THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1875/24
In the matter between:
DYPUSA obo MAHLALELA AARON AND 4 OTHERS Applicant
and
COMMISION FOR CONCILIATION MEDIATION
ARBITRATION First Respondent
AMOS MTHIMUNYE N.O Second Respondent
GLS SUPPLY CHAIN EQUIPMENT (PTY) LTD Third Respondent
Heard: 29 August 2025
Delivered: 08 September 2025
JUDGMENT
BALOYI, AJ
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Introduction
[1] This matter made its way to the roll through a directive made by the learned
Judge in chambers on 18 June 2025, which reads as follows
‘Matter to be enrolled on the unopposed roll for determination of the
extension application.’
[2] The directive followed a series of events that took place within the confines
of Rule 37(13) to Rule 37(17) 1. The applicant is a trade union acting on behalf of its
members who are former employees of the third respondent.
[3] On reali sing that it would not be in a position to file the record within 60
days, the applicant’s attorneys wrote to the third respondent’s attorneys to request
consent for an extension of the time period within which the record must be filed. The
consent was refused. The applicant filed an application for extension for the Judge
1 GN 4775 of 2024: Rules Regulating the Conduct of Proceedings of the Labour Court . Rule 37
provides that:
‘…
(13) The applicant must furnish the registrar and each of the other parties with a copy of the
record or portion of the record, as the case may be, and a copy of the reasons filed by the person or
body; provided that, should it transpire that the person or body upon whom a notice of motion is
served in terms of subrule (2) has failed to deliver a complete record, the 60- day period contemplated
in subrule (14) will commence running only once a complete record has been delivered.
(14) Transcribed records must be delivered within 60 days of the date on which the applicant is
advised by the registrar that the record has been received.
(15) If the applicant fails to file a transcribed record within the prescribed period, the applicant
will be deemed to have withdrawn the application, unless the applicant has during that period
requested the respondent’s consent for an extension of time and consent has been given. Any
consent given must be expressed in writing and filed with the registrar.
consent given must be expressed in writing and filed with the registrar.
(16) If consent is refused, the applicant may, on notice of motion supported by affidavit, apply
to the Judge President in chambers for an extension of time. The application must be accompanied
by proof of service on all other parties, and answering and replying affidavits may be filed within the
time limits prescribed by rule 35.
(17) The Judge President will then allocate the file to a judge for a ruling, to be made in
chambers, on any extension of time that the respondent should be afforded to file the record.’
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President’s consideration. The third respondent opposed the application. Now the
matter serves before this Court as per the directive above.
Background
[4] The review application was filed on 17 November 2024. The Registrar
informed the applicant that the record was available to be uplifted on 5 November
2024. The 60- day period, counting from 6 November 2024, expired on 5 March
2025. The applicant was facing financial difficulties and was unable to fund the
transcription of the record. On 4 March 2025, the applicant requested an extension
from the third respondent, and the third respondent’s response, conveyed on 5
March 2025, was negative. The third respondent’s reason for the refusal was mainly
that the review application was meritless and frivolous.
[5] The applicant was, therefore, compelled to file this application on 29 April
2025. The applicant specifically requested an extension for filing the record until 30
August 2025 and also sought an extension to file the supplementary affidavit by 16
September 2025.
[6] When this application was heard on 29 August 2025, it was brought to the
Court’s attention that the applicant had filed the record on 12 August 2025.
[7] The third respondent , nonetheless, persisted with opposing the application
and moved for dismissal of the review application with costs. Central to the third
respondent’s opposition is the contention that the review application is deemed to
have been withdrawn by the applicant as the attempts to secure consent for
extension were carried out after the expiry of 60 days . The applicant disputed this.
The matter had to be stood down to enable the parties to conduct the counting ,
which commenced on 5 November 2024, when the Registrar invited the applicant to
uplift the record. The third respondent submitted that it did not have sight of the
Registrar’s notice prior to its Counsel’s appearance before the Court. The content of
the notice was not placed in dispute.
the notice was not placed in dispute.
[8] After the counting, it transpired that the consent was actuall y sought within
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the 60 days . The third respondent nevertheless persisted with its view that the
review is deemed to have been withdrawn , albeit for a different reason. W hen the
60-day period expired, the applicant had not filed the extension application, so
argued the third respondent.
[9] The issue which this Court is called upon to determine shifted to whether
the application for extension complies with the aforesaid part of the rules. If found not
to be compliant , the review application will certainly be deemed withdrawn. If found
to be compliant , the Court will proceed with the determination of the application for
extension. The Court is also alive to the fact that pleadings are yet closed , and it
would be premature to determine this matter as if it were a review Court.
Evaluation
[10] The third respondent’s opposition is essentially calling upon the Court to
interpret Rule 37( 5). The rule clearly pr ovides that the consent must be secured
within the 60 days . The application before the Judge President becomes relevant
only when the consent is refused. Rule 37(17) does not prescribe that the application
must be filed within 60 days. It has to be accepted that the crafters of the rules had in
mind that such an application should be filed within a reasonable time. The crafters
of the rules have realistically foreseen the possibilities of the filing of extension
applications outside the 60- day period based on varying circumstances of each
case. It is not the third respondent’s case that the application for extension was filed
after an inordinate delay and that the applicant had not explained such delay.
[11] On this note, this Court finds the third respondent's opposition meritless
and inducing technicalities that go against the intentions of the rules that review
applications are to be dealt with expeditiously. The applicant’s initiation of the
extension process by sending a letter seeking consent from the third respondent
extension process by sending a letter seeking consent from the third respondent
certainly bears an interruptive effect on the running of the 60 days . T he review
application cannot be deemed withdrawn after the expiry of 60 days, while the
extension process, either by co nsent or application before the Judge President , is
still unfolding. In this matter, t here is no need for the applicant to seek the
reinstatement of the review application. With the record already filed at the time of
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determination of this application, it will not be in the interest of justice to refuse the
extension that was requested prior to its filing. Extension for the filing of the record
and the supplementary affidavit should accordingly be granted.
Costs
[12] The third respondent stuck to the opposition of this application, despite
being fully aware that the record had been filed. It can only be inferred that the third
respondent intends to invoke all technical means to delay the hearing of the review
application. This conduct should be discouraged. The Court acknowledges that the
opposing party in the review application has a right not to consent to extension ;
however, if the opposing party unreasonably refuses the consent , the Court should
not hesitate to visit the party in question with a cost order.
[13] This application was filed under the circumstances in which the applicant
was facing financial difficulties to fund the record and disclosed its predicament to
the third respondent . The third respondent elected not to appl y its mind to the
applicant’s request and rushed to rely on the reason that bore no relevance to the
applicant’s request by stating that the review application is frivolous. This clearly
demonstrates that the consent was unreasonably refused. This refusal does not
advance the spirit of speedy resolution of the review application. I n fact, it creates a
bar to a fellow litigant's access to the Court. This is one case where the cost order is
justifiable against the third respondent. The exceptional circumstances calling for the
cost order against the third respondent are established.
2.
[14] In the premises, the following order is therefore made:
Order
1. The extension for the filing of the record post the expiry of 60 days is
2See: Member of the Executive Council for Finance, KwaZulu- Natal & another v Dorkin NO & another
(2008) 29 ILJ 1707 (LAC) at para 19 and Zungu v Premier of the Province of KwaZulu- Natal & others
(2018) 39 ILJ 523 (CC) at para 26.
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granted.
2. The applicant is to file a notice in terms of Rule 37(20)(a) or 37(20)(b) by no
later than 16 September 2025.
3. The third respondent to pay the cost of this application.
MM Baloyi
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant: Adv C Mathonsi
Instructed by: Khomola Attorneys
For the third respondent: Adv N Wagemaker
Instructed by: William Berry Attorneys