THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 130/24
In the matter between:
MACDONALD’S TRANSPORT UPINGTON (PTY) LTD Appellant
and
NATIONAL BARGAINING COUNCIL FOR THE ROAD
FRIEGHT AND LOGISTIC INDUSTRY First Respondent
MOLATSI PHALA N.O. Second Respondent
PAWUSA obo PEDRO KOOPMAN Third Respondent
Heard: 21 August 2025
Delivered: 30 October 2025
Coram: Mahalelo ADJP, Van Niekerk JA et Chetty AJA
JUDGMENT
CHETTY, AJA
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[1] The appellant instituted review proceedings in the Labour Court on 19
December 2019 against a decision of the second respondent, in his capacity
as a commissioner with the first respondent. The relief sought by the applicant
is for the arbitration award by the second respondent to be set aside and
remitted de novo for determination by another Commissioner.
[2] The fact s of the matter are briefly that Mr Koopman, a member of the third
respondent, was employed as a heavy -duty driver from November 2016 until
his dismissal in February 2019. The events leading to his dismissal are briefly
that whilst in the course of his employment on 13 December 2018, Mr
Koopman drove his truck into a weighbridge. He did not report the incident as
he was obliged to in terms of the appellant’s policies . Instead, he went on
leave on 19 December 2018 without reporting the matter to his superiors.
[3] It is not in dispute that the matter was only reported to the appellant when Mr
Koopman returned from his leave in January 2019. In February 2019 he
received a notice to attend a disciplinary enquiry at which he was charged
with negligence for failing to report damages that occurred on 13 December
2018.
[4] After considering the evidence before him, the chairperson of the enquiry
found Mr Koopman guilty of the charge against him. In arriving at the
conclusion that he be summarily dismissed the chairperson took into account
that Mr Koopman had been subject to a final written warning for a period of 12
months issued in November 2017 for gross negligence in the course of the
driving of his motor vehicle.
[5] Through his union, an unfair dismissal dispute was referred to the first
respondent, the National Bargaining Council for the Road, Freight and
Logistic Industry (NBCRFLI). After an unsuccessful attempt at conciliation, the
matter was referred to arbitration, in which the dismissal of Mr Koopman was
found to be unfair.
found to be unfair.
[6] In essence, Mr Koopman contended that the rule which the employer relied
on was not enforceable as it was not in writing. The commissioner rejected
this defence as immaterial and found that the rule required an employee to
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report an incident as soon as possible. Mr Koopman breached the rule in
failing to report the matter, which was discovered on his return from leave. In
so far as his dismissal, the arbitrator concluded that the employer erred in
dismissing Mr Koopman in as much as he was not found guilty of gross
negligence, but rather that his conduct was confined to failing to report an
incident. The commissioner found that the current charge had no correlation
to reckless or negligent driving, which gave rise to his previous disciplinary
infraction and consequent final written warning. On this basis, the
commissioner found the dismissal of Mr Koopman to be substantively unfair
and ordered his re-employment without loss of benefits, requiring that he
report for duty on 2 December 2019.
[7] The appellant instituted a review in terms of section 145 of the Labour
Relations Act
1 (the LRA) on 19 December 2019, followed by a supplementary
affidavit on 5 February 2021. The application was opposed by Mr Koopman
who filed an affidavit dated 8 March 2021. The appellant contends that the
commissioner misconstrued the nature of the enquiry by failing to appreciate
that the employee was charged and dismissed for negligence in not reporting
the accident after it had occurred. In doing so, the appellant submit s that the
commissioner drew an artificial differentiation between the previous incident of
gross negligence and that of the recent incident where Mr Koopman was
charged for negligence arising from his failure to report an incident, as
required in terms of company policy.
[8] It is in this regard that the appellant maintains that the commissioner
committed an irregularity in evaluating the evidence, both in relation to the
charge and the sanction, in that no reasonable decision maker would come to
the same decision in the circumstances. This, in a nutshell, constituted the
grounds on which the appellant contends that the decision, dated 15
grounds on which the appellant contends that the decision, dated 15
November 2019, to find the dismissal of Mr Koopman as substantively unfair,
be reviewed and set aside.
[9] Mr Koopman opposed the application on the grounds that he was not charged
with gross negligence and that the commissioner was correct in concluding
1 Act. 66 of 1995, as amended.
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that the appellant erred in categorising his conduct in December 2018 as the
same for which he was issued a final written warning in November 2017.
[10] Acting in furtherance of the review application, the appellant’s attorneys
uplifted the data discs comprising the proceedings in the NBCRFLI on 12
February 2020 to attend to the transcription of the record. This process was
beset by problems with the transcription not being available timeously due to
various factors, including the omission of various documents by the NBCRFLI.
Eventually, the record was filed with the Registrar on 7 December 2020. At
around this time the attorney entrusted with the handling of the matter on
behalf of the appellant left the employ of the appellant’s attorneys. The matter
was then handed over to another attorney.
[11] As stated earlier, a supplementary affidavit was filed by the appellant in
February 2021. By this time, i n terms of the Practice Manual, the review
application had lapsed in as much as c lause 11.2.7 of the Manual which
provides that:
‘… An applicant in a review application is therefore required to ensure that all
the necessary papers in the application are filed within twelve (12) months of
the date of the launch of the application (excluding Heads of Arguments) and
the registrar is informed in writing that the application is ready for allocation
for hearing. Where this time limit is not complied with, the application will be
archived and be regarded as lapsed unless good cause is shown why the
application should not be archived or be removed from the archive.’
[12] Upon the appellant’s attorneys attending on the office of the Registrar on 10
June 2021 in an attempt to enrol the matter for hearing, it was discovered that
the application had been archived. At about the same time, the second
attorney at the firm engaged by the appellant, left the practice by July 2021.
At this stage, no one among the appellant’s legal representatives was aware
At this stage, no one among the appellant’s legal representatives was aware
that the matter had in fact been archived, and on the contrary were awaiting a
date for the set down of the matter.
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[13] On 11 August 2021 the Registrar issued a directive to the appellant’s
attorneys to file their Heads of Argument “within 15 (fifteen) days of the receipt
of the directive”. The directive further specified that failure to comply with the
time periods contained in the directive would “ lead to the matter not being
considered for a hearing”. A sensible interpretation of the directive is that
failure to comply would cause the application to lapse. It follows that its
resuscitation would only be allowed on good cause being shown.
[14] Clause 11.6.2 of the Practice Manual , in apparent contrast to the Registrar’s
directive, provides that in relation to opposed applications (as was the case in
the present matter) “ unless otherwise stated in the notice of set -down, the
applicant must deliver heads of argument at least 15 days prior to the
hearing”. The respondent, in terms of Clause 11.6.4 is required to deliver
heads of argument seven days prior to the hearing of the matter. This clause
concludes with a sentence, worded in a double- negative, that “[F]ailure to file
heads may not lead to the matter not being heard by the Court”.
[15] The appellant’s attorneys chose to disregard the Registrar’s directive and
instead preferred to rely on the provisions of Clause 11.6.2. requiring them to
file their heads of argument 15 days prior to the date of hearing. The attorneys
believed that non- compliance with the time period contained in the directive
was not intentional n or wilful but was informed by prior practice in similar
matters before this Court at the time.
[16] Accordingly, the appellant’s attorneys laboured under the mistaken but bona
fide belief that no further steps were necessary on their part in order to have
the matter heard on the opposed roll. This position persisted until May 2023,
despite the attorneys assertion that the file had been regularly diarised in the
intervening period of almost 22 months.
intervening period of almost 22 months.
[17] In May 2023, upon a new pract itioner at the appellant’s attorneys being
assigned to the matter, was it discovered that the application had lapsed and
the file was archived in accordance with Clause 16.1 of the Practice Manual .
This clause provides that the Registrar ‘will’ archive a file in circumstances
where ‘in the case of an application in terms of Rule 7 or Rule 7A, when a
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period of six months has elapsed without any steps taken by the applicant
from the date of filing the application, or the date of the last process filed”.
[18] The enormity of the problem arising from the attorney’s inaction became
apparent. An application for the reinstatement of the review application was
instituted on 24 August 2023. The application, which was unopposed, came
before Mokhatla AJ on 6 December 2023, when it was dismissed. Reasons
for the dismissal of the reinstatement application w ere delivered on 13 June
2024. The matter comes before this Court with leave of the court a quo.
[19] The essence of the appellant’s ground for the reinstatement of the review
application, as stated earlier, is that the appellant’s attorneys from June 2021
until or about May 2023 laboured under the mistaken impression (or a
‘misstep’ as they have described their conduct) that they would only file their
heads of argument upon hearing from the Registrar that the matter had been
enrolled for hearing. Despite the aberration on their part, there is nothing on
the papers to gainsay their version that the appellant always had the intention
to proceed with the matter.
2 Moreover, there is no conduct attributable to the
appellant which points to it being responsible for the lapsing of the matter and
its consequent archiving.
[20] The Court a quo considered at some length the nature and force of directives
issued by the Registrar , on the instructions of the Judge President. None of
this was placed in issue by the appellant in the court a quo. I did not interpret
the application for reinstatement to be dismissive in any way of the d irective
issued by the Registrar. Instead, the crux of the application was that the
appellant’s attorneys were at pains to explain that their failure to comply with
the directive was due to their mistaken reliance on prior practice in the Labour
Court regarding the filing of heads, and reliance on the provisions of clause
11.6.2 of the Practice Manual.
11.6.2 of the Practice Manual.
2 The assertion by the appellant ’s attorney is that since June 2021 they had ‘periodically followed up’
the allocation of a date with the Labour Court. There is however no documentary evidence to support
this version.
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[21] The attorney stated unequivocally that she did not intentionally fail to pursue
the review application and at all times believed that the matter would be set
down by the Registrar, without anything more required from her . The court a
quo found that the appellant’s attorney ‘ simply and flagrantly’ disregarded the
Practice Direct ive issued by the Registrar , and that her conduct was of
“wanton disregard” to the court and Mr Koopman. It is unclear how this
conclusion was reached in light of there being no evidence to the contrary to
dispute the version of the appellant’s attorney. Moreover, no intentional
disregard for the directive appears anywhere in the record.
[22] It did not assist the appellant in the least to suggest in the court a quo that Mr
Koopman or his union could have brought the non-compliance to the attention
of the appellant’s attorney much earlier. The court a quo strongly rejected this
assertion, holding that the appellant was dominis litis in the review application
and any attempt to deflect blame from the appellant to Mr Koopman and his
union was without foundation. In dismissing the application for reinstatement,
the court a quo found that the explanation tendered by the appellant’s
attorney was unacceptable and that their disregard for the Practice Directi ves
should not be countenanced.
[23] The underlying objective of the Practice Manual is t o promote the statutory
objective of ensuring expeditious resolution of disputes.
3 It gives effect to the
Rules of the Labour Court and the provisions of the LRA. 4 To that end, the
argument posited on behalf of t he appellant that the directive issued by the
Registrar are “mere administrative acts to assist in the management of cases ”
and are not of equal status to an Order of court , is in my view without merit
and fails to appreciate the essence of the dicta in Samuels v Old Mutual
Bank5 and Macsteel. Those cases are authority for the proposition that
Bank5 and Macsteel. Those cases are authority for the proposition that
directives issued in accordance with the Practice Manual are binding on the
parties and the Labour Court.
3 Macsteel Trading Wadeville v Van der Merwe N.O and Others (2019) 40 ILJ 798 (LAC) (Macsteel) at
para 22.
4 Macsteel Ibid.
5 Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC).
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[24] It follows therefor that where the time- limit imposed in Clause 11.6.2, or a
directive from the Registrar is not complied with, the application will be
archived and will be regarded as lapsed unless good cause is shown to the
contrary.
[25] In Samuels6 this Court observed that a party seeking to retrieve a file which
has been archived must show good cause for its reinstatement—not unlike an
application for condonation. The approach endorsed is the following:
‘In essence, an application for the retrieval of a file from the archives is a form
of an application for condonation for failure to comply with the court rules,
time frames and directives. Showing good cause demands that the
application be bona fide; that the applicant provide a reasonable explanation
which covers the entire period of the default; and show that he/she has
reasonable prospects of success in the main application, and lastly, that it is
in the interest of justice to grant the order. It has to be noted that it is not a
requirement that the applicant must deal fully with the merits of the dispute to
establish reasonable prospects of success. It is sufficient to set out facts
which, if established, would result in his/her success. In the end, the decision
to grant or refuse condonation is a discretion to be exercised by the court
hearing the application which must be judiciously exercised.’ (My emphasis in
italics; footnotes omitted.)
[26] Applying the above dicta , it is evident that no consideration was given by the
court a quo to whether the appellant had reasonable prospects of success in
the main application. As stated earlier, the court a quo cannot be faulted for
its analysis of the application of the Practice Manual and its interpretation of
the Labour Court Rules in regard to the archiving of files , consequent upon
non-compliance with the time periods. That constitutes only part of the inquiry
as to whether good cause exists.
as to whether good cause exists.
[27] The Constitutional Court in Grootboom v National Prosecuting Authority and
Another7 said the following with regard to the ‘ interests of justice’ segment in
the consideration of whether condonation should be granted:
6 Ibid para 17.
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‘[51] The interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably be left
out of consideration in certain circumstances. For example, where the
delay is unacceptably excessive and there is no explanation for the
delay, there may be no need to consider the prospects of success. If
the period of delay is short and there is an unsatisfactory explanation
but there are reasonable prospects of success, condonation should be
granted. However, despite the presence of reasonable prospects of
success, condonation may be refused where the delay is excessive,
the explanation is non-existent and granting condonation would
prejudice the other party. As a general proposition the various factors
are not individually decisive but should all be taken into account to
arrive at a conclusion as to what is in the interests of justice.’
(Footnote omitted.)
[28] While the delay in bringing the application for condonation of almost 22
months from the date when the appellant was called upon by the Registrar to
file its heads of argument, was excessive, the attorney provided an
explanation for the delay , premised on the apparent conflict between the
Registrar’s directive and the Practice Manual . The appellant’s attorney ’s
conduct was the cause of the delay —the appellant had no role in it. 8 Even if
the period of delay is excessive, I am of the view that the court a quo ought to
have still considered the prospects of success, which it failed to. This
constituted an irregularity.
[29] I accordingly turn to consider the remaining legs of the inquiry —whether the
appellant has reasonable prospects of success on the merits and whether it
would be in the interests of justice to condone its non-compliance
[30] As stated earlier, the appellant contends that the commissioner committed an
irregularity by failing to appreciate that Mr Koopman had been issued with a
irregularity by failing to appreciate that Mr Koopman had been issued with a
7 Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68 (CC);
2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC).
8 It is trite that there is a limit to which a litigant can escape the consequences of his or her attorney's
lack of diligence. See Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA
135 (A). It is equally true that the facts of a matter will dictate whether or not the actions or failure
thereof by an attorney can be imputed to the litigant.
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final written warning for gross negligence in November 2017. The offence for
which he was found guilty in February 2019 was also for negligence, albeit for
failing to report damage to company property when he was under a duty to do
so. The chairperson of the disciplinary enquiry took into account the earlier
final written warning and determined that Mr Koopman should be dismissed.
[31] The appellant argues that this was a case of progressive discipline and that
the dismissal of Mr Koopman, who did not deny his conduct , was fair and
justified in the circumstances. Both charges arose out of the negligent conduct
on the part of Mr Koopman.
[32] I must emphasise that this Court is not seized with the determination of the
merits of the dismissal. We are required to simply express our view as to
whether there is a likelihood of success that the decision of the commissioner
is one that a reasonable decision- maker could not possibly reach, having
regard to the facts on which the appellant has relied.
[33] I am satisfied that there is a reas onable possibility that another court may
come to a different conclusion to the commissioner as the commissioner
appears to have drawn an artificial distinction between the two charges , both
of which have their genesis in acts of negligence by the employee.
[34] In light of the totality of the circumstances arising from the non- compliance
with the direct ive of the Registrar, the appellant’s attorney’s honest
misinterpretation of the force and effect of the directive and consequences
attendant upon their non-compliance, we are satisfi ed t hat the interests of
justice will be better served by a full vent ilation of merits of the matter in the
court a quo. In my view, the appellant has satisfied the threshold to revive the
lapsed review application and to set aside its archiving.
[35] In the result, the following order is made:
Order
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1. The judgment and order of the Labour Court dated 6 December 2023 is
set aside.
2. The appellant’s review application under JR2231/19 be and is hereby
reinstated.
3. The Registrar of the Labour Courts is directed to enrol the review
application.
4. No order as to costs.
___________________
Chetty AJA
Mahalelo ADJP et Van Niekerk JA concurring
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APPEARANCES:
APPELLANT: S Lancaster of Lancaster Kungoane Attorneys, Centurion