Keya v Chief of Defence Force and 3 Others (A 29/2007) [2009] NAHC 10 (20 February 2009);

Group

Full judgment
ON RESUMPTION ON 2008


NOT REPORTABLE


CASE NO. LCA 19/08




IN THE HIGH COURT OF NAMIBIA



In the matter between:



ROSE SWARTZ APPELLANT



and



NAVACHAB GOLD MINE RESPONDENT




CORAM: HOFF,J




Heard on: 2009.03.20



Delivered on: 2009.03.20 (Ex tempore)


___________________________________________________________________________



JUDGMENT:



HOFF, J.: [1] This is an appeal by the appellant against a judgment of the learned Chairperson in the district labour court which judgement was delivered in the district of Karibib. The appellant is unrepresented. The respondent is represented by Mr Visser from the firm Lorentz Angula Incorporated, Windhoek.


[2] Three points in limine were raised. The first point concerns the late filing of the notice of appeal by the appellant. The second point relates to the non certification of the record by the chairperson of the district labour court and the third point in limine relates to the general preparation of the record of the proceedings in the district labour court.


[3] It was conceded by Mr Visser that, should the first point in limine be a successful, then the second and third points in limine, being dependant upon the success of the first point, need not to be decided by this Court.


[4] In terms of the rules of the district labour court and in particular Rule 19(2) an appeal from the district labour court to this Court, shall be noted by delivery within a period of 14 days of the date of the judgement a notice of appeal and such notice of appeal shall set out (a) whether the appeal is from the judgement or order in whole or in part, and if in part only, which part; (b) the point of law or fact appeal against and (c) the grounds upon which the appeal is based.


It was submitted that the appellant in this matter filed an appeal out of time and different dates were mentioned indicating why the appeal filed was late.


[5] The notice of appeal was filed on the 23rd day of October 2007 as it appears from the date stamp of the clerk of the court, (even though this notice appears to have been signed by the appellant on 16 October 2007). The judgement of the chairperson of the district labour Court appears to have been written on the 21st day of August 2007. However, I shall for the benefit of the appellant accept that the judgment was delivered on the 24th of September 2007 (reflecting the date stamp of the clerk of the court) and the appellant informed this Court that, this was also the date on which she received the judgement of the chairperson of the district labour court.


[6] I shall therefore, for the purposes of the first point in limine, accept that judgement was delivered on the 24th of September 2007 and that the appellant filed a notice of appeal on the 23rd day of October 2007.


[7] Having regard to those dates, it is clear that the filing of the notice of appeal was out of time, outside of the 14 day period prescribed in the Rules of the district labour court. The appellant therefore, since she was late with the filing of the notice of appeal, had to apply to the chairperson of the district labour court to condone the non-compliance of the Rules. This was not done. This is in my view an important step that should have been taken by the appellant and in the absence of condonation being granted by the chairperson of the district labour court, this appeal is not properly before this Court. This Court in this appeal therefore, finds that this first point raised in limine should succeed for that reason alone.


[8] The appeal therefore stands, to be struck from the roll. Depending on the course of action that the appellant intends to pursue, I may just add that should she approach the district labour court, with a condonation application, and should that condonation application be successful, then the second point as well as the third point raised in limine, should then be attended to.


[9] For the reasons given, this appeal is therefore struck from the roll.


[10] The cross-appeal is also struck from the roll.






___________

HOFF,J.









ON BEHALF OF THE APPELLANT IN PERSON




ON BEHALF OF THE RESPONDENT: MR VISSER



Instructed by: LORENTZ ANGULA INC.


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