Namibian Broadcasting Corporation v Kruger and Others (SA 4 of 2007) [2009] NASC 6 (12 June 2009);
REPORTABLE
CASE NO.
SA 4/2007
IN THE SUPREME COURT OF NAMIBIA
In the matter between
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and
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Coram: Shivute,
CJ, Maritz, JA, et
Chomba, AJA
Heard on: 22/10/2007
Delivered on: 12/06/2009
APPEAL JUDGMENT
SHIVUTE,
CJ:
I have had the privilege of reading
in draft the erudite judgments prepared by my Brothers Maritz, JA
and Chomba, AJA in this matter and have noted that whilst they agree
on the reasoning and conclusion in respect of the second to the
twenty second respondents as well as on the order proposed in the
judgment of Chomba, AJA affecting all the respondents, there exists
a divergence of opinion between my Brothers on the reasoning leading
to the conclusion that the appeal be allowed also in respect of the
first respondent. The issue on which my Brothers’ views diverge is
not one free from difficulty. It does therefore not come as a
surprise that there should be a divergence of judicial opinion on
it.
I must point out from the outset that
I, too, have no hesitation in agreeing with the findings made by my
Brother Chomba, AJA in respect of the second to the twenty second
respondents. The sources he cited are authoritative and the
application of the law to the facts of the case as well as the
analysis of the issues germane to the appeal are unassailable. I
would therefore be inclined to associate myself with his reasoning
and would have no difficulty in embracing the order he has proposed
in respect of those respondents for the very cogent reasons advanced
in his judgment. I furthermore agree with his conclusion that the
appeal be allowed also in respect of the first respondent. Like my
Brother Maritz, JA, however, I am unable to agree with the route he
took to arrive at that conclusion.
The facts of the case as well as the
applicable legal principles have been set out in the judgments of my
Brothers and it would be futile to recount them here. Suffice it to
say that on the crucial question that had ignited debate resulting
in divergence of opinion, whilst Chomba, AJA has concluded that the
contents of the documents that had passed between the appellant and
the first respondent did not constitute an offer and acceptance and
therefore did not result in the conclusion of a valid contract
between the parties as well as the further finding by him that the
termination by the appellant of the employment contract between it
and the first respondent was not consensual but a unilateral act on
the part of the appellant, Maritz, JA on the other hand, has come to
a contrary conclusion on the point. He has found, inter
alia, that the invitation
that had been extended to the first respondent to participate, if so
minded, in the voluntary retrenchment scheme, was premised on the
clear understanding that should he elect to participate, he might be
required to sign a deed of final settlement; that by informing the
appellant that he had opted for the voluntary severance package
“available”, such package is the one conditional upon his
signing the deed of final settlement if called upon to do so. It
followed then, so Maritz, JA reasoned, that although his application
was not expressly referred to as an “offer”, it was in substance
an offer subject to the requirement to sign a deed of final
settlement if called upon to do so. The appellant had accepted the
respondent’s offer to be retrenched and by the same token had
elected to accept the first respondent’s offer to sign a deed of
settlement “as contemplated in the guidelines”. It followed, so
Maritz, JA concluded, that the written exchanges between the parties
constituted a contract by offer and acceptance subject to the
appellant’s voluntary retrenchment policy guidelines. It followed
furthermore that the first respondent was retrenched in terms of the
agreement that was concluded when the appellant had accepted the
first respondent’s application for voluntary retrenchment under
the scheme.
As regards the meaning to be ascribed
to the phrase “years of service with the NBC”, Maritz, JA,
applying the golden rule of interpretation, including extrinsic
evidence such as the first respondent’s insistence not to sign the
deed of final settlement “until the NBC has taken an official
decision concerning the payouts of SWABC years of service,
additional to the voluntary
package” (emphasis
added), found that that phrase meant no more than what it says,
namely service with the NBC.
I am in complete agreement with the
reasoning of Maritz, JA on the point on which there are differences
of opinion. I agree, in particular, that the first respondent had
offered to partake in the retrenchment scheme knowing that if his
offer were to be accepted, he might be required to sign a deed of
final settlement; that his offer was accepted by the appellant
thereby resulting in a valid contract between the parties; that the
employment relationship was terminated pursuant to and in terms of
the agreement that was concluded when the first respondent’s
application for participation in the voluntary retrenchment scheme
had been accepted; and that the phrase “years of service with the
NBC” does not include the first respondent’s years of service in
the employment of SWABC prior to Independence.
I, too, would allow the appeal and
for the reasons given by Maritz, JA in respect of the first
respondent, I will join in the order proposed by Chomba, AJA.
________________________
SHIVUTE,
CJ