Vox Orion (Pty) Ltd t/a Vox Orion v Prinsloo (LCA 74/2012 ) [2013] NALCMD 19 (13 June 2013);

REPORTABLE

REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LCA 74/2012

In the matter between:

VOX ORION (PTY) LTD T/A VOX ORION ..................................................APPELLANT

and

WILLIE PRINSLOO ..................................................................................RESPONDENT

Neutral citation: Vox Orion (Pty) Ltd t/a Vox Orion v Prinsloo (LCA 74/2012) [2013] NALCMD 19 (13 June 2013)

Coram: GEIER J

Heard: 31 May 2013

Delivered: 13 June 2013

Flynote: Labour law - Remuneration – Commission – Respondent claiming payment of commission for work done before resignation – Conditions of employment however providing that commission only payable in the first salary run after customer acceptance, full provisioning and the customer being invoiced - Respondent resigning after customer acceptance but before full provisioning and customer acceptance having occurred, ie before payment had become due – Respondent contending in defence of arbitration award made in favour of respondent that Sections 9(2)(a) as read with Section 37(1)(a) of the Labour Act 2007 rendered the applicable conditions of the commission scheme unenforceable – as they were less favourable - and as Section 37(1)(a) which thus governed the payment of remuneration – which included the payment of commission - in such circumstances required an employer to pay an employee for all work done before the date of termination – the appellant had become liable to pay the commission claimed as the respondent had done all the work in this regard - Appellant argued that this argument and the arbitrator’s award had overlooked and ignored the impact of the word ‘due’ as contained in section 37(1)(a) which merely required an employer to pay the employee all the remuneration ‘due’ for work done before the termination. In terms of the conditions of employment the commission claimed had not become ‘due’ and accordingly the arbitrator had erred in this regard - in any event section 37(1)(a) was not more favourable to the respondent as also the particular clause, in the commission scheme, governing the payments of commission, only obliged the appellant to pay such remuneration/commission, which had become ‘due’ to the employee for work done at the time of termination –

Labour law - Remuneration – Claim for payment of commission – Interpretation of Sections 9(1) and (2) as read with 37(1)(a) of Labour Act 2007 – Court finding that that Section 9(1) provides that the basic conditions of employment - set out in Parts B through to F of Chapter 2 of the Act - constitute terms of any contract of employment – that this holds true for the relied upon section 37(1)(a), which is a section contained in Part F of the Second Schedule. The statute then expressly envisages and provides for situations in which the Act will superimpose conditions of employment - to the extent that they are more favourable - on any employer and employee relationship. This will occur in the cases which are listed in Sections 9(2)(a) to (c) and (3) of the Act – In casu where the respondent regarded section 37(1)(a) as the more favourable condition – ie. to the extent that it is considered the section more favourable than the conditions of employment governing the payment of commission - the scenarios envisaged by section 9(1)(b) and (b) did not arise as Section 37(1)(a) in any event already constituted a term of the contract between the parties - it followed that the respondent’s claim fell to be determined, in the main, with reference to section 37(1)(a).

Labour law – Interpretation of Section 37(1)(a) of Labour Act 2007 – Court holding that the legislature’s use of the word ‘due’ in the section - and the import of the concept ‘owing’ therein through the definition of the word ‘remuneration’ - as contained in Section 1 - could not be overlooked and ignored in the interpretation of the section and had to be given effect to – Also on a literal interpretation of section - which did not result in any absurdity – and - in circumstances were the context of the section did not override the ordinary meaning of the language employed - it appeared that Section 37(1)(a) sets two requirements before remuneration, as defined, is to be paid : ie. the work must be done and payment therefore must have become due at the time of termination – as these requirements had not been met on the facts of the case the appeal had to be upheld

Summary: See flynote above

ORDER

(a) The appeal is upheld.

(b) Accordingly the arbitration award made by Mr Moses Shitaleni Iinane, on 15 November 2012, is hereby set aside

JUDGMENT

GEIER J:

[1] Is the respondent entitled to the payment of commission in the amount of N$ 145 000.00, which he claims he has earned, in his resignation month, despite the conditions precedent, for the payment thereof, as provided for in his contract of employment, not having been met?

[2] This is the central question requiring determination in this appeal.

[3] The respondent essentially contends, in reliance on section 9(1) as read with section 37(1)(a) of the Labour Act 2007 that he is so entitled, whereas the appellant holds the view that the respondent is not so entitled as the commission, which he continues to claim, was not due and payable, as at the date of the respondent’s resignation.

[4] The respondent was able to persuade the arbitrator that his view of matter was correct who then awarded the respondent the commission as claimed. It is this decision which the appellant seeks to overturn on appeal.

[5] The appellant, a telecommunications company had engaged the services of the respondent as a ‘sales team leader’. He was in the employment of appellant until 31 May 2012, when he resigned - the respondent’s functions where mainly to secure new businesses for the appellant by way of a so-called ‘paper sale’, which would then be registered on the appellant’s computer system through the logging in of such new business into the CRM system – subsequently – and after a director had signed- off the sale it was regarded as having been concluded. It was then that the technical and finance departments of appellant would take over, which process would ultimately result in the invoicing of the new client.

[6] In recognition of this process the terms of the contractual framework governing the relationship between the parties provided that:

‘… commission would only be payable in the first salary run after customer acceptance, full provisioning and the customer being invoiced.’

[7] It is to be noted that respondent was only responsible for the first step - customer acceptance. He was not responsible for the second and third steps - namely ‘full provisioning’ and ‘customer invoicing’.

[8] It was precisely in between this first- and the second and third steps, that the respondent resigned.

[9] Although it is common cause between the parties that the second and third steps where in fact completed subsequent to such resignation, the appellant takes the point that the respondent’s commission was not due owing and payable as at date of the respondent’s resignation and therefore was not payable to him in terms of section 37(1)(a).

[10] The respondent on the other hand argues that he had done all he was obliged to do – ie he had done the work to the tune of N$145 000.00 – ie. he had done all that was required of him to earn the commission in the claimed amount – for which he was entitled to be paid.

[11] In the realisation that the claimed commission had not yet become due and payable at the time of resignation, the respondent tried to overcome this obstacle by contending that the commission scheme was not enforceable in terms of the Labour Act 2007.

ARGUMENT ON BEHALF OF RESPONDENT

[12] Mrs Keulder who represented the respondent herein, built this argument on the provisions of sections 9 and 37 of the Labour Act 2007, (hereinafter referred as the ‘Act’).

[13] Section 9(1) provides that:

‘9 Basic conditions

(1) Each provision set out in Parts B through to F of this Chapter is a basic condition of employment.’

[14] Section 37 of the Act regulates how an employee is to be remunerated on termination of his/her employment.

[15] Section 37 constitutes a basic condition of employment in terms of the Act as it is contained in Part F of Chapter 3 of the Act.

[16] The Act then, in section 9(2)(a), prescribes further that:

(2) A basic condition of employment constitutes a term of any contract of employment except to the extent that-

(a) any law regulating the employment of individuals provides a term that is more favourable to the employee;

(b) a term of the contract of employment or a provision of a collective agreement is more favourable to the employee; or … ‘.

[17] As, according to Mrs Keulder, section 37(1)(a) is such a term of law, which is more favourable to the respondent, it should thus be read into the respondents conditions of employment by virtue of the provisions 9(2)(a) of the Labour Act.

[18] As section 37(1)(a) on an ordinary, literal and grammatical meaning of the words requires an employer to remunerate an employee for all ‘work’ done, before termination, on termination - and as her client had completed all ‘work’, as was required of him - ie he had brought about the requisite ‘paper sales’ underlying his commission claim - he was entitled to be paid for such ‘work’ in terms of section 37(1)(a). The appeal should thus be dismissed.

ARGUMENT ON BEHALF OF APPELLANT

[19] Mr Dicks, who appeared on behalf of the appellant, argued that the approach adopted by the respondent was ‘rather too simplistic’ given the underlying factual position regarding the payment of commission, which is often problematic in practice and were a balance should be struck be between an employers’ interests and those of the employee. More importantly he submitted that the argument mustered on behalf of the respondent in defence of the arbitration award overlooked and ignored the impact of the word ‘due’ as contained in section 37(1)(a) which, according to Mr Dicks, merely required an employer to pay the employee all the remuneration ‘due’ for work done before the termination. In terms of the conditions of employment the commission claimed had not become ‘due’ and accordingly the arbitrator had erred in this regard. The appeal should thus succeed on this ground alone.

[20] More particularly it appeared on closer analysis that section 37(1)(a) actually set two preconditions before remuneration, as defined - and which would include commission - would become payable ie: 1: the work must be done and 2: payment must have become due – In this regard he submitted that the word ‘due’, as used in the section, had to be assigned the meaning as given to it in The Master v I L Back & Co Ltd 1983 (1) SA 986 (A):

‘ … The words "debt is due" in the section must be given their ordinary meaning. It seems clear that this means that there must be a liquidated money obligation presently claimable by the creditor for which an action could presently be brought against the debtor. Stated another way, the debt must be one in respect of which the debtor is under an obligation to pay immediately, see Western Bank Ltd v S J J van Vuuren Transport (Pty) Ltd and Others 1980 (2) SA 348 (T) at 351 and HMBMP Properties (Pty) Ltd v King 1981 (1) SA 906 (N) at 909 and the cases there cited… ‘.¹

[21] The word ‘due’ was used in the section. It could thus not be ignored and had to be given effect to even though this might have unfair consequence for the respondent – He also exposed that the respondent was acutely aware of the conditions set by his contract of employment for the payment of commission when he testified:

“And then after that, when it is installed it goes to Finance and Finance invoices it. And invoicing is part of the job of Finance, not mine. I do not see that. That is why a sales guy always goes back and asks was it installed, was it not installed; is it already invoiced; can I claim it, can I not claim it.”

[22] In any event section 37(1)(a) was not more favourable to the respondent as also the particular clause, in the commission scheme, governing the payments of commission, only obliged the appellant to pay such remuneration/commission, which had become ‘due’ to the employee for work done at the time of termination. If such remuneration had not become due it need not be paid. Section 37 does not make an amount due any earlier than when it is in fact due. Section 37 was thus not more favourable than the appellant’s commission scheme – both the conditions of the scheme and the provisions of the relied upon section ‘boiled down’ to the same - they required payment of the employer - only when the remuneration had become due. The ultimate question to be asked in such circumstances was simply: ‘was commission ‘due’ on 31 May 2012 in the sense that respondent could have issued summons for it?’ The answer to this would be in the negative. The appeal should thus be upheld.

THE INTERPRETATION of THE APPLICABLE LEGISLATIVE PROVISIONS

[23] On a reading of Section 9 of the Labour Act 2007 it appears that Section 9(1) provides that the basic conditions of employment - set out in Parts B through to F of Chapter 2 of the Act - constitute terms of any contract of employment. This holds true for the relied upon section 37(1)(a), which is a section contained in Part F of the Second Schedule. The statute then expressly envisages and provides for situations in which the Act will superimpose conditions of employment - to the extent that they are more favourable - on any employer and employee relationship. This will occur in the cases which are listed in Sections 9(2)(a) to (c) and (3) of the Act.

[24] As the respondent regards section 37(1)(a) as the more favourable condition – ie. to the extent that it is considered more favourable than the contractual conditions of employment governing the payment of commission or those of any other law regulating the employment of individuals - the scenarios envisaged by sections 9(1)(a) and (b)² do not arise - as Section 37(1)(a) in any event constitutes a term of the contract between the parties.

[25] It follows that the respondent’s claim claimed is to be determined, in the main, with reference to section 37(1)(a).

[26] In this regard the parties where ad idem that the section requires an employer to pay all remuneration to the employee for work done before the termination.

[27] Counsel where also agreed that the word ‘remuneration’, as defined in section 1 of the Act, included the respondent’s claim for commission.

[28] They were however not agreed on what significance should be attached to the use of the word ‘due’ in the section and on how the section should thus be interpreted ultimately. The section thus requires interpretation

THE INTERPRETATION OF SECTION 37(1)(a)

[29] A court will usually begin its interpretation of a statue by applying the so-called ‘literal rule’³ – that is, that the words of a statute must be interpreted in their ordinary, literal meaning:

‘In construing the statute the object is, of course, to ascertain the intention which the legislature meant to express from the language which it employed. By far the most important rule to guide courts in arriving at that intention is to take the language of the instrument… as a whole, and, when the words are clear and unambiguous, to place upon them their grammatical construction, and to give them their ordinary effect.’ ⁴

[30] In this process regard will also be had to the ‘primary’ and ‘cardinal’ rules of construction:

‘The primary rule of construction of statutes is that the language of the legislature should be read in its ordinary sense.’⁵

‘The cardinal rule of construction of a statute is to endeavour to arrive at the intention of the law–giver from the language employed in the enactment.⁶

[31] On application of these general rules it immediately emerges that –– given their ordinary and literal meanings - the words employed in the section must be interpreted to mean that an employer is obliged to pay all remuneration (due) for work done before termination. This seems straightforward enough, and no inconsistency or absurdity arises in doing so save for the question what meaning should be assigned to the legislature’s use of the word ‘due’.

[32] Appellant’s counsel has referred the court to the judicial interpretation of the word as assigned to it in the context of the Prescription Act⁷, which interpretation would be supportive of his client’s case.

[33] Respondent’s counsel has urged the Court to assign the word its ordinary, literal and grammatical meaning.

[34] If one then turns to a dictionary to discover the ‘ordinary’ meaning of the word⁸ it appears that the word ‘due’ can also be assigned the following further meanings:

‘ … that ought to be paid or done to another – that which is owed – what one has a right to – has earned …’.⁹

or

‘ … immediately payable – owed as a debt, irrespective of any date for payment – something that is owed, required or due’.¹⁰

or

‘ … owed as a debt or obligation, … requiring immediate payment … something that should be given … by right … ‘.¹¹

[35] Regardless of whether one looks at the abovementioned judicial definition or these dictionary meanings, they all seem to have the common feature that whatever is required to be paid or done must be presently claimable – or owing in terms of an underlying right or obligation. It does not take much to understand that such a right or obligation usually arises from a contract, which then normally also determines the time and conditions for performance by the party that is under a duty to perform.

[36] The enquiry of course does not end here as regard should not only be had to the ordinary meaning of words as used in the statute but also that such words must be seen in their context.¹² The extent to which the context will control the ordinary meaning of words will however depend upon how clear the words used are.¹³

[37] The context and setting of Section 37 can of course be fathomed from the Preamble of the Labour Act, from which it appears that the act was promulgated to:

‘ … establish a comprehensive labour law for all employers and employees; to entrench fundamental labour rights and protections; to regulate basic terms and conditions of employment; to ensure the health, safety and welfare of employees; to protect employees from unfair labour practices; … and to provide for incidental matters.’

[38] All this is not surprising as Section 37 is part of Chapter 3 of the Act, which regulates the basic conditions of employment, which are entrenched by the legislation. The so apparent scope and purpose of the Act does therefore not appear to be in conflict with the seeming requirement that remuneration - for it to become payable – should also be ‘due’ and ‘owing’ in terms of the underlying contract of employment.

[39] It must be of significance that the word ‘owing’ is also utilised by the law-maker in the definition of the term ‘remuneration’¹⁴ which according to the Collins English Dictionary means:

‘to be under an obligation to pay - to be in debt’¹⁵;

and according to the Chambers English Dictionary it can mean:

‘to be indebted for - to be under an obligation to repay … to be in debt’.¹⁶

[40] The importation of the concept ‘owing’ into Section 37(1)(a) through the definition contained in Section 1 is then further indicative of how the section should be interpreted and that the legislature must have intended that ‘remuneration’, before it becomes payable for work done, should not only be ‘due’ but must also be ‘owing’.

[41] The utilisation of the words ‘due’ and ‘owing’ in the section should also not be overlooked and ignored, so it was submitted by Mr Dicks without reference to any authority. It is however indeed in accordance with the ‘literal rule’ that the courts must give effect to each and every word used in a statute if this can be done. In this regard Kotze JA relied on the applicable English authorities in Attorney-General, Transvaal v Additional Magistrate, Johannesburg¹⁷:

"A statute," says COCKBURN, C.J. "should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant." The Queen v Bishop of Oxford (4 Q.B.D at 261). To hold certain words occurring in a section of an Act of Parliament as insensible, and as having been inserted through inadvertence or error, is only permissible as a last resort. It is, in the language of EARL, CJ: " the ultima ratio, when an absurdity would follow from giving effect to the words as they stand." Reg v St. John (2 B. and S. 706), in the Exchequer Chamber affirming the judgment of the Queen's Bench. Lord CAIRNS, L.C., has, likewise, often emphasised the duty of giving effect to the language actually used by the Legislature, and not nullifying it. See East London Railway v Whitchurch (L.R. 7 HL 81), and Green v The Queen (1 App. Case, at 537).”

[42] It is unlikely - in the circumstances of the clear language employed in the section and which, on a literal interpretation, does not result in any absurdity - that the words ‘due’ and ‘owing’ were inserted by the legislature through ‘inadvertence’ or ‘error’. Effect must accordingly be given to these words as well.

[43] If one then gives effect to these concepts it appears that Section 37(1)(a) does indeed set two requirements before remuneration, as defined, is to be paid : ie. appellant was only obliged to pay for such remuneration/commission which had become due to the employee for work done at the time of termination. As Mr Dicks has aptly put it:

‘ … If such remuneration had not become due it need not be paid. Section 37 does not make an amount due any earlier than when it is in fact due. Section 37 was thus not more favourable than the appellant’s commission scheme – both the conditions of the scheme and the provisions of the relied upon section ‘boiled down’ to the same - they required payment of the employer - only when the remuneration had become due. The ultimate question to be asked in such circumstances was simply: ‘was commission ‘due’ on 31 May 2012 in the sense that respondent could have issued summons for it?’ The answer to this would be in the negative.’

[44] By that same token it appears that Mrs Keulder’s argument, although persuasively presented, crucially failed to take into account the impact of the words ‘due’ and ‘owing’, as used in the section, and in respect of which it cannot be said that the legislature had utilized these words through inadvertence or error or that the legislature had not intended that such words be without significance. In my view the wording of the section is also sufficiently clear so as not to be impacted upon by the context in which they occur.

[45] The point is conveniently illustrated finally by the ease with which the legislature could have expressed the intention – if that is what it had wanted to do - that employees should be paid for all work done before the date of termination regardless of when payment therefore normally would become due, owing and payable - by simply stating :

‘On termination of employment, an employer must pay the employee for all work done before the termination …’.

[46] The legislature has however not elected to express itself in those terms - it rather chose to acknowledge – tacitly - through the use of particular terminology - that at the root of the employer/employee relationship lies the basic contractual arrangement that work must be done and payment must have become due. Such conclusion would ultimately also be in line with the principle of the sanctity of contract, recognized also by the Supreme Court in Africa Personnel Services (Pty) Ltd v Government of the Republic of Namibia and Others.¹⁸

[47] It is clear that such intention must be given effect to.

[48] In consequence of this interpretation of the referred to sections and therefore on the strength of the applicable contractual provisions and with reference to the facts of this matter it must be concluded that payment of the claimed commission had not yet become due, owing and payable at the time of the respondents resignation.

[49] It should be mentioned that Mrs Keulder also relied extensively on the Supreme Court decision of Old Mutual Life Assurance Company (Namibia) Ltd v Symington¹⁹, which she submitted was in support of her client’s case, as the court in that case had found that the respondent – just like the respondent in this instance - had done all that was required of him to earn the bonus which he claimed subsequent to his resignation – and where the court had held that the provisions the bonus scheme, which disentitled the respondent to the payment of any earned bonus in his resignation month, were in conflict with the provisions of Section 37(b) of the 1992 Labout Ac,t and which could therefore not be invoked by the appellant to deny the respondent the payment of the claimed bonus.

[50] Mr Dicks on the other hand submitted that the present matter was distinguishable on the facts from the Symington case, as, in that matter, the respondent had done all that was required of him and where he had already been congratulated on his performance and had been informed that the bonus would be paid, which bonus had in any event also vested and where the amount was already quantified and determined and as there was nothing that could impact on the amount.

[51] If one then has regard to the headnote of the Old Mutual Life Assurance Company (Namibia) Ltd v Symington case, it appears that the respondent (plaintiff) in that case had been employed in a senior management position by the appellant (defendant). During March 2004 the respondent had handed in his letter of resignation. On 12 March 2004 he received a letter informing him that he had earned a bonus for 2003. When the respondent left his employment, he was not paid the bonus. The appellant had relied on clause 11 of its Generic Rules, which read as follows: '11. Resignation - No bonus payment will be made to an employee under notice of resignation in the bonus payment month.

[52] On appeal the Supreme Court court rejected the appellant’s reliance on the said ‘generic rules’ on the following basis:

‘[37] Turning now to the facts of this case it is clear that the plaintiff (Symington) has done all that was required of him to earn the bonus which he claimed. This was common cause and for further confirmation thereof one needs only look at the letter of 12 March 2004 from which it appears that the targets set for the year 2003 were achieved by all, also the plaintiff and his team, and he was congratulated for the personal contribution made by him. That is in fact also the evidence. And when the end of March came all that stood between the plaintiff and payment of his bonus was clause 11. Even vesting of the bonuses took place in March according to the Generic Rules.

[38] Mr Smuts, for appellant, submitted that because clause 11 provided that bonuses were not payable if a person resigned in the payment month it follows that no 'remuneration' was due to the plaintiff and s 37 had no application.

[39] I do not agree. It seems to me that the legislature, by enacting s 37, had in mind instances such as the present where a person had done all that was necessary to earn remuneration to be made to him or her but was then, by some or other act, deprived from receiving what he or she had earned. This is to let in by the back door what was in the first place prohibited by the Act. A reading of the Generic Rules shows, in my opinion, that once the targets set are achieved the defendant would be contractually bound by its own rules to pay the bonus to persons, such as the plaintiff, who qualified in all respects, if it were not for the provisions of clause 11. Clause 11 therefore constitutes the act whereby a person was deprived of remuneration he or she was entitled to.

[40] I have therefore come to the conclusion that clause 11 of the Generic Rules is in conflict with the provisions of s 37(b) of the Labour Act and cannot be invoked to deny the plaintiff payment of his claim. I do not understand the reference to the discretionary powers of the executive management in the definition clause of the Generic Rules to mean that they could at will deprive a person of the bonus which he or she has otherwise earned. Their discretionary power goes no further than to determine the month in which bonus payments must occur and to confirm eligibility in accordance with clause A.1 of the Generic Rules. This discretion is subject to what the Generic Rules provide and subject to the provisions of the Act.

[41] Lastly, in dealing with this provision of the Labour Act, Mr Smuts submitted that the finding by the court a quo that clause 11 of the Generic Rules contravened s 37 of the Labour Act, was illegal and unenforceable was based on the court's 'misconception of the nature of the incentive bonus itself. Since the court a quo found the terms of the B scheme applicable, the terms also provided when the bonus would be payable'. Therefore, he submitted, there could be no contravention of ss 36 and 37, because the bonus 'could only conceivably be due and payable in terms of the scheme, and would not merely become due and payable after the completion of the period and the accomplishment of the targets. It thus only becomes payable in the bonus payment month in its terms.' With respect this seems to be a very contorted reasoning. Payable read in the context of the scheme as a whole must be premised on all the factors mentioned in the scheme, including the accomplishment of the present target and the profits achieved by the company, all of which take place before the month of payment, which itself depends on those factors being in place. As said previously the discretion of the company as to when the bonus achieved will be paid is subject to what the Generic Rules provide and subject to the provisions of the Act. I am therefore not persuaded that the above reasoning by counsel is sound.

[42] In the result the appeal is dismissed with costs, such costs to include the costs of one instructing counsel and one instructed counsel.’

[53] It will have been noted that clause 11 of the ‘Generic Rules of the appellant in Syminton’ were held to be in conflict with section 37(b) of the repealed Labour Act 1992, which provided:

'No employer shall -

(a) . . .

(b) do any act or permit any act to be done as a direct or indirect result of which an employee is deprived of the benefit or of any portion of the benefit of any remuneration so payable or paid; .'

[54] The present matter is however to be decided with reference to a different statutory framework. The underlying enquiry in this case – which entails the interpretation of Sections 1, 9 and 37 of the Labour Act 2007 - is obviously quite distinguishable from the decision in the Symington case which was made with reference to the very different statutory provisions of the repealed Labour Act 1992. In addition it is also correct, as was submitted by Mr Dicks, that the facts of Symington are distinguishable from the present matter in the respects listed above. It follows that respondent’s counsel’s reliance on the Symington case cannot be of assistance to the respondent in this matter.

[55] In the result I find that the appeal should be upheld and accordingly the arbitration award made by Mr Moses Shitaleni Iinane, on 15 November 2012, is hereby set aside.

----------------------------------

H GEIER

Judge

APPEARANCES

APPELLANT: Mr G Dicks

Instructed by GF Köpplinger Legal Practitioners,

Windhoek

RESPONDENT: A Keulder

Annerie Keulder Attorneys,

Windhoek