Namibia: Labour Court Main Division

REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: LCA 63/2015

NOT REPORTABLE

In the matter between:

NESTOR IYAMBO............................................................................................................APPELLANT

And

TORRA BAY FISHING (PTY) LTD................................................................FIRST RESPONDENT

GERTRUDE USIKU.....................................................................................SECOND RESPONDENT

Neutral citation: Iyambo v Torra Bay Fishing (Pty) Ltd (LCA 63-2015) [2016] NALCMD 28 (21 July 2016)

Coram: VAN WYK, ACTING

Heard: 20 July 2016

Delivered:20 July 2016

Reasons released on: 21 July 2016

Flynote: Labour Act 11 of 2007 – s 89 (2) - award must be served – what constitutes service.

Summary: Appellant received telephonic notification of award and selects to collect award 5 days later. Held that telephonic notification of award is proof of service in terms of Rule 5 (8) of the Rules of the Labour Court, (hereinafter referred to as the ‘Rules’)  in the current factual matrix. Appeal was noted out of time. Appeal was struck from the roll.

ORDER

1. The appeal is struck from the roll.

2. There is no order as to costs.

REASONS

[1] First respondent raised a point in limine in his principle heads of argument that the appeal was noted out of time and is not properly before court, and hence it must be struck from the roll.

[2] During argument of this point in limine, it was common cause that the appellant received a phone call on the 13^th of October 2015, from the arbitrator notifying him that the award was handed down and is ready for collection.

[3] Counsel for the appellant submitted in argument that the appeal was noted on the 16^th November 2015. During argument of the point in limine he submitted that s 89 (2) of the Labour Act, 11 of 2007 (hereinafter referred to as the Act), requires service of the award on the appellant, from which time of service, the appellant has 30 days to note the appeal. He then further submitted that the appellant only collected the award 5 days after receiving the phone call from the arbitrator, thus on the 18^th October 2015. He further submitted that the 30 day period commenced on the date on which appellant collected the award. In his contention that constituted service in terms of s 89 (2) of the Act. Accordingly, in his contention, the dies for noting the appeal stretched from 18 October 2015 until the 17^th November 2015 and the appeal was properly noted on the 16^th November 2015. Hence the appeal was noted in time.

[4] The 18^th October 2015 was on a Sunday. Be that as it may, the court considered the contention of the appellant that service in terms of s 89 (2) of the Act, means the collection of the award by the appellant from the Office of the Labour Commissioner at the instance of the appellant.

[5] In the case currently under my scrutiny, the arbitrator informed the appellant telephonically that the award is ready for collection on the 13^th October 2015. Appellant selected to collect the award at a later date. The question this court needs to answer is at which point in time was the award duly served in the current factual matrix.

[6] I cannot accept the submission of counsel for the appellant that the proper service in the current context meant at the time of collection of the award by the appellant, at the instance of the appellant. If I accept that contention, it would lead to an absurd interpretation of the time restriction in s 89 (2) of the Act. It would mean that the appellant can collect the award at any time convenient to him, one month or two months or even three months after he received telephonic notification of the award.

[7] Rule 5 of the Rules of the Labour Court provides for the different ways in which service of process may be effected. Rule 5 (8) of the Rules, provides that the court may accept proof of service in a manner, other than prescribed in this Rule, as sufficient. It is my finding that the telephonic notification of the award to appellant, constituted service in terms of s 89 (2) of the Act. This finding is not contrary to my interpretation of the language of Rule 17 (4) of the Rules, repeating the time restriction stipulated in s 89 (2) of the Act. Rule 17 (4) of the Rules provides that the notice of appeal must be delivered within 30 days after the award ‘came to the notice of the appellant’.

[9] In the premises, I find that the appeal was noted out of time in terms of Rule 17(3) and (4) of the Rules and is not properly before court.

[10] The appeal is struck from the roll. There is no order as to costs.

L VAN WYK

Acting Judge

APPEARANCES

APPELLANT : F Bangamwabo

Of Clement Daniels Attorneys, Windhoek

RESPONDENT: G Dicks

Instructed by Malherbe Associates Inc, Windhoek