Court name
Labour Court
Case name
De Beers (Pty) Ltd v Izaaks
Media neutral citation
[2009] NALC 2





CASE NO







SUMMARY REPORTABLE



LCA 28/08



DE BEERS MARINE (PTY) LTD vs
JACOBUS IZAAKS



2009 February 6





PARKER, J



Statute - s.
24 of the repealed Labour Act (Act No. 6 of 1992) – Approval for
lodging complaint out of time in terms of.



Held,
by context the word “approval” in s. 24 of Act No. 6 of 1992 is
not synonymous with “condonation”.



Held further,
it was not the intention of the Legislature that the word “approval”
be understood to mean “condonation”.



Practice - s.
24 of Act No. 6 of 1992 – Application for district labour court’s
approval for lodging of complaint out of statutory time limit in
terms of – Order granting such approval – Interlocutory or final
order – Interlocutory order and final order explained –
Unappealability of interlocutory order affirmed – Court finding
order granting approval in terms of s. 24 of Act 6 of 1992 is
interlocutory and therefore unappealable.



Held,
the order of district labour court granting approval for lodging of
complaint out of time in terms of s. 24 of Act No. 6 of 1992 is a
preliminary step to lodging of the complaint and therefore an
interlocutory order and so it is not appealable.



Held further,
although the order granting the lodging of the complaint out of time
is conclusive of the preliminary or subordinate matter it is not a
final order because it is not conclusive of the main dispute or
conclusive of the final rights of the parties which a decision in due
course on the complaint is to determine.







REPORTABLE







CASE NO.: LCA 28/2006







IN THE LABOUR COURT OF
NAMIBIA







In the matter between:







DE BEERS (PTY)
LTD APPELLANT







and







JACOBUS
IZAAKS RESPONDENT





CORAM: PARKER, J







Heard on: 2009 January 23



Delivered on: 2009 February 6



_________________________________________________________________________



JUDGMENT



PARKER, J







[1] This
matter comes a long way, commencing its journey on 19 April 2006 in
the district labour court, Windhoek, in terms of the repealed Labour
Act, 1992 (Act No. 6 of 1992) (the repealed 1992 Labour Act). On
that day in April 2006, the respondent in the instant matter but
applicant in the 2006 application before the district labour court,
Windhoek, brought an application by notice of motion, moving that
court for its “
approval
to lodge a complaint with that court. I have used the noun
“approval” advisedly: not least because that is the word used by
the Act. The word “condonation”, which is bandied about by the
parties and their legal representatives and also used by the learned
chairperson of the district labour court in her judgment, is not used
by the Act – for a good reason – and it is, therefore,
inappropriate to bring it into the interpretation and application of
s 24 of the repealed 1992 Labour Act. By context “approval” in s
24 is not synonymous with “condonation”: it would have been a
simple matter for the lawmakers to have used “condonation” if
that was the word they intended to use; they did not use
“condonation”; and, in my opinion, it was not the intention of
the Legislature that the word “approval” be understood to mean
“condonation”. Section 24 provides:







Notwithstanding the provisions
of any other law to the contrary, no proceedings shall be instituted
in the Labour Court or any complaint lodged with any district labour
court after the expiration of a period of 12 months as from the date
on which the cause of action has arisen or the contravention or
failure in question has taken place or from the date on which the
party instituting such proceedings or lodging such complaint has
become or could reasonably have become aware of such cause of action
or contravention or failure, as the case may be, except with the
approval
of the Labour Court or district labour court, as the case may be, on
good cause shown. (My emphasis)







[2] The respondent brought the
application before the district labour court in April 2006, as
aforesaid, because the statutory time limit allowed to lodge such
complaint had expired within the meaning of the above-quoted s 24 of
the repealed 1992 Labour Act. In a written judgment running into
four pages of ‘A-4’ foolscap typing-paper sheets, the learned
president exercised her statutory discretion and granted approval for
the lodging of the complaint by the respondent out of time.







[3] The appellant now appeals
against the decision of the learned chairperson of the district
labour court. The respondent takes the preliminary objection that
the order by the learned chairperson of the district labour court
approving the lodging of the complaint out of time is interlocutory
and, therefore, not appealable. Accordingly, it behoves me to
determine the preliminary objection at the outset because if the
preliminary objection is upheld, the appeal fails on that ground
alone.







[4] In support of the
respondent’s contention, Mr. Grobler, counsel for the respondent,
argued that the aforementioned order of the learned chairperson
relates to an interlocutory matter and has no effect on the merits of
the case. Consequently, he submitted, the appeal could only be
lodged after the matter (i.e. the complaint) has been decided by the
district labour court on the merits. Mr. Grobler referred to me the
following cases in support of his contention, namely,
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Limited

1948 (1) SA 839;
South
Africa Motor Industry Employers’ Association v South African Bank
of Athens Ltd
1980
(3) SA 91;
Thiro v M
& Z Motors
NLLP
2002 (2) 370 NLC (LC). As I understand Mr. Grobler, his argument is
simply that the order by the learned chairperson of the district
labour court is an interlocutory order because it deals with an
interlocutory matter and so, therefore, that order is unappealable.
The principle underlying Mr. Grobler’s argument is that an
interlocutory order is unappealable.







[5] I did not hear Mr.
Heathcote, counsel for the appellant, to refute the principle relied
on by Mr. Grobler; neither would he have been correct, in my opinion,
if he had done so. Mr. Heathcote’s argument, as I understood it,
was rather that the order of the learned chairperson of the district
labour court is not interlocutory: it is a final order; and his
reason for so saying is principally the following. Counsel argued
that the learned chairperson’s decision granting approval for the
lodging of the complaint by the respondent out of time “is a final
order in that proceeding and even if it is interlocutory it
irrevocably determined the rights of the parties.” This circular
argument, with the greatest deference, does not add any weight. It
has been said authoritatively in 22
Halsbury
(3 ed): para 506 that an order which does not deal with the final
rights of the parties is termed “interlocutory”; and “it is an
interlocutory order, even though not conclusive of the main dispute,
may be conclusive as to the subordinate matter with which it deals.”
Thus, the fact that an order is conclusive as to the subordinate or
preliminary matter with which it deals does not make such order
conclusive of the main dispute or conclusive of the final rights of
the parties, which a decision in due course is to determine. (See
Re
Gardner, Long v Gardner

(1894) 71 LT 412 (CA);
Blakey
v Latham
(1889) 43
Ch D 23 (CA);
Kronstein
v Korda
[1937] 1 All
ER 357 (CA);
Guerrera
v Guerrera
[1974] 2
All ER 460 (CA);
Salter
Rex & Co. v Ghosh

[1971] 2 QB 597 (CA).) As Lord Esher, MR stated in
Standard
Discount Co v La Grange

(1877) 3 CPD 67 (CA) and
Salaman
v Warner
[1891] 1 QB
734 (CA), the test was the nature of the application to the court;
and not the nature of the order which the court made. I respectfully
subscribe to those views. From the authorities, it seems to me clear
that the principle of the unappealability of an interlocutory order
is irrefutable; and that much both counsel agree.







[6] In Thiro
supra, after setting out the relevant provisions of s 83 (b) of the
Magistrate’s Courts Act, (Act No. 32 1944), as amended, which
entitled a party to any civil suit or proceedings to appeal against
“any rule or order in such suit or proceeding and having the effect
of a final judgment,” Silungwe, P stated:







It is trite law that an
interlocutory order which does not have a “final or definitive
effect” is not appealable forthwith. The rationale underlining the
prohibiting or limiting of appeals against interlocutory order is
salutary in that it discourages piecemeal appeals. See
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd

1948 (1) SA 839 at 870;
DH
Meskin Construction Co (Pty) Ltd & Another v Magliamo

1979 (3) SA 1303 (T) at 1306 B-C;
Makhothi
v Minister of Police

1981 (1) SA 69 (A).







[7] To start with, I understand
the word “judgment” in the above-quoted part of s 83 (b) of the
Magistrate’s Courts Act to mean “decision” (
Concise
Oxford Dictionary
,
10ed.) Moreover, I find myself in respectful agreement with Silungwe,
P and I subscribe to the views expressed
Thiro
supra; but that is as far as I shall go with Silungwe, P inasmuch as
the principle pronounced in
Thiro
is relevant to the present matter. Silungwe, P’s other statements
in
Thiro
cannot, with respect, assist this Court in its present enterprise in
virtue of what I have said previously about the fact that “approval”
in s 24 of the repealed Labour Act is not by context synonymous with
“condonation” and inasmuch as
Thiro
concerned “the order of
condonation
of the appellant’s late filing of his complaint … (at 373)” [My
emphasis]







[8] It follows inexorably that
my present burden is first of all to determine whether the learned
chairperson’s order is interlocutory because if it is, this appeal
fails on that ground alone, as I have already said.







[9] In the instant matter, the
case before the district labour court, Windhoek, in the April 2006
was in the nature of
a
preliminary

application by the respondent moving the district labour court
to
grant
a section-24
approval for
him to lodge a complaint with that court out of time. And there, as
Mr Grobler correctly submitted, the respondent was merely granted
permission by
the learned chairperson to lodge a complaint out of time in that
district labour court: the learned chairperson’s order granting
approval for the lodging of the complaint by the respondent out of
time does not have any effect “on the final determination of the
main action in the case”; that is, the complaint.



[10] It seems to me clear and
incontrovertible that the learned chairperson’s decision or
judgment or order does not deal with the main dispute or the final
rights of the parties: the dispute is whether the appellant dismissed
the respondent fairly in terms of the applicable law (i.e. the
repealed 1992 Labour Act), and the rights of the parties are the
right of the appellant to dismiss the respondent in terms of the
applicable law and the respondent’s right under the applicable law
not to be dismissed unfairly by the appellant.







[11] I have not one iota of
doubt in my mind that the learned chairperson’s order is an
interlocutory order because the respondent moved the district labour
court, as I have said
ad
nauseam
, merely for
approval (that is, for permission) to lodge his complaint out of time
(see
Kronstein
supra). Doubtless,
the decision of the learned chairperson of that court determined that
preliminary point, but it is not a final order (
Gardner,
supra;
La Grange
supra; Blakey,
supra). In sum, I hold that the respondent’s April 2006
application for the district labour courts’ approval to lodge a
complaint out of the statutory time was
merely
a preliminary step

to the lodging of the complaint, and therefore an interlocutory
matter, and the order granted is an interlocutory order (see
Gardner;
La Grange,
supra). I should have said so even if I had not considered the
aforementioned cases. But when I look at
Thiro,
Gardner,
Blakey,
Salaman,
Ghosh,
Kronstein and
La Grange supra,
I feel no doubt whatsoever, not even a modicum of doubt, that the
order of the learned chairperson of the district labour court,
Windhoek, approving the lodging of a complaint by the respondent out
of time ought to be treated as an interlocutory order. An order is
final only which determines the matter in dispute at the trial of an
action (i.e. a complaint in the instant matter). Thus, having regard
to the authorities and the facts of the case, I feel bound to hold
that the aforementioned order of the learned chairperson of the
district labour court, Windhoek, is an interlocutory order and,
therefore, unappealable. Consequently, I uphold the respondent’s
preliminary objection; and so the appeal must be dismissed.







[12] I now consider the issue
of costs. Mr. Grobler submitted that the appellant all along knew
that the “condonation granted to the respondent was an
interlocutory matter and could not be appealed against at this stage”
and so, according to him, to “continue with such an appeal is
frivolous or vexatious as contemplated by section 20 of the Labour
Act.” With respect, I do not accept Mr Grobler’s submission. The
applicant’s failure to see that the learned chairperson’s order
is an interlocutory order and, therefore, unappealable may be
regrettable but it cannot be said that the appellant acted
frivolously or vexatiously by holding on tenaciously to what it
considered to be a genuine and honest position - even if a misadvised
and misguided position that was doomed to fail. Accordingly, I am not
persuaded that in pursuing its position, the appellant acted
frivolously or vexatiously within the meaning of s. 20 of the Labour
Act. That being the case, I think it is fair and just that the
parties pay their own costs.







[12] In the result, I make the
following orders:








  1. The appeal is dismissed.



  2. I make no order as to costs.
















________________________



Parker, J







ON BEHALF OF THE
APPELLANT:
Adv. R.
Heathcote, SC



Instructed by: GF
Köpplinger Legal



Practitioners











ON BEHALF OF THE
RESPONDENT:
Adv. Z
J Grobler



Instructed by: Grobler &
Co.