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REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LC 43 / 2015

DATE: 07 JUNE 2016

In the matter between:

OMAHEKE REGIONAL COUNCIL...............................................................................APPLICANT

And

P U TJIHOREKO...........................................................................................................RESPONDENT

Neutral citation: Omaheke Regional Council v Tjihoreko (LC 43/2015) [2016] NALCMD 21 (07 June 2016)

Coram: UNENGU AJ

Heard: 23 October 2015

Delivered: 07 June 2016

Flynote: Practice – Judgment and Orders – Application for rescission of judgment – Applicant calculating days within which to give notice to oppose wrongly – Explanation for default reasonable and excusable – Respondent concedes wrong computation of days by applicant excusable – Respondent approached the Labour Court to review the decision by the applicant not to renew term of office while the same dispute was pending before the Labour Commissioner – Judgment rescinded with costs granted against the respondent.

Summary: Practice – Judgment and Orders – The applicant had applied for the rescission of a default judgment granted against it for failure to oppose a review application brought against it by the respondent to review a decision taken not to renew his term of office – However, when the review application was filed in the Labour Court to review and set aside the decision taken by the applicant not to renew respondent’s term of office, the same dispute was still pending in the tribunal before an arbitrator – The explanation given for the default, namely wrong calculation of days within which to oppose the application was reasonable and accepted by the court – That being so, the application succeeds and the default judgment set aside with costs against the respondent.

ORDER

(i) The judgment granted on the 24^th of April 2015 in favour of the respondent is hereby rescinded.

(ii) The applicant is granted leave to oppose the review application; and

(iii) Costs of the application which costs to include costs of one instructing and one instructed counsel.

JUDGMENT

UNENGU AJ:

[1] This is an application for the rescission of judgment by Masuku AJ granted in favour of the respondent on 25 April 2015 in absence of the applicant in the following terms:

‘1. The late delivery of this application is condoned.

2. The decision by the respondent on 30 October 2014 purportedly in terms of s 24(2)(a)(xii) of the Regional Councils Act (22 of 1992) read with s 10A(1)(b) of the Public Service Act (2 of 1980) as amended, not to renew the applicant’s contract of employment is hereby reviewed and set aside.

3. The first respondent is directed to extend the applicant’s 5 year term of office as the first respondent’s Chief Regional Officer, alternatively re-appoint the applicant for 5 year term of office as the first respondent Chief Regional Officer, within 7 days.’

[2] The applicant on its part, and in view of the order granted against it by the Labour Court, lodged an application in the same court seeking an order in the following terms:

(a)  Rescinding the judgment granted on the 24 April 2015 in favour of respondent;

(b)  staying the execution of the order;

(c)  Granting applicant leave to oppose the review application;

(d)  Costs of the application (only if opposes); and

(e)  Further and/or alternative relief.

[3] Sophia Eises, a Deputy Director of Human Resources who is the Acting Chief Regional Officer of the applicant in absence of the respondent, deposed to the founding affidavit on behalf of the applicant.

[4] In para1.2 of her affidavit, she states that she was duly authorized to depose of the affidavit and to bring this application on behalf of the applicant, and proceeded to say that the contents of the affidavit fell within her personal knowledge unless the context indicated otherwise and that both true and correct.

[5] In the background version of her affidavit, Ms Eises gives an overview of how the respondent was appointed and on what terms he was appointed, namely a fixed term of 5 years without an option of renewal upon the expiry of the agreement.

[6] She also indicated in her affidavit that the respondent referred a dispute of unfair dismissal to the Office of Labour Commissioner, requesting the Labour Commissioner to order his reinstatement as the Chief Regional Officer for the Omaheke Region and while the matter was still pending before the Labour Commissioner, he approached this Court to grant him the same relief. She said that the notice of intention to oppose the review application was delayed as a result of wrong computation of days calculated using the normal court days as opposed to calendar days. It was a mistake not willful made which she regretted.

[7] In para 5 of her affidavit she gave a detailed defence and grounds for opposition of the review application by the respondent – and expressed her opinion that as the dispute is referred to the Office of the Labour Commissioner for resolution, which was still pending before the Labour Commissioner, the Labour Court lacked jurisdiction to grant the relief sought by the respondent in the review application. Her affidavit was confirmed by Mr Kwala, the legal representative for the applicant.

[8] In his answering or opposing affidavit, Mr Tjihoreko concedes that mistakes may occur like what happened with the wrong computation of days by the legal representative of the applicant in this application, and that such errors are excusable.

[9] However, what is more disturbing and peculiar in this matter is, is the manner how the respondent approached the Labour Court to review the decision of the applicant not to renew or extent his term of office after it come to an end on 28 February 2015. When informed about his term of office as the Chief Regional Officer for the Omaheke Region to have come to an end and that Council will not renew it, the respondent referred a dispute of unfair dismissal to the Office of the Labour Commissioner. The referral of the dispute on Form LC 28 in terms of s 86(4) (Regulation 20(2) ) which is the notice of conciliation meeting or arbitration hearing was served on the Omaheke Regional Council on 10 March 2015 where the Regional Council as the respondent was informed by the Office of the Labour Commissioner that the matter was set down for an arbitration hearing before Ms Emma Nikanor on 25 March 2015 at 09h00 at the Office of the Labour Commissioner in Gobabis.

[10] I believe the same notice was served on Mr Tjihoreko as he was the complainant in the matter. He referred the dispute of unfair dismissal, unfair discrimination, unfair labour practice and a dispute of interest for conciliation and arbitration on 25 February 2015 with a summary of facts attached to the referral form.

[11] An agreement was reached by the legal representatives of the parties to represent their clients in the arbitration proceedings for which a date and place for hearing were already fixed.

[12] Meanwhile, while the matter was still pending before the Labour Commissioner, for conciliation and arbitration by Ms Emma Nikanor, the respondent lodged a review application in the Labour Court, filed on 17 April 2015 at the High Court seeking the same relief sought in the matter the Labour Commissioner was requested to resolve between the parties.

[13] The applicant, in his review application before the Labour Court, did not indicate as what will happen to the dispute which was still pending for arbitration nor did he inform Masaku AJ that the same dispute was pending before another court already set down for hearing in Gobabis.

[14] The respondent in my view, was not honest with the Labour Court in that respect, because the matter or dispute between him and the applicant was opposed albeit in a different forum.

[15] Be that as it may, my task in this application is to consider whether or not to rescind the judgment of Masuku AJ granted in favour of the respondent consequent the review application.

[16] It is trite law that only judgments granted against a litigant in his or her absence under certain circumstances may be rescinded mero motu or on application by the affected party. The application for the rescission has to be made within a certain time period after the party affected became aware of such judgment.

[17] It is further a requirement that the applicant in his or her founding affidavit must persuade the court that the default was not willful and that he or she has a bona fide defence if granted leave to defend the matter. In other words the applicant must show good cause why the default judgment should be rescinded.[1] [2] [3]

[18] In terms of common law, a court has a discretion to grant rescission of judgment where good cause has been shown. (See Kamwi v Law Society supra). It is also a requirement that the judgment must have been made in the absence of the applicant.

[19] As pointed out above, it is required from the applicant in a rescission application to show good cause, that is to give a reasonable explanation for default, which should not be willful or due to gross negligence and must be bona fide.[4]

[20] Taking into account the principles of law in the authorities cited above and the averments made by the applicant in her affidavit, I am satisfied that the default by the applicant to defend or to oppose the review application was not willful nor was it due to gross negligence on the side of the applicant.

[21] The respondent also agreed that the wrong computation of days by the legal representative of the applicant is a mistake anybody could make. Respondent has accepted the mistake made which caused the default. In addition, the delay was very brief.

[22] It is also my view that the applicant has a prima facie or bona fide defence to the claim of the respondent if the averments in the affidavit of the applicant are established at the trial and may prove the relief sought. I agree with Mr Khama, counsel for the applicant that at this stage the court does not have to be satisfied that all the probabilities favour the defence of success.

[23] On the other hand, Mr Maasdorp, counsel for the respondent concentrated more on the merits of the matter. He argued how strong the case for his client is and where the applicant went wrong when the term of the office of his client was not renewed or extended. But before court is the rescission of judgment made by Masuku AJ on 24 April2015 in favour of the respondent. I gather from his submissions that Mr Maasdorp did not have any problem with the default judgment granted in favour of his client be rescinded. It is true that the respondent accepted that the wrong computation of the days by Mr Kwala to file notice to oppose the review application is excusable. Meanwhile, the respondent conceded also that the explanation for the default offered by the applicant was reasonable and not willful. What about other requirements like good cause shown and bona fide defence?

[24] With that said, it is my view that the applicant made out a case for the default judgment of 24 April2015 to be rescinded as prayed for in the notice of motion of 29 April 2015.

[25] There is still one issue of costs which I want to touch on in this matter. In the application for rescission of the default judgment, the applicant in para (d) thereof prayed for costs in the event the respondent opposed the application. The application was indeed contested even though a concession was made that the mistake made by the legal practitioner for the applicant for calculating the days wrongly – using calendar instead of court days is excusable. Although the applicant did not repeat the request for a costs order against the respondent during the hearing of the application – applicant did also not abandon the prayer for costs.

[26] Section 118 of the Labour Act[5], provides ‘Despite any other law in any proceeding before it, the Labour Court must not make an order for costs against a party unless that party has acted in a frivolous or vexatious manner by instituting proceeding with or defending those proceedings’. The conduct of the respondent for bringing an application to review the decision of the Regional Council in the Labour Court while the subject matter was pending in the tribunal before an arbitrator designated by the Labour Commissioner is frivolous or vexatious in my opinion. This is nothing other than a duplication of actions or claims for the same relief before different courts – wasting time and money of the applicant to defend one action or claim in two different courts simultaneously.

[27] It was really unnecessary for the respondent to seek redress for the relief he termed unfair dismissal, unfair labour practice and unfair discrimination in the way he did. As said, the conduct of the respondent is frivolous within the meaning of s 118 of the Labour Act. I shall order costs against the respondent.

[28] Accordingly and for reasons and conclusion stated herein, I make the following order:

(i) The judgment granted on the 24^th of April 2015 in favour of the respondent is hereby rescinded.

(ii) The applicant is granted leave to oppose the review application; and

(iii) Costs of the application which costs to include costs of one instructing and one instructed counsel.

E P UNENGU

Acting Judge

APPEARANCES

APPLICANT : D Khama

Instructed by Kwala & Company, Windhoek

RESPONDENT: R Maasdorp

Instructed by Köpplinger Boltman, Windhoek

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