National Union of Namibian Workers v Naholo (A16/06 ) [2006] NAHC 9 (07 April 2006);

Group

Full judgment

CASE NO: A 16/2006


IN THE HIGH COURT OF NAMIBIA


In the matter between:


NATIONAL UNION OF NAMIBIAN WORKERS APPLICANT


and


PETER NAHOLO RESPONDENT


CORAM: Tötemeyer AJ


Heard: 30 March 2006

Delivered: 7 April 2006


_________________________________________________________


JUDGMENT


TÖTEMEYER AJ:


For the sake of convenience, I have divided this judgment into the following sections:


A. INTRODUCTION


B. THE MAIN APPLICATION


(i) In limine issue


(ii) Costs

C. THE COUNTER APPLICATION

(i) In limine issues

(ii) The merits

(iii) Costs

D. THE ORDER MADE

A. INTRODUCTION

[1] After the National Union of Namibian Workers (hereafter referred to as “the applicant”) had launched an urgent application (hereafter “the main application”) against Mr Peter Naholo (hereafter referred to as “the respondent”), Muller J granted the following order on 21 January 2006:


1. That the Applicants’ non-compliance with the rules of Court and the time periods prescribed therein are condoned and that the matter is heard as a matter of urgency.


2. That a Rule Nisi do hereby issue calling upon the Respondent to show cause, if any, on Monday, February 20, 2006 at 10:00am why he should not be interdicted and restrained from:


    1. Entering upon the premises of the Applicant situated at Mungunda Street, Katutura;

    2. Interfering with the activities of the Applicant, its employees, agents and/or office bearers in whatsoever manner;

    3. In any manner act or purport to act on behalf of the Applicant;

    4. The Respondent shall not pay the costs of this Application.


3. That paragraphs 2.1 to 2.3 above shall operate as interim orders with immediate effect, pending the return day of the Rule Nisi.


4. That the Rule Nisi and Notice of Motion be served on the Respondent personally.


[2] I point out that:


[2.1] The above application appears to have been brought on a Saturday morning at 09h30;


[2.2] According to page 4 of the record, the application was delivered to the respondent the same day that it was heard, i.e 21 January 2006 and therefore only some hours before the hearing;


[2.3] There was no appearance by, or on behalf of, respondent at the hearing when the rule nisi was issued, nor had he filed any papers by that time.


[3] The matter came before me on the extended return date, 30 March 2006. By then respondent had delivered answering papers whereto applicant had replied. Simultaneously with his answering papers the respondent had delivered a substantive counter application in which he sought the following relief:


1. That the termination of applicant’s (i.e respondent’s) position as Acting Secretary General on 14 December 2005 by respondent (i.e applicant) is declared null and void.


2. Respondent (i.e the applicant) is ordered to restore applicant in the position of Acting Secretary General with effect from 14 December 2005.


3. The respondent is ordered to pay the costs of this application on a scale as between attorney and own client.

For the purposes of the counter application, I will also refer to NUNWA as “the applicant” and Mr Naholo as “the respondent”.


[4] In the main application, the applicant delivered replying papers which also served as an answer to the counter application. In response thereto, respondent delivered a replying affidavit in respect of the counter application.


[5] At the hearing of 30 March 2006, Mr Hinda appeared on behalf of applicant and Mr Coleman on behalf of respondent.


[6] The main application stemmed from an incident which occured at applicant’s premises at Katutura, Windhoek on 20 January 2006.


[7] It is common cause between the parties that:


[7.1] Respondent has been appointed as applicant’s Acting Secretary General during 2002;


[7.2] An attempt was made to terminate respondent’s appointment on 14 December 2005. The validity of this termination is in dispute;


[7.3] Respondent entered applicant’s premises on 20 January 2006 and claimed to be entitled to have a motor vehicle (apparently previously allocated to him as part of his fringe benefits associated with his position as Acting Secretary General), returned to him as well as his office keys and to be reinstated (or as put by the applicant, “recognised”) as the Acting Secretary General of the applicant;


[7.4] Applicant also held a press conference at applicant’s premises on 20 January 2006 in terms of a media statement issued on applicant’s letterhead, which contained the text as set out in annexure “ AVM3” to applicant’s papers.


[8] With regard to what further happened at the meeting, the papers evidence factual disputes between the parties. Those, inter alia, concern an alleged aggressive demeanour displayed by respondent and his followers, alleged threats of violence perpetrated by respondent and his followers (the latter who allegedly accompanied respondent to applicant’s said premises), as well as whether or not certain of respondent’s said followers were armed with firearms. In view of the conclusions I come to in this matter, it is not necessary to resolve these factual disputes. I merely refer to these as background material.




B. THE APPLICATION IN CONVENTION


(i) Issue in limine


[9] In his answering papers respondent raised the following issue in limine:


[9.1] That the application had not been duly authorised by the applicant;


[9.2] That the deponent who made the founding affidavit in the main application, Mr Alpheus Venonga Muheua had not been properly authorised the applicant to bring the application.


[10] In support of the proposition that the application was duly authorised by the applicant, the following allegations appear from applicant’s founding papers in the main application:


[10.1] The founding affidavit of Mr Muheua (at Record, 5) stated as follows in paragraph 1.1:


I am an adult male, the first Vice-President of the applicant and duly authorised to depose to this affidavit on behalf of the applicant. I refer the above Honourable Court to a copy of the resolution of the CEC of the applicant indicating my authority to depose to this affidavit as well as to do such things as might be necessary in instituting the present proceedings. The resolution is annexed hereto and marked AVM1


[10.2] Annexure AVM1 appears at Record, 13, and the following is its text:


EXTRACT FROM THE MINUTES OF A SPECIAL MEETING OF THE CENTRAL EXECUTIVE COMMITTEE OF THE NATIONAL UNION OF NAMIBIAN WORKERS HELD AT WINDHOEK ON THE 20TH DAY OF JANUARY, 2006


RESOLVED


  1. That the NUNW (the Federation) approach the High Court of Namibia on an urgent basis for an order interdicting and restraining Peter Naholo (Former Acting Secretary General of the Federation) from:


    1. Entering upon the premises of the Federation situated at Erf 8506 Mungunda Street, Katutura;


    1. Interfering with the activities of the Federation, its employees, agents and/or office bearers in whatsoever manner;


    1. In any manner act or purport to act on behalf of the Federation.


  1. That Alpheus Venonga Muhewa in his capacity as the 1st Vice-President of the Federation be and is hereby authorised to depose to the affidavits and other documents which may be necessary and to apply for the remedy as indicated in the preceding paragraphs.


  1. That Ueitele Legal Practitioners be and is hereby appointed to represent and bring the application on behalf of the Federation.



Signed______________________

ACTING SECRETARY GENERAL

EVARISTUS KAARONDA”


[11] In his answering affidavit, respondent disputed that the resolution referred to in AVM1 had been passed validly. Respondent’s challenge is set out in his answering affidavit at Record, 30 – 31, as well as in certain supplementary affidavits and essentially consists of the following:


[11.1] The applicant-body consists of, amongst others, 4 (four) members of each industrial union affiliated to it. Those unions are spread across Namibia. It is unlikely that all the requisite members of applicant’s Central Executive Committee (“CEC”) could have been present at this meeting to pass the resolution;


[11.2] Respondent knows of at least of three people, namely the President of applicant, Mr Risto Kapenda, the Secretary General of NANTU (being an affiliated union to the applicant), being a certain Miriam Hamutenya, as well as a certain Ndapena Nghipandulwa who is the President of NANTU (all three persons being voting members of the CEC), who did not even know of a meeting of 20 January 2006 whereat the aforesaid resolution was allegedly passed;


[11.3] In support of the abovementioned, respondent filed supporting affidavits of the aforesaid three persons. The essence of the allegations made by them in their affidavits, is that they confirm the abovementioned allegations and expressly state that,

[11.3.1] firstly, none of them were ever informed of any meeting concerning the termination of respondent’s aforesaid position with applicant;


[11.3.2] secondly, they were neither informed about any meeting concerning an application for an interdict against respondent.


[11.4] The CEC normally meets twice yearly and a quorum is a simple majority. Applicant was challenged to prove that a properly constituted meeting of a CEC took place with a quorum to pass the resolution as per AVM1;


[11.5] In support of respondent’s aforesaid contentions, respondent attached a copy of applicant’s constitution as annexure “PN1” to its papers;


[11.6] With further reference to annexure AVM1, respondent contended that the said resolution had to be passed at a special meeting in terms of clause 9.4.5 of applicant’s constitution. This clause requires the applicant’s executive committee or a third of the affiliation unions to request a special meeting. Moreover, seven days’ notice of such a meeting is necessary. Respondent contested that any of the aforegoing had been complied with;


[11.7] Respondent further contended that a resolution not passed at a properly constituted meeting, was required (in terms of clause 9.4.7 of applicant’s constitution) to be signed by not less than 2/3 (two thirds) of the affiliated unions in order to have force.


[12] In response to respondent’s abovementioned challenge, the following appears from the replying affidavit of deponent Muheua:


[12.1] At Record, 73, para 5.1 he denied the allegation that he was not duly authorised by the applicant to bring the application and to depose to the affidavit on behalf of the applicant for that purpose. For this purpose he merely repeated his earlier allegation that he was duly authorised to depose to that affidavit and stated that “I have supported my averments with an extract from the special meeting of the applicant’s Central Executive Committee”;


[12.2] He further denied (Record, 74, para 5.2) that the aforesaid resolution of 20 January 2006 (as referred to in annexure AVM1) was not properly passed. He then proceeded to state “I reiterate and incorporate by way of reference my averments on authority in the founding affidavit”;


[12.3] In amplification of the denial referred to in the previous sub-paragraph, he said the following (at Record, 74):


5.2.1 The provisions of clause 9.4.2 read together with 9.4.7 are self explanatory, and were fully complied with. I submit that the respondent’s assertion and interpretation of these two clauses is incorrect. This point will be addressed fully in legal argument;


5.2.2 The attendance list of the persons (and the affiliated unions to which they belong) who attended the meeting of 14 December 2005 is annexed hereto, marked as Annexure “AVM4”.”


[13] I point out that annexure “AVM4” concerns a meeting of 14 December 2005, which is a different meeting than the alleged meeting of 20 January 2006. The meeting of 20 January 2006 is the meeting which is relied on for the purposes of authority given by the applicant to institute the urgent application against the respondent.


[14] The allegations of deponent Muheua, which follow those set out in the lastmentioned quote, continue to deal with the meeting of 14 December 2005. The meeting of 20 January 2006 is not further dealt with. The deponent continues to deal with the meeting of 14 December 2005 in some detail at paragraphs 5.3 and 5.4 to respondent’s answering affidavit, also with reference to the aforementioned “AVM4” and supporting affidavits by a number of persons. In this regard it is alleged that annexure “AVM4” are the minutes of a special meeting which was held in terms of clause 9.4 of the constitution of NUNW, in terms of which it was (inter alia) resolved that respondent be removed from his position as Acting Secretary General “with immediate effect” (Record, 92).


[15] The meeting of 14 December 2005 is again referred to (and elaborated upon) in other paragraphs of the said replying affidavit of Mr Muheua, inter alia, in paragraph 7.2 at Record, 75 – 76 (and in paragraphs 8.1 – 8.4); Record, 76 - 77 as well as in paragraph 27.3 at Record, 87 and paragraph 30.1 at Record, 88.


The only further reference in applicant’s replying papers to the meeting of 20 January 2006 - apart from the abovementioned mere repetition by Mr Muheua of the allegations he already made in his founding affidavit – are passing references to be found in paragraph 5.5 (Record, 75) and paragraph 26.1 (Record, 86). No further information is given concerning the said meeting of 20 January 2006 or how it was convened, by whom same was attended or what transpired at the meeting, nor was any supporting documentation (such as, for instance, minutes or an attendance list of that meeting), provided. In particular, none of the above specific challenges of respondent concerning the meeting of 20 January 2006 were dealt with by applicant in reply.


[16] Before further analysing the provisions of applicant’s constitution, the following principle should be borne in mind: A constitution of a body such as the applicant is a voluntarily contractual agreement between the subscribing members and the domestic body itself. Applicant is thus bound by its constitution and must act pursuant to its provisions and regulations. I refer to Alberts v Government of Namibia & Another, 1993 NR 85 (HC), at 88 I – 89 A as well as Turner v Jockey Club of SA, 1974 (3) SA 633 (AD), 645 B - C.


[17] Upon a question directed by me to Mr Hinda during argument, he conceded that the applicant does nor rely on clause 9.4.7 of applicant’s constitution for the purposes of the meeting of either 20 January 2006 or, for that matter, the meeting of 14 December 2005:


[17.1] Clause 9.4.7 is a sub-clause of clause 9.4 which reads as follows:


In the event of the CEC being prevented from meeting because of circumstances beyond its control, any resolution signed by not less than two thirds (2/3) of the affiliated unions shall he (this should read “be”) of full force and effect and shall be as binding as if such resolution was adopted at a meeting of the CEC.


[17.2] Clause 9.4.7 is an example of a provision which provides for what is commonly known as a “round robin” resolution. A resolution of this nature validly authorises steps taken by a corporate body or legal persona in the absence of a formal meeting. In those circumstances the relevant body can then take a valid decision if its relevant resolution is signed by the requisite majority as prescribed by its constitution. Resolutions of this nature are pre-eminently appropriate in circumstances where the body requires authority to take urgent steps or action and, due to a lack of time, finds it impossible to constitute or arrange a formal meeting for that purpose.


[18] I am of the view that the above concession by Mr Hinda has been correctly made. Annexure “AVM1”- on which applicant relies for the requisite authority – does not purport to be, nor does it comply with, the prescriptions of clause 9.4.7. Amongst others, it has not been signed by anyone else but the Acting Secretary General, Mr Evaristus Kaaronda. It is clear from the text of “AVM1” that it purports to be nothing else than what it states, namely an extract of the minutes of an alleged special meeting of the CEC of 20 January 2006.


[19] In terms of applicant’s constitution, the power to institute and defend legal proceedings vests in the CEC and is to be found in clause 9.2.9 which states the following:


To institute and/or defend legal proceedings in the name of the Federation, to appoint attorneys to act on behalf of the Federation and to appoint any person to sign any document in connection therewith on behalf of the Federation.


[20] It is apparent from applicant’s constitution that the CEC – apart from the said clause 9.4.7 which provides for a so-called “round robin” resolution - takes its decisions at meetings. The constitution – and in clause 9.4 at Record, 48 - makes provision for two types of meetings. Those are:


[20.1] An ordinary meeting which takes place at least twice a year. This dealt with in clause 9.4.1 which reads as follows:


The CEC shall meet at least two (2) times a year on dates fixed by the President and Secretary General in consultation with the CEC, provided that in any years where a National Congress meets, the CEC shall only meet at least one (1) time in that year. The Secretary General shall, in consultation with the CEC draw up an agenda for such meetings not less than twenty one (21) days prior to the date on which any such meeting is to be held, provided that no meeting of the CEC shall the invalidated only by non-receipt of such notice and agenda by any member of the CEC.


[19.2] A so-called special meeting. This is provided for in clause 9.4.5 of the constitution (Record, 48) which states the following:


A special meeting of the CEC shall be held at the request of the EXCO, or on requisition by not less than one third (1/3) of the affiliated unions. Not less than seven (7) days notice of such special meetings only those issues, which occasioned the necessity for such special meeting shall be discussed.


[21] From applicant’s allegations, as well as annexure “AVM1”, it is quite apparent that applicant does not rely on an ordinary meeting for authority to have instituted the application, but a special meeting. Upon enquiry by me during argument, Mr Hinda confirmed that it is indeed applicant’s case that it – for the purpose of the authority challenge - relies on a special meeting which allegedly took place on 20 January 2006. For that purpose applicant then, inter alia, relies on annexure “AVM1”.


[22] It is established law that a legal persona can only initiate applications through its duly authorised officials. If the official lacks authority, the application should be dismissed with costs. I refer to Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk, 1957 (2) SA 347 (C), at 351 D – H. [See also: Transcash SWD (Pty) Ltd v Smith, 1994 (2) SA 295 (C)]


[23] As was correctly submitted by Mr Coleman, an applicant which is a legal persona, bears the onus to prove that the application is duly authorised and that the individual(s) who make the application is/are duly authorised to depose to the relevant affidavits on behalf of the applicant. I refer to the judgment in Mall (Cape), supra, at 350 – 351 as well as the dictum of Corbett J (as he then was) in Griffiths & Inglis v Southern Cape Blasters (Pty) Ltd, 1972 (4) SA 249 (C), at 252 C – F and the authorities there referred to.


[24] During argument Mr Hinda set considerable score by annexure “AVM1”. His submission was essentially that applicant, having produced this alleged extract from the minutes of a special meeting of 20 January 2006 (as per “AVM1”) – coupled with the allegation under oath by Mr Muheua that he is the Vice President of applicant and is duly authorised to bring the application and to depose to the affidavit - had placed sufficient evidence before the Court to prove that the application was indeed duly authorised by the applicant. In support of this submission, Mr Hinda, both in applicant’s heads of argument as well as during oral argument, relied on a number of principles and authorities. I will deal with those hereafter:


[24.1] Firstly Mr Hinda submitted that the challenge to applicant’s authority contained in respondent’s answering affidavit can be termed a “non-admission” which does not create a real dispute of fact. In this regard he relied on Turnbull v Van Zyl, 1974 (1) SA 440 ©, at 444 H;


[24.2] Mr Hinda further relied on Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk, 1957 (2) SA 347 (C). That authority was followed by this Court in Grüttemeyer N.O v General Diagnostic Imaging, 1991 NR 441 (HC), at 447, where the following passage of the Mall (Cape) matter (at 352 A) was cited with approval at 447 F – G: “Each case must be considered on its own merits and the Court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some unauthorised person on its behalf”.


[24.3] Mr Hinda relied on the following passage appearing at 352 H of the Mall (Cape) matter (with reference to the respondent’s challenge of authority in that matter):


The respondent has put before the Court no evidence whatsoever to suggest that this is not the case, and in the circumstances I am prepared to hold that the applicant has put sufficient before the Court.


[24.4] Mr Hinda also relied on the matter of Tattersall & Another v Nedcor Bank Ltd, 1995 (3) SA 222 (A), at 228. In that matter no evidence was tendered in support of the respondent’s bald statement to the effect that the applicant’s deponent was not properly authorised;


[24.5] Mr Hinda further referred me to an unreported authority of this Court being the matter of Kurtz v Nampost Namibia Ltd, delivered under case number LC 29/2005 on 27 December 2005. In the Kurz matter a point in limine (based on lack of authority) was dismissed after a proper resolution was subsequently filed.


[25] I am of the view that the aforesaid authorities do not support Mr Hinda’s stance. Indeed the principles expressed in a number of the authorities relied on by Mr Hinda, support respondent’s contention that, if a resolution is produced on behalf of an applicant’s legal persona which purports to authorise the relevant proceedings, is properly and substantially challenged by a respondent, an applicant, in reply, cannot merely remain content with the text of the resolution (or for that matter an extract of minutes of a meeting whereat the alleged resolution was taken). In that case an applicant is required to present concrete evidence that the resolution (or for that matter, the relevant extract of a minute) indeed is what it purports to be, namely evidence of a decision properly taken by the applicant to authorise the legal proceedings.


[26] Applying the aforementioned principle to this case, it would mean that respondent – over and above AVM1 - was required to present evidence that a special meeting, duly constituted in terms of the constitution of the applicant, has indeed been held on 20 January 2006 authorising the legal proceedings. This conclusion is reinforced if proper consideration is given to the fact that the applicant bears the onus to prove the requisite authority on a balance of probabilities. The principles expressed in the above authorities relied on by respondent – as alluded to above – properly contextualised and applied to the facts of this matter - indeed bear out the following principles:


[26.1] If a respondent offers no evidence at all to suggest that an applicant is not properly before Court, a minimum of evidence will be required from the applicant to establish authority. This is the import of the frequently followed judgment of the Mall (Cape) matter, supra. In my view, this principle should also apply if respondent avails himself of a mere non-admission or a tactical denial of authority without placing any evidence before Court to suggest that the applicant is not properly authorised;


[26.2] In circumstances where a respondent substantially challenges the authority of the applicant - supported by sufficient evidence so as to create a genuine dispute of fact as to whether or not the applicant was properly authorised - the duty is casted on the applicant to refute that evidence. In this case the validity of the particular resolution or extract purporting to confer authority (AVM1) was challenged on specific grounds. It went well beyond a mere non-admission. This challenge was supported by sufficient evidence. The applicant was called upon to properly respond thereto and to refute those allegations. In those circumstances the applicant could not merely be content by simply relying on the text of the resolution (and a bare allegation in the founding affidavit that the deponent of the applicant is duly authorised) without meeting these challenges. The duty was casted on the applicant to show that the relevant resolution has a valid underlying basis;


[26.3] In my view the authority of Kurtz v Nampost Namibia (Pty) Ltd is clearly distinguishable from this matter: In the Kurz matter the (albeit belated) production of the company resolution conferring authority on the deponent, constituted sufficient proof of authority in circumstances where no facts whatsoever were placed before the Court by the other party contesting the validity of that resolution;


[26.4] The above approach was followed in the matter Transcash SWD (Pty) Ltd, supra (particular at 304 – 307). In that matter the applicant’s reliance on a company resolution purporting to have conferred authority on the applicant was unsuccessful in view of the respondent’s specific evidential challenge to the validity of its underlying basis.


[27] In this case the applicant failed to discharge its onus that a special meeting by the CEC - properly constituted and held in accordance with applicant’s constitution – was held and whereat the resolution set out in the said annexure “AVM1” was taken, by failing to present any evidence to this effect other than relying on AVM1.


[28] I therefore come to the conclusion that it was not properly established by the applicant that


[28.1] generally, the applicant has properly authorised the institution of this application;


[28.2] particularly, that deponent Muheua was authorised to bring the application on behalf of applicant and to depose to his founding affidavit for that purpose.


I am fortified in reaching the aforesaid conclusion by having regard to the well established principles (as referred to by Mr Coleman), expressed in the matters of Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd, 1957 (4) SA 234 (C), at 235 E and Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, 1984 (3) SA 623 (A) as also upheld by the Supreme Court of Namibia in Mostert v The Minister of Justice, 2003 NR 11 (SC), at 21, namely that “Once a genuine dispute of fact was raised, which was not referred to in evidence, the Court is bound to accept the version of the respondent and facts admitted by the respondent, contained in the appellant’s affidavit.


[29] If I am wrong in reaching the above conclusion, the same result is achieved by approaching the matter from a slightly different perspective: Even if a special meeting of the CEC was held on 20 January 2006, and with a proper quorum whereat a resolution as set out in “AVM1” was taken (I do not find that any of the aforegoing had occurred), that meeting would have been invalid for want of proper notice of the meeting. This is the position on the undisputed allegations on the papers. I come to this conclusion for the following reasons:


[29.1] All three the deponents Kapenda, Hamutenya and Nghipandulwa who were eligible to attend CEC meetings, gave evidence that they were never informed of any meeting of the CEC convened for the purpose to decide on an application for an interdict against respondent. Applicant never challenged this allegation as far as the meeting of 20 January 2006 is concerned;


[29.2] Clause 9.4.5 of applicant’s constitution quoted above, states in peremptory terms – that, inter alia, not less than seven days notice of such special meeting shall be given;


[29.3] In attempting to meet Mr Coleman’s submissions on clause 9.4.5, Mr Hinda relied on the provisio contained in clause 9.4.1. Clause 9.4.1 has been quoted earlier;


[29.4] Based on the aforesaid provisio, Mr Hinda submitted that non-receipt of a notice of a meeting shall not invalidate a meeting of the CEC (and irrespective of whether it is a regular meeting contemplated in clause 9.4.1, or a special meeting contemplated in clause 9.4.5). I am unable to uphold this submission for the following reasons:


[29.4.1] Clause 9.4.1, which deals with the aforesaid regular meetings, is expressly qualified by the aforesaid provisio, whereas clause 9.4.5 is not qualified as such. In interpreting clause 9.4 as a whole, I consider this as an indication that this provisio only applies to a regular meeting contemplated by clause 9.4.1 and not to special meetings referred to in clause 9.4.5;


[29.4.2] In addition and if guidance is sought from the terms of the said provisio (despite those terms not being entirely clear), same reinforce this conclusion: The “notice and agenda” referred to in the last two lines of the provisio of clause 9.4.1, seem to refer to the particular notice and agenda referred to earlier in clause 9.4.1. This is borne out by the use of the word “such”. The phrase “such notice and agenda” (emphasis provided) – refers to the agenda and 21 day notice period which are referred to earlier in clause 9.4.1. By necessary implication, it does not refer to the seven day notice dealt with in clause 9.4.5;


[29.4.3] The above interpretation also appears to be logical and in the spirit of the scheme envisaged by clause 9.4 of the constitution in respect of a distinction drawn between regular meetings (on the one hand) and special meetings (on the other hand). The likelihood of any prejudice ensuing as a result of the absence of proper notification in the case of regular meetings (which occur on fixed and pre-determined dates), appears to be substantially less than in the case of special meetings which are convened in order to transact special business and are arranged on an ad hoc and relatively urgent basis (Urgent in the sense that they are arranged on 7 day notice for special business which cannot wait until the next regular meeting).


[30] In result, the point in limine - based on the absence of the requisite authority of the applicant to bring the application - is upheld. The applicant’s main application is dismissed and the rule nisi issued on 21 January 2006 is discharged.


It is therefore unnecessary to deal with the merits of the main application.


  1. The costs of the main application


[31] I was urged by Mr Coleman to make the following cost orders in respect of the main application in the event of the rule nisi being discharged:


[31.1] That a special cost order be made on an attorney and client scale;


[31.2] That should I uphold respondent’s point in limine on the authority-issue, I should not grant costs against the applicant, but rather against the deponent Muheua who launched the proceedings without the requisite authority.


[32] I was urged to make a special costs order based on issues of credibility which arose, amongst others, from certain statements appearing in applicant’s papers concerning statements made, or attributed to, deponents Haingura and Kapenda which were then later denied by them. I do not consider the discrepancies which arise thereanent to be serious enough to warrant a special order as to costs. Moreover, the conclusions reached by me which led to the dismissal of the main application, were - to a quite a substantial extent – ultimately based on matters of interpretation and legal issues. In this context, no consideration arises which could warrant a special costs order.


[33] As far as the cost order against deponent Muheua is concerned, it is indeed so that the logical conclusion which flows from the dismissal of the main application due to a lack of authority, would be that deponent Muheua launched the application at his own peril and without applicant’s sanction. I thus agree with Mr Coleman that, as a general principle, it would be unfair that the applicant be mulcted costs arising from the unsuccessful application in circumstances where it it never authorised the proceedings. Although Mr Coleman could not refer me to specific authority on this point, he referred me to the decision of Hannah AJP in this Court in the matter of Pinkster Gemeente van Namibia v Navolgers van Christus, 1998 NR 50 (HC) at 54 H where he states the following:

Quite apart from legal principle, the question of authority to bring an application concerns, ultimately, the question of costs. Once it is shown that a person who brings an application on behalf of another has the authority to do so, then that other will be bound by an order for costs against him. If he had no authority at the outset, then ratification of the steps he has taken must be obtained in order to bind that other party who at least in name, is the applicant.


[34] The other side of the same proverbial coin is that, once an application is launched by a deponent without authority of the applicant, it should follow that the applicant cannot be held liable for costs thereby occasioned. The deponent who has launched these abortive and unauthorised proceedings, should therefore bear the costs thereof.


[35] In result, I order that respondent’s costs arising from the main application be paid by Mr Alpheus Venonga Muheua personally and on the ordinary scale as between party and party.

C. THE COUNTER APPLICATION


  1. Issues in limine


  1. The challenge to the Court’s jurisdiction


[36] A point in limine was raised by the respondent claiming that the reinstatement sought by the applicant is not justiciable in the High Court but in the District Labour Court created by the Labour Act, Act 6 of 1992.


[37] In respondent’s heads of argument, I was referred to sections 18 and 19 of the Labour Act. On the basis thereof, it was submitted that the Labour Court and District Labour Court were created by statute to deal with employment related matters. It was then submitted that the relief sought by the applicant is based on an unfair dismissal (and on the basis of which reinstatement is claimed), and the High Court of Namibia is not a proper forum to adjudicate on this relief. Instead, applicant should have approached the District Labour Court for the appropriate relief.


[38] Mr Hinda further developed the above submissions during oral argument by, inter alia, referring to the following:


[38.1] The case of Ex parte Millsite Investment Co (Pty) Ltd, 1965 (2) SA 582 (T), particularly the dictum at 585 G – H as referred to in paragraph 3 of respondent’s heads of argument, where the following is stated:


….apart from powers specifically conferred by statutory enactments and subject to any specific deprivations of power by the same source, a Supreme Court can entertain a claim or give any order which, at common law, it would be entitled so to entertain or give. The inherent power is not merely one derived from the need to make the Court’s order effective, and to control its own procedure, but to hold the scales of justice when a specific law provides for the situation.


Based on this, Mr Hinda argued that the specific statutory enactments of the Labour Act conferred certain powers upon the Labour Court and District Labour Court, and deprived the High Court of Namibia of jurisdiction in labour related matters;


[38.2] The judgment of the Supreme Court of Namibia in the matter of Cronje v Municipal Council of Mariental, 2004 (4) NLLP, 129, as well as the authority of Habenicht v Namwater reported at 2004 (4) NLLP 18 were relied on by Mr Hinda in support for the submission that matters of the aforesaid nature fall within the exclusive domain and jurisdiction of the District Labour Court.


[39] The starting point of the enquiry should, in my view, be the consideration of the ordinary common law as well as the statutory powers of the High Court of Namibia. As correctly pointed out by Mr Coleman, those are to be found in section 2 of the High Court Act, Act 16 of 1990, as well as section 16. Section 2 of the Act provides that the High Court shall have jurisdiction to determine all matters which may be conferred or imposed upon it by the High Court Act or the Namibian Constitution or any other law. Section 16 of the High Court Act, inter alia, stipulates that the High Court “shall have jurisdiction over all persons residing or being in and in relation to all causes arising and offences tribal within Namibia and all other relief consequential upon the determination.”

[40] The High Court by its very nature is also imbued with an inherent jurisdiction. The authority of Ex parte Milltide Investment Co (Pty) Ltd, supra, 585 G – H is support for this proposition.


Pollak on jurisdiction, 2nd Edition at page 29 also comments as follows:


In short, therefore, the position is that unlike, say, the magistrate’s courts or the industrial court, the power of the Supreme Court is not spelled out in a legislative framework and limited by its creating statute. It inherently has all such power as entitled to it to entertain to hear all causes arising within the area over which it exercises jurisdiction.


[41] There is further a clear presumption against the exclusion or ouster of the jurisdiction of the High Court. The cases of Simpson v Selfmed Scheme & Another, 1992 (1) SA 855 (C) and Minister of Law and Order & Others v Hurley & Another, 1986 (3) SA 568 (A), at 584 enunciate this principle.


[42] In order to consider the above submissions, regard should also be had to the manner in which, and the provisions whereunder, the Labour Court and District Labour Court were respectively created under the Labour Act:


[42.1] The Labour Court is established under section 18 of the Labour Act. Section 18 (1) determines that “The Labour Court shall have exclusive jurisdiction in respect of those matters enumerated in sub-sections 18 (1) (a) to (g). None of these confer jurisdiction on the Labour Court as a court of first instance in respect of a complaint concerning an unfair dismissal or termination of employment and to seek the appropriate redress (such as, for instance, reinstatement) resulting therefrom;


[42.2] For the latter purpose, the District Labour Court was created by the legislature in terms of section 19, inter alia, read with sections 45 and 46 of the Labour Act. The introductory part of section 19 reads that “A district labour court shall have jurisdiction –“ in respect of those matters enumerated in sections 19 (1) (a) and (b). In contrast to the wording of section 18, no exclusive jurisdiction is conferred on the District Labour Court.


[43] Although I was not referred to a specific passage in the matter of Cronje v Municipal Council of Mariental, supra, which could support the applicant’s reliance on that case, the passages relevant to jurisdictional issues dealt with in the Cronje case, do, in my view, not support a proposition that the District Labour Court is endowed with any exclusive jurisdiction.


[44] Reference in the Habenicht -matter to the District Labour Court as having been an avenue of redress available to the applicant in that matter, also does not support a conclusion that any exclusive jurisdiction is conferred upon the District Labour Court. As was correctly conceded by Mr Hinda, the remarks made by Manyarara AJ in the Habenicht -matter on this issue, should be regarded as obiter.


[45] As a result, I come to the conclusion that there is no “statutory enactment” or a specific “deprivation of power” as contemplated by the Ex parte Millsite Investment Co. (Pty) Ltd, supra, which deprives the High Court of Namibia of jurisdiction in respect of the subject-matter of respondent’s counter application.

[46] As a result, I come to the conclusion that there is no provision in the Labour Act which ousts or deprives the High Court of Namibia to jurisdiction to hear and determine the respondent’s counter application. Although the District Labour Court has evidently been created by the legislature as a so-called “special court” to hear and determine claims based on unfair dismissals (and other labour related complaints) as a court of first instance, the High Court of Namibia, as a matter of principle, is not deprived of its inherent (and concurrent) jurisdiction to also, depending on the circumstances, hear matters of this nature.


[47] The enquiry, however, does not end with the aforegoing. The fact that the High Court of Namibia, in principle, has concurrent jurisdiction to hear and determine claims in the nature of the relief sought in the counter application, does not mean that it would always exercise it. The concept of concurrent jurisdiction is known to our law. In a country like, for instance, South Africa, it does not infrequently arise that a particular case presents jurisdictional facts which could imbue more than one provincial division of the High Court of South Africa with jurisdiction in a particular case.


[48] In the context of concurrent jurisdiction, a principle such as forum non convenience exists in terms of which the Court seemingly has the power to decline to exercise its jurisdiction in particular circumstances and on the grounds of inconvenience. Pollak at page 20 of his work, comes to the conclusion that it is not clear - apart from a certain statutory provision of South Africa which does not apply to Namibia and the principles of lis pendens - if the common law allows a Superior Court to decline to exercise its jurisdiction on grounds of inconvenience. Assuming (without deciding) that the High Court of Namibia has the power to decline to exercise its jurisdiction on the ground of inconvenience in certain circumstances - and in respect of matters where the District Labour Court also has jurisdiction - I would, in the current circumstances, not decline to exercise this Court’s jurisdiction over the counter application on the ground of inconvenience for the following reasons:


[48.1] The relief sought by the respondent was made in a counter application in response to the main application brought by applicant. Respondent’s defence to the merits of the main application and the subject-matter of respondent’s counter application are largely intertwined: Both this defence and the counter application are substantially based on the invalidity of the termination of his employment with applicant as Acting Secretary General;


[48.2] Although the thrust of the applicant’s main application concern the events of 20 January 2006 at the applicant’s premises, applicant alleges (and to an extent relies on) the valid termination of respondent’s employment in its founding papers. I refer to, inter alia, Record, 7, para 5. Respondent was thus called upon to answer these allegations. It was accordingly not inappropriate (nor inconvenient) for respondent to have launched a counter application simultaneously with his answer to the main application, which in essence challenged the lawfulness and validity of the termination of his employment;


[48.3] Applicant in its main application also relies on the validity of the decision taken by applicant on 14 December 2005. This decision is also relevant in deciding respondent’s counter application. Moreover, to an extent, identical provisions of applicant’s constitution required consideration in the context of both the alleged resolution taken on 20 January 2006, as well as the decision of 14 December 2005. The former (i.e the decision of 20 January 2006) was pertinently relevant in deciding the main application. The latter (i.e the resolution taken on 14 December 2005) was relevant in deciding the merits of the counter application. I will deal with this lastmentioned issue later;


[48.4] Mr Hinda submitted that this Court should decline to exercise its jurisdiction for the reasons that not all facts have been placed before this Court concerning the dismissal of respondent by applicant and that the factual issues concerning this issue should best be traversed in the District Labour Court. Respondent, in my view, set out a proper factual challenge of his dismissal in his counter application. If applicant indeed refrained from placing all relevant facts before Court, in response thereto, this was unfortunately done at applicant’s own peril.


[49] In the circumstances, the first point in limine based on the challenge of this Court’s jurisdiction is dismissed.


  1. Second point in limine based on respondent’s alleged failure to exhaust an internal appeal remedy


[50] In support of this point in limine applicant relies on clause 9.1.6 of applicant’s constitution appearing at page 46 of the Record and which reads as follows:


The CEC shall have the right to suspend or dismiss the Secretary General or the Deputy Secretary General of the Federation should that official, in the opinion of the CEC, be guilty of misconduct, neglect his duty or acted in a manner detrimental to the interest of the Federation or in conflict with this Constitution, any decision of the National Congress or the CEC, or for any other reason which the CEC deems sufficient for termination of service, provided that such officials have the right to appeal to the next National Congress against such suspension or dismissal.


[51] During the course of the argument Mr Hinda pointed out that it is not applicant’s case that clause 9.1.6 of applicant’s Constitution ousts the jurisdiction of the High Court, but rather that it defers that jurisdiction until the abovementioned internal appeal remedy is exhausted.


[52] In response to the above challenge, Mr Coleman essentially made the following points in his heads of argument:


[52.1] Reliance was placed on the above presumption against an ouster of the High Court’s jurisdiction;


[52.2] Applicant did not attempt to comply with its own rules when dismissing respondent and therefore acted outside the ambits of its constitution. It is seemingly contended that ultra vires actions of this nature should not be subject to an internal remedy, such as an appeal procedure, but should be challenged in the High Court.

[53] During the course of argument Mr Coleman augmented his above arguments to the extent that he submitted that the principal issue to be addressed, is whether or not the clear intention can be inferred from clause 9.1.6 that respondent was bound to first exhaust the internal remedy of the appeal provided for by clause 9.1.6 before he could approach this Court to contest the termination of his employment.

[54] In the context of the constitution of applicant being a binding contract between the parties, Mr Hinda urged me to give strict effect to the principle of sanctity of contract. This should lead thereto, so Mr Hinda submitted, that respondent is bound to first exhaust the appeal procedure as envisaged by clause 9.1.6 before he could approach this Court. The real enquiry, of course, is to give a proper interpretation to clause 9.1.6 in order to establish if its terms would contractually require respondent to first exhaust the appeal procedure before an approach to the High Court would be competent.


[55] In a labour law context, it appears from the work of Le Roux et al, The South African Law of Unfair Dismissal, page 172 – 174 that the industrial courts in South Africa have not adopted a uniform approach on the issue as to whether or not an employee should first exhaust an internal appeal procedure before he or she could approach the industrial courts for relief.

[56] During the course of his argument Mr Hinda relied on - and furnished me with a copy of - a recent unreported judgment of the Supreme Court of Appeal of South Africa in the matter of Nichol & Another v The Registrar of Pension Funds & Others. This judgment was delivered on 29 September 2005 Van Heerden JA (Mati DP, Navsa JA, Maya AJA, Cachalia AJA concurring). That matter concerned a failure to exhaust internal remedies before the institution of judicial proceedings.


[57] The enquiry in the Nichol matter, supra, principally concerned the interpretation of a statute of South Africa being The Promotion of Administrative Justice Act, Act 3 of 2000 of South Africa, particularly clause 7.2 thereof, inter alia, provides as follows:


7.2 (a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted.


Section 7 (2) of that statute provides that the Court may, in exceptional circumstances, exempt a person from this obligation. The judgment of Nichol is instructive in other respects. I will deal with these later.


[58] Mr Hinda also referred me to the work of Burns, Administrative Law under the 1996 Constitution which deals with the general proposition that internal remedies first be exhausted before redress is had to the Courts.


[59] In considering this aspect, guidance can be sought from those authorities which deal with statutory provisions which make provision for an internal remedy. I refer to the following:


[59.1] In Westair Aviation (Pty) Ltd & Others v Namibia Airports Company Ltd & Another, 2001 NR 256 (HC), Hannah J (at 266 B – G) approved of a decision of Comrie AJ (as he then was) in Lawson v Cape Town Municipality, 1982 (4) SA 1 (C), at 6 H – 7 A, Comrie AJ enumerated a number of factors which should be considered in deciding the question whether, on a proper construction of the statute in question, judicial review is excluded or deferred. From the provisions of clause 9.1.4 as such and the scant evidence on this issue in the papers, these factors render little, if any, guidance to me in order to decide this issue;


[59.2] I gain more assistance from the approach adopted in the matter of Welkom Village Management Board v Leteno, 1958 (1) SA 490 (AD) where Ogilvie Thompson AJA held at 502 DWhenever domestic remedies are provided by the terms of a Statute, regulation or conventional association, it is necessary to examine the relevant provisions in order to ascertain in how far, if at all, the ordinary jurisdiction of the Courts is thereby excluded or deferred.” and at 503 C – D….that the mere existence of a domestic remedy did not conclude the question, since it is in each case necessary to consider all the circumstances in order to determine whether the necessary implication arises that the Court’s jurisdiction is either wholly excluded or, at least, deferred until the domestic remedies have been exhausted…..” and “In my judgment, the necessary implication in question can seldom, if indeed ever, arise when the aggrieved person’s very complaint is the illegality or fundamental irregularity of the decision which he seeks to challenge in the Courts.” At 503 B Ogilvie Thompson AJA approved the statement appearing in Golube v Oosthuizen & Another, 1955 (3) SA 1 (T) where it was held that “The mere fact the Legislature has provided an extra-judicial right of review or appeal is not sufficient to imply an intention that recourse to a Court of Law should be barred until the aggrieved person has exhausted his statutory remedies.


[60] Most instructive, however, I find the following dictum appearing at page 11, para 15 of the Nichol v The Registrar of Pension Funds matter, supra, where Van Heerden JA stated the following:


Under the common law, the mere existence of an internal remedy was not, by itself, sufficient to defer access to judicial review until the remedy has been exhausted. Judicial review would in general only be deferred where the relevant statutory or contractual provision, properly construed, required that the internal remedies first be exhausted.


I intend following this approach when considering whether or not clause 9.1.6 defers the jurisdiction of this Court until the internal appeal remedy is exhausted.


[61] In interpreting clause 9.1.6, I am unable to reach the conclusion that this provision, properly construed, requires that the internal appeal remedy had to be exhausted first, before the applicant was entitled to approach this Court. I come to this conclusion for the following reasons:


[61.1] It is obvious from the wording of clause 9.1.6 that it does not expressly - and neither directly or indirectly - state that the appeal to the National Congress of the applicant will defer access to the Court;


[61.2] In terms of clause 8.5.1 of the constitution, the National Congress ordinarily meets every four years, unless a special meeting is called for. If this appeal remedy had to be exhausted before this Court could be approached, it could effectively mean that an official concerned may be virtually remediless for a number of years. This certainly does not give rise to an inference of an intention to defer redress to the Courts until the appeal is disposed of. Indeed, it gives rise to a strong inference of a contrary intention.


[62] I find that, on a proper interpretation, it appears that clause 9.1.6 goes no further than conferring a right of appeal to the official concerned, which he/she may or may not elect to exercise. It does not compel such official to exercise that right, nor does it defer the right to approach a competent Court to seek redress.


  1. The merits of the counter application


[63] In his counter application the applicant alleges that the termination of his employment was unfair. In this context, inter alia, he alleges at Record, 31 - 33 that:

[63.1] He was appointed to act as Secretary General of the applicant during 2002 and until the next congress of applicant to be held during 2006;


[63.2] He was never given a hearing or notice of a meeting of the CEC where his termination was decided upon;


[63.2] There is no fair and valid reason for his termination. He was never given the opportunity to answer any disciplinary or other charges;


[63.3] No proper meeting of the CEC was constituted, nor has a proper decision been taken by the CEC to terminate his services. This statement was made for the same reasons as articulated in paragraph 3 of his founding affidavit which have already been referred to earlier. The applicant was challenged to produce the minutes of the meeting of the CEC which purported to terminate his services. Applicant was also specifically challenged to prove that the said meeting was properly called and that all the members of the CEC were given proper notice thereof;


[63.4] Respondent further contended – paragraph 5.4 of his affidavit (Record, 32) – that he had the expectation to be treated fairly and that the rules of natural justice apply to him in his position as Acting Secretary General.


[64] I point out that, although deponent Muhuea did not have authority to depose to the replying affidavit on behalf of applicant. (I have already dealt with this issue earlier and will again refer thereto below.) I will consider the contents of his replying affidavit on the basis that it constitutes a witness statement.


[65] The response of Mr Muheua to the above allegations appear from Record, 75 – 77 and can be summarised as follows:


[65.1] The expectation of respondent to be treated fairly and that the rules of natural justice will apply to him, is irrelevant and stands to be struck from the application;


[65.2] Respondent’s contention that he was entitled to security of tenure until the next National Congress, was subject to his good conduct and compliance with the constitution of applicant;


[65.3] That a resolution was indeed taken on 14 December 2005 to remove the respondent from his position of Acting Secretary General;


[65.4] It is admitted that respondent was not present when the above decision was taken. In this vein Mr Muheua alleges that


[65.4.1] respondent willingly and knowingly did not attend the meeting of 14 December 2005;


[65.4.2] respondent was personally requested by him on 13 December 2005 - after the relevant deponent was requested by six affiliated unions to call a meeting of the CEC – to call such meeting, which the respondent refrained from doing;


[65.4.3] other officials of applicant then called the meeting and respondent was informed of that meeting and the purpose of the meeting. He undertook to come to the meeting, but never came;


[65.4.4] the decision to remove respondent from his position was taken in accordance with clause 10.2.3 (which provide for a 2/3 majority resolution of the CEC in cases of removal from office of an official) and clause 9.3.2 of the constitution (the latter which empowers the CEC to appoint, inter alia, a Secretary General in an acting capacity, subject to an election of a new incumbent by the National Congress);


[65.4.5] respondent was removed from his position for a fair and valid reason, the fair and valid reason being that respondent breached the applicant’s constitution (particularly clause 5.27 of the constitution).


[65.5] Clause 5.27 of the constitution, under the heading “AIMS AND OBJECTIVES” states that it will “do all things as may be in the interest of the Federation and its affiliates and which are not inconsistent with the objects or any matters specifically provided for in this Constitution.


[66] It is apparent from the aforesaid response by Mr Muheua that respondent’s specific challenge that he was not given the opportunity to answer “any disciplinary, or other, charges” is not squarely met. The response appears to be that respondent was informed of the meeting and its purpose and deliberately refrained from attending [although strictly irrelevant, I pause to mention that the respondent denies that he was informed of this meeting or was instructed to call same and alleges in his reply that he was only appraised of the meeting after the fact].


[67] If the so-called “purpose of the meeting” of which respondent was allegedly informed, is considered with reference to the minutes of the meeting of 14 December 2005 as produced by applicant (Record, 91 – 93), it appears that the agenda of the meeting (which is the only indication of the purpose of the meeting), states the following:


1. Condoning the abridgment of the time periods to give notice of the meeting.


2. Serious breaching of the NUNWA’s Constitution (misconduct by the Acting Secretary General).


[68] In order to consider the effect of the abovementioned facts, it is necessary to determine if the rules of natural justice would have applied to any proceedings which purported to terminate respondent’s position as Acting Secretary General. Mr Coleman urged me to find that clause 9.1.6 of applicant’s constitution , by necessary implication, includes the right of natural justice (and to the extent that an official concerned should be afforded procedural and substantial fairness when the disciplinary steps as envisaged by that clause are taken against him/her). I proceed to consider this issue without reference to section 45 of the Labour Act (which deals with substantive and procedural fairness), because that section has been enacted for the purposes of the exercise of jurisdiction by the District Labour Court. I will consider this submission also with reference to authorities referred to by Mr Coleman:


[68.1] In terms of clause 9.3.2 the CEC may appoint a Secretary General or Deputy Secretary General in an acting capacity, subject to the election of a new incumbent by the National Congress. This has already been referred to;


[68.2] It appears that applicant had security of tenure until the next National Congress, subject to any suspension or dismissal which could follow in terms of clause 9.1.6;


[68.3] Clause 9.1.6 does not say that the official concerned is entitled to procedural and substantive justice for the purposes of the relevant proceedings before the CEC;


[68.4] The CEC – for the purposes of clause 9.1.6 - functions as a domestic tribunal which is established in order to conduct disciplinary proceedings in respect of a Secretary General or Deputy Secretary General. In this context Mr Coleman referred me to a number of authorities, amongst others, the case of Turner v Jockey Club South Africa, supra, as well as Bekker v Western Province Sports Club, 1972 (3) SA 803 (C) as authority for the proposition that the rules of natural justice apply to proceedings of a domestic tribunal of this nature. The Turner matter at 645 – 646 and the Becker matter at 811 lay down the principle that it, as a general rule, is an implied term of the provisions of a Constitution of a voluntary body which establishes such a domestic tribunal that the rules of natural justice will apply. This may, of course, be excluded by virtue of the express terms of the constitution concerned.


[69] I am driven to the conclusion that clause 9.1.6 includes the principles of natural justice and that the CEC is therefore required to observe certain fundamental principles of fairness which underly our system of law when considering any disciplinary steps taken against an official concerned as contemplated by clause 9.1.6. I reach this conclusion for the following reasons:


[69.1] There is no provision contained in clause 9.1.6 which excludes the operation of the rules of natural justice;


[69.2] The reference to an appeal procedure provided for by clause 9.16 (which, by its very nature, would entail reconsideration of proceedings which took place before the body a quo) implies that proceedings before the CEC should be in the form of a proper and structured procedure where the issues at hand should be rationally and properly considered, and to the extent that it is capable of reconsideration and re-assessment by the appeal body. The natural justice afforded to the official concerned by the appeal procedure would largely be meaningless if, for instance, the tribunal a quo would be entitled to take the decision in an unilateral or arbitrary fashion without hearing the official concerned;


[69.3] In passing, I observe that it would indeed be an anomaly if the constitution of the applicant – which has as one of its principal objects the general protection of the rights of workers and employees in this country – would exclude the application of natural justice in proceedings against its own employees.


[70] It is fundamental to the application of natural justice in disciplinary proceedings against an employee that he/she should, inter alia, receive timeous and proper notice of the charges or complaints against him/her, be afforded a proper hearing and have due and proper opportunity of producing evidence and stating his/her contentions on all relevant points. (See: Bekker v Western Province Sports Club, supra, at 811 B – E)


[71] Assuming in applicant’s favour that Mr Muheua’s statement is correct that respondent was informed of the “purpose of the meeting” as set out in the agenda of the meeting of 14 December 2005, this falls far short of a proper prior notice of the charges or complaints against the respondent. I come to this conclusion for the following reasons:


[71.1] Point 2 of the agenda quoted above, is wide and vague to the extreme. It contains no details whatsoever as to exactly which provision of the constitution was allegedly breached by respondent or the nature of the misconduct he stands accused of;


[71.2] In the replying affidavit of Mr Muheua, reliance is placed on a breach of clause 5.27 of the constitution. It is apparent from the contents of clause 5.27 quoted above, that those are likewise casted in very wide terms. A breach of this object of the applicant is not stated in the agenda of 14 December 2005. Any reference thereto in the said agenda - in the absence of specific allegations concerning the manner in which respondent was alleged to have breached any particular object of applicant - would, in any event, not have taken matters further.


[72] In view of the fact that the respondent was not informed of specific charges or complaints against him, he was obviously not in a position to properly answer or defend himself against any charges or to exercise any of his rights inherent to the principles of natural justice.


[73] Even if I am wrong in coming to the above conclusion, I find that the meeting of 14 December 2005 (at which respondent was purportedly removed from his position), was not properly constituted. I reach this conclusion for the following reasons:


[73.1] The meeting of 14 December 2005 purported to constitute a special meeting of the CEC. I have already dealt with the provisions of clause 9.4.5 which require seven days’ notice for a special meeting. It is common cause between the parties that this meeting was not called on 7 days’ notice. I refer to the admission made in the replying affidavit of Mr Muheua at Record, 74, para 5.3;


[73.2] During argument Mr Hinda relied on the resolution taken at that meeting (appearing from Record, 92, para 1) in terms of which it was resolved to condone the non-compliance with the provisions of clause 9.4.5 in regard to this seven day notice period. Mr Hinda, in general terms, referred to the Company Law which provides for a non-compliance of such a notice period (for the purposes of convening a proper meeting of a company) in the sense that this non-compliance can be condoned by the relevant meeting itself;


[73.3] In the context of the Company Law, too short notice of a meeting of a company can indeed be condoned. This is subject to the stringent requirements of section 186 of the Companies Act, 1973, which, inter alia, require – in the case of short notice having been given - that it can be condoned by a vote making up 95% of the total voting rights of all members concerned. In the case where no notice had been given, the requirements are even more stringent in the sense that all members of the company should agree in writing to waive non-compliance with the notice requirement;


[73.4] The constitution of the applicant makes no provision for short notice, nor does it contain a provision to the effect that the persons in attendance at the meeting could agree to waive the relevant notice period. In the absence of such provision, the applicant is bound to follow its constitution and is thus bound to the aforesaid 7 day notice period. This cannot be waived by the meeting itself. Indeed, it could lend itself to serious abuse if a quorum present at a meeting could override the provisions of the constitution by waiving the notice period, in circumstances where no (or inadequate) notice has been given to other members who are not present (and who might even be entirely oblivious of the meeting or were unable to attend same due to short notice).


[74] For the above reasons, I come to the conclusion that termination of applicant’s position as Acting Secretary General on 14 December 2005 by respondent, is unlawful.


[75] In view of the conclusion I come to, it is not necessary to consider the issue as to whether or not a proper quorum was present at the meeting of 14 December 2005.


[76] Lastly I was urged by Mr Hinda that, should I find that the termination of respondent’s position was unlawful, I should not order his reinstatement. His submission was seemingly based thereon that the relationship between employer and employee (i.e applicant and respondent) has irretrievably broken down and to the extent that applicant can no longer be expected to re-employ respondent.


[77] The difficulty which I have with the last submission, is that no allegation is made in Mr Muheua’s answering papers to the counter application (which is also a replying affidavit in the main application), stating that this relationship has indeed irretrievably broken down and that, on account thereof, respondent should or could not be reinstated. Mr Hinda submitted that much remained unsaid in this application and that I should infer this breakdown of a relationship from the surrounding facts. Quite apart from the fact that Mr Muhuea did not have authority to speak on behalf of applicant concerning its relationship with respondent (or, for that matter, the breakdown of that relationship), the least one would expect of an employer who opposes relief for reinstatement of an employee - on the basis that their relationship has irretrievably broken down - is to unequivocally make that allegation in its papers. It should also state the grounds for such allegation. As this was not done, I am unable to refuse respondent relief on this basis.


[78] In result, I grant the relief sought in prayers 1 and 2 of the counter application.


(iv) Costs of the counter application


[79] In respect of the main application I have already concluded that Mr Muheua is personally liable for the costs thereof. Applicant’s replying affidavit in the main application also constituted applicant’s answering affidavit to the counter application. No allegation is made therein that applicant is duly authorised to specifically oppose the counter application on behalf of applicant. It appears that deponent Muheua relied on his alleged authority to launch the main application in order to oppose respondent’s counter application also. The same consideration as to the costs of the main application should therefore apply to the counter application given Mr Muheua’s apparent absence of authority to have opposed the counter application on behalf of applicant.


[80] In addition, the attempted termination of respondent’s position occurred at the meeting of 14 December 2005, which was not properly constituted. Accordingly a decision of respondent’s termination was not authorised by applicant. Mr Muheua was instrumental in attempting to terminate respondent’s position: Not only was he – on his own version – instrumental in calling the illegal “special meeting” of 14 December 2005, but he also chaired that meeting. He also further perpetrated the invalid termination of respondent’s position by signing a letter of termination of service of 14 December 2005. This letter appears at Record, 14.


[81] In the circumstances it is just that Mr Muheua pays the costs of the counter application in his personal capacity. It would be unfair to mulct applicant with the costs of this application in circumstances where the opposition thereto (perpetrated by Mr Muheua), was not authorised by or on behalf of applicant.


[82] A special costs order was sought by respondent in respect of the counter application. I am unable to conclude that proper grounds for such an order exist and I decline a special costs order.


D. THE ORDER GRANTED


In result, I make the following order:


[1] In respect of the main application of the National Union of Namibian Workers the point in limine raised by respondent concerning the absence of authority is upheld. The main application is dismissed. The rule nisi issued on 21 January 2006 is discharged.


[2] The costs of the aforesaid main application shall be paid by Mr Alpheus Venonga Muheua in his personal capacity on a scale as between party and party.


[3] The counter application succeeds and in terms thereof:


[3.1] The termination of the position of respondent as Acting Secretary General of the applicant on 14 December 2005 by applicant is declared null and void. Applicant is ordered to restore respondent in the position of Acting Secretary General with effect from 14 December 2005;


[3.2] The costs of this counter application shall be paid by Mr Alpheus Venonga Muheua in his personal capacity on the scale as between party and party.



______________________________

TÖTEMEYER, AJ















COUNSEL FOR APPLICANT: Mr G Hinda

Instructed by Ueitele & Hans Legal Practitioners


COUNSEL FOR RESPONDENT: Mr G B Coleman

Instructed by Hengari, Kangueehi & Kavendjii Inc.




Download