REPORTABLE
REPUBLIC OF NAMIBIA
LABOUR COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: LC 103/2012
In the matter between:
NAMIBIA ESTATE AGENTS
BOARD
.........................................................APPLICANT
and
PHELEM MANYANDO LIKE
........................................................FIRST
RESPONDENT
TUULIKE
MWAFUFYA-SHIKONGO N.O. ..............................SECOND
RESPONDENT
Neutral citation:
Namibia Estate Agents Board v Like (LC 103/2012) [2013]
NALCMD 36 (30 October 2013)
Coram: GEIER J
Heard: 04
October 2013
Delivered: 30
October 2013
Flynote:
Applicant, who had appealed an arbitration award granted in favour of
first respondent by second respondent, had also –
simultaneously - sought the setting aside of that same award by way
of review. The appeal was heard before the review. The court in the
appeal set aside the arbitration award in toto. The court did
not order that the matter be referred back to be arbitrated upon de
novo before a different arbitrator. In the review, which remained
pending, the applicant now sought a costs order de bonis propriis
against the second respondent. The first respondent, contending that
the appeal judgment had not rendered the matter res judicata,
now applied, in the review, for the referral back of the matter to be
arbitrated upon afresh before another arbitrator. The first
respondent also pursued a costs order de bonis propriis
against second respondent.
AD THE REFERRAL BACK
The court found that it
had only became functus officio
in regard to its appeal judgment handed down on 21
June 2013 and the resultant orders made there – which had in
the interim become final - the first respondent was thus precluded
from seeking a referral back in the appeal. It had always been open
to the first respondent to have noted an appeal in regard to that
judgment and in the context of that appeal have contended for a
referral back. This remedy had not been utilised.
The
funtus officio principles
would or could not become applicable in another case serving before
the same judge, even if related to the same subject matter.
No final judgment had as
yet been given in the review, which remained pending.
A referral back through
the pending review was however precluded by two considerations:
The first would be posed
by the fact that the setting aside of the second respondent
arbitration award, in the appeal, had rendered that issue, between
the applicant and first respondent, res judicata, in the
review. Once the court had set aside that award on appeal there was
nothing left to set aside in the review. A referral back would
always have been linked to such setting aside. As there was nothing
left to set aside in the review, to which a referral back could be
linked, no referral back could/can occur in the review.
It was secondly beyond
doubt that the only remaining issue between the parties in the
review was the issue of costs. The first respondent had clearly been
appraised of this fact through correspondence. No referral back
could be mounted on that remaining issue of costs as the merits of
the review had already become moot. Also on this basis no referral
back can occur.
Application for a
referral back in the review accordingly refused.
AD COSTS DE BONIS
PROPRIIS
In
this regard it had to be determined whether or not the second
respondent, an arbitrator, designated in terms of the Labour Act
2007, had lost the protection from civil liability, as afforded to
her by Section 134 of the Labour Act 2007 through her conduct in the
arbitration, and if so, whether in the
circumstances, her conduct, in
opposing the adverse costs order sought against her by applicant and
first respondent, in turn, could be labeled as ‘vexatious’
or ‘frivolous’ opening her up to a costs order, de
bonis propriis, in terms of Section 118 of
the Labour Act 2007.
In opposition to the
punitive costs order sought against her, the second respondent –
who had initially not opposed the review – now filed an
affidavit on the merits in which she denied the serious allegations
made against her and in which she also raised three technical
objections.
In that affidavit the
second respondent did not dispute that after the closure of both
parties’ cases during the arbitration proceedings, she accepted
further documentation of which the applicant was unaware and in
respect of which the applicant was not given the opportunity to be
heard before she delivered her award in favour of first respondent.
The court then finding
that such undisputed conduct disclosed bias on the part of the second
respondent in favour of first respondent.
The court held further:
that bias constituted a
valid basis for the granting of a de bonis propriis costs
order; and
that bias also
constituted a valid basis for finding that the second respondent’s
actions, in the performance of her functions in terms of this Labour
Act, were not performed ‘in good faith’;
that a finding of bias
therefore also removed the shield of immunity as conferred by
Section 134 of the Labour Act 2007 from the second respondent;
that the word
“frivolous”, as used in section 118 of the Labour Act
2007, also encompassed a situation where proceedings in a Labour
Court are opposed ‘without sufficient ground’;
that given the second
respondent’s telling failure to deny material allegations in
her answering papers, the second respondent had not disclosed such
‘sufficient grounds’ – Her opposition to the
adverse costs order accordingly deemed ‘frivolous’
within the meaning of section 118 of the Labour Act;
that the second
respondent’s conduct in the arbitration and her frivolous
opposition to costs in the review thus formed a valid basis for the
sought award of a costs order de bonis propriis against her.
In the result the second
respondent was ordered to pay the applicant’s and first
respondent’s costs in the review de bonis propriis on a
scale as between attorney and client.
Summary: See
flynote above –
%20%5B2013%5D%20NALCMD%2036%20(30%20October%202013)_html_17007b.gif)
ORDER
1. The first respondent’s
application to have the matter referred back to arbitration is
refused.
2. The second respondent
is ordered to pay the applicant’s and first respondent’s
costs in the review de bonis propriis on a scale as between
attorney and client.
JUDGMENT
GEIER J:
[1] Following
disciplinary proceedings in terms of the applicant’s policies
and procedures, the applicant dismissed the first respondent from his
position as applicant’s Manager after he was found guilty of
theft and fraud by an independent chairperson.
[2] The first respondent,
as a result, referred a dispute to conciliation or arbitration by way
of Form LC21 dated 9 November 2011.
[3] The arbitration was
heard by the second respondent on 9 and 10 May 2012.
[4] On 9 July 2012 the
second respondent made the following award, namely:
“That
Respondent [Applicant] reinstates Applicant [First Respondent] as a
Manager of NEAB with:
Back
pay of his full salary plus all the increases and all the benefits
from the date of dismissal to the date of reinstatement less any
payment already made, if any.
Payment
of any proven loss due to delayed payments and bank charges
suffered.
The
payment of the entire total amount due to Applicant [First
Respondent] must be made within a period of one month as from the
date of issue of this Award, failure to which a monthly interest
shall be charged in accordance with the prevailing interest rate.
Respondent
[Applicant] to advise the NEAB’s appointing authority to
adhere to the provisions of the Namibian Estate Agents Act.”
[5] The applicant
appealed the above award.
[6] The appeal became
unopposed due to the first respondent having been barred in terms of
Case Management Rule 37(16)(ii), following the non-condonation of his
failure to comply with the court’s case management order of 22
January 2013.
[7] The appeal was
upheld.
[8] On 21 June 2013 this
court made the following order in the appeal under Case: LCA 38/2012:
“1.
The appeal is upheld.
2.
The arbitration award made by Ms Tuulike Mwafufya-Shikongo, on 9 July
2012, is hereby set aside.
3.
The conduct of Ms Tuulike Mwafufya-Shikongo in this matter is
referred to the Honourable Minister of Labour and Social Services and
the Labour Commissioner for investigation and further action, if
necessary.”
[9] The first respondent
did not appeal that judgment which therefore became a final judgment
in such circumstances.
[10] At the time of
noting the aforesaid appeal the applicant had also, simultaneously,
brought an application to review that same award. This review had in
the meantime been set down for hearing on 31 July 2013.
[11] The applicant in the
review - obviously now encouraged by the outcome of the appeal -
amended its Notice of Motion on 8 July 2013, indicating thereby that
it would now seek an adverse costs order against the second
respondent.
[12] Subsequent to the
delivery of the amended notice of motion the below mentioned exchange
of letters occurred between the involved legal practitioners.
[13] On 8 July 2013 the
applicant’s legal practitioners, GF Köpplinger Legal
Practitioners, addressed a letter to the second respondent as
follows:
“We
refer to the above matter and confirm that we act herein on
instructions of the Namibia Estate Agents Board (‘our client’).
As
you are aware, a review application as well as an appeal was lodged
by our client against the award made by you on 9 July 2012, in the
arbitration hearing between the abovementioned parties under case
number CRWK974-11.
I
wish to advise that the appeal was heard on 21 July 2013 and the
Honourable Judge Geier made the following order:
1.
The appeal is upheld;
2.
The arbitration award made by Ms Tuulike Mwafufya-Shikongo, on 9 July
2012, is hereby set aside;
3.
The conduct of Ms Tuulike Mwafufya-Shikongo in this matter is
referred to the Honourable Minister of Labour and Social Services and
the Labour Commissioner for investigation and further action, if
necessary.
In
light of the above, we have been instructed by our client to also
proceed with the review application under case number LC 103/2012 and
to amend our notice of motion for review to include a prayer for
costs against you in your personal capacity de bonis propriis as
arbitrator, on a scale as between attorney and client.
With
the above being said, kindly find attached hereto a copy of the
amended notice of motion. The amended portions are typed in bold
italics. I confirm that a copy of same will also be served on your
offices in due course.”
[14] The amended Notice
of Motion was duly served on all parties and on 22 July 2013.
[15] The Government
Attorney responded to GF Köpplinger Legal Practitioners’
letter in the following terms:
“We
notice that your client wishes to proceed with the review application
under Case No LC 103/2012 and to amend the same with the full
knowledge that the arbitration award sought to be set aside on review
was set aside by the Labour Court in Case No 38/2012 which your
client appealed against the same award. We find this perplexing, as
the issue of the validity of the award is clearly now res
judicata.
The review application, which was clearly ill conceived as it had
been the same object as the appeal and was filed subsequent to the
appeal, has clearly been overtaken by events. Any attempt to pursue
it, will bring into application the provisions of section 118 of the
Labour Act, 11 of 2007, as proceeding with the matter in the light of
the appeal decision will clearly constitute acting in a frivolous or
vexatious manner. The original notice of motion was not opposed by
second respondent as no order as sought against her.
If
you proceed with review application our client will vigorously oppose
the same on the basis of res judicata and seek a punitive cost
order against the legal practitioner advising and representing the
applicant.”
[16] On 25 July 2013
applicant’s legal practitioner replied by stating:
‘We
confirm that the review application in the above matter remains on
the roll for 31 July 2013. This was done, firstly, in the event of an
appeal against the Labour Court judgment by Mr Like. To date hereof
if has not been appealed. Be informed that, should no belated appeal
be received from Mr Like by 31 July 2013, our client will take no
further steps based on the merits of the review.
Secondly,
the review remains on the roll in order to seek a cost order against
your client on account of her duplicitous conduct, which the High
Court, correctly with respect, has referred to the relevant
authorities for investigation.
Your
view that the review was ill conceived is clearly confused. Even a
cursory perusal and comparison of the appeal and the review grounds
will reveal this.
In
the above circumstances our client’s approach is neither
frivolous nor vexatious.’
[17] The second
respondent, who had so become the target of an adverse costs order,
responded on 19 July 2013 by filing a Notice to Oppose the review.
[18] On 26 July 2013 she
also filed an answering affidavit in which she raised the following
points:
‘(a)
“applicant’s amended notice of motion is now res
judicata”;
(b)
“the manner in which the second respondent acted in defending
this application is not frivolous or vexatious”;
(c)
The amended notice of motion is not supported by an affidavit.’
[19]
On the 29th of
July 2013 the applicant’s legal practitioners addressed the
following further letter to the first respondent’s legal
practitioners advising them:
‘In
the light of the judgment of the Labour Court of 21 June 2013 in the
appeal matter and the fact that such judgment was not appealed, it is
our view that the merits of the review application are res
judicata.
The only outstanding issue is that of costs.
On
the instructions of our client we have amended the notice of motion
in the review application to seek costs de bonis propriss
against the second respondent (Ms Tuulike Mwafufya-Shikingo). She has
in the meantime opposed such relief and filed an opposing affidavit.
In
light of the above, kindly be informed that the review application
will, by necessary implication, not proceed on the merits on 31 July
2013. Only the issue of costs against the second respondent will be
argued on such date.
I
trust that you find the above in order.’
[20] When the review was
then called on 31 July 2013 Mr Boesak, who appeared on behalf of the
first respondent indicated that he also received instructions to
pursue an adverse costs order against the second respondent as his
client had played no part in the fundamental irregularities
perpetrated by the second respondent during the arbitration which had
resulted in the setting aside of the award on appeal.
[21] As the court had not
ordered that the matter be referred back to arbitration, Mr Boesak
insisted that his client wanted to pursue such relief in the review,
which remained pending.
[22] In the circumstances
the court ordered that:
‘1.
The hearing of the review application is postponed to a date to be
arranged with the managing judge.
2.
The only issues outstanding and to be determined by the court are as
follows:
2.2
whether the second respondent should be ordered to pay the costs of
the review; and
2.3
whether or not it is competent for the court to refer the matter back
to the arbitrator for hearing, especially in light of the appeal
judgment granted by the court in the appeal and whether or not this
issue is res judicata.’
[23] These outstanding
issues thus came to be argued before me on 04 October 2013.
[24]
For purposes of this hearing the parties filed supplementary heads of
argument in which their submissions accordingly were divided into two
categories namely; whether the reviewing court could competently
refer the matter back for arbitration in view of its appeal judgment
and whether or not the second respondent should be ordered to pay the
costs of the arbitration de bonis propriis.
AD THE REFERRAL BACK
[25] Mr Dicks who
appeared on behalf of the applicant submitted in his written heads
that the court, when it heard the appeal, would have been entitled to
refer the matter back to a new arbitrator, to be designated in terms
of Section 89(10) of the Labour Act – that the court had not
done so – and correctly so - as a referral back would have
served no purpose as the first respondent had failed to prove his
losses.
[26]
He also pointed out that the appeal judgment had become a final
judgment and that the court had thus become functus
officio – He
referred in this regard to the leading authority on the point:
Firestone
South Africa (Pty) Ltd v Gentiruco AG 1977
(4) SA 298 (A) at 306F.
[27]
With reference to the requirements pertaining to the defence of res
judicata as
set out in National
Sorghum Breweries Ltd (t/a Vivo African Breweries) v International
Liquor Distributors (Pty) Ltd 2001
(2) SA 232 (SCA) at 239F-I ,
he argued that the appeal under case LCA 38/2012 was against the
second respondent’s award made on 9 July 2012 and that the
review under case LC 103/2012 was aimed effectively against the same
award.
[28]
As the appeal decision set aside the award in
toto that
issue had been finally determined between the applicant and the first
respondent and had thus become res
judicata.
[29] During oral argument
Mr Dicks emphasised that in the interim, and by way of the exchanged
correspondence, as quoted above – it should have become clear
that the applicant could not - and was not proceeding to seek any
relief on the merits of the review and that the review merely
remained pending on the issue of costs only. Also for that reason it
was not competent to refer the matter back in the review, the merits
of which had, in such circumstances, become moot.
[30]
Mr Boesak, on the other hand, submitted in his written heads on
behalf of the first respondent, that he accepted that the issue
pertaining to the setting aside of the arbitration award had
effectively been extinguished by the appeal ruling.
However,
as the appeal court had not referred the matter back for re-hearing
such issue remained alive in the review.
[31] In respect of this
submission he pointed out that the arbitration award had been set
aside on the basis of a fundamental irregularity and that therefore
not all the issues between the parties had been finally determined.
He referred in this regard to some of the issues in the arbitration
such as, for example, the issue as to whether or not the sanction
imposed on the first respondent’s, the dismissal, was
appropriate, or whether or not he should have been re-instated etc.
[32]
With reference to the general powers that a court can exercise on
review – which would also entail the taking into account of
what would be just and equitable,
he submitted that there would be nothing inherently unfair in the
court referring the matter back to be heard afresh by another
arbitrator.
[33]
He also reminded the court of its jurisdiction as set out in Section
117(1)(b) and (c) and urged the court to refer the matter back in the
interests of justice.
[34] In this regard he
re-iterated during oral argument that the first respondent had become
the victim of the second respondent’s irregular conduct and
that it was thus more than equitable to refer the matter back. He
submitted that the court had not become functus officio in the
review which was alive due to the applicant seeking costs and that
the court could and should thus exercise these powers in the review.
[35]
Upon reflection of the conflicting arguments raised on behalf of the
parties to this issue it became clear that the court only became
functus
officio in
regard to its appeal judgment handed down on 21 June 2013 and the
resultant orders made there – which had in the interim become
final. This conclusion would be in line with the general principles
set out in the Firestone
South Africa (Pty) Ltd v Gentiruco AG case.
Also the exceptions to the general rule
as
listed in that case cannot be of assistance to the first respondent
herein as they would only pertain to the supplementation of the
appeal judgment. It is also common cause that the first respondent
was now essentially precluded from seeking any such relief in the
appeal. In any event it had always been open to the first respondent
to have noted an appeal in regard to that judgment and in the context
of that appeal have contended for a referral back. This remedy was
also not utilised by first respondent.
[36] I know of no
authority - and none has been cited - that the funtus officio
principles would or could become applicable in another case serving
before the same judge, even if related to the same subject matter.
[37] At the same time it
was also be clear that no final judgment had as yet been given in the
review, which remained pending.
[38] It was thus not
surprising that the first respondent tried to achieve a referral back
through the pending review which he must have considered as the only
remaining avenue possibly left open to him in such scenario.
[39] In my view there are
however two insurmountable obstacles to the first respondent’s
quest in this regard:
The first would be posed
by the fact that the setting aside of the second respondent
arbitration award, in the appeal, had rendered that issue, between
the applicant and first respondent, res judicata, in the
review. The concession made in this regard by Mr Boesak was
correctly and properly made. Put differently - once this court had
set aside that award on appeal there was nothing to set aside in the
review. A referral back would always have been linked to such
setting aside. As there was nothing left to set aside in the review,
to which a referral back could be linked, no referral back could
occur in the review.
It is secondly beyond
doubt that the only remaining issue between the parties in the
review was the issue of costs. The first respondent had clearly been
appraised of this fact through the abovementioned correspondence. No
referral back could be mounted on that remaining issue, as the
merits, of the review, had already become moot. Also on this basis
no referral back can occur.
[40] I conclude therefore
that this issue thus cannot be determined in favour of the first
respondent.
THE ISSUE OF COSTS
[41]
In support of the sought de bonis propriis
costs order the applicant relied on the gross
irregularities perpetrated by the second respondent during the
arbitration in the course of which:
‘She
received additional documentation after the conclusion of the
arbitration and considered same in arriving at her award and where
she during a short adjournment in the proceedings on 15 May 2012
attempted to assist the first respondent in the conduct of his case
by attempting to advise his legal representatives to address certain
allegations which had not been dealt with by them. She furthermore
requested such legal representatives not to disclose her conduct to
the other party. When the first respondent’s legal
representative then requested the second respondent to recuse herself
from the matter as her conduct was highly improper and effectively
disqualified her from further presiding over the matter, she refused
to do so.’
[42] It was submitted
that such conduct had necessitated the bringing of the review. It was
emphasised that the court had already adversely commented on the
second respondent’s conduct and had referred same to the
necessary authorities for further investigation regarding the
suitability of the second respondent executing her duties as
arbitrator any further.
[43]
It was acknowledged that the civil liability of certain persons is
limited under Section 134 of the Labour Act 2007.
It was
however pointed out that such persons - which includes arbitrators
appointed under the Act - such as the second respondent - would lose
the shield of immunity from personal civil liability should they ‘do
something, or fail to do something, not in good faith in the
performance of their functions in terms of this Act ‘.
[44] It was further
acknowledged that a court, in terms of Section 118, was precluded
from making a costs order against a party unless that party has acted
in a frivolous and vexatious manner by instituting, proceeding, with
or defending those proceedings.
[45] Given these
pre-conditions it would thus not have been competent for the court to
make any costs order against the second respondent if the second
respondent had not defended these proceedings. By opposing the
present proceedings now – at this late stage - she had brought
herself squarely within the ambit of section 118. This move at the
same time also allowed for the scrutiny of the second respondent’s
actions in order to determine whether or not the second respondent
actions in the arbitration where done in ‘good faith’ and
whether or not she should be shielded from an adverse costs order or
had lost the protection afforded by the section.
[46]
As, according to counsel, her conduct in the arbitration was
deplorable and as she had not acted in good faith in the performance
of her functions a costs order against her, de
bonis propriis, was warranted.
[47] The first
respondent’s counsel associated himself with these submissions.
In addition it was submitted on first respondent’s behalf that
it should be taken into account that the first respondent now finds
himself on the receiving end of the ‘impugned conduct’ of
the second respondent – The seriousness of the second
respondent’s misconduct could not be ‘gainsaid’ –
which entailed clear breaches of the second respondent’s duties
under the Labour Act and the administration of justice as a result of
which a punitive costs order was clearly warranted.
[48] It must also be
mentioned at this juncture that in opposition to the punitive costs
order the second respondent had also filed an affidavit on the merits
in which she denied the serious allegations made against her and in
which she also raised the aforementioned three technical objections.
[49] At the hearing of
this matter, Mr Ntinda, who appeared together with Mr Nkiwane on
behalf of the second respondent, abandoned the technical objection
raised in regard to the manner in which the notice of motion in the
review had been amended.
[50]
In their heads of argument it was however contended that the entire
matter was res judicata and
that the court – for purposes of determining the costs issue -
should also look at the merits of the review. As such review was
sought by way of motion proceedings any disputes of fact had to be
resolved with reference to the so-called Plascon-Evans
principle, where the respondent’s version would
prevail in so far as material disputes of fact would be concerned. It
was submitted further:
‘The
material allegation made by the deponent on behalf of the applicant,
in so far as the second relief is concerned, is contained in annexure
“EH5” of the applicant’s founding affidavit. It is
respectfully submitted that annexure “EH5” is pure
hearsay evidence. Ms Elliot Jacqueline Hoff (deponent on behalf of
the applicant) is relating allegations heard by one Ms Mondo, told to
one Mr Markus and then told to the applicant’s legal
practitioners.
The
allegations contained in annexure “EH5” of the
applicant’s founding affidavit are clearly denied by the second
respondent in her opposing affidavit (paragraph 24) and as contained
in her letter attached to the applicant’s founding affidavit
marked annexure “EH6”.
In
the authoritative work Herbstein and Van Winsen: The Civil Practice
of the Supreme Court of South Africa, 4ed at page 368-9, the
following general rule is put forth: “As a general rule hearsay
evidence is not permitted in affidavits. It may accordingly be
necessary to file affidavits of persons other than the applicant who
can depose to the facts. Indeed, this is very often done.
Alternatively, when a deponent includes in her affidavit facts in
respect of which she does not have first-hand knowledge she may annex
a verifying affidavit by a person who does have knowledge of those
facts.
It
is respectfully submitted that there is no affidavit by Ms Mondo
confirming the allegations contained in annexure “EH5” of
the applicant’s founding affidavit and no reply to the second
respondent’s affidavit was filed. Clearly the factual evidence
before this Honourable Court does not justify the order sought.’
[51]
Reliance was also placed on a decision made by Heathcote AJ on a
similar provision of the 1992 Labour Act and where the court found
that the Labour
Court cannot give a costs order against a respondent in an unopposed
matter particularly
in circumstances where the unlawful conduct had ceased by the time
the matter was called in open court.
[52]
In any event it was contended that the second respondent had not
opposed the costs order in a frivolous and vexatious manner –
The court was also referred in this regard to what was said in
National
Housing Enterprise vs. Beukes and Others
where
the Labour Court, in interpreting section 20 of the Labour Act, 6 of
1992, (which in effect is similar to section 118 of the Labour Act,
11 of 2007), considered the meaning of the concepts ‘frivolous’
and ‘vexatious’ as used in Section 20 of the 1992 Act :
‘[20]
Section 20 of the Labour Act provides that the court shall not make
any order as to any costs incurred by any party in relation to any
proceedings instituted in the court, except against a party which in
the opinion of the court has, 'in instituting, opposing or continuing
any such proceedings, acted frivolously or vexatiously'. The question
arises: what does it mean to say that a party has 'acted frivolously
or vexatiously'? In Fisheries Development Corporation of SA Ltd v
Jorgensen and Another; Fisheries Development Corporation of SA Ltd v
AWJ Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W) Nicholas J,
as he then was, while dealing with an application to stay proceedings
which were alleged to be vexatious or an abuse of the process of the
court, said this (at 1339F):
'In
its legal sense, "vexatious" means
"frivolous,
improper: instituted without sufficient ground, to serve solely as an
annoyance to the defendant
(Shorter
Oxford English Dictionary). Vexatious proceedings would also G no
doubt include proceedings which, although properly instituted, are
continued with the sole purpose of causing annoyance to the
defendant; abuse connotes a mis-use, an improper use, a use mala
fide, a use for an ulterior motive …'
and where the court
continued to hold:
‘[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'.
[53] It was then
submitted that the second respondent did not act mala fide or with
manifest bias during the arbitration proceedings under review and
further that the second respondent did not act frivolously in
defending this review application, particularly as there were no
apparent facts in the applicant’s founding papers to justify a
finding that the respondent acted mala fide or with manifest bias in
the proceedings under review to justify a costs order. All the second
respondent had done was to determine procedures which she deemed
appropriate, to ensure that the dispute that was before her was
resolved fairly.
{29}
The court was then referred to the submissions made by counsel in
Maclean v Haasbroek NO and Others
1957 (1) SA 464 (A) at 468H – 469A :
‘ … it
is an accepted principle that when a public officer acts in a
judicial or quasi-judicial capacity costs should not be awarded
against him. That is no doubt the position when an order for costs is
sought against a public officer acting in such a capacity; he is
entitled to resist the order not only on the ground that he acted
correctly but also on the ground that, even if he acted incorrectly,
he acted in a judicial or quasi-judicial capacity. But where, as in
the present case …’
and it was stated that it
should be clear that the second respondent only opposed the
introduction of the costs relief and that this did not make her a
party to the actual review of the arbitration award, thus costs could
not follow if the review should succeed.
[54]
It was also argued that the present case should be distinguished from
the case of Regional
Magistrate Du Preez v Walker 1976(4)
SA 849 (A).
[55]
Finally it was submitted in the written heads of argument that costs
de
bonis propriis would
only be called for if it could be said – which it couldn’t
- that the second respondent had acted mala
fide or
with manifest bias.
[56]
Also during oral argument Mr Ntinda emphasied that a de
bonis propriis costs
order could only be made if malice or bias on the part of the second
respondent had been proved. This was not the case as all the second
respondent had done was to resist the granting of such order against
her. In any event she had not lost the protection afforded to her by
legislation under section 134.
[57] Mr Dicks pointed out
in reply that the issue of the second respondent’s conduct was
not res judicata between the parties as the second respondent
had not been a party to the appeal but that it was her opposition, to
the relief now sought, which had brought her within the ambit of
section 118, in which regard it had to be taken into account that she
had disputed the merits of the serious allegations made against her.
[58] In further reply to
Mr Ntinda’s submissions made in regard to the approach to
disputed facts in motion proceedings, where the second respondent’s
version would have to prevail, he pointed out that such rule would
not avail the second respondent who had disputed the applicant’s
version only with ‘bald and blanket denials’. In view of
the serious allegations levelled against her one would have expected
more than a mere denial, which was therefore insufficient to create a
material dispute of fact which would let the second respondents
version prevail for purposes of considering the very converging
positions adopted by the parties on the issue of costs. The court
would therefore be in the position to determine the costs issue on
the papers before it.
[59] In spite of the very
converging positions also adopted by the parties to the costs issue
it can immediately be said that the second respondent had indeed
brought herself within the ambit of section 118 of the Labour Act
2007 though the delivery of her ‘Notice to Oppose’ and
through the filing of an answering affidavit also disputing the
merits, which had only become res judicata between applicant and
first respondent.
[60] It is indeed
understandable that she tried to oppose the adverse costs order with
which she was seemingly confronted. Whether or not she was well
advised by the Government Attorney in doing so becomes of course
questionable, particularly as all counsel where agreed that the
judgment of this court - in the Commercial Investment Corporation
case - was correctly made – and although made under the
previous labour dispensation would be applicable and govern the
interpretation of section 118 of the 2007 Labour Act also in this
case – and in terms of which the court would have been
precluded to have made costs order against her, if she would not have
opposed these proceedings.
[61] As the second
respondent had so subjected herself to the costs regime imposed by
section 118 of the Labour Act – the only remaining issues would
be the determination of whether or not the second respondent’s
opposition to the costs order sought can be regarded as frivolous or
vexatious and whether or not she had forfeited the protection
afforded by Section 134.
[62] Central to these
enquiry’s would be a consideration of the merits of the review
and the conduct of the second respondent which, in the appeal, had
led to the setting aside of the entire award.
[63] Crucial in this
determination, in turn, is the fact that second respondent admits
receipt of the letter marked “EH5” in the review –
that is the letter written by Mr Markus, an admitted legal
practitioner, upon receiving the report from his candidate legal
practitioner, Ms Mondo, who had informed him that the second
respondent had asked her during a short adjournment of the
arbitration proceedings on 15 May 2012 to tell Mr Markus that he
should address certain allegations the applicant had raised and to
deal with them and that the second respondent had requested Ms Mondo
not to tell Mr markus that she had done so and that she should
pretend as if she – Ms Mondo was making the suggestion in her
own right.
[64] Properly - and
correctly so - Mr Markus immediately addressed a letter to the second
respondent advising her that such conduct disqualified the second
respondent from further presiding in the arbitration.
[65] The second
respondent was also pertinently informed that such conduct left the
first respondent with no option but to ask for the second
respondent’s recusal. She was expressly requested to reconvene
the arbitration proceedings for such purpose.
[66] It becomes clear
from the second respondent response that she flatly refused to
reconvene the arbitration proceedings.
[67] It is apposite for
purposes hereof to quote her response in full:
‘Dear
Mr Marcus
RE:
PHELEM MANYANDO LIKE // NAMIBIA ESTATE AGENTS BOARD
Your
letter on the above matter received on the 18 May 2012, has
reference.
Sir,
I am certain and am glad that you certainly know that you are not
telling the truth that “After the conclusion of the
arbitration proceedings on 15 May 2012”, your candidate
legal practitioner, Ms. Mondo informed you that during the short
adjournment of the proceedings on 15 May 2012, I asked her to tell
you that you should address the allegations that the respondent had
raised, as you had not dealt with them…..
As
I have already indicated to you, my schedule is so full and I have no
time to entertain this kind of arguments which are aimed at nothing,
but to tarnish my name and my reputation.
I
challenge you to prove your allegations against me, and I reserve my
rights to sue you for character assassination etc. I wonder what
you(r) motives for such action are.
Meanwhile,
I would like to inform you that I am expecting the closing arguments
to be submitted by the 02 June 2012 as was agreed upon at the closure
of the proceedings.
I
have no intention whatsoever, either to recuse myself from this case,
or to reconvene the arbitration proceedings as per your conflicting
request(s).
Till
then!’
[68] It immediately
becomes clear that the second respondent became obliged to hear the
application for recusal. This she refused to do. In addition she
allowed the first respondent - who had failed to prove his losses
during the arbitration – a further opportunity to prove such
losses behind the applicant’s back - without affording the
applicant the opportunity of dealing with such documentation. She
then proceeded to deliver her award, which was in favour of the first
respondent.
[69] This course of
conduct – which incidentally also discloses the second
respondents bias, towards the first respondent – then also
reveals the further fundamental irregularities committed by second
respondent – which clearly vitiated the entire arbitration
proceedings.
[70] It is important to
note in this regard that the second respondent – in her
answering affidavit - did not deny - but merely noted - the
applicant’s allegations made in regard to her permitting the
first respondent to amplify a defective case through the submission
of further documentation behind the applicant’s back without
affording the applicant an appropriate opportunity to deal therewith.
[71] Such un-contradicted
conduct then proves bias on the part of the second respondent even if
one accepts, for the moment, that the content of Mr Markus’
letter was not confirmed under oath and thus constitutes hearsay. It
was however not denied that Mr Markus wrote the letter in question,
placing certain highly irregular conduct on record, which should have
necessitated the setting down, hearing and determination of a recusal
application by the second respondent before she would be able to
continue to preside at the arbitration and deliver any award.
[72] In this regard it is
telling that she refused to entertain Mr Markus’s request in a
most arrogant fashion. Mr Markus had quite properly placed the
alleged conduct of the second respondent on record – which
would clearly not favour his client’s case – but which he
was duty bound to do as an - ethically correct – admitted legal
practitioner.
[73] The second
respondent’s denials are indeed made in a bald fashion as
submitted by Mr Dicks – In addition I have no reason to doubt
that there was indeed substance in the contents of Mr Markus’
letter particularly as a court would always be entitled to accept –
and thus to place some evidential weight – on the unsworn word
of a duly admitted legal practitioner, an officer of the court.
[74] All these factors
then cast great doubt on the veracity of the second respondent’s
denials. As however neither Mr Markus nor Ms Mondo deposed to any
confirmatory affidavits in the review I will not take this facet of
the merits into account in the determination of whether or not the
second respondent’s opposition to the costs order herein is
frivolous or vexatious and whether or not her conduct during the
arbitration was in ‘good faith’.
[75] What has however
emerged, so far, is that the second respondent did not dispute that
after the closure of both parties’ cases during the arbitration
proceedings, she accepted further documentation of which the
applicant was unaware and in respect of which the applicant was not
given the opportunity to be heard before she delivered her award in
favour of first respondent.
[76] As already mentioned
above this conduct discloses bias on the part of the second
respondent in favour of first respondent.
[77]
Bias – as a form of gross misconduct – also being
indicative of malice towards the one or other party – in my
view constitutes a valid basis for the granting of a de
bonis propriis costs
order.
[78] Bias also
constitutes a valid basis for finding that the second respondent’s
actions, in the performance of her functions in terms of this Labour
Act, were not performed ‘in good faith’.
[79] This finding then
also removes the shield of immunity as conferred by Section 134 of
the Labour Act 2007 from the second respondent.
[80] The word
“frivolous”, as used in section 118 of the Act, also
encompasses a situation where proceedings in a Labour Court are
opposed ‘without sufficient ground’.
[81] Given her telling
failure to deny material facts - the opposing papers - of the second
respondent - do not disclose such ‘sufficient grounds’ –
Her opposition to the adverse costs order is accordingly deemed
‘frivolous’ within the meaning of section 118 of the
Labour Act.
[82]
Ultimately the second respondent’s actions – that is her
conduct in the arbitration – which, as I have found above -
discloses bias – coupled to her ‘frivolous’
opposition of the costs order – thus form a valid basis for the
sought award of a costs order de
bonis propriis against
her.
[83] In the result:
(a) The first
respondent’s application to have the matter referred back to
arbitration is refused.
(b) The second respondent
is ordered to pay the applicant’s and first respondent’s
costs in the review de bonis propriis on a scale as between
attorney and client.
----------------------------------
H GEIER
Judge
APPEARANCES
APPELLANT: G Dicks
Instructed by GF
Köpplinger Legal Practitioners,
Windhoek.
First RESPONDENT: A W
Boesak
Instructed by BD Basson
Inc., Windhoek.
Second RESPONDENT: S
Ntinda (with him S Nikiwane)
Government Attorney,
Windhoek
Namibia Estate Agents Board v Like and Another (LC 103/2012) [2013] NALCMD 36 (30 October 2013);