NOT REPORTABLE
   REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
JUDGMENT
	        	Case No: LC 18/2010

In the matter between:

AFRICA PERSONNEL SERVICES (PTY) LTD                                        APPLICANT

and

THOSE PERSONS WHOSE NAMES 
APPEAR ON ANNEXURE “A” HERETO                  1ST TO 624TH  RESPONDENTS

Neutral citation:  Africa Personnel Services (Pty) Ltd v Those Persons whose Names appear on Annexure “A” hereto (LC 18-2010) [2014] NALCMD 14 (7 April 2014)

Coram:	VAN NIEKERK J 
Heard:	11 May 2010
Delivered:	7 April 2014
Flynote:	Urgent application brought on oral evidence – Rule nisi issued interdicting respondents from certain conduct – Return date anticipated – Point in limine raised that application based on hearsay – Witness not indicating that his evidence based on hearsay – Evidence not containing statements of information or belief – Witness not disclosing sources for information – Confirmatory affidavits made in reply by first hand witnesses – Applicant cannot make case in reply - Point in limine upheld – Hearsay evidence struck – Remaining evidence not sufficient to  sustain confirmation of rule nisi – Rule discharged.
. 
___________________________________________________________________

ORDER
___________________________________________________________________

1.	The fifth point in limine raised by the 4th, 41st, 71st, 119th, 145th, 277th, 377th, 391st, 439th and 570th respondents is upheld.
2.	The rule nisi is discharged and the application is dismissed.
3.	There shall be no order as to costs.
___________________________________________________________________ 
ANNEXURE “A”
M NAMOLO 	  1ST RESPONDENT	
ABROSIUS HAIMBODI 	  2nd RESPONDENT	
DAVID KATALE 	  3rd RESPONDENT	
SIMEON SHIPUNDA 	  4th RESPONDENT	
ESTER KAMHULU 	  5th RESPONDENT	
LEENA SHILONGO 	  6th RESPONDENT	
FELISIAN MUTERO	  7th RESPONDENT	
SOINI KALWENYA	  8th RESPONDENT	
ANNA NENDONGO	  9th RESPONDENT	
RUDOLF AUTANGA	10th RESPONDENT	
JUNIAS PETRUS	11th RESPONDENT	
LUKAS T HITENANYE	12th RESPONDENT	
ERASTUS UUTONI	13th RESPONDENT	
ISMAEL SHILONGO	14th RESPONDENT	
FRANS GABRIEL	15th RESPONDENT	
SEM ANDJENDJA	16th RESPONDENT	
DAVID SHIFUGULA	17th RESPONDENT	
ERASMUS MUYAMBA	18th RESPONDENT	
JOHANNES SIMON	19th RESPONDENT	
KLEMENS SHIKOKOLA	20th RESPONDENT	
WILHELM SHIWEDA	21st RESPONDENT	
ELISE NGHIYALWA	22nd RESPONDENT	
ANNA INDONGO	23rd RESPONDENT	
ESTER ASINO	24th RESPONDENT	
RACHEL P FRANS	25th RESPONDENT	
JOHANNES SHAIMANYA	26th RESPONDENT	
INGO EELU	27th RESPONDENT	
ALBERTIN HAUFIKU	28th RESPONDENT	
FESTUS NANDJENDJA	29th RESPONDENT	
JOHANNES HAIKELA	30th RESPONDENT	
LOIDE KAPENDA	31st RESPONDENT	
ALVIN IYAMBO	32nd RESPONDENT	
SAFARIUS NGHINYENENE	33rd RESPONDENT	
BEATA SHIPINGE	34th RESPONDENT	
TEOFELUS STEFANUS	35th RESPONDENT	
T MWEILIHANGA	36th RESPONDENT	
EINO UUGWANGA	37th RESPONDENT	
MATHEUS ANDJELO	38th RESPONDENT	
JOSEF DAVID	39th RESPONDENT	
WIRBARD HAMUTENYA	40th RESPONDENT	
JOHANNES NIINGUNGO	41st RESPONDENT	
JUNIAS HAIMBODI	42nd RESPONDENT	
SIMSON MICHAEL	43rd RESPONDENT	
ELIFAS N AWINO	44th RESPONDENT	
ESTHER LUNGAMENI	45th RESPONDENT	
UUSIKU NALIMANGULUKE	46th RESPONDENT	
FABIAN NEPILILO	47th RESPONDENT	
MICHAEL NIKANOR	48th RESPONDENT	
FRIEDA NGHITONGO	49th RESPONDENT	
MARIA IIPUMBU	50th RESPONDENT	
HILMA NANGOMBE	51st RESPONDENT	
SARA ND SHAFODINO  	52nd RESPONDENT	
NDEUHALA NGHITEWAPO	53rd RESPONDENT	
LUSIA ELIA	54th RESPONDENT	
APOLONIA HIDINEA	55th RESPONDENT	
FRIEDA AMOOMO	56th RESPONDENT	
LOIDE N HALUDILU	57th RESPONDENT	
REMIGIE PHILLIPUS	58th RESPONDENT	
FRINDA AMUNYELA	59th RESPONDENT	
PETRUS SHITENI	60th RESPONDENT	
LEONARD KAVALE	61st RESPONDENT	
SAIMI N SHILYOMUNHU	62nd RESPONDENT	
SELMA SHIKONGO	63rd RESPONDENT	
OLIVIA R NGHIIYELEKW	64th RESPONDENT	
THEOPHEL SHITUMBU	65th RESPONDENT	
ROSALIA SHIGWEDHA	66th RESPONDENT	
HENRIETT NGUNDA	67th RESPONDENT	
ABISAI IMBILI	68th RESPONDENT	
LAHJA SHEYADIVA	69th RESPONDENT	
SEIVELIA SHIPALE	70th RESPONDENT	
FILLEMON SHIKONGO	71st RESPONDENT	
HELENA KIIMBA	72nd RESPONDENT	
KAROLINA SAMUEL	73rd RESPONDENT	
HENRIETE FILLIPUS	74th RESPONDENT	
FESTUS E KALUWA	75th RESPONDENT	
MONIKA NAKATSE	76th RESPONDENT	
KATRINA SHIKONGO	77th RESPONDENT	
SELMA HAMADILA	78th RESPONDENT	
MR ALBANUS SHOOPALA	79th RESPONDENT	
LINUS HANUKWAYA	80th RESPONDENT	
HILENI NDAENDAPO	81st RESPONDENT	
LOIDE IIYAMBO	82nd RESPONDENT	
KOSTANTI ASHIPALA	83rd RESPONDENT	
HELENA ASHEENDO	84th RESPONDENT	
TANGENI SHIFIFOUNYE	85th RESPONDENT	
ELIKAN KASHINDA	86th RESPONDENT	
TRIANUS HANGULA	87th RESPONDENT	
SELMA HAIHAMBO	88th RESPONDENT	
ESTHER IYAMBO	89th RESPONDENT	
YOOLOKEN WEYULU	90th RESPONDENT	
MARTHA BONIFATIUS	91st RESPONDENT	
FOIBE VATILIFA	92nd RESPONDENT	
MAGIINA NEGONGO	93rd RESPONDENT	
THERESIA RASALUS	94th RESPONDENT	
GOTLIEB JOHANNES	95th RESPONDENT	
GIVEN SHAUNGU	96th RESPONDENT	
LYDIA ELIKANA	97th RESPONDENT	
NESTOR SHADUKA	98th RESPONDENT	
LUCOS SHEELONGO	99th RESPONDENT	
DANIEL KALOLA	100th RESPONDENT	
JOSEFINA ERASTUS	101st RESPONDENT	
ESTER FESTUS	102nd RESPONDENT	
JOHANNA KALUME	103rd RESPONDENT	
JULIA WASHIME	104th RESPONDENT	
NDILIPOM PIUS	105th RESPONDENT	
UUTONI KUUME	106th RESPONDENT	
EINO HAUFIKU	107th RESPONDENT	
LAVINIA FESTUS	108th RESPONDENT	
ITTILIE SHIYAKELA	109th RESPONDENT	
SECILIA NEFUNGO	110th RESPONDENT	
SELMA IYAMBO	111th RESPONDENT	
ALBERTIN DUMENI	112th RESPONDENT	
NDILIMEK KADILA	113th RESPONDENT	
LAVINIA LAZARUS	114th RESPONDENT	
JACOBINA KASITA	115th RESPONDENT	
LOVISA MIKKA	116th RESPONDENT	
H NIKANOR	117th RESPONDENT	
JOHANNES MICHAEL	118th RESPONDENT	
LAHYA N SHEEFENI	119th RESPONDENT	
LIKIUS SHIKONGO	120th RESPONDENT	
ANANIAS MWAPOPILE	121st RESPONDENT	
SILVANUS HAMUKWAYA	122nd RESPONDENT	
SYLVIA ANTONIUS	123rd RESPONDENT	
JOAS TANENI	124th RESPONDENT	
KARLUS HAUFIKU	125th RESPONDENT	
LOIDE S ABNER	126th RESPONDENT	
JOSEPHIN IILEKA	127th RESPONDENT	
STEFANUS THOMAS	128th RESPONDENT	
A VAENDWAHAWA	129th RESPONDENT	
ERASTUS PHILIPUS	130th RESPONDENT	
HAUFIKU KALEB	131st RESPONDENT	
HATUTALE NAKALE	132nd RESPONDENT	
EMMANUEL ASHIPALA	133rd RESPONDENT	
ERICKSON HALEINGE	134th RESPONDENT	
A SHILONGO	135th RESPONDENT	
AINA JOSEF	136th RESPONDENT	
KLEOPHAS KASHIVULIKA	137th RESPONDENT	
IMMANUEL MWAIKANGE	138th RESPONDENT	
BEATHA KAVALE	139th RESPONDENT	
H NAKALE	140th RESPONDENT	
ILKA SHILONGO	141st RESPONDENT	
MOSES K SHILOMBOLEN	142nd RESPONDENT	
PADELIA VAENDWANANA	143rd RESPONDENT	
JOHANNES AMUKWAYA	144th RESPONDENT	
HAFENI JONATAN	145th RESPONDENT	
ERASTUS NOONGA	146th RESPONDENT	
AILI A MUTUMBULWA	147th RESPONDENT	
IRJA KANKONO	148th RESPONDENT	
MUYAMBA NDAMONONGHE	149th RESPONDENT	
REBEKKA NDILIMONDJO	150th RESPONDENT	
LUTRICH AUKUS	151st RESPONDENT	
ESTHER IILEKA	152nd RESPONDENT	
JOHANNA SHANIKA	153rd RESPONDENT	
VICTORIA MVULA	154th RESPONDENT	
NDAINDIL SHANGULA	155th RESPONDENT	
NAEMI KANYELE	156th RESPONDENT	
KAARINA TOLATA	157th RESPONDENT	
BEATRIZ SHAUNGU	158th RESPONDENT	
EMMA N IIYAMBO N NANDE	159th RESPONDENT	
MAGRITH NEKUNDI	160th RESPONDENT	
KLAUDIA NDJAULA	161st RESPONDENT	
JOHANNES HAMUTENYA	162nd RESPONDENT	
LOVISA NTINDA	163rd RESPONDENT	
SECILIA SHIPENA	164th RESPONDENT	
ESTHER SHIKONGO	165th RESPONDENT	
JOHANNES FILLIPUS	166th RESPONDENT	
HENDRINA MATHEUS	167th RESPONDENT	
VEINSER NGHIPULILE	168th RESPONDENT	
ANDREAS SHIMWE OSHI	169th RESPONDENT	
IMMANUEL KASHINGHOLA	170th RESPONDENT	
JOHANNES HANGULA	171st RESPONDENT	
MIKAEL KWAMBI	172nd RESPONDENT	
FOSNES HEIMO	173rd RESPONDENT	
ELISE MUKONGO	174th RESPONDENT	
LAUHA N HANGULA	175th RESPONDENT	
TRESIA SHADUKA	176th RESPONDENT	
LUSIA NEKONGO	177th RESPONDENT	
FOIBE ERASTUS	178th RESPONDENT	
ELI N SHIMWANDI	179th RESPONDENT	
ALBERTIN SHOWA	180th RESPONDENT	
PAULINA IIKONDJA	181st RESPONDENT	
MMETCHIL KAUTOTWA	182nd RESPONDENT	
MANFRED HEVITA	183rd RESPONDENT	
THEOPOLI NOA	184th RESPONDENT	
ASNATH MUNDANDALA	185th RESPONDENT	
ESTHER KAUHONUA	186th RESPONDENT	
HELVI SHITALENI	187th RESPONDENT	
JOSEPHIN HAUNINGA	188th RESPONDENT	
GIDEON SHIMWINO	189th RESPONDENT	
LIINA SHIKONGO	190th RESPONDENT	
LUKRETIA JOHANNES	191st RESPONDENT	
EVELINA UHEPO	192nd RESPONDENT	
FELISIA SHIYUKIFENI	193rd RESPONDENT	
CECILIA KAMHULU	194th RESPONDENT	
MARTHA KAMBINDA	195th RESPONDENT	
JOSEPHIN KUUTONDOKWA	196th RESPONDENT	
HELENA SHIPULWA	197th RESPONDENT	
EMILIA SHEETEKELA	198th RESPONDENT	
IRIA NAMBINGA	199th RESPONDENT	
M NGWEDA	200th RESPONDENT	
PAULINA SILAS	201st RESPONDENT	
RUBEN IPINGE	202nd RESPONDENT	
DAVID NDUNGULA	203rd RESPONDENT	
MARIA MBANGULA	204th RESPONDENT	
AMBROSIUS MWAHAFA	205th RESPONDENT	
VISTOLIN AMBILI	206th RESPONDENT	
TOMAS VILHO	207th RESPONDENT	
EURICO FERSINU	208th RESPONDENT	
MARTHA IYAMBO	209th RESPONDENT	
MARTHA JEREMIA	210th RESPONDENT	
EVA K MUULONGO	211th RESPONDENT	
LAIMI SHETUNYENGA	212th RESPONDENT	
KAREL AMENYA	213th RESPONDENT	
LETITIA SHIVOLO	214th RESPONDENT	
HILDE MWEYAKO	215th RESPONDENT	
EVA LISA SHOONYEKA	216th RESPONDENT	
SECILIE NGHISHONGWA	217th RESPONDENT	
SIMON H KAMATI	218th RESPONDENT	
IITA MALAKIA	219th RESPONDENT	
PINEAS NASHILUWA	220th RESPONDENT	
PAULUS JULIUS	221st RESPONDENT	
SIMEON HAMBUNDA	222nd RESPONDENT	
ANANIAS SHINOMIDI	223rd RESPONDENT	
FILLEMON KALOLA	224th RESPONDENT	
TUYEIMO HANGO	225th RESPONDENT	
MARIA KAMBUNDU	226th RESPONDENT	
NELAO TOMAS	227th RESPONDENT	
PAULINA MWAKOYELE	228th RESPONDENT	
S THOMAS	229th RESPONDENT	
FRIEDA NANDAGO	230th RESPONDENT	
SIMEON SHIPANDENI	231st RESPONDENT	
MONIKA HENDJALA	232nd RESPONDENT	
ALBERTIN ALEX	233rd RESPONDENT	
VERONIKA UUSIKU	234th RESPONDENT	
VERONICA HAMUKWAYA	235th RESPONDENT	
MARTHA NAMUPALA	236th RESPONDENT	
B ISMAEL	237th RESPONDENT	
THEOPOLI KAMATI	238th RESPONDENT	
TEOPOLIN MENGELA	239th RESPONDENT	
MARIA KASHIMBA	240th RESPONDENT	
LUKAS SHINOLO	241st RESPONDENT	
ALIMA N SHINIME	242nd RESPONDENT	
SAIMA N PETRUS	243rd RESPONDENT	
PETRUS UUSIKU	244th RESPONDENT	
SEVERIA HAUFIKU	245th RESPONDENT	
ALMA IPINGE	246th RESPONDENT	
DAVID AKUUNDA	247th RESPONDENT	
JOHANNES SHIVUTE	248th RESPONDENT	
N TILAINGE	249th RESPONDENT	
HILIA HAUANGA	250th RESPONDENT	
JAKOBIN SHIIMI	251st RESPONDENT	
ABED AMUPOLO	252nd RESPONDENT	
THOMAS STEFANUS	253rd RESPONDENT	
TANGENI NDUBU	254th RESPONDENT	
GISBERT SHIKONGO	255th RESPONDENT	
HOPOTELW ANDREAS	256th RESPONDENT	
LETISIA SALOMO	257th RESPONDENT	
KAUFIWET NDAPANDONGW	258th RESPONDENT	
H NENDONGO	259th RESPONDENT	
RAUNA SHIMANENI	260th RESPONDENT	
AINA SHAPAKA	261st RESPONDENT	
FRANSINA SHADUKA	262nd RESPONDENT	
JONAS HIPUNDUKA	263rd RESPONDENT	
MARIA ISMAEL	264th RESPONDENT	
JOHANNES KAMATI	265th RESPONDENT	
ANDREAS HAMUKOTO	266th RESPONDENT	
PAULINA PHILLEMON	267th RESPONDENT	
INDILENI MWAFINGANGE	268th RESPONDENT	
MARTHA SHITONGENI	269th RESPONDENT	
LIKIUS N HANGULA	270th RESPONDENT	
SAARA HAIMBODI	271st RESPONDENT	
SOPHIA IMMANUEL	272nd RESPONDENT	
WILHELMI KAIMBI	273rd RESPONDENT	
MARTHINUS HAIMBONDI	274th RESPONDENT	
ESTER HAUWANGA	275th RESPONDENT	
ANGELIKA MUUMBA	276th RESPONDENT	
MARTHA KALUWA	277th RESPONDENT	
MARIA T KANGATE	278th RESPONDENT	
ANDREAS HAUFIKU	279th RESPONDENT	
NAMBAHU ABRAHAM	280th RESPONDENT	
ALETTA KANDJABANGA	281st RESPONDENT	
SEVEKUA DANIEL	282nd RESPONDENT	
JOHANNES TANGENI	283rd RESPONDENT	
SHIHEPO FILLEMON	284th RESPONDENT	
NEKOTO GEBHARD	285th RESPONDENT	
LAZARUS ELIAS	286th RESPONDENT	
ISASKAR SHIKONGO	287th RESPONDENT	
VEIKKO HEITA	288th RESPONDENT	
HANDJENGO	289th RESPONDENT	
DAVID SHILONGO	290th RESPONDENT	
ELIZABET SACKEUS	291st RESPONDENT	
SELMA SHIGWEDHA	292nd RESPONDENT	
REBEKKA NGHIGEWA	293rd RESPONDENT	
HELENA HAULOFO	294th RESPONDENT	
ESTER SHINYOLO	295th RESPONDENT	
SELMA GABRIEL	296th RESPONDENT	
DELILA IYAMBO	297th RESPONDENT	
KORNELIA NAHOLO	298th RESPONDENT	
SELMA KASHIPULWA	299th RESPONDENT	
ALBERTIN HAMADILA	300th RESPONDENT	
MARIA NDAKUKAMO	301st RESPONDENT	
HILENI SHIPAHU	302nd RESPONDENT	
S.N ANGULA	303rd RESPONDENT	
HELENA ANDREAS	304th RESPONDENT	
HILYA T MAHARERO	305th RESPONDENT	
AUNE S AMUKONGO	306th RESPONDENT	
KRISTOF MWALUNGILAN	307th RESPONDENT	
D ARKUS	308th RESPONDENT	
T.P NDINONDJENE	309th RESPONDENT	
MARTHA NGHINANYE	310th RESPONDENT	
BENEDICT AMUPOLO	311th RESPONDENT	
LOIDE NAKALE	312th RESPONDENT	
ELIZABET NALUWE	313th RESPONDENT	
PALAGIA AMUNGENGA	314th RESPONDENT	
LILIA NINKOTI	315th RESPONDENT	
NATALIA NAKALE	316th RESPONDENT	
OLIVIA NEGANDJO	317th RESPONDENT	
MARTHA ABINIEL	318th RESPONDENT	
LORNA HAMUKWAYA	319th RESPONDENT	
EMELITA UUKONGO	320th RESPONDENT	
JUSTINA NDAKALAKO	321st RESPONDENT	
WILLYSON NDINOSHINGE	322nd RESPONDENT	
JOHANNES UUTONI	323rd RESPONDENT	
JUSTINA FRANS	324th RESPONDENT	
JOSEPHIN NAKULWA	325th RESPONDENT	
L MUNYALA	326th RESPONDENT	
GERDA SHIKONGO	327th RESPONDENT	
OLIVIA HAUFIKU	328th RESPONDENT	
HELENA ALFEUS	329th RESPONDENT	
MIRJAM KAMBONGELA	330th RESPONDENT	
ELINA IMBILI	331st RESPONDENT	
ELISE A ABNER	332nd RESPONDENT	
LAINA NDEIWEDA	333rd RESPONDENT	
GUDRUN AMAGOLA	334th RESPONDENT	
FALAO NDAFEDIVA	335th RESPONDENT	
FESTUS M JOHANNES	336th RESPONDENT	
VICTORIA ASHIMBANGA	337th RESPONDENT	
NDILIMEK ISHINDA	338th RESPONDENT	
MATILDE TAARU	339th RESPONDENT	
ELIZABET ENDJALA	340th RESPONDENT	
ANNA OSKAR	341st RESPONDENT	
PENEXUP SHAHAMANGE	342nd RESPONDENT	
PATRICIA JOHANNES	343rd RESPONDENT	
T HANGULA	344th RESPONDENT	
SARAFINA NEKONGO	345th RESPONDENT	
RAKKEL KALOMHO	346th RESPONDENT	
LAIMI XWEKA	347th RESPONDENT	
ISASKAR MUNDUDU	348th RESPONDENT	
HILENI SHEKUZA	349th RESPONDENT	
HELVI KATALI	350th RESPONDENT	
MATIAS ABRAHAM	351st RESPONDENT	
ABED AMWEENYE	352nd RESPONDENT	
PETER SHAIDILA	353rd RESPONDENT	
MIRJAMA HAILEKA	354th RESPONDENT	
MARIA NEKWAYA	355th RESPONDENT	
ABSALOM IMMANUEL	356th RESPONDENT	
FRANS KAMBANGULA	357th RESPONDENT	
AMON MWADULU	358th RESPONDENT	
FILLEMON UUGWANGA	359th RESPONDENT	
J KAMANPA	360th RESPONDENT	
KORNELIA IITA	361st RESPONDENT	
PAULINA KATAMBA	362nd RESPONDENT	
ANNA TEODOR	363rd RESPONDENT	
ASTERIA TOBIAS	364th RESPONDENT	
WALTER KANGUMU	365th RESPONDENT	
MOSES E SIMON	366th RESPONDENT	
PRISKA M SEBULON	367th RESPONDENT	
RUBEN HAMUKWAYA	368th RESPONDENT	
GUSTAV N THOMAS	369th RESPONDENT	
KORNELIA HAFENI	370th RESPONDENT	
ILONA IIYAMBO	371st RESPONDENT	
JULIA SHININGE	372nd RESPONDENT	
BENEDICT AMWEELO	373rd RESPONDENT	
FRANSINA SHIKOMBA	374th RESPONDENT	
FANNIE IIYAMBO	375th RESPONDENT	
JOHANNA AMUPADHI	376th RESPONDENT	
TAINA ANGOLO	377th RESPONDENT	
ONESMUS KAPENDA	378th RESPONDENT	
MICHAEL MUVANGUA	379th RESPONDENT	
MONIKA IIPINGE	380th RESPONDENT	
MARTHA HAILEKA	381st RESPONDENT	
CELINE KALIPI	382nd RESPONDENT	
FENNI KANHALELO	383rd RESPONDENT	
JERRY NKANDI	384th RESPONDENT	
SAKEUS NANGOLO	385th RESPONDENT	
HILIA KALOMPO	386th RESPONDENT	
A AMUTENYA	387th RESPONDENT	
LIINA MULEKA	388th RESPONDENT	
M SILAS	389th RESPONDENT	
HANGO	390th RESPONDENT	
LINEA NDISHISHI	391st RESPONDENT	
HILMA NASHIWAYA	392nd RESPONDENT	
THOMAS ALWEENDO	393rd RESPONDENT	
SYLVIA HENGHONO	394th RESPONDENT	
ANASTASI MUKWAUKONGO	395th RESPONDENT	
E NEHALE	396th RESPONDENT	
ILENI T MUMWOYE	397th RESPONDENT	
SELMA N UUTONI	398th RESPONDENT	
FESTUS UUGWANGA	399th RESPONDENT	
JESSICA KARIPO	400th RESPONDENT	
REBEKKA KAANJOSA	401st RESPONDENT	
GEDEON KAMATI	402nd RESPONDENT	
MARIA MWANDINGI	403rd RESPONDENT	
VERNA SIKONDOMBORO	404th RESPONDENT	
FIMANEKE NDUBU	405th RESPONDENT	
N SHATYOHAMBA	406th RESPONDENT	
ELINGAUS HAMAAMBO	407th RESPONDENT	
FRANCINA HAIMBODI	408th RESPONDENT	
SIMON JOHANNES	409th RESPONDENT	
REBEKKA KAFITA	410th RESPONDENT	
ABEDNEGO HALWENDO	411th RESPONDENT	
MARIA NAMUPALA	412th RESPONDENT	
AINA HANGHOME	413th RESPONDENT	
WILKA NAMBALA	414th RESPONDENT	
MARIA INGASHIPOLA	415th RESPONDENT	
TUHAFENI HAIDULA	416th RESPONDENT	
SIMON NUUYOMA	417th RESPONDENT	
SECILIA KAVALE	418th RESPONDENT	
SELMA NANDEHASHO	419th RESPONDENT	
ROSWITTA EELU	420th RESPONDENT	
KATAURIR TJIMBONDE	421st RESPONDENT	
LINDA NEDONGO	422nd RESPONDENT	
MARTIN MUSHONA	423rd RESPONDENT	
LAVINIA HAINDONGO	424th RESPONDENT	
MARJAMI HAIKALI	425th RESPONDENT	
JULIA LUKAS	426th RESPONDENT	
MARTHA MUNDJIINDI	427th RESPONDENT	
JASON SHIKONGO	428th RESPONDENT	
NAEMI TIMOTEUS	429th RESPONDENT	
ILENI J NESHUKU	430th RESPONDENT	
ROSALINA SHAANIKA	431st RESPONDENT	
LUSIA ELIFAS	432nd RESPONDENT	
LINEEKEL ELIFAS	433rd RESPONDENT	
HELENA N KAYAMBU	434th RESPONDENT	
LOIDE ASHIMBAMBA	435th RESPONDENT	
SELMA KALIMBO	436th RESPONDENT	
LOIDE T MUMBALA	437th RESPONDENT	
NAEMI KALILI	438th RESPONDENT	
ANNA JOHANNES	439th RESPONDENT	
BEATRIZ NDEITWA	440th RESPONDENT	
NAKAMWI MUTWAMPO	441st RESPONDENT	
ESTER KAMULE	442nd RESPONDENT	
WILMA N SHANYENENGE	443rd RESPONDENT	
THERESIA NAMBONDI	444th RESPONDENT	
BEATRIX HINYENGWA	445th RESPONDENT	
LOIDE N AMPADHI	446th RESPONDENT	
ALINA AMUTENYA	447th RESPONDENT	
DAVID NYAMBALI	448th RESPONDENT	
AGNES MWANYEKANGE	449th RESPONDENT	
HELENA NAMBAHU	450th RESPONDENT	
ERIKA IITHETE	451st RESPONDENT	
NALWEEND AMAKALI	452nd RESPONDENT	
TEOPOLIN SHITYENI  	453rd RESPONDENT	
ISABEL MURORUA	454th RESPONDENT	
REBEKKA GABRIEL	455th RESPONDENT	
FELECIAN DJOLONIMU	456th RESPONDENT	
FRANSINA HASHIPALA	457th RESPONDENT	
KATRINA NAMBAHU	458th RESPONDENT	
N HAIPINGE	459th RESPONDENT	
JOSEFINA ABRAHAM	460th RESPONDENT	
OTTILIE KAPIYE	461st RESPONDENT	
HILINGAN SEBASTIAANU	462nd RESPONDENT	
         O NDJENE	463rd RESPONDENT	
MATEUS UUSIKU	464th RESPONDENT	
FRANS NASHIDENGO	465th RESPONDENT	
LIHONGEN HAMUKOTO	466th RESPONDENT	
FRANSINA HASHALI	467th RESPONDENT	
MARTHA ANGOMBE	468th RESPONDENT	
SECILIA NAMBONGA	469th RESPONDENT	
MARIA NAMWANDI	470th RESPONDENT	
PAULUS HAIHONYA	471st RESPONDENT	
LAIMI N NGHIPETEKWA	472nd RESPONDENT	
SOFIA T MATHIAS	473rd RESPONDENT	
BEATHA SHAPWA	474th RESPONDENT	
LINDA KANIME	475th RESPONDENT	
E HAIPINGE	476th RESPONDENT	
NICODEMU SHIWAYU	477th RESPONDENT	
ISASKAR DULA	478th RESPONDENT	
SELMA NAKAPIPI	479th RESPONDENT	
SAKARIA NAKALE	480th RESPONDENT	
HILDE NUUYOMA	481st RESPONDENT	
ELIZABET KANAWANGA	482nd RESPONDENT	
MARTHA KAUYIWA	483rd RESPONDENT	
HILMA SHIVOLO	484th RESPONDENT	
MONIKA N SHITENYA	485th RESPONDENT	
PELAGIA VICTOR	486th RESPONDENT	
TUSNELDE IMBILI	487th RESPONDENT	
GLORIA KAIHONGUA	488th RESPONDENT	
ELIZABET HANGO	489th RESPONDENT	
RAKEL PINEHAS	490th RESPONDENT	
RAINA N NEGONYA	491st RESPONDENT	
EILIA KAUSHITWA	492nd RESPONDENT	
MAGDELEN NANGOLO	493rd RESPONDENT	
AINA SHEYA	494th RESPONDENT	
H JOHANNES	495th RESPONDENT	
LOVISA T HEITA	496th RESPONDENT	
FRISON HAMALWA	497th RESPONDENT	
SELMA NAMBANDI	498th RESPONDENT	
LOVISA NAMBOGA	499th RESPONDENT	
MIYAZE I MOOWA	500th RESPONDENT	
MARTHA WINKILD	501st RESPONDENT	
ROSALIA SHEEHAMA	502nd RESPONDENT	
ALICE MAHANZU	503rd RESPONDENT	
JOHANNA KAANDUKA	504th RESPONDENT	
DONIET SHIFION	505th RESPONDENT	
THOMAS H JOHANNES	506th RESPONDENT	
FESTUS NDAKOLUTE	507th RESPONDENT	
FERDINAN NEMBWAYA	508th RESPONDENT	
MARTHA HANGADA	509th RESPONDENT	
HENRIETE IITULA	510th RESPONDENT	
HELVI KASHAKA	511th RESPONDENT	
BENYAMIN PAAVO	512th RESPONDENT	
FANUEL SHIKONGO	513th RESPONDENT	
KOSMOS HIDINWA	514th RESPONDENT	
EMILIA EDUARD	515th RESPONDENT	
SELMA ANDREAS	516th RESPONDENT	
WILHELMI ALWEENDO	517th RESPONDENT	
JK BONIFATIUS	518th RESPONDENT	
GABRIEL HANGULA	519th RESPONDENT	
ELIFAS NDASHAALA	520th RESPONDENT	
SARAFINA NAMBINGA	521st RESPONDENT	
LOIDE SHIKOYENI	522nd RESPONDENT	
MAGDALEN NDILENGA	523rd RESPONDENT	
SELMA KASHO	524th RESPONDENT	
HERTHA UUPINDI	525th RESPONDENT	
EMILIA ALBERTUS	526th RESPONDENT	
ELIZABET FRANS	527th RESPONDENT	
MARIA IIYAMBO	528th RESPONDENT	
RICHARD SINYEPE	529th RESPONDENT	
LEENA AMAPAYA	530th RESPONDENT	
FRANSINA MUTIRAKUTI	531st RESPONDENT	
E MULOKOSHI	532nd RESPONDENT	
NELAGO S AKWENYE	533rd RESPONDENT	
TS NAMBOGA	534th RESPONDENT	
JOSIA L HAIPOPYA	535th RESPONDENT	
MARIA HAIKONDJA	536th RESPONDENT	
CHARLOT MWETULUNDIL	537th RESPONDENT	
SARAFINA SHINDONGO	538th RESPONDENT	
N DUMENI	539th RESPONDENT	
POPERA NHULEIPO	540th RESPONDENT	
SECILIA PAULUS	541st RESPONDENT	
NDAPUNIK SHUUDIFONYA	542nd RESPONDENT	
JOSEPHIN LUNGAMENI	543rd RESPONDENT	
RAINHARD IIYAMBO	544th RESPONDENT	
HELENA AMALOVU	545th RESPONDENT	
VIVI ALUGONGO	546th RESPONDENT	
TOMAS ANTONIA	547th RESPONDENT	
ROVISA AMUTENYA	548th RESPONDENT	
MARIA KAMBODE	549th RESPONDENT	
NIIWANA NGHITANUA	550th RESPONDENT	
SOINY I NGHIYOLWA	551st RESPONDENT	
STELLA KASIRINGUA	552nd RESPONDENT	
TERESIA GABRIEL	553rd RESPONDENT	
REBEKA MWETUHANGA	554th RESPONDENT	
NDINERAO GOTLIEB	555th RESPONDENT	
ANDONIA HAKANDONGA	556th RESPONDENT	
TRESIA SHUMBA	557th RESPONDENT	
OSKAR PAULUS	558th RESPONDENT	
BERTA MINGERI	559th RESPONDENT	
BEATHA SHILONGO	560th RESPONDENT	
NDINELAG LUKAS	561st RESPONDENT	
M HAMAKALI	562nd RESPONDENT	
MARTHA ASHIPALA	563rd RESPONDENT	
WELLY AMADHILA	564th RESPONDENT	
AILY SHIKODHI	565th RESPONDENT	
JONAS NGENO	566th RESPONDENT	
SIPHIA SIMON	567th RESPONDENT	
JAKOBINA SHEPANI	568th RESPONDENT	
THERESIA WILHELM	569th RESPONDENT	
NORBERT KAPILO	570th RESPONDENT	
SECIALI KAMATI	571st RESPONDENT	
INDILENI HAIYAKA	572nd RESPONDENT	
SELMA N SIMON	573rd RESPONDENT	
JUSTINA SHEEHAMA	574th RESPONDENT	
LABAN SHAUMAN	575th RESPONDENT	
NICHOLAS KAMWI	576th RESPONDENT	
FILIPUS ELIA	577th RESPONDENT	
RUSIA TOMAS	578th RESPONDENT	
ESTER LUKAS	579th RESPONDENT	
NESTOR SHIPOPYENI	580th RESPONDENT	
ANANIAS ONESMUS	581st RESPONDENT	
JOSEPHIN HEELU	582nd RESPONDENT	
ELIZABET THOMAS	583rd RESPONDENT	
HELVI ABASI	584th RESPONDENT	
NICKSON TITUS	585th RESPONDENT	
FRANCINA SHIDJUU	586th RESPONDENT	
SELMA KAWENO	587th RESPONDENT	
VALIMO N NGHIPUPILE	588th RESPONDENT	
PRISKILL UUTONI	589th RESPONDENT	
SAARA ISAK	590th RESPONDENT	
FENI SHILONGO	591st RESPONDENT	
TEOPOLIN NGHIKONGELW	592nd RESPONDENT	
KRISTOFI HIPANGWA	593rd RESPONDENT	
SYLVIE MUTUMBULWA	594th RESPONDENT	
SECILIA AMUNYELA	595th RESPONDENT	
ELISABET PETRUS	596th RESPONDENT	
MARTHA KESHEELI	597th RESPONDENT	
ELIA NDINOSHISHO	598th RESPONDENT	
ANDREAS NUUYOMA	599th RESPONDENT	
LEEVI A ANGULA	600th RESPONDENT	
EDWARD T NDAILE	601st RESPONDENT	
SELMA HAIPINGE	602nd RESPONDENT	
FEBRONIA SHIMBEDEUS	603rd RESPONDENT	
MARGARET KANDJE	604th RESPONDENT	
ILENI EKANDJO	605th RESPONDENT	
LONIA NGHINYANGELWA	606th RESPONDENT	
SESILIA ABRAHAM	607th RESPONDENT	
SELMA HAUFIKU	608th RESPONDENT	
MARTHA NAKAPELA	609th RESPONDENT	
NDAFTEEL NEGUNGO	610th RESPONDENT	
KAARNA MWANDINGI	611th RESPONDENT	
ESTER NAMUPALA	612th RESPONDENT	
MICHAEL JOHANNES	613th RESPONDENT	
REBEKKA NDAKOLUTE	614th RESPONDENT	
HELENA NAMUKOTO	615th RESPONDENT	
KAARINA SHIGWEDHA	616th RESPONDENT	
EDDY P MAKEMBA	617th RESPONDENT	
MARIA VINDERE	618th RESPONDENT	
LAHJA ENDJALA	619th RESPONDENT	
FLAVINUS MUHONGO	620th RESPONDENT	
NEHEMIA HAUWANGA	621st RESPONDENT	
LUKAS	622nd RESPONDENT	
VINIA T SHAFODINO	623rd RESPONDENT	
EVELINA SIMEON	624th RESPONDENT	

JUDGMENT

VAN NIEKERK J:
[1] At the time this matter was heard, the applicant employed the respondents and hired out their services out to Etale Fishing Co (Pty) Ltd (“Etale”) as labourers who mainly were used to fillet fish and pack fish. 
[2] During January 2010 Etale entered into a wage agreement with the Namibian Seaman and Allied Workers Union (“NASAWU”), the exclusive bargaining agent for certain of Etale’s permanent employees.  Several of the respondents then joined NASAWU and mandated the union to negotiate with both the applicant and Etale for the improvement of their service conditions.  After exchange of correspondence on various issues NASAWU requested to have a meeting with the respondents at Etale’s premises.  The applicant refused to give permission for such a meeting at Etale’s premises, but indicated that the meeting could be held at the applicant’s premises, but requested 48 hours written notification.  This led to dissatisfaction amongst the respondents.  Notice was given that they would engage in a peaceful demonstration at Etale’s premises on 10 March 2010 and that they intended to hand over a petition to the applicant and Etale during lunch time.  The applicant informed the respondents and NASAWU that it regarded the demonstration as illegal and warned of strict disciplinary action.  The applicant indicated that it would receive the petition at its premises.
[3] Nevertheless, some of the respondents remained at Etale’s premises and handed over the petition there, but it would appear that neither Etale nor the applicant wanted to accept it there.  When these respondents wanted to resume work after lunch, Etale refused them access to the premises.  The same occurred when those respondents normally working the night shift attempted to commence their shift.  The applicant also gave notice that the respondents were suspended with immediate effect.  
[4] On 11 March 2010 Etale informed the applicant in writing of the potential losses it might be suffering as a result of the applicant’s inability to fulfil its contractual obligations towards Etale to provide it with continuous and uninterrupted labour.  The estimated amount was about N$4 million.  Meanwhile, some of the respondents continued to gather outside the entrance to Etale’s premises in varying numbers.  
[5] On 12 March 2010 the applicant sent 80 other workers by bus to Etale to take over the duties of the respondents.  According to the applicant, the respondents were unruly and attacked the bus driver and damaged the bus.  They also obstructed access and egress at the entrance and hindered Etale’s permanent employees from assuming their work duties.
[6] The applicant thereupon instructed their lawyers to initiate an urgent application against the respondents.  Counsel was instructed, but could only consult at 15h30 on 12 March 2010.  During the consultation it became evident that the matter was extremely urgent and that there would be no time to file affidavits.  The application was set down at 16h30.  Although not cited as a respondent, NASAWU was given very brief notice of the application.  Nevertheless, the union was able to instruct its lawyers to hold a watching brief.  
[7] The matter came before Ndauendapo J, who heard oral testimony presented on behalf of the applicant and thereupon made an order condoning the non-compliance with the forms and service provided for in the Labour Court rules and ruling that the matter be heard as one of urgency.  He further issued a rule nisi returnable on 9 April 2010 in the following terms:
‘2.1	Ejecting the 1st to 624th respondents from the entrances to the premises of Etale Fishing Company at Ben Amathila Avenue, Walvis Bay.
2.2	Interdicting and restraining the 1st to 624th respondents from in any way interfering with or obstructing the normal operation of applicant’s business or any aspect of the applicant’s business or any person involved in the applicant’s operations.
2.3	Interdicting and restraining the 1st to 624th respondents from intimidating, threatening or in any way interfering with any employee of the applicant, or with any person involved in or connected with the conduct of applicant’s operation or with its customers or employees ...........
2.4	Interdicting and restraining the 1st to 624th respondents from inciting or encouraging any other person to commit any of the aforesaid acts.’
[8] The Court further ordered, inter alia, that the above subparagraphs of the rule nisi operate with immediate effect as an interim order pending the final outcome of the application. 
[9] On 26 March 2010 the 4th, 41st, 71st, 119th, 145th, 277th, 377th, 391st, 439th and 570th respondents (“the ten respondents”) anticipated the return date on 26 March 2010.  They also launched a counter application which was dismissed on 6 April 2010.  The rule nisi, however, was extended on several occasions and the application itself was eventually heard on 12 May 2010.   
[10] The ten respondents raised six points in limine and also opposed the application on the merits.  They pray for the rule nisi to be discharged. On the view I take of the matter, it is only necessary to deal with the fifth point in limine.  This point is, essentially, that the application is mostly based on inadmissible hearsay evidence and that, once this evidence is struck, there is no basis on which the rule nisi can be confirmed.
[11] The applicant presented evidence by one witness, namely Mr Robert Christiaan de Villiers, its financial director.  He did not state in his evidence at which office he worked or where he was based. He gave evidence about discussions at meetings which took place between Mr Kapenda Johannes, a director of the applicant, Mr Johan van Vuuren, the branch manager of the applicant in Walvis Bay and Mr Paulus Hango and one Petrus of NASAWU.  He also relayed the essential contents of telephonic conversations between one Kapembe, apparently of the applicant, and Mr Hango.  He further handed in as exhibits several letters between the applicant and other parties, of which letters he was not the author.  He testified about the further events which took place at the premises of Etale and described the conduct of the respondents in relation to the bus driver and the bus.
[12] In the ten respondents’ main answering affidavit the following allegations are made in paragraph 16.1 thereof:
‘I turn now to deal with the allegations made by Mr. Robert de Villiers when he gave oral evidence on 12 March 2010 before this Honourable Court.  At the onset I say that Mr. De Villiers is employed in Applicant’s Head Office in Windhoek and not in Walvis Bay.  He thus wasn’t an eyewitness to the events that unfolded at Etale since 10 March 2010.’
[13] The applicant did not reply to the allegations set out in paragraph 16.1.  In regard to other allegations made in paragraph 9 of the main answering affidavit in support of this point in limine, Mr de Villiers takes note of the allegations of hearsay without denial.  He refers to confirmatory affidavits by Messrs van Vuuren, Johannes and Kahimune, the bus driver, in which the witnesses give first hand accounts of events. It is clear from Mr van Vuuren’s affidavit that he is the applicant’s branch manager at Walvis Bay.  In paragraph 3.4 of his affidavit he states:
‘I also contacted Mr. De Villiers on Friday [12 March 2010] and informed him of the unlawful conduct and what transpired at the premises of Etale including the assault carried out on Mr Kahimune whereupon Mr. De Villiers related this information to the Court at the time when he gave oral evidence.’
[14] Mr Dicks submitted that in urgent applications a litigant is entitled to rely on hearsay matter subject to certain rules. 
[15] In this regard Mr Denk for the ten respondents agreed, but referred to the case of Galp v Tansley NO 1966 (4) SA 555 (C) in which the following was said (at 558H-559H):
‘For a considerable period, now, our Courts have recognised the need to admit and act upon sworn statements of 'information' and 'belief' in interlocutory matters (as distinct from matters in which the rights of the parties concerned are finally decided) where urgency, or possibly the existence of other special circumstances, appear to justify their doing so - see van Zyl's, Judicial Practice of South Africa (1921 edition), vol. 1, p. 441; Mears v African Platinum Mines, Ltd., and Others (1), 1922 W.L.D. 48 at p. 55; Grant-Dalton v Win and Others, 1923 W.L.D. 180 at p. 186; Pountas' Trustees v Lahanas, 1924 W.L.D. 67 at p. 70; Levin v Saidman, 1930 W.L.D. 256; Harris' Executor v Weinberg, 1938 CPD 134; Mia's Trustee v Mia, 1944 W.L.D. 102 at pp. 103 - 4; Brighton Furnishers v Viljoen, 1947 (1) SA 39 (GW); Geanotes v Geanotes, 1947 (2) SA 512 (C). In admitting such statements our Courts cannot, of course, be said to be recognising an exception to the hearsay rule: they are merely taking cognisance of the statements in question for limited purposes and subject to certain conditions - see Mia's Trustee v Mia, supra.
.......................................................................
But one important point emerging from the cases which I have enumerated in the preceding paragraph is this, viz., that our Courts have consistently refused to countenance the admission as evidence – for any purpose whatever - of any statement embodying hearsay material, save where such statement has properly been made the subject of an affidavit (or solemn affirmation) of information and belief, i.e., save where the deponent (or affirmer) has not only revealed the source of the information concerned but in addition has sworn (or solemnly affirmed) that he believes such information to be true and furnished the grounds for his belief. In this connection see particularly Harris' Executor v Weinberg, supra; Mia's Trustee v Mia, supra; and Grant-Dalton v Win and Others, supra.’
[16] This case was quoted with approval and followed by Mtambanengwe J in Mahamat v First National Bank of Namibia Ltd 1995 NR 199 (HC) at 204C-F after he said the following (at 203I-204C):
‘Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 81N4 state:  
'As a general rule hearsay evidence is not permitted in affidavits, and it may accordingly be necessary to file affidavits of persons other than the applicant who can depose to the facts. In fact, this is very often done in interlocutory matters (as distinct from matters in which the rights of parties concerned are finally decided). Where urgency or other special circumstances appear to justify it doing so the Court has allowed the deponent to state that he is informed and verily believes certain facts on which he relies for relief.'
From the above quoted statement of the learned authors, and from many decisions on the subject, it seems that it is only in interlocutory matters that the rule against admission of hearsay is relaxed provided the deponent swears an affidavit of information and belief and stating the source of his information.  
See: Geanotes v Geanotes 1947 (2) SA 512 (C) at 514; Grant-Dalton v Win and Others 1923 WLD 180 at 186; Mears v African Platinum Mines Ltd and Others 1922 WLD 48; Pounta's Trustee v Lahanas 1924 WLD 67; Harris' Executor v Weinberg 1938 CPD 134.’  
[17] Having pointed out that the matter before him was one in which the rights of the parties are to be finally decided and that the application was not brought on an urgent basis, the learned Judge struck the hearsay portions from the affidavit under consideration.
[18] In Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 (4) SA 682 (C) the following was said (at 692B-C):
‘In urgent matters the Court is entitled to admit hearsay evidence in an affidavit provided the source of the information and the grounds for belief in its truth are stated. The type of case in which such evidence is accepted, if these prerequisites are complied with, is one in which it is necessary to restrain irremediable injury and to keep matters in statu quo. (See Mears v African Platinum Mines Ltd. and Others, 1922 W.L.D. 48 at p. 55.) It does not follow, however, that the Court is obliged to accept such hearsay evidence, even if the source and the grounds for belief are furnished. (See Chaimowitz v Chaimowitz (1), 1960 (4) SA 818 (C) at p. 819F - G.)’
[19] Counsel did not refer to rule 6(29) of the Labour Court rules which provides:
‘Subject to the discretion of the court to disregard such statements if it considers it proper to do so, an affidavit may contain statements of information or belief provided that the sources and grounds thereof are identified.
[20] To some extent this rule incorporates the law as developed by precedent on the subject, but does not limit its application to interlocutory matters.  I shall not consider whether the rule permissibly changes the law on the subject.  No argument was addressed on the issue and it is not necessary to do so for purposes of this case.
[21] Counsel for the applicant submitted that the Court which granted the rule nisi was aware of the hearsay evidence and exercised its discretion to accept it and that ‘this Court should not as it were sit on appeal on that decision’ (see Small Business Development Corporation Ltd v Amey 1989 (4) SA 890 (W) 897B).  He further submitted that this Court should bear in mind that the application was brought on oral evidence in circumstances of extreme urgency as a result of the unlawful conduct of the respondents. 
[22] However, the fact of the matter is, as Mr Denk pointed out, that the testimony by Mr de Villiers did not contain any statements of information or belief, nor did he provide the sources of his information.  He testified as if he was present at the events at Etale’s premises in Walvis Bay without indicating that he was relying on information received from other persons.  I hasten to mention that I do not think he did so deliberately.  Apart, perhaps, from the mention of meetings between persons which did not include himself, there was no aspect of the evidence from which one could make the inference that Mr de Villiers was giving hearsay evidence.  The issue of hearsay also did not feature in argument.  In the circumstances I do not think that it can be said that the previous Court, with awareness of the hearsay evidence, exercised its discretion to admit such evidence and to issue the rule nisi. 
[23] I therefore agree with the respondents that the hearsay evidence should be struck from the testimony of Mr de Villiers.  This evidence is contained in the following passages: page 90, lines 20 - 30; page 91, lines 9 – 13; page 92, lines 1 -31; page 94, lines 17 – 32; page 95, lines 3 – 6.  When the remainder of the evidence is considered, there is no basis on which the rule nisi can be confirmed.
[24] Counsel for the applicant pointed to the confirmatory affidavits filed in reply and submitted that a case was made out.  However, as counsel for the respondents submitted, the applicant cannot be permitted to make its case for the first time in reply. (See Jay’s Properties Ltd v Turgin 1950 (2) SA 694 (W); Stipp and another v Shade Centre and others 2007 (2) NR 627 (SC) paras [29] – [30]).
[25] As the respondents have succeeded on this point in limine it is not necessary to deal with all the other points raised, or with the merits of the application.
Costs
[26] The ten respondents contend that the applicant should be ordered to pay their costs on an attorney-own client scale, as the application was frivolous and vexatious within the meaning of section 118 of the Labour Act, 2007 (Act 11 of 2007).  This contention is based on an assessment of the application based on all the points raised by the ten respondents.  The assessment relevant to the fifth point in limine entails the submission that the evidence tendered was designed to mislead the Court.   
[27] As I have stated before, I do not have the impression from a reading of the record that Mr de Villiers deliberately misled the Court by testifying as if he was at the scene on 12 March 2010.  One should remember that he probably never contemplated giving oral evidence until counsel advised at about 16h00 that the applicant should proceed on the basis of oral evidence at 16h30.  While the witness should have been led fully on all the aspects required to make out a case at that stage, one should bear in mind that there was very little time to prepare and that it is unusual to base an urgent application on oral testimony.  Bearing in mind all the circumstances I am not persuaded that the omission to cover all the necessary aspects during the oral testimony is necessarily a sign of any design to mislead the Court.  In my view a cost order is not warranted in this case.

Order
[28] In the result the following order is made:
1.	The fifth point in limine raised by the 4th, 41st, 71st, 119th, 145th, 277th, 377th, 391st, 439th and 570th respondents is upheld.
2.	The rule nisi is discharged and the application is dismissed.
3.	There shall be no order as to costs.

_____________________ 
K van Niekerk
Judge

APPEARANCE
For the applicant:                                                                                  Adv G Dicks
Instr by MB de Klerk and Associates

For the 41st, 71st, 119th, 145th, 277th, 
391th, 439th and 570th respondents:                                                      Adv A Denk
Instr by Harmse Attorneys