THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2034/2022
JR2547/2021
In the matter between:
L DE LIMA CARRIERS CC Applicant
And
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER S SITHOLE Second Respondent
NBCRFLI Third Respondent
SATAWU Fourth Respondent
Heard: 21 August 2025
Delivered: 29 August 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email . The date for handing down judgment is deemed to be
29 August 2025.
______________________________________________________________________
JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter came before the court as an application to have an archived file
retrieved from archive, and for the review application to be reinstated. The
applicant brought an application for retrieval/reinstatement under a separate case
number that was allocated to the review application, i.e., under case number
JR2034/2022. The application for review has been brought under case number
JR2547/2021.
Background to archiving
[2] The second respondent issued a demarcation award on or about 11 October
2021 finding that the applicant and its employees fall within the registered scope
of the third respondent. The applicant claims that the award was received on 12
October 2021. The applicant, on 30 November 2021, delivered an application for
the review of the award . The applicant claims that the review application was
delivered within the prescribed 6 -week period. However, upon calculating the 6
weeks from 12 October 2021, the review application had to be delivered on or
about 23 November 2021. There is no application for condonation for the late
delivery of the review application.
[3] Mr. Pienaar conceded during arguments that the record of the arbitration
proceedings was made available around 8 December 2021. There is no evidence
before this court what specific actions the applicant took from being notified on 8
December 2021 that the arbitration record is made available other than stating
that they were waiting for the transcribed record, which was provided on 19 May
2022.
[4] On 30 May 2022, a period of six months went past without the applicant taking
any further steps in prosecuting the review application from the date of filing the
application. Clause 16.1 of the Practice Manual 1 states that the registrar will
archive a file if no steps are taken for a period of six months. On 13 June 2022,
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.
some 14 days after expiry of the 6 -month period referred to in clause 16.1, the
applicant emailed notices in terms of rule 7A (6) and (8) of the previous Labour
Court rules. These notices, and the supplementary affidavit, were placed in the
court file on 5 July 2022. The fourth respondent disputes that the said notices
and supplementary affidavit were served on them via email. The applicant failed
to deliver a replying affidavit, and this court must therefore accept that the
applicant failed to serve same on the fourth respondent.
[5] The fourth respondent, on 15 June 2022, delivered a notice to archive. This
notice was delivered 2 days after the notices in terms of rule 7A (6) and (8) were
sent via email. As stated already, the fourth respondent did not receive the email
of 13 June 2022. The applicant did not challenge the request to the court for the
review application to be archived . Following receipt of the notice to archive the
review application, Sethene AJ ordered, on 5 August 2022, that the application is
archived in terms of paragraph 16.1 of the Practice Manuel applicable at the
time.
[6] The applicant, on or about 14 September 2022, delivered a rule 11 -application,
seeking an order that the review application be revived. The application was
opposed, albeit long after the application was delivered. T he application was
eventually set down and heard before this court on 21 August 2025 and
postponed to 22 August 2025 to allow the applicant’s attorney s to properly index
and paginate the court file. It is unfortunate that the rule 11 -application was only
allocated a date nearly three years after the application was delivered, which can
only be due to the backlog of matters in the Johannesburg Labour Court. The
parties cannot be blamed for this 3-year delay.
Reasons advanced in support of rule 11-application
[7] The applicant states that they only received the transcribed records from the
[7] The applicant states that they only received the transcribed records from the
transcribers on 19 May 2022. The applicant served the notices in terms of rule
7A (6) and (8) via email on 13 June 2022 , although the fourth respondent’s
version that it was not emailed to them must be accepted. No explanation is
provided why it took the applicant some 25 days to send the n otices via email.
Had they delivered same on 19 May 2022 when they received the transcribed
record, and more specifically also on the fourth respondent, the applicant would
not have fallen foul of the 6-months referred to in clause 16.1.
Applicant’s submissions regarding merits on review
[8] The applicant states that it has excellent prospects of success on review. The
second respondent made pertinent errors in law, which renders the award
reviewable. The drivers pertinent to the matter signed employment contracts with
Lima Carriers CC, a registered close corporation in the Republic of Namibia , who
were not cited in the arbitration proceedings. The second respondent made a
factual finding that the first respondent has jurisdiction to arbitrate the dispute on
fatal misdirection in law, as the drivers signed contracts with the Namibia n
company. The second respondent made a finding on jurisdiction with no witness
testimony having been given at the in limine-hearing. The employees’ workplace
was not within the territorial boundaries of South Africa. It is alleged that it was
common cause that the drivers only entered South Africa to pick up cargo, refuel
and leave for their locations in various African countries. It is submitted that since
the operations and work of the employees were outside of South Africa, the
CCMA does not have jurisdiction.
[9] In respect of the evidence of Mr. Phiri, who was employed by the applicant in
2001, it was submitted that his evidence cannot carry any weight in determining
the sector the applicant resonates under. The second respondent was further not
required to make a factual finding on the employment relationship of the drivers,
but to conduct a factual inquiry into the demarcation of the applicant. It is alleged
that it was never disputed that the drivers were employed by Lima CC Namibia,
that it was never disputed that the drivers were employed by Lima CC Namibia,
who has a service level agreement with the applicant whereby Lima CC Namibia
provides drivers to the applicant on a labour broker basis. The provisions of the
Labour Relations Act2 (LRA) do not apply to Lima CC Namibia.
[10] It is alleged that it is common cause that the drivers were paid from Namibian
bank accounts, social security and other statutory payments were paid to the
Namibian government. The drivers never received work permits to work in South
Africa. The only time spent in South Africa was to pick up cargo from the port in
Durban, to refuel and service the trucks in Meyerton whereafter the drivers would
depart to their respective destinations in Africa. The second respondent was
required to conduct a factual enquiry and her decision that the applicant
resonates under the scope of the third respondent was a decision that a
reasonable decision-maker could not reach.
Applicant’s submissions regarding delay in prosecution not excessive
[11] The applicant submits that they waited for the transcribed records and that any
failure to comply with the practice manual were not mala fide. The review is not a
paper exercise to frustrate the respondents. The rule 7A (6) and (8) notices were
filed approximately one month late and therefore the delay is not excessive. The
applicant submits that good cause was shown for the application to success
given the good prospects of success together with a minimal delay in filing the
said notices.
Evaluation
[12] The court notes firstly that the reference to the notices being filed approximately
one month late must be considered within the full context of clause 16.1 of the
Practice Manuel. There is no evidence placed before this court regarding the
delay from 30 November 2021 to 13 June 2022. It is unsatisfactory for an
applicant seeking to review an arbitration award to do nothing for more than 6
months after the application for review was delivered. Although it may be so that
during the period the applicant obviously engaged with the transcribing company,
2 Act 66 of 1995
no details are given as to when they did so and how frequently they followed up.
In a nutshell, the applicant fails to give any reasonable explanation for this delay.
[13] This is not only a matter of the applicant falling foul of the 6 -month period. During
the said six months, the applicant was required to uplift the records filed by the
first respondent and from the date that the records were uplifted, they had 60
days in which to deliver the notice in terms of rule 7A (6) and thereafter the notice
in terms of rule 7A (8). The applicant fails to present any evidence in its founding
affidavit regarding the failure to comply with the 60 -day period. In terms of clause
11.2.3 of the Practice Manual , if the applicant fails to file the record within 60
days, the applicant will be deemed to have withdrawn the application subject to
certain exceptions. None of these exceptions apply in this matter.
[14] There is a contentious issue raised by this court mero motu regarding when the
60-day period would have commenced. Mr. Pienaar submitted that the registrar
never informed the applicant that the record was available for upliftment. There is
no reason why the court should not accept this submission, as there is nothing in
the court file indicating that the registrar had done so.
[15] However, the question that must be asked is whether commencement of the 60
days is entirely dependent on the notice issued by the registrar. This can sur ely
not be the case in instances where an applicant, such as in this case, concedes
that the record was made available on 8 December 2021. The 60 -day period
would have commenced on the date that the record was made available to the
applicant. To hold otherwise would result in an absurdity in that, even though an
applicant was already in receipt of the record, they did not need to worry about
the requirement that the record must be delivered within 60 days.
[16] In this regard, the Labour Appeal Court in Macsteel Trading Wadeville v Francois
[16] In this regard, the Labour Appeal Court in Macsteel Trading Wadeville v Francois
van der Merwe N.O and Other 3 (Macsteel) affirmed the Labour Court’s residual
3 (2019) 40 ILJ 798 (LAC) (Macsteel)
discretion to apply and interpret the provisions of the Practice Manual, contingent
on the merits of each case. This court as such accepts that the 60 -day
requirement in which the record had to be transcribed commenced on the day
that the applicant was provided with the record, i.e., on 8 December 2021.
[17] The issue of non -compliance with the 60 -day period is directly relevant to an
application for revival insofar as the explanation for the delay of more than 6
months is concerned. It is not only a matter of the applicant not doing anything
for more than 6 months in terms of prosecuting the review , but also that they
failed to comply with the 60 -day requirement regarding delivery of the record of
the arbitration proceedings. This non -compliance, on its own, led to the review
application being deemed to have been withdrawn even before the expiry of the
6-month period based on which the review application was archived. There is no
application before this court in respect of the deeming provision contained in
clause 12.2.3 of the Practice Manual and on this score alone, the application for
revival must fail and the review application is deemed to have been withdrawn.
[18] Clause 11.2.7 of the Practice Manual states that good cause must be shown by a
party why an archived file should be removed from the archive s. The Labour
Appeal Court in Samuels v Old Mutual 4 (Old Mutual) held that there is therefore
no doubt that showing good cause is a requirement for a file to be removed or
retrieved from the archives. The court held further that, in essence, an application
for the retrieval of a file from the archives is a form of an application for
condonation for failure to comply with the court rules, timeframes and directives.
Showing good cause demands that the application be bona fide ; that the
applicant provides a reasonable explanation which covers the entire period of the
default; and shows that he/she has reasonable prospects of success in the main
default; and shows that he/she has reasonable prospects of success in the main
application; and lastly, that it is in the interest of justice to grant the order. The
court noted, however, that it is not a requirement that the applicant must dea l
fully with the merits of the dispute to establish reasonable prospects of success.
4 (2017) 38 ILJ 1790 (LAC) at para 16
It is sufficient to set out facts which, if established, would result in his/her
success. In the end, the decision to grant or refuse condonation is a discretion to
be exercised by the court hearing the application which must be judiciously
exercised.5
[19] The Labour Appeal Court in City of Tshwane Metropolitan Municipality v
SALGBC, T Makhubele, SAMWU obo Members and IMATU obo Members 6 (City
of Tshwane) held that 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 labour disputes. Hence, the
tardiness in the prosecution review applications has serious consequences.7
[20] This court must therefore determine the application for revival or reinstatement of
the review application in accordance with the case law applicable to condonation
applications, and as guided by what the Labour Appeal Court held to be the test
in Old Mutual.8 The requirements in relation to an application for condonation are
trite and this court does not need to restate the test. It is trite that, in the absence
of a reasonable explanation for the delay, this court does not have to consider
prospects of success. This court already found that the explanation for the delay
is poor, if not non -existent. The applicant failed to take the court into its
confidence in explaining the delay as from the date that the record was made
available to it. Other than what was already stated above regarding the
applicant’s failure to address the deeming provision in respect of the 60 -day
period, the absence of any explanation in respect to the 6 -month period and the
delay thereafter must lead this court to the conclusion that the revival application
must fail.
5 Id at para 17
6 JA57/2024 heard in the Labour Appeal Court on 15 May 2025, and judgment delivered on 12 August
2025
7 Id at para 12. See also Samuels v Old Mutual fn 2
8 See fn 3
[21] This court will, however, address the applicant’s submission that it has excellent
prospects of success. This court has considered the submissions made with
regards prospects of success and does not share the applicant’s view that they
have excellent prospects of success.
[22] The third respondent states in their answering affidavit that the applicant has no
prospects of success. The applicant is trying to obscure the true nature of the
employment relationship. The second respondent considered the issues relating
to the employment contracts and correctly determined that the “substance of the
employment relationship supersedes the form”. The applicant was determined to
be the employer. It is also denied that the employer was not cited as a party to
the dispute. The applicant, who was found to be the employer, was cited in the
dispute. The second respondent considered the submissions regarding the first
respondent’s jurisdiction and came to the correct conclusion.
[23] The third respondent submits that the applicant’s business is operated from
South Africa. The services performed outside of the Republic are performed for
the applicant’s clients and the drivers are subject to the control and direction of
the applicant. The second respondent further considered section 200A of the
LRA in terms of which employees earning below the threshold are deemed or
presumed to be an employee of the employer if one or more of the factors listed
in section 200A are present. The applicant failed to rebut the presumption and
admitted to factors which clearly demonstrated that the applicant is the true
employer.
[24] The third respondent submits that the second respondent did indeed conduct a
factual enquiry into the demarcation of the applicant and its employees and
arrived at the correct conclusions. The applicant has dismally failed to
demonstrate good cause for the revival of the review application and is
demonstrate good cause for the revival of the review application and is
attempting to delay the inevitable. It is to be noted that the applicant failed to file
a replying affidavit to the third respondent’s answering affidavit.
[25] The fourth respondent states in their answering affidavit that the second
respondent considered the evidence and correctly conclude d that the applicant
falls within the jurisdiction of the third respondent, as the applicant’s operations
are within the borders of South Africa. Reference is made to Mr. Phiri’s evidence
that he was employed at the applicant’s offices in Meyerton, Gauteng. He
testified that he reported for duty at the same address and he performed duties
with trucks and trailers that were regis tered in South Africa. He also testified that
in his 20 years of service to the applicant he has never reported for work in
Namibia. He also led evidence that he gets paid by the South African ABSA bank
with a local branch code and in South African rands, and that he was one of ten
drivers for whom the applicant got work permits in 2009. Since then, Mr. Phiri has
renewed his permit twice whilst employed by the applicant. The second
respondent looked at all the evidence collectively and came to the correct
conclusion. Again, this court notes that the applicant failed to deliver a replying
affidavit to the fourth respondent’s answering affidavit.
[26] Having considered the parties’ respective affidavits, and more specifically the
arbitration award, this court finds that the applicant’s prospects of success are
not excellent , as alleged. The second respondent applied the correct test to
determine whether the applicant was the true employer of the employees and her
finding in this regard, based on the evidence presented, was prima facie correct.
Much of the applicant’s allegations in support of its professed excellent prospects
of success are denied with r eference to documentary evidence. The evidence of
Mr. Phiri in this regard is crucial to the conclusion arrived at by the second
respondent.
[27] The court notes that the test of review in this demarcation matter is not based on
the “reasonableness test”, but on the “correctness test”. From the evidence
the “reasonableness test”, but on the “correctness test”. From the evidence
placed before the second respondent, it appears prima facie that she arrived at
the correct conclusion with a well -reasoned award. The court therefore finds that
the applicant’s prospects of success in the review application are not sufficient to
show good cause for the review application to be revived and/or reinstated,
especially given the unexplained delay between 30 November 2021 and 13 June
2022.
[28] The LRA places a premium on the speedy and effective resolution of labour
disputes. The Practice Manual provided specific timelines for especially review
applications, which must be complied with. As stated already, it is mostly
unfortunate that a 3 -year delay occurred before this revival application was set
down. The delay caused by the backlog of cases is not, however, relevant to the
responsibilities of litigants to comply with prescribed periods in the previous
Labour Court rules and in the Practice Man ual applicable at the time. But for the
non-compliance by the applicant, the review application could potentially have
been heard. If the application for review was to be revived, another extensive
delay would be experienced before the review application can be heard given the
backlog of cases.
[29] It is not in the interest of speedy and effective resolution of disputes, no r in the
interest of justice to further delay a matter where the arbitration award was
issued during 2021. The last issue that this court considered is the fact that the
review application was clearly delivered late, despite the applicant’s contention
that it was delivered within the 6 -week period. Any revival of the review
application will result in the applicant having to now seek condonation for the late
delivery of the review application nearly four years after the review application
was delivered. In th e absence of an application for condonation, the review
application cannot be determined by this court.
[30] For the reasons stated above, this court finds that the applicant failed to show
good cause for the revival or reinstatement of the review application and that the
application must be dismissed.
Costs
[31] The dispute in this matter is a demarcation dispute between the applicant and the
third respondent. The dispute is not one of an employment relationship between
two parties. The third and fourth respondents requested this court to award costs
against the applicant. This court can find no reason why the applicant should not
be ordered to pay costs.
[32] In the premises, the following order is made:
Order
1. The application for revival or reinstatement of the review application is
dismissed.
2. The third and fourth respondents are entitled to have the award certified, if
this was not already done, and upon certification, the award will be
enforceable as if it were an order of the Labour Court.
3. The applicant is ordered to pay the third and fourth respondents’ costs in
respect of this application only.
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: M Pienaar
Instructed by: Helena Strijdom
For the Third Respondent: L Hutchinson
Instructed by: Tricker Inc.
For the Fourth Respondent: N Masondo from S Mabaso Inc.