Namib Mills (Pty) Ltd v Amushelelo (HC-MD-CIV-MOT-GEN-2024/00118) [2024] NAHCMD 249 (27 May 2024)
Facts
The applicant (Namib Mills) and first respondent (Mr Amushelelo) had a series of prior confrontations dating back to 2022. According to the applicant, on or about 19 April 2022, the first respondent delivered a letter at its principal place of business, dated 19 April 2022, and titled ‘Employee’s Demands and Grievances’.
The letter, according to the first respondent, was a courtesy call to the applicant’s management to encourage management to engage with employees, labour unions and any stakeholders involved to ‘iron out any differences’ as highlighted in the aforesaid letter. The letter, although not signed, had the name of Mr Kalimbo Iipumbu (Member of Parliament representing NEFF) printed thereunder, and the missive appeared under the NEFF letterhead.
On 25 April 2022, the first respondent entered the applicant’s premises, and blocked the main entrance of the premises with his motor vehicle in an attempt to secure a meeting with Mr Pieter van Niekerk, who is part of the applicant’s management team. The applicant proceeded to call the Namibian Police Force to remove the first respondent’s motor-vehicle, which was causing an obstruction and, as a result, obstructing the applicant’s business operations.
On 1 March 2024, the first respondent paid the applicant a visit to address the grievances of the fifth respondent, who is in the employ of the applicant. He also wanted to discuss ongoing disciplinary proceedings against several others of the applicant’s employees. He was requested to leave the premises and instead engage the applicant in writing, after which he left. The first respondent proceeded to the applicant’s depot situated at Ruhr Street, Windhoek. He was again requested to vacate the premises, and engage the applicant through correspondence.
On 5 March 2024, the first respondent posted a ‘stern warning’ on his personal Facebook account, cautioning the applicant that they should be prepared for serious retaliation and consequences if they were to dismiss employees. In response to a letter from the applicant’s legal practitioners, the first respondent published on Facebook and posted that he interpreted the letter from the applicant’s lawyer as a declaration of war.
On 6 March 2024, the applicant’s management sought legal advice, and relayed to their legal practitioner the charges in respect of the employees facing disciplinary proceedings to whom the first respondent was referring. These employees were facing charges for alleged theft of produce and/or having knowledge of these alleged acts, but failing and/or refusing to act.
On the same date, the applicant enquired from the Offices of the Labour Commissioner, to determine whether the second respondent (NURIWN) was a registered trade union with the offices of the Labour Commissioner as required by the Labour Act 11 of 2007. It was determined that the second respondent is not a registered trade union with the Offices of the Labour Commissioner, but it had submitted an application which was under review.
On 11 March 2024, the first respondent blocked the entrance of the applicant’s Ruhr Street depot with his motor-vehicle, and refused to move it. As a result of the motor-vehicle causing a barricade, no other vehicle could enter or exit the premises. The first respondent, together with the fourth to eighth and tenth to twenty-ninth respondents, proceeded to block the depot’s entrance by having a sit-in, preventing the applicant’s trucks from leaving the depot. The first respondent threatened to shut down the applicant’s operations, and published inciting posts on Facebook. It was these events that led to the current application.
The applicant approached the High Court on an urgent basis, seeking interdictory relief. The interim relief was granted by agreement between the applicant and the first respondent on 2 April 2024. As a result, it allowed the remaining respondents to file their notices of opposition and answering papers. However, on the return date of the rule nisi, only the first respondent filed his answering papers. The first respondent opposed the application on the basis that it would violate his fundamental rights to freedom of speech and expression, and that confirmation of the rule nisi would constitute a gag order.
Issues for determination
- Whether the granting of the final relief would constitute a violation of first respondent’ fundamental rights and freedoms.
- The court had to consider a number of issues relating to the grievances of the employees of the applicant, which falls within the ambit of the Labour Act, which the first respondent raised.
Discussion
‘Requirements for a final interdict
[29] The applicant seeks a final interdict in the current proceedings. A final interdict can only be granted in motion proceedings if the facts, as stated by the respondent, together with the admitted facts in the applicant’s affidavits, justify an order. [30] In Director-General of the Namibian Central Intelligence Service and Another v Haufiku and Others, the court said:‘(T)he court retains a discretion to refuse a final interdict if its grant would cause some inequity and would amount to unconscionable conduct on the part of the applicant.’
[31] In the aforementioned case, Damaseb DCJ noted the requirements for the granting of a final interdict to be:‘[62]. . .there are three requirements, all of which must be satisfied by an applicant: a clear right which is being protected, an act of interference with that right, and the absence of a similar remedy if the interdict is not granted. The clear right must be established on a balance of probability by producing supporting evidence. As regards the interference with the clear right, the mere assertion of a reasonable apprehension or fear of interference would not suffice. The facts supporting the apprehension must be set out in the application to make it possible for the court to make an assessment itself whether the fears are well-grounded’.
Discussion
Clear right
[32] The first respondent has cited several fundamental rights and freedoms, yet one crucial right, Article 21(1)(j), has been overlooked. This article explicitly grants all individuals the right to practice any profession, or engage in any trade or business. Therefore, the applicant is well within their rights to trade and conduct business without unwarranted interference.Act of interference
[33] The act of interference means the interference with or an invasion of the applicant’s rights and resultant prejudice. The injury must be a continuing one, as the court will not grant an interdict straining an act already committed. A past infringement of rights may, however, constitute evidence upon which the court implies an intention to constitute in the same course. [34] The applicant for an interdict is not required to establish that, on a balance of probabilities flowing from the undisputed facts, injury will follow. He only needs to show that there is a reasonable apprehension that injury will result. A reasonable apprehension of injury is one that the court finds to exist on a balance of probabilities. [35] The test for apprehension is an objective one. The applicant must, therefore, show objectively that his apprehension is well-grounded. The apprehension must be induced by some action performed by the respondent, or authorised to be performed by an agent or servant.No other remedy
[36] A final interdict is a drastic remedy, and is at the court’s discretion. The court will not, in general, grant an interdict when an applicant can obtain adequate redress in some other form of ordinary relief. According to the learned author CB Prest, an applicant for a permanent (final) interdict must allege and establish, on a balance of probabilities, that he had no alternative legal remedy.’Findings
Held that the applicant has satisfied the requirements of a final interdict.
Held that a final interdict appears to be the only viable remedy available to the applicant.
Held further that a final interdict would not be a ‘gag order’ to the first respondent and his cause, but would protect the interest of the applicant and oblige the first respondent to operate within the confines of the law.
Held further that freedom of speech is the cornerstone of our society, but when freedom of speech conflicts with other fundamental rights and perpetuates unlawful or criminal conduct, it would be in violation of our Constitution.
Court order
The court granted the rule nisi (final interdict) in favour of the applicant in the following terms:
1.1 The first to third respondents and their member or supporters and the fourth to the twenty-ninth respondents are interdicted and restrained from engaging in any unlawful conduct at any of the premises of the applicant situated at the premises to wit, Katima Mulilo, Otavi, Ondangwa, Keetmanshoop, Windhoek, Brakwater and Walvis Bay, which annexure shall be annexed to this order as annexure “A”, such conduct to include but not be limited to:
1.1.1 blockading the entrances to the applicant’s premises, preventing the applicant, its employees, customers, service providers and visitors from entering and exiting from the applicant’s premises;
1.1.2 threatening to shut down the applicant’s business operations, to make it bleed money and to destroy the applicant;
1.1.3 making threats of whatsoever nature against the applicant or in relation to its business operations, should the applicant not comply with the first to third respondents’ demands.
1.2 The first to twenty-ninth respondents and any other person acting on the incitement of the first to twenty-ninth respondents are interdicted and restrained from engaging in unlawful protests, intimidation and harassment of the applicant, its employees, customers, service providers and visitors at the applicant’s premises.
1.3 The first to twenty-ninth respondents are interdicted and restrained from entering or occupying and/or in any way unlawfully obstructing the access to and from any of the applicant’s premises and those premises occupied by the applicant, from which it conducts its operations within Namibia.
1.4 The first to twenty-ninth respondents are interdicted and restrained from unlawfully disrupting and interfering with the normal functioning of the business operations of the applicant.
1.5 The first to third respondents and any other person acting under their directions or based on the incitement or encouragement of the first to third respondents, or for any other reason, are interdicted, prohibited and restrained from inciting and encouraging any other person to commit any of the acts enumerated herein above.
1.6 The first to third respondents and any other person acting under their directions or based on the incitement or encouragement of the first to third respondents, or for any other reason, are interdicted, prohibited and restrained from coming within 70 metres of the applicant’s premises unless authorised to do so, in writing, by the applicant.
1.7 The thirtieth respondent is granted an order empowering them to take such measures as may be reasonably necessary to give effect to this order. This includes, but is not limited to, removing the first to twenty-ninth respondents and/or any other person so assisting them, from any of the premises of the applicant within Namibia with such reasonable measures as the thirtieth respondent deems appropriate. The thirtieth respondent is also authorized to take such measures as he deems appropriate in order to prevent the first to twenty-ninth respondents and/or any other person so assisting them from unlawfully obstructing the access to and/or from any of the applicant’s premises within Namibia, and/ or in any way unlawfully disrupting and/or interfering with the normal functioning of the business operations of the applicant.
No order as to costs in respect of the second and fifth respondents.
Cost in respect of the first respondent to be cost on an attorney and client scale. Such costs to include the costs of one instructing and one instructed counsel, where so engaged.
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