IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D1461/19
Not Reportable
In the matter between:
Department of Social Development Applicant
and
NEHAWU obo D Maputle Ist Respondent
Anna Marie Fourie N.O. 2
nd Respondent
Public Health And Social Development
Sectoral Bargaining Council 3rd Respondent
Heard: 23rd April 2025
Delivered: 2nd October 2025
JUDGMENT
MM Govender AJ
2
INTRODUCTION
[1] This is an opposed application in which the Applicant seeks condonation of its
non compliance with Section 145 (5) of the Labour Relations Act 66 of 1995 (
as amended) ( hereinafter referred to as “the LRA”). The Appl icant also seeks
an order reinstating its Review application which has lapsed due to non
compliance with paragraph 11.2.7/ paragraph 16 .1 of the Labour Court’s
Practice Manual
( hereinafter referred to as “ the Practice Manual”).
The facts set out below do not purport to be a comprehensive summation of the
facts and draws essentially on the agreed statement of facts.
In its Notice of Motion the applicant seeks the following relief :
(i) Condonation of the late filing of its review application;
(ii) Reviewing and setting aside the award issued by Public Health and
Social; Development ( PHSDS) Bargaining council Commissioner Anna
Marie Fourie on 4
th October 2019 under case number PSHS 1041-18/19;
(iii) Pursuant to said order a further order remitting the matter back to the
PHSDS Bargaining Council to be heard de novo before a commissioner
other than commissioner Anna Marie Fourie;
(iv) An order ordering those respondents who oppose the application to pay
the costs thereof jointly and severally, the one paying the other to be
absolved;
(v) Granting the applicant such further relief or alternative relief as the Court
deems appropriate.
BRIEF PRECIS ( as discerned from the papers)
[2] The brief history of the matter is as follows :
(i) The member of the First Respondent ( the employee) Ms. Dibuo
Martha Maputle and shall be referred to as the First Respondent for the
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sake of brevity.
(ii) The first respondent was employed by the applicant as an
Assistant Director: Youth Development at the time that the
Applicant advertised a vacancy for the position of
Director: Youth Development.
(iii) The first respondent applied for appointment to the
position, was interviewed but was not appointed.
(iv) Ms. Kathleen Diblelo Mahlatsi was appointed to the post on
or about the 01°t November 2018.
(v) The First Respondent referred an unfair labour practice
dispute to the PHSDC Bargaining Council. An arbitration
award dated 4th October 2019 was subsequently issued in
favour of the First Respondent.
(vi) The Applicant was ordered to promote the First Respondent
to the post of Director: Youth Development with retrospective
effect.
(vii) The review application was brought together with the
condonation application on or about 10 December 2019.
RELEVANT LAW AND ANALYSIS
[3] The appl icant is required to file its review application wit hin six
weeks
of receipt of the arbitration award from the CCMA. Said review was
filed 13 days late. This is a minor delay and is condoned.
[4] The Labour Practice Manual stipulates strict time line requirements
with regard to Review applications which are regarded to be
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naturally urgent ( Clause 11.2.7 ).
[5] In terms of 11.2.1 - read with Labour Court R ule 7A (6)- records
must
be filed with 60 days of the date on which the Registrar issues its
Rule 7A(5) notice inform ing the applicant that the record is
available
for collection.
[6] Clause 11.2.3 states that i f the applicant fails to file the record
within
the prescribed 60 days the application is deemed to be withdrawn
unless consent has been sought from the respondent or a Judge
grants an extention in chambers.
[7] Clause 11.2.7 goes on to stipulate further that an applicant is
required to ensure that all necessary papers in the application are
filed within 12 months from the date the application was launched.
If said time limit is not met the application will be archived and
regarded as lapsed unless good cause is shown for the removal
from the archives.
[8] A review applicant is urgent by nature and must be attended to
with
requisite regard for the strict time lines established in the Labour
Practice Manual and Rules. This position has been consistently
iterated in several judgements .
[9] The Labour Appeal Court in E Tradex (Pty) Ltd T/A Global Trade
Solution v Afzal Finch
1 said in referring to the Labour Practice
Manual archiving rules and specifically to clause 16.3 “ Where a file
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is placed in archives, it shall have the same consequences as to
further conduct by any respondent party as to the matter being
dismissed.
The judgement went on to state in referring to archiving
that “ it must therefore follow that the archived case acquires a
peculiar status which requires the delinquent party to justify why it
should be reinstated and thereafter be entertained by a court in the
wake of the lack of expeditious prosecution.”
[10] This is an emphatic enunciation of the importance and urgency of
court processes and the associated time periods in relation to
Review applications and any consequential reinstatement or revival
application to retrieve a lapsed or archived review application.
[11] Parties (the applicant in particular) are therefore on ‘ notice’ to
manage review applications with the requisite diligence .
[12] If they fail to do so they will face the onerous consequences
of non compliance.
ANALYSIS
[13] The Registrars Rule 7A(5) notice was issued on 4
th February 2020.
The records were therefore required to be filed by 30th April 2020 in
terms of Rule 7A(6).
[14] An examination of the filing stamp indicates that Volume 1 of the
record was filed on 7
th September 2020. Volume 2 of the record
was
filed on 11th September 2020.
[15] I note that the first respondent has argued that Volume 2 was
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served
and filed on 8 th August 2022. This might well be the day it was
served
even though it had been filed earlier.
In the circumstances V olume 1 was 69 days late and V olume 2
was
74 days late.
[16] The applicant is also in breach of Rule 11.2.7. of the Labour
Practice
Manual. In terms of this rule all the Review papers were required
to
be filed within 12 months of the date on which the Review
application was launched by the applicant.
[17] The Review application was launched on 10
th December 2019.
The
review papers were therefore required to be filed by 10th
December
2021. Said papers were filed approximately 2 years late.
[18] A failure to meet the time periods stipulated in the Labour Practice
Manual in either Rule 11.2.2 or Rule 11.2.7 will result in the
archival
of the review application and may only be revi ved with a
successful
reinstatement application.
[19] Both Rules have to be complied with.
[20] It is trite that a reinstatement application is akin to a condonation
application.
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[21] The factors - not purported to be a conclusive list - but generally
considered are:
(a) Length of the delay
(b) Explanation for the delay
(c) Prospects of success ( in the main action)
(d) Prejudice to the parties and
(e) Interests of Justice
[22] For a considerable period the ‘ locus classicus’ on condonations
was the judgement in Melane v Santam Insurance Company Ltd
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The word ‘conspectus’ used in the judgment has peppered many
condonation rulings and judgements thereafter and perhaps rightly
so . Courts are required to balance an overview of factors in
applying
its discretion in determining its decision. An excellent explanation
for
the delay may for instance counterbalance a lengthy delay.
[23] Our apex court in Grootboom v NPA and another 3 in referring to
the judgement of Zondo J (as he was then) said that the standard
for considering an application for condonation is the “ Interests of
justice” thereby emphasizing the over arching importance of the
interests of justice.
Length of the delay
[24] Rule 11.2.3 of the LPM rules stipulates that the recordings must be
filed within 60 days of the Registrars Rule 7 A (5) notice.
Volume 1 : 7
th September 2020 / 69 days late
Volume 2 : 11th September 2020/ 74 days late
[25]. In relation to its compliance with the 12 month rule 11.2.7 the
applicant is approximately two years late.
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Explanation for the delay
[26] The applicant has not indicated its clear concession that its
recordings were filed in breach of Rule 11.2.2 and 11.2.3 of the
Practice Manual. In its H eads of Argument the applicant at point
4.1
suggests somewhat spuriously that it had met the requirements of
the 60 day rule.
[27] The Registrars 7A(5) notice is dated 4
th February 2020.
The court stamp on Volume 1 of the recordings is 7th September
2020.
The court stamp on Volume 2 of the recordings is 11th September
2020.
Days are defined in the Labour Practice Manual to exclude
weekends and public holidays and excludes the first day but
includes the last day.
Volume 1 was 69 days late.
Volume 2 was 74 days late
[28] In relation to compliance with rule 11.2.7 of the Practice Manual the
applicant says at point 4.2 of its Heads of Argument that it has met
the 12 month time period. This is not correct.
[29] In its Founding affidavit the applicant’s attorneys says that its
Counsel alerted it to the likely archival of the review application -
and
believed that the Registrar or Judge would in line with a practice
directive inform that applicant that the matter had been set down.
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Prospects of success ( in the main action)
[30] At Clause 5 of its Heads of Argument the applicant indicates its
prospects of success in the Review application as follows;
(i) The arbitrator committed a gross irregularity in the conduct of
the proceedings;
(ii) the arbitrator committed misconduct in relation to her duties as
an arbitrator;
(iii) The arbitrator exceeded her powers;
(iv) The arbitrator misconveived her mandate;
(v) The arbitrator misunderstood the ULP onus or burden of proof
in
that she placed the onus on the applicant rather than on the
respondent ( Ms Maputle) and used the incorrect standard of
proof;
[31] The applicant’s averments in (i) to (iv) above is generic and
unsubstantiated. Its response to point (v) is not convicing . It is trite
that the employee carries the onus in a unfair labour practice
dispute
however this not a static onus .
[32] Once the employee has shown that an unfair act or omission has
occurred the onus shifts to the employer to rebut the allegation. I
accept that the arbitrator may well have used the words ‘ prima
facie’
to describe the initial onus borne by the first respondent.
Prejudice to the parties
[33] The applicant alleges that the first respondent will not suffer any
‘demonstrable or conceivable’ prejudice. The respondent however
reminds this court convincingly of severe prejudice in that
she has been denied the benefit of the remuneration and relief
granted in the arbitration award for a period of approximately five
10
years.
Interests of Justice
[34] The applicants averment is that it is in the interests of justice to
allow
the ventilation of the issues. However given the ongoing prejudice
suffered by the respondent it cannot be in the interests of justice to
indulge the tardiness of the applicant to the detriment of the first
respondent.
[35] The applicant has not dealt definitively with its fai lure to comply
with
Clause 11.2.2 and 11.2.3 of the Practice Manual. Its response is
circuitious and vague.
[36] The applicant also seems to conflate the distinct time line
stipulations
of clause 11.2.3 and 11.2.7.
[37] In its papers the applicant raised issue with the alleged failure of
the first respondent to file its answering affidavit on time but did not
explain the impact that said ‘ alleged ‘ failure had on its own failure
to meet its time line obligations.
[38] The respondent disputes said breach but more significantly said
issue is not significant to the applicant’s non compliance
with Clause 11.2.7.
[39] The conduct of the applicant is a study of consistent disregard of
the
rules of this court.
[40] The applicant seemed to have responded and contacted the
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Registrar only when the applicant sought an order to certify and
enforce the arbitration award.
[41] The applicant filed its Review late. It did so only it would seem
after the Sheriff served execution proceedings on the applicant .
The
applicant then responded with an application to stay the
enforcement
of the award.
[42] The applicant is in significant breach of clause 11.2.2 the ‘ 60 day
rule’ without proper explanation for its delay save to suggest that its
internal processes work slowly. By its own admission the applicant
was alerted into action by its Counsel .
[43] The applicant breached 11.2.7 again without proper explanation for
its delay of approximately 2 years.
Clause 11.2.7 is clear and instructive . The applicant is required to
have ‘ its whole house in order ‘ within the 12 month period.
[44] Given the significant delay the applicant has failed to provide a
convincing explanation for said delay.
[45] The undue and unwarranted delay is prejudicial to the first
respondent.It is noted that the arbitration award in favour of the
first respondent was Issued on 4
th October 2019.
[46] The first respondent has suffered an immense degree of prejudice
and was entitled to a speedy determination of this matter.
[47] The applicant has also failed to provide a proper enunciation of its
prospective merits. It representations are vague.
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Poor merits can sometimes in itself halt the enquiry
[48]. This principle was affirmed in Colett v CCMA 4 and others in which the LAC
held:
There are overwhelming precedents in this Court, The SCA and the
Constitutional Court that where there is a flagrant or gross failure to comply
with
the rules of Court
Condonation may be refused without considering the prospects of success.
[49] It follows therefore that the reinstatement application cannot
succeed.
[50] This court notes the effective date 17
th July 2024 of the Labour
Appeal Court judgment in
Gololo v Limpopo Department Economic Development
Enviroment and Tourism and Others 5 with regard to application
of
the new rules relating to the Registrars archiving notice.
COSTS
[51] Costs are dealt with in S162 of the LRA
… when deciding whether or not to order the payment of costs the
Labour Court may take into account –
..(b) the conduct of the parties –
(i) In proceeding with or defending the matter before the Court
and
(ii) during the proceedings before the Court.
(3) The Labour Court may order costs against the party to the dispute
or against any person who represented that party in those
proceedings before the Court
[52] The applicant referred to the Constitutional Court decision in Zungu
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v Premier of the Province of KZN and Others 6 in which Zondo
JP explained the Labour Courts position on costs.
“The rule of practice that costs follow the result does not govern the
making of costs orders in this court. The relevant statutory provision
is to the effect that orders of costs in this court are to be made in
accordance with law and fairness…”.
[53] In this matter the persistent - and consistent - substandard
management of this application by the applicant suggests that it is
fair to award the respondent costs.
ORDER
(a) The late referral of this review application is condoned.
(b) The Reinstatement application is refused with Costs.
________________________
MM Govender
Acting Judge of the Labour Court of South Africa
Appearances
Applicant : Adv BS Mene SC and Adv AIB Lechwano
Instructed by the State Attorneys office Bloemfontein.
1st Respondent : Mr M Maraka NEHAWU
_________________________________________________________
1. 2022 (43 )ILJ LAC
2. 1962 (4) SA531 (A) 532 C-E
3. 2014 35 ILJ 121 CC
4. 2014 ZALAC 1
5. JA80/2024 [2025] ZALAC 30
6. 2018 ZACC 1
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