11
REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: LC 9/2013
In the matter between:
IMMANUEL HANGE 1ST APPLICANT
RUDOLF SHAPAKA 2ND APPLICANT
SALATIEL NOOVE 3RD APPLICANT
and
AUGUSTA EMMA MARGARETE ORMAN RESPONDENT
Neutral citation: Hange v Orman (LC 9/2013) [2013] NALCMD 41 (19 November 2013)
Coram: CHEDA J
Heard: 29 October 2013
Delivered: 19 November 2013
Flynote: Reasonable explanation in applicants’ failure to defend an action – And a bona fide defence should be shown in order for the court to grant the application – Applicants’ illiteracy and socio-historical background should be taken into account in determining the reason for their failure to act timeously.
Summary: Applicants had spent the rest of their lives on a farm, as employees. Their previous employer died leaving a will authorizing them to continue living there with their livestock, subject to the consent of the new owner.
A labour dispute occurred which resulted in an agreement which they are challenging as they allege that due to their illiteracy they did not understand the terms and condition of the said agreement. Applicants applied for a rescission of default judgment. Their explanation was held to be reasonable. Application was granted.
ORDER
1) The eviction order granted by the Labour court on the 25 June 2012 be and is hereby set aside.
2) Applicants be and are hereby granted leave to defend the action.
3) Respondent be and is hereby ordered to pay the costs of this application.
JUDGMENT
CHEDA J [1] On the 15th October 2013 applicants lodged an application for the rescission of judgment granted by the Labour Court in terms of the Labour Act, Act 11 of 2007 as read with Rule 31 (2) (b) of the High Court Rules. Respondent applied for and was granted a Default Judgment on the 1st of February 2013 on the basis of an alleged voluntary settlement agreement concluded by the parties arising from an arbitration procedure which was subsequently made into an order of the court.
[2] The facts of this matter are that applicants had been employed on the farm Okombahe No. 16 situated in Okahandja district [hereinafter referred to as “the farm”] for period ranging between 15 to 32 years and were residing on the same farm until their employer passed away. The farm was then taken over by the new owner being respondent in 2006. In 2011 a labour dispute arose between respondent and applicants which led the matter being taken to the Labour court.
[3] According to respondent, a mutual agreement was reached which resulted in payment for compensation to applicants and by that agreement, applicants were required to vacate the farm thereafter. Applicants disputed that there was a mutual agreement and they argue that they were compelled to accept certain amounts offered by respondent. Respondent then sought an eviction of applicants which eviction order was issued by the Labour Court. The said order was served by the Deputy Sheriff who attached same on applicants’ doors of their residence at the farm.
[4] At the time of service of these orders, applicants were no longer resident on the farms. However, respondent proceeded to obtain a default judgment which is now subject of this application.
[5] Applicants have applied for condonation for late file of opposing documents as required by rule 6 (5) (d) and (e) of the High Court Rules.
[6] They explained the reason for their failure to oppose timeously as being due to the non-availability of Messrs Boois and Mumbela whom they had reason to liaise with for this court process. They no longer had places of fixed aboard following their forced departure from the farm by respondent.
[7] First applicant has further argued that since respondent has raised issues in his answering affidavit, he pleaded with the court to indulge him the opportunity to file his replying affidavit in order to clarify the said issues. It is also his argument that the purported order issued by the Labour court was irregular as there was no award attached to it as is the requirement in terms of the labour Act. He also raised the issue of their right to remain on the property by virtue of the provision of the will left behind by the former employer, in particular, that they were entitled to compensation.
[8] Respondent raised points in limine, firstly that applicant had no authority to speak for and on behalf of second and third applicants. To this argument applicant indeed conceded that he holds no mandate for second respondent, but, that he presents this matter at the behest of third applicant as well. He also conceded that second applicant has since moved away from the farm and is, therefore, unreachable. With regards to third applicant, he deposed to an affidavit wherein he fully associated himself with first applicant’s averments in this matter, for that reason first applicant has a right to speak on his behalf.
[9] In my view the concession by first applicant is reasonable well placed and is therefore in order. I find that in the interest of justice, for the reasons that will follow, I should use my judicial discretion and allow the matter to proceed on the merits.
[10] Respondent argued that this application is not properly before the court as applicants have failed to comply with the legal requirements for applications of this nature. Counsel for respondent has vigorously argued that this application lacks merit as it falls short of complying with the well-known requirements for a rescission of judgment. He also criticised applicants’ reliance on the provisions of a will which has since been amended by a codicil and addendum as being ill advised. In short, that applicants have no right to be on the property as whatever right they have was eliminated by the agreement they entered into with respondent which is the basis of the order of eviction. This, I find to be a sound agreement. However, applicants have alleged that throughout the negotiations, they were under the impression that the money they were to receive was for packages and not that they had to vacate the farm.
[11] After all these arguments have been made, the question which falls for determination is whether or not applicants are properly before the court. In the determination of their application the court cannot avoid to look at their personal circumstances as these have a bearing on their explanation for their failure to make the necessary application timeously. This court has an inherent discretion to set aside a judgment on a good cause shown. Rule 31 (2) (b) of the High Court Rules provides:
‘A defendant may within twenty (20) days after he or she has knowledge of such judgment apply to court upon notice to the plaintiff to set aside such judgment and the court may upon good cause shown and upon the defendant furnishing to the plaintiff security for the payment of the costs of the default judgment and of such application to a maximum of R200 set aside the default judgment on such terms as it seems meet.’
[12] First applicant in his founding affidavit argued that he, together with other respondents had been employed by the previous owner for periods ranging between 15 to 32 years until she died on the 12th February 2006. To their understanding, she left behind a will which stipulated that they were to remain on the farm until their death. This is their simple and genuine understanding and belief. They were however unaware that this right (unsufruct) was subject to the consent of the new owner (respondent). Subsequently to the take-over of the farm by respondent, there was a fall out between them and respondent which resulted in the termination of their services and respondent is now ejecting them.
[13] As pointed out above, they stated that they failed to act on the decision of the owner as they were now in the villages and only returned after their belongings had been removed from the farm. It is their belief that they are entitled to remain on the farm, however this court is not asked to deal with that aspect of their contention at this stage.
[14] The requirement for a rescission of judgment are clearly stated in the matter of Grant v Plumbers (Pty) where the learned judge stated:
‘a) He must give a reasonable explanation of his default. If it appears that his default was wilful or that it was due to gross negligence the court should not come to his assistance;
b) His application must be bona fide and not made with the intention of merely delaying plaintiff’s claim;
c) He must show that he has a bona fide defence to plaintiff’s claim.
It is sufficient if he makes out a bona fide defence in the sense of setting out averments which, if established at the trial, would entitle him to the relief asked for. He need not deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour.’
[15] An applicant who prays for a rescission of a default judgment must fulfill the requirements which have been adhered to for a very long time.
[16] In order to determine whether the court should rescind the default judgment or not, there is a need to delve into their reasons for failure to act timeously. I am of the strong view that the following factors come into sharp focus and should be addressed by the court. These are:
1) Applicants are very old, having regard to the fact that they had been employed for periods ranging between 15 to 32 years and resided threat;
2) Upon their notice to vacate, they became homeless as the farm was their only known home for such a long time;
3) Their stay at the farm was clearly in harmony until the arrival of the respondent;
4) They are illiterate;
5) Their understanding of any written information is at the mercy of those privileged individuals who are either illiterate or semi-literate themselves;
6) As soon as they heard of the threat to their habitats, they sought legal advice and unfortunately from a person who was equally not familiar with legal procedure although ultimately their plight finally reached their present legal practitioners albeit very late.
[17] The country’s constitution in particular Article 8 (1) and (2) (a) provides:
‘(1) The dignity of all persons shall be inviolable.
(2) (a) In any judicial proceedings or in other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed.’
and Article 10 (1) and (2)
‘(1) All persons shall be equal before the law.
(2) No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.’ (emphasis added)
[18] This principle has been part of the law, see also Du Plooy v Anwes Motors (Edms) BPK[1]; Kauligas and Spanoudis v Boland Bank[2].
Applicants, as stated are illiterate, throughout the negotiations about the alleged termination of their services and consent to vacate the farm was through other people whose proficiency in their own language they question. They are of the opinion that the money that was paid to them was for terminal benefits, but, they did not agree to vacate the farm.
[19] It is a fact that applicants belong to the previously disadvantaged group of society and some of the consequences of their socio-historical background manifest itself in their illiteracy. This is a fact which the court, in my view, can ill afford to ignore as by doing so, it will be abdicating its judicial duty of dispensing justice fairly to all manner of people irrespective of their social background. It is undisputed that apart from negotiating from a weaker strength their plight was exacerbated by lack of faith and alleged misinterpretation and/or lack of translational skills by those who were handling their matter and were purportedly helping them.
[20] It is their fervent belief that they have a right to be heard and that the said eviction was not properly obtained. This court is not called upon to adjudicate on the validity of the order, but rather on the authenticity of the application for rescission of judgment.
[21] In our law, the court will set aside a judgment on the basis of fraud, discovery of new documents, error or procedural irregularity. See, Swadif (Pty) Ltd v Dyke[3] and National Director of Public Persecutions v Phillips[4].
[22] This court has the power at common law to rescind a judgment obtained in default provided that applicant provides sufficient cause, or what is commonly referred to as good cause. The grounds for settling aside must have been in existence at the date of the final judgment. Good cause has two essential elements in it, namely:
1) That the party seeking relief must present a reasonable and acceptable explanation for its default, and
2) That on the merits the party has a bona fide defence, which prima facie carries some prospect or probability of success, see Chetty v Law Society Transvaal[5] where it was stated: