IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: 2025-117172
Not Reportable
In the matter between:
VUYO NCOKAZI Applicant
and
MECSA CONSTRUCTION (PTY) LTD First Respondent
BARGAINING COUNCIL FOR THE
CIVIL ENGINEERING INDUSTRY Second Respondent
EUGENE VAN ZUYDAM N.O. Third Respondent
CCCC-MECSA JOINT VENTURE Fourth Respondent
SMEC Fifth Respondent
SANRAL Sixth Respondent
MINISTER OF DEPARTMENT OF TRANSPORT Seventh Respondent
Heard: 19 August 2025
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Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time for handing-
down is deemed 10h00 on 1 September 2025
JUDGMENT
ALLEN-YAMAN J
[1] On 22 July 2025 the applicant initiated an application in which he sought
orders in the following terms,
‘1. This Court condones the non-compliance by the Applicant with Rules 8
and any other relevant Rule of this Court and that the Applicant’s non-
compliance with the prescribed time periods and forms of service be
condoned.
2. The application be heard as one of urgency.
3. That a rule nisi be issued:
3.1 The CCCC-MECSA Joint Venture (JV) be declared as not the former
employer of the Applicant.
3.2 Christo Vermeulen and John Sambo be declared to not meeting the
requirements of key staff in respect of Project Director and Construction
Manager of the Mtentu Bridge. The Approval of Christo Vermeulen by the
Fifth Respondent as Project Director be reviewed and set aside.
3.3 The dismissal of the Applicant be declared substantively and
procedurally unfair.’
[2] By the time the application came before this court on 30 July 2025 an
answering affidavit had been delivered by the firm of attorneys Edward Nathan
Sonnenbergs Inc (ENS), deposed to by Mr Nathaniel Komane who alleged that he
did so in support of the first respondent’s opposition to the application. The applicant
took issue with his authority to depose to an affidavit on behalf of the first respondent
in light of the fact that Mr Komane had described himself as the Project Human
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Resource Executive for the ‘CCCC MECSA Unregistered Joint Venture.’ This court
explained to the applicant that the manner in which authority is to be challenged, if a
challenge to authority is raised, is to act in terms of Rule 7 of the High Court Rules.
The applicant was then given the opportunity to deliver a N otice in terms of Rule 7
(in which event the application would be required to be adjourned to a later date) or
to proceed with the application with the answering affidavit being accepted as having
constituted the first respondent’s opposition to his application. The applicant
indicated that he wished to proceed in terms of Rule 7 and the application was then
adjourned to 19 August 2025 to enable him to deliver the appropriate notice.
[3] Pursuant to the postponement of the matter the applicant delivered a
Supplementary Notice of Motion (Additional Relief) in which he expanded upon the
relief he initially sought,
‘3. That a rule nisi be issued:
3.6 The First Respondent be ordered to pay the Applicant for damages.
3.7 The Fourth Respondent be declared to not be capable of legally
instructing employed persons working for registered companies with juristic
identities and the CCCC -MECSA JV tender with SANRAL therefore be
terminated. If this is not granted, the Applicant be granted reinstatement with
retrospective salaries and benefits.
3.8 The First Respondent be declared to not have the tender of the Mtentu
bridge.
3.9 The First Respondent be ordered not capable of performing his
contractual obligations and to pay the Applicant the remaining salaries of this
project as per the approved program by a competent person.
3.10 A decision be made regarding a Rule 7 notice.’
[4] The applicant annexed a further affidavit to his Supplementary Notice of
Motion in which, inter alia, he alleged that,
‘4. On 30 July 2025, the Honourable Labour Court has exercised its
discretion in relation to Rule 7(1) of the High Courts, with the leave of the
discretion in relation to Rule 7(1) of the High Courts, with the leave of the
Court on good cause shown at the hearing before judgment, as was disputed,
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whereafter the First Respondent’s representative (ENS Inc and / or Mr Jan
Norval) may no longer act unless he satisfies the court that he is authorised
so to act, and to enable him to do so, the court has postponed the hearing of
the action or application to 19 August 2025.
5. The First Respondent’s representative is hereby called upon to prove
that he is authorised to act on behalf of the First Respondent, as alluded to via
email and to the Court.
6. The First Respondent’s representative is also called upon to prove that
he can act in this Honourable Court since he is an attorney and not an
Advocate, via a certificate of admission to the High Court.
7. It is not necessary to deal with the merit aspect as the Court was
already satisfied that good cause has been shown to suspend the matter for
this notice to be served, if it were not so, the Court could have decided
otherwise and proceeded with the hearing on 30 July 2025.’
[5] In response, the first respondent delivered a Power of Attorney in the form of
an affidavit, in terms of which Mr Prince Charles Nonkonyana alleged as follows,
‘6. ENS has been instructed to represent the First Respondent in all
matters relating to the Applicant since his unfair dismissal referral to the
Second Respondent.
7. I, in my capacity as a director of the First Respondent, authorised ENS
to act on behalf of the First Respondent in proceedings before the Second
Respondent; in the urgent application under case number 2025-092237 in this
Honourable Court; and in the present matter.
8. For the avoidance of doubt:
8.1 The First Respondent nominates, constitutes, and appoints ENS, with
power of substitution, as its true and lawful agent and attorney to act in its
name, place and stead, and to perform all acts deemed necessary to
represent the First Respondent in relation to the application instituted by the
Applicant.
8.2 The First Respondent authorises ENS (with power of substitution) to
Applicant.
8.2 The First Respondent authorises ENS (with power of substitution) to
sign all documents on its behalf in connection with the application instituted by
the Applicant, including but not limited to notices.
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8.3 The First Respondent ratifies all actions taken, and to be taken, by
ENS in representing its interests in relation to the Applicant. This includes
ENS’s representation in prior proceedings before the Second Respondent, as
well as in the urgent application under case number 2025- 092237 before this
Honourable Court.’
[6] Attached to such affidavit w as a document alleged to have been the
resolutions taken by the directors of the first respondent in terms of s74 of the
Companies Act, 2008,
‘1. Resolution Number 1: Appointment of ENS as the Company’s
Attorneys of Record
The appointment of ENS as the attorneys of record of the Company
with respect to the Dispute Matters
1 and all other ancillary matters, be and is
hereby noted, accepted and approved.
2. Resolution Number 2: General Authorisation
Any one or more of the Directors (“Authorised Person”), be and are / is
hereby authorised, instructed and empowered to:
2.1 negotiate and settle the terms of, and sign and / or despatch any
document, instrument, certificate, confirmation, deed or notice which may be
incidental or necessary to give effect to these resolutions (“Approved
Documents”);
2.2 be and is hereby authorised to conduct business with ENS on behalf of
the Company;
2.3 amend any of the Approved Documents, including, to the extent
required, to render them unconditional; and
2.4 generally to do all such things and sign all documents and procure the
doing of all things (including the making of all relevant applications, filings and
submissions to governmental bodies, Courts, administrative bodies, agencies,
departments or regulatory, self -regulatory or other authorities or
organisations) as are, in the discretion of the Authorised person, necessary
for or incidental to giving effect to the above resolutions, contemplated herein
and the performance of all acts required thereunder.
1 Previously defined to include the various disputes mentioned by Mr Nonkonyana in his affidavit
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3. Resolution Number 3: Ratification
To the extent that anything referred to in any of the above resolutions
has been done prior to the passing of these resolutions, then the relevant
action (and the relevant conduct of the relevant Directors as the authorised
persons in this regard) is hereby unconditionally and irrevocably ratified,
confirmed and approved.’
[7] In addition, the first respondent delivered a supplementary answering affidavit
in which it addressed the additional relief sought by the applicant in his
Supplementary Notice of Motion.
[8] Dissatisfied with the proof of authority furnished by the first respondent, the
applicant delivered a second Supplementary Notice of Motion (Additional Relief) in
which he prayed for further orders,
‘3. That a rule nisi be issued:
3.7 That the joinder of the Eight Respondent, Nine Respondent, Tenth
Respondent, Eleventh Respondent, Twelfth Respondent and the Thirteenth
Respondent be granted.
3.8 That the Eight Respondent, Ninth Respondent, Tenth Respondent,
Eleventh Respondent, Twelfth Respondent and the Thirteenth Respondent be
declared guilty of fraud.
3.9 That an order of this court in case 2025-092237 be rescinded.’
[9] The parties proposed to be joined were Mr Jan Norval, an attorney of ENS, as
eighth respondent, ENS itself as ninth respondent, and the four individuals who had
signed the resolution provided in response to the applicant’s Rule 7 Notice in their
capacity as directors.
[10] A notice of opposition in which the proposed eighth and ninth respondents
appointed ENS to represent them in the present proceedings was subsequently
delivered on 14 August 2025.
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[11] During the course of the hearing it became apparent that the applicant had
subsequently served two additional documents on the first respondent. The first, of
which this court had sight during the course of the hearing, was a further affidavit
deposed to by the applicant the day before the hearing in which he sought to
supplement his grounds of urgency. The second, the existence of which was drawn
to this court’s attention in the course of the applicant addressing the court in reply,
was a further Rule 7 notice in which the applicant sought to challenge the authority of
ENS to represent both itself and Mr Norval. In view of the fact that neither of those
processes had been filed at court, this court ruled that both would be disregarded.
[12] Before this court may consider the merits of the applicant’s application, two
preliminary issues are to be decided. The first is the question of authority, and the
second is that of urgency.
Authority
[13] Insofar as the issue of authority is concerned, it must be understood that at no
stage on 30 July 2025 or at any time thereafter did this court indicate that ‘good
cause’ existed for ENS to be called upon to establish its authority to act on behalf of
the first respondent. As stated, the applicant raised the issue and this court did no
more than to draw his attention to the appropriate mechanism to be utilised in the
event that he wished to persist with such a challenge. The applicant indicated that
he did and the application was adjourned to afford him such opportunity.
[14] In consideration of the issues raised by the applicant in the affidavit he
deposed to on 13 August 2025, his objections to the first respondent’s ostensible
opposition to his application went far beyond the initial concerns expressed by him
relating to the capacity in which Mr Komane had deposed to his affidavit. In
summary, he argued that:
- Directors do not have the authority to represent a company, the power
- Directors do not have the authority to represent a company, the power
to do so being vested only in its board of directors in terms of s66(1) of the
Companies Act, 2008. As such, the resolution relied upon was defective and
invalid for want of authority on the part of the first respondent’s board.
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- The individuals who held themselves out to be the directors of the first
respondent had not proven who they were who they purported to be, not
having provided any documentary proof that they held such designation.
- The resolution of the directors was not certified.
- The resolution was passed on 11 August 2025, with the result that
there was no proof that Mr Nonkonyana had been authorised to act prior
thereto.
- Mr Nonkonyana failed to provide any proof of his assertion that he had
authorised ENS Inc to represent the first respondent.
- Rule 7 of the High Court Rules requires an attorney to file an existing
Power of Attorney, and not draft a new one. The Power of Attorney was given
on 11 August 2025 in circumstances in which Edward Nathan Sonnenbergs
Inc had already delivered a Notice of Opposition and appeared on behalf of
the first respondent, despite that an attorney is not permitted to act on behalf
of a client without a Power of Attorney.
[15] The relevant parts of Rule 7 are as follows,
‘(1) Subject to the provisions of subrules (2) and (3) a power of attorney to
act need not be filed, but the authority of anyone acting on behalf of a party
may, within 10 days after it has come to the notice of a party that such person
is so acting, or with the leave of court on good cause shown at any time
before judgment, be disputed, whereafter such person may no longer act
unless he satisfied the court that he is authorised so to act, and to enable him
to do so the court may postpone the hearing of the action or application.
(2) …
(3) …
(4) Every power of attorney filed by an attorney shall be signed by or on
behalf of the party giving it, and shall otherwise be duly executed according to
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law; provided that where a power of attorney is signed on behalf of the party
giving it, proof of authority to sign on behalf of such parts shall be produced to
the registrar who shall note that fact on the said power.
(5) …’
[16] The origin of the Rule and its predecessor were explained in Erasmus,
Superior Court Practice,
‘Prior to the amendment of the rule in 1987, the filing of a power of attorney
was necessary whenever a summons was issued. No power was required in
applications because the applicant himself or herself signs the affidavit, or it is
signed on his or her behalf and on his or her authority. Under the amended
rule, powers of attorney need be filed only when an attorney’s authority to act
is challenged by the other party, and in the case of appeals.’
[17] The court in Le Bonheur Wine Estate (Pty) Ltd v Stellenbosch Vineyards (Pty)
Ltd (17111/2021) [2025] ZAWCHC 260 (20 June 2025) seemingly understood the
position to have been that which prevailed prior to 1987,
‘In terms of rule 7, an attorney can only act for a ‘party’ who is properly before
court if the attorney is duly authorised to act by virtue of a valid power of
attorney in its favour. Although rule 7(1) does not make it obligatory for the
power of attorney to be filed at court, the document must nevertheless exist
because a cited defendant may, within prescribed time limits, call on the
attorney to prove his/her authority to act.’
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[18] That court cited no authority for its proposition that a P ower of Attorney must
have existed at the outset. Such proposition is at odds with the wording of s7(1)
itself which requires, if the issue is raised, no more than that the court be satisfied
that the attorney is authorised to act, not that the court be provided with a pre-
existing Power of Attorney. Moreover, this court is not aware of any substantive law
regulating the giving of instructions by clients to their attorneys, nor requiring that
regulating the giving of instructions by clients to their attorneys, nor requiring that
attorneys are permitted to represent their clients as litigants only in circumstances in
2 At paragraph 52
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which a P owers of A ttorney have been executed in their favour. In light of these
issues, this court is respectfully unable to concur with the conclusion reached by the
court in Le Bonheur that the authority of an attorney to act on behalf of a client may
only be established by the production of a P ower of Attorney, executed in favour of
the attorney prior to having placed him or herself on record in litigation on behalf of a
client.
[19] Before this court is a Power of A ttorney, executed on 11 August 2025 in the
form of an affidavit. Absent any evidence contravening the content thereof, there is
no reason for this court to reject that which was evinced thereby:
(1) The first respondent’s Board of Directors resolved, inter alia:
- to appoint ENS as the first respondent’s attorneys of record;
- to authorise any one of its directors to do all things deemed by him or
her to be necessary in relation to the applicant’s various disputes with it; and
- to ratify, unconditionally and irrevocably, anything previously done by
either a director or ENS in relation to the applicant’s various disputes with the
first respondent.
(2) Mr Nonkonyana is a director of the first respondent.
(3) Mr Nonkonyana instructed ENS Inc to represent the first respondent in
both the present proceedings, and those which preceded it.
(4) Mr Nonkonyana executed a written Power of Attorney in which ENS
were authorised to represent the first respondent in all proceedings relating to
the applicant.
[20] In the circumstances, this court is satisfied that Mr Nonkonyana has been
authorised by the first respondent’s Board of Directors to act on its behalf and, to that
end, has instructed ENS to represent the first respondent in the present proceedings
in this court.
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[21] Returning to the applicant’s initial objections to Mr Komone having deposed to
an affidavit on behalf of the first respondent in opposition to his claim, the Supreme
Court of Appeal made it clear in Ganes and Another v Telcom Namibia Ltd 2004 (3)
SA 615 (SCA) that a deponent to an affidavit in legal proceedings need be the holder
of no particular authority,
‘The deponent to an affidavit in motion proceedings need not be authorised by
the party concerned to depose to the affidavit. It is the institution of
proceedings and the prosecution thereof which must be authorised.’3
[22] To the extent that the applicant sought to bolster his argument that ENS could
not have been authorised to represent the first respondent, he referred this court to
s161 of the LRA. That section, however, does no more than identify the capacity of
various individuals who are entitled to appear and represent others in this court and
the fact that a director is permitted to appear on behalf of the company of which he
or she is a director does not preclude such director from instructing a firm of
attorneys to do so.
[23] In consideration of the aforementioned, it is the finding of this court that ENS
is duly authorised to represent the first respondent in these proceedings.
Urgency
[24] The urgency for which the applicant contended was predicated only upon that
part of the relief sought by him in his initial Notice of Motion which related to the
review of the award, his contentions having related to hi s need to be urgently
reinstated to his previous employment by the first respondent.
[25] In this regard, the bases upon which the applicant relied to assert an
entitlement to this court’s urgent intervention related exclusively to the nature of the
work he performed prior to his dismissal, the resumption of which he argued was
critical to his career. The applicant had previously been employed in his capacity as
a Candidate Engineer on the construction of the Mtentu Bridge which, when
a Candidate Engineer on the construction of the Mtentu Bridge which, when
3 At paragraph 19
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completed, is anticipated will be the highest bridge in Africa and one of the longest
man-span balanced cantilever bridge in the world. The applicant asserted,
‘Therefore, if the Applicant’ s unfair dismissal was to remain and not be
expeditiously resolved, the Applicant will lose the unique experience which he
would otherwise be getting and as such, suffer extreme professional and
personal prejudice. If the Applicant receives this experience, the Applicant’s
professional development would exponentially increase not only in South
Africa but in the global labour market. Substantial redress at a later stage will
therefore not be possible as this experience cannot be reversed.’
[26] Whilst it appears that from an engineering perspective work on a project such
as the Mtentu Bridge Project would be interesting and would provide the applicant
with useful work experience, the same could be said of many other jobs in many
other fields of employment . As with many other employees, the applicant was
dismissed by his employer and is prevented from tendering his services until and
unless the decision to dismiss him has been set aside. He challenged the fairness of
that decision by way of arbitration proceedings and, dissatisfied with the outcome of
that process, he has initiated a review application. By all accounts he is in no
different a position than that of many other employees so placed. The applicant’s
desire to return to work on the basis of the nature of the work itself cannot , without
more, serve to elevate his application to one which is required to be determined on
an urgent basis.
[27] In addition to having argued that the nature of the work itself and the benefits
he would derive from participation therein warranted the application being dealt with
on an urgent basis , the applicant asserted that his Constitutional rights to trade and
fair labour practices were being infringed whilst he remained excluded from his
previous employment.
previous employment.
[28] Direct reliance on the right to fair labour practices is impermissible by virtue of
the principle of subsidiarity, explained by this court in Letimile v Cape Town
International Convention Centre Company SOC Ltd (2023) 44 ILJ 1300 (LC),
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‘Succinctly stated, the principle of subsidiarity means that where legislation
gives effect to constitutional rights, it is impossible to go behind that legislation
by relying on the Constitution directly.’
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[29] The applicant’s Constitutional right to freedom to trade is a right unrelated to
the rights which are given effect to in the LRA and would be unaffected by the
principal of subsidiarity (an impediment which will be returned to hereunder). the fact
of his dismissal and his consequent exclusion from the Mtentu Bridge Project does
not infringe that right at all. His dismissal does not and cannot preclude him from
freely exercising his right to trade, for he is at liberty to take up employment
elsewhere. All that has happened is that by virtue of the termination of his contract
of employment, he has been precluded from exercising that right in favour of the first
respondent at a particular place of employment, which facets of employment are
neither guaranteed or protected under the right to freedom to trade.
[30] Moreover, in consideration of the provisions of the LRA which give effect to
employees’ rights to fair labour practices , the LRA which provides, inter alia, that
employees have the right not to be unfairly dismissed and that any challenge to the
fairness of a dismissal must be arbitrated or adjudicated. The right to review a
resultant arbitration award does not give effect to the right not to be unfairly
dismissed, it gives effect to the right to fair and rational administrative action.
[31] To the extent that this court has recognised that the process of review is
required to be dealt with expeditiously, the term ‘expeditiously’ must be understood
within the context of the time periods prescribed in the LRA and the Rules for this
court. The applicant referred this court to two of its own decisions, which he
asserted were authority for his argument that his review application was required to
asserted were authority for his argument that his review application was required to
be dealt with on an urgent basis: Madikizela v CCMA and Others (D382/22) [2024]
ZALCD 42 (7 November 2024) and NEHAWU obo Seloba v Office of the Premier,
Limpopo and Others (2025) 46 ILJ 1244 (LC).
[32] In Madikizela this court restated the principle that the purpose of the LRA is,
amongst other things, the effective resolution of labour disputes, and that the
4 At paragraph 7
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processes established in the LRA are intended to bring about the expeditious
resolution thereof.5
[33] The principles relating to the need to deal with labour disputes in general, and
review applications in particular, without unwarranted delay were explained in
NEHAWU,
‘The purpose of the LRA is inter alia the effective resolution of labour disputes
and the processes introduced by the LRA are intended to bring about the
expeditious resolution of labour disputes. The detrimental implications of
delays are obvious.
This Court has accepted that a review application is by its nature an urgent
application and that it requires prosecution with diligence and urgency. This is
supported by the Practice Manual wherein an applicant, in a review
application, is required to ensure that all the necessary papers in the
application are filed within 12 months of the date of the launch of the
application and where this time limit is not complied with, the application will
be archived and be regarded as lapsed unless good cause is shown as to
why it should not be archived.
This Court and the Labour Appeal Court have considered the status of the
Practice Manual and held that in essence, the manual promoted uniformity
and consistency in practice and procedure and set guidelines on standards of
conduct expected of those who practise and litigate in the Labour Court and it
promotes the statutory imperative of expeditious dispute resolution.
The amendments to section 145 of the LRA, which took effect on 1 January
2015, are specifically aimed at expediting the prosecution of review
applications and inter alia require that an application on review must apply for
a hearing date within six months of launching the review application. A review
application requires urgent prosecution without undue delay.’
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5 At paragraph 13
6 At paragraphs 13 - 16
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[34] Both cases dealt with the failure on the part of the litigants involved to have
complied with the time periods imposed in the Practice Manual, and neither is
support for the proposition advanced by the applicant that review applications are by
virtue of their inherent nature required to be dealt with on the extremely truncated
time frames utilised in the present application.
[35] Both the LRA and the Rules of this court prescribe certain time frames
applicable to review applications. The first of these is to be found in s145(1)(a) of
the LRA which requires review applications to be initiated within a period of six
weeks of the date on which the applicant became aware of the award sought to be
reviewed. S145(5) requires an applicant in review proceedings to apply for a date
for the hearing of the application not later than six months after that date on which
the review application was initiated. Between these two provisions, the Rules
prescribe time frames for the taking of the intervening steps, including a period of
sixty days for the delivery of the record. Whilst this court, the Labour Appeal Court
and the Constitutional Court require review applications to be dealt with
expeditiously, this is not without regard to the time frames which have been
established. The authorities relied on, and others, are support for no more than the
requirement that an applicant in a review application is required to adhere thereto.
[36] In consideration of the grounds upon which the applicant relied to found
urgency, this court does not find that he has made out a case for the application to
be dealt with as a matter of urgency, and the application will accordingly be struck
from the roll.
Costs
[37] Had the application been limited to the review itself, this court would likely
have applied the usual principle that an individual seeking to protect a right will not
be ordered to pay costs if unsuccessful . However, given the evolution of the
be ordered to pay costs if unsuccessful . However, given the evolution of the
applicant’s case, wherein he seeks relief far removed from any which could
conceivably be linked to the preservation of his own rights as an employee, the first
respondent’s argument that his application has been actuated mala fide may be
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found to have some merit. I n view of the fact that the application will be struck from
the roll for lack of urgency, the merits of the applicant’s application are yet to be
decided. In such circumstances, this court is of the belief that the court determining
the application in due course will be best placed to consider the issue of costs in
relation to the factors relevant to such determination in terms of s162 of the LRA .
The costs of the present proceedings will be reserved.
Order
1. The application is struck from the roll for lack of urgency.
2. The costs are reserved for determination by the court determining the
application in due course.
K Allen-Yaman
Judge of the Labour Court of South Africa
Appearances
Applicant:
In person
First Respondent:
Mr I Lawrence with Mr J Norval, Edward Nathan Sonnenbergs Inc