Shipunda and Others v Africa Personnel (Pty) Ltd and Others (LC 38/2011) [2014] NALCMD 38 (19 November 2014);

Group

Full judgment

REPUBLIC OF NAMIBIA

IN THE LABOUR COURT OF NAMIBIA

JUDGMENT

Case no: LC 38/2011

DATE: 19 NOVEMBER 2014

In the matter between:

SIMSON SHIPUNDA AND 339 OTHERS.....................................................................APPLICANTS



And



AFRICA PERSONNEL (PTY) LTD.......................................................................1STRESPONDENT

MOSES SHITALENI IINAME N.O......................................................................2NDRESPONDENT

MERIAM KATJPOPI NICODEMUS N.O...........................................................3RDRESPONDENT



Neutral citation: Shipunda v Africa Personnel (LC 38/2011) [2014] NALCMD 38 (19 November 2014)



Coram: SMUTS, J

Heard: 13 November 2014

Delivered: 19 November 2014

Flynote: Application for condonation for late filing of an application for leave to appeal. Principles relating to such applications restated. Explanation for delay inadequate and unconvincing, compounded by the failure to prosecute application for some 2 years. Application dismissed.

ORDER

The application is dismissed.

JUDGMENT



SMUTS, J



[1] This is an opposed application for condonation for the late filing of an application for leave to appeal against the judgment of this court handed down on 31 July 2012.

[2] An application for leave to appeal was prepared out of time and this application was filed on 30 August 2012. It has been brought by applicants who had been dismissed in 2010 by the first respondent, their employer. They had succeeded in securing an arbitration award in their favour. The first respondent had appealed against and reviewed the arbitration award handed down on 28 March 2011 and subsequently varied in certain respects on 8 April 2011. The appeal and review were set down together and heard on 29 June 2012 and the judgment of this court was handed down on 31 July 2012, upholding the appeal and setting aside the award.

[3] The dismissal involved some 340 employees who were the respondents in the appeal and the review proceedings. The facts which gave rise to those proceedings are set out in detail in the judgment of this court and do not bear repetition.

[4] Not one of the applicants deposed to the founding affidavit in the condonation application. It was deposed to by the President of the Namibia Seamen and Allied Workers’ Union (the union), Mr Hango with a confirmatory affidavit provided by the applicants’ instructing legal practitioner. In the founding affidavit, Mr Hango states that he became aware of the judgment of this court on 3 August 2012 – even though it was handed down on 31 July 2012. It is however stated that the written judgment had only been received by the applicant’s legal practitioner on 16 August 2012. Quite how this could have occurred is not explained as the judgment had been handed down in open court on 31 July 2012.

[5] In the founding affidavit, it is further stated that members of the union consulted their legal practitioner on or around 16 August 2012 and took a decision to apply for leave to appeal to the Supreme Court. It was then stated that applicants’ counsel who had appeared for them at the hearing was not available and that alternative counsel was approached. Mr Hango also stated that his father had passed away on 12 August 2012,and that he was required to leave ‘immediately’ for northern Namibia to attend to funeral arrangements. Before he left, he stated that he instructed his secretary to in turn instruct counsel to deal with the matter. He said that he returned from the north on 22 August 2012 and that the brief was only then forwarded to counsel by his instructing attorney. It was also stated that he resides in Walvis Bay and that he subsequently needed to make travel arrangements to consult with the instructing legal practitioner and counsel and that the application was filed out of time. Condonation was accordingly sought.

[6] Mr Hango also contended that an appeal against the judgment enjoyed reasonable prospect of success. A notice of appeal was attached to the application setting out the grounds of the appeal. A notice to oppose the application was served on 3 September 2012. Those were the only documents on the court file, as is reflected in the index which was put together on behalf of the applicants, although written heads of argument were also filed on behalf of the applicants.

[7] No steps were thereafter taken on behalf of the applicants to set the matter down, despite the provisions of rule 6(13) which provide that an applicant may apply to the Registrar on five days notice to the other parties for a date to be assigned for the hearing of an application. No such application was made. Nor was any other attempt ever made to have the matter set down until about 10 October 2014 when the matter was raised with a member of the court staff by the applicant’s legal representative. Once the application was drawn to my attention, I immediately caused notice to be given to the parties to attend a status hearing for the allocation of the date of hearing. That notice was given on 13 October 2014 and the Registrar formally allocated the application to me for case management on 14 October 2014. A date of hearing (of 30 October 2014 at 9h00) was allocated in a case management meeting on 15 October 2014. But a new date of 13 November 2014 was subsequently granted in order to accommodate the applicants’ counsel.

[8] I enquired from applicants’ counsel as to an explanation for the failure on the part of the applicants to prosecute the application for such an extended period of time, particularly in view of the provisions of Rule 6(13). The explanation tendered from the bar was that the applicants’ legal practitioner assumed that the matter would proceed to case management and a date would then be allocated. But this explanation is entirely inadequate and falls far short of the standard required of legal practitioners in litigating and prosecuting their cases in court. It can never be accepted that a legal practitioner can merely sit back for some two years and do nothing at all about an application for leave to appeal, particularly in respect of labour matters where the Labour Act[1] expressly provides that labour disputes are to be expeditiously determined,[2] as was stressed recently by this court in Absalom and Others v Novanam Limited.[3] This statement itself is also entirely at odds with the principles and objectives of case management. One of the overriding objectives of case management set out in Rule 1 of the High Court Rules is to ensure that cases are dealt with expeditiously and fairly.

[9] Apart from the inadequate statement from the bar, no explanation was tendered in affidavit for this inordinate delay in prosecuting the matter. Clearly such a delay calls for an explanation. Even upon the very weak and inadequate explanation tendered from the bar, it was plainly incumbent upon the applicants’ legal practitioner to have pursued the matter in case management by seeking a status hearing if he operated under the assumption that the matter was to proceed by way of case management. At the very least, an approach should have been made to the Registrar for the allocation of a date pursuant to the rules of this court whereupon the matter would have been allocated to a managing Judge which in fact immediately occurred when it had been brought to the Registrar’s attention.

[10] Mr Rukoro who appeared for the applicants submitted that condonation be granted. On the merits, he attacked the judgment on the grounds that condonation should not have been granted to hear the appeal itself, given the fact that it had lapsed because of the delays in securing a copy of the record of the proceedings. He also attacked the judgment on the grounds of there being reasonable prospects of success because of an inconsistency in disciplinary sanctions which had been applied by the first respondent. These aspects are briefly dealt with below.

[11] After he had addressed the court, Ms Campbell for the first respondent, before commencing her argument, pointed out that the index was incomplete in that it did not refer to the first respondent’s answering affidavit or the voluminous replying affidavits which had been filed. Neither of these affidavits had been placed on the court file. I then enquired from Mr Rukoro as to their absence and why he had not referred this fact in his heads and when he presented his argument. He at first said that he was unaware of those affidavits and that the index had been prepared with reference to what was on the court file and that they had not been found on the court file and were thus not referred to. I then stood the matter down so that I could read and consider those affidavits. Mr Rukoro also sought time to consider those affidavits.

[12] In the answering affidavit, served and filed on 21 September 2012, reference made to a letter by the first respondent’s legal practitioner addressed to the applicants’ legal practitioner already on 12 September 2012 in which the first respondent took issue with the authority of Mr Hango to bring the application on behalf of the applicants. It was correctly pointed out there was no documentary proof of Mr Hango’s authority to bring the application. That was urgently sought. It was not provided by the time the answering affidavit was filed. That point was then squarely taken, given the fact that all of the applicants were individual employees, even though they had been represented in disciplinary proceedings and in the arbitration proceedings by the union which acted on their behalf. It was stated on behalf of the first respondent that it did not know which of the applicants sought leave to appeal and who was thus before court. The point was thus taken that no authority had been provided by Mr Hango or the union to bring the application on behalf of undisclosed applicants.

[13] The explanation for the delay in filing the application for leave to appeal was also trenchantly criticized. A contradiction in the founding affidavit was pointed out. That related to the fact that it was stated that the applicants’ instructing legal practitioner had only received the judgment on 16 August 2012. Yet it was stated by Mr Hango that the immediately upon his father passing away on 12 August 2012, he had instructed his secretary to instruct Mr Rukoro to deal with the matter. It was thus contended that Mr Hango had not been frank with this court. The explanation concerning Mr Rukoro receiving instructions on 22 August 2012 was also criticized with reference to the instruction given by Mr Hango himself prior to his ‘immediatedeparture for the north on learning of his father’s death. The point was taken that this further delay is not only unexplained but is inconsistent with the version which had been given.

[14] The point was also taken in the answering affidavit that an appeal furthermore lacked prospects of success. Ms Campbell correctly referred to the narrow ambit of an appeal against the exercise of a discretion[4] with regard to granting condonation for the hearing of appeal and finding that the appeal had not lapsed.

[15] In the replying affidavit, Mr Hango sought to deal with much of the criticism levelled at his founding affidavit after ineptly taking a point regarding the first respondent’s authority to oppose the application. The point was taken that ‘five of elevendirectors had signed the resolution. But this point relies upon a misreading of the resolution itself. What had occurred was that some of the directors had separately signed what would appear to have been a round robin resolution. The deponent failed to read the names properly and count them. Even a cursory glance at the resolution would have shown that five of the seven directors had signed that resolution.

[16] Confirmatory affidavits were attached from some of the applicants. Ms Campbell referred to the terms of those affidavits which merely confirmed the first applicant’s affidavit and not what Mr Hango stated. Ms Campbell also pointed out that only 41 confirmatory affidavits were filed and only 16 of them appeared on the list of applicants attached to Mr Hango’s affidavit. She accepted that another 7 names were similar to those contained in the list whilst 18 affidavits were filed by deponents whose names did not appear on the list at all. Ms Campbell complained that the applicants had not been properly identified and that the application was untenable for that reason alone. She submitted that if the respondents were to obtain a cost order in their favour, the first respondent would not know who to proceed against.

[17] In reply, Mr Rukoro submitted that the first applicant’s affidavit confirmed Mr Hango’s authority to proceed with the application and that the other applicants confirmed that. Mr Rukoro further referred to s59 (1)(a) of the Act in support of his contention of authority. This sub-section provides that a union has the right to bring a case on behalf of its members and to represent them in any proceedings brought in terms of the Act. Whilst the union itself was not party to the proceedings and thus the first portion of the sub-section would not apply, a union is however authorised to represent members in proceedings. Mr Rukoro submitted that this sub-section at a very minimum meant that the first applicant had authorised the application as well as those applicants whose names appears on the list and who had confirmed his affidavit. Given the conclusion I reach below, it is not necessary to further consider this question except to point out that the manner in which the application was brought in relation to the authority on behalf of the applicants is one of several unsatisfactory features of this application for condonation. Even though a union may represent its members under s59(1)(a), if it does so, it would then need to follow the rules and particularly Rules 9 and 10 and at the very least properly identify the parties in question.

[18] Ms Campbell however referred to other unsatisfactory features of the replying affidavit with regard to the explanation provided for the delay in bringing the application for leave to appeal. She pointed out that the amplification provided by Mr Hango to address the criticism levelled at the dates provided in the founding affidavit was less than convincing. Mr Hango explained that he did not leave for the northern Namibia on 12 August 2012 upon hearing of his father’s death, despite using the term ‘immediately’ in his founding affidavit. He then stated that he left for the north on 16 August 2012 after consulting his legal representative. But he barely addresses the other criticisms levelled at the explanation for the delay.

[19] It becomes evident from a reading of the replying affidavit that Mr Rukoro had himself been involved in its preparation, given the repeated reference to him. I then enquired from Mr Rukoro as to why he had not seen to it that the full set of affidavits in the matter should serve before court and why they had not formed the basis for his preparation. He seemed to indicate that the delay in the prosecution of the matter had affected his recollection. But after it had been pointed out by Ms Campbell that there were further affidavits, he had recollected that fact.

[20] The test for condonation is well settled.[5] An applicant for condonation is required to give a full and satisfactory explanation for the late filing of the application for leave to appeal. The failure to do so would result in condonation being refused. It is also well established that an applicant is to give a full, adequate and acceptable explanation for each component of the delays which occurred. An explanation must address and cover every period of the delay.[6]

[21] The applicants’ explanation is in my view far less than satisfactory and is singularly unconvincing. It is not explained quite how their instructing legal practitioner only received the judgment of this court more than two weeks after it had been handed down in open court. This calls for an explanation which was not provided.

[22] An annexure to the replying affidavit included a resolution of the union dated 16 August 2012 with reference to a meeting held purportedly held at 11h00 on that day. Mr Hango was noted as being present. The meeting was  together with an affidavit apparently by a certain Ms Sabina Paulus (although signed as Amweenda) had a sequentially numbered faxed transmission report at the top of the page indicating that four pages had been sent including the resolution on 2 October 2012, which was also the date when the affidavit was deposed to. Ms Campbell questioned the veracity and authenticity of the resolution. It is not necessary for present purposes to address this further, except to note the presence of Mr Hango at that meeting on 16 August 2012 at Walvis Bay despite his statement in his founding that he had left ‘immediatelyfor northern Namibia after hearing of the death of his father on 12 August 2012. His subsequent explanation in reply in this regard for his earlier statement is less than convincing. A further unsatisfactory feature of the explanation is the failure to properly explain the further delay which occurred before the application was eventually filed

[23] The inadequacy and unconvincing nature of the explanation provided for the late filing of the application is compounded by the entirely unsatisfactory subsequent prosecution of the application itself for which no proper explanation has been provided and astonishingly, no affidavit was filed to explain it. There was merely the hopelessly inadequate explanation tendered from the bar and that was given only after an enquiry had been directed by the court. I have already referred to the inordinate delay of more than two years before an enquiry was made as to the application itself. This was yet further compounded by the failure to ensure that a full set of affidavits were on the court file when the application was argued. It was only after argument had been completed on behalf of the applicants and after it had been pointed out by the first respondent’s counsel that it was realised by the applicant’s counsel, and instructing attorney that the matter was being argued on incomplete papers.

[24] It is well settled that when an applicant for condonation has failed to give an adequate satisfactory explanation in filing an application for leave to appeal, it is thus not necessary to deal with the merits of an appeal. Despite this, it is however clear to me that the applicants had failed to appreciate the narrow ambit of an appeal in respect of the exercise of the discretion in granting condonation for the late filing of the record on the appeal.[7] This aspect is however also fully dealt with in the judgment of the court.[8] Mr Rukoro however submitted that the court did not however reinstate the appeal as it should have done, but had merely granted condonation for non-compliance with Rule 17(25).[9] This contention however failed to appreciate the substance of what was granted and the further sentence in that same paragraph of the judgment in which it was declared that the appeal had not lapsed and that the preliminary point relating to that issue should fail. The point raised concerning alleged inconsistency with regard disciplinary sanctions is also without merit. Given the conclusion I have already reached in the matter relating to the inadequacy of the explanation provided, it is not necessary to further deal with this issue save to refer to the judgment of this court.

[25] It follows that the application for condonation for the late filing of the application for leave to appeal is to be dismissed. Ms Y Campbell correctly did not persist with a costs order against the applicants, given the provisions of s118 of the Act which confines costs orders to parties and does not include their representatives.

[26] The order which is then made is as follows:

The application is dismissed.

D F SMUTS

Judge

APPEARANCES

APPLICANTS: S Rukoro

Instructed by Harmse Attorneys

FIRST RESPONDENT: Y Campbell

Instructed by MB De Klerk & Associates

[1] Act 11 of 2007.

[2] s85(1), s 86(4).

[3] Novanam Limited v Willem Absalom & Others (LC 101/2003) [2014] NAHCMD 38 (29 September 2014) at par 5-8.

[4] See Rally for Democracy and Progress  and Others v Electoral Commission for Namibia and Others 2013 (3) NR 664 (SC) at 714.

[5] Meat Processors Pty t/a Namibia Meat v Nunes 2005 NR 431 (LC) at 434D – 435E.

[6] Shiimi v Namzim Newspapers (Pty) Ltd, unreported LCA 02/2011 28 May 2012 (per Damaseb, JP at par 3).

[7] See RDP matter cited in footnote4 above.

[8] See judgment at par 21-25.

[9] See judgment at par 25.


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