CASE NO.: LCA 03/2011
IN THE HIGH COURT OF
In the matter between:
FIRST NATIONAL BANK
NAMIBIA LIMITED …....................................APPELLANT
RONEL VAN DER
GERTRUDE USIKU N.O.
CORAM: MILLER, AJ
Heard on: 09 November
Delivered on: 15 November
 The first respondent was dismissed on 23 March 2010 by the
applicant following a disciplinary enquiry into an allegation that
she had stolen or attempted to steal N$300-00 from her employer, the
applicant. That finding was challenged by the first respondent
pursuant to the internal appeal procedures of the applicant. The
appeal was not successful.
 Thereafter on 02
April 2010, the respondent, who was of the view that she was unfairly
dismissed, referred the matter to the Labour Commissioner for
purposes of conciliation or arbitration.
 The second respondent
was appointed as the conciliator/arbitrator to determine the dispute.
A lengthy arbitration hearing ensued. On 12 January 2011 the second
respondent issued a written arbitration award. The second respondent
concluded that the applicant had unfairly dismissed the first
respondent and ordered the applicant to pay to the first respondent
an amount which would equal ten months of her salary including her
pension or medical aid benefits for that period.
 The applicant on 19
January 2009 noted an appeal to this Court. The Notice of Appeal
reads as follows:
Arbitrator erred in law and/or the facts in finding that Respondent
was not guilty of theft of money despite evidence that Respondent
stole money from Appellant.
Arbitrator erred in the law and/or facts in concluding that
Appellant’s representative submitted that there was uncertainty
as to who was responsible for the theft of money.
Arbitrator erred in the law and/or the facts by dismissing clear
video evidence, showing money falling out of the clothes of
Arbitrator erred in law and/or on the facts by refusing and/or
neglecting to consider the evidence before her in a fair and
Arbitrator erred in the law and/or on the facts by concluding that
the conducting of the appeal hearing during the disciplinary hearing
was procedurally flawed.
Arbitrator erred in the law and/or on the facts by concluding the
Respondent’s dismissal was substantively and procedurally
 The first respondent
notified the applicant that she was opposing the appeal and the
parties agreed to suspend the second respondent’s award pending
the final determination of the appeal.
 Although it was
incumbent on the second respondent to dispatch the record of the
proceedings within 21 days of the noting of the appeal, the second
respondent did not do so timeously.
 Concerned by the fact
that the second respondent did not dispatch the record and the fact
that it would not be able to prosecute the appeal within the
prescribed period of 90 days, whereupon the appeal would lapse, the
applicant’s legal practitioner addressed the following letter
to the Labour Commissioner on 01 April 2011.
address you on behalf of First National Bank of Namibia.
noted an appeal on behalf of our client on 19th January
2011 and served the notices on your office on the same date.
21 day period within which your office was to despatch the record to
the Registrar of the Labour Court, has expired.
have to date, not received notice of the despatch of the duly
certified record of the arbitration proceedings.
you are aware, we are required to prosecute the appeal within 90
days, by meeting all the requirements of Labour Court Rule 17. These
requirements include but are not limited to, inspecting the record
despatched by your office; identifying the portions of the record
necessary for the appeal; making copies of the appeal record;
certifying those appeal record copies as corresponding with the duly
certified record of the arbitration proceedings as despatched from
your office; delivering various sets of the appeal record copies to
the parties involved; considering the appeal record and amending the
appellant’s notice of appeal, where necessary, within 10
calendar days of filing the certified appeal record; and allowing the
respondent 21 days within which to file her statement of opposition.
Only once all these steps have been taken, will we be able to apply
for a trial date and thus prosecute the appeal.
are unable to meet the 18th April 2011 deadline for
applying for a trial date, as we have to date not had sight of the
record. We will accordingly bring an application for the extension of
the 90 day period before 18th April 2011, as the appeal
would otherwise lapse.
enable us to place the full picture before the Court in our founding
affidavit, kindly advise when your office intends to make the duly
certified record available to the Registrar of the Labour Court.
also advise on the causes, if any, for the delay experienced thus
will appreciate receiving your most urgent reply by Tuesday 5th
April 2011. We attach hereto numerous correspondence(s)
in this matter, the sum total of which is the requests for your
client to undertake not to enforce the arbitration award.
advise our office, as to your client’s position regarding same.
KANGUEEHI & KAVENDJII INC.
 It is apparent from
the letter that the applicant’s legal practitioner was fully
aware of the fact that the appeal would lapse on 18 April 2011 and
intended to bring an application to extend the 90 day period prior to
 No application was
instituted, however, with the consequence that the appeal was allowed
 Thereupon the matter
was left in abeyance until 10 May 2011, when the applicant by Notice
of Motion approached this Court for the following relief:
the appellant’s non-compliance with Labour Court Rule 17(25)
read with Rule 17(19).
the appellant’s appeal.
the second respondent to despatch the duly certified complete
original record of the arbitration proceedings appealed against, to
the Registrar of this Honourable Court, within 10 court days of the
date of this order and to notify the appellant’s attorney, in
writing, immediately on having done so.
the period within which the appellant must prosecute its appeal by
permitting the appellant and/or its legal representatives:
take such reasonable steps as may be necessary to enable it or its
representatives to certify the record of the arbitration
proceedings conducted before the second respondent, once received,
as correct and complete;
amend, add to or vary the terms of the notice of appeal within ten
court days of filing the certificate referred to at 4.1 above;
give notice to the first respondent, within five further court days
the first respondent’s statement in terms of Rule 17(16)(b)
of the Labour Court Rules; alternatively
dies for the first respondent’s statement in terms of
Rule 17(16)(b) has expired,
application will be made to the Registrar on a Wednesday (on at least
five day’s notice) for the allocation of a date for the set
down of the appeal in accordance with paragraphs 29(4) and 29(5) of
the Consolidated Practice Directives.
further and/or alternative relief as this Honourable Court may deem
fit to grant.
 The only reason
advanced for not taking appropriate steps in time, is that the
applicant’s legal practitioners thought that they could save
costs by not acting in time.
 Rule 15 of the
Labour Court Rules allow me to condone the applicants failure to
prosecute the appeal in time. I can do so in the exercise of my
discretion and once good cause has been shown.
 In Peterson
Diergaardt v Fischer 2008 (1) NR 307 the headnote states the
considering an application for the condonation for the late
prosecuting of an appeal the Court will take several factors into
account. These include the degree of the delay, the reasonableness of
the explanation, the prospects of success and the importance of the
 I respectfully agree
with that statement of the law.
 I am also mindful of
the approach adopted in Chairperson of the Immigration
Selection Board v Frank and Another 2001 NR 107 (SC), which
is to the effect that once there are good prospects of success a less
than satisfactory explanation may suffice.
 In the instant the
decision to allow the appeal to lapse was a conscious decision taken
with a full appreciation of the consequences that will follow.
 The explanation
given that consideration of costs had a bearing on that decision is
entirely unconvincing. The dilemma facing the applicant always was to
either bring an application for an extension of the 90 day period or
to bring the present application once the appeal had lapsed.
 I do not see how in
those circumstances the decision to allow the appeal to lapse could
conceivably have saved costs. Nor did the applicant inform me on that
 The explanation
given goes further than the terse statement that legal costs were an
 As far as the
prospects of success are concerned the applicant is on even shakier
 I quoted the
Applicant’s Notice of Appeal in full earlier in this judgment.
It is and remains in my opinion a nullity. The hackneyed phrase “...
erred in the law and/or the facts...” cannot live in a
statutory environment which permits appeal on points of law only.
 Moreover it is
apparent that, despite the attempt to dress up the notice of appeal
to in same way create the impression that the grounds of appeal are
on points of law, the applicant in essence appeals against factual
findings made by the arbitrator.
counsel was constrained to concede that in argument. He argued
however firstly that once the appeal is re-instated the applicant
will be in a position to amend the notice of appeal.
 The short answer to
that is that a nullity is just that, and cannot be amended. Standard
Bank Namibia v Francois Charles Grace (unreported judgment by Henning
AJ delivered on 9 November 2010).
 Secondly the
applicant’s counsel contended in the fifth ground of appeal
raises a point of law. The difficulty I have with that argument is
that the fifth ground of appeal is vague and wide to the extent that
it is no ground of appeal at all.
 For the reasons I
conclude that the application must be dismissed, and it is so
 There shall be no
order as to costs.
ON BEHALF OF THE
APPELLANT: Mr. Maasdorp
Hengari, Kangueehi & Kanvendjii Inc.
ON BEHALF OF 1ST
RESPONDENT: Mr. van Zyl
Metcalfe Legal Practitioners