LABOUR LAW – FAILURE TO PROSECUTE APPEAL WITHIN THE TIME LIMIT – CONDONATION

LABOUR LAW – FAILURE TO PROSECUTE APPEAL WITHIN THE TIME LIMIT – CONDONATION

The applicant noted an appeal on 10 March 2022 against an award made by the second respondent, the arbitrator.  The applicant failed to prosecute the appeal within the time limit prescribed by rule 17 (25) of the Labour Court Rules (‘the rules of court’).  The applicant sought condonation for his non-compliance with the said rule and a consequential order to reinstate the appeal on the roll. The first respondent opposed the condonation application on the ground that there was no appeal properly before the court whose date of prosecution the court was asked to extend.

The first respondent submitted that it was clear from the applicant’s founding affidavit that the award was issued on 7 February 2022, and it was on the same day sent to one Vries at Nafinu, the apparent trade union representative of the applicant. The applicant did not aver in his founding papers that Vries was not his trade union representative; neither did he aver that he did not receive the award on 7 February 2022. Realizing that the 30-day time limit had been breached when he noted his appeal on 10 March 2022, the applicant attempted to escape the time limit trap by averring in his replying affidavit that the award was served on him on 9 February 2022 which is at variance with what is stated in the founding papers.

PARKER AJ dealt with the matter thus:

‘[5]         I cannot accept the applicant’s new evidence in the replying affidavit without offending the long line of authorities that an applicant must stand and fall by his founding affidavit and should therefore make the necessary allegations in his founding affidavit to support his case. It is trite that all allegations necessary to sustain the relief sought in an application proceeding must generally be supported by the evidence in the founding papers.

[6]          Section 89 (3) of the Labour Act 11 of 2007 empowers the court to ‘condone the late noting of an appeal on good cause shown’.  But the applicant decided, upon legal advice, I suppose, not to take advantage of the statutory largesse offered by s 89 (3) of the Act.  The [applicant submitted that] there had not been a late noting of the appeal, and so ‘there was no need for the applicant to seek condonation for the noting of the appeal as the appeal was noted timeously’.

[7]          I have demonstrated previously that counsel is wrong.  The result is that the applicant is out of court.  The upshot is this. There is no appeal properly before the court, as [first respondent] submitted, whose prosecution has elapsed, within the meaning of rule 17 (25) of the rules of court, requiring the court to extend the time limit and consequentially reinstate the appeal.  As a matter of logic, the condonation application to condone the non-compliance with rule 17 (25) is, therefore, otiose.  And, as a matter of law and logic, if there was no appeal properly noted, the prosecution of it does not arise.’

As a result, the application for condonation failed and it was accordingly dismissed with no order as to costs made.

Akwenye v Letshego Bank Namibia Limited NALCMD 69 8 November 2022