THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case no: D242/2024
In the matter between:
ROAD ACCIDENT FUND Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
R PADAYACHEE N.O. Second Respondent
NEIL PERUMAL Third Respondent
DEANO SINGH Fourth Respondent
Heard: 08 July 2025
Delivered: 17 July 2025
Summary: The application to dismiss a review application as the employer,
the applicant party, failed to pursue the review application as required by
section 145 of the Labour Relations Act 66 of 1995 (LRA) ,the New Labour
Court Rules and Labour Court Practice Manual – Delays and their effects are
covered in the then Labour Court P ractice Manual, which also governs the
prosecution of review applications – The Labour Court lacks the authority to
2
consider the main review application in cases where the Practice Manual's
deemed withdrawal provisions have taken effect – the review application is
deemed withdrawn or lapsed until the court orders its reinstatement – As
such, the court held that there was an unreasonable delay in the prosecution
of the lapsed review application, which could not be condoned.
As such, the review application was dismissed with costs, costs to inclusive
costs associated with the review application.
JUDGMENT
MPAHLWA, AJ
Introduction
[1] For ease of reference, the parties will be referred to, in this judgment, as they
appear in the main review application.
[2] The Third and Fourth Respondents (collectively, the Respondents) move for
an application to dismiss the review application filed under case number D242/2024,
and furthermore, that the award is made an order of this court in terms of Section
158(1)(c) of the Labour Relations Act
1 (LRA).
[3] The application to dismiss the review application was filed on the 24 th
February 2025, currently stands unopposed by the Applicant . As such, it is an
uncontested and unopposed matter.
[4] At the commencement of the hearing, Mr Ratshili, appearing for the Applicant,
submitted that the Applicant party did not have any intention of opposing the current
dismissal application, save to engage in settlement negotiations, which appear to
have started and collapsed on the day of the hearing, being 8 July 2025. No reason
1 Act 66 of 1995, as amended.
3
was proffered why such negotiation could not have commenced much earlier , and
only at the door of the court ,at the hearing day.
[5] Given the absence of opposition in the matter, Mr Ratshili ’s submissions were
limited to the collapsed settlement negotiation and the draft order, which had been
proposed by the Respondent s. Having said that, the matter has some checked
history to it, which is necessary to set out below.
Material background facts
[6] The Applicant (in the main review application) is the Road Accident Fund,
which is established as a juristic person in terms of Section 2 of the Road Accident
Fund Act.
2 The Third Respondent (the deponent in the current application) is an
adult male, employed by the Applicant (in the main application) as Claims Manager
at the Applicant’s Durban branch office. The Fourth Respondent is an adult male
who is employed by the applicant (in the main application) as a Senior Manager:
Claims, at the applicant’s Durban Branch office.
[7] Both the Third and Fourth Respondents join issue (as the applicants) in the
application to dismiss the review application brought in terms of Rule 11 of the
Practice Manual.
3 Since the present application was filed on the 24 th February 2025,
the New Rules of the Labour Court find application.
[8] It is common cause, or at the very least, undeniable, that the Respondents
were the subject of a disciplinary procedure in 2022. This process ended on 14
September 2022 when the Respondents were found not guilty of the charges against
them.
[9] The Applicant tried to undertake an internal review following the disciplinary
process's conclusion, but the urgent court stopped them with the impact of a final
2 Act 56 of 1996.
3 Rule 11 has been replaced by Rule 41 of the New Rules of the Labour Court, following the repeal of
the Practice Manual on 17 July 2024.
4
remedy, prohibiting them from doing so. On 23 January 2023, a complete ruling on
the case was rendered, still not in favour of the Applicant, employer party.
[10] In light of the aforementioned, the A pplicant filed an application for leave to
appeal against Lawrence AJ's entire 23 January 2023 ruling. On 12 July 2023, the
application for leave to appeal was denied. The Applicant then filed a petition with
the Labour Appeal Court, which was denied on 20 February 2024.
[11] In addition, the applicant continued to place the Respondents on suspension
for all of these periods, despite the Respondents not being subjected to any
disciplinary action or findings justifying their suspension.
[12] The Respondents declared an unfair labour practice dispute against the
Applicant as a result of their ongoing suspension.
[13] An arbitration ruling under case KNDB 1078- 21 was given on 18 March 2024,
concluding that the applicant had participated in unfair labour practices against the
Respondents. The award mandated that their suspensions be lifted immediately.
Additionally, within 48 hours of receiving the award, the Respondents were
instructed to resume their jobs.
[14] The Applicant served the R espondents' attorneys of record with a review
application on 5 May 2024. The six -week window for filing the review application
appears to have ended on 29 April 2024, and thus, the review application was filed
out of time.
[15] It is essential to note that the A pplicant has not pursued or prosecuted the
review application since it was filed, which is roughly a year from the date of the
arbitration award, which was received on 18 March 2024. In addition, since the
Respondents’ suspension went into force on 22 November 2021, there has been an
unreasonably long delay in resolving the matter.
5
[16] Presently before Court, to date, there is still no condonation sought for the
late filing of the review application, nor is there any application to reinstate the review
application.
[17] The Respondents filed this application on the grounds that the review
application violated clauses new Labour Court Rules and make explicit reference to
Rules 37(15), (16), and (17) of the Labour Court Rules
4, respectively.
[18] Apart from the above, the applicant appears to:
18.1 Have failed to comply with the timeframes stipulated under section
145(1)(a) of the LRA.
18.2 Have failed to comply with section 145(5) of the LRA, which requires
that the Applicant apply for a date for the matter to be heard within six months
of delivery of the application.
18.3 Have failed to act in accordance with Rule 7A(6) (replaced with the
new Rules of Labour Court, which bare reference to Rule 37(9) and Rule
37(14) respectively, which obliges the applicant to file the record within 60
days of the date upon which the applicant is advised by the Registrar that the
record has been received).
[19] In the light of the above, the Respondents rely on Rule 11,
5 to dismiss the
review application, given the failure by the Applicant to take further steps to
prosecute the matter within the reasonable timeframes provided for in terms of the
Labour Court Rules and the Practice Manual.
The status of the review application
[20] At the commencement of the matter, this Court had inquired from the
Respondent party what was the position, when the provisions of the P ractice Manual
had taken effect; thus, the review being deemed withdrawn or lapsed, did this C ourt
have the jurisdiction to hear the main dismissal application.
4 GN 4775 of 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court (effective
17 July 2024).
5 Now Rule 41 of the New Labour Court Rules.
6
[21] For the Respondent s, Mr Seery submitted that the fact that the review
application is deemed withdrawn does not oust the C ourt of the required jurisdiction
to hear and decide an application to dismiss the review application. For the
Applicant, Mr Ratshili agreed in this regard that the Court ought to entertain the
application to dismiss the review application because it was clothed with the
necessary jurisdiction. Mr Ratshili ’s only argument was that the Respondent s could
have utilised a much less expensive means to have the arbitration award made an
order of court. Despite that submission, Mr Ratshili submitted that there was nothing
stopping the Court from hearing the application to dismiss the review application and
come to a decision. The closing submission by Mr Ratshili in this regard was that the
application was left with the C ourt to decide on, and no further submissions were to
be made.
[22] On a survey of the Respondents’ papers, reliance is placed on the fact that
the review application is deemed to have been withdrawn based on the provisions of
clause 11.2.3 of the Practice Manual. During argument, r eliance was placed on the
provisions of Rules 37(15), (16) and (17) respectively of the New Rules of the Labour
Court for the contention that the review application had lapsed. Most importantly,
Rule 37(15) provides that:
‘If the applicant fails to file a transcribed record within the prescribed period,
the applicant will be deemed to have withdrawn the application, unless the
applicant has during that period requested the respondent's consent for an
extension of time and consent has been given. Any consent given must be
expressed in writing and filed with the registrar.
6
[23] In other words, r ecords must be filed in terms of 37(9), 7 upon the registrar
notifying the applicant that the record has been received. The applicant will be
considered to have withdrawn the application if the record is not filed within the
considered to have withdrawn the application if the record is not filed within the
allotted time, unless they have asked for and received the respondent's agreement
6 Rule 37(15) of the Labour Court Rules.
7 New Labour Court Rules.
7
for an extension during that time. 8 In the event that consent is denied, the applicant
may request an extension from the Judge President in chambers by submitting a
notice of motion accompanied by an affidavit. Proof of service on all other parties
must be included with the application, and responding affidavits may be submitted
within the time frames specified by Rule 35.9
[24] After that, the Judge President will assign the file to a judge for a chambers
decision regarding any extension of time the respondent should be given to file the
record. It is noteworthy that w here this time limit is not complied with, the application
will be archived and be regarded as lapsed unless good cause is shown why the
application should not to be archived or be removed from the archive.
[25] Given the material background in the matter, the following is clear:
25.1 On 5 May 2024, the Applicant served a review application on the
respondents’ attorneys of record. This is after the expiry of the six -week
period, within which to file the review application,
10 which appears to have
lapsed on 29 April 2024.
25.2 Since the filing of the review application, the applicant has taken no
further steps in the furtherance and prosecution of the review application, a
period which is approximately 12 months from the date of the arbitration
award, which was received on 18 March 2024.
25.3 Presently before court, there is neither a condonation application for
the late filing of the review application, nor is there any application to reinstate
the review application.
[26] For this reason, this Court readily acknowledges that the review application
violated Rules 37(15), 37(16), and 37(17) of the new Labour Court Rules ,
respectively. As a result, the review application can be considered withdrawn, and
the deeming provisions have taken effect.
8 Rule 37(14) and 37(5) of the New Labour Court Rules.
9 Rule 37(16) of the New Labour Court Rules.
9 Rule 37(16) of the New Labour Court Rules.
10 See Section 145 of LRA, Mbatha v Lyster & Others [2001] 4 BLLR 409 (LAC).
8
[27] The next question to consider is whether this Court has jurisdiction to hear the
dismissal application.
Dismissal applications in terms of Rule 41
[28] In Mthembu v Commission for Conciliation, Mediation & Arbitration & others
11
(Mthembu), the court determined that , in order to expedite the resolution of labour
disputes, a Rule 41(1)(a)(b) application should be allowed. The court held that a
party bringing a Rule 4 1 application once it has been placed in a position to file an
answering affidavit and raise the issue of non- compliance defeats the concept of
expeditious resolution of disputes. As a result, the court decided that the opposing
party cannot be expected to wait interminably after a matter is deemed withdrawn if
the reviewing party does not submit an application to reinstate or request
condonation for failing to comply with the deadlines for the matter's resuscitation. To
avoid essentially leaving the opposing party in a review application at the discretion
and whim of the reviewing party, the court believed that the only way to resolve the
issue would be through a Rule 41 application.
12
[29] Given the Labour Court's broad discretion in interpreting and applying the
Practice Manual's provisions, the court in Mthembu concluded that nothing precludes
the court from considering an application to dismiss a review application, even in
situations where the review application is presumed to have been withdrawn.
[30] The Court further held that its opinion is supported by the Labour Court
Rules' Rule 41(3), which states that a reviewing court may act in a way that it deems
appropriate under the circumstances to accomplish the goals of the LRA while
exercising its authority and carrying out its duties. In other words, a court may grant
a Rule 4 1(1)(a) application to dismiss a review application in order to resolve a
dispute as speedily as possible without having to wait for the reviewing party to take
dispute as speedily as possible without having to wait for the reviewing party to take
further steps to bring the matter to finality or to resurrect the matter after it has been
deemed withdrawn due to non-compliance with the relevant timeframes.
11 (2020) 41 ILJ 1168 (LC).
12 Ibid at para 25, noting that Rule 11 was repealed and replaced with Rule 41 of the New Labour
Court Rules.
9
[31] As a result, the court determined that the employer was not prohibited from
acting right away to finalise the employee's review application, even though it was
believed to have been withdrawn. Instead, the employer had the right to carry on
with business as usual without worrying about whether the employee would ever
pursue the review and resolve the issue. Therefore, the court decided that in order to
expedite the resolution of labour disputes, the Rule 4 1 application should be granted
in such situations.
[32] Most significantly, the court in Mthembu also provided examples of behaviour
that is unacceptable abuse of the legal system and incompatible with the prompt
settlement of a dispute. This behaviour includes instances in which the reviewing
party is aware of the Rule 4 1 application and does not take any action to oppose the
application or indicate that they intend to pursue the review application, or in which
the reviewing party has been informed of the opposing party's intention to oppose
the review application and no further action was taken to prosecute or reinstate the
review application after it was deemed withdrawn. In the present case, that is the
precise position.
[33] In contrast, in SA Police Union on behalf of Mnisi v Safety & Security Sectoral
Bargaining Council & Others
13 (SAPU), quoted in Mthembu, the court had referred to
a legal principle established and said:
‘Once a case has been withdrawn, such a case is not justiciable in a court of
law. The dismissal of a review that has been withdrawn no longer affect s the
interest of the parties. It has no practical effect to the parties, nor does it serve
the interests of justice. A review application that is deemed to be withdrawn
does not exist. Put differently, there is nothing before the court to be
dismissed. This court will have no jurisdiction to dismiss a non- existent review
application. A review application that is set down for a hearing after having
application. A review application that is set down for a hearing after having
been deemed withdrawn ought to be struck off the roll rather than being
dismissed.’
14
13 Unreported judgment under case no: JR 2597/2001 delivered on 19 August 2019.
14 Quoted with approval in Mthembu at para 11.
10
[34] The court in SAPU went further to suggest that a practical solution to the
above administrative conundrum, which impacts the adjudication of these matters , is
as follows:
‘I fail to understand the practical effect of dismissing a withdrawn review. The
approach taken by Van Niekerk J in Ralo was to strike such a review off the
roll when it was enrolled despite having been deemed withdrawn. Such to me
is a proper approach and it commands to certainty. In my view, the registrar
must refuse to enroll [applications that are] deemed withdrawn until reinstated
by a court. A system may have to designed by the registrar to identify such
matters. This would do the already congested roll a lot of good. As a corollary
to that, the registrar must refuse to enroll rule 11 applications seeking to
dismiss reviews that are deemed withdrawn.’
15
[35] The above was confirmed in the matter of Macsteel Trading Wadeville v Van
Der Merwe No & others16 (MacSteel).
[36] The position with respect to these dismissal applications has been unclear
over time because of conflicting judgments handed down by this Court on this issue.
The most recent of which is NUMSA obo Mavuso v Mini Mega (P ty) Ltd t/a
Rustenburg Engine Centre
17 (Mavuso).
[37] In Mavuso, the Court considered a request to reject a review application
because the employer, the applicant party, had neglected to pursue it in accordance
with section 145 of the LRA and the Practice Manual. The Court ruled that it lacked
the authority to decide on a review application that was filed after the six -week limit
and in which no application for a condonation was filed . In spite of the absence of
jurisdiction and the provisions of the Practice Manual, the Court went one step
further and decided that the employer's excessive delay in prosecuting the case
warranted the dismissal of the review application under Rule 11, of the old Rules of
the Labour Court.
15 Ibid at para 14.
16 (2019) 40 ILJ 798 (LAC) at para 25.
the Labour Court.
15 Ibid at para 14.
16 (2019) 40 ILJ 798 (LAC) at para 25.
17 (JR 1288/13) [2022] ZALCJHB 180 (4 July 2022).
11
[38] That being the position, it is necessary to consider next the extent of the
applicability of the Practice Manual.
Applying the Practice Manual
[39] Regarding the Practice Manual's applicability, the Court in Mavuso decided
that it should be interpreted flexibly rather than strictly. The Court further concluded
that judicial discretion over cases before the Labour Court was not rendered
obsolete by the Practice Manual's publication.
[40] In relation to the deeming provisions of the Practice Manual, the Court further
held that these are not to be interpreted to mean that the Court is barred from
exercising its discretion to dismiss a review application that has clearly not been
prosecuted diligently by the applicant. In concluding the matter, the Court held that
the courts have the discretion, in appropriate circumstances, to determine a matter
despite its withdrawal by the applicant party remaining intact. This Court agrees with
the approach in Mavuso.
Assessment
[41] The Court determined in Sishuba v National Commissioner of SAPS
18 that
the following general strategy should be used in an application to dismiss, as follows:
‘The focal point in considering whether to grant the order barring the
employer, in this case, from proceeding further with the review application is
the issue of justice and fairness to both parties. The question that then arises
is whether the interest in the administration of justice, in this instance, dictates
that the employer be barred from proceeding further with the review
application.’
19
[42] In considering the application to dismiss the review application, two main
issues must be considered and decided:
18 [2007] 10 BLLR 988 (LC).
19 Ibid at para 16.
12
42.1 Where there was an unreasonable delay, and if so
42.2 Whether the delay should be condoned.
[43] In relation to the first issue, in Associated Institutions Pension Funds and
Others v Van Zyl and Others,20 the court said
‘The reasonableness or unreasonableness of a delay is entirely dependent on
the facts and circumstances of any particular case…. The investigation into
the reasonableness of the delay has nothing to do with the Court's discretion.
It is an investigation into the facts of the matter in order to determine whether,
in all the circumstances of that case, the delay was reasonable. Though this
question does imply a value judgment it is not to be equated with the judicial
discretion involved in the next question, if it arises, namely, whether a delay
which has been found to be unreasonable, should be condoned…’
21
Reason for the delay
[44] Turning to the present matter, this Court consider s the following undisputed
facts, which prove sufficient to decide the matter:
44.1 The Applicant filed the review application outside the statutory six-week
period required to file the review application;
44.2 There is presently no condonation pending before this Honourable
Court explaining the extent and the period of the delay in filing the review
application;
44.3 Since the filing of the review application, the applicant has not taken
any further steps in the furtherance and prosecution of the review application
to date, which period is now close to 12 months from the date that the
arbitration award was received on 18 March 2024.
44.4 The period between which the suspensions took place, being 22
November 2021 to the date of hearing of the present matter , being 8 July
2025, is indeed extremely excessive.
20 2005 (2) SA 302 (SCA).
21 Ibid at para 48. Quoted with approval in Autopax Passenger Services (Pty) Ltd v Transnet
Bargaining Council & others [2007] 1 BLLR 39 (LC) at para 12.
13
44.5 The review application is deemed to have been withdrawn in terms of
Rule 37(15) of the Labour Court Rules.
44.6 There is no application to reinstate the lapsed review application before
the Court.
44.7 There is no opposition to the current dismissal application.
Length of delay
[45] Cumulatively, t he length of delay is excessive in this matter and has been
dealt with in detail above. There is virtually no explanation for the said delay.
Prospects of success
[46] The Applicant’s prospects of success can be well gleaned from the founding
affidavit in support of the dismissal application. It does appear that the merits of the
matter have been litigated upon, leading to a refusal of leave to appeal and also a
petition to the Labour Appeal Court being refused.
[47] The law does not require that prospects of success be excellent but
reasonable.
[48] It is trite that a satisfactory explanation of the delay may compensate for the
prospects of success, but the lack of an explanation in the current matter compounds
the issue.
Prejudice
[49] It is trite that the Respondents stand to suffer prejudice should the current
application is not granted. The suspensions of the Respondents cannot continue
endlessly.
[50] Therefore, without any opposition to the current application, this Court is
inclined to accept that the application to dismiss the review application is justified
and reasonable in the prevailing circumstances.
14
The draft order
[51] As earlier indicated, the Respondent s have presented a draft order, which
slightly varied the relief sought in the notice of motion for the dismissal application, in
that it prayed for :
51.1 The review application under case number D 242/2024 be dismissed.
51.2 The award dated 18 March 2024, as varied by the variation ruling dated
8 April 2024, be made an order of Court.
51.3 The Applicant is directed to pay costs hereof on an attorney and client
scale, with such costs to include the costs associated with the review
application.
[52] Mr Ratshili had confirmed receipt of the draft order, submitted that:
52.1 Prayer 1 (as indicated at 51.1 above) is left to the court to decide upon.
52.2 The Applicant (in the main review application) has no issue with prayer
2 (as indicated at 51.2 above) being granted.
52.3 Prayer 3 should be granted on ordinary Scale A, as there was no
justification for a punitive cost order, because the Respondent s could have
used less expensive means to certify the arbitration award and carry it into
execution.
Conclusion
[53] In circumstances such as in this case, where the applicant was notified of the
current application to dismiss the review application and no intention to oppose the
current application was ever filed, but a mere attempt to commence and end
settlement negotiations at the door of the court.
[54] Furthermore, no steps were taken either to prosecute the review application
or to reinstate the review after it was deemed to have been withdrawn. Worse, in
circumstances where the applicant was aware of the current Rule 41(1)(a)
application to dismiss the review application but took no steps in either opposing this
application or taking any steps that indicate any intention that there was still an
15
interest in pursuing the review application. Therefore, for all i ntents and purposes, it
cannot be concluded that any such conduct on the part of the applicant contributes in
any meaningful way towards the expeditious resolution of the dispute. It is the
considered view of this Court that such conduct is the antithesis of the very
objectives of the LRA. It constitutes an abuse of the Court’s process and cannot , for
whatever reason, be countenanced.
[55] Inasmuch as the applicant is entitled to have its case finally determined by
this Court, this Court cannot come to the applicant’s assistance if it has practically
done nothing to pursue the matter. The fact that the review application was deemed
withdrawn does not imply that the Respondents are precluded from taking steps to
bring it to finality. The Respondents are entitled to continue with their affairs, without
having to wonder when the applicant will ever take any steps in prosecuting the
review application and bring the matter to finality. The applicant’s review application
has been plagued by delays from the moment it was launched. N o efforts
whatsoever have been made to prosecute it to finality. In these circums tances, the
interests of expeditious resolution of disputes in line with the primary objectives of
the LRA dictate that the Rule 41 application be granted.
Costs
[56] This Court has considered the requirements of law and fairness, and it is of
the view that a costs order, given the circumstances of this case and the conclusions
reached above, dictates that costs on Scale A are justified, since all parties have
been out of pocket due to the current litigation. This Court is mindful of the fact that
any delay in the resolution of a labour dispute undermines the very objectives of the
LRA, and may furthermore be detrimental to the parties, which may not have a
source of income pending the resolution of the matter. However, one must also
source of income pending the resolution of the matter. However, one must also
balance that the Respondents cannot sit and wait for years , and take no further
steps to bring the matter to finality. Mr Ratshili’s argument to the effect that there
were other recourses available to the Respondent s, which they could have utilised,
once they were aware that the Applicant was not taking any steps to bring the review
application to finality, but waited for a protracted period of time, rings true. This court
is equally alive to the fact that:
16
56.1 The applicant’s review application has been plagued by delays from
the moment it was launched.
56.2 No efforts whatsoever have been made to prosecute it to finality. T he
LRA dictates that the Rule 11 application be granted.
56.3 It is the considered view of this Court that such conduct of the
Applicant is the antithesis of the very objectives of the LRA.
56.4 It constitutes an abuse of the Court’s process and cannot , for whatever
reason, be countenanced.
[57] In the result, this Court orders that:
Order
1. The application to review and set aside the arbitration award issued by
the second respondent under case number D242/2024 is dismissed on the
grounds of lack of timeous prosecution.
2. That the award 18 March 2024, as varied by the Variation Ruling dated
8 April 2024, is hereby made an order of court in terms of Section 158(1)( c) of
the Labour Relations Act 66 of 1995.
3. The Applicant (in the main review application) is directed to pay costs
of this dismissal application on Scale A, such costs associated with the review
application under case number: D 242/2024.
MX MPAHLWA
M Mpahlwa
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Mr Ratshili
Instructed by: Mpoyana Ledwaba Inc
For the Third and Fourth Respondent: Mr Seery
Instructed by: Jay Reddy Attorneys