THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case no : JR1963/21
In the matter between:
SAKGEN YA NTUNTU PETESEN MOTLOUTSI Applicant
and
UNIVERSITY OF PRETORIA First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION (“CCMA”) Second Respondent
JAMES NGOAKO MATSHEKGA N.O. Third Respondent
Heard: 19 March 2025
Delivered: 10 April 2025
JUDGMENT
KIRSTEIN, AJ
2
Introduction
[1] The applicant seeks an order reinstating the main review application, which is
deemed to be withdrawn, lapsed and archived in terms of the then- applicable
Practice Manual of this Court
1 (Practice Manual). The applicant further seeks , in
addition, that the late delivery of the main review application be condoned. The first
respondent opposes both applications.
Background
[2] On 27 July 2021, the third respondent issued a dismissal ruling of a dispute
referred by the applicant to the second respondent , where the following was ruled:
‘Applicant’s allege unfair dismissal dispute is dismissed as a result of the
applicant’s decision not to participate in the arbitration proceedings after his
application for recusal was declined and dismissed. ’
[3] On 23 September 2021, the applicant filed a review application for an order
that the dismissal ruling issued by the third respondent under c ase no:
GATW4630/20 dated 27 July 2021, be reviewed and set aside. The review application was delivered outside the six weeks prescribed period in terms of section 145 of the Labour Relations Act
2 (LRA).
[4] The applicant failed to file the record of the arbitration proceedings in terms of
clause 11.2.2 of the Practice Manual within 60 days of the date on which the applicant was advised by the Registrar of the Labour Court that the record had been
received. The review application was deemed to have been withdrawn on 27 December 2021. The applicant failed to pursue the review application in terms of
clause 11.2.7 of the Practice Manual, wherefore the review application was archived
1 Practice Manual of the Labour Court of South Africa effective 1 April 2013 (repealed, effective 17
July 2024).
2 Act 66 of 1995, as amended.
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on 20 March 2022. The applicant served the reinstatement application on 21 April
2023.
Analysis
[5] The matter was set down for hearing on 19 March 2025 and only for the
purposes of the reinstatement of the review application. The pleadings in the review application have not been closed. In the matter of NUMSA obo Charles v DSV
Solutions (Pty) Ltd and Another
3, the Labour Court indicated that if a condonation
application is heard separately from the review application and the pleadings have
not yet been closed in the review application, the parties are placed in an invid ious
position. I am in agreement with what has been stated in paragraph [ 33] of the
judgment referred to supra:
‘In summary then in my view condonation applications should not generally be
heard separately from review applications and furthermore the setting down of
a condonation application before pleadings have closed in a review
application and in particular before the record has been filed in the review application would, in any event, be premature.’
[6] The requirements for an application for reinstatement were addressed inter
alia in Samuels v Old Mutual Bank
4 (Samuels ) wherein it was held that:
‘In essence, an application for the retrieval of a file from the archives is a form
of an application for condonation for failure to comply with the court rules, time
frames and directives. Showing good cause demands that the application be
bona fide; that the applicant provide a reasonable explanation which covers
the entire period of the default; and show that he/she has reasonable prospects of success in the main application, and lastly, that it is in the interest of justice to grant the order. It has to be noted that it is not a requirement that
the applicant must deal fully with the merits of the dispute to establish
reasonable prospects of success. It is sufficient to set out facts which, if
3 (PR118/20) [2021] ZALCPE 11 (22 October 2021) at subpara 32.2.
4 [2017] ZALAC 10; (2017 ) 38 ILJ 1790 (LAC) (Samuels ) at para 17.
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established, would result in his/her success. In the end, the decision to grant
or refuse condonation is a discretion to be exercised by the court hearing the application which must be judiciously exercised. ’
[7] In Bidvest Protea Coin (Pty) Ltd and SATAWU and Others
5, it was held:
‘From the above authorities, it is clear that the enqui ry to be conducted is that
which would [be] applied in an application for condonation, and that the period
between the date of filing of a review application and the expiry of the 60- day
period within which the record is to be f iled, as well as events after that date,
must be taken into account .’
[8] The above principle was followed in City of Ekurhuleni Metropolitan
Municipality v SA Local Government Bargaining Council and O thers
6, where it was
held that:
‘In an application to reinstate a review deemed withdrawn, the applicant must
demonstrate good cause. This i s so in that such applications ar e akin to seeking
condonation for the failure to comply with stipulated time- lines. When considering
whether good cause has been demonstrated, the cour t exercises a discretion having
taken account of inter alia the degree of lateness, the explanation therefor, the
prospects of success and the impor tance of the case. ’
[9] The applicant delivered the reinstatement application 13 months after the 60-
day period expired in terms of clause 11.2.2 of the Practice Manual . The indication is
that the transcribed record of the arbitration proceedings was delivered on 10 July
2023. The late delivery of the record must be regarded as excessive.
[10] In the founding affidavit deposed to by the applicant in the retrieval
application, the applicant, to some extent, explained the difficulties that he had with
his representatives after the dismissal ruling was received. The first respondent is
correct that the applicant blames his erstwhile attorneys ’ representatives for not
5 Unreported judgment under case no: JR297/17 delivered 20 August 2020 at para 10.
6 (JR 1398/18) [2023] ZALCJHB 165 (30 May 2023) at para 5.
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pursuing the review application as diligently and expeditiously as required. In
Govender and Others v C ommission for C onciliation, Mediation and Arbitration and
Others7 (Govender ), the Labour Appeal Court (LAC) stated the following:
‘It is trite that there is a limit to which a litigant can escape the result of his
attorney’s lack of diligence, as was held in Saloojee & another NNO v Minister
of Community Development 1965 (2) SA 135 (A) (Saloojee) , however, it is
equally true that the facts of a matter will dictate whether or not the actions (or
inactions) of a litigant’s representative can be imputed to the litigant. ’
[11] The applicant demonstrated sufficient reason to place the blame of the delay
in delivering the record and prosecuti on of the review application with his erstwhile
representatives .
[12] The LAC in Samuels
8 stated that a retrieval application is in the nature of a
condonation application, and it is required to set out facts, if established, that would
result in success.
[13] The review grounds raised by the applicant concern inter alia the failure to be
given an opportunity to present his case at the arbitration. H aving read the transcript
of the arbitration proceedings, it is noted that the applicant sets out sufficient facts that would result in success. It is so that the applicant excused himself from the arbitration on the basis that he intended to review the ruling of the third respondent regarding the recusal application but never waived his right to pursue the unfair
dismissal dispute . There were also issues with a transcription of an audio recording
and other documents to be presented at the arbitration that would have caused, in all
possibilities in any event , a postponement of the arbitration. A complete transcribed
record has been delivered and should be sufficient to determine the main review application.
7 [2024] ZALAC 6; (2024) 45 ILJ 1197 (LAC) (Govender ) para 69 .
8 Samuels supra.
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[14] The applicant acted to his own prejudice when he left the arbitration process
on the basis that he wanted to pursue a review application. T he applicant was
indeed prejudiced by the dismissal ruling issued by the third respondent. The delay
in the prosecution of the review application prejudiced the first respondent, but such
a delay should be considered in determining a remedy if the applicant is allowed by
the review court to present his case at an arbitration.
[15] In the case of Grootboom v National Prosecuting Authority and Another9, the
Constitutional Court again emphasi sed that the various factors to be taken into
consideration in a condonation application are not individually decisive but should all
be taken into account to arrive at a conclusion as to what is in the interest of justice.
It is so that there is an excessive delay in the prosecution of the review application.
The applicant, however, despite his erstwhile representative’s failure to act
expeditiously, managed to secure a complete transcribed record. The applicant did
not waive his right to pursue his unfair dismissal dispute and would be severely
prejudiced if a review court cannot consider the review ground that the applicant
was, as alleged, not afforded an opportunity to present his case. In Govender10, the
LAC stated the following:
‘While it is often said that where a delay is significant and the explanation
poor, the prospects of success do not play a significant role and if the delay is
short but the explanation is unsatisfactory and reasonable prospects of
success exist, condonation should be granted. This is a matter where the
delay is significant and the explanation demonstrates nothing less than a failure by both the attorneys and the union to provide proper and adequate
service to their clients and members and as such, the door cannot and will not
be closed for a proper consideration of the merits of the appeal to determine
whether condonation should or should not be granted. ’
Conclusion
9 [2013] ZACC 37; [2014] 1 BLLR 1 (CC).
10 Govender supra at para 80.
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[16] For all the reasons set out above, the conclusion is that the applicant has
shown good cause why the main review application must be reinstated. The
condonation application should be considered by the review court once pleadings in
the review application have closed.
[17] Having taken into consideration the relevant facts and circumstances and
having regard to the requirement of law and fairness, it would not be appropriate to
make a cost s order.
[18] In the premises, the following order is made:
Order
1. The application for the reinstatement of the main review application is
granted.
2. There is no order as to costs.
P.H. Kirstein
Acting Judge of the Labour Court Of South Africa
Appearances :
For the A pplicant : Mr M C Mathabathe
Instructed by Polokwane Justice Centre
For the First R espondent: Mr Anton Bekker
Instructed by Anton Bakker Inc. Attorneys