THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable
Case no: JA57/2024

In the matter between:

CITY OF TSHWANE METROPOLITAN MUNICIPALITY Appellant

and

SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL First Respondent

TIYANI MAKHUBELE Second Respondent

SAMWU obo Members Third Respondent

IMATU obo Members Fourth Respondent

Heard: 15 May 2025
Delivered: 12 August 2025
Coram: Van Niekerk JA, Nkutha-Nkontwana JA, and Tokota AJA
Summary: Rule 11 of the old Rules of the Labour Court – an application to
dismiss a lapsed review application – absent an order reinstating a lapsed review

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application, the Labour Court has no jurisdiction to entertain the merits – Still, the
Labour Court has the discretion to dismiss a lapsed review application due to the
inordinate delay.
Section 158(1)(c) of the Labour Relations Act – an application to make a certified
arbitration award an order of Labour Court – in terms of section 143(1), a certified
arbitration award is enforceable as if it is an order of the court – by granting the
order, the Labour Court’s discretion was not exercised judicially.


JUDGMENT


NKUTHA-NKONTWANA JA

Introduction

[1] This appeal is with the leave of this Court. At its heart is the much-ruminated
issue of whether the Labour Court has jurisdiction to entertain an application for the
dismissal of a deemed withdrawn or archived review application. C lauses 11.2.3,
11.2.7, 16.1 and 16.3 of the now-repealed Labour Court Practice Manual
1 provide:
‘11.2.3 If the applicant fails to file a record within the prescribed period 2,
the applicant will be deemed to have withdrawn the application, unless the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. If consent is refused, the
applicant may, on notice of motion supported by affidavit, apply to the Judge
President in chambers for an extension of time.
…

1 Practice Manual of the Labour Court of South Africa, effective, 1 April 2013. The Practice Manual has
been repealed by the new Rules of the Labour Court that came into effect on 17 July 2024.
2 Clause 11.2.2 provides: ‘For the purposes of Rule 7A(6), records must be filed within 60 days of the
date on which the applicant is advised by the registrar that the record has been received’.

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11.2.7 A review application is by its nature an urgent application. An applicant in
a review application is therefore required to ensure that all the necessary papers
in the application are filed within twelve (12) months of the date of the launch of
the application (excluding Heads of Argument) and the registrar is informed in
writing that the application is ready for allocation for hearing. Where 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 … be archived or be
removed from the archive.
…
16.1 In spite of any other provision in this manual, the Registrar will archive a
file in the following circumstances:
• In the case of an application in terms of Rule 7 or Rule 7A, when a period
of six months has elapsed without any steps taken by the applicant from the date
of filing the application, or the date of the last process filed…
…
16.3 Where a file has been placed in archives, it shall have the same
consequences as to further conduct by any respondent party as to the matter
having been dismissed.’ (Own emphasis added)

Factual background

[2] The facts in this case are largely common cause and can be briefly stated. The
third respondent (SAMWU) and the fourth respondent (IMATU) (jointly referred to as the
respondent unions) referred an unfair labour practice dispute on behalf of their
respective members to the first respondent . The second respondent (Arbitrator)
rendered an arbitration award dated 7 October 2021, ordering the appellant ( City of
Tshwane) to upgrade the respective members of the respondent unions.

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[3] On 17 January 2022, the City of Tshwane launched a review application in terms
of section 145 of the Labour Relations Act 3 (LRA), ch allenging the arbitration award.
Yet, it failed to take further steps to prosecute the review application diligently.

[4] On 5 August 2022, IMATU launched an application in terms of Rule 11 of the old
Labour Court Rules4 (the old Rules), seeking an order to dismiss the City of Tshwane's
review application and for the award to be made an order of court . IMATU’s Rule 11
application was premised on clauses 16.1 and 16.3 of the Practice Manual , as six
months had already lapsed since the filing of the review application, resulting in its
archival.

[5] On 26 August 2022, SAMWU likewise launched a Rule 11 application for a
similar order. However, its application was predicated on clauses 11.2.3 and 11.2.7 of
the Practice Manual, as the review application was deemed withdrawn; alternatively, it
lapsed, and the file was accordingly archived.

[6] The P ractice Manual refers to three instances where a review application is
deemed to have been ‘withdrawn’, ‘lapsed’ or ‘archived’ , which have the same
consequences. For purposes of this judgment , they are collectively referred to as
‘lapsed’.

At the Labour Court

3 Act 66 of 1995, as amended.
4 These Rules were repealed and replaced by the new Rules of the Labour Court, which came into effect
on 17 July 2024. The same Rule 11 provides:
‘(1) The following applications must be brought on notice, supported by affidavit:
(a) Interlocutory applications;
(b) Other applications incidental to, or pending, proceedings referred to in these rules that are not
specifically provided for in the rules; and
(c) Any other applications for directions that may be sought from the court.
(2) The requirements in subrule (1) that affidavits must be filed does not apply to applications that deal
only with procedural aspects.

only with procedural aspects.
(3) If a situation for which these rules do not provide arises in proceedings or contemplated
proceedings, the court may adopt any procedure that it deems appropriate in the circumstances.
(4) In the exercise of its powers and in the performance of its functions, or in any incidental matter, the
court may act in a manner that it considers expedient in the circumstances to achieve the objects of
the Act.’

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[7] The Rule 11 applications served before the Labour Court . The City of Tshwane
unsuccessfully sought condonation for the late filing of its answering affidavit in the
SAMWU application. Still, the City of Tshwane’s central thesis was that the Labour
Court had no jurisdiction to entertain a R ule 11 application to dismiss a lapsed review
application.

[8] The Labour Court held, on the strength of this Court's dictum in Macsteel Trading
Wadeville v Francois van der Merwe N.O and Others
5 (Macsteel), that it had residual
power to entertain the Rule 11 application since there was no substantive application by
the City of Tshwane to reinstate the lapsed review application. It dismissed the review
application and made the arbitration award an order of court in terms of section 158
(1)(c) of the LRA.6.

In this Court

[9] The City of Tshwane impugns the Labour Court's findings on two grounds,
having abandoned the first ground. In essence, it persists with its thesis that since the
review application had been deemed withdrawn, alternatively, lapsed, there was no live
case to be entertained . Accordingly, the Labour Court had no jurisdiction to entertain a
lapsed review application without an order reinstating it. Furthermore, it contends that
the Labour Court exercised its discretion improperly by granting an order in terms of
section 158(1)(c).

[10] The respondent unions contend that the Labour Court 's findings are
unassailable, as it judicially exercised its discretion in terms of R ule 11(4) and
accordingly dismissed a lethargically prosecuted review application to achieve finality.
That, they contend, is in line with one of the objects of the LRA, which is to resolve
labour disputes expeditiously.

5 (2019) 40 ILJ 798 (LAC) (Macsteel).
6 Section 158(1)(c) provides that ‘the Labour Court may … make any arbitration award or any settlement
agreement an order of the Court’.

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Issues

[11] Two main issues arise. First, whether the Labour Court has the power to
entertain a Rule 11 application to dismiss a lapsed review application. S econd, whether
the Labour Court exercised its discretion improperly by making the arbitration award an
order of court in terms of section 158(1)(c).

Lapsed review application

[12] The Practice Manual is binding in its effect whilst fostering flexibility in its
application, where appropriate, to promote its purpose.
7 The purpose of the Practice
Manual and, pertinently, clauses 11.2.3, 11.2.7 and 16.1, is to give effect to the primary
object of the LRA and the Rules , which is the expeditious resolution of disputes .8
Hence, the tardiness in the prosecution review application has serious consequences.

[13] In Macsteel,
9 this Court affirmed the Labour Court ’s residual discretion to apply
and interpret the provisions of the Practice Manual, contingent on the merits of each
case. Notwithstanding, it held that the Labour Court lack s jurisdiction to entertain the
merits of a lapsed review application in the absence of a substantive reinstatement
application and an order reinstating the review application. 10 The same principle was
later applied in E Tradex (Pty) Ltd t/a Global Trade Solution v Finch and Others 11 (E
Tradex), where this Court held:
‘The use of the term ‘archived’ is peculiar to the Labour Court Practice Manual. In
the general civil courts, for example, the failure to prosecute an appeal timeously
results in the appeal having lapsed. The effect of that is that the case shall not be
dealt with by a court unless an application to reinstate the appeal is made. It is, in
our view, plain that the archiving of a Labour Court case was intended to have

7 See: Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at para 15.
8 Id at para 14.
9 Macsteel above fn 5 at para 27.
10 Id.
11 (2022) 43 ILJ 2727 (LAC).

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the identical effect; indeed, clause 16.3 goes even further, to equate the
consequence of an archiving of a case to be understood to mean the application
is ‘dismissed’, albeit that a procedure exists to reinstate the case on good cause
shown.’12

[14] The deemed withdrawn review application in terms of clause 11.2.3 is likewise a
peculiar notion in the Practice Manual. While ‘deemed withdrawn’ is a legal fiction, it has
a conclusive effect .13 Consequently, the review application automatically lapses due to
the failure to file the record of the impugned arbitration proceedings, as per clause
11.2.2.14 That being the case, any notion that the Labour Court has discretionary power
to refuse ‘ to allow the deemed withdrawal and archiving of the review application’ as
found in NUMSA obo Mavuso v Mini Mega (PTY) Ltd t/a Rustenberg Engine Centre15, is
untenable.

The Rule 11 dismissal application

[15] That takes me to the central issue in this appeal , which is whether the Labour
Court has the power to entertain a Rule 11 application to dismiss a la psed review
application. The parties referred to various decisions of the Labour Court, which express
divergent views on the interpretation of the Macsteel dictum.

[16] The City of Tshwane contends that Macsteel does not support the proposition
that the Labour Court has jurisdiction to entertain a R ule 11 application to dismiss a
lapsed review application absent a substantive application for reinstatement and an
order reinstating it.
16 Overberg District Municipality v Independent Municipal & Allied

12 Id at para 10.
13 See: Ralo v Transnet Port Terminals and Others (2015) 36 ILJ 2653 (LC) at para 10.
14 Clause 11.2.2 provides: ‘For the purposes of Rule 7A( 6), records must be filed within 60 days of the
date on which the applicant is advised by the registrar that the record has been received’.
15 NUMSA obo Mavuso v Mini Mega ( Pty) Ltd t/a Rustenberg Engine Centre (JR 1288/13) [2022]

15 NUMSA obo Mavuso v Mini Mega ( Pty) Ltd t/a Rustenberg Engine Centre (JR 1288/13) [2022]
ZALCJHB 180 (4 July 2022) at paras 25 - 27.
16 Eskom Holdings (SOC) Ltd v Kgaile (JR1440/17) [2021] ZALCJHB (19 February 2021) at para 9; SG
Bulk (a division of Supergroup Africa (Pty) Ltd) v Khumalo and another [2021] JOL 50273 (LC) at para 7
and Macaskill v State Information Technology Agency (Pty) Ltd (SITA) and Others (JR 267/20) [2021]
ZALCJHB 220 (11 August 2021) at para 2.

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Trade Union on behalf of Spangenberg & O thers17 (Overberg) fortifies the appellant’s
contention. The Labour Court, per Lagrange J, stated that:
‘[34] That said, it is less clear what role, if any, rule 11 dismissal applications
have to play when a review has been rendered defunct by operation of a
deeming provision. It was clearly an important remedy prior to the advent of the
deeming provisions when a review was pending but was not being actively
pursued. Where a deeming provision has de- activated a review, the only way an
employer as a respondent party could be put at risk is if the applicant
successfully brings an application to reinstate the application. That is very
different from the situation prior to the Practice Manual’s introduction, when a
review which had been dormant for years could suddenly be enrolled for hearing.
[35] This is not to say there might conceivably still be situations where it might
be necessary for a frustrated respondent to have recourse to a dismissal
application, in which case the ordinary principles applicable to such applications
would apply. The LAC in MacSteel clearly envisaged that a Rule 11 application
might still be brought by a party prejudiced by the delay , but did not elaborate on
the circumstances when this would be appropriate. It is also arguable that,
because the ratio of the LAC’s decision was essentially on a very narrow basis,
that the court’s comments on a rule 11 application were obiter.’

[17] The respondent unions, on the other hand, contend that the possibility of reviving
a lapsed review application poses a threat to finality and undermines the statutory
requirement to resolve labour disputes in an expeditious manner . Therefore, on the
strength of the dictum in Macsteel, the Labour Court correctly exercised its powers in
terms of R ule 11(4) and dismissed the appellant’s lapsed review application, so it was
further contented.
18 In Aspen Pharmacare Ltd v Chemical Energy Paper Printing Wood

17 (2021) 42 ILJ 1283 (LC).

17 (2021) 42 ILJ 1283 (LC).
18 See NUMSA obo Mavuso v Mini Mega (PTY) Ltd t/a Rustenberg Engine Centre (JR 1288/13) [2022]
ZALCJHB 180 (4 July 2022) at paras 26; Mchunu v Rainbow Farms (Pty) Ltd: In re Rainbow Farms (Pty)
Ltd v Commission for Conciliation, Mediation & Arbitration & others (203/15) (2017) ZALCD 17 ( 12 June
2017); MJRM Transport Services CC v Commission for Conciliation, Mediation & Arbitration & others
(2017) 38 ILJ 414 (LC); and Mthembu v Commission for Conciliation, Mediation & Arbitration & others
(2020) 41 ILJ 1168 (LC).

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& Allied Workers Union on behalf of Tabata & another (Aspen),19 the Labour Court, per
Meyerowitz AJ, added its voice to the approach that supports the respondent union’s
contention, albeit in the context of a security bond filed in terms of s 145(7) and (8) to
stay the execution of the award pending the review application. It observed that:
[40] In Edcon (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
& others: In re Thulare & others v Edcon (Pty) Ltd, 20 Bank AJ held that an
archived review file enters a strange world of limbo ‘without ever being formally
dismissed and from which the file may never emerge unless a properly motivated
revival application … enters to rescue it from a shadowy netherworld’. This is the
interpretation advocated for by Aspen; the review is neither dead nor alive, and
crucially the security bond remains effective unless and until the review
application is finally dismissed.
[41] CEPPWAWU advocates for the other position; it says that once archived a
review application is dead, as dead as a doornail, and as soon as it is dead the
employee can execute the award notwithstanding the existence of a security
bond and an application to have the file removed from archives.’

[18] In Aspen, the court rejected the dictum in Overberg and the dicta it followed to
support its conclusion that a lapsed review application is ‘dead as a door nail’. It further
observed that, to t he extent to which this Court in MacSteel held that the correct
approach would have been for Macsteel to launch a R ule 11 application to have the
review application finally dismissed, even though the review application had already
been archived, that meant that the Court accepted that the review application was ‘in
limbo’, rather than ‘dead as a doornail’; otherwise there would be no need for a R ule 11
application.

[19] It is not surprising that a neat set of criteria does not emerge from an analysis of

[19] It is not surprising that a neat set of criteria does not emerge from an analysis of
pertinent cases, because the exercise of judicial discretion, particularly in the context of
rule or practice enforcement, is inherently nuanced and context -dependent. While

19 (2024) 45 ILJ 2024 (LC).
20 (2016) 37 ILJ 434 (LC).

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procedural discipline remains a core objective, judicial discretion serves as a safeguard
against injustice caused by technical non- compliance.21 Hence, it makes sense that the
provisions of the Practice Manual call for flexibility in their application where necessary
to promote their purpose.

[20] Turning to Macsteel, the Labour Court refused to address the issue of inordinate
delay without a R ule 11 application and proceeded to consider the merits of the lapsed
review application. This Court held:
‘[26] Thus, having failed to strike the matter from the roll, it was impermissible
for the Labour Court to decline to deal with the issue of the delay because
Macsteel did not bring a rule 11 application. The correct approach was for the
Labour Court to afford Macsteel an opportunity to bring a rule 11 application.
[27] The Labour Court did not adopt this approach. It instead declined to deal
with the issue of the undue delay and proceeded to determine the merits of the
review application, which had already lapsed for non- compliance with clause
11.2.7 of the Practice Manual. The Labour Court determined the “lapsed
application” in the absence of a substantive reinstatement application and an
order reinstating the review application. Put simply; the Labour Court determined
the review application when it had no jurisdiction to do so. This constitutes a
basis for interference on appeal…’ (Own emphasis)

[21] Clearly, Macsteel informs us that, absent an order of reinstatement, the lapsed
review application remains in limbo, and the Labour Court lacks jurisdiction to decide on
the merits. This notion is not peculiar to review applications in the Labour Court ; it is
generally applicable even in cases of lapsed appeals in this Court and other civil courts.

[22] In addition, clause 16.3 provides, in line with promoting the statutory imperative
for expeditious resolution of labour disputes, that a lapsed review application ‘shall have

for expeditious resolution of labour disputes, that a lapsed review application ‘shall have

21 See: Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development
and Others 2009 (4) SA 222 (CC) at paras 119 -121. The following observations in para 120 are pertinent:
‘The importance of judicial discretion cannot be gainsaid. Discretion permits judicial officers to take into
account the need for tailoring their decisions to the unique facts and circumstances of particular cases.
There are many circumstances where the mechanical application of a rule may result in an injustice. …’

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the same consequences as to further conduct by any respondent party as to the matter
having been dismissed’ .22 Even though a lapsed review application lies in limbo, a
respondent party can enforce the arbitration award or court order without invoking a
Rule 11 dismissal application, as found in Overberg. That is also my understanding of
the dictum in E Tradex.

[23] There is, however, nothing in Macsteel and E Tradex that impedes the Labour
Court from entertaining a Rule 11 application to dismiss a lapsed review application. A
lapsed review application is not dead as a doornail ; hence, it can be revived on good
cause, as correctly found in Aspen. Therefore, a respondent party that seeks, inter alia,
irrefutable finality for purposes of execution or due to inordinate delay can avail itself of
the Rule 11 application. To the extent that the Labour Court has jurisdiction to entertain
an applicant for the reinstatement of the lapsed review application, that power extends,
by implication, to the Rule 11 dismissal application. 23 However, caution must be
exercised to prevent the proliferation of litigation and to avoid negating the paramount
statutory mandate for a speedy and cost-effective resolution of labour disputes.

[24] In the present case, no reinstatement application served before the Labour
Court. Before us, counsel for the City of Tshwane confirmed that there was no intention
to seek reinstatement of the lapsed review application. The Labour Court cannot ,
therefore, be faulted for upholding the Rule 11 dismissal application. It was, in my view,
not only expedient but also fair in the circumstances.24

Discretion in terms of section 158(1)(c)

[25] The remaining issue is whether the Labour Court judicially exercised its
discretion in granting an order making the arbitration award an order of court in terms of
section 158(1)(c).

22 Clause 16.3 has been repealed by the new Rules.

section 158(1)(c).

22 Clause 16.3 has been repealed by the new Rules.
23 See Greater Taung Local Municipality v SA Local Government Bargaining Council and Others ( 2023)
44 ILJ 761 (LAC) (Greater Taung) at para 16.
24 See Groom v Daimler Fleet Management (Pty) Ltd (2021) 42 ILJ 2179 (LAC) at para 45.

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[26] It is a common cause fact that the impugned arbitration award is certified and
duly enforceable in terms of section 143(1) read with section 143(3) of the LRA at the
instance of SAMWU. 25 The appellant’s review application was instituted in response to
SAMWU's attempt to enforce the arbitration award through contempt of court
proceedings, which were subsequently deferred.

[27] In Commission for Conciliation, Mediation & Arbitration v MBS Transport CC &
others; Commission for Conciliation, Mediation & Arbitration v Bheka Management
Services (Pty) Ltd & others ,
26 this Court dealt with two cases that equally implicated
section 143 and pertinently stated:
‘[34] Section 143(1) tells us what the status of a certified award is. Subsections
(4) and (5) tell us how it should be enforced. …
[35] If the certified award to be enforced is for the performance of an act which
was not done, then contempt proceedings may be instituted in the Labour Court,
in terms of subsection (4). This may be done because in terms of subsection (1),
the certified award is assumed to be an order of the Labour Court in respect of
which a writ has been issued.
[36] The court a quo should have found that a certified arbitration award may
be enforced in the same way that it would be if it was an order of the Labour
Court in respect of which a writ was issued.’

[28] Here, likewise, the Labour Court should have found that the certified arbitration
award was enforceable as if it were an order of the Labour Court and refused to grant

25 Section 143 provides:
‘(1) An arbitration award issued by a commissioner is final and binding and it may be enforced as if it
were an order of the Labour Court in respect of which a writ has been issued, unless it is an
advisory arbitration award.
(2) …
(3) An arbitration award may only be enforced in terms of subsection (1) if the director has certified
that the arbitration award is an award contemplated in subsection (1).

that the arbitration award is an award contemplated in subsection (1).
(4) If a party fails to comply with an arbitration award certified in terms of subsection (3) that orders the
performance of an act, other than the payment of an amount of money, any other party to the
award may, without further order, enforce it by way of contempt proceedings instituted in the Labour
Court.’
26 (2016) 37 ILJ 2793 (LAC).

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an order in terms of s ection 158(1)(c). It follows that the Labour Court improperly
exercised its discretion in making the arbitration award an order of the Labour Court .27
That justifies interference by this Court.

Conclusion

[29] For all the reasons above, the appeal partly succeeds and only in relation to the
order in terms of s 158(1)(c).

Costs

[30] In my view, it is fair not to make a costs order in the appeal.

[31] I make the following order:

Order

1. The appeal is partly upheld.
2. The order of the Labour Court in terms of section 158(1)(c) is set aside
and substituted with the following:
‘The section 158(1)(c) application is dismissed.’
3. There is no order as to costs.

P Nkutha-Nkontwana JA
Van Niekerk JA and Tokota AJA concur.

APPEARANCES
For the appellant: Adv MJ van As
Instructed by: Lawtons Africa
For the 1st respondents: Ms G Phakedi

27 See Greater Taung above fn 23 at paras 12 -13.

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Instructed by: Phakedi Attorneys
For the 2nd respondents: Adv GL van der Westhuizen
Instructed by: Tim Du Toit Attorneys