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Kambulu v Engen Namibia (Pty) Ltd (LCA 56/2010)  NALC 14 (27 May 2011)
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CASE NO. LCA 56/2010
IN THE LABOUR COURT OF NAMIBIA
In the matter between:
MARTINS KAMBULU ….......................................................................APPELLANT
ENGEN NAMIBIA (PTY) LTD ….........................................................RESPONDENT
CORAM: HOFF, J
Heard on: 01 April 2011
Delivered on: 27 May 2011
HOFF, J:  This is an appeal against the judgment of the district labour court refusing an application for condonation of the late filing of a complaint.
 Section 24 of the Labour Act, Act 6 of 1992 provides inter alia that no complaint lodged with any district labour court after the expiration of a period of 12 months as from the date on which the cause of action has arisen or from the date on which the party instituted such proceedings or lodging such complaint has become aware or could reasonably have become aware of such cause of action shall be instituted except with approval of the district labour court, on good cause shown.
 The appellant who had been employed by the respondent since November 2003. On 29 November 2006 the appellant was found guilty in a disciplinary hearing of gross misconduct. On 18 January 2007 his services were terminated with immediate effect. The appellant received and signed a written notice of the termination of his services on 23 January 2007.
 The appellant appealed against the decision of the chairperson of the disciplinary inquiry and on 19 April 2007 his dismissal was confirmed by the chairperson of the appeal hearing.
On 24 July 2007 a complaint was lodged through the firm Tjitemisa & Associates at the district labour court in Windhoek
 The respondent filed a reply in terms of Rule 7 of the Rules of the district labour court raising in a special plea the argument that the district laobur court Windhoek has no jurisdiction to hear the matter since the appellant had to obtain permission to lodge a complaint which had prescribed on 19 January 2008.
This reply was served on the appellant’s attorneys on 28 March 2008.
 It is common cause that the complaint lodged in the district labour court, Windhoek had been withdrawn on 18 January 2007. On 30 January 2008 a complaint was lodged at the district labour court, Walvis Bay. This is evident from the date stamp of the clerk of the court of the Magistrate’s Court, Walvis Bay.
Counsel appearing on behalf of the appellant as well as counsel appearing on behalf of the respondent submitted that this new complaint was lodged on 28 March 2008. This is a misconception. The clerk of the court gave notice on 25 March 2008 that the matter had been set down for a hearing on 23.05.2008.
 The appellant in his founding affidavit, in support of his condonation application, stated that he had been advised and verily believed that the district labour court, Windhoek had jurisdiction to hear the complaint as the registered business address of the respondent, is in Windhoek.
However on advice of his legal representatives they decided to lodge the complaint subsequently in the district labour court, Walvis Bay since all the witnesses were in Walvis Bay.)
 Appellant further stated that on 20 August 2008 he was advised by Mr Edwin Coetzee his legal representative, that he had failed to file the complaint within 12 months as required by the Labour Act, Act 6 of 1992. According to him Mr Coetzee explained that he calculated the 12 months from the date of the outcome of the appeal i.e. 19 April 2007 as opposed to the date of his dismissal on 18 January 2007. He further stated that since he is a layperson he was unaware of the prescription period neither was he aware from which date the period of 12 months should have been calculated. He was of the view that his application was bona fide and that he has a bona fide complaint which enjoys reasonable prospects of success on appeal. He elaborated on the reasons why he was of the view that there were reasonable prospects of success on appeal.
 The appellant’s founding affidavit was signed by him on 23 October 2008 and filed with the clerk of the court on 31 October 2008. The notice of an application in terms of Rule 21 of the Rules of the district labour court together with confirmatory affidavit of the legal representative of the applicant was filed with the clerk of the court on 31 October 2008. The condonation application was heard on 19 November 2008.
 Mr Coetzee who appeared on behalf of the appellant submitted that the presiding officer in the district labour court emphasised the fact that the legal representative of the appellant was negligent in lodging the complaint out of time whilst the lodging of the complaint was filed only 7 days late (i.e. from 23 January 2007 when the appellant become aware of his dismissal until 30 January 2008 when the complaint was lodged in the district labour court, Walvis Bay).
 He submitted that it was reasonable for him at the time to believe that the period of 12 months will run from the date (19 April 2008) when the appellant had been informed that his internal appeal was unsuccessful. He in this regard contended that it was a misinterpretation of the law rather than the non-compliance with the rules of court.
 Mr Coetzee in his heads of argument referred to a South African decision of the Labour Court, SACCAWU v Edgars Stores Ltd & another  10 BLLR 1342 [LC] in which counsel raised the argument that “cause of action” should be interpreted that the effective date of the dismissal of applicant’s members was upon the dismissal of the internal appeal and not before such date. The Labour Court rejected this argument. Mr Coetzee submitted that such an argument was bona fide, as his argument was, but appears to concede that he was wrong in assuming that prescription would only run from the date of the dismissal of appellant’s internal appeal.
 Mr Coetzee also submitted that since the respondent had filed no opposing affidavit in the court a quo that respondent was not before court and the presiding officer should have relied on her judgment only on the facts and submissions reflected in the appellant’s founding affidavit.
Mr Vaatz who appeared on behalf of the respondent in this appeal submitted that the appeal record was incomplete in the sense that a notice to oppose the condonation application does not form part of the appeal record and in any event the respondent has filed heads of argument which reflected respondent’s grounds for opposing the application for condonation.
 I am of the view that based on this fact the presiding officer in the court a quo did not misdirect herself by having regard to the submissions by the legal representative who appeared on behalf of the respondent.
 I am of the view that even if regard is had only to the founding affidavit of the appellant together with the applicable legal principles the presiding magistrate did not misdirect herself in fact and/or law by dismissing the application for condonation.
 The court a quo had to decide whether or not to condone the late filing of the complaint by the appellant, on good cause shown.
 The presiding officer with reference to the judgment of Strydom CJ in Leweis v Samporo 2000 NR 186 (SC) held that in order for an applicant to show good cause such applicant must comply with the following requirements:
(a) the applicant must give a reasonable explanation for the default;
(b) the application must be made bona fide; and
(c) the applicant must show that he has a bona fide defence.
 The presiding officer also referred to the case of Nafinu Haihambo (case no. 47/2007 delivered on 29 February 2008) where the court held that where an applicant gives no reasons or gives reasons which are implausible or unacceptable the matter is put to rest and the application must be dismissed.
 The magistrate found that the legal representative was remiss in his duties and observed that there was no explanation why he was so remiss and how it came about that the matter was delayed for a period of six months between July 2007 (when instructions were given to the legal representative) and January 2008 (when the new complaint was lodged). She also found that the appellant seemingly made no enquiries regarding the process of his case. I agree with these findings.
 It is trite law that there is a limit to the extent a litigant may hide behind the negligence of his or her legal practitioner. I agree with the finding of the presiding officer that the legal representative had an indifferent altitude and that there is nothing in appellant’s affidavit which suggest that appellant himself made an effort to ensure that his case was given the due attention it deserved.
 The matter was further compounded by the fact that in spite of having been alerted to the fact that the complaint had been lodged out of time on 28 March 2008 and that a condonation application was necessary the appellant and his legal representative waited until 31 October 2008 to file the condonation application. There is no explanation at all for this delay by either the appellant or his legal representative.
 In Moraliswani v Mamili 1959 (4) SA 1 (A) at p. 9 D – E the following appears:
“It has often been held that, whenever a prospective appellant realises he has not complied with a Rule of Court he should, apart from remedying his default immediately, also apply for condonation without delay. See Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G and earlier cases there quoted.”
 In Schweiger v Gamikub (Pty) Ltd case no. A 194/2005 and delivered on 11 November 2005 Muller AJ (as he then was) referred with approval to the case of Darriers v Sherrif, Magistrate’s Court, Wynberg and Another 1998 (3) SA 34 (SCA) where the court held that an appellant’s prospects of success is but one of the factors relevant in to the exercise of a Court’s discretion whether or not to grant a condonation application and at p. 41 D the following appears:
“Where non-observance of the Rules had been flagrant and gross an application for condonation should not be granted whatever the prospects of success might be.”
 I am of the view that in casu the non-observance of the Rules as well as a provision of the Labour Act itself has been gross. In addition as stated (supra) there is no explanation why condonation application had been filed seven months after the legal representative was alerted to the fact that a condonation application should be brought.
An example of the remissness of the legal representative is a statement in the founding affidavit of the appellant that he was only advised on 20 August 2008 that his legal practitioner failed to file his labour complaint within 12 months as required by the Labour Act.
 In result the appeal against the dismissal of the condonation application cannot succeed and the following order is made:
The appeal is dismissed.
ON BEHALF OF THE APPELLANT: MR COETZEE
Instructed by: TJITEMISA & ASSOCIATES
ON BEHALF OF THE RESPONDENT MR VAATZ
Instructed by: A VAATZ & PARTNERS