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REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LCA 46/2014

DATE: 13 MAY 2016

In the matter between:

WALVIS BAY STEVEDORING CO (PTY) LTD.....................................APPELANT/APPLICANT

And

NDJEMBELA ALUTUMANI & 63 OTHERS..................................1^ST TO 63RD RESPONDENTS

GERTRUDE USIKU N.O.....................................................................................65^TH RESPONDENT

THE LABOUR COMMISSIONER N.O.............................................................66^TH RESPONDENT

Neutral citation: Walvis Bay Stevedoring Co (Pty) Ltd v Ndjembela Alutumani (LCA 46/2014) [2016] NALCMD 17 13 May 2016)

Coram: UNENGU AJ

Heard: 19 February 2016

Delivered: 13 May 2016

Flynote: Labour Appeal – Respondents raising a point in limine that record of proceedings in the arbitration proceedings incomplete when delivered – Court finding that the record of proceedings in Volume 5 which was served late on the respondents was not part of the record of proceedings appealed against – Respondents’ point in limine therefore dismissed – Labour Appeal – Point in limine – Appellant raising a point in limine that respondents should not be heard on appeal due to failure to deliver a statement with grounds of opposition in terms of rule 17(16)(b) of the Labour Court Rules – Appellant’s point in limine upheld – Court finding that in view of the fact that there were no grounds of opposition against the appeal – the appeal should succeed.

Summary: Practice – Labour Appeal in terms of s 89(1)(a) of the Labour Act 11 of 2007 against the arbitration award – Respondents after filing notice of intention to oppose the appeal – failed to file a statement with grounds of opposition by virtue of rule 17(16)(b) – The respondents took a point in limine that the appellant did not deliver a full and complete record of the proceedings within the prescribed time – The point in limine has been dismissed by the Court – Meanwhile, the appellant had also raised a point in limine that the respondents should not be heard as they did not file a statement with grounds of opposition – Appellant’s point in limine was upheld and the appeal succeeded.

ORDER

(i) The respondents’ point in limine is dismissed.

(ii) The point in limine raised by the appellant is upheld; and

(iii) The appeal succeeds.

JUDGMENT

UNENGU AJ:

[1] The proceedings in this matter concern both an appeal noted against the whole of the arbitration award of Ms Gertrude Usiku delivered on 25 August 2014 under case no. CRWB 111-13 and a review application for an order reviewing and setting aside the same award following the arbitration of 25 August 2014 presided over by the same Gertrude Usiku as the arbitrator

[2] The respondents through Mr Harmse, the legal practitioner for the respondents by letter dated 19 September 2014 gave notice of intention to oppose the appeal against the arbitration award by the appellant/applicant

[3] In its notice of appeal the appellant/applicant indicated that the appeal noted was against the whole of the arbitration award based on questions of law with grounds thereof against the findings and orders made by the arbitrator in her award.

[4] In its notice of appeal, the appellant/applicant had referred to five questions of law which questions are attacked on various grounds framed under each of the five questions of law.

[5] With regard the review application, the appellant/applicant seeks an order from the court to review and set aside the decision or ruling by the arbitrator to refuse the appellant/applicant’s representative (Mr Woker) the right to lead or put questions to the witnesses from a list of prepared questions; her decision or ruling refusing the witness Trudy Jane van Rooyen to refer to documents or bundle distributed to all parties and the arbitrator; her decision or ruling requiring Trudy Jane van Rooyen to testify from memory regarding certain documents and events surrounding such documents, which had been discovered and made available in the appellant/applicant’s discovery bundle without being permitted to refer to, consider or refresh her memory from such documents; and the decision or ruling to disallow the introduction of certain documents into evidence as exhibits.

[6] The dispute between the parties arose as a result of the dismissal or retrenchment of the respondents except for the arbitrator who is cited as respondent 65 in the notice of review application by the appellant/applicant. According to the latter, the step taken by it was done pursuant to s 34 of the Labour Act[1] to reduce its workforce as a result of economic circumstances and a restructuring of its workforce. All 64 respondents worked for the appellant/applicant in different capacities performing different types of work.

[7] As a consequence of the dismissal or retrenchment, 45 respondents excluding NATAU members, referred a dispute of unfair dismissal, unfair labour practice and disclosure of information to the Office of the Labour Commissioner in terms of ss 82(7) and 86(10) of the Act, read with Regulations 16(1), 18(1) and 20(1) accompanied by a letter dated 09 October 2013 titled ‘Background and Summary of the dispute on the letterhead of NAMIBIA SEAMAN AND ALLIED WORKERS UNION.

[8] After various correspondence back and forth between the appellant/applicant and the respondents, the matter was set down for hearing of both the appeal and the review. Mention must also be made that the record of proceedings in the arbitration was not delivered by the Office of the Labour Commissioner within the time prescribed by the rules. The appellant/applicant had to approach the court on 5 December 2014 with an application to compel the Labour Commissioner and the arbitrator, amongst others, to dispatch the complete and duly certified record of the arbitration proceedings and for an extension of the time period within which to prosecute the appeal. Ueitele, J granted the application.

[9] The hearing of the appeal took place before me on 19 February 2016 with Mr Dicks appearing on behalf of the appellant/applicant and Mr Rukoro representing the 64 respondents. Respondents 65 and 66 did not oppose both the appeal and the review application.

[10] Before submissions by counsel, the court enquired from Mr Dicks whether he intended to proceed with both the appeal and review simultaneously or will proceed with only one of the two proceedings. After some deliberations, Mr Dicks agreed to argue the appeal alone, leaving the review application for later. That being the case, only the appeal was then heard.

[11] Now that the review application does not form part of the proceedings anymore, I shall refer to the parties as the appellant and the respondents in the judgment.

[12] Both counsel prepared and filed extensive written heads of argument and raised preliminary points. Counsel were allowed to argue preliminary points with the merits of the appeal – but warned that it was allowed solely for the sake of saving time. I also told them that the matter could be disposed of on points in limine raised by either of the parties in which case it will not be necessary then to consider the merits of the appeal. Counsel understood and accepted the approach to be adopted during the proceedings.

[13] After deliberations as who will start first arguing his points in limine, it was resolved that Mr Rukoro, counsel for the respondents should argue first because his point in limine was first – because Mr Rukoro took the point that there was no appeal before court for the reason being that the appellant did not file a complete and certified copy of proceedings in the arbitration as provided for in terms of Rule 17(13) to the respondents. He submitted that the record, for the application launched in the Labour Court on 21 November 2014 wherein the appellant sought orders directing the 64 and 65 respondents to dispatch complete and duly certified records of the arbitration proceedings to the Registrar and to extent the period in which the appellant must prosecute the appeal, was only filed in February 2015.

[14] He further argued that another bundle of the record of proceedings, volume 1, was filed in June 2015 very much late and out of time prescribed in the Rule 17(13). Rule 17(13) provides as follows:

‘The appellant must, not less than 14 days after receipt of the record supplied by the registrar under subrule (9), supply the registrar with two copies and each of the other parties with one copy thereof, in each case certified as provided in subrule (12).’

In brief what Mr Rukoro was saying is that the appellant did not file a complete and duly certified copy of the proceedings in the arbitration following the provisions of subrules (12) and (13), therefore there was no appeal before court.

[15] His further complaint is that the application and the order of the Labour Court to compel the 64 and 65 respondents to dispatch the record to the registrar and where an extension of time within which to prosecute the appeal was granted, was also not part of the record provided to the respondent. And because they were provided with an incomplete record, he said, it was not necessary for the respondents to deliver or file a statement stating the grounds on which they opposed the appeal.

[16] In his reply to the point in limine raised by Mr Rukoro, Mr Dicks countered the argument of Mr Rukoro by pointing out mistakes in Mr Rukoro’s submission, in particular the date when the appellant received the record of proceedings. He said that the 2 December 2014 is the day when the transcribers wrote to the registrar telling her that they were having a problem in typing the record, and not the date the appellant received the record of proceedings. Mr Dicks argued that what is contained in volume 5 of the record are correspondence to the Labour Commissioner complaining about the non-receipt of the record and the reply from the Labour Commissioner together with the record of the application to the Labour Court for the extension of time.

[17] It would seem, however, that Mr Rukoro missed some of the information in the record, possibly due to the magnitude thereof. He did not realise that the application was served on the Union on behalf of the respondents through Mr Harmse, the legal practitioner who instructed him. I do not think that the application brought by the appellant in the Labour Court for orders compelling 64 and 65 respondents to dispatch the record of the arbitration proceedings to the registrar and the prayer to extent the period within which to prosecute the appeal, is in dispute. It served before Ueitele, J and was granted on 5 December 2014 without opposition from the respondents. A copy of such an order is attached to a notice of motion filed by the appellant on 6 November 2015 as PB2 and the record as PB1. These papers form part of the record of the appeal before this court. Why Mr Rukoro did not see these papers (documents), is beyond my understanding.

[18] It would also appear that Mr Rukoro, does not apppreciate the fact that the record of proceedings in the application of 5 December 2014 before Ueitele J does not form part of the record of proceedings to be dispatched and duly certified by the Labour Commissioner to the registrar. What happened in the Labour Court is separate from what happened before the arbitrator during arbitration proceedings which is the record of proceedings the appellant is appealing against. Therefore I repeat that the record of proceedings in the application for extension of time within which to note and prosecute the appeal conducted in the Labour Court is not part of the record of proceedings appealed against as provided for in Rule 17(7).

[19] Rule 17(7) reads as follows:

‘(7) The notice of appeal delivered in terms of subrule (4) must, where appropriate, call on the Commissioner, the labour inspector or arbitrator, as the case may be, to dispatch, within 21 days after receipt of the notice, to the registrar the record of the proceedings appealed against duly certified by the Commissioner, labour inspector or the arbitrator, together with such reasons as the Commissioner, labour inspector or the arbitrator desires or is by law required to give or make, and to notify the appellant that he or she has done so.’ (Emphasis added).

[20] Accordingly, the point in limine of Mr Rukoro, that there is no appeal before court because volume 5 of the record which contained the proceedings of the application conducted in the Labour Court and other documents connected thereto, was not delivered to them with the other volumes of the record is hollow, does not hold water, therefore dismissed.

[21] As regard the point in limine raised by Mr Dicks that the respondents are not before court because they did not comply with Rule 17(16), it is appropriate to look at what the case law and legal principles say about the non-compliance with the rules and what the consequences are of such non-compliance.

[22] Rule 17(16) does not oblige a person to whom a notice of appeal is delivered to oppose such an appeal or to deliver notice to the appellant that he or she intends to oppose the appeal and deliver a statement stating the grounds on which he or she opposes the appeal together with any relevant documents if such person does not wish to oppose the appeal. However, should any person to whom the notice of appeal is delivered wish to oppose the appeal and delivers a notice to oppose, like in the present appeal, such person does not have a discretion but must, within 21 days after receipt by him/her, a copy of the record of the proceedings appealed against, or within 14 days after delivery of the notice to oppose, deliver a statement stating the grounds upon which the appeal is opposed together with any relevant documents[2]. The respondents never did that is which, in my view, a glaring and flagrant disregard of the provisions of Rule 17(16).

[23] Rule 15 provides a remedy to litigants who might wish to ask for condonation from court for non-compliance with the rules which the respondents opted not to follow. The failure by the respondents to utilise the provisions of rule 15 to redeem the breach of rule 17(16)(a) and (b) is another sign of a wilful defiance of the rules of this court.

[24] The disapproval by the courts of the non-compliance with the rules has been stated and restated in many judgments. Even in cases where application for condonation of the non-compliance were done, stern warnings were sounded signifying the displeasure of the non-compliance with the rules[3]. The extent of the non-compliance with the rule is one of the factors considered by the court whether an application for condonation for the late filing of an appeal should be granted. It was emphasised in Saloojee NNO v Ministry of Community Development[4] that condonation of the non-observance of the Rules of the Court is by no means a mere formality. There has to be sufficient cause for someone to be excused from compliance of the rules.

[25] Gibson J in Indigo Sky Gem (Pty) Ltd v Johnston[5] struck the matter from the roll just because heads of argument were not filed by counsel timeously and said the following:

‘The crux of the matter is that there appears to have been a flagrant breach of the Rules of Court. Given that course of conduct my attitude is that the court can only ignore such attitude at its peril and to its own prejudice in the running and administration of the court’s business. Thus my view is that such failure cannot be overlooked in the circumstances of this case because to do so would encourage laxity in the preparation of court proceedings. If rules are only to be followed when a legal practitioner sees fit to do so, then the Rules may as well be torn up.’

[26] In the case of Swanepoel v Marais and Others[6], after referring to various cases, Levy J said that the Rules of court are an important element in the machinery of justice. Failure to observe such Rules can lead not only to the inconvenience of immediate litigants and of the courts but also to the inconvenience of other litigants whose cases are delayed thereby. He further said that it is essential for the proper application of the law that Rules of Court, which have been designed for that purpose, be complied, that practice and procedure in the courts can be completely dislocated by non-compliance.

[27] In conclusion I want also to refer to the matter of Benz Building Suppliers v Stephanus and Others[7], where Parker AJ when dealing with a respondent who failed to deliver the statement provided for in Rule 17(16)(b), said the following:

’13 It must be remembered that this is an appeal and this court qua appeal should proceed in its determination of the appeal on the basis of (a) the record of the arbitral proceedings, (b) the appellant’s grounds of appeal and (c) the respondents’ grounds for opposing the appeal.’

Parker AJ went on to say:

‘‘In this regard, as regards the first respondent, it must be remembered that such grounds as are required by rule 17(16)(b) of the Rules of the Labour Court must be grounds that inform the arbitrator, the appellant and this court of the grounds on which the arbitration award is attacked by the appellant and which the first respondent support.’

[28] Meanwhile, in the present appeal, the respondents completely ignored the provisions of rule 17(16)(b). The excuse for doing that, is because rule 17(6) already granted them a right to be present at the hearing and be heard. This argument, in my opinion, is not only disrespectful to the drafters of the Rules of Labour Court, specifically rule 17(16)(b) but also was purposely advanced to mislead the Court. I agree with Parker AJ in the Benz Building Suppliers case that the statement with grounds for opposing the appeal, is very important because such grounds will inform the appellant which part of the arbitral award the respondent(s) is attacking and be prepared to fend off the attack launched against the grounds of appeal.

[29] Similarly, it is also for the Labour Court to know in advance on what grounds the appeal is being opposed. As stated above, rule 17(16) is mandatory, the respondents after giving notice to oppose the appeal were obliged to deliver the statement with grounds of opposition as provided for in terms of rule 17(16). As a result, therefore, taking into account the submissions by Mr Dicks, the authorities he

referred to in support of his submission and the cases referred to above in the judgment it is my view that the point in limine raised by Mr Dicks must be upheld.

[30] That being the case and now that the point in limine by Mr Dicks is upheld, I conclude that the respondents have not opposed the appeal. Therefore, in absence of any grounds for opposing the appeal, no reason does exist why the appeal should not succeed on all the grounds.

[31] Accordingly, the following order is made:

(i) The respondents’ point in limine is dismissed.

(ii) The point in limine raised by the appellant is upheld; and

(iii) The appeal succeeds.

E P UNENGU

Acting Judge

APPEARANCES

APPELLANT/APPLICANT: G Dicks

Instructed by Engling, Stritter & Partners, Windhoek

1^st TO 63^RD RESPONDENTS: S Rukoro

Instructed by Harmse Attorneys, Windhoek

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