THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR319/20
In the matter between:
JOHANNES ADRIAAN VAN NIEKERK Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
NONHLAHLA DUBAZANE NO Second Respondent
SIBANYE STILLWATER (DRIEFONTEIN) Third Respondent
Heard: 25 September 2025
Delivered: 6 October 2025
JUDGMENT
HEIDEMAN, AJ
Introduction
[1] This is an application to revive the review application brought by the applicant.
The Applicant’s review application is deemed to have been withdrawn in
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terms of Item 11.2.3 read with Item 11.2.2 of the Practice Manual ,1 given that
the Applicant failed to file the Record within 60 days of it having become
available, and failed to make an application to the Judge President for an
extension of time.
[2] In the present proceedings, the Applicant seeks condonation for the late filing
of the record and to have his review application revived.
[3] At the hearing, the A pplicant failed to appear. In the ordinary course, the
proper order would be to strike the matter from the roll. The T hird
Respondent, however, requested that I make the extraordinary order of
dismissing the A pplicant’s application. It is only this issue that now requires
determination.
Non-appearance of the Applicant
[4] Mr Kent, on behalf of the Third Respondent , submitted that it would be in the
interests of justice that the A pplicant’s application be dismissed, given that
this review application has been ongoing for many years and the Applicant
himself has failed to take an interest in his own matter. This is already an
application to revive a review application which has been deemed to be
withdrawn, and it is prejudicial to the Third Respondent to allow the matter to
linger before the courts. Mr Kent also submitted that the application has low
prospects of success , given that there was a substantial delay in filing the
Record.
[5] The relevant timeframes are as follows:
5.1 The review application was brought on or about 17 February 2020.
5.2 On 4 March 2020, the Registrar of this court notified the Applicant that
the Record was available.
5.3 The Record ought to have been filed by 5 June 2020.
1 Practice Manual of the Labour Court of South Africa, effective 2 April 2013, repealed with effect from
July 2024.
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5.4 The Record was filed on 18 August 2020 and served on the Third
Respondent’s attorneys via email on 21 August 2020 (although the
Third Respondent’s attorneys insisted that a hard copy be served).
5.5 The Third Respondent filed its answering affidavit on 25 November
2020.
5.6 The Applicant’s Notice in terms of Rule 7A(8) 2 and replying affidavit
were delivered on 4 March 2021.
5.7 This reinstatement application was delivered on 5 May 2021.
[6] A more detailed timeline is given in the Third Respondent’s opposing papers
and need not be repeated here in full. Suffice it to say for present purposes
that the Applicant has taken a lackadaisical approach to the timeframes
imposed by the Rules of this court and has required prompting and insistence
from the Third Respondent in order for this matter to be heard.
[7] At the hearing, Mr Kent also handed up a Notice of Withdrawal as Attorneys
of Record from the Applicant’s erstwhile attorneys dated 19 September 2025,
as well as correspondence from them. The correspondence indicates that the
Applicant’s erstwhile attorneys of record were withdrawing because they could
not locate the Applicant in order to take instructions.
[8] What is clear from this correspondence is that it seems unlikely that the
Applicant himself has received the Notice of Set Down. It is also clear that the
Applicant is now unrepresented.
[9] What is not before this court is the Applicant’s explanation for why he has
been uncontactable by his attorneys. While it is not for this court to speculate,
there remains the possibility that there could be a reasonable explanation for
the Applicant’s absence.
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.
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Conclusion
[10] The frustrations of the Third Respondents in these proceedings are
understandable. However, were this application to be dismissed, it would
effectively preclude the Applicant from pursuing the review application at a
future date without having had the opportunity to apply for condonation or
explain his absence at the hearing of this application.
[11] While this application was brought in terms of the old Rules of the Court , the
new Labour Court Rules provide an appropriate remedy for cases such as
these. Rule 45(1) states as follows:
‘If a matter is struck off the roll because a party who initiated the proceedings
was not present, the matter may not be re-enrolled without that party having
provided the court with a satisfactory explanation, under oath or affirmation,
for the failure to attend court.’
[12] This Rule strikes a balance between the competing interests described above:
it provides peace of mind to the Respondents that they will not needlessly and
repeatedly be dragged before this court by a nonchalant Applicant, whilst at
the same time not closing the doors of justice to an Applicant who may have
legitimate reasons for his non-appearance.
[13] In light of the above, the following order is made:
Order
1. The matter is struck off the roll.
2. The Applicant must provide this court with a satisfactory explanation for
his non- appearance before court on 25 September 2025 by way of
affidavit before the matter may be re-enrolled for hearing.
_______________________
VJ Heideman
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant:
Instructed by:
For the Respondent: J Kent
Instructed by: Solomon Holmes Attorneys