Thursday 15 April 2021
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TransNamib v Tjivikua court battles

By Eliaser Ndeyanale

TransNamib has dragged its former acting chief executive officer, Hippy Tjivikua to the High Court in an attempt to among others, overturn a labour court ruling compelling the parastatal to pay Tjivikua N$200 000 over unpaid bonuses for the time he was the acting chief. Tjivikua, who was TransNamib’s executive for strategy and stakeholder management before his suspension in May 2017, approached the labour court in 2016 after the parastatal refused to pay his bonuses.
In 2016 the labour court found in Tjivikua’s favour, instructing TransNamib to pay up.
The arbitration award states that TransNamib failed to show up for two hearings, despite a summons being issued. TransNamib however, is claiming that it was not informed about the date of the hearing (10 April 2017 or any other date).  It was only on 10 May 2017 that TransNamib became aware that an arbitration award had been granted against the institution.
In its founding affidavit, TransNamib through its lawyer Norman Tjombe claims that although it had entered into a written agreement with Tjivikua, his remuneration and services benefits had not been agreed to by the minister of works and transport.
“Accordingly, the benefits, such as the annual adjustment of his remuneration, and the deferred compensation are beyond the authority of the State-owned Enterprises Governance Act, and therefore unenforceable, null and void,” reads the affidavit.
In addition, the railway parastatal said, Tjivikua’s employment contract was not approved by the board of TransNamib as it was only signed only by the then chief executive officer, Sara Naanda.
The rail service provider further stated in its 12 page affidavit that it is a statutory body, funded with taxpayers’ money and cannot operate outside the law.
TransNamib further stated in its affidavit that in any event, if the State-owned Enterprises Governance Act did not apply (in 2014) to Tjivikua’s contract of employment the benefit an of annual performance bonus of N$200 000 should be limited to only one-third of the amount.
“The furthest amount equal to two thirds of the annual performance bonus is only payable to Mr Tjivikua’s performance, as well as TransNamib’s overall performance, and subject to the discretion of the board as determined in clause 7.7 of his agreement of employment.
Mr Tjivikua’s claim and the award made as a consequence of that does not make this distinction, but claims the entire amount of N$200 000.00.
I confirmed that no such decision had been made by the board of TransNamib to pay Mr Tjivikua any bonus. In other words, Mr Tjivikua would in any event not be entitled to two-thirds of the bonus.”
TransNamib further claims that Tjivikua’s salary adjustment for December 2015 would only have been in due in August 2016.
This is claimed because the demand for a salary adjustment for December 2016 would only be due in August 2017, after the referral of the dispute and after the award had been made.
“The claims for adjustment of his pension benefits and deferred compensation should also fail, as the main claims on these claims are based, should fail.
In any event, Mr Tjivikua only entered into the written agreement of employment on 14 August 2014 and therefore would only have been entitled to his first salary adjustment by 13 August 2015 (which is still denied).”
In terms of the award, he was purportedly entitled to a salary adjustment in December 2014, after being employed in that capacity for only 4 months.
“For that reason alone, Mr Tjivikua’s claims should have been dismissed by the arbitrator. Further legal arguments will be advanced in this respect. As Mr Tjivikua obtained the arbitration award by fraud, which arbitration award had in the interim been filed with this Honourable Court registered as a court order, the said court order is also tainted by the same conduct, and is liable to be set aside for that reason.”
In his heads of argument, Tjivikua said that the application is a back-door attempt to apply for rescission of judgement out of time.
He further claimed that the factual version advanced by TransNamib does not stand scrutiny once considered in light of the applicable law.
He added that rule 16 (5) of the rules of the court does not find application on the facts as they stand in the matter.
“The application should be dismissed with costs. We advance a case for costs on the basis that the applicant’s conduct in bringing this application and continuing to pursue the application in circumstances where this court has already ruled that a rule 16 (5) application may not be brought where an arbitration award has been made an order of this court, amounts to rivalrous and vexatious conduct,” he said.
The delivery of ruling on application for rescission will be delivered on 17 June 2019.

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