NO.: LCA 19/2011
THE HIGH COURT OF NAMIBIA
the matter between:
REAL ESTATE CC
on: 07 July 2011
on: 22 September 2011
AJ.:  This is an appeal against an order made in the
district labour court in Windhoek in terms whereof an application for
the rescission of a default judgment granted against the appellant
was refused. The appeal was noted and filed in the district labour
court on 13 February 2008 and amended on 14 March 2008. I shall refer
to it as the “rescission appeal”.
Various proceedings were instituted to stay the execution of the
judgment pending the determination of the appeal. I need not dwell on
those, save to say that on 1 December 2010 the Supreme Court made
orders, inter alia, that in so far as he/she has not done so,
the clerk of the district labour court was ordered to transmit the
record of the rescission appeal to the Registrar of the Labour Court.
Likewise the Registrar of the Labour Court was ordered to comply with
Rule 18(1) of the Labour Court Rules.
These orders were duly complied with and the rescission appeal was in
due enrolled to be heard by me on 7 July 2011.
In the interim the appellant had second thoughts. It considered,
rightly or wrongly, that the notice of appeal filed on 13 February
2008 together with the amendment was a nullity. Consequently and on
21 June 2011 the appellant filed a notice withdrawing the notice of
appeal dated 13 February 2008 and the amended notice of appeal dated
14 March 2008.
The appellant simultaneously filed a fresh notice of appeal coupled
with an application to this court for the condonation of the late
filing of the new notice of appeal. It is accepted by the appellant
that the notice of appeal filed on 21 June 2011 is filed well out of
time and that condonation for the late filing thereof is required.
At the hearing of the appeal Mrs. Petherbridge appeared for the
appellant. The Respondent appeared in person.
During the course of the proceedings before me, I raised with counsel
for the appellant, the question whether this court was the correct
forum in which to apply for condonation, or whether that application
must be brought in the district labour court. Counsel’s stance
was that this court was indeed the right forum, and referred me to
several reported decisions in the High Court of Namibia and some
cases reported from the South African courts.
The difficulty which confront the appellant, though is, that these
cases all refer to proceedings in the High Court of Namibia or its
South African equivalent.
This appeal is dealt with in accordance with the now repealed Labour
Act, 1992, Act 6 of 1992 and the regulations made pursuant to it.
I have come across two judgments delivered in the Labour Court of
Namibia in both of which the conclusion was reached that applications
for condonation of the late filing of a notice of appeal must be
brought in the district labour court. Bonifatius Tjirongo v
Namdeb (Pty) Ltd (Case No. LC 8/97); Namibia Breweries
Ltd v Willem Kaeka and another (Case No. LCA 34/10).
I respectfully agree with the conclusions reached by Mtambanengwe P
and van Niekerk P who delivered the respective judgments.
It follows that there is no appeal before me and the matter is struck
from the roll.
BEHALF OF THE APPELLANT: Mrs. Petherbridge
BY: Petherbridge Law Chambers
BEHALF OF THE RESPONDENT: In Person