THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO: JR616/19
In the matter between:
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL First Respondent
COMMISSIONER NTSHENGEDZENI MUNYAI N.O. Second Respondent
SOUTH AFRICAN MUNICIPAL WORKERS’ UNION
OBO MOLOPE & OTHERS Third Respondent
Heard: In Chambers
Delivered: 3 November 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
TSHISEVHE, AJ
2
Introduction
[1] This is an application for the reinstatement of the review application that is
deemed withdrawn in terms of the repealed Labour Court Practice Manual.1
[2] The application is opposed by the Third Respondent herein.
[3] This application was brought as a result of the Applicant’s failure to comply
with the requirement that arbitration records should be served and filed withi n
a period of 60 days after a notice in terms of Rule 7A(5) of the old Labour
Court rules.
[4] The arbitration record was served and filed seven days late.
Background
[5] On 31 October 2018, the Second Respondent issued an arbitration award
under case number PMD101704 and the said award was varied in terms of
section 144(b) of the Labour Relations Act ("the LRA") on 6 March 2019.
[6] The award was in favour of the Third Respondent herein, ordering the
Applicant (Respondent) herein:
6.1 to promote/upgrade the Applicants to level C1/C3 in accordance with the
resolution dated 2 March 2016.
6.2 Pay the Applicants amounts equivalent to the difference to what they were
earning as Administrative Officers and what they were supposed to earn in
accordance with the promotion/upgrade retrospective to 2 March 2016.
6.3 The calculation of the amounts mentioned above should also include accrued
interest at the legal rate of interest from 2 March 2016 to 30 October 2018.
6.4 Such promotions/upgrades and the payment to be effected should be done by
no later than 22 March 2019.
[7] The Variation Ruling varied the arbitration award by inserting 2 paragraphs
and
1 Labour Court Practice directive dated 1 April 2013.
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varying the order as follows:
7.1 "30 The Respondent, City of Tshwane Metropolitan Municipality,
Implement resolution 3 of the Mayoral Committee's approved Report dated
2 March 2016, in terms of whereof the Applicants should be designated as
Revenue Consultants.
31 The Respondent Upgrades/Promotes the Applicants to the level
C1/C3 in accordance with the aforementioned resolution retrospective to the
date of resolution dated 2 March 2016.
33 The Respondent must pay the Applicants the amount of
R4.71 million to be shared in accordance with the GPMC key salary scales of
1 July 2016 and 1 July 2017.
34 The Respondent must pay the accrued interest on the
amount mentioned in paragraph (33) above, in accordance with the legal rate
of interest from 2 March 2016 to the 30 October 2018.
35 The Respondent must implement such promotions/upgrades
together with the amounts reflected in paragraphs (33 and by not later than
22 March 2019".
[8] Pursuant to the Applicant ’s failure to implement the award, the Third
Respondent caused the award to be certified in terms of section 143(3) of the
LRA by the CCMA on 8 April 2019.
[9] On 15 April 2019, the enforcement of the award was issued, and the
attachment of the Applicant’s movable property was effected.
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[10] The Applicant launched its review application on the same day, 15 April 2019,
challenging an arbitration award of the Second Respondent.
[11] A notice in terms of Rule 7A (5) was issued , and the record was collected on
2 May 2019. As a result, such a record ought to have been filed by
26 July 2019; however, it was filed by 7 August 2019.
[12] On 2 May 2019, the First Respondent successfully launched an urgent
application staying the execution of the award pending finalisation of the
review application.
[13] Thereafter, parties exchanged pleadings.
[14] On 15 June 2023, Prinsloo J issued an order , amongst others, that the review
application is deemed to have been withdrawn since the arbitration record
was filed outside the 60 days.
[15] The Third Respondent after realising that the review application is deemed to
have been withdrawn , the y launched contempt of Court proceedings and
obtained an order on 29 August 2024, which order amongst others called
upon the First Respondent to show cause why they should not be found guilty
of contempt of Court for failing to comply with the certified arbitration award
under case under case number PMD101704 issued on 31 October 2018 and
varied on 6 March 2019.
[16] The Rule nisi in the contempt of Court proceedings was served on the First
Respondent on 25 September 2024.
[17] On 21 October 2024, the First Respondent launched a reinstatement of
review application.
Analysis of Reinstatement of Review Application
[18] In most cases, litigants resort to review applications in order to frustrate the
opponent, and in many of those instances, it will be employers who launch a
review just to frustrate poor employees in cases where there are no merits.
5
[19] The majority of those litigants file review applications and thereafter do not do
anything in the matter until they are asked or put to terms by their opponent.
Such conduct defeats the objectives of the LRA and should be frowned upon
by the courts.
[20] This Court is still being inundated with reinstatement of review applications as
a result of a lack of diligent prosecution of review by litigants. Not only does
this unnecessarily clog up the Court roll, but it also leaves a dispute which
was always intended to be expeditiously resolved hanging in the air.
[21] In order for the reinstatement application to succeed, there are certain
requirements that should be satisfied by the Applicant.
[22] It is trite that the reinstatement application is likened to a condonation
application. There fore, the principles relating to condonation would apply in
determining whether the reinstatement application should be granted. The
principles set out in Samuels v Old Mutual Bank
2 (Samuels) apply and the
reinstatement application (i) should be made bona fide; (ii) should set out a
reasonable explanation which covers the entire period of the delay; (iii) the
applicant must have reasonable prospects of success in the main review
application; and (iv) that it would be in the interests of justice to grant
condonation.
[23] This Court has a discretion to reinstate or dismiss an application for a
reinstatement of a review application on account of an unreasonable delay in
pursuing it, and in the exercise of its discretion, the Court ought to consider
the factors set out in the Samuels Judgment supra.
[24] It is common cause that the record was only filed some seven days late,
which ordinarily may not be excessive, especially given the explanation.
[25] However, as the Samuels judgment dictates, the Applicant should satisfy
those requirements in order to have their review reinstated, failing which this
Court will be left with no option but to refuse to grant such an application.
Court will be left with no option but to refuse to grant such an application.
2 [2017] 7 BLLR 681 (LAC).
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[26] It is trite that a review application is urgent in nature and must be finalised as
soon as possible.
[27] Clause 11.2.3 of the Practice Manual provides that:
‘If the applicant fails to file a record within the prescribed period, the applicant
will be deemed to have withdrawn the application, unless the applicant has
during that period requested the respondent’s consent for an extension of
time and consent has been given. If consent is refused, the applicant may, on
notice of motion supported by affidavit, apply to the Judge President in
chambers for an extension of time. The application must be accompanied by
proof of service on all other parties, and answering and replying affidavits may
be filed within the time limits prescribed by Rule 7. The Judge President will
then allocate the file to a judge for a ruling, to be made in chambers, on any
extension of time that the respondent should be afforded to file the record.’
[28] The reason behind clause 11.2.3 is simply to expedite a resolution of the
dispute.
[29] In Khumalo and Another v Member of the Executive Council for Education:
KwaZulu-Natal,3 Skweyiya J said:
‘… the importance of resolving labour disputes in good time is thus central to
the LRA framework. …’
[30] Further, Jafta J in Aviation Union of SA and Another v SA Airways (Pty) Ltd
and Others4 , held:
‘… Speedy resolution is a distinctive feature of adjudication in labour relations
disputes. …’
[31] In National Education Health and Allied Workers Union v University of Cape
Town and Others5 Ngcobo J said:
3 (2014) 35 ILJ 613 (CC) at para 42.
4 (2011) 32 ILJ 2861 (CC) at para 76.
5 (2003) 24 ILJ 95 (CC) at para 31. See also Billiton Aluminium SA Ltd t/a Hillside Aluminium v
Khanyile and Others (2010) 31 ILJ 273 (CC) at para 46; Strategic Liquor Services v Mvumbi NO and
Others (2009) 30 ILJ 1526 (CC) at paras 12 – 13.
7
‘By their very nature labour disputes must be resolved expeditiously and be
brought to finality so that the parties can organize their affairs accordingly.
They affect our economy and labour peace. It is in the public interest that
labour disputes be resolved speedily…’
[32] The speedy resolution of labour disputes has been a cornerstone of
employment and labour law.
[33] Some employers tend to frustrate workers through unnecessary litigation, and
same should be frowned upon by the courts.
[34] The above general principle is then given practical application in clause 11.2.7
of the repealed Practice Manual. This is evident from the following dictum in
Samuels, where the Court said, with specific reference to the Practice
manual:
‘… Its purpose is, inter alia, to provide access to justice by all those whom the
Labour Court serves; promote uniformity and/or consistency in practice and
procedure and set guidelines on standards of conduct expected of those who
practise and litigate in the Labour Court. Its objective is to improve the quality
of the court’s service to the public, and promote the statutory imperative of
expeditious dispute resolution. …’
[35] Clause 11.2.7 reads:
‘A review application is by its nature an urgent application. 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 argument) 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 i s shown why the application
should not to be archived or be removed from the archive.’
[36] This Court has on numerous occasions stressed that litigants must always
ensure that the time periods recorded in the LRA, the Rules and the repealed
ensure that the time periods recorded in the LRA, the Rules and the repealed
Practice Manual are complied with because failure to do so may result in a
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court refusing to hear a review application which potentially had good
prospects of success.
[37] In a case where the court finds that an applicant in a review application failed
to prosecute their review application within the required period of time as
envisaged in the Rules and Practice Manual, and in the absence of seeking
condonation for the delay, the review court lacks jurisdiction to determine the
review application.
[38] The above provisions received attention in Macsteel Trading Wadeville v
Francois van der Merwe N.O . and Others
6 (Macsteel), and flowing from that
decision, it can be accepted that:
38.1 ‘These provisions are binding on this Court and the parties.
38.2 Where the time limits are 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 removed from the archives.
38.3 Where undue delay in prosecuting the review application is raised in the
answering affidavit in the review application, and since that application had in
effect lapsed and been archived, this Court would lack jurisdiction to
determine the issue of the undue delay raised there. In these circumstances,
a party complaining of undue delay would have been required to bring a
separate Rule 11 application for the review application to be dismissed or
struck from the roll on the grounds of the other party’s undue delay in
prosecuting it.’
[39] The Third Respondent , in opposing the application, raised several factors
such as lack of reasonable explanation, lack of bona fides , lack of prospect of
success and interest of justice.
[40] The Third Respondent argued that the averment by the Applicant that they do
not know why and/or how there was a delay in the prosecution of the review
fatally destroys their application as they are required to proffer a reasonable
explanation.
6 Macsteel supra.
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[41] The Third Respondent further argues that the Applicant only brought the
review application just to frustrate them , as they are aware that their case is
meritless and they are not interested in having the matter finalised because
they only acted when prompted by them.
[42] The Third Respondent supported its argument on the fact that a request for a
trial date was made long after a period of more than three years, whereas the
rules or practice manual requires that , within a period of 12 months , a
Registrar must be informed that the application is ready for trial.
[43] Upon a glance at Clause 11.2.7, it is apparent that this clause imposes an
obligation on the applicant to ensure that all the necessary papers in the
application are filed within 12 months of the date of the launch of the
application (excluding heads of argument), and the Registrar is informed in
writing that the application is ready to be set down for hearing. Where this
time limit is not complied with, the application will be archived and regarded
as lapsed unless good cause is shown why the application should not be
archived or removed from the archive.
[44] The amendments to section 145 of the LRA, which took effect on
1 January 2015, are specifically aimed at expediting the prosecution of review
applications and inter alia, require that an applicant on review must apply for a
hearing date within six months of launching the review application.
[45] This is evident from the attitude adopted by the Court as far back as 2006,
when the Court in Bezuidenhout v Johnston NO and Others
7 held that:
‘If applicant parties have unduly delayed prosecuting their applications, and
fail to provide acceptable reasons for the delays, the ultimate penalty of
dismissing such applications should be used in appropriate cases. This will
hopefully help creating a culture of compliance and ensure that disputes are
expeditiously dealt with.’
[46] In casu, the Applicant only acted when prompted by the Third Respondent’s
[46] In casu, the Applicant only acted when prompted by the Third Respondent’s
next step.
7 (2006) 27 ILJ 2337 (LC) at paras 31.
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[47] Clause 16.1:
‘16.1 In spite of any other provision in this manual, the Registrar will archive a
file in the following circumstances:
• In the case of an application in terms of Rule 7 or Rule 7A,
when a 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;
• In the case of referrals in terms of Rule 6, when a period of six
months has elapsed from the date of delivery of a statement of
case without any steps taken by the referring party from the
date on which the statement of claim was filed, or the date on
which the last process was filed; and
• When a party fails to comply with a direction issued by a Judge
within the stipulated time limit.’
[48] On the face of this application, I agree with the Third Respondent herein that
the application is already archived through clauses 11.2.7 and clause 16.1 of
the repealed Practice Manual as the Applicant did not do anything since the
ruling regarding 11.2.3 relating to the issue of failing to timeously file the
record.
[49] The applicant’s last action in the matter was on 28 August 2019, when they
filed their supplementary affidavit. At this period, horses were already bolted.
[50] The request to set the matter down was then made after more than a period
of 24 months after the answering affidavit was filed. The Applicant contends
that the Third Respondent also caused the delay because they filed their
answering affidavit after several months ; however, they do not state if they
objected to such a late filing.
[51] What the Applicants further aver is that the Third Respondent did not object to
the late filing of records. I should say that there is no such requirement in our
law where Respondents are expected to object to the late filing of a record.
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[52] The Applicant’s submissions are not convincing in all material respects.
[53] The Third Respondent further argued that the Applicant’s case has no
reasonable prospect of success.
[54] I am persuaded that the Applicant’s case lacks a reasonable prospect of
success in that the Second Respondent’s award seemed to have been arrived
at sagaciously, more so considering all the material evidence before him.
[55] It is correct that the length of delay in filing the records is not unreasonably
long, however, the Applicant has several hurdles , such as Clauses 11.2.7 as
well as the reasonable prospects of success.
[56] It is my firm view that the Applicant lost interest in the matter in that they never
acted unless prompted by the Third Respondent.
[57] Just to mention a few examples, served the records after being asked to do
so by the Third Respondent, and applied for reinstatement of review after
contempt proceedings.
[58] Another factor to be considered is the effect of the delay on the Third
Respondent and the prejudice they suffer.
[59] The Third Respondents are suffering enormously as a result of the delay by
the Applicants herein, whereas on the other hand, the Applicants suffer
nothing, if there is any prejudice, they would have prosecuted the matter
speedily.
[60] The Third Respondent obtained an arbitration award in their favour in terms of
which they were awarded compensation and promotion or upgrade.
[61] I am not convinced that the Applicant has shown good cause that the review
application be reinstated, including considering their chances when it comes
to the prospects of success in the review application, which does not
compensate for the period of delay or vice versa.
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[62] Just like the Third Respondent, I equally doubt that the Applicant was bona
fide in their explanation, as they said nothing in their lengthy affidavit or what
caused the delay for a period of seven days.
[63] The only plausible conclusion is that the delay in the prosecution of review
was caused by loss of interest.
[64] In essence, an application for the reinstatement of a review application 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.
[65] I am equally alive to the fact 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.
[66] The Third Respondent should be given some apricity where the Applicant lost
interest in the finalisation of the dispute, as the only plausible conclusion that
one can come to is that the Applicant intends to cause frustration to the Third
Respondent.
[67] Based on the above, the application for the reinstatement of the review
application cannot succeed as it is not in the interest of justice.
Costs
[68] I have had regard to the requirements of law and fairness , including the
Constitutional Court judgment of Zungu v Premier of the Province of KwaZulu-
13
Natal and Others 8 in considering costs , I am of the view that costs should
only be awarded where it is warranted, like in casu.
[69] I am of the view that a cost order is warranted in this matter. The Applicant is
flogging a dead horse as their application was not dialectic.
[70] In the premises, I make the following orders:
Order
1. The application for the reinstatement of the review application is hereby
refused.
2. The Applicant is ordered to pay costs.
_______________________
N Tshisevhe
Acting Judge of the Labour Court of South Africa
8 Zungu v Premier of the Province of KwaZulu-Natal and Others (CCT136/17) [2018] ZACC 1; (2018)
39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC); 2018 (6) BCLR 686 (CC)
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Appearances
For the Applicant: Mahumani Incorporated
For the Third Respondent: Tati Attorneys