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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2280/24
In the matter between:
MSK CONSTRUCTION (PTY) LTD Applicant
and
STEVEN MOTSEPE First Respondent
IMTHIAZ SIRKHOT N.O. Second Respondent
BARGAINING COUNCIL FOR THE CIVIL
ENGINEERING INDUSTRY Third Respondent
Heard: 30 July 2025
Delivered: 09 October 2025
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JUDGMENT
SASS, AJ
Introduction
[1] The applicant seeks to review and set aside an arbitration award dated 17
November 2024 (the award) issued by the second respondent (the arbitrator)
under the auspices of the third respondent (the Bargaining Council).
[2] In the award, the arbitrator found that the dismissal of the first respondent (Mr
Motsepe) was procedurally and substantively unfair and ordered the applicant
to pay compensation in the amount of R135 000 (one hundred and thirty -five
thousand rand) to Mr Motsepe, minus any statutory deductions. This amount
was the equivalent 3 (three) months’ gross remuneration.
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[3] The review application was not opposed by any of the respondents.
Service affidavits
[4] When the matter was heard on 30 July 2025, the only service affidavit that
was in the court file was the service affidavit relating to the service of the
review application itself. This service affidavit, deposed to by Oupa Emmanual
Phale (Mr Phale) on 13 December 2024, confirmed that: (i) Mr Phale had
served the review application by email on Mr Motsepe on 13 December 2024
at 10h30; and (ii) at 10h46 on the same date, he called Mr Motsepe to confirm
if he had received the email to which the review application was attached, and
Mr Motsepe confirmed that he did receive the email.
[5] The court file did not, however, contain any service affidavits in relation to
service of the a pplicant’s notices in terms of Rule 37(13) and Rule 37(20)(b)
of the Rules of this Court, although these Notices were in the court file.
[6] I requested the applicant’s legal representatives to provide this Court with the
relevant service affidavit /s in relation to these notices. The applicant’s legal
representatives undertook to do so, and judgment was reserved.
[7] The service affidavit in respect of the applicant’s notices in terms of Rule
37(13) and Rule 37(20)(b) was only filed at this Court on or about 2
September 2025. This service affidavit was deposed to by Faith Molatudi (Ms
Molatudi), a paralegal in the employ of the applicant’s legal representatives,
on 18 August 2025 – more than two weeks after the set down date of the
unopposed review application.
[8] The service affidavit confirmed that the applicant’ s notices in terms of Rule
37(13) and Rule 37(20)(b) were only served on Mr Motsepe on 18 August
2025, meaning that when the matter was enrolled for hearing on 30 July 2025,
Mr Motsepe had: (i) not received service of either of the above- mentioned
notices; (ii) not received service of the review record; (iii) not been informed
notices; (ii) not received service of the review record; (iii) not been informed
that the applicant stands by its notice of motion and founding affidavit (served
previously on 13 December 2024); and (iv) not been informed that if he
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wishes to oppose the review application he must file his answering affidavit in
terms of Rule 37(22) within ten days of 18 August 2025.
[9] The applicant has only belatedly complied with the Rules of this Court in
relation to service of the notices in terms of Rule 37(13) and Rule 37(20)(b)
and this review application was prematurely enrolled for hearing on 30 July
2025.
[10] In the circumstances, this review application ought to have been removed
from the 30 July 2025 court roll and is accordingly postponed sine die in order
to provide Mr Motsepe with an opportunity to oppose the review application if
he elects to do so – an opportunity which he was not given on or before 30
July 2025.
Order
1. The review application is removed from the 30 July 2025 court roll and
postponed sine die.
2. The Registrar of this Court is directed to enrol the review application for
hearing on the unopposed motion court roll if Mr Motsepe has not delivered an
answering affidavit opposing the review application by the date of this
judgment.
3. In the alternative to paragraph 2 above, if by date of this judgment Mr
Motsepe has delivered an answering affidavit opposing the review application,
the Registrar of this Court is directed to issue such further directives as
necessary in relation to an opposed review application and enrol the matter
accordingly.
4. There is no order as to costs.
______________________________
Mendel Sass
Acting Judge of the Labour Court of South Africa
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Appearances:
For the applicant: Mr OE Phale (OE Phale and Associates Attorneys).
For the respondents: No appearances.