THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2431/19
In the matter between:
ELIA MOSHE KGATLA Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSSIONER SERETSE MASETE Second Respondent
GLENCORE OPERATIONS SA (PTY) LTD Third Respondent
Heard: 28 March 2025
Delivered: 29 August 2025
JUDGMENT
MAFA-CHALI, AJ
2
Introduction
[1] This is an opposed review application brought by the Applicant, Elia Moshe
Kgatla in terms of section 145 (1) of the Labour Relations Act1 (LRA) to review and
set aside the condonation ruling issued by the Second Respondent (the
Commissioner) under the a uspices of the First Respondent , the C ommission for
Conciliation Mediation and Arbitration (CCMA ) under case no LP5045-19 issued on
09 September 2019, in favour of the Third Respondent (Glencore) , in which the
Commissioner dismissed the condonation application brought by the Applicant.
[2] This review application was lodged around November 2019. The Applicant’s
attorney was corresponding with Glencore Head Office officials around February and
March 2020 regarding the review application. It appears from the court records that
the Applicant filed the notices in terms of Rule 7A (6 ) and Rule 7(A)(8) 2 by email
upon the Third Respondent on 26 February 2020 and 12 March 2020 respectively
[3] The Third Respondent filed notice of opposition on 19 October 2021 through
its attorneys of record, Edward Nathan Sonnenbergs Inc and later filed an answering
affidavit on 29 November 2021. On 2 December 2021, the Applicant filed notice of
objection to the late filing of the Third Respondent’s answering affidavit. The Third
Respondent then filed a condonation application around 17 December 2021 and the
Applicant also filed the replying affidavi t on 04 February 2022, together with
opposition of the Third Respondent’s condonation application.
Background
[4] Kgatla was employed by Glencore as an Electrical Apprentice on a
learnership agreement on 1 April 2014 at Glencore Lydenburg Smelter. I n terms of
the learnership agreement concluded between the Applicant and Glencore, the
learnership was to be completed once the learnership is completed on 1 April 2017,
whichever to occur first.
1 Act No 66 of 1995, as amended.
2 GN 4775B of 3 May 2024: Rules Regulating the C onduct of the Proceedings of the Labour Court
2 GN 4775B of 3 May 2024: Rules Regulating the C onduct of the Proceedings of the Labour Court
(effective 17 July 2024).
3
[5] On 3 March 2015, the Applicant was involved in an accident at work while
performing his duties and he sustained serious injuries which led him to be
permanently disabled.
[6] The Applicant was then charged for the negligent conduct as the Glencore
alleged that he jumped into a moving hot charge car which was outside of his
working area. He was subsequently dismissed on 19 February 2016 after the
disciplinary hearing.
[7] The Applicant referred an unfair dismissal dispute to the CCMA on 22
February 2016; and also lodged an appeal against his dismissal. On 8 March 2016,
his dismissal was overturned and a final written warning was issued to him and this
could allow the Applicant to continue with his learnership.
[8] According to Glencore, as a result of his permanent disability, the Applicant
was paid out a permanent disability benefit by Rand Mutual Assurance, the
insurance service provider of Glencore and his learnership agreement terminated on
1 April 2017, and the Applicant disputed this version.
[9] However, the Applicant’s attorneys referred on his behalf an unfair dismissal
dispute to the CCMA again on 22 May 2019 with condonation application. This is the
condonation application which was dismissed by the Commissioner on 9 September
2019. It is t he Commissioner’s condonation ruling that is the subject of this opposed
review.
[10] Before the Court deals with the review application, it must deal with the
condonation application filed by Glencore for the late filing of the answering affidavit ,
which is also opposed, by the Applicant.
Third Respondent’s condonation for answering affidavit
4
[11] The Third Respondent made a condonation application to file the answering
affidavit in terms of Rule 11 of the Court Rules, and the application was opposed by
the Applicant.
[12] The Third Res pondent also raised preliminary points in the condonation
application. Firstly, that the Applicant’s review application was never served on the
Third Respondent in accordance with the Rules of this Court as it was served on the
personal email address of Ms Zanele Nyembe on 6 November 2019, but there was
no agreement between the parties that Ms Nyembe must accept service of
documents on that email; and Ms Nyembe did not confirm receipt of the review
application as that email address is incorrect, and further neither did the Applicant’s
attorneys file the service affidavits confirming the manner of service of the review
application upon the Third Respondent. Ms Nyembe’s correct email address is z[ …].
It was further submitted that Glencore only became aware that the Applicant has
lodged the review application when it was approached by the Applicant’s attorneys
by email with a notice in terms of Rule 7A(6) and the record of proceedings on
email addresses r[…] and c[…] on 26 February 2020.
[13] It was submitted that the emails belong to Rembu Matodzi the former
employee of Glencore and Conroy Van der Westhuizen the current employee of
Glencore. The Applicant therefore has failed to comply with Rules 7(1) and 7A (1) of
this Court.
[14] On the other hand, the Applicant opposed the condonation and indicated the
defects in the affidavit and submitted that it does not show ful l names of the
deponent who is made the affidavit. It only state s ‘I, the undersigne d’, and then the
signature of Arthee Naidoo at the end of the affidavit, and therefore not in
compliance with regulations contained in the Government Notice R1258 of 21 July
1972, as amended and the Government Notice of R1648 of 19 August 1977, since
the affidavit was not signed before the Commissioning of O aths
the affidavit was not signed before the Commissioning of O aths
3. It was further
submitted that the answering affidavit to the review application has the same defects
and both affidavits should not be accepted by the Court.
3 GN R774 of 23 April 1982 Regulations governing the administering of an oath or affirmation reg 3
(1).
5
[15] The Applicant averred that the condonation application is not also in
compliance with Rule 7 of this Court’s Rules as it has not set out clearly the
description of the names and addresses of the parties. The same applies to the
answering affidavit to the review application as it has the same defects. There is no
mention that the person who signed the affidavit has been authorised by the Third
Respondent to file the affidavit.
[16] It was also argued that the Third Respondent should not have been brought
in terms of Rule 11 read with Rule 12(3) of the Rules of the Court, as Rule 11 is for
interlocutory applications. The Applicant submitted he has made attempts to alert the
Third Respondent of those defects and proceeded to enrol the matter on an
unopposed roll as the Third Respondent failed to file a proper answering affidavit.
[17] The Third Respondent in reply argued that there is no basis for the Applicant
to raise the defects in the answering affidavit of the Third Respondent as Regulation
4 of the Justice of Peace and Commissioner of Oaths Act
4 requires that the name of
the deponent must be stipulated without indicating where in the affidavit, and the
deponent signed the affidavit before the Commissioner of Oaths after answering the
questions stated in the oath.
[18] In this Court’s view, the Applicant’s submissions regarding the defective
affidavits is highly technical and elevates form over substance. The absence of the
names of the parties in the affidavit and lack on mention of authorisation to depose
the affidavit does not make the affidavit defective.
[19] It is clear that the affidavits have been properly commissioned by the
Commissioner of Oaths, with the full name of the Commissioner of Oaths printed in
full and signature, date stamp of South African Police Service with the designations
and address of business area of Norwood for which the person holds the
appointment or office. The deponent has signed above the full names above the
oath.
appointment or office. The deponent has signed above the full names above the
oath.
4 Act 16 of 1963.
6
[20] There is a wealth of authority to the effect that the provisions of Regulation 4
are directory and not peremptory. In Basson and A nother v On- Point Engineers
(Pty) Ltd and others,5, Potterill J stated as follows
‘The Full Bench of this Division in S v Msibi 1974 (4) SA 821 (T) found that
the compliance with regulation 4 is directory and a court can exercise its
discretion in admitting such affidavit if there is substantial compliance with
the regulation. The Commissioner did not provide a business address and
the area the Commissioner held office and his/her designation. This is in fact
a requirement of Regulation 4(2) and not 4(1) as complained of. The stamp
of the Commissioner clearly indicated that the Commissioner was in the
South African Police Services at the Management Information Centre,
Rosebank. I cannot express myself better than in the words of Page AJ in
the Dawood matter supra [1979 (2) SA361 (D and CLD)] at 367 C-E.’
[21] In deciding whether the non- compliance is of such a nature that the Court
should refuse to entertain the affidavit it is clearly relevant to have regard to the
nature and purpose of the requirement with which there has been failure to comply.
In the present case it seems to me that the reason for the requirement that the
commissioner should furnish his business address is to facilitate the task of anyone
who might thereafter wish to locate him for any purpose connected with the affidavit
and its execution. In the present case the information supplied is sufficient to enable
anyone of ordinary intelligence to deduce that the business address of the
commissioner of oaths is at the office of the SAPS Rosebank Management
Information Centre.
[22] The commissioner is thus at minimum designated for the area of Rosebank
ex officio. On this paltry defect This Court cannot refuse to accept the affidavit into
evidence. The replying affidavit was commissioned at the SAPS Client Service
evidence. The replying affidavit was commissioned at the SAPS Client Service
Centre, Rosebank. The full names of the Commissioner on both the applicants’
affidavit are not printed. On the replying affidavit the force number of the
Commissioner is printed and the Commissioner can be easily traced from this. The
5 Unreported case number 64107/2011 dated 7 November 2012 at para 4.3.
7
purpose of the requirement of the full names of the Commissioner can once again
only be to identify the Commissioner for any enquiry pertaining to the attestation.
This Co urt is certain that with little trouble the Commissioner of the founding
affidavit will be located through visiting the Rosebank Management Information
Centre of the SAPS and enquiring whose signature is on the document.”
[23] Similarly, in the present case, the Commissioner of the affidavit would be
easily located through visiting the Norwood SAPS, if it has to be enquired whose
signature was on the doc ument. It is clear therefore in this Court’s view that there
was substantial compliance with the provisions of regulation 4(2).
[24] In the result, this Court finds that there was substantial compliance with the
regulation and, therefore, exercised its discretion in f avour of allowing the Third
Respondent’s affidavits.
[25] As regards the non- service of the review application by the Applicant, i t is
apparent from the court records that the Applicant’s attorneys also filed the service
affidavit with the Court , stamped 12 March 2020 and also was filed service affidavit
confirming service on Ms Nyembe and Rembu Matodzi, and Ms Nyembe has
telephonically acknowledged receipt of the review application on 06 November 2019
at telephone number 013 230 6000. Besides the submissions that Rembu is the
former employee of Glencore, it has not been submitted by the Third Respondent
that Rembu Matodzi was no longer employed by Glencore at the time of service of
the review application and the correctness of that email address used has not been
disputed.
[26] The Court has observed that the Applicant served the review application by
email, which is a method of service not recognised in the old Labour Court Rules
6.
Rule 4 (1) (b)(i) of the old Labour Court Rules regulated service of documents in this
Court upon a company by serving a copy of the document on a responsible
Court upon a company by serving a copy of the document on a responsible
employee of the company at its registered office or its principal place of business
within the Republic , or its main place of business within the magisterial district in
6 GN 1665 of 1996: Rules of the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024).
8
which the dispute first arose, or if there is no employee willing to accept service, by
affixing a copy of the document to the main door of the office or place of business or
by any other means authorised by the Court.
[27] The Applicant in his opposing and replying affidavit has not addressed the
Court on the reasons he chose to use this method of service not authorised by the
Court. In the interests of justice and the delays that may be caused if the Court is to
direct the Applicant to use the proper method of service in terms of the old Labour
Court Rules. The email method of service used by the Applicant to serve the review
application is condoned and authorised as the proper method of service since the
new Court Rules recognise the email as a method of service. Under the
circumstances, the Applicant’s review application was properly served on the Third
Respondent.
[28] The Court will now deal with the second preliminary issue raised by the Third
Respondent that the Applicant’s review application has lapsed for failure to
prosecute the review application.
[29] Secondly, it was contended by the Third Respondent that the review
application is regarded as lapsed as the notice in terms of Rule 7A ( 8) was delivered
by the Applicant on 7 March 2020 and the Applicant did not take any steps to
prosecute the review application from 7 March 2020 until 12 October 2021, and a
period of 18 months has lapsed since the review application was filed with the Court.
It was submitted that the review application is deemed to be withdrawn and is
achieved as it has lapsed in terms of clause 11.2.7 of the Practice Manual of this
Court which provides
7:
‘A review application is by its nature an urgent application. An applicant in a
review application is therefore required to ensure that all necessary papers in
the application are filed within twelve (12) months of the date of the launch of
the application (excluding Heads of Arguments) and the registrar is informed
the application (excluding Heads of Arguments) and the registrar is informed
in writing that the application is ready for allocation for hearing. Wherein this
time limit is not complied with, the application will be archived and be
7 Practice Manual of the Labour Court of South Africa, 2013 (repealed, effective 17 July 2024).
9
regarded as lapsed unless good cause is shown why the application should
not be archived or be removed from the archive.’
[30] It was also argued that as there is no proper review application before this
Court, as there was no application to revive the review application, and therefore it is
not necessary for the Third Respondent to apply for condonation application of
delivery of its answering affidavit.
[31] The Third Respondent averred that the only reason it has delivered an
answering affidavit when it did was because the Applicant’s representative
addressed correspondence to Glencore on 12 October 2021, in which he indicated
that the Applicant intends requesting this Court to set the matter down for hearing on
the unopposed motion roll. In the event the Court finds that the Applicant’s review
application is not defective, and properly before this Court, then Glencore is required
to make an application for C ondonation, the Court must then consider its
submissions on condonation application on the degree of lateness, reasons for
lateness and prospects of success and any other relevant factors including
prejudice.
[32] The Applicant denied that he delayed in prosecuting the review application
but submitted that he was busy engaging with the Third Respondent, and was
disturbed by the lockdown because there were no cases allocated to Polokwane
High Court for hearing.
[33] The Applicant argued that the Practice Manual states that the review
application can be withdrawn only if the Applicant failed to deliver records within 60
days from the dat e the Applicant received notice from the Registrar of the Labour
Court.
[34] The applicable Practice Manual during the time this review was lodged in
2019 is the Practice Manual effective 2 April 2013, and archiving of files is regulated
by Clause 16 of this Practice Manual, which provides:
‘16.1 In spite of any other provision of this manual, the Registrar will
archive a file in the following circumstances:
10
• in the case of an application in terms of Rule 7 or R ule 7A, when a period of
six months has lapsed without any steps being taken by the applicant from the
date of filing the application, or the date of the last process filed;
• in the case of referrals in terms of Rule 6, when a period of six months ha s
lapsed from the date of delivery of a statement of case without any steps
taken by the referring party from the date on which the statement of claims
was filed, or the date on which the last process was filed; and
• when a party fails to comply with a direction issued by a judge within the
stipulated time limit.’
[35] The Applicant filed the notice in terms of Rule 7 A ( 8) on 12 March 2020,
which was the last step filed by the Applicant before the Third Respondent filed
notice to oppose on 18 October 2021, and subsequently the answering affidavit on
29 November 2021.
[36] Nothing was done by the Applicant to prosecute the review application after
filing Rule 7A (8) until the Third Respondent filed the notice to oppose, and therefore
the 6 months referred to in Clause 16.1 of the Practice Manual lapsed around 12
September 2020. It is apparent that since 12 March 2020, the Applicant
communicated with the Third Respondent’s attorneys on 12 October 2021 indicating
the intentions to set the matter down for hearing on an unopposed motion roll. This is
some 13 months after the lapse of the review application.
[37] Although the Applicant denied that he delayed in prosecuting the review
application and submitted that the Applicant was engaging the Third Respondent
after realising that the Third Respondent was deliberately delaying the matter and
advised the Third Respondent that he intends to set the matt er down on the roll for
hearing. The Applicant also made some lame excuses about the Court not allocating
dates of hearings in Polokwane due to COVID -19. The Applicant has not shown any
other steps he has taken to pros ecute the review application in the 6 months after
other steps he has taken to pros ecute the review application in the 6 months after
filing Rule 7 A ( 8) or anytime afterwards before 12 October 2021, or even any
attempts made with to request the Registrar to set the matter down on an unopposed
basis.
11
[38] It is not clear why was the Applicant engaging the Third respondent and
when did he make those engagements , and what steps he has taken to comply with
the Rules of the Court and the Practice Manual. The Applicant was well within his
rights to request the Registrar to set the matter down on an unopposed roll within the
six months period if the Third Respondent failed to file the notice to oppose the
review application and the answering affidavit once the prescribed period of ten days
lapsed after the filing of Rule 7A ( 8), if there was no action or steps taken by the
Third Respondent in that regard.
[39] Indeed, as correctly argued by the Third Respondent, the 12 months has
lapsed since the launching of the review application when the Applicant set the
matter down for hearing, and there is therefore non- compliance with clause 11.2 7 of
the old Practice Manual of this Court and the application shall be deemed to be
archived and regarded as lapsed.
[40] In Lentsane and others v Human Sciences Research Council
8, The Court
considered compliance with the Rules of the Court and held that:
‘The rules exist to facilitate disciplined litigation and their role as servant of
that process is the point of departure for any examination of non-compliance.’
[41] The Third Respondent has succeeded to make a good case that the
Applicant has failed to prosecute the review application within the prescr ibed
timeframes set out by the Court Rules.The Applicant has not made an application on
good cause shown why the application should not be archived.
[42] The end result of all of this is that as matters now stand, the A pplicant’s
review application has been archived and has lapsed. The A pplicant has not applied
for condonation, nor attempted to show good cause, in order to have her review
application reinstated and properly placed before this Court for determination.
8 (JS1364/01) [2002] ZALC 149 at para 19.
12
[43] Since a period of six months had elapsed without any steps being taken by
the Applicant from the date of filing the review application, thus the application was
also archived. Clause 16.3 of the Practice Manual is clear that where a file has been
placed in archives, it shall have the same consequences as to the matter having
been dismissed. The Labour Appeal Court (LAC) confirmed that the consequence of
an archiving of a case is to be underst ood to mean the application is dismissed. The
LAC also made it clear that the effect of lapsing or archiving of a matter is that the
case shall not be dealt with by a C ourt unless an application to reinstate or retrieve
the file from the archive has been made.
[44] It is consequently not necessary for this Court to make a determination on
the Third Respondent’s condonation application for the late filing of the answering
affidavit and subsequent merits of the review application.
[45] There is an important consideration of the particular requirement of
expedition where it comes to the prosecution of em ployment law disputes. There
exists a plethora of judgments that specifically emphasi se the need for expedition in
employment law disputes, T hree judgments of the Constitutional Court (CC) are:
Khumalo and Another v Member of the Executive Counc il for Education: KwaZulu-
Natal
9, Skweyiya J said: ‘… the importance of resolving labour disputes in good time
is thus central to the LRA framework. ….’ . Further, Jafta J in Aviation Union of SA
and Another v SA Airways (Pty) Ltd and Others 10 held: ‘… Speedy resolution is a
distinctive feature of adjudication in labour relations disputes …’. And finally, in
National Education Health and Allied Workers Union v Univ ersity of Cape Town and
Others11 Ngcobo J said:
‘By their very nature labour disputes must be resolved expeditiously and be
brought to finality so that the parties can organize their affairs accordingly.
brought to finality so that the parties can organize their affairs accordingly.
They affect our economy and labour peace. It is in the public interest that
labour disputes be resolved speedily …’
9 (2014) 35 ILJ 613 (CC) at para 42.
10 (2011) 32 ILJ 2861 (CC) at para 76.
11 (2003) 24 ILJ 95 (CC) at para 31.
13
[46] The above general principle of speedy resolution of labour disputes are then
given practical application in Clause 11.2.7 of the Practice Manual. This is evident
from the following dictum in Samuels v Old Mutual Bank 12, where the Court said,
with specific reference to the Practice Manual: Clause 11.2.7:
‘… Its purpose is, inter alia , to provide access to justice by all those whom
the Labour Court serves; promote uniformity and/or consistency in practice
and procedure and set guidelines on standards of conduct expected of those
who practise and litigate in the Labour Court. Its objective is to improve the
quality of the court’s service to the public, and promote the statutory
imperative of expeditious dispute resolution. …’
[47] In MacSteel Trading Wadeville v Van der Merwe No and Others 13, the LAC
held that the review application in this case had been archived and was regarded as
lapsed, where NUMSA filed the review record approximately 20 months after
instituting the review application and where the application was set down six years
after being instituted. In such circumstances, and in absence of NUMSA seeking
condonation for the delay, the Labour Court had no jurisdiction to determine the
review application. The LAC further held that a Rule 11 application was not a
prerequisite for the Labour Court to consider whether the review ought to have been
dismissed, or struck off the roll, on the grounds of undue delay. In the absence of
NUMSA applying for the reinstatement of the review or seeking condonation for the
undue delay in filing the record, the Labour Court was obliged to strike the
application from the roll on the grounds of lack of jurisdiction where the relevant
provisions of the Practice Manual had not been complied with by NUMSA. It is also
worthwhile noting that the LAC stated that even if the Labour Court was not inclined
to strike the matter off the roll, it ought to have given Macsteel an opportunity to bring
to strike the matter off the roll, it ought to have given Macsteel an opportunity to bring
a Rule 11 application rather than delving into the merits of the review.
[48] The Court in Sepheka v Du Pont Pioneer (Pty) Ltd
14 held that t he Practice
Manual is not just some sort of guideline which litigating parties may or may not
comply with at their leisure, but has binding force, just like the Labour Court Rules. It
12 (2017) 38 ILJ 1790 (LAC) at para 14.
13 (2019) 40 ILJ (LAC) at paras 21 - 22.
14 (2019) 40 ILJ 613 (LC) at para 7.
14
follows that the Applicant was obliged to comply with C lause 11.2.7. of the Practice
Manual.
[49] When the matter came before the Court , it remained lapsed and archived as
held in MacSteel supra.
[50] As such, there is no review application properly before this Court to consider,
and this Court has no jurisdiction to entertain the same as the file has been archived
and it has the same status as a matter that has been dismissed.
Costs
[51] The Applicant has sought a cost order to be issued against the R espondents
if opposing the matter. The Third R espondent has also prayed for the costs order
relief against the applicant . This Court has a wide discretion in respect of costs,
considering the requirements of law and fairness. It is trite that i n labour matters, the
rule that costs follow the result does not apply. The Court should rather seek to strike
a fair balance between unduly discouraging parties from approaching the Labour
Court to have their disputes dealt with, and on the other hand allowing those parties
to bring to this Court cases that ought to have been brought to Court in the first
place, in consideration of the requirements of law and fairness.
[52] In the Court’s view, this is a case where the interests of justice will be best
served by not making a cost order.
[53] In the premises, the following order is made:
[54] Order
1. The review application is struck from the roll.
2. There is no order as to costs.
G Mafa-Chali
Acting Judge of the Labour Court of South Africa
15
Appearances:
For the Applicant: Patson Maswanganyi
Instructed by: M Maswanganyi Attorneys
For the Third Respondent: Dion Masher
Instructed by: Edward Nathan Sonnenbergs Inc Attorneys