CASE NO.: LCA
IN THE HIGH COURT OF NAMIBIA
In the matter between:
MATHEWS ROELOF VAN OUERKERK
HANGANA SEA FOOD (PTY) LTD
Heard on: 27 March 2009
Delivered: 08 July 2009
MANYARARA, AJ.:  This
is an appeal against the judgment of the Chairman of the Windhoek
District Labour Court dismissing the appellant’s claim of
unfair dismissal in respect of which the appellant claimed the
following relief –
damages in an amount to be
determined by the court; and
payment of salary for the
period of 01 May 2005 to 31 October 2006.
 The appellant did not
pursue his claim for reinstatement in the District Labour Court and
does not pursue such claim in this appeal.
 The respondent opposed the
relief claimed by the appellant on the grounds that –
1. The appellant had been
employed on a contract for a fixed term commencing on 1 November 2003
and terminating on 31 October 2004;
Subsequent to the termination
of the contract, the appellant had been employed on a month to month
basis without a written contract while the respondent considered the
possible extension or renewal of the expired contract; and
On 1 March 2005, while the
appellant was so employed, he was informed by the respondent that no
further or new contract would be entered into with him and he was
given two months’ notice with full pay of termination of his
employment expiring on 30 April 2005.
The respondent further pleaded
that, in the event that the court upheld the appellant’s claim,
account should be taken of the fact that the appellant entered into
the employment of another employer during May 2005 and put the
appellant to proof of the damages he claimed.
 As the cause of the
complaint was unfair dismissal, the onus rested on the respondent to
prove the contrary and the respondent called Verdun Van der Walt, its
commercial manager, to testify.
 The witness confirmed the
contents the written contract of employment, Exhibit A, and that the
document was signed by the appellant personally and by Jacobus Du
Plessis in his capacity as the respondent’s general manager.
The witness told the court that as the appellant came from the
Netherlands, also popularly called Holland, he required a work
permit. The record of the evidence continues as follows:
“Q. What happened
when the termination date approached?
Before the end of October
2004 we had to apply for a work permit. Not sure if we still needed
Ouwerkerk’s services. August is when we began to consider his
Q. What was the background?
A. We were in discussions
because of the economic situation and need to reduce costs. Looking
at ways he cut costs (sic). This was from end of 2003. Company
under pressure for survival. After end of Ouwerkerk’s contract
we were in the same position.
Q. Was Ouwerkerk asked to
stay on? Was he promised a new contract?
A. There was agreement to
extend his contract on a month to month basis.
Q. Any discussions of terms
of the contract, if it would be renewed?
A. In one meeting it was
discussed that maybe the conditions would be the same. Discussing
the possibility of outsourcing. I do not recall discussing with him.
He was present…
Q. At meetings was it
indicated that he was offered a further contract?
Q. For how long was (he) in
employ(ment) without (a) written contract.
A. November 2004 to
 As already mentioned, it
was on 1 March 2005 that the appellant was handed a letter giving him
two months’ notice on full pay of termination of his employment
on 30 April 2005.
 Van der Walt was shown the
letter of dismissal which he said was handed to the appellant
although the witness said that he was not involved in the discussion.
The document, Exhibit B, is dated 1 March 2005 and directed to the
appellant by the respondent’s Financial Director, W.
Schuckmann, in the following terms:
The Company is unfortunately
not in the position to extend or renew your contract of employment
any longer. You are herewith given 2 (two) months notice of
termination of your services.
We would like to thank you
for your services that you have offered to Hangana over the past
By then, Du Plessis’s
services had been “terminated.”
 The appellant’s
attorneys replied to the respondent’s letter by letter dated 11
March 2005, Exhibit C, as follows:
“We act on the
instructions of MR VAN OUWERKERK.
Our client has handed to us
for attention and reply your letter of termination dated 1 March
2005. Our client does not accept your notice of termination.
Our instructions are that
during September 2004 our client entered into a new fixed term
contract of employment with you for a period of 24 months, commencing
November 2004, such contract being based on the terms and conditions
set out in the original contract of employment entered into between
our client and you during November 2003.
Our client is not prepared
to nor does he accept your notice of termination dated 1 March 2005.
Our client tenders his services against payment for the period
contracted for and holds you liable for any damages he may suffer as
a result of your breach or repudiation of the original agreement
 The respondent’s
attorneys replied to the above letter on 1 April 2005, Exhibit E, as
“Your letters dated
March 2005 and subsequent letter dated 22nd
March 2005 bear reference.
Our client denies having
entered into a new contract of employment with your client – In
fact our client never made any concession that could lead your client
to believe that his contract of employment was extended for any
period other than a month at a time.
Our instructions are to
inform you, which we hereby do, that your client was kept in our
client’s employment on a month to month basis, once the written
contract of employment lapsed on the 31st
Any action forthcoming will
be defended at all costs.”
 The respondent also
addressed a letter to the appellant requesting him to return the
company’s car and cell phone. The appellant initially resisted
but he eventually relented and returned the car in exchange for a
letter from the respondent’s managing director, dated 18 May
2005, Exhibit H, stating that the respondent no longer required the
appellant’s services and he was free to seek employment by
another company. The appellant in fact took up employment with
Cadilu Fishing Company at the end of May 2005. Accordingly, the month
of May 2005 was the only period during which the appellant was
 In cross examination, Van
der Walt stated that he was not involved in the negotiations leading
to the appellant’s employment; these were conducted by Du
Plessis and Hans Werne Truke. He also did not know whether the
promise of 3 years’ employment was part of the negotiations.
In reply to a direct question whether he disputed that on 31 October
2004 Du Plessis said to the appellant, “Don’t
worry you will be further employ(ed) for 2 years,”
Van der Walt replied, “That
would be against what happened in meetings. Can’t dispute
because I was not present.”
 Another question put to
Van der Walt was why Du Plessis, by letter dated 29 September 2004
requested the Ministry of Home Affairs for extension of the
appellant’s work permit for another 16 months. He replied that
Du Plessis as the managing director would have had authority to do
so, adding, “but
the terms of the contract can be different”
and that it would be “irresponsible” to appoint a person
without any contract.
 Van der Walt agreed that
the respondent paid the appellant’s cost of coming to Namibia;
however, the question of the cost of his relocation back home would
have been recorded in the agreement but it was not recorded.
 In re-examination, Van der
Walt said that any promises that Du Plessis may have made to the
appellant of employment for a minimum period of three years were not
mentioned at the meetings he attended.
That was the respondent’s
 The appellant gave
evidence in support of his claim. He testified that Du Plessis
approached him in Holland with the offer of employment by the
respondent and they agreed on a time period of 3 years, salary and
benefits and that the respondent would be responsible for bringing
him, his family and property to Namibia and relocation of the same to
Holland at the end of the period of his employment. The terms of the
contract were finalized by fax and email and he came to Namibia and
worked on the strength of the promises made to him by Du Plessis.
Before 31 October 2004, Du Plessis told him that the contract would
be extended for another two years to add up to three years.
 After Du Plessis left the
respondent, Uys and Schuckmann called the appellant to their office,
handed him the letter of termination of his services and paid his
salary for March and April 2005. The appellant said that he
protested the termination; he also told Uys and Schuckmann of the
arrangements agreed with Du Plessis for his relocation to Holland and
they denied knowledge of such an agreement and “put me on the
streets in a strange country.”
 Asked what he did to
mitigate damages, the appellant replied that he took a job with
another fishing company, Cadilu, which was arranged by Du Plessis who
had by then left the respondent. However, there was a problem with
his work permit and he struck a deal with the respondent already
described to hand back the company car and other property in return
for the respondent’s consent for him to work for another
company, to which the respondent consented.
 The appellant contends
that, according to the promise made to him by Du Plessis of a three
year contract, his employment would have terminated on 31 October
2006. In the circumstances, he had not received any income from 1
January 2006 to 31 October 2006, to which should be added his loss of
income at the rate of N$30 000.00 per month from 1 November 2006
until finalization of this matter. A travel agent had estimated the
cost of his return to Holland to be 3 times N$5,652.00 for plane
tickets (“by the shortest route”) and about N$40 000.00
for his personal belongings.
 In cross examination, the
appellant admitted that he signed Exhibit A, the written contract;
that the document makes no reference to a further period of two years
and contains a clause prohibiting variation of or addition to the
contract unless such variation or addition is reduced to writing and
signed by the parties.
 Jacobus Du Plessis
testified on the appellant’s behalf. It was he who as the
respondent’s managing director negotiated the conditions of the
appellant’s employment and he confirmed the appellant’s
evidence in all material respects.
“I told him it would
be three years subject
to work permit,”
he said (Emphasis provided), plus the cost of bringing his family and
furniture to Namibia. However, the terms of his oral agreement with
the appellant were never reduced to writing. He confirmed that the
written agreement, Exhibit A, was signed by him and, according to
him, the document was intended to cover the period of the appellant’s
work permit, adding that the purpose of his letter of 29 September
2007 to the Ministry of Home Affairs was to obtain renewal of the
work permit and that, although there was still “a period of
more than 2 years” of the appellant’s employment, he had
requested extension for 16 months only for two reasons –
firstly, for the appellant “to bring” his potential
successor up “to standard” and, secondly, because it was
difficult at the time to get a work permit for longer than 12 months.
 However, Du Plessis did
not explain why, in the circumstances, he had requested extension for
a period which was 4 months longer than either the date to which it
was suggested that the appellant’s period had been verbally
extended or renewed and also that much longer than the period he
suggested that the Ministry was prepared to entertain applications
for work permits.
Du Plessis also said that there
was discussion with the appellant for a work permit “with the
same conditions as before” and that the “new contract”
would be drawn up when a fresh work permit had been issued. However,
Du Plessis left the respondent’s employment over certain
undisclosed “differences with the Group Chairman as to failure
of Hangana” before the proposed contract was drawn up. There
is no record of the discussions pertaining to the alleged new
 Part of the record of
cross examination reads as follows:
“Q: Duration 1
November 2003 to 31 October 2004. Nothing about 3 years period?
A: Yes this is one contract
to cover part of the period and relates to the work permit.
Q: You are Managing
Director. Enter agreement on behalf of Company. Now say there is
oral agreement not confirmed in writing?
A: What is the problem with
Q: It contradicts written
A: Not at all. Written
document covers first period of employment. Application would be
made for another work permit and contract would go on. Why apply for
work permit if no intention to go on.
Q: Clause 15 no variations
unless------------where is it in writing that pay repatriation
re-employed – after end renewal?
A I answered it. This
contract is part of execution of a 3 years agreement. Apart from
that the renewal clause is an omission. Never intended to
repatriation at end of first contract but at end of 3 years.
Q: Agreement was drafted
and entered into?
A: This is for a 1 year
period to cover work permit. If work permit is renewed it would be
extended I left Hangana before this was done….
Q: Put to you that
application to Ministry don’t say what you are stating in
Court. You could have said?.......
A: That would have been
lying. Initial permit 12 months. Expectation was work permit issued
12 months at a time. Situation in Hangana volatile and fluid because
of Fishing Industry and bankruptcy of two large companies.
A: Nothing was cast in
concrete but Mr. Van Ouwerkerk was fixed.
Q: Nothing cast in concrete
that is why provision made for termination on notice in contract?
A: Yes that is a standard
Q: Did you ever put on
record in writing the fact of this alleged 3 years agreement?
A: When he was employed
this was discussed. It was not incumbent on me to tell them our……
Q: Did you say in writing?
A: No. Many agreements
entered into on handshake….
Q: Having entered 3 years
agreement. What if work permit not granted?
A: He would return to
Q: Complainant bound to pay
salary 3 years?
A: Probably not.
Q: After 1 year if not
A: Would discuss
Q: After 1 year Respondent
was bound for 3 years?
Q: Termination of 1 year,
application for work permit not approved would Respondent have to pay
A: There would be as
discussion on how to sever.”
It is on the evidence set out
above that the Chairman found as follows:
“Accordingly the Court
finds as follows:
The Complainant was
employed by the Respondent by virtue of a written agreement for a
fixed term from November 2003 until 31 October 2004. Thereafter the
Complainant was offered an extended contract to coincide with a work
permit to be obtained for a further twelve months to 31 October
2005. Complainant was thus in the employment of the Respondent, in
March 2005, when he was served with a termination letter.
The Respondent tendered no
evidence that the dismissal was fair. Accordingly this Court finds
that the Complainant was unlawfully dismissed from employment.
Evidence showed that
Complainant was employed by Cadilu Fishing from the end of May 2005
to December 2005 and received remuneration from Respondent until 30
April 2005. Thus the only losses he suffered for the period of the
later unwritten contract would be one month’s loss of
remuneration for the Month of May 2005.
The Court accordingly finds
for the Complainant in the sum of N$30 000.00 representing one
month’s loss of remuneration.
There is no order as to
 An appeal against the
judgment was noted and the appeal is opposed. It is alleged in the
grounds of appeal that the learned Chairperson “erred on the
facts and in law” in various respects and the first ground of
appeal alleges that the Chairperson erred in finding that the
appellant was not employed in terms of a three year agreement or,
alternatively, that the initial agreement was not renewed or
 It is convenient to deal
with the argument on this ground advanced by Mr. Van Vuuren who
represents the appellant as also covering the fifth ground of appeal
that the Chairperson erred in not ordering the respondent to effect
payment of the appellant’s repatriation costs as well as the
seventh ground of appeal that the Chairman also erred in not ordering
payment of the loss of income to cover the alleged three year
duration of the employment agreement agreed between Du Plessis and
the appellant. All three grounds of appeal referred to are founded
on Du Plessis’s evidence that he negotiated and agreed with the
appellant that the contract of employment would be for a three year
period on a salary of N$30 000.00 per month plus payment of the costs
of transporting him and his family and belongings to and from
 The written contract was
produced as Exhibit “A”. The relevant clauses are these:
DATE AND POSITION
The employee shall be
Position : Consultant:
Company : Hangana Seafood
Place : Walvis Bay
Date of commencement of
the agreement: 1 November 2003
Date of termination of this
agreement: 31 October 2004. Subject to renewal of work.
The parties agree that this
agreement is for a defined period of time only and shall
automatically come to an end on (date of termination).
The employee’s monthly
remuneration package shall amount to N$30 000.00pm nett of tax. The
remuneration package includes the company’s contributions to
the medical aid and social security which may vary in accordance with
such fund’s provisions from time to time.”
(Based on a 5-day week)
The employee is entitled to
1.83 days paid leave per month.
The engagement is subject to
a period of probation of 3 (THREE) months. During this period, the
Employee shall be on temporary staff only and at any time within the
period his/her employment may be terminated by one month’s
During the contract period,
after the probation period has been completed the notice period
comprises two full calendar months:
Notice in writing shall be
given on or before the first working day of the specific month from
either side. Furthermore, notice periods may be amended by mutual
agreement. In the event that the employee is found guilty of
conduct, which is regarded by management as being inconsistent with
the position he holds or if he/she commits a criminal act or an act
of gross negligence, the termination may be without notice or payment
in lieu of notice.
VARIATION TO CONTRACT
No variations or additions
to this contract are valid unless given in writing and signed by both
It will be noted that the
written agreement is silent on the appellant’s transportation
to and from Namibia.
 The norm is for parties to
negotiate and agree the terms of a proposed contract verbally and
then reduce the verbal agreement to writing and it is a trite
principle of the law of contract that parol
evidence cannot be introduced to vary the written agreement. See
Kerr: The Principles
of the Law of Contract
ed p348. In casu
it is common cause that the written contract does not contain any of
the additional terms alleged by the appellant and his witness.
Therefore, these additional terms should be disregarded.
 The fact that the
respondent actually paid the cost of transporting the appellant to
Namibia also does not complement the verbal agreement as the
appellant seemed to believe: the payment is explicable on the basis
that it was within Du Plessi’s power as the respondent’s
general manager to arrange such payment. Neither does payment of a
salary which happened to coincide with the figure mentioned by Du
Plessis to the appellant somehow translate into fulfilment of the
verbal agreement. The submission is merely clutching at a straw.
The contract concluded by the parties is the contract recorded in
Exhibit “A” - for a fixed period of one year commencing
on 1 November 2003 and terminating on 31 October 2004 on the terms
and conditions recorded therein. Hence the first, fifth and seventh
grounds of appeal must fail and these are dismissed.
 It is alleged in the
second ground of appeal that the Chairperson erred in finding that
the only loss suffered by the appellant was for the period of May
2005 only, instead of the whole of the remaining two years of the
alleged three year duration of the contract.
 The Chairperson based his
finding to the contrary on evidence which he accepted that, upon the
expiry of the appellant’s one year agreement and his admittedly
unfair dismissal from the respondent’s employment, the
appellant was unemployed for only the month of May 2005 before he
entered into employment with Cadilu Fishing. In the circumstances,
the salary he would have received from the respondent was N$30
000.00, representing the monthly salary paid to him before he took up
employment with Cadilu Fishing. No reason was advanced why the
appellant should have been paid more than that other than on the
basis rejected by the Chairman that his contract was for a period of
three years until 31 October 2006.
 The same reasoning
disposed of the eighth ground of appeal, alleging that the Chairman
erred in not ordering the respondent to effect payment to the
appellant for loss of income for the duration of the rejected
contention that the agreement was for a three year period. In my
view, the Chairman’s finding accords with section 46(1)(a)(iii)
of the Labour Act 6 of 1992 on which the appellant relied. The
section provides that, if a district labour court is satisfied that
an employee has been dismissed unfairly, it may order the employer
“to pay, whether or not such an employee is re-instated or
re-employed, to such an employee an amount equal to any losses
suffered by such an employee in consequence of such dismissal or
an amount which would have been paid to him or her had he or she not
been so dismissed.”
(The emphasis is mine).
 See also LAWSA which
states that (in the above circumstances) an employee “is
entitled to the wages he would have earned minus any amount which he
earned elsewhere or with reasonable diligence could have earned if
these wages are less than his previous wage or his pro
rata wages until he
was employed again.” Vol 13 par 191.
 For the reasons canvassed
above, I do not see any error of fact or law in the manner in which
the Chairman arrived at the award he made.
 However, the Chairman
conceded the third ground of appeal, that he was not entitled to
dismiss the claim for leave pay because it was not claimed in the
Rule 3 complaint. However, the Chairman stated that his finding
would not have been different anyway.
 This finding also disposes
of the fourth ground of appeal, alleging that the Chairperson erred
in finding that the allegation of non payment, with specific
reference to leave pay, was not put to the respondent’s
witnesses in cross examination as well as the sixth ground alleging
non payment of the appellant’s “accrued leave pay.”
The Chairman’s finding was also based on the rejected claim
that the employment agreement was for a period of three years.”
 However, it was not
disputed that, in terms of the written contract, the appellant was
entitled to 10 days’ worth leave pay. In fairness, it was
testified on the respondent’s behalf that it was assumed that
the appellant had been paid, which was not the case. It follows that
the relevant order must be amended accordingly. The rest of the
appellant’s argument must fail and is dismissed.
 It follows that there is
no merit in any of the grounds of appeal. Accordingly, the following
order is made:
The finding of the Chairman of
the District Labour Court rejecting the claim for leave pay is set
aside and substituted with the order that the claimant shall be paid
10 years’ leave pay calculated in terms of Clause 5 of the
Contract of Employment.
The rest of the appeal is
dismissed with no order for costs.
ON BEHALF OF THE APPELLANT
Adv. Van Vuuren
Erasmus & Associates
ON BEHALF OF THE RESPONDENT
MB De Klerk &