Court name
High Court
Case name
Keya v Chief of Defence Force and 3 Others
Media neutral citation
[2009] NAHC 10





ON RESUMPTION ON 2008















NOT REPORTABLE







CASE NO. LCA 19/08














IN THE HIGH COURT OF NAMIBIA









In
the matter between:









ROSE SWARTZ
APPELLANT









and









NAVACHAB GOLD
MINE RESPONDENT













CORAM: HOFF,J












Heard
on: 2009.03.20









Delivered on: 2009.03.20 (Ex
tempore)






___________________________________________________________________________










JUDGMENT:









HOFF, J.: [1] This
is an appeal by the appellant against a judgment of the learned
Chairperson in the district labour court which judgement was
delivered in the district of Karibib. The appellant is
unrepresented. The respondent is represented by Mr Visser from the
firm Lorentz Angula Incorporated, Windhoek.






[2] Three
points in
limine
were raised. The first point concerns the late filing of the notice
of appeal by the appellant. The second point relates to the non
certification of the record by the chairperson of the district labour
court and the third point in
limine
relates to the general preparation of the record of the proceedings
in the district labour court.







[3] It was conceded by Mr
Visser that, should the first point in
limine
be a successful, then the second and third points in
limine,
being dependant upon the success of the first point, need not to be
decided by this Court.






[4] In
terms of the rules of the district labour court and in particular
Rule 19(2) an appeal from the district labour court to this Court,
shall be noted by delivery within a period of 14 days of the date of
the judgement a notice of appeal and such notice of appeal shall set
out (a) whether the appeal is from the judgement or order in whole or
in part, and if in part only, which part; (b) the point of law or
fact appeal against and (c) the grounds upon which the appeal is
based.





It
was submitted that the appellant in this matter filed an appeal out
of time and different dates were mentioned indicating why the appeal
filed was late.






[5] The notice of appeal was
filed on the 23
rd
day of October 2007 as it appears from the date stamp of the clerk of
the court, (even though this notice appears to have been signed by
the appellant on 16 October 2007). The judgement of the chairperson
of the district labour Court appears to have been written on the 21
st
day of August 2007. However, I shall for the benefit of the
appellant accept that the judgment was delivered on the 24
th
of September 2007 (reflecting the date stamp of the clerk of the
court) and the appellant informed this Court that, this was also the
date on which she received the judgement of the chairperson of the
district labour court.







[6] I shall therefore, for the
purposes of the first point in
limine,
accept that judgement was delivered on the 24
th
of September 2007 and that the appellant filed a notice of appeal on
the 23
rd
day of October 2007.







[7] Having regard to those
dates, it is clear that the filing of the notice of appeal was out of
time, outside of the 14

day period
prescribed in the Rules of the district labour court. The appellant
therefore, since she was late with the filing of the notice of
appeal, had to apply to the chairperson of the district labour court
to condone the non-compliance of the Rules. This was not done. This
is in my view an important step that should have been taken by the
appellant and in the absence of condonation being granted by the
chairperson of the district labour court, this appeal is not properly
before this Court. This Court in this appeal therefore, finds that
this first point raised in
limine
should succeed for that reason alone.







[8] The appeal therefore
stands, to be struck from the roll. Depending on the course of
action that the appellant intends to pursue, I may just add that
should she approach the district labour court, with a condonation
application, and should that condonation application be successful,
then the second point as well as the third point raised in
limine,
should then be attended to.






[9] For
the reasons given, this appeal is therefore struck from the roll.





[10] The
cross-appeal is also struck from the roll.

















___________


HOFF,J.



























ON
BEHALF OF THE APPELLANT IN PERSON











ON
BEHALF OF THE RESPONDENT: MR VISSER








Instructed
by: LORENTZ ANGULA INC.