IN THE HIGH COURT OF NAMIBIA
NOT REPORTABLE
REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA
JUDGMENT
Case no: LC 39/2013
In the matter between:
BEN ESAU BIWA
..................................................................................APPLICANT
and
NAMIBIA AIRPORTS COMPANY (NAC)
..........................................RESPONDENT
Neutral citation: Biwa v
Namibia Airports Company (LC 39/2013) [2013] NALCMD 11(5 April
2013)
Coram: Schimming-Chase, AJ
Heard: 28 February 2013, 1
March 2013
Delivered: Order made on 4
March 2013
Reasons delivered on 5 April 2013
Flynote: Urgent application for
stay of disciplinary proceedings pending finalisation of a referral
of a dispute between the parties for conciliation / arbitration to
the Labour Commissioner in terms of Chapter 8 of the Labour Act, 11
of 2007 – Applicant’s urgency self-created – In the
alternative, on its own papers, it failed to show that it would not
obtain substantial redress in due course.
Summary: The applicant launched
an urgent applicant for the stay of disciplinary proceedings
instituted against him and scheduled for hearing by an independent
chairperson by agreement between the parties on
28 February 2013
pending finalisation of a referral of a dispute between the parties
for conciliation and medication / arbitration to the Labour
Commissioner. The application was instituted and set down for hearing
at 09h00 on
28 February 2013. The respondent’s legal
practitioners were served with the application on 28 February 2013 at
approximately 08h30. The dispute was referred to the Labour
Commissioner and was lodged on 27 February 2013.
The gravamen of the applicant’s
complaint was that the dispute referred to the Labour Commissioner on
27 February 2013 (after it became clear on
25 February 2013 that
the respondent had every intention of continuing the disciplinary
hearing, which was by agreement between the parties (on
5
February 2013) scheduled to take place on 28 February 2013)) related
to whether disciplinary proceedings could be instituted against the
applicant in the first place, because the respondent inter alia
failed to investigate or lay charges in the time frame set out in its
disciplinary policy and because the applicant was charged with a
number of offences not listed in the disciplinary policy.
On the papers it was clear that the
applicant blew hot and cold on the respondent. It indicated that the
proceedings should be discontinued for the above reasons. The
applicant then requested information on what sanctions could be
imposed in the event of a guilty finding at the hearing on
22
February 2013. On 25 February 2013, after a response from the
respondent’s representatives, the applicant raised a dispute on
the interpretation and application of the disciplinary policy, and
that the Labour Commissioner would be approached for a determination.
They also delivered a request for further particulars to the charges
in respect of the scheduled disciplinary hearing on the same date,
which particulars were provided on 27 February 2013 in the morning.
On 27 February 2013 this dispute was referred to the Labour
Commissioner followed by a request for postponement of the hearing
pending finalisation of the dispute. The respondent’s
representatives indicated that they would agree to the postponement
if the applicant agreed to the cessation of full pay and benefits
relating to his suspension. Instead of applying for a postponement of
the hearing and setting out their questions, applicant approached the
Labour Court for urgent interdictory relief.
Held, the applicant created his own
urgency, alternatively failed to make out a case as required by the
Labour Court Rules. The applicant could have applied for a
postponement of the disciplinary hearing and set out the basis why
the hearing should not continue. Instead it launched this application
on less than one hours notice.
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ORDER
The application is struck from the
roll for want of compliance with Rules 6(24) and 6(26) of the Rules
of Court.
REASONS
Schimming-Chase, AJ
On 4 March 2013 after hearing
arguments presented by counsel on behalf of the applicant and
counsel for the respondent, I made an order striking the application
from the roll for want of compliance with Rules 6(24) and 6(26) of
the Labour Court Rules. My reasons for the order appear below.
This is an application for urgent
interim interdictory relief in terms of Rules 6(24) and (26) of the
Labour Court Rules, pending the finalisation of a dispute between
the parties referred to conciliation / arbitration to the Labour
Commissioner by the applicant on 27 February 2013 in terms of
Chapter 8 of the Labour Act, 11 of 2007 (“the Labour Act”).
This application was instituted on 28
February 2013 and set down for hearing at 09h00. The application was
served on the legal practitioners of the respondent, who accepted
such service at approximately 08h30 on
28 February 2013. The
court received copies of the application at 08h15 on
28 February
2013. A notice to oppose was delivered on behalf of the respondent
at the commencement of the hearing of the application.
Dr
Akweenda, appearing for the respondent, indicated that he had also
just received the application and sought time to peruse the papers
in order to prepare an answering affidavit. The court had also at
that stage not had sufficient time to study the papers, either as a
result of which the matter was stood down until 14h15 for hearing.
After the court reconvened at 14h15, answering affidavits had been
delivered on behalf of the respondent in which the respondent took
the point of urgency only. The applicant then sought time to file a
replying affidavit and the matter again stood over for hearing at
12h00 on
1 March 2013.
The applicant’s application for
urgent interim relief is formulated as follows:
“1.
That the rules of this Honourable Court in respect of forms, service
and time periods be dispensed with due to the urgency of this
Application;
2.
That a Rule Nisi is issued calling upon the respondent or any other
interested parties to show cause (if any) why a final order should
not be granted in the following terms:
2.1
Interdicting the disciplinary proceedings embarked upon by the
respondent in respect of Applicant on the 28th February
2013 or any date thereafter pending final determination of the
dispute between the parties referred to conciliation / arbitration to
the Labour Commissioner on 27th February 2013 relating to
unfair labour practice and unilateral alterations of terms and
conditions of employment of the Applicant.
2.2
Interdicting the Respondent from stopping the Applicant’s full
salary until the finalisation of the referred dispute and
disciplinary hearing held thereafter.
2.3
...
3.
Directing that paragraphs 2.1 and 2.2 above, operate as an interim
interdict with immediate effect.”
Both parties referred me to section
117(1)(a) of the Labour Act which provides that the Labour Court has
exclusive jurisdiction to grant urgent relief including an urgent
interdict pending resolution of a dispute in terms of
Chapter 8.
It is also common cause that the dispute referred to conciliation /
arbitration to the Labour Commissioner on 27 February 2013 relating
to alleged unfair labour practice, unilateral practice and unlawful
alleged alterations of terms and conditions of employment of the
applicant falls within Chapter 8 of the Labour Act and that the
Labour Court has jurisdiction to grant an urgent interdict pending
resolution of the dispute.
In the background to the application,
summarised in the founding papers, the applicant alleged that the
application is brought on an urgent basis due to the fact that the
disciplinary hearing, which is the subject matter of the
conciliation / arbitration dispute lodged by the applicant on 27
February 2013, is scheduled to commence on 28 February 2013 and 1
March 2013 and that the “respondent
is insisting to continue with the disciplinary hearing unless the
applicant agrees to the stopping of the remuneration currently paid
to him”.
The applicant further stated that he
was only approaching the court now because the dispute between the
parties in respect of the issues submitted for arbitration only
arose on 22 February 2013.
The background to the launching of
this application which in the main are common cause are summarised
below.
The applicant lodged a complaint
with the Labour Commissioner on
30 November 2012 relating in
essence to his suspension as chief executive officer of the
respondent. This complaint is still pending. This was the first
referral made by the applicant to the Labour Commissioner.
On 24 January 2013, the applicant
was served with notice of a disciplinary hearing by the respondent
which hearing was scheduled to take place on 5 and 6 February 2013.
The applicant alleged that he was at that stage not provided with
documentation relating to the charges and that despite some time
being spent between the parties on settlement negotiations, no
indication was give to him of the allegations being investigated.
The applicant further pointed out that on
30 November 2012
already, his legal representatives requested the respondent to
provide performance appraisal reports and to indicate what
allegations were made against him because the respondent’s
code of discipline required the respondent to inform the applicant
of the allegations against him within 10 days from the date that
the allegation are known to the respondent, or at the time of the
applicant’s suspension.
On 24 January 2013, after service of
the notice of disciplinary hearing the applicant was for the first
time apprised about the charges against him.
On 25 January 2013, the applicant’s
legal representatives transmitted additional correspondence to the
respondent’s legal representatives indicating certain
concerns with regard to the application of the respondent’s
disciplinary policy, and that certain documentation in terms of the
policy had not been provided. I point out that the correspondence
referred to is not dated 25 January 2013, but 25 February 2013. In
this regard, some of the annexures referred to in the application
were not annexed or numbered, creating some confusion, however the
allegations do not appear to be disputed by the respondent.
On 31 January 2013 and on 1 February
2013, the respondent’s legal practitioners provided the
applicant’s legal practitioners with a bundle of documents.
On 4 February 2013, one day before the scheduled disciplinary
hearing, the applicant’s legal practitioners in writing
indicated to the respondent that it would be impossible to prepare
for the hearing one day before it was scheduled to commence. The
respondent was also informed of certain alleged instances of
non-compliance with its disciplinary code and procedure in respect
of the disciplinary process, as well as the charges and the
scheduled hearing. This letter, referred to as annexure “BEB8”
in the founding papers was unfortunately not annexed to the
founding papers.
On the same date (4 February 2013),
the representatives of the respondent responded to this letter
indicating the possibility of a postponement. The letter stated the
following:
“Your
letter of even date and the subsequent telecon between yourself and
writer refers.
Kindly
take note that your request for a postponement has been acceded to by
our client without prejudice to any of its rights. The disciplinary
enquiry will accordingly proceed on 28 February 2013 and
1 March
2013 at the same venue.”
It is common cause that the
representatives of both parties agreed to dates of 28 February 2013
and 1 March 2013 for the hearing of the disciplinary enquiry. It is
also not disputed that the chairperson of the disciplinary enquiry
was identified to the applicant’s representatives on the same
date.
The applicant further alleged that
the written response of the respondent’s representatives dated
4 February 2013 referred to above did not address the applicant’s
concerns with regard to the compliance with the policy, and was
simply dismissed as “non-essential
content” of the letter. There is nothing in that letter
containing such a statement.
On 15 February 2013, the applicant’s
representatives transmitted a further letter indicating that they
had now perused the documents and consulted with the applicant. The
applicant’s representatives requested further outstanding
documentation relevant to the charges levelled against the applicant
and also highlighted certain additional issues. The additional
documentation requested comprised the minutes of the board meetings
of the respondent and the relevant board resolution relating to the
suspension and charging of the applicant, as well as the minutes of
all board meetings convened during the period February 2012 to
November 2012.
The applicant’s representatives
further pointed out to the respondent’s representatives that
all charges should be withdrawn against the applicant due to inter
alia the respondent’s failure to comply with certain
provisions of its disciplinary policy, in particular the
respondent’s failure to have notified the applicant of the
allegations against him within 10 working days from the date the
allegations were brought to the attention of the respondent. In
addition, it was alleged that as the charges related to the
applicant’s performance, the matter should be handled in
accordance with the respondent’s performance management policy
and that the procedures provided for in the performance management
policy should be exhausted before disciplinary charges, if any,
could follow.
In the alternative, the respondent’s
representatives indicated that approximately 7 of the 10
disciplinary charges against the applicant should be withdrawn
because the respondent’s disciplinary policy provided that all
disciplinary charges should be disposed of within 90 days from the
date the breach was brought to the attention of the respondent. It
was also mentioned that the investigator in the disciplinary
proceeding had not compiled witness statements before the decision
was taken to charge the applicant and that the applicant was not
furnished with those witness statements. The witness statements were
also requested to be furnished. Finally the respondent’s
representatives were advised that the respondent had failed to
comply with its disciplinary policy in respect of a number of
aspects such as the charging of the applicant, and that the
applicant was charged with a number of offences not listed or
referred to in the disciplinary policy.
In the result a request was made in
the letter that the disciplinary hearing be discontinued and that
the parties could still “continue
and negotiate termination by agreement instead of using bogus
charges to get rid of the employee”.
On the same date (15 February 2013),
the applicant’s representatives addressed further
correspondence to the respondent’s representatives, requesting
the list of witnesses that the respondent intended to call for both
the arbitration hearing, (the first referral referred to above) and
the scheduled disciplinary hearing in order to enable the
applicant’s representatives to determine whether they would
like to call any of the respondent’s board or staff members
that the respondent would not wish to call as witnesses for the
arbitration and the disciplinary hearing.
On 22 February 2013 the applicant’s
legal practitioners addressed a further letter to the respondent’s
representatives requesting information on what sanctions could be
imposed on the applicant at the disciplinary hearing.
On the same date (22 February 2013),
the respondent’s legal practitioners responded to the
correspondence of the applicant’s representatives (the
applicant in this regard alleged that the fax was only received on
25 February 2013) and provided some of the information
requested. The respondent’s representatives generally
maintained their attitude that the applicant’s concerns
regarding non-compliance with the respondent’s company policy
were unfounded. I quote the salient parts of the letter:
“2.
As your client has pointed out during the arbitration proceedings,
the Personnel Code of the NAC does not provide for the discipline for
its CEO. In terms of the law, generally accepted standard procedure
for internal disciplinary proceedings needs to be followed. Also, the
generally accepted minimum requirements of a fair hearing would
entail: adequate notice, the employee must be present at hearing,
employee is entitled to representation, presiding officer should keep
minutes and must be impartial and the decision must be made on the
evidence without reference to the employee’s disciplinary
record.
3.
Distilled to its bare essence, the basic elements of procedural
fairness are that the employee must have been given a fair
opportunity to influence the decision whether or not he should be
dismissed and the person taking the decision should be impartial.
This the NAC avails to its CEO.
4.
Due to the nature of the disciplinary process and the person
involved, the Chairperson of the Inquiry will make a determination on
conviction and sanction (if necessary), which the NAC will follow.
This was previously communicated to yourself. Regarding the appeal
(if necessary), the CEO is at liberty whether he wants to exercise
that right availed to him. Again, should he wish to do so, common
sense would determine that the members of the Board would not be fit
to adjudicate the appeal, just as it would not be proper for them to
sit in adjudication on the disciplinary enquiry. ”
In response to the above letter dated
25 February 2013 the applicant’s representatives advised that
many of the concerns
they had previously addressed were not properly addressed by the
respondent’s representatives and that in the result “a
dispute regarding the interpretation and application of the NAC
Disciplinary Policy” had arisen and that the necessary
steps would be taken to safeguard the applicant’s rights. They
were further informed that the Office of the Labour Commissioner
would be approached for a determination. Further settlement options
were mentioned in this letter which I do not propose to deal with in
this judgment.
On the same date (25 February 2013),
the applicant’s legal practitioners also delivered a request
for further particulars to the disciplinary charges levelled against
the applicant for purposes of the disciplinary hearing. On
26
February 2013 the further particulars were provided, but were
transmitted via fax to the applicant’s representatives on 27
February 2013 at 09h22.
On 27 February 2013, one day before
the scheduled disciplinary hearing, the applicant then referred this
other dispute (the second referral) for conciliation and arbitration
in terms of Chapter 8 of the Labour Act. The applicant alleged that
this second referral related to “...
the issue of non compliance with company policy in respect of
performance management, probation and probation period and the
conduct of the disciplinary hearing”. In this regard
the applicant further alleged that these matters had a direct
bearing on the disciplinary hearing scheduled for
28 February
2013 and 1 March 2013.
On the same date (27 February 2013)
the applicant’s representatives transmitted further
correspondence to the respondent’s representatives requesting
the postponement of the disciplinary hearing until the finalisation
of the second referral. The respondent’s representatives were
further advised that the issues for determination in the second
referral had a direct bearing on the charges against the applicant
and the conduct of the disciplinary hearing, hence the reasons for
the request for a postponement of the disciplinary hearing. Finally,
the respondent’s representatives were informed that if no
written undertaking was provided that the disciplinary hearing would
not proceed until the Labour Commissioner had an opportunity to
adjudicate the dispute or alternatively until settlement was
reached, whichever comes first, the applicant would be left with no
option but to approach “a
competent forum” for relief.
In a response to this letter
transmitted on the same date the respondent’s representatives
indicated a willingness to agree to the postponement of the
disciplinary hearing, provided the applicant agreed to the cessation
of the remuneration paid to him during the period of suspension and
to hand over all benefits held by him.
In the founding papers, the applicant
alleged that the above events led to the institution of the urgent
relief sought. He stated in particular that “the
present application is sequel to the above developments and
correspondence between the parties”. The applicant
stated that it should be clear that the applicant has not and is not
delaying the launching of this application and has thereby taken
expeditious steps to “ward
off the non-compliance with the policy”.
In support of urgency the applicant
alleged the following:
“I
could not determine before 22 February 2013 that the respondent has
no intention to and is adamant to not comply with and apply company
policy and to correct errors made. I could also not instruct my
representatives to approach this Honourable Court whilst efforts were
being made to address the concerns we had.”
The respondent in its answering
affidavit took the point in limine of urgency and averred
that the application is not urgent and further if it is urgent the
urgency was self-created. It was also argued that the application
and particularly the manner in which it was brought was vexatious
and frivolous and warranted a costs order in terms of section 118 of
the Labour Act.
The respondent further alleged that
the applicant approached this court on an extremely urgent basis and
that the application was served on the morning of 28 February 2013
(the date on which the application was set down for hearing) at the
offices of the respondent’s representatives, giving them less
than an hour to appear.
The respondent also highlighted its
willingness to agree to a postponement of the second referral
subject to the applicant’s continued suspension being without
pay pending the finalisation of the second referral. This response,
according to counsel for the applicant, Mr Kurtz, was a punitive and
unwarranted action.
The respondent further averred in
support of the point in limine that the urgent application
was premature as the applicant could have applied for a postponement
of the disciplinary hearing and addressed the chairperson on why a
postponement of the hearing should be granted, failing which the
applicant could have appealed the decision of the chairperson, which
the applicant failed to do and in these circumstances, Dr Akweenda
appearing for the respondent submitted that the court should not
come to the applicant’s assistance. In addition it was alleged
in the answering papers that the applicant suffered no prejudice as
he still receives remuneration, the offer by the respondent’s
representatives above not having been accepted by the applicant.
It is also necessary at this stage to
deal with a point in limine raised by the applicant in the
replying affidavit, namely that the opposition to the urgent
application was purportedly brought on the authority of a round
robin resolution of the respondent’s Board of Directors and
that only two members of the respondent’s Board signed the
resolution. Mr Kurtz submitted that a round robin resolution is
conditional to the ratification by all members of the Board of
Directors at a duly convened meeting and that it was not acceptable
that the deponent to the answering papers, who is a member of the
Board refers to such resolution which is yet to be ratified. He
further submitted that as a juristic person, the respondent failed
to attach the specific resolution of the respondent’s Board of
Directors that authorised the deponent to depose to the answering
affidavit. The applicant specifically denied that the deponent, who
is a director of the respondent’s Board had authority to
depose to the answering affidavit.
In support of his submission, Mr
Kurtz relief on the unreported judgment of Parker AJ in Disciplinary
Committee for Legal Prctitioners v Slysken Makando,
which concerned in essence whether or not a decision was taken by
the disciplinary committee established in terms of the Legal
Practitioners Act at a duly constituted meeting. As I understand the
judgment on the issue, the court found, as far as the legal
practitioner is concerned that it is only at a duly assembled
meeting where a requisite quorum is present, that a binding decision
of the disciplinary committee can be made, and not, as was
submitted, that where a decision is unanimous, a duly assembled
meeting is not necessary. It is not authority for the point the
applicant raises. The principle that a round robin decision must be
unanimous was dealt with in Norval v Consolidated Sugar
Investments (Namibia) (Pty) Ltd
where Van Niekerk J accepted the principle that a round robin
resolution should be reached unanimously, and is otherwise invalid.
I also accept the principle.
In the decision of Otjozondjupa
Regional Council v Dr Ndahafa Nghifindaka and Others
Muller J dealt in some detail with the legal principles relating
authority to institute motion proceedings where a person acts on
behalf of an artificial person. The principles are the same with
regard to authority to oppose motion proceedings. At the outset,
Muller J
deal with the ratio for the requirement of authority in respect of
artificial persons as set out in the decision of Mall (Cape)
(Pty) Ltd v Merino Ko-Operasie Bpk
widely regarded as the main authority on the issue and also relied
on by Dr Akweenda in his opposition to the point in limine.
Watermeyer J stated the following in dealing with the argument
submitted in respect of the ratio behind the requirement that
a deponent should be authorised to bring an application on behalf of
an artificial person:
“It
must always be proved, so he argued, that the applicant is in fact a
party to the proceedings, for if this were not so a successful
respondent who is awarded costs might find himself unable to enforce
the award against the applicant. There was, he submitted, a special
danger when the litigant was an artificial person, like a company,
because if it should subsequently transpire that no proper resolution
to litigate had been passed the company would be free to take the
point that it was not bound by the Court's order because it had never
authorised the proceedings to be taken.”
The court thereafter dealt with the
position of an artificial person that can only function through
somebody else in respect of resolutions taken. The learned
Watermeyer J stated the following:
“There
is a considerable amount of authority for the proposition that, where
a company commences proceedings by way of petition, it must appear
that the person who makes the petition on behalf of the company is
duly authorised by the company to do so (see for example Lurie
Brothers Ltd v Arcache, 1927 NPD 139, and the other cases mentioned
in Herbstein and van Winsen, Civil Practice of the Superior Courts in
South Africa at pp. 37, 38). This seems to me to be a salutary rule
and one which should apply also to notice of motion proceedings where
the applicant is an artificial person. In such cases some evidence
should be placed before the Court to show that the applicant has duly
resolved to institute the proceedings and that the proceedings are
instituted at its instance. Unlike the case of an individual, the
mere signature of the notice of motion by an attorney and the fact
that the proceedings purport to be brought in the name of the
applicant are in my view insufficient. The
best evidence that the proceedings have been properly authorised
would be provided by an affidavit made by an official of the company
annexing a copy of the resolution but I do not consider that that
form of proof is necessary in every case. Each case must be
considered on its own merits and the Court must decide whether enough
has been placed before it to warrant the conclusion that it is the
applicant which is litigating and not some unauthorised person on its
behalf.”
(emphasis supplied)
After dealing with the principles in
the Mall (Cape) decision as well as the conflicting authority
in respect of the question whether authority can be ratified
retrospectively Muller J summarised the position as follows in
paragraph 21 of his judgment as follows:
“[21]
Consequently, the position is mainly as follows:
a)
The deponent of an affidavit on behalf of an artificial person has to
state that he or she was duly authorised to bring the application and
this will constitute that some evidence in respect of the
authorisation has been placed before the Court;
b)
If there is any objection to the authority to bring the application,
such authorisation can be provided in the replying affidavit;
c)
Even if there was no proper resolution in respect of authority, it
can be taken and provided at a later stage and operates
retrospectively;
d)
Each case will in any event be considered in respect of its own
circumstances; and
e)
It is in the discretion of the Court to decide whether enough has
been placed before it to conclude that is the applicant who is
litigating and not some unauthorised person on its behalf.”
The deponent to the answering
affidavit in this application
Ms Frieda Aluteni alleged that she
is a board member of the respondent and that she is duly authorised
to oppose the application and to depose to the affidavit. She
attached a round robin resolution signed by two the respondent’s
three members. One of the signatures is her own. The resolution
states that the application is to be opposed and that LorentzAngula
Inc is authorised to act on behalf of the respondent in these
proceedings. A confirmatory affidavit was signed by Ms Ndeuhala
Katonyala, the chairperson of the respondent’s Board of
Directors in which she inter alia confirmed that Ms Aluteni
was authorised to depose to the affidavit.
It is true that the respondent’s
resolution did not specifically authorise
Ms Aluteni to depose
to an opposing affidavit. The round robin resolution was also not
signed by all three directors, only two of the three, which on the
authorities quoted above renders it invalid. Given the time frame
within which the respondent was brought to court (less than 1 hour),
and that a notice to oppose was handed up at 09h00 at the hearing of
the application, and given that opposing papers were filed only 3
hours later, I understand that the round robin would not be signed
by all directors in such a short time frame. Furthermore,
considering that a member of the Board as well as its chairperson
deposed to affidavits confirming the authority of the deponent,
herself a board member, I exercise my discretion and find that in
these particular circumstances Ms Aluteni was duly authorised by the
respondent’s Board to oppose the application on its behalf and
to depose to the answering affidavit in this urgent application.
Even if I am wrong in the manner I have exercised my discretion, for
the reasons advanced below, the finding I make is based on what is
contained in the applicant’s founding papers only.
Returning to the point in limine
concerning the lack of alternatively self-created urgency in this
application raised by the respondent, Dr Akweenda relied on the
provisions of Rules 6(24) and (26) of the Labour Court Rules.
Rule
6(24) provides that in urgent applications the court may dispense
with the forms and service provided for in the Rules and may dispose
of a matter at such time and place in accordance with such procedure
as it consider just and equitable in the circumstances. Rule 6(26)
provides inter alia that in every affidavit in support of an
application brought under sub-rule (24) the applicant must set
forth explicitly the circumstances which he or she avers renders the
matter urgent as well as the reasons why he or she could not be
afforded substantial redress at a hearing in due course.
(emphasis supplied)
The above requirements are similar to
those set out in Rule 6(12) of the High Court rules and this court
has on numerous occasions set out the principles that are to be
applied in order to determine whether a matter should be heard as
urgent. In addition, when an applicant wants to be heard on an
urgent basis, he or she essentially jumps the queue of litigants who
have instituted proceedings in the normal course and who are
awaiting the allocation of hearing dates depending on where in the
proceedings have reached. The applicant must therefore provide
cogent reasons to the court why it needs to jump the queue, why the
potential respondent must oppose the relief on truncated time
periods, and why the court must on an urgent basis peruse the
papers, hear the applicant and grant the relief sought. It is well
established that an applicant cannot merely give lip service to the
requirements of the applicable Rule and must make out a case in the
founding affidavit to justify the particular extent of the departure
from the norm, which is involved in the time and day for which the
matter must be set down.
The applicant disputes this. It was
argued that there was dispute as to whether the applicant could have
been disciplined in the first place, based on the respondent’s
non-compliance with its own disciplinary policy set out in the
correspondence mentioned above. Mr Kurtz further submitted that an
application for postponement to the chairperson of the disciplinary
hearing would be the incorrect forum, hence the applicant was left
with no other remedy but to approach the court for urgent relief.
Further Mr Kurtz argued that it is an established principle of our
law that time spent on negotiations for purposes of avoiding
litigation cannot be viewed as time that contributed to self-created
urgency. For this proposition he relied on Nelson Mandela
Metropolitan Municipality v Greyvnouw CC and Others.
This matter concerned an urgent application launched to interdict
the respondents from continuing to carry on their business as a
restaurant and bar in a suburb. The applicants alleged that the
respondents were breaching the applicable zoning regulations and
that by causing loud music to be played from one of the erven, the
respondents were contravening the Noise Control Regulations. The
reasons why the court found at paragraph [34] that the applicant did
not drag its feet, was because it found on the facts that the
applicant made efforts to resolve the problem by notifying the
owners of the erven of their alleged non-compliance with the law. It
even attended a meeting to resolve the problem and took steps to
investigate the noise level further so that it had evidence of the
noise level emanating. Thus the court held that the applicant
approached its statutory duty of safeguarding the rights and
interest of rate payers in a responsible manner by seeking to
persuade the respondents to comply and only then approaching the
court for relief (emphasis supplied). The facts of this case are
different. I do not believe that the applicant, or his
representatives, acted in a responsible manner as set out below, and
as a result the reliance on this decision is on the facts,
misplaced.
In this matter, the parties agreed to
the hearing date of
28 February 2013. The bundle of documents
requested on behalf of the applicant’s representatives was
provided on 31 January 2013 and
1 February 2013. This is what
precipitated the postponement of the first hearing by agreement
between the parties. On 4 February 2013, the applicant raised his
issues with the respondent’s non-compliance with the
disciplinary code and procedure in respect of the disciplinary
process, as well as the charges and scheduled hearing. On 15
February 2013, the applicant’s representatives requested
further documentation, and pointed out that all charges should be
withdrawn against the applicant, due to the respondent’s
failure to inter alia have notified the applicant of the
allegations against him within 10 working days from the date that
the allegations were brought to the attention of the respondent, and
in the alternative, that 7 of the 10 charges should be withdrawn
because the charges were not disposed of within 90 days. The request
was then already made that the disciplinary hearing be discontinued,
and that negotiations could still continue in the meantime. I refer
to the factual background sketched above.
In spite of this, the applicant’s
representatives on the same day requested a list of witnesses that
the respondent intended to call, and on
22 February 2013
requested what sanctions would be imposed on the applicant at the
disciplinary hearing. Further particulars to the charges were still
requested on 25 February 2013. The respondent’s
representatives made it clear in their response on 25 February 2013
that internal disciplinary proceedings would still be followed and
that the applicant would be accorded all his legal rights at the
hearing and that it would be procedurally fair. I must add (without
at all having regard to the innocence or guilt of the applicant)
that the issue that the applicant has is whether or not he may be
disciplined at all because certain aspects of the disciplinary
policy were not complied with, in particular the time frame for
certain actions, and whether or not the particular misconduct
complained of was specifically provided for. Why this could not be
dealt with at the disciplinary enquiry, which would be at the very
least, the correct forum of first instance, has not been explained
or set out in a satisfactory manner.
By 25 February 2013, it must have
been clear to the applicant that the respondent intended proceeding
with the disciplinary hearing. There was no positive response to the
letter dated 15 February 2013 requesting discontinuance of the
hearing. But more importantly, I reiterate that I hold the view that
the applicant could have raised its concerns with the chairperson of
the disciplinary hearing and even the jurisdiction of the
chairperson if necessary. The applicant could indeed have applied
for a postponement, irrespective of whether I agree with the second
referral or not. In this regard I find that the urgency was
self-created. The convenience of the court does not even appear to
have been a remote consideration, let alone the extremely short
periods provided to the respondent to oppose. Even if the
application was urgent, the applicant failed dismally to show that
it could not obtain substantial redress in due course for the
reasons set out above. It follows that the application must be
struck from the roll for want of compliance with Rules 6(24) and
(26).
That leaves the question of costs. Dr
Akweenda argued that the application was a vexatious and frivolous
application contrary to the provisions of section 118 of the Labour
Act. He submitted that the applicant should be ordered to pay costs
on the basis of the frivolous nature in which the application was
brought, considering the previous correspondences and the conduct of
the applicant in the circumstances. Section 118 provides that the
court must not make any order as for costs against a party unless
that party has acted in a frivolous or vexatious manner by
instituting, proceedings with or defending those proceedings.
In National Housing Enterprise v
Beukes and Others
Van Niekerk J stated the following at paragraphs [21] and [22] offer
an insightful exposition of the principles to be applied when
considering the question of the meaning vexatious in the context of
attorney client costs, and determining whether those principles
should be applied to costs in a labour context:
“[21]
It seems to me that the intention in enacting s 20 was to allow a
measure of freedom to parties litigating in labour disputes without
them being unduly hampered by the often inhibiting factor of legal
costs. The exception created by the section uses the word 'acted',
indicating that it is the conduct or actions of the party sought to
be mulcted in costs that should be scrutinised. In other words, the
provision is not aimed at the party whose conduct is such that 'the
proceedings are vexatious in effect even though not in intent'.
[22]
While there is merit in the respondents' points taken in the first
affidavit, I am not persuaded that this means that applicant was
acting frivolously or vexatiously. It rather seems to me that
applicant acted prematurely in bringing the application. I have given
anxious consideration to the submission that in continuing the
proceedings by applying for a postponement after the full answering
papers had been filed, applicant has acted frivolously or
vexatiously. ...”
Applying the principles and reasoning
of Van Niekerk J, I hold the view that the applicant acted
prematurely in bringing the application and that the proceedings in
this case fall in the category of proceedings which are vexatious in
effect, rather than in intent, although the applicant came very
close to the line. As a result, their shall be no order as to costs.
______________________
EM Schimming-Chase
Acting Judge
APPEARANCES
APPLICANT: Mr Kurtz
Of Murorua & Associates
RESPONDENT: Dr Akweenda
Instructed by LorentzAngula Inc
Biwa v Namibia Airports Company (NAC) (LC 39/2013) [2013] NALCMD 11 (05 April 2013);