Court name
High Court
Case number
LAC 59 of 2009
Title

Roads Contractor Company v Koopman (LAC 59 of 2009) [2011] NAHC 123 (20 April 2011);

Media neutral citation
[2011] NAHC 123













CASE NO: LAC
59/2009



IN
THE HIGH COURT OF NAMIBIA







In
the matter between:







ROADS
CONTRACTOR COMPANY
….................................................APPLICANT







And







JACUES ALBERTO
KOOPMAN
…..................................................
RESPONDENT







CORAM:
UEITELE, AJ.








Heard on: 2010.06.
04



Delivered:
2011.04.20



JUDGMENT


___________________________________________________________________________________






UEITELE A J [1]
In this matter the appellant has given notice on 24 September 2009,
that “it appeals, in terms of Section 89 of the Labour Court
Act, 11 of 2007 against the whole of the arbitration award made by
the learned Arbitrator, Mr. Sonnyboy Mbenjela Mwanawina, dated 21
September 2009.








[2] The Appellant
further gave notice that it “relies on the following grounds of
appeal involving mixed fact and law:



1. The
Arbitrator erred in law and/or as the facts in finding that the
dismissal of the respondent was procedurally unfair:



2. The Arbitrator
erred in law and/or as that facts in finding that the appellant
should pay the respondent an amount of N$827 048-00 as compensation”.








[3] The Appellant
correctly identifies Section 89 of the Labour Act, 2007 (Act 11 of
2007) as the law conferring a right on it to appeal against an award
of the Arbitrator- Section 89 of the Labour Act, 2007 in material
part provides as follows:



89 (1) A
party to a dispute may appeal to the Labour Court against an
Arbitrator’s award in terms of Section 86-



(a) on any question
of law alone; or



(b) in the case of
award in a dispute initially referred to the Labour Commissioner in
terms of Section 7 (1) (a) on question of fact, law or mixed fact and
law”.








[4] The question
here is whether the intended appeal is indeed in terms of Section 89?








[5] I gathered
from the record that on 11 March 2009, Mr. Jacques Alberto Koopman,
in terms of Section 82 (7) and Section 86 (1) Regulation 16 (1),
Regulation 18 (1) and Regulations 20 (1), referred a dispute to
conciliation or arbitration. The referral was done on the prescribed
Form LC 21. See page 1 of the record.








[6] I am of the
view that, if the appeal to this Court is made against an award made
by an Arbitrator in terms of Section 86 of the Labour Act 2007, such
appeal can only be made on “a question of law alone”.
In a recent judgment Shoprite Namibia (Pty) Ltd Appellant v
Faustino Moises Paulo First Respondent Emma Nikanor N.O. Second
Respondent
, (unreported as yet) Parker J at page 4 of
the cyclostyled judgment said the following:



“…the
interpretation and application of s. 89(1)(a) lead indubitably to the
conclusion that this Court is entitled to hear an appeal on a
question
of law alone
if
the matter, as in the instant case, does not fall under s. 89(1)(b).
A ‘question of law alone’ means a question of law alone
without anything else present, e.g. opinion or fact...”








[7] Since the
Appellant in its notice of appeal intends to appeal on grounds
involving mixed fact and law, I answer the question that I have
posted above in paragraph 4 in the negative. The Appellant’s
intended appeal is not in terms of Section 89.








[8] In addition to
the fact that the intended appeal is not in accordance with Section
89(1) (a) of the Labour Act, 2007, I want to highlight the following:



(a) Rule 17 (3)
provides:



An appeal
contemplated in subrule (1) (c) must be noted in terms of the Rules
Relating to the Conduct of Conciliation and Arbitration before the
Labour Commissioner published in Government Notice No. 262 of 31
October 2008 (hereafter “the conciliation and arbitration
rules”), and the appellant must at the time of noting the
appeal – -



[a] complete the
relevant parts of Form 11;



[b] deliver the
completed Form 11, together with the notice of appeal in terms of
those rules, to the registrar, the Commissioner and the other parties
to the appeal.”







(b) Rule 23 (2) of
the conciliation rules states that the notice of appeal must set out



[a] whether
the appeal is from the judgment in whole or in part, and if in part
only, which part;



[b] in the case of
appeals from an award concerning fundamental rights and protections
under Chapter 2 and initially referred to the Labour Commissioner in
terms of section 7 (1) (a) of the Act, the point of law or fact
appealed against;



[c] in the case of
an award concerning any other dispute, the point of law appealed
against; and



[d] the grounds upon
which the appeal is based.”



(c) Rule 23 (3) of
the conciliation rules reads:



Any appeal
lodged in terms of this rule must be prosecuted in the Labour Court
in accordance with the Labour Court Rules made under section 119 of
the Act.”







[9]
In terms of rule 17 (15) the appellant may within ten days after the
record has been made available to it, “amend, add to or
vary”
the terms of its notice of appeal. The respondent in
the appeal must within 21 days after receipt of the record “deliver
a statement stating the grounds on which he or she opposes the appeal
together with any relevant documents.”








[10] The notice of
appeal in this matter is furthermore defective because:



(a) it does not
specify the error of law committed by the Arbitrator when she/he
found that the dismissal of the respondent was procedurally unfair as
required by Rule
23 (2) of the conciliation rules.



(b) it does not
specify the error of law committed by Arbitrator when he she found
that the appellant must pay the respondent an amount of N$ 827 048-00
as compensation.








[11] In the result
the purported appeal is struck off the roll. I make no order as to
costs.








___________________________



UEITELE, AJ



ON BEHALF OF
THE APPLICANT
: MR PHILANDER



INSTRUCTED BY:
LORENTZANGULA IN







ON BEHALF OF
THE RESPONDENT
: NO APPEARANCE