REPORTABLE

CASE NO. SA 4/2007

IN THE SUPREME COURT OF NAMIBIA

In the matter between

and

Coram: Shivute,
CJ, Maritz, JA, et
Chomba, AJA

Heard on: 22/10/2007

Delivered on: 12/06/2009

APPEAL JUDGMENT

SHIVUTE,
CJ:

1. 
   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.

   
   

2. 
   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.
   

   
   

3. 
   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.
   

   
   

4. 
   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.
   

   
   

5. 
   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.
   

   
   

6. 
   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