NOT REPORTABLE

     CASE NO.  LC  81/2009

IN THE LABOUR COURT OF NAMIBIA

In the matter between:

F C  JACOBS								               APPLICANT

and

R H S  GEBHARDT							    1STRESPONDENT

W  GEBHARDT							               2ND RESPONDENT

CHAIRPERSON OF THE DISTRICT LABOUR
COURT, WINDHOEK  (MRS L M SHAANIKA)			               3RD RESPONDENT

THE MESSENGER OF THE COURT, WINDHOEK		                4TH RESPONDENT

CORAM:		HOFF, J

Heard on:		2009.12.01

Delivered on:	2009.12.02

Reasons on:	2009.12.03

JUDGMENT:

HOFF, J:	[1]	This is an application in which the applicant prayed for condonation of applicant’s non-compliance with the forms and service as provided for in the Rules of the Labour Court authorising applicant to bring this application on an urgent basis.
[2]	Applicant also prayed that a rule nisibe issued calling upon the respondents to show cause, if any, on a date to be determined by this Court why an order in the following terms should not be granted:

“2.1	That the judgment delivered in favour of first and second respondents on 10th and 13th of November 2009 by the chairperson of the district labour court of Windhoek, Mrs L M Shaanika, be stayed pending the outcome of the appeal noted by the applicant.

2.2	That the warrant of execution issued out of the district labour court against the applicant in the amount of N$160 067.35 in favour of first and second respondents be stayed pending the finalisation of the appeal proceedings.

2.3	Interdicting and restraining the messenger of the court, Windhoek from attaching any property or funds of the applicant at the behest of first and second respondents pending the finalisation of the appeal proceedings.

2.4	That prayers contained in paragraphs 2.1, 2.2, and 2.3 become operative with immediate effect as an interim order, pending the outcome of the appeal.

3.	An order that the applicant pays the costs of this application (save for any costs of opposition).”

[3]	This application was opposed by the first respondent.  The second respondent (wife of first respondent) passed away during January 2009 before she could testify in the district labour court.

[4]	The first respondent raised two points in liminefirstly on the grounds that there is no urgency in hearing this application and secondly, that the applicant “seeks relief on the basis of (an) illegality”.  The first respondent, who had been represented in the court a quoby Mr H Beukes, now appears in person.
The applicant is represented by Mr Boesak.  

The issue of lack of urgency

[5]	The first respondent submitted, inter alia,that applicant did not set out (in his founding affidavit) any reasons why the application should be heard as a matter of urgency, that applicant did not comply with the Rule of this Court (presumably Rule 6 (5)(b) ) which requires that an applicant shall inform the respondent that if the application is opposed such respondent has a period of 5 days, after service of the notice motion upon respondent, to deliver to the registrar a notice to oppose the application (applicant brought the application two days’ notice), and that he had been prejudiced since he did not have adequate time to obtain legal representation.

[6]	The applicant in his founding affidavit however did provide reasons in support of which he prayed that the matter be heard as one of urgency and referred firstly to the fact that written reasons for the ruling by the chairperson of the district labour court was received on 13 November 2009, that on 17 November 2009 first respondent directed fourth respondent to attach several of the assets of the applicant in satisfaction of a warrant of execution issued by the district labour court on 17 November 2009 in favour of first and second respondent, and that fourth respondent had informed him that a sale in execution would take place on 5 December 2009.

[7]	It is common cause that an advertisement appeared in a daily newspaper on        26 November 2009 in which the notice of a sale in execution, that certain movable property of the applicant would be sold by fourth respondent on 5 December 2009 was advertised.

[8]	Applicant served the notice of motion on Mr Beukes (first respondent’s representative in the court a quo)on 27 November 2009 (i.e. the next day after the advertisement had appeared in the newspaper) setting down the application on                        2 December 2009.  The first respondent was clearly mistaken when he boldly stated that no grounds for urgency had been set out by the applicant.

The issue of an illegality

[9]	It appears to me that this point has its roots in a point in liminereferred to as a special plea in the court a quoin which the applicant raised the point that he was wrongly cited as the respondent  since there was no proof of an employer – employee relationship between himself and the complainant.  It was submitted by Mr Boesak that the first and second respondents had been employed at Waterberg Lodge (Pty) Ltd, a separate legal entity, and not by applicant.  Applicant himself was employed as a director of Otjipiro Waterberg Lodge (Pty) Ltd.
First respondent now submitted that is was common cause that “applicant employed respondents verbally”, that the agreements had not been reduced in writing, and that the company itself could only have been a party to the contract of employment where such contract had been reduced to writing.  First respondent then referred to the provisions of the Companies Act 61 of 1973 (s. 204) requiring the keeping of minutes of meetings by companies failing which such company shall be guilty of an offence;  and also referred to the provisions of section 4 of the Labour Court Act 6 of 1992 which requires the employer to keep record of payments, of employment contracts, remuneration, termination, reasons for termination etc which applicant did not keep according to first respondent.  The “illegality”appears from the answering affidavit of the first respondent to be founded in the averment that applicant had not complied with certain mandatory legislative prescripts together with the fact that applicant personally employed the respondents.
In my view even if it is accepted that applicant has failed to comply with certain duties prescribed by statute that such failure is irrelevant for the purpose of this application which relates in essence to a stay of execution of the judgment delivered by the chairperson of the district labour court.
The question whether there had or had not been an employment contract between the applicant and respondents or between Otjipiro Waterberg Lodge (Pty) Ltd and the respondents is a factual dispute and for the appeal court to consider.

[10]	It is thus for this reason that the second point in liminemust fail as well.

Merits
Background

[11]	There is presently a dispute between the parties as seen (supra)who the employer of the respondents was.  It would appear safe to state that the respondents had been employed at Waterberg Lodge in contradistinction of having been so employed byOtjipiro Waterberg Lodge (Pty) Ltd from 01 October 2004 to 30 April 2005 on a salary of N$5 00.00 per month.  In a letter dated 30 April 2005 the services of respondents were terminated.  The respondent subsequently instituted a claim for compensation in the district labour court alleging that they had been unfairly dismissed.   The chairperson found that the respondent (present applicant) had not proved on a “balance of probabilities”that there was a fair and valid reason for terminating the complainants’ (now respondents) contracts of employment and ordered present applicant to pay the following amounts:      (i)  outstanding salaries for 7 months in respect of each complainants (i.e. a total amount of N$70 000.00 plus interest at 20% per annum from (?) (date was not inserted);                 (ii)  expenses incurred on behalf of the lodge by the complainants in the amount of N$31 579.20;  (iii)  additional compensation for overdraft facility incurred by complainants in the amount of N$58 488.15.  The total amount applicant was ordered to pay respondents was         N$160 067.35.

[12]	In addition the applicant was ordered to pay costs in terms of section 20 of the Labour Act 6 of 1992.

[13]	The applicant denies that the amount of N$160 067.35 was owed to the respondents.

[14]	In terms of Rule 6 (23)(c) of the Rules of the Labour Court Act 6 of 1992 in every affidavit in support of an urgent application the applicant shall set forth explicitly – 
(i)	The circumstances which he or she avers render the matter urgent;  and 
(ii)	the reasons why he or she could not be afforded substantial redress at a hearing in due course.
Rule 6 (23)(c)(iii) is not applicable in this application.

[15]	I have already referred (supra)to the reasons by the applicant why this application should be dealt with on an urgent basis.

[16]	Regarding the requirement set out in Rule 6 (23)(c)(ii) (supra)the applicant states that first respondent does not own any substantial assets (movable or immovable), that first respondent is not a Namibian citizen and may leave the country after receipt of payment, that the prospect of successfully instituting legal proceedings in Namibia, in the event of first respondent leaving this country is very limited, and that nothing would prevent first respondent from dissipating the money (N$160 067.35) as soon as he receives such monies resulting in the inability of applicant to recover such amount from first respondent should applicant be successful on appeal.

[17]	The first respondent in his affidavit did not dispute these grounds in his answering affidavit in the sense that he did not deal with those grounds at all.
First respondent in his submissions conceded that he is figuratively speaking financially at the end of his tether.  This concession supports the averment by the applicant that respondent does not own any substantial assets.
First respondent though denied that he would abscond Namibia, stating that he has been a permanent resident in Namibia since 1949.
[18]	It is trite law that when a party wishes to oppose an application such a party must set out his defence in such affidavit and must specifically deal with those averments in the applicant’s founding affidavit which are in dispute.  The first respondent failed to deal with a number of averments set out in applicant’s founding affidavit.

[19]	It has been held that the procedure of a rule nisi iusually resorted to in matters of urgency and where the applicant seeks interim relief in order to adequately protect his immediate interests.  It is a useful procedure and one to be encouraged rather than disparaged in circumstances where the applicant can show, prima facie, that his rights have been infringed and that he will suffer real loss or disadvantage if he is compelled to rely solely on the normal procedures for bringing disputes to Court by way of notice of motion or summons.
(See Safcor Forwarding (Johannesburg) (Pty) Ltd v National Transport Commission 1982 (3) SA 654 AD at 674 H – 675 A).

[20]	The applicant further stated in his founding affidavit that he has a reasonable prospect of success on appeal.  In this regard with reference to his special plea, in the court a quo,his submission is that the chairperson  erred in law and/or fact in finding that first and second respondents were employed by himself whilst accepting in her judgment that Otjipiro Waterberg Lodge (Pty) Ltd employed the respondents, and that the respondents despite objections continued in the action against him and failed to amend their papers to reflect the proper citations in respect of both the complainants and respondent.

[21]	Applicant further stated that the chairperson erred in law and/or fact in finding that the court is entitled simply to rely on the evidence tendered with regard to the case for the first respondent in support of a claim of second respondent.  It is common cause that second respondent passed away before she could testify in the court a quo.  It was submitted that the chairperson failed to treat each claim on its own merits.
Applicant in his founding affidavit also substantiated why the chairperson erred in law and/or fact on the evidence presented, that respondents had been dismissed without a valid reason and without following a fair procedure.
In addition applicant referred to numerous errors by the chairperson with regard to factual matters placed before her and that she also relied on matters not placed before her in coming to her findings.

[22]	Another ground in support of the submission of reasonable prospects of success on appeal (referred to in the founding affidavit) is the fact that applicant was ordered to pay costs in terms of the provisions of section 20 of Act 6 of 1992 in circumstances where defending the complaint was not frivolous and vexations.
In fact no reason appears from the judgment of the presiding officer why such an order was made !

[23]	Finally the applicant stated in his affidavit that the balance of convenience lies in his favour.

[24]	I am satisfied that the applicant has made out a case why this matter should be heard as a matter of urgency, that applicant has shown prima faciethat he would suffer irreparable harm or prejudice if he is not granted the relief prayed for in his notice of motion, and has shown why he could not be afforded substantial redress at a hearing in due course.

[25]	The first respondent did not in his answering affidavit specifically deal with the averments by the applicant in support of his submission that there are reasonable prospects of success on appeal save to say that the appeal has no prospects of success whatsoever and as such applicant cannot suffer irreparable harm.

[26]	I satisfied that the applicant has made out a case for the relief prayed for in the notice of motion.

[27]	In the result the following orders are made:

1.	That the applicant’s non-compliance with the forms and service as provided for in the Rules of the Labour Court is condoned and the matter is heard as a matter of urgency.

2.	That a rule nisibe issued calling upon the respondents to show cause, if any, on  22 January 2010 why an order in the following terms should not be granted:

2.1	That the judgment delivered in favour of first and second respondents on 10thand 13thof November 2009 by the chairperson of the district labour court of Windhoek, Mrs L M Shaanika, be stayed pending the outcome of the appeal noted by the applicant.

2.2	That the warrant of execution issued out of the district labour court against the applicant in the amount of N$160 067.35 in favour of first and second respondents be stayed pending the finalisation of the appeal proceedings.
2.3	Interdicting and restraining the messenger of the court, Windhoek from attaching any property or funds of the applicant at the behest of first and second respondents pending the finalisation of the appeal proceedings.

2.4	That prayers contained in paragraphs 2.1, 2.2, and 2.3 become operative with immediate effect as an interim order, pending the outcome of the appeal proceedings.

3.	That the applicant pays the costs of this application.

__________
HOFF, J

ON BEHALF OF THE APPLICANT:					          ADV.  BOESAK

Instructed by:							 	     B D BASSON INC.

ON BEHALF OF THE 1ST RESPONDENT:				        MR  GEBHARDT

Instructed by:								               IN  PERSON