NOT REPORTABLE

CASE NO: LCA
25/2009

IN THE LABOUR
COURT OF NAMIBIA

In
the matter between:

MUNICIPAL
COUNCIL OF MUNICIPALITY

OF
WINDHOEK
….................................................................APPLICANT

and

MARIANNA
ESAU …........................................................1^ST
RESPONDENT

LABOUR
COMMISSIONER …...........................................2^ND
RESPONDENT

CORAM: HENNING,
AJ

Heard
on: 24 September 2010

Delivered
on: 29 September 2010

________________________________________________________________________

JUDGMENT

HENNING, AJ:

[1] The applicant
was the employer of the first respondent. Before the Labour
Commissioner – the second respondent – the first
respondent alleged that she was unfairly dismissed by the applicant
and that the applicant had unilaterally changed the terms of her
employment contract. She failed on the first issue and succeeded on
the second issue. The applicant was ordered to pay the first
respondent her final salary multiplied by six. On 15 June 2009 the
applicant filed a notice of appeal to this Court.

[2]
The appeal was heard on 5 March 2010. At the hearing of the appeal
the first respondent in limine contended that rule 17(25) was
not complied with and that the appeal had lapsed. The rule reads:

“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.”

In a judgment
delivered on 12 March 2010 Hoff J found that the appeal was not
prosecuted within the prescribed 90 day period and that the appeal
was deemed to have lapsed. The appeal was accordingly struck from the
roll. Subsequent to the adjournment of the matter, and pending
judgment, a “supplementary note” was delivered to
the chambers of Hoff J. The note sought belatedly to challenge the
locus standi of the first respondent because of alleged
non-compliance by the first respondent with rule 17(16). This issue
should of course have been raised in limine. The learned Judge
held that it in any event appeared ex facie the papers that
the appeal had lapsed. The applicant is now seeking condonation for
its failure to timeously prosecute the appeal and applies for a
reinstatement of the appeal. The second respondent did not
participate in the appeal.

[3]
A party seeking rescission of a judgment must show the absence of
wilful default or gross negligence and prima facie some
prospect of success on the merits. In order to establish the absence
of wilful default or gross negligence the applicant must present a
reasonable and acceptable explanation for the default.

TransNamib
Holdings Ltd v Reinhardt Gaeb (case no LC 15/2005) page 4,
unreported, (NmHC).

[4]
At the hearing of the application counsel for the applicant in
limine questioned the locus standi of the first
respondent. The applicant relied on non-compliance with rule 17(16)
which reads:

“Should
any person to whom the notice of appeal is delivered wish to oppose
the appeal, he or she must –

1. 
   within 10 days
   after receipt by him or her of the notice of appeal or any amendment
   thereof, deliver notice to the appellant that he or she intends so
   to oppose the appeal on Form 12, and must in such notice appoint an
   address within eight kilometers of the office of the registrar at
   which he or she will accept notice and service of all process in the
   proceedings; and

   
   

2. 
   within 21 days
   after receipt by him or her of a copy of the record of the
   proceedings appealed against, or where no such record is called for
   in the notice of appeal, within 14 days after delivery by him or her
   of the notice to oppose, deliver a statement stating the grounds on
   which he or she opposes the appeal together with any relevant
   documents.”

   
   

Although
this issue was referred to by Hoff J in his judgment mentioned above,
the first respondent elected not to apply for condonation in terms of
rule 15. Because this application assumes the absence of the appeal
until it is reinstated, argument by counsel for the first respondent
was heard. In view of the ultimate finding this issue does not seem
to be significant.

[5]
Between 15 June 2009 when the plea was noted and mid February 2010
when the appeal could have been enrolled some eight months have
elapsed. This is a serious deviation from the 90 day period
prescribed by rule 17(25). The applicant relied heavily on a delay by
the second respondent to make a transcript of the audio proceedings
available to it, the very late furnishing of the exhibits by the
second respondent, and “an oversight and workload on the
part of the Legal Practitioners of the Applicant”.

[6]
It seems that not much pressure was applied to activate the second
respondent. The applicant’s in-house legal officer, Mr Josua,
attended to the matter. He, in a rather leisurely fashion,
communicated with Miss Nambinga representing the applicant’s
legal practitioners of record. The first enquiry from Mr Josua seems
to have been on 20 July 2009, followed by an email on 19 August 2009.
On 25 August 2009 – some 70 days after the noting of the appeal
– the transcript of the record was received by Miss Nambinga,
and was delivered to Mr Josua on 26 August 2009. Miss Nambinga then
states:

“On the
02^nd
October 2009, at about 15H45, I request Mr. Josua by e-mail to read
the record and to advise me whether the same were in order. I pointed
out in that e-mail that a certificate had to be filed with the record
confirming that the record were in order. I further indicated to Mr.
Josua that the next date for legal practitioners to apply for dates
of trials was on the 14^th
October 2009, and that the Applicant had only until the 06^th
October 2009 to file an application for the trial date. Mr. Josua
indicated to me that he would revert to me by the following Monday.”

The
date of 2 October 2009 was more than 2 weeks after the appeal was
deemed to have lapsed.

[7]
It seems that it was only by letter dated 27 October 2009 that Miss
Nambinga conveyed to the second respondent that the record was
incomplete since the exhibits were not part of the record. The next
date mentioned by Miss Nambinga is 30 November 2009 when she went on
leave. Upon her return on 18 January 2010 she again by letter
enquired from the second respondent regarding the exhibits which she
“During the last week of January 2010, on a date I cannot
recall” received. This is then followed by the overstated
submission:

“I
respectfully submit that the correspondence discussed in the
preceding paragraphs show that the Applicant has been pursuing the
appeal with vigour.”

[8] Further steps
have to be taken after receipt of the record, which includes the
exhibits – rules 17(15) and 17(16). Only thereafter can a date
for hearing be assigned – rules 17(17) and 17(18). Rule 17(19)
states:

“On
receipt of an application referred to in subrule (17) and (18) from
appellant or respondent the appeal is deemed to have been
prosecuted.”

[9]
Much of the criticism expressed in Moraliswani v Mamili 1989
(4) SA 1 (AD) and Ondjava Construction CC and Others v HAW
Retailers t/a Ark Trading, case no SA 6/2009 NmSC applies to this
case. In the Ondjava case (page 10) the Supreme Court referred
to a remark by a Judge of Appeal who said:

“Litigation
is a serious matter and, once having put a hand to the plough, the
applicant should have made arrangements to see the matter through.”

[10]
On a conspectus of the history of this matter, it appears that the
appeal was grossly neglected by both the applicant’s in-house
legal officer and by the applicant’s legal practitioners.
According to a letterhead of the legal practitioners the firm
consisted of inter alia 11 directors and 7 assistants. Their
emails to the applicant were copied to De Kock (JS) and Smith (HC).
It would not be appropriate for the applicant to shield behind the
legal practitioners. In summary then the following from the
Moraliswani case (10B-F) applies to this matter:

“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. The
fact that much of the blame may be attributed to the plaintiff's
attorneys does not, in my view, detract from this conclusion. As was
stated in Saloojee and Another NNO v Minister of Community
Development 1965 (2) SA 135 (A) at 141C:

'There is a
limit beyond which a litigant cannot escape the results 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.'

See also
Immelman v Loubser en 'n Ander 1974 (3) SA 816 (A) 824A - B and P E
Bosman Transport Works Committee and Others v Piet Bosman Transport
(Pty) Ltd 1980 (4) SA 794 (A) at 799F - in fin.

In
what I have said above, I did not deal with the plaintiff's prospects
of success on appeal. There are two reasons for this. Firstly, there
is the form of the petition. As was stated in Rennie v Kamby Farms
(Pty) Ltd (supra at 131E) it is advisable, where application for
condonation is made, that the petition should set forth briefly and
succinctly such essential information as may enable the Court to
assess the appellant's prospects of success. This was not done in the
present case: … But secondly, and in any event, the
circumstances of the present case are such that the Court should, in
my view, refuse the application irrespective of the prospects of
success (Rennie v Kamby Farms (Pty) Ltd (supra at 131I - J and
earlier authorities there quoted)).”

In
this matter some prospect of success was not in issue.

[11]
In the result the application for condonation and reinstatement of
the appeal is dismissed with costs.

___________________________

HENNING,
AJ

ON BEHALF OF
APPLICANT: Adv S Akweenda

Instructed by

LorentzAngula Inc

ON BEHALF OF
1^STRESPONDENT: Miss Schultz

Frieda Schultz
Attorneys