THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JR811/15
In the matter between:
TABAKO EPHRAIM MPHAHLELE Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
BELLA GOLDMAN N. O. Second Respondent
SOUTH AFRICAN AIRWAYS (SOC) LTD Third Respondent
Heard: 29 May 2025
Delivered: 25 May 2025
Reasons: 24 June 2025(This judgment was handed down electronically by
circulation to the parties’ legal representatives by email, publication on the
Labour Court website and release to SAFLII. The date and time for handing -
down is deemed to be 10h00 on 24 June 2025.)
REASONS FOR ORDER
2
PHEHANE , J
Introduction
[1] This is an application by the applicant to oste nsibly, to remit his dispute to the
first respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA)
to be heard de novo by a commisisoner other than the second respondent on the
basis that the CCMA and the second respondent have failed to file the record of the
arbitration proceedings (remittal application) . The third respondent opposes this
application.
[2] On 29 May 2025, this Court dismissed the remittal application with costs. The
reasons for the order follow.
Background facts
[3] The applicant is self representing. He informed this Court that he is a trade
union official. The appl icant launched a review application in terms of section 145 of
the Labour Relations Act
1 (LRA) on 12 May 2015 to review and set aside the
arbitration award dated 31 April 2015 by the second respondent .
[4] On 15 September 2015, the CCMA delivered a notice in terms of Rule 7A(3)
of the former Rules of this Court.
2 The applicant avers that after transcribing the
record, he discovered that the incorrect electronic disc had been filed by the CCM A.
Although not pleaded, the applic ant submitted in oral argument from the Bar, that he
sent written correspondence to the CCMA dated 10 July 2015,3 requesting that the
correct electronic record be filed and he waited in the hope that the CCMA would
1 Act 66 of 1995, as amended.
2 GN 1665 in GG 17495 of 14 October 1996 (repealed on 17 July 2024). This notice appears at p 13
of the pleadings bundle.
3 A copy of this letter is simply attached to the founding affidavit without being referred to in the
founding affidavit. It is theref ore, disregarded. See: Swissbourough Diamond Mines (Pty) Ltd and
Others v Government of the Republic of South Africa and Others 1992 (2) SA 279 (T).
3
comply; it did not. The applicant avers that the CCMA did not respond “ to the letters ”
to file the correct records.4
[5] Approximat ely one year later, on 15 February 2016, the applicant dispatched
correspondence to the Judge President seeking a directive as the CCMA had filed
the incorrect electronic record. The applicant states that his correspondence w ent
unanswered.
[6] About nine months later, on 30 November 2017, the applicant launched this
remittal application.
Remittal application
[7] Although not prayed for in his notice of motion, the alternative rel ief sought by
the applicant is an order compelling the CCMA to file the correct electr onic record.
5
[8] The applicant submi ts that to the date of the preparation and filing of this
application, the CCMA had still not filed the correct electronic record.
6 That is, two
years after the review application was filed.
Opposition
[9] The third respondent contends that the relief sought by the applicant is
incompetent, as a di spute may be remitted to an arbitrating body after the award or
ruling , as the case may be, has been reviewed and set aside for reasons such as the
inability to obtain the electronic record of the arbitrtation proceedings. The third respondent submits that the applicant failed to take all reasonable steps to secure
the electr onic record from the CCMA . The first step the applicant ought to have
taken, was to bring an appliction within a reasonab le time, to compel the CCMA to
file the correct record . A further step was to seek a reconstruction of the record. Only
if reconstruction were impossible, then, to seek the consent of the thir d respondent
4 Founding affidavit at para 6.7 on p 9.
5 Founding affidavit at para 5.2 on p 7.
6 Ibid at para 6.8
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to review and set aside the award and to remit the dispute to the CCMA for a hearing
de novo.
[10] The third respondent relies, in this regard, on the case is S outh African Social
Security Agency v Hartley and Others,
7 (SASSA) where Prinsloo J sets out in detail,
citing the relevant authorities, the steps that an applicant is to take in terms of the provisio ns of the former Rule 7A and item 11.2.4 of the former Practice Directive of
this Court,
8 to secure the record of the arbitration proceedings and to ensure that the
record that is necessary for the determination of the review application is before the
Court. In SASSA, this Court remarked that foregoing the intial steps and jumping
ahead to write to the Judge President for directives is an abuse, as is seeking advice of the Judge President when it is obvious that an applicant should bring an applation to compel the relevant bo dy to file the record when it ha s failed to do so.
[11] The respondent submits therefore, that in instances where the CCMA has not
stated that the record is lost, the relief sought by the applicant is incompetent.
Lapsing of the review application
[12] I raised with Mr Mphahele the obvious difficulty that faces him, and that is, in
the abs ence of a Rule 7A(6) notice and the filing of a mechanical and non -
mechanical record, that his review application is deemed withdrawn for fal iure to
comply with item 11.2. 2 read with item 11.2.3, as well as item 11.2.7 of the former
Practice Manual. These provisions provided that a review application is deemed withdrawn if the record is not filed within 60 days of the Registrar informing the applicant that the record has been filed by the arbitrating body, and that a review application will lapse if all the necessary papers are not filed within 12 months of the launch of the aplication, including requesting the Registrar to allocate a hearing date. Further, that in terms of the provisions of item 16 of the former Practice Manual, a
review application lapses where an applic ant failes to take further steps six months
after the last process filed. Therefore, the review lapsed on 15 January 2016, before he sent a letter to the J ude President for directives.
7 (2023) 44 ILJ 1334 (LC) at para s 43 to 64.
8 Practice Manual of the Labour Court of South Africa, 2013 (repealed on 17 July 2024).
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[13] The applicant denied that the review application lasped. This is surprising for
a union official, who ought to be familiar with the Rules and Practice Manual of the Court that were operative at the time and binding. The applicant further, rather surprisingly submits that he complied with the rules and filed the record, albeit an
incomplete record. The fact of the matter is, no record of the arbit ration proceeedings
sought to be reviewed w as ever filed and placed before this Court, thus rendering
the review application defective.
[14] The applicant proceeded to mislead the Court in stating that the review was
enrolled for a hearing and an order was made by a Judge. He could not explain what
order was made, on which date and by which Judge. It is a serious matter for a party
to mislead the Court.
[15] I also raised with the applicant, given his view that the review appl ication had
not lapsed, which view I disagreed with, in light of the principle of the speedy
resolution of employm ent law disputes as espou sed by the LRA, on what basis this
Court could issue an order compelling the CCMA to file a record, now, ten years
later, in circum stances where on his own version before this Court, he did not follow
up with the CCMA since 2015, after informing the CCMA that it filed an incorrect
record. The app licant insist ed that he did something - and that was to write to the
Judge President . I have already discussed above, that this Court has remarked that
such an approach as an intial step is an abuse.
[16] In my view, the review application has lapsed. There is accordingly no live
review application before this Court. Therefore, the remittal application fails. If I am
wrong, which I do not think I am, the review application is fatally defective and for that reason too, the remittal application fails.
[17] The applicant is au fair with the Rules and Practice Manual of this Court that
was operative at the time. This application is ill -conceived and was doomed from
inception. The applicant has wasted this Court’s time pursuing an application that lacks merit. He failed to comply with the Rules and P ractice Manual and he is the
architect of his own misfortune in that regard. As the dominant litigant, he did nothing
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to prosecute his review application – he did not approach the third respondent in
terms of item 11.2. 3 of the former Practice Manual f or consent for an ext ension to file
the record, failing such consent, an application to the Judge President for such
extension.
[18] The applicant’s conduct of misleading the Court with untruthful submissions
that his review appliation was heard when asked to make submissions on the
archiving of the review applciation, is frowned upon.
[19] It is for these reasons that this Court ordered the applicant to pay the costs of
this application in order to deter such conduct of misleading the Court and pursuing
applications that are hopeless , seeking incompetent relief.
[20] It is for the ab ove-mentioned reasons, the said order was made.
M. T. M. Phehane
Judge of the Labour Court of South Africa