Court name
Labour Court Main Division
Case number
90 of 2012
Title

Puma Chemicals v Labour Commissioner and Another (90 of 2012) [2014] NALCMD 9 (10 February 2014);

Media neutral citation
[2014] NALCMD 9
Coram
Geier J










REPUBLIC
OF NAMIBIA





LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


 


JUDGMENT





Case
no: LC 90/2012





DATE:
10 FEBRUARY 2014





REPORTABLE?





 


In
the matter between:





 


PUMA
CHEMICALS...................................................................................APPLICANT






And


 


LABOUR
COMMISSIONER.....................................................FIRST
RESPONDENT





REBECCA
CAROLINA JANUARIE..................................SECOND
RESPONDENT



 


Neutral
citation:
Puma
Chemicals v Labour Commissioner
(LC
90/2012) [2014] NALCMD 09 (10 February 2014)


 


Coram:         
GEIER J





Heard:           
07 February
2014





Delivered:    
10 February 2014





 



Flynote:        
Labour law - Labour Court - Jurisdiction – Court has no
jurisdiction to condone and hear an application for review outside
the time periods laid down in section 89(4) of the Labour Act 2007



 



Labour law
Application for review of arbitrator's decision brought outside the
time periods set by section 89(4) of the Labour Act 2007 –
Interpretation of section 89(4) of the Labour Act – Court
finding that although language utilized in section 89(4) directory –
it nevertheless had to be concluded from
the
language, scope and purpose of the Labour Act 2007 that the
legislature had intended the provisions of section 89(4) to be
peremptory – Court accordingly concluding that it was not
vested with the power to condone the late filing of a review
application outside the time periods set by section 89(4) of the Act
– application for review accordingly dismissed.



 


ORDER


 


1.        
The review application to set aside the Arbitration Award dated 30
March 2012 is hereby dismissed.



 


2.        
The Registrar is directed to make a copy of this judgment available
to the Honourable Minister of Labour and Social Services for her
reconsideration.


 


JUDGMENT





GEIER
J:


 


[1]       
This court per, Smuts J, has held that an application to review the
decision of an arbitrator must be brought within the time period set
in Section 89(4) of the Labour Act, Act No.11 of 2007 and that the
power to condone the bringing of a labour review outside the set time
periods has not been provided for in this Act.[1]


 


[2]       
In finding that:


 


This
court has made it clear that these provisions are peremptory and that
the court is not vested with the power to condone the non- compliance
with those time periods’[2].


 


[3]       
The court in
Lungameni
relied on the decisions made in respect of similar time- bar
provisions contained in the previous Labour Act and the current
Labour Act, to wit:
Namibia
Development Corporation v Mwandingi & Other
[3]
 which
followed two earlier decisions namely the obiter view expressed by
Henning AJ in
Nedbank
vs Louw
[4]
and
the decision of Hoff J in
Standard
Bank vs Mouton
[5]


 


[4]       
Smuts J in
Lungameni
came to the conclusion that the application for review before him,
which had been brought more than 6 weeks after the applicant had
become aware of the award, was brought outside the applicable time
period provided for in section 89(4), which was as a consequence a
nullity[6]

and
that it had to be struck from the roll as the court did not have
jurisdiction to hear the application.[7]
 


 


[5]       
The applicant in this labour review wants this decision revisited as
also its application for review was brought outside the 30 day period
set by section 89(4) of the Labour Act 2007. 


 


[6]       
It should be mentioned that this application for review also contains
an application for condonation, to condone the late filing thereof,
in which application it is contended that ‘good cause’
therefore can be shown, particularly as the applicant submits that it
has strong prospects of success of overturning the award due to
certain fundamental irregularities perpetrated by the arbitrator
during the arbitration. 


 


[7]       
It should also be mentioned that this review was unopposed. 


 


[8]       
Ms Visser who appeared on behalf of the applicant submitted that the
court does have the power to condone the late filing of her client’s
review and to hear the matter outside the stipulated 30 day period.
She recognised that this court would - in the ordinary course - have
to follow the decision in the Lungameni matter and that she
therefore had to persuade this court not to follow that judgment, as
that judgment was wrongly decided. 


[9]       
More particularly her argument in this regard was based on a recent
trend to adopt a more flexible approach in the interpretation of
statutory time limits, as also recognised by the Supreme Court in

Rally
for Democracy & Progress v Electoral Commission of Namibia &
Others
[8]
 where
the Supreme Court stated: 


 


           
[32] It is
common cause that the application was not filed outside the 30-day
period allowed in s 110(1) of the Act. It is therefore not necessary
for purposes of this appeal to consider whether the subsection's
provisions may conveniently be labeled as 'peremptory' or
'directory'; whether the High Court may or may not entertain an
election application  presented outside the 30-day period or to
make any findings on the validity thereof. We expressly decline to do
so because it is not pertinent to the issues in the appeal which we
are called upon to decide. Our silence on this issue should, however,
not be construed as acquiescence in the views forcefully expressed by
Parker J on the peremptory nature of s 110(1); his adoption of the
dictum in
Hercules
Town Council v Dalla
[9]
(regarding the
obligatory nature of prescribed time periods) as a correct statement
of our law in the face of later, more moderated approaches adopted or
endorsed by the courts
[10]
(including the full
bench of the High Court which held that the modern approach manifests
a tendency to incline towards flexibility)
[11]
and his
conclusion
[12]
that a peremptory
provision must be obeyed or fulfilled exactly and that an act
permitted by an absolute provision is lawful only if done in strict
accordance with the conditions annexed to the statutory
permission
[13],
notwithstanding case law to the contrary
[14]
and the cautionary
remarks made by Trollip JA in
Nkisimane
and Others v Santam Insurance Co Ltd
[15]
not to infer merely
from the use of those labels what degree of compliance is necessary
and what the consequences are of non- or defective compliance. These
are matters best left for adjudication on another day.’


 


[10]     
Ms Visser then went on to quote extensively in her heads of argument
from the applicable authorities that she relies on and which are
those set out by Van Niekerk J in
Kanguatjivi
and Others v Shivoro Business and Estate Consultancy and Others
[16]
were
the learned Judge went on to state:


 


[23]
In considering the question raised it is not helpful to focus merely
on whether the requirements of s 35 are peremptory or directory.
Although these are useful labels to use as part of the discussion
(
Nkisimane
and Others v Santam Insurance Co Ltd

1978 (2) SA 430 (A) at 433H), the true enquiry is whether the
legislature intended the distribution of any assets in terms of the
liquidation and distribution account to be valid or invalid where the
period for inspection is shorter than 21 days. (Cf
Ex
parte Oosthuysen

1995 (2) SA 694 (T) at 695I). It should be remembered that —


'It
is well established that the Legislature's intention in this regard
is to be ascertained from the language, scope and purpose of the
enactment as a whole and the statutory requirement in particular
(Nkisimane (supra at 434A); Maharaj and Others v Rampersad
1964 (4) SA 638 (A)).' [Oosthuysen supra at 696A.]


[24]
This principle was expanded in Swart v Smuts 1971 (1) SA 819
(A), when Corbett AJA (as he then was) said the following at 829E –
F


'In
general an act which is performed contrary to a statutory provision
is regarded as a nullity, but this is not a fixed or inflexible rule.
Thorough consideration of the wording of the statute and of its
purpose and meaning can lead to the conclusion that the Legislature
had no intention of nullity.' [My translation from the Afrikaans.]


[25]
In JEM Motors Ltd v Boutle and Another 1961 (2) SA 320 (N) 
J  at 328A – B the court expressed the issue in this
helpful way:


           
'. . . what must
first be ascertained are the objects of the relative provisions.
Imperative provisions, merely because they are imperative will not,
by implication, be held to require exact compliance with them where
substantial compliance with them will achieve all the objects aimed
at.'


[26]
In Johannesburg City Council v Arumugan and Others 1961 (3) SA
748 (W) the court considered several authorities on the issue of
non-compliance with statutory time limits and concluded that in each
of the cases cited the basis upon which the decision in the case was
founded was 'the determination of the intention of the Legislature
coupled with the possibility of prejudice' (at 757E – F).


[27]
In DTA of Namibia and Another v Swapo Party of Namibia and Others
supra at 9H – 10D the full bench noted with approval the
following stated in Pio v Franklin NO and Another 1949 (3) SA
442 (C) when Herbstein J summarised what the full bench considered
'certain useful, though not exhaustive, guidelines' when he
said at 451:


'In
Sutter v Scheepers (1932 AD 165 at pp. 173, 174), Wessels JA
suggested certain tests, not as comprehensive but as useful guides to
enable a Court to arrive at that real intention. I would summarise
them as follows:


           
(1)       
The word shall when used in a statute is rather to be considered as
peremptory, unless there are other circumstances which negative this
construction.


           
(2)       
If a provision is couched in a negative form, it is to be regarded as
a peremptory rather than a directory mandate.


           
(3)       
If a provision is couched in positive language and there is no
sanction added in case the requisites are not carried out, then the
presumption is in favour of an intention to make the provision only
directory.


           
(4)       
If when we consider the scope and objects of a provision, we find
that its terms would, if strictly carried out, lead to injustice and
even fraud, and if there is no explicit statement that the act is to
be void if the conditions are not complied with, or if no sanction is
added, then the presumption is rather in favour of the provision
being directory.


           
(5)       
The history of the legislation also will afford a clue in some
cases.'


[28]
In Sayers v Khan 2002 (5) SA 688 (C) the following was stated
at 692A – G (the passage at 692A – D was recently applied
in Rally for Democracy and Progress and Others v Electoral
Commission of Namibia and Others
supra at 516I):  H


'The
jurisprudential guidelines relevant to the present case as
articulated by the South African Courts (particularly in cases such
as Pio v Franklin NO and Another 1949 (3) SA 442 (C) and
Sutter v Scheepers 1932 AD 165 at 173 and 174) are usefully
summarised by Devenish (op cit at 231 – 4) as follows: 


           
If, on weighing up
the ambit and aims of a provision, nullity would lead to injustice,
fraud, inconvenience, ineffectiveness or immorality and provided
there is no express statement that the act would be void if the
relevant prohibition or prescription is not complied with, there is a
presumption in favour of validity. . . . Also where 'greater
inconvenience would result from the invalidation of the illegal act
than would flow from the doing of the act which the law forbids', the
courts will invariably be reluctant — unless there is some
other more compelling argument — to invalidate the act.
Effectiveness and morality are inter alia also considerations that
the courts could use in the process of evaluation, in order to decide
whether to invalidate an act in conflict with statutory prescription.


           
(ii)       
The history and background of the legislation may provide some
indication of legislative intent in this regard.


           
(iii)      
The presence of a penal sanction may, under certain 
circumstances, be supportive of a peremptory interpretation, since it
can be reasoned that the penalty indicates the importance attached by
the legislature to compliance. However, the courts act with
circumspection in these circumstances. Therefore, in
Eland
Boerdery (Edms) Bpk v Anderson

1966 (4) SA 400 (T) at 405D – E, the Court made the observation
that '(t)rouens, die toevoeging van so 'n sanksie is dikwels 'n
aanduiding dat die wetgewer die straf, waarvoor voorsiening gemaak
word in die Wet, as genoegsame sanksie beskou en dat hy nie bedoel
het, as 'n bykomende sanksie, dat die handeling self nietig sou wees
nie'. . . .


           
(iv)      
Were the validity of the act, despite disregard of the prescription,
would frustrate or seriously inhibit the object of the legislation,
there is obviously a presumption in favour of nullity. This is a
fundamental jurisprudential consideration and therefore it outweighs
contrary semantic indications.'


[29]
I shall now proceed to an application of the approach and guidelines
as set out in the various cases above. …’.
[17] 


 


[11]     
It was on the strength of this approach to statutory interpretation
submitted that the word ‘may’ as used in section 89(4) of
the Labour Act 2007 was an indication that the provision is
‘directory’ rather than ‘peremptory’ and also
because there was no provision expressly prohibiting or sanctioning
or visiting non-compliance with a nullity. 


 


[12]     
Ms Visser pointed out that the rules of the Labour Court required
that labour reviews must be brought within 30 days and that Rule 15
grants the Labour Court the power to condone any none compliance with
the rules on ‘good cause’ shown.  With reference to
Article 18 of the Constitution she submitted further that it would be
a travesty of justice and offend against the word and spirit of the
Constitution if a party would be denied the right to have an
arbitration award reviewed in which an arbitrator had committed
serious misconduct or a gross irregularity simply because a review
was not brought within the set 30 day period.  Any
interpretation to the effect that the court has no jurisdiction to
entertain a condonation application in this regard would be rigid and
mechanical and not in accordance with the more flexible approach
adopted by the court’s in statutory interpretation. The court
should thus entertain the applicant’s condonation application
and thereafter the review as otherwise the aim and objects of the
Labour Act would be defeated.


 


[13]     
Also during oral argument counsel urged the court not to follow the
Lungameni judgment.  It was submitted further that regard
should also be had to the previous Labour Act. 


[14]     
She also now contended, with reference to the jurisdiction conferred
on the Labour Court to condone the late noting of appeals against any
arbitrators award, as provided for in section 89(3), that the absence
of a similar provision, regarding reviews, was an oversight on the
part of the legislature.  Also the promulgation of the Labour
Court Rules, in which provision was made, in Rule 15, for condonation
for the non-compliance with the court’s rules, such as with
Rule 14(2)(a), were indicative that the legislature had made a
mistake in not providing for a condonation mechanism pertaining to
reviews in the Labour Act. 


 


[15]     
Again she reiterated that in following a more flexible approach -
such as the one also adopted in Simataa vs Public Service
Commission
- it should be found that the bringing of a review
application out of time would not result in a nullity and would thus
be condonable and as the applicant had shown ‘good cause’
for such condonation, the merits of the review should thus be
considered and the review be granted. 


 


[16]     
I should at this stage mention that Ms Visser, initially, argued the
merits of the review, which showed that the arbitrator indeed had
committed a gross irregularity in the proceedings in that the
arbitrator had failed to conciliate the dispute referred to him under
part C of the Labour Act[18]

and
because he had proceeded to hear the arbitration in the applicant’s
absence, leading to an award against the applicant made on short
notice.[19]
 


 


[17]     
I indicated to her however during argument that she would first have
to persuade me that I would have jurisdiction to entertain the review
and that the strong merits of her client’s case would in that
context be relevant as a finding, that this court has not been
clothed with a necessary jurisdiction to condone and hear an out of
time review, would be relevant as an interpretational aid as the
legislature is presumed not to intend to cause injustice.[20]


 


 


 


[18]     
When considering the submissions made on behalf of the applicant I
will also take into account what the court has said in
Van
Heerden & Others NNO v Queen's Hotel (Pty) Ltd
[21]
and S
v Takaendesa
[22].


 


[19]     
What is cardinal in the determination of whether or not this court is
clothed with the jurisdiction the applicant wishes it to assume, is,
firstly, the determination of the legislature’s intention and,
secondly, whether it can be said that Smuts J, in Lungameni,
was wrong in finding that this court is not vested with the power to
condone the non-compliance with the statutory time periods set in
section 89 (4). 


 


[20]     
Two factors - from which the legislature’s intention can be
inferred - were already considered in the Lungameni judgment: 


 


1.           
the
argument that rule 15, of the rules of the Labour Court, vests the
power on the court to, at any time, condone the non-compliance with
the rules of court, here rule 14 (1)(a); and


 


2.           
the
submission that, in the absence of an express power to grant such
condonation and hear reviews outside the set time periods, the court
was not vested with the power to do so. 


 


[21]     
I am in absolute agreement with the learned Judge’s response to
the first argument - which is also obvious – namely that the
power to condone the non-compliance with Rule 14 (1)(a) –
(which rule essentially re-iterates what is contained in section
89(4)) - is the power to condone the non-compliance with the rules of
the Labour Court - which rule does not- and cannot confer any power
to condone the non-compliance with the provisions of the Labour Act,
being superior legislation. 


 


[22]     
In so far as the second argument is concerned - which was upheld by
the court in Lungameni - it is similarly obvious - that it
cannot be said that the inference - to be drawn from the
legislature’s omission, to grant similar powers of condonation,
as provided for in cases of labour appeals, and as contained in
section 89(3) – and which was to the effect that it had to be
concluded that the court was not vested with the power to condone the
non-compliance with section 89(4) - was palpably wrong, particularly
as such reasoning would be in line with the case law cited in
paragraph 7 of that judgment. 


 


[23]     
What is then to be made of the further arguments raised by counsel? 


 


[24]     
It is firstly clear that section 89(4) uses the word ‘may’:
‘a party to a dispute who alleges a defect in any arbitration
proceedings ‘may’ apply to the Labour Court for an order
reviewing and setting aside the award’. (emphasis added)


 


[25]     
The language employed seems indeed to be directory only, also if one
considers the absence of any sanctions or penalty in the Labour Act
for not complying with that section. 


 


[26]     
By way of contrast it is also interesting to note that the same
terminology is not utilised in section 89(2), which states that a
party to a dispute, who wishes to appeal an arbitrator’s award,
‘must’ note an appeal within 30 days after the award is
served.


 


[27]     
While both the noting of an appeal and the launching of a review
against an arbitrator’s award are optional, the terminology
utilised seems to indicate that parliament intended to state ‘if
a party wishes to appeal it must do so within 30 days and if such
party fails to do so the Labour Court may condone such late noting on
‘good cause’ shown. If a party, on the other hand, opts
to review an arbitrator’s decision, such party may do so,
provided that such review is brought within the time limits set by
section 89(4) i.e. within 30 days or within 6 weeks, after the
discovery in a case of involving corruption, in which case no avenue
for the condonation for the out of time bringing of an application
for review is provided for or offered’.  I will return to
this aspect below. 


 


[28]     
In this regard it is to be noted that it may not always be helpful to
focus merely on whether the requirements set by a statute are
‘peremptory’ or ‘directory’ but that the true
enquiry is what the intention of the legislature actually is, as
properly construed.


 


 


[29]     
Trollip AJ put it as follows in
Nkisimane
v Santam Ins Co Ltd
[23]
:


 


Preliminarily
I should say that statutory requirements are often categorized as
"peremptory" or "directory". They are well-known,
concise, and convenient labels to use for the purpose of
differentiating between the two categories. But the earlier clear-cut
distinction between them (the former requiring exact compliance and
the latter merely substantial compliance) now seems to have become
somewhat blurred. Care must therefore be exercised not to infer
merely from the use of such labels what degree of compliance is
necessary and what the consequences are of non or defective
compliance. These must ultimately depend upon the proper construction
of the statutory provision in question, or, in other words, upon the
intention of the lawgiver as ascertained from the language, scope,
and purpose of the enactment as a whole and the statutory requirement
in particular (see the remarks of VAN DEN HEEVER J in
Lion
Match Co Ltd v Wessels

1946 OPD 376 at 380).
[24]


 


[30]     
As far as the object of the provisions section 89(2) and section
89(4) are concerned, Ms Visser has correctly conceded that they
reveal an intention of the legislature that review and appeal
proceedings are to be conducted with promptitude in order to bring
same to finality.[25]
 
Parliament
in this case has done this in its own peculiar way as appears from
paragraph [27] supra. 


 


[31]     
If one then has regard to the scheme created by the section it
appears clearly that time periods for the noting of reviews and
appeals were considered - so much so - that the legislature even
considered that it would be apposite to extend the set period, as far
as reviews are concerned, in cases involving corruption. 


 


[32]     
Why otherwise, would the legislature then have set a period of 30
days and a period of 6 weeks, after the date of the discovery of
corruption, and not at the same time provide for an extension of both
periods on ‘good cause’ shown. The categorisation into
‘normal’ reviews and those involving ‘corruption’
is surely not coincidental. It reveals the specific and deliberate
consideration of the legislature - not only to categorise - but also
the consideration of the specific time periods which Parliament
considered appropriate, for the brining of these types of reviews. 
Surely Parliament was also aware of the common law requirement to
bring reviews within a reasonable time, yet it chose not to make
provision for the extension of the set periods, on condonation being
granted. 


 


[33]     
It would have been an easy matter to have included in section 89(3),
for instance, the power of the Labour Court to condone the late
filing of reviews also. 


 


[34]     
There thus seems to have been a deliberate intention to limit - by
statute - the common law period within which labour reviews are to be
brought. 


 


[35]     
This conclusion then also reveals that counsel’s submissions -
that the failure to extend to the court the power to hear labour
reviews, out of time, was an omission or oversight - cannot be
upheld. 


 


[36]     
At the same time it emerges that the constitutional Article 18 rights
of litigants, to have the decisions of arbitrators’ reviewed,
with reference to the Constitution, are not denied.  All the
Act, seemingly, intends to do, is to limit the time periods, within
which ordinary labour reviews and those involving corruption, are to
be brought even  if such cases would involve and may involve
constitutional considerations. 


 


[37]     
Whether this limitation, in the absence of a provision, enabling the
court’s to extend those time periods, is unconstitutional
however, I have not been requested to decide and also cannot decide,
in the absence of a proper constitutional challenge made in this
regard[26]

and in
which all the interested parties would also have been brought before
the court.[27]
 
I
accordingly decline to decide this issue.


 


 


 


[38]     
Finally I believe that counsel’s argument lost sight of the
provisions contained in section 117(1)(b)(i), which expressly states
that the Labour Court has exclusive jurisdiction to review an
arbitration tribunal’s award in terms of ‘this Act’.
- (my emphasis) - This section states in clear and unambiguous
terms that such exclusive review jurisdiction is conferred by the
Labour Act - on the Labour Court - and not in accordance with any
other law. 


 


[39]     
The golden thread that also permeates through all the authorities
relating to a more liberal construction of statutes - as relied on by
Ms Visser - is - that it will be the legislature’s intention -
which appears from the enactment under consideration - that will
ultimately determine which statutory interpretation will prevail. 


 


[40]     
In this instance - and given the clear intentions of Parliament - the
categorisation of the statutory requirements, set by section 89(4)
into ‘peremptory’ and ‘directory’ – are
also not helpful, particularly in circumstances where the Act,
expressly, requires reviews to be brought within a certain time - and
no power to extend such time - or to condone the out of time
launching of reviews - is given to the court. 


 


[41]     
It must for all these reasons from the language, scope and purpose of
the Labour Act 2007 ultimately be concluded that the provisions of
section 89(4) were intended to be peremptory.[28]

  


 


[42]     
This is also precisely the conclusion Smuts J arrived at in the
Lungameni matter in paragraph [7]. 


 


[43]     
I must add that it is with some reluctance that I have come to this
conclusion as the failure to assume jurisdiction will obviously cause
injustice to the applicant in this instance.


 


[44]     
In the absence of a constitutional challenge - and while there is
always a presumption that Parliament never intended an unreasonable
result – if however, from the language of the statute it is
clear what the intention of the legislature is - the court must give
effect to it, no matter how unreasonable the result may be.[29]


 


[45]     
The mere fact that the giving to the words, of a statute, their clear
and unequivocal meaning, may, in certain instances lead to hardship,
is also no justification for a court of law to assume the mantle of
the legislature by itself amending the statute.[30]
 


 


[46]     
Ultimately counsel’s efforts have exposed that there may very
well be a need for Parliament to consider whether or not it should
expand the provisions of section 89(3) – for instance - to
include reviews - thereby clothing the Labour Court with the
requisite jurisdiction and power to entertain reviews outside the set
time periods, in deserving cases, in order to avoid hardship and
injustice. 


 


[47]     
Also in view of my findings made in this instance - I cannot state
that the decision in Lungameni is clearly wrong.  I will
therefore follow it.


 


a)           
In
the result the application falls to be dismissed.


b)           
The
Registrar is directed to make a copy of this judgment available to
the Honourable Minister of Labour and Social Services for
reconsideration.








H
GEIER





Judge






 


APPEARANCES


 


APPLICANT:
                 
                    
I Visser



Instructed by: Le
Grange Legal Practitioners, Windhoek






[1]
See Lungameni
& Others vs Hagen & Another

(LC 99/2012) [2013] NALCM 15 (27 March 2013) at [7] reported on the
SAFLII website at

http://www.saflii.org/na/cases/NALCMD/2013/15.html




[2]
Lungameni & Others vs Hagen &
Another
at [7]




[3]
(LCA 87/2009 [2012] NALCMD 12 (November 2012) at
[28] reported on the SAFLII website at
http://www.saflii.org/cgi-bin/disp.pl?file=na/cases/NALC/2012/41.html&query=mwandingi




[4] 
2011 (1) NR 217 (LC) at [10]




[5]
LCA 04/2011 at [9] handed down on 29
July 2011 reported on the SAFLII website at
http://www.saflii.org/cgi-bin/disp.pl?file=na/cases/NALC/2011/21.html&query=mouton




[6]
At [9]




[7]
At [10]




[8]
2010 (2) NR 487 (SC) at 513F to 514A




[9]
1936 TPD 229 at 240: '. . . the provisions with respect
to time are always obligatory, unless a power of extending the time
is given to the Court.'




[10]
Eg Volschenk v Volschenk
1946 TPD 486 at 490: 'I am not aware of any decision laying down a
general rule that all provisions with respect to time are
necessarily obligatory and that failure to comply strictly therewith
results in nullifying all acts done pursuant thereto. The real
intention of the Legislature should in all cases be enquired into
and the reasons ascertained why the Legislature should have wished
to create a nullity.' See also:
Suidwes-Afrikaanse
Munisipale Personeel Vereniging v Minister of Labour and Another

supra at 1038A – B: '. . . principle in my opinion has now
been firmly established that, in all cases of time limitations,
whether statutory or in terms of the Rules of Court, the Supreme
Court has an inherent right to grant condonation where principles of
justice and fair play demand it to avoid hardship and where the
reasons for strict non-compliance with such time limits have been
explained to the satisfaction of the court.'




[11]
DTA of Namibia and Another v Swapo Party of Namibia
and Others
supra at 11C




[12]
Para 26 of his judgment




[13]
Based on Craies on Statute Law 7 ed 260




[14]
Compare JEM Motors Ltd v Boutle
and Another
1961 (2) SA 320 (N) at 327 in
fin – 328B;
Shalala v Klerksdorp Town
Council and Another
1969 (1) SA 582 (T) at
588A – H; and
Maharaj and Others v
Rampersad
1964 (4) SA 638 (A) at 646C –
E




[15]
1978 (2) SA 430 (A) at 433H – 434E




[16]
2013 (1) NR 271 (HC)




[17]
Pages 278 to 280 para’s [23] to [29], see also
Simataa vs Public Service
Commission and Another
(A12-2003)
[2013] NAHCMD 306 (30 October 2013) reported on the SAFLII website
at http://www.saflii.org/na/cases/NAHCMD/2013/306.html

paragraphs [35] to [36] and also
[37] and [51] of that judgment





[18]
See :
Nel v Shinguadja (LCA
29/2013) [2013] NALCMD 41 (20 November 2013) at [63] to [65]




[19]
The notice of the arbitration
hearing was not in compliance with Rule 15 of the ‘Rules
relating to the Conduct of Conciliation and Arbitration’ as
gazetted under GN 262 in GG 4151 of 31 October 2008, requiring
notice of at least 14 days




[20]
See for instance: Principal
Immigration Officer Appellant v Bhula
1931
AD 323 at 336 to 337




[21]
1973 (2) SA 14 (RA)




[22]
1972 (4) SA 72 (RA)




[23]
1978 (2) SA 430 (A)




[24]
At 33H to 434 B




[25]
See for instance also : Haimbili
and Another v Transnamib Holdings Ltd and Others

2013 (1) NR 201 (HC) at [13] to [14]




[26]
See : Kalipi
v Hochobeb
(A 65/2012) [2013] NAHCMD 142 (30
May 2013) at para’s [20] to [27];
Zaahl
and Others v Swabou Bank Limited and Others

(Case No A 35/2006) delivered on 23 November 2006 - reported at

http://www.saflii.org/na/cases/NAHC/2006/16.html
- following Prince v President,
Care Law Society and Others
2001 (2) SA 388
(CC) at paragraphs [22] – [28],
Shaik v
Minister of Justice and Constitutional Development and Others

2004 (3) SA 599 (CC) in paragraphs [24] and 25],
Phillips and Others v The National Director
of the Public Prosecutions
2006 (1) SACR 78
(CC) at paragraph [43]

Lameck v
President of Namibia

2012(1) NR 255 (HC) at par [58], p 271 and the authorities referred
to in footnote 21,
Shalli v
Attorney-General
case POCA 9/2011 delivered
on 16 January 2013 reported at
 http://www.saflii.org/na/cases/NAHCMD/2013/5.html
at para [6
];
Lameck and Another vs
President of the Republic of Namibia & Others
2012(1)
NR 255 HC at paragraph [58]
cited with approval
in
Shalli v Prosecutor-General
at [7]
;




[27]
See : Kaunozondunge
NO and Others, Kavendjaa
v 2005 NR 450 (HC)
at 465, see also
Majiedt and Others, Minister
of Home Affairs
v 2007 (2) NR 475 (SC) at
paras [7] to [11]




[28]
See also for instance : Le Roux
and Another  v Grigg-Spall
1946 AD 244
at 249 to 250




[29]
See Beadle CJ in Van
Heerden & Others NNO v Queen's Hotel (Pty) Ltd at 16 to 17 where
the learned Chief Justice stated :
While
there is always a presumption that Parliament never intended an
unreasonable result, if from the language of the statute it is plain
what the intention of the Legislature is, the Court must give effect
to it, no   G  matter how unreasonable the result may
be. This Court has no power to adjudicate on the reasonableness or
unreasonableness of an Act of Parliament. See the remarks of LEWIS,
J., (as he then was), in Chingachura Exploration Co. (Pvt.) Ltd. v
Hatty, N.O. 1963 (1) SA 46 (SR) at p. 55, and cases there cited. The
desirability or otherwise of these particular regulations is a
matter for Parliament, not for the Courts. In determining whether or
not sec. 3 did give the Minister the right to make these
regulations, the Court must look to the intention of the Legislature
as expressed in the language of the Act as a whole. In S. v
Takaendesa, 1972 (4) SA 72 (RAD), I referred to the elementary rules
applying to the interpretation of statutory instruments as set out
in Maxwell, Interpretation of Statutes, 12th ed., p. 8, and I might
usefully repeat these here:


           
'The rule of construction is 'to
intend the Legislature to have meant what they have actually
expressed'. The object of all interpretation is to discover the
intention of Parliament, 'but the intention of Parliament must be
deduced fromthe language used', for 'it is well accepted that the
beliefs and assumptions of those who frame Acts of Parliament cannot
make the law'.


           
Where the language is plain and
admits of but one meaning, the task of interpretation can hardly be
said to arise. 'The decision in this case,' said Lord MORRIS OF
BORTH-Y-GEST in a revenue case, 'calls for a full and fair
application of particular statutory language to particular facts as
found. The desirability or the undesirability of one conclusion as
compared with another cannot furnish a guide in reaching a
decision'. Where, by the use of clear and unequivocal language
capable of only one meaning, anything is enacted by the Legislature,
it must be enforced however harsh or absurd or contrary to common
sense the result may be. The interpretation of a statute is not to
be collected from any notions which may be entertained by the Court
as to what is just and expedient: words are not to be construed,
contrary to their meaning, as  embracing or excluding cases
merely because no good reason appears why they should not be
embraced or excluded. The duty of the Court is to expound the law as
it stands, and to 'leave the remedy (if one be resolved upon) to
others'.'


See
also Craies on Statute Law, 6th ed., p.70:




[30]
S v Takaendesa op cit at 77