1
THE LABOUR COURT OF SOUTH AFRICA
(HELD IN JOHANNESBURG)
Not Reportable
Case No: J158/2022
In the matter between:
DEPARTMENT OF CORRECTIONAL SERVICES Applicant
and
MNIKELWA NXELE First Respondent
KTLHOLO WABILE N.O. Second Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL (PSSBC)
AS COMMISSIONER Third Respondent
Heard: 29 July 2025
Delivered: 07 November 2025
___________________________________________________________________
JUDGMENT
SASS, AJ
Introduction
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[1] This matter started as a review application launched by the Applicant during
February 2022 to review and set aside an arbitration award of the Second
Respondent (the Arbitrator) handed down on 7 February 2022 (the Award)
and issued under the auspices of the Third Respondent (the Bargaining
Council).
[2] Due to the Applicant’s failure to file the complete record of the arbitration
proceedings (the Record) before the date on whi ch the Record was due for
filing in terms of paragraph 11.2.3 of the Practice Manual of the Labour Court
which was in effect until 17 July 2024 (the Practice Manual) , the review
application was deemed to have been withdrawn/lapsed and archived by
operation of paragraph 11.2.3 of the Practice Manual.
[3] The Applicant now seeks to revive/reinstate the deemed withdrawn/lapsed
and archived review application. None of the Respondents have opposed the
revival/reinstatement application and the application is unopposed.
Relevant facts
[4] On or about 25 or 26 March 2022, t he Applicant was informed by this Court
that the Record had been made available to it by the Bargaining Council. The
Applicant was required to deliver the Record within 60 (sixty) days of 24 or 25
March 2025 but was unable to do so due to the Bargaining Council’s failure to
deliver the complete Record to this Court and various delays experienced by
the Applicant in obtaining the complete Record.
[5] At some point between approximately 25 March 2022 and 12 May 2022, the
Applicant instructed transcribers to transcribe the audio recordings of the
arbitration proceedings to which the Award relates which formed part of the
Record as delivered to this Court by the Bargaining Council.
[6] The Applicant was subsequently informed by the transcribers that the Record
was incomplete insofar as it lacked the recordings of the arbitration
proceedings to which the Award related. The audio recordings which were
made available by the Bargaining Council apparently related to a different
matter.
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[7] Between approximately 12 May 2022 and 06 September 2022, the Applicant
made a number of attempts to obtain the missing audio recordings by taking
the following steps:
a. Between 12 and 18 May 2022, it sent its first correspondence to the
Bargaining Council about the incomplete Record. The Bargaining
Council replied to this correspondence on or about 18 May 2022,
requesting clarity as to exactly which recording/s the Applicant sought
to form part of the Record.
b. On or about 26 May 2022, the Bargaining Council informed the
Applicant that a notice of compliance was filed at the Labour Court.
After collection of the compact discs referred to in the notice of
compliance, and on or about 30 May 2022, the Applicant sent
correspondence to the Bargaining Council to verify if the newly
acquired compact discs which formed part of the record, were indeed
correct. The Bargaining Council replied to this correspondence on or
about 21 June 2022, in which it confirmed that the audio in the record
was indeed correct.
c. On 05 August 2022, the Applicant sent further correspondence to the
Bargaining Council to raise more concerns in respect of the
incompleteness of the R ecord and specifically noted that the following
items were omitted from the Record, namely -
i. the complete testimony of Mr. Moodley;
ii. the main evidence of Mr. Ngcobo; and
iii. the application for the recusal of Mr. Wabile.
d. The Applicant placed on record at this juncture that this was the
second instance of the R ecord as provided by the Bargaining Council
being found to be incomplete and further noted the prejudice caused to
it by that.
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e. The Applicant did not receive a reply from the Bargaining Council to its
correspondence of 05 August 2022. Consequently, and on or about 18
August 2022, the Applicant sent the incomplete Record to the First
Respondent and informed the First Respondent of the difficulties
encountered in attempting to obtain a complete R ecord and that it
would be compelling the Bargaining Council to deliver the complete
Record. In this correspondence, the Applicant also requested an
extension of time for the filing of the R ecord in terms of paragraph
11.2.3 of the Practice Manual.
f. On or about 19 August 2022, the First Respondent confirmed receipt of
the incomplete R ecord and indicated that he would not grant an
extension as he believed the matter is deemed to have been
withdrawn.
g. On or about 19 August 2022, the Bargaining Council replied to the
Applicant’s correspondence of 05 August 2022, stating that it had
provided the complete R ecord, notwithstanding that the missing
evidence referred to above did not form part of the Record provided by
the Bargaining Council.
[8] On or about 07 September 2022, this Court enrol led a reconstruction hearing
in this matter for 13 September 2022, and after that reconstruction hearing
was held, the complete Record was made available during December 2022
(and filed during January 2023).
[9] On or about 15 February 2023, the Applicant’s revival/reinstatement
application was served on the First Respondent. The service affidavit
deposed to by Gerhard Kock of the Applicant’s attorneys on or about 24
February 2023 confirms such service.
[10] On or about 15 February 2023, the Applicant’s Rule 7A(8)(b) Notice in relation
to the review application, confirming that the Applicant stood by its notice of
motion, was served on the First Respondent’s attorneys . The service affidavit
deposed to by Gerhard Kock of the Applicant’s attorneys on or about 24
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February 2023 confirms such service. The First Respondent has to date not
delivered an answering affidavit in the review application.
[11] In and during September or October 2023, the Applicant delivered its Rule
22B Notice confirming the indexing and paginat ion of the court file in respect
of the revival/reinstatement application and requesting the enrolment thereof.
[12] On or about 12 June 2025, the revival/reinstatement application was enrolled
for hearing by this Court on 29 July 2025. I was not able to establish from the
Court file what steps , if any, the Applicant may have taken between at least
October 2023 and 12 June 2025 to expedite the enrolment of the
revival/reinstatement application.
Applicable legal principles
[13] It is now trite law that the principles applicable to an application to
revive/reinstate a review application are similar to those applicable to
condonation applications, which principles are also well-established.
[14] The requirements for an application for reinstatement were addressed inter
alia in Samuels v Old Mutual Bank
1 wherein it was held that:
‘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
to grant or refuse condonation is a discretion to be exercised by the court
hearing the application which must be judiciously exercised’.
1 [ [2017] 38 ILJ 1790 (LAC); [2017] 7 BLLR 681 (LAC) at para 17. See also Govender & Others v CCMA &
Others [2024] ILJ 1197 (LAC) at 23.
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[15] In Bidvest Protea Coin (Pty) Ltd and SATAWU and others2 it was held that:
‘[10] From the above authorities, it is clear that the enquiry to be conducted
is that which would be applied in an application for condonation, and that the
period between the date of filing of a review application and the expiry of the
60-day period within which the record is to be filed, as well as events after that
date, must be taken into account.’
[16] The above principle was followed in the City of Ekurhuleni Metropolitan
Municipality v SA Local Government Bargaining Council and others
3 wherein
it was held that:
‘[5] In an application to reinstate a review deemed withdrawn, the applicant
must demonstrate good cause. This is so in that such applications are akin to
seeking condonation for the failure to comply with stipulated time- lines. When
considering whether good cause has been demonstrated, the court exercises
a discretion having taken account of inter alia the degree of lateness, the
explanation therefor, the prospects of success and the importance of the
case.’
[17] I now turn to consider whether the Applicant has demonstrated good cause.
Analysis
The degree of lateness and the explanation for the degree of lateness
[18] The Record should have been delivered within 60 (sixty) days of 24 or 25
March 2022 (roughly by approximately 24 May 2022). It was eventually
delivered during January 2023 – approximately 8 (eight) months late.
[19] Whilst this delay is not trivial, when viewed in the context of the various
attempts made to obtain the complete Record, the delay is not excessive. The
Applicant took various steps to obtain the complete Record from the
Bargaining Council between 25 March 2022 and 13 September 2022 (when
the reconstruction hearing was held).
2 [2020] JOL 48504 (LC) at para 10.
3 [2023] JOL 59388 (LC) at para 5.
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[20] For reasons not immediately apparent from the Court file, it took a
considerable amount of time for this Court to enrol the revival/reinstatement
application for hearing notwithstanding it being launched by the Applicant on
or about 03 March 2023 (by which time the complete Record had already
been filed).
[21] Whilst this may be no more than speculation, the delay in having the
revival/reinstatement application enrolled might have been caused, in part, by
the relief sought/prayers in the notice of motion dated 15 February 2023 which
was attached to the founding affidavit deposed to by Gerhard Kock on 15
February 2023 in which the Applicant sets out the factual and legal basis for
the revival/reinstatement of the review application. In its notice of motion,
whilst seeking further and/or alternative relief, which m ay include the
revival/reinstatement of the review application, the Applicant purports to make
application to the Judge President in chambers in terms of the provisions of
clause 11.2.3 of the Practice Manual for an order that, inter alia , the time
period for the filing of the complete record be extended to the date on which
the record has been filed. The notice of motion does not contain a specific
prayer in relation to the revival/reinstatement of the review application
although it is clear from the founding affidavit that it seeks such relief.
[22] The review application was deemed to have been withdrawn due to the
Bargaining Council’s failure to provide the complete Record. It does not
appear that the Applicant intentionally delayed the prosecution of the review
application. The Applicant made a number of attempts to obtain the complete
Record from the Bargaining Council . The Applicant’s proactive steps in this
regard does demonstrate a bona fide intention to proceed with the review
application at all times.
[23] The explanation for the delay in prosecuting the review application appears to
[23] The explanation for the delay in prosecuting the review application appears to
be reasonable in the circumstances and although it is not overly detailed, it
does cover the various parts of the entire period of the delay . Not
reviving/reinstating the review application in such circumstances would be
prejudicial to the Applicant’s right to have the review application determined
by this Court.
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The prospects of success
[24] In Madikizela v CCMA and Others 4, it was held that although an application
for reinstatement need not show exc ellent prospects of success, non-
meritorious reviews should not be reinstated so as not to clog the court roll.
[25] In Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd 5 it was held that a
consideration of prospects of success merely implies a determination of the
likelihood or chance of success when the main case is heard. A similar
approach was followed in Seatlholo and others v Entertainment Logistics
Service (A division of Gallo Africa Ltd) 6, where it was held that the test is
whether the applicants would succeed in the main action if the facts pleaded
by them in their condonation application were established at trial. Equally so,
the prospects of success do not entail an applicant having to prove on a
balance of probabilities that he or she would succeed when the merits of the
case are heard
7.
[26] In its founding affidavit in the review application, the Applicant made various
factual averments in support of its review application and its grounds of
review.
[27] Some of the more pertinent factual averments made in this regard,
underpinning the Applicant’s various grounds of review (as described below),
were as follows:
a. On the morning of 12 January 2022 during the pre- dismissal arbitration
in terms of section 188A of the LRA, the Arbitrator made a ruling which
denied a request by the Applicant, made along with a tender to pay the
4 (D382/22) [2024] ZALCD 42 (7 November 2024) at para 27.
5 2009 30 ILJ 347 (LC) at para 27.
6 (2011) 32 ILJ 2206 (LC) para 24.
7 See: Production Institute of South Africa (Pty) Ltd v CCMA and others (2011) 32 ILJ 1712 (LC) at para 12;
See also: SA Democratic Teachers Union v Commission for Conciliation, Mediation and Arbitration and
others (2007) 28 ILJ 1124 (LC) at para 38, where it was held that: ‘A commissioner in considering prospects
of success does not have to pronounce on the merits of the case. All that the commissioner needs to do is
to investigate whether on the averments made by the applicant there is a prima facie case, that there is a
chance of succeeding when the main case is heard. In other words, to establish whether there is a
reasonable prospect of success on the merits, it suffices if an applicant can show a prima facie case
through setting out averments which, if established at the proceedings of the main case, would entitle the
applicant to some relief. The applicant need not deal fully with the merits of the case’.
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wasted costs occasioned by such a delay , to stand the pre- dismissal
proceedings down until the next following day as its next witnesses
were not available.
b. The Arbitrator made a ruling to the effect that the Applicant had to
present its next witness by 12h30 on that day (12 January 2022) failing
which the parties would be required to close their cases whereafter the
Arbitrator would determine the matter. The Arbitrator added that the
failure by either party to close its case would not prevent the finalisation
of the proceedings.
c. When the Applicant informed the Arbitrator at 12h30 that it did not have
its next witness available but could have its next witness available by
15h00 (two and a half hours later, from which the lunch break should
also still have been deducted), the Arbitrator called upon the First
Respondent to proceed with the presentation his case despite the
protestations of the Applicant that it had not closed its case.
d. In making this ruling and denying the Applicant the opportunity to
present the testimony of all its witnesses, the A rbitrator fundamentally
deprived the Applicant of its right to be heard (the audi alteram partem
principle being one of the cornerstones of our jurisprudence).
e. The Arbitrator’s refusal to stand the matter down to the following day ,
when the Applicant’s next witnesses would be available, precluded the
Applicant from presenting important evidence in respect of the deposit
and withdrawal of millions of Rands by the First Respondent and
evidence pertaining to several of the charges proffered against the First
Respondent. It also precluded the Applicant from calling witnesses in
Supply Chain Management who would have given evidence on the
conduct of proceedings during meetings of the Bid Adjudication
Committee wh ich had irregularly awarded tenders to two bidders in
contravention with Treasury Regulations and the Supply Chain Policy
of the Applicant.
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f. Standing the matter down until the next morning could not have made
any difference to the proceedings at the time. The matter had been
enrolled again from 11 to 18 January 2022, and there remained at the
time (on 12 January 2022) another four days for the hearing of the
matter. The Applicant was as anxious as the First Respondent to have
the matter finalised.
g. The pre-dismissal arbitration proceedings commenced on 0 2
November and continued on 5 November 2021. It was then postponed
subject to the approval of the Bargaining Council’s secretariat to early
January 2022. Three of the Applicant’s future intended witnesses were
not employed by it , and two of those (who we re employed by casino
operators and who were vital witnesses in respect of a number of
charges against the First Respondent ) needed to be subpoenaed in
order to appear at the Bargaining Council . To subpoena them , the
Applicant needed confirmation of the dates on which the pre- dismissal
arbitration would continue. There was some confusion when the
secretariat at first refused to set the matter down early in January 2022
and then agreed to do so. This meant that the Applicant could only at
a late-stage request subpoenas from the Bargaining Council in respect
of these witnesses.
h. The subpoenas were obtained for the two witnesses. It was arranged
with them to testify on Thursday 13 January 2022. When they were
requested to make themselves available earlier to testify on
Wednesday 12 January 2022, they indicated that they had made other
arrangements and could not do so.
i. The third witness not employed by the Applicant informed it that her
husband had to travel for work for the week of 10 to 14 January 2022.
Since the first school day of the year fell on Wednesday 12 January
2022, she was unfortunately not available to attend the pre-dismissal
arbitration proceedings until Monday 17 January 2022.
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j. The most important witness that the Applicant intended to call had
refused to testify in November 2021 (although she had indicated in
October 2021 that she would be prepared to do so) , because the First
Respondent had previously intimidated her by sending various SMS
messages. When she refused to testify in November 2021, the
Applicant had to find a witness to stand in for her – this was Mr
Ncqobo, a pensioner. His testimony commenced on Friday 5
November 2021 and after the adjournment of the proceedings,
continued on Tuesday 11 January 2022. He finished his testimony on
Wednesday 12 January 2022, far earlier than had been anticipated.
Given the extended cross -examination of the SIU witness, the
Applicant had expected that Mr Ngcobo would remain on the stand far
longer than that Wednesday morning. It was after the completion of
this testimony that the Applicant requested that the matter stand down
until the following day.
k. The Applicant was precluded from presenting its case in the full, and
calling on the First Respondent to present his case when the Applicant
had not closed its case and had not called all its witnesses , caused a
material injustice not only to the Applicant but also to the public in
general see that the allegations against the First Respondent were put
to him as a public service employee.
l. There was no doubt that the A rbitrator’s refusal to stand the matter
down, thereby preventing the Applicant from presenting its case in full,
particularly in view of the serious allegations against the First
Respondent, constitutes a ground for review.
[28] The Applicant’s grounds of review, arising from the above factual averments
as well as other s contained in the founding affidavit in the review application,
are that the arbitrator:
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a. committed gross misconduct in relation to the duties of the
commissioner as an arbitrator; alternatively
b. committed a gross irregularity in the conduct of the arbitration
proceedings; alternatively
c. exceeded his powers.
[29] These grounds of review are all prima facie legally valid and permissible.
[30] It is not necessary for the Applicant to prove on a balance of probabilities that
it will succeed when the merits of the review application are considered. It is
only necessary for the Applicant to prove that there is a likelihood or chance
of success when the review application is heard if the facts averred in, and
grounds of review relied on, in the review application, are established when it
is heard. The Applicant has done so. It also cannot be said that the review
application is unmeritorious. At the very least, the Applicant does enjoy at
least some prospects of success.
[31] I am satisfied that the Applicant has been able to show that it at least has
prima facie prospects of success by virtue of the fact ual averments and
grounds of review set out in its review application which if established and
accepted by this Court when the review application is determined, may
provide both a factual and legal sustainable basis for a successful review
application.
The importance of the case, balance of convenience and interests of justice
[32] The matter is important as it involves the public sector and may be of
importance or relevance to other employees and parties in the public sector
falling under the jurisdiction of the Bargaining Council in relation to the
manner in which the Bargaining Council stores, preserves and makes
available the record of arbitration proceedings.
[33] If the revival/reinstatement application is not successful, the Applicant will be
deprived of the opportunity to have its review application fully ventilated
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before this Court which could potentially result in the Award being reviewed
and set aside, and, inter alia, the matter being remitted back to the Bargaining
Council for a de novo pre-dismissal arbitration before a different arbitrator
during which proceedings the Applicant may be permitted to call the
witnesses which it was precluded from calling previously . In those
circumstances, the Applicant would be precluded from presenting all its
available evidence and fully ventilating its case during the pre- dismissal
arbitration proceedings against the First Respondent in relation to allegations
of serious misconduct pertaining to procurement irregularities, non- disclosure
of interests and/or gambling activities in various casinos.
[34] If the revival/reinstatement application is successful, and the review
application is ultimately determined by this Court and is it dismissed, the
status quo will remain intact - i.e., the First Respondent, whose suspension
was uplifted by the Award during February 2022 and who returned to work
during February 2022 in terms of the Award, will continue to be employed by
the Applicant. This Court may also award costs against the Applicant if the
First Respondent elects to oppose the review application and the review
application is dismissed. There does not appear to be any ongoing prejudice
accruing to the First Respondent at this stage as a consequence of the delay
in finalising the review application.
[35] The prejudice to the Applicant if reinstatement is not granted, namely that it’s
review application will not be ventilated before this Court, outweighs any
possible prejudice that the First Respondent may suffer if the review
application is reinstated, alternatively, any prejudice that the First Respondent
could suffer may be ameliorated by a cost order . In my assessment therefore,
the balance of convenience therefore favours the Applicant in my view.
[36] In Steenkamp and Others v Edcon Limited
8 the Constitutional Court re-
[36] In Steenkamp and Others v Edcon Limited
8 the Constitutional Court re-
affirmed that granting condonation must be in the interests of justice and
8 [2019] 11 BLLR 1189 (CC), specifically the Constitutional Court’s second judgment.
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referred with approval to its decision in Grootboom v National Prosecuting
Authority9:
[36] Granting condonation must be in the interests of justice. This Court in
Grootboom set out the factors that must be considered in determining whether
or not it is in the interests of justice to grant condonation:
“[T]he standard for considering an application for condonation is the
interests of justice. However, the concept ‘interests of justice’ is so
elastic that it is not capable of precise definition. As the two cases
demonstrate, it includes: the nature of the relief sought; the extent and
cause of the delay; the effect of the delay on the administration of
justice and other litigants; the reasonableness of the explanation for the
delay; the importance of the issue to be raised in the intended appeal;
and the prospects of success. It is crucial to reiterate that both
Brummer and Van Wyk emphasise that the ultimate determination of
what is in the interests of justice must reflect due regard to all the
relevant factors, but it is not necessarily limited to those mentioned
above. The particular circumstances of each case will determine which
of these factors are relevant.
It is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it to the
court’s indulgence. It must show sufficient cause. This requires a
party to give a full explanation for the non- compliance with the rules or
court’s directions. Of great significance, the explanation must be
reasonable enough to excuse the default.
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
the period of delay is short and there is an unsatisfactory explanation
9 2014 (1) BCLR 65 (CC) at para 20.
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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.”
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[37] All factors should therefore be taken into account when assessing
whether it is in the interests of justice to grant or refuse condonation.”
[37] Taking into account all the relevant factors, and in particular, that the delay is
not excessive (when viewed in context), the review application would not have
been deemed to have been withdrawn if the Bargaining Council had provided
the complete Record timeously, there is an explanation for the delay which is
satisfactory and granting the revival/reinstatement would not prejudice the
First Respondent, my assessment is that that it is in the interests of justice to
revive/reinstate the review application.
Synopsis
[38] The explanation provided by the Applicant for the delay appears to be bona
fide and reasonable. It was not contentious that the Bargaining Council failed
to produce the complete Record and that the Applicant took all reasonable
and diligent steps to obtain the complete R ecord from the Bargaining Council.
The Applicant’s conduct indicates an ongoing intention to diligently prosecute
the review application to finality at all times.
[39] Without going into the merits in depth in relation to a consideration of the
prospects of success , it would appear that the Applicant has some likelihood
or chance of succeeding with the review application when it is heard if the
factual averments made and grounds of review postulated in the review
application are established when the review application is considered.
10 Ibid at paras 22-3 and 51.
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[40] The application was not opposed by any of the Respondents and the delay in
filing a complete Record has not been unduly prejudicial to the First
Respondent. The balance of convenience appears to favour the Applicant. I
also believe that it is in the interests of justice to allow the review application
to be reinstated.
[41] Having considered the matter and having regard to the abovementioned
principles, it is my view that a proper case has been made out for the
revival/reinstatement of the review application and its retrieval from archiving.
[42] In the circumstances, it is appropriate to revive/reinstate the review
application, and I make the following order:
Order
1. The review application under case number J158/2022 is revived/reinstated.
2. The court file under case number J158/2022 is to be retrieved from archiving.
3. There is no order as to costs.
______________________________
Mendel Sass
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate TP Kruger SC instructed by the State Attor ney
(Attorney G Kock)
For the Respondents: No appearances.