REPUBLIC OF NAMIBIA
LABOUR COURT OF NAMIBIA
Case no: LCA 78/2013
In the matter between:
OFFICE OF NAMIBIA LTD t/a
KAHITIRE KENNETH HUMU
PENDA YA OTTO
citation: Life Office
Namibia Ltd ta NAMLIFE v Amakali (LCA 78/2013)  NALCMD 17 (17
15 April 2014
17 April 2014
Application to set aside an arbitrators
award and for a complaint to be heard de
novo because a material portion of the
record was missing and could not be reconstructed. The portion in
question was the first respondent’s evidence-in-chief. The
court resolved to refer the matter back to the arbitrator to rehear
the first respondent’s entire testimony including his
That the applicant’s
non-compliance with the Rules of this Court and the forms and
service provided for in these Rules as envisaged in Rule 6(24) of
the Rules is condoned.
That the appeal is postponed
to 25 July 2014
That the matter is remitted
to the second respondent to rehear the evidence of the first
respondent (including his cross-examination) upon a date and time
convenient to the second respondent and the parties but to be
completed within 60 days
of this order.
That the evidence of the
first respondent is to be transcribed and lodged with this court 15
days after it is heard.
That the applicant is
afforded the opportunity to supplement its appeal grounds within 5
days after the record of such evidence
No order is made as to costs.
applicant noted an appeal against an arbitrator’s award under s
89 of the Labour Act.
The award was made in favour of the first respondent, one of its
The appeal was noted
timeously. The applicant was also granted an interim interdict on 13
December 2013 staying the operation of the award, pending the
determination and finalisation of the appeal. The rule was confirmed
on 22 January 2014. In order to address prejudice to the first
respondent, this court set down the appeal for 4 April 2014,
obviating the need for the parties to follow Rule 17(18) of the Rules
of this Court to apply for a date of hearing.
The applicant was also
granted leave to bring an application as a matter of urgency, duly
supported, to compel the filing of the record by the Labour
Commissioner, given the early set down of the appeal.
The record, which was
subsequently found to be incomplete, was provided to the applicant on
31 January 2014. The applicant’s legal practitioner
mistakenly certified that the record was complete and correct.
It was however subsequently established that a portion of that record
was missing and would need to be reconstructed. This was
brought to the attention of the arbitrator by way of a letter on 14
February 2014. The entire evidence-in-chief of the first respondent
had been omitted from the record. It soon transpired that this
portion of the record was missing. The applicant’s
representative at the hearing was requested to assist in
reconstructing the record. But his contemporaneous notes were no
longer in his possession and he was only able to provide a brief
summary reflecting his recollection of the first respondent’s
The applicant’s legal
practitioners then addressed a letter to the first respondent’s
legal practitioners on 18 February 2014 explaining the missing
portion of the record and enquiring as to whether the first
respondent or his representative had contemporaneous notes regarding
his evidence-in-chief. The arbitrator subsequently provided copies of
his handwritten notes of the first respondent’s
evidence-in-chief. By the nature of things, these notes were
brief and did not reflect the full extent of the evidence-in-chief.
A further request was directed to the first respondent’s legal
practitioner enquiring as to whether the first respondent would be
satisfied with those notes. The first respondent’s legal
practitioner reverted by advising that the first respondent’s
representative at the hearing had not kept proper notes.
The applicant thus only had
in its possession the incomplete notes of the arbitrator and the
subsequent recollection of its representative but no contemporaneous
notes of its own representative or of the first respondent’s
representative. Faced with this difficulty, the applicant then
brought this application set down for a case management hearing on 26
April 2014 seeking an order that the matter be referred back to the
arbitrator to be heard de novo
because of the incomplete record. It then became clear that the
appeal could no longer be heard on 4 April 2014. At the case
management hearing on
26 March 2014, the applicant’s
application and the appeal were postponed to 15 April 2014 and the
parties were placed on terms with regard to the filing of further
affidavits and heads of argument.
In the meantime, the
applicant amended its notice of motion seeking the setting aside of
the award and the referral of the matter back to the office of the
Labour Commissioner for the complaint to be heard de
novo. Certain further ancillary
relief has also been sought. In view of the conclusion I reach
in this matter, it is not necessary to further address the ancillary
The first respondent opposed
the application and filed an answering affidavit. Several
points were raised. But in view of the conclusion I have reached in
the matter, it is also not necessary to deal with each of those.
Mr JPR Jones, who represented
the applicant, prepared detailed heads of argument referring to cases
within this jurisdiction and in South Africa which have dealt with
difficulties arising when incomplete records have been filed and
where portions of evidence had gone missing and were no longer
available. The first preference would usually be to reconstruct the
missing portion of the record, if possible. In this instance, it
became clear upon the facts placed before me that it would not be
possible to prepare an adequate reconstruction of the first
respondent’s evidence-in-chief in the circumstances. Although
the first respondent’s counsel, Mr Phatela, argued that this
should occur, he was eventually constrained to concede that upon the
facts placed before me this was not feasible. A reconstruction would
thus be inadequate.
The question arises as to
what is to be done in the absence of a reconstruction of the record.
referred in his heads of argument to Department
of Justice v Hartzenberg.
The then Labour Appeal Court in South Africa was faced with a
situation where a record could not be reconstructed. It set aside the
orders of the Court a
quo and directed a
re-hearing of the matter de
novo before a
The facts of that matter are
in certain respects different to those which confront me. The
cross-examination of the respondent in that matter was lost as well
as the entire testimony of the four witnesses called by the
referred to the position in criminal appeals from Magistrate’s
Courts which had been settled in South Africa in S
The position is similarly settled in Namibia in S
v De Almeida
which in turn adopted the approach in Tiboth
proceeded to refer to the position in civil appeals and to the dearth
of authority with regard to incomplete records. The court
referred to Beaumont
In that matter the handwritten record of the plaintiff’s
evidence-in-chief was lost and Broome J declined the application to
remit the matter for a hearing de
novo, but instead
remitted it for the Magistrate to re-hear the evidence of the
Both the court in Hartzenberg
and in Beaumont
stressed the right of a litigant to appeal on the one hand which is
to be weighed up against the fact that the other party had obtained
an order in his or her favour.
I raised with Mr Jones the
possibility of remitting the matter to the second respondent to hear
the evidence-in-chief of the plaintiff. He however rightly
responded that the entire testimony of the first respondent should be
re-heard as there could be aspects raised in the evidence-in-chief
which had not been raised in the same way previously. I
indicated to him that in view of the considerations amply set out in
matters, it would seem to me that the appropriate course would only
be to remit the matter for that purpose rather than the complaint
being heard de novo.
Mr Jones indicated that his
client would no longer persist in seeking the setting aside of the
award and remittal of the complaint de
novo, a concession which in my view was
correctly made. Mr Phatela, as I have indicated, expressed a
preference for the reconstruction of the record and also pointed out
that new aspects could be raised in evidence or cross-examination
which could affect the second respondent’s view of the matter.
Whilst this may be so, the prospects of such an occurrence are
however not significant when viewed against the alternative of an
incomplete record where the evidence-in-chief is entirely omitted and
where an adequate reconstruction is not feasible.
In weighing up the
countervailing considerations, it would seem to me that a referral to
the second respondent to hear the first respondent’s testimony
in full would be the appropriate course and the one which is most
equitable in the circumstances.
Mr Phatela had also submitted
that the appeal had lapsed by reason of the failure to have
prosecuted it within the time period set out in Rule 17 of the Rules
of this court. I agree with Mr Jones that the granting of a date for
the hearing of the appeal on the return date on 22 January 2014 which
appeal date was thereafter postponed and now again postponed to 25
July 2014 has meant that the appeal has not lapsed and an order for
its re-instatement and an extension for the filing of the record
would thus not be necessary.
I accordingly granted an
order on 16 April 2014 to remit the matter to the second respondent
to re-hear the testimony (including the cross-examination) of the
first respondent and made certain further directions as set out in
the order which I quote in full:
the applicant’s non-compliance with the Rules of this Court
and the forms and service provided for in these Rules as
envisaged in Rule 6(24) of the Rules is condoned.
the appeal is postponed to 25 July 2014
the matter is remitted to the second respondent to rehear the
evidence of the first respondent (including his cross-examination)
upon a date and time convenient to the second respondent and the
parties but to be completed within 60
days of this order.
the evidence of the first respondent is to be transcribed and lodged
with this court 15 days
after it is heard.
the applicant is afforded the opportunity to supplement its appeal
grounds within 5 days
after the record of such evidence is lodged.
order is made as to costs.’
These are my reasons
for doing so.
Mr JPR Jones
by Köpplinger Boltman
Mr TC Phatela
by Shikale & Associates
Act 11 of 2007.
2002(1) SA 103 (LAC).
1991(1) SA 119 (A).
2012(1) NR 60 (HC) at 63.
Case No CA 49/95 unreported and delivered on 4/12/1995 by Strydom
JP, as he then was.
1949(3) SA 562 (N).