Court name
Labour Court
Case name
Minister of Education v The Arbitrator N O and Others
Media neutral citation
[2012] NALC 4
Judge
Geier AJ













CASE
NO.: LCA 21/11







IN
THE HIGH COURT OF NAMIBIA











MAIN
DIVISION











HELD
AT WINDHOEK











In
the matter between:











MINISTER
OF EDUCATION
…...........................................................................APPLICANT











and











THE
ARBITRATOR N.O
…......................................................................1ST
RESPONDENT







PIET
TITUS
…..........................................................................................2ND
RESPONDENT







THE
LABOUR COMMISSIONER N.O
….................................................3RD
RESPONDENT















CORAM:
GEIER AJ











Heard
on: 28 February 2012











Delivered
on: 28 February 2012 (Ex tempore)















JUDGMENT



____________________________________________________________________







GEIER
AJ
: [1] The Applicant in this matter seeks the
reinstatement of a lapsed appeal and a revival of an order granted by
the High Court, suspending the execution of an Arbitration Award made
by the 1st Respondent in favour of the 2nd
Respondent on 16th February 2011.



[2]
The Applicant prosecuted the lapsed appeal as set out below,
subsequent to the order granted by the High Court on 16th
March 2011 in pursuance of an urgent application brought in this
regard, which order inter alia also directed the Applicant to file
the requisite Notice of Appeal on or before the 17th March
2011.



[3]
This Notice of Appeal was then served on the other Respondents on
16th March and on 17th March on the 2nd
Respondent. Prior to service on the 2nd Respondent, the
Applicant caused the Notice of Appeal to be filed at the court on the
16th March 2011. For purposes of this matter, the Notice
of Appeal will therefore be regarded as having been filed on 17th
March 2011.



[4]
The said Notice of Appeal also called on the 1st
Respondent to dispatch the record of the Arbitration proceedings to
the Registrar within 21 days of service of the Notice. The period of
21 days expired on 6th April 2011. The Applicant’s
legal practitioner apparently in the interim enquired from time to
time as to what had happened to the record. No details in this regard
were furnished in the founding papers.



[5]
However, on the 16th of May 2011 the record was obtained
from the Registrar. The Applicant’s legal practitioner
apparently made four copies to be dispatched to the Respondents. In
terms of Rule 17(13) of the Rules of the Labour Court, the Applicant
had to provide the Registrar with two certified copies of the record.
This had to occur not less than 14 days after the receipt of such
record. This 14-day period expired on the 30th of May
2011. On 9th of June the Applicant’s legal
practitioners dispatched the record to the Registrar of the High
Court.



[6]
On 17th of June 2011 an attempt to serve this certified
record, together with a Notice of Appeal on the 2nd
Respondent was made. This attempt at service was made at the Horizon
Boys Hostel in Keetmanshoop, the last known address of the 2nd
Respondent. A return of non-service was received. Thereafter further
attempts were made at locating the whereabouts of the 2nd
Respondent. On the 22nd July 2011 the record and the
Notice of Appeal were personally served on the 2nd
Respondent.



[7]
In terms of Rule 17(25) of the Rules of the Labour Court an appeal,
which is not prosecuted within a period of 90 days, after the noting
of such appeal, lapses. This 90 day period expired on 14th
June 2011. On the 5th of August 2011 the 2nd
Respondent’s legal practitioners filed a notice to oppose the
appeal. This notice was not followed up through the filing of a
further notice stating the grounds of opposition to the appeal, as
would have been required in terms of Rule 17(16)(b) of the Rules of
Court.



[8]
On 1st September 2011, through a letter, received by the
legal practitioners of Applicant on 2nd September 2011,
the legal practitioners of the 2nd Respondent informed the
Applicant’s legal practitioners of the fact that the appeal,
which had been noted on behalf of the Applicant, had lapsed.



[9]
On 3rd October 2011 the Applicant eventually brought the
present application, which was set down for hearing on 14th
October 2011 and which application then became opposed. On the 14th
of October this application was postponed and the parties were
directed by the Court in regard to the further exchange of affidavits
herein. The matter was then set down for hearing for today.



[10]
The parties are ad idem that this application is governed by
Rule 15 of the Rules of the Labour Court, in terms of which the Court
may, on good cause shown, condone any non-compliance with the Rules.
The concept of good cause has been traditionally considered in many
decisions, which authority has also been assimilated in both sets of
Heads of Argument, filed on behalf of the parties. There is thus no
need for me to rehash the trite principles governing applications of
this nature.



[11]
It appears from these authorities that it was incumbent on the
Applicant to furnish an explanation of his default, sufficiently full
to enable the Court to understand how it really came about and to
assess his conduct and motives. In this regard reliance is for
instance placed on the locus classicus Silber vs Ozen
Wholesalers (Pty) Limited
1954 (2) SA 345 (AD) at page 353A,
an authority which has been adopted in numerous decisions by this
court. An Applicant also has to show some prospects of success.



[12]
The Respondent has taken aim at the Applicant’s case and in so
doing, has exposed its weaknesses as follows: It is argued with some
force on behalf of the 2nd Respondent that the Notice of
Appeal was served properly and same was delivered on a Mr Tangeni at
the hostel, principal in Keetmanshoop, the 2nd
Respondent’s former place of employment and where the 2nd
Respondent seems to have resided at the time. This, so it is
submitted, constitutes proper service in terms of Rule 5(2)(b)(ii) of
the Rules. The submissions made in this regard seem to be correct.



[13]
It was then submitted further that the record was only dispatched to
the High Court on the 9th of June, after same had already
been received on the 16th of May 2011. I need to add that
criticism was levelled at the Applicant’s legal practitioner’s
modus operandi and in respect of which it was further submitted that,
given the delay, and given the fact that the record was not
dispatched within the 21 days prescribed, this should have triggered
an application to compel the production of the record.



[14]
It was countered on behalf of the Applicant in this regard, that
various attempts at procuring the record were made from time to time.



[15]
Rule 17(13) of the Labour Court Rules however states that a certified
record must be sent back to the Registrar of the Labour Court not
less than 14 days after its original receipt. These 14 days expired
on 30th May 2011, and the record was then dispatched some
9 days later after its receipt. It seems that the Applicant thus
complied with the requirements of Rule 17(13) in this regard.



[16]
Although the point is taken that no explanation for this delay is
furnished, the Applicant in reply has at least endeavoured to set out
why the preparation of the certified record took some time.



[17]
On 17th June 2011 the Applicant then attempted to serve
the record on the 2nd Respondent. The 2nd
Respondent now takes the point that service should again have taken
place at the Horizon Boys Hostel in Keetmanshoop, the last known
address of the 2nd Respondent and that any attempts at
tracing the Respondent could have been taken much earlier. While it
is indeed so that the record could have been left or served at the
last known address of the 2nd Respondent, as pointed out
by Counsel, in terms of the Rules, it cannot be argued away that the
return of service received, actually and clearly indicates that the
2nd Respondent no longer resided there as “he had
resigned and left Keetmanshoop.”



[18]
The requirement of notice is a fundamental requirement in our law and
although possibly sanctioned by the Rules of Court, I cannot conceive
any court of law to ignore the fact that the record could not
effectively have be served on the 2nd Respondent on 17th
July 2011, and would have thus never have come to his notice. The
Applicant’s attempt to thereafter trace and effect personal
service of the record can, and should not attract any negative
consequences therefore in my view.



[19]
Personal service of the record and notice of appeal was in such
circumstances effected only on 22nd July 2011. That was at
a time that the appeal had already lapsed.



[20]
The Respondent then takes the further point that it took the
Respondent up to 23rd October 2011 to bring this
application. This point is conceded on behalf of the Applicant and no
explanation has been furnished for this further delay. While it is so
that the application was only brought then, it should not be
forgotten that the 2nd Respondent initially gave notice to
oppose the appeal nevertheless, on the 5th October 2011
and then had the opportunity, in terms of Rule 17(16)(b), to, within
a further 21 days, deliver a statement with grounds of opposing the
appeal. It is unknown whether or not the Applicant’s legal
practitioners awaited this event to occur. It is however clear from
the papers that on 2nd September 2011 they received a
letter from the 2nd Respondent’s legal
practitioners, indicating and informing them that the appeal had
lapsed.



[21]
This therefore is indicative of the fact that if the Applicant’s
legal practitioners had not been aware of this fact, that they at the
very latest became aware of the lapsing of the appeal on that date. I
have already alluded to the fact that the further delay is not
explained. This then also forms the high watermark of the 2nd
Respondent’s criticism in regard to the explanation which was
furnished on behalf the Applicant for the lapsing of the appeal.



[22]
It appears immediately from what has been set out above that a
reasonably detailed account of the causes for the delay has been
furnished on behalf of the Applicant. The Court has been given an
explanation and was then in such circumstances able to understand
what the motive of the Applicant’s legal practitioners were in
acting in the way they did. I am not in any manner indicating here
that I find the explanation not open to criticism, but from these
facts it cannot be said that there was a brazen disregard for the
Rules of Court and although the Applicant’s legal
practitioners’ conduct may be criticised, as I have already
indicated, for delaying the matter in their quest to obtain proper
service and to give effective notice to the Respondent and to
thereafter bring an application for the reinstatement of the appeal,
I do not consider this to be the type of conduct that cannot be
condoned.



[23]
More importantly, it cannot be said that there has been a reckless
disregard of the Rules regardless of the consequences, as the history
of this matter proves beyond doubt that the Applicant was throughout
serious and determined in prosecuting this appeal.



[24]
This application is also bona fide and not merely made with
the intention to delay the 2nd Respondent’s claims.
At least I have not understood Counsel on behalf of the 2nd
Respondent to take this point.



[25]
I therefore find, reluctantly I must add, that the Applicant has
satisfied this leg of the enquiry.



[26]
When it comes to the prospects of success, these emerge from the
grounds set out in the Notice of Appeal, as amplified in the Founding
papers.



[27]
In this regard it needs to be kept in mind that an Applicant here
merely has to show such issues and in this regard show such grounds
which are not patently unfounded and which grounds constitute grounds
which, if found on appeal, would constitute valid grounds of appeal.
This minimum hurdle the Applicant overcomes.



[28]
It needs to be taken into account – and this is definitive -
that this Court has previously found such prospects of success to
exist when it considered, and granted the order of 16th
March 2011.



[29]
It appears therefore, and I conclude, that the Applicant has
satisfied the requirements of ‘good cause’.



[30]
It must follow that the condonation sought must be granted.



[31]
As it would appear that the circumstances prevailing at the time of
the granting of this court’s order on 16th March
2011 have not changed substantially, I also deem it fit to reinstate
at least the applicable portions of such order.



[32]
In the result the following orders are made:





    1. The
      Applicant’s non-compliance with Rule 17(25) as read with Rule
      17(19) of the Rules of the Labour Court is hereby condoned.



    2. The
      Applicant’s appeal under case number LCA 21/2011 is hereby
      re-instated.



    3. The
      Applicant is granted five (5) days from date of this Order to amend
      its Notice of Appeal, if it so desires.



    4. The
      2nd Respondent is given 21 days to file his grounds of
      opposition to this appeal - the period of 21 days to run from the
      effluxion of the 5-day period granted to the Applicant to file an
      Amended Notice of Appeal.



    5. The
      Applicant is thereafter afforded a further period of 10 days - such
      period to run from the date of the effluxion of the aforesaid
      21-day period allowed for the filing of the grounds of opposition
      to this appeal - to finalise the prosecution of its appeal.



    6. Paragraphs
      2 and 4 of the Order of Court, granted on 16th March
      2011, are hereby reinstated, pending the outcome of this appeal.





















_________



GEIER
AJ:











ON
BEHALF OF THE APPLICANT MR MUTORWA







Instructed
by: GOVERNMENT ATTORNEYS















ON
BEHALF OF THE 2
NDRESPONDENT ADV I VISSER







Instructed
by: PD THERON & ASSOCIATES