NOT REPORTABLE 
CASE NO.: LC 16/2011

IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

Delivered on:       	2011 February 24

JUDGMENT

[2] Faced with that preliminary objection, the applicant then filed on 22 February 2011 at 07H45, that is less than two hours to the time set down for the hearing of the application, what it calls 'Amended Notice of Motion'. Ms. Bassingthwaighte, counsel for the applicant, informed the Court that the same founding affidavit that had been filed in support of the original Notice of Motion is also in support of the 'Amended Notice of Motion'.

[4] It would seem realizing that it has no legal answer to the respondent's preliminary objection respecting non-joinder of the pilots if it relied on the manual only, the applicant then decided to file with the Court barely two hours before the hearing of the application, as aforesaid, an amended Notice of Motion so as for the application to rest on the manual and the collective agreement for life. It is, therefore, to the interpretation and application of the manual and the collective agreement that I now turn my attention to see if the manual and the collective agreement can sustain the applicant's answer to the respondent's preliminary objection concerning the non-joinder of the pilots.

[5] The golden thread that runs through the applicant's amended Notice of Motion is that in virtue of the manual and the collective agreement no training (referred to in prayer 2.1 of the Notice of Motion), no appointment (referred to in prayer 2.2), no appointment (referred to in prayer 2.3) and no promotion, employment or training (referred to in prayer 2.4) should take place without the approval of the respondent's selection board in terms of the manual and the collective agreement.

[6] The selection board appears at para 1.2.14.1 of the manual and it consists of six members as follows:
(1)	
(2)	
(3)	
(4)	
(5)	
(6)	
The executive members of the applicant are not members of the board; they have merely observer status on the board; and so they cannot take part in the making of any decision by the board. That being the indubitable fact, the applicant cannot speak for the board, as it appears to be doing in these proceedings; and the applicant has not shown that it has the authority of the board to speak for it. But, more important, the function of the board as appears immediately after the membership provision as set out previously is this:

The board will convene to consider candidates for upgrade or downgrade and to select Cadet Entry Pilots and Direct Entry Pilots.'

[7] As Mr. Hinda, counsel for the respondent, submitted more than once, the pilots are already employed as pilots by the respondent and what the board may 'convene to consider' does not include in-service training of pilots. Thus, by bringing this application and relying on Part D of the manual in order not to cite the pilots, who are the persons being trained and who on any pan of scale have a direct and substantial interest in the outcome of this application, the applicant has been flying but it cannot reach its destination, being the pursuance of the application.

[8] But that it not the end of matter, in a rearguard action - and that is what the Amended Notice of Motion is, as explained previously - the applicant now relies on the collective agreement to say that the non-joinder of the pilots is not fatal to the application. In considering this point, I must keep it firmly in my mental spectacle that what we have here is a labour matter involving employees governed by the Labour Act, 2007 (Act No. 11 of 2007) and so the consideration of the applicant's reliance on the collective agreement must perforce be subjected to the relevant provisions of the Labour Act.

Recognition as exclusive bargaining agent of employees

Legal effect of collective agreements
70.   (1) A collective agreement binds -
(a) the parties to the agreement;
(b) ...
(c) ...

(e).....

(Italicized for emphasis)

[12] Mr. Hinda submitted that the application should be dismissed with costs. In my opinion, the applicant may have been misguided and overzealous in bringing the application; but I do not think its conduct has reached the mark of vexatiousness or frivolousness within the meaning of s. 118 of the Labour Act to attract the Court's discretion to award costs in favour of the respondent.

[13]   Whereupon, I make the following orders:
(1)	The application is dismissed.
(2)	There is no order as to costs.

PARKER J

COUNSEL ON BEHALF OF THE APPLICANT:
Adv. N Bassingthwaighte

COUNSEL ON BEHALF OF THE RESPONDENT:
Adv. G Hinda