REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: HC-MD-LAB-APP-AAA-2019/00033

In the matter between:

JOHN SCHEFFERS APPELLANT

and

NAMIBIA STANDARDS INSTITUTION RESPONDENT

Neutral citation: Scheffers v Namibia Standards Institution (HC-MD-LAB-APP-

AAA-2019/00033) [2020] NALCMD 39 (15 December 2020)

Coram: Oosthuizen J
Heard: 4 December 2020
Delivered: 15 December 2020

Flynote: Labour Law – Leave to Appeal against whole judgment and order
delivered in the labour appeal on 29 May 2020 – condonation application to be
considered first before the leave to appeal application can be considered – in both
applications the prospects of success to be considered.

Summary: The applicant filed an application for leave to appeal the judgment and
order made by this Court on 29 May 2020 late.
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The applicant was dissatisfied with the judgment and order made on 29 May 2020
and filed his Condonation Application and Leave to Appeal application on 10 August
2020. The respondent opposed the applications.

The court first had to consider the condonation application for the late noting of the
appeal by the applicant. However, in both applications the prospects of success play
a pivotal role.

Held, that when a party seeks condonation from the Courts, two requirements have
to be met in order for the Court to grant condonation i.e. 1) a reasonable explanation
is tendered for the remiss and 2) the prospects of success the party has in its case
must be identified. The applicant failed to satisfy the Court with the second
requirement and therefore the condonation application is unsuccessful.

Held that, in the premises where condonation is unsuccessful the right to apply for
leave has lapsed.

Held further that, in the absence of prospects on success, the application for leave to
appeal in any event is fruitless.

ORDER

1. The condonation application is dismissed.

2. The leave to appeal has lapsed.
3. Consequently, the irregular application of 6 November 2020 is also dismissed.
4. The court makes no order as to costs.
5. The matter is removed from the roll and finalised.

JUDGMENT

OOSTHUIZEN J:
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Background

[1] The respondent noted an appeal in the Labour Court against the arbitrator’s
award. That appeal was since disposed of by this Court. Judgment was delivered in
the Appeal on 29 May 20201, to which the court made the following order:

1.1. The appeal is upheld.

1.2. The arbitration award of 24 May 2019 is set aside.
1.3. The court makes no order as to costs.
1.4. The matter is removed from the roll and finalised.

Brief Facts

[2] The applicant then filed a Notice for Leave to Appeal to the Supreme Court
together with a Condonation Application for the late noting of the Appeal with 36
days, on 10 August 2020.

[3] The respondent opposed both the applications for Leave to Appeal and the
Application for Condonation on 14 August 2020. The respondent had proceeded to
file their opposing/answering affidavit to the Leave to Appeal and Condonation
Applications.

[4] A further condonation application was then filed on 6 November 2020 by the
applicant seeking various relief i.e. condonation for the late filing of the replying
affidavit and for the applicant to be granted leave to supplement his leave to appeal
application.

[5] What the court is tasked to do is first deal with the condonation in respect of
the late noting of the appeal. Once this condonation can be granted, then only may
the court proceed to consider the other applications (i.e. the condonation filed 6
November 2020 and the Leave to Appeal application).

1
Namibia Standards Institution v Scheffers (HC-MD-LAB-APP-AAA-2019/00033) [2020] NALCMD 11
(29 May 2020) an unreported Judgment.
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Issue for determination

[6] The principles for Condonation which is trite, will have to be considered when
considering whether or not the appellant’s condonation application can be granted.

The Law Applicable

[7] The test for condonation is inter alia to be found in the Supreme Court
Judgment in S v Nakale2 where it was held that the late filing of an appeal may be
condoned if the applicant satisfies the court with a reasonable explanation for the
delay and if there are prospects of success on appeal.

[8] I will not deal with the first leg of the requirements for condonation, as the
respondent took no issue with it during arguments and accepted the applicant’s
version on the time consuming endeavors he pursued in order to secure legal
representation.

[9] However, the second leg of the requirements for condonation, which is “what
are the prospects of success” must receive attention.

[10] Mr Maasdorp for the respondent argued that this requirement can even be
considered in conjunction with the requirement for the merits of the leave to appeal.
The test for leave to appeal is also trite as found in David Bruni N. O. v The
Honourable Minister of Finance3:

‘[1] The applicable test in applications for leave to appeal is whether another
court, may reasonably come to a different conclusion on the matter in question. This may
also be couched as follows, namely, whether there is a reasonable prospect that an
appellate court may come to a different view on the matter under consideration.’

Findings

2
S v Nakale 2011 (2) NR 599 (SC) at para 7.
3
(HC-MD-CIV-MOT-GEN-2017/00144 [2019] NAHCMD 305 (27 August 2019).
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[11] The applicant did not specifically deal with the requirement of prospects of
success in his application for leave to appeal, and only referred the court to his
grounds of appeal as his prospects of success.

[12] Mr Maasdorp for the respondent submitted that the applicant has no
prospects of success.

[13] I agree and refer to my Labour Appeal Judgment.4

[14] Therefore, I am also of the view that no other court will come to a different
conclusion in respect of this matter.

Conclusion

[15] In the result, the following order is made:

15.1 The condonation application is dismissed.

15.2 The leave to appeal has lapsed.
15.3 Consequently, the irregular application of 6 November 2020 is also dismissed.
15.4 The court makes no order as to costs.
15.5 The matter is removed from the roll and finalised.

___________________
H Oosthuizen
Judge

4
Namibia Standards Institution v Scheffers (HC-MD-LAB-APP-AAA-2019/00033) [2020] NALCMD 11
(29 May 2020) an unreported Judgment.
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APPEARANCES:

APPELLANT/RESPONDENT: R. Maasdorp
Instructed by Kopplinger Boltman Legal
Practitioners
Windhoek

RESPONDENT/APPLICANT: J Scheffers (In Person)

Windhoek