THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case No: DA03/2024
In the matter between:
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA obo MEMBERS Applicant
and
DEFY APPLIANCES (PTY) LTD First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION (CCMA) Second Respondent
ANNEMARIE BREEDT N.O. Third Respondent
Heard: 11 September 2025
Delivered: 04 November 2025
Coram: Mahalelo ADJP, Nkutha-Nkontwana JA et Basson AJA
JUDGMENT
MAHALELO, ADJP
2
Introduction
[1] This is an appeal against the judgment and order of the Labour Court (per
Govender AJ), which dismissed the Appellant's application for condonation for
its failure to comply with the time limits prescribed in clause 11.2.3 of the
Practice Manual of the Labour Court and, consequently, refused to reinstate its
review application.
[2] The central issue is whether the Labour Court misdirected itself in the exercise
of its discretion by refusing condonation and reinstatement.
Background Facts
[3] The factual matrix is largely common cause. The Appellant's members were
dismissed by the First Respondent following a disciplinary process convened
under the auspices of the Commission for Conciliation, Mediation and
Arbitration (CCMA) in terms of section 188A of the Labour Relations Act
1 (the
LRA). The arbitrator (Third Respondent) found the dismissals to be
substantively and procedurally fair in an award dated 22 December 2020.
[4] The Appellant launched a review application on 2 February 2021, within the
statutory time frame. The Registrar of the Labour Court filed a notice in terms of
rule 7A(5) of the Rules Regulating the Conduct of Proceedings in the Labour
Court
2 on 18 March 2021. The Appellant’s attorneys, upon engaging
transcribers, discovered on 25 March 2021 that one of the CDs containing the
arbitration record for 10 December 2020 was blank. A series of
communications with the CCMA followed in an attempt to obtain a complete
record.
[5] The transcribed record (excluding the missing day) was received from the
transcribers on 23 July 2021. The Appellant's attorneys only alerted the First
Respondent's attorneys to the problem with the record on 29 July 2021, a date
falling outside the 60- day period stipulated in clause 11.2.3 of the Practice
Manual for filing the record.
1 Act 66 of 1995, as amended.
2 Now repealed and replaced by the Rules Regulating the Conduct of Proceedings of the Labour
Court. GGN 50608. Effective 17 July 2024.
3
[6] The First Respondent’ s attorneys, in a letter dated 4 August 2021, pointed out
that the review application was deemed withdrawn due to non- compliance with
clause 11.2.3. The Appellant then engaged an IT specialist, who successfully
retrieved the audio of the missing day by 12 August 2021. The transcription,
indexing, and pagination of the full record were completed by the Appellant's
attorneys by the end of August 2021.
[7] The process of having the record physically copied and bound was then beset
by further delays. The first service provider returned the file after two weeks
due to non- payment. A second service provider was engaged in late
September 2021 but encountered delays attributed to load- shedding and the
hospitalisation of its director. The final, bound record was only received in the
second week of November 2021.
[8] The Appellant filed its application for condonation and reinstatement of the
review on 3 December 2021.
The judgment of the Court a quo
[9] The Labour Court, in a detailed judgment, refused the application. Its reasoning
can be summarised as follows:
9.1 The explanation for the delay from March to July 2021 was inadequate.
The Appellant should have been more proactive and diligent in pursuing
the complete record from the CCMA and in informing the other parties ,
as well as the Court of the difficulties.
9.2 The delays from August to November 2021, attributed to internal
administrative issues, load- shedding, and the service provider's
problems, were not sufficiently detailed or compelling. The court found
the excuses to be "flimsy and vague".
9.3 The court held that the fact the record was filed within 12 months of the
review launch (as per clause 11.2.7) was not a "redeeming factor" in the
face of an unsatisfactory explanation for the specific breach of clause
11.2.3.
4
9.4 The court found it unnecessary to delve deeply into the prospects of
success on review, concluding that the explanation for the delay was so
poor that strong merits would not salvage the application. It nonetheless
briefly assessed the grounds of review and found them unconvincing.
9.5 Overall, the court found that the Appellant had displayed a lack of
urgency and that granting condonation would not be in the interests of
justice.
Grounds of Appeal
[10] The Appellant contends that the court a quo erred by:
10.1 Adopting an overly strict and formalistic approach to the Practice
Manual, failing to recognise its purpose of facilitating access to justice.
10.2 Failing to appreciate that the Appellant took all reasonable steps to
obtain the record and that the delays were largely beyond its control.
10.3 Over-emphasising the absence of specific dates in the explanation for
certain periods of delay.
10.4 Failing to properly consider that the record was filed and the matter
was ripe for hearing within the 12- month period contemplated by the
Practice Manual.
10.5 Failing to properly consider the Appellant's prospects of success on
review.
10.6 Consequently, exercising its discretion wrongly and denying the
Appellant its constitutional right of access to court.
The Legal Framework
[11] An application for reinstatement of a deemed withdrawn review application is a
species of condonation application. The applicable principles are well -
established.
5
[12] Clause 11.2.3 of the Practice Manual states that if an applicant fails to file a
record within 60 days, the application " shall be deemed to have been
withdrawn." This deeming provision is not merely directory; it creates a legal
consequence. However, a court retains the discretion to condone non-
compliance and reinstate the application.
[13] The test for condonation involves the evaluation of a number of interrelated
factors, including: The degree of lateness or non- compliance; the explanation
for the delay; the prospects of success in the main case; the importance of the
case; the respondent's interest in the finality of the matter ; the convenience of
the court ; and t he avoidance of unnecessary delay s in the administration of
justice.3
[14] The Practice Manual is a crucial tool for ensuring the expeditious resolution of
labour disputes, a fundamental statutory imperative. Its provisions " call for
flexibility in their application where this is required to promote their purpose,"
but this flexibility cannot undermine the need for compliance and discipline in
litigation.
4
[15] As emphasised in Overberg District Municipality v Independent Municipal and
Allied Trade Union on behalf of Spangenberg and Others5, a party seeking to
revive a deemed withdrawn application must demonstrate that it has acted
promptly in launching the reinstatement application and has taken bona fide
steps to ensure the expeditious finalisation of the matter if reinstated.
Discussion
[16] I turn to consider whether the court a quo misdirected itself.
The explanation for the delay
[17] The Appellant's explanation covers several distinct periods:
3 See: Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C -F; Grootboom v National
Prosecuting Authority and another [2014] 1 BLLR 1 (CC) at para 23.
4 See: Macsteel Trading Wadeville v Van der Merwe N.O. and Others (2019) 40 ILJ 798 (LAC) at para
15.
5 (2021) 42 ILJ 1283 (LC).
6
17.1 March to July 2021 (The "Blank CD" Period): The Appellant discovered
the incomplete record on 25 March 2021. It wrote to the CCMA on that
day, and again on 5 May and 28 May 2021. While it pursued the
CCMA, it took no steps during this critical four -month period to bring
the application to the attention of the Court or the First Respondent, nor
did it seek an extension from the Court. This was a significant failure. A
diligent litigant, faced with a persistent inability to secure a complete
record from a state organ, would not wait four months before escalating
the matter formally.
17.2 August 2021 (The IT Specialist): The engagement of the IT specialist
was a positive step, but it only occurred after the First Respondent had
pointed out the deemed withdrawal. This reinforces the impression of a
reactive, rather than a proactive, approach.
17.3 August to November 2021 (The Record Compilation): The court a quo
was critical of the lack of specific dates for when the file was sent to
and returned from the first record company, and when it was sent to
the second. While the absence of precise dates is not necessarily fatal,
in the context of an already significant delay, a condonation applicant
bears the onus to provide a full and candid account. Vague references
to "the latter part of September " and " the second week of November "
fall short of this standard. The reasons for the delay (load- shedding,
hospitalisation) are not implausible, but without a more detailed
timeline, the court a quo was entitled to find the explanation wanting.
[18] In my view, the Labour Court's assessment of the explanation as
unsatisfactory, flimsy in parts, and demonstrative of a lack of urgency, was a
factual finding open to it on the papers. I find no misdirection in this regard.
The 12-Month Period and the "Ripe for Hearing" Argument
[19] The Appellant places heavy reliance on the fact that the record was filed and
[19] The Appellant places heavy reliance on the fact that the record was filed and
the matter was "ripe for hearing" within the 12- month period referred to in
clause 11.2.7 of the Practice Manual (which provides for the archiving of
inactive files). This argument is misconceived.
7
[20] Clause 11.2.3 creates a specific, peremptory obligation to file the record within
60 days. Its breach has the immediate consequence of a deemed withdrawal.
Clause 11.2.7 deals with a separate, subsequent stage of inertia. The fact that
a matter has not yet been archived under clause 11.2.7 does not nullify the
deemed withdrawal under clause 11.2.3. The Labour Court correctly held that
this was not a redeeming factor that could compensate for the failure to provide
a satisfactory explanation for the initial and subsequent delays.
Prospects of Success
[21] The Appellant argues that the court a quo failed to properly consider its
prospects of success. It is trite that where the delay is significant and the
explanation poor, the prospects of success, even if good, are not necessarily
decisive.
6
[22] The Labour Court did, in fact, consider the appellant’s prospects of success. It
analysed the grounds of review – including the alleged reliance on hearsay
evidence, the conflation of issues, and the refusal of a postponement – and
found them unconvincing. The court's assessment, while succinct, cannot be
said to be wrong. The arbitrator's findings were primarily factual and credibility -
based, and the threshold for interference on review remains that set out in
Sidumo and another v Rustenburg Platinum Mines Ltd and others 7. On the
papers, t he Labour Court cannot be faulted in holding that the Appellant's
grounds, as pleaded, do not seem to cross this high threshold.
[23] In any event, given the court's justified finding of an unsatisfactory explanation,
its conclusion that the prospects were not so compelling as to warrant
condonation was a rational exercise of its discretion.
The Exercise of Discretion and Access to Courts
[24] The Appellant's contention that its constitutional right of access to courts
(section 34 of the Constitution for the Republic of South Africa, 1996) was
infringed is without merit. The right of access is not an unqualified right to
infringed is without merit. The right of access is not an unqualified right to
6 See: NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at para 10.
7 [2007] 12 BLLR 1097 (CC).
8
ignore procedural rules. As stated in Barkhuizen v Napier 8, the rules of court
exist to facilitate an orderly and fair resolution of disputes. A litigant's failure to
adhere to these rules, without an acceptable explanation, may legitimately
result in their case not being heard. The Labour Court's application of the
Practice Manual in this case was a lawful and necessary regulation of its
process to ensure the expeditious resolution of disputes, which is itself a
cornerstone of the LRA.
[25] I am not persuaded that the Labour Court exercised its discretion capriciously
or upon a wrong principle. It carefully balanced the relevant factors and
reached a conclusion that was reasonable and just in the circumstances. The
Labour Court correctly concluded that the interests of justice favoured finality
and efficiency over reinstating a review application marked by prolonged and
unexplained delays.
Conclusion
[26] For all these reasons, the appeal cannot succeed.
Costs
[27] As to costs, considerations of fairness and the law are best served with a no
order as to costs.
[28] In the result, the following order is made:
Order
1. The appeal is dismissed.
2. There is no order as to costs.
___________________
M B. Mahalelo
Acting Deputy Judge President of the Labour and Labour Appeal Courts
8 2007 (5) SA 323 (CC).
9
Nkutha-Nkontwana JA et Basson AJA concurring
APPEARANCES:
APPELLANT: Adv D Pillay
Instructed by: Harkoo Brijlal & Reddy Attorneys
RESPONDENT: Mr Stanfield
Instructed by: Mcaciso Stanfield Inc