THE LABOUR COURT OF SOUTH AFRICA , GQEBERHA
Not Reportable
Case No . P03/25
In the matter between:
NEW HEIGHTS 1275 CC t/a ST THOMAS PRIVATE SCHOOL Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND AR BITRATION First Respondent
ELIZABETH TOM N.O. Second Respondent
MARIA CATHARINA RHEEDER Third Respondent
Heard: 28 & 29 January 2025
Delivered: 30 January 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date of hand- down is deemed to be 30 January
2025.
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JUDGMENT
MAKHURA , J
[1] More than 35 months ago on 24 February 2022, the second respondent
(commissioner) , appointed as an arbitrator under the auspices of the first respondent
(CCMA) to arbitrate an unfair dismissal dispute between the applicant and the third
respondent (employee) in these proceedings, issued an arbitration award in terms of which she declared the dismissal of the employee substantively unfair and ordered the
applicant to pay her com pensation equivalent to 12 months ’ remuneration, which equals
to R134 820.00.
[2] The applicant then filed an application in terms of section 145 of the Labour
Relations Act
1 (LRA) to review and set aside the award under case number PR63/22. It
is common cause that the employee was not served with the review application in that
the applicant’s attorneys used an incorrect email address to serve the application on
her. Although service by email was not prescribed in the now repealed Labour Court
Rules which were applicable at the time of the review application, the practice of service
by email was accepted and service was proved the same way as service by fax in terms of item 14.1.5 of the now repealed Practice Manual of the Labour Court of South Africa,
April 2013. There was no telephonic confirmation by the applicant’s attorneys of service
of the review application by email nor was there any confirmation with her attorneys of
record during the arbitration proceedings that the review application had been
successfully served on them . If that was done, the current application would have been
unnecessary and perhaps the review application could by now have been finalised.
1 Act 66 of 1995, as amended.
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[3] The applicant’s current attorneys of record were not authorised to act in the
review proceedings at the time the applicant elected to use their details to serve the
employee.
[4] During October 2022 and after receipt of the certified award, t he employee
attempted to execute the award. The Sheriff, on the employee’s instruction, attended the applicant’s premises to execute the award. This prompted the applicant to pay an amount of R134 820.00 as security into its attorneys’ trust account. Although the
employee adopted the view that the furnishing of security did not stay the execution of
the award, she however instructed the Sheriff to suspend execution of the award.
[5] Despite not being properly served, the employee instructed her attorneys of
record to oppose the review application “to protect [her] interest” and raise the issue of
non-service on her. An answering affidavit in this regard was served on 14 November
2022.
[6] On 22 November 2022, the review application, which was enrolled for hearing on
unopposed motion roll for that day, was removed from the unopposed roll on the basis
that it had become opposed. The application was again enrolled for hearing on 19 April
2023. On this date, the Court , per Prinsloo J, removed the matter from the roll and
ordered further that :
‘The applicant has to file a condonation application for the late filing of the review
application in respect of service on the third respondent within 14 days of date of this order. ’
[7] The applicant subsequently filed an application, not for condonation of the late
service of the review application on the employee or late filing of the review application in respect of service on the employee as ordered by the Court on 19 April 2023 , but for
condoning the irregular service of the review application. The applicant’s attorney, who
deposed to the affidavit in the condonation for the irregular service application and the
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current urgent application, explains why he opted for this type of application and the
difficulties he faced:
‘I had difficulty in drafting the application in support of the condonation application in
that:
The application was not served out of time, the Third Respondent’s issue was that it was served on her attorney.
If it is accepted that this constitutes non- service (which is denied), then it follows
that the application was never served on the Applicant.
The court order in this instance was issued on 19
th April 2023, at which stage it is
common cause that the Third R espondent had been in possession of the papers
since at latest the 21st October 2022.
It would have made no sense to serve the papers again on the Third Respondent (or her legal representative) as she had already been in possession of the documents for almost six (6) months. I have established that the Courts have held that requiring the Applicant to serve papers on a party who is already in possession of these papers would be “technical and frivolous”.
In the light of the clear authorities the service on the Third Respondent ought to have been deemed valid, particularly since the Court has the discretion to
condone the manner of service in each particular circumstance.’
[8] It is evident from the above that the applicant did not accept the order. However,
it is important that this condonation application was required and ordered by the Court ,
not a suggested party to the application. The order of 19 April 2023 was not appealed,
nor was there any variation application or a request for reasons for the order. Instead,
faced with what he called the difficulties above, the applicant, through its attorneys,
opted to adopt its own approach and file that which it was not ordered to file and
disregarded to do t hat which it was ordered to do by this Court . The applicant filed an
application to condone the irregular service.
[9] The review application was again enrolled for hearing on 9 May 2024 before
Molotsi AJ. On 14 January 2025, the learned acting judge issued a judgment and order
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in terms of which he dismissed the application for condonation of the irregular service,
declared that the review application was not properly served on the employee and found
that in the absence of a condonation application (as ordered by Prinsloo J), the Court
has no jurisdiction to entertain the review application.
[10] The effect of the above judgment and order is that the review application is not
before this Court. Alive to this, the employee demanded payment of her R 132 820.00
plus interest and threatened to execute the award if no payment was received. This prompted this urgent application. The applicant seeks an order to stay the execution of
the award pending the finalisa tion of the review application.
[11] On 27 January 2025, the applicant filed a n application to condone “ the late filing
of the review application in respect of service ” on the employee. This is the application
which is brought allegedly in compliance with the order dated 19 April 2023.
Inexplicably, the applicant , through its attorneys of record who allegedly had difficulties
complying with the 19 April 2023 order , is now able to comply with the order.
[12] Mr Thys, appearing for the employee, argued during the hearing that this Court
has no jurisdiction to entertain the urgent application. He placed reliance on the
judgment of this Court in Member of the Executive Council, Department of Economic Development, Environmental Affairs and Tourism, Eastern Cape v Noncembu and others
2. This judgment does not advance Mr Thys’ argument. It dealt with an urgent
application to stay the writ of execution pending a review application that was not
pending before the Court because it was deemed withdrawn. In casu , the Court
declared, rightly or wrongly , on 14 January 2025 that the review application is not
deemed withdrawn. In any event, this jurisdictional point was not pleaded. This Court
has jurisdiction over applications for stay of execution.
[13] The applicant contends that the matter is urgent. The reasons for urgency are
articulated as follows:
2 (2023) 44 ILJ 2769 (LC); [2023] 11 BLLR 1213 (LC).
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‘The Third Respondent threatened to execute the writ in the event of the
Applicant failing to pay her by close of business on the 16th January 2025. This
was a mere two (2) days after the judgment was delivered. The Third
respondent’s legal representative made it clear that the third respondent would not agree to stay the writ and that any application to do so would be opposed.
I consulted with members of the Applicant close corporation to advise them of the
judgment and to take instructions regarding the further conduct of the matter. The
Applicant seeks to exercise its rights in terms of the LRA by litigating the matter
to finality. I was subsequently advised by the Applicant’s representative that the
Sheriff had attended at the school premises on Friday 17
th January 2025
demanding to see the Principal . When t he Sheriff was advised that the Principal
was teaching in class, the S heriff indicated that he would be returning on the
morning of the 20th January 2025 to execute the award.
In the event that the Sheriff makes an attachment the applicant will suffer
irreparable harm, as there is little prospect of it being able to recover the capital and accrued interest from the Third R espondent .’
[14] The allegation regarding the Sheriff’s attendance at the applicant’s premises is
inadmissible hearsay evidence in the absence of a confirmatory affidavit from the
applicant and an application for their admission. This allegation is rejected.
[15] The applicant does not state why it did not comply with the 19 April 2023 order
within the prescribed 14 days and why it intended to comply with it only now. There is
no explanation, to the extent that the applicant had its fictitious legal difficulties in
complying with the order, as it suggests, why it did not challenge the order on appeal rather than adopting its ill- considered and contemptuous legal stratagem . The applicant,
despite the unambiguous wording of the 19 April 2023 court order, made a deliberate
decision to pursue a remedy of its choice, not as ordered by this Court. Now that this
election and choice has been found to be inappropr iate and not in compliance with the
order , it now elects to comply with what the Court ordered over 21 months ago . The fact
that it has now elected to comply with the order demonstrates that it was never difficult
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to comply with the order . The applicant must live with its ‘ informed’ and ‘considered ’
approach. This Court should not be hastened to come to the assistance of a reclacitrant
litigant who deliberately made a choice to disregard its order s.
[16] As stated above, this condonation application, which was only filed on 27
January 2025, should have been filed in May 2023. It is more than 21 months outside
the period prescribed by this Court. There is no condonation for the late delivery of this
condonation application. Therefore, the same condonation application filed on 27 January 2025 is not properly before this Court . In the absence of a condonation
application for the application for condonation of the late filing of the review application,
the condonation application itself is not before this Court and the review application is
still not properly before this Court. Ultimately, the application to stay the writ of execution pending a review application that is not properly before this Court is
incompetent.
[17] In any event, the employee has, insofar as the applicant alleged irreparable harm
and lack of substantial redress in due course , stated that she is married to her husband
in community of property and that they “ own movable property that could be disposed of
should recovery of capital and interest be necessary ”. The employee has a costs order
against the applicant. These factors should be sufficient to allay the applicant’s fear that
should i t be successful in its quest of overturning the award in future or in this
application in the normal course, it would not be able to recover its money, with interest
from the employee.
[18] I am therefore not persuaded that the applicant has successfully established that
the matter is urgent and that it has put forward the reasons why the relief should be granted now and why it cannot be afforded a substantial redress if the matter is heard in
the normal course.
3 The application falls to be struck off the roll.
3 See: Rule 38(2) of the Rules Regulating the Conduct of Proceedings of the Labour Court , GN4775a in
GG 50608, 3 May 2024; East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and
Others [2011] ZAGPJHC 196; 2011 JDR 1832 (GSJ) at para 6.
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[19] Both Mr Le Roux for the applicant and Mr Thys for the employee argued that a
punitive costs order is warranted. Section 162 of the LRA requires this Court to consider
the requirements of law and fairness in its enquiry whether or not to award costs. The applicant has filed an affidavit with unsubstantiated or unconfirmed allegations in its motivation of urgency. The 18 page founding affidavit was answered with a 19 page affidavit and replied with a staggering 47 page affidavit. In its papers, th e applicant
dedicated a lot of effort on the issues that w ere determined by Molotsi AJ , which are
irrelevant in these proceedings .
[20] The applicant was careless and contemptuous in its approach to the matter in
that it disregarded this Court’s order of 19 April 2023 and only sought to comply with it
more than 21 months later and after its failed legal strategy . The strategy to file an
application to condone irregular was unnecessary . It disregarded and undermined this
Court’s authority. The applicant had the audacity to seek a punitive costs order against
an employee whose dismissal was found to be unfair and who is only seeking to assert
her legal right and enjoy the fruit of the award. This application was launched because
the applicant elected t o defy the court order of 19 April 2023. The applicant must rise
and fall by its election.
[21] The employee should not be out of pocket for opposi ng what I find to be a self-
created urgent application seeking an incompetent order. For these reasons, the
applicant must, as it sought against the employee, be ordered to pay the employee’s punitive costs o n scale B .
[22] In the premises, the following order is made:
Order
1. The application is struck off the roll for lack of urgency.
2. The applicant is ordered to pay the third respondent’s costs , including the
costs of counsel, on scale B of the applicable scales.
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M. Makhura
Judge of t he Labour Court of South Africa
Appearances:
For the Applicant: Mr. F Le Roux
Instructed by : Drake Flemmer & Orsmond (EL) Inc.
For the 3rd Respondent: Mr. M Thys
Instructed by: Butler Attorneys