IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D802/21
Not Reportable
In the matter between:
Dept of Home Affairs Applicant
and
General Public Service Sectoral Bargaining Council Ist Respondent
Vusumuzi F Mthethwa N.O. 2nd Respondent
Pawusa obo Fortesque Mntungwa Bhengu 3rd Respondent
Heard: 23rd April 2025
Delivered: 10th October 2025
JUDGMENT
MM Govender AJ
2
INTRODUCTION
[1] In its N otice of Motion the applicant indicates that it finds itself in a vexed
position.
A significant part of the disciplinary record is lost and cannot be reconstructed.
Its Review application has lapsed and is deemed to be withdrawn in terms clause
11.2.3 of the Practice Manual. It is onl y when said application is successfully
reinstated will this Court acquire the jurisdiction to hear its Review application and
the further relief that its seeks.
[2] In its Notice of Motion the applicant indicates the relief it seeks as follows :
(a) Condonation of the late filing of this application.
(b) The setting aside of the award issued by the third respondent under case
number GPBC2952/2015 dated 11 October 2021 dated 11 October 2021.
(c) Substitution of said award with an award declaring :
(i) The Third respondents dismissal was substantively and procedurally
fair;
(ii) The Applicant is not liable to reinstate the third respondent and is not
liable to pay back pay to the third respondent;
(d) Alternatively, the matter be and is hereby referred to the first respondent for
arbitration de novo before another commissioner.
(e) The enforcement of the arbitration award be s tayed pending the final
determination of this application.
(f) Costs against such party opposing the application.
(g) Further and/or alternative relief.
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THE CONDONATION APPLICATION
[3] 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
Length of the delay
[4] The applicant was required to have filed its review application with in
6 weeks of receipt of the award.
The award is dated 11 October 2021. It was served on the applicant on
20 October 2021.
The review therefore should have been filed on 30 November 2021.
The application was filed on 31 January 2022.
With the exclusion of ‘ dies non’ ( days on which the courts are closed
during the December/January period ) the application was 30 days late.
[5] This is not a insignificant delay but it is not substantial.
4
Explanation for the delay
[6] The applicant has present ed a lengthy explanation relating to the
slow pace at which process proceeds in its departments excacerbated
by an internal miscommunication. It states f urther that the application
was already out of time even when it was referred to the State Attorney
for attention.
Prospects of success ( in the main action)
[7] The charges levelled at the third respondent relate to allegations of
birth certificate fraud.
The Applicant briefly believes that it has good merits because the
allegations are linked to the third respondent’s password/user code.
The respondent on the other hand believes that the merits are not good
-as evinced by the arbitration award issued by the second respondent.
It is of the view that the processes with user codes and passwords was
so unstructured that it was highly possible ( and prevalent it alleges) for
said codes to be used interchangeably amongst staff.
Prejudice to the parties
[8] The applicant avers that no significant prejudice w ill emanate from
the condonation of this application.
The respondent reminds the court that the very lengthy delay is to the
extreme prejudice of the third respondent
Interests of Justice
[9] The allegations in this matter are very serious. They relate to birth
certificate fraud.
5
EVALUATION
[10] For a considerable period the ‘ locus classicus’ on condonations
was the judgment in Melane v Santam Insurance Company Ltd
1
The word ‘conspectus’ used in the judgment has peppered many
condonation rulings and judgments 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.
[11] Our apex court in Grootboom v NPA and another
2 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.
[12] Compliance with the rules of this court are required to be strictly
complied with. This point has been enunciated in many judgments.
Including that of the judgment of the LAC in E Tradex Ltd t/a Global Trade
Solution v Finch and Others
3
[13] This principle has been affirmed consistently. In Colett v CCMA 4 and others
for instance in which the Labour Appleal Court 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.
[14] The primary directive is to counterbalance the factors indicated
above and then be directed by the primary importance of the Interests of
6
Justice.
[15] The delay is not substantial and it is accompanied by a
explanation that is fairly reasonable in the circumstances . This court
notes the delay but also notes the significant interest of justice
consideration.
The allegations are extremely serious in that they relate to birth
certificate fraud linked to the password assigned to the third
respondent.
[16] Condonation is granted.
[17] The second aspect of relief sought by the applicant relates to a
review and setting aside of the arbitration award issued by the second
respondent.
[18] The fundamental issue however is that a significant part of the
record is not available for scrutiny due to a purported failure of the
arbitrator to record said evidence. It is quite clear also that the missing
evidence cannot be reconstructed in any way tha t will ensure the
accuracy and integrity of said evidence.
[19] This section of the evidence relates to crucial witness evidence
including the crucial evidence of the third respondent.
[20] There are a few avenues open to this court - in these fairly vexed
circumstances- in determining the relief sought with regard to the
Review application .
[21] The LAC decision in The M inister of Police v Police and
Prisons Civil Rights Union( POPCRU) obo Senti and Others
5 is on
point and instructive.
7
[22] An essential part of the record is unavailable .
inaudible or otherwise incomplete records are usually ascribed to faulty
recording systems - often corrected with smart technological
intervention that succeeds in restoring the essential integrity of the
recording .
[23] The issue in this matter is far more serious and beyond the reach
of any such intervention .
The Second Respondent unchallenged position is that he did not record
said proceedings – evidently there are also no hand written notes with
which this error can be remedied.
[24] The next option of attempting the process to repair the missing
parts of the recording with the hand written notes of the parties is quite
clearly a pointless exercise .
[25] The first option this Court has to consider is whether to dismiss the
review due to the Applicants inability to present a proper complete
record for the review scrutiny of this court .
[26] This would be neither fair or reasonable . It is trite that the primary
prerogative of ensuring that the hearing proceedings are properly
recorded lies with Bargaining Council ( the first respondent) and its
appointed Commissioner ( the third respondent).
[27] In the LAC decision ( supra)
4 in dealing with this very point said
at paragraph 27
"The missing evidence is necessary to determine the reasonableness of
the Commissioner’s decision.
To argue that the onus is upon the Appellant to ensure a full and proper
record is before the Court is in my view not always correct.
8
It is the responsibility of all the parties particularly the Commission, who
has the responsibility to ensure not only that it keeps a full and proper
record, but to ensure in the event of a review, that a full and complete
record of the proceedings is before the reviewing Court."
[28] As in this matter the parties had virtually identical divisive positions
on the purport of the missing aspects of the records
At paragraph 18 of said judgment the court said :
"In its affidavit, the Appellant set out why it believed the incomplete
record was inadequate and the Respondents continued to hold the view
that the record incomplete as it was, was sufficient to determine the
review application."
[29] The respondents have argued that any decision to 'drag the matter
' further would be unfair to the second respondent .
This is an important consideration but is neither the only or the most
important deliberation factor . The ultimate interests of justice is the over
arching guiding principle - in which prejudice is one factor .
[30] The LAC supra
4 had the following to say on this point at paragraph
28 ..
“Furthermore, while the delay of a few years may well be reason enough
to dismiss a review, this can only apply where the applicant has failed to
act diligently. "
[31] In this matter the is no compelling evidence of the negligence of
the Applicant itself in relation to the missing recording . It was a failure
by the Bargaining Council and its the erstwhile appointed
Commissioner.
[32] The judgment also went on to say later at paragraph 28
9
“In the circumstances, it would, in my view, be unconscionable to
dismiss the appeal against the interlocutory application and the review
application simply because of the lapse of time.
While I accept that it is the Respondents, if successful, who bear the
brunt for the delay, any adequate relief that they may be granted at a
later date, may never be sufficient to address the prejudice they
currently suffer. However, I consider it to be in the interests of justice
that this matter be referred back to the Bargaining Council to be
arbitrated anew before a commissioner other than the Third
Respondent.
[33] This court is of the view that equally in this matter this is the only
course that properly accords with the interests of justice .
COSTS
[34] In the Constitutional Court decision in Zungu v Premier of the
Province of KZN and Others
6 Zondo JP (then) 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.”
[35] This court does not find a basis to award costs.
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ORDER
1. The late filing of the Applicant’s Review application is condoned;
2. The Application for Review under case number D802/2021 - deemed to have
been withdrawn in terms of Clause 11 of the Practice Manual of the Labour
Court - be and is hereby reinstated;
3. The Award issued by the third respondent under case number
GPBC2952/2015
dated 11 October 2021 is hereby set aside;
4. This matter is to be referred to the first respondent for arbitration
de novo before another commissioner.
5. No order as to costs.
________________________
MM Govender
Acting Judge of the Labour Court of South Africa
Appearances
Applicant: Attorney S Giba
instructed by the Office of the State Attorney
Respondent: Attorney AS Mathonzi
11
__________________________________________________________________
1. 1962 (4) SA 531 (A)
2. 2014 (2) SA 68 CC
3. (2022) 43 ILJ LAC
4. 2014 ZALAC 1
5. 2023 (44) ILJ 2685 LAC
6. 2018 ZACC 1 .