Court name
Labour Court
Case number
56 of 2010
Case name
Kambulu v Engen Namibia (Pty) Ltd
Media neutral citation
[2011] NALC 14













CASE NO. LCA 56/2010


NOT
REPORTABLE










IN
THE LABOUR COURT OF NAMIBIA










In
the matter between:














MARTINS
KAMBULU
….......................................................................APPELLANT










and










ENGEN
NAMIBIA (PTY) LTD
….........................................................RESPONDENT


















CORAM:
HOFF, J














Heard
on: 01 April 2011










Delivered
on: 27 May 2011

















JUDGMENT













HOFF, J: [1]
This is an appeal against the judgment of the district labour court
refusing an application for condonation of the late filing of a
complaint.








[2] Section 24 of the Labour
Act, Act 6 of 1992 provides inter alia that no 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 from the date on which the party instituted such
proceedings or lodging such complaint has become aware or could
reasonably have become aware of such cause of action shall be
instituted except with approval of the district labour court, on good
cause shown.








[3] The appellant who had been
employed by the respondent since November 2003. On 29 November 2006
the appellant was found guilty in a disciplinary hearing of gross
misconduct. On 18 January 2007 his services were terminated with
immediate effect. The appellant received and signed a written notice
of the termination of his services on 23 January 2007.








[4] The appellant appealed
against the decision of the chairperson of the disciplinary inquiry
and on 19 April 2007 his dismissal was confirmed by the chairperson
of the appeal hearing.



On 24 July 2007 a complaint was
lodged through the firm Tjitemisa & Associates at the district
labour court in Windhoek








[5] The respondent filed a
reply in terms of Rule 7 of the Rules of the district labour court
raising in a special plea the argument that the district laobur court
Windhoek has no jurisdiction to hear the matter since the appellant
had to obtain permission to lodge a complaint which had prescribed on
19 January 2008.



This reply was served on the
appellant’s attorneys on 28 March 2008.








[6] It is common cause that the
complaint lodged in the district labour court, Windhoek had been
withdrawn on 18 January 2007. On 30 January 2008 a complaint was
lodged at the district labour court, Walvis Bay. This is evident from
the date stamp of the clerk of the court of the Magistrate’s
Court, Walvis Bay.



Counsel appearing on behalf of
the appellant as well as counsel appearing on behalf of the
respondent submitted that this new complaint was lodged on 28 March
2008. This is a misconception. The clerk of the court gave notice on
25 March 2008 that the matter had been set down for a hearing on
23.05.2008.








[7] The appellant in his
founding affidavit, in support of his condonation application, stated
that he had been advised and verily believed that the district labour
court, Windhoek had jurisdiction to hear the complaint as the
registered business address of the respondent, is in Windhoek.



However on advice of his legal
representatives they decided to lodge the complaint subsequently in
the district labour court, Walvis Bay since all the witnesses were in
Walvis Bay.)








[8] Appellant further stated
that on 20 August 2008 he was advised by Mr Edwin Coetzee his legal
representative, that he had failed to file the complaint within 12
months as required by the Labour Act, Act 6 of 1992. According to him
Mr Coetzee explained that he calculated the 12 months from the date
of the outcome of the appeal i.e. 19 April 2007 as opposed to the
date of his dismissal on 18 January 2007. He further stated that
since he is a layperson he was unaware of the prescription period
neither was he aware from which date the period of 12 months should
have been calculated. He was of the view that his application was
bona fide and that he has a bona fide complaint which
enjoys reasonable prospects of success on appeal. He elaborated on
the reasons why he was of the view that there were reasonable
prospects of success on appeal.








[9] The appellant’s
founding affidavit was signed by him on 23 October 2008 and filed
with the clerk of the court on 31 October 2008. The notice of an
application in terms of Rule 21 of the Rules of the district labour
court together with confirmatory affidavit of the legal
representative of the applicant was filed with the clerk of the court
on 31 October 2008. The condonation application was heard on 19
November 2008.








[10] Mr Coetzee who appeared on
behalf of the appellant submitted that the presiding officer in the
district labour court emphasised the fact that the legal
representative of the appellant was negligent in lodging the
complaint out of time whilst the lodging of the complaint was filed
only 7 days late (i.e. from 23 January 2007 when the appellant become
aware of his dismissal until 30 January 2008 when the complaint was
lodged in the district labour court, Walvis Bay).








[11] He submitted that it was
reasonable for him at the time to believe that the period of 12
months will run from the date (19 April 2008) when the appellant had
been informed that his internal appeal was unsuccessful. He in this
regard contended that it was a misinterpretation of the law rather
than the non-compliance with the rules of court.








[12] Mr Coetzee in his heads of
argument referred to a South African decision of the Labour Court,
SACCAWU v Edgars Stores Ltd & another [1997] 10 BLLR 1342 [LC]
in which counsel raised the argument that “cause of action”
should be interpreted that the effective date of the dismissal of
applicant’s members was upon the dismissal of the internal
appeal and not before such date. The Labour Court rejected this
argument. Mr Coetzee submitted that such an argument was bona
fide
, as his argument was, but appears to concede that he was
wrong in assuming that prescription would only run from the date of
the dismissal of appellant’s internal appeal.








[13] Mr Coetzee also submitted
that since the respondent had filed no opposing affidavit in the
court a quo that respondent was not before court and the
presiding officer should have relied on her judgment only on the
facts and submissions reflected in the appellant’s founding
affidavit.



Mr Vaatz who appeared on behalf
of the respondent in this appeal submitted that the appeal record was
incomplete in the sense that a notice to oppose the condonation
application does not form part of the appeal record and in any event
the respondent has filed heads of argument which reflected
respondent’s grounds for opposing the application for
condonation.








[14] I am of the view that
based on this fact the presiding officer in the court a quo
did not misdirect herself by having regard to the submissions by the
legal representative who appeared on behalf of the respondent.








[15] I am of the view that even
if regard is had only to the founding affidavit of the appellant
together with the applicable legal principles the presiding
magistrate did not misdirect herself in fact and/or law by dismissing
the application for condonation.








[16] The court a quo had
to decide whether or not to condone the late filing of the complaint
by the appellant, on good cause shown.








[17] The presiding officer with
reference to the judgment of Strydom CJ in Leweis v Samporo 2000
NR 186 (SC)
held that in order for an applicant to show good
cause such applicant must comply with the following requirements:








(a) the applicant
must give a reasonable explanation for the default;



(b) the
application must be made bona fide; and



(c) the applicant
must show that he has a bona fide defence.








[18] The presiding officer also
referred to the case of Nafinu Haihambo (case no. 47/2007
delivered on 29 February 2008
) where the court held that where an
applicant gives no reasons or gives reasons which are implausible or
unacceptable the matter is put to rest and the application must be
dismissed.








[19] The magistrate found that
the legal representative was remiss in his duties and observed that
there was no explanation why he was so remiss and how it came about
that the matter was delayed for a period of six months between July
2007 (when instructions were given to the legal representative) and
January 2008 (when the new complaint was lodged). She also found that
the appellant seemingly made no enquiries regarding the process of
his case. I agree with these findings.








[20] It is trite law that there
is a limit to the extent a litigant may hide behind the negligence of
his or her legal practitioner. I agree with the finding of the
presiding officer that the legal representative had an indifferent
altitude and that there is nothing in appellant’s affidavit
which suggest that appellant himself made an effort to ensure that
his case was given the due attention it deserved.








[21] The matter was further
compounded by the fact that in spite of having been alerted to the
fact that the complaint had been lodged out of time on 28 March 2008
and that a condonation application was necessary the appellant and
his legal representative waited until 31 October 2008 to file the
condonation application. There is no explanation at all for this
delay by either the appellant or his legal representative.








[22] In Moraliswani v Mamili
1959 (4) SA 1 (A) at p. 9 D – E
the following appears:








It has
often been held that, whenever a prospective appellant realises he
has not complied with a Rule of Court he should, apart from remedying
his default immediately, also apply for condonation without delay.
See
Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G

and earlier cases there quoted.”








[23] In Schweiger v Gamikub
(Pty) Ltd case no. A 194/2005
and delivered on 11 November 2005
Muller AJ (as he then was) referred with approval to the case of
Darriers v Sherrif, Magistrate’s Court, Wynberg and Another
1998 (3) SA 34 (SCA
) where the court held that an appellant’s
prospects of success is but one of the factors relevant in to the
exercise of a Court’s discretion whether or not to grant a
condonation application and at p. 41 D the following appears:








Where
non-observance of the Rules had been flagrant and gross an
application for condonation should not be granted whatever the
prospects of success might be.”








[24] I am of the view that in
casu
the non-observance of the Rules as well as a provision of
the Labour Act itself has been gross. In addition as stated (supra)
there is no explanation why condonation application had been filed
seven months after the legal representative was alerted to the fact
that a condonation application should be brought.



An example of the remissness of
the legal representative is a statement in the founding affidavit of
the appellant that he was only advised on 20 August 2008 that his
legal practitioner failed to file his labour complaint within 12
months as required by the Labour Act.








[25] In result the appeal
against the dismissal of the condonation application cannot succeed
and the following order is made:








The appeal is dismissed.




























__________



HOFF, J









































































ON BEHALF OF THE APPELLANT:
MR COETZEE













Instructed by: TJITEMISA &
ASSOCIATES


















ON BEHALF OF THE RESPONDENT
MR VAATZ










Instructed
by: A VAATZ & PARTNERS