Source:

Namibian Law Reports/CHRONOLOGICAL LISTING OF CASES January 1990 to 2021/1996/Volume 1: 1 ­ 412/PAXTON v NAMIB RAND DESERT TRAILS (PTY) LTD
1996 NR 109 (LC)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/lrna/3/1668/1669/1678?f=templates$fn=default.htm

PAXTON v NAMIB RAND DESERT TRAILS (PTY) LTD 1996 NR 109 (LC)
1996 NR p109

Citation 1996 NR 109 (LC)

Court Labour Court

Judge O'Linn J

Heard October 20, 1995

Judgment November 10, 1995

Counsel D F Smuts for applicant.

P F Koep (attorney) for respondent.

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Labour law ­ Employee ­ What constitutes ­ Applicant assisting her husband in his employment ­ Applicant being paid for certain services ­ Such
services being rendered on ad hoc basis ­ Applicant not fitting definition of 'employee' in Labour Act. E
Headnote : Kopnota
The applicant's husband had been employed by the respondent company. From time to time the applicant had assisted her husband in his
employment and had received remuneration for her services. The applicant's husband had been dismissed during 1993. In the present case the
applicant sought an order declaring that she had been an employee of the respondent. F
The Court analysed the evidence and the case law and held that the applicant had not in fact been an employee of the respondent. Her
services had been rendered on an ad hoc basis and were in essence more to assist her husband than to assist the respondent. Moreover, she
had been paid at fixed rates for certain services which she had rendered directly to the respondent but there was no express or implied
contract of employment between them. She was in a sense an independent contractor and did not fit the definition of 'employee' in the Labour
Act G 6 of 1992. Her application was accordingly dismissed.
Case Information
Application for a declaratory order. The facts appear from the reasons for judgment.
D F Smuts for applicant. H
P F Koep (attorney) for respondent.
Cur adv vult.
Postea (November 10). I
Judgment
O'Linn J: The applicant Robyn Storme Paxton applied for the following relief in a notice of motion:
1. For an order declaring that the applicant was an employee of the respondent for the period 1 June 1989 to 31 May 1992 and from 1
June 1992 to 31 May 1993. J

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O'LINN J
2. Declaring it to be a discriminatory practice as envisaged by s 107(1) of the Labour Act by respondent to A have required applicant as
a married woman to have assisted her husband in the performance of his duties by virtue of her marital status without recognising
applicant as an employee in applicant's own right.

3. O'Linn JCosts of suit. B

4. Further and/or alternative relief.

The respondent's company, Namib Rand Desert Trails (Pty) Ltd, opposed the application. At the hearing of the application, Mr Smuts appeared
for the applicant and Mr Koep for the respondent.
Both counsel filed extensive heads of argument and adhered substantially to these in their viva voce argument at C the hearing.
It was however conceded at the outset on behalf of applicant, that prayer '2' in the notice of motion is dependent on the decision whether or
not the applicant is found by this Court to have been an employee of the respondent D during the relevant periods, being 1 June 1989N31 May
1992 and 1 June 1992 up to and including 31 May 1993. It is clear from the relief claimed and the concession made by applicant on her behalf
by Mr Smuts, that applicant was not an employee on the date this application was launched on 13 May 1994 and that at best, her status at E
that point in time was that of an 'ex employee' or 'former' employee.
It was further conceded by Mr Smuts, that the onus is on the applicant to satisfy the Court on a balance of probabilities that applicant is
entitled to the relief claimed. F
None of the parties requested the Court to refer any factual issue to trial or to hear any viva voce evidence. Mr Smuts conceded that, as a
consequence, facts in dispute in this application must be held to be unproved for the purposes of deciding the relevant issues in this
application. G
In answering the question whether or not the applicant was an employee during the relevant period, the definition of employee and employer in
s 1 of the Labour Act 6 of 1992 ('the Act') is determinative and should be the starting point.
These definitions read as follows: H
' ''employee'' means any natural person ­

(a) who is employed by, or working for, any employer and who is receiving, or entitled to receive, any remuneration; or

(b) who in any manner assists in the carrying on or the conducting of the business of an employer, and ''employed'' and ''employment'' shall have
corresponding meanings; I

''employer'' means any person, including the State:

(a) who employs, or provides work for, any person and who remunerates or expressly or tacitly undertakes to remunerate him or her;
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(b) who permits any person to assist him or her in any manner in the carrying on, or conducting of, his or her business, and
 (b) who in any manner assists in the carrying on or the conducting of the business of an employer, and ''employed'' and ''employment'' shall have
corresponding meanings; I

''employer'' means any person, including the State:

(a) who employs, or provides work for, any person and who remunerates or expressly or tacitly undertakes to remunerate him or her;

(b) who permits any person to assist him or her in any manner in the carrying on, or conducting of, his or her business, and

''employ'' and ''employment'' shall have corresponding meanings.' J

1996 NR p111
O'LINN J
It is common cause that in interpreting these definitions, recourse should first be had to the golden rule of A construction as restated by Joubert
JA, in Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3) SA 800 (A) at 804BNC as follows:
'The plain meaning of the language in a statute is the safest guide to follow in construing the statute. According to the golden or general rules of construction the words
of a statute must be given their ordinary, literal and B grammatical meaning and if by so doing it is ascertained that the words are clear and unambiguous, then effect
should be given to their ordinary meaning unless it is apparent that such a literal construction falls within one of those exceptional cases in which it would be permissible
for a court of law to depart from such a literal construction, eg where it leads to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative
intent. See C Venter v Rex 1907 TS 910 at 913­14, Johannesburg Municipality v Cohen's Trustees 1909 TS 811 at 813N14, Shenker v The Master and Another 1936 AD
136 at 142; Ebrahim v Minister of The Interior 1977 (1) SA 665 (A) at 678A­G.'

See also Summit Industrial Corporation v Claimants Against The Fund Comprising the Proceeds of the Sale of the MV Jade Transporter 1987 (2)
SA 583 (A) at 596G­597B. D
See also: Borcherds v C W Pearce & J Sheward t/a Lubrite Distributors (1993) 14 ILJ 1262 (LAC) at 1268­9. Dempsey v Home Property (1995)
16 ILJ 378 (LAC) at 380E­381A.
Mr Smuts drew attention also to the following caution, expressed in the Borcherds decision by McCall J at 1269C­D: E
'It must not be lost sight of, however, that the purpose of interpretation is to give effect to the intention of the legislature, and in ascertaining that intention, regard is to
be had both to the language of the enactment and to the context. Cf Protective Mining & Industrial Equipment Systems (Pty) Ltd v Audiolens (Cape) (Pty) Ltd 1987 (2)
SA 961 (A) at 991GN992A. In this regard account may be taken of ''the matter of F the statute, its apparent scope and purpose, and, within limits, its background'' ­
per Schreiner, JA in Jaga v Dönges NO and Another, Bhana v Dönges NO and Another 1950 (4) SA 653 (A) at 662H. See also the Protective Mining case at 991H.'

It should furthermore be noted that both Mr Smuts and Mr Koep relied on the Borcherds decision supra. G
As far as the law is concerned, the said decision is also in point because it is apparent from the decision that the statutory definitions in s 1(1)
of the South African Labour Relations Act 28 of 1956 dealt with in the said decision, are identical in all material respects to the definitions in s 1
of the Namibian Labour Act in so far as they relate to H the definitions of 'employee', and 'employer' and 'employ' and 'employment'.
Mr Smuts further submitted, that when the context and purpose of the legislation providing for the protection of employees, particularly the
context of minimum conditions of employment and employment rights, is considered, I it is clear that the legislation fundamentally departs from
the common law. It is clear that the wide definitions contained in the Act and in its predecessor (the Conditions of Employment Act) are
intended to cast the net of protection provided for in the Act widely and to go beyond contractual employment and to include other employees
within J

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the protective framework of the legislation. It accordingly follows that to fall within the definition of employee, the A legislation goes beyond the
common law and is not dependent upon a contract of employment. See Rycroft and Jordaan A Guide to South African Labour Law 2nd ed 1992,
at 43­4 where the learned authors state the following: B
'While eligibility for social security benefits depends on the existence of a contract of employment, the statutes mentioned contain a very wide definition of the classes
of persons they intend to encompass. Their operation does not depend on the existence of a contract of employment but rather of the fact of employment as such. The
result is that they also apply to relationships that fall outside the contract of employment paradigm.' C

(My emphasis)
The submissions of Mr Smuts appear to be correct as far as they go. It is necessary to point out however, that the intention to extend the
protection of employees does not exclude the overall intention of the Legislature when enacting the Labour Act of Namibia, to balance the
interests of the employee with that of the employer and the D government and furthermore, with that of society in general. See Du Toit v Office
of The Prime Minister 1996 NR 52 (LC).
It also follows that when and where the legislation makes inroads on the common law, but uses ambiguous E language, the basic presumptions
contained in our law relating to the interpretation of statutes, remain applicable. See Du Toit v Office of the Prime Minister, where this Court
said:
'Even if more protection of the employee is desirable, the Legislature must provide such protection. The Court F cannot legislate where there is a casus omissus. Where
there is a casus omissus, the common law and the existing statute law which have not been repealed, continue to apply.

See Steyn Uitleg van Wette (supra at 16). Cockram Interpretation of Statutes at 22/28.

There is further the related presumption which should be kept in mind namely that Legislature does not intend to G change the common law or the existing statute law
more than necessary.

See Cockram Interpretation of Statutes (supra at 98N9); Steyn, Uitleg van Wette, (supra); Du Plessis Interpretation of Statutes (69N73).

The intention of the Legislature must appear from the words used in the statute, read as a whole and where H provisions of the Namibian Constitution are relevant, then
also in the context and in accordance with the letter and spirit of the said provisions of the Namibian Constitution. Where the provisions of international conventions are
relevant, then the provisions of such conventions should also serve as an aid to establish the intention of the Legislature.

Even where there are some indications that the Legislature may have intended a certain result but has not I expressed it sufficiently and clearly in the wording of the
statute, the Court cannot give effect to such an intention. In that case and in the case of ambiguity and doubt, the presumptions of interpretation may be decisive. The
Labour Act of 1992 cannot be equated with the Constitution of the Republic of Namibia or other similar constitutional instrument. The so­called ''broad liberal and
purposive interpretation'' applicable to the interpretation J

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O'LINN J
of the Constitution of the Republic of Namibia is therefore not applicable to the interpretation of the Labour Act. A

See Steyn (op cit) 118, 119, 279; Cockram (op cit) 24N6, 44N8, 88N9 and 143; Du Plessis (op cit) 61N63.'

Furthermore, as pointed out by Brassey in the 'Nature of Employment' ILJ (1990) 934 and quoted with approval in the Borcherds case supra at
1275I ­ 1276D, the words in the definition 'any other person whomsoever who in B any manner assists in the carrying on or conducting of the
business of any employer', 'do not prise the common law's grip from the statute'.
Brassey in his aforesaid article at 935­6, enumerates the following considerations when deciding on the nature of a particular relationship: C
'1. Employment is a relationship in which one person is obliged, by contract or otherwise, to place his or her capacity to work at the disposal of another.

2. An employee is to be distinguished from an independent contractor, who undertakes to deliver, not his or her capacity to produce, but the product of that
capacity, the completed work. D

3. Since independent contractors have been held to fall outside the statutory definitions of employment, a statutory employee is likewise a person who
delivers up the capacity to produce rather than the finished product.

4. Whether remuneration must be paid before a worker can be said to be an employee is a moot point ­ it seems to be a requirement at common law, but not
otherwise. E

5. Control or, more properly, the right of control is an important indicium of employment, but neither is nor any other indicium provides a decisive test for the
relationship. Whether a relationship is one of employment or not has to be decided on a proper assessment of all the relevant facts. Past cases provide
a useful guide for determining what facts are relevant. F

6. Vicarious liability cases are an unsafe guide in determining the nature of employment, for in reality they turn more on the power of control than the fact of
employment.'

McCall
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'In my opinion it may be accepted, however, that independent contractors, and persons in other categories even further removed from the common­law contract of
employment, are not intended to fall within the meaning of the G word ''employee'' as it is used in the Act. It may be possible to exclude those categories by drawing a
 relationship. Whether a relationship is one of employment or not has to be decided on a proper assessment of all the relevant facts. Past cases provide
a useful guide for determining what facts are relevant. F

6. Vicarious liability cases are an unsafe guide in determining the nature of employment, for in reality they turn more on the power of control than the fact of
employment.'

McCall J said in the Borcherd's decision supra at 1276E:

'In my opinion it may be accepted, however, that independent contractors, and persons in other categories even further removed from the common­law contract of
employment, are not intended to fall within the meaning of the G word ''employee'' as it is used in the Act. It may be possible to exclude those categories by drawing a
distinction between ''working for'' a person and ''doing work for'' a person and ''assisting in the carrying on or conducting of a business'' or ''performing work or
services which have the effect of providing such assistance''. See the AMCA Services case at 542 and The Oak Industries case at 706D.' H

McCall J continued at 1277B­I:

'Having said that, one is still left with the problem of deciding what it is that determines whether a person is an employee or an independent contractor. The exercise of
control can no longer, since Smit's case, be regarded as the determining factor. It may still be regarded as being an important yardstick for testing whether the party
under I consideration is an employee or an independent contractor but it is not decisive. In a recent Labour Appeal Court decision, in Boumat Ltd v Vaughan (1992) 13
ILJ 934 (LAC) consideration was given to control as a factor in determining whether a person was an employee.

In Smit's case at 61 Joubert JA listed the object of the contract as one of the ''important legal characteristics of the contract service . . .'' and the contract of J

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work. Brassey at 900 considers that the object of the contract should determine its character and should not be A regarded merely as one of its characteristics. In
Smit's case Joubert JA said at 61A­B:

''The object of the contract of service is the rendering of personal services by the employee (locator operarum) B to the employer (conductor
operarum). The services or the labour as such is the object of the contract.
The object of the contract of work is the performance of a certain specified work or the production of a certain specified result. It is the
product or the result of the labour which is the object of the contract.''
Brassey, referring to this and other dicta says, at 899:
''What these dicta suggest, and correctly so, is that an employee is a person who makes over his or her capacity C to produce to another; an
independent contractor, by contrast, is a person whose commitment is to the production of a given result by his or her labour. In the one case
what is transacted is the capacity to work; in the other it is the product of it.''
He regards the ''surrender of the capacity to work'' as being at the very heart of the relationship between employee and employer''.

In order to ascertain the nature of the relationship between the parties, it is obviously necessary to look at the terms D of the contract. It is the terms of the contract
which determine that relationship, although the parties' own perception of their relationship and the manner in which the contract is carried out in practice may, in areas
not covered by the strict terms of the contract, assist in determining the relationship.'

Although the exercise of control has been watered down to 'being an important yardstick for testing' but not E 'decisive', it seems to me that it
remains a very important yardstick and perhaps even an indispensable one when deciding the issue of who is an 'employee' in the context of the
provisions of the Namibian Labour Act. I say this inter alia because of Part V of the Labour Act which provides for basic conditions of
employment, which F must be complied with and where failure to comply even carries a criminal sanction. Compliance with these conditions or at
least several of them, necessitates a substantial degree of control by the employer over the employee. If the relationship between the parties
does not have such control, or provide for such control as an G element, whether express or implied, then that fact must be a very important, if
not decisive, pointer that the relationship is not that of employer employee. Furthermore, the contention that the operation of the aforesaid
statutory definitions contain very wide definitions and that their operation does not depend on the existence of a H contract of employment but
rather on the fact of employment as such, is in itself very vague. The question remains how is the 'fact of employment' and the ambit of that
fact to be established. The ambit again encompasses the terms of the said employment or employment relationship. Where the terms governing
the I said relationship have not been agreed upon, expressly or impliedly and not even tacitly, how then must they be determined?
It must be borne in mind that even if it can be said that the employment relationship 'does not depend on the existence of a contract of
employment' that does not mean that the absence of a contract of J

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employment, whether in writing or oral, whether express, implied or tacit, would not in most cases be a A significant indicator. Where there is not
even a tacit agreement of employment, the circumstances justifying an inference that there was in fact an employment relationship, must be
exceptional. It seems to me that in order to establish that there is in fact an employment relationship, an agreement of some sort, indicative of
the alleged B relationship, would be an almost indispensable feature of the relationship. Such agreement of course need not be a formal
agreement, reduced to writing. The agreement can be, in whole or in part in express terms or implied or tacit. Such implied or tacit terms can be
inferred from conduct of the parties. See A Guide to South African Labour Law 2nd ed by Rycroft and Jordaan 40N6. C
When applying the law to the facts of the case, McCall J said at 1280A­G and further at 1281A­C:
'The fact that the insurance agent's remuneration was in the form of commission seemed to weigh heavily in favour D of finding that he was an independent contractor
in Smit's case at 67G­68A. Remuneration by way of commission is, of course, not necessarily decisive but, in my view, the fact that appellant was only remunerated if
he produced results, and for those results, is a very strong indication that what was required of him was the production of a result rather than the rendering of personal
service. Other extremely important indicators that he was not an employee E are the fact that he was not registered as an employee with the Department of Manpower,
was not a member of the Unemployment Insurance Fund or the Workmen's Compensation Fund, that he did not contribute to the pension fund or medical aid Scheme
and that the respondent did not make any deductions from his commission for income tax purposes. All those factors seem to me to be wholly inconsistent with any
intention on the part of either the F appellant or the respondent that the appellant should be regarded as an employee for the purposes of the legislation relating to
employees.

To the extent that control is still an important factor, it is clear that the control exercised over the appellant by the respondent was minimal. The fact that he received
some initial training or instruction is not inconsistent with his G being an independent contractor. It would be quite normal for any salesman, whether he be a servant or
an independent contractor to receive initial training. As I have said, the fact that he was obliged to produce some result is also not inconsistent with his being an
independent contractor. What is inconsistent with his contract being locatio conductio operarum is the fact that the respondent did not exercise any day­to­day control
whatsoever over his H activities, the fact that he had a complete discretion as to the method to be adopted by to obtain orders as he wished. Further indications that he
was not an employee were that he received no holiday pay and no sick pay and did not have to produce a doctor's certificate if he was incapacitated. The fact that he
was required to fill in statistics, whether they were daily time sheets or daily call sheets and to fill in a customer history record are neutral I factors because they could
be required for the employer's purposes, from either an employee or an independent contractor.

This review of those factors which may tend to indicate the object of the contract between the appellant and the respondent produces the result that there are a number
of factors which are only or, in some cases, far more consistent with the notion that the contract was the production of a result rather than the J

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rendering of personal services; there are some which are neutral and there are none which are only consistent with A the notion that the contractor was solely for the
rendering of personal services.

In the circumstances I am of the opinion that the appellant was an independent contractor and was not an employee, either at common law or for the purposes of the
Labour Relations Act and there was accordingly no employer­employee relationship between the appellant and the respondent. In my opinion the indicators that the B
contract was not one of locatio conductio operarum are just as . . . strong, if not stronger, than the indicators in the AMCA Services case, in Smit's case and in Lichaba
Versekeringsmaatskappy Bpk, which related to a ''freelance'' saleslady. It follows that the appeal must fail.'

The reasoning of McCall J, as set out above appears to me not only to be correct in the case he decided, but C appropriate and applicable
mutatis mutandis, to the case that I have to decide.
With this prelude to the law, I can now deal with the facts and then apply the law to the facts.
The relevant facts which are either common cause or not in dispute: D
1. The applicant is the wife of Mark Paxton.

2. Mark Paxton was employed by respondent as game ranch manager for the Namib Rand farm, belonging to respondent's company from 1
June 1989­31 May 1993.

3. When her husband's services were terminated by respondent, applicant left with her husband. E

4. and
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Company 1993,
Ltd.applicant has been employed by the Rossing Foundation at Shankara,
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2022 13:14:24 administrative
(South assistant to her
Africa Standard Time)
husband who is employed there as a project farm manager.
 2. Mark Paxton was employed by respondent as game ranch manager for the Namib Rand farm, belonging to respondent's company from 1
June 1989­31 May 1993.

3. When her husband's services were terminated by respondent, applicant left with her husband. E

4. Since 1 July 1993, applicant has been employed by the Rossing Foundation at Shankara, Kavango as an administrative assistant to her
husband who is employed there as a project farm manager.

5. There is a complaint by applicant's husband pending at this point of time in regard to his dismissal from F respondent's services. There
is however no complaint by applicant lodged with the district labour court.

Applicant's purpose with the present application is to lodge a complaint with the said district labour court, should she be successful in
her present application. According to applicant she did not G previously lodge a complaint with the district labour court because she
was unaware of her rights under the Labour Act.

Applicant's contemplated complaint to the Labour Court will inter alia request the district labour court to H determine a fair and
reasonable remuneration for the services which applicant allegedly rendered to the respondent. No other contemplated relief is
specified or identified.

6. Applicant did assist her husband and rendered certain services on an ad hoc basis at Namib Rand I during the period of the aforesaid
employment, ie from 1 June 1989­31 May 1993. This assistance consisted of the following as summed up by applicant herself:

'6.1 keeping the guest room at Wolwedans clean and habitable and stocked for tourists.

6.2 catering and hosting paying guests. J

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6.3 keeping the guest house at Chateau clean and habitable and stocked for tourists. A

6.4 keeping the camp site clean and habitable and stocked for tourists.

6.5 running and maintaining a farm shop for employees of respondent. B

6.6 receiving telephone enquiries and making bookings for and receiving payment from tourists.

6.7 assisting in game culling in 1991 and 1992.

6.8 catering for the aerial census held on the farm in 1989, 1990, 1991 and 1992; C

6.9 arranging and catering for the workshop held at Wolwedans in September 1991;

6.10 rendering support and assistance to my husband in the preferences of his duties, particularly when he was absent;

6.11 rendering administration/secretarial services to the respondent.' D

7. No agreement of employment was entered into between applicant and respondent at any stage. Applicant stated in her founding
affidavit in para 8:
'While I concede that I never contractually agreed to be employed by the respondent, I submit that the E respondent was under a duty to recognize that if it
required my assistance, it should have been subject to a mutually acceptable term of employment which should have been agreed upon.'

8. Applicant did run the respondent's farm store for her own account and this constituted a service to F respondent's employees. She
'assumed' responsibility for the store and when she did so, she took over the existing stock and an amount of R450 paid over to her
by a Mr R Schoeman, who previously ran the store.

Respondent did not require her to conduct the business on a non­profit basis. G

Applicant states that she accepted the non­profit basis as 'the policy, as conveyed to her by her predecessor.'

9. Applicant did train one Hendrik Rooi, an employee of the defendant, to drive four­wheel motor vehicle. H

10. Applicant did render clerical services to her husband. She explains that her husband was 'computer illiterate' and she prepared
reports from his handwritten notes.

11. However, applicant was remunerated for some of her services, namely: I

11.1 R20 for keeping the guest house at Chateaux clean and habitable and stocked for tourists.

11.2 R5 for keeping the Camp site clean and habitable.

11.3 R6000 for catering for visitors beneficial to the Namib Farm enterprise for the period of July 1989­March 1992. J

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11.4 From April 1992 applicant was paid for disbursements in connection with the aforesaid catering on A a monthly basis from
respondent's farm account. Respondent did not reply to the latter allegation. Applicant did not explain in any of her
affidavits what the ambit and nature of the disbursements were and what she was in fact paid in this connection. B

12. Applicant had an agreement with respondent through Brackner, the director of respondent, in which she would receive remuneration
for the services stated in points 6.1 and 6.2 supra.

Although applicant does not say whether the agreed above fees were per trip, the respondent alleges C that these were the agreed fees
per trip and that must be accepted for the purposes hereof. Applicant could therefore charge the amounts of R20, and R5 on every
occasion that guests visited and used the facilities. The total amount received by applicant in this regard during the whole period
of her assistance D is not stated.

12.1 There was also agreement between applicant and respondent in regard to the aforesaid payment of R6 000.

Applicant originally claimed R9 960 at a rate of R60 per person per night for 99 guests for the period from July 1989­March 1992.
Brackner however was only willing to pay R6 000, which E applicant reluctantly accepted.

12.2 In applicant's letter dated 25 May 1992, she explained that she took in a total of R720 for catering for paying guests during
the period April­May 1992 and that she would pay the company 10 percent F of these earnings. She enclosed her cheque for
R72. It is not stated in applicant's affidavits whether the respondent accepted this position and whether or not this practice
continued of receiving monies from paying guests for her own account and remitting to respondent only 10 G percent of
what applicant calls 'earnings' in her letter of 25 May to respondent. Again the total amount of such earnings over the whole
relevant period is not stated.

12.3In the aforesaid letter applicant also said that she did not claim from respondent for 113 guests H who were 'family and
friends' of her and her husband. About these 'friends' applicant stated in her letter that they always make 'adequate
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(Pty) Ltd. and compensation for their time spent here'. I
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The majority of guests catered for were therefore family and friends who made 'adequate contributions or compensations'.
 relevant period is not stated.

12.3 In the aforesaid letter applicant also said that she did not claim from respondent for 113 guests H who were 'family and
friends' of her and her husband. About these 'friends' applicant stated in her letter that they always make 'adequate
contributions and compensation for their time spent here'. I

The majority of guests catered for were therefore family and friends who made 'adequate contributions or compensations'.

Again the total amount received from their family and friends is not disclosed by applicant. J

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The respondent was therefore not compensated for the use of its property and facilities for the A family and friends of the
applicant and her husband.

12.4 In regard to the catering for the said Brackner and his wife when they would visit Namib Rand, applicant stated in her
aforesaid letter where she complained generally about not being properly B compensated:

'This does not apply to you personally as I have always enjoyed you and Mrs Brackner's visits to my home.'

12.5 In her aforesaid letter applicant made the point that she did not regard it as fair and reasonable that the respondent 'employ
two people for the price of one' and then continues: C

'and while much of my in­put was in support of my husband, I am under no obligation to work for Namib Rand. Had I gone elsewhere three years ago
my husband's contract and conditions of work D would have still been valid.'

It is clear from the above that applicant at no stage up to and including the aforesaid letter regarded herself as having any obligation
whatsoever to work for the respondent or even to do work for the respondent. E
12.6 Applicant also said in her letter:
'Mr Brackner you often used the term ''you will be adequately compensated'' and this has misled us into believing that I would receive some form of
payment for my labour, especially after this question had been brought up in discussions between you and Mark where you finally agreed on a
figure.' F

Applicant concluded her aforesaid letter as follows:

'Trying to ignore the problem as you appear to have done for some time now does not solve the problem it only worsens the situation, this has to be
solved soon! Recently, I confided in a trusted G person who is a prominent figure. His advice to me was to seek legal counsel, but I really believe
we can sort this out between ourselves and hope we can resolve this problem without too much fuss or bother in a way that is mutually
beneficial.'

(My emphasis)

It is also clear from the above that what applicant desired was 'adequate compensation' not salary H or wages in accordance with
a contract of employment or other obligation to work for respondent or make available her services to respondent and to be
under the respondent's control as an employee on a fixed basis, whether as a casual employee or whether, weekly, monthly
or for some I other fixed period of employment.

13. Brackner, first responded negatively to the suggestion of employment of applicant on a different basis when he said in his letter
dated 27 May 1992: J

1996 NR p120
O'LINN J
'In regard to your suggestion that your wife Charlie be employed in her own right because of her involvement A with visitors, assisting you
with your duties and running the farmstore (the latter for her own account). I am of the opinion that in an environment like Namib Rand, a
manager's wife has to assist and support her husband, as needed, to enable him to do his job. I advised you that I never had considered
employing a single person for this position for these reasons. B
As far as visitors of importance to the Company are concerned, related expenses should be for the account of the Company. I suggest that
we agree on an overnight rate for such visitors (R65/night is not acceptable) and that this charge is debited against a limited monthly allowance
to keep control over such expenditure. Wherever possible, costs must be recovered from visitors. The changing situation with regard to the
tourist development at C the Ranch may necessitate changes to this arrangement. This needs to be discussed and remains subject to revision
on an annual basis. However, I would be prepared to split your income (as we did with Mrs Schumann) to give you a tax advantage, if you so
wish.'
13.1 However, in a letter by Bruckner to applicant's husband dated 30 July 1992, he said: D

'In view of the changed circumstances with regard to the rather unexpected stream of tourists to Namib Rand and the growing involvement of Charlie
in NRGR business, I now agree that the present status­quo needs review. I will discuss this with Charlie when she is in Windhoek next and come
to an E arrangement which, hopefully, suits everybody.'

13.2 It is clear from the above letter that respondent in July 1992 recognized the applicant's involvement in the business of Namib
Rand Game Ranch, and in effect in the business of respondent. F

13.3 Applicant failed to disclose in her founding affidavit but acknowledged it in her replying affidavit when raised by respondent in
its answering affidavit, that in her letter to Bruckner dated 17 August G 1992 she declined to negotiate any arrangement
with the respondent and actually confirmed that she wished to adhere to the arrangements then existing and that she was
unsure at that stage whether she wanted to be employed or not. The relevant parts of her said letter read as follows: H

'Thank you for your patience in wanting to negotiate a deal for me on Namib Rand.

However, currently I am not in an emotionally stable state and could not cope with the struggle in negotiating any deals. The arrangement we agreed
on for now is fine (ie Chateau R20, Campsite R5, I Paying guests 3, other guests R40) . . .'

Applicant ended her letter as follows:

'Who knows what the future holds, if we are all on the same boat in the New Year, and I have got back on my feet again, maybe then we can thrash
out any new developments or changes.' J

1996 NR p121
O'LINN J
13.3 Applicant's aforesaid letter of 17 August 1995, gives a completely different picture than that A contained in para 32 of her
founding affidavit. Paragraph 32 reads as follows:

'It was only towards the end of 1992 or early in 1993 that Brackner (after my husband's repeated nagging I believe) discussed vaguely my possible
employment with the respondent, whilst persisting B in his refusal to recognise me as an employee. However, no concrete offer of employment
was made. I am obliged to infer that Brackner was not serious in his talk of offering me employment and was merely seeking to placate me. By
this time I had realized emotionally and morally I would be unable to work for the respondent as long as I had to deal with Bruckner directly. I
was contemplating C working part­time as a nurse to supplement my husband's income, which I considered non­competitive when compared
with his experience and what he could be earning with the Ministry of Nature Conservation, Wildlife and Tourism. This would obviously have
placed a considerable strain on our marriage. After this discussion Brackner never again discussed a possible employment with D me. However,
as appears from my affidavit, I continued rendering services and working for the respondent until my husband's dismissal on 31 May 1993. It is
also significant that Brackner never specifically prohibited me from rendering the assistance I was to the respondent.' E

13.4 Applicant's explanation in her replying affidavit to the effect that her letter was 'lost on computer software' and that she 'did
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13.5 No further negotiations took place between applicant and respondent subsequent to applicant's aforesaid letter dated 17
 with his experience and what he could be earning with the Ministry of Nature Conservation, Wildlife and Tourism. This would obviously have
placed a considerable strain on our marriage. After this discussion Brackner never again discussed a possible employment with D me. However,
as appears from my affidavit, I continued rendering services and working for the respondent until my husband's dismissal on 31 May 1993. It is
also significant that Brackner never specifically prohibited me from rendering the assistance I was to the respondent.' E

13.4 Applicant's explanation in her replying affidavit to the effect that her letter was 'lost on computer software' and that she 'did
not have a copy to give to her attorney', is clearly unconvincing. F

13.5 No further negotiations took place between applicant and respondent subsequent to applicant's aforesaid letter dated 17
August 1992.

14. When applicant's husband went on leave during his period of employment, applicant went with him without requesting the consent of
respondent. G

15. When applicant's husband's services were terminated and he left respondent's farm, applicant also left, again without notice to
respondent, of resignation or cessation of her services.

Bruckner, on behalf of respondent, contends in his answering affidavit that applicant actually assisted H her husband and was engaged in
her husband's business and was not assisting the respondent as such and not engaged in the business of the respondent.
Furthermore according to respondent, applicant was paid for services rendered in accordance with an agreed fee. This was done,
not I because applicant was an employee at any stage, but because of a social obligation. This attitude of Brackner is not above
criticism.

The fact that applicant received certain remuneration for at least some of her services, is not an indication in the circumstances of this case
that J

1996 NR p122
O'LINN J
she was an employee at any stage. Applicant's claim was clearly not for a salary or wages, but at best for work A done for respondent at a
certain rate. She claimed for specified work done for the respondent, not for working for the respondent.
All the work she did was of an ad hoc nature.
She never offered her services or placed her services and working capacity at the disposal of the respondent. B She never was under the
control of the respondent. She took initiatives on for her own, in her own time and where and when she thought fit.
When respondent in 1992 indicated its willingness to negotiate a new status, which probably would have been C that of employee of
respondent, applicant suddenly declined and chose to continue on a basis of ad hoc services and agreed rates of remuneration for such
services, without the constraints on her freedom of an employment contract or relationship. She disqualified herself for such a relationship by
stating that she could not enter into D such a relationship because of her emotional relationship.
As from that point in time, ie for the period subsequent to her letter of 17 August 1992, there can certainly be no suggestion of her being an
employee, notwithstanding the widest possible interpretation of the statutory definition of 'employee', 'employer' and 'employment' in the Labour
Act. E
The aforesaid letter however, is also a pointer to her status from 1989­17 August 1992. It constitutes a negation of the existence of an
employer­employee relationship during the period prior to 17 August 1992.
When applying the criteria discussed supra, applicant was at best an independent contractor, in particular for F those services for which she was
remunerated. Some of the other services indirectly contributed to those for which she was remunerated. In the case of some ad hoc services
not so related, applicant took the initiative and rendered those services gratuitously, without having any obligation whatsoever to respondent.
In those instances G her status may even be further removed from that of employee than even that of 'independent contractor'.
Applicant and her husband appear to be highly qualified, experienced and competent and they may have deserved a better deal than that which
respondent offered them. Unfortunately, when a better deal and status H was within her grasp, she opted out.
I am indebted to both legal representatives for their thorough argument which was of great assistance to the Court.
In the result:
The application for a declaratory order, is dismissed. I
Applicant's legal practitioners: Lorentz & Bone. Respondent's legal practitioners: P F Koep & Co. J

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