Court name
Labour Court
Case number
60 of 2010
Case name
Parcel Force Namibia (Pty) Ltd v Hosea
Media neutral citation
[2011] NALC 8





CASE NO











NOT
REPORTABLE
CASE
NO.: LCA 60/2010



IN
THE LABOUR COURT OF NAMIBIA



In
the matter between:


PARCEL
FORCE NAMIBIA (PTY) LTD

…...........................................Applicant



and


HALWEENDO
HOSEA

…...............................................................Respondent











CORAM:
PARKER
J







Heard
on:
2011
February 18



Delivered
on: 2011 March 22










JUDGMENT







PARKER
J
:
[1]
The genesis of the matter now before this Court lies in the
institution of a complaint by the respondent (the complainant in the
district labour court) in the district labour court, Oshakati, on 9
April 2008 in terms of the repealed Labour Act, 1992 (Act No. 6 of
1992) in which the respondent complained that the appellant (the
respondent in the district labour court) had dismissed him
unlawfully. The appellant's legal representatives filed with the
district labour court, Oshakati, the appellant's reply (form 6) to
the respondent's complaint by registered mail. The 'Certificate of
Posting of a Registered Article' issued by the Post Office,
Ausspannplatz, bears the date stamp of 14 May 2008. Thus, going by
the date stamp of the clerk of the civil court, Oshakati magistrate's
court, the clerk of that court received the reply (form 6) on 20 May
2008, and did not do anything - in the form of service on the
respondent - with it. In view of that, Mr. Tjitemisa, counsel for the
respondent, submitted as follows:











'The
appellant filed its reply on 20 May 2008 and being 29 days after the
filing and service of the reply.







'Rule
7(1) of the rules of the District Labour Court provides that the
reply should be filed within 14 days of service of the complaint but
Appellant failed to comply with this rule. This was the first
non-compliance of (with) the rules by the Appellant.'







[2]
I take a different view of the law as contained in the rules of the
erstwhile district labour courts ('the rules'); and although the
legal point I rely on is not exactly the same as the one raised by
Mr. Tjitemisa, the point I have raised is not unrelated to Mr.
Tjitemisa's legal point. I am alive to the fact that this is an
appeal but I think this Court
qua
appeal
court is entitled to raise the legal point
ex
mero motu
because
it is related to the legal point raised by Mr. Tjitemisa, as I have
said, and, more important, the facts against which I have applied the
legal point are 'well-nigh incontrovertible.' (See Herbstein and Van
Winsen,
The
Civil Practice of the High Courts and the Supreme Court of Appeal of
South Africa,
5th
edn.:
p. 1248, and the cases there cited.)



[3]
The first port of call in the enquiry is rule 7(1) of the rules,
which provides:











'If
the respondent wishes to defend a complaint in question he or she
shall serve a copy of a reply (form 6) to the complaint upon the
complainant in the manner prescribed in subrule (2) of rule 5 within
14 days of service of the complaint on him or her and file the
original thereof together with the proof of such service as
contemplated in subrule (3) of that rule, with the clerk of the
court.'







[4]
And as respects the manner of service of a reply (form 6) on a
complainant; rule 5(2) provides that service of a reply, inter alia,
is -















'(a)
...



(b)
...



(c)
...



(d)
….



(e)
by the delivery thereof in such other manner as may be directed by
the clerk of the court.'







[5]
The evidence is overwhelming and incontrovertible that there was no
proper service of the appellant's reply on the respondent in
accordance with the rules. The appellant's reply was sent by
registered mail to a 'H. Hamukushi, P.O. Box 15480, Oshakati,
Namibia.' There is no evidence on the record indicating that the
manner of service was directed by the clerk of the court; and, in any
case, there is no proof of service in accordance with rule 5(3)(d) of
the rules. That being the case, the only proper order that the
chairperson of the district labour court should have made in terms of
rule 7(3) was to order that the appellant who had not served the
reply in accordance with rule 7(1), read with rule 5(2), of the rules
'shall not be entitled to take part in the proceedings of the court.'
The reason is that there is no evidence on the record establishing
that 'on good cause shown' by the appellant for failure to effect
service of the reply on the respondent in accordance with the rules,
the appellant was granted leave by the chairperson of the said
district labour court to take part in the proceedings before the
court.











[6]
Thus, on the facts
in
casu
and
on the law, the learned chairperson lacked the power to permit the
appellant 'to take part in the proceedings of the court.' That is to
say; when there had been failure on the appellant's part to serve the
reply in accordance with the rules, the learned chairperson could
only exercise a discretion and grant leave to the appellant to take
part in the proceedings, if sufficient, good and bona fide
explanation had been placed before the learned chairperson to enable
the chairperson to determine whether good cause had been shown. (See
Leweis
v Sampoio
2000
NR 186 (SC) where the phrase 'good cause' is interpreted and
applied.) No explanation of any hue or colour was placed before the
learned chairperson of the district labour court in question.
A
priori,
the
appellant was not entitled to take part in the proceedings of the
district labour court, including bringing the rescission application.
Thus, by permitting the appellant to take part in the proceedings
without any justification in terms of rule 7(3), which in my opinion
is clearly peremptory, the learned chairperson acted outwit rule
7(3). The decision of the learned chairperson is, accordingly, both
wrong and unjudicial and of such a kind as to entitle this Court,
sitting as an appeal court, not to countenance and perpetuate it.
Significantly, regard should be had to the high authority of O'Linn
AJA on the dangers attendant upon the court's failure to apply the
law and rules in the following passage in
Minister
of Home Affairs, Minister Ekandjo v Van der Berg
2008
(2) NR 548 (SC) at 561G:











if
the Courts do not apply the rules and the law, the rule of law will
be abrogated and justice will be unattainable.'







[7]
On this basis alone, in my judgment the appeal should fail, and it
fails. In the result, I make the following orders:




  1. The
    appeal is dismissed.



  2. There
    is no order as to costs.
























PARKER
J











COUNSEL
ON BEHALF OF THE APPLICANT:



Mr
S Horn










Instructed
by:
M
B De Klerk & Associates











COUNSEL
ON BEHALF OF THE RESPONDENT:



Mr
J N Tjitemisa









Instructed
by:
Tjitemisa
& Associates