THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable
Case N o: JR 2295/23

In the matter between:
PARSONS TRANSPORT OPERATIONS (PTY) LTD Applicant

and
PIETER MKANSI First Respondent
COMMISSIONER NOKO NKGOENG Second Respondent
NATIONAL BARGAINING COUNCIL FOR THE ROAD FREIGHT & LOGISTICS INDUSTRY Third Respondent
Heard: 10 October 2024
Delivered: 27 February 2025
This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand- down is deemed to
be on 27 February 2025.

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JUDGMENT


MILO , AJ
Introduction
[1] This application highlights the importance of ensuring that a proper record is
placed before the Labour Court in review proceedings to enable it to exercise its
powers of review.
[2] In casu , the applicant seeks to review and set aside the enforcement arbitration
award (the arbitration award) dated 2 November 2023, issued by the second
respondent ( the commissioner ) under the auspices of the third respondent . This
application is unopposed.
[3] The arbitration award directs the applicant to comply with the collective
agreement(s) of the third responden t by (i) comply ing with a compliance order and a
statement of contraventions (ii) ensuring that the applicant’s business and all of its
employees are registered with the third respondent, and (iii) making payment to the
third respondent in the amount of R50 645.91, comprised of penalties and other
payments required in terms of the collective agreement which the commissioner found
had been breached by the applicant.
[4] The review application is problematic in several aspects, the most pertinent of
which, for present purposes, will be outlined below.
Factual Background

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[5] Based on the limited details provided in the founding affidavit and that
incomplete portion of the arbitration award that has been placed before this Court , the
following salient facts may be discerned.

[6] On 11 July 20231, a compliance order was served on the applicant. The
arbitration award states that the compliance order is attached as Annexure 'A,' which
presumably explains the absence of further details regarding the order within the award itself. However, the applicant has failed to include the compliance order in its application. I t is absent from the record, and no meaningful details regarding its
content are provided in the founding affidavit .
[7] It was alleged, presumably by the designated agent of the third respondent ,
that the applicant failed to comply with the compliance order .
[8] As a result of the applicant’s alleged non- compliance, a statement of
contraventions was issued. The arbitration award references this document as Annexure ‘B’ but, once again, does not elaborate on its contents, presumably because
it was attached as an annexure. The applicant has similarly failed to place this
document before the Court, and the founding affidavit provides no substantive details
regarding its content.
[9] The matter was set down for arbitration on 30 October 2023 before the
commissioner . The third respondent was represented by Mr Mdlalose Mkhethwa, a
designated agent, and the applicant was represented by Mr Stefan van Blerk , an
official of an employer’s organisation, who is also the deponent to the founding
affidavit .
[10] Under the heading “ Summary of E vidence and Argument ” the commissioner
records that:

1 The year is not specified in the arbitration award, and it is presumed that the compliance order was
issued in 2023.
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“The Designated Agent stated that the 1st Respondent [the applicant in these
proceedings] contravened the Collective Agreement as set out in the
Compliance Order (Annexure “A”) and the Statement of Contraventions
(Annexure “B”).
The representative of the 1st Respondent requested time until the following day,
31 October, to revert back to the Designated. [sic] According to the l atter, he
failed to adhere to the arrangements. ”
[11] The arbitration award does not clarify what exactly the applicant was expected
to revert to the d esignated agent about . In the founding affidavit the applicant merely
asserts, without any further clarification or elaboration, that the applicant had
undert aken to provide “returns ”.
[12] Furthermore, t he arbitration award does not specify the nature or terms of the
arrangements referenced, and it provides no indication of what was envisaged and
understood to occur in the event that the applicant failed to revert to the d esignated
agent timeously or at all. Similarly, it does not address what the consequences would
be if the applicant did revert as required, but a dispute nevertheless remained
between the parties . It is also unclear whether these arrangements were formally
agreed upon by the parties or unilaterally imposed by the commissioner.
[13] The commissioner proceeded to state in the arbitration award that , in the
absence of any evidence from the applicant, the uncontested evidence of the
designated agent was accepted. [14] On this basis, the commissioner concluded that there was a contravention of
the relevant collective agreement and the award was issued on 3 November 2023.
[15] Dissatisfied with the arbitration award, on 15 November 2023 the applicant
instituted the review application against the respondents.

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[16] In this application, the applicant contends that the arbitration award is
reviewable on several grounds.

[17] Firstly, the applicant contends that there was a failure on the part of the
commissioner to apply his or her mind to the evidence. In this regard, the applicant alleges that it was not in default in respect of the alleged contraventions . The
deponent states merely that the third respondent “ was provided with the necessary
information” , by which it is presumed that the applicant refers to returns which
demonstrate in some or other manner that there was no cause for the issuance of the compliance order in the first place or, perhaps, that any amounts due in terms of the
compliance order had since been paid.
[18] However, t his statement is vague and opaque, and lacking in important
information. T he applicant does not , for example, inform the Court when this
information was supplied, to whom within the third respondent this information was
supplied, whether it was supplied to the commissioner or whether in supplying the
information it complied with the undertakings made by the applicant at the arbitration.
Indeed, on the record presently before this Court, this statement is not supported by
any document in the record or otherwise. Unfortunately, this is a characteristic of the
application that commonly features elsewhere in the founding affidavit.

[19] Secondly, the applicant complains that the commissioner committed a gross
irregularity in the conduct of the proceedings , alternatively misconduct in that, so the
applicant contends , the arbitration “ did not continue” on 30 October 2023 to allow the
applicant the opportunity to provide information, yet the commissioner rendered the
arbitration award based on assumptions and wit hout any evidence having been led by
the first respondent.

[20] The applicant’s final ground of review is that the commissioner merely used a
pro-forma award template and without providing an analysis of the period and
computation of the award.
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[21] In compliance with the former applicable rules of court , specifically rule 7A(2) ,
the review application called upon the third respondent , within ten days, to dispatch to
the registrar of this Court the record of the proceedings sought to be corrected or set
aside, together with such reasons as are required by law or desirable to provide, and
to notify the applicant that this has been done.

[22] The third respondent did not comply with its obligations in this regard. It has not
dispatched to the registrar of this Court the record of the proceedings or any reasons as it was required by law or desirable to provide. The applicant has not brought an
application to compel it do so, as it was entitled to do in terms of former r ule 7A(4). I
may mention that in terms of the new Labour Court rules
2, specifically rule 37 (8),
which came into effect in July 2024, this remedy remains available to the parties in a
review application. Consequently, it is unsurprising that no rule 7A(5) notice was ever
sent out by the registrar.

[23] Despite non-compliance with former rule 7A(2), on 26 August 2023 the
applicant filed a notice in terms of former rule 7A (6) under cover of which it filed what
was described as a “ bundle of documents ”. As an aside, it should be noted that
because the new rules of court had by then already come into effect and had repealed
the former rules, any record of proceedings should have been filed in terms of rule
37(13) of the new rules. Nothing of substance turns on this .
[24] No explanation is provided by the applicant as to how it came to file a bundle
under rule 7A(6) in circumstances where the third respondent failed to provide the
record to the registrar, as it was required to do. It appears from the content of this
bundle that on 5 August 2024 the applicant’s attorneys had requested directly of the
third respondent to provide it with the third respondent’s entire file contents “along with
all associated records ” related to the matter . It is presumed that the third respondent
then provided the applicant’s attorneys , directly, with the documents forming the

2 GN 50608 of 3 May 2024: Rules regulating the conduct of the proceedings of the Labour Court.
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bundle of documents , such that the applicant then filed those documents under its rule
7A(6) notice.

[25] Also on 26 August 2024, the applicant delivered a notice in terms of former rule
7A(8) stating simply that it stands by its notice of motion. The applicant did not file an
affidavit supplementing its founding affidavit.
Evaluation
[26] Leaving aside for the time being considerations on the appropriateness or
otherwise of attempting to obtain the record in this manner, the filing by the applicant
on 26 August 2024 does not contain the record of the proceedings . To be clear, it
does not contain the transcript of the arbitration proceedings held on 30 October 202 3
nor does it contain any record whatsoever relating to that arbitration. The compliance
order and statement of contraventions are likewise not included. In fact, a perusal of
the bundle does not even hint that a compliance order and statement of contraventions had been issued, or that an arbitration had been held.

[27] It is trite that an arbitrating commissioner of a Bargaining Council or the
Commission for Conciliation, Mediation and Arbitration ( CCM A) has a duty to ensure
that a proper and complete record of those proceedings are kept and to ensure that in
the event that there is a review application, the proper and complete record is made available to the registrar of the Labour Court.
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[28] The registrar is then required to make this record available to the applicant.
The applicant is then required to collect the record and make copies of such portions
of the record as may be necessary for the purposes of the review , and to provide
copies thereof to all parties in the application and to file same with the registrar of the
Labour Court .


3 Doornpoort Kwik Spar CC v Odendaal and others (2008) 29 ILJ 1019 (LC) .
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[29] In South African Social Security Agency v Hartley and others4 this Court, per
Prinsloo J , aptly pointed out that:
“The keeping of a record of the arbitration proceedings is not only practical and
required by the CCMA Rules, but is also necessary as it provides objective material about what transpired at the arbitration proceedings, which assists the
court in the proper exercise of its review powers. As a general rule, it will
always be necessary to have the record of the arbitration proceedings available
to this Court when arbitration awards are reviewed under section 145 of the LRA.”
[30] The omitted record is material to the determination of this review application.
Quite apart from the applicant’s duty to place the record or relevant portion thereof
before the Court, a consideration of the issues for determination reveals why this
obligation is particularly significant in this matter . I shall deal with only two examples in
casu .
[31] It is accepted that an arbitration was held on 30 October 2023 and that there
was at least evidence led by the designated agent. To the extent that the applicant
asserts as a ground of review that the commissioner committed a gross irregularity in
the conduct of the proceedings by rendering an arbitration award without any evidence having led by the first respondent, without the record it is simply not possible for this
Court to determine whether any evidence was even required by the first respondent,
particularly given that evidence had been provided by the designated agent (on what, this Court is not informed) and there must have been submissions before the commissioner related to this aspect which resulted in the applicant providing certain
undertakings. Absent the record, this Court is simply in no position to make a
determination on whether the commissioner committed a gross irregularity in this respect.


4 [2023] JOL 58191 (LC) at para 49.
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[32] The applicant also complains that another gross irregularity in the conduct of
the arbitration proceedings was that relating to the opportunity provided to the
applicant to provide the designated agent with certain information. I have already
pointed out how important this detail is in this re gard and that it is entirely absent from
the arbitration award and the founding papers. This makes it crucial for this Court to be
informed precisely what transpired in proceedings before the commissioner , before
this Court is able to make any findings on the conduct of the commissioner. The
record is essential in this regard.
[33] At the hearing of this matter Ms Kleynhans , who appeared for the applicant ,
could not deny that the omitted record is material to the determination of the
application. Ms Kleynhans ultimately requested that the application be postponed to
allow the applicant the opportunity to make the necessary inquiries and to take
appropriate steps to remedy this concern.
[34] There are several judgments of this Court, the Labour Appeal Court ( the LAC )
5
and the Constitutional Court ( the CC )6 which provide guidance on what the Labour
Court should do when faced with a review application where the record of arbitration
proceedings sought to be reviewed is not placed before C ourt. There can, of course,
be various reasons as to why the record has not been placed before Court. For
example, the record may have gone missing through no fault of the applicant and
there may or may not have been attempts at a reconstruction thereof; the person or body whose decision is being reviewed may be obstructive and not make the record
available; or the applicant may, despite the record being made available, simply not
take appropriate steps to place it before C ourt. Naturally, the Labour Court’s approach
to dealing with such cases depends on the particular circumstances of each case.

[35] It is trite that the Court should not consider the merits of a review application
where material portions of the record are not placed before the Court. In Fountas v

5 See: Johannesburg Road Agency v Makhari [2024] JOL 67275 (LAC) .
6 See: Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and
Others [2016] 4 BLLR 319 (CC)
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Brolaz Projects (Pty) Limited and Others7 the LAC pointed out that a Court in such
circumstances is first required to consider whether the applicant in the review
application has taken all reasonable steps to search for such evidence and or to
reconstruct the record.
[36] The LAC went on to explain that if the Court is of the view that the applicant has
not taken all reasonable steps that it could and should have taken, the Labour Court
hearing the review application would have to choose between one of two options, described thus
8:
“[32] The one would be to dismiss the application on the basis that the
[applicant] had had ample opportunity to take those steps and had no acceptable explanation for not having done so. This is not an option that the
Court a quo could have taken lightly because it would have shut the door in the face of the [applicant] who would not have been able to have set aside an arbitration award that may well not have deserved to stand. However, it is a decision that a Court may take in an appropriate case.
[33] The other option that the Court a quo could take would have been to
postpone the review application or to strike it off the rol l to enable the [applicant]
or all parties to take such steps as might not have been taken earlier to search for the missing evidence or to reconstruct the record. The latter option is one that a Court will usually adopt unless it is dealing with a case where considerations of fair play between the parties, finality of litigation and others
demand that the application be dismissed without the consideration of the merits. This would occur where, for example, the matter had dragged on for a
long time and the relevant party had had ample opportunity to reconstruct the record but had, for no acceptable reason, failed to do so.”
[37] In casu although the commissioner and the third respondent were duty bound
to keep a record of the proceedings, it is not known whether such a record as a matter

7 [2016] JOL 35703 (LAC) .
8 Ibid at paras 32 and 33.
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of fact exists. The applicant’s attorneys had, albeit directly to the third respondent,
requested the entire file contents along with “ all associated records ”. Despite this
request, the record does not feature in the bundle delivered by the applicant under
cover of its rule7A (6) notice.

[38] Had the applicant taken the requisite steps to compel the third respondent to
comply with its obligations to make the record available to this Court, this information
would be known. If the record exists, it must obviously be placed before this Court. If the record does not exist, then there are other avenues which the applicant may
pursue, including reconstruction.
[39] Whilst the applicant has clearly not pursued all reasonable steps that it could
and should have taken in relation to the record, it has attempted to procure the record,
albeit in the misguided manner outlined above.
[40] In this application there is insufficient evidence before the Court as to the status
of the record, whether it in fact is available and whether its omission at this point is due entirely to the fault of the applicant.
[41] For all these reasons , I do not consider it appropriate, in the circumstances of
this matter , to dismiss the application as it would saddle the applicant with an
arbitration award t hat may well not deserve to stand. Additional considerations include
the fact that the matter is unopposed and there have been no excessive delays by the
applicant in pursuing this application. This is not a matter where considerations of fair
play between the parties or finality of litigation demand the dismissal of the application
at this juncture.

[42] As Ms Kleynhans for the applicant ultimately requested in argument, I consider
it to be appropriate that the application be postponed in order to allow the applicant
further opportunity to make the necessary inquiries referred to above and to take such
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steps as might not have been taken earlier to place the record or a reconstructed
record if necessary, before this Court.

[43] In the premises , the following order is made:
Order
1. The application is postponed sine die to enable the applicant to take
appropriate steps to address the concerns regarding the omitted record of proceedings, as outlined in this judgment.
2. There is no order as to costs.

S. Milo
Acting Judge of the Labour Court of South Africa.
Appearances:
For the Applicant: Ms Aquila Kleynhans of Yusuf Nagdee Attorneys

For the First , Second and Third Respondent: No appearance