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IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO: JR834/19
In the matter between:
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant
And
SOUTH AFRICAN MUNICIPAL WORKERS UNION
(SAMWU) OBO ERNEST MUKHITHI First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (SALGBC) Second Respondent
NTSHENGEDZENI MUNYAI N.O Third Respondent
Heard: 05 June 2025
Delivered: This judgment was handed down electronically by circulation to the
Applicant and Respondents’ Legal Representatives by email,
publication on the Labour Court website and release to SAFLII. The
date and time for handing - down is deemed to be 14 h00 on 7
October 2025.
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JUDGMENT
LALLIE J
[1] Section 145(1) of the Labour Relations Act 1 (the LRA) grants a party to a dispute
in arbitration proceedings held in terms of the LRA the right to apply to this court
for an order reviewing and setting an arbitration award aside. The applicant
launched this application to have its review application reinstated, it having been
deemed withdrawn and lapsed as envisaged in clause 11.2.3 and 11.2.7 of the
Practice Manual (the Practice manual) which regulated the conduct of
proceedings at the Labour Court when the application was brought, owing to the
applicant’s delay in executing the review application. The applicant’s case is
mainly based on the failure of the second respondent (the bargaining council) to
perform its statutory duty of generating a full record of the arbitration proceedings
and filing it with the registrar of the Labour Court when requested by an applicant
for review. The application is opposed by the first respondent on the basis that
the applicant failed to show good cause to have its non- compliance with the
provisions of the Practice Manual condoned.
[2] The facts relevant to this matter are that the individual first respondent who will
be referred to as the first respondent in this judgment was employed by the
applicant as an administrative officer in its revenue management division. He
was dismissed for corruption on 13 August 2014. With the assistance of his trade
union, SAMWU, he referred an unfair dismissal dispute to the bargaining council
1 66 of 1995, as amended.
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against the applicant. In an arbitration award dated 8 February 2019, the third
respondent, a cting under the auspices of the bargaining council issued an
arbitration award in which he found the first respondent’s dismissal substantively
and procedurally unfair and ordered the applicant to reinstate him. On 25 April
2019, the applicant launched an application for review and sought an order
reviewing and setting the arbitration award aside.
[3] When the review application was filed review applications were regulated by rule
7A of the Rules for the Conduct of Proceedings in the Labour Court which will be
referred to as the old rules in this judgment as they have been repealed. Review
applications were also regulated by the Practice Manua l of the Labour Court of
South Africa (the Practice Manual) which has similarly been repealed. Both
prescripts will be relied upon in the determination of this application because the
review application was launched before they were repealed.
[4] Rule 7A(2)(b) required an applicant for review to call upon the bargaining council
to dispatch, within 10 days after receipt of the notice of motion, to the registrar of
this court a record of the arbitration proceedings sought to be reviewed. Rule
7A(3) required the bargaining council to dispatch the record timeously. Rule
7A(6) required the applicant for review to furnish the registrar and each party with
a copy of the record. Clause 11.2.2 of the Practice Manual required the applicant
to file the record within 60 days of being advised by the registrar that the record
had been received from the bargaining council. Clause 11.2.3 provided that non-
compliance with clause 11.2.2 would result in the review application being
deemed to have been withdrawn by the applicant. Clause 11.2.7 of the Practice
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Manual provided that because of the urgent nature of a review application, an
applicant had to ensure that all the necessary papers were filed within 12 months
of the date of the launch of the application and the registrar had been informed in
writing that the application was ready for hearing. Failure to comply with clause
11.2.7 resulted in the lapsing of the review application and the archiving of the
file. The remedy for a review application which had been deemed withdrawn or
lapsed is an application for the reinstatement of the application in which the
applicant has to show good cause why the non-compliance should be condoned.
[5] As the reinstatement application is a condonation application, the relevant test for
its adjudication is expressed in Grootboom v NPA
2. The Constitutional Court re-
affirmed that the standard for determining a condonation application is the
interests of justice. It decoded the interests of justice as follows:
“[22] I have read the judgment by my colleague Zondo J. I agree with him that,
based on Brummer and Van Wyk, the standard for considering an application for
condonation is the interests of justice. However, the concept “interests of justice”
is so elastic that it is not capable of precise definition. As the two cases
demonstrate, it includes: the nature of the relief sought; the extent and cause of
the delay; the effect of the delay on the administration of justice and other
litigants; the reasonableness of the explanation for the delay; the importance of
the issue to be raised in the intended appeal; and the prospects of success. It is
crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate
determination of what is in the interests of justice must reflect due regard to all
the relevant factors but it is not necessarily limited to those mentioned above.
2 [2014] 1 BLLR 1 (CC) at para 22.
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The particular circumstances of each case will determine which of these factors
are relevant.”
[6] The nature of the relief the applicant seeks is leave to pursue its review
application. In explaining the extent and cause of the delay the applicant
submitted that it filed the review application on 25 April 2019. The bargaining
council delivered the record at the office of the registrar on 24 June 2019. The
applicant transcribed the record, served and filed it on 5 and 7 August
respectively. It transpired that a portion of the record was missing and the parties
reconstructed it on 7 February 2020. On 12 February 2020 the applicant received
the portion of the record that had been outstanding. It had it transcribed and
delivered on 2 July 2020.
[7] The first respondent’s main grounds for opposition are that the applicant failed to
show good cause to have its no- compliance with the provisions of the Practice
Manual condoned. It submitted that the applicant failed to prosecute the review
application diligently and further failed to comply with the numerous extensions it
granted. It was the first respondent’s contention that the applicant’s 61 day delay
is excessive and the applicant left parts of the delay unexplained. It relied on
Grootboom (supra) where the Constitutional Court re- affirmed the need to give a
full explanation for the entire period of lateness. The first respondent also relied
on Aspen Holdings (Pty) Ltd v Motebang Phelane
3 in support of its argument that
prospects of success may be disregarded when the applicant has failed to
provide a reasonable explanation for the delay.
3 [2025] 4 BLLR 409 (LAC).
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[8] The applicant relied on the nature of the application before me. It submitted that it
is its attempt to have its review application reinstated so that it can be heard and
determined on its merits. The significance of seeking leave for the review
application to be heard is that the applicant is of the view that the arbitration
award has a defect as envisaged in section 145(1) of the LRA. Its hearing will
afford this court an opportunity to correct the defect and have the award
substituted with a reasonable one.
[9] I accept the applicant’s submission that the nature of the application weights in
its favour. The applicant is a shere of government. It has a constitution duty to
provide an accountable government for its community. It is funded by the f iscus.
Public policy requires that it be afforded an opportunity to challenge an arbitration
award that has the effect of erroneously ordering it to reinstate an employee who
was dismissed for corruption. It also promotes every effort of eliminating
corruption from the civil service. I have taken into account the f irst respondent’s
argument that prospects of success should be disregarded because of the
applicant’s failure to give a full explanation for the delay. I am not convinced that
its argument is correct. In Grootboom (supra) it was held that the circumstances
of each case will determine the relevant factors. The circumstances of this case
require that prospects of success be considered because of the nature of the
employer party as well as the reason for the indivi dual first respondent’s
dismissal. The applicant submitted that it has reasonable prospects of success
on review because part of the material evidence the arbitrator failed to consider
was that the individual first respondent asked his colleague to manipulate its
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system in the process of committing the corruption he was dismissed for. The
review application may succeed should the allegation be proved. The prospects
of success are reasonable and may not be disregarded.
[10] I accept the applicant’s argument that it will suffer more prejudice than the first
respondent should this application be refused because it will be denied the
opportunity of challenging an arbitration award which may be unreasonable. The
consequences of the denial would be that the applicant will be compelled to
reinstate a corrupt employee, not to its detriment only but to that of the public.
[11] The totality of the evidence before me supports the applicant’s version that the
61 day delay in filing the record does not justify denying the applicant its
constitutional right to have the review application heard. Any prejudice the
individual first respondent will suffer as a result of the delay can be addressed by
an appropriate order. I need to add that part of the delay in the prosecution of this
review application resulted by the bargaining council’s failure to keep and provide
the record of the arbitration proceedings when called upon to do so.
[12] The applicant has given reasonable explanation to have its non- compliance with
the provisions of the Practice Manual condoned. The delays cause by the legal
representatives whose services it enlisted did not reach a stage which required
that they be imputed on it. Further, when all the relevant factors are taken into
account those in favour of the applicant outweigh the factors against it. I
therefore find that the applicant has shown good cause to have the non-
compliance condoned.
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[13] The parties have a continuing relationship. A costs order against the first
respondent will therefore not be appropriate.
[14] In the premises, the following order is made:
1. The application for the reinstatement of the review application is granted.
2. There is no order as to costs.
MZN Lallie
Judge of the Labour Court of South Africa
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Appearances
For the Applicant: Advocate K. Ramarumo
Instructed by Marivate Attorneys In
For the First Respondent: Advocate X. Hilita
Instructed by Tati Attorneys Inc