Mine Workers Union of Namibia v Augumeb and Another (HC-MD-CIV-MOT-GEN-2024/00534) [2024] NAHCMD 684 (13 November 2024)

Case Title:

MINE WORKERS UNION OF NAMIBIA APPLICANT

and

MILTON AUGUMEB 1^ST RESPONDENT

SWAKOP URANIUM (PTY) LTD 2^ND RESPONDENT

Case No:

HC-MD-CIV-MOT-GEN-2024/00534

Division of Court:

HIGH COURT (MAIN DIVISION)

Heard before:

HONOURABLE MR JUSTICE PARKER, ACTING

Date of hearing:

25 OCTOBER 2024

Delivered on:

13 NOVEMBER 2024

Neutral citation: Mine Workers Union of Namibia v Augumeb (HC-MD-CIV-MOT-GEN-2024/00534) [2024] NAHCMD 684 (13 November 2024)

IT IS ORDERED THAT:

1. The applicant's non-compliance with the rules of court in so far as it pertains to the form and service of this application is condoned, and the application be heard on an urgent basis.

2. The first respondent is restrained and interdicted from conducting himself in any manner purporting to be a member of the applicant or the Chairperson of Swakop Uranium Branch Executive Committee of the applicant and/or carry out the functions of the Chairperson of Swakop Uranium Branch Executive Committee of the applicant.

3. The first respondent is restrained and interdicted from acting in representative capacity of any kind on behalf of the applicant.

4. The first respondent is interdicted with immediate effect from publishing any statement of whatsoever nature on public forum or in correspondence directed to employers, including the second respondent, wherein the first respondent utters or insinuates that the applicant's leadership is in a crisis and/or that the applicant's National Executive Committee is linked to the misappropriation of the applicant's funds and making any other defamatory comments against the applicant.

5. The first respondent must unconditionally retract the said defamatory statement relating to allegations that the applicant's leadership is in a crisis and that the applicant's National Executive Committee is linked to the misappropriation of the applicant's funds and must tender a public apology in relation to said defamatory statements within 14 days from the date of this order.

6. The first respondent is ordered to pay the costs of this application of one counsel to the applicant.

7. The matter is finalised and removed from the roll.

Following below are the reasons for the above order:

PARKER AJ:

[1] Before the court is an application brought by way of notice of motion. Ms Ihalwa (with her Mr Kazondana) represents the applicant. The applicant has prayed the court to hear the matter on the basis that it is urgent, within the meaning of rule 73(4) of the rules of court. The first respondent has moved to reject the application and is represented by Mr Ngoshi. It is important to underline with emphasis the fact that the applicant is a trade union, registered in terms of the Labour Act 11 of 2007.

[2] The relief which the applicant seeks are set out in the notice of motion. The relief consists principally of interdict and a consequential directory order, that is, an order which the court ought to grant if the wrong complained of is continuing.

[3] For good reason, I shall consider the issue of lack of authority first to determine whether there is an application properly before the court. Indeed, Mr Ngoshi’s submission on locus standi took the lion’s share of the time he spent on his oral submission.

[4] The bone and marrow of counsel’s submission is set out concisely and neatly thus:

‘The Applicant’s application is brought on notice of motion accompanied by a founding affidavit deposed to by Filleppus Ekongo Ampweya seeking (for) orders as set out in the notice. As a General Secretary of the Applicant, he made allegations that he was authorized to bring the application. However, he failed to explicitly state the source of his authority to bring the application let alone a confirmatory affidavit to that effect.

In the replying affidavit, Applicant contends that the deponent was authorized and then refers to RA1. With respect, applicant’s case must be made out in the founding papers (founding affidavit) and not in reply. The Applicant must stand and fall by his founding affidavit.’

[5] With respect, counsel is palpably wrong. His contention is debunked by the authorities. The applicant need only allege that he or she was duly authorized to bring the proceedings.¹ It has been held that it is prudent, but not necessary, to annex to the founding affidavit a resolution authorizing the deponent to make the founding affidavit. If his or her authority to bring the proceedings was disputed, he or she may attach a resolution in reply, and in doing so, he or she was not introducing new evidence.²

[6] Mr Ngoshi had another string to his bow. He submitted that the resolution marked Annexure RA1 was not signed. A second resolution properly signed was filed of record before the hearing. Even this one did not find favour with Mr Ngoshi mainly because a signature which did not appear on the first resolution appeared on the second resolution. Mr Ngoshi did not establish that the owner of that signature was unknown to the applicant. This development matters tuppence; for, even if there was no proper resolution in respect of authority, it could be taken and provided at a later stage and operates retrospectively.³

[7] For what I have said in paras [4]-[6] above, I find that enough has been placed before the court for the court to conclude that it is the applicant which is litigating and not some unauthorized entity.⁴ The preliminary objection respecting locus standi is, accordingly, rejected. I pass to consider the issue of urgency.

[8] It is now well settled through cases too many to cite that the applicant for urgency must satisfy the twin requirements prescribed in rule 73(4)(a) and (b) of the rules of court. On the facts, I find that a substantial dispute that could really engage judicial attention arose on 16 October 2024. That is the critical date. It was at the critical date that the first respondent crossed the Rubicon, forcing the applicant to approach the court for redress with speed and promptitude. Therefore, I am satisfied that the applicant has satisfied para (a) of rule 73(4) of the rules.

[9] As regards the requirement under para (b) of rule 73(4) of the rules, I should say the following: As a registered trade union, as aforesaid, the applicant has a statutory duty to ensure the attainment of the objects of the Labour Act. The actions of the first applicant are inimical to the attainment of those objects. The reason is that his actions are capable of engendering chaos and disorder in the running of the affairs of the applicant and, in turn, industrial and labour disharmony, which no one wants, because they can have dire consequences for the economy of the country.

[10] The first respondent has chosen self-help to deal with the applicant’s decision to expel him from the applicant. But in a constitutional State, self-help and rule of law are not on speaking terms. Consequently, I accept the reasons why the applicant claims it could not be afforded substantial redress at a hearing in due course. Accordingly, I find that the applicant has satisfied the requirement for urgency prescribed in para (b) of rule 73(4) of the rules of court.

[11] The discussion and conclusion thereanent in paras [9]-[10] above have a direct and substantial bearing on the merits of the case. In particular, they show that the applicant has a clear right which it seeks to protect. The first respondent’s actions sufficiently laid out in the founding affidavit interfere with the applicant’s ability to run properly the affairs of the applicant as required by the Labour Act, causing irreparable harm to the applicant. As I have indicated previously, I am satisfied that it has been established that there is the absence of a similar remedy if the interdict is not granted,⁵ that is, a remedy which can afford an adequate protection from the mischief which is done and which is being done by the first respondent.⁶

[12] I now consider the directory order which is in the form of mandamus. A mandamus may sometimes be a remedy for a continuing wrong. Having granted the interdictory orders, as I intimated previously, the court ought to grant the directory order because the mischief complained of is continuing.

[13] If the truth be told, the first respondent has no answer to the applicant’s averments. The first respondent’s only answer which, as a matter of law, is worthless is his contention – which, sadly, Mr Ngoshi peddled in his submission – is that since his expulsion was wrong and invalid (according to him and his counsel), he was entitled to disregard it. His position, which amounted to self-help and which, I dare say, was based on legal advice, is inimical to all that the rule of law stands for.

[14] Based on these reasons, I find and hold that the applicant has made out a case for the relief sought and is, therefore, entitled to judgment. As to costs, the general principle applies: Cost should follow the event. But I do not think the matter is so complex as to require the services of two counsel on either side of the suit.

[15] In the result, I order as follows:

1. The applicant's non-compliance with the rules of court in so far as it pertains to the form and service of this application is condoned, and the application be heard on an urgent basis.

2. The first respondent is restrained and interdicted from conducting himself in any manner purporting to be a member of the applicant or the Chairperson of Swakop Uranium Branch Executive Committee of the applicant and/or carry out the functions of the Chairperson of Swakop Uranium Branch Executive Committee of the applicant.

3. The first respondent is restrained and interdicted from acting in representative capacity of any kind on behalf of the applicant.

4. The first respondent is interdicted with immediate effect from publishing any statement of whatsoever nature on public forum or in correspondence directed to employers, including the second respondent, wherein the first respondent utters or insinuates that the applicant's leadership is in a crisis and/or that the applicant's National Executive Committee is linked to the misappropriation of the applicant's funds and making any other defamatory comments against the applicant.

5. The first respondent must unconditionally retract the said defamatory statement relating to allegations that the applicant's leadership is in a crisis and that the applicant's National Executive Committee is linked to the misappropriation of the applicant's funds and must tender a public apology in relation to said defamatory statements within 14 days from the date of this order.

6. The first respondent is ordered to pay the costs of this application of one counsel to the applicant.

7. The matter is finalised and removed from the roll.

Judge’s signature:

Note to the parties:

Not applicable.

Counsel:

APPLICANT

1^ST RESPONDENT

LNK Ihalwa (with her M Kazondana)

Instructed by

Sisa Namandje & Co. Inc., Windhoek

MK Ngoshi (with him E Mwakondange)

Of

Mwakondange & Associates Incorporated, Windhoek