President I apologise.”

[37] Then the following
further dialogue is recorded later in the course of Mr. Strydom’s
evidence regarding the draft settlement agreement:

“Mr.
Worku: Okay Sir, now after I read the paper, I asked you Sir, “Adv.
Strydom, for which case is this”, I asked you and what was your
answer? ---- Mr. President, I then informed Mr. Worku again it
concerns this case and all future claims that you intend to
prosecute.”

[38] Later, still on the
same matter regarding the draft, another dialogue went as hereunder:

“Then
I asked you which claim is this including seventy-two thousand
(N$72,000.00). ---- Yes, that is correct. Mr. President, what
happened was not that he asked him that, I alerted his attention to
that clause, to inform him he must bear in mind it does not only
relate to this case Mr. Worku, it refers to all claims, all future
claims. It’s in that form it was coached.” (sic)

[39] Finally on the same
point, I reproduce the following dialogue between the same two, which
seems to crown it all:

“Mr.
Worku: So after I read this and I read the bottom which says, ‘This
agreement constitutes a full and final settlement of any claims that
could have or did arise out of the working relationship between the
parties’, the last paragraph for me contradicted with the section
442/01 (sic) and then I asked, for which one? Of course it is
written up there. I said, why then did this agreement constitutes a
final settlement, I asked you. Then you said, no Adv. Heathcote and
Mr. Kopplinger say they will not sign the settlement agreement unless
that phrase is included. Is it true or it’s not true? ---- The way
in which you asked it to me, that is not true Mr. President, but
what is true is that during our discussions it was very clear that
the Applicant (meaning Equity Aviation) would not sign any settlement
unless it included all claims. That I confirmed and that is why I
alerted Mr. Worku to that section contained in the Deed.”
(The underlining is mine).

[40] The overall
impression one gets from the foregoing extracts of the evidence, is
that it becomes clear that the all-inclusive clause was not only the
brain child of Equity Aviation through its counsel, Mr. Heathcote,
but it was made a take-it-or-leave-it condition. One also gathers
the impression that Mr. Strydom did not bring that condition to the
attention of Mr. Worku until the eleventh hour, nor did he seek his
client’s mandate as specifically requested by Mr. Heathcote. It is
equally evident that the clause came to Mr. Worku as a matter of
surprise, and he did not hesitate to reject it outright.

[41] The main prop on the
strength of which the reputed settlement could firmly stand was the
evidence of Mr. Strydom. However, in my respectful opinion, the
pieces of his evidence which I have quoted in this judgment give a
dim view of his standing as a witness. It shows inconsistency on his
part. In one breath he claimed to have obtained his client’s
authority to conclude a settlement which embodied the all-inclusive
clause, particularly in regard to the possible claim relating to the
second dismissal. In another he conceded that the clause was
included because Equity would not sign a settlement agreement without
it. Then he testified that he received instructions from his client
to draw up the settlement agreement, only to contradict that in his
statement from the Bar. In that statement he stated that on Tuesday
when he met with his client, he did not inform him about the
requirement to include the said controversial clause, but that that
notwithstanding, he went ahead and drew up the settlement agreement,
which he showed the client only on the Wednesday. At one time he
asserted that it was on Monday that his client gave him the mandate
to settle, but later he testified that on that Monday his client gave
a mandate only as regards the amount of N$72,000.00, but that no
mandate to settle all claims was given on that day.

[42] It is trite that an
appellate court should not lightly interfere with a trial court’s
evaluation as to credibility of witnesses. This is because a trial
judge has an opportunity which an appellate court rarely enjoys,
namely to hear and observe witnesses as they testify. As such the
trial judge has a better opportunity to assess the worth of their
evidence. However, where the appellate court, upon a careful
scrutiny of the evidence on record, is of the view that the trial
judge has quite clearly not made proper use of his privilege of
observation and as a result has misdirected himself or herself in
evaluating such evidence and that that misdirection has led to a
wrong decision, then the appellate court is entitled to interfere and
make its own evaluation of that evidence. In S
v Francis
1991 (1)
SACR
198 (A)
Smalberger,
JA, affirmed this principle when he stated at 204E:

“Bearing
in mind the advantage which a trial Court has of seeing, hearing and
appraising a witness, it is only in exceptional cases that this court
will be entitled to interfere with a trial judge’s evaluation of
oral testimony. (S
v Robinson and Others 1968
(1) SA 666 at 675 G – H).”

[43] I have no doubt in
my mind that the learned President in the present case failed to
correctly evaluate the evidence of Mr. Strydom. I am of the view
that the misdirection arising therefrom led to his wrong conclusion
of pitching Mr. Strydom’s credibility to a degree which was not
merited. In other words, if the learned President had paid due
attention to the inconsistencies which I have highlighted in Mr.
Strydom’s evidence, he would not have found that Mr. Strydom did
receive the necessary mandate to enable him conclude a settlement
agreement relating to the second dismissal.

[44] In referring to Mr.
Strydom’s statement made from the Bar, I have justified doing so
for the reason that the statement has an important bearing on the
proceedings in this case. I am fully conscious of the fact that
statement was not evidence; it was made from the Bar. However,
Court-bound legal counsel, whether operating from the private sector
or from the public service, are as duty-bound as a presiding judicial
officer is to promote the cause of justice. That is why legal
practitioners, as a class, are called officers of the court, and as
such, whatever they submit to the Bench – other than legal argument
– carries the character of material which should be in tandem with
the duty to administer justice. Accordingly, a presiding judicial
officer before whom such a statement is made is, for professional and
ethical reasons, obliged to accord the statement so much weight as
may influence his decision. It is in that light that I felt that I
should juxtapose the statement with his evidence in order to assess
their congruence.

[45] The learned
President in the Court below did not lose sight of the complication
which the statement made in contradistinction with Mr. Strydom’s
evidence, as is illustrated by the following text from his judgment:

“I
am somewhat troubled by Mr. Strydom’s remarks in court prior to his
withdrawal on 16 June, 2003. He conceded on that occasion that he
had not conveyed the terms of the settlement ‘to such an extent
that the (respondent) understood it to incorporate all claims’ and
that he should have been more frank and open when he had discussed
the terms of the agreement with him. I find those remarks difficult
to reconcile with his evidence that he had told the respondent that
he and the applicant should get out of one another’s hair and that
they should make a ‘clean break’. Given the respondent’s
denial, it might well be that Mr. Strydom subjectively felt at the
time he gave the explanation that he could have done even more than
he had – hence the concession.”

In my considered opinion
the learned President underplayed the seriousness of that statement.
I say so because despite that statement, he highly rated Mr.
Strydom’s credibility. I disagree with him.

[46] My consequential
determination regarding the question I posed in (a) of paragraph [30]
ante is,
therefore, that in so far as the authority to settle the dispute
relevant to the unfair dismissal of September, 2001 was concerned,
that was undoubtedly given by virtue of the fact that Mr. Worku
retained Mr. Strydom as his counsel in the action commenced in the
District Labour Court. I come to that conclusion pursuant to the
principle enunciated in Dlamini
v Minister of Law and
Order
and Another,
supra.
In
fact there is no dispute about the mandate to settle in that respect;
except that Mr. Worku was not happy with the amount offered to him,
but that is a side issue which can, if necessary, be dealt with
separately. The issue in
casu is
whether Mr. Strydom had a mandate to conclude a settlement agreement
entailing the inclusion of the second dismissal in a full and final
settlement. For the preceding reasons, I am inclined to accept the
contention of Mr. Boesak that Mr. Strydom was not given such mandate.

[47] In the light of the
conclusion I have arrived at, it is academic for me to discuss the
question of a principal’s duty to give notice regarding the
subsequent termination or limitation of his agent’s mandate. The
principle in Salisbury
Bottling
(Pty) Ltd,
supra,
regarding
the giving of such notice is applicable when there has been a mandate
initially given and later the mandate is removed or restricted. Then
the principal is required to notify the world at large of such
termination or restriction. It must follow that where no mandate
existed, the idea of giving a notice is otiose. Moreover, the
evidence of both Mr. Strydom and Mr. Heathcote shows that Mr. Worku
was a fickle person who repeatedly resiled from his commitments. As
for Mr. Heathcote, at one time in the course of proceedings in this
case he suffered the embarrassment of Mr. Worku laying charges with
the police alleging that Mr. Heathcote had bribed his, Mr. Worku’s,
lawyers. Both Mr. Strydom and Mr. Heathcote are seasoned legal
practitioners. In the event, after their experience of Mr. Worku
being that type of person, the least I would have expected of them
was to insist that if they were to get any mandate from Mr. Worku,
that mandate should be in writing.

[48] It is astonishing
that despite Mr. Worku’s fickle character as evidenced by his
repetitive failure to honour his commitments, Mr. Strydom did not, at
a much earlier stage, decide to withdraw his legal services from him.
The wise counsel given by Lord Esher in Matthews
and Another v Munster,
supra,
is that
when a client informs his counsel that he does not like the terms
upon which counsel has agreed to conclude a settlement on behalf of
his client, counsel ought to say to the client, “then I will no
longer act for you.” Had Mr. Strydom acted in accordance with that
sagacious counsel his agency relationship with Mr. Worku might have
terminated before the regrettable circumstances recorded in this
judgment.

[49] Because my
conclusion is that Mr. Strydom did not have a mandate in regard to
his client’s second dismissal, I deem it equally unnecessary to
discuss the question of bona
fides in
relation to the conduct of an agent while executing his or her
mandate. This means that the only important issue remaining and
which I need concern myself with in this judgment is the issue of the
appropriateness of the deviation from the main application to the
issue of the existence or non-existence of the settlement agreement.

[50] Rule 6(1) of the
Labour Court Rules made pursuant to section 22 of the Labour Act, No.
6 of 1992, provides that every application “shall be brought on
notice of motion supported by an affidavit as to the facts upon which
the applicant relies for relief.” In fact on two previous
occasions the respondent’s legal representatives made applications
in compliance with that rule of procedure. That was when they
applied for the rescission or variation of the default judgment and,
secondly, when they applied for the annulment of the warrant of
execution. There was no earthly reason why in respect of the very
important issue of the settlement agreement they decided to make an
informal and irregular oral application even though all the
indications of opposition to that application must, in the
circumstances of this case, have been apparent and expected. My
feeling is that Usiku, AJ, ought to have outrightly rejected that
abnormal application on the ground of failure to comply with
procedural rules.

[51] There was then an
application by the appellant for condonation for the late filing of
the power of attorney, the notice of appeal and of the record of
appeal. Because of the important point of law the appeal raised, I
would, and do hereby, grant the combined application in retrospect.
Nothing more needs to be said about that.

[52] The respondent
raised a point in
limine
whereby a complaint was laid that the record of appeal was incomplete
because a substantial portion of exhibits were not included and that
some of the exhibits included in the record were incorrectly marked.
That was a genuine complaint. However, this appeal was extremely
well presented on paper as well as in oral submissions by both sides.
To this end, the court wishes to commend both Mr. Boesak, on behalf
of the appellant, and Ms. Schimming-Chase, for the respondent, for
the industry they put into the preparation of their heads of
argument, and in their oral submissions which they presented
lucidly and with commendable verve. This court did not, by virtue of
the said deficiencies in the record of appeal, find itself inhibited
in comprehending the issues which cried for determination. At the
end of the day, therefore, I do not consider that the administration
of justice has been prejudiced.

[53] After all has been
said and done, the inevitable decision I have come to is that this
appeal must be, and it is allowed. In consequence, I make the
following order:

1. The appeal is allowed.

2. The finding by the
Court a
quo that
the main application had been settled between the appellant and the
respondent is set aside and the following finding is substituted
therefor:

“There has been no
settlement of the main application involving the parties.”

3. This matter is
remitted to the Labour Court for the hearing and determination of the
main application.

4. The respondent is
ordered to pay the appellant’s costs of the appeal, such costs to
include the costs of one instructing and one instructed counsel.

________________________

CHOMBA,
AJA

I
concur.

________________________

SHIVUTE,
CJ

I
also concur.

________________________

SILUNGWE,
AJA

COUNSEL
ON BEHALF OF THE APPELLANT: Mr. A.W. Boesak

Instructed
by: Engling, Stritter & Partners

COUNSEL
ON BEHALF OF THE RESPONDENT: Ms. E.M. Schimming-Chase

Instructed
by: GF Köpplinger Legal Prac.