IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Case No: PR 57/21
In the matter between:
BARLOWORLD TRANSPORT (PTY) LTD Applicant
and
LUVUYO ZIMEMA First Respondent
NATIONAL BARGAINING COUNCIL FOR
THE ROAD FREIGHT AND LOGISTICS INDUSTRY Second Respondent
M. REDCLIFF N.O. Third Respondent
HESTONY TRANSPORT (PTY) LTD Fourth Respondent
Heard: 28 August 2024
Delivered: 21 August 2025
JUDGMENT
KUMALO, AJ
2
Introduction
[1] The issue in these proceedings is the reinstatement of the review application
instituted by the applicant, Barloworld Transport (Pty) Ltd (Barloworld) , on
3 May 2021. In accordance with the proceedings before LaGrange J on
28 February 2024, the review application was deemed withdrawn in accordance with
paragraph 11.2.2. of the Practice Manual of the Labour Court . These proceedings
culminated in an order which removed the opposed review application from the roll
and set a deadline for the filing of an application for the reinstatement of the review.
[2] The applicant duly complied with the order requiring it to apply for the
reinstatement of the review . The fourth respondent, Hestony Transport (Pty) Ltd
(Hestony), opposed the application on the basis that a case has not been made out
for the reinstatement of the review application, and accordingly, the application ought
to be dismissed. The first respondent , Mr Luvuyo Zimem a, also t ook the same
stance. These proceedings only concern the consideration of the application to
reinstate the review.
Background
[3] On 17 November 2014, Zimema, commenced employment with Barloworld as
a general worker. On 12 September 2019, allegations of misconduct were preferred
against him. It was alleged that on 3 August 2019, Zimema had refused to subject
himself to a search and thus breached Barloworld’s policies on the subject. On
8 November 2019, a disciplinary inquiry was constituted to consider the allegations
of contravening the search policy and further the unauthorised removal of
Barloworld’s property. On 9 December 2019, a finding of guilt was made, and
Zimema was issued a sanction of dismissal.
[4] On 17 December 2019, Zimema referred a dismissal dispute to the second
respondent, the National Bargaining Council for the Road Freight and Logistics
Industry (bargaining council ). On 11 February 2020, the dispute remained
unresolved and was referred to arbitration. The Arbitrator issued an arbitration award
3
to the effect that the dismissal of Zimema was substantively unfair and ordered his
reinstatement together with back-pay.
[5] On 3 May 2021, the applicant sought to review that award in this Court. On
7 June 2021, the bargaining council filed the record of arbitration proceedings. On
24 August 2021, the applicant partially complied with rule 7A(6) of the Old Rules of
this Court. On 6 September 2021, the applicant filed a supplementary affidavit in
accordance with rule 7A(8) of the O ld Rules. The answering and replying affidavits
were filed on 17 and 22 September 2021, respectively.
[6] The review application was enrolled for 9 February 2024 but was removed
from the roll at the instance of the applicant. It was later re-enrolled and proceeded
before LaGrange J on 28 February 2024. During these proceedings , the record of
arbitration was deemed incomplete due to the absence of video footage that had
been presented as evidence before the Arbitrator. The matter was deemed
withdrawn in accordance with paragraph 11.2.3 read with 11.2.2 of the now-repealed
Practice Manual of this Court. The applicant was directed to file this application on or
before 8 March 2024. Notably, the applicant now seeks the reinstatement of the
review application despite the video footage, which is crucial to the review
application, still not filed or available to date.
The legal framework
[7] The Labour Appeal Court in Macsteel Trading Wadeville v Francois van der
Merwe N.O and Others,
1 held that:
“The Practice Manual came into effect during April 2013, midway through the
review application. It, therefore, applies to it. Clause 11.2.7 imposes an
obligation on the applicant to ensure that all the necessary papers in the
application are filed within 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 to be set down for hearing. Where this
1 Macsteel Trading Wadeville v Francois van der Merwe N.O and Others (2019) 40 ILJ 798 (LAC) at
para 23.
4
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. The record in the review
application had been filed approximately 20 months after the launch of the
review application. And the review application was set down for hearing
almost six years from its launch. This means that by the date of set down of
the review application, it had been archived and regarded as lapsed.”
[8] The now-repealed Practice Manual reemphasised that review applications are
urgent, and the applicant must proceed with the necessary haste in prosecuting the
application to finality. This is because the primary objective of the Labour Relations
Act
2 (LRA) is to promote the effective resolution of labour disputes. This requires
expeditious resolution of disputes , and every delay in the prosecution of a dispute
undermines the primary objectives of the LRA.3
Discussion
[9] An application to reinstate a review application is akin to a condonation
application, and this entails that good cause must be shown.
4 In Melane v Santam
Insurance Co. Ltd,5 it was held that the court has a discretion in determining whether
sufficient cause has been demonstrated, and that discretion must be exercised
judicially, taking into consideration all relevant factors , including the degree of
lateness, prospects of success and the importance of the case.
[10] The applicant accepts that it had to file the record of arbitration within 60 days
from the date of being advised by the Registrar of this Court of its availability. It
further accepts that the crucial CCTV foot age has not been filed owing to the loss of
access and control over the footage. The applicant referred to the video footage as
early as in the founding affidavit. The applicant was aware as early as 7 June 2021
that the record filed by the bargaining council excluded the CCTV footage on which it
2 Act 66 of 1995, as amended.
3 Macsteel Trading Wadeville supra at para 20.
4 Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at para 17.
51962 (4) SA 531 (A) at 532B – E.
5
relied. On 31 March 2023, the applicant filed a further supplementary affidavit but
failed to explain why the CCTV footage, which it places reliance on, was excluded
from the record of arbitration.
[11] In the founding affidavit for the application to reinstate the review, the
applicant averred that it filed the initial record on 24 August 2021. It further accepted
that the record was due on 7 September 2021 and that the video footage was not
filed. As correctly pointed out by Zimema, the applicant waited some two years and
seven months prior to taking any action regarding the missing portion of the record.
As mentioned, the applicant was aware as at the commencement of the review
proceedings that the video footage was crucial to its case and nevertheless took no
action to remedy the situation or to approach the Judge President for relief in terms
of paragraph 11.2.4 of the now -repealed Practice Manual. It is trite that an applicant
in an application for condonation must provide a full explanation for the delay and
explain each aspect of the delay.
6 In this case, arising from the above, the applicant
has failed to explain a significant portion of the delay and the explanation as a whole
amounts to no explanation at all.
[12] As correctly contended by the fourth respondent the applicant’s tardiness was
exacerbated by the fact that it had not at any stage sought to compel the bargaining
council in terms of rule 7A(4) of the Old Rules to fi le the video footage. Nor did it
approach the Judge President in terms of paragraph 11.2.4 of the now -repealed
Practice Manual. The provisions of paragraph 11.2.4 constitute pre- emptive steps
available to the applicant to resolve issues related to the filing of the record. 7 The
failure of the applicant to invoke these procedures fortifies its tardiness.
[13] It is significant that, other than contending that the business of the applicant
was taken over by the fourth respondent in July 2021, and the section 197 dispute
that followed, there are no averments on the effect of those events on the failure to
file a complete record. As mentioned, the initial record was filed on 24 August 2021,
after the transfer of the business. Also, as correctly contended by the first
6 Van Wyk v Unitas Hospital and Others 2008 (4) BCLR 442 (CC) at para 22:
7 See Transnet Freight Rail v Mashaba [2024] ZALAC 58; (2025) 46 ILJ 1139 (LAC).
6
respondent, the applicant simply avers that the assigned attorney resigned from the
employ of the attorneys of record without more. There is no indication of the effect of
the resignation on complying with the Rules of the Court. Also, there is no
explanation of what steps were taken in the review for a period of a year before his
resignation. This amounts to no explanation at all.
[14] The applicant also does not explain the effect of the appointment of new
management on 1 April 2023, and it took a further eight months for the current
attorneys of record to be apprised of this matter. Even then, it took a further two
months for the current attorneys of record to consult on the further conduct of the
matter. The above evinces tardiness on the part of the applicant in prosecuting the
review, and this flows against the primary object of the LRA, which envis ions
expeditious resolution of review applications.
[15] Accordingly, the applicant has failed to demonstrate a reasonable and
satisfactory explanation for the inordinate delay in filing the complete record,
applying to compel the bargaining council in terms of rule 7A(4) of the Old Rules , or
approaching the Judge President in terms of paragraph 11.2.4 of the Practice
Manual.
[16] The applicant averred that it has strong prospects of success in the review
application. However, that conclusion is not borne out by the record before the Court.
This is because the gravamen of the applicant’s complaint is the Arbitrator’s refusal
to admit written statements as evidence. Aligned with that is that is that the Arbitrator
failed to apply the applicable test for the admission of hearsay evidence.
[17] It is apparent from the award that t he Arbitrator concluded that he would
disregard the statements since the witnesses blatantly disregarded the subpoena
issued against them. The Arbitrator considered the reason for non-attendance, being
fear of victimisation, and concluded that the allegations of victimisation were
unsubstantiated.
[18] It is well established that in accordance with section 138(1) of the LRA,
arbitrators are required to deal with the substantial merits of the dispute with minim al
7
legal formalities. Section 138(1) also stipulates that the arbitrator has a discretion in
admitting evidence. This means that the review court must consider whether the
arbitrator failed to exercise his discretion or exercised it capriciously. As held in
National Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others,8 a court is not permitted t o set aside a decision of a lower for um
merely because the court would itself , on the facts of the matter before the lower
forum, have come to a different conclusion. The court’s intervention is limited to
cases where the discretion was not exercised judiciously or was influenced by
incorrect principles or misdirection of facts, or where the decision reached could not
reasonably have been made by a court properly considering all the relevant facts
and principles. This is an even more stringent test than the reasonableness test
enunciated in Sidumo.9
[19] In this case, it goes without saying that t he Arbitrator fully considered the
principles contemplated in terms of section 3(3) of the Law of Evidence Amendment
Act.
10 He considered, inter alia, the reasons why the evidence is not given in person,
upon whose credibility the probative value of such evidence depends , the prejudice
to the first respondent and other factors, and concluded that there was no substantial
reason why the witnesses could not attend. There cannot be any allegation that the
Arbitrator failed to apply the rules of evidence.
[20] Even if the applicant believes that another court would have come to a
different conclusion on the admission of the statement, the role of the court i n the
current circumstances would be limited. This is because, on the face of it, even
though the Arbitrator did not refer to section 3(3) of the Law of Evidence Amendment
Act, he nevertheless considered the factors and principles relevant to hearsay
evidence and exercised a discretion in terms of the said provisions read together
with section 138(2) of the LRA . It follows that there are minimal prospects that the
review court would set aside the exercise of the Arbitrator's discretion. It is clear that
8 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 at para 11.
9 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; [2007] 12 BLLR
1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC).
10 Act 45 of 1988.
8
the Arbitrator understood his role in terms of section 138 of the LRA and exercised
his discretion in not admitting the written statements in circumstances where the
witnesses were available but elected not to comply with the subpoena.
[21] The other challenges to the Arbitrator’s award hinge on the video footage,
which the applicant has failed to compel or seek directions for in terms of paragraph
11.2.4 of the now-repealed Practice Manual. There is no doubt that without the video
footage, the grounds for review cannot be sustained. The applicant has belated ly
sought directions in terms of paragraph 11.2.4 of the now -repealed Practice Manual
in the reinstatement applicatio n, but these are pre- emptive procedures which must
be resorted to prior to the operation of the deeming provisions.
[22] Therefore, on all accounts, there are minimal prospects that the review
application would succeed. Accordingly, having considered this factor, vis -à-vis the
other relevant factors, it must be concluded that t he applicant has failed to
demonstrate good cause. There is also no other reason why the review must be
reinstituted. This is more so because Zimema has remained in limbo while the
applicant was l ax in the prosecution of the review. This is in affront to the primary
objectives of the LRA. Effectively, it cannot be in the interest of justice to reinstate the
review. Therefore, the requirements of fairness require that the matter be brought to
its conclusion at this point.
[23] In respect of costs, the applicant has been tardy in the prosecution of the
review, in direct conflict with the primary objectives of the LRA. This Court has the
discretion to censure a party with an order of costs for appalling conduct. In this
case, this Court must express its dis pleasure with the slow pace of prosecuting the
review proceedings. The applicant must, therefore, pay for the respondents' costs for
opposing the reinstatement application.
[24] In the premises, the following order is made.
Order:
1. The application to reinstate the review application under the present
case number is dismissed with costs.
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2. The review application remains deemed withdrawn in accordance with
paragraph 11.2.3 read with 11.2.2. of the Practice Manual.
M. Kumalo
Acting Judge of the Labour Court of South Africa
APPEARANCES:
For the applicant: N.S.V. Mfeka, instructed by Poswa Incorporated
For the first respondent: E. van Staden, of Port Elizabeth Justice Centre
For the fourth respondent: T. Moyo, of Snyman Attorneys