Labour Court of Namibia Main Division, Windhoek s2

REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LC 66/2011

In the matter between:

LEON JANSE VAN RENSBURG APPLICANT and

WILDERNESS AIR NAMIBIA (PTY) LTD FIRST RESPONDENT LARA JENTSCH SECOND RESPONDENT B R SIMPSON THIRD RESPONDENT

Neutral citation: Van Rensburg vs Wilderness Air Namibia (Pty) Ltd (LC 66/2011) [2013] NALCMD 34 (24 October 2013)

Coram: PARKER AJ Heard: 2 October 2013 Delivered: 24 October 2013

Flynote: Judge – Recusal of – Evidence should be placed before the court for the court to properly make a proper assessment based on the evidence to determine the question whether a reasonable, objective and informed person would with the correct facts reasonably apprehend that the judge will not be impartial in the adjudication of the matter – In the instant case not a phantom of evidence is placed before the court – Accordingly court refusing the recusal application. 2 Summary: Judge – Recusal of – Evidence should be placed before the court for the court to properly make a proper assessment based on the evidence to determine the question whether a reasonable, objective and informed person would with the correct facts reasonably apprehend that the judge will not be impartial in the adjudication of the matter – In the instant case not a phantom of evidence is placed before the court – What is before the court is a request for recusal in the applicant’s legal practitioner’s heads of argument – Court held that the evidence required must be placed before the court in accordance with rule 6(1) of the rules of court – If a legal practitioner or a litigant representing himself or herself was permitted to apply or make application from the Bar or outside the Bar for the recusal of a judge that would indubitably pedestrianize the law of practice of the court and would be detrimental to due administration of justice – Consequently, court dismissed the application for recusal.

Flynote: Legal practitioner – Signing of process must be by a legal practitioner or personally by a litigant who represents himself or herself – The law of practice is in keeping with s 21 of the Legal Practitioners Act 15 of 1995 – The provision in s 21 of that Act is peremptory and it is to protect members of the public from charlatans – Process not signed by a legal practitioner or personally by a litigant who represents himself or herself is void ab initio.

Summary: Legal practitioner – Signing of process must be by a legal practitioner or personally by a litigant who represents himself or herself – The law of practice is the practicalization of the interpretation and application of s 21 of the Legal Practitioners Act 15 of 1995 – In the instant case process signed by a person who is not a legal practitioner – Court held that the process is void ab initio, thus upholding the respondents’ point in limine – Court held further that this conclusion is unaffected by the appearance of the address of a legal practitioner on the process – Court found that reference to that legal practitioner appears only to be an address for the service of documents, that is, a glorified post box – Accordingly, the court concluded that the process is void ab initio and so upheld the respondents’ preliminary point – Consequently, the court struck the applicant’s application.

ORDER 3

(a) The first preliminary point that the proceedings instituted by the applicant by Notice of Motion on 7 June 2013 is invalid ab initio is upheld, and the application is struck.

(b) The informal recusal application is dismissed.

(c) The applicant is ordered to pay the respondents’ costs, including costs of one instructing counsel and one instructed counsel.

(d) On the day of delivery of this judgment a status hearing is to be held to determine the further conduct of the matter.

JUDGMENT

PARKER AJ:

[1] To say that this matter is seeped in a great mass of confusion is an understatement. The court has been inundated with bundles of process being applications and many court notices. There is an application by the applicant Leon Janse Van Rensburg to declare the respondents Wilderness Air Namibia (Pty) Ltd, Ms Lara Jentsch and B R Simpson (one of the directors of the first respondent Wilderness Air Namibia (Pty) Ltd) ‘to be in contempt of court’ (‘the contempt application’). There is also an application launched by the respondents where the respondents seek leave of the court to file a further affidavit in the main application (‘the rule 6(12) (of the Labour Court Rules) application’). Furthermore, there is an application for security for costs brought by the respondents (‘the security for costs application’). In the security for costs application the applicant has filed his answering affidavit out of time. The respondents oppose the late filing of the affidavit. Consequently, the applicant filed an application to condone the late filing of the affidavit (‘the condonation application’). Moreover, there are two applications to strike out filed by the respondents in respect of the founding affidavit and the replying affidavit. Furthermore, the applicant asks for the recusal of the managing judge (‘the 4 recusal application’). It is worth noting that the so-called application for recusal is contained in the heads of argument of the applicant’s legal practitioners. Finally, the respondents have raised two points in limine (‘the in limine points’).

[2] It is significant to mention that the matter was subjected to judicial case management procedures. In that course the following order was made in pursuit of the further conduct of the matter:

‘(1) The application for condonation, point in limine and recusal application are postponed to 2 October 2013 at 10h00.

(2) The application for leave to file replying affidavit is granted, and applicant is to file replying affidavit on or before 20 June 2013.

(3) The applicant shall pay wasted costs for today (11 June 2013), such costs, when taxed, to be paid on or before 2 October 2013.’

[3] Accordingly, in the present proceedings I shall consider (a) the recusal application, (b) the in limine points and (c) the condonation application – in that order.

[4] As respects the recusal application; it is couched in a request contained in the applicant’s legal practitioner’s heads of argument. Where a party alleges bias or apprehension of bias of a judge which impinges on the integrity of that judge, the party who makes such allegation must place evidence before the court for the court to properly make a proper assessment based on the evidence to determine the question whether a reasonable, objective and informed person would with the correct facts reasonably apprehend that the judge will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and submissions of counsel. (See Christian t/a Hope Financial Services v Chairman of Namibia Financial Institutions Supervisory Authority and Others (1) 2009 (1) NR 22.) And so, whether a judge should recuse himself or herself in a case cannot be determined without evidence properly placed before the court.

[5] In the instant case no evidence – not a phantom of evidence – has been placed before the court. And in terms of our rules such evidence should have been 5 placed before the court by notice of motion supported by an affidavit as to the facts on which the applicant relies for relief. That is what I characterize as formal.

[6] To illustrate the point; (a) a legal practitioner X, from the Bar, or a litigant Y representing himself, from outside the Bar, applies that a matter stand down for an hour or so because a witness whose evidence is important will be late in appearing in court, or (b) X or Y applies during proceedings that hearsay evidence be not admitted, (c) X or Y applies to a managing judge by means of a letter requesting the managing judge to hold a status hearing in a matter, or (d) X or Y applies to amend a pleading. In illustrations (a), (b), (c) and (d) the rule of practice of the court is well settled over decades that X or Y is not required to apply formally or make formal applications.

[7] However, where a party takes it upon himself or herself to call into question the integrity of a judge which in itself goes to the root of due administration of justice such party must do so by placing evidence before the court: he or she must apply formally or make a formal application in that behalf. In the instant case, there is no evidence in that regard placed before the court – not one iota of evidence – as I have said previously. If a legal practitioner (in the present proceedings, Mr Ford) or a litigant representing himself or herself was permitted to apply or make application from the Bar or outside the Bar for the recusal of a judge that would indubitably pedestrianize the law of practice of the court and would be detrimental to due administration of justice.

[8] For these reasons, I refuse Mr Ford’s application from the Bar that I recuse myself.

[9] I now proceed to consider the point in limine respecting the ‘Notice of Motion: Application for Condonation of Late Filing of Affidavit in respect of Application for Security’. The respondent’s point at the threshold is that that notice of motion is not signed by a legal practitioner admitted to practise in Namibia in terms of the Legal Practitioners Act 13 of 1995. The notice of motion is rather signed by a LJJ van Rensburg as the ‘Legal Practitioners’ of the respondent (ie the applicant in the present proceedings), and for that reason, the respondents contend, ‘the “application for condonation” is invalid and the “application” does not constitute an application (properly so called) and is to be regarded as null and void ab initio’. 6

[10] Our law is very clear on the point under consideration: process of court must be signed either by a ‘litigant personally or by his or her or its legal practitioners’. And as Maritz J said in Compania Romana de Pescuit (SA) v Rosteve Fishing 2002 NR 297 at 300B, ‘This salutary requirement has become so ingrained in the law of practice and procedure of this Court over many decades that it almost goes without saying’. It is not disputed that LJJ van Rensburg is not a legal practitioner within the meaning of the Legal Practitioners Act. And by issuing the ‘Notice of Motion’ under his signature, claiming to be the ‘Respondent’s (ie Applicant’s) legal practitioner’ and to practise as such as Leon J J van Rensburg in the present matter, LJJ van Rensburg has acted in contravention of s 21(1)(a), (b) and (c) of the Legal Practitioners Act. ‘The legislative purpose behind the section’, so stated Maritz J in Compania Romana de Pescuit at 302B-D, ‘is clear: it seeks to protect the public against charlatans masquerading as legal practitioners …; and it is aimed at protecting, maintaining and enhancing the integrity and effectiveness of the legal profession, the judicial process and the administration of justice in general’. Respecting the policy consideration behind s 21(1) of the Legal Practitioners Act and the foundation, scope and object of that section Maritz J stated succinctly thus in Compania Romana de Pescuit (SA) v Rosteve Fishing at 303E-G:

‘Given the compelling policy considerations behind s 21(1) of the Legal Practitioners Act, 1995 and the formulation, scope and object of the section, I am of the view that the Legislature intends that if a person, other than a legal practitioner, issues out any process or commences or carries on any proceeding in a court of law in the name or on behalf of another person, such process or proceedings will be void ab initio. The view I have taken corresponds with the rules of practice in this Court. Any “looseness” in the enforcement of the well-established practice and of the Rules of Court in that regard is likely to bring the administration of justice into disrepute, erode the Court’s authority over its officers and detrimentally affect the standard of litigation.’

[11] I respectfully accept the dictum in Compania Romana de Pescuit (SA) as correct statement of law, and so I adopt it. I therefore firmly decline to loosen the enforcement of this well-established rule of practice and the rules of court in that regard, as Mr Ford appears to persuade the court to do. If I loosened the enforcement of this well-established rule of practice and the rules of court in that regard it is likely to bring the administration of justice into disrepute, erode the court’s authority over its officers and detrimentally affect standard of litigation; and, a fortiori, 7 it must be remembered, a court cannot have inherent jurisdiction which would entitle it to act contrary to an express provision of an Act of Parliament. The rule of practice under discussion is a practicalization of the interpretation and application of s 21 of the Legal Practitioners Act.

[12] The view I have taken and the conclusion I have reached are unaffected – at all – by the appearance of ‘C/O Hohne & Co’ on the Notice of Motion. The reference to ‘Hohne & Co’ ‘appears only to be an address for the service of documents’. (See Compania Romana de Pescuit (SA) at 304E.) Indeed, as Mr Mouton correctly submitted, that address serves as a post box – a glorified post box, I would say: nothing more; nothing less. Accordingly, I hold that the condonation application is void ab initio.

[13] For these reasons, the first point in limine succeeds. It is therefore unnecessary to decide the other point in limine. The first point in limine having succeeded, the further conduct of the matter should now take its course; that is, the hearing of the security for costs application.

[14] It remains to consider costs. In terms of s 118 of the Labour Act 11of 2007 costs do not follow the event in proceedings in the Labour Court. The court may not make an order for costs against a party unless that party has acted in frivolous or vexatious manner by instituting, proceeding with or defending those proceedings. The instant proceeding is an application (by the applicant) to condone the late filing of opposing affidavit in respect of the respondents’ application for security, as aforesaid. The respondents’ application for security for costs has been put on hold because the applicant opposes that application but the applicant did not file opposing papers timeously. I note, in this regard, that in March 2013 the applicant was notified by a letter that the respondents do not consent to the late filing of the applicant’s answering affidavit. Moreover, the respondents’ legal practitioner made appearance on behalf of the respondents at the Case Management meeting held in this matter on 14 March 2013. The legal practitioner addressed the court that the respondents do not consent to the late filing of the applicant’s answering affidavit. Despite so notifying the applicant of the respondents’ position some three months previously the applicant now brings his application for condonation three days before the hearing of the respondents’ security for costs application. And when the applicant finally files what he considers to be an application he does so in clear violation of the Legal 8 Practitioners Act and the law of practice of the court. I have already held that the application is void ab initio. In my opinion, the applicant’s conduct is vexatious within the meaning of s 118 of the Labour Act 11 of 2007. Furthermore, the conduct of the applicant is frivolous within the meaning of s 118 of the Labour Act when the applicant launched an informal application for the recusal of a judge. For these reasons, I should exercise my discretion in favour of making a costs order against the applicant; as I do.

[15] In the result, I make the following order:

(a) The first preliminary point that the proceedings instituted by the applicant by Notice of Motion on 7 June 2013 is invalid ab initio is upheld, and the application is struck.

(b) The informal recusal application is dismissed.

(c) The applicant is ordered to pay the respondents’ costs, including costs of one instructing counsel and one instructed counsel.

(d) On the day of delivery of this judgment a status hearing is to be held to determine the further conduct of the matter.

------C Parker Acting Judge 9 APPEARANCES

APPLICANT: B Ford Instructed by Hohne & Co., Windhoek

RESPONDENTS: C J Mouton Instructed by Koep & Partners, Windhoek