REPORTABLE

CASE NO. LCA 25/2009

SUMMARY:

MUNICIPAL
COUNCIL OF THE MUNICIPALITY

OF
WINDHOEK APPELLANT

and

MARIANNA
ESAU RESPONDENT

HOFF, J

2010/03/12

Appellant
must in terms of Rule 17(25) prosecute an appeal within 90 days of
noting an appeal.

If
not so prosecuted appeal deemed to have lapsed.

Rule
17(19) also relevant – governs when appeal us deemed to have
been duly prosecuted.

In
casu application for
trial date in terms of Rule 17(17) outside 90 day period

Court
may glean ex facie
the record that an appeal is deemed to have lapsed.

REPORTABLE

CASE NO. LCA 25/2009

IN
THE LABOUR COURT OF NAMIBIA

In
the matter between:

MUNICIPAL
COUNCIL OF THE MUNICIPALITY

OF
WINDHOEK APPELLANT

and

MARIANNA
ESAU RESPONDENT

CORAM: HOFF,
J

Heard
on: 2010.03.05

Delivered
on: 2010.03.12

JUDGMENT

HOFF,
J: [1] This
is an appeal against an arbitration award granted, in terms of the
provisions of section 86 of the Labour Act 11 of 2007, in favour of
the respondent.

[2] Mr
Mouton, (who appeared on behalf of the respondent) on 5 March 2010 at
the inception of this hearing, raised a point in
limine.

[3] It
was submitted that in terms of the Rules of the Labour Court, and in
particular Rule 17(25), the appeal is deemed to have lapsed since the
appellant did not prosecute its appeal within the prescribed 90 days.

[4] In
terms of Rule 17(2) an appeal must be noted by delivery of a notice
of appeal setting out concisely and distinctly which part of the
decision is appealed against as well as the grounds of appeal.

The
appellant gave notice of appeal on 15 June 2009.

[5] In
terms of Rule 17(17) an applicant may within a period of 14 days
after receiving a statement referred to in subrule (16) apply to the
Registrar, on five days’ notice to all other parties, to assign
a date for the hearing of the appeal and the registrar must, after
consultation with the judge-president, assign such date and set the
matter down for hearing on that date. The office of the Registrar
received an application for a trial date on 6 October 2009 from
appellant.

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

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

[7] Rule
17(25) provides than 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”.

[8] A
simple calculation shows that more than 90 days had lapsed since the
noting of the appeal (15 June 2009) until the application for a trial
date (6 October 2009) on which the appeal was deemed to
have been duly prosecuted.

[9] Ms
Nambinga who appeared on behalf of the applicant conceded that more
than 90 days had passed since the noting of the appeal but submitted
that it is in practice difficult to prosecute within 90 days since
the offices of the Registrar and the Labour Commissioner are also
involved in the process of prosecuting an appeal and that she
experienced difficulty in obtaining timeously the record of the
arbitration proceedings from the Office of the Labour Commissioner.

[10] I
am not moved by this submission since in terms of the provisions of
Rule 15 this Court may on application and on good cause shown at any
time (a) condone any non-compliance with these rules, and (b) extend
or abridge any period prescribed by these rules, whether before or
after the expiry of such period.

[11] There
is no such condonation application before this Court.

[12] Subsequent
to the adjournment of the matter (for my ruling) until 12
March 2010, a “supplementary
note” was
delivered by hand to my chambers on 8 March 2010. In this
“supplementary
note” the
appellant submitted, firstly, that the respondent has failed to file
a notice to oppose the appeal as required by rule 17(16) of the Rules
of the Labour Court, secondly; that the respondent has failed to file
any statement setting out the grounds on which she opposes the
appeal, as required by Rule 17(16)(b), thirdly; that no notice of
representation was filed on behalf of the respondent as required by
Rule 16 of the High Court Rules read with Rule 22 of the Rules of the
Labour Court, and fourthly; respondent, being legally represented,
has not delivered heads of argument not less than five days before
the hearing date as required by Rule 17(23). Ms Nambinga submitted
that the point in
limine should be
dismissed for failing to comply with the Rules.

[13] Mr
Mouton in his written response to the “supplementary
note”, on
10 March 2010 submitted and that such a note is highly irregular
and that no cognisance should be given thereto because it amounts to
submissions made after the hearing, which is not allowed except in
exceptional circumstances.

Furthermore
it was submitted that the “supplementary
note” is of no
significance and cannot in any manner have an effect on the fact that
the appeal is deemed to have lapsed in terms of Rule 17(25).

[14] What
would the practical effect be should this Court dismiss the point in
limine ? Does it
mean that this Court may continue to hear the appeal despite the fact
that the appeal is deemed to have lapsed ?

I
do not think so.

In
Pieterse v Swartbooi
and Others 1955 (3) (SA) 471 (OPD)
a similar point was raised in
limine namely that
an appeal from the magistrate’s court must be dismissed for
failure to prosecute such appeal within six weeks as required by the
Rules of Court.

Rejecting
the submission that the appellants should have given notice of their
intention to raise a point in
limine the Court
held at 473 G – H that where an objection is taken by a
respondent in an appeal in which the allegation is that the notice of
appeal was not noted within the prescribed time, or where the
allegation is that the appeal was not placed on the roll within the
prescribed period, such allegations are exclusively founded upon the
papers themselves, and no notice of the objection is required to be
filed and served on the appellant, but where it is alleged that the
requisites of the Rules have not been complied with, and a question
(dispute) of fact could arise thereon, then such a notice should be
filed and served.

(See
also Corlett Drive
Estate Ltd v Boland Bank Ltd and Another 1978 (4) SA 421 CPD at 435 A
– F)

[15] I
do not suggest, on the basis of this case, that the respondent’s
failure to comply with the Rules mentioned (supra)
should be overlooked and that no notice should have been given to the
appellant, in terms of the Rules of the Labour Court, however it
appears to me, on this authority, that a failure to prosecute an
appeal timeouly may be gleaned by the Court ex
facie the record
itself.

[16] Even
if I were to rule that the respondent is not to be heard, through her
legal representative, it would not detract from the undisputed fact,
that ex facie
the papers before this Court, the appeal is deemed to have lapsed.
If this is the case, it follows that there is no appeal before this
Court.

[17] I
am of the view that there would have been much merit in the
submissions made on behalf of the appellant in the “supplementary
note” (assuming
they had been made in Court), had the appeal been prosecuted within
the prescribed period.

[18] It
is further common cause that the respondent has instituted review
proceedings in respect of the arbitration award.

[19] In
R v Parmanand 1954
(3) SA 833 AD at 838 D – E
the following appears:

“Thus where there is
only an appeal before the Court and it appears that there might be
relief open to the appellants by way of review, it would not be
proper for the Court to dismiss the appeal and consequently confirm
the conviction, thus making it impossible for the appellant, in view
of the law as laid down in R v D and Another, supra, to get relief
thereafter by way of review. In such a case the Court should at
least postpone its decision until the appellant has had an
opportunity to bring review proceedings; and if it would be a waste
of time and expense to postpone the appeal and not to decide the
matter without further proceedings, unless of course there are
circumstances in which to do so might cause prejudice to at the
Crown.”

[20] It
is clear from this dictum
that it is preferable to first hear a review application and
thereafter the appeal application.

[21] In
any event as I have indicated (supra)
this appeal is deemed to have lapsed.

[22] In
the result the following order is made:

The appeal is struck off the
roll.

___________

HOFF,
J

ON
BEHALF OF THE APPELLANT: MS NAMBINGA

Instructed
by: LORENTZ ANGULA INC.

ON
BEHALF OF THE RESPONDENT: ADV. MOUTON

Instructed
by: PETHERBRIDGE LAW CHAMBERS