- June 26, 2023
- |Concise Law Reports (CLR), Labour Law
Whereas the arbitrator made an award in terms of which the first respondent’s (Petrus Namondi) dismissal on charges of insubordination was substantively unfair, and whereas the appellant appealed against the arbitration award, the respondent raised points in limine.
SCHIMMING-CHASE J considered the points in limine and stated that:
Point in limine:
QKR raised points in limine regarding Mr. Nambondi’s failure to properly oppose the appeal as required by rule 17(16)(b) of the Labour Court Rules. In terms of rule 17(16)(a), opposition to a noted appeal requires delivery of a formal notice of opposition within ten days of receipt of the notice of appeal, together with an appointed address for further service of process and proceedings.
Rule 17(16)(b) requires a respondent in an appeal to deliver a statement stating the grounds on which he or she opposes the appeal together with any relevant documents within 14 days after delivery of the notice of opposition. This is the portion of the rule that was not complied with.
[37] It is not in dispute that no statement of the grounds of opposition were filed by Mr Nambondi, and further, no condonation was sought for this failure. The notice to oppose the appeal was delivered on 15 July 2020 already.
[38] Sibeya J in Joseph v Ministry of Education, Arts, and Culture (HC-NLD-LAB-APP-AAA-2021/00005) [2021] NALCNLD 4 (17 December 2021) para 37, dealt with the same form of non-compliance. After considering the arguments, the notice to oppose the appeal was struck, and Sibeya J heard the appeal on an unopposed basis. He held that the provisions of rule 17(16)(b) were peremptory on the basis of the word ‘must’ contained in rule 17(16). The main issue was with the failure to apply for condonation for non-compliance. In this regard, the following was stated:
‘The failure to bring an application for non-compliance with rule 17(16)(b) results in this court being in the dark as to the reasons and circumstances surrounding the respondents’ default as aforesaid. The court can only overlook a default upon being apprised with a reasonable explanation set out in an application for condonation. In casu, the court cannot condone a failure to comply with a rule, which is floating in the air and not grounded in an application for condonation, and without good cause shown.’
[39] Parker AJ in Benz Building Suppliers v Stephanus and Others 2014 (1) NR 283 (LC) at 288; See also Standard Bank Namibia v Grace 2011 (1) NR 321 (LC), underscored, amongst others, the importance of the grounds of opposition in an appeal:
‘it must be remembered that such grounds as are required by rule 17(16)(b) of the Rules of the Labour Court must be grounds that inform the arbitrator, the appellant, and this court of the grounds on which the arbitration award is attacked by the appellant and which the first respondents support’.
[40] I am in respectful agreement with the above-cited judgments. A litigant who intends to oppose an appeal must comply with the relevant rules, and when there is non-compliance, an application for condonation for the same must be brought without delay.
[41] In this regard and given the undisputed fact that there is no statement of the grounds of opposition, I am not convinced by the argument relating to the late raising of non-compliance with rule 17 (16) (b). It is understood that the point in limine had been raised at a very late stage, but there was nothing preventing the drafting and preparation of an application for condonation once the non-compliance was realised. It may have put the court in a position to consider postponing the matter for hearing of the condonation application. At least, the court would have been apprised of the reasons for the non-compliance and the prospects of success. After all, the appeal was opposed in terms of rule 17 (16)(a) in July 2020. This matter was heard in January 2023, and this state of affairs called for an explanation.
[42] In addition, it is somewhat difficult to comprehend that it was not realised during overall preparation for this hearing, that there were no grounds of opposition filed. This document would, after all, inform the direction of preparation and the points on the record to be argued on behalf of Mr Nambondi. Mr. Nambondi’s heads of argument were delivered on 20 January 2023.
[43] This court is also not privy to any details on why Mr. Nambondi failed to file his grounds of opposition. This is especially in view of the fact that this matter stems from 2020 when it was initially instituted. Mr Nambondi had been legally represented since 2020.
[44] In the absence of an application for condonation, the point in limine must be upheld, resulting in the notice of intention to oppose dated 15 July 2020 being struck (in so far as is necessary), and this appeal being determined without opposition.’
It was therefore held that:
a) Rule 17 (16) (b) is peremptory and must be complied with by a litigant, who intends to oppose an appeal. The grounds of opposition are an integral part of the appeal process. It sets out the basis for the respondent’s opposition to the appeal and support of the arbitrator’s award. This statement is also necessary for the appellant to prepare its case and for the court to properly adjudicate the appeal.
b) The respondent failed to apply for condonation for the non-compliance. The court was not placed in a position to consider facts in support of the application. In the absence of an application for condonation, the effect was that there was no opposition to the appeal.
c) The notice of intention to oppose filed on 15 July 2020 is struck and the matter proceeds on an unopposed basis.
As a result, the notice of intention to oppose dated 15 July 2020 was struck (in so far as was necessary), and the appeal was determined without opposition.