Keet v Etosha Fishing Corporation (HC-MD-LAB-APP-AAA-2017/00018) [2018] NALCMD 33 (14 December 2018);

Group

Headnote and flynote
Flynote: 

Legislation – Labour Act, 2007 – application for condonation for late noting of an appeal – considerations to be taken into account.

Headnote and Holding: 

The applicant was dismissed by the respondent. The applicant, in consequence, noted an appeal but did not prosecute same for a period in the excess of 8 months. She eventually obtained assistance from the Legal Assistance Centre. The legal practitioner who was assigned to represent her discovered that her notice of appeal had been filed out time and she, in reliance on that advice, approached the court for an order condoning her non-compliance with the Rules.

Held – that an applicant for condonation had to, without delay, provide a full, detailed and accurate and reasonable explanation for the entire period delay.

Held further – that issues that inform the decision whether or not to grant the application include the extent of the non-compliance; the reasonableness of the explanation; the bona fides of the application; the prospects of success and the public’s interest in finality of judgments, where applicable.

Held – that the applicant had not provided, on good and acceptable evidence, a full and concise explanation for the entire period of the delay.

Held further – that the applicant had not applied for relief that would enable her to prosecute the appeal by remedying the further steps which the applicant not complied with, including the prosecution of the appeal.

Held – that the application for condonation should fail and there was no order as to costs.

Full judgment

ORDER


1.   The application for condonation is refused.

2.   There is no order as to costs.

3.   The matter is removed from the roll and is regarded as finalised.


RULING


MASUKU J;

Introduction

[1]        Presently serving before this court is an application for condonation, meaning there has been some non-compliance with one rule or another by the applicant.

[2]        In her notice of motion, dated 28 September 2018, the applicant applies for the condonation of the late filing of the notice of appeal. No other relief, other than the salutary and ever present further and/or alternative relief. The import of this approach will be apparent later in the ruling.

The law applicable

[3]        I will approach this case through the prism of the recent fresh from the oven Supreme Court judgment of Minister of Health and Social Welfare v Amakali,[1] where Damaseb DCJ has, with devastating clarity and conciseness, restated the applicable principles to applications for condonation. I can do no better than to reproduce the stainless principles he stated with reference to previous cases.

[4]        At para 17, the learned Deputy Chief Justice pertinently said:

            ‘[17] An applicant for condonation must satisfy the following requirements. He or she must provide a reasonable, acceptable and bona fide explanation for the non-compliance with the rules. The application must be lodged without delay, and must provide a full, detailed and accurate explanation for the entire period of delay, including the timing of the application for condonation. Lastly, the applicant must satisfy the court that there are reasonable prospects of success on appeal.

[18]      There are a range of factors relevant to determining whether an application for condonation for the late filing of an appeal should be granted. These 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, 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.”

[19]      These factors are not individually determinative, but must be weighed, one against the other. Not all factors need to be considered in each case and each case will be determined on its own merits. The court may therefore weigh the question of prospects of success on appeal in determining the application over the non-compliance, or the appeal may be dismissed because the non-compliance with the rules has been “glaring”, “flagrant” and “inexplicable”.

[5]        It is with reference to these principles and particularly those that are applicable to this case that I shall determine the sustainability or otherwise of the application. In order to gauge the question of the sustainability of the application, one must, perforce have regard first to the explanation proffered by the applicant for the delay. To this, I will also consider the argument advanced by the respondent. I will conclude the judgment by then applying the law adumbrated above on the facts which should naturally lead to a conclusion on whether the application for condonation passes muster or not. I do the examination of the relevant questions below.

The applicant’s case

[6]        In her affidavit filed in support of the application, the applicant, Ms. Linda Keet, alleges and it is common cause that she was employed by the respondent as a Reconciliation Clerk. She was submitted to a disciplinary hearing in early 2016. This resulted from allegations levelled against her of insubordination and disrespectfulness towards a Ms. Mari-Claire Rencs.

[7]        On 23 February 2016, she was dismissed from employment, culminating in her launching a dispute with the Labour Commissioner for unfair dismissal on 3 June 2016. The arbitrator appointed to deal with the dispute, found that the dismissal was procedurally and substantively fair and thus found for the employer. It is the applicant’s case that upon receipt of the award issued by the arbitrator on 13 November 2017, she noted an appeal to this court dated 11 November 2017. In that regard, she further states, she was assisted by Mr. Hendrik van As, who also assisted here during the arbitration proceedings. It is the late filing of this notice that is sought to be condoned in this matter.

[8]        In explaining the delay, the applicant mentions that Mr. van As was unable to assist he in the prosecuting the appeal as he is a Labour Consultant. She states further that she is unemployed and thus did not have the funds to engage a legal practitioner to prosecute her appeal in this court.

[9]        At para 8, she states the following:

            ‘After several months, I was advised by family members to apply to the Directorate of Legal Aid for assistance. On 9 August 2018, I applied for legal aid. On 11 September 2018, legal aid was granted and I am advised by my legal practitioner of record that he was appointed on 19 August 2018. Mr. Coetzee then requested documents from me which I only could manage to send same on 24 September 2018.’

[10]      The applicant further states that after consulting with her legal practitioner employed by Legal Aid, she was advised that her notice of appeal was filed out of time and that it is necessary for condonation to be sought therefor from this court. This she, states, was advice rendered to her on 26 August 2018, hence the present application. States further that she had been operating under the wrong impression that the appeal was noted in time and had been assisted by Mr. van As in that regard, as previously stated.

[11]      The applicant states further that she was always desirous of noting her appeal on time and to that effect, she enquired from Mr. van As every second week regarding the status of her appeal. She further submits that the late noting of the appeal was not due to mala fides on her part nor due to remissness or wrongful default on her part.

[12]      Finally, the applicant states that she has prospects of success on appeal because the arbitrator appears to have wrongfully reversed the onus and found that she had failed to prove that the dismissal was both procedurally and substantively unfair. Her further contention, is that there a bright prospects of success because the employer failed to call Ms. Rencs to testify and that the witness called, a Ms. Van Wyk, who did testify for the employer, was merely an observer during the disciplinary hearing. On this account, the applicant urged the court to grant the relief prayed for.

The respondent’s case

[13]      The respondent urged the court to throw out the application with both hands as it were. It was the respondent’s case that the applicant failed to proffer a reasonable and acceptable explanation for the delay. In this regard, the respondent states, a whooping period of 8 months’ delay remains totally unexplained by the applicant. It is further argued that the allegations of what happened resulting in the delay, are based on hearsay evidence and are thus inadmissible.

[14]      The respondent further argues that the applicant has no prospects of success and that what compounds matters, is that the applicant did not seek further relief regarding the extension of time limits for filing of the record and eventual prosecution of the appeal. As a result, the respondent may again be hauled before court for appropriate orders in relation to the other necessary steps before the appeal may be prosecuted, assuming of course, that this court grants the application for condonation. All in all, the respondent urged the court to dismiss this application as it lacks merit.

Determination

[15]      I have carefully considered the argument advanced by both sides. What is clear, is that the applicant has failed to meet the standard so carefully set out in the Ministry of Health case referred to above. It must be recalled that the standard is for the applicant to provide ‘a full, detailed and accurate explanation for the entire period of delay’.

[16]      In this regard, the applicant deals with the delay in noting the appeal timeously and attributes this to impecuniosity. Ms. De Jager punched holes in this explanation and for good reason. The applicant does not mention what her financial situation was. The fact that she was unemployed does not always mean she does not have other realisable assets that she could sell in order to fund her appeal. No evidence is produced regarding her financial status, whether she had savings or not; married or not, which may be a source of support for her financial needs, if married.

[17]      Furthermore, the applicant does not take the court fully into her confidence as to who the family members were and what it is that they said and when. These are material facts that ought to assist the court in weighing and placing relevant material in the scales. In this regard, her evidence, in the absence of the identity and particularly the confirmatory affidavit of the family member concerned, is inadmissible, thus leaving the court with no material which to place in the scales in deciding on the application. In this regard, the applicant has shot herself on the foot in this regard.

[18]      What is particularly disconcerting, is that there is no explanation whatsoever as to why the applicant did not prosecute her appeal within the 90 day period stipulated in mandatory terms by the provisions of s.   of the Labour Act.[2] It would, in my view, be a waste of time and resources of the State i.e. Legal Aid, to grant an application in these circumstances where no explanation is given for the non-prosecution of the appeal, which in terms of the law, is deemed to have lapsed. Had the applicant sought to prosecute the appeal in time, she may at that stage have discovered that she has noted the appeal out of time at an early and more propitious time, her application would have been more acceptable then.

[19]      It must be mentioned that instituting of proceedings by a person is a very serious matter. It is akin, in my view, to having a baby, who needs all the attention and succour until they reach an age where they can do for themselves. In this regard, an applicant, appellant or plaintiff, has to make regular enquiries and take steps to ensure that the proceedings they have instituted are being brought closer to maturity and readiness for a hearing. A party like the applicant, who noted the appeal, albeit out of time, does noting to follow up on the progress of the case, would be guilty of neglect and the court may not come to her assistance in those cases.

[20]      Although I admit that the applicant is not a lawyer, she is also not a person who has no education at all. She appears to have some qualification in accounting, which renders her a person who would understand what the consequences of neglecting an appeal, for whatever reason, are. There is no evidence that she approached the Labour Court Registrar to explain her dilemma and her desire to pursue her appeal. She simply says nothing about the prosecution of the appeal, nor the filing of the record and other steps required by the Act.

[21]      It must be mentioned in this regard that the prayer sought by the applicant recognises and rightly so that there is no appeal before court as we speak. The relied sought by the applicant only seeks a remedy for minor part of the malady. Failure to apply for extension of time within which to prosecute the appeal is fatal. I say so recognising that for the court to even grant the extension of time, there should be a reasonable explanation therefor. It is not before court as it appears that the applicant never adverted her mind to this very important aspect in her papers.

[22]      In Premedia Outdoor Namibia (Pty) Ltd v Kauluma,[3] this court reasoned as follows in circumstances somewhat akin to those being pronounced on:

            ‘[45]     The next problem for the appellant is that no word is stated in the appellant’s affidavits about the lapsing or the reinstatement nor is there any attempt whatsoever to explain the failure to prosecute the appeal in time.’

[23]      In yet another case, namely, Municipal Council of Windhoek v Esau,[4] this court expressed itself as follows in circumstances not substantially dissimilar to the present case:

            ‘[14] What would the practical effect be should this court dismiss the point in limine? Does it mean that this court may continue to hear the appeal despite the fact that the appeal is deemed to have lapsed? I do not think so.

In Pieterse v Swartbooi and Others 1955 (3) SA 471 (O) a similar point was raised in limine, namely that an appeal from the magistrate’s court must be dismissed for failure to prosecute such appeal within six weeks as required by the rules of court. Rejecting the submission that the appellants should have given notice of their intention to raise a point in limine, the court held at 473G-H that where an objection is taken by a respondent in an appeal in which the allegation is that the notice of appeal was noted within the prescribed time, or where the allegation that the appeal was not placed on the roll within the prescribed period, such allegations are exclusively founded upon the papers themselves, and no notice of the objection is required . . . [16] Even if I were to rule that the respondent is not to be heard through her legal representative, it would not detract from the undisputed fact, that ex facie the papers before this court, the appeal is deemed to have lapsed. If this is the case, it follows that there is no appeal before this court.’

[24]      In this regard, the court cannot properly close its eyes to the interests of the respondent. It is entitled to finality and to conduct its affairs in the knowledge that no proper appeal has been lodged and that it is at liberty to move forward and replace the applicant. As we speak, if the order were to be granted, it would mean that the matter is rekindled and the appeal is to be heard more than two and a half years after the dismissal and almost 14 months after the issuance of the award sought to be impugned.

[25]      In the premises, I am of the considered view that the application offends against the principle of finality of proceedings and the occasions prejudice to the respondent and inconvenience to the court. More importantly, it would appear to me that the explanation is not a reasonable one as it does not explain all the necessary and key elements of the delay beyond the noting of the appeal. In this regard, I am of the view that the question of the prospects of success does not play any role, having regard to the total failure of the applicant to explain all the necessary aspects that have caused a delay.

Conclusion

[26]      In the premises, I am of the considered view, that the application lacks merit and it must be refused. Of course it is always a matter of note that the applicant may suffer consequences of the refusal of the application. In this regard, it must be noted that the court cannot make out a case for an applicant and if he or she fails, the court will not extend its hand outside the precincts of the requirements of the law and open the door to other considerations because of the sympathy it may have for the applicant. An applicant stands or falls on the allegations in the founding affidavit. In this case, the applicant falls far short of the requirements resulting in only one reasonable conclusion in this matter – a refusal of the application for condonation.

Order

[27]      I accordingly issue the following order:

4.   The application for condonation is refused.

5.   There is no order as to costs.

6.   The matter is removed from the roll and is regarded as finalised.

 

 

___________

T.S. Masuku

Judge

 

 

APPEARANCES

APPLICANT:                       E. E. Coetzee           

                                            Of Tjitemisa & Associates,

                                            Windhoek     

RESPONDENTS:                B. De Jager

Instructed by:                      De Klerk, Horn and Coetzee,

                                            Windhoek            


[1] SA 4/2017 delivered on 6 December 2018.

[2] Act No… of 2007.

[3] 2015 (1) NR 283 (LC) at p….

[4] 2010 (2) NR 414 (LC) at p….,

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