Court name
Supreme Court
Case number
SA 4 of 2007
Title

Namibian Broadcasting Corporation v Kruger and Others (SA 4 of 2007) [2009] NASC 6 (12 June 2009);

Media neutral citation
[2009] NASC 6





REPORTABLE



























REPORTABLE




CASE NO.
SA 4/2007


















IN THE SUPREME COURT OF NAMIBIA



In the matter between















NAMIBIAN BROADCASTING
CORPORATION




APPELLANT








and















ADRIAAN JACOBUS KRUGER



AUGUST CHORIEN BIKEUR



UNANISA PHILLIP KAVETUNA



MOSHE MOSES BAITSEWE



FREDDY MYNHARDT BROWN



GERHARD HEINRICH CLAASEN



LORENZO AHLEN DAVIES



FREDEGAR KARL FREWER



UETUJENGUA MOSES HENGARI



DERICK THOMAS JASON



ADELL ELSE KAITJINDI



CONST KAKUNDE



JOHN THEO KAURAISA



SIMSON KAZOMBIAZE



GEORGE ANDRIES LE HANIE



ROSEMARY MAMPI NALISA



RONEL POOLMAN



GOTFRIED SHILEMO



NGATANGUE TJIRIMUJE



ESAU UIRAB



STEFANUS UIRAB



MARILYN LYPNA VRIES




FIRST RESPONDENT



SECOND RESPONDENT



THIRD RESPONDENT



FOURTH RESPONDENT



FIFTH RESPONDENT



SIXTH RESPONDENT



SEVENTH RESPONDENT



EIGHTH RESPONDENT



NINTH RESPONDENT



TENTH RESPONDENT



ELEVENTH RESPONDENT



TWELFTH RESPONDENT



THIRTEENTH RESPONDENT



FOURTEENTH RESPONDENT



FIFTEENTH RESPONDENT



SIXTEENTH RESPONDENT



SEVENTEENTH RESPONDENT



EIGHTEENTH RESPONDENT



NINETEENTH RESPONDENT



TWENTIETH RESPONDENT



TWENTY FIRST RESPONDENT



TWENTY SECOND RESPONDENT







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.









  1. 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.









  1. 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.









  1. 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.






  1. 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.









  1. 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