REPUBLIC OF NAMIBIA
LABOUR COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: LC 129/2012
In the matter between:
RIAAN FRANS SAMARIA
...........................................................................APPLICANT
and
ONO ANGULA N.O.
..........................................................................1ST
RESPONDENT
LABOUR COMMISSIONER
N.O. .....................................................2ND
RESPONDENT
RÖSSING URANIUM
LIMITED ........................................................3RD
RESPONDENT
Neutral citation:
Samaria v Angula & 2 others (LC 129/2012) [2013]
NALCMD 25 (24 July 2013)
Coram: UEITELE, J
Heard: 18 July
2013
Delivered: 18 July
2013
Reasons released on:
24 July 2013
Flynote: Labour
law- review- notice of motion- whether the review was brought outside
the period contemplated in section 89(4) of the Labour Act,
2007-Interpretation of statutes- ordinary grammatical meaning - the
meaning which must be given to the words ‘may apply to court’
is the meaning in favour of an injured party-“may apply to
court’ means that the application is issued out of court- Act.
Summary: The
applicant was employed by the third respondent in this matter.
Following a disciplinary hearing the applicant was dismissed from the
services of the third respondent. The dismissal took effect on 16
November 2011. During May 2012, the applicant referred a complaint of
unfair dismissal and unfair labour practice to the second respondent.
The second respondent appointed the first respondent to conciliate
and arbitrate the dispute. On 10 August 2012 the first respondent
dismissed the complainant on the ground that the applicant referred
the dispute to the first respondent outside the time frame stipulated
in section 86 of the Labour Act, 2007. The applicant is aggrieved by
the dismissal of the complaint and instituted proceedings (by way of
a notice of motion) seeking the first respondent’s decision to
be reviewed and set aside.
The third respondent
opposed the application and raised a point in limine namely
that the applicant’s notice of motion was launched outside the
30 days period stipulated in section 89(4) of the Labour Act, 2007.
As a result of the point in limine the applicant launched an
application for the condonation (in so far as it may be necessary) of
the late serving of the notice of motion on the third respondent. The
third respondent opposed the condonation application on the ground
that, in the absence of a statutory provision empowering the court to
condone non-compliance with a statutory provision, this court does
not have the power to condone the late application for review.
Held that it has
long been accepted that the correct approach to interpret any legal
instrument is to give the words in that instrument their ordinary
grammatical meaning.
Held further that
the interpreter should evaluate the consequences of various possible
interpretations - the idea being that the Legislature must be
presumed to have a sensible, fair and workable result’.
Held that the
meaning which must be given to the words ‘may apply to court’
is the meaning in favour of an injured party: A favourable
construction is that “may apply to court’ means that the
application is issued out of court.
Held that the
applicant’s application for review was made to Court within the
period stipulated in section 89 (4) of the Labour Act and that there
is therefore no need for him to apply for condonation.
___________________________________________________________________
ORDER
___________________________________________________________________
That the applicant’s
application for review was made to Court within the period
stipulated in section 89 (4) of the Labour Act; and as a result
there is no need for him to apply for condonation for the late
serving of the notice of motion and its annexure on the third
respondent.
That there is no order
as to costs.
JUDGMENT
UEITELE J:
[1] This is an
application in which Mr Riaan Frans Samaria (to whom I will, in this
judgment) referred to as the applicant applies for an order in the
following terms:
“1.
An order condoning the applicant’s late filing of his
application for review, in so far as that may be necessary.
2.
Any alternative relief this Honourable Court finds meet.
3.
Costs of this application in the event of it being opposed.”
[2] The background to the
applicant’s application is briefly as follows. The applicant
was employed by Rössing Uranium (Pty) Limited, who is the third
respondent in this matter and I will in this judgment refer to it as
the third respondent. Following a disciplinary hearing the applicant
was dismissed from the services of the third respondent. The
dismissal took effect on 16 November 2011.
[3] During May 2012, the
applicant referred a dispute of unfair dismissal and unfair labour
practice to the Labour Commissioner (who is cited as the second
respondent in the application). The second respondent designated Mr
Ono Angula as the Arbitrator/Conciliator of the dispute. Mr Ono
Angula is cited in this application as the first respondent (I will
in this judgment refer to Mr Angula as the first respondent).
[4]
The applicant’s compliant was set down for conciliation on 10
August 2012. On that date, the third respondent’s
representative raised a point in
limine
that the referral was
made outside the six months’ time limited set by the Labour
Act, 2007.
The first respondent found in favour of the third respondent and
dismissed the applicant’s complaint.
[5] Following the
dismissal of the complaint, the applicant brought an application for
the review and setting aside of the dismissal of the compliant. The
application for review was issued by the Registrar of this court on
10 September 2012. After the registrar issued the application, the
plaintiff’s legal practitioner instructed the Deputy Sheriff to
serve the application on the first, second and third respondents. The
notice of motion together with the supporting affidavit and the
annexures thereto were served on the first and second respondent on
10 September 2012, but on the third respondent only on 24 October
2012.
[6] The reason why the
notice of motion and its annexure were only served on third
respondent on 24 October 2012 is that the Deputy Sheriff could not
serve the notice of motion on the third respondent on 10 September
2012, because the address which was provided to him or her (by the
applicant’s legal practitioner) was the wrong address. The
applicant’s legal practitioner however only noticed that the
notice of motion and its annexures were not served on the third
respondent after she was alerted (on 19 October 2012) by the third
respondent’s legal practitioner that their client had not
received the notice of motion.
[7]
On 12 November 2012 the third respondent gave notice that it will
oppose the application for review. On 12 November 2012 the third
respondent filed its answering affidavit. In the answering affidavit
the third respondent raised five points in limine.
The only point in
limine which
is relevant for determination in this application is the alleged
failure by the applicant to bring the application within a period of
30 days from the date that the arbitration award was served on him.
The matter was allocated to me for case management and was called for
the initial case management conference on 12 June 2013.
[8] Prior to the holding
of the case management conference scheduled for 12 June 2013, the
applicant on 22 May 2013 launched the condonation application. On 25
May 2013, the third respondent gave notice that it will oppose the
condonation application. When the matter was called at the case
management roll of 12 June 2013, the applicant’s legal
representative and the third respondent’s legal representative
indicated that I must deal with the condonation application, before I
deal with the substantive review application. I accordingly set down
the application for hearing the condonation application on 18 July
2013. After I heard arguments from both Mr Rukoro who appeared for
applicant and Mr. Boltman who appeared for the third respondent I
made an order that it is not necessary for the applicant to have
apply for condonation. I further indicated that I will give reasons
for my order at alter stage. The reasons for my order are contained
in this judgment.
[9] Having set out the
brief background of this application, I will now proceed to consider
the merits or otherwise of the application. But before I do that I
will briefly restate the facts which are not in dispute in respect of
this application, and they are:
The first respondent
dismissed the complained on 10 August 2012.
The applicant caused the
notice of motion, the supporting affidavit and the annexures thereto
to be issued out of this court by the Registrar on 10 September
2012.
The notice of motion and
the annexures thereto were served on the first and second
respondents on 10 September 2012 and on the third respondent on 24
October 2012.
[10] The third respondent
opposes the application for condonation on the grounds that the
review application was not brought within the time period provided
for in section 89(4) of the Labour Act, 2007 and that this court does
not have the power to condone the failure to bring review outside
those time periods.
[11] I am of the view
that the question which is determinative of this matter is whether or
not the application for review was in fact brought outside the period
contemplated in section 89(4) of the Labour Act, 2007. Section 89(4)
of the Labour Act, 2007 provides as follows:
‘89
(1)…
(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-
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.’
[12]
The starting point is thus to interpret the wording of section 89(4).
It has long been accepted that the correct approach to interpret any
legal instrument is to give the words in that instrument their
ordinary grammatical meaning. In the matter of Venter
v R
Innes CJ held that:
'By
far the most important rule to guide courts in arriving at that
intention is to take the language of the instrument, or of the
relevant portion of the instrument, as a whole; and, when the words
are clear and unambiguous, to place upon them their grammatical
construction and give them their ordinary effect.'
[13]
The above pronouncements were approved by the full bench of this
court in the matter of Van
As and Another v Prosecutor-General
Levy, AJ said:
‘It
is true that a Court must start with the interpretation of any
written document whether it be a Constitution, a statute, a contract
or a will by giving the words therein contained their ordinary
literal meaning. The Court must ascertain the intention of the
legislator or authors of document concerned and there is no reason to
believe that the framers of a Constitution will not use words in
their ordinary and literal sense to express that intention.’
[14]
The question therefore is whether the ordinary and literal sense of
the words “may apply to the Labour Court …” is
capable of more than one meaning. In the matter of Theunissen
v Payne
where the words 'the
application shall be made within 14 days' were to be interpreted, the
court per Neser, J said:
'The
question I have to decide is what is meant by the words ''and the
application shall be made within fourteen days thereafter''. The
simple question is: Is an application made on the date on which it is
served on the respondent, or is it made on the date for which it is
set down for hearing?'
[15]
In the matter of Fisher
v Commercial Union Assurance Co of SA Ltd
Vos, J was of the view
that the similar words were ambiguous, he said:
‘In
my opinion the expression "application is made" is
ambiguous: Indeed, this appears from the conflicting decisions to
which I have referred to above. The expression can mean "is made
in court", or "is made by having the application set down",
or again "is made by the issue and service of process".’
[16]
This court in the matter of the Government
of the Islamic Republic of Iran v Berends
had the opportunity to
consider the interpretation of Rule 31(2)(b) which stipulates that:
'31(2)(b)
A defendant may within 20 days after he or she has knowledge of
such judgment apply to Court upon notice to the plaintiff to set
aside such judgment and the Court may upon good cause shown and upon
the defendant furnishing to the plaintiff security for the payment of
the costs of the default judgment and of such application to a
maximum of N $200 set aside the default judgment on such terms as to
it seems meet.’
[17] The question that
arose for decision in that matter was whether the words 'apply to
Court’ were to be interpreted as meaning:
that the application
should be set down for hearing or called in Court or both called and
heard in Court within the specified period of 20 days; or
(b) that the application
must merely be lodged with the Registrar and served on the respondent
within the stipulated period?
Silungwe,
AJ agreed with the views
of Vos, J that the words which are similar to the words ‘may
apply to court’ are ambiguous he said
‘As previously
indicated, the words 'application is made', etc, are, for the reasons
stated, ambiguous and capable of bearing at least three meanings’.
[18]
It may be so that the words ‘apply to court’ are
ambiguous in that they are capable of more than one meaning. In the
Theunissen
v Payne,
it was held that
‘From
those authorities it appears clear that, when it is provided in a
statute, rule or Ordinance that an application shall be made before a
certain date. The application must be set down for hearing before
that date. It is not sufficient if the notice, as in the present
case, falls within the period fixed. The application itself must be
made within the period which has been fixed by the Ordinance.’
[19]
Vos, J disagreed with that conclusion he said:
‘Respectfully,
I differ. The effect of the reasoning referred to above is that a
procedural step, namely "set down" which is not within
applicant's power must be taken before it can be said that an
applicant has carried out the provisions of sec. 24 (2) of the
statute. This suggests that the Legislature requires the applicant to
do the impossible. How is an applicant going to bring an opposed
motion into Court within, e.g. the 14 days provided by certain
Ordinances? Rule of Court 6 allows certain days to elapse when a
motion is opposed. Thus time is allowed for notices and affidavits by
the respondent; in all some 26 Court days. It is only after the
expiry of those 26 Court days that an applicant may normally apply
for a date of set down. After such application the Registrar normally
takes some time before he allocates a date and needless to say the
actual date of set down is sometimes nine to twelve months ahead.
[20]
I am of the view that in a situation where the words used in a
statute are capable of more the one meaning the guidance given in the
matter of Ebrahim
v Minister of the Interior
namely that ‘the
interpreter should evaluate the consequences of various possible
interpretations - the idea being that the Legislature must be
presumed to have a sensible, fair and workable result’ is
fitting. Also see professor Devenish
who opines that:
‘When
there is ambiguity, or even the slightest doubt, due to, inter
alia,
the inherently flexible and qualitative nature of language, or where
more than one interpretation is possible,…then the Courts
should give expression to the presumption that the Legislature must
have intended a meaning that will avoid harshness and injustice.'
[21]
In this matter the Labour Act, 2007 simply states that a person who
alleges a defect in the arbitration proceedings may apply to the
Labour Court to have the proceedings reviewed and set aside within
thirty days from the date that the arbitration award is served on
that person. In view of the guidance given in the matter of Ebrahim
the consequences of
following the different meanings is that if the meaning advocated for
by the third respondent is accepted then the rights of an injured
party to bring an a matter before court will be severely curtailed.
It must not be forgotten that the rights of an injured party have
already been curtailed by reducing the normal period of prescription
from three years to thirty days. In the matter of the Government
of the Islamic Republic of Iran v Berends
Silungwe, AJ said
that it is linguistically
permissible to construe the words ''make an application'' as meaning
the initiation or launching of the application.
[22] I am of the view
that the meaning which must be given to the words ‘may apply to
court’ is the meaning in favour of an injured party: A
favourable construction is that “may apply to court’
means that the application is issued out of court.
[23] In the present
matter the decision which the Court is asked to review is the
decision of the first respondent. The Notice of Motion and the
annexures to that Notice of Motion were served on the Registrar and
the first respondent on 10 September 2012 which is within the thirty
days contemplated in section 89(4) of the Labour Act, 2007. I am thus
of the view that the applicant complied with the provisions of
section 89(4) of the Labour Act, 2007.
[24] In the result I make
the following order:
That the applicant’s
application for review was made to Court within the period
stipulated in section 89 (4) of the Labour Act; and as a result
there is no need for him to apply for condonation for the late
serving of the notice of motion and its annexure on the third
respondent.
That there is no order
as to costs.
---------------------------------
SFI Ueitele
Judge
APPEARANCES
APPLICANT: S
Rukoro
Instructed by Sisa
Namandje & Co Inc, Windhoek
RESPONDENTS: J
Boltman
Of GF Köpplinger Legal
Practitioners, Windhoek
Samaria v Angula NO and Others (LC 129/2012) [2013] NALCMD 25 (18 July 2013);