THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No : JR726/22
In the matter between:
EHLANZENI TVET COLLEGE Applicant
and
PSA ON BEHALF OF MAHLATSE LUCKY RAMOLEFE First Respondent
EDUCATION LABOUR RELATIONS C OUNCIL Second Respondent
NTATE MABILO N.O. Third Respondent
Heard: 21 November 2024
Delivered: 17 January 2025
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JUDGMENT
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ORR, AJ
Introduction
[1] The application before me is one for the reinstatement of a review
application. The review application in this matter was deemed to be
withdrawn by virtue of the provisions of Clause 11.2.3 of the Practice
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Manual1, in that the record in the review application was not filed within 60
days of the Registrar advising that it was ready for collection. The first
respondent (PSA) opposes the application although its affidavit opposing
the application was filed out of time and it accordingly seeks condonation
for that period. Also before me is an application by the PSA in terms of
Rule 11 of the Labour Court Rules2 for the dismissal of the review
application. The Rule 11 application was delivered on 19 September 2022
before the record was delivered and before this application for
reinstatement of the review was brought. The parties were ad idem that, in
those circumstances the real issue for determination by the Court was the
reinstatement application. Should that application be granted , the
dismissal application would fall away. Conversely , should reinstatement be
refused , the relief sought in the dismissal application would become
academic.
Condonation application
[2] This Court has long held that an application for reinstatement is akin to a
condonation application.3 The principles applicable to condonation can
therefore be set out briefly.
[3] The general principles applicable to condonation are well established.
Condonation is not there for the asking, nor are applications for
condonation a mere formality.4 A party seeking condonation must make out
a case for the indulgence sought and bears the onus to satisfy the court
that condonation should be granted.
[4] The court is required to exercise a discretion, having regard to the extent
of the delay, the explanation proffered for that delay, the applicant’s
prospects of success, and the relative prejudice to the parties that would
be occasioned by the application being granted or refused. Ordinarily ,
1 Practice Manual of the Labour Court of South Africa effective 1 April 2013 (repealed, 17 July 2024).
2 GN 1665 of 1996: Rules for The Conduct of Proceedings in the Labour Court (repealed, 17 July
2024).
3 See: Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and others [2016] ZALCJHB 42;
(2014) 35 ILJ 1672 (LC).
4 See: NUMSA and Another v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR 601 (LC);
Grootboom v N ational Prosecuting Authority and A nother [2013] ZACC 37; [2014] 1 BLLR 1 (CC) .
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these factors are not individually decisive but are interrelated and must
thus be weighed against one another. In this Court, that formulation which
has its roots in Melane v Santam Insurance Co Ltd5 has long been
qualified by the rule that where there is an inordinate delay that is not
satisfactorily explained, the applicant’s prospects of success are
immaterial.6
[5] The application for condonation must offer an explanation for the full length
of the delay.7
[6] Finally, if there is any delay in seeking condonation , this too must be
adequately explained .8
[7] The delay in this matter is significant. The record should have been filed by
10 August 202 2. It was in fact only filed on 6 October 2022 , a delay of
almost two months. Some of the delay is explained by the fact that the
record as originally provided to the applicant was defective. A corrected
record was only provided by the transcribers on 31 August 2022.
[8] The further period of delay is attributed to the fact that the applicant’s
attorney had to compare the previous defective record with the corrected
record to ensure that all the defects had been remedied. This process took
much longer than expected because of problems which the attorney had
with her son at this time. He has bipolar disorder and has substance abuse
issues. During August and September 2022 , criminal proceedings were
underway against him and he was prone to violent outbursts. Her son was
eventually involuntarily institutionali sed on 22 September. All of this meant
that the checking of the record took much longer than might have been
anticipated.
[9] The application for reinstatement of the review was made within a few
weeks of the record being filed.
5 1962 (4) SA 531 (A).
6 See: National Union of Mineworkers v Council for Mineral Technology [1998] ZALAC 22; [1999] 3
BLLR 209 (LAC).
7 eThekwini Municipality v Ingonyama Trust [2013] ZACC 7; 2013 (5) BCLR 497 (CC).
8 CWIU and Another v Ryan and Others [2001] 3 BLLR 337 (LC); Darries v Sheriff, Magistrate’s Court
Wynberg and Another 1998 (3) SA 34 (SCA).
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[10] In opposing the application for reinstatement, the PSA’s primary contention
is that the applicant was obliged to seek an extension of the 60 -day period
in terms of Clause 11.2.3 of the Practice Manual. The applicant’s failure to
do so, according to the PSA, is fatal to the reinstatement application and it
should be dismissed on this basis alone.
[11] In order to assess the merits of this contention it is prudent to set out the
first two sentences of Clause 11.2.3 in full: If the applicant fails to file a
record within the prescribed period, the applicant will be deemed to have
withdrawn the application, unless the applicant has during that period
requested the respondent’s consent for an extension of time and consent
has been given. If consent is refused, the applicant may, on notice of
motion supported by affidavit, apply to the Judge President in chamb ers
for an extension of time.
[12] Mr Venter, for the applicant, argued that properly considered, the Practice
Manual provides that unless an extension is sought , the deemed
withdrawal of the review occurs, requiring a reinstatement application. The
clause does not make it obligatory to seek an extension and the failure to
do so does not preclude an applicant from bringing a reinstatement
application. I agree , it is the absence of the request for an extension that
results in the automatic deemed withdrawal of the review.
[13] In the alternative , the PSA opposed the application for reinstatement on
the basis that the explanation tendered by the applicant was inadequate
given the lengthy delay, that there were no prospects of success in the
review and that Ramolefe, the PSA’s member, would be unduly prejudiced
if reinstatement was granted.
[14] I have already found that the delay in this matter is significant. As far as
the explanation goes , the conduct of the applicant ’s attorney can fairly be
criticised. She should have sought an extension of the time period or
briefed junior counsel to check the record. However, it must be borne in
mind the enormous emotional distress that she must have been suffering
at the time. As urged by Mr Venter , I accept that her conduct must be
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assessed through the prism of this emotional distress . I, therefore , find that
the delay has at least been sufficiently explained to the degree that I can
have regard to the prospects of success in this matter.
[15] At this stage , no answering affidavit has been filed in the review
application. The PSA took the view that, given the review was deemed to
be withdrawn, they were not obliged to deliver an answering affidavit. I
accept that this view is legally correct, but it means I only have the
applicant’s version before me in assessing the prospects of success in this
matter. On that basis , I am of the view that the prospects of success favour
the applicant.
[16] As far as prejudice is concerned , the applicant contends that they would
suffer significant prejudice if the reinstatement were refused. They hold the
view that Ramolefe was dishonest, not only about a previous criminal
conviction but also about a previous dismissal. The refusal of
reinstatement would bar them from challenging the arbitration award which
found to the contrary , a challenge which I have already found has some
merit. The PSA disputes that any prejudice would be suffered by the
applicant if reinstatement were refused but does not raise any prejudice
which would be suffered by Ramolefe if reinstatement were granted. In
those circumstances , I find that the balance of prejudice favours the
applicant.
[17] For all these reasons I am inclined to grant the reinstatement application.
Neither party pressed for costs, correctly in my view. I accordingly make
the following orders:
Order
1. The application for reinstatement of the review application is granted.
2. The first respondent’s answering affidavit should be delivered within ten
days of the receipt of this judgment .
3. There is no order as to costs.
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________________
C Orr
Acting Judge of the Labour Court of South Africa
Appearances :
For the Applicant: Adv R Venter
Instructed by : Mnguni Attorneys
For the First Respondent: Adv A Burhali
Instructed by : Zwane Inc Attorneys