- July 7, 2023
- |Concise Law Reports (CLR), Labour Law
Interpretation of section 89(3) of the Labour Act 11 of 2007:
The appeal was to condone the applicants’ late noting of an appeal against the arbitration award. The court receives its power to condone from section 89(3) of the Labour Act 11 of 2007 which Parker AJ interpreted to read as: “Where an appeal has been noted out of the time limit prescribed by section 89(2), the appeal remains on the court roll, except that the court cannot hear it until and unless on good cause shown, the court has condoned the late noting of the appeal.”
Section 89(3) of the Labour Act is contradictory to rule 17(25) of the Labour Court Rules in that an appeal that has not yet been prosecuted within 90 days after the noting of such an appeal will be deemed to have lapsed. Hence Parker AJ’s interpretation of section 89(3) will not harm the court roll because should the appeal whose late noting has been condoned by the court, not be prosecuted within 90 days after the date of condonation, the appeal will be rendered to have lapsed according to rule 17(25) of the Rules of the Labour Court. ‘The provisions of section 89(3) are clear and unambiguous. There is, therefore, no need to add any words thereto by implication.’
Condonation Application:
For a condonation application to be successful, the applicant must show good cause. “It is now well entrenched that the two requisites of good cause are in the first instance establishing a reasonable and acceptable explanation for the delay and secondly satisfying the court that there are reasonable prospects of success on appeal.” In addition, hereto, the court needed to determine whether the applicant has shown good cause.
In answering the first requisite, the judge was satisfied that the applicant brought the condonation application with speed and promptitude after realising the delay in noting the appeal. In dealing with the second prerequisite, the applicant was appointed to the post of acting Director and not Director hence the argument that the applicant’s appeal is not successful simply because his appointment to the position of Acting Director was a nullity in terms of section 13 of the National Disability Council Act 26 of 2004 and that the extension of the applicant’s acting periods was done without the approval of the responsible Minister – will not be valid.
‘[9] As I see it, the power of the first respondent to appoint the applicant as Acting Director until a substantive Director was appointed was implicit in the first respondent’s power to ensure the good administration of the affairs of the first respondent and the effective execution of its functions as contemplated in s 11(a) of Act 26 of 2004.
[10] In any case, where the administrative act by a public authority inflicts no legal wrong and is not expressly prohibited, then the occasion has arisen for the principle omnia praesumuntur rite esse acta, given expression to by Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (2004 (6) SA 222 (SC); approved by courts in Namibia, eg Rally for Democracy and Progress and Others v Electoral Commission of Namibia and Others 2010 (2) NR 487 (SC), applies and should take hold.’
Employment Relationship:
The arbitrator erred in considering the provisions of section 1 read with section 128A of the Labour Act in regard to whether a contractual employment relationship existed between the applicant and the first respondent. The Supreme Court tells us that in Swart v Tube-O-Flex Namibia (Pty) Ltd and Another 2016 (3) NR 849 (SC):
‘The definitions section of the 2007 Labour Act is intended to assist the trier of fact in resolving disputes concerning who is an employee and who is not. In that process, the s 128A presumption also comes into play and must be considered together with the definitions section.’
The arbitrator did not do that which the Supreme Court enjoins triers of fact to do when resolving disputes concerning the issue of the employment relationship; who is an employee. Therefore, the arbitrator’s decision is wrong: ‘he relied on s 13 of Act 26 of 2004 when the post involved is not the post mentioned in s 13 of that Act. The arbitrator acted as if in our law only an Act that governs the establishment and the administration and management of an entity in question regulates the employment relationship in the entity to the exclusion of the Labour Act 11 of 2007 … the first respondent is governed by both the National Disability Council Act and the Labour Act on matters of labour and employment.’
The Supreme Court in Swart v Tube-O-Flex Namibia (Pty) Ltd and Another is relevant in the instant proceedings:
‘[46] In my view, the dominant purpose discernible from the scheme adopted in ss 1 and 128A, is the protection of workers from contrivances aimed at circumventing the protection afforded by labour legislation. An arbitrator (and the Labour Court on appeal) considering whether or not an employment relationship exists should bear that in mind.’
The applicant has established that there were reasonable prospects of success on appeal – the second requisite. ‘…a finding that reasonable prospects of success on appeal exist does not mean that the appeal will succeed by the hook or crook. It means there is a strong likelihood that the appeal will succeed.’
Held that:
a) Where an appeal has been noted out of the time limit prescribed by s 89(2) of the Labour Act 11 of 2007, the appeal remains on the court roll, except that the court cannot hear it until and unless on good cause shown by the late noting of the appeal is condoned by the court in terms of s 89(3) of the Labour Act.
b) s 89(3) of the Labour Act stands in polar contradistinction to rule 17(25) of the Rules of the Labour Court in terms of which an appeal that has not been prosecuted within 90 days after the noting of such appeal ‘is deemed to have lapsed’.
c) Where the court condones the late noting of an appeal, the ninety-day period within which the appeal must be prosecuted in terms of rule 17(25) of the Labour Court Rules begins to run from the date of the condonation.
As a result, the applicant has established good cause for the grant of the relief sought, and the condonation application was granted.