IN
THE SUPREME COURT OF NAMIBIA

REPORTABLE

CASE NO: SA
67/2012

DATE: 29 OCTOBER
2014

In
the matter between:

NAMIBIA
WILDLIFE RESORTS
LIMITED.................................................Appellant

And

GOVERNMENT
INSTITUTIONS PENSION FUND..........................First
Respondent

SIMEON
INGWAPHA..................................................................Second
Respondent

SELMA
CHRISTOPH....................................................................Third
Respondent

Coram:
MAINGA JA, MTAMBANENGWE AJA and HOFF
AJA

Heard:
27 June 2014

Delivered:
29 October 2014

APPEAL JUDGMENT

MAINGA
JA (MTAMBANENGWE AJA and HOFF AJA concurring):

Introduction

[1]
This appeal raises the
question of whether the second and third respondents, who were
employees of the appellant, were retrenched or resigned from Namibia
Wildlife Resorts Ltd (NWR). At the heart of the dispute between the
parties are the provisions of s 10(1), (2), 4(c)
of Namibia Wildlife Resorts Company Act of 1998 and Rule 3.4 of the
Government Institutions Pension Fund (GIPF Rules).

[2]
Section 10 (1) provides
that the staff members who were employed in the Ministry of
Environment and Tourism (the Ministry) for performing functions in
relation to the wildlife resorts enterprise shall on the transfer
date be transferred to the service of the Company and be offered
employment by the Company on such terms and conditions of service
which, in the aggregate, shall not be less favourable financially
than those held by such person in the Ministry at the date of
transfer of service. Section 10(4)(c)
provides that where a person is appointed in the service of the
Company, such person shall continue to be a member of the Government
Institutions Pension Fund . . . and for such purpose, the Company
shall be deemed to be a statutory institution which has been admitted
to membership under the Rules of that Pension Fund.

[3]
Rule 3.4 provides for
early retirement for reasons other than age or state of health and
reads as follows:

‘3.4
Early retirement for reasons other than age or state of health

(1)
A member may retire from service prior to his/her normal retirement
date in the following instances:

…

(d)
with the approval of the trustees, owing to his/her dismissal for
reasons other than his/her unsuitability or inability, in order to
promote efficiency or economy of his/her employer.

Such
member shall receive a pension vesting on the first day of the
following month. Such pension shall be calculated as 2.4 percent of
the member’s final salary multiplied by the member’s term
of pensionable service, subject to (2) below.

(2)
It is provided that –

(a)
in the case of a member who retires in terms of Rule 3.4 (1) (a) or
3.4 (1) (d) above, such pension shall be increased by –

(i)
one-third of the period of the member’s pensionable service; or

(ii)
the period between the date on which the member so retires and the
date on which the member would have attained the normal retirement
age; or

(iii)
a period of five years, whichever is the shortest.

(b)
any additional liability as determined by the actuary, and incurred
by the fund as the result of the retirement of a member in terms of
Rule 3.4(1)(a) or 3.4 (1)(d) shall be paid to the fund by the
employer of the member, unless the trustees, acting on the advice of
the actuary, determine otherwise.’

The
Background

[4]
Mr Simeon Iingwapha and
Ms Selma Christoph, the second and third respondents, were employees
in the internal audit section of NWR. During November 2009, the
second and third respondents received identical letters dated 12
November 2009 from the managing director of NWR. These letters
informed the second and third respondents that for reasons of
structural reorganisation, the auditing of NWR would be done by
external auditors twice a year, and the internal audit section was
declared redundant in line with s 34(1) of the Labour Act 11 of 2007.
The letters stated that the positions previously held by the second
and third respondents no longer existed, but that existing options
would be made available to them if they showed interest in working
for the appellant. In the event that they decided not to pursue their
careers with NWR, they would be compensated accordingly and in line
with the Labour Act. The letters in their entirety (using the one
addressed to the second respondent) read as follows:

‘12
November 2009

Mr
Simeon Iigwapha

Head
Internal Audit

NWR

Windhoek

Dear
Mr Iingwapha,

SUBJECT:
STRUCTURAL REORGANISATION IN NWR

NWR
was created by an Act of Parliament No. 3 of 1998 and was
commercialized to operate and be managed on sound business and
profitable principles.

This
prompted the Cabinet as the shareholder called for strong,
comprehensive and accountability systems. Cabinet henceforth approved
the turnaround strategy of NWR which has been implemented
successfully between the years 2006 – 2009.

NWR
is now embarking on another strategy, namely the Growth strategy. It
is against this background that the Board of Directors of NWR met and
resolved to have the company audited twice a year by external
auditors (Resolution No.2009.02.27/15) this will be done in
order to anticipate future potential deficiencies such as the 2005
collapse. This decision thus brought about other business
implications, namely, the Internal Audit section. The board then
decided to as in line with Section 34(1) of the Labour Act, No. 11
of 2007 declared the Internal Audit section redundant (Resolution
No.2009.10.09/04) because of duplication as their work will be
done by external auditors from now on. It is against that background
that I wish to inform you about these structural changes.

Henceforth
the position you occupy in NWR no longer exist, there for I am
informing you so that should you have interest in working for NWR
further, existing options will be made available to you upon showing
interest yourself. However if you do not have interest in pursuing
your career further with NWR, you will be compensated accordingly and
in line with the Labour Act.

I
want to thank you and wish to assure you that the company will avail
assistance to you where necessary.

Yours
sincerely

Signed

Tobie
Aupindi, PHD

Managing
Director’

[5]
The second and third
respondents opted to be retrenched. A meeting between NWR and the
second and third respondents was scheduled on 14 December 2009 to
discuss the retrenchment packages. Before the meeting of 14 December
2009, the second and third respondents informed the human resources
department that NWR would also be liable to pay a certain sum to GIPF
in light of the difference between their age at the relevant time and
retirement age. That information prompted NWR in letters dated 11
December 2009 to offer re-employment to the two respondents, but on
substantially different terms of remuneration and with reference to
job positions for which the second and third respondents did not have
appropriate knowledge or skills.

[6]
The two respondents
declined the offers because they suspected that either the offers
were not made in good faith, and NWR would later dismiss them for
non-performance, or that NWR was attempting to avoid negotiating
retrenchment packages and transferring their pension monies over to
GIPF.

[7]
The appellant attempted
to reach some form of agreement with the second and third respondents
that the retrenchment packages could be offset against the payment of
the pension monies to GIPF. The two respondents declined this offer
on the basis that the retrenchment packages and the transfer of
pension monies constituted two separate issues. The second and third
respondents were then informed that the board of NWR would meet and
decide on the issue. Later they were informed that they would receive
letters from NWR’s lawyers, which they never received.When the
retrenchment negotiations stalled, the second and third respondents
complained to the Labour Commissioner. An arbitrator was appointed
and the dispute between the parties was heard on 8 March 2010. The
two respondents appeared in person and NWR was represented by Mr
Olavi Hamwele, the senior manager of Human Capital, and Ms Zelna
Hengari, who was the company secretary at the time. On 24 March 2010,
the arbitrator rendered his/her award, interalia, holding that NWR
must respect and honour the retrenchment option exercised by the two
respondents as was made available to them by paying each a
retrenchment package.

[8]
Subsequent to the
arbitration award, the two respondents received two identical letters
dated 20 April 2010 relating to the arbitration award settlement. The
only difference between the letters was the settlement amount; as the
second respondent was the more senior of the two employees, his
settlement amount was higher than that of the third respondent. The
letters (again using the letter addressed to the second respondent)
were worded as follows:

’20
April 2010

Mr
Simeon Iingwapha

Namibia
Wildlife Resorts Ltd

Private
Bag 13378

Windhoek

Dear
Mr Iigwapha,

SUBJECT:
ARBITRATION AWARD SETTLEMENT

The
company has decided to abide by the arbitration award dated 25^th
March 2010, in which the payments to be done to you were set out.
This payment will be done to you by cheque, after lawful deductions,
in front of the Arbitrator. With regard to the month notice, the
company has decided to settle the one month notice period.

You
are therefore officially informed that the 30^th April 2010
is your last day of employment with NWR thus you are required to
effect the complete handover on or before the 30^th April
2010.

The
settlement is as follows:

Yours
sincerely,

Signed

Olavi
Hamwele

SENIOR
MANAGER: HUMAN CAPITAL

I
S Iingwapha hereby acknowledge receipt of this Arbitration
Award Settlement from NWR and therefore confirm that the above is in
line with the Arbitration ruling.

cc.
Mr. Philip Mwandingi’

[9]
Subsequent to receiving
these letters regarding settlement, the two respondents requested
quotations for their pension benefits from the first respondent,
GIPF. The reason they gave for the early retirement was
redundancy/retrenchment. The senior manager of Human Capital of the
appellant certified that the information furnished in the application
form was correct. GIPF quoted N$1,941,971.99 and N$1,033,785.30
respectively for the second and third respondents, monies that NWR
was obliged to transfer to GIPF in order for the full benefits of the
second and third respondents to be paid. What followed was an
exchange of letters between the appellant and second and third
respondents in which the two respondents demanded payment of their
pension benefits.

[10]
On 15 July 2010, the
legal practitioners for the appellant addressed a letter to the Chief
Executive Officer of the first respondent that confirmed that the
second and third respondents had been retrenched. The relevant
passages read as follows:

‘2.7
Two employees of the NWR, Mr Simeon Iingwapha and Ms Selma Christoph
(“the employees”) were retrenched by NWR, the latter who
was ordered, through an award of the Labour Commissioner dated 25
March 2010, to pay certain retrenchment benefits to them.

2.8
The award ordered and directed NWR to pay the employees a
“retrenchment package” made up by certain
benefits, but which did not include any “additional sum”
as contemplated by Rule 3.4 of the GIPF rules.

2.9
In two pre-emptive letters directed to the employees on 14 December
2009, the GIPF informed them that “the employer . . . (NWR)
. . . is required to pay a lump sum” of respectively N$1
941 971 and N$ 1 033 985 to cover the additional costs of the
increased pension contemplated by paragraph 2.6 above.

3.
The questions arising from the above are the following:

3.1
Upon what basis can the GIPF demand payments falling outside the
“retrenchment package” (that was clearly intended
to be an all inclusive award) awarded to the employees?

3.2
Upon what basis, in any event, can the GIPF assume or assert the
powers to demand that the NWR, an autonomous corporate entity with
plenary powers in terms of section 34 of the Companies Act, and with
the further powers set out in section 7 of the NWR Act, pay a
unilateral determined sum, the extent of which was made up in the
discretion of the “trustees” and/or “actuary”
of the GIPF, to or for the benefit of the employees?

4.
Especially with reference to the contents of paragraph 3.2 above, it
is pointed out that Article 16 of the Namibian Constitution
entrenches the right of NWR to “acquire, own and dispose”
(of) property, that also includes its financial resources, in a
manner unimpeded by actions such as those of the GIPF.

5.
The NWR is considering instituting urgent proceedings in the High
Court of Namibia aimed at obtaining a declaration order pronouncing
the NWR not to be liable for the “additional”
amounts claimed by the GIPF to be payable to the employees.

6.
Unless you can refer us to an appropriate and legitimate basis upon
which the GIPF can completely do what it has asserted itself capable
of, within 14 days of date hereof, we shall launch proceedings in the
High Court aimed at achieving the relief set out in the aforegoing
paragraph.

Your
faithfully

KOEP
& PARTNERS

signed

R
T D MUELLER’

[11]
It was at this juncture
that GIPF, the first respondent, became party to the dispute. On 26
July 2010, the Manager of Legal Services of GIPF, Mr Melki Uupindi,
responded to the letter received from the appellant’s legal
practitioners, Koep & Partners. Mr Uupindi in his letter drew
attention to the provisions of Rule 3.4 and opined that the rule was
applicable in the circumstances of the second and third respondents,
as the employees were either retrenched due to the appellant’s
re-organisation or in order to promote the efficiency or economy of
the appellant. He also pointed out that the appellant’s claim
that the retrenchment package was indeed to be an ‘all
inclusive award’ was not valid, as benefits are not regulated
by the award and were not included in the retrenchment package
awards. He further pointed out that the total pension benefits of the
second and third respondents were N$2,975,759.59 and N$1,762,353.80
respectively.

[12]
The appellant did not
respond to GIPF’s letter of 26 July 2010. In a letter dated 6
October 2010 and addressed to the appellant, Mr Uupindi demanded that
the pension benefits of the second and third respondents be paid to
GIPF within 10 days. The second respondent through his legal
representatives in a letter dated 11 October 2010 also made a demand
for the payment of his benefits by noon 13 October 2010, failing
which he said he would commence civil action against the appellant.

The High Court
proceedings

[13]
The imminent litigation
prompted the appellant on 27 October 2010 to launch an urgent
application in the High Court seeking the following relief:

‘1.
Dispensing with the forms and service provided for in the rules of
court and hearing this matter as one of urgency;

2.
Declaring that applicant is not liable, in terms of any of the
provisions of the first respondent’s “Fund Rules and
Procedures” (hereinafter “the Fund Rules”), or
specially, without derogating from the generality of the foregoing,
in terms of rule 3.4 of the Fund Rules, to make any contribution or
payment to either first respondent, or to, or on behalf of second and
third respondents, as benefit payable to the latter respondents
arising from their termination of their employment with the
applicant;

3.
Granting to applicant such further and/or alternative relief as this
Honourable Court may deem fit;

4.
Directing the respondents, jointly and severally, to pay the costs of
this application.’

[14]
Mr Aupindi Tobie
Aupindi, the Managing Director of the appellant deposed to an
affidavit on behalf of the appellant reiterating the provisions of s
10(1)(4)(c)
of the Namibia Wildlife Resorts Act and Rule 3.4 of the GIPF Rules.
He sketched the history of the dispute between the appellant and the
second and third respondents. He admitted that the second and third
respondents were given options to be redeployed within the appellant
or accept retrenchment, but stated that before the details of the
retrenchment packages were finalised, the appellant withdrew the
retrenchment offer. Without stating the exact positions proposed for
the redeployment, he generally stated that alternative positions
within the appellant were made available to the second and third
respondents. He further stated that the second and third respondents
declined the offers for a variety of personal reasons including (on
the part of third respondent) an unfounded likelihood of
victimization that would come in the wake of redeployment. Mr
Aupindi’s affidavit continued by attacking the award granted by
the arbitrator. It then stated that the second and third respondents
sought a defective and unachievable relief; that the defective and
unachievable short statement of relief sought by the second and third
respondents (providing that the appellant be compelled to continue
retrenchment negotiations with the second and third respondents in
terms of the letters that gave the second and third respondents
options for redeployment or retrenchment) indicated that no prior
dismissal or retrenchment had finally been agreed upon, finalized or
implemented; that the defective and unachievable relief above
vitiated the proceedings arising from the second and third
respondents’ complaints and rendered the proceedings a nullity;
that the deponent was advised that it was not necessary for the
appellant to have specifically sought to review the award before it
could rely on the nullity thereof; that the arbitrator unilaterally
and without having been requested to do so, proceeded to make an
award not requested nor applied for by either of the parties; that
the arbitrator had no jurisdiction to make the award and thus acted
ultra vires of his powers; that for such reason, the award is a
nullity that can be ignored without any application to set it aside;
that the validity of the award can also be impugned in a collateral
attack without seeking to set the same aside. Mr Aupindi contended
that the award was intended to be ‘once and for all’ and
that this extended to the dispute regarding the pension; and that the
term ‘package’ as used by the arbitrator, if the award is
viewed not to be a nullity, is an all inclusive ‘once and for
all’ award not capable of being supplemented by the addition of
further benefits. He stated that retrenchment in modern terminology
is also referred to as a ‘dismissal for operational
requirements,’ and that central to this concept is the
prerequisite that an employee must be dismissed for operational
requirements before it can be said that the employee was retrenched.
He further states that in the arbitration award there is evidence to
the effect that the redeployment option at all times remained open,
and was not challenged at any stage. Therefore, the second and third
respondents were not retrenched nor dismissed for operational reasons
or for any other reason. The evidence that they were neither
dismissed nor retrenched can be found in the papers of the
arbitration proceedings. The second and third respondents left the
service of the appellant voluntarily, and Rule 3.4 of the GIPF Rules
was not applicable as the Rule does not confer any right to a pension
benefit on any employee prior to his/her normal retirement date.

[15]
The application was
opposed by the three respondents. The second and third respondents
had initially only opposed the application but later brought
counter-applications identically worded as follows:

‘DECLARING
AND ORDERING THAT:

1.1
the APPLICANT is liable in terms of Rule
3.4 of the Government Institutions Pension Fund Rules (GIPF Rules)
and is thus liable to pay the FIRST RESPONDENT such liability as may
be determined by the FIRST RESPONDENT in accordance with Rule
3.4(2)(b)
of the GIPF Rules; and

1.2
upon discharge of liability above mentioned
under sub-paragraph 1.1, the FIRST RESPONDENT shall be liable to pay
to the SECOND RESPONDENT the applicable pension benefits in terms of
Rule 3.4 of the GIPF Rules;

2.
DECLARING AND ORDERING that the APPLICANT is liable to pay the costs
attendant to lodging an urgent application on an attorney client
scale;

3.
Costs of suit;

4.
Further and alternative relief.’

[16]
The respondents’
case on the urgency of the application is that the appellant did not
make out a case of urgency as the alleged urgency was self-created.
On the merits, the respondents stated that the appellant failed to
show why the appellant did not appeal the award or review the
arbitration proceedings to have the award set aside. Instead, it
accepted the award and paid the second and third respondents pursuant
to such award. They contend that the ultimate finding of the award is
that the second and third respondents were retrenched by appellant
and that as a consequence, the appellant as a participating employer
in the GIPF is obliged according to Rule 3.4 to cover any additional
liability incurred by the fund as a result of the retirement of the
second and third respondents; that the contention that the second and
third respondents were declared redundant or retrenched is supported
by their requests for quotations submitted by the second and third
respondents to GIPF for their pension benefits; that the reason given
for their retirement was redundancy/retrenchment, which was certified
by the senior manager for human resources of the appellant as
correct; and that the letter of 15 July 2010 from the appellant’s
legal representatives addressed to the Chief Executive Officer of the
first respondent acknowledged that the second and third respondent
had been retrenched.

[17]
The second and third
respondents further added that they were not at all informed of the
exact positions proposed for the redeployment (if any), and that they
were informed that the positions of redeployment would only be
disclosed if they were to show interest in continuing to work for the
appellant, which they regarded as not offers made in good faith. They
challenged the deponent of the founding affidavit made on behalf of
the appellant to produce a resolution from the NRW board that
withdrew the offer of retrenchment.

[18]
The second and third
respondents also argued that they were in fact retrenched. According
to the second and third respondents, and on the advice they received,
retrenchment is made on specific operational grounds under labour law
and cannot be made as an offer that is accepted or declined by an
employee. They made reference to the provisions of s 34(1) of the
Labour Act, which relate to intended dismissal caused by ‘the
reduction of the workforce arising from the reorganisation or
transfer of the business or discontinuance or reduction of the
business for economic or technological reasons.’

[19]
The respondents also
explained that they eventually complained to the Labour Commissioner
because the appellant did not negotiate with them in good faith, and
that they could not terminate their employments with the appellant of
their own accord. The respondents contended that the application was
brought so that the appellant could escape the provisions of Rule
3.4. The first respondent also contends that the stance taken by the
appellant in these proceedings is reprehensible and calls for censure
by this Court. The respondents ask for costs against the appellant.

[20]
Ms Helna Hengari, the
company secretary, deposed to the replying affidavit reiterating the
case for the appellant as set out in the founding affidavit. She
explained that the ‘request for quotations’ forms which
reflect ‘retrenchment’ as the reason for the departure of
the second and third respondents from the service of the appellant
were completed in confusion and suggestions by the second and third
respondents to Mr Hamwele, the senior manager in human resources, and
Ms Iyambo, who completed the requests of the second and third
respondents respectively, that the forms should state ‘retrenchment’
as the reason for departure. Ms Hengari reiterated that the award of
the arbitrator was fatally flawed and amounted to a nullity, and that
the appellant decided to simply pay the second and third respondents
in order to facilitate the speedy finalisation of the dispute between
the parties. She maintained that the second and third respondents
were told what the redeployment offers entailed and both refused such
offers.

[21]
The third respondent
deposed to a supplementary affidavit stating that during November
2010, the appellant caused an advertisement to be placed in the
newspaper the ‘New Era’ inviting applications for two
positions in the internal audit department. She states that the
abolition of the internal audit department, including the two
positions she and second respondent occupied, and re-advertisement of
the same positions amounted to a tactical ploy to retrench herself
and the second respondent.

[22]
Mr Mueller, the legal
practitioner on record for the appellant, deposed to an answering
affidavit in response to the second and third respondents’
counter application. He stated that the relief sought by the second
and third respondents in their counter applications was unintelligent
and obscure, as they could not seek to place further obligation upon
the appellant subsequent to ‘. . . the discharge of the
liability contemplated by prayer 1.1.’ The counter applications
were vague, embarrassing and excipiable; in any event they were
superfluous as the relief sought by the appellant in its application
would determine the rights of the second and third respondents.

[23]
The second respondent
in his replying affidavit stated that an outcome of dismissal of the
appellant’s application would not guarantee that the appellant
would discharge its obligations to pay over their pension benefits to
GIPF. The counter application was necessary to compel the appellant
to pay over the benefits in the event its application was dismissed.

[24]
The application was
heard and judgement reserved on 12 July 2012. On 22 October 2012, the
High Court handed down the following order:

‘1.
The application is dismissed with costs.

2.
In respect of prayers 1 and 2 of the second and third respondents’
counter application, no order is made.

3.
Costs of the counter-application shall be costs in the cause.’

[25]
The court a
quo had indicated
to the parties that the reasons for the order/judgment would follow,
but up to the date on which this appeal was heard no reasons were
furnished. This Court has therefore been compelled to decide the
issue to be determined without the benefit of the view of the court a
quo on the matters
before it. This is an unfortunate situation and lamentable indeed
that both the appellant and the second and third respondents were
denied reasons for their applications. In Strategic
Liquor Services v Mvumbi No
2010 (2) SA 92 CC at 96G, the Constitutional Court of South Africa
pointed out that ‘it is elementary that litigants are
ordinarily entitled to reasons for a judicial decision following upon
a hearing, and, when a judgment is appealed, written reasons are
indispensible. Failure to supply them will usually be a grave lapse
of duty, a breach of litigants’ rights, and an impediment to
the appeal process’.

[26]
In Mphahlele
v First National Bank of SA LTD 1999
(2) SA 667 CC, Goldstone J at 671E-H had the following to say: -

‘There
is no express constitutional provision which requires Judges to
furnish reasons for their decisions. Nonetheless, in terms of s 1 of
the Constitution, the rule of law is one of the founding values of
our democratic state, and the Judiciary is bound by it. The rule of
law undoubtedly requires Judges not to act arbitrarily and to be
accountable. The manner in which they ordinarily account for their
decisions is by furnishing reasons. This serves a number of purposes.
It explains to the parties, and to the public at large which has an
interest in courts being open and transparent, why a case is decided
as it is. It is a discipline which curbs arbitrary judicial
decisions. Then, too, it is essential for the appeal process,
enabling the losing party to take an informed decision as to whether
or not to appeal or, where necessary, seek leave to appeal. It
assists the appeal Court to decide whether or not the order of the
lower court is correct. And finally, it provides guidance to the
public in respect of similar matters. It may well be, too, that where
a decision is subject to appeal it would be a violation to the
constitutional right of access to courts if reasons for such a
decision were to be withheld by a judicial offer.’

[27]
In Botes
and Another v Nedbank LTD 1983
(3) SA 27 AD, Corbett JA as he then was, at 27H–28A expressed
himself as follows:

‘In
a case such as this, where the matter is opposed and the issues have
been argued, litigants are entitled to be informed of the reasons for
the Judge’s decision. Moreover, a reasoned judgment may well
discourage an appeal by the loser. The failure to state reasons may
have the opposite effect. In addition, should the matter be taken on
appeal, as happened in this case, the Court of Appeal has a similar
interest in knowing why the Judge who heard the matter made the order
which he did.’

[28]
We ourselves agree with
the sentiments outlined above. The failure by Van Niekerk J to
furnish her reasons, when requested for the appeal process, cuts
right across the appellant’s right of access to courts.

[29]
The appeal lies against
paras 1 and 3 of the order above, the second para having been
abandoned.

Condonation for
the late filing of the appeal

[30]
Unfortunately as is far
too often the case, I must first deal with the condonation
application before I can turn to the substance of the appeal. The
appeal record was filed 19 days late. The reason for the delay is
ignorance of the applicable rules of this Court on the part of the
attorneys of record. Ordinarily the application should have been
declined. In Maria
Susanna Kleynhans v Chairperson of the Council for the Municipality
of Walvis Bay and Others
2013 (4) NR 1029 at 1031D we endorsed the sentiments of Friedman AJA
in Ferreira v
Ntshingila 1990 (4)
SA 721 (A) at 281G where he stated:

‘An
attorney instructed to note an appeal is in duty bound to acquaint
himself with the Rules of the Court in which the appeal is to be
prosecuted. See Moaki v Reckitt and
Colman (Africa) Ltd and Another 1968
(3) SA 98 (A) at 101; Mbutuma v Xhosa
Development Corporation Ltd 1978 (1) SA
681 (A) at 685A-B. Insomuch as an applicant for condonation is
seeking an indulgence from the Court, he is required to give a full
and satisfactory explanation for whatever delays have occurred.’

[31]
In Aymac
CC and another v Widgerow 2009
(6) SA 433 (W), Gautschi AJ made the following comments (which were
also approved in the Kleynhans
matter above at 450H-I):

‘[36]
. . . An attorney is not expected to know all the rules, but a
diligent attorney will ensure that he researches, or causes to be
researched (by counsel if necessary), the rules which are relevant to
the procedure he is about to tackle. And if he discovers at some
stage that he has been mistaken or remiss, then it is doubly
necessary that he study the rules carefully in order to ensure that
further mistakes are not made, and that those that have been made are
rectified. This is the least one expects of a diligent attorney.

And
at 451-452A:

[39]
Culpable inactivity or ignorance of the rules by the attorney has in
a number of cases been held to be an insufficient ground for the
grant of condonation. See PE Bosman
Transport Works Committee and Others v Piet Bosman Transport (Pty)
Ltd 1980 (4) SA 794 (A) at 799B-H;
Rennie v Kamby Farms (Pty) Ltd 1989
(2) SA 124 (A) at 131I-J; Ferreira v
Ntshingila 1990 (4) SA 721 (A) at
281G-282A; Blumenthal and Another v
Thomson NO and Another 1994 (2) SA 118
(A) at 121C-122C. The principle established by these cases is that
the cumulative effect of factors relating to breaches of the rules by
the attorney may be such as to render the application for condonation
unworthy of consideration, regardless of the merits of the appeal.

[40]
There is a further reason why the court should not grant condonation
or reinstatement in the face of gross breaches of the rules.
Inactivity by one party affects the interest of the other party in
the finality of the matter. See in this regard Federated
Employers Fire & General
Insurance Co Ltd and Another v McKenzie
1969 (3) SA 360 (A) at 363A where Holmes JA said the following
concerning the late filing of a notice of appeal:

“The
late filing of a notice of appeal particularly affects the
respondent’s interest in the finality of his appeal – the
time for noting an appeal having elapsed, he is prima
facie entitled to adjust his affairs on
the footing that his judgment is safe; see Cairns’
Executors v Gaarn 1912 AD 181 at p.
193, in which Solomon JA, said:

“After
all the object of the Rules is to put an end to litigation and to let
parties know where they stand.”’

[32]
The order in this case
was granted on 22 October 2012. The appeal was noted on 13 November
2012. Mr Mueller, the appellant’s legal representative who
deposed to an affidavit for the condonation application, states that
he was under the erroneous impression that the appeal record had to
be filed, by the latest, within a period of three months from the
date on which the appeal was noted. He was not certain whether an
appeal record had to be filed at any stage prior to the furnishing of
reasons for an order in circumstances where an order of court
contained no reasons for such order. His uncertainty is due to the
provisions of Rules 5(5)(c)(i),
5(13) and 5(16). Rule 5(13) provides that ‘the copies of the
record shall include the reasons given by the judges of the court
appealed from . . .’ and 5(16) provides that ‘the
registrar may refuse to accept copies of records which do not in his
or her opinion comply with the provisions of this rule’. Rule
5(5) provides:

‘(5)
After an appeal has been noted in a civil case the appellant shall,
subject to any special directions issued by the Chief Justice –

(a)
in cases where the order appealed against
was given on an exception or an application to strike out, within six
weeks after the date of the said order or, in cases where leave is
required, within six weeks after the date of an order granting leave
to appeal;

(b)
in all other cases within three months of
the date of the judgment or order appealed against or, in cases where
leave to appeal is required, within three months after an order
granting such leave;

(c)
within such further period as may be agreed
to in writing by the respondent,

lodge
with the registrar four copies of the record of the proceedings in
the court appealed from, and deliver such number of copies to the
respondent as may be considered necessary: Provided that –

(i)
whenever the decision of a matter on appeal
is likely to turn exclusively on a question of law the parties or
their attorneys may, by mutual consent, submit such question in lieu
of lodging copies of the record and type such parts of the record as
may be necessary for the discussion of the same; and

(ii)
the court, if it thinks fit, may order the
full discussion of the whole case.’

[33]
I cannot see why Mr
Mueller could have been under an erroneous impression that the appeal
record had to be filed within a period of three months from the date
when the appeal was noted, when Rule 5(5)(b)
provides for a period of three months from the date of the judgment
or order. Rule 5(5)(c)(i)
has no application in the circumstances of this case. Rules 5(13) and
(16) could not have caused uncertainty as Rule 5(5) and (c) makes
provision for two exceptions where a record may be filed outside the
3 months, namely, any special directions issued by the Chief Justice
and ‘within such further period as may be agreed to in writing
by the respondent’. Rules 5(5)(c)(i),
(13) and (16) do not provide exceptions in the present circumstances.

[34]
It follows that the
explanation offered is unacceptable or wanting more so because the
present appeal appears to be without merit, but nevertheless
condonation and reinstatement should be granted with costs. The first
reason for this is that the order of the court a
quo in its present
form does not include reasons for the order, and the parties are
uncertain whether the dismissal of the appellant’s application
in that court and the making of no order on the counter applications
of the second and third respondents meant that the appellant was
liable to the first respondent for the pension benefits of the second
and third respondents. This is notwithstanding Mr Mueller’s
answering affidavit stating that the reliefs sought by the second and
third respondents in their counter applications were superfluous as
the relief sought by the appellant in its application would determine
the rights of the second and third respondents. The second reason for
this is that the second and third respondents did not cross-appeal
the ‘no order’ on their counter applications.

[35]
I now turn to consider
the principal issue before this Court.

Submissions

[36]
Counsel for the
appellant reiterated the appellant’s case that the second and
third respondents were not retrenched, alternative positions within
the appellant were made available to them, and they voluntarily
resigned from the employment of the appellant. Counsel for the
appellant heavily relied on excerpts from the award of the
arbitrator, to the effect that second and third respondents were
offered redeployment which they declined.

[37]
Counsel also contended
that the denials of the second and third respondents that
redeployment offers were made in good faith, or at all, are contrary
to crucial evidence presented by the appellant, which is that the
second and third respondents were given the choice to be redeployed
within the appellant or to accept a retrenchment package. They
indicated a preference for the second option (i.e. retrenchment) but
before the details of the retrenchment packages were finalised or the
retrenchments were implemented, the appellant withdrew the
retrenchment offers.

[38]
Counsel further
contended that retrenchment in modern terminology refers to a
dismissal due to operational requirements, and that central to the
concept of retrenchment is the prerequisite that an employee must be
dismissed for operational requirements before it may be said that the
employee was retrenched. Counsel also submitted that the terms of the
complaint filed with the Labour Commissioner excluded any suggestion
of prior dismissal. Retrenchment, as understood by the man in the
street, counsel argued, is simply that he has lost his job because
there is no longer a job.

[39]
Counsel recorded three
grounds for dismissal, namely, for misconduct,
incompetence/incapacity/incompatibility, and for operational
requirements. Central to the notion of a dismissal is the requirement
that the employer must have acted unilaterally in terminating the
employment of the employee before the departure can be described as a
retrenchment or dismissal. It follows that if the employee
himself/herself elected or agreed to depart from the employer, the
termination of the contract of employment is no longer unilateral and
therefore no longer constitutes a dismissal. Counsel made reference
to Jones v Retail
Apparel [2000] 6
BLLR 676 (LC) in his argument on this point.

[40]
Counsel then turned to
the collateral attack directed at the arbitrator’s award
reiterating the case for the appellant, particularly the part of the
award that suggested that the employees had been retrenched. Counsel
argued that those findings were clearly ultra
vires of the powers
of the arbitrator and made in the forum where the arbitrator had no
jurisdiction to pronounce on the issue of retrenchment and make the
award. Counsel concluded by stating that para 1 of the order of the
court a quo
should be set aside and substituted with an order that the appellant
was not liable for the pension benefits of the second and third
respondents, and that the respondents were jointly and severally
liable to pay the costs of the appellant.

[41]
Mr Marcus for the first
respondent commenced by addressing the argument put by counsel for
the appellant that the proceedings before the arbitrator were a
nullity on the bases that, first, the relief sought by the second and
third respondents in the arbitration proceedings was ‘unattainable
relief’, and, second, that the relief granted by the arbitrator
had not been requested by the second and third respondents. Mr Marcus
said that this argument was without merit when considered with
reference to, first, the relevant provisions of the Labour Act 11 of
2007, which sets out the jurisdiction of the arbitrator, and second,
the relevant facts of the dispute between the appellant and the
second and third respondents, which arose in terms of s 34 of the
Labour Act of 2007.

[42]
Counsel further
contended that based on the evidence before him, the arbitrator
ordered the appellant to pay retrenchment packages to the second and
third respondents. The fact that the first and second respondents
sought ‘unattainable relief’ could not limit the powers
of the arbitrator if the subject matter fell within his jurisdiction.
Counsel also submitted that appellant’s argument ignores the
fact that what appellant describes as ‘unattainable relief’
was not the only relief sought by second and third respondents, but
that they also prayed that appellant be ordered to pay all monies due
and owing to the second and third respondents in terms of their
retrenchment. That is what the arbitrator ultimately ordered, and
that it was incorrect to argue that the arbitrator made orders not
sought by second and third respondents.

[43]
Counsel further
contended that appellant’s acceptance of the award meant that
it waived any right to challenge the award, whether directly or
collaterally in later proceedings. Counsel pointed out that initially
the appellant argued that the arbitration award was ‘all
inclusive’, meaning that Rule 3.4 did not apply. However, when
that argument was exposed to be wrong, the appellant changed its
argument and submitted that the second and third respondents were not
retrenched. Counsel further pointed out that appellant offered
nonsensical explanations when it was faced with its own description
of the termination of employment, as reference was made to the
retrenchments in NWR documents and correspondence directed to GIPF.
When the appellant realized that the award was conclusive on the
question of retrenchment, the appellant mounted the collateral attack
on the award which counsel submitted is not permissible.

[44]
Counsel also argued
that the arbitration award is conclusive on the question of
retrenchment, and that Rule 3.4(b)
was applicable. The appellant is therefore responsible for any
additional liability incurred by GIPF, and the appeal should be
dismissed with costs. Mr Kamanja for the second and third respondents
shared the submissions by counsel for the first respondents.

[45]
It is common cause that
due to structural reorganisation in the appellant in terms of s 34(1)
of the Labour Act 11 of 2007, the second and third respondents’
jobs in the internal audit department of the appellant were declared
redundant or retrenched by the board of the appellant. The second and
third respondents were informed as such in identical letters dated 12
November 2009. It is also common cause that in the same letters, NWR
offered to redeploy the second and third respondents if they showed
interest in pursuing their careers with the appellant. In the event
that they showed no such interest, they would be compensated in line
with the Labour Act. Both opted for the second option, but before the
details of the retrenchment packages were finalised or the
retrenchments were implemented, the appellant withdrew the
retrenchment offer (as stated the deponent on behalf of the appellant
in the founding affidavit).

Issues for
determination

[46]
Two issues arise for
determination in this case:

1.
Whether the appellant
could unilaterally withdraw the offers of compensation under the
Labour Act 11 of 2007 set out in the letters dated 12 November 2009,
which were validly accepted by the second and third respondents; and

2.
Whether the second and
third respondents were retrenched or voluntarily resigned from the
employment of the appellant.

Could
the appellant unilaterally withdraw the offers of compensation under
the Labour Act 11 of 2007?

[47]
This is a question that
arises within the main dispute between the parties. The appellant’s
letters abolishing the jobs of the first and second respondents made
it clear that their jobs were no longer in existence, but that they
could be redeployed upon showing interest to work for the appellant.
If they were not interested, they would be compensated according to
the terms of the Labour Act. It is also clear from the record that if
the two respondents had accepted redeployment, they would have been
required to enter into new contracts of employment with reduced
benefits. They opted to be retrenched.

Could
the appellant withdraw the offers of compensation under the Labour
Act 11 once the option was communicated and validly accepted?

[48]
Coetzee J in Anglo
Carpets (Pty) Ltd v Snyman 1978 (3) SA 582
(T) at 585G held:

‘It
is trite that an offer can at any time before acceptance be revoked
and that the mere statement that it is irrevocable or not revocable
for a certain period is ineffective. The only way in which this
result can be achieved is if there is indeed a binding agreement on
this aspect. Such an agreement is usually referred to as an option or
a pactum de contrahendo.’

See
also University of the North v Franks and Others [2002] 8 BLLR
701 LAC) par 48.

[49]
In the University of the
North matter, as part of a rationalization
process necessitated by a drastic reduction of its government
subsidy, the appellant (the University) offered staff members of 55
years or older the option of taking voluntary early retirement and
severance benefits. After the offer had been accepted by more than
100 staff members, including the respondents, the appellant withdrew
the offer. The appellant contended that it was entitled to withdraw
the ‘open ended’ offer because it had been drafted
contrary to instructions, and was unauthorized.

[50]
At p 720, para 56 the court held:

‘It
must therefore be held that the offer could not be revoked before its
expiration date. The acceptance of the offer by the second respondent
after 5 September 2000 and before 15 September 2000 was therefore
valid.’

[51]
In Wiltshire and Others v
University of the North [2006] 1 BLLR 82 LC,
the respondent University offered voluntary retrenchment, but
withdrew the offer after acceptance. The applicants sought a
declaration to the effect that they had accepted a valid offer and an
order that it was therefore legally binding on the respondent.

[52]
The court at p 92, para 69 held:

‘I
accept the evidence of the applicants that they had accepted the
offer made by the respondent, that they had communicated their
acceptance in accordance with the respondent’s requirements and
that therefore a valid agreement was entered into.’

[53]
It follows necessarily from these authorities
that once the second and third respondents had opted to be
retrenched, a valid agreement (retrenchment) had accordingly been
concluded and no further action was required on their part. The
negotiations for their severance monies and the payment thereof
should have followed. The arbitrator was correct to have held that
the appellant should honour the option exercised by the second and
third respondents. That being the case, the provisions of Rule 3.4
would have fallen in the schedule of things without question.

[54]
In this case, worse still, there is no evidence
on record other than the appellant’s assertions from which one
can deduce that the option to be retrenched was in fact actually
withdrawn. The second respondent in his opposing affidavit stated at
para 20: ‘I would thus challenge the deponent to produce a
resolution which confirms a withdrawal of an offer for retrenchment’.
In the replying affidavit of Ms Zelna Hengari, a company secretary of
the appellant, she stated, ‘ad paragraph 13 to 21 thereof, the
contents hereof are noted’. She failed to show that the board
of directors that passed a resolution to retrench the second and
third respondents withdrew this decision or the option to be
retrenched.

[55]
In the University of the
North matter, the court at 713 para 35 said:

‘A
body corporate does not act through mere discussions by its members.
It acts through resolutions properly passed. Its decisions are to be
sought in its resolutions. If these are clear, cadit quaestio. If
there is no resolution, there is no decision. The words of Centlivres
CJ in Commissioner for Inland Revenue v Richmond Estates (Pty) Ltd
1956 (1) SA 602 (A) at 606 in respect of a company are equally
applicable here:

“A
company is an artificial person with no body to kick and no soul to
damn and the only way of ascertaining its intention is to find out
what its directors acting as such intended. Their formal acts in the
form of resolutions constitute evidence as to the intentions of the
company of which they are directors . . . .”’

In
the absence of evidence that a resolution was passed to withdraw the
retrenchment options, I must therefore accept that no such decision
was taken. In any event, even if such a decision were taken, once the
retrenchment option was accepted by the second and third respondents,
it gave rise to a binding agreement which had to be honoured.

Were
the second and third respondents retrenched, or did they voluntarily
resign from the employment of the appellant?

[56]
Counsel for the appellant submitted that the
second and third respondents resigned from the service of the
appellant on the basis that they had the option to be redeployed but
refused. Counsel referred to Jones
v Retail Apparel [2000]
6 BLLR 676 (LC) to support his contention.
In Mafika Sihlali v SA Broadcasting
Corporation Ltd [2010] 5 BLLR 542 (LC), the
court said the following of resignation:

[11]
A resignation is a unilateral termination of a contract of employment
by the employee. The Courts have held that the employee must evince a
clear and unambiguous intention not to go on with the contract of
employment, by words or conduct that would lead a reasonable person
to believe that the employee harboured such an intention (see Council
for Scientific and Industrial Research (CSIR) v Fijen (1996) 17
ILJ 18 AD [also reported at [1996 6 BLLR 685 (AD) – Ed], and
Fijen v Council for Scientific and Industrial Research (1994)
15 ILJ 759 (LAC)). Notice of termination of employment given by an
employee is a final unilateral act which once given cannot be
withdrawn without the employer’s consent (see Rustenburg
Town Council v Minister of Labour & Others 1942 TPD 220.

Page
547 – [2010] 5 BLLR 542 (LC)

Potgietersrus
Hospital Board v Simons 1943 TPD 269, Du Toit v Sasko (Pty)
Ltd (1999) 20 ILJ 1253 (LC) and African National Congress v
Municipal Manager, George & Others (550/08) [2009] ZASCA 139
(17 November 2009) at para [11] [also reported at [2009] JOL 24612
(SCA) – Ed]. In other words, it is not necessary for the
employer to accept any resignation that is tendered by an employee or
to concur in it, nor is the employer party entitled to refuse to
accept a resignation or decline to act on it. (See Rosebank
Television & Appliance Co (Pty) Ltd v Orbit Sales Corporation
(Pty) Ltd 1969 (1) SA 300 (T) [also reported at [1969]
1 All SA 132 (T) – Ed]). If a resignation is to be valid
only once it is accepted by an employer, the latter would in effect
be entitled, by simple stratagem of refusing to accept a tendered
resignation, to require an employee to remain in employment against
his or her will. This cannot be – it would reduce the
employment relationship to a form of indentured labour.

[12]
This is not to say that a resignation need not be communicated to the
employer party to be effective - indeed, it must, at least in the
absence of a contrary stipulation (African National Congress v
Municipal Manager, George & Others (supra)).

[13]
A resignation is established by a subjective intention to terminate
the employment relationship, and words or conduct by the employee
that objectively viewed clearly and unambiguously evince that
intention. The Courts look for unambiguous, unequivocal words that
amount to a resignation – see, for example, Fijen v Council
for Scientific and Industrial Research, supra, where the Labour
Appeal Court stated that to resign, the employee had to ‘act in
such a way as to lead a reasonable person to the conclusion that he
did not intend to fulfill his part of the contract.’

[14]
The requirement of a clear and unambiguous intention to terminate the
contract may often be more easily stated than applied. As Mark
Freedland observes, if a worker utters words seeming to indicate an
intention to leave employment, the utterance may be unclear, the
product of uncertainty, or a manifestation of anger rather than an
expression of a definite intention to terminate the employment
relationship. When it is claimed that an employee has decided to
terminate his or her employment of his or her own volition, it may be
necessary to scrutinise the genuineness of that volition to
determine, for example, whether the employee’s action is the
result of an unacceptable degree of pressure by the employer, or
whether the employer has been over-eager to treat an impulsive
decision as a settled one.

[57]
In Ouwehand v Hout Bay
Fishing Industries [2004] 8 BLLR 815 (LC) the
court said at para 15:

‘Where
it is alleged that a contract of employment has terminated by
consensus between the parties, the court shall be cautious to ensure
that the employer party does not seize upon words or actions that
afford them meanings that were not intended. What is required is a
consideration of all the factual circumstances and a determination of
whether it can truly be said that the employee left the employ of his
or her employer on his or her own accord and volition.’

After
a careful consideration, I have come to the conclusion that, on
balance, the second and third respondents’ version of events
from the moment they received letters informing them of the
abolishment of their jobs by the board of the appellant and
thereafter is to be preferred. The evidence in the arbitration
proceedings shows that the retrenchment agreement proceeded well and
an understanding was reached on a number of issues relating to the
packages until it later transpired that the appellant would have to
make some substantial payments to GIPF as one aspect of the
retrenchment exercise. It was at that juncture that the appellant
made a ‘u-turn’ and attempted to withdraw the second
option that the two employees had already selected.

[58]
This evidence is corroborated by the following
extract from the report of the arbitrator, referring to the
representative of the appellant at the proceedings:

‘He
stressed the issue of the astronomical amount the respondent will
have to pay into the Pension Fund if the retrenchment route was
followed as the reason why the applicants should accept the
redeployment. He did however acknowledge that the redeployment offer
made to Mr Ingwapha was inferior, and was unhappy why Mr Ingwapha was
unwilling to negotiate a once off payment to compensate for the
difference between this current salary and the lower salary package
he will get once he was redeployed.

He
was thus of the view that it would be unfair if the respondent was
ordered to follow the retrenchment route as that would result in huge
payments being made to the Pension Fund in addition to the actual
retrenchment packages which would be paid to the applicants. He
believed retrenchment was no longer an option in this case as the
Board of Directors has already pronounced itself on the matter after
it was approached. The position of the Board was that the applicant
must be redeployed at all costs and no retrenchments must be
entertained.’

On
15 July 2010, the appellant’s legal representatives addressed a
letter to GIPF confirming that the second and third respondents were
retrenched. The position of the appellant at the time was that the
retrenchment packages were all inclusive and GIPF could not demand
payments falling outside the ‘retrenchment packages’.

[59]
The appellant’s version - that the second
and third respondents left the employ of the appellant on their own
accord and volition - finds no support on the papers before the
Court. The appellant admits to having retrenched the second and third
respondents with the options to be redeployed if they showed interest
in pursuing their careers with the appellant or compensated according
to the provisions of the Labour Act. The second and third respondents
opted for retrenchment. The appellant further alleges that the
retrenchment option was withdrawn. In my view, this assertion is
false, as there seemed to be no resolution by the board to that
effect notwithstanding the fact that the second respondent challenged
the appellant to produce such a resolution. In relation to the
redeployment option, other than the appellant’s assertions
there is no evidence of alternative jobs that were offered to the
second and third respondents. The appellant claims that the second
and third respondents knew what jobs were offered to them and that
they declined, but this argument takes the appellant’s case no
further. It only raises a dispute on a point that should be decided
in favour of the second and third respondents. In the case of both
respondents, the offers of redeployment were divorced from their
career paths, and in the case of the third respondent the possibility
was raised that a new job was offered for the purpose of dismissing
her eventually for non-performance. I accept that the arbitrator
stated in his/her award that the second and third respondents
declined the offer of redeployment within the appellant, a fact the
appellant relies on. However, the question remains: what alternative
jobs were offered to the respondents?

[60]
The arbitrator referred to the redeployment
option as the ‘closed option’, which he said, ‘could
be easily manipulated, as by accepting it, it could easily expose the
applicants (second and third respondent) to accepting something which
they did not know whether it was good or not’ which if accepted
‘would be difficult to return it later once you realized that
it was not good for you or what you expected’. The arbitrator
also said of the redeployment option, ‘was in a closed
envelope’, which could only be opened after the employee had
exercised that option, that is, accepted redeployment. The arbitrator
found that s 34 of the Labour Act obliged an employer acting in terms
of that section to ‘play open cards.’ Further, the
arbitrator criticized the conduct of the appellant in withholding the
redeployment information until the two employees accepted to be
redeployed, and said that this was inconsistent with s 34 and
amounted to a non-disclosure, as well as unfair labour practice.

[61]
Counsel for the appellant has compared the
circumstances of this case to the facts of Jones
v Retail Apparel [2000]
6 BLLR 676 (LC). In that case, after a
merger of a company in which the applicant was employed as a training
manager and another company (which formed the respondent), the
applicant’s job title was changed to ‘group training
manager’. Her conditions of employment remained the same,
except that she was required to report to an employee who was younger
than she was and was not required to travel as much because most
training was done at the group’s head office. The applicant
rejected the change of title, claiming that it reduced her status,
and complained that she would be ‘in the field’ less
often. The applicant proposed instead that she be considered for the
position of credit manager of one of the respondent’s
divisions. This proposal was rejected, and the applicant was told
that she must either accept the new training position or apply for
one of several other vacancies. When she declined to make a choice,
the applicant was told that her employment would be terminated if she
did not accept the position, apply for another, or apply for early
retirement. The applicant then accepted early voluntary retirement.
She then commenced a dispute asserting that she had been unfairly
dismissed due to operational requirements. The court noted that it
was not the applicant’s case that she had been compelled to
retire or to terminate her services. She had not been dismissed
because dismissal was merely one of several options that she had been
given by the respondent. The case was in reality not about
retrenchment, but about changes to the applicant’s conditions
of employment. When these changes proved unacceptable to the
applicant, she elected to terminate her services. The applicant had
accordingly failed to prove that she was dismissed for operational
requirements, or at all.

[62]
In my opinion, Jones
v Retail Apparel was correctly
decided. However, its facts are substantially different from those
presented in the matter presented before the Court. In this case, the
jobs were abolished due to structural reorganisation in the
appellant. The letters of 12 November 2009 state in no uncertain
terms that ‘henceforth the position you occupy in NWR no longer
exists…..’. The decision by the board of the appellant
to declare the positions of the second and third respondents
redundant was taken in terms of s 34 of the Labour Act, which
provides for ‘dismissal arising from collective termination or
redundancy’ in Part F entitled ‘Termination of
Employment’. The arguments in relation to redeployment become
ridiculous when regard is had to the fact that the two positions were
abolished to reduce the workforce to increase efficiency through
reorganization in the appellant. If this were the case, how could the
appellant still keep the two persons employed on the same benefits
they had in their previous jobs?

[63]
Despite the arguments put forth by appellant,
this case could be decided simply on the fact that appellant accepted
that the two employees were retrenched. The appellant argued that it
could ignore the arbitrator’s award as a nullity because the
arbitrator decided on an issue he was not invited to decide upon, and
that it was therefore not necessary to take the award on review or
appeal. This argument is without substance. The appellant was
seriously ill-advised on this point, as s 87 provides that:

‘An
arbitration award made in terms of this Part –

(a)
is binding’

[64]
Section 89 provides for appeal and reviews of
arbitration awards where a party disputes the award. The appellant in
its letters dated 20 April 2010 to the second and third respondents
stated, ‘the company has decided to abide by the arbitration
award dated 25 March 2010, in which the payments to be done to you
were set’. It was argued that the extent to which the appellant
indicated it would abide by the arbitration award only related to the
amount that was required to facilitate the amicable departure of the
employees from the employment of the appellant, and could certainly
not be construed as an admission on the part of the appellant that
all the arguments it had raised before the arbitrator were incorrect,
and/or without legal or factual foundation. With due respect to
counsel, this argument ignores the facts of this case. Appellant
could not abide by the award just to facilitate the departure of the
second and third respondents from the company. The award was not
arrived at in a vacuum, it was related to the retrenchment of the two
employees. The arbitrator referred to retrenchment in so many words,
for example, he made reference to a reply of appellant in its letter
dated 9 December 2009 scheduling a meeting to negotiate retrenchment
packages and he stated: ‘. . . only one option was on the table
then, namely, negotiating a retrenchment package’.

[65]
The evidence before the Court points
overwhelmingly to the following conclusions:

1.
The appellant through its board of directors
intended to and did retrench the second and third respondents.

2.
The redeployment option set out in the letters of
12 November 2009 constituted a ploy to trick the second and third
respondents into accepting offers they would have regretted
accepting. In any case, offers of that nature are in my opinion
inconsistent with the provisions of s 34 of the Labour Act under
which the decision to abolish the jobs of the two employees was made.

3.
The so-called redeployment offer was made with
the sole purpose of avoiding the provisions of Rule 3.4 of the GIPF
Rules.

4.
There is no evidence that the second and third
respondents resigned or left the employ of their employer on their
own accord or volition.

[66]
It follows that the appeal should fail.

Costs

[67]
The appellant should pay costs of this appeal. In
my opinion, the appellant’s case was an opportunistic exercise
to avoid the provisions of Rule 3.4 of the GIPF Rules.

Order

[68]
I accordingly make the following orders:

1.
The application for condonation and reinstatement
of the appeal is granted.

2.
The appellant is ordered to pay the costs of the
condonation application.

3.
The appeal is dismissed.

4.
It is declared that appellant is liable in terms
of the provisions of the GIPF Rules, specifically Rule 3.4, to make
payment to the first respondent on behalf of the second and third
respondents in the amounts of N$1 941,971.99 and N$1 033,785.30
respectively in addition to any interest that might have accumulated,
if so required by the first respondent being benefits arising from
the retrenchment of the second and third respondents.

5.
The payment is to be made to GIPF within 14 days
from the date of this judgment.

6.
The costs of the appeal, including the costs of
the application for condonation for the late filing of the appeal
record and for the reinstatement of the appeal, are to be paid by the
appellant on the basis of two instructing counsel.

MAINGA
JA

MTAMBANENGWE
AJA

HOFF
AJA

Counsel
on behalf of the appellant: Mr TA Barnard

Instructed
by Meuller Legal Practitioners

Counsel
on behalf of the first respondent: Mr N Marcus

Instructed
by Nixon Marcus Public Law Office

Counsel
on behalf of the second and third respondents: Mr AEJ Kamanja

Instructed
by Amupanda Kamanja Inc.