Court name
Labour Court Main Division
Case number
147 of 2013
Case name
Dr Matti Kimberg Practice v Mwafufya-Shikongo NO and Others
Media neutral citation
[2013] NALCMD 32
Judge
Hoff J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: LC 147/2013








In the matter between:








DR MATTI KIMBERG
PRACTICE
...............................................................APPLICANT



and



TUULIKKI
MWAFUFYA-SHIKONGO N.O.
.......................................
1ST
RESPONDENT



SUZETTE BOTES
.............................................................................2ND
RESPONDENT



PENDA L YAOTTO N.O.
..................................................................3RD
RESPONDENT



DEPUTY SHERIFF FOR THE
DISTRICT OF



WINDHOEK
.......................................................................................4TH
RESPONDENT













Neutral citation: Dr
Matti Kimberg Practice v Mwafufya-Shikongo N.O.
(LC 147/2013)
[2013] NALCMD 32 (04 October 2013)













Coram: HOFF J








Heard: 06
September 2013



Delivered: 27
September 2013



Reasons: 04 October
2013




















ORDER





The application is
dismissed.










JUDGMENT










HOFF J:








[1] The applicant
approached this court on 6 September 2013 for the following relief:








1.
Dispensing with the forms and service and compliance with the time
limits prescribed by the rules of this court, as far as may be
necessary, and condoning applicant’s failure to comply
therewith and directing that this matter be heard as one of urgency
as envisaged in Rule 6(24) of the Rules;








2.
Staying the execution of the order of this honourable court in case
number LC 17/2013 dated 25 January 2013, which order was made in
consequence to an award made by the first respondent on 30 November
2012 under case number CRWK 905-11, pending the outcome of appeal
proceedings to be instituted by the applicant within 5 court days of
this court’s order;








3.
Staying, in consequence to paragraph (2) above the writ of execution
issued by this court on 1 February 2013;








4.
Such further and/or alternative relief as the court may deem fit.’








This application was
opposed by the second respondent.








[2] Dr Matti Kimberg in
his founding affidavit in support of the application narrated the
sequence of events which necessitated approaching this court on an
urgent basis.



[3] It is common cause
that the second respondent was employed as a debtors/creditors
controller by the applicant. During a disciplinary hearing the second
respondent was dismissed by the applicant on 25 April 2011.








[4] The applicant in his
founding affidavit stated that on or about 27 October 2011 he
received a referral of dispute to conciliation or arbitration. This
document he forwarded to LJW Labour Practitioners CC for the
attention of Mr Williers in order to represent the applicant during
the conciliation and arbitration proceedings at the Office of the
Labour Commissioner. A conciliation hearing was set down for 16
November 2011. Dr Kimberg stated that due to numerous reasons
relating to inter alia a serious motor vehicle collision in
which both himself and his wife were involved which necessitated him
to undergo medical treatment in South Africa the conciliation
meetings were postponed at his behest on several occasions. On 1
August 2012 a conciliation meeting took place but was unsuccessful
and the dispute was referred for arbitration.








[5] Dr Kimberg stated
that as it was imperative for both himself and his wife to testify at
the arbitration hearing it was crucial that the matter be set down
for a date when both of them were in town and available. The
arbitration hearing was due to the unavailability of himself and his
wife postponed on several occasions. The matter was eventually set
down for 6 November 2012 and he instructed Mr Williers of ‘LJW’
to apply for a postponement as his wife was out of the country and he
himself was involved with patient treatment in hospitals in Windhoek.
A certain Mr Kellerman also employed by ‘LJW’ attended
the arbitration hearing, applied for a postponement but the
application for postponement was refused. Mr Kellermann then opted to
leave before the arbitration hearing commenced.








[6] On 30 November 2012
the first respondent granted an arbitration award under case number
CRWK 905/2011 in favour of the second respondent ordering the
applicant to pay the amount ofN$135 000 to the second respondent.








[7] The applicant in his
founding affidavit continued to state that he instructed ‘LJW’
to appeal the award so granted in favour of second respondent and he
was informed that instructions would have to be forwarded to a legal
practitioner.








[8] Mr Ruben Philander of
the law from Lorentz Angula Inc. was instructed on 12 December 2012
to draft an application ‘to stay the arbitration award’
and/or attend to the review thereof and/or to institute appeal
proceedings.








[9] On 17 December 2012 a
draft application for rescission with supporting affidavit was
forwarded to the offices of “LJW’. Due to the fact that
his practice was already closed they could not timeously depose to
the necessary affidavits. On 11 January 2013 Mr Williers addressed
e-mail correspondence to the instructed legal practitioner Mr Ruben
Philander indicating the necessity of also bringing a condonation
application.








[10] On 30 January 2013
applicant received a notice from the third respondent (a labour
inspector) to enforce the award granted in favour of second
respondent. Mr Williers was informed of this notice. In this notice
Dr Kimberg was informed inter alia to comply with the award
within a period of 10 days of receiving the letter failing which the
award would be enforced by means of execution proceedings. On 6
February 2013 Mr Williers forwarded the notice to Mr Philander asking
for instructions in that regard.








[11] On 7 March 2013 an
assistant Deputy Sheriff attended applicant’s practice
consulting rooms with a warrant of execution and attached certain
movable assets even though it was explained that none of the attached
assets belonged to the applicant. On 12 March 2013 Mr Williers
received e-mail correspondence from a candidate legal practitioner, a
certain Mr Quinton Hoaseb, employed by Lorentz Angula Inc. requesting
information from Dr Kimberg to enable them to finalise the
‘application’. The e-mail was forwarded to Mr Williers on
the same day. On 13 March 2013 the wife of Dr Kimberg, Dr Pedro
Kimberg replied to Mr Williers explaining that she would have to
peruse the file to obtain the required information. Mr Hoaseb was
likewise informed. Later the same day both Mr Williers and Mr Hoaseb
were provided with all the information requested.








[12] On 18 March 2013
another e-mail was received from Mr Hoaseb requesting, certain
documents. Dr Kimberg was further informed that the application was
‘complete’ but for the documents he then and there
requested. Those documents were forwarded to Mr Hoaseb on the same
day.



[13] On 23 March 2013
when no further communication was received from the offices of
Lorentz Angula Inc. Mr Williers addressed an e-mail to Mr Ruben
Philander in which Mr Philander was requested to urgently furnish a
‘progress report’.








[14] On 4 April 2013 an
e-mail was received from Mr Philander informing Dr Kimberg that he
has had telephone conversations with the Deputy Sheriff regarding an
auction of the attached movables which sale was scheduled to be held
on 6 April 2013. Dr Kimberg stated that he was informed by Mr
Philander that he ie, Mr Philander, was preparing an urgent
application to seek an order to stay the execution proceedings
pending the outcome of the application for the rescission of the
reward.








[15] On the same day the
wife of Dr Kimberg addressed a letter to Mr Philander informing him
that the Deputy Sheriff had threatened to remove the attached
moveable assets on 27 March 2013. She contacted Mr Williers who then
handled the matter further with Mr Philander’s offices.








[16] On 5 April 2013 Dr
Kimberg stated that he had been informed that Mr Philander had
reached an agreement with Ms Dausab of the Legal Aid Clinic, acting
on behalf of the second respondent, to postpone the sale in execution
and that the application to stay would proceed in the normal course.
Dr Kimberg stated that he was not aware that the application to stay
the execution ever did proceed in normal course.








[17] On 7 April 2013 a
copy of this agreement was received and the wife of Dr Kimberg
addressed a letter to Mr Williers stating that it was necessary to
discuss the further process in that regard.








[18] On 30 April 2013
Messrs Lorentz Angula received urgent correspondence from Ms Dausab
on behalf of second respondent informing that the Office of the
Labour Commissioner confirmed that no application for rescission was
filed and further informing them that the instructions from second
respondent were to have the Deputy Sheriff proceed with the sale in
execution.








[19] It appears that the
‘application’ had been served on the Labour Commissioner
Office on 1 February 2013.








[20] On 27 June 2013 Mr
Williers received e-mail correspondence from Mr Philander to follow
up on the rescission application.








[21] Dr Kimberg in his
founding affidavit then dealt with what is referred to as ‘recent
events’.








[22] On 17 July 2013 Mr
Williers received correspondence from the first respondent dated 16
July 2013 rejecting the application for rescission of the award
granted in favour of the second respondent.








[23] On 29 July 2013 Adv
Steve Rukoro acting on instructions of the second respondent,
addressed letters to Mr Philander and the messenger of court
instructing the messenger to proceed with the execution of the
arbitration award ‘soonest’.








[24] Dr Kimberg further
stated that as seemingly no progress was made in the matter and the
Deputy Sheriff attended his practice almost every day to remove the
attached assets his wife and himself decided to instruct another
legal practitioner to assist them and instructions were given to
Messrs Neves Legal Practitioners on or about the 19th day
of August 2013. He, ie Dr Kimberg, stated that he realized that the
matter could not go on like that and had to be dealt with urgently
especially as one of the attached moveable assets is a highly
specialized sonar machine which is worth in excess of N$1,000,000 and
may only be removed and handled by specialist technicians.








[25] Ms Wylie of Neves
Legal Practitioners immediately proceeded to address correspondence
to the Deputy Sherifff and to Ms Dausab in an attempt to stay the
pending sale in execution without having to bring an urgent
application.








[26] Ms Dausab eventually
responded on 22 August 203 informing Ms Wylie that the Legal Aid
Clinic was no longer representing the second respondent.








[27] Dr Kimberg stated
that as the second respondent could also not be reached he was left
with no alternative but to bring an application to stay the execution
proceedings. He explained that in support of such an application the
amount of N$135 000 has been paid into the trust account of Messrs
Neves Legal Practitioners and a bond of security was issued by Ms
Wylie and provided to the Deputy Sheriff. Dr Kimberg stated that he
also instructed Ms Wylie to attend to the necessary documents to note
his appeal against the award issued by the first respondent on 30
November 2012 as soon as possible.








[28] Mr Rukoro who
appeared on behalf of the second respondent pointed out that the
application was served only during the afternoon of 4 September 2013
on second respondent. It was also submitted that on the facts set out
in the founding affidavit no case for urgency was been made out.








[29] It was submitted by
Mr Rukoro that the moveable assets to be sold in execution had been
attached as early as 7 March 2013 almost 5 months earlier and that
since that date the applicant has not brought an application to stay,
has not noted an appeal against the award or has not instituted
review proceedings.








[30] Mr van Zyl who
appeared on behalf of the applicant submitted that the applicant only
came to know about the sale in execution at the end of August and
thereafter did not do nothing but attempted to get an agreement to
stay the sale in execution once again. It was submitted after the
application for rescission was refused by the arbitrator that there
was no date for the sale in execution and that it would have been
premature to bring an application to stay the sale in execution
because there would have been no imminent execution.








[31] Mr van Zyl further
submitted that even though there are dates and periods of time which
are not fully explained to the court in the founding affidavit, it
shows that the applicant had relied on its legal representatives to
take the necessary steps as he gave the necessary instructions to do
so. It was submitted that should this court find that there was
indeed remissness or inaction that it was not blameable conduct on
the part of the applicant.








[32] Rule 6(24) of the
Labour Court Rules provides that ‘in urgent applications the
court may dispense with the forms and service provided for in these
rules and may dispose of the matter at such time and place and in
accordance with such procedure (which must as far as practicable be
in terms of these rules) as it considers just and equitable in the
circumstances’.








[33] Rule 6(26) of the
Labour Court Rules provides that in ‘every affidavit filed in
support of an application brought under subrule (24), the applicant
must set forth explicitly –



(a) the circumstances
which he or she avers renders the matter urgent;



(b) the reasons why he or
she could not be afforded substantial redress at a hearing in due
course;








[34] An applicant must
comply with both these requirements set out in Rule 6(26)(a)
and (b). (See Salt and Another v Smith 1990 NR 87 HC,
1991 (2) SA 186 (Nm).








[35] In Bergmann v
Commercial Bank of Namibia Ltd and Another
2001 NR 48 (HC) it was
held that when an application is brought on the basis of urgency the
institution of proceedings should take place as soon as reasonably
possible after the cause thereof has arisen.








[36] It is trite law that
in application procedure all the essential averments must appear in
the founding affidavit and the court will not allow an applicant to
make or supplement his case or his replying affidavit. (See Coin
Security Namibia (Pty) Ltd v Jacobs and Another
1996 NR 279 (HC)
at 288A-B).








[37] The applicant
approached this court for an order staying the sale in execution
(which was due to take place the next day) pending the outcome of
appeal proceedings to be instituted by the applicant within 5 days of
this court’s order. The appeal to be instituted will be against
the award given in favour of the second respondent by the arbitrator
on 30 November 2012.








[38] It is evident from
the founding affidavit after the award was given in favour of the
second respondent, that the applicant gave instructions to the law
firm Lorentz Angula Inc. to draft an application to stay the
execution or to institute review ‘and/or’ appeal
proceedings.








[39] On 18 March 2013 the
applicant was informed by his legal representative (Mr Hoabeb of
Lorentz Angula Inc.) that the application was complete but for
certain documents which were requested and provided on the same date.








[40] It is apparent from
the founding affidavit that the applicant was able to avert a sale in
execution of movable assets due to take place on 6 April 2013 by
agreement between the parties. A condition was that the applicant
would proceed with an application to stay the sale in execution in
the normal course.








[41] The applicant in its
founding affidavits stated that he was not aware that the application
to stay the execution ever did proceed in the normal course. Why the
application to stay the execution did not proceed in the normal
course is not explained by the applicant at all.








[42] It is further common
cause that an application to the arbitrator to have the award
rescinded was rejected by the arbitrator and that Mr Williers was so
informed on 17 July 2013.








[43] The applicant stated
(in paragraph 53) that as seemingly no progress was made in the
matter and the Deputy Sheriff attended his practice almost every day
he decided to instruct another legal practitioner on or about 19
August 2013 since he realised that the matter had to be dealt with
urgently.








[44] Mr van Zyl submitted
that the first time the date of 7 September 2013 was mentioned as the
date on which the sale in execution was due to take place, was in a
letter dated 22 August 2013 addressed to the Deputy Sheriff by Neves
Legal Practitioners in which it was stated inter alia that the
application to stay the sale in execution ‘will be brought . .
. well in time before the next sale in execution scheduled for the
07th day of September 2013’.








[45] I agree that the
time an applicant first became aware of the date when a sale in
execution will proceed is a factor to consider in deciding whether or
not such an applicant has made out a case for urgency. However in my
view a court must decide the issue of urgency in view of the
circumstances of each application.








[46] Given the fact that
the applicant narrowly averted the sale in execution on 5 April 2013
on the understanding that the application to stay would proceed in
the normal course and that an ‘application’ had already
been completed during March 2013, the applicant is silent as to what
further steps had been taken by himself to prosecute such an
application to its natural conclusion. This court must accept, in
view of applicants statement that he was not aware that the
application to stay the execution ever did proceed, that no such
application was ever filed by the applicant.








[47] This court must also
accept, in the absence of applicant stating in the founding affidavit
when he was so informed by Mr Williers, that he must have been
informed on the 17th day of July 2013 or soon thereafter
that the rescission application was rejected by the arbitrator on 16
July 2013. The applicant stated that on 19 August 2013 instructions
were given to Messrs Neves Legal Practitioners as he realised that
the matter had to be dealt with urgently.








[48] The applicant failed
to inform this court what had transpired between 17 July 2013 and 19
August 2013 (a period of more than a month) when he realised the
matter had to be dealt with urgently. No explanation was given why
instructions were given only on 19 August 2013.








[49] In Bergmann
(supra) it was explained that it ‘often happens that, whilst
pleadings are being exchanged, or whilst execution procedures are
under way, the litigating parties attempt to negotiate a settlement
of their disputes or some arrangement regarding payment of the
judgment debt instalment. The existence of such negotiations does not
ipso facto suspend the further exchange of pleadings or stay
the execution proceedings. That will only be the effect if there is
an express or implied agreement between the parties to that effect’.








[50] On 5 April 2013 an
agreement to stay the sale in execution was reached between the
parties on a certain condition. That condition, as admitted by the
applicant, was never complied with. This inaction on the part of the
applicant resulted in the scheduling of the second sale in execution.
This time no agreement could be reached and in my view it cannot now
be argued because there was no imminent sale in execution at that
stage that there was no need for the applicant to bring an
application to stay the sale in execution.








[51] The cause of this
application has arisen, at the earliest already during December 2012
and at the latest on 17 July2013 or soon thereafter when the
rescission application was refused. In both instances applicant has
not as soon as reasonably possible acted, prior to launching this
application.








[52] In Bergmann
it was held that one of the ‘circumstances under which a court,
in the exercise of its judicial discretion may decline to condone
non-compliance with the prescribed forms and service, notwithstanding
the apparent urgency of the application, is when the applicant, who
is seeking the indulgence, has created the urgency either mala
fides
or through his or her culpable remissness or inaction’.








[53] I can comprehend
that the applicant who has a busy medical practice would seek the
assistance of a labour consultant in dealing with labour related
queries or disciplinary proceedings however there comes a stage
beyond which a litigant may not hide behind the conduct of his or her
legal representative.








[54] In Immelmann v
Loubser en ‘n Ander
1974 (3) SA 816 (A) at 824A-B the
Appellate Division referred with approval to the case of Saloojee
and Another, NNO v Minister of Community Development
1965 (2) SA
135 (A) where Steyn CJ stated the following at 141C-E:








I
should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if the blame
lies with the attorney. There is a limit beyond which a litigant
cannot escape the results of his attorney’s lack of diligence
or the insufficiency of the explanation tendered. To hold otherwise
might have a disastrous effect upon the observance of the Rules of
this Court. Considerations ad
misericordiam
should not be allowed to become an invitation to laxity. In fact this
Court has lately been burdened with the failure to comply with the
Rules of this Court was due to neglect on the part of the attorney.
The attorney, after all, is the representative whom the litigant has
chosen for himself, and there is little reason why, in respect to
condonation of a failure to comply with a Rule of Court, the litigant
should be absolved from the normal consequences of such a
relationship, no matter what the circumstances of the failure are’.



(See
also
PE Bosman Transport Works Committee and
Others v Piet Bosman Transport (Pty) Ltd
1980
(4) SA 794 (AD) at 799F;
Namhila v Johannes
case no. I 3301/2011 unreported judgment of this court
delivered on 25 January 2013 at paras [94] - [96].








[55] Even though the
afore-mentioned quotation relates to an instance where there was
non-compliance with the Rules of Court, in my view it is of equal
application in the present matter where lack of diligence or inaction
is blamed (albeit impliedly) on someone else, ie either on Mr
Williers of the law firm Lorentz Angula Inc.








[56] In my view the
applicant cannot, in view of his personal knowledge of lack of
progress referred to (supra) be said to be blameless in respect of
bringing this application on an urgent basis, an urgency which in my
view has been self-created.








[57] In these
circumstances, ie due to the failure by applicant to show that this
court should exercise its discretion in favour of hearing this
application as one of urgency, the application was dismissed, and no
cost order made.








[58] Although other
points in limine were raised by the second respondent I do not deem
it necessary to consider them in view of my finding on the issue of
urgency.






































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



E P B HOFF



Judge























APPEARANCES













APPLICANT: C van Zyl



Instructed by Neves Legal
Practitioners, Windhoek













SECOND RESPONDENT: S
Rukoro



Instructed by Directorate
of Legal Aid, Windhoek