- December 9, 2022
- |Concise Law Reports (CLR), Labour Law
The applicant was employed by the first respondent as a High School Principal since January 2013. The applicant claimed that he was arbitrarily removed from position as a school principal of the first respondent and referred a dispute of unfair labour practice on the basis of an alleged unilateral change of conditions of employment to the Labour Commissioner on 11 November 2022. The applicant brought an application by notice of motion for the court to hear the matter on the basis of urgency.
The main relief sought by the applicant was to interdict the first and second respondents from removing the applicant from his current position as the school principal until the pending labour dispute has been adjudicated and finalized; to prohibit the respondents from interfering with applicant’s duties as school principal and from appointing someone else to occupy the applicant’s current position of the School Principal. A further condition was that the interim interdict, if granted, shall endure until such time that the dispute pending before the Labour Commissioner’s office was been adjudicated and finalized.
The first and second respondents opposed the application. CHRISTIAAN AJ had to to consider and determine the issue of urgency only and having referred to rules 73(3) and (4), stated that:
‘[5] To determine the urgency of this matter, one has to establish if the applicant has complied with the provisions of rule 73(3) and 73(4). Fortunate enough guidelines have been set out in our case law to assist courts in the determination of issues of urgency.
[6] I therefore repeat hereunder, relying on the authorities, what Masuku J states in the matter of Nghiimbwasha and Another v Minister of Justice and Others [Appeal 38 of 2015] [2015] NAHCMD 67 (20 March 2015). The court dealt with the interpretation of the word ‘must’ contained in rule 73(4) as well as the responsibility of an applicant in a matter alleged to be urgent, para 11 and further reads:
‘The first thing to note is that the said rule is couched in peremptory language regarding what a litigant who wishes to approach the court on urgency must do. That the language employed is mandatory in nature can be deduced from the use of the word “must” in rule 73 (4). In this regard, two requirements are placed on an applicant regarding necessary allegations to be made in the affidavit filed in support of the urgent application. It stands to reason that failure to comply with the mandatory nature of the burden cast may result in the application for the matter to be enrolled on urgency being refused.
[7] The first allegation the applicant must “explicitly” make in the affidavit relates to the circumstances alleged to render the matter urgent. Second, the applicant must “explicitly” state the reasons why it is alleged he or she cannot be granted substantial relief at a hearing in due course. The use of the word “explicitly”, it is my view is not idle nor an inconsequential addition to the text. It has certainly not been included for decorative purposes. It serves to set out and underscore the level of disclosure that must be made by an applicant in such cases.
[8] In the English dictionary, the word “explicit” connotes something “stated clearly and in detail, leaving no room for confusion or doubt.” This therefore means that a deponent to an affidavit in which urgency is claimed or alleged, must state the reasons alleged for the urgency “clearly and in detail, leaving no room for confusion or doubt”. This, to my mind, denotes a very high, honest and comprehensive standard of disclosure, which in a sense results in the deponent taking the court fully in his or her confidence; neither hiding nor hoarding any relevant and necessary information relevant to the issue of urgency.’
[9] Parker AJ, on the interpretation and application of rule 73(4) said in Fuller v Shigwele (A 336/2014) [2015] NAHCMD 15 (15 February 2015), para 2:
‘[2] Urgent applications are now governed by rule 73 of the rules of court (i.e. rule 6 (12) of the repealed rules of court), and subrule (4) provides that in every affidavit filed in support of an application under subrule (1), the applicant must set forth explicitly the circumstances which he or she avers render the matter urgent and the reasons why he or she claims he or she could not afforded substantial redress at a hearing in due course. Indeed, subrule (4) rehearses para (b) of rule 6(12) of the repealed rules. The rule entails two requirements: first, the circumstances relating to urgency which must be explicitly set out, and second, the reasons why an applicant claims he or she could not be afforded substantial redress in due course. It is well settled that for an applicant to succeed in persuading the court to grant the indulgence sought, that the matter be heard on the basis or urgency, the applicant must satisfy both requirements. And Bergmann v Commercial Bank of Namibia Ltd and Another 2001 NR 48 tells us that where urgency in an application is self-created by the applicant, the court should decline to condone the applicant’s non-compliance with the rules or hear the application on the basis of urgency.’
[10] Rule 73(3) provides that a judge, in urgent applications, may dispense with the forms and service provided for in the rules and dispose of the matter as he or she deems fit. An affidavit filed in support of an application, in terms of rule 73(4), must set forth explicitly the circumstances which an applicant avers render the matter urgent also giving the reasons why he claims that he could not be afforded substantial redress at a hearing in due course. The issue of absence of substantial redress in due course, in the main, determines the urgency of the matter.
[11] In determining whether a matter is urgent or not, each case is decided on its own facts Tjipangandjara v Namibia Water Corporation (Pty) Ltd (LC 60/2015) [2015] NALCMM 11 (11 May 2015).’
Having had regard to the applicant’s founding affidavit, the court found that provision of rule 73(3) and (4) were clearly not satisfied and, the fact that irreparable damages may be suffered is not enough to make out a case of urgency. Although it may be a ground for an interdict, it does not make the application urgent. The applicant must further make out a case that they will not obtain substantial redress in due course and that the urgency is not self-created.
‘[22] The applicant has not set forth explicitly (1) the circumstances which he avers render the matter urgent and (2) the reasons why he claims he could not be afforded substantial redress at a hearing in due course within the meaning of rule 73(4) (a) and (b) of the rules of court. It has often been said in previous judgments of our courts that failure to provide reasons may be fatal to the application and that mere lip service is not enough. (Luna Meubel Vervaardigers v Makin and Another (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 137F; Salt and Another v Smith 1990 NR 87 (HC) at 88 (1991 (2) SA 186 (Nm) at 187D – G).
[24] As respects satisfying the requirement in rule 73(4) (b), the applicant has not set forth explicitly reasons why applicant claims he could not be afforded substantial redress in due course. All that is said ‘the arbitration process will not become moot, once the new person is appointed as the principal, but to prevent the respondents from selling the quota to third parties’. But this statement cannot satisfy the requirement of rule 73(4) (b). Besides, there is an ongoing arbitration process, where the issues between the parties are being ventilated. This clearly demonstrates that the applicants cannot, therefore, be heard to say that they cannot and will not be afforded substantial redress at a hearing in due course.
[25] …I therefore take the view that the applicant’s urgency is not only self-created, but also self-serving in that the applicant seeks to protect a financial benefit to be derived from the fishing quotas sought to be interdicted and this brings this application under the caption of commercial urgency. This court is replete with authority that the possibility of financial hardship or financial losses does not constitute a ground for urgency.
[26] Based on these reasons, I am of the view that the applicant has failed to demonstrate that the matter is of such urgency that the provisions of the rules need to be abridged.
[27] I will now turn to the issue of costs, section 118 of the Labour Act[1] reads as follows:
‘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.’
[26] In National Housing Enterprise v Beukes and Others[2], Van Niekerk J while dealing with s 20 of the Labour Act 6 of 1992, said the following about the terms frivolous or vexatious:
[20] “… The question arises: what does it mean to say that a party has “acted frivolously or vexatiously”? In Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W) Nicholas, J as he then was, while dealing with an application to stay proceedings which were alleged to be vexatious or an abuse of the process of the court, said this: “In its legal sense, “vexatious” means frivolous, improper: instituted without sufficient ground, to serve solely as an annoyance to the defendant.’
[21] It seems to me that the intention in enacting s 20 was to allow a measure of freedom to parties litigating in labour disputes without them being unduly hampered by the often inhibiting factor of legal costs. The exception created by the section uses the word acted, indicating that it is the conduct or actions of the party sought to be mulcted in costs that should be scrutinised. In other words, the provision is not aimed at the party whose conduct is such that the proceedings are vexatious in effect even though not in intent.”
[28] In other words, it occurs to me that these words mean that the party allegedly acting vexatiously or frivolously must act in a manner that is in all the circumstances of the case without pure and honourable motive; one that is entirely groundless; without proper foundation and singularly designed to trouble, irritate, irk, incense, anger, provoke, pique and serve to disturb and vex the spirit of the other party.
[28] In the matter of Aussenkehr Farms (Pty) LTD v Namibia Development Corporation Ltd[3] 18 where Ngcobo AJA stated:
“[18] The Court has an inherent power to protect itself and others against an abuse of its process. As was said in Hudson v Hudson and Another, “When the court finds an attempt to use for ulterior purposes machinery devised for the better administration of justice, it is the duty of the court to prevent such abuse”. The power to prevent the abuse of the process of the court is an important tool in the hands of courts to protect the proper functioning of the courts and to prevent the judicial process from being abused by litigants who instituted proceedings to harass their adversaries with vexatious litigation. It prevents the court process from being turned into an instrument to perpetuate unfairness and injustice, and the administration of justice from being brought into disrepute”[4] (My Emphasis)
[29] If one then returns to the facts of this case it becomes clear – and even if I accept to some degree that the applicant believed in the justice of his cause and also that his plight motivated his belated referral to an extent– that this is a case where the proceedings are without doubt to be considered an abuse, which put the first and second respondents to unnecessary additional trouble and expense, four years after a change of the conditions of service. What aggravates the situation in addition is that the applicant could have withdrawn his application after a sober reconsideration of his position once he had been appraised of the first and second respondents grounds of opposition. In spite of this opportunity he nevertheless persisted doggedly with this urgent application. In all the circumstances, I believe therefore that this is a fit and proper instance where the applicant should lose the protective shield afforded by section 118 against a costs order.
[30] Having considered section 118, I am of the view that the applicant acted in a ‘frivolous or vexatious manner’. I find no reason why the costs should not follow the result in this matter, I therefore order that the applicant pay the costs of the first and second respondents.
[1] Labour Act 11 of 2007.
[2] National Housing Enterprise v Beukes and Others 2009 (1) NR 82 (LC) at 87E-88F, referred to with approval in Namibia Seaman And Allied Workers Union v Tunacor Group Ltd 2012 (1) NR 126 (LC).
[3] Aussenkehr Farms (Pty) LTD v Namibia Development Corporation LTD SA 23/2010 [28/03/2012] (Delivered 13/08/2012) para 1.
[4] Tambaoga Shirichena v Namibia Training Authority (LCA 04/2016) [2016] NAHCNLD 81 (23 September 2016).
Hangayika v Amazing Kids Private School Academy (HC-MD-CIV-MOT-GEN-2022-00271) [2022] NALCMD 77 (09 December 2022)