Court name
Labour Court
Case number
15 of 2009
Case name
Hardap Regional Council v Sankwasa and Another
Media neutral citation
[2009] NALC 4













CASE NO.: LC 15/2009









SUMMARY
REPORTABLE












IN THE LABOUR COURT OF NAMIBIA







HARDAP REGIONAL COUNCIL



v



SANKWASA JAMES SANKWASA AND ANOTHER







Heard on: 2009 May 18



Delivered on: 2009 May 28






PARKER, J







Practice - Applications and motions – Urgent
application – Requirements for – Principles and factors developed
by the Courts not to be applied mechanically and inflexibly but in
relation to facts and circumstances of the particular case so as to
avoid divesting the Court of its discretion.




Practice - Applications and motions – Urgent
application – Application for stay of execution – Court finding
by its very nature application for stay of execution qualifies as
urgent matter to be brought and heard on urgent basis unless
execution is not reasonably imminent or unless blameable conduct of
applicant renders it otherwise.











Practice - Applications and motions – Award –
Application for stay of execution of arbitral award, pending
finalization of appeal – Factors the Court ought to take into
consideration.







Labour Law - Statute – s 89 of the Labour Act,
2009 (Act No. 11 of 2009) – Noting of appeal against arbitral
award, pending finalization of appeal against award in terms of –
Interpretation and application of statutory provision – Court
finding balance of irreparable harm of applicant (employer) and
respondent (employee) lying clearly in favour of applicant.







Held, Court may refuse application to stay
execution of award, pending finalization of appeal, if satisfied
appeal is frivolous or vexatious or appeal has not been brought with
the bona fide intention to test correctness of award but for some
indirect purpose.







Held further, where Court is satisfied appeal has
been brought with bona fide intention to seek reversal of award, the
Court must examine potentiality of irreparable harm to the applicant
and respondent, respectively, and find where the balance lies.







Held further, The s 89 (8) (of Act No. 11
of 2009) requirement that Court must find where the balance of
irreparable harm of employer and employee lies does not replace the
common law; it embraces it.



















REPORTABLE



CASE NO.: LC 15/2009



IN THE LABOUR COURT OF NAMIBIA



In the matter between







HARDAP REGIONAL COUNCIL APPLICANT



and


SANKWASA
JAMES SANKWASA 1
ST
RESPONDENT



PHILIP A MWANDINGI N.O. [ARBITRATOR] 2ND
RESPONDENT











CORAM: PARKER, J



Heard on: 2009 May 18



Delivered on: 2009 May 28







JUDGMENT:



PARKER, J.:



[1] In this matter application has been brought on
notice motion in which the applicant, represented by Mr. Namandje,
has moved the Court for an order in the following terms:







(1) Dispensing with the form and
service and compliance with the time limits prescribed by the rules
of this Honourable 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 (1) of the
rules.



(2) Ordering the stay of the
execution and operation of the Second Respondent’s award as
appearing in annexure “HR C2” under case no: SRMA 10/2009,
pending the finalization of the applicant’s appeal against the
award.



(3) Respondent to pay the costs
of this application but only in the event of it being opposed.



(4) Such further and/or
alternative relief as this Honourable court should deem fit.







[2] The 1st respondent, represented by Mr.
Mueller, opposes the application. There is no appearance by the 2nd
respondent; neither had he signified his intention to oppose the
application. In any case, no relief is sought from the 2nd
respondent.







[3] In his opposing affidavit, the 1st
respondent appears to raise an issue as to the authority of Ms
Katrina Hanse Himarua, Governor of the applicant, to depose to the
founding affidavit and to bring the application on the applicant’s
behalf. No formal preliminary objection appears on the papers filed
of record; however, Mr. Namandje argued the point because, according
to him, Mr. Mueller had forewarned him that he would press the point
in his argument. In his argument, Mr. Namandje submitted that the
objection has no merit. Be that as it may, Mr. Mueller did not raise
the point in limine in his argument. That being the case, I proceed
to deal with the merits of the case.







[4] I now consider the issue of urgency. Mr. Namandje
submitted that the matter should be heard on urgent basis mainly
because, by its very nature, an application for stay of execution of
an order or judgment or award (as is in the instant case) pending the
finalization of an appeal against such order or judgment or award
ought to be brought and heard on urgent basis. Based on this
premise, counsel argued that if the present application to stay
execution of the arbitral award pending the finalization of the
applicant’s appeal against the award was heard in the ordinary
course, by the time the appeal was finalized execution would have
already taken place rendering the hearing of any such application in
due course otiose and worthless; in other words, the applicant would
not be able to secure the appropriate relief by bringing an
application in due course. I accept that by its very nature
application for stay of execution is an urgent matter to be brought
and heard on urgent basis; but with this qualification, that is,
provided, for example, execution is reasonably imminent and the
applicant is not guilty of any blameable conduct in not bringing the
application timeously. Accordingly, I think counsel’s argument has
merit (1) because execution of the award would be a final act, and
not reversible as a matter of course, (2) because in the instant case
it cannot be said that there has been an undue delay in bringing the
application and that the urgency is self-created, and (3) because
papers were served on the respondents timeously giving the 2nd
respondent ample time to file opposing affidavit and to be
represented by counsel at the hearing.







[5] In his opposing argument, Mr. Mueller sought to rely
on rule 6 (23) of the Labour Court Rules made in terms of the
repealed Labour Act, 1992 (Act No. 6 of 1992) and discussed in
Namibia Food and Allied Workers Union v Cadilu Fishing (Pty) Ltd
2005 NR 113 (LC). Counsel’s attention was drawn to the fact that
those rules had been repealed and replaced by the Labour Court Rules
made in terms of the Labour Act 2007 (Act No. 11 of 2007) (the Labour
Act) which Rules came into operation on 15 January 2009. For this
reason, counsel wisely, in my view, abandoned his reliance on the
repealed rules and the decision in Cadilu Fishing (Pty) Ltd
supra which is based on the repealed Rules.







[6] It is my view that what Mr. Namandje submitted
constitutes acceptable circumstances on which the applicant relies to
render the matter urgent and a good reason why the applicant claims
it cannot be afforded substantial relief at a hearing in due course.
Additionally, in my opinion, as I have already mentioned, the urgency
is not self-created (See Mweb Namibia (Pty) Ltd v Telecom Namibia
Limited and others
Case No.: [P] A 91/2007 (Unreported).)
Furthermore, as I observed in Johan Abraham Grobler Du Plessis and
Another v Hulda Charmaine Ochurub and Another
Case No.: A251/2008
(Unreported), in determining whether the requirements of urgency have
been met, a Court ought to take into account the principles and
factors developed by the Court, but the Court should not fetter the
exercise of its discretion by applying those principles and factors
inflexibly and mechanically: each case must be decided on its own
facts. In the instant case, the arbitrator’s award was delivered
on 8 April 2009. The award does not say in specific terms the time
limit within which the applicant must comply with the award. On that
ground I accept the applicant’s contention that the award is of
immediate effect, and so the reasonable thing for the applicant to do
is to bring this application on urgent basis.







[7] For the foregoing reasoning and conclusions and
having considered the facts of the instant case, I come to the
conclusion that a case has been made out for the hearing of the
application on urgent basis; and so, I exercise my discretion in
favour of the applicant’s position that the application is an
urgent one. This conclusion disposes of prayer (1) in the
applicant’s Notice of Motion.







[8] I now proceed to consider whether the applicant has
made out a case for the grant of the order in prayer (2). In this
regard, the following is the statutory provision on the point under
consideration, and I must point out that the statutory provision does
not replace the common law; it embraces it. Section 89 of the Labour
Act provides:








  1. When considering an application
    in terms of subsection (7), the Labour Court must –




(a) consider any irreparable
harm that would result to the employee and employer respectively if
the award, or any part of it, were suspended, or were not suspended;







(b) if the balance of
irreparable harm favours neither the employer nor employee
conclusively, determine the matter in favour of the employee







[9] It was held in Wood NO v Edwards & Another
1966 (3) SA 443 (R) that where no question of irreparable harm arises
from execution, the question whether execution should be ordered will
depend on whether there are reasonable prospects of success on
appeal; but if the entire object of the appeal would be nugatory if
execution were to proceed, the Court has no right to deal with the
matter on the basis of whether there are reasonable prospects of
success on appeal. It would then be that the question before the
Court “must be resolved on the respective potentiality for
irreparable harm or prejudice being sustained by the applicant and
the respondent respectively.” (Tuckers Land and Development
Corporation v Soja
1980 (1) SA 691 (W) at 696E-F) This
proposition is predicated on “the purpose of the (common law) rule
as to the suspension of a judgment on a noting of an appeal is to
prevent irreparable damage from being done to the intending appellant
…” (Soja supra at 696G, approving South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd

1977 (3) SA 534 (A) at 545B-C)







[10] Indeed, it is this basis on which the common-law
rule is founded that has been confirmed by s 89 (8) of the Labour
Act. Thus, s 89 (8) of the Labour Act does not replace the common
law; it embraces it, save that the purpose of the common-law rule is
statutorily loaded in favour of an employee in terms of s 89 (8) (b)
of the Labour Act. On the basis of the purpose of the aforementioned
common-law rule, where there is a potentiality of irreparable harm to
the respondent then one must examine the potentiality of irreparable
harm to the applicant and find where the balance lies. (See Soja
supra at 696H.) This proposition is buttressed by paragraph (a) of s
89 (8) of the Labour Act, but according to paragraph (b) thereof, “if
the balance of irreparable harm favours neither the employer nor
employee conclusively, determine the matter in favour of the
employee.” In the instant case, the applicant is the employer, and
the 1st respondent is the employee.







[11] It has been said (Van Winsen et al.,
Herbstein & Van Winsen, The Civil Practice of the Supreme
Court of South Africa
4ed (1997): p895) that another relevant
factor which the Court must consider in the exercise of its
discretion as to whether to grant or refuse the application is to
determine whether the appeal is frivolous or vexatious or that the
appeal has been noted not with a genuine intention of seeking to
reverse the judgment or order or award but for some indirect purpose,
e.g. as “a delaying tactic and as a means of staving off the evil
day (Wood, N.O. v Edwards and another supra at 446E).” The
raison d’ētre of this proposition, as I see it, is that
“this Court ought to see that the appeal, if successful, is not
nugatory.” (Wilson v Church (1879) 12 Ch 454 at 458, cited
with approval by Lewis, J in Wood, N.O. supra at 446E”







[12] From the relevant facts of the instant case, I have
no good reason to find that the applicant’s appeal is frivolous or
vexatious or that it has been noted not with a genuine intention of
seeking to reverse the award but for some indirect purpose. I,
therefore, now proceed to consider the potentiality for irreparable
harm to the applicant and the respondent, respectively.







[13] The pith and marrow of the dispute between the
applicant and the respondent that was the subject of the reference to
the 2nd respondent in the arbitral proceedings is
primarily whether the 1st respondent was dismissed
unfairly by the applicant before the expiration of the 1st
respondent’s fixed-term contract of five years’ duration with the
applicant. In this regard, according to the 1st
respondent, he had a remainder of nine months to serve in his
employment in terms of his five-year fixed-term contract of
employment with the applicant, commencing 11 August 2004 when he
assumed duty, and therefore the term was due to expire on 10 August
2009. The applicant’s opposite position is that although the 1st
respondent assumed duty on 11 August 2004, at the request of the 1st
respondent which the applicant accepted, the 1st
respondent’s term of the five-year fixed-term contract commenced on
1st November 2003 and expired by effluxion of time in
October 2008, because his assumption of duty was backdated to 1st
November 2003 at the insistence of the 1st respondent
which the applicant agreed to, as I have already said.







[14] According to the applicant, the basis of its
contention is the following. In a recommendation by the Public
Service Commission (PSC) dated 3 October 2003, the PSC recommended to
the applicant to appoint the applicant to the post of Chief Regional
Officer of the applicant for a fixed term (of five years) in terms of
the Regional Councils Act (Act No. 22 of 1992) “with effect from
his (the 1st respondent’s) date of assumption of duty.”
Owing to “organizational and technical impediment”, the
applicant could not implement the PSC’s recommendation immediately.
The 1st respondent was only given a letter of
appointment, dated 6 August 2004. Subsequent to that letter, the 1st
respondent assumed duty on 11 August 2004, making the date of
commencement date of the fixed-term contract of five years to be 1
August 2004. The 1st respondent was not happy with the
fact that the applicant took the commencement date of his five-year
fixed term contract as 11 August 2004. In the 1st
respondent’s view, if the applicant had acted promptly on the PCS’s
recommendation, he would have assumed duty on 1st November
2003. The 1st respondent backed up his view and demand
with legal advice he had received from a Windhoek firm of legal
practitioners. The relevant parts of the advice read:









(4) As a
consequence of what is stated above, the recommendation by the
Commission became effective on the date it was made, which I presume
to have been the 3
rd
of October 2003.







I am thus of the
opinion that in the light of the information forwarded to me, that
the decision by the Public Service Commission of 3
rd
October 2003 must be implemented as from that date, subject to what
has been stated above.







[15] The long and short of the legal advice given by the
legal practitioners was that the commencement of the 1st
respondent’s five-year fixed-term contract should be the
aforementioned 3 October 2003 because, according to the legal
practitioners, “the decision by the Public Service Commission of
the 3rd October 2003 must be implemented as from that date
…”







[16] To start with, the PSC did not make any “decision”
binding on the applicant; the PSC only made a recommendation to the
applicant which the applicant was at liberty to implement on any
reasonable date as any internal administrative and other relevant
arrangements of the applicant’s would permit. Thus, and this is
significant, the PSC did not recommend to the applicant to implement
its recommendations immediately: no date was recommended by the PSC.
All this is not important for our present purposes: what is important
is that relying on the legal advice, the 1st respondent
demanded and was paid N$36,000.00 by the applicant; and also that the
understanding of the applicant was that the payment of the
N$36,000.00 to the 1st respondent was in terms of the
agreement between the applicant and the 1st respondent
that the latter’s commencement date of employment had been
backdated to 1st November 2003.







[17] The 1st respondent says that cannot be
correct because: (1) the N$36,000.00 was ex gratia payment due to the
prejudice caused by the applicant for not implementing the PSC
recommendation and (2) that “the applicant willingly paid
over the amount of N$36,000.00 …” With the greatest deference,
the 1st respondent’s contention is baseless. I do not
know of any law – and none was referred to me – under which a
person who is not employed by the Public Service is paid such a large
sum of money of State Funds as ex gratia payment, i.e. “as a favour
rather than from an (esp. legal) obligation.” (See Concise
Oxford Dictionary
, 10ed.) Besides, it is not the applicant’s
case that it did not pay the N$36,000.00 “willingly”. The
applicant’s case is rather that the N$36,000.00 was paid as the 1st
respondent’s remuneration for the nine months’ period during
which the 1st respondent contended, and the applicant
agreed, he should have been employed by the applicant, minus the
remuneration the applicant had received from another State
institution during that period.







[18] I find the applicant’s contention to be
reasonable and acceptable; otherwise, upon what legal basis could a
State institution justify the payment of such a large sum of money to
the 1st respondent, unless, and so I find, the
understanding of both the applicant and the 1st respondent
was that the applicant had a legal obligation to pay that amount
because the 1st respondent’s fixed-term contract of
employment had been backdated to 1st November 2003 by
agreement between the 1st respondent and the applicant. To
find otherwise would be wrong and unreasonable and inequitable. One
must not lose sight of the fact that this is a court whose penchant
is equity.







[19] On the facts and in view of the conclusion I have
reached, it would not, in my view, be equitable to deny the applicant
its genuine and bona fide intention to seek a reversal of the
arbitral award. To hold otherwise would defeat the whole object of
the appeal that the applicant has noted in order to test the
correctness of the award, particularly in respect of the award of
reinstatement, considering the findings I have made and the
conclusions I have reached on the date of commencement of the 1st
respondent’s fixed-term contract of five years’ duration.







[20] Besides, as Mr. Namandje correctly submitted, the
1st respondent himself states in his affidavit that he has
had no salary since October 2008, and that he could hardly make ends
meet. I, therefore, find that if monies amounting to “all salaries
and benefits that were due to him from 20 October 2008 to the date of
his reinstatement” were paid to him and the appeal succeeded in due
course, the 1st respondent would absolutely be unable to
pay back the monies; and that would be a total loss of public funds.
But if the appeal failed in due course, the applicant will be able to
reinstate the 1st respondent and also pay him all monies
due to him; and so he would not suffer any harm at all. In this
regard, it is equally significant to add that I find that a stay of
execution of the arbitral award will also benefit the 1st
respondent who, in his own words, as aforesaid, is indigent because
he need not, until finalization of the appeal, pay back to the
applicant the N$36,000.00 which in terms of the award he must refund
to the applicant. On this point, I accept Mr. Namandje’s
submission.







[21] On the basis of the findings which I have already
made, coupled with the aforegoing reasoning and conclusions, I hold
it established that the balance of convenience clearly favours the
applicant. Moreover and a fortiori, I also find that the
balance of irreparable harm also clearly lies in favour of the
applicant within the meaning of s 89 (8) of the Labour Act. In my
judgment, therefore, I should on a conspectus of all the
relevant facts and in the circumstances of this case determine the
matter of irreparable harm in the applicant’s favour. Accordingly,
I conclude that the applicant’s application succeeds.







[22] In his submission, Mr. Mueller said that an order
of stay of execution is not the only option open to the Court. He
therefore invited me to exercise my discretion and in effect attach
conditions to any order I make in terms of s 89 (9) of the Labour
Act, including conditions set out in paragraphs (i) and (ii) of
paragraph (b) of the said s 89 (9) of the Act. I think I should
decline the invitation. As Mr. Namandje reminded the Court in his
submission, if the present application succeeded the 1st
respondent would be at liberty to keep the aforementioned
N$36,000.00, pending the finalization of the appeal, as I have
already treated in this judgment. That is a substantial advantage
and benefit to the 1st respondent.







[23] In the result,








  1. I grant an order in terms of prayer (1) of the Notice
    of Motion.









  1. I order stay of execution and operation of the 2nd
    respondent’s arbitral award contained in annexure “HRC 2” to
    the Notice of Motion under Case No.: SRMA 10-09 (dated 8 April
    2009), pending the finalization of the applicant’s appeal against
    that award.









  1. There shall be no order as to costs.
















___________________________



Parker, J







ON BEHALF OF THE APPLICANT: Mr. Sisa Namandje



Instructed by: Sisa Namandje & Co











ON BEHALF OF THE 1ST
RESPONDENT
: Mr. R T D Mueller



Instructed by: Koep & Partners