THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Reportable/Of interest to other Judges
Case no: C126/2023

In the matter between:

OFFICE OF THE PREMIER, FREE STATE PROVINCE Applicant

And

LEBOGANG GODFREY LESIU First Respondent

SEKONYELA MOEKETSI MOEKETSI N.O. Second Respondent

GENERAL PUBLIC SERVICE SECTOR BARGAINING
COUNCIL Third Respondent

Heard: 27 June 2025
Delivered: 5 August 2025

Summary: (Reinstatement application – discretionary power that has to be
exercised with circumspection and only in exceptional circumstances because of
a litigant’s constitutional rights in terms of Section 34 of the Constitution - a
Court cannot consider a delay in a vacuum but in light of all of the relevant facts
including the prejudice to the parties, the possible consequences of granting, or
of not granting the relief sought in respect of the merits, the prospects of
success and the interests of justice, the test for determining whether
condonation should be granted or refused is the interests of justice - the duty to

2


reconstruct a record is a duty that is placed on the arbitrator and both parties to
the proceedings especially where both parties are legally represented –
application for reinstatement granted)


JUDGMENT


MAY, AJ

Introduction

[1] The Court is confronted with a reinstatement application which has given
rise to an application to set aside the filing of a confirmatory affidavit to the
opposing affidavit filed therein as an irregular step which, in turn, has given rise
to an application for condonation for the late filing of an opposing affidavit to the
application to set aside the irregular step taken and finally an application for
condonation for the late filing of the Applicant’s Heads of argument.

[2] All applications, save for the condonation application relative to the
Applicant’s Heads of argument , are opposed. A proper case was made out for
condonation, as set out in the Founding Affidavit of Mr Chauke for the State
Attorney, duly supported by submissions contained in the Applicant’s Heads
supplemented by the oral submissions by Ms Williams SC who appeared for the
Applicant with Mr AIB Lechwano . Mr Du Preez, who appeared for the First
Respondent, confirmed that the First Respondent did not oppose the request
and consequently the Court granted condonation for the late filing of the
Applicant’s Heads of argument.

[3] What remains therefore is the condonation for the late filing of the
opposing affidavit to the irregular step application, the irregular step application
and the reinstatement application itself.

Irregular Step

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[4] The reinstatement application was delivered to the parties on 16
September 2024. 1 The First Respondent’s answering affidavit, deposed to by
the First Respondent, was delivered on 7 October 2024. 2 A replying affidavit
thereto was delivered on 23 October 2024. 3 Subsequent to the replying affidavit,
and on 15 January 2025, the First Respondent filed what appears to be a
confirmatory affidavit deposed to by Mr André Botha, his attorney. 4 On 29
January 2025, the Applicant delivered a notice in terms of Rule 57 alerting the
First Respondent to the irregular step and calling upon him to withdraw same
within ten days.5 Having failed to do so, the Applicant delivered its application to
set aside the irregular step on 5 March 2025.6

[5] The first respondent’s answering affidavit was due by 19 March 2025 but
was only delivered on 31 March 2025. 7 The applicant delivered a notice of
objection thereto on 8 April 2025 8 and on 15 April 2025 the first respondent
sought condonation for the late filing of his answering affidavit in the irregular
step application.
9 The Applicant opposes same and filed answering papers on 5
May 202510 to which the first responded replied on 12 May 2025.11

[6] The Court must first consider therefore whether a proper case has been
made out by the first respondent to condone the late filing of the answering
affidavit in the irregular step application, then the irregular step application and
then the reinstatement application.

Principles relevant to Condonation


1 Reinstatement record: pages 58a to c.
2 Reinstatement record: page 60
3 Reinstatement record: page 154
4 Reinstatement record: pages 195 to 199
5 Reinstatement record: notices: pages 6 to 9
6 Irregular step record: pages 1 to 16
7 Condonation record: pages 17 to 37
8 Irregular step record: notices: pages 10 to 14
9 Condonation record: pages 1 to 41
10 Condonation record: pages 45 to 68
11 Condonation record: pages 69 to 95

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[7] This Court must consider the well-known principles laid down in Melane v
Santam Insurance Co Ltd 12 and Grootboom v National Prosecuting Authority &
Another13.

[8] In Grootboom the Constitutional Court stated the following in paras [50]
and [51]:

‘[50] In this Court the test for determining whether condonation should
be granted or refused is the interests of justice. If it is in the interests of
justice condonation be granted, it will be granted. If it is not in the
interests of justice to do so, it will not be granted. The factors that are
taken into account in that enquiry include:
(a) the length of the delay;
(b) the explanation for, or cause for, the delay;
c) the prospects of success for the party seeking condonation; (d)
the importance of the issue(s) that the matter raises;
(e) the prejudice to the other party or parties; and
(f) the effect of the delay on the administration of justice.
…
[51] The interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably be left out of
consideration in certain circumstances. For example, where the delay is
unacceptably excessive and there is no explanation for the delay, there
may be no need to consider the prospects of success. If the period of
delay is short and there is an unsatisfactory explanation but there are
reasonable prospects of success, condonation should be granted.
However, despite the presence of reasonable prospects of success,
condonation may be refused where the delay is excessive, the
explanation is non-existent and granting condonation would prejudice the
other party. As a general proposition the various factors are not
individually decisive, but should all be taken into account to arrive at a
conclusion as to what is in the interests of justice.’

12 1962 (4) SA 531 (A).
13 2014 (2) SA 68 (CC).

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[9] Even in circumstances where a delay has not been adequately explained,
such a delay cannot be evaluated in a vacuum but must be evaluated taking into
account the potential prejudice to the parties, the possible consequences of
granting the relief sought or not granting it or not dealing with the matter on its
merits. The nature of the application and the strength of the merits may also
either favour or not favour overlooking a delay.
14

[10] The first respondent contends his attorney had confused the rules of the
High Court with the Rules of this Court resulting in him being under the
impression that the affidavit was due within 15 days instead of 10 days as is
required under Rule 35 (7).
15 The Uniform Rules provide for a respondent to
indicate that it intends opposing the application within the time stated in the
application for it to do so, which must be a day not less than 10 days from date
of receipt of the application
16, and thereafter filing an opposing affidavit within 15
days of delivering the notice to oppose.17

[11] The reason offered seems contrived given that the nexus of the
application is the reinstatement application which was necessitated by
correspondence addressed by the first respondent to the Applicant in which he
quotes, with some authority, excerpts from the Act, Sections 145 (7) and (8) in
particular, the Rules and the Practice Manual in support of his contention that
the review is either deemed withdrawn in terms of clause 11.2.3 of the practice
manual or the application is deemed to be archived in terms of clause 16 of the
practice manual.
18 The Applicant in its answering affidavit contends that it is
unlikely that an attorney with Botha’s experience and knowledge would have
made such a mistake particularly given that the filing period post amendment of
the rules remain the same.
19 I am inclined to agree that it seems highly unlikely
that Mr Botha would have studied the Rules and the practice manual to such an

that Mr Botha would have studied the Rules and the practice manual to such an

14 City of Johannesburg Metropolitan Municipality and Others v Independent Municipal and
Allied Trade Union and Others (2017) 38 ILJ 2695 (LAC) at paragraphs 55, 56 and 76.
15 Condonation application record: page 11 para 8.7
16 Rule 6 (5)(b)(iii) and Rule 6 (5)(d)(i)
17 Rule 6 (5)(d)(ii)
18 Reinstatement record: Annexure FA4 pages 48 to 50
19 Condonation record: AA pages 51 to 52

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extent to quote the relevant periods applicable to the matter being deemed
withdrawn or archived but not be aware of the time period within which the
answering affidavit is due, particularly given the litigation history between the
parties as is apparent from the Court file. This seems improbable.

[12] I agree therefore that there is no reasonable explanation offered for the
late filing of the answering affidavit. I n considering whether there are prospects
of success, I must consider whether the original complaint complained of
constitutes an irregular step.

[13] The first respondent disputes that the filing of the confirmatory affidavit
constitutes an irregular step and contends that it does not constitute a further
affidavit and/or causes any prejudice.
20 This view, with respect, is contrived. The
issue is not just whether it constitutes a further affidavit per se but also that it
was filed late and out of sequence without an explanation as to why it is filed late
and out of sequence. Despite the first respondent’s assertion that it would apply
for condonation for the late filing thereof, he has to date not done so.

[14] In FirstRand Bank Limited v Felico General Merchandise CC and Another
21 the Court, faced with a similar dilemma, held that t he late filing of the
confirmatory affidavit seven months after delivery of the application for
rescission constitutes an abuse of process
22 and that in failing to apply for
condonation for the late filing thereof, it constituted an irregular step and thus
liable to be set aside.23

[15] It follows therefore that the late filing of the confirmatory affidavit indeed
constitutes an irregular step and is liable to be set aside. In the circumstances ,
the first respondent does not have prospects of success in opposing the
irregular step application.


20 Irregular Step record: AA pages 35 to 36
21 (2022/21790) [2024] ZAGPJHC 1083 (22 October 2024)
22 At para 18
23 Paras 20 and 21 thereof

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[16] To borrow from the first respondent ’s heads of argument , without a
reasonable and acceptable explanation for the delay, the prospects of success
are immaterial and without good prospects of success, no matter how good the
explanation for the delay, an application for condonation should be refused.
24

[17] It follows therefore that t he first respondent’s application for condonation
must be dismissed and the relief sought by the applicant , that the late filing of
the confirmatory affidavit to the answering affidavit in the reinstatement
application constitutes an irregular step on the part of the first respondent, will be
granted and consequently set aside. I will deal with the costs of these
applications at the end of this judgment.

Reinstatement application

[18] The consequence of the rulings made above, is that the Court must
consider the reinstatement application as if the confirmatory affidavit had never
been filed.

[19] It is by now trite that an application for reinstatement is effectively an
application for condonation.
25

[20] The review application was launched on the 5
th of April 202326. The third
respondent only filed the bundle of documents used at arbitration and failed to
file the complete record. Pursuant to the documents received, notices in terms of
Rule 7A (5) were also sent out by the Registrar on 11 August 2023.

[21] On 29 August 2023, the third respondent enquired from the arbitrator
when the recordings and bundles would be submitted to which the arbitrator
replied on 30 August 2023 that the audio recordings of the proceedings were lost
as his recording device crashed in February 2023.
27 He called upon the parties

24 Page 13 of the first respondent’s Heads of argument quoting from Colett v CCMA [2014] 6
BLLR 423 (LAC) at para 38.
25 Samuels v Old Mutual Bank [2017] 38 ILJ 1790 (LAC)
26 Review application record: page 1 to 6
27 Reinstatement record: pages 26 to 27

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to assist the Council by providing the Council with the record for the transcribing
of same.28

[22] The Applicant’s attorney, Mr Chauke, addressed a letter to the first
respondent’s attorney, Mr Botha, requesting that they provide him with copies of
their recordings taken during the proceedings which they in turn will merge with
their own recordings and submit at Court alternatively that a meeting be
arranged between the two legal teams to discuss the issue of a transcribed
record with a view of agreeing on the reconstruction thereof.
29

[23] Mr Chauke contends that he had subsequent chance meetings with Mr
Botha at the High Court on several occasions reminding him of his request for
the recordings of the proceedings and that he undertook to provide same. Also,
importantly, that he never at any stage indicated that he would not provide the
recordings to Mr Chauke. On each occasion, Mr Chauke was left with the
impression that Mr Botha was cooperating and would provide the recordings.
30

[24] Mr Chauke then lost track of the matter, ostensibly, on the face of it,
waiting for Mr Botha to send the promised recordings, and focused on his other,
over 500 active matters. Mr Chauke is also the Acting Deputy State Attorneys
and as such is required to undertake the duties of the State Attorney whenever
she is not at the office or available to attend to them. He also provides oversight
to 5 attorneys in the Road Accident Fund Claims division and is the Deputy
Chairperson of the Briefing Committee whose meetings are held every second
workday for the purpose of appointing Counsel to matters.
31

[25] He received the letter from the first respondent on 2 September 2024 in
which he advises that the matter is deemed withdrawn. He replied to the letter
and reminded Mr Botha that the cooperation of both parties was required for the

28 Reinstatement record: page 27
29 Reinstatement record: pages 27 to 28 thereof
30 Reinstatement record: pages 28 to 29 thereof

30 Reinstatement record: pages 28 to 29 thereof
31 Reinstatement record: page 30

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purposes of having the record reconstructed and that he makes no mention of
the several requests to provide their audio recordings.32

[26] The Applicant launched an application for reinstatement of the review on
16 September 2024
33.

[27] Due to the deficiencies in the rules, the Practice Manuel was introduced
which was held to be binding.
34 Clause 11.2.2 requires that 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. Clause 11.2.3 provides that if the applicant fails to
file a record within this period, the application will be deemed withdrawn unless
an extension of time and consent has been sought from the respondent and is
given.

[28] The amended Rules came into force on 17 July 2024. They replaced the
old rules and the practice manual. In terms of Rule 37 (13) the 60- day period
contemplated in subrule (14) will commence running only once a complete
record has been delivered.

[29] In this matter it is common cause that the complete record has not yet
been delivered. The Court’s view is therefore that the provisions of clause 11.2.2
have not been triggered as yet. The Applicant has therefore not failed to comply
with the clause 11.2.2. The application is therefore not deemed withdrawn.

[30] Clause 11.2.7 requires an applicant to ensure that all necessary papers in
the application are filed within 12 months of the date of the launch of the
application 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.


32 Reinstatement record: page 31
33 Reinstatement record: page 4
34 Samuels v Old Mutual Bank supra.

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[31] The review application was launched on 5 April 2023 and the period
contemplated in clause 11.2.7 therefore arose on 5 April 2024, prior to the
promulgation of the new rules.

[32] The other relief sought by the Applicant is condonation for the failure to
have applied for a date in the matter to be heard within 6 months of delivery of
the review application in terms of Section 145 (5) of the LRA. Section 145 (5)
however states that it is subject to the Rules. Rule 37 (13) provides that the 60-
day period will commence running only once a complete record has been
delivered. The 6 -month period contemplated in Section 145 (5) must
consequently also be extended accordingly.

[33] In terms of Clause 11.2.7, the application is deemed archived and
regarded as lapsed unless good cause is shown why the application should not
be regarded as archived or be removed from the archive. The file has not been
archived, and the consideration therefore must be whether the Applicant has
shown good cause why the application should not be archived.

Considerations for reinstatement

[34] The dismissal of a review application is a discretionary power that has to
be exercised with circumspection and only in exceptional circumstances
because of a litigant’s constitutional rights in terms of Section 34 of the
Constitution to have any dispute that can be resolved by application of law
decided in a fair public hearing before a Court. In the exercise of that discretion
therefore, a Court cannot consider a delay in a vacuum but in light of all of the
relevant facts including the prejudice to the parties, the possible consequences
of granting, or of not granting the relief sought in respect of the merits, the
prospects of success and ultimately the interests of justice.
35


35 SAMWU obo Shongwe and Others v Moloi N.O. and Others [2021) 5 BLLR 464 (LAC) at
paragraph 26.

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[35] In other words, in addition to the well -known principles laid down in
Melane and Grootboom, and whilst not necessarily being a closed list, the
factors a Court must consider are:

35.1 the length of the delay;
35.2 the explanation for, or cause for, the delay;
35.3 the prospects of success for the party seeking condonation;
35.4 the importance of the issue(s) that the matter raises;
35.5 the prejudice to the other party or parties in granting or not granting
the relief requested and not considering the merits of the dispute;
35.6 the effect of the delay on the administration of justice;
35.7 the litigant’s rights in terms of Section 34 of the Constitution to
have any dispute that can be resolved by the application of law decided in
a fair public hearing before a Court; and ultimately.
35.8 the interests of justice.

[36] An application for condonation must give a full explanation for the delay
covering the entire period of the delay and the explanation must be
reasonable.
36 A condonation application must be filed without delay and as soon
as an applicant becomes aware of the need to do so and t he absence of a
reason for such failure is fatal to the condonation application.37

Period of delay and explanation

[37] The Applicant ’s reasons are highlighted in paragraphs 21 to 25 herein.
They are disputed by the first respondent. The first respondent concedes one
chance meeting with Mr Chauke and denies the others. The difficulty is that,
without the confirmatory affidavit from Mr Botha, the contentions by Mr Lesiu

36 Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008 (4) BCLR 442 (CC) at
paragraph 22.
37 See Allround Tooling (Pty) Ltd v NUMSA and others [1998] ZALAC 8; [1998] 8 BLLR 847
(LAC) at para [8] and Aspen Holdings (Pty) Ltd and Another v Phelane and Another (JA71/23)
[2025] ZALAC 4 (23 January 2025)

12


constitutes inadmissible hearsay 38. The version of the Applicant must therefore
be accepted.

[38] The first respondent raised the issue with the Applicant on 2 September
2024 and the application for reinstatement was delivered on 16 September
2024, some 2 weeks later, after some engagement between the parties. I am
satisfied that the application was brought as soon as reasonably possible and
without further delay. There is thus only one period of delay to be considered.

[39] The delay, in my view, is solely attributable to the failure by the second
and third respondents to provide the full record.

[40] In Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre
v CCMA and Others
39 the manner in which a reconstruction ought to be done
was properly explained by the court as follows:

‘A reconstruction of a record (or part thereof) is usually undertaken in the
following way. The tribunal (in this case the commissioner) and the
representatives (in this case Ms Reddy for the employee and Mr
Mbelengwa for the employer) come together, bringing their extant notes
and such other documentation as may be relevant. They then endeavour
to the best of their ability and recollection to reconstruct as full and
accurate a record of the proceedings as the circumstances allow. This is
then placed before the relevant court with such reservations as the
participants may wish to note. Whether the product of their endeavours is
adequate for the purpose of the appeal or review is for the court hearing
same to decide, after listening to argument in the event of dispute as to
accuracy or completeness.’
40

[41] Although the Bargaining Council is responsible for the overall
preservation of the proceedings, it is the arbitrator who is in charge of the

38 PRASA v CCMA and Others (JR137/2015) [2018] ZALCJHB 160 (26 April 2018) at para 14
39 (2003) 24 ILJ 931 (LAC).
40 At para 17.

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proceedings and the recording. He/she is very important in the reconstruction
process. It is therefore of utmost importance that the arbitrator should be made
aware of the problem and for him to make suggestions as to how the situation
can be remedied, if it can.
41

[42] I am of the view that the duty to reconstruct a record is a duty that is
placed on the arbitrator and both parties to the proceedings especially where
both parties are legally represented. The duty extends to the legal practitioner as
an officer of court and in his/her duty to ensure that the Court has all of the
relevant material before it to dispense justice speedily and fairly. It does not
behove a practitioner to take an armchair approach in the hope of benefiting
from the deeming provisions in the LRA and the rules. Such conduct should be
discouraged and deprecated.

[43] Mr Botha’s had as much of a duty as Mr Chauke to provide his and his
Counsel’s notes and any recordings he has available to the arbitrator to
reconstruct the record. This Court accepts that he undertook to make those
available and that Mr Chauke acted reasonably when he awaited same.

[44] It behoved Mr Botha, at the very least, to reply in writing to Mr Chauke
and advise him that no such recordings existed, could be found or would be
provided. After all, there is an ethical obligation on all legal practitioners not to
deliberately seek to catch an opposing legal practitioner off-guard
42.

[45] The first respondent criticises the Applicant’s reliance on the fact that the
office of the State Attorney is notoriously understaffed and overworked. The first
respondent also references this Court’s justified criticism of the State relying on
the State Attorney’s mishandling of cases brought by or on behalf of state parties
and then expecting the Court to be more tolerant.
[46] The Constitutional Court’s words in Grootboom43 are apposite:

41 Francis Baard District Municipality v Rex N.O. and Others (JR1000/2011, JA29/2015) [2016]

41 Francis Baard District Municipality v Rex N.O. and Others (JR1000/2011, JA29/2015) [2016]
ZALAC 33; [2016] 10 BLLR 1009 (LAC); (2016) 37 ILJ 2560 (LAC) at para 19.
42 Clause 61.12 of the CODE OF CONDUCT FOR ALL LEGAL PRACTITIONERS, CANDIDATE
LEGAL PRACTITIONERS AND JURISTIC ENTITIES
43 At paragraph 30.

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“The respondents are not ordinary litigants. They constitute an essential
part of government. In fact, together with the office of the State Attorney,
the respondents sit at the heart of the administration of justice. As organs
of state, the Constitution obliges them to “assist and protect the courts to
ensure the independence, impartiality, dignity, accessibility and
effectiveness of the courts. The primary duty of the office of the State
Attorney is to serve the interests of the government by initiating
proceedings on behalf of or defending any proceedings against the
state.”
44 (my emphasis)

[47] There is nothing in this file that indicates that the approach adopted by Mr
Chauke was lackadaisical or that the understaffing of the State caused Mr
Chauke to miss any deadlines herein. in fact, apart from the fact that the record
has not been filed, all other time periods have been met.

[48] I am of the view that the reasons preferred for the delay, being in essence
that the record is lost and that Mr Chauke was awaiting the recordings from Mr
Botha is reasonable and satisfactory as an explanation for the delay in the
peculiar circumstances of the matter.

[49] I am of the view that the Applicant has taken reasonable steps to
prosecute the matter and provided a reasonable and thorough explanation for
the delay, which covers the entire period of the delay. It is evident that the
Applicant had every intention to prosecute the review application.

[50] Zondo J (as he then was) writing for the minority in Grootboom reminds
us that the test for determining whether condonation should be granted or
refused is the interests of justice. If it is in the interests of justice that
condonation be granted, it will be granted. If it is not in the interests of justice to
do so, it will not be granted.
45


44 Grootboom at paragraph 31 quoting from Section 3(1) of the State Attorney Act 56 of 1957.
45 At paragraph 50

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[51] He finds further: “In NEHAWU v UCT 46 this Court noted that the Judges
of the Labour Court and Labour Appeal Court, in that and other matters, were
divided on the correct interpretation of section 197 of the Labour Relations
Act (LRA). This Court regarded this as a prima facie indication that NEHAWU
had reasonable prospects of success for purposes of determining whether it was
in the interests of justice to grant it leave to appeal. 47 In other words the fact that
a certain number of Judges from those courts had taken the same view as
NEHAWU on the interpretation of section 197 of the LRA was regarded as prima
facie indicative of the existence of reasonable prospects of success for
NEHAWU. An even stronger view was expressed along these lines by Jafta
J
48 in Aviation Union 49 when he said: “The divergent views expressed by the
Supreme Court of Appeal in the two judgments and the views expressed in the
judgments of the Labour Appeal Court show prospects of success.” 50 The same
approach applies to condonation applications because this Court has said that
condonation applications must be decided on the same basis as applications for
leave to appeal.
51

[52] The Court will accept that the matter is important to both parties and
takes into account the effects the delay has had and continues to have on the
administration of justice. This Court also accepts that both parties stand to be
prejudiced with a finding either way. This Court will weigh those carefully.

Prospects of success

[53] The dispute concerned a dismissal for misconduct of a public servant who
is alleged to have, whilst heading the bursary unit as a Deputy Director, he took
more for himself than he was entitled to receive as a part -time bursary holder
and therefore abused his position as the head of the Unit for personal gain. He is

46 National Education Health and Allied Workers Union v University of Cape Town and
Others [2002] ZACC 27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC) (NEHAWU v UCT).

Others [2002] ZACC 27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC) (NEHAWU v UCT).
47 At para 26
48 Moseneke DCJ, Mogoeng J, Mthiyane AJ and Nkabinde J concurred.
49 Aviation Union of South Africa and Another v South African Airways (Pty) Ltd and
Others [2011] ZACC 39; 2012 (1) SA 321 (CC); 2012 (2) BCLR 117 (CC) (Aviation Union).
50 At para 42.
51 See Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3; 2000 (2) SA
837 (CC); 2000 (5) BCLR 465 (CC) at para 3

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alleged to have on 3 separate occasions claimed and received monies he was
not properly authorised or e titled to receive in contravention of the Bursary
Policy and the PFMA. He is also alleged to have used R7000.00 of the funds
earmarked for registration, tuition and books and created a meal pocket for
himself when he was not entitled to a meal allowance as a part - time bursary
holder.

[54] The misconduct constituted 4 counts of theft alternatively gross
dishonesty, that ultimately led to his dismissal. The Second Respondent thought
differently and held that his dismissal was substantively unfair . He determined
that the evidence led by the Applicant did not establish that the first respondent
had committed the offences for which he was charged.

[55] There is no benefit of a transcript and thus at this stage no means of
assessing whether the commissioner’s view is reasonable. I am reminded by the
Applicant, however, that showing prospects of success doesn’t entail the
applicant showing on a balance of probabilities that it will succeed when the full
merits of the matter are considered but only that they have a good chance of
succeeding
52.

Grounds of review and assessment

[56] For a review on the grounds of unreasonableness to be determined, the
court has to consider the often- inter-related questions of rationality, lawfulness
and proportionality. T he court must consider the purpose, basis, reasoning or
effect of the decision against the review grounds such as failing to apply the
mind, taking into account irrelevant considerations, ignoring relevant
considerations, acting for an ulterior purpose, in bad faith, arbitrarily or
capriciously etc53. The court must also consider whether, apart from the flawed
reasons of or any irregularity by the arbitrator, the result could be reasonably

52 Production Institute of Southern Africa (Pty) Ltd v CCMA and others (JR1974/2009) (2011) 32
ILJ 1712 (LC) at para 8.

ILJ 1712 (LC) at para 8.
53 Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) at
paragraph 32.

17


reached in light of the issues and the evidence before the arbitrator .54 In other
words, whether the arbitrator misconceived the inquiry or undert ook the inquiry
in a misconceived manner and thus whether there was a fair trial of the issues.55

[57] Mere errors of fact or law may therefore not be enough to vitiate the
award. Something more is required. Therefore, f laws in the reasoning of the
arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material factors etc. must be assessed with the
purpose of establishing whether the arbitrator has undertaken the wrong
enquiry, undertaken the enquiry in the wrong manner or arrived at an
unreasonable result.56

[58] On the basis of the discussion above, the Applicant may be able to show
that the decision by the second respondent is irrational or unreasonable based
on his assessment of the evidence and with reference to the record, once it is
reconstructed. The application therefore has prospects of success.

[59] Considering prejudice, a substantial sum of money, of about R
1 860 986.64 has been paid to the sheriff as security as contemplated in Section
145 (8) of the LRA. The Court assumes that the sheriff has invested the funds
for the benefit of the parties as is required and therefore that the sum earns
interest. The funds paid effectively ameliorate any prejudice that the first
respondent could suffer weighed against the complete shutting of the doors of
justice to the Applicant should the application be refused. The balance of
prejudice therefore favours the grant of the application over its dismissal.

[60] Considering all of the relevant factors, the interest of justice dictate that
good cause has indeed been shown and that a proper case is made out for the
matter not to be archived.


54 Herholdt v Nedbank Ltd 2013 (6) SA 224 (SCA) at paragraph 12.
55 CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 (CC) at paragraph 76.

55 CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 (CC) at paragraph 76.
56 Herholdt supra at paragraphs 21–25.

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[61] In relation to costs, I agree with the submissions made by the Applicants
that given the indulgences sought by the Applicant weighed against the
recalcitrance of the First Respondent, the requirement of law and fairness
demand that the First Respondent not benefit from its own recalcitrance and
thus the most appropriate Order is that the costs of the irregular step,
condonation applications and the reinstatement application be costs in the
cause/review application.

[62] In view of the above, I make the following order.

Order
1. Condonation for the late filing of the Applicant’s Heads of argument
is granted.
2. Condonation for the late filing of the First Respondent’s Answering
Affidavit to the Irregular Step application is refused.
3. The service of a confirmatory affidavit by the First Respondent’s
attorney of record on 15 January 2025 and concomitant filing thereof in
the reinstatement application constitutes an irregular step on the part of
the first respondent and is hereby set aside.
4. Condonation is granted to the applicant for its failure to have
complied with the timeframes set forth in paragraph 11.2.7 of the Practice
Manual, which was repealed on 3 May 2024 when the new Rules of this
Court came into effect;
5. The applicant has shown good cause as to why the Registrar of
this Court should not archive the file as contemplated in paragraph 11.2.7
of the erstwhile Practice Manual, and the Applicant’s review application is
reinstated;
6. The third respondent is directed to schedule a reconstruction
hearing within 30 days of the granting of this order at which the applicant,
first and second respondents must attend and participate and reach
consensus on the reconstruction of the record and file a reconstructed
record, which record must be filed with this Court within a period of sixty
days of the date of the reconstruction hearing;

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7. The costs of the condonation applications, the irregular step
application and the reinstatement application will be costs in the
cause/review application.

C May
Acting Judge of the Labour Court of South Africa.

Appearances

For the Applicant R Williams SC with A.I.B Lechwano
instructed by Mr G Chauke from the
State Attorney, Bloemfontein
For the First Respondent T Du Preez instructed by Mr A Botha,
Peyper Attorneys, Bloemfontein