THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS 777/19
In the matter between:
GENERAL INDUSTRIES WORKERS UNION
OF SOUTH AFRICA (GIWUSA) First Applicant
DAVID MASILO & 79 OTHERS Second Applicant
and
DEKRA AUTOMOTIVE (PTY) LTD Respondent
Heard: 5 September 2025
Delivered: 18 November 2025
Summary: Interlocutory application of two points in limine of lis pendens and lack
of jurisdiction.
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JUDGMENT
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MALULEKE AJ
Introduction
[1] This is an interlocutory application dealing with two preliminary points in
limine. The respondent seeks the relief as set out below. This follows after the
79 applicants launched a claim for an alleged unlawful lock-out and the use of
replacement labour. Therefore, this C ourt is called upon to adjudicate the
following points:
1. lis alibi pendens (pending litigation) related to the previous urgent
application that was struck under case numbers J3511/18.
2. that the Court has no jurisdiction due to lack of condonation.
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[2] The respondent sought relief for the granting of the two points in limine with
costs. Th e applicants challenge these points with costs , further requesting
that the main application be enrolled on an expedited date.
[3] Prior to commenc ing with the hearing of parties’ submissions , the
respondent’s representative submitted that there had been a change in the
applicants’ status. The applicants are no longer 79 in total because s ome
employees have since returned to work. Therefore, this litigation only revolves
around the remaining 11 applicants. The applicants’ representative confirmed
this status change.
[4] What follows is a brief summary of the respondent and applicants ’
submissions made in their affidavits, annexures, oral argument and their
heads or arguments.
Respondent’s submissions and argument on the following two points:
lis alibi pendens.
[5] O n 9 October 2018, the parties had an internal dispute related to the lock-out.
This led to the employees approaching the Labour Court on an urgent
application under case number J3511/2018. On 9 October 2018, the urgent
application was struck off the roll for lack of urgency ; therefore such i t is still
pending.
[6] S ubsequent to an urgent application and a year later , in October 2019, the
employees launched a new action dispute for an alleged unlawful lock-out and
the unlawful use of replacement labour. The respondent challenged this
action. The relief being sought from this current case number JS777/19 is the
same relief that was sought in the urgent under case number J3511/18. Both
cases involve the same parties with the same cause of action.
[7] F urther submission was that before the new case could have been issued, the
employees should have either (i) withdrawn the struck urgent application or (ii)
reinstated the struck urgent application on the normal roll . Alternatively (iii) to
revive or reinstate the archived or deemed withdrawn urgent application, if it
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was, but they failed to carry out any of these available steps. Therefore, the
pending application constituted pending litigation.
lack of Jurisdiction (Condonation) point in limine.
[8] This Court lacks jurisdiction to adjudicate the main dispute related to section
76(1)(b) of the Labour Relations Act 1 (LRA) with respect to the lock -out and
alleged use of labour replacement . The referral of this dispute found its way
too late to this Court. The degree of lateness is more than a year with no
explanation; therefore, condonation is required. Summary of timelines relied
upon was outlined as follows:
1. That on 18 April 2018, a mutual interest of unlawful lock -out dispute
was referred to the CCMA and dismissed on 29 May 2018.
2. That the employees had demands which were rejected on 15 June
2018.
3. The employees referred an unlawful lock -out dispute to the CCMA,
which was dismissed on 27 July 2018.
4. On 14 September 2018, the employees wrote an acceptance letter to
the demands counteroffer and requested to return to work. The
employer responded on 21 September 2018 and proposed date for
further discussions.
5. Urgent application was launched and dismissed on 9 October 2018.
[9] The employer’s further submission was that six years had since elapsed when
calculating from 2018 to date, without the employees referring this litigation or
the filing of condonation. Besides that , the lock -out was uplifted, but no
specific date. The dispute and the statement of claim were filed outside the
expected reasonable period in October 2019, with no explanation of these
delays.
Applicants’ submissions and argument in response on the following two points:
1 Act 66 of 1995, as amended.
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lis alibi pendens
[10] It is not in dispute that there was an urgent matter that was struck off. The
relief sought was for the court’s intervention on a perceived unfair lock -out
and the use of replacement labour. The urgent application that was struck
was no longer alive. Therefore, it cannot be referred to as a pending litigation
between the parties and before this C ourt. Once the matter is struck off from
the roll, it brings such matter into finality. Unless further step is taken of which
is not the case in this matter.
[11] The distinction between the two matters is also based on case numbers
JS777/19 and JR 3511/2018. There is no rule, no directive or law from this
court which direct s that once the matter is struck from the roll for lack of
urgency, it should be withdrawn prior to proceeding with any other similar or
related dispute.
[12] That, in the event the court found that such matter should have been
withdrawn, the applicants ’ submission is that the urgent matter would have
been deemed withdrawn or archived. Currently, there is no reinstatement
application pending or issued by either of the parties to resuscitate the urgent
matter. Therefore, the matter is not pending.
Lack of Jurisdiction (Condonation) point in limine.
[13] It is not required or necessary for the applicants to file an application for
condonation on the following basis:
1. Though it is conceded that the was a dispute of mutual interest that
arose on 01 April 2028, but denied that the application is late based on
the following grounds:
- On 18 April 2018, the employees referred a dispute to the Commission
for Conciliation, M ediation and A rbitration (CCMA), which remained
unresolved on 29 May 2018. This dispute was for an unfair labour
practice (ULP), not the unlawful lock -out or the replacement labour
dispute.
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- T hat subsequent to the dismissed urgent of 9 October 2018, the parties
continued with engagement.
- On 14 April 2019, the employees filed a referral to the CCMA.
- That the afore- mentioned referral was not dealt with at the CCMA,
hence the letter was addressed to the CCMA to this effect and as per
annexure “M2”.
- The applicants are calculating the referral from the period of July 2019,
when the letter was addressed to the CCMA. Therefore, there is no
duty that calls for a condonation application.
Issues to be determined
[14] The essential task is to determine two issues . First, whether or not the urgent
application that was struck from the roll constitutes a lis alibi pendens
litigation, and if so, to determine on its status.
[15] Secondly, whether or not condonation is required for the statement of claim
filed in October 2019, and if so, to decide on the jurisdiction of the court.
Evaluation of submission and analysis.
Lis pendens: the Urgent Application
[16] I t is a common cause that on 9 October 2018, the urgent application was
struck off the roll . The respondent’s submission is that the struck matter was
still alive to be re -enrolled on a normal roll . In the alternative, the applicants
should have withdrawn the matter, especially if they intended to bring the new
claim on the same issues related to the lock-out. The respondent’s
submission is persuasive and correct.
[17] The uncontested issue is that this matter surrounds the same parties and the
same cause of action of unlawful lock-out and the labour replacement dispute.
The only dispute raised by the applicants was that the case numbers of these
cases are different. That there is no rule which provides for the procedure
that, after an urgent matter is struck, it must be withdrawn or re- enrolled, the
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court finds the applicants’ submission and approach fatal in law and not
acceptable.
[18] This argument cannot be correct and proper with respect to the legal
principles and procedures of the courts. The applicants had an opportunity to
re-enrol the matter. If the matter is deemed withdrawn, such would have been
reinstatement by filing an affidavit and explaining the reason why the matter is
to be re-enrolled. If a supplementary was required, then the applicants should
have applied to be granted leave to supplement, and same matter would have
proceeded.
[19] The respondent substantiated its argument based on Shongwe and Others v
City of Johannesburg Metropolitan Municipality 2, wherein the court referred to
the case of Dumisani and Another v Mintroad Saw Mills (Pty) Ltd. 3 T he
Labour Appeal Court held that it was against public policy that litigants should
be able to consistently demand the same relief and on the same grounds from
the same adversary.’
‘In the light of the above, it is therefore untenable for the applicants to
approach this Court with essentially the same claim under a different guise
and effectively seek the same relief that was determined by the CCMA.’
[20] It is trite that a matter that is struck from the roll does not automatically
disappear, but remains very much alive. It takes an interested party, in this
instance the applicants, to elect whether it intends to proceed with the urgent
application. It is also common cause that when a matter is struck from the roll,
it can only be re- enrolled by filing an affidavit addressing the reasons for
which it was struck and why it should be reconsidered for enrolment.
However, the applicants elected not to do so. For the applicants to issue a
new action on the same facts , and despite the different case numbers , is
nothing but lis pendens.
2 (JR483/14) [2016] ZALCJHB 67 (25 February 2016) at para 27.
3 [2000] 2 BLLR 134 (LAC) at para 9.
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[21] In VKN Enterprises v Peter Martin Lekalakala and three Others 4, the court
stated that ‘ thus, if an action is already pending between parties and the
applicant lodges another action against the same respondent on the same
cause of action and in respect of the same subject -matter, whether in the
same or in a different Court, it is open to the respondent to take the objection
of lis pendens, because another and same action has already been instituted’.
In such instances, the Court may, in its discretion, stay one action pending the
decision of the other or dismiss the action.
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[22] There is a negative impact on applicants’ failure to act on the pending
litigation. Because such an application will be forever in stay on idling mode .
This will always leave the respondent to wonder what is next with such an
application. This Court is much alive to the fact that the urgent matter that was
struck constitutes a pending litigation.
[23] The Court accepts that a successful plea of lis pendens is not an absolute bar
to proceedings commencing. It is a matter within the discretion of the Court to
decide whether an action brought before it should be stayed pending the
decision of the first action, or whether it is more just and equitable that it
should be allowed to proceed. Thus, the Court enjoys a discretion to be
exercised in a proper case and determine whether the interest s of justice
dictate that the second action should be allowed to proceed.
6 Therefore, and
in the interests of justice and in carrying out the purpose and object s of the
LRA on speedy resolution of disputes , this Court affords the applicants’
current case number JS777/19 to proceed. More so after consideration of the
following factors:
1. The struck urgent case number JR 3511/2018 is to be deemed
withdrawn;
2. There is no reinstatement application pending against the urgent
that was struck or archived;
4 (J363/2024) [2024] ZALCJHB 212 (12 May 2024) at para 9.
5 Ibid.
4 (J363/2024) [2024] ZALCJHB 212 (12 May 2024) at para 9.
5 Ibid.
6 Eksteen v Road Accident Fund [2021] 3 All SA 46 (SCA) at paras 52 – 53.
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3. The parties in the current matter have already engaged and held
the pre-trial proceedings;
4. The applicants’ status changed from a total number of 79 applicants
to 11. Though this status changed after the current action was
lodged with all 79 employees. The remaining applicants are to be
afforded an opportunity to litigate their dispute to finality.
Lack of Jurisdiction (Condonation)
[24] The respondent raised the issue of a lack of jurisdiction, which was based on
an unreasonable delay of almost a year . This calculation is made from the
date of the urgent application that was struck o n 9 October 2018. The Court
accepts that this period is exorbitant and deserves explanation prior to dealing
with the statement of claim in October 2019.
[25] The employees contended that the action which led to the launching of the
current statement of claim of October 2019 action was not triggered by the
unresolved CCMA dispute of 29 May 2018. The current statement of claim
arose from the CCMA dispute referred to in April 2019. Therefore, there is no
need for the applicants to file a condonation application.
[26] That subsequent 7.11 referral that was filled, the CCMA refused to hear the
matter and stated that it did not have jurisdiction. This allegation was
substantiated by a follow-up copy of the l etter s erved to the CCMA in July
2019. Except for this submission, there is no ruling from the CCMA nor the
certificate of outcome in terms of section 191 of the LRA attached to this
application. This Court finds it difficult to assume jurisdiction in the absence of
reliance on the relevant provisions of the LRA.
[27] The LRA provision requires that the CCMA or the Council must attempt to
resolve ‘Disputes about unfair dismissals and unfair labour practices .’ Whilst
section 191 (4) – (11) of the LRA provides that ‘the council of the Commission
must attempt to resolve the dispute through conciliation:
…
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(5) If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days or any further period as agreed between the
parties have expired since the council or the Commission received the
referral and the dispute remains unresolved.
…
(10) No person may apply to any court of law to review the director’s
decision until the dispute has been arbitrated or adjudicated, as the
case may be.
(11) (a) The referral, in terms of subsection (5)(b), of a dispute to the
Labour Court for adjudication, must be made within 90 days after the
council or (as the case may be) the commissioner has certified that
the dispute remains unresolved.
(b) However, the Labour Court may condone non-observance of that
timeframe on good cause shown.’
[28] The current application is in dispute as to whether it compl ies with the
required provisions stipulated above. The employees failed to comply with the
submission of the evidence that this matter was resolved and finalised at the
CCMA, prior to being issued or heard at the Labour C ourt. Even in the event
that this Court may accept the applicants’ explanation that the CCMA ignored
or refused to deal with their claim, the CCMA convenor or director should
have been approached. Alternatively, lodged an applicati on to compel the
CCMA, which was not so done.
[29] There is no further evidence demonstrated before this C ourt that the CCMA
refused to attend to the applicants ’ dispute. Save for the applicant’s letter ,
which was not responded to. The Court finds that there is a duty upon the
applicants to explain the period lapsed between:
(i) The urgent matter that was struck on 9 October 2018 and the period of
filing the statement of claim in October 2019.
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(ii) The period between the alleged April 2019 CCMA dispute and to date
of the statement of claim. More so because there is no certificate or
ruling order.
Therefore, the court finds that the condonation application is required in this
matter.
[30] The court is of the view that the applicants were attempting to avoid this
explanation of the missing puzzle of the periods stated above by hiding
behind the newly instituted action. It follows that in the absence of an
application for condonation, this Court has no jurisdiction and cannot come to
the Applicant’s assistance. Therefore, the court finds that the respondent’s
point in limine of lack of jurisdiction stands. In the absence of an application
for condonation adducing evidence as to why this C ourt should hear the
action, this Court lacks jurisdiction to entertain the main action claim.
[31] Having addressed the relevant provisions and issues. The last issue to be
decided is on the costs. This is a case where the Court has to strike a
balance, considering the requirements of law and fairness and the number of
affected employees.
[32] Insofar as costs are concerned, this Court has a broad discretion in terms of
section 162 of the LRA to make orders for costs according to the
requirements of the law and fairness. In my view, the interest of justice will be
best served by reserving costs to be determined at the hearing of the main
application.
[33] I n the premises, I make the following order:
Order
1. The respondent’s first point in limine of lis pendens succeeds. The
case number J3511/ 18 was still a pending litigation in this court at the
time of launching case number J777/19.
2. The case number J3511/18 is deemed to be withdrawn in terms of
Paragraph 11.2.3 of the Practice Manual of this court.
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3. The second point in limine of lack of jurisdiction is upheld on two
grounds:
3.1. No compliance with the provisions of section 191 (4) and (5) of
the Act (LRA).
3.2. Absence of condonation application.
4. Costs are reserved to be determined in the main action.
_______________________
ZD Maluleke
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Advocate Amause Mohlala.
Instructed by: Bayi Attorneys
For the Respondent: Advocate Lenette Pillay
Instructed by: Yusuf Nagdee Attorneys