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REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LCA 41/2015

NOT REPORTABLE

In the matter between:

GOTTFRIED GOABAB....................................................................................................APPLICANT

And

MUNICIPAL COUNCIL OF WINDHOEK.................................................................RESPONDENT

Neutral citation: Goabab v Municipal Council of Windhoek (LCA 41-2015) [2016] NALCMD 27 (19 July 2016)

Coram: UNENGU AJ

Heard: 11 March 2016

Delivered: 19 July 2016

Flynote: Labour Law – Application to condone late noting and reinstatement of a lapsed appeal respondent filing defective notice of opposition – Application unopposed – applicant/appellant failing to explain the delay satisfactorily - Delay as a result of applicant/appellant’s own ineptitude – Relief sought in the notice of motion declined.

Summary: Labour Law – application for condonation of the late noting and reinstatement of a lapsed appeal. Defective notice of opposition was filed by the respondent, application was treated as unopposed but the relief sought in the notice of motion was declined because the applicant/appellant did not explain the delay in noting and prosecuting the appeal satisfactorily.  The Court also found that the application did not enjoy prospects of success on appeal.

ORDER

(i) In view of the defect in the notice of motion of opposition filled by the respondent on 11 November 2015, the point in limine raised by the applicant/appellant is upheld, the application therefore, treated as unopposed;

(ii) The order sought by the applicant/appellant in prayers 1, 2, 3 and 4 of the notice of motion is declined.

JUDGMENT

UNENGU AJ:

Introduction

[1] In this matter the applicant is Gottfried Goabab, an adult male, residing at Room 201, 2^nd Floor, Continental Building, Independence Avenue, Windhoek, a Local Authority duly established in terms of the Local Authority Act No 23 of 1992, with its principal place of business situated at 5378 at the corner of Independence Avenue and Garden Street, Windhoek, Republic of Namibia.

[2] The applicant lodged an appeal on the 7 July 2015 pursuant to section 89(1)(a) of the Labour Act, no 11 of 2007 (hereinafter referred to as the ‘Act’) from the Office of the Labour Commissioner against the whole award by the arbitrator, Mr BM Shinguandja, made on 12 June 2015 under the case number: CRWK 821-14, in which he seeks the following relief:

‘1. That the appeal is upheld.

2. That the award be set aside.

3. Granting to appellant such further and/or alternative relief as this Honourable Court may deem fit.’

[3] The appeal lapsed on the 7 October 2015 and the applicant attributed the delay in prosecuting the appeal to the fact that the Court file had gone missing at the Registrar’s Office and it only resurfaced on 9 October 2015.  As a result, the applicant filed an application for reinstatement of the appeal on the 19 October 2015. It is on this very premise that the Court is called upon to consider condoning the late filing of the appeal and consequently reinstating the appeal.

Background

[4] Briefly, the applicant was employed by the respondent as a driver at ‘Open Space’ from December 1989 to December 2001.  During his employment, the applicant developed a medical condition known as ‘chronic allergic rhinitis’ which led to his services being terminated by the respondent after the respondent had followed its internal procedures pertaining to incapacity.¹

[5] Aggrieved after somewhat 13 years, the applicant, on the 17 October 2014 referred a dispute of right to the Office of the Labour Commissioner pertaining to unfair dismissal, unfair labour practice and severance.

[6] The respondent’s representative at the arbitration proceedings raised two points in limine:

‘1. that the dispute contravened the time bar period as contained in section 86(2) of the Labour Act has jurisdiction.

2. that if the conciliator/arbitrator ruled that the dispute did not contravene the statutory prescription provision, then the party against who the claim lay was not the party over whom the Labour Act has jurisdiction.’[1]

[7] The arbitrator consequently upheld the points in limine and dismissed the referral of the applicant/appellant as the matter had prescribed and subsequently the arbitrator had no jurisdiction to adjudicate over the merits of the matter.[2]

[8] Not happy with the outcome of the arbitration, the applicant/appellant to this Court appealed against the arbitrator’s award on the following grounds:[3]

‘1. The arbitrator erred in law in failing to acknowledge and apply a principle and concept which has become well-recognised in the context of prescription, namely that of a continuous wrong.

2. The arbitrator erred in law in that on all the available evidence the impugn conclusion made by the arbitrator is not reasonable in the circumstances or could not reasonably have been reached.’

[9] Both the notice of appeal and the application for condonation and reinstatement of the appeal were opposed,[4] although no grounds of opposition were filed as required in terms of Rule 17(16)(b) of the Rules of the Labour Court (hereinafter referred to as the ‘Rules’).[5]  The respondent gave notice to oppose a motion however, different from the one filled by the applicant/appellant, despite being reminded of the defect in the notice to oppose, the respondent neglected to correct the notice of opposition.  That being so, Mr Kasper, counsel for the applicant/appellant raised a point in limine that Mr Philander was not properly before court as the application for the reinstatement was not opposed.  I allowed counsel to address me on both the point in limine and the merits of the matter.  But informed them also that merits of the application will not be considered in case the point in limine is upheld.

[10] The point raised by Mr Kasper is valid and to the point therefore should succeed.  That being the case, the application for the reinstatement of the appeal as well as condonation thereof is treated as unopposed.  However, it would seem though that the point in limine raised by the applicant/appellant is not a point which can dispose of the application even upheld.  The applicant/appellant still has a duty to satisfy the Court to grant him the relief sought in the notice of motion.  The applicant/appellant must explain the delay in noting the appeal timeously and within the prescribed period.  The Court will not grant condonation for the non-compliance with Rules should the applicant/appellant fail to meet the requirements of condonation.

[11] The order the applicant/appellant is seeking from the Court in terms of the notice of motion is the following:

‘1. Condoning the non-compliance with the Rules of the Labour Court;

2. An order reinstating Labour Court appeal Case no. LCA 41/2015 (“The appeal”)

3. An order extending the period within which the appeal may be prosecuted by a further period of 60 days;

4. Order the Respondent to pay the cost of this application only in the event of opposition of the application.’

[12] Logically it follows that the first order of business and the rationale for bringing this application would be to consider whether this Court should grant the application for condonation and reinstate the appeal.

[13] The word ‘condonation’ is born from the 1620’s latin word condonationem, a noun meaning the overlooking or implied forgiving of an offense’.[6]  The pivotal reasoning for the implementation of the time-lines or time frames in the Rules of the Labour Court is to ensure that wrongdoings in the employment relationship, do not promote eternal liability.  Hence, aggrieved parties instituting and prosecuting appeals are subjected to the art of compliance to time-frames, without it, chaos hits point blank.  Rule 17(25) meticulously states that ‘an appeal to which this rule applies must be prosecuted within 90 days after the noting of such appeal and unless so prosecuted it is deemed to have lapsed.’

[14] It is only exceptional matters that may pass the test of non-compliance.  Rule 15 of the Rules authorizes a Court to condone any non-compliance with the Rules and/or to extend or abridge any period prescribed by such Rules, whether before or after the expiration of such period, only on application extending good cause.[7]  A party applying for condonation must do so on Form LC 38 accompanied by a supporting affidavit setting out the following:[8]

‘(a) the extent of lateness;

(b) the reason for the lateness;

(c) any prejudice to the other party; and

(d) any other relevant factors.’

[15] In seeking condonation, the applicants have to make out their case on the papers submitted to explain the delay and their failure to comply with the Rules.  The explanation must be full, detailed and accurate in order to enable the Court to understand clearly the reasons for it.[9]  The Court is accordingly expected to assess and weigh different factors against each other to answer the case of condonation brought by the applicant.  Factors such as:

‘The extent of the non-compliance with the rule in question, the reasonableness of the explanation offered for the non-compliance, the bona fides of the application, the prospects of success of the merits of the case, the importance of the case, the respondent’s (and where applicable, the public’s) interest in the finality of the judgement, the prejudice suffered by the other litigants as a result of the non-compliance, the convenience of the court and the avoidance of unnecessary delay in  the administration of justice.  These factors, it has been pointed out on numerous occasions, ‘are not individually decisive, but must be weighed one against another’, and, in the final analysis, must be considered in their totality to determine whether, as a matter of fairness to both sides, ‘sufficient’ cause has been shown for the court to grant condonation in the exercise of its judicial discretion.’[10]

[16] The Rule articulates that the appeal must be prosecuted within 90 days or it has lapsed.  The Rule was not complied with and the applicant/appellant exercised his right under Rule 15 dealing with condonation and reinstatement.

[17] In the case of Moraliswani v Mamili, the Court held that ‘in these circumstances the extent of the delays and the failure of the plaintiff or his attorney to give a satisfactory explanation for them are such that condonation ought, in my view, to be refused.’[11]

[18] In the present matter the appeal lapsed on the 7 October 2015 and the application for condonation and reinstatement of the appeal was filed on the 19 October 2015, which is 12 days apart.  It is prudent that the delay in prosecuting the appeal must be reasonably explained and that parties must set out the steps they have taken to prevent or shorten the delay throughout the entire period.

[19] The explanation tendered by the applicant has been outlined in Mr Podewiltz’s affidavit attached to the Notice of Motion filed 19 October 2015.[12]  In summary thereof, Mr Podewiltz contends that the delay was due to the Registrar’s Office at the High Court as the record of the arbitration proceedings was made available by the Labour Commissioner’s Office already on the 23 July 2015.  The Registrar’s Office only informed the applicant’s legal practitioner that the record was available on the 3 September 2015.  When an enquiry was made to uplift the record from 3 September 2015 – 9 September 2015, Mr Goaseb (an administrative assistant of Mr Podewiltz was informed that they were searching for the file.[13]

[20] Mr Podewiltz further explained that daily visits by Mr Goaseb, was made to the Office of the Registrar of the High Court between the period of 3 September - 9 October 2015 without any avail.  Furthermore, efforts by Mr Podewiltz to contact the respondent in this regard, was made to establish whether they had possibly uplifted the record.  However, this information so conferred in this affidavit was not confirmed by the respondent as such, a mere letter marked ‘OP6’ was sent to the respondents from the plaintiff on the day the appeal lapsed.

[21] Subsequently, further attempts were made by the applicant/appellant’s consultant to resolve the mystery of the ‘missing file’ by formally requesting it and by addressing a letter to the Registrar placing their concern and version on record marked as ‘OP7’ and ‘OP8’ respectively.

[22] Although, the applicant/appellant’s consultant’s attempts to reasonably explain the delay in respect of the missing file, which saw the light of day only on the 9 October 2015, no further explanations were put forth from the 9 October 2015 to 19 October 2015, when the condonation application was actually filed.

[23] In light of the above explanation attempted to clarify the delay in prosecuting the appeal, the Court is not satisfied that the delay has been reasonably explained especially for the period between 9 - 19 October 2015, therefore such explanation is not accepted.

[24] In addition, the applicant/appellant has to prove prospects of success on appeal.  In Telecom Namibia Ltd v Nangolo and Others, the Court expressly quoted that ‘if there are no prospects of success, there is no point in granting the condonation application’.^[14]

Conclusion

[25] I quote from Miller, AJ that ‘as far as the prospects of success are concerned the applicant is on even shakier ground’.^[15]  Even if this Court condones the late filing of the appeal and reinstates it as such, the applicant faces another strong-willed dilemma of prescription – the essence of why the referral was dismissed in the first place by the arbitrator.  In addition, the respondent raises the issue of non-joinder of the Retirement Fund by the applicant/appellant.^[16]  In my view, the applicant/appellant, in his affidavit, failed to show that another Court would come to a different conclusion than reached at by the arbitrator.

[26] The Court does take into account that the matter is of significance to the applicant as it involves unfair dismissal, unfair labour practice and severance.  However, the Court cannot ignore the time-line of approximately 13 years between the dismissal of the applicant/appellant and his referral to the Office of the Labour Commissioner. Logic dictates that a matter so significant would have been taken up with the utmost urgency by the applicant/appellant, not more than a decade later.  That again is also an indication that the applicant/appellant’s explanation is flawed due to own ineptitude.  Flowing from the above conclusion therefore, the relief sought in the notice of the motion will not be granted.

[27] In the result, the following order is made:

(i) In view of the defect in the notice of motion of opposition filled by the respondent on 11 November 2015, the point in limine raised by the applicant/appellant is upheld, the application therefore, treated as unopposed;

(ii) The order sought by the applicant/appellant in prayers 1, 2, 3 and 4 of the notice of motion is declined.

E P UNENGU

Acting Judge

APPEARANCES

APPELLANT : Kasper of Murorua & Associates, Windhoek

RESPONDENT: R Philander of ENSAfrica ǀ Namibia (Incorporated as LorentzAngula Inc.), Windhoek

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