Court name
Labour Court
Case number
50 of 2010
Title

Janse van Rensburg v Sefofane Air Charters (Pty) Ltd and Another (50 of 2010) [2011] NALC 2 (01 February 2011);

Media neutral citation
[2011] NALC 2













3












SUMMARY
REPORTABLE



CASE
NO. LC 50/2010



IN
THE LABOUR COURT OF NAMIBIA



In
the matter between:



LEON
JANSE VAN RENSBURG v SEFOFANE AIR CHARTERS (PTY) LTD AND JERMAIN
KETJI






PARKER
J







2011
February 1










Labour
Law -
Application
to vary or supplement order granted by the Labour



Court
respecting a costs order - Applicant relying on rule 16 (5) of the
Labour Court Rules, alternatively on rule 44 of the Rules of the High
Court, and, further, alternatively on the common law - Court finding
that Rules of the High Court and the common law do not apply in
instant case where the Labour Court Rules deal adequately with the
issue at hand - Accordingly Court applying rule 16 (5) of the Rules
of the Labour Court - Court finding that the 'mistake' offering a
ground for varying a judgment or order of the Labour Court in terms
of rule 16 (5) is not a mistake attributable to the judge but a
mistake made by the party in obtaining the judgment or order in
question - In any case, Court explaining that where it is alleged a
judge has taken







a
wrong view of the facts or of the law that judicial decision does not
constitute a mistake on the part of the judge.







Held,
that
in terms of rule 16 (5) of the Rules of the Labour Court the
'mistake' offering a ground for varying a judgment or order of the
Labour Court is not a mistake attributable to the judge but a mistake
made by the party in obtaining the judgment or order in question.











Held,
further
that, where a judge has made an order and given reasons therefor in
his or her judgment, it is his or her judgment and the judgment of
the Court concerned. If a party says that it is aggrieved by the
order because the judge took a wrong view of the facts or of the law,
it is fallacious in law for one to argue that a mistake has been made
by the judge, capable of calling in aid rule 16 (5) of the Labour
Court Rules.








Case No. LC
75/2010






IN THE LABOUR COURT OF NAMIBIA







In the matter between:





LEON
JANSE VAN RENSBURG
…..................................................................Applicant









And


SEFOFANE
AIR CHARTERS (PTY) LTD
…..........................................
First
Respondent



JERMAIN
KETJI
…........................................................................Second
Respondent






CORAM:
PARKER
J






Heard
on: 2011 January 19


Delivered
on: 2011 January 19 (Ex
tempore)



2011
February 1 (Reasons)









JUDGMENT:
PARKER J
:



[1]
In this matter application has been brought on notice of motion in
which the applicant, represented by Mr. Van Zyl, has moved the Court
to vary or supplement the costs order granted by the Court
(per
Geier
AJ) on 8 July 2010. The 1
st
respondent
represented by Mr. Mouton has moved the Court to reject the
application.











[2]
The applicant bases his application on 'Rule 16 (5) of the Rules of
this Honourable Court, alternatively, in terms of Rule 44 of the
Rules of the High Court of Namibia read with Rule 22 of the Rules of
this Honourable Court, in the further alternative, in terms of the
common law.' It would seem the applicant has embarked on a fishing
expedition in search of a rule on which to hang his application, not
sure in what waters he should fish. The rules of this Court are
crystal clear as to when the rules of the High Court may become
applicable. Rule 22 of the Labour Court Rules provides:










'22.
Subject to the Act and these rules, where these rules do no make
provision for the procedure to be followed in any matter before the
Court, the rules applicable to civil proceedings in the High Court
made in terms of section 39 (1) of the High Court Act, 1990 (Act 16
of 1990) do apply to proceedings before the court with such
qualification, modifications and adaptations as the court may deem
necessary.'







[3]
As I see it, the aforementioned rule 16 (5) makes provision for the
procedure regarding variation of any judgment or order of this Court
and so it is this rule that I shall apply in these proceedings. On a
parity of reasoning, I will only go out of my way to apply the
common law rule which, according to the applicant, is a further
alternative in his fishing expedition to catch a rule, only if rule
16 (5) does not address the issue at hand. As matters stand, rule 16
(5) does address the issue at hand - and absolutely adequately so.















[4]
It is to rule 16(5), therefore, that I now direct the enquiry; and
rule provides.













'(5)
Where rescission or variation of a judgment or order is sought on
the ground that it is void from the beginning or was obtained by
fraud or mistake, application may be made not later than one year
after the applicant first had knowledge of such voidness, fraud or
mistake.'







[5]
It is the applicant's contention that in terms of s. 118 of the
Labour Act, 2007 a costs order does not follow the event, and that
before this Court exercises its discretion to grant a costs order
against a party, ' "frivolous and vexatious" conduct must
(have) been complained of and must have (been) "proved" '
by the other party. Flowing from this premise, Mr. Van Zyl submitted
that 'the order was obtained by mistake ... because this Honourable
Court's jurisdiction and power to grant a costs order is restricted
by s. 118 of the Labour Act.'











[6]
In these proceedings, I am not interested in whether Mr. Van Zyl is
correct or not correct in his interpretation and application of s.
118 of the Labour Act for the simple reason that this Court is not
sitting as an appeal court over its own decision - as if that was
competent in law. In any case, from what I can gather from Mr. Van
Zyl's submission it is the applicant's averment that Geier AJ took a
wrong view of the facts and of the law and so Geier AJ's order
cannot stand. Mr. Van Zyl argues - unwittingly, though not in so
many words - that there was no factual basis upon which Geier AJ
could have exercised his discretion to grant a costs order,
considering s. 118 of the Labour Act; and yet Mr. Van Zyl insisted
strenuously in his submission that the learned judge 'made a
mistake' in his interpretation and application of s. 118 of the
Labour Act.











[7]
With the greatest deference to Mr. Van Zyl, Mr. Van Zyl's argument
is not only over simplistic and fallacious, it is also sad and
unfortunate. Where a judge has made an order and given reasons
therefor in his or her judgment; it is his or her judgment and the
judgment of the Court concerned. If a party says that it is
aggrieved by the order because the judge took a wrong view of the
facts or of the law, it is on any pan of scale superlatively
fallacious in law for any person to argue, as Mr Van Zyl does, that
a mistake has been made by that judge, capable of calling in aid, in
these proceedings, rule 16 (5) of the Labour Court Rules. This
conclusion is so logical and so elementary that I need not cite any
authority in support thereof. In any case, Mr. Van Zyl's predicament
does not end there. Mr. Van Zyl's reliance on 'mistake' to assist
the applicant in these proceedings is misplaced; for, rule 16 (5)
does not just refer to 'mistake'
simpliciter.
The
ground contained in that rule respecting 'mistake' is this:










(5)
Where rescission or variation of a judgment or order is sought on
the ground that it ...
was
obtained by mistake,
application
may be made not later than one year after the applicant first had
knowledge of
such
mistake.
(Italicized
for emphasis)







[8]
Pace
Mr.
Van Zyl, the 'mistake' referred to in rule 16 (5), offering a ground
for varying a judgment or order of the Labour Court in terms of rule
16 (5), is not a mistake attributable to the judge but a mistake
made by the party in obtaining the judgment or order in question.
This conclusion on the interpretation and application of rule 16 (5)
and the previous conclusion alone bury Mr. Van Zyl in his
overzealous but baseless argument; but it is attractively
interesting to consider Mr. Van Zyl's other equally pointless
argument; not least because it was made with equal verve.











[9]
In this regard, with respect, Mr. Van Zyl digs a dangerously deeper
hole for himself when he argues further that 'it was never the true
intention of the Labour Court (presided over by Geier AJ, as
aforesaid) to have handed down an order for costs' in view of s.118
of the Act. Mr. Van Zyl unfortunately misses the boat. The
indubitable fact that has remained is that this Court did grant a
costs order in clear and unambiguous terms, and the Court gave
reasons for its decision. What Mr. Van Zyl has done is to arrogate
to himself the mystic power of claiming better knowledge of what
Geier AJ intended than what Geier AJ actually had in mind when the
learned judge expressed himself as he did - and so clearly and
unambiguously - in his judgment. By doing so, Mr. Van Zyl has put
forward,
sans
a
phantom of justification, the unexpressed intention of the learned
judge; and that is fallacious and self-serving; and above all
unacceptable. Mr. Van Zyl is wrong in his submission on the point;
Mr. Van Zyl has not made a mistake respecting the point.











[10]
The aforegoing are my reasons for granting the order after hearing
the application, which order stated:













(1)
The
application filed on 30 August 2010 is dismissed.







(2)
There
is no order as to costs.























PARKER J



































COUNSEL
ON BEHALF OF THE APPLICANT:
Mr.
C J Van Zyl







Instructed
by:
Hohne
& Co











COUNSEL
ON BEHALF OF THE 1
st
RESPONDENT:
Mr.
C J Mouton
Instructed by:
Koep
& Partners