THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no : JR430/18
In the matter between:
MEC FOR PUBLIC WORKS: NORTH WEST PROVINCE First Applicant
MINISTER OF PUBLIC SERVICE AND ADMINISTRATION Second Applicant
and
PUBLIC SERVICE COORDINATING
BARGAINING COUNCIL First Respondent
COMMISSIONER ANNELIE BEVAN NO Second Respondent
MOGWERA HK Third Respondent
Heard : 4 February 2025
Delivered : 4 February 2025
Summary : Application for reinstatement of a review application. Application
dismissed .
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JUDGMENT
DANIELS J
Introduction
[1] The applicant sought to review and set aside an arbitration award issued
by the third respondent on 18 December 2017. It launched the review
application on 12 March 2018.
Non-compliance with Practice Manual
[2] Unfortunately the applicant failed to comply with clause 11.2.7 of the
Labour Court Practice Manual in two respects :
2.1 First, the applicant failed to file all the necessary paper within 12
months of launching the review application . Instead, it only filed a
notice in terms of Rule 7A(8) on 22 September 2020. This was
substantially outside the prescribed period, which required all the
necessary papers to be filed by no later than 12 March 2019.
2.2 Second, the applicant failed to request a date for the enrolment of the
matter within 12 months. The applicant only requested the enrolment
of the matter on 20 October 2020, once again well outside the
prescribed period .
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Application to reinstate the review application
[3] In its application to reinstate the matter, the applicant offers no
explanation at all for its failure to comply with clause 11.2.7 of the
Practice Manual. Instead, the applicant suggests that it complied with the
Practice Manual, and any delays were the fault of the Registrar. It offers
no explanation at all for why it failed to file all the necessary papers
within 12 months, or for why it failed to request the enrolment within 12
months.
[4] The matter was enrolled for hearing before Mabaso AJ on 17 November
2020. On that date the learned acting judge found that there was non -
compliance with clause 11.2.7 of the Practice Manual, and struck the
matter from the roll. On 27 August 2024, almost four years later, the
applicant brought an application to reinstate the matter on the roll. There
is no explanation for the delay in bringing the application to reinstate.
[5] The application states that it has prospects of success and it will succeed
in the review, if the review application is reinstated. Unfortunately , in the
founding affidavit, no basis is laid for the submission. It is a bald
allegation.
Submissions and analysis
[6] The applicant stated that the explanation for the delay may be
inadequate, but this was compensated by the importance of the matter,
the prospects of success, and the interests of justice. The applicant
referred to the matter of City of Johannesburg and others v IMATU and
others (2017 ) 38 ILJ 2695 (LAC) as authority for the proposition that ,
where the explanation for the delay is inadequate, the importance of the
matter and the prospects of success must nevertheless be considered.
That matter did not deal with an application to reinstate a review
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application. Furthermore, the judgment is no authority for the proposition
that prospects of success and the importance of the matter must be
considered where there is no explanation at all for a lengthy delay, as is
the case here. It is necessary to consider the following authorities:
6.1 In Samuels v Old Mutual Bank1 the applicant sought to have the
review application reinstated. The LAC held that the reinstatement of
a review application is essentially a condonation application in which
the applicant must show good cause for their non -compliance with
the Practice Manual. This requires applicant to demonstrate that it
has a reasonable explanation for the default, it has a reasonable
prospect of success, and it would be in the interests of justice to
grant the order.
6.2 In Grootboom v The National Prosecuting Authority and Another2 the
Constitutional Court held that the standard for considering an
application for condonation is the interest of justice. It found that the
concept of interest of justice is so elastic that it is not capable of
precise definition. Nevertheless it does include the nature of the
relief sought, the extent and cause of the delay, the effects of the
delay on the administration of justice and other litigants, the
reasonableness of the explanation for the delay, the importance of
the issues raised, and the prospects of success.
6.3 In NUM v Council for Mineral Technology3, the LAC considered a
condonation application and held that in the absence of a reasonable
explanation, considerations such as the prospects of success
become irrelevant. It said that:
1 (2017) 38 ILJ 1790 (LAC)
2 (2014) 35 ILJ 121 (CC) at para 22
3 NUM supra at para 10.
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‘The approach is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it is
a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefore, the
prospects of success and the importance of the case. These facts
are interrelated: they are not individually decisive. What is needed
is an objective conspectus of all the facts. A slight delay and a
good explanation may help to compensate for prospects of
success which are not strong. The importance of the issue and
strong prospects of success may tend to compensate for a long
delay. There is a further principle which is applied and that is that
without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial, and without prospects of
success, no matter how good the explanation for the delay, an
application for condonation should be refused …’ (own emphasis)
[7] In this matter, the applicant has not provided any explanation at all for
the default, let alone a reasonable explanation for the default. This is not
a situation where the explanation is weak or poor. There is simply no
explanation for the default.
[8] Furthermore, the applicant has not established any prospects of success.
It is inadequate for the applicant to simply state that it has reasonable
prospects of success. The applicant must set out allegations which, if
established, demonstrate a reasonable prospect of success. Instead,
once again, the applicant sets out no allegations which demonstrate a
reasonable prospect of success .
[9] It is trite that review applications are urgent by their very nature, and it is
incumbent on the parties to treat them as such. The applicant failed to
treat the review application as urgent, and it failed to comply with the
Practice Manual. The applicant thereafter treated the application to
reinstate as a fait accompli . Not only did the applicant fail to bring the
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application timeously, but it also failed to establish the grounds required
to reinstate the review.
Conclusion
[10] In the circumstances, I find that the applicant has failed to demonstrate
good cause for the reinstatement of the review application. The
application is therefore dismissed. There is no order as to costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
Appearances :
For the Applicant :
Adv S Dlali
Instructed by State Attorney
For the Third Respondent
Adv LJ Corns
Otto Krauser Inc