Court name
Labour Court Main Division
Case number
LCA 42 of 2014
Title

Swakop Uranium (Pty) Ltd v Kalipa (LCA 42 of 2014) [2015] NALCMD 28 (12 April 2015);

Media neutral citation
[2015] NALCMD 28
Coram
Unengu AJ










REPUBLIC
OF NAMIBIA


LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK



JUDGMENT


Case
no: LCA 42/2014


DATE:
04 DECEMBER 2015


In
the matter between:



SWAKOP URANIUM
(PTY)
LTD...................................................................................APPELLANT


And


HERMAN 
KALIPA................................................................................................1ST
RESPONDENT


LABOUR
COMMISSIONER
................................................................................2ND
RESPONDENT


Neutral
citation:
Swakop Uranium (Pty) Ltd v
Kalipa
(LCA 41-2014) [2015] NALCMD 28
(04 December 2015)


Coram:
UNENGU AJ


Heard:
18 September 2015


Delivered:
04 December 2015


Flynote:
Labour Appeal – Application for
condonation of late filing of statement of grounds for opposition –
Condonation not granted – Lack of funds to pay legal
practitioner to prepare and file statement in time not accepted as
good cause for delay – Appeal treated as unopposed and upheld.


Summary:
Practice Labour Appeal in terms s
89(1)
(a)
of the Labour Act 11 of 2007 – The appellant lodged an appeal
against the arbitration award – The first respondent filed
notice of intention to oppose the appeal but delayed in filing the
statement with grounds of opposition – The reason for the delay
has been given as lack of funds to pay legal fees in order for the
legal practitioner to prepare and file the statement timeously –
The application for condonation of the late fling of the statement
refused as not sufficient and good cause to justify the delay –
The appeal thereafter treated as unopposed and upheld by the court.


ORDER


(i)
The application of the first respondent condoning the late filing of
his statement opposing the appeal, extending the time upon which he
must file the aforementioned statement, ordering the appellant to pay
costs of the application; and further and/or alternative relief, is
refused.


(ii)
The appeal is treated as unopposed and upheld.


JUDGMENT


UNENGU
AJ:


 


[1]       
In this proceeding, the appellant is appealing against the award of
the arbitrator handed down on 17 October 2013 in favour of the first
respondent.


 


[2]       
The award is being attacked on the following grounds of appeal:


 


           
Ad
first ground of appeal


 


The
arbitrator erred in law in finding that, in dismissing the
respondent, the appellant did not follow a fair procedure, based on
the following:


 


5.1      
The 1st respondent was informed of the charges against him
well in advance.


 


5.2      
The 1st respondent was allowed to state his case and to
bring witnesses in support of his case at the disciplinary hearing.


 


5.3      
The 1st respondent was allowed to cross- examine witnesses
and test the evidence led against her.


5.4      
The 1st respondent never raised the unfairness of the
disciplinary proceedings at the disciplinary hearing nor in his
appeal against the finding of the disciplinary hearing.


5.5      
The appellant produced substantive evidence that the dismissal of the
1st respondent was fair and justified, on a balance of
probabilities.’


 


Ad
second ground of appeal


 


2.        
The arbitrator erred in law in finding that the respondent is
entitled to six month’s salary in the amount N$171 000.00 as
compensated in respect of loss of income.


 


2.1      
no evidence was presented at the hearing the 1st
respondent actually suffered losses o fN$171 000.00 as a result of
his dismissal.


 


2.2      
the appellant was not given an opportunity to give evidence regarding
the 1st respondent’s loss of income or to
cross-examine the 1st respondent as to the correctness of
the information which the arbitrator used in awarding compensation in
the amount of N$171 000.00.


 


3.        
In the circumstances, the correct award, based on the grounds
referred to above, would have been an award upholding and confirming
the dismissal of the 1st respondent as fair in the
circumstances.’


 


[3]       
The notice to appeal the award was filed with the Office of the
Registrar on          20
August 2014, the date on which the notice was also filed on A
Vatilifa on behalf of the Office of the Labour Commissioner.


 


[4]       
However, it is not clear when the first respondent received the
notice of appeal. In his founding affidavit supporting the notice of
motion condoning the late filing of the first respondent’s
statement of opposition of the appeal, the extension of time upon
which the first respondent must file the statement and other
ancillary relief, Mr Aingura, the legal practitioner for the first
respondent in para 7 thereof states that the notice of appeal was
served upon the first respondent in August 2014 already. It is
possible because the notice of intention to oppose the appeal was
field at the Office of the Registrar on 10 September 2014 and served
on the Office of the Labour Commissioner on the same date at 14:23.


 


[5]       
All these happened when the first respondent who was an employee of
Swakop Uranium (Pty) Ltd was charged with and found guilty of
misconduct offences of insubordination, refusing reasonable
instructions, unauthorised use of company vehicle and misuse or abuse
of company property and absent without permission, amongst others, in
a disciplinary hearing. He was dismissed from employment, appealed
against his dismissal internally but was unsuccessful. His dismissal
was confirmed by the internal appeal body.


 


[6]       
Still not happy with the outcome of the internal appeal, the first
respondent referred the matter to the Office of the Labour
Commissioner for conciliation and arbitration as a dispute of unfair
dismissal.


 


[7]       
The Labour Commissioner, on 6 March 2014, by letter informed the
parties that the matter was set down for arbitration hearing before
Ms Kyllikki Sihlahla as an arbitrator on 15 April 2014 at 09h00. Ms
Sihlahla concluded the arbitration proceedings on 20 June 2014 and
delivered the award on 24 July 2014 in favour of the first
respondent, in the following terms:


 


           
AWARD


 


Having
considered the evidence and arguments of the parties and having made
findings stated herein above, I accordingly make the following order
that:


 


1.        
I found that the dismissal of Applicant was both substantively and
procedurally unfair;


2.        
The Respondent must pay compensation to the Applicant in the amount
of One Hundred and Seventy One Thousand Namibian Dollars (N$171
000.00) being the monthly salary of N$28 000.00 x 6 months, on or
before 5 August 2012;


 


3.        
The Respondent must permit the Applicant to collect his personal
belongings from its premises on 29 August 2014;


 


4.        
The above-mentioned amount attracts interests in terms of section
87(2) of the Namibian Labour Act from the date of the Award; and


 


5.        
In the circumstances of the case, I have not made an order of costs.


 


The
Arbitrator Award is final and binding on both parties hereto and may
be filed with the Labour Court by any interested party in accordance
with Section 87 of the Labour Act (Act 11 of 2007) to be made a court
order.


 


Signed
at Windhoek on the 24 July 2014.


 


 


KYLLIKKI
T.N.N. 
SIHLAHLA                                                                     
…………………..


ARBITRATOR                                                                                              
   SIGNATURE   ’


 


[8]       
Before me during the appeal hearing Mr Daniels appeared for the
appellant and Mr Phatela on behalf of the first respondent. But
before counsel could argue the appeal, Mr Phatela for the first
respondent indicated that there was an application for condonation
for the late filing of the applicant’s statement of opposition
of the appeal, extending the time upon which the first respondent
must file the statement of appeal to 16 January 2015 and an costs
order against the appellant in the event they oppose the application.


 


[9]       
The application in question was filed with the Office of the
Registrar on 19 January 2015, at 10h40 when the appeal hearing was to
start at 09h00 on 23 January 2015. The statement of the grounds was
supposed to be filed already on or before 8 October 2914 to apprise
the appellant well in advance of the grounds of opposition and
prepare its heads of argument accordingly, in case they opted to
oppose the application or to inform the first respondent beforehand
that his application for condonation of the late filing of the
grounds of opposition would not be opposed.


 


[10]     
Rule 17(16)(b) states the period within which the statement of
grounds of opposition to an appeal should be filed. The relevant part
thereof reads:


 


           
16
Should any person to whom the notice to appeal is delivered wish to
oppose the appeal, he or she
must


(a)       
……………………………..


(b)       
within 21 days after receipt by him or
her of a copy of the record of the proceedings appealed against, or
where no such record is called for in the notice of appeal, within 14
days after delivery by him or her of the notice of oppose, deliver a
statement stating the grounds on which he or she opposes the appeal
together with any relevant documents.’
(My
underlining).


[11]     
The statement of the grounds of opposition to an appeal is not only
an important antecedent to inform the appellant on what grounds the
appeal would be resisted by the respondent but also important for the
appellant to apply to the registrar to assign a date for the hearing
of the appeal and set the matter down for hearing of the appeal. In
the present appeal, the date for hearing of the appeal was assigned
and set down by the registrar without the grounds of opposition being
furnished and on the same basis as if the appeal was unopposed. The
first respondent knows very well that his participation in the
hearing of the appeal is depended solely on the granting of the
application for condonation by the court. Should the court decline to
grant the application, the first respondent will be excluded from the
hearing and the appeal will be heard unopposed. Therefore, the first
respondent must persuade the court not to exclude him from the
proceedings through a detailed and acceptable explanation for the
delay.


 


[12]     
In his affidavit, in para 11 thereof, the last sentence on p 8, Mr
Simson Aingura, the legal practitioner for the respondent stated that
The purpose of his application (condonation) is
consequently, to obtain such condonation to enable the applicant
herein to fully participate at the hearing of this appeal set down
for 23 January 2015’.
Mr Aingura sets out in the affidavit
how he had advised the respondent the way forward and requested the
respondent to put him into funds in order for him to do something.
This dialogue went on and on for an extended period of time between
them. Mr Aingura, at one stage, threatened to withdraw as first
respondent’s legal practitioner. On his part, the respondent,
did very little, if any, to put his legal practitioner into funds so
that he could draft the grounds of opposition.


 


[13]     
The remissness on the part of the first respondent, in my opinion,
caused serious prejudice to the appellant. According to Mr Shikongo,
he has to travel from Swakopmund to Windhoek urgently, as a result of
short notice, to come and see his legal practitioner to draft the
answering affidavit to the application for condonation filed by the
respondent.


 


[14]     
In view of the absence of the grounds of opposition from the first
respondent, I might not be wrong to say that the appellant was under
the impression that the appeal will not be opposed. The appellant is
correct, that they were unable to prepare proper heads of argument
because they were not provided with grounds of opposition. A failure
to comply with the peremptory provisions of rule 17(16) (a)-(b)
is fatal and has the effect of excluding the non-compliant party form
participating in the proceedings.


 


[15]     
It is appropriate at this juncture to mention that the fact that I
have allowed Mr Phatela, to participate in the hearing of the appeal,
should not be seen that by so doing, I have condoned the
non-compliance with rule 17(16) and that, as such, the application
for condonation for the late filing of the grounds of opposition has
been granted. No. The respondent has to give a reasonable and
acceptable explanation for the late filing of the statement
containing the grounds of opposition. He is presumably relying on the
provisions of rule 15 which deals with the non-compliance with rules.
Nonetheless, the respondent has a duty, as mentioned above to provide
sufficient cause for excusing him from compliance.


 


[16]     
In
Saloojee
NNO v Minister of Community Development
[1]
it is said:


 


           
It
is necessary once again to emphasise, as was done in
Meintjies
v H.D. Combrinck (Edms) Bpk
1961 (1) SA
262 (AD) at 264, that condonation of the non-observance of the Rules
of this Court is by no means a mere formality. It is for the
applicant to satisfy this Court that there is sufficient cause for
excusing him from compliance, and the fact that the respondent has no
objection, although not irrelevant, is by no means an overriding
consideration . . . . What calls for some acceptable explanation is
not only the delay in noting the appeal and in lodging the record
timeously, but also the delay in seeking the condonation.’


 


[17]     
Similarly, in
Arangies
tla Auto Tech v Quick Build
[2]
O’Regan AJA stated the following with regard applications for
condonation:


 


           
The
application for condonation must thus be lodged without delay, and
must provide a “full, detailed and accurate” explanation
for it.
3
This court has also recently reconsidered the range of factors
relevant to determining whether an application for condonation for
the late filing of an appeal should be granted. They include –


           


the
extent of the non-compliance with the rule in question, the
reasonableness of the explanation offered for the non-compliance, the
bona fides of the application, the prospects of success on the merits
of the case, the importance of the case, the respondent’s (and
where applicable, the public’s) interest in the finality of the
judgment, the prejudice, suffered by the other litigants as a result
of the non-compliance, the convenience of the court and the avoidance
of unnecessary delay in the administration of justice.
”4


 


These
factors are not individually determinative, but must be weighed, one
against the other.5 There are times, for example, where
this court has held that it will not consider the prospects of
success in determining the application because the non-compliance
with the rules has been ‘glaring’, ‘flagrant’
and ‘inexplicable’.’


 


[18]     
The question is, did the first respondent in this application lodge
his application for condonation without delay and provided a full,
detailed and accurate explanation? I do not think so. Lack of funds
to pay fees of the legal practitioner in order for the latter to
draft the pleadings in my view, cannot justify the non-observance of
the rules – nor can it be accepted by the court as sufficient
and a detailed cause for the delay in seeking condonation.


 


[19]     
Gibson J in
Indigo
Sky Gem (Pty) Ltd v Johnston
[3],
struck the matter from roll because heads of argument were not filed
by counsel timeously and said the following:


 


The
crux of the matter is that there appears to have been a flagrant
breach of the Rules of Court. Given that course of conduct, my
attitude is that the court can only ignore such attitude at its peril
and to its own prejudice in the running and administration of the
court’s business. Thus my view is that such failure cannot be
overlooked in the circumstances of this case because to do so would
encourage laxity in the preparation of court pleadings. If rules are
only to be followed when a legal practitioner sees fit to do so, then
the Rules may as well be torn up.’
(Emphasis).


 


[20]     
I endorse the principles laid down by Gibson J in the Indigo Sky
Gem
and cases cited above. In fact laxity in the timely
preparation of court pleadings is a reality nowadays judging from the
many applications for condonation of non-compliance with the rules,
serving before courts. In the present appeal though, the legal
practitioner cannot be blamed for the delay. The first respondent
self is. It is not that he was not properly advised by his legal
practitioner about the timeline within which to file the statement.
He was also fully and properly informed about the importance of him
obtaining money as soon as possible for the statement with grounds of
opposition to be prepared and filed. The warnings of Mr Aingura fell
on death ears of the first respondent.


 


[21]     
In this instance I also wish to refer to the case of
Swanepoel
v Marais and Others
[4]
where Levy J reiterated the warning already sounded in many cases
including those he referred to in the
Swanepoel
matter when he said the following:


 


The
Rules of court are an important element in the machinery of justice.
Failure to observe such Rules can lead not only to the inconvenience
of immediate litigants and of the courts but also to the
inconvenience of other litigants whose cases are delayed thereby. It
is essential for the proper application of the law that the Rules of
Court, which have been designed for that purpose, be complied.
Practice and procedure in the courts can be completely dislocated by
non-compliance.’


 


He
further referred to the case of
Ferreira
v Ntshingila
1990 (4) SA (271) (A) at
218G where the following was said:


As
far as the prospects of success on appeal are concerned, the appeal
in the present matter would not be without merit. However, where the
non-observance of the Rules has been as flagrant and as gross as in
the present case, the application should not be granted, whatever the
prospects of success might be.’


[22]     
The principle above, in my view, is applicable in the present appeal.


 


[23]     
I mentioned already and shall repeat it again that the first
respondent was not concerned about the time within which to file the
grounds for opposing the appeal. This is apparent from his conduct
when he failed to look for money somewhere else to pay his legal
practitioner while the family was searching for funds to assist him.
Instead of looking for help elsewhere, the first respondent, waited
until the family had gathered funds after the period of almost three
months. The delay is due to the first respondent’s own
ineptitude – non other than himself is to blame for the failure
which caused inconvenience to the appellant and the court. This is
nothing other than a flagrant non-observance of the rules without a
good excuse.


 


[24]     
Mr Phatela counsel for the first respondent argued that rules 17(6)
and rule 17(16)(b) compliment one another. According to him,
the first respondent is entitled in law (through rule 17(6) ) to come
and appear before court whether the statement with grounds of
opposition (rule 17(16)(b) has been filed or not. He argued
further that rule 17(16)(b) does not prescribe consequences of
non-compliance with the rule. With due respect to counsel, his
submission cannot be correct.


 


[25]     
If counsel is correct that the statement in terms of rule 17(16)(b)
is not necessary because the first respondent can still appear and be
heard. Why bothering the court then with an application for
condonation of the late filing of the statement containing the
grounds of opposition? Rule 17(16)(b) is mandatory, the first
respondent does not have a discretion to deliver or not to deliver
the statement stating the grounds on which he opposes the appeal.


 


[26]     
The first respondent is obliged in terms of Rule 17(16)(b) to
deliver the statement stating the grounds on which he opposes the
appeal  which grounds must inform the arbitrator, the appellant
and this court of the grounds on which the arbitration award is been
attacked and which the first respondent supports. (See Benz
Building Suppliers v Stephanus and Others
2014 (1) NR 283 at
288D).


 


[27]
With regard the argument of Mr Phatela that there are no consequences
prescribed for the non-compliance with rule 17(16)
(b)
I advise counsel to read rule 17(16)
(b)
together with rule 15 which grants the Labour Court powers to condone
any non-compliance with the rules, extend or abridge any period
prescribed by the rules whether before or after the expiry of such
period – on application and on good cause shown. If no good
cause is shown by the applicant for the non-compliance, the
consequence thereof will be refusal of the application.


[28]
In the matter of Leweis v Sampolo, Strydom CJ defined good
cause as follows:


 


Although
the Courts have studiously refrained from attempting an exhaustive
definition of the words ‘’good cause” they have
laid down what an applicant should do to comply with such
requirement. In this regard it is stated that an applicant:


 


(a)
must give a reasonable explanation for his default;


(b)
the application must be bona fide; and


(c)
the applicant must show that he has a bona fide defence to the
plaintiff’s case.’


 


[29]     
In the instant matter, as pointed out before, the first respondent
did not show good cause to justify the grant of the indulgence he had
applied for. Therefore, condonation for the non-compliance with rule
17(16)(b) is refused.


 


[30]
Seeing that I have declined to condone the non-compliance with rule
17(16)
(b)
resulting in the application being refused, there is therefore no
reason why the appellant should not succeed in his appeal. In my view
the appeal is unopposed and as such should be upheld.


[31]
In the result, the following orders are made:


(i)
The application of the first respondent
condoning the late filing of his statement opposing the appeal,
extending the time upon which he must file the aforementioned
statement, ordering the appellant to pay costs of the application;
and further and/or alternative relief, is refused.


(ii)
The appeal is treated as unopposed and
upheld.






P E  UNENGU


Acting
Judge


APPEARANCES



APPELLANT                  
: C  Daniels


of
Clement Daniels Attorneys, Windhoek


1ST
RESPONDENT: T C  Phatela


Instructed
by Aingura Legal Practitioners


c/o
LorentzAngula Inc. Windhoek






[1]
1965
(2) SA 135 (A) at 138E-H.




[2]
2014
(1) NR 187 (SC) at 189-190E-B.




[3]
1997
NR 239 (HC).




[4]
1992
NR 1.