COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
No.: LC 161/2013
7 MARCH 2014
VAN NIEKERK ….....................................RESPONDENT
Truck Spares v van Niekerk (LC
161/2013)  NALCMD 11 (7 March 2014)
1 November 2013
Labour Law – Application for condonation of the late noting of
an appeal against an arbitrator award dismissed – Court not in
a position to decide whether or not the arbitrator, on the facts
placed before her, was wrong or right as the record of proceedings in
the arbitration proceedings not provided – Application
The application for condonation of the late noting of an appeal
against the arbitrator’s award has been dismissed due to the
failure of the applicant to provide a record of proceedings in the
arbitration proceedings. The Court not placed in a position to
assess whether or not on the facts placed before her, the arbitrator
came to a wrong or correct conclusion.
The application is dismissed.
No order as to costs made.
On 27 May 2013, the applicant approached this Court on an urgent
basis seeking an order to stay the execution of an award issued by
the arbitrator on 22 April 2013, in favour of the respondent pending
the outcome of the appeal the applicant was lodging.
That application was dismissed
as a result of a defective notice of appeal. The application
did not meet the requirements in subrule (3) of Rule 17 which
provides that an appeal against an arbitration award in terms of
section 89 of the Labour Act,
must be noted in terms of the rules relating to the conduct of
Conciliation and Arbitration before the Commissioner published in the
Government Notice No 262 of October 2008 (the conciliation and
arbitration rules). The applicant in the first application did
not deliver Form LC 41 simultaneously with the completed Form 11 to
the Registrar, the Commissioner and to the respondent.
Thereafter, the applicant, again on an urgent basis returned to this
Court seeking an order condoning and dispensing the non-compliance
with rules of Court relating to the forms and service of pleadings
and asked the Court to hear the application as a matter of urgency.
The applicant, further asked that condonation be granted for failure
to deliver Form LC 41 together with Form 11 to the interested parties
as well as to the Registrar and the Commissioner, as contemplated in
The applicant also asked for the re-instatement of the still born
appeal noted in the first application which application was dismissed
for reasons already alluded to earlier in this judgment.
Lastly, the applicant also prayed for the stay of the execution of
the arbitrator’s award pending the outcome of this appeal and
offered to pay the amount awarded in favour of the respondent plus
interest into the trust account of the legal practitioner for the
respondent, which amount of money not to be paid out to the
respondent until the appeal has been resolved.
After some heated arguments from counsel, it was resolved to delete
the relief sought in prayer 3 of the amended notice of motion; to
proceed with the hearing of the application on the points raised by
the respondent as well as the issue of condonation.
On the first point in limine taken by the respondent that the
application is not urgent because the delay was caused by the
applicant self, therefore, that I must dismiss the application, I
disagree. The first application was brought within the
prescribed period of 30 days from date of service of the award on the
applicant. The only fault with that application was that the
applicant did not deliver From LC 41 simultaneously with Form 11 as
required by the rules. Since then, the applicant did not waste
time unreasonably to seek redress from the Court.
The respondent also took issue with the non-compliance with the rules
of the Court by the applicant. I agree. Litigants, in
particular if represented by a legal practitioner, should know that
the rules of the Court are an important element in the machinery of
justice. Any failure to observe such rules can lead not only to
the inconvenience of immediate litigants of the courts but also to
the inconvenience of other litigants whose cases are delayed
However, in order for the Court to refuse condonation for the
non-compliance with the rules, the Court must be satisfied that such
non-compliance with the rules was as a result of a flagrant
non-compliance with the rules of the Court. A breach which
demonstrates a glaring and inexplicable disregard for the process of
which the applicant is innocent of.
In this application, one cannot say that by not delivering Form LC 41
the same time with the completed Form 11, is a breach which
demonstrates a glaring and inexplicable disregard for the processes
of the Court, as many litigants of this Court were guilty of same but
still allowed, on good cause shown, and upon compliance with the
rules to litigate. In the instant matter, there is nothing to
blame for on the part of either the applicant self or its legal
practitioners. All steps taken have been explained in the
founding affidavit and the explanation given is acceptable to me.
Next, is the second point in
by the respondent. This point deals with the issue that the
appeal is not on questions of law alone. This point ties in
with the question of prospects of success on appeal. The Court
will refuse to exercise its discretion in favour of the applicant,
i.e. to grant condonation for the late filing of Form LC 41 should it
find that there are no prospects of success on appeal. There
will be no point of granting condonation if there are no prospects of
success on appeal.
As indicated above, the applicant may appeal against an arbitrator’s
award on questions of law alone.
Should the Court find that the applicant (appellant) is not appealing
on questions of law alone, no condonation for the late noting of the
appeal will be granted because there is no prospects of success on
appeal. No appeal lies against an arbitrator’s award on
questions of facts, even if the Labour Court, on the same facts,
would come to a different conclusion.
The background of the matter is as follows: The respondent was
in the employment of the applicant. On 11 September 2012,
during office hours, a scuffle of words broke out between the
respondent and the owner of the applicant during which derogatory
words were used against the respondent. Aggrieved by the manner
in which he was spoken to by his boss, the respondent left the
workplace after being told to go if he did not approve of the manner
he was spoken to.
On 12 September 2012, which is the following day, the respondent, at
09h00 returned to his work premises but was told to go back home and
to come back at 11h00. When he came back at 11h00, the
respondent was offered to sign a resignation letter which he refused
to do. Thereafter, correspondence were exchanged between the
parties but without resolve.
The upshot of that is that the dispute was referred for conciliation
and arbitration to the Labour Commissioner’s Office, who then
appointed Meriam K Nicodemus as arbitrator in the matter. On
the 19th April 2013, the arbitrator issued her award in
favour of the respondent which reads as follows:
Having found that the dismissal of the applicant was unfair, I
therefore ordered that the respondent pay the applicant five (5)
months’ salary as compensation. The salary rate of the
application was N$22 496.29 per month.
Total amount to be paid to the applicant is as follows N$112 481.45.
The above amount must be paid on or before 3 May 2013 and proof of
payment must be sent to the Office of the Labour Commissioner.
No order as to cost is made.
This award is final and binding on both parties hereto and it can be
filed by either party with the Labour Court in accordance with
Section 87 of Labour Act (Act No. 11 of 2007).
Dated at Windhoek this 19th
day of April 2013.
Meriam K Nicodemus
The applicant now wants to appeal against the above arbitral award
issued in favour of the respondent, on the grounds, the applicant is
alleging being on questions of law alone. The respondent on the
other hand, has put the applicant’s grounds in issue and is
alleging that the arbitrator’s award is based on factual
conclusions. Therefore, for this Court to assess and resolve
the problem at hand, needs a record of proceedings which took place
before the arbitrator to look at the evidence presented before her to
be in a position to determine whether or not the finding of fact made
by the arbitrator is one which no court could reasonably have made or
that the finding in question was so vitiated by a lack of reason to
be tantamount to no finding at all.
The record of proceedings held in the arbitration is very crucial in
this application, therefore, in absence thereof, this Court is not in
a position to decide the issue of prospects of success on appeal for
condonation of the late noting of the appeal (non-compliance of the
Rules of the Court) to be granted or not. Therefore, for the
reasons stated above, the second point in limine by the
respondent is upheld and the application is dismissed.
The application is dismissed.
No order as to costs made.
Adv C Mouton
by Mueller Legal Practitioners
Mr J Boltman
GF Köpplinger Legal Practitioners
No: LC 72/2013, unreported delivered on 20 June 2013
v Marais and others 1992 NR at 2J – 3A
Shiimi v Namzim Newspaper (Pty) Ltd Case LCA 02/2011 (unreported)
delivered on 28 May 2012
v Santam Insurance Co Ltd 1762(4) SA 531 (A) 532 D-F a case cited by
Damaseb, JP in Tonata Shiimi case above
89(1)(a) of the Labour Act, 11 of 2007
v Nantinda Case LC 38/2008 unreported 22/03/2012