Court name
Supreme Court
Case name
Tsoeu v Senior Real Estates CC
Media neutral citation
[2010] NASC 18































REPORTABLE


CASE
NO: SA 26/2008























IN THE SUPREME COURT
OF NAMIBIA



In the matter between:














AMANDA
TSOEU



APPELLANT








And














SENIOR
REAL ESTATES CC



RESPONDENT








Coram: Shivute, CJ,
Strydom, AJA et Mtambanengwe, AJA



Heard on: 11/10/2010



Delivered on: 01/12/2010



____________________________________________________________________



APPEAL JUDGMENT







STYDOM, AJA:



  1. This
    is an appeal from the Labour Court. The matter started in the
    district labour court. The appellant was employed by the respondent
    as a secretary. The appellant alleged that after a period of some
    seven weeks the respondent terminated her employment. According to
    the respondent the appellant was not able to cope with the work for
    which she was employed as a consequence of which the parties agreed
    to terminate the employment relationship.







  1. As
    a result of the termination of her employment, the appellant then
    filed a complaint with the district labour court in terms of sec. 19
    of the Labour Act, Act 6 of 1992 (the Act). (Act 6 of 1992 has since
    been repealed by Act 11 of 2007. However, in terms of Schedule 1
    sec 15 of the latter Act, disputes at the time pending under Act 6
    of 1992, must still be concluded under the provisions of Act 6 of
    1992. The present matter is such a dispute.) From this point on
    matters started to go wrong. An attempt was made to serve the
    district labour court proceedings on the sole member of the
    respondent, a Mr. Senior. He however refused to accept the
    proceedings when they were so served on him. Consequently no notice
    to defend was served by the respondent in terms of Rule 7 of the
    Rules of the district labour court, and as a further result whereof
    the appellant was able to apply for and was promptly granted
    judgment by default in an amount of N$ 96,000-00. It was only when
    the appellant started to take steps to execute on the judgment that
    the respondent realized that something was terribly wrong.









  1. The
    respondent then launched an application for the rescission of the
    judgment in order to stop execution on the judgment obtained by the
    appellant. This application was made in the district labour court.
    This application was unsuccessful and the respondent then filed a
    notice of appeal against the finding of the district labour court.
    In order not to confuse the various appeals I shall henceforth refer
    to this appeal as the rescission appeal. However, the filing of a
    notice of appeal did not suspend the execution of the judgment. This
    is so because section 19(2) of the Act provided that the noting of
    an appeal shall not stay the execution on a judgment or order of the
    district labour court. This section furthermore provided that only
    the Labour Court can stay execution on application to it.









  1. As
    a result of the provisions of section 19(2) the respondent thereupon
    launched an urgent application in the Labour Court for the stay of
    execution of the judgment obtained in the district labour court,
    pending the outcome of the rescission appeal. In the meantime the
    appellant had also obtained a garnishee order in the district labour
    court which necessitated the respondent to amend the relief claimed
    in the Labour Court to also include the suspension of this order.
    The relief claimed by the respondent is as follows:







2. That a rule nisi do
issue calling upon the respondents to show cause, if any, to this
Honourable Court on a date to be determined by this Honourable Court,
why an order should not be made in the following terms:







2.1 staying the execution of the
judgment granted by the District Labour Court for the district of
Windhoek on 21 January 2008 under case number DLC 474/07, pending the
resolution of an appeal by the applicant;







2.2 setting aside the warrant of
execution issued under case number DLC 474/07;







2.3 in the alternative to paragraph
2.2 supra, interdicting and restraining the respondents from
in any way, executing upon the warrant of execution issued in terms
of case number DLC474/07;







2.4 that the first respondent be
directed to pay the costs of this application. In the event of
second respondent opposing this application then those respondents
opposing the application should be ordered to pay the costs jointly
and severally, the one paying the other to be absolved.







3. The order in terms of
sub-paragraphs 2.1, 2.2 and 2.3 hereof shall serve as an interim
interdict
with immediate effect pending the finalisation of this
application.”







  1. The
    appellant opposed the application launched by the respondent. The
    appellant appeared personally to oppose the application. After
    argument the learned President of the Labour Court issued the
    following order:








2. That the execution of a
judgment granted by the District Labour Court for the district of
Windhoek on 21 January 2008 under case number DLC474/07, is stayed
pending the resolution of an appeal by the applicant.







3. That the warrant of execution and
garnishee order issued under case number DLC 47/07 (sic) is
hereby set aside.







4. That the first and second
respondents are hereby interdicted and restrained from in any way,
executing upon the warrant of execution, garnishee order dated 28
January 2008 and 12 February 2008, and any other order issued in
execution of the default judgment under case number DLC 47/07 (sic).”







  1. On
    the record it is not clear why the learned President of the Labour
    Court granted prayer 4 above as that prayer was couched in the
    alternative to prayer 3. However, there is no appeal against the
    granting of that order. The second respondent, referred to in the
    order, is not a party before this Court and I need not further refer
    to him.







  1. Thereafter
    the appellant applied for leave to appeal to this Court in terms of
    the provisions of sec. 21(1)(a) of the Act. This application was
    dismissed and the Labour Court issued the following order in this
    regard, namely:







1. That the application is
hereby dismissed.







2. That the application brought before
this Honourable Court is an abuse of the court’s process, and
are (sic) vexatious and frivolous.







3. That the applicant pays the costs
of the application to 1st respondent on an attorney and
own client scale.







4. That the matter is referred to the
Prosecutor-General to further investigate.







5. That the applicant is prohibited to
proceed with the matter until the costs of the 1st
respondent had been paid in full.”







  1. Faced
    with this order the appellant submitted a petition to this Court for
    leave to appeal. A Judge of this Court granted leave to appeal to
    the appellant and issued the following order, namely,







1. That the petitioner’s
application vis-à-vis the first respondent for leave to
appeal against-







  1. paragraphs
    2, 3 and 4 of the order of the Labour Court made on 15 February 2008
    in case No. LC 2/2008 and


  2. paragraphs
    1, 2, 3 and 5 of the order of the Labour Court made on 19 February
    2008 in case No. LC 3/2008




is granted subject to the following
conditions:







  1. that,
    in relation to the order referred to in paragraph (a), the grounds
    upon which the appeal may be prosecuted be limited to the following
    questions of law:








(aa) Does the notice of appeal against
the judgment or order of the District Labour Court comply with the
prescribed constitutive legal requirements for notices of that
nature?







(ab) If not, what is the effect of
such non-compliance on the validity of the notice of appeal in
question?







(ac) If the effect of such
non-compliance is that the notice of appeal is void ab initio
(or that it is otherwise defective), was it competent for the Labour
Court to grant a stay of execution of the District Labour Court’s
order under s 21(2) of the Labour Act, 1992 as contemplated in
paragraphs 2, 3 and 4 of the order referred to in paragraph (a) and
was it the proper forum to decide that issue in proceedings other
than the appeal itself
? (my emphasis)







  1. that,
    in relation to the order referred to in paragraph (b), the grounds
    upon which the appeal may be prosecuted be limited to those
    mentioned in paragraph (i) and the following additional question of
    law: Was it competent or permissible for the Court a quo to
    make an order in the application for leave to appeal prohibiting the
    petitioner to proceed with the matter until the costs of the
    respondent had been paid in full?








  1. that,
    if the petitioner intends to prosecute the appeal, she lodge a
    notice of appeal with the registrar of the Court and the respondent
    or his legal practitioner within 10 days from the date of this order
    stating whether all the orders referred to in paragraphs (a) and (b)
    are appealed against and, if not, which ones and which parts
    thereof;








  1. ..


  2. ..


  3. ..”








(Sub-paragraphs (iv), (v) and (vi)
deal with procedural aspects which were complied with by the
appellant.)







  1. The
    appellant, following upon the order of this Court, duly filed a
    notice of appeal on the following grounds:







AD PARAGRAPH 1(B)(I)(AA)
THEREOF







  1. The
    notice of appeal against the judgment of the District Labour Court
    does not comply with Rule 19(1) and (2) of the Rules of the District
    Labour Court, in terms of which an appeal to the Labour Court shall
    be noted in the District Labour Court, in the following respects:









    1. It
      does not set out the point of law or fact appealed against;










    1. It
      does not set out the grounds upon which the appeal is based.





















AD PARAGRAPH 1(b)(i)(ab) THEREOF







  1. Due
    to the said non-compliance with Rule 19(2) the noting of the appeal
    is void ab initio.








  1. It
    is further void ab initio as the said defective noting of
    appeal freezes the entire appeal procedure by inter alia
    disabling the clerk of the court to process the appeal and the
    Chairman of the District Labour Court to amplify her reasons. In
    this regard Rule 19 of the Rules of the District Labour Court shall
    be read with Rule 51(8)(a) of the Rules of the Magistrate’s
    Court Rules.








AD PARAGRAPH 1(b)(i)(ac) THEREOF








  1. As no appeal was lawfully noted the
    Labour Court could not competently grant stay of execution as
    section 21(2) of the Labour Act of 1992 was the sole legal source of
    its power to do so, which allows for stay only when an appeal has
    been lawfully noted.








  1. The
    Labour Court was not the proper forum of deciding stay as no proper
    appeal to it was pending and the hearing was thus a rehash of the
    hearing and thus a negation of the District Labour Court’s
    jurisdiction and authority.








  1. It
    was ultra vires the Court a quo’s competence to
    prohibit appellant by way of costs to proceed with the matter as
    inter alia the matter has been decided in the Supreme Court
    already that the Court’s discretion to do same is firmly
    contained by Article 12 and such prohibition must come with
    reasons.”












  1. From
    the above outset of the background history of this matter it is
    clear that the respondent was to a great extent the author of its
    own misery. The service of the documents initiating the proceedings
    in the district labour court was properly effected in terms of Rule
    5(2)(a) of the District Labour Court Rules which provided that
    service of process can be by the delivery of such process to a
    respondent by the complainant or any adult person designated by the
    complainant. Mrs. Beukes who sought to serve the process was
    obviously such a person designated by the complainant. Respondent’s
    unjustified refusal to accept the documents set in motion a chain of
    events which have brought the parties to the highest Court without
    the matter being taken any step closer to finality. In the process
    many questionable steps were taken and orders made but which fall
    outside the ambit of the appeal before us. The appeal before us is
    circumscribed by the order set out herein before. Such order was
    necessary because there is no general appeal from the Labour Court
    to this Court. Appeals from the Labour Court are limited to
    questions of law only. (See sec. 21(a) of the Act as amended.)







  1. The
    task of this Court was not made easier by the fact that the
    appellant is a lay person who mostly had to fight her battles
    personally because legal practitioners, appointed for her by the
    Directorate Legal Aid, either disappeared or withdrew, at critical
    times. Furthermore the respondent informed the Court that it abided
    by the decision of the Court so that we also did not have the
    benefit of argument on behalf of the respondent.









  1. There
    are two issues which must firstly be decided because the appeal
    against the order of the Labour Court, made in regard to the stay of
    execution, and the order made in regard to the application for leave
    to appeal proceedings, depend thereon. The first question is
    whether the Labour Court was the correct forum to order a stay of
    execution in the proceedings which started in the district labour
    court where a default judgment was granted in favour of the
    appellant.









  1. Sub.sec.
    21(2) of the Act provided as follows:







(2) The noting of an appeal
under subsection (1) shall not stay the execution of the Labour
Court’s or a district labour court’s judgment or order,
unless the Labour Court on application directs otherwise.”







In my opinion the
provisions of the subsec. is clear. Any application for a stay of
execution, whether it be for a judgment or order of the district
labour court or the Labour Court itself, must be brought before the
Labour Court. In this regard the effect of the noting of an appeal
is different from the situation in ordinary civil matters where the
notice of appeal generally stays any execution on a judgment or order
of the Court which gave it. The respondent therefore correctly
brought its application before the Labour Court.







  1. The
    next issue concerns the alleged defective notice of appeal by the
    respondent in the rescission appeal and the question whether the
    forum for deciding that issue was the present proceedings where
    respondent applied for a stay of execution or whether that issue
    could only be decided in the appeal proceedings itself.







  1. For
    the reasons set out hereunder I am of the opinion that the issue of
    the alleged defective notice of appeal can only be decided in the
    appeal proceedings themselves. It is so that once a notice of
    appeal is filed, it sets in motion the steps spelled out in the
    District Labour Court Rules namely, the clerk of the court must
    within 21 days from the noting of the appeal transmit the record of
    proceedings before that court to the registrar of the Labour Court.
    The clerk of the court must give effect to the Rules notwithstanding
    defects which may be present in the notice of appeal. It is not for
    the clerk of the court or the magistrate to ignore a defective
    notice of appeal. (See in this regard R v Noah, 1959 (3) SA
    53O (E), Nixon v Wilson NO, 1959 (4) SA 215(O), Snyman v
    Crouse,
    1980 (4) SA 42 (O) and Jordan v Penmill Investments
    CC and Another,
    1991 (2) 430 (E).) Although these cases deal
    with Rule 51 of the Magistrate’s Court Rules, those Rules also
    apply to the district labour court in so far as the latter Rules do
    not make provision for any procedure to be followed in any matter
    before the district labour court. (See Rule 26). I can find no
    reason why the principle laid down in the above cases should not
    apply to Rule 19 of the District Labour Court Rules more so as Rule
    19(2) of the latter Rules is almost identical to Rule 51(7) of the
    Magistrate’s Court Rules. Only the court of appeal, in this
    instance the Labour Court, seized with the rescission appeal, can
    deal with and pronounce on the matter and decide whether to condone
    or not to condone any shortcoming or non-compliance with the Rule.







  1. A
    further reason why appellant’s argument in this respect cannot
    be accepted, is that the Court a quo was only seized with the
    application to stay execution on the default judgment. Any other
    Judge of the High Court, sitting as President of the Labour Court,
    may be designated to hear the rescission appeal.







  1. A
    further reason why appellant’s argument in regard to the
    notice of appeal in the rescission appeal cannot be accepted is that
    up to and until the rescission appeal is heard the respondent (i.e.
    the appellant in the rescission appeal) can take steps, if so
    advised and if necessary, to attempt to rectify any defect which may
    exist in its notice of appeal. If such steps are taken it would
    necessarily involve the granting of condonation and that in my
    opinion can only also be dealt with by the Court hearing the
    rescission appeal.








  1. The
    Court a quo was therefore correct in dismissing this argument
    by the appellant and as this was the only ground of appeal raised in
    regard to the proceedings to stay execution of the judgment and the
    garnishee order, it follows that the appeal against those orders
    must be dismissed.









  1. This
    brings me to the orders issued by the Labour Court in regard to the
    application for leave to appeal by the appellant. The finding by
    this Court that the issue of the notice of appeal in the rescission
    appeal can only be heard by the Labour Court seized with the
    rescission appeal also took care of the appellant’s appeal
    against these orders. (See sub.pa. (ii) read with sub.pa. (i)(ac)
    of the order of this Court dated 19 May 2008.) However, in regard
    to the order whereby the appellant was prohibited to take any
    further steps until full payment of the costs of the respondent, the
    order by the Learned Judge of this Court allowed a further or
    additional ground, namely:







(ii)…..(Was) it
competent or permissible for the Court a quo to make an order
in the application for leave to appeal prohibiting the petitioner to
proceed with the matter until the costs of the respondent had been
paid in full?”







  1. An
    order prohibiting a litigant to proceed with litigation until an
    order of costs against that litigant is satisfied will only be given
    by a court in exceptional circumstances. (See Argus Printing and
    Publishing Co
    . Ltd v Rutland, 1953 (3) SA 446
    (CPD) at 449C – F, and Christian v Metropolitan Life
    Namibia Retirement Annuity Fund and Others,
    2008(2) NR 753 (SC)
    a judgment of this Court by Maritz, JA, in which myself and Chomba,
    AJA, concurred.) Such an order, especially in the case of an
    indigent party, may close the doors of the court to that party and
    prohibit access to the court. In the instance of Namibia that access
    is guaranteed by Article 12 of our Constitution. Everything points
    to the fact that the appellant is not a person with financial
    resources and that was in fact stated by the appellant in the Court
    a quo. The court made a finding that the
    appellant’s application was an abuse of the process of the
    court but gave no reasons for this finding. No reasons were also
    given for the ruling which prohibited the appellant from taking any
    further steps until the costs of the respondent were paid in full.
    I can understand the order to pay costs on an attorney and client
    basis. This followed in all probability on the unfounded
    allegations, made by the appellant during argument, in which she
    accused the learned Judge of impropriety in connection with the stay
    proceedings. However, to prohibit her from taking any further steps
    in connection with the proceedings until the costs of the respondent
    were paid in full was, in respect of the appellant, virtually a
    final order which stopped her in her tracks. And to do so in
    proceedings where the appellant was exercising her right, also
    guaranteed by the Constitution, to attempt to obtain leave to bring
    the matter on appeal, was in my opinion not permissible. It is so
    that this Court has found that the Court a quo was correct to
    reject appellant’s submissions regarding the alleged defective
    notice in the rescission appeal but the appellant is a lay person
    who was in all probability advised by other lay persons to follow
    this line of argument. This resulted from the fact that legal
    practitioners appointed to act for her left her in the lurch at
    critical times. Where proceedings involve a lay person as a party
    the cases show that the courts exercised more tolerance and were
    more accommodating in such instances than where the parties were
    legally represented. (See Goldberg v Kroomer and Others, 1947
    (4) 867 (TPD) at 872 and the Christian’s-case, supra,
    at
    para. [8], and the cases referred to therein.) These cases
    took into account that a party is a lay person and that the court
    should not be too meticulous and, as was stated by Maritz, JA, in
    the Christian’s-case, supra, the Court should
    look at the substance of the lay person’s complaint rather
    than the form.







  1. The
    order of the Court a quo may have an effect on the rescission
    appeal and the steps to be taken by the appellant to defend the
    matter. It already seems that for that reason the prosecution of
    the appeal has come to a standstill as we were informed by the
    appellant that no date for the appeal has yet been determined. This
    in itself is a reason why it is not permissible to let the order
    stand as the appellant may not be able to pay the full costs of the
    respondent which will give rise to a stalemate situation where
    neither party can bring the matter to finality. To permit that
    would completely undermine the rights of both parties to bring this
    matter speedily to an end, and would furthermore negate their right
    to have the merits of the dispute adjudicated upon by a Court of
    Law.








  1. In
    the result the following orders are made:







  1. In
    regard to the stay proceedings:




The appeal is dismissed.







  1. In
    regard to the order made in respect of the Application for Leave to
    Appeal proceedings:








1. Paragraphs 2, 3 and 4
of the order of the Labour Court granted on 19th February
2008, are confirmed.







2. Paragraph 5 of the
order of the Labour Court granted on 19th February 2008
whereby the appellant was prohibited to proceed with the matter until
the costs of the 1st respondent were paid in full, is
hereby set aside.







3. In so far as he/she
has not yet done so the clerk of the district labour court is hereby
ordered to comply with the provisions of Rule 19(3) of the Rules of
the district labour court and within 21 days of this order transmit
the record of the rescission appeal to the Registrar of the Labour
Court.







4. In so far as he/she
has not yet done so the Registrar of the Labour Court is ordered, on
receipt of the above record, to comply with the provisions of Rule
18(1) of the Labour Court Rules.























________________________



STRYDOM, AJA























I agree























________________________



SHIVUTE, CJ











































I agree



















________________________



MTAMBANENGWE, AJA





















































ON
BEHALF OF THE APPELLANT:






In
person



ON
BEHALF OF THE RESPONDENT:



No
appearance