By Megameno Shikwambi
Former TransNamib acting Chief Executive Officer, Hippy Tjivikua has lost a case against TransNamib in the Labour Court.
The company successfully had the Labour Court cancel an arbitration order by the labour commissioner in favour of Tjivikua who wanted an adjustment to his salary.
TransNamib argued that, although it entered into an employment contract with Tjivikua, the remuneration and service benefits agreed to were not agreed by the minister of transport.
“As such, such remuneration and service benefits are ultra vires the State Owned Enterprises Governance Act and thus null and void from the instance,” the company submitted.
Tjivikua’s contract, according to documents seen by The Patriot, was signed on August the 7th 2014. His remuneration was however determined by the TransNamib Board.The court found that Tjivikua was not entitled to the payments of N$200 000 that the arbitrator awarded him.
“It becomes clear in my view, that the award made in respect of bonus was not properly made and would thus fall within the rubric of one granted by mistake,” Justice Thomas Masuku ruled.
TransNamib was represented by Norman Tjombe.
According to TransNamib’s lawyer, Tjivikua ought to have been paid as per his performance which is assessed by the Board of Directors.
He was thus only entitled to N$66 000, the lawyer submitted to the concurrence of the judge. However, TransNamib has been ordered to fork out the legal costs incurred by Tjivikua during the course of the trial.
Facts of the matter
The arbitration award was issued on 10 May 2017 and was registered on 9 June 2017.
The award was made a court order and was served to a TransNamib official in the legal departments of the company.
According to court documents, a writ of execution was issued on 13 July the and seven TransNamib vehicles were attached by the deputy sheriff.
A sale of execution was scheduled for 7 October and before it could materialise, TransNamib launched an application for cancellation of the arbitration award with the Labour Commissioner, but failed to pursue it further.
The application was not opposed. According to court papers, the sale in execution did not proceed as Tjivikua’s legal practitioners did not give the go-ahead and was postponed to 25 November 2017.
TransNamib later brought an urgent application and the court granted an order to cease the sale in execution, pending the hearing for an application of cancellation that TransNamib had to institute on or before 1 December 2017.
According to Tjivikua, TransNamib’s application for cancellation of the award was a “back-door attempt to apply for rescission of judgment.”
Tjivikua also submitted that an application for cancellation in terms of rule 16 (54) could not be made where an arbitration award was made an order of the court.
According to his lawyer, the best option for TransNamib was a review and not rescission of the arbitral award. Tjivikua’s lawyer concluded that the application was fundamentally flawed, in that the arbitration award was made an order of court prior to the launching of the application.The Judge in the matter was seized with determining first whether the rail company was correct to bring the matter before the court.
“Where the award is made an order of court pursuant to an application, it would mean that a party who wishes to rescind the order, after it has been made an order of court, would have to first move an application to set aside the order making the award an order of court.
It would only be after succeeding in that initial application that the party could then challenge the propriety of the order proper, namely by alleging that it was granted in circumstances that tender it liable to rescission in terms of rule 16,” said the Judge.
He came to the conclusion that there was nothing that would exclude TransNamib from approaching the court if the order they seek to quash had been made an order of court via registration.
There was thus nothing untoward in the company bringing the application before the court, the Judge found.
After finding that the company was not offside in bringing the matter to court, the Judge further determined that TransNamib was entitled to the order it sought.