Transnamib Holdings Limited v Gaeb (LCA 23 of 2005) [2007] NAHC 43 (13 June 2007)

SUMMARY CASE NO.: LCA 22/2005 TRANSNAMIB HOLDINGS LIMITED versus BENHARDT GAEB SILUNGWE, P 14/06/2007 PRACTICE – Appeal - Assigned hearing date mutually agreed upon by parties’ legal representatives – Informal application for postponement of appeal – Application untenable. - Pending appeal – Whether Rule 18(1) of Labour Court Rules applies – Rule held inapplicable. - Application for postponement dismissed. CASE NO.: LCA 23/2005 IN THE HIGH COURT OF NAMIBIA In the matter between: TRANSNAMIB HOLDINGS LIMITED Applicant/Appellant and BENHARDT GAEB Respondent CORAM: SILUNGWE, PRESIDENT Heard on: 2006.07.07 Delivered on: 2007.06.13 JUDGMENT: SILUNGWE, P: [1] This is an appeal from the District Labour Court which had been enrolled for hearing on July 07, 2006. At the outset of the hearing, however, Mr Strydom, learned counsel for the appellant, made an informal application from the Bar for a postponement of the matter, on the ground that the Registrar had failed to comply with Rule 18(1) of the Labour Court Rules in that he had omitted to issue a (formal) notice of hearing to the parties. For the purpose of this judgment, the appellant will hereafter be referred to as the applicant. [2] A brief background to this matter is that the respondent, who had been employed by the applicant, obtained a default judgment (in the District Labour Court sitting in Windhoek) against the applicant for constructive dismissal. [3] It was not in dispute that, in terms of Rule 5(1)(b) of the District Labour Court Rules, the Clerk of the Court had prematurely set down the matter and that the default judgment aforesaid had been obtained four (4) days short of the prescribed period of at least thirty (30) days. [4] The applicant timeously lodged an application to the District Labour Court for rescission of the default judgment but the application was dismissed. [5] Thereafter, the respondent sought to levy execution of the judgment but the applicant successfully applied for a stay thereof, in terms of section 21(2) of the Labour Act 6 of 1992, pending its appeal to this Court. [6] The appeal was then set down for hearing on March 02, 2006. On that occasion, the Court struck the appeal from the roll; ordered that applicant to pay wasted costs; and further made the following order: “3. That the Registrar is directed in terms of Rule 18(1) to: 3.1 forthwith assign a date for the hearing of this appeal and to set the matter down for hearing; 3.2 as far as possible to allocate a preferential date for the hearing of this appeal.” [7] It is common cause that, following the Court order referred to in para 6, supra, Mr Strydom and Mr Dicks (who was then, and still is, representing the respondent), together with their respective instructing attorneys “forthwith” approached the Registrar for a new hearing date. Such a date was, by mutual agreement between both learned counsel (there and then) assigned by the Registrar. It is not in dispute that the assigned date was July 07, 2006. [8] The thrust of Mr Strydom’s argument was that the Registrar had failed to comply with Rule 18(1) of the Labour Court Rules on the basis that no formal “notice in writing of the date of hearing had been issued to the parties.” He submitted that it was not in dispute that the Registrar had not followed what the Court had ordered him to do, namely: to issue a notice of hearing in terms of Rule 18(1). [9] The application for postponement of the appeal was vigorously resisted by Mr Dicks, on behalf of the respondent. Mr Dicks’ opposition was premised on two grounds, namely: (1) that there was no substantive (or formal) application before the Court; and (2) that the set down had been fixed by agreement between the parties, not in terms of Rule 18(1), and that, as such, the said Rule was of no application in this regard. According to Mr Dicks’ submission, Rule 18(1) applies only to a case where the Registrar assigns a date in the absence of the parties. [10] I will now proceed to reflect on the issues raised. The first issue is whether the applicant’s informal application for postponement is sustainable, in the absence of a substantive application? In making the application, Mr Strydom placed reliance upon Myburgh Transport v Botha t/a S A Truck Bodies 1991(3) SA 310 at 312i, where counsel appearing for the appellant had made an informal application for a postponement, from the Bar, on the ground that Mr Myburgh was not in a condition to attend Court. Mr Jordaan, who appeared on behalf of the respondent, opposed the application and made it clear that he did not accept any ex parte statements from the Bar, unsupported by evidence under oath pertaining to Mr Myburgh’s condition. [11] However, a proper perusal of Myburgh’s case, supra, clearly shows that the case does not support the applicant’s informal application for postponement in the present matter. This is buttressed by what appears in Myburgh’s case at 313D-E which reads: “After the conclusion of viva voce evidence and argument, Hendler J ruled that the application for a postponement had to be refused ….” [12] Although, in the final analysis, a postponement was eventually granted in Myburgh’s case, this was done for a totally different reason. The reason was that, following the Court’s refusal for postponement, counsel for the appellant intimated to the Court that the legal representatives of the appellant wished to withdraw from the matter. It was after the trial-judge had enquired whether the appellant had properly been consulted about that course of action that the matter was postponed. [13] In casu, the hearing date had mutually been agreed upon by the parties’ legal representative; and the applicant had ample time within which to prepare a properly motivated and substantive application for postponement, supported by an affidavit, but he failed to do so. The postponement was not merely for the asking. I have no hesitation in finding that the application for postponement is untenable. [14] The second issue is whether Rule 18(1) applies to this case and, if so, whether there was a failure, on the part of the Registrar, to comply therewith. For ease of reference, the Rule reads: “18(1) After receipt by the Registrar of the record of the proceedings in the district labour court, the Registrar shall forthwith assign a date for the hearing of the appeal and shall set the appeal, and any cross-appeal, down for hearing on the said date and give the parties at least 28 days notice in writing of the date of hearing.” [15] On a proper construction of the Rule in question, it is evident that it is of no application to an already pending appeal, such as the present case; it applies to a record of proceedings that the Registrar receives from a district court (on appeal) in respect of which he is legally obliged to take the procedural steps in conformity with the Rule. This was an old case in which there had already been a previous set down. In any event, the Registrar had complied with the Court’s order to the extent that he had “forthwith assigned a date for the hearing of this appeal …” [16] In the circumstances of this case, and as the applicant was duly cognizant of the date of hearing of the appeal, it was incumbent upon it, if in doubt, to timeously make an enquiry with the Registrar’s office and/or with the respondent’s legal representatives, to ascertain or confirm whether the set down remained unchanged. This the applicant failed to do. [17] Ultimately, the following order is hereby made: 1. the application is dismissed with costs; 2. the appeal is to be heard on a date to be arranged with the Registrar. __________________ SILUNGWE, Ag. P COUNSEL ON BEHALF OF THE APPLICANT/APPELLANT: Adv. Strydom Instructed by: Shikongo Law Chambers COUNSEL ON BEHALF OF THE RESPONDENT: Adv. Dicks Instructed by: Tjitemisa & Associates