Court name
Labour Court Main Division
Case number
61 of 2014
Case name
Transnamib Holdings Ltd v Amukwelele
Media neutral citation
[2015] NALCMD 21
Judge
Parker AJ










REPUBLIC OF NAMIBIA





LABOUR COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT



Case no: LCA 61/2014





DATE: 17 SEPTEMBER 2015





In the matter between:





TRANSNAMIB HOLDINGS
LIMITED.........................................................................APPELLANT





And





THOMAS
AMUKWELELE.............................................................................FIRST
RESPONDENT





AKSEL
MAGONGO....................................................................................SECOND
RESPONDENT








Neutral citation: Transnamib
Holdings Ltd vs Amukwelele (LCA 61-2014) [2015] NALCMD 21 (17
September 2015)





Coram: PARKER AJ





Heard: 26 June 2015





Delivered: 17 September 2015





Flynote: Labour law – Labour
court – Appeal from arbitration award – Appellant must
comply with peremptory requirements under s 89 of the Labour Act 11
of 2007 and rule 17(2) and (3) of the Labour Court Rules and rule
23(2) of the Rules Relating to the Conduct of Conciliation and
Arbitration before the Labour Commissioner – Respondent must
also comply with rule 17(16) of the Labour Court Rules – Court
held that the purpose of the appellant’s notice and grounds of
appeal in terms of the Labour Court Rules and the Rules Relating to
the Conduct of Conciliation and Arbitration before the Labour
Commissioner is to inform the respondent the case it has to meet –
Likewise the purpose of the notice by the respondent and grounds for
opposing the appeal in terms of the Labour Court Rules is to inform
the appellant the case or opposition it has to meet – Purpose
of the rules warrants the conclusion that those rules are peremptory
– Failure to comply with them is therefore fatal – Court
held that where no notice of intention to oppose the appeal and no
statement stating the grounds on which the appeal is opposed are
delivered the only inference that can reasonably be drawn is that the
respondent does not oppose the appeal – In the nature of rule
17(16) of the rules of the court it is competent for the court to
uphold such appeal if there is no good reason not to uphold it.





Summary: Labour law – Labour
court – Appeal from arbitration award – Appellant must
comply with peremptory requirements under s 89 of the Labour Act 11
of 2007 and rule 17(2) and (3) of the Labour Court Rules and rule
23(2) of the Rules Relating to the Conduct of Conciliation and
Arbitration before the Labour Commissioner – Respondent must
also comply with rule 17(16) of the Labour Court Rules – Court
held that the purpose of the appellant’s notice and grounds of
appeal in terms of the Labour Court Rules and the Rules Relating to
the Conduct of Conciliation and Arbitration before the Labour
Commissioner is to inform the respondent the case it has to meet –
Likewise the purpose of the notice by the respondent and grounds for
opposing the appeal in terms of the Labour Court Rules is to inform
the appellant the case or opposition it has to meet – Purpose
of the rules warrants the conclusion that those rules are peremptory
– Failure to comply with them is therefore fatal – Court
held that where no notice of intention to oppose the appeal and no
statement stating the grounds on which the appeal is opposed are
delivered the only inference that can reasonably be drawn is that the
respondent does not oppose the appeal – In the nature of rule
17(16) of the rules of the court it is competent for the court to
uphold such appeal – In the instant case court found that the
respondent has not complied with rule 17(16) of the Labour Court
Rules – Accordingly court concluded that the respondent does
not oppose the appeal – Court upheld the appeal, there is no
good reason not to uphold it.





ORDER





(a) The appeal is upheld.





(b) The arbitration award in Case No.
CRWK 146-14 is set aside.





(c) There is no order as to costs in
favour of, or against, any party.





JUDGMENT





PARKER AJ:





[1] The appellant appeals from the
arbitration award made in case number CRWK146-14 in favour of the
respondents (employees). In an appeal under the Labour Act 11 of
2007, the appellant must file with the court a duly completed Form
11, in terms of rule 17(3) of the Labour Court Rules (‘rules of
the court’), being the notice of appeal. The notice must be
accompanied by a duly completed Form LC41, in terms of rule 23(2) of
the Rules Relating to the Conduct of Conciliation and Arbitration
before the Labour Commissioner (‘the conciliation and
arbitration rules’) (Government Notice No. 262 of 31 October
2008).





[2] Form 11 and Form LC41 contain the
questions of law the appellant raises in the notice of appeal and the
grounds upon which the appeal is based. Thus, an appellant is obliged
by the Labour Act and the aforementioned rules to inform the
respondent the case it has to meet. See Pathcare Namibia (Ltd) v Du
Plessis (LCA 27/2011) [2013] NALCMD 28 (29 July 2013) (Unreported).
By a parity of reasoning, the respondent who wishes to oppose the
appeal must inform the appellant the grounds upon which he or she
opposes the appeal, so that the appellant, too, may be informed of
the case, that is the respondent’s case or opposition, it has
to meet.





[3] The practice of the court is firmly
entrenched that where an appellant fails or refuses to comply with
the peremptory requirements under the Act and the aforementioned
rules the result is a dismissal of the appeal on the basis that there
would be no appeal properly before the court for the court to
consider. See, eg, African Consulting Services CC v Gideon (LCA
60/2012) [2013] NALCMD 43 (26 November 2013); and Du Plessis. I see
no good reason why the same conclusion should not follow where the
respondent has refused or failed to deliver a notice to the appellant
of his or her intention to oppose the appeal and has also failed and
refused to deliver a statement stating the grounds on which he or she
opposes the appeal, together with any relevant documents, in terms of
rule 17(16) of the Labour Court Rules. Subrule 17(16), too, is
without a doubt, peremptory, considering its underlying purpose,
which I have stated previously.





[4] In the instant proceeding the
respondents have not done that which they must do in terms of the
peremptory provisions of rule 17(16) of the aforementioned rules. For
this reason, Mr Philander, counsel for the appellant submits that the
‘respondents have not opposed the appeal. Nor have grounds of
opposition been filed subsequent to the filling of the Appeal
record’. I did not hear Mr Rukoro, counsel for the respondents,
to say anything in response to this important submission. Besides,
the respondents have not given any explanation why they refused or
failed to act in terms of rule 17(16) of the rules of the court. I
should say, this is not the kind of failure or refusal to comply with
a rule of the court that the court is entitled to overlook,
considering, as I have said more than once, the purpose of the rule
warranting its peremptory effect.





[5] Where no notice of intention to
oppose the appeal and no statement stating the grounds on which the
appeal is opposed are delivered the only inference that can
reasonably be drawn is that the respondent does not oppose the
appeal. It is not always the case that just because a respondent does
not oppose, for instance, an application the application should
succeed. The same conclusion goes for an appeal. But in the nature of
rule 17(16), being peremptory and substantial provisions, it is
competent for the court to uphold the appeal where the respondent has
delivered no notice of his or her intention to oppose the appeal and
has also not delivered a statement stating the grounds on which he or
she opposes the appeal, and there is no good reason not to uphold it.





[6] Based on these reasons, I hold that
the appeal is not opposed on any grounds and there is no good reason
to reject it. The appeal should therefore succeed, and it succeeds;
whereupon, I make the following order:





(a) The appeal is upheld.





(b) The arbitration award in Case No.
CRWK 146-14 is set aside.





(c) There is no order as to costs in
favour of, or against, any party.





C Parker





Acting Judge





APPEARANCES








APPELLANT: R Philander





Instructed by LorentzAngula Inc.,
Windhoek





RESPONDENTS: S Rukoro





Instructed by Directorate of Legal
Aid, Windhoek