Shamhe v Namibia Agronomic Board and Another (HC-MD-LAB-APP-AAA-2024/00059) [2024] NALCMD 48 (8 November 2024)

Case Title:

Victoria Shamhe Applicant

and

Namibia Agronomic Board 1^st Respondent

Emma Nikanor 2^nd Respondent

Case No:

HC-MD-LAB-APP-AAA-2024/00059

Division of Court:

Main Division, Windhoek

Heard on:

25 October 2024

Heard before:

Coleman AJ

Delivered on:

8 November 2024

Neutral citation: Shamhe v Namibia Agronomic Board (HC-MD-LAB-APP-AAA-2024/00059) [2024] NAHCMD 48 (8 November 2024)

Order:

1. The late filing of applicant’s notice of appeal under case number HC-MD-LAB-APP-AAA-2024/00059 is condoned.

2. No order for costs.

3. The application is removed from the roll: Case Finalized.

Reasons for order:

COLEMAN AJ:

[1] This is an application for the condonation of the late filing of the notice of appeal under

case number HC-MD-LAB-APP-AAA-2024/00059. Applicant was employed with first respondent until 2 August 2021 when she received a letter of dismissal. The reason for her dismissal is poor performance.

[2] Applicant contends that this dismissal is unfair for various reasons, including that the allegations regarding her poor performance were vague and her employer failed to comply with its Performance Management Policy and Procedures. Alleged non-compliance with the policy was failure to engage in mandatory counselling sessions and no action plan was established as prescribed, amongst others.

[3] Applicant alleges that she filed an internal appeal within five days of receiving the dismissal letter but there was a refusal to acknowledge receipt of the appeal since it was contended that she directed it to the wrong entity. On 2 November 2021, applicant referred a dispute of unfair dismissal to the Office of the Labour Commissioner. On 23 June 2023, the arbitrator ruled that she lacked jurisdiction since applicant failed to exhaust her internal remedies. This was decided as a point of law raised by first respondent. The arbitrator made no decision on the merits.

[4] Applicant filed an appeal against the arbitration award on 20 July 2023 with the assistance of a legal practitioner. The arbitration record was delivered on 25 July 2023 and a request for a hearing date was filed on 2 October 2023. On 4 October 2023, the Registrar removed the case from the roll due to the absence of a certificate of accuracy and a premature request for a hearing date. On 16 October 2023, 1^st respondent filed its grounds for opposition and applicant’s legal practitioners requested a hearing date on 20 October 2023. On 1 November 2023, however, the matter was removed from the roll due to the lapse of the appeal. Applicant’s legal practitioners filed an application for the reinstatement of the appeal. First respondent opposed it and without her knowledge her legal practitioners withdrew the application. After continuous attempts her communication with her legal practitioner then broke down and she eventually on 2 August 2024 engaged her current legal practitioners. It looks like the delay and failure to comply with the rules herein is largely due to the remissness of her previous legal practitioners.

[5] As to prospects of success on appeal, applicant contends that she believes she has strong grounds for a successful appeal. The arbitrator ruled she had no jurisdiction since applicant did not exhaust her internal remedies. The facts she considered was that applicant filed the internal appeal to the wrong entity within first respondent. In my view the exhaustion of internal remedies is more nuanced and should be properly considered.

[6] First respondent opposes this application and raise a number of in limine points, including applicant is in the wrong court, her application is defective since she should apply for reinstatement and not condonation of the late filing of a new appeal. Applicant’s counsel addressed the issues raised on behalf of first respondent. The only issue that remains contentious in my mind is whether applicant asks for the correct relief. Her counsel contends that her appeal was struck from the roll in terms of rule 132(10) and therefore it cannot be reinstated. He cites two authorities to bear this contention out.¹ Counsel for first respondent counters that with reference to a Supreme Court matter.² In this matter rule 132(10) was not applied and it is distinguishable. It demonstrates however, that good prospects of success should override remissness in the context of condonation.

[7] I considered all the allegations and submissions and I am satisfied that applicant made out a case for condonation. The labour environment is a fairness milieu and the applicant is entitled to have her case properly determined despite a substantial delay. Consequently, I make the following order:

1. The late filing of applicant’s notice of appeal under case number HC-MD-LAB-APP-AAA-2024/00059 is condoned.

2. No order for costs.

3. The application is removed from the roll: Case Finalized

Note to the parties:

G Coleman

Acting Judge

Not applicable

Legal Practitioners:

Applicant

First Respondent

Mr Coetzee, Tjitemisa & Associates, Windhoek.

Adv Khama, instructed by Koep & Partners, Windhoek.