- October 28, 2022
- |Concise Law Reports (CLR), Labour Law
LABOUR LAW – APPLICATION FOR CONDONATION AND REINSTATEMENT OF CROSS-APPEAL
This application emanated from an appeal that was noted on 17 July 2020, by the Namibia Institute for Mining and Technology, the first respondent (in the current matter), under the case number of HC-MD-LAB-APP-AAA-2020/00041 against Matheus Elago Jason (applicant in current matter) and the Office of the Labour Commissioner’s (third respondent in the current matter) arbitration award.
Upon the appeal being noted by the first respondent, the applicant, on 7 August 2020, noted a cross-appeal against the appeal by the first respondent. On 16 August 2020, the Registrar filed a notice that the appeal would lapse in 60 days and with reference to rule 17(27) of the Labour Court Rules, the appellant’s appeal would lapse on 15 October 2020. The applicant’s cross-appeal would lapse on 4 November 2020 and on that same date, the applicant had to file an application for a hearing date. This application was only filed on 9 February 2021, after the cross-appeal had lapsed as a result of the late filing of the application. The applicant then instituted this application seeking, inter alia¸ condonation, an extension of the 20-day period in which to apply for a hearing date and reinstatement of the cross-appeal.
OOSTHUIZEN J had to determine whether the applicant met the requirements for condonation and whether the court can reinstate the appeal and extend the time in which the applicant can prosecute the cross-appeal.
The period in which to prosecute a cross-appeal is stipulated by rule 17(27). The court may grant condonation for non-compliance with its rules in terms of rule 15 of the Labour Court Rules.
‘[8] When the court is faced with the question of condonation and reinstatement the court must consider the two general considerations. The first one being the requirement of a reasonable and acceptable explanation for the non-compliance and secondly, there must be reasonable prospects of success. I am alive to the fact that when there are good prospects of success it may lead to the application being reinstated even if the explanation provided is not entirely satisfactory (Namibia Power Corporation (Pty) Ltd v Kaapehi and Others (2) (SA 41 of 2019) [2020] NASC 60 (29 October 2020).
[12] In Arangies t/a Auto Tech v Quick Build 2014 (1) NR 187 (SC) at 189-190 E-B, O’Regan AJA stated as follows:
‘The application for condonation must thus be lodged without delay, and must provide a “full, detailed and accurate” explanation for it. This court has also recently reconsidered the range of factors relevant to determining whether an application for condonation for the late filing of an appeal should be granted. They include – “the extent of the non-compliance with the rule in question, the reasonableness of the explanation offered for the non-compliance, the bona fides of the application, the prospects of success on the merits of the case, the importance of the case, the respondent’s (and where applicable, the public’s) interest in the finality of the judgment, the prejudice suffered by the other litigants as a result of the non-compliance, the convenience of the court and the avoidance of unnecessary delay in the administration of justice.’
Having regard to the explanation given, the court was not satisfied with the explanation that the legal practitioner believed that the application was already lodged. The legal practitioner was at all material times able to acquaint himself properly with the file and did not need a briefing from another legal practitioner. The applicant’s legal practitioner had e-justice filing on which he could follow the matter. Prior to the lapse of the cross-appeal, the legal practitioner should have already filed the application for condonation and extension of time, knowing that he would not meet the requirements.
With regards to prospects of success, what the courts take into account is whether another court would come to a conclusion different from the one arrived at by the arbitrator (Hamuteta v Minister of Home Affairs and Immigration (HC-MD-LAB-APP-AAA-2019/00072) [2021] NALCMD 29 (17 June 2021).
‘[19] … The applicant has not demonstrated any prospects apart from stating that the arbitrator should have granted relief for a period of 19 months instead of 10 months, which is a different figure from what was alleged before the arbitrator (17 months). The first respondent in opposition contended that the applicant has placed nothing before this court to consider and that stating that ‘the arbitrator erred in that she did not consider that (applicant) suffered loss of income’ does not constitute error in law with good prospects of success. The first respondent in its answering affidavit clearly states that applicant was dismissed in November 2019.
[20] The founding affidavit in respect of the prospects of success are lacking as the applicant did not refer this court to any part of the record on which he wishes to rely in his cross-appeal, in his attempt to convince the court that he has good prospects of success. As stated by the first respondent it is indeed true that an ‘application for condonation must stand and fall by its founding affidavit’, same as in any other motion proceeding. Cloete JA in Minister of Land Affairs and Agriculture v D & F Wevell Trust SA 184 (SCA) (28 November 2007) stated that:
‘It is not proper for a party in motion proceedings to base an argument on passages in documents which have been annexed to the papers when the conclusions sought to be drawn from such passages have not been canvassed in the affidavits. The reason is manifest – the other party may well be prejudiced because evidence may have been available to it to refute the new case on the facts…. A party cannot be expected to trawl through lengthy annexures to the opponent’s affidavit and to speculate on the possible relevance of facts therein contained. Trial by ambush is not permitted.’
[21] Furthermore, O’Regan AJA stated in Standard Bank Namibia Ltd & Others v Maletzky & Others 2015 (3) NR 753 (SC) at 771B-C para 43 that ‘it is not sufficient for a litigant to attach an annexure without identifying in the founding affidavit the key facts in the annexure upon which the litigant relies.’
[22] Having considered the reason provided by the arbitrator and what was placed before me by both parties (including the first respondent’s decision not to proceed with the appeal), I am of the considered view that the arbitrator’s discretion in the award of compensation to the applicant was not capriciously exercised. The arbitrator had the benefit of assessing the evidence and assessing the period for which to grant loss of income. I am, therefore, not satisfied that the applicant demonstrated good prospects of success in its founding affidavit and that another court would come to a different conclusion from that of the arbitrator.’
In the result, the court found that the applicant did not give a satisfactory explanation, nor did he make out a case of good prospects of success. The application was dismissed with no order as to costs.
Jason v Namibia Institute for Mining and Technology (HC-MD-LAB-MOT-GEN-2021-00115) [2022] NALCMD 66 (28 October 2022)