REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO. LC3/13

In the matter between:

ABRAHAM ONESMUS APPLICANT

and

NAMIBIA FARM WORKERS’ UNION RESPONDENT

Neutral Citation: Onesmus // Namibia Farm Workers’ Union (LC 3/2013)

[2018] NALCMD 17 (16 July 2018)

CORAM: MASUKU J

Heard: 29 June 2018.Delivered: 16 July 2018.

Flynote: Labour law – propriety of issuing costs orders in labour matters

– s.118 of the Labour Act – meaning of frivolous and vexatious conduct in

litigation revisited and investigated – Rules of Court – Rule 22 – case

management - Statutory interpretation – what happens in matters where

subordinate legislation conflicts with primary legislation.

Summary: The applicant, in the context of a labour matter, brought an

application to court for an order allowing him to issue a writ of execution

against the respondent. The application was submitted to case management

in terms of the provisions of the High Court Rules. In the course of the

management of the case, the applicant defaulted in complying with two court

orders, as a result of which the court called upon the applicant to show cause

why he should not be sanctioned in terms of the Rule 53 of the High Court

Rules. The applicant declined the invitation and the court sanctioned the

applicant by dismissing the application and ordering the applicant to pay the

costs.

Dissatisfied with the sanctions order issued, the applicant brought an

application for rescission of the said order on the grounds that it was granted

in error as s. 118 of the Labour Act prohibits the granting of costs in labour

matters save in a few and circumscribed situations. The respondent argued

that the court was within its rights to issue the order as to costs for the reason

that the applicant had behaved in a manner that was frivolous and vexatious

and that as the Labour Act did not provide for case management, the court

could apply case management in terms of the High Court rules and may in

that regard, impose costs orders in appropriate cases.

Held – that the order applied for by the applicant was too broad because it

also applied for the setting aside of the order dismissing the application when

no foundation had been laid for such an order in the accompanying affidavits.

Held further that – legal practitioners should ensure that prayers they seek

have their life and foundation in the papers filed with the court and that

attempts to embellish the prayers sought by making argument in heads of

argument will not be allowed.

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Held that – where there is a conflict between primary and subordinate

legislation, the latter should yield to the former.

Held further – that costs should not be lightly granted in labour matters unless

the conduct of the erring party is vexatious or frivolous in relation to instituting,

continuing prosecuting or defending a cause that is clearly meritless and

amounts to an abuse of the process of the court and serving to irk, or annoy

the opposite party.

Held further that – in circumstances where a labour case is submitted to case

management and a party conducts the case in a manner that suggests

frivolity or vexatiousness, the court may impose other means of enforcing or

punishing compliance other than issuing a costs order where there is

otherwise good reason to initiate, proceed with or to defend the proceedings.

The applicant’s application was upheld insofar as the court had, in the order

dated 17 July 2018, mulcted the applicant in costs. The order dismissing the

application as a sanction, was left intact.

ORDER

1. The order issued by this court on 17 August 2017, is rescinded and set

aside, to the extent that it ordered for costs in favour of the

Respondent.

2. The portion of the said order relating to the dismissal of the application

stands unaffected by the order in paragraph 1 above.

3. There is no order as to costs.

4. The matter is removed from the roll and is regarded as finalised.

JUDGMENT

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MASUKU J;

Introduction

[1] In this case there is a battle of two legal titans – provisions of an Act of

Parliament on the one side and provisions of subordinate legislation on the

other. The question is which one of the two should, legally speaking, carry the

day when they stand toe-to-toe and eye-ball to eye-ball, in conflict with one

another?

[2] Standing in the red corner of the proverbial boxing ring is Mr. Rukoro,

for the applicant and in the blue corner, is Ms. Nambinga for the respondent.

Mr. Rukoro’s position is that where there is a conflict between a provision of

an Act of Parliament and the provision of subordinate legislation, the Act of

Parliament should have pre-eminence, and thus prevail. Ms. Nambinga

adopts a contrary position in the circumstances of the instant case. Which of

these discordant positions should carry the day?

Background

[3] At issue in this matter is an order issued by this court, dated 17 August

2017, which reads as follows:

‘Applicant has failed to comply with the court orders dated 11 July 2017 and

27 July 2017 and has failed to explain his non-compliance. Accordingly, the

Applicant’s application is dismissed with costs.’

[4] A background regarding how the court came to issue the order that it

did is critically necessary. The applicant, together with two others, were

employed by the respondent. They were subsequently dismissed by the

respondent and as they are entitled to at law, they reported a dispute with the

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Labour Commissioner. The respondent did not attend the arbitration hearing

notwithstanding that it was aware of the date of hearing.

[5] Faced with the absence of the respondent, the arbitrator issued an

award in favour of the applicant and his co-workers. In this regard, the

respondent was ordered to reinstate the employees. It would appear that a

settlement agreement was reached with the applicant’s co-employees. The

applicant, for his part, in view of the favourable award, sued out a writ of

execution from the offices of the registrar of this court for the payment of an

amount of N$ 83 343.85, which writ was partially complied with. The applicant

attempted to issue a second writ for the balance owed.

[6] It would appear that his efforts to issue and have executed the second

and further writs hit a snag as the Assistant Registrar refused to issue same

and insisted on the production of an order of court authorising the issuance of

further writs of execution. As a consequence, the applicant brought an

application before the court, seeking an order authorising the issuance of a

second writ and such further writs, as may be necessary, in execution of the

balance of the award.

[7] The matter was allocated to a managing judge, who issued orders in

the wake of the case management of the matter and which the applicant did

not comply with. On 27 July 2017, the managing Judge issued an order for a

sanctions hearing as follows:

‘1. The matter is postponed to 17 August 2017 for a sanctions hearing.

2. Applicants are directed to file an affidavit by 10 August 2017 to explain non-

compliance with the court order dated 11 July 2017 and why sanctions should not be

imposed as contemplated in Rule 53.’

[8] It would appear that notwithstanding the order quoted above, the

applicant failed or neglected to comply with the orders issued by the court and

he was therefor found to be on the wrong side of the court order. In

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consequence, the court issued an order on 17 July 2017, in the absence of

the applicant, to the following effect:

‘The Applicant has failed to comply with court orders dated 11 July 2017 and

27 July 2017, and has failed to explain his non-compliance. Accordingly, the

applicant’s application is hereby dismissed with costs.’

[9] It is the order issued and captured in the immediately preceding

paragraph that has sparked the present application. The applicant contends

that the order was erroneously issued. To quote the applicant verbatim, the

order should be rescinded on the ‘basis that it is void from the beginning and or

was obtained by mistake as contemplated in Rule 16(5).’ In the alternative, a

prayer is made for the order to be rescinded in terms of Rule 16(1) of the

Labour Court Rules. The basis of the alleged error, is that the order,

particularly as to costs, contravenes the provisions of s. 118 of the Labour

Act.1 I will return to deal with those provisions in due course.

[10] What is the respondent’s take? The respondent, in answer, alleges

that there is nothing untoward with the order in question for the reason that

the High Court Rules, promulgated in terms of s. 39 of the High Court Act2

apply with such qualifications, modifications and adaptations as may be

necessary in instances where the Rules of the Labour Court make no

provision. It is, in this regard argued that the Labour Court Rules do not make

provision for judicial case management but that in this case, the managing

Judge submitted the matter to the provisions of rule 22 of the High Court

Rules and thus case managed the matter and it is in the course of that

process that the order complained of was issued and is perfectly allowed by

Rule 53.

The law applicable

[11] Section 118 of the Labour Act provides the following:

1 Act No. 11 of 2007.2 Act No. 16 of 1990.

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‘Despite any other law in any proceedings before it, the Labour Court must

not make an order for costs against any party unless the party has acted in a

frivolous or vexatious manner by instituting, proceeding with or defending those

proceedings.’

[12] On the other hand, in dismissing the application and mulcting the

applicant in costs, the learned Judge relied on the provisions of Rule 53 (1)

which applies in cases where a party, without a reasonable explanation, fails

(a) to attend a case planning or other case management conference; (b) to

participate in the creation of any case management report, including a pre-trial

report; (c) comply with any case plan order, case management or pre-trial

order or status hearing order; (d) participate in good faith in a case

management hearing or other pre-trial process; (e) comply with a case

management or pre-trial process or (f) to comply with deadlines set by any

order of court.

[13] Rule 53 (2) then stipulates the panoply of sanctions at the disposal of a

court that it may issue to errant parties. These include refusing to allow the

errant party to support or oppose any claims; striking out pleadings;

dismissing the claim and entering final judgment and directing the errant party

or that party’s legal practitioner to pay the opposing party’s costs.

[14] Stripped to the bare bones, the respondent is of the view that there

was nothing wrong with the approach of the court, considering in particular,

that the applicant, in conducting the litigation in the manner it did, engaged in

conduct that smacked of vexatiousness and frivolity. It was also argued that

parties should know and understand that court orders matter and that litigants

should expect that if they do not comply with court orders, the court will

impose sanctions to bring the errant party back to the rails of compliance and

respect of court orders.

The overbroad nature of the order sought

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[15] At the hearing of the matter, I raised the issue with Mr. Rukoro that the

order prayed for by his client, appears, in the circumstances, to have been

overly broad and had a reach beyond the confines of the legal issues and

grounds laid in the supporting papers. I say so for the reason that when one

has regard to the reasons in the founding affidavit advanced for rescinding the

said order, it is alleged that the court was incorrect and therefor erred in

mulcting the applicant with an adverse order as to costs in light of the

provisions of s. 118. That is all. There is absolutely no basis upon which it is

alleged or shown that the order dismissing the application was in any way,

shape or form, erroneous or incorrect.

[16] Mr. Rukoro, correctly conceded the point and stated that his argument

in the circumstances, would be limited to the issue of costs. I should

emphasise in this regard, that legal practitioners should draft court orders with

the necessary degree of meticulousness, particularity and sensitivity for the

reason that both the court and the other side will consider the matter in

reference to the order sought. In that regard, the order sought must have its

life and foundation in the papers filed and parties should not, at the hearing,

be taken by surprise when the basis of the order is predicated on matters and

issues not specifically pleaded. It must be mentioned in this regard that it is

impermissible for the applicant to embellish the relief sought by including legal

matters in the heads of argument, which, on a proper consideration, have no

foundation in the papers filed of record.

[17] By the same token, the order sought must be confined to what is

strictly necessary for the justice of the case and should not be so broad as to

cover issues beyond the scope alleged and thus yield an injustice on the

opposite party. It is accordingly the case that this matter will be decided purely

on the basis of the correctness or otherwise of the costs order, excluding the

impermissible appendage relating to the order for the dismissal of the

application.

The application for rescission

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[18] In his heads of argument, Mr. Rukoro, argued that the application for

rescission was brought in terms of the provisions of rule 16(1) alternatively

rule 16(5) of the Labour Court Rules. The main question is whether the court

erred in granting an order for costs in the face of the provisions of s.118

referred to earlier.

[19] Rule 16(5) has the following rendering:

‘Where rescission or variation of a judgment is sought on the ground that it is

void from the beginning or was obtained by fraud or mistake, the application may be

made not later than one year after the applicant first had knowledge of such

voidness, fraud or mistake.’

[20] It is clear that the present application is based on the allegation that the

order was obtained in error as it was issued in contravention of s. 118. There

can be no doubt that the application is brought within the period of one year,

not only from when the applicant became aware of it but within a year of the

order being made.

[21] Authority is legion as to what is meant by error in relation to

applications for rescission. It has been stated that rescission based on error

may be invoked in situations where the court makes an order in oblivion to

certain pertinent facts or the law applicable and that if it had been so made

aware of the said facts, matters or the law applicable at the time it made the

order, it would not have made the order it did. These facts of which the court

was aware may appear on face of the record or be brought to the court’s

attention via an affidavit filed in support of the application.3

[22] It must be stated that it is trite that where there is a conflict between a

provision of an Act of Parliament and a provision in any subordinate

legislation, then the former should prevail. In the instant case, it appears to

3 Labuschagne v Scania Finance Southern Africa (Pty) Ltd (SA 45/2013) [2015] NASC (17 August 2015) and Metropolitan Bank of Zimbabwe and Another v David John Bruni and Others (HC-MD-CIV-MOT-GEN-2018/00062) [2018] 97 (17 April 2018).

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me that the Lawgiver stated in very clear, unambiguous and emphatic

imperative terms that costs should not be granted in labour matters.

[23] In this regard, it is unmistakeable that this is the position from the

words, ‘Despite any other law in any proceeding before it’. This other law, in my

view, includes the rules of the High Court, which are in any event in the nature

of subordinate legislation. The second pointer to the bar to granting costs in

such matters, is to be found in the use of the words, ‘… the Labour Court must

not make an order for costs against a party . . .’ also captured in the section

mentioned above.

[24] The only question that has to be answered, in view of the strong

disinclination to costs in labour matters expressed by the Legislature, is

whether the instant case is one in which the applicant acted frivolously or

vexatiously within the meaning mentioned in the said section. If the conduct of

the applicant fits the bill, so to speak, then the court would have been correct

in issuing the costs order.

[25] Ms. Nambinga, was of the firm view that the applicant, by not adhering

to the two court orders, acted in a manner that was frivolous or vexatious. It

was her contention that even if the applicant may not have intended to so act,

the court should be able to read vexatiousness and frivolity from the actions of

a party who may otherwise be well-meaning. In this regard, Ms. Nambinga

referred to the case In re: Alluvial Creek Ltd4 where the court, per Gardiner

JP, reasoned as follows:

‘An order is asked for that he pays costs as between attorney and client. Now

sometimes such an order is given because something in the conduct of a party which

the Court considers should be punished, malice, misleading the Court and things like

that, but I think the order may also be granted without any reflection upon the party

where the proceedings are vexatious, and by vexatious, I mean where they have the

effect of being vexatious, although the intent may not have been that they should be

vexatious. (Emphasis added).

4 1920 CPD 532 at 535.

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[26] Is she correct in her submissions, which were based on the underlined

portion above? Whatever the merits may be of the argument advanced by Ms.

Nambinga, it is clear that the court in the case she quoted, was dealing with

the ordinary understanding of vexatious and frivolous proceedings, arising, for

lack of a better word, at common law. The instant case is miles away from the

beaten track for the reason that the Legislature has, in s. 118 not minced its

words regarding what special meaning must be accorded the words vexatious

and frivolous in the context of the Act. This legislative meaning is not that

ordinarily accorded a measure of fluidity and flexibility by judges, depending

on the peculiar circumstances of the case. I deal more fully with this issue in

para [29] and [30] below.

[27] Before I answer that question, it must be mentioned that courts have

given meaning to the words vexatious and frivolous in previous judgments. In

this regard, I do not have to try to re-invent the wheel, so to speak. In

Fisheries Development Corporation of SA Ltd v Jorgensen and Another;

Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd

and Others,5 the court gave the following meaning to the words in question:

‘In its legal sense, “vexatious” means “frivolous, improper” instituted without

sufficient ground, to serve solely as an annoyance to the defendant . . .’ See also

Namibian Seaman and Allied Workers Union v Tunacor Group Ltd and the

recent Supreme Court judgment in Permanent Secretary of the Judiciary v

Ronald Mosementla Somaeb and Another.6

[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.

5 1979 (3) SA 1331 (W).6 SA 14/2018 (SC) delivered on 2 July 2018, at paras [12] and [13].

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[29] Coming back to the provisions of the section in question, I am of the

considered view that the Lawgiver, was, in its manifold wisdom, prescriptive

as to the nature of the conduct that should attract an adverse order as to

costs in terms of the frivolity and vexatiousness. The obnoxious conduct, it is

clear from the provision, must be in relation to ‘instituting, proceeding with or

defending’ the proceedings and no more, it would appear to me.

[30] Shorn of all the frills, it means that the conduct complained of must

show that the guilty party has either instituted proceedings, or after instituting

same, that litigant comes to the realisation that the institution of the

proceedings was ill-advised, uncalled for and abusive, but, with a full

presence of mind thereto, still decides nonetheless, to continue prosecuting

those ill-fated proceedings. The last category relates to a party defending

proceedings that should on no account be defended because they are from all

angles and perspectives, clearly indefensible. That appears to be the four

corners within which costs may be authorised by the court.

[31] It then follows, in my view, that the argument, by Ms. Nambinga,

together with her reliance on the In re: Alluvial Creek Ltd case, however well

motivated and compelling it may be, shrinks into oblivion when one considers

the unequivocal manner in which the Legislature dealt with the issue in s. 118

by ascribing a special meaning to the two key words in the legislation. The

long and short of it, is that I regrettably do not agree with Ms. Nambinga’s

reasoning in the premises.

[32] In the circumstances, it becomes clear as noonday that where the

labour proceedings have been either been properly instituted, proceeded with

or defended by a party, such a party may not, under any circumstance, be

mulcted with costs. This, it would seem, would be the case even if the said

party does not adhere to certain orders or directives of the court.

[33] Having said this, I must not be understood to be saying that parties in

labour matters are therefor given the latitude or licence to behave or conduct

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the litigation in a manner that may be disrespectful to the court, dilatory or

even obstructive to the early, speedy and cheap determination of the

proceedings without consequence. I am of the considered view that the court

still retains, in its sanctioning arsenal, save issuing costs, other modes of

retribution at its disposal, including dismissal of the claim, striking out

pleadings and the other sanctions mentioned earlier.

[34] What the court may not do and which the Legislature has pronounced

in very clear and unambiguous terms, is that such a party, if they have

instituted, continued or defended the proceedings in good spirit, they may not

be mulcted with an adverse order for costs, whatever the circumstances. It

would appear that the Lawgiver was particularly sensitive with the

indiscriminate issue of costs orders in that there are in many instances of

unequal power relations in the labour law field.

[35] There is a policy reason why Parliament made the provision in this

matter. Employers, in many cases, have at their disposal, large financial

reserves, which may enable them to draw out proceedings to the detriment of

the less endowed employees financially. Where an adverse order of costs is

issued against an employee that may well spell the death knell to their case,

regardless of how sustainable and merit-worthy their case may be. This is

because a failure to pay the costs may ultimately result in the entire

proceedings being dismissed. It is for these reasons that it appears to me, the

Lawgiver was extremely chary in allowing costs orders to be issued in labour

cases.

[36] Furthermore, due to impecuniosity, some employees, once dismissed,

do not have at their disposal, the wherewithal to seek and obtain legal

representation. In some cases, they may be represented by persons who are

not admitted legal practitioners and in others circumstances, they appear in

person. Being unlettered in law, where admitted legal practitioners do not

appear for the employees, many mistakes, which may attract an adverse

order for costs may be made and if the court were to grant those costs orders,

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that may mark the end of the employees cases, regardless of how good their

cases may have been on the merits.

[37] It will be clear therefor that in the present case, the reason why the

order for costs was issued, was not one in line with the statutory prescription

adverted to in s. 118 above. For this reason, I am of the view that the court, in

issuing the costs order, therefor erred and that had the full import of the

provisions of s.118 been brought to the court’s attention, it may well not have

issued the costs order, in addition to the dismissal of the application. This is

an error, in my view, that falls squarely within the meaning of the provisions of

rule 16.

Conclusion

[38] In the circumstances, I am of the considered view that the application,

as necessarily narrowed down in the preceding paragraphs must be granted.

Both parties confirmed that it would be erroneous to grant an order for costs in

favour of the successful party in this matter and I am accordingly guided.

Order

[39] In the circumstances, I issue the following order:

1. The order issued by this court on 17 August 2017, is rescinded and set

aside, to the extent that it ordered for costs in favour of the

Respondent.

2. The portion of the said order relating to the dismissal of the application

stands unaffected by the order in paragraph 1 above.

3. There is no order as to costs.

4. The matter is removed from the roll and is regarded as finalised.

_____________

T. S. Masuku

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Judge

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APPEARANCE:

APPLICANT S. Rukoro

Instructed by: Directorate of Legal Aid

RESPONDENT S. Nambinga

Instructed by: of AngulaCo. Inc.

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