Court name
Supreme Court
Case name
Transnamib Holdings Ltd v Bernhardt Garoëb
Media neutral citation
[2005] NASC 4











CASE
NO. SA 26/2003





IN
THE SUPREME COURT OF NAMIBIA





In
the matter between:





TRANSNAMIB
HOLDINGS LTD APPELLANT




and





BERNHARDT
GAROëB RESPONDENT








CORAM:
O’LINN, A.J.A. et MARITZ, A.J.A.








Heard
on: 2004/07/01


Delivered
on: 2005/08/04


_____________________________________________________________________





JUDGMENT





MARITZ,
J
:

The appellant, TransNamib Holdings Ltd., is seeking to overturn an
order of the Distri
ct
Labour Court, Walvis Bay, which dismissed its application for
rescission of a default judgment previously entered in favour of the
respondent, Bernhardt Garoëb. To that end, it appealed against
the dismissal of the application to the Labour Court and, w
hen
that appeal was also dismissed by Gibson P on 3 April 2003, it
appealed against the latter order to this Court.





The proceedings in the
District Labour Court follow upon the termination of the respondent’s
employment by the appellant after the conclusion of a disciplinary
enquiry into the alleged dishonest retention and misappropriation by
the respondent of the proceeds of travel tickets which he had sold to
passengers. Aggrieved by the appellant’s decision to dismiss him,
the respondent lodged a complaint with the District Labour Court on
27 April 2001. The cause pleaded was simply that the appellant had
“unfairly and unlawfully dismissed” him on or about 5 December
2000. He sought reinstatement, payment of remuneration lost for the
period 5 December 2000 until the date of reinstatement at the rate of
N$2 990-00 per month and costs.





The clerk of the
District Labour Court set the complaint down for hearing on 18 June
2001 at 09:00 and, as is required by Rule 5(1)(c) of the Rules of the
District Labour Courts (“the Rules”), caused a Notice of Hearing
dated 9 May 2001 to be served on the appellant. Given its importance
in the subsequent course of events, it is perhaps apposite to quote
portions of the Notice most material to the events that followed:





Take
notice that this matter has been set down for hearing on 18.6.2001 at
9H00 ...







You
are required to file your reply to the complaint with the clerk of
the court and to serve a copy of the reply upon the complainant
within fourteen days of service of the complaint upon you.







Your
reply must state whether you intend to oppose the complaint and, if
so, must contain sufficient particulars so as to inform the
complainant of your grounds of opposition.






Except
with leave of the Court, on good cause shown, a respondent who has
not filed a reply within the time prescribed will not be entitled to
take any part in the proceedings. ...





The
complaint has been referred for settlement or further investigation
to the Labour inspector at Box 1143 Swakopmund and you must
co-operate with the Labour inspector and attempt to settle the
dispute before the date of hearing.





If
you fail to file reply to the complaint within a period of fourteen
days or fail to appear at the hearing, the Court may determine the
complaint and make such award or order as is authorised by the Act,
notwithstanding your failure to file a reply or to appear.”








On
the same date the clerk of the court notified the labour inspector
that the complaint had been referred to him for settlement or further
investigation in terms of Rule 6(1). He was also provided with a
copy of the complaint and of the Notice of Hearing. The labour
inspector was further notified that in the event of a settlement, the
terms thereof should be reduced in writing and be filed with the
court not later than three days prior to the date of hearing and, in
the absence of a settlement, that a notice to that effect as well as
a list of any agreed facts and documents should also be filed before
the date of hearing.





It
is common cause that the labour inspector did not give any effect to
the Rule 6(1) notice. The appellant, however, entered appearance to
defend the complaint and forwarded its reply by registered post to
the respondent and the clerk of the court on 21 May 2001. No further
procedural steps were taken until the matter was called in court on
the date of set down. The appellant was absent and the respondent
moved for default judgment, which was granted in terms of Rule 10(4).





When
the appellant received notice on 2 July 2001 that judgment by default
had been entered against it, it applied for rescission thereof. The
respondent opposed the application which was argued on 10 August 2001
and later dismissed. The appellant thereupon appealed to the Labour
Court against that order. The appeal was eventually argued before
Gibson P on 31 October 2002 and, after judgment had been reserved,
dismissed on 3 April 2003. The appellant’s application for leave
to appeal against that order was also dismissed on 8 July 2003 but
later granted upon petition to the Honourable Chief Justice on 10
October 2003. This, briefly summarised, is
the procedural history against which the application for rescission
of judgment falls to be considered.





The
appellant’s chief legal advisor explains in the founding affidavit
filed in support of the application that the main reason for the
appellant’s absence from court on the date of set down, relates to
the failure of the labour inspector to convene a conference for the
settlement of the dispute between the appellant and the respondent
before the date of set down. According to him “it is trite law
that a District Labour Court hearing cannot be constituted and be
conducted prior to the holding of a Rule 6 conference and that the
appellant had been and (was) still waiting on the clerk of the court
to make arrangements for a Rule 6 conference, as it was never
conveyed to the (appellant) that it was decided that a Rule 6
conference was not necessary.” On that premise he inferred that
the Rules had not been complied with and “that the notice for the
hearing was defective per se and since the notice for the
hearing was defective, the court should not have entertained the
matter on 18 June 2001, which proceedings resulted in the default
judgment”.





In
the alternative, and in the case that the reliance on Rule 6 did not
find a mark of favour with the court, the appellant’s chief legal
advisor had a second arrow in his quiver of arguments: the default
judgment, he contended, had been granted without due compliance with
the requirements of Rule 10(4). The chairperson of the District
Labour Court could only have granted default judgment if, in his
“opinion, the facts relating to the complaint” had been
sufficiently established. He submitted that, in the absence of any
evidence presented by the respondent, the District Labour Court could
not have granted the default judgment in terms of the sub-rule.





He
also dealt with the merits of the respondent’s complaint and
maintained on behalf of the appellant that the respondent’s
services had been terminated for a valid and fair reason and in
accordance with a fair procedure. He briefly pointed to the facts
and circumstances which had given rise to the disciplinary charge
against the respondent and to the fact that the respondent had been
represented during the disciplinary hearing.





In
his answering affidavit, the respondent admitted that the labour
inspector had not made any attempt to convene a Rule 6 conference,
but took issue with the legal inferences the appellant sought to draw
from that failure. He also denied that the facts relating to his
complaint had not been sufficiently established as required by Rule
10(4) and that he had been dismissed for a valid and fair reason and
in accordance with a fair procedure.





The
conflicting facts and contentions advanced by and on behalf of the
litigants in the application for rescission of judgment presented the
presiding officer with the difficult task of balancing two sets of
competing interests (c.f. De Witts Auto Body Repairs (Pty) Ltd v
Fedgen Insurance Co. Ltd,
1994(4) SA 705 (E) at 711H-I). On the
one hand is the interest of the respondent in maintaining the
validity of the judgment granted in his favour. Albeit obtained by
default, it remains a regular judgment by a competent court of law
which, in the normal course of events, must take effect. As such, it
normally terminates the lis between the parties and demands
satisfaction by the defaulting litigant, if necessary, by execution.
The finality of a judgment is an important aspect in the
administration of justice and the expeditious satisfaction or
execution thereof reaffirms and strengthens public confidence in the
justice-system and is an important meganism through which the courts
assist to maintain law and order in society. In addition to the
respondent’s interest in the finality of the judgment obtained is
also the interest of the Court that its rules and procedures must be
equally applied and adhered to by all litigants.





On
the other hand is the interest of the defaulting litigant in
maintaining and presenting his defence. If such a litigant
demonstrates a potentially good defence on the merits, the Courts
will normally be reluctant to let a default judgment pass without
proper adjudication. Litigants have a constitutional right to a fair
trial in the “determination of their civil rights and obligations”
(Article 12(1)(a) of the Constitution). In the adjudication of those
rights and obligations, courts of law have a fundamental duty to do
justice between the parties by, inter alia, allowing them a
proper opportunity to ventilate the issues arising from their
competing claims or assertions. To the extent that that right is
limited by the entry of default judgment if a litigant fails to
comply with the procedures prescribed for the presentation of his or
her case, a litigant who has shown substantive merits in his or her
defence and good cause for the non-compliance will not be deprived of
a just resolution in due course. In the absence of gross negligence
or willful disregard of its rules, the Court will not shut its doors
to a bona fide litigant with a good defence just because of
his or her failure to comply with the Rules.





It
is undoubtedly for these reasons that Rule 22 was incorporated in the
Rules of District Labour Courts. It provides:





22.
(1) Any party to a complaint in which a judgment or an order by
default has been made in terms of Rule 10(3) or (4), may apply to the
chairperson to rescind or vary such judgment or order, provided that
the application is made within fourteen days after such judgment or
order has come to his or her knowledge.


(2) Every
such application shall be an application as contemplated in Rule 20,
and supported by an affidavit setting out briefly the reasons for the
applicant’s absence or default, as the case may be, and, where
appropriate, the grounds of opposition or defence to the complaint.


(3) The
chairperson may on good cause shown rescind or vary the judgment in
question and give such directions as to the further conduct of the
proceedings as he or she may deem necessary in the interest of all
the parties to such proceedings.”





Although
not cast in exactly the same terms, Rule 22 echoes the substance of
similar rules relating to rescission of judgment found within the
jurisdictions of many other courts. In a long line of judgements
the courts have by precedent distilled the essential criteria by
which to determine whether “good cause” has been shown for
default judgments to be rescinded or varied. In Leweis v Sampoio
2000 NR 186 (SC) at 191G-H this Court approved the following
content given to the requirements implied by that phrase in Grant
v Plumbers (Pty) Ltd
, 1949(2) SA 470 (0) at 476-477:





(a) He
must give a reasonable explanation of his default. If it appears
that his default was willful or that it was due to gross negligence,
the Court should not come to his assistance.






  1. His
    application must be bona fide and not made with the intention
    delaying the plaintiff’s claim.







  1. He
    must show that he has a bona fide defence to the plaintiff’s
    claim. It is sufficient if he makes out a prima facie
    defence in the sense of setting out averments which, if established
    at the trial, would entitle him to the relief asked for. He need
    not deal fully with the merits of the case and produce evidence that
    the probabilities are actually in his favour.”






(See
also SOS-Kinderdorf International v Effie Lentin Architects
1990 NR 300 (HC) at 302D-F; Krauer & Another v Metzger
(2) 1990 NR 135 (HC) at 139G-J and Mutjabikua v Mutual &
Federal Insurance Company Limited
1998 NR 57 (HC) at
59D-F).





Rule
22(2) contemplates in express terms the inclusion of the particulars
necessary to establish the elements referred to in paragraphs (a) and
(c) of the quotation. In Chetty v Law Society, Transvaal,
1985(2) 756 (AD) Miller JA summarises the
underlying reasons for those two requirements as follows (at 765D-E):





It
is not sufficient if only one of these two requirements is met; for
obvious reasons a party showing no prospect of success on the merits
will fail in an application for rescission of a default judgment
against him, no matter how reasonable and convincing the explanation
of his default. And ordered judicial process would be negated if, on
the other hand, a party who could offer no explanation of his default
other than his disdain of the Rules was nevertheless permitted to
have a judgment against him rescinded on the ground that he had a
reasonable prospect of success on the merits.”








These
factors, as the Court pointed out in United Plant Hire (Pty)
Limited v Hills & Others
, 1976(1) SA 717(A) at 720F-G “are
not individually decisive but are interrelated and must be weighed
one against the other; thus a slight delay and a good explanation may
help to compensate for prospects of success which are not strong.”





The
element referred to in paragraph (b) of the quotation from Grant v
Plumbers
, supra, is normally inferred from the
facts necessary to satisfy the other two requirements. It can hardly
be reasoned that an application is bona fide and not made with
the intention to delay if the applicant does not have a bona fide
defence to the complaint. In the absence of such a defence the Court
is unlikely to find “a bona fide presently held desire on
the part of the applicant for relief actually to defend the case in
the event of a judgment being rescinded” (per Blieden J in Nandi
Property Development CC v Beimore Development CC
1999(4) SA
462(W) at 464H; Galp v Ransley, NO & Another 1966(4) SA
55(E) at 560B). Neither can it be contended that a litigant, who has
willfully defaulted or failed to appear with the intention of
delaying the eventual adjudication of the complaint or to gain some
procedural advantage, is bona fide in the application for
rescission.





Although
Rule 22(2) prescribes the minimum requirements to be met in an
application of that nature, it does not purport to limit the factors
which may be advanced in support of the application to those
expressly mentioned in the subrule. Rule 22(3) allows the
chairperson to rescind or vary the judgment “on good cause shown”.
Whilst he or she will undoubtedly have regard to the facts put
forward to satisfy the Rule 22(2)-requirements, that concept “defies
precise or comprehensive definition (per Miller, JA in Chetty v
Law Society, Transvaal
, supra, 765A-B). Any attempt to
formulate an exhaustive definition is likely to limit the wide
discretion implied by it (See: Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345 (A) at 352-3. and Cairns Executors v Gaarn,
1912 AD 181 at 186). But, as wide as the discretion may be with which
Rule 22(3) vests the chairperson to assess both the adequacy and the
acceptability of the appellant’s explanation for its absence at the
hearing, it is nevertheless one which must be exercised judicially –
and that notion imports the requirement that it must be exercised
within the framework of reasonable legal parameters.





It
is against the matrix of these considerations bearing on applications
of this nature that the chairperson’s judgment falls to be
considered.





The
chairperson held that the appellant had been aware of the complaint
but had “deliberately ignored it” and that it could not blame
anyone “for its own failure and/or deliberate gross negligence”.
He added that the appellant had also received the Notice of Hearing
in terms of Rule 5(1)(c) and had failed to do anything in that
regard: it did not file a notice of intention to oppose the complaint
or attended the proceedings on the date of set down. He concluded
that “there was no excuse” for the appellant’s absence and that
the Court granted default judgment because it “was of the opinion
that the facts relating to (the) complaint (were) sufficiently
established”. According to him, Rule 10(4) does not require “a
trial court to adduce oral or viva voce evidence as a prerequisite to
granting a default judgment”. Whilst he noted that a Rule
6-conference had not been held, he boldly concluded that the
appellant “was deliberately staying away from the whole case” and
that the “pretrial conference would not have been an exception”.
Moreover, he held that the application for rescission of judgment was
brought out of time; that it was not in accordance with the Rules and
was simply brought as “an afterthought ... to prevent execution”.





The
chairperson’s reasoning contains, in my view, a number of
misdirections. The Court a quo identified and disposed of
one, i.e. the appellant’s alleged failure to file its application
for rescission of judgment within the period prescribed by Rule
22(1). That point was neither raised nor addressed in argument by
any of the litigants.





It
is evident from the chairperson’s judgment that he was in
possession of the appellant reply to the respondent complaint dated
21 May 2001. He refers to it in the judgment as “Form no. 6”. He
questioned in the judgment why the appellant had not made use of the
form which the Clerk of the Court had issued on 9 May 2001 and,
instead, had used a clean copy of the form annexed to the Rules. It
is common cause that the appellant’s notice of intention to oppose
the complaint and his reply thereto were forwarded by registered post
on 21 May 2001 to the respondent and the clerk of the District Labour
Court. Service of a pleading in that manner on the respondent is
expressly authorised in Rule 7(1) read with Rule 5(2)(c). Given
these considerations, the chairperson’s remarks that the appellant
had “deliberately ignored” the respondent’s complaint; that the
appellant had not done anything after receipt of the Notice of
Hearing and that it had not filed a notice of intention to oppose the
complaint, are entirely unjustified and constitute serious factual
misdirections.





Even
if I were to assume in favour of the chairperson that the notice to
oppose and reply were not before him when the respondent moved for
default judgment – a fact which I doubt given the manner of service
and the fact that default judgment was granted not because of the
appellant’s failure to reply but its failure to appear at the
hearing - he was undoubtedly aware at the time the appellant applied
for rescission of judgment that it had given timeously
notice of intention to oppose the complaint and had filed a reply.
Those facts justify, at the very least, the inference that the
appellant intended to oppose the complaint all along. It is
difficult to understand how the chairperson could have concluded in
the face of those objectively ascertainable facts that the appellant
had deliberately ignored the complaint and had not done anything to
oppose it or to reply thereto.





To
further aggravate the already serious misdirections of the
chairperson, he also concluded that, because the appellant had
deliberately ignored the complaint, it should “therefore not blame
anybody for its own failure and/or deliberate gross negligence and
(ought to) be prepared to face the consequences”. The
contradictio in terminis of the phrase “deliberate gross
negligence” aside, it is evident from the quoted statement that the
chairperson so disapproved of the appellant’s conduct that it
should face the sanction resulting from the dismissal of the
application for rescission of judgment.





Whilst
the temptation to refuse an application for rescission of judgment as
a means to discipline a litigant who has failed to comply with the
Rules or to sound a general deterrence to other litigants may be
readily understandable, the chairperson misdirected himself in the
exercise of his discretion when he yielded to the temptation. In
dealing with such an approach in Leweis v Sampoio, supra at
191H-192B, Strydom CJ said the following:





As
to a Court’s approach in regard to such an application it was
stated in De Witts Auto Body Repairs (Pty) Limited v Fedgen
Insurance Co Ltd
, 1994(4) SA 705(E) at 711E that –






An
application for rescission is never simply an inquiry whether or not
to penalise a party for his failure to follow the rules and
procedures laid down for civil proceedings in our courts. The
question is, rather, whether or not the explanation for the default
and any accompanying conduct by the defaulter, be it willful or
negligent or otherwise, give rise to the probable inference that
there is no bona fide defence and hence that the application
for rescission is not bona fide’.





(See
also HDS Construction (Pty) Ltd v Wait 1979 (2) SA 298(E)


A
reading of these cases shows that although the fact that the default
may be due to gross negligence it cannot be accepted that the
presence of such negligence would per se lead to the dismissal
of an application for rescission. It remains, however, a factor to
be considered in the overall determination whether good cause has
been shown, and would weigh heavily against an application for
relief.”





Rather
than penalizing the defaulting party, the purpose of the rule is the
opposite: it is intended as a procedural mechanism to ameliorate the
drastic consequences for a litigant who is faced with a judgment
taken as a consequence of his or her default. Considerations of
fairness militate against the idea that a litigant should be unsuited
due to a procedural default irrespective of the strength of his or
her defence against the claim or the reason for the default. These
considerations should permeate a court’s approach to an application
for rescission and the ultimate object should be to do justice
between the litigants in the case before it. This approach also found
favour with Jones J in De Witts Auto Body Repairs (Pty) Ltd v
Fedgen Insurance Co. Ltd, supra
at 711G-I:





The
magistrate’s discretion to rescind the judgment of this Court is
therefore primarily designed to enable him to do justice between the
parties. He should exercise that discretion by balancing the
interests of the parties, bearing in mind the considerations referred
to Grant v Plumbers (Pty) Ltd (supra) and HDS Construction
(Pty) Ltd v Wait
(supra) and also any prejudice which might be
occasioned by the outcome of the application. He should also do his
best to advance the good administration of justice. In the present
context this involves weighing the need, on the one hand, to uphold
the judgments of the courts which are properly taken in accordance
with accepted procedures and, on the other hand, the need to prevent
a possible injustice of a judgment being executed where it should
never have been taken in the first place, particularly where it is
taken in a party’s absence without evidence and without his defence
having been raised and heard.”





The
most material misdirection of the chairperson, however, was his
finding that the appellant had “no excuse” why it was not
represented at the hearing on 18 June 2001 and, given its deliberate
disregard of the hearing, it could be inferred that it would also not
have co-operated with the labour inspector in an attempt to settle
the dispute. This finding flies in the face of the explanation given
by the appellant’s legal advisor: that the appellant had acted on
the premise that the complaint could not be heard on the date of set
down as a consequence of the labour inspector’s failure to convene
a conference on a predetermined time and date with the purpose of
settling the dispute.





It
is not necessary for us to examine whether or not that conviction
accords with the requirements of the Act. Suffice it to say that it
was one bona fide held upon a tenable interpretation of Rule 6
and the underlying objectives of the Labour Act in general. Inasmuch
as the appellant was advised by its chief legal advisor that the
holding of a settlement conference was a precondition to the hearing
of the dispute on the date of set down and bona fide acted on
such advice, the appellant’s failure to attend the proceedings on
the date of set down can hardly be characterised as “willful
default”. In the context of rescission applications, the authors
Jones and Buckle, The Civil Practice of the Magistrate's Courts in
South Africa
, 8th ed., p 362 says that before –





a
person can be said to be in willful default the following elements
must be shown:






  1. Knowledge
    that the action is being brought against him;


  2. a
    deliberate refraining from entering appearance (or appearing at the
    hearing), though free to do so; and


  3. a
    certain mental attitude towards the consequences of the default.”
    (My insertion)






The
latter element was qualified - correctly so in my view - by Zulman AJ
in Federated Timbers Ltd v Bosman, NO and Others, 1990(3)
SA 149 (W) at 154I-J as “a mental attitude towards the
consequences of a default consistent with indifference or lack of
concern thereof”.





It
seems to me that the first two elements, i.e. knowledge and a
deliberate refraining from appearing, have been established on the
appellant’s own admissions, but not the third. It is apparent from
the steps taken by the appellant to oppose the complaint and to
advance its defence that it was determined to have the dispute
adjudicated. Its failure to appear through a representative at the
hearing must be attributed exclusively to the view held by its chief
legal advisor that the holding of a Rule 6 settlement conference was
a precondition to the hearing. If, at worst for the appellant, it is
to be assumed that the view was wrongly held, it does not detract
from the bona fides of the appellant in acting upon the advice
of its chief legal advisor. The appellant did not contemplate that
the consequence of its failure to appear through a representative at
the hearing would result in judgment being entered against it. The
appellant did not appreciate that such a consequence might follow.
Without such appreciation, the appellant lacked the mental attitude
of indifference or lack of concern required for its default to be
catagorised as “willful”.





The
Court a quo criticised the appellant’s chief legal advisor
for failing to refer to any authority for his proposition that it was
“trite law” that a hearing in a District Labour Court could not
be conducted prior to the holding of a Rule Conference. In the
Court’s view, he should have done more to protect the appellant
rights by attending the Court and used that occasion to object to the
hearing on the strength of the omission to convene such a conference.
The Court further held that he had deliberately failed to appear in
Court and that the appellant should therefore not be allowed to
reopen the matter simply on the strength of the good prospects of
success on the merits. It was the considered view of the Court that
the District Labour Court “would be encouraging chaos within its
own house were it to allow a party who is willfully in default to
rescind the judgment in default because he has got prospects of
success on the merits”. The Court expressed the view that in such
a case the appellant “has to be made to pay the penalty for
sleeping on (its) rights.”





I
have already pointed out that the interpretation given by the
appellant’s chief legal advisor to the provisions of Rule 6 is
clearly arguable. The Rule is couched in peremptory terms and it
contemplates that a settlement conference should be convened prior to
the hearing of the labour dispute. The rule gives efficacy to the
legislative purpose to promote good labour relations and to encourage
methods of alternative dispute resolution between employer and
employee. Although I do not find it necessary to express any final
view on the validity of such a hearing in the absence of a preceding
conference, the bona fide interpretation given by the
appellant’s chief legal advisor to the Rule, even if wrong, does
not justify the inference that he had appreciated that default
judgment maybe entered against the appellant and acted with
indifference to that appreciation. He may be criticised for not
acting more prudently by, for example, negotiating with the
respondent a postponement by agreement or, failing such agreement, to
attend Court and move a postponement of the case. His lack of
prudence or good judgment does not, however, support an inference of
willfulness and cannot be attributed to the appellant who had acted
bona fide on his advice.








I
need not to dwell on the bona fides of the appellant’s
defence to the respondent’s complaint. It is clear that if the
facts of the respondent’s alleged dishonesty would be established
at the hearing, the sanction of dismissal would be reasonable and
fair. Except for a bold denial of dishonesty, the respondent did not
set forth any facts gainsaying those alleged by the appellant.
Similarly, the belated allegations procedural unfairness made in the
answering affidavit lack specificity. Given the paucity of
particulars provided by the respondent’s complaint, it does not
seem to me that the appellant was required to deal with it more
extensively than it had done.





There
is also, in my view, a further consideration why the application
should have succeeded. The chairperson granted default judgment in
terms of Rule 10(4). The sub-rule provides as follows:





(4) If
a respondent who has been duly served with a copy of the complaint
and a notice of the hearing as provided for in Rule 5(2), fails to
reply to the complaint within the time provided in Rule 7 or fails to
appear at the hearing, the chairperson may, if in his or her opinion
the facts relating to the complaint are sufficiently established,
determine the complaint and make such order as is authorised by the
Act, notwithstanding the respondent’s failure to reply or to
appear, as the case may be.” (The underlining is mine).





It
is common cause that the respondent did not present any evidence in
substantiation of the complaint and that the chairperson granted
default judgment solely on the basis of an allegation of unfair
dismissal in the complaint. The Chairperson nevertheless ordered the
respondent’s reinstatement as contemplated in s. 46(1)(a)(i) of the
Labour Act, 1992. He also ordered payment of the respondent’s loss
of remuneration from 5 December 2000 until the date of reinstatement
at the rate of N$2 990-00 per month. The latter order was ostensibly
made in terms of s. 46(1)(a)(iii) which provides:





46.(1)
If, upon a complaint lodged in accordance with the provisions of Part
IV by an employee who has been dismissed from his or her employment
or against whom any disciplinary action has been taken, as the case
may be, a District Labour Court is satisfied that such employee has
been so dismissed unfairly or that such disciplinary action has been
so taken unfairly, the District Labour Court may –




  1. in
    the case of an employee who has been so dismissed, issue an order in
    terms of which such employer is ordered –




  1. ...


  2. ...


  3. to
    pay, whether or not such employee is reinstated or re-employed, to
    such employee an amount equal to any loss suffered by such 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; ...”






This
Court recently held by majority that the sub-section “entrenches
the common law principle of reasonable steps for the mitigation of
loss for an unfair dismissal, to be taken by the employee, which the
Legislature obviously intended to retain and incorporate in Section
46 of the Namibian Labour Act.” (See: Transnamib Holdings Ltd v
Caroline Engelbrecht,
unreported Case No. SA 7/2004 dd.
2005/04/22 at p 11)





Inasmuch
as an unfairly dismissed employee is required to mitigate his or her
damages and such mitigation will normally not be apparent from the
particulars of the complaint, it does not seem to me that it was
competent for the court to make an order in terms of s 46(1)(a)(iii)
without evidence.





Moreover,
unless and until established by evidence, the complaint is that “at
or about 5 December 2000, (appellant) unfairly and unlawfully
dismissed complainant”. This allegation amounts, in essence, to a
legal inference. Rule 10(4) contemplates that default judgment may
only be granted if, in the opinion of the chairperson, “the
facts
relating to the complaint (have been) sufficiently
established.” The legal inference pleaded has been made from facts
neither pleaded nor established by evidence at the hearing.





As
it is, it is apparent from an admission made by the respondent in the
application for rescission of judgment that he was not dismissed on 5
December 2000 as claimed, but only on 12 December 2000. To the
extent that the chairperson ordered that he had to be compensated for
loss of remuneration from 5 December 2000 (instead of 12 December
2000) until the date of reinstatement, the appellant admittedly
obtained a benefit to which he was not entitled.





For
these reasons, the dismissal of the appellant’s application for
rescission of judgment granted against it on 18 June 2001 cannot be
sustained and should have been set aside by the Court a quo.





In
conclusion, it is only appropriate to record that Teek JA was part of
the Bench constituted for purposes of this appeal. Due to
circumstances detailed in the unreported judgment of R D Wirtz v H
J L Orford and Another
(Case No. SA01/2003 dd 11 May 2005), Teek
JA has become incapable of acting and/or is absent within the
contemplation of s. 13 of the Supreme Court Act, 1990. The
difficulty which has arisen from his incapacity or absence in this
case is identical to those which presented themselves in the cases of
Wirtz (supra), Dresselhaus Transport CC v The
Government of the Republic of Namibia
(unreported Case No.
SA20/2003 dd 11 May 2005) and C Koopman v The State
(unreported Case No. SA2/2003 dd 7 June 2005). In all of these
cases this Court held that the remaining two Judges constitute a
quorum and can validly and properly dispose of the appeal
provided, of course, that they agree on the result.





In
the result the following order is made:






  1. The
    appeal succeeds.


  2. The
    order of the Labour Court made on 3 April 2003 is set aside and the
    following order is substituted:






The
order of the District Labour Court, Walvis Bay, in Case No. DLC38/01
dismissing the appellant’s application for the rescission of the
default judgment granted against it on 18 June 2001, is set aside and
the following order is substituted:





The
default judgment granted against the respondent, TransNamib Holdings
Ltd., in terms of Rule 10(4) of the District Labour Court Rules on 18
June 2001 in Case No. DLC38/2001 is rescinded.’ ”






  1. The
    case is remitted to the chairperson of the District Labour Court,
    Walvis Bay, to further deal with and dispose of the issues therein
    in accordance with the law.






________________


MARITZ,
AJA

















I
concur.








________________


O’LINN,
AJA.
































ON
BEHALF OF THE APPELLANT:


INSTRUCTED
BY:






MR.
J.A.N. STRYDOM


M.B.
DE KLERK & ASS.






ON
BEHALF OF RESPONDENT:


INSTRUCTED
BY:



MR.
MR. C.J. MOUTON


P.F.
KOEP & CO.