Court name
Supreme Court
Case name
Telecom Namibia v Nangolo and Others
Media neutral citation
[2014] NASC 23
Judge
Mtambanengwe AJA










IN THE SUPREME
COURT OF NAMIBIA





CASE
NO: SA 62/2012





DATE:
25 NOVEMBER 2014





REPORTABLE





In the matter
between:





TELECOM NAMIBIA
LIMITED.............................................................................Appellant





And





MICHAEL NANGOLO
AND 33 OTHERS...........................First
– Thirty Fourth Respondents





PHILIP MWANDINGI
N.O.................................................................Thirty
Fifth Respondent








Coram: MAINGA JA,
MTAMBANENGWE AJA and HOFF AJA





Heard: 23 June
2014





Delivered: 25
November 2014





APPEAL
JUDGMENT





MTAMBANENGWE AJA
(MAINGA JA and HOFF AJA concurring):





[1] The subject of
this appeal is the whole judgment of Damaseb JP delivered in the High
Court on 28 May 2012.





[2] On 13 May 2009
appellant noted an appeal to the Labour Court against an arbitration
award made against it by an arbitrator on 13 March 2009, in terms of
which appellant was ordered to pay the amount of N$674 760,00, to
thirty (30) of its former employees in respect of their claim for
accrued leave entitlement and severance allowance which were the
subject of their claim in the hearing before the arbitrator.





[3] On 23 October
2012 appellant filed a notice of application for condonation of the
late filing of appellant’s notice of appeal to the Labour
Court. Damaseb JP dismissed that application. In his judgement,
Damaseb JP dealt with the delay to file the notice of appeal, the
explanation for the delay, and appellant’s prospects of success
on appeal against the arbitrator’s award. The learned judge
made negative findings in regard to the explanation for the delay, as
well as in regard to appellant’s prospects of success.
Appellant’s grounds of appeal in this matter encompass a number
of errors allegedly committed by the court a quo, particularly in its
negative finding as to the adequacy and reasonableness of the
explanation for the delay and the prospects of success.





[4] Before turning
to consider the court a quo’s judgment let me briefly refer to
the time limits prescribed by the Labour Act as to appeals. Section
90(2) of the Labour Act 11 of 2007 provides:





‘(2) A party
to a dispute who wishes to appeal against an arbitrator’s award
. . . must note an appeal in accordance with the Rules of the High
Court within 30 days after the award being served on the party’.





Rule 17 of the
Labour Court rules prescribes the same period within which an appeal
or review should be noted.





[5] The founding
affidavit of the condonation application was deposed to by a Ms
Yvette Zoë Aspara, the assistant legal advisor of appellant. In
it she states that the arbitration hearing was held on 16 February
2009, the award was made on 13 March 2009. On 7 April 2009, Ms Dolly
Loide Nashandi, appellant’s senior manager for Human Resources
and Support, received a call from the Labour Commissioner’s
office asking her to attend that office and collect the award and she
sent a fellow employee who collected the award on the same date. She
says that what happened on 7 April was improper service in terms of
the rules, and also complains that the award does not include the
peremptory notice informing parties of their right of appeal or
review.





[6] The court a quo
found the above narration of how the award came to the attention of
appellant as substantial compliance in regard to service. In view of
the fact that appellant has a fully established legal department
manned by some lawyers including Ms Aspara herself, the non-mention
in the award of the right to appeal or review in my view is of no
consequence. The provision was obviously made for the benefit of
non-legally represented litigants. Ms Nashandi together with Reverend
Jacobus Adolf Gertze, senior manager for Employee Relations
represented appellant at the arbitration hearing.





[7] According to Ms
Aspara, Ms Nashandi, after receiving the award waited for Reverend
Gertze, her supervisor, who was then on leave and only returned on 14
April 2008. On his return, Gertze was given a copy of the award and
he in turn handed it to the acting general manager for Human
Resources, one Mr Mushariwa whom he advised to bring it to the
attention of appellant’s legal department. Both Gertze and
Aspara confirmed that Mushariwa was fully briefed and it was
indicated that the award could be appealed against or taken on
review. After Mushariwa briefed the managing director of appellant on
the same day (14 April 2009), he asked his secretary to pass the
award to the secretary of the legal department. That secretary in her
confirmation affidavit says she could not remember receiving the
award or passing it on to a responsible person in the legal
department. Aspara was then acting head of the legal department. The
award never reached her as intended until 7 May 2009, which is a
month after it was collected from the Labour Commissioner’s
office.





[8] The court a quo
found that Aspara did not say from whom she received the award nor
did she explain if senior officials of appellant, especially the
Managing Director, Gertze or Mushariwa made any enquiries as to
whether the matter was being attended to. This is surprising in view
of the fact that the deadline for payment as directed by the
arbitrator, 30 April 2009, was approaching.





What the court a quo
found was not explained





[9] In the founding
affidavit Aspara states that on 7 May 2009, the respondents (former
employees of Telecom Namibia, beneficiaries of the arbitration award)
demanded payment in terms of the award. It was only on that date,
according to her, that she then briefed appellant’s legal
practitioners of record to attend to the matter. The court a quo
found that Aspara:





‘. . . does
not tell the court what exactly was the instruction given, a
circumstance that is significant in view of the deadline that was
imposed in the award. What she does tell us is that a certain Mr
Hough who in a confirmatory affidavit states that he is the office
administrator for the legal practitioners of record, received the
instruction’.




The court goes on to
say:





‘(16) What
Hough does not tell the court is significant: It appears from his
affidavit that he is not an admitted legal practitioner. He fails to
tell us why the matter was not handed to an admitted legal
practitioner in the firm. It is implied to what is said about his
handling of the matter that he took the decision to brief counsel
practising without a fidelity fund certificate. It appears therefore
that no-one in the firm brought their professional mind to bear on
the matter. Had they done so, they would have noticed that the matter
was the subject of a deadline.





(17) Neither Aspara
nor Hough tells the court what further inquiries were received in the
meantime from the applicant by the legal practitioner of record in
view of the deadline that was imposed in the award and considering
that, on Aspara’s own admission, the respondents had already
demanded payment in terms thereof’.





The court continued:





‘What the
court was told however is that Hough allegedly did not secure
“available counsel”. Just whom he tried to contact we,
are not told. It was only on 12 May that Hough allegedly secured
counsel. It is implied that Hough, an office administrator, briefed
instructed counsel in the matter. We are not told whether anyone from
the applicant was present at the briefing and what role of any an
admitted legal practitioner in the firm played in the briefing of
counsel. The entire handling of this matter by applicant’s
legal practitioner of record raises serious issues of professional
ethics’.





[10] I pause briefly
to say that in my opinion all that happened up to 7 May and
thereafter up to and including Hough’s actions needed a fuller
explanation than what Aspara purported to do in para 18 of her
affidavit. All she did therein was to put hearsay evidence before the
court, the explanation was not forthcoming at all.





‘[18] Aspara
then makes the following critical allegation:





“I confirm
that May 7 was the first time any employee in the applicant’s
legal department became aware of the arbitration award. The
appellant’s general manager for Human Resources, along with all
the other managers who had knowledge of the award, was under the
impression that the legal department would take the steps required to
prosecute the necessary appeal or review of the award as this
department is responsible for ensuring that all relevant steps are
timeously taken”’.





[11] The learned
Judge’s comments on this appear in paras 19 to 21 of the
judgment a quo. I quote the same in full to indicate my full
agreement therewith:





‘[19] It can
be inferred from the above allegation that it was general knowledge
amongst officials of the applicant that the legal department was the
one responsible for protecting the legal interests of the applicant
in matters such as the present. That reality stands in sharp
contradiction with the conduct of all the officials who handled the
matter after the award was received on 7 April 2009. It clearly shows
a measure of disrespect for the legal process envisaged under the
Labour Act. One sadly and regrettably gets the impression that
applicant’s officials took the attitude that since they did not
agree with the arbitrator’s award they would simply ignore the
consequences that were attendant on it and instead have recourse to
the court when it suited their convenience. That bodes ill for the
rule of law and the intent of the legislature that intended labour
disputes to be handled in a way that promoted speed and, as far as
possible without recourse to court. There is not even any attempt at
an explanation why Gertze or the person before him, or Mushariwa or
indeed the managing director did not immediately engage the
responsible person in the legal department or indeed their chosen
legal practitioner to attend to the matter without fail.



[20] Mushariwa’s
action is even more troubling and speaks to the attitude I referred
to earlier. He handed the award to his secretary and asked her to
pass it on to another secretary in the legal department. Why did he
not deal directly with the responsible person in the legal
department? More so, as head of Human Resources, ought he not to have
known that the head of legal department was, as stated by Aspara, out
of the country at the time Gertze passed on the award to him?





[21] The action by
the legal practitioners of record in delaying what was otherwise an
urgent and serious matter is just as, if not even more, troubling and
probably is attributable to the fact that the instruction was sadly
attended to by a person not subject to the discipline of the legal
profession. The legal practitioners of record after receiving the
instruction and without, it seems, any request by the applicant’s
officials to act urgently in the matter, took another 7 days to act
on it, certainly on the unreasonable basis, that they could not find
instructed counsel, they said counsel was not identified’.





One can only add the
following to what the court a quo said in para 19 of its judgment:





‘The said
officials treated the matter as one of no importance at all’.





The delay in this
matter





[12] It is common
cause that in terms of s 89(2) of the Labour Act, the award ought to
have been appealed on 6 May 2009 following the receipt of the award
on 7 April 2009. The notice of appeal was, however, filed on 13 May
2009. The court a quo dealt with three aspects of the delay involved
in this matter, namely:





‘(a) The delay
in the contemporaneous conduct of applicants senior officials;





(b) The delay in the
noting of the appeal; and





(c) The delay in
bringing the condonation application’.





The court said of
these aspects of delay:





‘[23] Neither
in the contemporaneous conduct of the applicant’s senior
officials, nor the explanation now offered in support of the
application for condonation now before me, do I find any acceptable
(in the sense of being satisfactory) or reasonable explanation for
the failure to timeously prosecute the appeal against the
arbitrator’s award. There is equally no explanation at all,
neither by the applicant or its legal practitioner, why the
application for condonation was only brought as late as 25 June when
the notice to appeal was already filed on 13 May 2009. The law as I
have shown is settled that the application for condonation must be
brought as soon as the delay has become apparent and to the extent it
was not so brought, there must be an acceptable, full and accurate
explanation for the delay in the bringing of the application for
condondation. The application is singularly and demonstrably lacking
in that regard too.



[24] Even if I were
to accept that the award was not served on the applicant in terms of
the rules of court, I am satisfied that it did not suffer any
prejudice as they, by their own admission, received the award’.





[13] Paragraph 12 of
appellant’s heads of argument states in part:





‘In this
appeal against the refusal by the court a quo to grant condonation
for the late filing by four days (13 May 2009 instead of 7 May 2009)
of the appellants notice of appeal against an award in favour of (at
least some) of the respondent’s, we submit the principle (sic)
issue on the substance of the appeal ie whether the court a quo
failed to exercise its discretion judicially. In particular, did the
court a quo materially misdirect itself or act upon a wrong principle
in:



12.1 its
consideration of the prospects of the appellant succeeding in having
the arbitration award set aside; and





12.2 its assessment
of:



12.2.1 the
explanation for the four court day delay in filing the notice; and





12.2.2 the impact of
the absence of a clear explanation on the papers for the filing of an
application for condonation for the delay only on 25 June 2009’.
(My underlining).





[14] The underlining
in the passage I have just quoted is meant to indicate two
misreadings or misinterpretations of the court a quo’s findings
including that:





(a) the court, as I
stated above, dealt with three aspects of the delay involved, not
just the delay to note the appeal; and





(b) the court did
not find that there was ‘absence of a clear explanation on the
papers for the filing of an application for condonation for the delay
only on 25 June 2009’; it found that there was no explanation
at all.



As regard the delay
‘by four days’ it will be noted that the emphasis on the
so-called ‘four days’ delay is made even in the founding
affidavit by Aspara, in the condonation application, and in the
founding affidavit application by Gertze in the application to stay
the execution of the award. However, I agree with the court a quo in
its consideration of the delay in this matter as extending beyond the
delay to file the condonation application. The delay in the conduct
of appellant’s senior officials and legal representatives and
the delay in the initiation of the condonation application are also
relevant factors.





[15] Appellant’s
counsel obviously knows and does appreciate that the conduct of
appellant’s officials and that of its legal practitioners is a
relevant consideration in condonation applications. Hence, the
submission in para 9 of his heads of argument:





‘We
respectfully submit that this is not the type of exceptional case
where there was a flagrant or gross disregard or ignorance of the
rules concerning appeals by legal representatives, which would
entitle this Honourable Court to refuse condonation even where the
appellant was in no way at fault and irrespective of the prospects of
success on the merits of the appeal’.





That the conduct of
the officials of appellant was the foundation of all that ensued
thereafter and on which the court a quo made negative findings in
this matter is beyond any doubt.





[16] As to what
appellant’s counsel described as the principal issue, the court
a quo demonstrated its understanding of the rules when it started by
quoting, in para 14 of its judgment, what was said by the Full Bench
of the High Court in Swanepoel v Marais and Others 1992 NR 1 at 9J –
3A and then went on in para 5 to list the principles that ‘can
be distilled from the judgment of the Courts as regards applications
for condonation’.





[17] One of the
principles the court a quo listed relates to what the courts refer to
as ‘the prospects’ not ‘the prospect’ of
success on appeal. There are a number of decided cases both in this
jurisdiction and in South Africa that demonstrate that the prospects
of success on appeal, though an important consideration, standing
alone is not a decisive consideration. There are also a number of
cases that show that despite the prospects of success being good, an
application for condonation may or should not be granted if there was
a flagrant violation or non-observance of the rules. In this case I
follow what Holmes JA said in Malane v Santam Insurance Co Ltd 1962
(4) SA 532 (A) at 532F:





‘I think all
the foregoing clearly emerge from the decisions of this Court, and
therefore I need not add to the ever-growing burden of annotations by
citing the cases’.





The grounds of
appeal





[18] The grounds of
appeal against the court a quo’s dismissal of the condonation
application are enumerated in an application made by appellant in an
application for leave to appeal which was also served before Damaseb
JP. These grounds mostly hinge on the allegation that ‘the
learned judge erred on the law/or the facts and/or did not exercise
his discretion in a judicial manner . . .’ The rest of the
grounds are in my view an omnibus or conglomerate of objections
relating to the prospects of success including points that should
have been but were not raised by appellant’s representative at
the arbitration hearing, such as the number and identity of the
respondents and how the complaints of the respondents were presented.
Finally, in para 14 of this heterogeneous narration of complaints it
is alleged:





‘14. He
misdirected himself in the exercise of his discretion by failing to
apply the balancing exercise established by the authorities on the
issue, to the explanations for the delays and the merits of the
appeal’.





There is no
substance whatsoever in this ground because the judge a quo, soon
after listing the principles applicable to applications for
condonation, considered appellant’s prospects of success on
appeal. Because I find that his findings on the question of the
explanation for the delays that occurred in this matter cannot be
faulted, I need not express any views on appellant’s prospects
of success. Those cases where the courts considered the prospects of
success involved a demonstration of the strength or weakness or
absence of prospects of success.




[19] Only para 13,
14 and 15 of appellant’s written heads of argument refer to the
alleged misdirection by the court a quo. There (in these paragraphs)
the following issues are raised:





(a) the question of
the identity and number of the respondents where counsel says the
court a quo found the precise identity of 30 aside from Michael
Nangolo does not appear from the record;



(b) the content of
the form referring the dispute to conciliation or arbitration (Form
LC 21), which counsel says was served on the appellant referring only
to Michael Nangolo; and





(c) that the
complaint to the Labour Commissioner was neither a properly filed
joint nor class complaint as required by the Rules relating to the
conduct of Conciliation and Arbitration before the Labour
Commissioner.





Counsel caps the
submission as follows:





‘15. These
common cause facts pose two problems. First, there is uncertainty on
the beneficiaries of the award, and secondly, persons who were not
claimants would or may be beneficiaries of the award’.





[20] Notwithstanding
my opinion that I do not need to consider the appellant’s
prospects of success, I think it is pertinent to point out that the
evidence shows that both at the conciliation and at the arbitration
hearing there was in attendance more complainants than could be
accommodated in the room(s) where the proceedings took place.
Secondly, if the allegations in these paragraphs are correct and
common cause, then they should have been raised as points in limine
before the arbitrator and not post facto as appellant purports to do
in these submissions. The questions looms large as to why this was
not done and why there is no explanation of why it was not done. When
one considers the factor of ‘prospects of success’ in a
condonation application, the importance of the matter is one of the
considerations to be put on the balancing scales. In this matter the
attitude of appellant, judged by the conduct of its representatives
both at the arbitration hearing (including a legal practitioner, Ms
Nashandi) and those who handled the award when it was brought to
their attention amply supports the court a quo’s strictures
directed at them in its judgment. The record pertaining to the
arbitration hearing shows that the arbitrator specifically asked the
parties if there were any irregularities; none were noted and there
is no allegation that he did not ask that question. The clear
inference to be drawn from the silence in this regard on appellant’s
representatives’ part and other relevant circumstances, is that
they waived the right to take issue on that score.





[21] In the written
submissions on behalf of the appellant, Mr Heathcote raises a number
of arguments seeking to minimize the omissions pointed out by the
court a quo, or to show that the court a quo might have been mistaken
on some points, for example in regard to the instructions given to Mr
Hough by Ms Aspara. I accept, in particular, that as regards the
instructions to Mr Hough the court a quo overlooked Ms Aspara’s
instruction that was attached to her affidavit. However, I do not
accept that these arguments or oversights are such as to detract from
the balancing exercise that the court a quo obviously carried out in
considering the condonation application. With respect, the balancing
exercise the court is required to do in such cases does not require
or involve an equation of factors under consideration, but is a
question of deciding what weight to attach to each factor. In my
opinion the contravening factors taken into account by the court a
quo in deciding whether to grant condonation in this case
overwhelmingly militate against granting condonation.





[22] For these
reasons I make the following order:





1. The appeal is
dismissed.





2. Appellant is to
pay the costs of this appeal, such costs to include the costs
consequent upon the employment of one instructing and one instructed
counsel.








MTAMBANENGWE AJA





MAINGA JA





HOFF AJA





APPEARANCES





APPELLANT:





R Heathcote (with
him R Maasdorp)





Instructed by
Köpplinger Boltman Legal Practitioners





FIRST TO THIRTY
FOURTH





RESPONDENTS: J A
N Strydom





Instructed by
Titus Ipumbu Legal Practitioners