Court name
Labour Court
Case name
First National Bank of Namibia Ltd v Abrahams and Another
Media neutral citation
[2012] NALC 3
Judge
Geier AJ













REPUBLIC
OF NAMIBIA



CASE
NO.: LCA 35/2011







IN
THE HIGH COURT OF NAMIBIA











MAIN
DIVISION











HELD
AT WINDHOEK











In
the matter between:











FIRST
NATIONAL BANK OF NAMIBIA LIMITED
…..........................................
APPLICANT











and











ANTHONY
ABRAHAMS
…......................................................................
1ST
RESPONDENT







OFFICE
OF THE LABOUR COMMISSIONER

…...................................
2ND
RESPONDENT















CORAM:
GEIER, AJ











Heard
on: 14 February 2012











Delivered
on: 14 February 2012-03-12 (Ex tempore)







_____________________________________________________________________







JUDGMENT











GEIER,
J:
[1] Consequent upon his dismissal from the employ of the
Applicant, the 1st Respondent lodged a complaint with the
Office of the Labour Commissioner.



[2]
Upon mediation failing, the matter was arbitrated upon. The
Arbitrator found in favour of the 1st Respondent on 20th
April 2011. It was against these findings, that the Applicant noted
an Appeal on 6 May 2011. This Notice was only served on the 1st
Respondent on 19th August 2011. On 16 September 2011,
Applicant brought an Application to condone the late noting of the
Appeal also seeking certain other relief.







[3]
In essence, as it was submitted by Mr Frank, who appeared with Mr
Phatela on behalf of the Applicant, this was an application for the
re-instatement of an Appeal, which had technically lapsed.







[4]
In his answering papers, the 1st Respondent inter alia
took the point that the Applicant had failed to show ‘good
cause’
and more particularly, while the Applicant had
endeavoured to explain its default, it had nevertheless omitted to
deal with the prospects of success of the Appeal. It was for purposes
of remedying this defect, that a further Application was filed on
16th January 2012, to procure the admission of a further
affidavit, styled ‘Supplementary Affidavit’, onto the
record.







[5]
The further affidavit essentially deals with two aspects:









    1. It
      explains the Applicant’s failure to have served the requisite
      Form 11 together with Form LC41 on the1st Respondent
      when it noted its Appeal.



    2. It
      deals expressly with the Applicant’s prospects of success on
      Appeal.









[6]
The 1st Respondent has opposed also this Application.







[7]
It was explained that due to an “inadvertent oversight”,
(of Applicant’s legal practitioner), there was an unintentional
non- compliance with Rule 17(3) of the Labour Court Rules, which
resulted in the failure to serve Form 11.







[8]
As far as the omission, to expressly deal with the requirement of the
prospects of success, was concerned, the Applicant now contended that
it had now annexed the Arbitration award, which should be read with
the Notice of Appeal annexed to its founding papers and from which
the Applicant’s prospects of success - so to speak - in any
event emerged.







[9]
Although some argument also centered around the question as to
whether or not the Court should, and could have regard to these
annexures, I am convinced that the Court - even in the absence of
this further affidavit - would have been quite entitled to have
regard to those annexures.







[10]
In so far, however, as this has not been stated expressly, the
Applicant now contended in this further affidavit that it wished to
make it clear that there were indeed good prospects of success and
that it was now seeking the opportunity to address this material
aspect of the Applicant’s case by way of the filing of this
further affidavit.







[11]
It was contended, for instance, in this regard that the Arbitrator
had exceeded the scope and ambit of the Labour Act in that he had
dealt with certain aspects which were really in the domain of the
criminal law.







[12]
More importantly, it was now explained that the Arbitrator had
materially misdirected himself in finding that theft, as opposed to
negligence, was the ground for the respondent dismissal.







[13]
The1st Respondent also opposed this Application, on the
ground that this Application had not been set down properly. On this
aspect I have ruled already.







[14]
It was also contended that the further affidavit contained no new
facts and that the Applicant should, so to speak, stand and fall with
the allegations contained in the founding papers.







[15]
In any event, I pause to note that the Applicant reserved its rights
to reply fully to the merits of the further Application should it be
requested to do so, or be granted the opportunity to do so.







[16]
The Court has a discretion to allow the filing of further affidavits.







[17]
‘This discretion should be exercised, against the backdrop of
the fundamental consideration that a matter should be adjudicated
upon all the facts relevant to the issues and dispute. While the
general rules regarding the number of sets and proper sequence of
affidavits should ordinarily and generally be observed, some
flexibility must necessarily be permitted.’







[18]
‘It is essentially a question of fairness to both sides as to
whether or not further sets of affidavits should be allowed’.







[19]
‘There should in each case be a proper and satisfactory
explanation which negates
mala
fides
or
culpable remissness as to the cause of the facts or information not
having been placed before the Court at an earlier stage and the Court
must be satisfied that no prejudice is caused by the filing of
additional affidavits’.







[20]
I refer in this regard to the general exposition found in
Erasmus
Superior Court Practice
.1







[21]
Regarding the Applicant’s explanation in this case, it appears
that the Applicant’s legal practitioners confessed that their
failure to utilise Form 11, was caused, by an inadvertent oversight.
I suppose that the same can be said in regard to their failure to
address the important issue of the Applicant’s prospects of
success on Appeal.







[22]
This certainly borders on culpable remissness, as for instance the
requirements of ‘good cause’ and what that concept
entails, should be well known to legal practitioners engaging in the
business of litigation.







[23]
On the other hand, there are certainly no mala fides present -
and I have not heard Ms Visser - who appeared on behalf of the 1st
Respondent - to argue otherwise.







[24]
I take into account further that the question of fairness plays a
role. It is clear from a reading of the papers before me, that the
Applicant throughout was serious in its resolve and endeavour to
prosecute the Appeal against the Arbitrator’s award and
therefore, the noting of the Appeal, was not frivolously made,
without base, merely to delay and frustrate the1st
Respondent’s position.







[25]
There is also no indication that the evidence contained, in the now
tendered affidavit, is shaped ‘to relieve the pinch of the
shoe’, so to speak.







[26]
The evidence which the Applicant seeks to place on record is
material. Both parties are ad idem in this regard. At least
the Applicant’s tendered exposition, as to why it contends that
its Appeal has good prospects of success, has now been placed on a
much firmer footing.







[27]
To refuse this application, would ultimately also amount to visiting
the fault or remissness of the Applicant’s legal practitioners
on the Applicant. I hesitate to do so.







[28]
Ultimately, I will exercise my discretion in favour of the
application, however, mainly on the consideration that the affidavit
in question will eventually allow the adjudication of the main
application upon all the material facts relevant to the issues in
dispute there.







[29]
Finally I believe that any prejudice to the 1st Respondent
is cured by affording the1st Respondent a further
opportunity to respond to the further affidavit which I am about to
allow.







[30]
In the result, I grant the following relief:








  1. The
    Applicant is allowed to file the tendered ‘Supplementary
    Affidavit of Brian Katjaerua’, which is hereby admitted onto
    the record.









  1. The1st
    Respondent is given 14 days from date of this Order to file a
    further affidavit in reply thereto, should it so chose.
















_________



GEIER
AJ



























ON
BEHALF OF THE APPLICANT ADV. T FRANK SC



ASSISTED
BY ADV. T C PHATELA







Instructed
by: HENGARI, KANGUEEHI & KAVENDJII-INC.















ON
BEHALF OF THE 1
ST
RESPONDENT; ADV. VISSER







Instructed
by: NEDERLOF INC.











ON
BEHALF OF THE 2ND RESPONDENT: NO APPEARANCE



1At
p B1-47, (Service 37, 2011)