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[2025] ZALCCT 109
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Mkama v National Bargaining Council for Road Freight and Logistics Industry and Others (C295/22) [2025] ZALCCT 109 (28 October 2025)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
CASE
NO: C295/22
In the matter between:
EDWARD ALOYS
MKAMA
Applicant
And
NATIONAL BARGAINING
COUNCIL FOR THE
ROAD FREIGHT AND
LOGISTICS INDUSTRY
First Respondent
JOSEPH WILLIAMS
N.O
Second Respondent
LIEBEN LOGISTICS (PTY)
LTD
(Registration number:
1999/009191/07)
Third Respondent
Heard:
22 October 2025
Delivered:
This judgment was handed down electronically by circulation to the
Applicant and Third Respondent’s
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 15h00 on 28
October 2025.
JUDGMENT
LALLIE J
[1] The applicant
was employed by the third respondent as a driver. He was dismissed
for misconduct on 2 June 2021. He referred
an unfair dismissal
dispute to the Commission for Conciliation, Mediation and Arbitration
(the CCMA) on 28 July 2021. The CCMA
transferred the dispute to the
first respondent (the bargaining council) because it fell under its
jurisdiction. On 19 October
2021 the bargaining council issued a
certificate of the non-resolution of the dispute. On 21 October 2021
the applicant referred
to dispute to arbitration. On 7 December 2021
the bargaining council issued a ruling that it lacked jurisdiction to
arbitrate the
dispute owing to the applicant’s omission to seek
condonation for the late referral of his dispute. The applicant filed
the
condonation application which was opposed by the third
respondent. In a ruling dated 4 March 2022 the condonation
application was
dismissed. With the assistance of his attorneys the
applicant filed a statement of claim seeking an order reviewing and
setting
aside the condonation ruling and other relief.
[2]
The third respondent filed a response to the statement of claim in
which it raised its irregularities. On 12 September
2022 the
applicant filed a notice of withdrawal of the statement of claim. The
following day he filed an application for condonation
of the late
filing of the review application. He also sought an order reviewing
and setting the condonation ruling aside but omitted
to add grounds
for review. On 12 September 2022 the applicant filed an amended
notice of application in terms of section 145 of
the Labour Relations
Act
[1]
(the LRA) seeking,
mainly, condonation of the late filing of the review application,
condonation of any non-compliance with the
rules and an order
reviewing and setting aside the bargaining council ruling refusing
his condonation application. The application
was opposed by the third
respondent which pointed out the irregular steps the applicant took
in his attempt to prosecute his review
application. The applicant’s
attorneys of record withdrew on 2 December 2022. On 7 September 2022
the applicant filed a replying
affidavit and on 16 February 2024 he
filed a notice in terms of rule 7A(8)(a) amending his notice of
motion and supplementary affidavit.
On 24 August 2024 the Legal Aid
Board filed a notice in terms of rule 7A 8(b) and applied for
condonation of its late filing. The
third respondent opposed the
application and noted that the applicant had filed a notice in terms
of rule 7A (6) on 12 September
which had not been served on it.
[3] When this
matter served before court the third respondent sought an order
dismissing the review application. At the time
the applicant launched
his review application. Labour Court proceedings were regulated but
the Labour Court Rules and the Practice
Manual of the Labour Court of
South Africa (the Practice Manual). Both have since been repealed but
will be relied upon in the
adjudication of this matter because of the
date the application was launched. Both parties relied on and made
reference to those
prescripts. The third respondent submitted that
the review application must be dismissed. The argument is based on
the provisions
of clause 11.2.3 of the Practice Manual which provided
that a review application is deemed withdraw when the applicant has
failed
to file the record within 60 days of being informed by the
registrar of its availability. It was argued that as the review
application
has been deemed withdraw there is no review application
before court. It was argued on behalf of the applicant that the
review
application should be removed from the roll and the applicant
afforded an opportunity to apply for its reinstatement. The third
respondent’s counter argument was that the statement of claim
was withdrawn and the founding affidavit accompanying the application
for condonation of the late filing of the review application in which
an order to review and set aside the bargaining council’s
condonation ruling is attached contains no ground for review. It was
submitted that there was no review application before court
and that
all the interlocutory applications should be dismissed.
[4] It is common
cause that the applicant erroneously acted in terms of rule 6 in
filing a statement of claim when seeking
an order reviewing and
setting aside the condonation ruling, instead of bringing it in terms
of rule 7A. He later withdrew the
statement of claim and filed an
application for the condonation of the late filing of the review
application. In the same application
he sought an order reviewing and
setting aside the bargaining council’s condonation ruling. In
the affidavit supporting his
application the applicant was required
to include the factual and legal grounds for the relief he sought. He
omitted to set out
factual and legal grounds in support of the order
reviewing and setting aside the condonation ruling. The allegations
he made address
the relief of condonation of the late filing of the
review application. The application is in effect a condonation
application.
In the absence of the review application on which it
should have been predicted, there is no review application. Absent
the review
applications all the interlocutory application based on it
cannot survive.
[5] The third
respondent sought a costs order against the applicant as its
attorneys informed him of the defects shortly after
the institution
of these proceedings. They continued doing so as more irregular steps
continued to be taken. It was argued that
the applicant unreasonably
pursed the review application in total disregard of the warning the
third respondent’s attorneys
gave. The unreasonableness, in the
third respondent’s view justified a costs order against the
applicant. It was argued on
behalf of the applicant that the Legal
Aid Board represented the applicant very late after a number of flaws
had already been made.
It was further submitted that the applicant is
a man of straw.
[6] I have
considered the submissions made on behalf of both parties before me
as well as the provisions of section 162 of
the LRA. I accept the
argument on behalf of the applicant that a number of law firms which
represented him are responsible for
the many errors in the
prosecution of his review application. The applicant cannot be blamed
for putting his trust in them. Granting
a costs order against him
will, in the circumstance, not be fair.
[7] In the
premises, the following order is made:
1. There is no
valid review application before court.
2. All the
interlocutory applications based on the purported review application
are dismissed.
3. There is no
order as costs.
MZN Lallie
Judge
of the Labour Cour of South Africa
Appearances
For the
Applicant:
Advocate N. Mjiyako
Instructed
by
Legal Aid S.A
For the
Respondent: Advocate W. P.
Bekkers SC
Instructed by
William
Berry Attorneys
[1]
Act
66 of 1995, as amended.