REPUBLIC OF NAMIBIA
LABOUR COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: LC 2/2010
In the matter between:
NAMQUEST FISHING (PTY)
LTD
...............................................................APPLICANT
and
VILHO MELKISENDEKI
...............................................................FIRST
RESPONDENT
GERTRUD USIKU
...................................................................SECOND
RESPONDENT
Neutral
citation: Namquest Fishing (Pty) Ltd v
Vilho Melkisendeki (LC 2/2010) [2013] NALCMD 16 (20 MAY
2013)
Coram: UEITELE, J
Heard: 15 November
2012
Delivered: 20 May 2013
Flynote:
Labour Court -
Applications and motions – application to review and set aside
arbitration award – Section 89(4) of the Labour Act, 2007 read
with Rule 14(7) of Labour Court Rules requiring such application to
be launched within 30 days of the arbitration award having been
handed down.
Labour
law - Procedure – Application in terms of Rule 6 (1) of the
Labour Court Rules - Such application must be by notice of
motion supported by an affidavit as to the facts upon which the
applicant relies for the relief - In present case
the affidavit attached to notice of motion not commissioned by person
competent to commission oath.
Labour
law - Procedure – Application to review and set aside
arbitration award – in terms of Section 89(4) of the Labour
Act, 2007 read with Rule 14(7) of Labour Court Rules - Affidavit used
is support of the relief claimed in such application must be
authenticated as contemplated in Rule 63 of the rules of the High
Court.
Summary:
The first respondent
referred a complaint of unfair dismissal and unfair labour practice
to the office of the Labour Commission. The Arbitrator handed down an
arbitration award when applicant and his representative walked out of
a conciliation proceedings. Applicant launched an application to have
the proceedings leading to the arbitration award reviewed and set
aside.
Held that at the
time when application to review and set aside the
conciliation/arbitration proceedings was launched, the document
annexed to the notice of motion was not an affidavit, as a result
there was no application before the court.
Held further that
rule 63 of the High Court Rules requires a document that is executed
outside Namibia to be authenticated as contemplated in rule 63(2). If
the document is not so authenticated it cannot be used in any
proceedings before this court. The document annexed to the
applicants’ notice of motion launched on 15 February 2010 can
therefore not be used in support of the relief sought. Since there is
no affidavit attached to the application, there was no application
filed within the 30 days contemplated in section 89(4) of the Labour
Act, 2007.
Held further that
the filing of an affidavit some eighteen months later does not assist
the applicant, as there is no application to condone the late filing
of the application for review.
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ORDER
The applicant’s
application is struck from the roll, no order as to cost.
JUDGMENT
UEITELE J:
[1] The applicant in this
matter is Namquest Fishing (Pty) Ltd which has brought an application
on notice of motion to:
‘(a)
review and set aside the arbitration proceedings conducted before the
second respondent between the applicant and 1st
respondent and resultant award dated 11 January 2010…;
(b)
alternative to prayer (a) supra, declare the said arbitration
proceedings and resultant award dated 11 January 2010 …to be
null and void as being in conflict with Articles 12(1)(a) and
18 of the Namibian Constitution and/or the common law;
(c)
Costs be awarded against both the First Respondent and Second
Respondent, the one paying the other to be absolved;
(d)
That the arbitration award made in terms of case number CRW 31/2009 ,
by the arbitrator, being the Second Respondent be stayed pending the
review application;
(e)
Granting such further and/or alternative relief as this honourable
court may deem fit.’
[2]
I find it appropriate to briefly set out the factual background to
this matter. Mr Vilho Melkisendeki, who, I will in this judgment
refer to as ‘the first respondent’ referred a complaint
of unfair dismissal and unfair labour practice to the office of the
Labour Commission on 2 September 2009. On 26 October 2009, the Labour
Commissioner gave notice in terms of Regulation 20(2) of the Labour
General Regulations
and section 86(4) of the
Labour Act, 2007
that the complaint of the
first respondent is set down for an arbitration hearing before,
Ms. Gertrud Usiku, who, I
will in this judgment refer to as ‘the second respondent’
on 11 November 2009 at 09 o’clock at Walvis Bay Municipal
chambers. On the same date (i.e. on 26 October 2009), the Labour
Commissioner, designated the second respondent as the Arbitrator.
[3] On 30 October 2009
(the applicant’s letter is erroneously dated 30 September 2009)
the applicant addressed a letter to the office of the Labour
Commissioner in which letter it requested a postponement of the
conciliation/arbitration hearing to a new date. The request was
granted and the conciliation/arbitration hearing was set down for 11
December 2009.
[4] On 4 December 2009,
the applicant through its legal practitioners addressed a letter to
the office of the Labour Commissioner, in which letter it states that
the “respondent hereby formally objects that the hearing takes
place before the appointed arbitrator Ms. Gertrud Usiku on inter
alia the following grounds: Mrs. Usiku already pronounced herself
in no uncertain terms on the merits of the case on 20 August 2009.
Mrs. Usiku’s impartiality is not only questioned but downright
rejected.”
[5] On 11 December 2009,
the conciliation proceedings started before the second respondent. At
the start of the proceedings, the first respondent objected to the
presence of Mr Steyn the applicant’s legal practitioner. Mr
Steyn responded to the objection by stating that the proceedings were
still at the conciliation phase, and he could thus represent his
client. Mr Steyn thereafter raised a point in limine. The
point in limine raised by Mr Steyn is that the applicant was
cited as Namquest Fishing which according to Mr Steyn was unknown to
the applicant. He, Mr Steyn accordingly prayed that the first
respondent’s claim be dismissed. The first respondent responded
that he simply omitted to add “(Pty) Ltd” to the name of
the applicant and moved for the citation of the applicant to be
corrected so that it is reflected as Namquest Fishing (Pty) Ltd. The
second respondent allowed the amendment. After the amendment was
allowed, the applicant’s representative (a certain Mr De
Castro) and the applicant’s legal representative (Mr. Steyn)
walked out of the conciliation hearing.
[6] At about 12h40 on the
same date that the applicant’s legal representative and the
applicant’s representative walked out of the conciliation
meeting (i.e. 11 December 2009), the arbitrator addressed a letter to
Mr Steyn in which she informed him that the arbitration proceedings
in the matter of first respondent and the applicant will proceed that
date (i.e. 11 December 2009) at 14h00. Mr Steyn contacted Mr De
Castro and both agreed that it was not worth to attend the
arbitration hearing. They accordingly did not attend the arbitration
hearing. The arbitration hearing proceeded in the absence of the
applicant and its legal representative on 11 December 2009.
[7] On 11 January 2010,
the arbitrator made an arbitration award and found in favour of the
first respondent. She accordingly ordered the applicant to pay the
first respondent an amount of N$99 900. The award was sent by
registered mail to the address of Mr Steyn who alleges that he only
received the written award on 15 January 2012. The arbitrator,
however, states that she personally handed the award to the legal
representative of the applicant on 11 January 2010. It is the award
dated 11 January 2010 which the applicant seeks this court to review
and set aside or declare void.
[8] The applicant
launched its review application on 15 February 2010. The return of
service (i.e. Form L.G. 36) indicates that ‘the notice of
motion and the affidavits together with the annexures to the
affidavits’ were served on the Labour Commissioner and on the
first applicant on the 15 February 2010. Between 15 February 2010
(when the notice of motion was first served on the Labour
Commissioner and the first respondent) and 25 July 2011 (when the
first respondent gave notice of its intention to oppose the review
application) nothing happened. Because the first respondent was out
of time to file his notice to oppose the applicant’s review
application, he applied to this court to condone his lateness in
filling the notice to oppose the applicant’s review
application. On 02 September 2011 this Court condoned the late
filling of the notice to oppose the review application and granted
the first respondent leave to file its opposing/answering affidavit.
[9] The first respondent
filed its opposing affidavit and in that affidavit raised four
preliminary objections against the applicant’s application. The
points in limine raised by the first respondent are:
The first point in
limine is that the application does not comply with section
89(4)(a) of the Labour Act, 2007 and Rule 14(2) of the Labour
Court Rules, in that the review application was launched more than
30 days after the award was handed down.
The second point in
limine is that the affidavit (the founding/supporting
affidavit) used in support of the relief claimed was not
authenticated as contemplated in Rule 63 of the rules of the High
Court.
The third point in
limine is that the applicant has not complied with Rule 14(3)
of the Labour Court rules, in that the record of the arbitration
proceedings was not certified as a true record of the arbitration
proceedings; and
The fourth point in
limine is that the applicant did not comply with rule 14(9)
in that the applicant did not supplement its founding affidavit, but
instead in toto replaced/substituted the founding affidavit.
[10] I will now proceed
to consider the points raised in limine. As indicated above
the first point in limine is that the application for review
does not comply with section 89(4)(a) read with rule 14(7). A
review application in respect of a labour matter is governed by
section 89 of the Labour Act, 2007 that section amongst others, reads
as follows:
“89
Appeals or reviews of arbitration awards
…
(4)
A party to a dispute who alleges a defect in any arbitration
proceedings in terms of this Part may apply to the Labour Court for
an order reviewing and setting aside the award-
(a)
within 30 days after the award was served on the party, unless the
alleged defect involves corruption; or
(b)
if the alleged defect involves corruption, within six weeks after the
date that the applicant discovers the corruption.
(5)
A defect referred to in subsection (4) means-
that
the arbitrator-
(i)
committed misconduct in relation to the duties of an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the arbitrator's power; or
(b)
that the award has been improperly obtained.”
[11] What is clear from
the provisions of section 89(4) and (5) is that the basis on which
this court may review and set aside an arbitration award is when an
applicant alleges and proves a ‘defect’ in the
arbitration proceedings. It is furthermore clear that for the court
to review the arbitration proceedings the aggrieved party must apply
to the Labour Court within 30 days after the arbitration award was
served on that party.
[12] In the present
matter the following facts are not in dispute:
The arbitration award
was handed down on 11 January 2010;
The application to
review and set aside the arbitration proceedings was launched on 15
February 2010; and
The applicant has not
filed an application to condone the alleged non-compliance with the
provisions of section 89(4) read with rule 14(7).
[13] There are
conflicting versions as regards the date on which the arbitration
award was served on the applicant. The second respondent alleges that
she personally served the arbitration award on Mr Steyn the legal
practitioners for applicant on 11 January 2010. Mr De Castro, who
deposed to the affidavit on behalf of the applicant on the other hand
alleges that he only received the award via e-mail from Mr Steyn on
25 January 2010. Mr Steyn alleges that he received the award per
registered mail on 15 January 2010.
[14]
I am of the view that the dispute as regards the date on which the
arbitration award was served on the applicant can be resolved by
reference to section 129 of the Labour Act, 2007 and rule 6 of the
Rules Relating to the Conduct of Conciliation and Arbitration before
the Labour Commissioner.
Rule 6 amongst others provide as follows:
“6
Service of documents
(1)
Service of documents in terms of the Act or these Rules may be
effected by the party to the proceedings, a person duly authorised in
writing by the party to serve the process, or a messenger of the
court appointed in terms of section 14 of the Magistrates Courts Act,
1944 (Act 32 of 1944).
(2)
Subject to section 129 of the Act, a document may be served on the
other parties-
by
handling a copy of the document to-
the
person concerned;
a
representative authorised by the other person to accept service on
behalf of that person;
(iii)
a person who appears to be at least 16 years old and in charge of the
person's place of residence, business or place of employment premises
at the time; or
(iv)
a person identified in subrule (3);
(b)
…”
Section 129 of the Labour
Act, 2007 in material terms provide as follows:
“129
Service of documents
For
the purpose of this Act-
(a)
a document includes any notice, referral or application required to
be served in terms of this Act, except documents served in relation
to a Labour Court case; and
(b)
an address includes a person's residential or office address, post
office box number, or private box of that employee's employer.
(2)
A document is served on a person if it is-
(a)
delivered personally;
(b)
sent by registered post to the person's last known address;
(c)
left with an adult individual apparently residing at or occupying or
employed at the person's last known address; or
in
the case of a company-
delivered
to the public officer of the company;
left
with some adult individual apparently residing at or occupying or
employed at its registered address;
sent
by registered post addressed to the company or its public officer at
their last known addresses; or
(iv)
transmitted by means of a facsimile transmission to the person
concerned at the registered office of the company.
(3)
Unless the contrary is proved, a document delivered in the manner
contemplated in subsection (2)(b) or (d)(iii), must be considered to
have been received by the person to whom it was addressed at the time
when it would, in the ordinary course of post, have arrived at the
place to which it was addressed.”
[15]
It is common cause that the second respondent served the arbitration
award on Mr Steyn of the Law Firm, CL de Jager & Van Rooyen.
There is no evidence on the record indicating that the applicant in
writing authorized,
Mr Steyn to accept service of documents on its behalf. I am thus
satisfied that the arbitration award was only served on the applicant
on 25 January 2010. It therefore appears that the application to
review and set aside the arbitration proceedings was launched within
the 30 days period contemplated in section 89(4) of the Labour Act,
2007 and Rule 14(2) of the Labour Court Rules.
[16] I used the word
appears, because Mr Van Zyl who represented the first respondent,
argued that even if I find that the review application was launched
within the 30 days period contemplated in the Labour Act, 2007 and
Rule 14(2) of the Labour Court Rules, the applicant is still out of
time.
[17]
Mr Van Zyl based his submissions, on the provisions of rule 6(1) of
the Labour Court Rules
which in material terms
provides as follows:
“6
Applications
Every
application must be brought on notice of motion supported by an
affidavit as to the facts upon which the applicant relies for
relief.”
He thus argued that rule
6(1) required of an applicant who desires to have arbitration
proceedings set aside, to bring an application on notice of motion
supported by an affidavit as to the facts upon which the applicant
relies for the relief. He further submitted that the document
attached to the applicant’s notice of motion is not an
affidavit and should also be disregarded as it does not comply with
the provisions of rule 63 of the High Court Rules.
[18]
I am of the view that the submission of Mr Van Zyl is meritorious. I
say so for the following reasons: In the present matter, the ending
part of the document purporting to be an affidavit deposed to by Mr
Fernando De Castro provides as follows:
‘Dated
at Walvis Bay on this 10th
day of February 2010.
___________________________
Fernando
De Castro
I
certify that on the 10th day of February 2010 in my
presence at Walvis Bay the deponent signed this affidavit and
declared that he:
knew
and understood the content thereof;
had
no objection to taking this oath;
considered
the oath to be binding on his conscience and uttered the words: ‘I
swear that the contents of this affidavit are true, so help me God’.
BEFORE
ME
SIGNED
AND STAMPED ABOVE
COMMISSIONER
OF OATHS
FULL
NAMES: GLORIA BLANCO IGLESISAS
ADDRESS:
GIEBERNO CENTRAL
DELEGACION
DEL GOBERIENO DE LA CORUNA
PLAZA
DE ORENSE
CAPACITY:
LA CORUNA
ESPANA
DELEGADA’
[19]
An 'affidavit' is defined as 'a written statement, sworn by the
deponent . . .’
It is trite that an
affidavit must be sworn to before a person competent to administer an
oath.
Commissioners of oaths and Justices of the Peace are either appointed
by the Minister of Justice for a specific area or magisterial
district within the Republic of Namibia
or are holders of
specified offices designated as ex-officio
Commissioners of oaths
and Justices of the Peace.
[20]
In the present matter the document purporting to be the supporting
affidavit creates the impression that the statement contained in that
document was sworn to before a certain Gloria Blanco Iglesias, with
an address somewhere in “Espana” (Spain). If indeed that
is correct there is no evidence before me that Gloria Blanco was
appointed or designated as a Commissioner of Oaths in terms of
section 8(1)(a) of the Justices of the Peace and Commissioners of
Oaths Act, 1963.
It thus follows that the affidavit was not sworn to before a person
who is competent to administer an oath and the document attached to
the notice of motion is thus not an affidavit as is required by the
rules of this court.
[21]
During argument Ms. Petherbridge who appeared for the applicant
submitted that the affidavit must be containing typographic errors
because Mr De Castro was not in Walvis Bay when he signed the
affidavit, she said he was in Spain. But that still does not save the
document, as rule 63 of the High Court Rules requires that a document
executed outside Namibia be authenticated as contemplated in rule
63(2). If the document is not so authenticated it cannot be used in
any proceedings before this court.
The document annexed to the applicants’ notice of motion
launched on 15 February 2010 can therefore not be used in support of
the relief sought. Since there is no affidavit attached to the
application, there was no application filed within the 30 days
contemplated in section 89(4) of the Labour Act, 2007.
[22]
Ms. Petherbridge however sought to argue that the affidavit that was
filed together with the notice of motion on 15 February 2010, was
replaced by a properly commissioned affidavit, which was filed on 11
June 2011. I have made the finding that at the time when application
was launched, (i.e. on 15 February 2010) there was no affidavit
annexed to the notice of motion and as a result there was no
application before the court. It therefore follows that filing of an
affidavit some eighteen months later does not assist the applicant as
there is no application to condone the late filing of the application
for review. I uphold the first and second points in limine
raised by the first
respondent.
[23] In the result I make
the following order:
The applicant’s
application is struck from the roll and I make no order as to cost.
----------------------------------
SI Ueitele
Judge
APPEARANCES
APPLICANT: Ms.
Petherbridge
Of Petherbridge Law
Chambers, Windhoek.
FIRST RESPONDENT: C J VAN
ZYL
Instructed by Metcalfe Attorneys,
Windhoek.
SECOND RESPONDENT: No
Appearance
Namquest Fishing (Pty) Ltd v Melkisendeki and Another (LC 2/2010) [2013] NALCMD 16 (20 May 2013);