REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
EX TEMPORE RULING
Practice Direction 61
Case Title: MICHAEL TUGALUKENI SHAPUMBA ILLONGA Plaintiff and NAMIBIA PUBLIC WORKERS UNION(NAPWU) 1st Defendant PRIME MINISTER OF THE REPUBLIC OF NAMIBIA 2nd Defendant INSPECTOR GENERAL OF THE NAMIBIAN POLICE FORCE 3rd Defendant ATTORNEY GENERAL OF THE REPUBLIC OF NAMIBIA 4th Defendant PUBLIC SERVICE COMMISSION 5th Defendant | Case No: HC-MD-CIV-ACT-OTH-2021/04078 | |
Division of Court: Main Division | ||
Heard: 19 March 2023 | ||
Heard before: Honourable Lady Justice Rakow | Delivered: 19 March 2024 Typed Reasons released: 28 March 2024 | |
Neutral citation: Illonga v Namibia Public Workers Union (NAPWU) (HC-MD-CIV-ACT-OTH- 2021/04078) NAHCMD 144 (28 March 2024) | ||
Order: | ||
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Reasons for order: | ||
RAKOW J Introduction
‘1.1 NAPWU be ordered to pay the plaintiff for unliquidated damages caused at such a rate and for such periods as the court deem just.
[2] After closing of the plaintiff’s case the defendant applied for absolution of the instance which was argued at the same time. The court thereafter did not stand down for judgement but delivered a short judgement at the same time. Brief arguments The defendant [3] Mr Kadhila on behalf of the defendants argued that the nature of the contact between a union and a member, is all the makings of a contract of mandate. In the contract of mandate, where a member alleges negligence on the part of the union, the member must allege, number 1, the mandate, number 2, a breach of the mandate, number 3 negligence on the part of the union and number 4, the damages suffered. The plaintiff has failed to prove: 1. a breach of mandate; 2. negligence on the part of the defendant and; 3. the damages that he suffered. He also failed to obtain services of an expert witness to provide the court with expert evidence as to how damages should be calculated in his claim for unliquidated amount. The plaintiff came to court unprepared, wasted the court’s time and was a terrible witness. He led evidence that contradicts his own case and refused to answer simple questions. The plaintiff has not made out a prima facie case as there is no evidence relating to his claim. His claim is not supported by any of the evidence that he advanced and presented to the court. The plaintiff [4] Mr Illonga, the plaintiff in person argued that the defendants forged his document, they uttered his document and forged it. The plaintiff further stated as follows: ‘there is no way that proof is going to show that, that document is from him, the plaintiff. The plaintiff argued that it is the fraudulent document, that is why NAPWU removed the date and the plaintiff’s signature. The plaintiff states he has no evidence. That summary, there is somewhere I should be able to sign because, although I have signed there is no evidence to prove that summary is mine.’ [5] The plaintiff further stated that: ‘the truth finally emerged on 7 April 2021, that the first defendant intentionally, unlawfully, wrongly, fraudulently, falsely, dishonestly and secretly waited without informing or having the consent or the knowledge of the plaintiff until when the prescribed period to file for the arbitration case had lapsed just for him to finally file for arbitration of the matter with the Labour Commissioner Office on 10 March 2010 while all this time wrongly unlawfully, falsely and fraudulently misrepresenting to the plaintiff that he filed the case with the Labour Commissioners Office, for the case arbitration hearing on the same afternoon of 31 March 2009.’ Reasons [6] The plaintiff claimed that NAPWU (Namibia Public Workers Union) ordered to pay the plaintiff for unliquidated damages caused at such a rate and for such period, as the court deems just. The Office of the Prime Minister be ordered to reinstate back to work, the plaintiff with immediate effect and compensate the plaintiff with all unliquidated damages. Also, such a rate and for such periods as the court deems just. The Namibian Police Force be ordered to pay the plaintiff for unliquidated damages caused at such a rate and for such periods, as the court deems just. That is according to the particulars of claim of the plaintiff. There was a special plea, which dealt with the complaint against the Office of the Prime Minister for reinstatement as well as the police for the plaintiff’s arrest. So, those two claims no longer exist. [7] What remained on this, is that NAPWU be ordered to pay the plaintiff unliquidated damages caused at such a rate and for such period, as the court deems just. Now, unfortunately, the court cannot come up with the plaintiffs damages. It is impossible for the court to come up with the amount suffered as damages by the plaintiff. So, the court took into account what was submitted by the parties, the court finds that damages was not placed before the court and therefore not proved. It might even be that the plaintiff handed to NAPWU the document, however that does not take the matter any further. The plaintiff failed to prove the other elements of this matter. And therefore, the plaintiff is not entitled to his relief. Order [8] I make the following order:
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Judge’s signature | Note to the parties: | |
E RAKOW Judge | Not applicable | |
Counsel: | ||
Plaintiff: | First Defendant | |
M Illonga The plaintiff, in person Windhoek | A Kadhila Of Sisa Namandje & Co. Inc Windhoek | |