NOT REPORTABLE
REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
JUDGMENT
Case No: LC 18/2010
In the matter between:
AFRICA PERSONNEL SERVICES (PTY) LTD APPLICANT
and
THOSE PERSONS WHOSE NAMES
APPEAR ON ANNEXURE “A” HERETO 1ST TO 624TH RESPONDENTS
Neutral citation: Africa Personnel Services (Pty) Ltd v Those Persons whose Names appear on Annexure “A” hereto (LC 18-2010) [2014] NALCMD 14 (7 April 2014)
Coram: VAN NIEKERK J
Heard: 11 May 2010
Delivered: 7 April 2014
Flynote: Urgent application brought on oral evidence – Rule nisi issued interdicting respondents from certain conduct – Return date anticipated – Point in limine raised that application based on hearsay – Witness not indicating that his evidence based on hearsay – Evidence not containing statements of information or belief – Witness not disclosing sources for information – Confirmatory affidavits made in reply by first hand witnesses – Applicant cannot make case in reply - Point in limine upheld – Hearsay evidence struck – Remaining evidence not sufficient to sustain confirmation of rule nisi – Rule discharged.
.
___________________________________________________________________
ORDER
___________________________________________________________________
The fifth point in limine raised by the 4th, 41st, 71st, 119th, 145th, 277th, 377th, 391st, 439th and 570th respondents is upheld.
The rule nisi is discharged and the application is dismissed.
There shall be no order as to costs.
___________________________________________________________________
ANNEXURE “A”
M NAMOLO | 1ST RESPONDENT |
ABROSIUS HAIMBODI | 2nd RESPONDENT |
DAVID KATALE | 3rd RESPONDENT |
SIMEON SHIPUNDA | 4th RESPONDENT |
ESTER KAMHULU | 5th RESPONDENT |
LEENA SHILONGO | 6th RESPONDENT |
FELISIAN MUTERO | 7th RESPONDENT |
SOINI KALWENYA | 8th RESPONDENT |
ANNA NENDONGO | 9th RESPONDENT |
RUDOLF AUTANGA | 10th RESPONDENT |
JUNIAS PETRUS | 11th RESPONDENT |
LUKAS T HITENANYE | 12th RESPONDENT |
ERASTUS UUTONI | 13th RESPONDENT |
ISMAEL SHILONGO | 14th RESPONDENT |
FRANS GABRIEL | 15th RESPONDENT |
SEM ANDJENDJA | 16th RESPONDENT |
DAVID SHIFUGULA | 17th RESPONDENT |
ERASMUS MUYAMBA | 18th RESPONDENT |
JOHANNES SIMON | 19th RESPONDENT |
KLEMENS SHIKOKOLA | 20th RESPONDENT |
WILHELM SHIWEDA | 21st RESPONDENT |
ELISE NGHIYALWA | 22nd RESPONDENT |
ANNA INDONGO | 23rd RESPONDENT |
ESTER ASINO | 24th RESPONDENT |
RACHEL P FRANS | 25th RESPONDENT |
JOHANNES SHAIMANYA | 26th RESPONDENT |
INGO EELU | 27th RESPONDENT |
ALBERTIN HAUFIKU | 28th RESPONDENT |
FESTUS NANDJENDJA | 29th RESPONDENT |
JOHANNES HAIKELA | 30th RESPONDENT |
LOIDE KAPENDA | 31st RESPONDENT |
ALVIN IYAMBO | 32nd RESPONDENT |
SAFARIUS NGHINYENENE | 33rd RESPONDENT |
BEATA SHIPINGE | 34th RESPONDENT |
TEOFELUS STEFANUS | 35th RESPONDENT |
T MWEILIHANGA | 36th RESPONDENT |
EINO UUGWANGA | 37th RESPONDENT |
MATHEUS ANDJELO | 38th RESPONDENT |
JOSEF DAVID | 39th RESPONDENT |
WIRBARD HAMUTENYA | 40th RESPONDENT |
JOHANNES NIINGUNGO | 41st RESPONDENT |
JUNIAS HAIMBODI | 42nd RESPONDENT |
SIMSON MICHAEL | 43rd RESPONDENT |
ELIFAS N AWINO | 44th RESPONDENT |
ESTHER LUNGAMENI | 45th RESPONDENT |
UUSIKU NALIMANGULUKE | 46th RESPONDENT |
FABIAN NEPILILO | 47th RESPONDENT |
MICHAEL NIKANOR | 48th RESPONDENT |
FRIEDA NGHITONGO | 49th RESPONDENT |
MARIA IIPUMBU | 50th RESPONDENT |
HILMA NANGOMBE | 51st RESPONDENT |
SARA ND SHAFODINO | 52nd RESPONDENT |
NDEUHALA NGHITEWAPO | 53rd RESPONDENT |
LUSIA ELIA | 54th RESPONDENT |
APOLONIA HIDINEA | 55th RESPONDENT |
FRIEDA AMOOMO | 56th RESPONDENT |
LOIDE N HALUDILU | 57th RESPONDENT |
REMIGIE PHILLIPUS | 58th RESPONDENT |
FRINDA AMUNYELA | 59th RESPONDENT |
PETRUS SHITENI | 60th RESPONDENT |
LEONARD KAVALE | 61st RESPONDENT |
SAIMI N SHILYOMUNHU | 62nd RESPONDENT |
SELMA SHIKONGO | 63rd RESPONDENT |
OLIVIA R NGHIIYELEKW | 64th RESPONDENT |
THEOPHEL SHITUMBU | 65th RESPONDENT |
ROSALIA SHIGWEDHA | 66th RESPONDENT |
HENRIETT NGUNDA | 67th RESPONDENT |
ABISAI IMBILI | 68th RESPONDENT |
LAHJA SHEYADIVA | 69th RESPONDENT |
SEIVELIA SHIPALE | 70th RESPONDENT |
FILLEMON SHIKONGO | 71st RESPONDENT |
HELENA KIIMBA | 72nd RESPONDENT |
KAROLINA SAMUEL | 73rd RESPONDENT |
HENRIETE FILLIPUS | 74th RESPONDENT |
FESTUS E KALUWA | 75th RESPONDENT |
MONIKA NAKATSE | 76th RESPONDENT |
KATRINA SHIKONGO | 77th RESPONDENT |
SELMA HAMADILA | 78th RESPONDENT |
MR ALBANUS SHOOPALA | 79th RESPONDENT |
LINUS HANUKWAYA | 80th RESPONDENT |
HILENI NDAENDAPO | 81st RESPONDENT |
LOIDE IIYAMBO | 82nd RESPONDENT |
KOSTANTI ASHIPALA | 83rd RESPONDENT |
HELENA ASHEENDO | 84th RESPONDENT |
TANGENI SHIFIFOUNYE | 85th RESPONDENT |
ELIKAN KASHINDA | 86th RESPONDENT |
TRIANUS HANGULA | 87th RESPONDENT |
SELMA HAIHAMBO | 88th RESPONDENT |
ESTHER IYAMBO | 89th RESPONDENT |
YOOLOKEN WEYULU | 90th RESPONDENT |
MARTHA BONIFATIUS | 91st RESPONDENT |
FOIBE VATILIFA | 92nd RESPONDENT |
MAGIINA NEGONGO | 93rd RESPONDENT |
THERESIA RASALUS | 94th RESPONDENT |
GOTLIEB JOHANNES | 95th RESPONDENT |
GIVEN SHAUNGU | 96th RESPONDENT |
LYDIA ELIKANA | 97th RESPONDENT |
NESTOR SHADUKA | 98th RESPONDENT |
LUCOS SHEELONGO | 99th RESPONDENT |
DANIEL KALOLA | 100th RESPONDENT |
JOSEFINA ERASTUS | 101st RESPONDENT |
ESTER FESTUS | 102nd RESPONDENT |
JOHANNA KALUME | 103rd RESPONDENT |
JULIA WASHIME | 104th RESPONDENT |
NDILIPOM PIUS | 105th RESPONDENT |
UUTONI KUUME | 106th RESPONDENT |
EINO HAUFIKU | 107th RESPONDENT |
LAVINIA FESTUS | 108th RESPONDENT |
ITTILIE SHIYAKELA | 109th RESPONDENT |
SECILIA NEFUNGO | 110th RESPONDENT |
SELMA IYAMBO | 111th RESPONDENT |
ALBERTIN DUMENI | 112th RESPONDENT |
NDILIMEK KADILA | 113th RESPONDENT |
LAVINIA LAZARUS | 114th RESPONDENT |
JACOBINA KASITA | 115th RESPONDENT |
LOVISA MIKKA | 116th RESPONDENT |
H NIKANOR | 117th RESPONDENT |
JOHANNES MICHAEL | 118th RESPONDENT |
LAHYA N SHEEFENI | 119th RESPONDENT |
LIKIUS SHIKONGO | 120th RESPONDENT |
ANANIAS MWAPOPILE | 121st RESPONDENT |
SILVANUS HAMUKWAYA | 122nd RESPONDENT |
SYLVIA ANTONIUS | 123rd RESPONDENT |
JOAS TANENI | 124th RESPONDENT |
KARLUS HAUFIKU | 125th RESPONDENT |
LOIDE S ABNER | 126th RESPONDENT |
JOSEPHIN IILEKA | 127th RESPONDENT |
STEFANUS THOMAS | 128th RESPONDENT |
A VAENDWAHAWA | 129th RESPONDENT |
ERASTUS PHILIPUS | 130th RESPONDENT |
HAUFIKU KALEB | 131st RESPONDENT |
HATUTALE NAKALE | 132nd RESPONDENT |
EMMANUEL ASHIPALA | 133rd RESPONDENT |
ERICKSON HALEINGE | 134th RESPONDENT |
A SHILONGO | 135th RESPONDENT |
AINA JOSEF | 136th RESPONDENT |
KLEOPHAS KASHIVULIKA | 137th RESPONDENT |
IMMANUEL MWAIKANGE | 138th RESPONDENT |
BEATHA KAVALE | 139th RESPONDENT |
H NAKALE | 140th RESPONDENT |
ILKA SHILONGO | 141st RESPONDENT |
MOSES K SHILOMBOLEN | 142nd RESPONDENT |
PADELIA VAENDWANANA | 143rd RESPONDENT |
JOHANNES AMUKWAYA | 144th RESPONDENT |
HAFENI JONATAN | 145th RESPONDENT |
ERASTUS NOONGA | 146th RESPONDENT |
AILI A MUTUMBULWA | 147th RESPONDENT |
IRJA KANKONO | 148th RESPONDENT |
MUYAMBA NDAMONONGHE | 149th RESPONDENT |
REBEKKA NDILIMONDJO | 150th RESPONDENT |
LUTRICH AUKUS | 151st RESPONDENT |
ESTHER IILEKA | 152nd RESPONDENT |
JOHANNA SHANIKA | 153rd RESPONDENT |
VICTORIA MVULA | 154th RESPONDENT |
NDAINDIL SHANGULA | 155th RESPONDENT |
NAEMI KANYELE | 156th RESPONDENT |
KAARINA TOLATA | 157th RESPONDENT |
BEATRIZ SHAUNGU | 158th RESPONDENT |
EMMA N IIYAMBO N NANDE | 159th RESPONDENT |
MAGRITH NEKUNDI | 160th RESPONDENT |
KLAUDIA NDJAULA | 161st RESPONDENT |
JOHANNES HAMUTENYA | 162nd RESPONDENT |
LOVISA NTINDA | 163rd RESPONDENT |
SECILIA SHIPENA | 164th RESPONDENT |
ESTHER SHIKONGO | 165th RESPONDENT |
JOHANNES FILLIPUS | 166th RESPONDENT |
HENDRINA MATHEUS | 167th RESPONDENT |
VEINSER NGHIPULILE | 168th RESPONDENT |
ANDREAS SHIMWE OSHI | 169th RESPONDENT |
IMMANUEL KASHINGHOLA | 170th RESPONDENT |
JOHANNES HANGULA | 171st RESPONDENT |
MIKAEL KWAMBI | 172nd RESPONDENT |
FOSNES HEIMO | 173rd RESPONDENT |
ELISE MUKONGO | 174th RESPONDENT |
LAUHA N HANGULA | 175th RESPONDENT |
TRESIA SHADUKA | 176th RESPONDENT |
LUSIA NEKONGO | 177th RESPONDENT |
FOIBE ERASTUS | 178th RESPONDENT |
ELI N SHIMWANDI | 179th RESPONDENT |
ALBERTIN SHOWA | 180th RESPONDENT |
PAULINA IIKONDJA | 181st RESPONDENT |
MMETCHIL KAUTOTWA | 182nd RESPONDENT |
MANFRED HEVITA | 183rd RESPONDENT |
THEOPOLI NOA | 184th RESPONDENT |
ASNATH MUNDANDALA | 185th RESPONDENT |
ESTHER KAUHONUA | 186th RESPONDENT |
HELVI SHITALENI | 187th RESPONDENT |
JOSEPHIN HAUNINGA | 188th RESPONDENT |
GIDEON SHIMWINO | 189th RESPONDENT |
LIINA SHIKONGO | 190th RESPONDENT |
LUKRETIA JOHANNES | 191st RESPONDENT |
EVELINA UHEPO | 192nd RESPONDENT |
FELISIA SHIYUKIFENI | 193rd RESPONDENT |
CECILIA KAMHULU | 194th RESPONDENT |
MARTHA KAMBINDA | 195th RESPONDENT |
JOSEPHIN KUUTONDOKWA | 196th RESPONDENT |
HELENA SHIPULWA | 197th RESPONDENT |
EMILIA SHEETEKELA | 198th RESPONDENT |
IRIA NAMBINGA | 199th RESPONDENT |
M NGWEDA | 200th RESPONDENT |
PAULINA SILAS | 201st RESPONDENT |
RUBEN IPINGE | 202nd RESPONDENT |
DAVID NDUNGULA | 203rd RESPONDENT |
MARIA MBANGULA | 204th RESPONDENT |
AMBROSIUS MWAHAFA | 205th RESPONDENT |
VISTOLIN AMBILI | 206th RESPONDENT |
TOMAS VILHO | 207th RESPONDENT |
EURICO FERSINU | 208th RESPONDENT |
MARTHA IYAMBO | 209th RESPONDENT |
MARTHA JEREMIA | 210th RESPONDENT |
EVA K MUULONGO | 211th RESPONDENT |
LAIMI SHETUNYENGA | 212th RESPONDENT |
KAREL AMENYA | 213th RESPONDENT |
LETITIA SHIVOLO | 214th RESPONDENT |
HILDE MWEYAKO | 215th RESPONDENT |
EVA LISA SHOONYEKA | 216th RESPONDENT |
SECILIE NGHISHONGWA | 217th RESPONDENT |
SIMON H KAMATI | 218th RESPONDENT |
IITA MALAKIA | 219th RESPONDENT |
PINEAS NASHILUWA | 220th RESPONDENT |
PAULUS JULIUS | 221st RESPONDENT |
SIMEON HAMBUNDA | 222nd RESPONDENT |
ANANIAS SHINOMIDI | 223rd RESPONDENT |
FILLEMON KALOLA | 224th RESPONDENT |
TUYEIMO HANGO | 225th RESPONDENT |
MARIA KAMBUNDU | 226th RESPONDENT |
NELAO TOMAS | 227th RESPONDENT |
PAULINA MWAKOYELE | 228th RESPONDENT |
S THOMAS | 229th RESPONDENT |
FRIEDA NANDAGO | 230th RESPONDENT |
SIMEON SHIPANDENI | 231st RESPONDENT |
MONIKA HENDJALA | 232nd RESPONDENT |
ALBERTIN ALEX | 233rd RESPONDENT |
VERONIKA UUSIKU | 234th RESPONDENT |
VERONICA HAMUKWAYA | 235th RESPONDENT |
MARTHA NAMUPALA | 236th RESPONDENT |
B ISMAEL | 237th RESPONDENT |
THEOPOLI KAMATI | 238th RESPONDENT |
TEOPOLIN MENGELA | 239th RESPONDENT |
MARIA KASHIMBA | 240th RESPONDENT |
LUKAS SHINOLO | 241st RESPONDENT |
ALIMA N SHINIME | 242nd RESPONDENT |
SAIMA N PETRUS | 243rd RESPONDENT |
PETRUS UUSIKU | 244th RESPONDENT |
SEVERIA HAUFIKU | 245th RESPONDENT |
ALMA IPINGE | 246th RESPONDENT |
DAVID AKUUNDA | 247th RESPONDENT |
JOHANNES SHIVUTE | 248th RESPONDENT |
N TILAINGE | 249th RESPONDENT |
HILIA HAUANGA | 250th RESPONDENT |
JAKOBIN SHIIMI | 251st RESPONDENT |
ABED AMUPOLO | 252nd RESPONDENT |
THOMAS STEFANUS | 253rd RESPONDENT |
TANGENI NDUBU | 254th RESPONDENT |
GISBERT SHIKONGO | 255th RESPONDENT |
HOPOTELW ANDREAS | 256th RESPONDENT |
LETISIA SALOMO | 257th RESPONDENT |
KAUFIWET NDAPANDONGW | 258th RESPONDENT |
H NENDONGO | 259th RESPONDENT |
RAUNA SHIMANENI | 260th RESPONDENT |
AINA SHAPAKA | 261st RESPONDENT |
FRANSINA SHADUKA | 262nd RESPONDENT |
JONAS HIPUNDUKA | 263rd RESPONDENT |
MARIA ISMAEL | 264th RESPONDENT |
JOHANNES KAMATI | 265th RESPONDENT |
ANDREAS HAMUKOTO | 266th RESPONDENT |
PAULINA PHILLEMON | 267th RESPONDENT |
INDILENI MWAFINGANGE | 268th RESPONDENT |
MARTHA SHITONGENI | 269th RESPONDENT |
LIKIUS N HANGULA | 270th RESPONDENT |
SAARA HAIMBODI | 271st RESPONDENT |
SOPHIA IMMANUEL | 272nd RESPONDENT |
WILHELMI KAIMBI | 273rd RESPONDENT |
MARTHINUS HAIMBONDI | 274th RESPONDENT |
ESTER HAUWANGA | 275th RESPONDENT |
ANGELIKA MUUMBA | 276th RESPONDENT |
MARTHA KALUWA | 277th RESPONDENT |
MARIA T KANGATE | 278th RESPONDENT |
ANDREAS HAUFIKU | 279th RESPONDENT |
NAMBAHU ABRAHAM | 280th RESPONDENT |
ALETTA KANDJABANGA | 281st RESPONDENT |
SEVEKUA DANIEL | 282nd RESPONDENT |
JOHANNES TANGENI | 283rd RESPONDENT |
SHIHEPO FILLEMON | 284th RESPONDENT |
NEKOTO GEBHARD | 285th RESPONDENT |
LAZARUS ELIAS | 286th RESPONDENT |
ISASKAR SHIKONGO | 287th RESPONDENT |
VEIKKO HEITA | 288th RESPONDENT |
HANDJENGO | 289th RESPONDENT |
DAVID SHILONGO | 290th RESPONDENT |
ELIZABET SACKEUS | 291st RESPONDENT |
SELMA SHIGWEDHA | 292nd RESPONDENT |
REBEKKA NGHIGEWA | 293rd RESPONDENT |
HELENA HAULOFO | 294th RESPONDENT |
ESTER SHINYOLO | 295th RESPONDENT |
SELMA GABRIEL | 296th RESPONDENT |
DELILA IYAMBO | 297th RESPONDENT |
KORNELIA NAHOLO | 298th RESPONDENT |
SELMA KASHIPULWA | 299th RESPONDENT |
ALBERTIN HAMADILA | 300th RESPONDENT |
MARIA NDAKUKAMO | 301st RESPONDENT |
HILENI SHIPAHU | 302nd RESPONDENT |
S.N ANGULA | 303rd RESPONDENT |
HELENA ANDREAS | 304th RESPONDENT |
HILYA T MAHARERO | 305th RESPONDENT |
AUNE S AMUKONGO | 306th RESPONDENT |
KRISTOF MWALUNGILAN | 307th RESPONDENT |
D ARKUS | 308th RESPONDENT |
T.P NDINONDJENE | 309th RESPONDENT |
MARTHA NGHINANYE | 310th RESPONDENT |
BENEDICT AMUPOLO | 311th RESPONDENT |
LOIDE NAKALE | 312th RESPONDENT |
ELIZABET NALUWE | 313th RESPONDENT |
PALAGIA AMUNGENGA | 314th RESPONDENT |
LILIA NINKOTI | 315th RESPONDENT |
NATALIA NAKALE | 316th RESPONDENT |
OLIVIA NEGANDJO | 317th RESPONDENT |
MARTHA ABINIEL | 318th RESPONDENT |
LORNA HAMUKWAYA | 319th RESPONDENT |
EMELITA UUKONGO | 320th RESPONDENT |
JUSTINA NDAKALAKO | 321st RESPONDENT |
WILLYSON NDINOSHINGE | 322nd RESPONDENT |
JOHANNES UUTONI | 323rd RESPONDENT |
JUSTINA FRANS | 324th RESPONDENT |
JOSEPHIN NAKULWA | 325th RESPONDENT |
L MUNYALA | 326th RESPONDENT |
GERDA SHIKONGO | 327th RESPONDENT |
OLIVIA HAUFIKU | 328th RESPONDENT |
HELENA ALFEUS | 329th RESPONDENT |
MIRJAM KAMBONGELA | 330th RESPONDENT |
ELINA IMBILI | 331st RESPONDENT |
ELISE A ABNER | 332nd RESPONDENT |
LAINA NDEIWEDA | 333rd RESPONDENT |
GUDRUN AMAGOLA | 334th RESPONDENT |
FALAO NDAFEDIVA | 335th RESPONDENT |
FESTUS M JOHANNES | 336th RESPONDENT |
VICTORIA ASHIMBANGA | 337th RESPONDENT |
NDILIMEK ISHINDA | 338th RESPONDENT |
MATILDE TAARU | 339th RESPONDENT |
ELIZABET ENDJALA | 340th RESPONDENT |
ANNA OSKAR | 341st RESPONDENT |
PENEXUP SHAHAMANGE | 342nd RESPONDENT |
PATRICIA JOHANNES | 343rd RESPONDENT |
T HANGULA | 344th RESPONDENT |
SARAFINA NEKONGO | 345th RESPONDENT |
RAKKEL KALOMHO | 346th RESPONDENT |
LAIMI XWEKA | 347th RESPONDENT |
ISASKAR MUNDUDU | 348th RESPONDENT |
HILENI SHEKUZA | 349th RESPONDENT |
HELVI KATALI | 350th RESPONDENT |
MATIAS ABRAHAM | 351st RESPONDENT |
ABED AMWEENYE | 352nd RESPONDENT |
PETER SHAIDILA | 353rd RESPONDENT |
MIRJAMA HAILEKA | 354th RESPONDENT |
MARIA NEKWAYA | 355th RESPONDENT |
ABSALOM IMMANUEL | 356th RESPONDENT |
FRANS KAMBANGULA | 357th RESPONDENT |
AMON MWADULU | 358th RESPONDENT |
FILLEMON UUGWANGA | 359th RESPONDENT |
J KAMANPA | 360th RESPONDENT |
KORNELIA IITA | 361st RESPONDENT |
PAULINA KATAMBA | 362nd RESPONDENT |
ANNA TEODOR | 363rd RESPONDENT |
ASTERIA TOBIAS | 364th RESPONDENT |
WALTER KANGUMU | 365th RESPONDENT |
MOSES E SIMON | 366th RESPONDENT |
PRISKA M SEBULON | 367th RESPONDENT |
RUBEN HAMUKWAYA | 368th RESPONDENT |
GUSTAV N THOMAS | 369th RESPONDENT |
KORNELIA HAFENI | 370th RESPONDENT |
ILONA IIYAMBO | 371st RESPONDENT |
JULIA SHININGE | 372nd RESPONDENT |
BENEDICT AMWEELO | 373rd RESPONDENT |
FRANSINA SHIKOMBA | 374th RESPONDENT |
FANNIE IIYAMBO | 375th RESPONDENT |
JOHANNA AMUPADHI | 376th RESPONDENT |
TAINA ANGOLO | 377th RESPONDENT |
ONESMUS KAPENDA | 378th RESPONDENT |
MICHAEL MUVANGUA | 379th RESPONDENT |
MONIKA IIPINGE | 380th RESPONDENT |
MARTHA HAILEKA | 381st RESPONDENT |
CELINE KALIPI | 382nd RESPONDENT |
FENNI KANHALELO | 383rd RESPONDENT |
JERRY NKANDI | 384th RESPONDENT |
SAKEUS NANGOLO | 385th RESPONDENT |
HILIA KALOMPO | 386th RESPONDENT |
A AMUTENYA | 387th RESPONDENT |
LIINA MULEKA | 388th RESPONDENT |
M SILAS | 389th RESPONDENT |
HANGO | 390th RESPONDENT |
LINEA NDISHISHI | 391st RESPONDENT |
HILMA NASHIWAYA | 392nd RESPONDENT |
THOMAS ALWEENDO | 393rd RESPONDENT |
SYLVIA HENGHONO | 394th RESPONDENT |
ANASTASI MUKWAUKONGO | 395th RESPONDENT |
E NEHALE | 396th RESPONDENT |
ILENI T MUMWOYE | 397th RESPONDENT |
SELMA N UUTONI | 398th RESPONDENT |
FESTUS UUGWANGA | 399th RESPONDENT |
JESSICA KARIPO | 400th RESPONDENT |
REBEKKA KAANJOSA | 401st RESPONDENT |
GEDEON KAMATI | 402nd RESPONDENT |
MARIA MWANDINGI | 403rd RESPONDENT |
VERNA SIKONDOMBORO | 404th RESPONDENT |
FIMANEKE NDUBU | 405th RESPONDENT |
N SHATYOHAMBA | 406th RESPONDENT |
ELINGAUS HAMAAMBO | 407th RESPONDENT |
FRANCINA HAIMBODI | 408th RESPONDENT |
SIMON JOHANNES | 409th RESPONDENT |
REBEKKA KAFITA | 410th RESPONDENT |
ABEDNEGO HALWENDO | 411th RESPONDENT |
MARIA NAMUPALA | 412th RESPONDENT |
AINA HANGHOME | 413th RESPONDENT |
WILKA NAMBALA | 414th RESPONDENT |
MARIA INGASHIPOLA | 415th RESPONDENT |
TUHAFENI HAIDULA | 416th RESPONDENT |
SIMON NUUYOMA | 417th RESPONDENT |
SECILIA KAVALE | 418th RESPONDENT |
SELMA NANDEHASHO | 419th RESPONDENT |
ROSWITTA EELU | 420th RESPONDENT |
KATAURIR TJIMBONDE | 421st RESPONDENT |
LINDA NEDONGO | 422nd RESPONDENT |
MARTIN MUSHONA | 423rd RESPONDENT |
LAVINIA HAINDONGO | 424th RESPONDENT |
MARJAMI HAIKALI | 425th RESPONDENT |
JULIA LUKAS | 426th RESPONDENT |
MARTHA MUNDJIINDI | 427th RESPONDENT |
JASON SHIKONGO | 428th RESPONDENT |
NAEMI TIMOTEUS | 429th RESPONDENT |
ILENI J NESHUKU | 430th RESPONDENT |
ROSALINA SHAANIKA | 431st RESPONDENT |
LUSIA ELIFAS | 432nd RESPONDENT |
LINEEKEL ELIFAS | 433rd RESPONDENT |
HELENA N KAYAMBU | 434th RESPONDENT |
LOIDE ASHIMBAMBA | 435th RESPONDENT |
SELMA KALIMBO | 436th RESPONDENT |
LOIDE T MUMBALA | 437th RESPONDENT |
NAEMI KALILI | 438th RESPONDENT |
ANNA JOHANNES | 439th RESPONDENT |
BEATRIZ NDEITWA | 440th RESPONDENT |
NAKAMWI MUTWAMPO | 441st RESPONDENT |
ESTER KAMULE | 442nd RESPONDENT |
WILMA N SHANYENENGE | 443rd RESPONDENT |
THERESIA NAMBONDI | 444th RESPONDENT |
BEATRIX HINYENGWA | 445th RESPONDENT |
LOIDE N AMPADHI | 446th RESPONDENT |
ALINA AMUTENYA | 447th RESPONDENT |
DAVID NYAMBALI | 448th RESPONDENT |
AGNES MWANYEKANGE | 449th RESPONDENT |
HELENA NAMBAHU | 450th RESPONDENT |
ERIKA IITHETE | 451st RESPONDENT |
NALWEEND AMAKALI | 452nd RESPONDENT |
TEOPOLIN SHITYENI | 453rd RESPONDENT |
ISABEL MURORUA | 454th RESPONDENT |
REBEKKA GABRIEL | 455th RESPONDENT |
FELECIAN DJOLONIMU | 456th RESPONDENT |
FRANSINA HASHIPALA | 457th RESPONDENT |
KATRINA NAMBAHU | 458th RESPONDENT |
N HAIPINGE | 459th RESPONDENT |
JOSEFINA ABRAHAM | 460th RESPONDENT |
OTTILIE KAPIYE | 461st RESPONDENT |
HILINGAN SEBASTIAANU | 462nd RESPONDENT |
O NDJENE | 463rd RESPONDENT |
MATEUS UUSIKU | 464th RESPONDENT |
FRANS NASHIDENGO | 465th RESPONDENT |
LIHONGEN HAMUKOTO | 466th RESPONDENT |
FRANSINA HASHALI | 467th RESPONDENT |
MARTHA ANGOMBE | 468th RESPONDENT |
SECILIA NAMBONGA | 469th RESPONDENT |
MARIA NAMWANDI | 470th RESPONDENT |
PAULUS HAIHONYA | 471st RESPONDENT |
LAIMI N NGHIPETEKWA | 472nd RESPONDENT |
SOFIA T MATHIAS | 473rd RESPONDENT |
BEATHA SHAPWA | 474th RESPONDENT |
LINDA KANIME | 475th RESPONDENT |
E HAIPINGE | 476th RESPONDENT |
NICODEMU SHIWAYU | 477th RESPONDENT |
ISASKAR DULA | 478th RESPONDENT |
SELMA NAKAPIPI | 479th RESPONDENT |
SAKARIA NAKALE | 480th RESPONDENT |
HILDE NUUYOMA | 481st RESPONDENT |
ELIZABET KANAWANGA | 482nd RESPONDENT |
MARTHA KAUYIWA | 483rd RESPONDENT |
HILMA SHIVOLO | 484th RESPONDENT |
MONIKA N SHITENYA | 485th RESPONDENT |
PELAGIA VICTOR | 486th RESPONDENT |
TUSNELDE IMBILI | 487th RESPONDENT |
GLORIA KAIHONGUA | 488th RESPONDENT |
ELIZABET HANGO | 489th RESPONDENT |
RAKEL PINEHAS | 490th RESPONDENT |
RAINA N NEGONYA | 491st RESPONDENT |
EILIA KAUSHITWA | 492nd RESPONDENT |
MAGDELEN NANGOLO | 493rd RESPONDENT |
AINA SHEYA | 494th RESPONDENT |
H JOHANNES | 495th RESPONDENT |
LOVISA T HEITA | 496th RESPONDENT |
FRISON HAMALWA | 497th RESPONDENT |
SELMA NAMBANDI | 498th RESPONDENT |
LOVISA NAMBOGA | 499th RESPONDENT |
MIYAZE I MOOWA | 500th RESPONDENT |
MARTHA WINKILD | 501st RESPONDENT |
ROSALIA SHEEHAMA | 502nd RESPONDENT |
ALICE MAHANZU | 503rd RESPONDENT |
JOHANNA KAANDUKA | 504th RESPONDENT |
DONIET SHIFION | 505th RESPONDENT |
THOMAS H JOHANNES | 506th RESPONDENT |
FESTUS NDAKOLUTE | 507th RESPONDENT |
FERDINAN NEMBWAYA | 508th RESPONDENT |
MARTHA HANGADA | 509th RESPONDENT |
HENRIETE IITULA | 510th RESPONDENT |
HELVI KASHAKA | 511th RESPONDENT |
BENYAMIN PAAVO | 512th RESPONDENT |
FANUEL SHIKONGO | 513th RESPONDENT |
KOSMOS HIDINWA | 514th RESPONDENT |
EMILIA EDUARD | 515th RESPONDENT |
SELMA ANDREAS | 516th RESPONDENT |
WILHELMI ALWEENDO | 517th RESPONDENT |
JK BONIFATIUS | 518th RESPONDENT |
GABRIEL HANGULA | 519th RESPONDENT |
ELIFAS NDASHAALA | 520th RESPONDENT |
SARAFINA NAMBINGA | 521st RESPONDENT |
LOIDE SHIKOYENI | 522nd RESPONDENT |
MAGDALEN NDILENGA | 523rd RESPONDENT |
SELMA KASHO | 524th RESPONDENT |
HERTHA UUPINDI | 525th RESPONDENT |
EMILIA ALBERTUS | 526th RESPONDENT |
ELIZABET FRANS | 527th RESPONDENT |
MARIA IIYAMBO | 528th RESPONDENT |
RICHARD SINYEPE | 529th RESPONDENT |
LEENA AMAPAYA | 530th RESPONDENT |
FRANSINA MUTIRAKUTI | 531st RESPONDENT |
E MULOKOSHI | 532nd RESPONDENT |
NELAGO S AKWENYE | 533rd RESPONDENT |
TS NAMBOGA | 534th RESPONDENT |
JOSIA L HAIPOPYA | 535th RESPONDENT |
MARIA HAIKONDJA | 536th RESPONDENT |
CHARLOT MWETULUNDIL | 537th RESPONDENT |
SARAFINA SHINDONGO | 538th RESPONDENT |
N DUMENI | 539th RESPONDENT |
POPERA NHULEIPO | 540th RESPONDENT |
SECILIA PAULUS | 541st RESPONDENT |
NDAPUNIK SHUUDIFONYA | 542nd RESPONDENT |
JOSEPHIN LUNGAMENI | 543rd RESPONDENT |
RAINHARD IIYAMBO | 544th RESPONDENT |
HELENA AMALOVU | 545th RESPONDENT |
VIVI ALUGONGO | 546th RESPONDENT |
TOMAS ANTONIA | 547th RESPONDENT |
ROVISA AMUTENYA | 548th RESPONDENT |
MARIA KAMBODE | 549th RESPONDENT |
NIIWANA NGHITANUA | 550th RESPONDENT |
SOINY I NGHIYOLWA | 551st RESPONDENT |
STELLA KASIRINGUA | 552nd RESPONDENT |
TERESIA GABRIEL | 553rd RESPONDENT |
REBEKA MWETUHANGA | 554th RESPONDENT |
NDINERAO GOTLIEB | 555th RESPONDENT |
ANDONIA HAKANDONGA | 556th RESPONDENT |
TRESIA SHUMBA | 557th RESPONDENT |
OSKAR PAULUS | 558th RESPONDENT |
BERTA MINGERI | 559th RESPONDENT |
BEATHA SHILONGO | 560th RESPONDENT |
NDINELAG LUKAS | 561st RESPONDENT |
M HAMAKALI | 562nd RESPONDENT |
MARTHA ASHIPALA | 563rd RESPONDENT |
WELLY AMADHILA | 564th RESPONDENT |
AILY SHIKODHI | 565th RESPONDENT |
JONAS NGENO | 566th RESPONDENT |
SIPHIA SIMON | 567th RESPONDENT |
JAKOBINA SHEPANI | 568th RESPONDENT |
THERESIA WILHELM | 569th RESPONDENT |
NORBERT KAPILO | 570th RESPONDENT |
SECIALI KAMATI | 571st RESPONDENT |
INDILENI HAIYAKA | 572nd RESPONDENT |
SELMA N SIMON | 573rd RESPONDENT |
JUSTINA SHEEHAMA | 574th RESPONDENT |
LABAN SHAUMAN | 575th RESPONDENT |
NICHOLAS KAMWI | 576th RESPONDENT |
FILIPUS ELIA | 577th RESPONDENT |
RUSIA TOMAS | 578th RESPONDENT |
ESTER LUKAS | 579th RESPONDENT |
NESTOR SHIPOPYENI | 580th RESPONDENT |
ANANIAS ONESMUS | 581st RESPONDENT |
JOSEPHIN HEELU | 582nd RESPONDENT |
ELIZABET THOMAS | 583rd RESPONDENT |
HELVI ABASI | 584th RESPONDENT |
NICKSON TITUS | 585th RESPONDENT |
FRANCINA SHIDJUU | 586th RESPONDENT |
SELMA KAWENO | 587th RESPONDENT |
VALIMO N NGHIPUPILE | 588th RESPONDENT |
PRISKILL UUTONI | 589th RESPONDENT |
SAARA ISAK | 590th RESPONDENT |
FENI SHILONGO | 591st RESPONDENT |
TEOPOLIN NGHIKONGELW | 592nd RESPONDENT |
KRISTOFI HIPANGWA | 593rd RESPONDENT |
SYLVIE MUTUMBULWA | 594th RESPONDENT |
SECILIA AMUNYELA | 595th RESPONDENT |
ELISABET PETRUS | 596th RESPONDENT |
MARTHA KESHEELI | 597th RESPONDENT |
ELIA NDINOSHISHO | 598th RESPONDENT |
ANDREAS NUUYOMA | 599th RESPONDENT |
LEEVI A ANGULA | 600th RESPONDENT |
EDWARD T NDAILE | 601st RESPONDENT |
SELMA HAIPINGE | 602nd RESPONDENT |
FEBRONIA SHIMBEDEUS | 603rd RESPONDENT |
MARGARET KANDJE | 604th RESPONDENT |
ILENI EKANDJO | 605th RESPONDENT |
LONIA NGHINYANGELWA | 606th RESPONDENT |
SESILIA ABRAHAM | 607th RESPONDENT |
SELMA HAUFIKU | 608th RESPONDENT |
MARTHA NAKAPELA | 609th RESPONDENT |
NDAFTEEL NEGUNGO | 610th RESPONDENT |
KAARNA MWANDINGI | 611th RESPONDENT |
ESTER NAMUPALA | 612th RESPONDENT |
MICHAEL JOHANNES | 613th RESPONDENT |
REBEKKA NDAKOLUTE | 614th RESPONDENT |
HELENA NAMUKOTO | 615th RESPONDENT |
KAARINA SHIGWEDHA | 616th RESPONDENT |
EDDY P MAKEMBA | 617th RESPONDENT |
MARIA VINDERE | 618th RESPONDENT |
LAHJA ENDJALA | 619th RESPONDENT |
FLAVINUS MUHONGO | 620th RESPONDENT |
NEHEMIA HAUWANGA | 621st RESPONDENT |
LUKAS | 622nd RESPONDENT |
VINIA T SHAFODINO | 623rd RESPONDENT |
EVELINA SIMEON | 624th RESPONDENT |
JUDGMENT
VAN NIEKERK J:
[1] At the time this matter was heard, the applicant employed the respondents and hired out their services out to Etale Fishing Co (Pty) Ltd (“Etale”) as labourers who mainly were used to fillet fish and pack fish.
[2] During January 2010 Etale entered into a wage agreement with the Namibian Seaman and Allied Workers Union (“NASAWU”), the exclusive bargaining agent for certain of Etale’s permanent employees. Several of the respondents then joined NASAWU and mandated the union to negotiate with both the applicant and Etale for the improvement of their service conditions. After exchange of correspondence on various issues NASAWU requested to have a meeting with the respondents at Etale’s premises. The applicant refused to give permission for such a meeting at Etale’s premises, but indicated that the meeting could be held at the applicant’s premises, but requested 48 hours written notification. This led to dissatisfaction amongst the respondents. Notice was given that they would engage in a peaceful demonstration at Etale’s premises on 10 March 2010 and that they intended to hand over a petition to the applicant and Etale during lunch time. The applicant informed the respondents and NASAWU that it regarded the demonstration as illegal and warned of strict disciplinary action. The applicant indicated that it would receive the petition at its premises.
[3] Nevertheless, some of the respondents remained at Etale’s premises and handed over the petition there, but it would appear that neither Etale nor the applicant wanted to accept it there. When these respondents wanted to resume work after lunch, Etale refused them access to the premises. The same occurred when those respondents normally working the night shift attempted to commence their shift. The applicant also gave notice that the respondents were suspended with immediate effect.
[4] On 11 March 2010 Etale informed the applicant in writing of the potential losses it might be suffering as a result of the applicant’s inability to fulfil its contractual obligations towards Etale to provide it with continuous and uninterrupted labour. The estimated amount was about N$4 million. Meanwhile, some of the respondents continued to gather outside the entrance to Etale’s premises in varying numbers.
[5] On 12 March 2010 the applicant sent 80 other workers by bus to Etale to take over the duties of the respondents. According to the applicant, the respondents were unruly and attacked the bus driver and damaged the bus. They also obstructed access and egress at the entrance and hindered Etale’s permanent employees from assuming their work duties.
[6] The applicant thereupon instructed their lawyers to initiate an urgent application against the respondents. Counsel was instructed, but could only consult at 15h30 on 12 March 2010. During the consultation it became evident that the matter was extremely urgent and that there would be no time to file affidavits. The application was set down at 16h30. Although not cited as a respondent, NASAWU was given very brief notice of the application. Nevertheless, the union was able to instruct its lawyers to hold a watching brief.
[7] The matter came before Ndauendapo J, who heard oral testimony presented on behalf of the applicant and thereupon made an order condoning the non-compliance with the forms and service provided for in the Labour Court rules and ruling that the matter be heard as one of urgency. He further issued a rule nisi returnable on 9 April 2010 in the following terms:
‘2.1 Ejecting the 1st to 624th respondents from the entrances to the premises of Etale Fishing Company at Ben Amathila Avenue, Walvis Bay.
2.2 Interdicting and restraining the 1st to 624th respondents from in any way interfering with or obstructing the normal operation of applicant’s business or any aspect of the applicant’s business or any person involved in the applicant’s operations.
2.3 Interdicting and restraining the 1st to 624th respondents from intimidating, threatening or in any way interfering with any employee of the applicant, or with any person involved in or connected with the conduct of applicant’s operation or with its customers or employees ...........
2.4 Interdicting and restraining the 1st to 624th respondents from inciting or encouraging any other person to commit any of the aforesaid acts.’
[8] The Court further ordered, inter alia, that the above subparagraphs of the rule nisi operate with immediate effect as an interim order pending the final outcome of the application.
[9] On 26 March 2010 the 4th, 41st, 71st, 119th, 145th, 277th, 377th, 391st, 439th and 570th respondents (“the ten respondents”) anticipated the return date on 26 March 2010. They also launched a counter application which was dismissed on 6 April 2010. The rule nisi, however, was extended on several occasions and the application itself was eventually heard on 12 May 2010.
[10] The ten respondents raised six points in limine and also opposed the application on the merits. They pray for the rule nisi to be discharged. On the view I take of the matter, it is only necessary to deal with the fifth point in limine. This point is, essentially, that the application is mostly based on inadmissible hearsay evidence and that, once this evidence is struck, there is no basis on which the rule nisi can be confirmed.
[11] The applicant presented evidence by one witness, namely Mr Robert Christiaan de Villiers, its financial director. He did not state in his evidence at which office he worked or where he was based. He gave evidence about discussions at meetings which took place between Mr Kapenda Johannes, a director of the applicant, Mr Johan van Vuuren, the branch manager of the applicant in Walvis Bay and Mr Paulus Hango and one Petrus of NASAWU. He also relayed the essential contents of telephonic conversations between one Kapembe, apparently of the applicant, and Mr Hango. He further handed in as exhibits several letters between the applicant and other parties, of which letters he was not the author. He testified about the further events which took place at the premises of Etale and described the conduct of the respondents in relation to the bus driver and the bus.
[12] In the ten respondents’ main answering affidavit the following allegations are made in paragraph 16.1 thereof:
‘I turn now to deal with the allegations made by Mr. Robert de Villiers when he gave oral evidence on 12 March 2010 before this Honourable Court. At the onset I say that Mr. De Villiers is employed in Applicant’s Head Office in Windhoek and not in Walvis Bay. He thus wasn’t an eyewitness to the events that unfolded at Etale since 10 March 2010.’
[13] The applicant did not reply to the allegations set out in paragraph 16.1. In regard to other allegations made in paragraph 9 of the main answering affidavit in support of this point in limine, Mr de Villiers takes note of the allegations of hearsay without denial. He refers to confirmatory affidavits by Messrs van Vuuren, Johannes and Kahimune, the bus driver, in which the witnesses give first hand accounts of events. It is clear from Mr van Vuuren’s affidavit that he is the applicant’s branch manager at Walvis Bay. In paragraph 3.4 of his affidavit he states:
‘I also contacted Mr. De Villiers on Friday [12 March 2010] and informed him of the unlawful conduct and what transpired at the premises of Etale including the assault carried out on Mr Kahimune whereupon Mr. De Villiers related this information to the Court at the time when he gave oral evidence.’
[14] Mr Dicks submitted that in urgent applications a litigant is entitled to rely on hearsay matter subject to certain rules.
[15] In this regard Mr Denk for the ten respondents agreed, but referred to the case of Galp v Tansley NO 1966 (4) SA 555 (C) in which the following was said (at 558H-559H):
‘For a considerable period, now, our Courts have recognised the need to admit and act upon sworn statements of 'information' and 'belief' in interlocutory matters (as distinct from matters in which the rights of the parties concerned are finally decided) where urgency, or possibly the existence of other special circumstances, appear to justify their doing so - see van Zyl's, Judicial Practice of South Africa (1921 edition), vol. 1, p. 441; Mears v African Platinum Mines, Ltd., and Others (1), 1922 W.L.D. 48 at p. 55; Grant-Dalton v Win and Others, 1923 W.L.D. 180 at p. 186; Pountas' Trustees v Lahanas, 1924 W.L.D. 67 at p. 70; Levin v Saidman, 1930 W.L.D. 256; Harris' Executor v Weinberg, 1938 CPD 134; Mia's Trustee v Mia, 1944 W.L.D. 102 at pp. 103 - 4; Brighton Furnishers v Viljoen, 1947 (1) SA 39 (GW); Geanotes v Geanotes, 1947 (2) SA 512 (C). In admitting such statements our Courts cannot, of course, be said to be recognising an exception to the hearsay rule: they are merely taking cognisance of the statements in question for limited purposes and subject to certain conditions - see Mia's Trustee v Mia, supra.
.......................................................................
But one important point emerging from the cases which I have enumerated in the preceding paragraph is this, viz., that our Courts have consistently refused to countenance the admission as evidence – for any purpose whatever - of any statement embodying hearsay material, save where such statement has properly been made the subject of an affidavit (or solemn affirmation) of information and belief, i.e., save where the deponent (or affirmer) has not only revealed the source of the information concerned but in addition has sworn (or solemnly affirmed) that he believes such information to be true and furnished the grounds for his belief. In this connection see particularly Harris' Executor v Weinberg, supra; Mia's Trustee v Mia, supra; and Grant-Dalton v Win and Others, supra.’
[16] This case was quoted with approval and followed by Mtambanengwe J in Mahamat v First National Bank of Namibia Ltd 1995 NR 199 (HC) at 204C-F after he said the following (at 203I-204C):
‘Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 81N4 state:
'As a general rule hearsay evidence is not permitted in affidavits, and it may accordingly be necessary to file affidavits of persons other than the applicant who can depose to the facts. In fact, this is very often done in interlocutory matters (as distinct from matters in which the rights of parties concerned are finally decided). Where urgency or other special circumstances appear to justify it doing so the Court has allowed the deponent to state that he is informed and verily believes certain facts on which he relies for relief.'
From the above quoted statement of the learned authors, and from many decisions on the subject, it seems that it is only in interlocutory matters that the rule against admission of hearsay is relaxed provided the deponent swears an affidavit of information and belief and stating the source of his information.
See: Geanotes v Geanotes 1947 (2) SA 512 (C) at 514; Grant-Dalton v Win and Others 1923 WLD 180 at 186; Mears v African Platinum Mines Ltd and Others 1922 WLD 48; Pounta's Trustee v Lahanas 1924 WLD 67; Harris' Executor v Weinberg 1938 CPD 134.’
[17] Having pointed out that the matter before him was one in which the rights of the parties are to be finally decided and that the application was not brought on an urgent basis, the learned Judge struck the hearsay portions from the affidavit under consideration.
[18] In Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 (4) SA 682 (C) the following was said (at 692B-C):
‘In urgent matters the Court is entitled to admit hearsay evidence in an affidavit provided the source of the information and the grounds for belief in its truth are stated. The type of case in which such evidence is accepted, if these prerequisites are complied with, is one in which it is necessary to restrain irremediable injury and to keep matters in statu quo. (See Mears v African Platinum Mines Ltd. and Others, 1922 W.L.D. 48 at p. 55.) It does not follow, however, that the Court is obliged to accept such hearsay evidence, even if the source and the grounds for belief are furnished. (See Chaimowitz v Chaimowitz (1), 1960 (4) SA 818 (C) at p. 819F - G.)’
[19] Counsel did not refer to rule 6(29) of the Labour Court rules which provides:
‘Subject to the discretion of the court to disregard such statements if it considers it proper to do so, an affidavit may contain statements of information or belief provided that the sources and grounds thereof are identified.
[20] To some extent this rule incorporates the law as developed by precedent on the subject, but does not limit its application to interlocutory matters. I shall not consider whether the rule permissibly changes the law on the subject. No argument was addressed on the issue and it is not necessary to do so for purposes of this case.
[21] Counsel for the applicant submitted that the Court which granted the rule nisi was aware of the hearsay evidence and exercised its discretion to accept it and that ‘this Court should not as it were sit on appeal on that decision’ (see Small Business Development Corporation Ltd v Amey 1989 (4) SA 890 (W) 897B). He further submitted that this Court should bear in mind that the application was brought on oral evidence in circumstances of extreme urgency as a result of the unlawful conduct of the respondents.
[22] However, the fact of the matter is, as Mr Denk pointed out, that the testimony by Mr de Villiers did not contain any statements of information or belief, nor did he provide the sources of his information. He testified as if he was present at the events at Etale’s premises in Walvis Bay without indicating that he was relying on information received from other persons. I hasten to mention that I do not think he did so deliberately. Apart, perhaps, from the mention of meetings between persons which did not include himself, there was no aspect of the evidence from which one could make the inference that Mr de Villiers was giving hearsay evidence. The issue of hearsay also did not feature in argument. In the circumstances I do not think that it can be said that the previous Court, with awareness of the hearsay evidence, exercised its discretion to admit such evidence and to issue the rule nisi.
[23] I therefore agree with the respondents that the hearsay evidence should be struck from the testimony of Mr de Villiers. This evidence is contained in the following passages: page 90, lines 20 - 30; page 91, lines 9 – 13; page 92, lines 1 -31; page 94, lines 17 – 32; page 95, lines 3 – 6. When the remainder of the evidence is considered, there is no basis on which the rule nisi can be confirmed.
[24] Counsel for the applicant pointed to the confirmatory affidavits filed in reply and submitted that a case was made out. However, as counsel for the respondents submitted, the applicant cannot be permitted to make its case for the first time in reply. (See Jay’s Properties Ltd v Turgin 1950 (2) SA 694 (W); Stipp and another v Shade Centre and others 2007 (2) NR 627 (SC) paras [29] – [30]).
[25] As the respondents have succeeded on this point in limine it is not necessary to deal with all the other points raised, or with the merits of the application.
Costs
[26] The ten respondents contend that the applicant should be ordered to pay their costs on an attorney-own client scale, as the application was frivolous and vexatious within the meaning of section 118 of the Labour Act, 2007 (Act 11 of 2007). This contention is based on an assessment of the application based on all the points raised by the ten respondents. The assessment relevant to the fifth point in limine entails the submission that the evidence tendered was designed to mislead the Court.
[27] As I have stated before, I do not have the impression from a reading of the record that Mr de Villiers deliberately misled the Court by testifying as if he was at the scene on 12 March 2010. One should remember that he probably never contemplated giving oral evidence until counsel advised at about 16h00 that the applicant should proceed on the basis of oral evidence at 16h30. While the witness should have been led fully on all the aspects required to make out a case at that stage, one should bear in mind that there was very little time to prepare and that it is unusual to base an urgent application on oral testimony. Bearing in mind all the circumstances I am not persuaded that the omission to cover all the necessary aspects during the oral testimony is necessarily a sign of any design to mislead the Court. In my view a cost order is not warranted in this case.
Order
[28] In the result the following order is made:
1. The fifth point in limine raised by the 4th, 41st, 71st, 119th, 145th, 277th, 377th, 391st, 439th and 570th respondents is upheld.
2. The rule nisi is discharged and the application is dismissed.
3. There shall be no order as to costs.
_____________________
K van Niekerk
Judge
APPEARANCE
For the applicant: Adv G Dicks
Instr by MB de Klerk and Associates
For the 41st, 71st, 119th, 145th, 277th,
391th, 439th and 570th respondents: Adv A Denk
Instr by Harmse Attorneys