Court name
Labour Court Main Division
Case number
LCA 61 of 2014
Title

Amukwelele v Transnamib Holdings Limited (LCA 61 of 2014) [2016] NALCMD 5 (25 February 2016);

Media neutral citation
[2016] NALCMD 5
Coram
Parker AJ










REPUBLIC OF NAMIBIA





LABOUR COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT



Case no: LCA 61/2014





DATE: 25 FEBRUARY 2016





In the matter between:





THOMAS
AMUKWELELE.................................................................................FIRST
APPLICANT





AKSEL
MAGONGO.........................................................................................SECOND
APPLICANT





And





TRANSNAMIB HOLDINGS
LIMITED......................................................................RESPONDENT





Neutral citation: Amukwelele v
Transnamib Holdings Limited (LCA 61/2014) [2016] NALCMD 5 (25
February 2016)





Coram: PARKER AJ





Heard: 12 February 2016





Delivered: 25 February 2016





Flynote: Labour law – Leave to
appeal – Labour court rules do not make provision for the
procedure to be followed – Consequently, procedure prescribed
in rule 115 of High Court rules apply – Ground of leave to
appeal on the basis that the provision in Labour Act 11 of 2007, s
89(2), concerns both noting of appeal and prosecution of appeal has
no merit – Court held that s 89(2) of Act 11 of 2007 concern
noting of appeal only – Prosecution of appeal is regulated by
the Labour Court rules – Court held that noting of appeal and
prosecution of appeal are two different procedural concepts –
Court rejected applicants’ counsel’s contention that
noting of appeal includes prosecuting an appeal – On the papers
court found that applicants have not shown reasonable prospects of
success on appeal existed – Consequently, application
dismissed.





Summary: Labour law – Leave to
appeal – Labour court rules do not make provision for procedure
to be followed – Consequently, procedure prescribed in rule 115
of High Court rules to be followed – Applicants’ counsel
who deposed to founding affidavit contended that it was wrong for
court in the appeal proceeding to rule that rule 17 of the Labour
Court rules applies to Labour Court appeals when, according to
counsel, s 89(2) of the Labour Act provides that appeals in Labour
Court are to be noted in terms of the High Court rules – Court
found that procedure for noting of appeal in the Labour Court is in
terms of the High Court rules but procedure to be followed in
prosecution of such appeal is that prescribed by the Labour Court
rules, rule 17 – Consequently, Labour Court was correct when it
held in the appeal proceedings that failure to file notice of
intention to oppose the appeal and a statement stating the grounds on
which the appeal was opposed in terms of rule 17(16) of the Labour
Court Rules establishes that the applicants (respondent in the
appeal) were not opposing the appeal – Appellants (in the
appeal) were therefore entitled to pursue the appeal unopposed –
Court instructed appellant’s counsel to move the appeal and
court after hearing counsel’s submission upheld the appeal –
Court found that applicants have failed to show reasonable prospects
of success on appeal existed – Consequently, court dismissed
application for leave to appeal.





ORDER





(a) Application to condone the late
filing of the application for leave to appeal is dismissed.





(b) The application for leave to appeal
is dismissed.





(c) I make no order as to costs.





JUDGMENT





PARKER AJ:





[1] This is an application for leave to
appeal by the applicants (ie respondents in the appeal). The
respondent (ie appellant in the appeal) was the applicants’
former employer before they were dismissed. The dispute between the
applicants and the respondent was resolved by arbitration. The
appellant successfully appealed from the arbitration (Case No. CRWK
146-14) in this court (the Labour Court) (judgment delivered on 17
September 2015).





[2] In that judgment the Labour Court
set aside the arbitration award. Not being happy with the 17
September 2015 judgment, the applicants now apply for leave to appeal
against that judgment. In the present application Mr Rukoro
represents the applicants, and Mr Philander the respondent.





[3] The Labour Court rules have not
made provisions for the procedure to be followed in the matter of
leave to appeal. That being the case, in terms of rule 22 of the
Labour Court rules, rules of the High Court apply with such
qualifications and adaptations as the Labour Court may deem
necessary. Leave to appeal is provided for in rule 115 of the rules
of the High Court. In terms of rule 115, application for such leave
must be made together with grounds for the leave to appeal within 15
days after the date of the order appealed against.





[4] In the instant proceeding, it
cannot be disputed that the applicants must make such application on
or before 8 October 2015. The applicants made an application for
leave to appeal on 16 October 2015, that is, some 13 days out of
time. The applicants brought an application for the late filing of
the application for leave to appeal on 11 February 2016. Thus the
applicants gave the respondents shy of one day’s notice of the
hearing of the application on 12 February 2016 at 09h00 and yet the
application was not brought on the basis of urgency or as an ex parte
application. To condone the late filing of the application for leave
to appeal in the face of the applicants’ flagrant disregard for
rules of court will not conduce to due administration of justice. For
this reason alone the condonation application stands to be dismissed.
In all this, it must be remembered that the applicants are legally
represented.





[5] The application to condone the late
filing of the application for leave to appeal stands to be dismissed
on another basis. As Mr Philander submitted, it is trite that
condonation is not granted for the mere asking for it. Such applicant
must give sufficiently cogent and acceptable explanation for the
delay.





[6] Mr Rukoro is the deponent of the
founding affidavit. He states:





‘4.2 I am instructed by the
Directorate of Legal Aid to act in this matter and needed to report
to them before I could bring this application for leave to appeal.





4.3 I forwarded the judgment and my
advice to the Directorate of Legal Aid but never received a reply
until 13 October 2016 when I called to enquire and upon which I was
given permission over the phone to proceed.’





[7] Mr Rukoro does not say when he
reported to the Directorate of Legal Aid; and there is no
documentation to support the statement. He states further that he
forwarded the judgment and his advice to the Directorate of Legal
Aid. He does not say when he did that and by what means of
communication. There is not one grain of proof that he did what he
says he did.





[8] I do not, therefore, find that the
applicants have placed before the court sufficiently cogent and
acceptable explanation for the delay. In any case, I do not think
there are reasonable prospects of success on appeal.





[9] It has been stated in a long line
of cases that in an application of this kind the applicant must
satisfy the court that he or she has reasonable prospects of success
on appeal. See S v Nowaseb 2007 (2) NR 640, and the cases there
gathered. The principle was enunciated in criminal proceedings but
there is no good reason why the principle enunciated in Nowaseb and
those cases should not apply with equal force to civil proceedings.





[10] It was observed in S v Nowaseb
that –





‘[2] (Thus) an application for
leave to appeal should not be granted if it appears to the Judge that
there is no reasonable prospect of success. And it has been said that
in the exercise of his or her power, the trial Judge (or, as in the
present case, the appellate Judge) must disabuse his or her mind of
the fact that he or she has no reasonable doubt as to the guilt of
the accused. The Judge must ask himself or herself whether, on the
grounds of appeal raised by the applicant, there is a reasonable
prospect of success on appeal; in other words, whether there is a
reasonable prospect that the court of appeal may take a different
view …. But, it must be remembered, “the mere
possibility that another Court might come to a different conclusion
is not sufficient to justify the grant of leave to appeal”. (S
v Ceaser 1977 (2) SA 348 (A) at 350E)’





[11] The court in Nowaseb approved the
view stated by Diemont JA in S v Sikosana 1980 (4) SA 559 A at
562H-563A that –





‘If he (the Judge) decides to
refuse the application he must give his reasons …. It may be
that his reasons for his refusal will appear from the reasons for
convicting (R v White 1952 (2) SA 538 (A) at 540) but where he
decides to grant the application his reasons for so doing are less
likely to be found in his judgment.’





This is the manner in which I approach
the determination of the present application.





[12] Having given considerable thought
objectively to the application, and disabusing my mind, as far as
humanly possible, of the fact that I had no doubt – none at all
– concerning the upholding of the appeal, I should say that I
am not at all satisfied that there is a reasonable prospect that the
Supreme Court may take a different view about the decision. In my
judgement, therefore, the applicant has failed to show that he has
reasonable prospects of success on appeal. The application,
therefore, fails; and it is rejected.





[13] The talisman on which the
applicants hang their ground in the instant application is
encapsulated in para 6.1 of the founding affidavit:





‘When regard is had to the
judgment as a whole it is evident that the Labour Court upheld the
appeal without determining the merits of the case.’





[14] This ground has not one iota of
merit. Mr Rukoro does not read all the paragraphs of the judgment
intertextually as any reasonable and objective reader of a judgment
should do. I do not, with respect, consider Mr Rukoro to be such
reasonable and objective reader; for, ‘[I]t must be remembered
that he is a stipendiary witness giving evidence (on oath) in a
founding affidavit in such a substantial matter as’ grounds of
leave to appeal by the applicants, when he is not a ‘person(s)
seeking leaving to appeal’. (See Greencoal (Namibia) (Pty) Ltd
(Registration Number: 2010/0314) v Laicatti Trading Capital Inc (A
273/2014) [2016] NAHCMD 1 (15 January 2016, para 19).) And what is
more; Mr Rukoro is not, and cannot be, ‘the person seeking
leave to appeal’ within the meaning of s 115(1) of the rules of
the High Court.





[15] What Mr Rukoro forgets is that
what the Labour Court qua appeal court should consider is not only
the record of proceedings of the arbitration. It must consider also
both the notice of intention to oppose the appeal and a statement
containing the grounds on which he or she opposes the appeal in terms
of rule 17(16) of the Labour Court rules. Indeed, there was no notice
to oppose the appeal and no statement containing the grounds on which
the respondent opposed the appeal filed by the respondent. It
followed then that the court had before it only the papers filed of
record by the appellant and, of course, the record of proceedings of
the arbitration. No matter how one looks at it; in such circumstances
the appellant was entitled to pursue the appeal unopposed. This
conclusion is borne out by the Labour Court rules and common sense.
And even then, upon the Christian principle (see para 21 below) the
appellant’s counsel was instructed by the court to move the
appeal and argue the appellant’s case.





[16] These conclusions lead me to the
next level of the enquiry; and it concerns the interpretation and
application of s 89(2) of the Labour Act and rule 22 of the Labour
Court rules.





[17] With the greatest deference to Mr
Rukoro, I should say that Mr Rukoro misreads s 89(2) of the Labour
Act 11 of 2007. Mr Rukoro argues that because one has to note an
appeal in terms of the rules of the High Court, the prosecution of
the appeal, too, must also be followed in terms of the rules of the
High Court. In making such fallacious and self-serving argument, Mr
Rukoro is arrogating to himself ‘a better knowledge of what
Parliament intended than what Parliament actually had in mind when it
expressed itself clearly as it did’ in s 89(2) of the Labour
Act, ‘and to put forward, without any justification, the
unexpressed intention of Parliament’. See Rally for Democracy
and Progress v Electoral Commission 2009 (2) NR 793, at 798D-E.





[18] I cannot see any basis in law or
in the English language upon which Mr Rukoro so intrepidly submits
that noting an appeal includes prosecuting an appeal. The following
words in s 116(1) of the rules of the High Court debunks Mr Rukoro’s
argument:





‘An appeal to the court against
the decision of a magistrate in a civil matter must be prosecuted
within 60 days after the noting of the appeal.’ (Italicized for
emphasis)





How then can Mr Rukoro argue that
noting an appeal includes prosecuting an appeal. They are two
different procedural concepts as, for example, s 116(1) of the rules
of the High Court indicates.





[19] It follows irrefragably that, pace
Mr Rukoro, the conclusion in para 5 of the 17 September 2015
judgment, concerning the applicants’ failure to comply with the
peremptory provisions of rule 17(16) of the Labour Court rules, is
unassailable – as a matter of law and the English language.
Accordingly, Mr Rukoro’s ground 7 that ‘the finding by
this Honourable Court that the notice of appeal did not comply with
rule 17 of the Labour Court rules is wrong as section 89(2) clearly
requires such appeals to be noted in terms of the High Court Rules’
has not a scintilla of merit. Counsel’s contention does
violence to the English language and the law. It is with firm
confidence, therefore, that I reject counsel’s argument. But
that is not the end of the matter. Mr Rukoro, counsel for the
applicant and deponent of the founding affidavit, states in the
founding affidavit:





‘When regard is had to the
judgment as a whole it is evidence that the Labour Court upheld the
appeal without determining the merits thereof.’





[20] I wrote the following in the
chapeu of para 6 of the 17 September 2015 judgment:





‘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 …’





[21] As Mr Philander, submitted, it is
clear from the judgment that the court was alive to the fact that the
appeal, though unopposed, that did not ‘entitle the appellant
to judgment’. I am, and I was, familiar with the counsel of
Maritz JA in Christian v Metropolitan Life Namibia Retirement Annuity
Fund 2008 (2) NR 753, para 15, that ‘[T]he absence of
opposition, however, does not by itself entitle the applicant to
judgment – as if by default’. The onus rests on the
applicant to show that good grounds exist for him or her to succeed.
In the instant case, it is clear from the judgment that I only upheld
the appeal after I had considered the papers filed of record and
appellant’s counsel’s submission. Having done that, I
concluded that I did not have any good reason to reject the appeal.
As I have said previously, Mr Rukoro appears not to see the deductive
reasoning that resonates in the judgment preceding the conclusion in
para 6 of the judgment.





[22] In this regard, it must be
remembered, Rex v Dhlumayo and Another 1948 (2) SA 677 (A) at 706,
per Greenberg JA and Davis AJA, tells us:





‘An appellate court should not
seek anxiously to discover reasons adverse to the conclusions of the
trial judge. No judgment can ever be perfect and all-embracing, and
it does not therefore follow that, because something has not been
mentioned, therefore it has not been considered.’


(Italicized for emphasis)





[23] Thus, because I did not mention
that I had considered all the papers and counsel’s submission,
therefore I have not considered the papers and the submission by the
counsel of appellant before I decided.





[24] Based on these reasons, I cannot
say that the applicant has shown that there is a reasonable prospect
of success on an appeal to the Supreme Court; and


I have already, for reasons given,
rejected the application to condone the late filing of the
application for leave to appeal; whereupon I make the following
order:





(a) Application to condone the late
filing of the application for leave to appeal is dismissed.





(b) The application for leave to appeal
is dismissed.





(c) I make no order as to costs.





C Parker





Acting Judge





APPEARANCES





APPLICANTS: S Rukoro





Instructed by Directorate of Legal
Aid, Windhoek





RESPONDENT: S R Philander





Instructed by LorentzAngula Inc.,
Windhoek