Court name
High Court
Case name
Kurtz v Nampost Namibia Ltd
Media neutral citation
[2005] NAHC 47











CASE NO.: LC 29/2005





SUMMARY









RONALD PATRICK KURTZ










versus






NAMPOST NAMIBIA LTD











MTAMBANENGWE, AJ





28
DECEMBER 2005









Application on Notice of Motion
- Urgency of - Fifteen days unexplained delay in launching
application sufficient reason not to condone non compliance with
requirements of the Rules of Court applicable to Notice of Motion
Proceedings - INTERIM INTERDICT - Requirements of - points in
limine
- two points in limine taken by respondent and
upheld sufficient basis to dismiss application without necessity to
consider other requirements. Costs - special order of costs or any
order of costs denied in circumstances revealed on the papers.



























CASE
NO.: LC 29/2005



IN
THE HIGH COURT OF NAMIBIA







In
the matter between:







RONALD
PATRICK KURTZ APPLICANT







and







NAMPOST
NAMIBIA LIMITED RESPONDENT







CORAM: MTAMBANENGWE,
A J.







Heard
on: 2005.12.15



Delivered
on: 2005.12.27



_______________________________________________________________



RULING:



MTAMBANENGWE,
A J.:
In this matter I am only concerned with points in
limine advanced by both parties to the application.







Applicant
seeks in this Application, on an urgent basis, the following relief:
















  1. Condonation
    of non compliance with Rules of Court applicable to applications on
    Notice of Motion and that the matter be heard as one of urgency.




2. That
(the) rule nisi be issued pending the



application
before a declaration order which the



Applicant
intends to bring, calling upon the



Respondent
to show cause why:









    1. The
      Respondent should not be interdicted and restrained from proceeding
      with the disciplinary hearing of Applicant on 15 December 2005 at
      14h00 until finalization of the application for the Declaratory
      Order referred to in paragraph 2 above;



    2. the
      decision of Respondent to deny the Applicant external legal
      representation is not to be part of and parcel of the application
      for the declaratory order;











    1. the
      Respondent should not be ordered to postpone the Disciplinary
      Hearing of the Applicant set for 15 December 2005 at 14h00 in order
      to afford the Applicant adequate opportunity and time to prepare
      and present his defence with the assistance of a legal practitioner
      of his choice.










  1. Ordering
    the relief sought in terms of paragraph 2.1, 2.2 and 2.3 of the rule
    nisi to operate as interim orders with immediate effect pending the
    return day of the rule.



  2. Granting
    the Applicant such further or alternative relief as the Honourable
    Court may deem fit.”








As
is clear from the paragraph three interim relief is sought to take
effect on the day the application was launched i.e. 15 December 2004.
This was not to be because, Respondent having been served, at short
notice, Counsel appeared on its behalf to oppose the granting of the
application.







The
matter was accordingly postponed to 23rd December to
enable Respondent to file it’s Answering Affidavit and the
Applicant a replying Affidavit.







In
its Answering Affidavit Respondent raised two points in limine, while
in his replying Affidavit the Applicant raised one point in limine.







The
Applicant’s point in limine challenged the capacity of Respondent’s
deponent “to depose to the Answering Affidavit” because,
Respondent being an incorporated company no resolution was annexed to
the Answering Affidavit to show that he was authorised as, he said,
to do so.







I
dismissed this point in limine on 23
December 2003
because on 22 December Respondent had filed the resolution by its
board of directors. In oral argument Mr Hinda who appeared for the
Applicant argued that the resolution was not properly brought before
the Court; in the replying Affidavit it was said if the resolution
existed there was no explanation why it was not annexed. Mr Obbes
who appeared for the Respondent explained the time constrains that
led to the resolution being filed later than the Answering Affidavit,
that the application, served at short notice, was launched during a
period







when most people would be going
on holiday.







When the matter was postponed
on 15 December the Court ordered that Respondent file its answering
Affidavit on Monday the 19th of December and Applicant
file his replying Affidavit on 21st December 2005. The
Answering Affidavit was sworn to on the 19th December; the
resolution was passed on 22 December. In the circumstances the court
did not feel that the Answering Affidavit should be ignored; to do so
would be tantamount to allowing the Court to be slave to the rules,
or, on mere technical grounds, to refusing Respondent to be heard
when the Applicant was, in the first place, responsible for the time
constraints affecting the filing of the papers.







The first point in limine
raised by Respondent was that Applicant had not made a case of
urgency as required in terms of Rule 6(2)(b) of the Rules of Court.
This was so because Applicant “was already finally appraised on 1
December 2005 that external representation would not be permitted at
the scheduled disciplinary hearings. Applicant had nonetheless
waited for two weeks to bring the application on 15 December 2005 and
has not explained the delay. The application was served on
Respondent at 12:25 on 15th December and the application
was set down for 14h00 the same day. The Respondent thus alleges
that Applicant under these circumstances was trying to snatch
procedural advantage over the Respondent and so attempted to







undermine Respondent’s right
to be heard.







The sequence of events in this
matter in so far as this issue is concerned, was that on 30th
November 2005 Applicant attended a disciplinary hearing accompanied
by a legal practitioner of the law firm Ueitele Legal Practitioners
and Conveyances who had been his legal practitioners of record in the
matter of the dispute between the parties running back many months
and culmmating in him being charged with misconduct on 10 November
2005. Applicant’s legal practitioner was not allowed to represent
him on 1 December 2005 Applicant had applied in writing to the
chairperson of the disciplinary hearing when, be it noted, the
hearing commenced. In his founding Affidavit Applicant omits to say
that his application for permission to be represented by an external
legal representative was refused on that date, 1 December 2005. He
says that the proceedings of 30th November 2005 and 1
December 2005 were postponed pending the typing of the minutes
thereof. On 12 December he was informed that the adjourned
proceedings would continue on 14, 15 and 16 December 2005.







It is common cause that
Applicant’s cause of action is the refusal on 1 December 2005 of
his application to be represented by an external legal practitioner.
Applicant, however, brings in a number of other issues adventitious
to this cause of action. For example he







complaints that he had been
suspended since 1 March 2005 and the charges against him were only
brought some two hundred and seventy days after he was suspended, and
that on 12 December when he was informed that the disciplinary
hearing would continue on 14, 15 and 16 December he was served with
bulky documents which relate to the charges.







It is correct, as Mr Obbes
stated in oral argument on 23rd December, that no
explanation is given of the delay from 1st December to
12th December 2005 when applicant would have expected the
proceedings to continue any time, albeit subject to his being
notified as was indeed done on 12 December 2005. The fact remains
that his cause of action having accrued on 1 December 2005, it did
not depend on any of these other adventitious issues for him to
launch his application for external legal representation.







Mr Hinda was at pains in oral
argument to try and explain the delay in terms of events which in
essence had nothing to do with the delay of two weeks. It is not
argued that even if the continued disciplinary hearing were postponed
sine die and were to stand so postponed his intended application for
a declaration would wait till he was informed as to when the
disciplinary hearing would continue.















In other words the urgency of
the matter does not arise from the fact that he was suddenly
confronted with bulky documents on 12 December 2005, unless that was
his cause of action. In his founding Affidavit Applicant under a
heading – urgency of the relief sought - says:







I attended the disciplinary
hearing on 14th December 2005 and the following
transpired, I was informed that the hearing will continue on 15th
December 2005 at 14h00 thus leaving me with no option but to approach
this Court on an urgent basis.”







This
means that even the notification on 12 December 2005 that “the
disciplinary hearing will proceed on 14, 15 and 16 December 2005 did
not galvanize him into action but the notification on 14 December
2005. In that statement Applicant clearly misconceives his stated
cause of action, or appears to contradict the same. I agree that no
case of urgency is made out in applicants founding Affidavit.







The
requirements of an interim interdict are now well known to most if
not to all legal practitioners. I single out two of them as most
glaringly unsatisfied in this application.







An
Applicant for an interim interdict is required to satisfy the court
that he has no satisfactory alternative remedy if the interdict is
not granted. In paragraph 6.11.4 of his founding Affidavit the
following is stated:







6.11 I
respectfully submit that:






      1. I
        have established a prima facie right



      2. That
        I have a well grounded apprehension of irreparable harm of






the
interim relief is not granted and if the hearing proceeds without any
legally represented.






      1. That
        the balance of convening favours the granting interim relief.



      2. That
        I have no alternative satisfactory remedy in the circumstances if
        the disciplinary hearing were to proceed.










In
this paragraph Applicant in fact sets out the requirements for the
grant of an interim interdict.











The
second point in limine taken by Respondent relates to paragraph
6.11.4 when it says:







27
Applicant wholly fails to explicitly set forth the reasons why he
could not be afforded substantial redress at a hearing in due
course.”







Indeed
it appears by hearing, Applicant is talking of the pending
hearing in the disciplinary proceedings. It is trite that hearing in
due course embraces a much wider concept. As Manyarara AJ said at
page 21 in Habenicht v Chairman of the Board of Namwater Limited and
Others NLLP 2004(4) 18 NHC:







The
second requirement of Rule 6(12)(b) is that an Applicant must state
the reasons why he claims he could not be afforded substantial
redress at a hearing in due course.”







The
disciplinary hearing in progress do not preclude the following
remedies or redress open to Applicant:
















  1. the
    internal appeal procedures which are available to him in terms of
    respondents Human Resource Policy during which he could raise the
    refusal to allow him external legal representation



  2. recourse
    to the District Labour Court with a complaint of unfair dismissal
    one of the possible grounds of complaint would be possibly the
    denial of external legal representative



  3. an
    appeal to the Labour Court should the district labour court fail to
    sustain his complaint, or review proceedings in terms of Section 18
    of the Labour Act, Act no. 6 of 1992 in particular 18(i)(e) which
    gives the Labour Court exclusive jurisdiction “to issue any
    declaratory order in relation to the application or interpretation
    of any provision of this Act ......… or any term or condition of
    ........... or any contract of employment.”
















The
Answering Affidavit says Applicant’s allegation as his prima facie
right is misguided because the disciplinary process is far from
complete and it is premature for him to allege that the hearing will,
in due course, be unfair. Counsel for Respondent adverted to this,
saying that the allegation, simply on the basis that he is not
allowed to be represented by an external legal practitioner, is
speculative and premature. He says while Applicant is entitled to a
fair hearing, the fairness of a disciplinary hearing must be assessed
in totality. He says it is to Respondent’s prejudice to
unwarrantedly delay the commencement and finalization of the
proceedings while Applicant remains on full remuneration on
suspension. He goes on to quote the following passages from Le Roux:
The South African Law of Unfair Dismissal:







25. Procedural
fairness is often seen as a ‘right’



accruing
to employees only. This, it is



submitted,
is not the whole truth. Employers



have
a real interest in providing and applying



fair,
but realistic, procedures. Fair procedures



will
assist in ensuring that justice is done, not



only
to the employee concerned, but also to co-







employees,
members of management, as well as the employer concerned. They also
have a right to ensure that these procedures are not unduly
cumbersome, time consuming and expensive.




  1. It
    is sometimes difficult to predict whether the court will regard a
    particular procedure as fair or not, or whether the employer was
    entitled to dismiss an employee without following any procedure at
    all. To some extent this uncertainly is unavoidable. Whether a
    procedure is fair will depend on the circumstances of each case.”








And
further







It
is not easy to provide a definitive description



of
what constitutes a fair procedure. Some decisions have taken the
approach of setting out a checklist of specific elements of a fair
procedure, others have spelt out the requirement in fairly general
terms. Nevertheless, the more generally accepted







elements
of a fair hearing can be identified ...… It is important to
emphasize at the outset that, depending on the circumstances of the
case, a dismissal may be regarded as being procedurally fair even if
one or more of these elements are not present. The essential
question remains whether, in a specific circumstances of the cases,
the procedure was substantially fair.



See
Le Roux at 153 – 155.







On
these points in limine taken by Respondent, I agree that the
application stands to be dismissed, and there is no need to consider
other points Counsel or the Respondent’s Answering Affidavit
raised.







As
regards costs, the circumstances that, rightly or wrongly, led
Applicant to launch the application are not such as lead to the
conclusion that the application was launched simply for the
unwarranted purpose of delaying the commencement and finalization of
the disciplinary hearing. The question of proper legal
representation is important to the Applicant, judging from







his
submissions when he made the application to that end. The
circumstances certainly do not warrant an order of costs to be made
against the Applicant, let alone a punitive order of costs as prayed
for by the Respondent.







In
the result the application is dismissed and I make no order as to the
costs of this application.























_________________



MTAMBANENGWE,
A J.







































ON
BEHALF OF APPLICANT MR S UEITELE



Instructed
by: Ueitele Legal Practitioners







ON
BEHALF OF RESPONDENT MR D OBBES



Instructed
by: Lorentz and Bone Legal Practitioners