Court name
Labour Court Main Division
Case name
National Housing Enterprises v Beukes and Others
Media neutral citation
[2013] NALCMD 7
Judge
Kauta AJ













NOT REPORTABLE








REPUBLIC OF NAMIBIA



LABOUR COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: LC 67/2012








In the matter between:








NATIONAL HOUSING
ENTERPRISES
......................................................APPLICANT



and



EDWIN BEUKES
..........................................................................FIRST
RESPONDENT



SIMON NUJOMA
....................................................................SECOND
RESPONDENT



GODFRIED AUENDERE
............................................................THIRD
RESPONDENT



EVELINE UANIVI
.....................................................................FOURTH
RESPONDENT



GUSTAV HANGANEE
MUPURUA .............................................FIFTH
RESPONDENT



CATHLEEN MULLER
..................................................................SIXTH
RESPONDENT



LORETTE PHILANDER
.........................................................SEVENTH
RESPONDENT








Neutral citation:
National Housing Enterprises v Beukes (LC 67/2012) [2013]
NALCMD 07 (27 February 2013)








Coram: KAUTA AJ



Heard: 29 June
2012



Delivered: 27
February 2013










ORDER





In the result, I make the
following order:




  1. Dispensing with the
    forms and service of the Rules of the Labour Court and hearing this
    matter as one of urgency.










  1. Dismissing the
    application, no order as to costs.











JUDGMENT










KAUTA AJ








[1] In this matter the
Applicant launched an urgent application seeking to set aside
proceedings pursued by the Respondent in the District Labour Court.
In the alternative, the Applicant seeks as security, payment of the
sum of N$350 000.00 jointly and severally from Edwin Beukes & 7
Others.








[2] The Applicant
contends that the Respondents’ complaint in the District Labour
Court is frivolous, vexatious, “obviously unsustainable”
and amounts to an abuse of the process of court, hence this
application.








[3] The history of this
matter is eloquently set out in the appeal judgment of Smuts J,
between the parties delivered on the 13th of May 2011.








[4] After delivery of the
appeal judgment, the Respondents on the 16th June 2011
enrolled the matter for hearing in the District Labour Court from the
7 – 18 November 2011. The Applicant reacted to this enrollment
with an application to compel the Respondents to furnish
particularized complaints and to discover. Orders to this effect were
granted on the 17th October 2011, by the District Labour
Court, in favour of the Applicant.








[5] Mr Barnard, who
appeared on behalf of the Applicant contends that in response to the
orders of the 17th October 2011 the Respondent served a
document, styled “Complainants Requested Further Particulars”
on the 15th November 2011. He further contends that no
further particulars were at any stage requested by the Applicant and
any response to a non-existent request is therefore a nullity.








[6] The hearing between
the parties it appears did not materialize as envisaged in the
District Labour Court. On the 12 December 2011, Koep & Partners,
the legal practitioners of record of the Applicant wrote to Tjitemisa
& Associates, the Respondent’s legal practitioner, and
demanded that individual particulars of complaint be filed in
compliance with the District Labour Court orders of the 17th
October 2011. This letter was met with silence.








[7] On the 8th
February 2012, Tjitemisa & Associates withdrew as legal
practitioners of record of the Respondents and GF Köpplinger
replaced them as such on the 14th February 2012.








[8] By mutual agreement
the legal practitioners of the parties enrolled the matter for
hearing on the 29 February 2012. The hearing was set for the 31st
July – 3 August 2012 and on the 7th August 2012, in
the District Labour Court.








[9] After the matter was
set down for hearing, Mr Vlieghe, the legal practitioner of the
Applicant wrote to Mr Köpplinger, on the 1st of March
2012 with a request that the matter should not be set down before
there is full and proper compliance with the District Labour Court
orders of 17th October 2011.








[10]
No response to the above was forthcoming and a reminder was sent on
the 13
thMarch
2012. The Applicant, dissatisfied with the lack of progress,
instructed counsel to advise on best steps it should take in May
2012, hence this application.








[11]
From the above facts it is common cause that the Applicant
participated fully in the proceedings in the District Labour Court.
As a result the Applicant is armed with court orders of the District
Labour Court of 17
thOctober
2012.








[12] The Applicant in the
founding affidavit at paragraphs 52 - 57 quotes verbatim from the
appeal judgment of this court and premises this application
exclusively on dicta and ratio contained therein.








[13] In a nutshell, Mr
Barnard raised three grounds in support of his contention that the
proceedings in the District Labour Court are frivolous and vexatious
and as a result amount to an abuse of the process of court. These
grounds were: lack of particularity of the complaint; uncertainty
about the identity of the complainants; and failure to make proper
discovery. All these grounds were extensively explored in the appeal
judgment of this court between the parties.








[14] Mr Barnard’s
further contention that the proceedings are obviously unsustainable
is premised on the fact that the complainants seek re-instatement
despite a long passage of time since their retrenchment well knowing
that their former positions have been filled.








[15]
The contentions advanced by Mr Barnard, are not novel. He advanced
them to Smuts J, at the appeal hearing when he asked him to dismiss
the complainants’ complaint. At paragraph 25 of the appeal
judgment Smuts J, said
“Mr Barnard however submitted
that the proceedings should be set aside and that the complaint
should further be dismissed given the fact that only reinstatement
was sought and that this remedy would not be competent after the
passage of time and where positions were no longer available and give
the failure to comply with Rule 4(c). He accordingly invited me to
dismiss the complaint in addition to setting aside the proceedings
which had occurred before Ms Shaanika or to do so by merely upholding
the appeal and then replacing the order of the court below with one
of the dismissal of complaint”








[16]
Smuts J, held that
“having found that the proceedings
before Ms Shaanika are to be set aside in their entirety, including
the judgments and orders which she made, it would not be open to me
to then dismiss the complaint on the basis of the matter which was
stated in those proceedings with reference to formulation of the
complaint and the relief sought in it. That would be a matter for the
district labour court to consider in the context of an appropriate
application or upon the evidence adduced in the complaint proceedings
which should occur de novo. It would then be a matter for NHE to
raise in that forum”.








[17]
In LF Boshoff Investments (Pty) v Cape Town
Municipality 1969 (2) SA 256 C at 275 D the court held that:



the
power of the court to set aside a proceeding on the grounds that it
is frivolous and/or vexatious and/or an abuse of the process of the
Court is one which ought to be sparingly exercised and only in very
exceptional cases…the proceeding must be obviously
unsustainable and this must appear as a matter of certainty and not
merely on a preponderance of probability”.








[18] The above
approach was stated thus in Golden International Navigation SA v ZEBA
Maritime Company Limited; ZEBA Maritime Company Limited v M V
Visvliet 2008 (3) SA 10 (c) at [9]:



It
is well settled at common law that ‘(e) very court has an
inherent right to prevent an abuse of its process in the form of
frivolous or vexatious litigation’. 1 An action may be held to
be vexatious if it is ‘obviously unsustainable’, 2 or
‘frivolously, improper, instituted without sufficient ground,
to serve solely as an annoyance to the defendant”.








[19] As laid down by the
judgment in the Golden International Navigation – matter
(supra) at [26], that proof of the “obviously unsustainable”
nature of Plaintiff’s claim by a preponderance of probabilities
will suffice as yardstick with which to determine whether an
applicant should be entitled to his/her relief:



[26]
I am mindful of the fact that the court’s power to strike out a
claim on the basis that it is vexatious or an abuse of its process is
an exceptional one which must be exercised with great caution, and
only in a clear case. However, I respectfully disagree with dicta
that go further by requiring that this conclusion “must appear
as a certainty and not merely on a preponderance of probability”.
This requirement appears to originate from a dictum in the minority
judgment of Holmes JA in African Farms and Townships case. The two
cases cited by Learned Judge of Appeal in support of this proposition
do not, however, provide such support. Furthermore, the proposition
flies in the face of our rules of evidence, by which a preponderance
of probability in favour of a litigant is sufficient to decide any
civil case in favour of such litigant. (Even the most serious
criminal charge is decided beyond reasonable doubt and not with
“certainty”). I accordingly respectfully decline
following the authorities that appear to lay down such a requirement.
[27] For the reasons furnished above, I am of the view that the
Plaintiff’s action is “obviously unsustainable”.
Coupled with the inordinate delay and the failure on the part of the
Plaintiff to prosecute its claim to finality, it is clear to me that
the continuation of plaintiff’s action will be vexatious and
hence an abuse of the process of this court, as contemplated by Rule
20(1) of the admiralty rules as well as the common law”.








[20] In Namibia Financial
Institutions Supervisory Authority v Christian and Another 2011 (2)
NR 537 (HC) 2011 (2) NR Smuts, J held that:



[80]…It
is for this reason that both the powers of the court under the Act
and the inherent power to strike out or stay vexatious proceedings
under common law arise in this application. [81] As I have pointed
out, Griesel J in the Cohen matter found that the court does have the
inherent discretion to strike out or stay existing proceedings on the
grounds of vexatiousness. I find that also to be the position in
Namibia. These powers were thus described in Bisset and Others v
Boland Bank Ltd and Others: ‘The Court has an inherent power to
strike claims which are vexatious. (Western Assurance Co v Caldwells’
Trustee 1918 AD 262 at 271; African Farms and Township Ltd v Cape
Town Municipality 1963 (2) SA 555 (A) at 565D.) Vexatious in this
context means frivolous, improper,
instituted
without sufficient ground
,
to serve solely as an annoyance to the defendant. (Fisheries
Development Corporation SA Ltd v Jorgensen and Another; Fisheries
Development Corporations of SA Ltd v AWJ Investments (Pty) Ltd and
Others 1979 (3) SA 1331 (W).) This power to strike out is one which
must be exercised with very great cautions, and only in a clear case.
The reason is that the courts of law are open to all, and it is only
in very exceptional circumstances that the doors will be closed upon
anyone who desires to prosecute an action. (Western Assurance Co case
supra at 273; Fisheries Development case supra at 1338G). Whilst
an
action which is obviously unsustainable is vexatious
,
this I must appear as a certainty and not merely on a preponderance
of probability. (Ravden v Beeten 1935 CPD 269 at 276; Burnham v
Fakheer 1938 NPD 63; African Farms case supra at 565D – E).’
[82] The inherent power of a court to stay proceedings was also dealt
with by Navsa J (as he then was) in Williamson v Schoon and more
recently in Absa Bank Ltd v Dlamini where this common-law principle
was also applied.”








[21] The above cases are
distinguishable from this matter in one material respect. They deal
with vexatious and frivolous proceedings raised between the same
parties in the same forum in which the litigation emanate. Mr Barnard
was unable to refer me to any authority in oral argument or his heads
of argument in which a superior court on application stayed
proceedings in the lower court on the contention he advances in this
proceedings.








[22] Mr Narib, who
appeared for the Respondents argued that this application was not
urgent because the Applicant could have easily have applied to have
the matter in the District Labour Court postponed. He further urged
me to dismiss this application with costs in light of Section 20 of
the Labour Act of 1992.








[23]
Section 20 provided that
“the Labour Court or any
district labour court shall not make any order as to any costs
incurred by any party in relation to any proceedings instituted in
the Labour Court or any such district labour court, except against a
party which in the opinion of the Labour Court or district labour
court has, in instituting, opposing or continuing any such
proceedings, acted frivolously or vexatiously”.








[24] Mr Narib contented
that this court differently constituted considered this matter and
declined to dismiss this matter on the basis contented for by Mr
Barnard. The proper reading of the appeal judgment set out in detail
at paragraph 15 and 16 supra support the contention of Mr Narib. I am
persuaded that all the contentions advanced by the Applicant were
dealt with in the appeal hearing. This is however, not the end of the
matter.








[25] The Applicant seeks
an alternative order for the Respondents to furnish security for
costs in the sum of N$350 000.00. It is common cause that the
Applicant failed to comply with the provisions of Rule 47 of the High
Court Rules and further seek condonation for that failure.








[26]
In their reference work: LAWSA Volume (3) 2 the authors remarked as
follows:
“The rules in force in the magistrate’s
courts, unlike those in the High Court, determine the circumstances
under which a defendant may require a plaintiff to give security for
the costs of an action.



The
phrase “give security” means to give security to the
satisfaction of the clerk of court either by payment into court of
the amount determined by the clerk or by the giving of a security
bond for that amount either by the party with someone else as surety
or by two or more other persons.



The
plaintiff must give security for costs if the defendant requires it
where the plaintiff:




  1. is
    not resident or working within the Republic;



  2. is
    an unrehabilitated insolvent;



  3. is
    a registered or incorporated company or a close corporation;



  4. has
    no substantial interest in the cause of action; or



  5. is
    subject to an administration order.




The
word “plaintiff” does not for this purpose include a
plaintiff in reconvention, nor does an “action” include a
claim in reconvention.



The
onus is on the defendant who is requesting security to satisfy the
court on a preponderance of probabilities that the plaintiff falls
within one of these five categories. Thus it is not correct for the
court to decide the matter on the basis that there are grave doubts
whether the plaintiff is resident within the Republic.”








[27] The District Labour
Court is a Magistrates Court and the Rules of the Magistrates Court
are applicable. The one difference between the High Court and the
District Labour Court, which is a Magistrates Court, is that the
former may order for payment of security, inter alia, against
vexatious litigants. The Magistrates Court is precluded by Rule 62 of
the Magistrates Court. The provisions of Rule 62 apply mutatis
mutandis to proceedings instituted by way of application.








[28] I have no hesitation
to find that Mr Barnard must have been aware that this application
had no merit on his contentions in the Magistrates Court; that is why
it was launched urgently in this court. This inevitably leads to the
second inquiry whether this application constitutes vexatious or
frivolous proceedings. Mr Narib argued that it does because the
Applicant was forum shopping and secondly it had advanced the same
arguments at the appeal which were not needed. The Applicant, I have
no doubt, was ill-advised but I am unable to hold that this
application was frivolous and vexatious.








[29] In the result, I
make the following order:









  1. Dispensing with the
    forms and service of the Rules of the Labour Court and hearing this
    matter as one of urgency.










  1. Dismissing the
    application, no order as to costs.









----------------------------------



P Kauta



Acting Judge













APPEARANCES








APPLICANT : P Barnard



Instructed by Koep &
Partners, Windhoek.








FIRST - SEVENTH



RESPONDENT: G Narib



Instructed by GF
Kopplinger, Windhoek.