Court name
Labour Court
Case number
3 of 2011
Case name
First National Bank of Namibia Ltd v van der Westhuizen and Another
Media neutral citation
[2011] NALC 27
Judge
Miller AJ













CASE NO.: LCA 03/2011



REPORTABLE








IN THE HIGH COURT OF
NAMIBIA



In the matter between:



FIRST NATIONAL BANK
NAMIBIA LIMITED …....................................APPELLANT



vs








RONEL VAN DER
WESTHUIZEN ….............................................1ST
RESPONDENT








GERTRUDE USIKU N.O.
…..........................................................2ND
RESPONDENT








CORAM: MILLER, AJ








Heard on: 09 November
2011



Delivered on: 15 November
2011








JUDGMENT:



MILLER, AJ:
[1] 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.



[2] 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.








[3] 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.








[4] The applicant on 19
January 2009 noted an appeal to this Court. The Notice of Appeal
reads as follows:



1.



The
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.



2.



The
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.



3.



The
Arbitrator erred in the law and/or the facts by dismissing clear
video evidence, showing money falling out of the clothes of
Respondent.













4.



The
Arbitrator erred in law and/or on the facts by refusing and/or
neglecting to consider the evidence before her in a fair and
impartial manner.



5.



The
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.



6.



The
Arbitrator erred in the law and/or on the facts by concluding the
Respondent’s dismissal was substantively and procedurally
unfair.








[5] 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.








[6] 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.








[7] 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.








We
address you on behalf of First National Bank of Namibia.








We
noted an appeal on behalf of our client on 19th January
2011 and served the notices on your office on the same date.








The
21 day period within which your office was to despatch the record to
the Registrar of the Labour Court, has expired.








We
have to date, not received notice of the despatch of the duly
certified record of the arbitration proceedings.








As
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.








We
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.








To
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.








Kindly
also advise on the causes, if any, for the delay experienced thus
far.








We
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.








Kindly
advise our office, as to your client’s position regarding same.








Yours
faithfully








HENGARI,
KANGUEEHI & KAVENDJII INC.



Per:
CLIVE KAVENDJII








[8] 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
that date.








[9] No application was
instituted, however, with the consequence that the appeal was allowed
to lapse.








[10] 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:









  1. Condoning
    the appellant’s non-compliance with Labour Court Rule 17(25)
    read with Rule 17(19).



  2. Reinstating
    the appellant’s appeal.



  3. Directing
    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.



  4. Extending
    the period within which the appellant must prosecute its appeal by
    permitting the appellant and/or its legal representatives:




    1. To
      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;



    2. To
      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;



    3. To
      give notice to the first respondent, within five further court days
      and after:




      1. Receiving
        the first respondent’s statement in terms of Rule 17(16)(b)
        of the Labour Court Rules; alternatively



      2. The
        dies for the first respondent’s statement in terms of
        Rule 17(16)(b) has expired,






That
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.




  1. Such
    further and/or alternative relief as this Honourable Court may deem
    fit to grant.









[11] 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.








[12] 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.








[13] In Peterson
Diergaardt v Fischer 2008 (1) NR 307
the headnote states the
following:








In
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
matter.”








[14] I respectfully agree
with that statement of the law.








[15] 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.








[16] 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.








[17] 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.








[18] 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
score.








[19] The explanation
given goes further than the terse statement that legal costs were an
important consideration.








[20] As far as the
prospects of success are concerned the applicant is on even shakier
ground.








[21] 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.








[22] 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.








[23] Applicant’s
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.








[24] 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).








[25] 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.








[26] For the reasons I
conclude that the application must be dismissed, and it is so
ordered.








[27] There shall be no
order as to costs.























_________



MILLER AJ




































































ON BEHALF OF THE
APPELLANT:
Mr. Maasdorp



Instructed by:
Hengari, Kangueehi & Kanvendjii Inc.


















ON BEHALF OF 1ST
RESPONDENT: Mr. van Zyl



Instructed by:
Metcalfe Legal Practitioners