Court name
Supreme Court
Case name
Telcom Namibia Limited v Deyzel and Another
Media neutral citation
[2004] NASC 5











CASE NO. SA 25/2002






IN THE
SUPREME COURT OF NAMIBIA







In the matter between:






TELECOM
NAMIBIA LIMITED APPELLANT











And











LOUIS TOBIAS DEYZEL
FIRST RESPONDENT



DAVID JOHN BRUNI
SECOND RESPONDENT











CORAM: Teek, J.A, O’Linn,
A.J.A. et Gibson, A.J.A.



HEARD ON: 2004/07/02


DELIVERED ON: 2004/10/29




APPEAL
JUDGMENT





O’LINN, A.J.A.:



I: INTRODUCTION: The
appeal is against a judgment of the Labour Court handed down on 1
October 2001. Leave to appeal to this Court had been granted by the
Court a quo on 3 December 2002.







Mr Smuts, assisted by Mr Dicks,
appeared before us for the appellant and Mr Strydom for first and
second respondents.







Mr Strydom, instructed by
Erasmus and Associates appeared for Deysel as from and including the
proceedings before the District Labour Court whereas Mr Hamman
appeared for Telecom before the District Labour Court. Mr Dicks
instructed by Lorentz and Bone appeared for Telecom in the Court a
quo
, and Mr Smuts and Mr Dicks for Telecom before us, as
instructed by Lorentz and Bone. Mr David Bruni, cited as the second
respondent before us, is the Trustee in the insolvent estate of
Deysel and was the second applicant in the Court a quo.
Second respondent was not separately represented in the appeal before
us.







In view of multiple legal
proceedings preceding this appeal, I will hereinafter refer to the
appellant and first respondent respectively as Telecom and Deysel.







II: THE HISTORY OF THE
PROCEEDING PRIOR TO THIS APPEAL



1. Deysel was appointed by the
Telecom as its Regional Manager: Commercial – Central Region on 1
May 1995.







2. On 16 October 1996 Deysel was
suspended pending the investigation of serious allegations against
him.







3. On or about 24 October 1996
Deysel was given notice that he faced a disciplinary hearing on 30
October 1996 on the following charges:







“1. Gross failure to adhere to work regulations in that you
knowingly contravened the company’s suspension policy on your
telephone account by instructing the connection of a new line to your
residence whilst an overdue, unpaid, suspended account remain in
force at the same resident as per Par.3.1.2 (Clause ix) of the
Disciplinary Code.







2. Serious breach of trust in
that you used your position as Area Manager to contravene company
policy for personal benefit by instructing the opening of new service
as well as to effect the issuing of the cellphone to secretary
without authority while an outstanding account remains unsettled as
per Par 3.1.2 (Clause (xii) of the Disciplinary Code.







3. Misuse of company property
for private purposes in that you used a Telecom account at a hotel in
contravention with company stipulations as per Par 3.1.2 (Clause iii)
of the Disciplinary Code.”







4. Deysel did not object to the
charges at any stage during the disciplinary hearing or in the
internal appeal procedure.







5. The disciplinary hearing was
duly held on 30 October 1996. Deysel was found guilty of charges 1
and 3 and the first part of charge 2. The outcome of the
disciplinary hearing was that Deysel was dismissed with immediate
effect and informed of his right to appeal.











6. On 31 October 1996 Deysel
gave notice of his intention to appeal. His reasons/grounds for
appeal were the following:







“REASONS FOR APPEAL:



1. The penalty is too severe in
the light of all the circumstances.



2. First offence.



3. No mitigating factors
considered.



4. The chairman was influenced
by the acessor.”






The appeal was clearly only against
sentence.







7. Telecom gave the Deysel
notice of the date of the appeal hearing, namely 14 November 1996.







8. The appeal was duly
considered by the chairperson of the appeal hearing and was upheld.
The outcome of the appeal was the following:







DECISION FOLLOWING APPEAL



Reverse earlier decision of
appeal due to extenuating circumstances accepted and offering Mr
Deyzel a demotion with two grades down. This however will have to be
accepted by him. Two days granted for consideration.







CLOSURE OF MEETING – FINAL
REMARKS (if any)



The verdict of guilt as passed at the first hearing is not reversed
as Mr Deyzel’s actions around the settlement of the outstanding
telephone account did not inspire confidence and trust considering
the level of responsibility he carries at the Central Coastal
Region.”






It is clear from the above that the
appeal against sentence was upheld and the conviction remained
intact.







9. Deysel was granted two days
to consider the appeal verdict and to indicate his acceptance
thereof. He however failed to respond within the two day period.







10. On 14 November 1996 and by
facsimile Deysel requested the terms of his demotion, which were duly
forwarded to him on the same date.






He was specifically requested to
revert back to the appellant regarding his acceptance of the demotion
by Monday, 18 November 1996.







11. On 15 November 1996 Mr
Pierre Erasmus requested a copy of “the decision taken at the
appeal on Monday the 9th of November 1996
”.







Deysel failed to inform Telecom
by 18th November 1996 whether or not he accepted his
demotion. On 20 November 1996 Telecom referred the matter to its
attorneys and informed Deysel accordingly.















On 22 November 1996 Deyzel was
informed by Telecom’s attorneys, Lorenz and Bone, that, due to his
failure to revert to the appellant by Monday, 18 November 1996, his
services had been terminated.







12. The proceedings in the
District Labour Court
.



On 30 June 1997 the respondent
lodged a complaint under the provisions of section 45 of the Labour
Act, Act 6 of 1992 (“the Act”) alleging that he had been unfairly
dismissed on 16 October 1996, without a fair and proper procedure.







The appellant opposed the
complaint and filed a reply.







12.2 Due to the fact that Deyzel was an unrehabilitated insolvent in
terms of Rule 62(1)(b) of the rules of the Magistrate’s Court
pursuant to being sequestrated by his own attorney Mr Pierre Erasmus,
during February 1997, (before the dispute with Telecom arose)
appellant sought security for costs as it was entitled to in terms of
the Magistrate’s Court Rule.







The respondent provided the
required security on 1 July 1999.







12.3 The aforementioned
complaint served before the District Labour Court, Walvis Bay, on 26
July 1999.







12.4 At the outset of the
complaint hearing the respondent elected to proceed by taking a point
in limine in terms of Rule 29(6) of the rules of the
Magistrate’s Court, which counsel argued is applicable to
proceedings before the District Labour Court.







The points in limine were
articulated by Deysel’s counsel as follows:







(i) The first charge namely that
of gross failure to adhere to work regulations, was a nullity on the
ground that the instructions to connect a new telephone line to a
private residence cannot amount to gross negligence or incompetence
within the meaning of the appellant’s Disciplinary Code.







(ii) An employee can only be
charged with either a common law offence or a statutory offence.
Since charge 2 leveled against the respondent did not fall within one
of these categories, the respondent could not be charged with a
breach of trust.







(iii) The third charge, namely
that of misuse of company property for private purposes, was a
nullity because the property allegedly misused, namely a Telecom
account, cannot constitute “property”.






Furthermore, he argued that insofar
as the appellant wanted to rely on a statutory offence, it should
have referred to the statute and section allegedly transgressed.







12.5 At the conclusion of
arguing his points in limine, Deysel’s counsel urged the
Court to quash the three charges. The Court was not requested to
make a ruling in terms of section 46(1) that he had been dismissed
unfairly or that the disciplinary action was taken unfairly.







12.6 Following argument upon the
point in limine, the Learned Chairperson of the DLC, Mr Amutse
made the following ruling on 27 July 1999:







Having heard the application
in limine by the legal representatives of the complainant in
this matter and the submissions by the legal representatives of the
respondent and having perused the three charges on the basis
of which a point in limine were raised, this Court makes the
following orders:








  1. That the application in
    limine
    is upheld.



  2. That the charges in question
    are quashed.



  3. That this matter is referred
    back to the respondent to institute charges and disciplinary hearing
    against the complainant de novo.



  4. That both parties are warned to
    ensure strict compliance with the District Labour Court rules
    including Rule 6.




Respondent ordered to ensure
that this is done within three (3) months from today. Mean while,
matter postponed sine die pending the outcome of the disciplinary
hearing.”







13. On the same day, 27 July 1999, the Deysel’s legal
representatives requested written reasons from the DLC Chairperson
and more particularly regarding:






“1. For what reason was the matter postponed sine die as the
application was intended to dispose of the matter finally;



2. The effect of the order on the employment of the complainant as he
was suspended with full pay prior to the hearing which led to this
action;



3. The effect of the order should respondent (the appellant) not
comply therewith.”












13.1 On 28 July 1999 the Chairperson supplied written reasons, which
included the following:






“The order is clear. It is not meant or intended to change or
affect anything, right, obligation or cause that existed before
27/7/1999.”






13.2 Following the ruling of the District Labour Court, Walvis Bay
and the further reasons supplied by the Chairperson, Deysel on 27
July 1999 by letter of his attorneys, claimed that he must first be
reinstated by the appellant and receive payment of the amount of
N$513,631.04 (apparently representing the aggregate of his salary and
benefits from the time of dismissal, including a period during which
the respondent had already obtained other employment) before
complying with the order of the DLC.





This claim was repeated on 22 October
1999, again in a letter by Mr Erasmus on the Deysel’s behalf, in
the following terms:






“We believe that the effect of the court order granted on 27 July
1999 is that our client must be paid his salary from date of
“termination” of his employment until date hereof. In
this regard we attach a copy of our letter addressed to Kinghorn
Associates dated 27 July 1999. Kindly forward payment to our offices
prior to the disciplinary hearing commencing.”











This claim was reiterated yet again
on 11 November 1999 by Mr Erasmus in these terms:






“If our client is to be regarded as an employee, your client is
obliged to pay our client to date, including all perks.”






14. When the aforesaid letters were written by Deysel’s attorney,
the respondent had already obtained new employment with effect from 1
July 1999 at Internam Shipping and received a salary including perks,
of N$12 680.80, since at least October 1999.







15. Telecom reconvened disciplinary proceedings after no appeal was
noted within the required time period. Telecom complied and gave
effect to the court order (of the DLC) and duly held the required
disciplinary hearing on 11 November 1999. It was not held strictly
within the three-month period as a postponement of the hearing was
expressly requested by the respondent, which request the appellant
acceded to.







15.1 In compliance with the order of the District Labour Court
delivered on 27 July 1999 and the subsequent postponement of the
District Labour Court matter, Telecom:


redrafted the charges against the
respondent as follows:



CHARGE 1



That you are guilty of fraudulent conduct in that you on the 14th
of June 1996 applied for a subscriber service agreement with MTC, for
an official Telecom cell phone with number 081 127 5949, in which
agreement you brought MTC and TELECOM NAMIBIA under the mistaken
belief that:







(a) the said cell phone would be for the official use of the “private
secretary” at the Walvis Bay office of TELECOM NAMIBIA; and/or



(b) the mentioned “private secretary” would be entitled to the
use of an official Telecom cell phone while knowing that the cell
phone would be used by one M J Feris, who is barred from holding a
cell phone account with MTC due to previous non-payments of her cell
phone account and/or while knowing that the said cell phone would be
used by the said Mrs Feris for her own private use and/or while
knowing that the said Mrs Feris nor the “private secretary” at
Walvis Bay office are mandated by Telecom Namibia to use official
cell phones and that the aforesaid fraudulent conduct induced MTC to
provide the said phone and/or services applied for and further
induced Telecom Namibia to pay the account of MTC for the service
rendered to the aforementioned cell phone, thereby causing MTC a
potential loss and Telecom Namibia to suffer a loss of N$1 467.78.







CHARGE 2



That you are guilty of misappropriation of Telecom Funds in that you
allowed your secretary Mrs Feris to sign an official order for
N$140.00 to pay for alcoholic beverages, that you enjoyed at the
Kalahari Sands Hotel in Windhoek, while knowing that it was against
Official Telecom Policies for employees of Telecom to use Telecom
Funds to pay for alcoholic beverages.







CHARGE 3



That you knowingly contravened and or attempted to circumvent the
official Telecom suspension policy by applying for a second line to
your house in Walvis Bay while the first line to your house was
suspended due to non-payment of your telephone account.















CHARGE 4



That you abused your powers as Areas Manager Coastal Region of
Telecom by allowing your private telephone account to run in arrears
for a period of 10 months (from December 1995 – September 1996) to
the amount of N$3096.75, without suspending the same.







CHARGE 5



That you are guilty of unseemly conduct in that you entered into a
romantic relationship with your secretary Mrs M J Feris and that you
allowed the said Mrs Feris, while having this relationship with her,
to conduct certain official duties, which she was not mandated for
and/or allowing her to enjoy certain official Telecom privileges,
which she would not have been entitled to had she not entered into
the mentioned relationship with you.”






15.2 On 15 October 1999 Telecom gave notice to Deysel of the
disciplinary hearing to be held on 25 and 26 October 1999 at the
Telecom Head Quarters, Windhoek, at 09:00 and informed Deysel of his
rights.






15.3 On 22 October 1999 Deysel’s legal representative, Mr Pierre
Erasmus of the firm Erasmus and Associates, requested a postponement
of the disciplinary hearing for a period of 2 weeks “to prepare and
consult with witnesses and arrange the necessary.” Furthermore, Mr
Pierre Erasmus stated that “the venue is not suitable nor in terms
of the labour practice or company policy. Our client is entitled to
be heard at his place of employment i.e. Walvis Bay.” Mr Erasmus
also confirmed that his firm had been acting for Deysel since the
termination of his services.










Telecom acceded to Deysel’s request
for a postponement as well as a change of the venue of the
disciplinary hearing.






15.4 On 1 November 1999 Telecom’s legal representatives informed
Deysel’s legal representatives as follows:







“We refer to the above matter and our fax of the 22nd
of October 1999 and advise that the hearing shall take place on the
11th and 12th of November 1999 at 09:00 at the
offices of Telecom Namibia in Walvis Bay.”







15.5 Only on 10 November 1999 and after all arrangements had been
made for the disciplinary hearing to be held in Walvis Bay on 11 and
12 November 1999 and furthermore after Telecom’s witnesses and
officials of the liquidator had already travelled to Walvis Bay,
Deysel’s attorneys informed Telecom that he will not be present at
the hearing in view of the fact that Deysel and his attorneys
intended to institute review proceedings against the ruling of the
District Labour Court.






15.6 In compliance with the court
order Telecom proceeded with the disciplinary hearing in Deysel’s
absence and found him guilty on four of the five charges leveled
against him and dismissed him.








16. The proceedings in the
Court below






16.1 On 6 April 2000 Deysel however instituted review proceedings,
seeking only to set aside paragraphs (c) and (d) of the order made on
27th July 1999. This was more than eight months after the
date upon which the order was granted and nearly five months after
that portion of the order sought to be reviewed had already been
given effect to and complied with by Telecom. The application for
review was also lodged 3½ years
after the decision in the first disciplinary hearing.






16.2 Given the fact that the review application was brought out of
time, Deysel applied for condonation in the Court a quo for
the late bringing of the review application.





16.3 Telecom opposed the review
application on several grounds.






16.4 The Court a quo, although expressing reservations in
respect of shortcomings in the respondent’s explanation in support
of the condonation application nevertheless found that respondent
acted upon advice and decided not to penalise him for the conduct of
his legal representatives and granted condonation. The Court a
quo
further held that the chairperson of





the DLC
did not have the power to make the order sought to be reviewed – by
reason of the fact that section 46 of the Act requires the DLC to be
satisfied that an employee has been dismissed unfairly or that
disciplinary action has been taken unfairly before making an order
pursuant to section 46(1)(c). The Court a quo as a
consequence set aside portions (c) and (d) of the ruling of the DLC
and the postponement of the complaint sine die referred to in
paragraph 12.6 supra.





III. THE APPEAL TO THIS COURT


Telecom applied to the Court a quo
and was granted leave to appeal to this Court. The notice of appeal
set out the following grounds of appeal:






“1. That the Honourable President erred in setting aside portions
of the ruling of the Chairperson of the District Labour Court which
are not capable of standing on their own and which were an integral
part and consequential upon the other parts of the ruling which
remained and which had been expressly sought by the first respondent.







2. The Honourable President erred in setting aside the portions of
the order which essentially constituted the implementation of the
orders embodied in (a) and (b) and which portions had already been
given effect to.







3. That the Honourable President erred in setting aside portions of
an order which were integral parts of and consequential upon
incompetent rulings embodied in (a) and (b) of the orders of the
District Labour Court.















4. That the Honourable President erred in finding that the
Chairperson of the District Labour Court did not have the power to
make order (c) by reason of the Chairperson’s incorrect reference
to a section in the Labour Act upon which he relied.







5. That the Honourable President erred in failing to take into
account that the first respondent should have appealed against the
District Labour Court’s ruling instead of reviewing same.







6. That the Honourable President erred in finding that the first
respondent had in the circumstances shown good cause for the
non-compliance with the provisions of Rule 15(2) of the Labour Court
Rules.







7. That the Honourable President erred in finding that Rule 16 of the
Labour Court Rules allowed a more liberal interpretation in exercise
of the Court’s discretion and less rigid adherence to the
prescriptive time limits in Rule 15(2) of the Labour Court Rules by
failing to take into account that Rule 15(2) requires a review being
instituted promptly and in any event within 3 months and that such
time limit is superimposed upon the common law requirement of
bringing a review within a reasonable time.






8. That the Honourable President, in granting condonation, erred by
taking into account the alternative argument of the applicant that
the entire order should have been set aside.”







(IV) DOES THE GROUNDS OF APPEAL CONTAINED IN PARAGRAPHS 6 AND 8
CONSTITUTE QUESTIONS OF LAW AND AS SUCH APPEALABLE






Mr Strydom contended that the points
raised in paragraph 6, 8, 9, 10, 11 of the notice of application for
leave to appeal “are either questions of fact and/or questions of
judicial discretion” and thus do not qualify as questions of law
and





consequently not appealable. In the
notice of appeal filed subsequent to the granting of leave to appeal,
grounds 9-12 were omitted and it is consequently not necessary to
deal with all those grounds when answering the question on whether or
not some of those grounds did not amount to questions of law. Only
grounds 6 and 8, which were repeated in the notice of appeal, are
therefore relevant to this question.





To decide whether or not “good
cause” in terms of section 15(2) has been shown, several rules of
Court have to be considered, interpreted and applied. Such
interpretation and application amount to questions of law.
Furthermore many principles enunciated in our common law and case
law, need to be applied when a Court must consider whether or not
condonation for the late bringing of an application for review is
considered. This is not a case of an unfettered discretion vested in
the Court. The discretion, to the extent that a discretion must be
exercised, cannot be divorced from the pure questions of law which
arise in interpreting the statutory provisions applicable and
applying such provisions and the relevant legal principles, in
deciding whether or not condonation should be granted.














Mr Strydom referred to the decision
by myself in the case of Minister of Health and Social Welfare
Services v Vlasiu
1
wherein I referred with approval to Salmond and said:






“Salmond at 70-71 of his work sets out three classes of questions
that come before a Court of Justice. These are:








  1. Matters and questions of law – that is to say, all that are
    determined by authoritative legal principles;









  1. Matters and questions of judicial discretion – that is to say, all
    matters and questions as to what is right, just equitable, or
    reasonable, except in so far as determined by law.







In the matters of the first kind, the duty of the Court is to
ascertain the rule of law and to decide in accordance with it.







In matters of the second kind, its duty, is to exercise its moral
judgment in order to ascertain the right and justice of the case.







In matters of the third kind, its duty is to exercise its
intellectual judgment on evidence submitted to it in order to
ascertain the truth.” (My emphasis added)





The issues raised in the aforesaid
paragraph 6 and 8 of the notice of appeal comply with the first
category of Salmond’s definition as well as the exception stated in
the second category dealing with discretion and which reads –
“except in so far as determined by law.”2





V. SHOULD CONDONATION HAVE BEEN
GRANTED





1. The applicable provisions of the
Labour Court Rules.







    1. Rule 15(2) provides:





“An application to which this rule applies shall be made promptly
and in any event, within three months from the date when grounds for
the application first arose.”



The
requirements set out in this rule relating to time, standing
alone
, are clearly imperative and mandatory, so that on
application for review which is not brought promptly and which in any
event is not brought within a period of three months from the date
when the grounds for the application first arose, cannot be permitted
or entertained by Labour Court.



This rule
is much stricter than the requirement of the common law which is
applicable to reviews brought before the High Court where no time is
stipulated and which requires a review to be brought within a
reasonable time.






1.2 However, the clear and specific words of Rule 15(2) specially
enacted and applicable only to reviews, must be read in conjunction
with the following Rule 16 which is a general rule dealing
with any non-compliance of the Rules. Rule 16 reads:









“The Court may, upon application and an good cause shown, at any
time –



(a) condone any non-compliance
with these rules;



(b) extend or abridge any period prescribed by these rules, whether
before or after the expiry of such period.”







1.3 The Court a quo also
referred to and apparently relied on Rule 23 of the Labour Court
Rules which the Court stated “puts the matter beyond doubt”.






The
matter referred to as being placed beyond doubt by Rule 23 is
apparently that Rule 16 of the Labour Court Rules “can and must
be interpreted in the same way as Rule 27(1) and (3) of the High
Court Rules,
” which, similar to Rule 16 of the Labour Court
Rules, deal with extension of time, removal of bar and condonation in
general.





In
my respectful view the Court a quo misdirected itself in this
regard, notwithstanding that counsel at the time allegedly being ad
idem
on the correctness of the proposition. I say this because
Rule 23 of the Labour Court rules introduces Rule 23 by stating the
precondition that –






Subject to the Act and these Rules”, – “where
these Rules do not make provision for the procedure to be followed in
any matter before the Court
, the rules applicable to civil
proceedings in the High Court ….shall apply to proceedings before
the Court with such qualifications, modifications and adaptions as
the Court may deem necessary in the interest of all parties to such
proceedings.”








Rule
15(2) of the Labour Court and Rule 16 do provide the procedure to be
followed in respect of the time within which applications for
condonation must be brought and Rule 23 is therefore not applicable
at all. It follows from this that Rules 27(1) and 27(3) of the High
Court are not applicable to this issue. Rules 27(1) and (3) however
are similar to Rule 16 of the Labour Court Rules and decisions on its
interpretation and application are therefore useful in interpreting





Rule
16 of the Labour Court Rules, provided such interpretation gives due
weight to the mandatory and imperative wording of Rule 15(2), laying
down specific time limits for review applications.





Rule
53 of the Rules of the High Court deals with reviews brought to the
High Court. Rule 53 does not lay down any principle of promptness or
any limitation of the time within which a review may be brought in
the High Court. Consequently the common law rule as recognized in
the case law applies, namely that such applications must be brought
within a reasonable time.





It
must be noted that the Rules of the High Court referred to were
promulgated on 10th October 1990, those of the Supreme
Court on 8th October 1990 and those of the Labour Court
subsequently on 22nd April 1994.








Rule
27 of the High Court reads as follows:






“27(1) In the absence of agreement between the parties, the Court
may on application and on good cause shown, make an order extending
or abridging any time prescribed by these rules or by an order of
Court or fixed by an order extending or abridging any time for doing
any act or taking any step in connection with any proceedings of any
nature whatsoever upon such terms as to it seems meet…….








  1. The Court may on good cause
    shown, condone any non-




compliance with these rules.”





The
relevant rule of the Supreme Court is Rule 18 which reads as follows:






“18. The Supreme Court may, for sufficient cause shown, excuse the
parties from compliance with any of the aforegoing rules and may give
such directions in matters of practice and procedure as it may
consider just and expedient under the circumstances.”





Rule
15(2) of the Labour Court Rules enacted in April 1994 thus was a
radical innovation of Rules of Court compared to those of the High
Court and Supreme Court of Namibia and Courts of law preceding those
of the Namibian High Court and Supreme Court, dealing with the
requirements for the condonation of a failure to comply with Rules in
review applications
. It is obvious that Rule 15(2) was intended
to deal with the special case of reviews in Labour Courts and the
need to bring Labour disputes to an expeditious end and so promote
stability and diminish labour unrest.





1.4 It
follows that decisions such as Cairn Executors v Gairn 1912 A
181 at 186 and even Smith NO v Brunmer NO and Another, quoted
in the Civil Practice of the Supreme Court of South Africa, 4th
ed at p555 and relied on by the Court a quo and counsel, do
not afford a complete answer and formula when the Rules 15.2 and 16
of the Labour Court Rules of Namibia must be interpreted and applied.





1.5 I
agree with counsel for Telecom, Mr Smuts that where express statutory
limits are laid down, ….more compelling reasons are required in
order to obtain condonation than where the requirement would be of
mere reasonableness. This is because the Rule-maker had set a
principle of promptness and set an express limit beyond which an
application would not be regarded as prompt.”





1.6 I
also agree with that part of the judgment in Cairn Executors v
Gairn
,
3
referred to supra, where Innes J as he then was said: “Cases might
conceivably arise so special in their circumstances that, in
spite of abnormal delay
, the Court would feel bound to assist the
applicant. But on the other hand the length of the delay and its
cause must always be important (in many cases the most important)
element to consider in arriving at a conclusion.”











1.7 It
seems to me that although the power of the Labour Court to condone
set out in Rule 16 is indeed wide, it should take cognizance of Rule
15.2 and regard the requirements therein set out as a standard to
which it must adhere, unless there are exceptional circumstances
constituting “good cause” to allow condonation.





1.8 For
the rest I adhere to the guidelines (a) –(e) set out in Smit NO
v Brummer NO and Another
4
which read as follows:






(a) A reasonable explanation
for the delay is forthcoming.



(b) the application is bona fide
and not made with intent to delay the other party’s claim;



(c) it appears that there has
not been a reckless or intentional disregard of the rules of court;



(d) the applicants case is not
obviously without foundation; and



(e) the other party is not
prejudiced to an extent which cannot be rectified by a suitable order
as to costs.”






As
far as some of the general principles applied in the Supreme Court in
condonation applications for the failure to comply with requirements
of the Rules of Supreme Court are concerned, I need not go further
than the recent decision of the Supreme Court in Chairperson of
the Immigration Selection Board v Frank and Another
5
where Strydom, CJ inter alia said:














“In considering petitions for
condonation under Rule 18, the factors usually weighed by the Court
include: the degree of non-compliance; the explanation therefore; the
importance of the case; the prospects of success; the respondents
interest in the finality of the judgment; the convenience of the
Court and the avoidance of unnecessary delay in the administration of
justice…..”





The Chief Justice further said:






“A reading of the cases of the Supreme Court of Appeal (in South
Africa) shows in my opinion more than a tendency to follow a hard
line. These cases show that a flagrant non-observance of the Rules
of Court coupled with an unsatisfactory explanation for the
non-observance of the Rules and delays, more often than not ended in
a refusal of condonation. In certain cases the Court declined to
consider the merits of a particular case even though it was of the
opinion that there was substance in the appeal……. A reading of
the cases of the High Court of Namibia shows that the situation is
not different from that in South Africa and the Court has referred
condonation or relief in similar circumstances……”





As to cases where blame is placed on
the legal practitioners of a litigant, the Chief Justice stated:






“Many of the above cases also show that ‘there is a limit beyond
which a litigant cannot escape the result of his attorney’s lack of
diligence or the insufficiency of the explanation tendered. To hold
otherwise might have a disastrous effect upon the observance of the
rules of this Court………















A legal practitioner who fails to comply with the Rules of Court must
give full and satisfactory explanation for the non-observance of the
Rules and any delays that might have occurred. Furthermore a
legal practitioner should also as soon as he or she realizes that a
breach of the Rules has occurred prepare and file an application for
condonation. This presupposes that the legal practitioner knows the
rules and would know when non-observance thereof occurred. Lack of
knowledge due to ignorance of the Rules and failure to inform him or
herself of the provisions of the Rules can hardly serve as an
explanation for failure to apply timeously.
” (My emphasis)





Although I wrote the majority
judgment in which Teek, AJA concurred, we agreed in substance with
the approach articulated by Strydom CJ regarding condonation.
Condonation was however granted because the matter was one of
substantial public interest and the prospects of success were very
good.





The Learned President of the Court a
quo
commented on the argument of counsel for Telecom that in view
of Rule 15(2), review proceedings should strictly adhere to such
limits as follows:






“I think Rule 16 of the Labour Court Rules allows a more liberal
interpretation and exercise of the Courts discretion and a less than
rigid adherence to the time limit prescribed by Rule 15(2).”





The Court however failed to give the
necessary weight to the fact that the Labour Court Rules have
provided for strict limitations as to the time allowed, for the
launching of reviews, whereas the Rules of the High Court and Supreme
Court and








similar legislation preceding its
rules, did not contain such restriction for review applications.





This fact necessitates, a much more
rigid and less “liberal” approach in Labour Court reviews than in
other legislation dealing with condonation applications.






2. The Court a quo’s finding in regard to Deysel’s alleged
reliance on advice from his attorney
.






2.1 “The Court a quo found:



Whatever shortcoming there may be in the applicant’s
explanation of his delay
one thing, however, is clear and that is
that he, rightly or wrongly, acted on advice and the advice,
rightly or wrongly, was given in the course of both parties
attempting, rightly or wrongly, to comply with the Court a quo’s
ruling
.” (My emphasis added)





(i) This dictum is confusing.
However if I understand this dictum correctly, it makes no
distinction between the case where the litigant “rightly acts on
advice and where he “wrongly” acts on advice as long as he acts
on advice; similarly it makes no difference whether the advice was
given “rightly” in the course of both parties attempting –
“rightly or wrongly”, to comply with the court a quo’s ruling
or “wrongly” attempting to comply with the Courts ruling. Surely
it is important








in a condonation matter whether a
litigant has acted rightly or wrongly. The following observations
need be made.





(ii) This approach is inconsistent
with the approach laid down in decisions of Namibian and South
African Courts as reiterated in the recent Supreme Court decision of
Frank and Another v Minister of the Interior, referred to
supra.





2.2 The Court continued:


“Paragraph
37 of Deysel’s affidavit states:






‘37. I am advised and respectfully submit that review proceedings
must be brought within a reasonable time. However, I am also advised
and respectfully submit that a further consideration of this Court
pertains to the issue of prejudice’. And in paragraph 34.5 of
Telecom’s answering affidavit is stated:







“34.5 Quite evidently, at the time when the letters of the 10th
and 11th of November were written, Mr Erasmus was
blissfully unaware that the time for filing of the review application
has already lapsed two weeks prior to that on the 28th
October 1999. I submit that it is clear from this letter that Mr
Erasmus laboured from the impression that the review can be filed
within a reasonable time as is the case with normal civil reviews.
This is corroborated by the fact that the first applicant received
precisely such legal advice as clearly stated in paragraph 37 of his
founding affidavit. I submit that this is the true cause of the
delay, and not the variety of excuses that that the first applicant
now puts forward.”














It is apparent that the Court
misdirected itself in relying on paragraph 37 of Deysel’s founding
affidavit and failing to take cognisance of the preceding paragraph
34 wherein Deysel stated:






“I am advised and respectfully submit that in any application for a
review such an application need to be instituted within three
months
as contemplated in Rule 15(2) of the Rules of the Labour
Court. I am also advised and respectfully submit that the Court by
virtue of the provisions of Rule 16 has powers to, upon application
and on good cause shown, condone any non-compliance with the rules
and may extend or abridge any period prescribed by the rules whether
before or after such period.”





The Court compounded the misdirection
by relying on paragraph 34.5 of Telecom’s answering affidavit where
an argument was put forward based on paragraph 37 of applicant’s
affidavit, to the effect that Erasmus was ignorant of Rule 15.2 and
that that was the real reason for the delay. Obviously Telecom’s
legal advisors and representatives, also failed to take cognisance of
paragraph 34 of Deysel’s founding affidavit and as a result their
argument in this regard is also fatally flawed.





It must be accepted in the light of
the foregoing that both Deysel and his attorney knew quite well what
the Rules of the Labour Court require. There is no basis for the
excuse of ignorance by either and none of them actually put that
excuse forward in their affidavits before Court.





2.3 The Court continued:



“The applicant has not been shown to have recklessly disregarded
his obligation ……… generally in cases where condonation of
non-compliance with the Rules of Court is sought, the Court will not
highly penalize the litigant on account of the conduct of his
attorney.”





The principles applicable where a
legal representative is the cause of the delay, has been set out
authoritatively in the Frank decision of the Supreme Court. Although
I am not certain whether the word “highly” was intended in the
above dictum of the Court a quo, it is in my respectful view
clear that the principles set out in the Frank case in this regard
are correct and binding and in so far as the Court a quo
obviously did not apply those principles, it had misdirected itself.





The question is then to what extent,
if any, was the legal representative of Deysel, Mr Erasmus to blame
for failure to comply with Rule 15(2). It seems to me that no case
was made out by or on behalf of Deysel of alleged negligence and/or
incompetence of his legal representatives, as the sole or
contributory cause of Deysel’s failure to comply with the Rules.
The only possible blame alleged by either Deysel or Erasmus relates
to Deysel’s financial position.





2.4 The Court formulated the alleged
financial predicament as follows:



“The other consideration to take account of in this regard is that
applicant had prior to the hearing before the District Labour Court,
been declared insolvent at the instance of the same legal
practitioner







who continued to represent him in proceedings in the Lower
Court and thereafter. As a result the proceedings in the Lower
Court, were held up for more than a year until security for costs in
the sum of N$15.000 was given. This has a direct bearing on the
question of prejudice that respondent complains it had suffered or
will suffer should the application for condonation be granted.”





I deem the following comments
necessary:





(i) Although Deysel admitted that he
had been reemployed already before July 1999 and permanently
appointed by his new employer since October 1999 at a salary of at
least N$10.000 per month, neither he nor his attorney gave an account
at any stage of his income and expenditure since being discharged by
Telecom. It was later established that in addition to the N$10.000
he was entitled to perks amounting to N$2 680.80, totaling N$12
680.80. This gravely reflects on his openness, credibility and
bona-fides, particularly when financial problems are advanced
for not complying with Rules 15(2) of the Rules of the Labour Court.





(ii) The fact that Deysel had been
declared insolvent at the instance of the same legal
practitioner who continued to represent him in the Lower Court and
thereafter
” is an anomaly of their own choosing, for which
Telecom could not take responsibility. Nevertheless it is claimed
that as a result, the proceedings in the lower Court were held
up for more than a year
until security for costs in the sum of
N$15 000 was given.”








(iii) It was not explained why his
legal representative Erasmus and Company had applied for his
sequestration, why he was sequestrated, why the same legal
practitioner continued to act for him; whether or not he continued to
pay that representative; whether that representative refused to draw
the review documents unless he was paid; why he did not obtain the
services of another legal representative or even represented himself.





(iv) Telecom had the right to obtain
security for costs and it was prudent for Telecom, being a
parastatal, to apply for security for costs, also considering the
long delays.





(v) Security for costs would indeed
have a bearing on prejudice that Telecom claimed it would suffer if
condonation was granted, but surely that is not the only prejudice
that Telecom could suffer. Aspects of prejudice which are not taken
care of by payment of security for costs, are for instance the
following:






(a) It was necessary in the interest industrial stability and peace,
that litigation and other action between employers and employees are
brought to a conclusion expeditiously and not be dragged out
indefinitely. That is also why a rule such as Rule 15.2 has been
enacted to lay down a specific time frame within which review
applications had to be brought.







(b) Should applicant Deysel succeed, the possible financial
compensation to which he would be entitled, would increase with the
time which had elapsed in the meantime.







(c) Telecom had the right and the need to fill the vacancy left by
Deysel’s dismissal and to reshuffle personnel. Undue delays in
bringing the dispute with Deysel to finality, hampers Telecom’s
ability to do this. When the application for review was launched on
6th April 2000, 3½ years had already passed since
the first disciplinary hearing when Deysel was dismissed.





2.5 The Courts’ statement: “The
applicant has not been shown to have recklessly disregarded
his obligation
.”





The onus was on the applicant Deysel
to satisfy the Court on a balance of probabilities that the
requirements for condonation as herein set out, have been met.6
It appears that the Court placed an onus on Telecom, to satisfy
these requirements. If that is so, the Court has misdirected itself.











2.6 The last reason put forward by
the Court a quo for having granted condonation, is stated as
follows:






“In determining this part of the application, I have also had
regard, as Mr Strydom suggested in his heads of argument on behalf of
applicant, to the alternative relief prayed for by respondent in his
answering affidavit, namely that the entire order of the Chairperson
of the District Labour Court be set aside and the matter be referred
back for a full hearing on the merits. In these circumstances I am
prepared to condone the non-compliance with the rules by applicant,
and I so order.”





Mr Smuts submitted that this reason
by the Court a quo amounts to a misdirection.





I agree with Mr Smuts counsel for
Telecom in this regard. I could understand the Court’s argument if
used to satisfy the requirements of reasonable substance in
the appeal on the merits, but I fail to see the logic or reason for
using the fact of a submission made by counsel in the alternative
relating to the merits, to overcome the obstacle created by Rule
15(2) of the Rules.





3. When considering the guidelines
stated in Cairn Executors v Gairn, supra, the delay in the
instant case can indeed be described as abnormal, being at
least 5 months later than the three months which is the outer limit
laid down by Rule 15(2) from the time when the grounds for the review
first arose. Furthermore the








launching of the application
was a gross failure to make the application promptly.”
It is certainly also not a case “so special in its
circumstances, that in spite of abnormal delay, the Court will feel
bound to assist the applicant
.”





When the guidelines laid down in the
Smith NO v Brumner NO and Another are considered, the
application should have failed because the applicant has not shown
that –





(a) A reasonable explanation for the
applicants delay is forthcoming;



(b) the application is bona fide and not made with intent to delay
the other party’s claim;



(c) it appears that there has not been a reckless or intentional
disregard of the Rules of Court;



(d) the other party is not prejudiced to an extent which cannot be
rectified by a suitable order as to costs.





In my respectful view, the applicant
Deysel failed to meet any of these requirements.





There are also no exceptional
circumstances justifying such an abnormal delay measured by the
requirements of Rule 15(2).





In the instant case there certainly
was a flagrant non-observance of the Rules of Court coupled with an
unsatisfactory explanation for the non-observance of the Rules,
which, more often then not, ends in a refusal of condonation”, as
formulated in the decision by this Court in the Frank matter referred
to supra. Condonation is therefore likely to be refused.





The final decision on whether or not
condonation should have been granted will be made after considering
the merits of the review case.





(IV) THE MERITS OF THE REVIEW


1. The review application was
preceded by:



  1. A disciplinary hearing wherein
    Deysel was charged, convicted and sentenced on three charges. This
    was followed by an appeal, only against the sentence of dismissal.
    The appeal was partially successful as to sentence only. Deysel was
    represented at these proceedings. At no stage was any objection
    made against the charges.







  1. A complaint by Deysel to the
    District Labour Court dated 30.6.1994 in which the following
    particulars were given.



Particulars
of complaint:








Unlawful
dismissal on 16th October 1996 without a fair and proper
procedure, without fair reason and without proper cause
.


Statement
of relief claimed:


Reinstatement,
with salaries and benefits paid retrospectively from 1st
December 1996.


Amount of
money claimed N$14 500 per month from 1st December 1996
plus additional benefits (only where appropriate and if known to
complainant.”






  1. On the same date notice
    of hearing was already given for 28th August 1997.







  1. On the same date that the
    complaint was received by the Clerk of the Court, the said clerk
    referred the complaint to the Labour Inspector in terms of Rule
    6(1).







  1. Telecom did file a reply
    opposing the complaint in terms of Rule 7 on 11.7.1997, wherein the
    Telecom insisted that both the initial disciplinary hearing as well
    as the appeal proceedings was done by a fair procedure and for a
    valid and fair reason and found guilty and sentenced of a fair
    hearing.







  1. There is no record of any steps
    taken by the Labour Inspector or any conference or other effort to
    settle the issues and also no notification by the Labour Inspector
    to the District Labour Court that the matter could not be settled
    and also no record of the facts and records that were admitted or
    not admitted. It is therefore obvious that an essential part of
    Rule 6 was not complied with prior to the hearing.







  1. At the hearing in the District
    Labour Court Telecom was suddenly confronted by counsel for Deysel
    with certain points in limine amounting to an application
    that the charges levelled at the first disciplinary hearing and
    again considered in the appeal on sentence, be quashed.






The points in limine have been
set out in paragraph 12.4 of Section II supra and need not be
repeated. It amounted however to an alleged conflict between the
facts alleged at the disciplinary hearing held by Telecom and
sections of an alleged disciplinary code referred to in the charges.
There were three such charges against Deysel.





2. The relevant part of Deysel’s
application for review read:



Reviewing and setting aside part of the ruling……











(c) That this matter is referred back to the Respondent to institute
charges and disciplinary hearing against complainant de novo -



(d) That both parties are warned to ensure strict compliance with the
District Labour Court Rules including Rule 6.







Respondent is ordered to ensure that this is done within three (3)
months as from today
. Meanwhile matter postponed sine die
pending the outcome of the disciplinary hearing (The application
stated that this part was irregular and also in contravention with
the Constitutional rights of the applicant).






Costs of the application (only in the event of the matter
being opposed.”



Deysel did not complain about the part contained in paragraph (a) and
(b) of the order. These two paragraphs read:






“(a) that the application in limine is upheld;



(b) that the charges in question are quashed.”





3. None of the parties, nor their
counsel or the Court a quo, referred at all to an important
part of the Learned Magistrate’s ruling that “both parties are
warned to ensure strict compliance with the District Labour Court
Rules including Rule 6. Rule 6, read with Rule 7 is an integral and
mandatory procedure provided for in the Rules to encourage, through
the mediation rôle of the Labour
inspector, an expeditious, inexpensive and conciliatory solution to
any labour dispute.





Rule 6 reads as follows:






“6(1) Upon the filing of a complaint, the clerk of the court shall,
unless good grounds exist not to do so, refer the complaint for
settlement or further investigation to a labour inspector (form 4).











(2) The complainant and respondent shall be informed (form 5) of the
date and place of any conference for the purposes of subrule (1), by
the labour inspector.







(3) The parties shall co-operate with the labour inspector and
attempt to settle their dispute.







(4) In the event of a settlement, the terms thereof shall be reduced
to writing by the labour inspector, signed by the parties and filed
with the clerk of the court not later than three days prior to the
date of the hearing.







(5) Upon agreement of the parties, the terms of the settlement may be
made an order of court.







(6) In the event that a settlement cannot be reached, the parties
shall co-operate with the labour inspector to identify such facts and
documents relevant to the complaint or to the defence thereto which
are not in dispute and a list of facts and documents so agreed upon,
if any, shall be prepared by the labour inspector, signed by the
parties and filed by the labour inspector with the clerk of the court
not later than three days prior to the date of the hearing, or if no
such facts or documents can be agreed upon, a notice to the court to
that effect by the labour inspector shall be so filed with the clerk
of the court.”





The rule provides not only for a
settlement procedure and the making of any settlement an order of
Court, but a procedure in the form of a pre-trial conference, in the
case where a settlement of the dispute is not reached, to enable
agreement on the facts and documents not in issue. The rule further
provides for a notice by the labour inspector to the Court if no
agreement could be reached on such facts and documents.





It is obvious that no legal
representatives need be involved in complying with Rule 6, since the
labour inspector is entrusted with a central and impartial role, but
legal





representatives are not excluded. In
this regard Rule 10(3) provides for free representation of the
complainant by a person designated by the Permanent Secretary:
Labour and Human Resources Development.





It seems to me to follow that a
dispute is not ready for hearing before the District Labour Court if
Rule 6 has not been complied with. That probably is the reason why
the Learned Chairman of the District Labour Court decided to include
the order in his ruling that both parties must strictly comply with
this Rule within the period of three months from the date of his
order, and by implication, before the matter is again set down for
hearing if the disciplinary hearing does not conclude the matter to
the satisfaction of the parties.





4. The Code of conduct and the
points in limine


Mr Strydom built his whole argument
contained in his “points in limine” on the alleged Code of
Conduct and persisted with that approach in the appeal before us.





The Code was represented by him as a
codification by the employer of all the disciplinary offences with
which an employee could be charged by the employer and any alleged
offence not numbered and worded in accordance with this code is a
nullity. Unfortunately the full alleged code was never produced in
Court by any of the parties to enable the various tribunals to
understand and interpret the nature





of the Code. The small part which
was produced and which became part of the record on appeal was
illegible in part.





The problem had its origin in the
Telecom Disciplinary Tribunal where Deysel first appeared on three
charges which were obviously drafted by a person without professional
skills in matters of law and who misunderstood the nature and purpose
of the code. The charges as formulated read as follows:






“Charge 1: Gross failure to adhere to work regulations in
that you knowingly contravened company’s policy on your telephone
amount by instructing the connection of a new line to your residence
whilst on overdue, unpaid, suspended amount remain in force at the
same residence as per paragraph 3.1.2 (Clause1x) of the
Disciplinary Code
.







Charge 2: Serious breach of trust in that you used your
position as Area Manager to contravene company policy for personal
benefit by instructing the opening a new service as well as to effect
the issuing of cellphone to secretary without authority while an
outstanding amount account remains unsettled as per paragraph
3.1.2
Clause (xii) of the Disciplinary Code)







Charge 3: Misuse of company property for private purposes in
that you used a Telecom account at any hotel in contravention with
company stipulations as paragraph 3.1.2 (Clause iii) of the
Disciplinary Code
.” (My emphasis added)





Telecom’s legal representatives
argued in everyone of the legal proceedings that the reference to the
wrong code number was a technical error and not a matter of
substance; that the existence of a code, was a mere guide and did not
prevent the





employer from charging the employee
for breaches of discipline not contained in the said code.





The part of the so-called code relied
on by Deysel and his legal representatives appear in Volume 4,
paragraph 368-370. The headings and specific paragraphs of the
“Code” relevant to the original three charges before the two
aforesaid disciplinary hearings, are as follows:











































































Nature
of Offence


consideration,








PROPOSED ACTION



The proposed action should
not



automatically be imposed.
The nature



and circumstances of each
individual



case should be taken into
prior to



making a decision.
Therefore, the



proposed code serves only as
a



guideline.










First


Offence



Second
Offence



Third
Offence



Fourth
Offence



Comments
and/or policy guidelines



(iii)
Misuse of company property for private purposes (which is theft)








(ix)
Gross negligence or incompetence, which shall mean failure to
adhere to or execute work according to work standards and/or
regulations or any such action or failure to act, contrary to that
of the reasonable employee with serious or potentially serious
consequences for the company





(xii)
Should any employee commit a law offence whilst on and/or duty,
the company shall be entitled to take disciplinary action against
such employee, for such an offence and on such grounds






Dismissal
of final written warning











Dismissal
or final written warning






































The
disciplinary action will depend nature and circumstances of the
case






Dismissal
if a final written warning was issued





Dismissal
if a final written warning was issued
































See
comments





































































See
comments







With
regard to the second offence, the comments under “proposed
action” should be taken into


account
























































Disciplinary
action will depend


on the
nature and circumstances of the case, well as on the previous
record









The following features of the Code
must be noted:



(i) Under the heading “PROPOSED ACTION” it is stated: “Therefore,
the proposed code serves only as a guideline.”







(ii) The first heading in the first block – “nature of offence”,
is a broad indication of the “nature” of the offence, not an
attempt at precise










definition
and is borne out by the loose and somewhat confusing descriptions
which follow in that column.







(iii) The breaches of discipline is not restricted to, law offences
or contraventions of the criminal law and/or of statutes and the
common law.


(All the
contraventions in the “Code” which appear over three A4-size
pages on p368-370 of Vol. 4 are not reproduced herein in order to
save space.)







(iv) The argument by the legal representatives of Telecom from the
very beginning of proceedings in the District Labour Court and
continued in this Court, is in my respectful view correct, but it can
be taken much further. In my respectful view, the indications above
stated are that the “Code” referred to was never intended as a
list of contraventions, and certainly not as an exhaustive list, but
rather as a set of guidelines for the sanction to be imposed in case
of conviction for a broad category of disciplinary infractions.







(v) If the references to Clause (ix) of the Code in charge 1, Clause
(xii) of the Code in charge 2, and Clause (iii) of the Code in 3 are
left out, the remaining part of each charge where the alleged facts
are set out, make






complete
sense and suffice to show what the Deysel had allegedly done wrong.






No wonder that Deysel and his
representatives raised no objection to the charges at the two
disciplinary hearings and took issue with Telecom’s representatives
on the facts, as set out in those charges.





It will be noted that that is
precisely what was done at the disciplinary rehearing by Telecom
ordered by the District Labour Court where the charges were redrawn
and the reference to the Code left out. There again the charges made
sufficient sense in a disciplinary tribunal, where the employer is
requested by section 45(1) not to dismiss an employee without a
valid and fair reason and not in compliance with a fair procedure
.





A disciplinary hearing in the form
such as conducted by Telecom in the instant case, is not even
strictly necessary, as long as the dismissal is not without a valid
and fair reason and is in compliance with a fair procedure.





Section 46 of the Labour Act defining
the task of the District Labour Court when a complaint is lodged with
it by an employee that such employee has been dismissed unfairly or
that disciplinary action has been taken unfairly, provides that the
said





Court may make certain orders, only
if such court “is satisfied that such employee has been
dismissed unfairly or that such disciplinary action has
been so taken unfairly
”.





Points in limine to a charge
sheet of the nature taken in the instant case on behalf of Deysel,
appears to be foreign to the Labour Act and the principles and
procedures therein contained for the settlement of Labour Disputes,
more so where there was no dispute about the formulation of the
charges at the Disciplinary tribunals where the Deysel was confronted
with the charges.





Mr Strydom also relied throughout on
what he called trite law namely that where the Rules of the District
Labour does not provide a procedure, the Rules of the Magistrate’s
Courts will apply. The appropriate Rule of the Magistrate Court
Rules on which he relies for his action is subrule (6) of Rule 29.





Now Rule 26 of the Rules of the
District Labour Court reads as follows:






“26. Subject to the Act and these rules, where these rules
do not make provision for the procedure to be followed in any matter
before the court, the rules applicable to civil proceedings in
magistrates’ courts made in terms of section 25 of the Magistrates’
Courts Act, 1944 (Act 32 of 1944), shall apply to proceedings before
the court with such qualifications, modifications and adaptions as
the chairperson may deem necessary in the interest of all the parties
to such proceedings.” (My emphasis added)






Rule 29(6) of the Rules of the Magistrate Court reads as follows:







“When questions of law and issues of fact arise in the same case
and the Court is of the opinion that the case may be disposed of upon
the questions of law only, the Court may require the parties to argue
upon these questions only and may give final judgment without dealing
with the issues of fact.”





The fundamental requirements in Rule
26 of the Rules of the District Labour Court for Rules of the
Magistrate Court to become applicable, are thus:






(i) “Subject to the Act and these Rules, where these
rules do not make provision in any matter before Court
,”







(ii) The rules applicable to civil proceedings in Magistrate
Courts shall apply;







(iii) with such qualifications, modifications and as the
Chairperson deem necessary in the interest of the parties in
such proceedings.







The following observations apply:







Ad (i)


The rules of District Labour Court
are always subject to the Labour Act which provides in Part (IV) for
the establishment of the Labour Court and District labour Court and
in section 22 for the making of the Rules of the District Labour
Court.





Section 19 of the Labour Act 6 of
1992 provides, inter alia, for the jurisdiction and powers of
District Labour Courts. Subsection 1(a) of section 19 provides that
the District Labour Court shall have jurisdiction to make an order
against, or in respect of, the respondent or the complainant as the
case may be, which it is empowered to make under any such
provision of this Act
. The only order it can make however when a
complaint is lodged that an employee was unfairly dismissed or that
disciplinary has been taken unfairly, are those contained in
subsection (1) of section 46 and then only when the District Labour
Court is satisfied that the employee/complainant was dismissed
unfairly or that such disciplinary action was taken unfairly, the
proof of which lies on the employee/complainant.





These provisions appear to leave no
scope for points in limine taken before the District Labour
Court to quash charges laid and decided upon in the proceedings
before tribunals created by employers to adjudicate on those charges.





In my respectful view the aforesaid
provisions of the Labour Act itself, does not allow an application
for quashing of charges in the form of points in limine
through the back door of Rule 26 of the District Labour Court read
with Rule 29(6) of the Rules of the Magistrates Court as was
attempted in the instant case.





Ad ii


An application in limine to
quash charges, is part of criminal procedure, not part of “civil
proceedings” in Magistrate’s Courts.





This point in itself is a conclusive
reason for not allowing applications to quash charges in the form of
points in limine.





That the points in limine to
quash was completely misconceived is further borne out by a
comparison with the provisions in the Criminal Procedure Act for
points in limine to quash charges.





Section 85 of Act 51 of 1977
provides:



“85. Objection to the charge –



(1) An accused may, before pleading to the charge under section 106,
object to the charge on the ground -




  1. that the charge does not comply with the provisions of this Act
    relating to the essentials of a charge;



  2. that the charge does not set out an essential element of the
    relevant offence;



  3. that the charge does not disclose an offence;



  4. that the charge does not contain sufficient particulars of any
    matter alleged in the charge; or



  5. that the accused is not correctly named or described in the charge:








Provided that the accused shall give reasonable notice to the
prosecution of his intention to object to the charge and shall state
the ground upon which he bases his objection: Provided further that
the requirement of such notice may be waived by the attorney-general
or the prosecutor, as the case may be, and the court may, on good
cause shown, dispense with such notice or adjourn the trial to enable
such notice to be given.







(2)(a) If the court decides that an objection under subsection



(1) is well-founded, the court shall make such order relating to the
amendment of the charge or the delivery of particulars as it may deem
fit.







(b) Where the prosecution fails to comply with an order under
paragraph (a), the court may quash the charge.”






Section 86
provides that the charge may be amended and reads as follows:







“86. Court may order that charge be amended.



(1) Where a charge is defective for the want of any essential
averment therein, or where there appears to be any variance between
any averment in a charge and the evidence adduced in proof of such
averment, or where it appears that words or particulars that ought to
have been inserted in the charge have been omitted therefrom, or
where any words or particulars that ought to have been omitted from
the charge have been inserted therein, or where there is any other
error in the charge, the court may, at any time before judgment, if
it considers that the making of the relevant amendment will not
prejudice the accused in his defence, order that the charge, whether
it discloses an offence or not, be amended, so far as it is
necessary, both in that part thereof where the defect, variance,
omission, insertion or error occurs and in any other part thereof
which it may become necessary to amend.







(2) The amendment may be made on such terms as to an adjournment of
the proceedings as the court may deem fit.







(3) Upon the amendment of the charge in accordance with the order of
the court, the trial shall proceed at the appointed time upon the
amended charge in the same manner and with the same consequences as
if it had been originally in its amended form.







(4) The fact that a charge is not amended as provided in this
section, shall not, unless the court refuses to allow the amendment,
affect the validity of the proceedings thereunder.”











It is clear from the above provisions
that:





(i) There is no provision in the
District Labour Court Rules to incorporate proceedings as provided
for in Sections 85 and 86 into District Labour Court procedures and
obviously the disciplinary tribunals and procedures for disciplinary
action taken by employers are not required to follow these
procedures.





(ii) It is also obvious that in the
instant case before the District Labour Court, no advance notice as
provided in the proviso to section 85 was given by or on behalf of
Deysel prior to raising the points in limine.





(iii) Even if an objection to a
charge is found by the Court to be well founded, the Court may order
amendment or the provision of particulars. When the
prosecution fails to comply with such order, the Court may quash the
charges.





The Court could even order such
amendment and adjournment until amendment is made and allowed, in the
case where the charge “is defective for the want of any essential
averment” or even in the cases where the charge as formulated does
not disclose an offence. Another remedy where a charge lacks
sufficient particulars is for the Court to order further particulars.








The main thrust of these provisions
is for charges to be rectified if defective and the case to continue
on the merits, rather than allow technical objections to thwart the
course of justice. The argument by counsel for a final decision in
the case on the grounds of their objections, find no support even in
the more stringent provisions of the Criminal Procedure Act.





The Rules of the District Labour
Court does not allow the incorporation of the criminal law procedures
into the procedures of the District Labour Court. What Deysel and
his legal representatives contended for, was an even stricter and
harsher regime for District Labour Courts than that applicable in
Criminal courts.





To take the points before the
District Labour Court and not before the employers disciplinary
tribunals, is a further absurdity with no basis in Labour law. The
District Labour Court was thus used as a sort of Court of Review or
appeal, but with the distinction that the defects in the charges was
never an issue before the tribunals from which the appeal and/or
review is lodged. Logic and plain common sense also demands that
alleged defects in the charges before the Disciplinary Tribunals
cannot be raised for the first time as a complaint in the said
“appeal” or “review”.











5. The points in limine as
articulated by Deysel’s counsel, even if taken before an
appropriate tribunal, was furthermore defective in the following
respects:





(a) Ad Chapter II, paragraph
12.4, point (i) referring to the first charge:





The charge of “gross failure to
adhere to work regulations” and the facts given in support of the
charge, could not become a nullity merely because there was no label
for it in the Disciplinary Code or if the label given was not
accurate.






(b) The attack on charge 2, alleging a breach of trust, that it was a
nullity because it was “neither a common law offence nor a
statutory offence” and as such, not expressly provided for in the
Code, is again without substance.





The “Code”, properly interpreted,
does not restrict disciplinary infractions to only those which
constitute common law offences or statutory offences. A breach of
trust is in any event a well-known ground in the common law for an
employer to take disciplinary action against an employee.






(c) The attack on the third charge, namely that the charge was a
nullity because it was based on the code providing for the “misuse
of the employers










property”,
and because “a Telecom account” at an hotel cannot be regarded as
“property”, is again without substance inter alia because:






(i) The socalled “Telecom account”
was apparently an arrangement whereunder Telecom could buy or acquire
certain goods or services at such hotel on credit, and as such
the facility could be described as property, even though in
the form of an incorporeal right of Telecom.





In my view, an employee who then
makes use, without authority, of such credit facility to pay for the
accommodation and drinks of him and his girlfriend, probably amounts
to an abuse of the employers property.





(ii) The objection is further based
on the alleged fact that the label of “misuse of the employers
property” referred to in the “Code” does not apply to the
alleged conduct of Deysel.





Again the conduct alleged was clearly
set out and even if the label was not correct, it was not a fatal
defect in Disciplinary proceedings.





6. Apart from the points in
limine
, there were no other complaints about the procedure
applied by Telecom, no case was made out at all that the procedure
was





otherwise unfair. The penalty
imposed in the first disciplinary proceeding was not fair and this
was acknowledged by the employer’s appeal tribunal. When the
sanction was changed on appeal, there was no further ground, apart
from the points in limine, relied on by Deysel and his legal
representatives.





If Deysel and his legal
representatives dealt with the merits before the District Labour
Court, or the subsequent rehearing before the Telecom’s
Disciplinary Tribunal, the outcome may have been different. But it
would be wrong for me to speculate on such prospects.





7. The procedure followed by the
legal representatives of Deysel, prevented them from disputing the
facts as laid before the two hearings of Telecom’s Disciplinary
Tribunals. These facts and the findings thereon by the Disciplinary
Tribunals, are the facts and findings on which the District Labour
Court had to decide, once the dispute was ripe for hearing, whether
it was satisfied in terms of section 45(1) read with section 46 of
the Act whether or not the employee/complainant was dismissed
unfairly or that the disciplinary action taken was taken unfairly.














Section 46(1)(b)(iii) provides that
where the District Labour Court finds that disciplinary action was in
fact taken unfairly, it could issue an order in terms of which,


“…the matter is referred back
to the employer to reconsider any disciplinary action or disciplinary
penalty to be taken or imposed upon such employee in accordance with
any guideline, if any, laid down by the Court and specified in such
order
;” (My emphasis added).





Section 46(1)(c) further provides
that the District Labour Court, once it had found that it was
satisfied that the complainant/employee was dismissed unfairly or the
disciplinary action was taken unfairly, “make such other order as
the circumstances may require.”





Rules 29(4), (5) and (6) relied on by
the Chairperson of the District Labour Court confirms his wide
discretion, and supplements Section 46(1) of the Labour Act in this
regard.





However, where he referred to Section
44(i) and 53(e) of the Labour Act in his reasons supplied on request
by Deysel’s legal representatives, he clearly misdirected himself
because those sections are clearly not relevant to the dispute in
this case.





The Learned Chairperson also erred in
not making a specific and express finding on the issue of whether or
not the complainant was unfairly dismissed or whether or not an
unfair procedure was followed.





If one however infers that the
Chairman was satisfied, in view of the application made in the course
of the application for quashing, that the complainant was dismissed
in the course of an unfair procedure, then he would have been
entitled to make the order which he in fact made in terms of section
46(1)(b)(ii) and/or 46(1)(c), read with Rule 6 of the Rules of the
District Labour Court.






(VII) THE LABOUR COURT’S REASONS FOR UPHOLDING DEYSEL’S REVIEW
ON THE MERITS






The Learned President of the Court
motivated his judgment on the merits as follows:






“Neither in his order nor in his reasons subsequently furnished did
the District Labour Court make such a finding, i.e. that the
applicant had been so dismissed unfairly, or that the disciplinary
action taken against him had been so taken unfairly. In that regard
the Chairperson of the District Labour Court exercised a power he did
not have in regard to paragraph (c) and (d) of his ruling and,
consequently, that part of the ruling falls to be set aside.
(Section 20(1)(a) of the High Court Act, 16 of 1990; Section 18(c)
Labour Court Act of 1992.











In his heads of argument Mr Dicks for respondents supports the Court
a quo’s ruling as far as paragraph (c) and (d) thereof and
says that the Chairperson was entitled to make the order in terms of
Section 45 and 46(1)(c) of the Act. My finding above that without
the condition precedent in Section 46(1) being fulfilled, the Court a
quo
had no power to make the order in terms of section 41(1)(c)
disposes of this contention. Nothing more need be said of the
argument.”





The only reason why the Court a
quo
dismissed Mr Dick’s argument about paragraph (c) and (d),
was that the precondition for jurisdiction was not fulfilled in that
a finding in terms of section 46(1) was not made.





I prefer to say, that no express
finding was made in terms of section 46(1) but that such finding may
be inferred from the fact that the Chairperson upheld the points in
limine
, which he could only do if he was satisfied that the
disciplinary action was taken unfairly. I do not however wish to
express a final view in this regard.





Suffice to say, that if the failure
to make an express finding in terms of section 46(1), removed the
District Labour Court’s jurisdiction to have made the orders in
paragraph (c) and (d) (i.e. the referring back for a rehearing and
the postponement sine die) then it also removed its
jurisdiction to have made the order (a) and (b), upholding the point
in limine as to the quashing of the charges. What is good for
the gander is good for the goose. The Court a quo however
justified this part as follows:









“The further attack on the Court a quo’s ruling in
paragraph (a) and (b) thereof is based on the contention that the
Court was wrong to rule that the charges brought against applicant in
the disciplinary proceedings conducted by respondent was bad; that
the chairperson was wrong to uphold the point in limine taken
by Mr Strydom in that Court. Again this is a matter on which
respondent was entitled to appeal on the basis either that the point
was not a point of law in terms of Rule 29(6) of the Magistrate
Court’s Rules (as Mr Dicks says in paragraph 42 of his heads of
argument) or that charges for the disciplinary hearing need not be
drawn with the formality or “precision of an indictment in a
criminal trial” (as Mr Dicks labours to demonstrate in paragraph
34-42 of his heads of argument).







In the result all that this Court can do is to grant the
relief as prayed in applicant’s Notice of Motion. It is
accordingly ordered that the part (c) and (d) of the Ruling by the
Chairperson of the District Labour Court made on 27th July
1999 are hereby set aside.”





If I understand the learned President
of the Labour Court correctly, the only reason why he did not order
that the whole order of the District Labour Court, including
paragraph (a) and (b)
, be set aside, is because Telecom did not
appeal to the Labour Court. This was also in response to the
argument by Mr Dicks before the Labour Court, that if applicant
Deysel followed the correct procedure, namely the appeal proceedings,
Telecom could have cross appealed. Because Deysel resorted to review
procedure, Telecom was constrained to raise this question in their
opposing affidavits. It must also be remembered that even Mr
Strydom, counsel for Deysel, argued in the alternative, that the
whole order be set aside.














I do not find it necessary to decide
in this appeal whether or not the applicant Deysel should have
appealed to the Labour Court, instead of instituting review
proceedings, as argued by counsel for Telecom. However the point is
certainly not without substance.





Here again, the principle that should
have been applied was, that if an appeal was necessary for Telecom to
raise its point, then the same principle must have applied to
applicant Deysel. The Labour Court, once it allowed Deysel’s
review procedure, had the duty to give the order which is correct in
law and in accordance with justice. In my respectful view, the Court
a quo could not allow only the part favouring Deysel to stand
and the part favouring Telecom to be struck down as null and void,
once it found that the Court had no jurisdiction to make the ruling
because it had not first made a finding in accordance with section 46
of the Labour Act.





When considering the inordinate delay
in bringing the review, the failure to provide reasonable or good
cause and the failure to make out a case of substance on the merits,
condonation should not have been granted by the Court a quo.





If I considered the granting of
condonation justified, I would have set aside the whole of the order
of the District Labour Court and not only paragraph (c) and (d).





Before a rehearing in terms of
sections 46(1) could begin, Rule 6 would first have to be complied
with. The dispute which began with disciplinary proceedings on 24th
October 1996, would then probably have to be continued for several
more years and that, after Deysel had an opportunity to put his case
in three disciplinary hearings and one hearing before the District
Labour Court, one before the Labour Court and one before this Court.





I am convinced that it would not be
in the interest of justice and labour stability to prolong the agony.





In my respectful view, the following
order should be made by this Court:





1. The appeal succeeds.



2. The order of the Labour Court is set aside and the following order
substituted for that of the Labour Court:




    1. Condonation for the late
      launching of the review proceeding is refused.


    2. The review application is
      struck off the roll.


    3. No order is made as to costs.








O’LINN, A.J.A.





I agree






TEEK, J.A.





I agree






GIBSON, A.J.A.









































COUNSEL ON BEHALF OF THE
APPELLANT Mr D F Smuts, S.C.


Instructed by: Lorentz
& Bone





COUNSEL ON BEHALF OF FIRST
RESPONDENT Mr J A N Strydom


Instructed by: De Klerk
& Associates






1
NLLP 1998(1) 35 NLC




2
See also Section v. infra




3
1912 AD 181 at 186




4
1954 (3) SA 352




5
Unreported judgment




6
Smit NO v Brumner NO and Another referred to supra under footnote 3,
a case relied on by the Court a quo and sets out the nature
of the onus resting on the applicant.