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CASE NO.: LC 11/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

PURITY MANGANESE (PTY) LTD APPLICANT

and

KEPHAS AKWENYE & NINE OTHERS RESPONDENTS

CORAM: MANYARARA, A J

Heard on: 09 April 2009

Delivered: 16 July 2009

JUDGMENT

MANYARARA, AJ.: [1] This is an urgent application for an interim interdict suspending the judgment of the District Labour Court sitting at Okahandja pending the outcome of the applicant’s appeal against the judgment. The judgment was delivered on 27 February 2009. In the judgment, the Chairman ordered reinstatement of the respondents with compensation and that effect be given to his ruling by 31 March 2009. The appeal was noted on 19 March 2009.

[2] In terms of section 21(2) of the Labour Act 6 of 1992 (the Act), the noting of an appeal does not stay the execution of a District Labour Court’s ruling unless the appellant applies for a stay of execution. Hence the launching of the present application on an urgent basis some 12 days before the deadline for compliance with the Chairman’s ruling. Ms Bassingthwaite appears for the applicant and Mr. Hinda for the respondents.

[3] The background to the application is not disputed. It is common cause that the respondents were all employed by the appellant as drivers. Their contract of employment was terminated on 14 April 2008 and they filed a class complaint of unfair dismissal against the respondent. The trial was postponed twice at the applicant’s request – firstly, on 28 November 2008 for the applicant to comply with Rule 7 of the District Labour Court Rules (the Rules) which requires the respondent to file a reply to the complaint and deliver a copy to the complainant(s) within 14 days of service of the complaint on the respondent; and secondly, on 30 January 2009 to allow the applicant more time for compliance with Rule 7 which had still not happened. See Rule 21.

[4] At the hearing on 16 February 2009 the applicant sought a further postponement and this was refused.

[5] Ms Bassingthwaite has based her submissions on the heads of argument filed on the applicant’s behalf dealing with the urgency and merits of the application and the appeal. Mr. Hinda on the other hand chose to depart from the heads of argument filed on his clients’ behalf and, instead, confined his submissions to whether it was competent for the applicant to appeal against the Chairman’s judgment which Mr Hinda contended was, in the circumstances, a default judgment; if not, cadit questio, the application failed without considering the question of urgency or the merits.

[6] The District Labour Court Rules have no provision for granting a default judgment in the District Labour Court but only rescission in terms of Rule 22.

[7] In terms of Rule 26, where the District Labour Court Rules do not make provision for the procedure to be followed in any matter before the court, the rules applicable to civil proceedings in magistrates’ courts shall apply.

[8] Rule 12 of the Magistrates’ Court Rules provides that default judgment may only be granted upon the plaintiff’s request in the following circumstances –

1. If the defendant has failed to enter appearance to defend and has not consented to judgment: and

2. If the defendant has entered appearance but has failed to deliver a plea within 7 days after entry of appearance.

[9] In terms of Rule 12(2)(a), if it appears to the clerk of court that the defendant intended to defend the action but that his entry of appearance is defective or has not been properly delivered or signed etc, he shall not enter judgment unless the plaintiff has delivered written notice to the defendant calling upon him to deliver a memorandum of entry of appearance in due form within 3 days of the receipt of such notice and the defendant has failed to comply with the notice.

[10] Therefore, it will be seen that the District Labour Court Rules do not provide for granting default judgment while the Magistrates’ Court Rules do not make provision for the court to grant default judgment mero motu but only upon application by the plaintiff.

[11] It follows that the issues for determination in this matter are -

1. whether in terms of the Rules the Chairman’s ruling was a default judgment;

2. if it was, whether it was granted upon application by the claimants;

3. if not, whether the applicant was entitled to apply for postponement or stay of execution pending the outcome of the appeal launched against the ruling: and finally,

4. whether in the last mentioned instance the Chairman acted correctly in refusing postponement.

[12] Rule 12 of the District Labour Court Rules provides for postponement of matters before the court as follows –

“Postponements

Subject to the chairperson’s discretion to adjourn a hearing which has already commenced, the chairperson and the clerk of the court shall ensure that there is no avoidable delay in the hearing and the determination of a complaint, and no postponement of any hearing shall be granted by the chairperson unless notice of an application on good cause shown for postponement is given to the other party not less than three days before the hearing or the parties at any time agree thereto in writing.”

[13] The important factor is that postponement is a matter for the exercise of the Chairman’s discretion and the crucial considerations are, firstly, avoidance of delay in the hearing and, secondly, that notice of the application for postponement on good cause shown has been given to the other party not less than three days before the hearing or the parties at any time agree thereto in writing.

[14] In casu the applicant requested the respondents’ attorney to consent to suspension of the Chairman’s ruling and the request was refused and the notice of an application for postponement required by the Rule was not given.

[15] The leading authority on postponements is Myburgh Transport v Botha t/a S A Truck Bodies 1991 (3) SA 310 (Sc), which came before a strong Namibian supreme court constituted by Berker CJ, Mohammed AJA and Dumbutshena AJA. Mohammed AJA as he then was wrote the judgment, Berker CJ and Dumbutshena AJA concurring. The facts bear a close resemblance to the facts of the instant matter. These bear repetition and are adequately summarized in the head note at 311G-I as follows:

“In the instant case, the trial Court had refused an application by the appellant for the postponement of the trial in the action between the respondent (as plaintiff) and the appellant (as defendant) which had been brought on the ground that an essential witness for the defendant had serious back problems and was experiencing severe pain. The application, which had been brought informally on the day of the trial, was refused by the trial Judge who rejected the medical evidence adduced by the appellant in support of the application for the postponement on the ground that the witness’ condition was not so serious that he could not, with the correct medication, attend the trial. The trial Judge was, in coming to this conclusion, influenced by his personal experience of back pain and the treatment he had received for it. The Court, in an appeal against the refusal of the postponement, held that the trial Judge had erred in projecting his personal experiences in the assessment of the medical evidence and further that, on the facts, there was no adequate basis for rejecting the medical evidence that the witness was not in a fit condition to attend Court as a witness and to concentrate properly on the issues raised in cross-examination. The appeal was accordingly allowed and the trial Court’s order altered to one postponing the trial sine die.”

[16] The person making the application for postponement in the present matter was the applicant’s Human Resources Manager, Kaleinasho Ngetuya Pohamba Ndume (Mrs Ndume). The founding affidavit deposed by Asaf Eretz, the applicant’s managing director, and confirmed by Mrs Ndume avers that the applicant’s legal representatives withdrew from the case at the last minute

and –

“61. Mr Mostert and Mr Becker on the last minute put the Applicant in a position where it was unable to defend itself. In addition, Mrs Ndume being a layperson was unable to defend the Applicant in circumstances where it was necessary to secure a postponement. Mrs Ndume advises that the Chairperson only asked her why a postponement was necessary. She did not know and was not informed by the Chairperson what the

procedure was for an application for a postponement and what requirements must be satisfied for an application for a postponement. In this regard, I am advised that the Chairperson should have come to her assistance and postpone the matter.”

The deponent continues as follows:

“63. I am advised to state to this Honourable Court that the Applicant’s grounds of appeal (which is attached hereto, marked “AA3”) are good in law in particular in respect of the legal principles pertaining to application of postponements.

64. This I am advised is more so, inter alia, from the facts that has been stated (sic) in regard to the postponement which was sought by Mrs Ndume at the hearing of the 30^th January 2008 (per paragraph 50 above), it was abundantly clear that she was unable to represent the Applicant when Mr Becker withdrew from the matter. She was also unable to argue for a postponement.

64. The Applicant has entrusted Mr Mostert to represent it which he failed to do so. This fact only came to the Applicant’s knowledge on the 30^th January 2009. Prior to that the Applicant through Mrs Ndume took whatever step that necessary to see to it that the matter was properly before the District Labour Court in particular she (Mrs Ndume) at all material times attended the proceedings and provided him (Mr Mostert) with the information he sought and the name and details of its main witness, namely, Mr Kavari.

64. I am advised to submit on this fact alone, the Applicant was entitled to a postponement for the purposes of securing its main witness or obtaining proper legal representation in order to present its opposition to the Respondents case. How was a formal application for a postponement to have been lodged when Mr Becker withdrew as the Applicant’s representative at the hearing of the matter. The denial of the postponement did not meet the needs of fair and substantial justice.”

[17] Mrs Ndume and her predecessor, Harold Kavari, have filed confirmatory affidavits and the lawyers who have since been approached by the applicant have confirmed that they have accepted the instructions to represent the applicant in this matter.

[18] When the application was refused, Mrs Ndume withdrew from the court and the Chairman proceeded to hear the matter in her absence and in the absence of the applicant or any representative of the applicant and gave judgment upholding the respondents’ claim in the terms already mentioned. When the applicant got to know of the outcome of the proceedings, it appealed against the Chairman’s judgment and the application for suspension of the judgment was filed simultaneously. The respondents oppose the application but they have not filed an answering affidavit.

[19] The Chairman, after citing Myburg’s case, set out his reasons for refusing postponement extensively as follows –

“In casu, the court will hasten to point out that the very party seeking a postponement in court did so mala fide without considering that it was the same party that further enlisted the services of a labour consultant with legal training and with the know how on these aspects more particularly legal aspects. If the respondent did not proffer proper instructions to its legal representatives or for whatever reason did not see it expedient to use its legal representatives though they appeared in court on 2 occasions, then such an application for a postponement had no basis and was at most frivolous and vexatious. As a result, using the above principles, and the fact that the respondent was afforded ample time to comply with the rules of this court, such an application was in the circumstances prejudicial to the complainant, noting that in November 2008 the court granted a similar application to the respondent to remedy its prescribed failure to comply with the law.

The court then proceeded with the hearing of the complainant in terms of Rule 10(4). The court hastens to point out that the Rule 10(4) provides that the chairperson must be satisfied that the complaint has been sufficiently established.

Rule 4 provides that a complaint should contain the following details:

- The name and address of each complainant.

- Particulars of each complainant which are reasonably sufficient to inform the Respondent about the complainant and the cause of action and what relief is claimed.

- Where appropriate, the relief claimed by the complainant.

In a joint or class complaint as the current one, it is imperative to comply with Rule 13 and form 10 of the Rules.”

[20] The Chairman cites Stahn t/a BS Contractors v Kafunga and Others 2000 NR 133 (Lc) in which Silungwe J as he then was held that failure to comply with Rule 13 (which provides for the manner of instituting class actions) is actually defective.

[21] In casu the Chairman states that, Rule 10(4), in terms of which he proceeded with the hearing of the complaint, the court must be satisfied that the complaint has been established and “the complaint should contain the following details –

• The name and address of each complainant;

• Particulars of each complainant which are reasonably sufficient to inform the Respondent about the complaint and the cause of action and what relief is claimed; (and)

• Where appropriate, the relief claimed by the complainant.”

[22] However, not minding the matters he thus set out and by some mental gymnastics, the Chairman blissfully continues as follows:

“However, the complaint itself does not contain sufficient detail to enable the court to ascertain what exactly the relief is being sought. Sufficient particularity in a claim is paramount. The 13 complainants addresses are not shown on the complaint lodged. However in the absence of an exception or an application to strike out from the respondent, the court proceeded with determining the complaint on the basis that the respondent was in default and that the facts surrounding the matter were elucidated through the evidence that was raised in court. It is thus a retrenchment case, where the parties (sic) allege an unfair procedure and substantive unfairness.”

[23] In my view, the Chairman’s reasoning negates the principles enunciated in Myburg, which he had correctly set out in his ruling, in particular the principle enunciated as follows -

“A court should be slow to refuse a postponement where the true reason for a party’s non-preparedness has been fully explained where his unreadiness to proceed is not due to delaying tactics and where justice demands that he should have further time for the purpose of presenting his case.”

[24] And Rule 10(1) of the District Court Rules provides as follows:

“The hearing of a complaint shall be conducted in such manner as the chairperson considers most suitable to the clarification of the issues before the court and generally to the just handling of the proceedings and the chairperson shall, so far as it appears appropriate, seek to avoid formality in the proceedings and, except in terms of the provisions of section 110 of the Act, shall not be bound by any law relating to the admissibility of evidence.”

[25] In my view, there was no “just handling of the proceedings.” Expecting Mrs Ndume to be familiar with the provisions of the Act and the Rules for the purpose of seeking a postponement is “adherence to formality” of which the Rules strongly disapprove.

[26] In casu as in Myburg, the person making the application for postponement, Mrs Ndume, was a lay person untrained in the law; she brought the application for postponement informally on the day of the trial, having been left in the lurch or left holding the baby as the sayings go, by the applicant’s erstwhile legal representatives who withdrew in circumstances averred by Asaf Eretz, the applicant’s executive manager, in the affidavit supporting the application as follows:

“6. The Applicant appointed Labour Consultants, namely, Nam-La-Bourie to take all steps necessary and to represent it against the Respondents dispute.

7. I state from the outset that the Applicant’s Labour Consultants did not do so and when the matter was set down for hearing before the District Labour Court, they withdrew from the proceedings leaving its Human Resources Officer to apply for a postponement in circumstances in which she was unable to properly represent it (the Applicant).”

[27] It is important to note that the averments were not disputed by the respondents and were in fact acknowledged by the Chairman in his ruling, be it rather sarcastically, as follows:

“If the respondent (applicant on appeal) did not proffer proper instructions to its legal representatives or for whatever reason did not see it expedient to use its legal representatives though they appeared in court on 2 (previous) occasions (My emphasis), then such an application for a postponement had no basis and was at most frivolous and vexatious…...”

[28] The Chairman dismissed Mrs Ndume’s application without giving her the opportunity of explaining the predicament she was in when the lawyers on whom the applicant relied suddenly withdrew their representation. To suggest that Mrs Ndume excluded herself from the proceedings is rather ungenerous of the Chairman when she correctly decided that she could not be of any further use to the court without alternative legal representation which the applicant had in fact already acquired. See Rothe v Argus and Another 1996 NR 406 (Hc) and the confirmatory affidavits of the alternative lawyers who aver that they have accepted the applicant’s instructions to represent the applicant in the proceedings, i.e. Frieda Ndapelwa-Omagano Kuutumbeni Shipopyeni of H D Bossau Legal Practitioners and Jackwell Feris of Cliff Dekker Hofmeyr Inc, South Africa.

[29] The Chairman’s explanation for refusing the postponement flies in the face of all reason and the principles enunciated in Myburg. As we have seen, the factors to be considered by the Chairman when exercising his discretion to grant or refuse postponement are, firstly, avoiding delay in the hearing and, secondly, that the notice of the application for postponement on good cause shown has been given to the other party not less than three days before the hearing or the parties at any time agree thereto in writing. We have also seen that in casu the applicant’s request for the respondent’s consent to suspending the Chairman’s ruling was rejected by the respondents’ attorney who insisted on proceeding with the hearing and that the notice of an application for postponement required by the Rule was not given because it was the responsibility of the applicant’s erstwhile lawyers to attend thereto. It is trite that delay in the hearing normally can be compensated by an appropriate costs order against the party seeking the postponement as the Chairman had actually ordered on a previous hearing of this matter, while the decision whether good cause has been shown is a matter for the Chairman’s value judgment.

[30] Rule 10(4) in terms of which the Chairman purported to act lays down the following guidelines for exercising a value judgment –

1. That the respondent has been served with a copy of the complaint and a notice of the hearing as provided for in Rule 5(2) and fails to reply to the complaint within the time provided in Rule 7(1); or

2. That the respondent fails to appear at the hearing; and

3. That in the chairperson’s opinion, the facts relating to the complaint are sufficiently established.

[31] The Chairman correctly found that the respondent (applicant before this court) had not complied with the first guideline but he disregarded the second and third guidelines, i.e. that the applicant’s Human Resources Manager did in fact appear to make the application for postponement, be it from the bar, but he dismissed her application out of hand while acknowledging in his ruling that, in his opinion, the facts relating to the complaint had not been sufficiently established for the court “to ascertain exactly the relief being sought.”

[32] It follows, in my view, that, in the circumstances, the Chairman exercised his discretion incorrectly in refusing Mrs Ndume’s application for postponement. For the Chairman’s guidance, it is perfectly within his power to grant a postponement on one or more of the following conditions -

1. That the applicant shall pay the respondent’s costs of the postponement as the Chairman had in fact ordered on a previous occasion; and/or

2. That the applicant shall comply with Rule 7 within a specified period, failing which the defence will be struck off and the complaint heard on an unopposed basis; and/or

3. That the applicant shall deposit a sum of money equivalent to the respondents’ claim in a trust account, to be paid to the respondents in the event of their complaint succeeding.

[33] Accordingly, following Myburg, the following order is made:

1. The order of the District Labour Court made on 16 February 2009 refusing the applicant’s application for a postponement is set aside and substituted by an order directing that the trial be postponed sine die.

2. The matter is remitted for hearing to the District Labour Court at the earliest possible date which can be made available by the Registrar.

__________________

MANYARARA, J.

ON BEHALF OF THE APPLICANT Adv. N Bassingthwaighte

Instructed by: HD Bossau & Company

ON BEHALF OF THE RESPONDENTS Adv. G S Hinda

Instructed by: Tjitemisa & Associates

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