THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JR 1232/23
In the matter between:
MINE, HEALTH & SAFETY COUNCIL Applicant
and
MANTJI ELIAS FENYANE First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
COMMISSIONER DAISY MANZANA, N.O Third Respondent
COMMISSIONER JACOB DANIELE SELLO, N.O Fourth Respondent
Heard: 16 July 2025
Delivered: 2 September 2025
Summary: Practice and procedure – Review of a default award on the merits –
Condonation application not filed – Applicant asserting that section 158(1B) of
the Labour Relations Act 66 of 1995, makes it impossible to file a review
timeously thus no need for a condonation application – The applicant is not
exonerated from applying for condonation – Held: The r eview of the default
award struck from the roll – Court lacks jurisdiction.
2
Practice and procedure – Review of a rescission ruling – Deemed withdrawal
due to failure to timeously deliver the record in compliance with rule 7A(6) –
The application for a review of the rescission ruling deemed to be withdrawn in
terms of clause 11.2.2 read with clause 11.2.3 – Held: The review application
struck off the roll – Court lacks jurisdiction. There is no order as to costs.
JUDGMENT
MOTSHEKGA, AJ
Introduction
[1] This is a review application, set down for hearing on 27 June 2025, and
subsequently postponed to 16 July 2025. The applicant sought to review and set
aside a default award, rendered by the third respondent on 4 April 2023 ( ‘the default
award’) and in the alternative, to review and set aside a rescission ruling, rendered
by the fourth respondent 25 May 2023 (‘the rescission ruling’).
[2] At the outset, and for purposes of context, it is apposite to note that the
applicant seeks to review the default award on the merits, and not solely on the basis
of its absence from the arbitration proceedings. This has accordingly been framed as
a separate prayer for review in the notice of motion. The Court, in this judgment ,
expresses no view on the competence of that approach, having instead limited itself
to a determination on those issues it considered necessary to decide.
[3] The default award and the rescission ruling were both issued under the
auspices of the second respondent.
[4] On 16 July 2025, this Court issued an order in the following terms:
‘1. The application for postponement is refused.
3
2. The application for the review of the default award is struck off the roll for
lack of jurisdiction, with no order as to costs.
3. The judgment on jurisdiction for the review of the rescission ruling is
reserved.’
[5] Therefore, in what follows hereunder, are the Court’s reasons for orders 1
and 2 above; and judgment on the jurisdiction of the rescission ruling.
[6] The current proceedings are opposed by the first respondent ( ‘the
respondent’), who has raised several points of law, including the Court’s lack of
jurisdiction to entertain the review application.
[7] The common practice in our Courts is that, where the court’s jurisdiction is
raised, a court has discretion to simultaneously hear arguments on jurisdiction and
the merits. However, such an approach is not a matter of right. In every matter
before it, a court retains its inherent power to protect and regulate its own
proceedings, in a manner that remains faithful to the principles of justice and
fairness.
1
[8] Therefore, a Court may elect to hear only arguments on a jurisdictional issue
and not the merits, if it deems the circumstances of a case, to do so dictate.
[9] In the present matter, the jurisdictional points raised are potentially
dispositive and arose distinctly from the pleadings, thus capable of determination
without the need for the parties to delve into the merits of the case.
[10] Accordingly, for the sake of procedural clarity, this Court elected to confine
itself to the issue of jurisdiction, without hearing the merits of the review application.
1 Section 173 of the Constitution of South Africa 1996, as amended.
4
[11] The current review application was launched in terms of the now -repealed
Labour Court Rules and Practice Manual. 2 Therefore, as the new Rules have no
retrospective effect, any reference to a particular provision of the Rules and Practice
Manual pertains to the repealed Rules, unless otherwise indicated.
Factual Background
[12] On 4 April 2023, the default award was delivered wherein the applicant was
ordered to reinstate the respondent and compensate him an amount of R740 000.00.
[13] The applicant, dissatisfied with an award which was rendered in its absence,
applied for a rescission of the default award in terms of section 144 of the Labour
Relations Act
3 (‘the LRA’).
[14] On 26 May 2023, the rescission ruling was delivered and the applicant’s
rescission application was refused.
[15] Subsequently, on 7 July 2023, the applicant approached this Court seeking
to review and set aside the default award, and in the alternative, the rescission ruling
as aforestated.
[16] On 27 July 2023, the second respondent filed its notice of compliance in
terms of rule 7A (3), wherein it dispatched the contents of the record of the
proceedings with the registrar of this Court. The notice lists that the record comprises
of18 items which are as follows: first item being one (1) DVD compact disc and item
numbers 2 to 18 being the documentary portion of the record. On the face of rule
7A(3) notice, the documentary portion consisted of 178 pages.
[17] On 28 July 2023, the registrar served its notice in terms of rule 7A(5),
informing the applicant’s attorneys that the record was available and called upon the
applicant to collect it within seven days from the date of the notice. Importantly, the
2 GN 1665 of 1996: Rules of the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024).
3 Act 66 of 1995, as amended.
5
notice informed the applicant that the record was to be filed within 60 days of receipt
of the notice, failing which the application will be deemed to have been withdrawn.
[18] On 6 September 2023, the applicant served the transcribed record on the
respondent’s attorneys, without the documentary portion.
[19] Subsequently, on 21 September 2023, without a notice in terms of rule
7A(8), the applicant served a supplementary affidavit on the respondent wherein it
inter alia stated that, the documentary portion of the record was incomplete in that
the respondent’s bundle had not been included by the second respondent.
[20] Neither an extension to file the complete record at a later stage was sought
nor was an application to compel the second respondent to file the complete record
launched.
[21] On receipt of the supplementary affidavit on 21 September 2023, the
respondent’s attorneys called for a rule 7A(3) notice. The applicant provided the
notice as requested, together with various documents, however, not the complete
record as enlisted on the first respondent’s rule 7A(3) notice.
[22] On 6 October 2024, the respondent filed an answering affidavit wherein he
raised various points of law. First, challenging the Court’s jurisdiction; second,
objecting to the applicant’s filing of a supplementary affidavit prematurely without the
complete record, as the record served only consisted of 106 pages and lastly, the
respondent bemoaned that the supplement ary affidavit was served one day out of
time, without a condonation application.
[23] The respondent’s jurisdictional challenge is twofold: first, it is submitted that
there is no review before the Court, in that, the application for review of the default
award has been filed out of time, by approximately 51 days, that i s, outside of the
statutory six-week period, as required by the LRA.
4 Second, and by implication, there
4 Section 145(1)(a).
6
can be no consideration of the alternative relief, that is, a review of the rescission
ruling, if there is no application for review of the default award before the Court.
[24] In so far as the filing of the record is concerned, it is common cause that the
respondent failed to file its notice in terms of rule 7A(6) as was required in terms of
the repealed rules.
[25] The respondent’s points of law were met with complete silence from the
applicant. The applicant failed to deliver a replying affidavit addressing the
deficiencies or an application for condonation regarding the non- compliance as
alleged by the respondent . Not even the respondent’s initial heads of argument,
which persisted with the points of law, prompted the applicant to address any, let
alone all, of the issues raised.
Proceedings before this Court
[26] When the matter came before this Court on 27 June 2024, it was postponed
to 16 July 2025 and costs were ordered against the applicant on account of its failure
to index and paginate the record. In addition, the parties were directed to file
supplementary heads of argument expanding on the jurisdictional issue, which
directive they abided.
[27] The applicant indexed and paginated on 04 July 2025 and the matter
proceeded on 16 July 2025.
[28] In its supplementary heads of argument, the applicant addressed the
respondent’s jurisdictional challenge regarding the review being filed out of time. It
argued that section 145 (1) of the LRA prescribing the six -week period on review
applications, should not be read in isolation, but rather with section 158(1B) thereof.
This latter section of the LRA provides that the Labour Court may not review any
decision or ruling made during conciliation or arbitration by the Commission or
Bargaining Council before t he issue in dispute has been finally determined by the
Commission or the Bargaining Council, unless it is just and equitable to do so.
7
[29] On the basis of section 158(1B), the applicant submits that due to the default
award having been the subject of a pending rescission application, the prescribed
time limits could not be complied with. In short, the applicant argued that section
158(1B) stymied its right to challenge the review of the default award prior to a
determination of the rescission application. Thus contended the applicant, a
condonation application was not necessary in the circumstances.
[30] The respondent’s supplementary heads of argument reiterated its initial
points of law as raised in the answering affidavit and further submitted that the
applicant failed to comply with section 7A(6) and the fact that the applicant only
delivered the record on 4 July 2025, is an acknowledgement that the record was not
in compliance therewith. Therefore, argued the respondent, the applicant’s review
application is deemed to have been withdrawn for lack of compliance with the said
rule.
[31] On 16 July 2025, when the matter came before the Court, the applicant
sought to postpone or remove the matter from the roll in order to: (i) apply for
condonation for any non- compliance with the rules , namely the filing the
supplementary affidavit prior to the record being served; (ii) seek a declaratory order
that the review of the default award is not out of time; and (iii) if unsuccessful on that
basis, seek a declaratory order that, given its hel d-view that section 158(1B)
rendered it impossible to file the review of the default award timeously, no
condonation application was required.
[32] Insofar as the record is concerned, it was argued on behalf of the applicant
that the record had in fact been served timeously on 21 September 2023, albeit after
the supplementary affidavit. Furthermore, due to informal discussions held between
the parties regarding the record, the applicant assumed that the respondent would
not pursue this point regarding non-compliance with the filing of the record. However,
not pursue this point regarding non-compliance with the filing of the record. However,
it had become apparent to the applicant that the respondent continued to persist with
this point, which now necessitated condonation to deal with it.
[33] The respondent argued that the record was not filed timeously; as the
applicant conceded in its supplementary affidavit. The applicant’s supplementary
8
affidavit admitted that the record was incomplete when it was filed on 21 September
2023. The respondent further submitted that the applicant failed to demonstrate
compliance with rule 7A(6) and therefore, even if the Court held that it could
entertain review application outside of the six -week period, it is deemed to be
withdrawn.
[34] The respondent argued that, it could not accede to the postponement
request as this would be tantamount to the applicant being afforded a “second bite at
the cherry”. The objections raised have always been known to the applicant who
opted to not act upon them and as such the court needed to make a ruling
thereupon.
[35] The principles governing postponements are a well -worn path. Instructive in
this regard is the Constitutional Court judgment of Psychological Society of South
African v Qwelane
5.The Court, per Nkabinde ACJ held that:
‘[30] Postponements are not merely for the taking. They have to be
properly motivated and substantiated. And when considering an application
for a postponement court has to exercise its discretion whether to grant the
application. It is a discretion in the true or narrow sense – meaning that, so
long as it is judicially exercised, another court cannot substitute its decision
simply because it disagrees. The decision to postpone is primarily one for the
first instance court to make.
[31] In exercising its discretion, a court will consider whether the
application has been timeously made, whether the explanation for the
postponement is full and satisfactory, whether there is prejudice to any of the
parties and whether the application is opposed. All these factors will be
weighed to determine whether it is in the interests of justice to grant the
postponement. And, importantly, this Court has added to the mix. It has said
that what is in the interests of justice is determined not only by what is in the
interests of the immediate parties, but also by what is in the broader public
interest.’
interests of the immediate parties, but also by what is in the broader public
interest.’
5 2017 (8) BCLR 1039 (CC) at paras 31-32 (Qwelane).
9
[36] Having considered the guidelines as outlined in Qwelane and the facts of
this matter, the Court declined the applicant’s request to remove the matter from roll
or a postponement. In granting such a postponement or removal, where the
respondent has raised several dispositive points of law which the applicant had failed
to properly address in reply or otherwise, the parties would be left in an uncertain
position, potentially resulting in unnecessary and protracted litigation. This would not
be in the interest of justice or of effective judicial management.
[37] Perhaps as a departing node, the Court must turn to an issue earlier raised
concerning the applicant’s intended application for a declaratory order. And w ithout
expressing a view on the merits of such an application, it suffices to restate the legal
position regarding the Labour Court’s powers and its jurisdiction.
[38] The Labour Court’s power to grant declaratory orders is derived from section
158 of the LRA which confers upon it a myriad of discretionary powers. Moshoana
describes the position as follows:
‘The word jurisdiction means official power to make legal decisions and
judgments. Where jurisdiction exists, axiomatically power exists. Equally,
where there is no jurisdiction, the Labour Court cannot exercise a power’.
6
[39] Prinsloo J7 has cautioned against relying on section 158(1) of the LRA to
establish jurisdiction by drawing an incisive juxtaposition between the Labour Court’s
jurisdiction and its powers in the following illustration:
‘So, for example, the fact that the LC has the power in terms of s 158(1)(a)(ii)
to grant an interdict does not mean that an interdict can be sought in respect
of any dispute – the applicant must always identify the cause of action by
reference to some statutory provision that confers jurisdiction on the court. To
continue the example, the LC has the power to grant declaratory orders, it has
no jurisdiction to declare a dismissal for misconduct to be unfair…Although
no jurisdiction to declare a dismissal for misconduct to be unfair…Although
some of the paragraphs of s 158(1) have been held to be jurisdiction
conferring, these are limited.’
6 MR Awarab and GN Moshoana The Role of the Labour Court in the Transformation Age: The
Namibian and South African Context (Juta 2024) pp 65.
7 CN Prinsloo & A Van Niekerk Labour Court Manual (Juta 2024) pp 7.
10
[40] W hether this court would have been vested with the power to decide on the
applicant’s declaratory application where jurisdiction is lacking – or, put differently,
whether the powers conferred on Labour Court in terms of section 158(1)(iv) of the
LRA to grant a declaratory order are jurisdiction conferring, need not be determined
in this judgment.
[41] To conclude on the issue, this Court, as per Moshoana J in Macaskill v State
Information Technology Agency (Pty)Ltd (SITA) and others
8, stated with approval the
following principle with regards to declaratory orders:
‘… a Court will not grant a declaratory order where the issues raised before it,
is hypothetical, abstract and academic, or where the legal position is clearly
defined by statute...’ (own emphasis)
Jurisdiction to Review the Default Award
[42] The Constitutional Court in of Gcaba v Minister of Safety and Security
9 has
described jurisdiction as: ‘The power or competence of a Court to hear and
determine an issue between the parties.’
[43] T he Labour Court in Du Plessis v Public Protector and others
10 held that:
‘Jurisdiction cannot be assumed or implied. It either exists or it does not.
Jurisdiction is the power of the court to decide a matter that has been brought
before it. If the court does not have the power to do so, it cannot consider the
matter, no matter what the merits or equities may be.’
[44] The time frames prescribed by the LRA are peremptory: a review in terms of
section 145 must be instituted within six weeks, unless the late filing is condoned on
good cause shown.
11 The applicant’s review of the default award was launched
outside this statutory time frame. A condonation application was also not filed.
8 (JR 267/2020) [2021] ZALCJHB 220 at para 13.
9 [2009] 12 BLLR 1145 (CC) at para 13.
10(2020) 41 ILJ 919 (LC) at para 20.
11 Section 145(1A) of the LRA.
11
[45] The applicant’s submissions that section 158(1B) exonerates it from applying
for condonation are misguided. The section defines the timing of the Labour Court’s
review powers, and should neither be conflated with the LRA’s statutory time frames,
nor serve as an excuse for the non-filing of condonation application.
[46] Importantly, that the applicant had been pursuing a rescission of the default
award only covers the explanation for the delay. The explanation, compelling as it
may be, does not supersede the other factors which a court must consider in
condonation applications. Factors such as
12: the length; prospects of success;
prejudice to the other party; and the interest of justice - need to be interrogated by a
court where a review was filed outside of the prescribed six-week period.
[47] In the result, section 158(1B) cannot salvage the applicant’s review of the
default award, as the Court lacks jurisdiction until such time as a condonation for the
late filing has been granted.
[48] It was for the reasons set out above that the Court came to the conclusion
that it lacked jurisdiction to entertain the review of the rescission ruling and thus
struck it off the roll.
Is the Review of the Rescission Deemed to be Withdrawn?
[49] The applicant argued that there are two reviews before the Court , and that
the review of the rescission ruling was fil ed within the required six -week period, thus
the Court has jurisdiction to entertain such a review.
[50] Furthermore, the applicant argued that the Court is not called upon by the
respondent to decide on whether the review was deemed to be withdrawn and that it
cannot do so in the circumstances, not even mero motu.
12 Melanie v Santam Co Ltd 1962 (4) SA 531 (A).
12
[51] That the review of the rescission ruling is deemed to be withdrawn was
raised by the respondent in its supplementary heads of argument, following the
applicant’s belated indexing and filing of the record.
[52] In Cusa v Tao Ying Metal Industries & Others
13, Justice O’Reagan for the
majority of the Constitutional Court said:
‘Where a material irregularity or other defect appears on the face of the record
before the reviewing court, which defect would mean that the proceedings
before the tribunal were either unlawful, or procedurally unfair or
unreasonable, the reviewing court is not obliged to overlook that defect. Of
course, the court must act in a manner that is fair to the parties and ensure
that they have an opportunity to address the issue the court has identified.’
[53] The court in Booi v Amathole District Municipality and others
14 held that:
‘It is trite that courts are bound by the issues that litigating parties raise.
However, a court can raise an issue mero motu where (i ) raising it is
necessary to dispose of the matter, and (ii) it is in the interest of justice to do
so, which depends on the circumstances at hand.’
[54] Therefore, even if the Court were to accept that it has not been called upon
to decide on this issue, which it does not, in aligning itself with the principles
enunciated in the authorities above, the Court finds no reason precluding it from
raising the point mero motu. The procedural point regarding compliance with rule
7A(6) is potentially dispositive, as such, the Court is to decide upon it.
[55] As intimated elsewhere above, the respondent submitted that the complete
record was neither served nor filed timeously. On this point, the respondent argued
that at best, the applicant could only be said to have partially complied with rule
7A(6) on 4 July 2025, when it indexed and paginated the record. However, continued
the respondent, this was outside the 60- day period, thus triggering the provisions of
the respondent, this was outside the 60- day period, thus triggering the provisions of
13 2009(1) BCLR 1 CC, at para 131.
14 2022 (3) BCLR 265 (CC) at para 35.
13
clauses 11.2.2 and 11.2.3 of the Practice Manual which deems the review
application to be withdrawn.
[56] Having been informed by the registrar on 28 July 2023 that the record was
ready for collection, the applicant was required to serve and file the record on or
before 24 October 2023.
[57] Counsel for the applicant contends that the record was served and filed
timeously. To fortify her submission, she argued that the record was served on the
respondent and filed on 21 September 2023, albeit after the supplementary affidavit.
During argument, the Court requested the applicant to provide proof of the 7A(6)
notice bearing the official stamp and it could not do so. The applicant could only
direct the court to a service affidavit which confirmed that a supplementary affidavit
was served, together with a rule 7A(3) notice on 21 September 2023. This service
affidavit, argued the applicant, constitutes proof that rule 7A(6) has been complied
with. Lastly, according to the applicant, the record was in the court file on 27 J une
2025 when the matter was postponed is indicative of its timeous filing.
[58] It is tr ite that the provisions of the Practice M anual are obligatory;
15
accordingly, and for the sake of brevity, it is unnecessary to burden this judgment
with a list of the authorities on the point.
[59] Briefly, the provisions of clauses 11.2.2 and 11.2.3 of the Practice Manual
stipulated that records must be filed by the applicant within the 60- day period of
being notified by the registrar to uplift same and failing which the application is
deemed to be withdraw; unless an extension or consent has been granted to file
outside the said period.
[60] The consequences of a deemed withdrawal have been succinctly captured
in Ralo v Transnet Port Terminals and Others
16, where Van Niekerk J held that :
15 See Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC) at para 15.
16 [2015] 12 BLLR 1239 (LC); (2015) 36 ILJ 2653 (LC) at paras 10 to 11.
14
‘…. The plain and unambiguous wording of the practice manual is to the effect
that the applicant must be regarded as having withdrawn the review
application…
To the extent that the applicant contends that he will suffer prejudice on
account of any application of paragraph 11.2.3 of the practice manual and that
he will be deprived of his right to access to court and to have his application
fully ventilated, this is simply not so. The proper order, it seems to me, in
circumstances such as the present, is to strike the review application from the
roll. There is no bar, either in the Rules of this court or the practice manual to
the applicant filing an application i n which he seeks to have the review
application reinstated, together with an application in which condonation for
the late filing of the record is sought.’
[61] In casu, there is clearly a dispute regarding when the record, complete or
not, was served and filed in accordance with the provisions of the practice manual.
Compounding to this challenge, is the failure by the applicant to file a rule 7A(6)
notice which would enable the Court to determine the date on which the record was
served and filed. However, what is clear is that, when the matter proceeded on the
16 July 2025, the record as per the second respondent’s rule 7A(3) had been served
and filed.
[62] However, to the applicant’s contention, even if the Court were to adopt a
charitable approach and accept the applicant’s submissions from the bar that the
respondent was timeously served with the record on 21 September 2023,
notwithstanding that only 106 pages and not 178 pages of the documentary portion
was served at that stage, the applicant is saddled with one other hurdle: to
demonstrate that the record was also filed timeously. This, the applicant failed to do.
The contention that the presence of the r ecord in the court file at the previous sitting
is indicative of timeous compliance is a strained one. The Court rejects this
is indicative of timeous compliance is a strained one. The Court rejects this
contention on the basis that, in the absence of rule 7A(6) notice or a registrar’s date
stamp, the date on which the record was filed rests on mere speculation, and such
speculation cannot be countenanced by this Court.
15
[63] On the basis of what is set forth above, the Court is impelled to conclude
there was a failure to comply with rule 7A(6), read together with clauses 11.2.2 and
11.2.3 of the Practice Manual, in that absent a rule 7A(6) notice, the record was
neither served nor filed timeously.
[64] Having determined that review of the rescission is deemed to be withdrawn,
the respondent’s earlier jurisdictional point relating to a review in the alternative
becomes moot, as there is no alternative review before the Court.
Costs
[65] The Court has considered the issue of costs and is of the view that, in the
interest of fairness and equity, costs should not be awarded in this matter.
[66] In the result, the following order is made.
Order
1.The application for review of the rescission ruling is struck from the roll for
want of jurisdiction.
2.There is no order as to costs.
M J Motshekga
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. L Pillay
Instructed by: NG Dlamini Attorneys
For the First Respondent: Mr. C G Grové of Christoffel Gerhardus Grové Inc.