Court name
Labour Court Main Division
Case number
38 of 2011
Title

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

Media neutral citation
[2014] NALCMD 38
Coram
Smuts J










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 ‘immediate

departure 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 eleven
directors
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 ‘immediately

for 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.