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[2025] ZALCCT 133
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Mhlaba v CCMA and Others (C259/22) [2025] ZALCCT 133 (12 December 2025)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
no :C259/22
(1)
Reportable Yes/No
(2)
Of interest to other Judges: Yes/No
(3)
Revised
Signature
Date
In the matter between:
MHLELI
MHLABA
Applicant
and
CCMA AND COMMISSIONER
MELVYN
NASH
First And Second Respondent
FAWU
Third Respondent
MNGOMEZULU
MAYOYO
Fourth Respondent
Heard : 17 September
2025
Delivered
:
12 December 2025
Summary
: Points in limine “
DEEMED
WITHDRAWN
”
Erstwhile Practice
Manual Clause 11.2.1 to 11.2.3 – Late filing of records and
review application - archived – Condonation
application for the
review application and re-instatement of the review application.
JUDGMENT
GURA, AJ
Introduction
[1] This judgment
specifically deals with the interlocutory application by the third
and fourth respondent wherein they raise
the following preliminary
points:
1.1 The applicant
failed to timeously serve the record on the third and fourth
respondent’s appointed address and thus
the review application
is deemed withdrawn and or lapsed (first preliminary point);
1.2 the applicant
failed to timeously file the record, and thus the review application
is deemed withdrawn and or lapsed (second
preliminary point);
1.3
the applicant instituted the review application outside the six week
period stipulated by section 145 (1)(a) of the Labour
Relations
Act
[1]
(the LRA), without an
application for condonation, and thus the review application is not
properly before this court (third preliminary
point);
Background
[2] The point of
departure by the Applicant in his Heads of Arguments in reply to the
Third and Fourth Respondent’s
Supplementary Heads to the points
in limine
, was that latter raises last minute preliminary
issues in a painstaking effort to block the review from being
adjudicated on the
merits. The Applicant thus proceeded to deal with
the three preliminary points respectively.
First Preliminary
Point - the wrong address issue
[3]
The Respondent’s point of departure herein was to quote the
judgment of
Moraka
v National Bargaining Council for the Chemical Industry and others
[2]
where La Grange J confirmed:
‘
Once
a party has elected an address for service and properly notified the
opposing party of that address, it is entitled to assume
that any
service will be effected at that address and nowhere else.’
[4]
Argued that by the Applicant’s own admission, did not serve the
record on the third and fourth respondents’
elected address,
but rather on an alternative address
[3]
.
The service was thus defective. The Applicant only served the record
on the third and fourth respondent’s elected address
on 28
January 2025, more than two years after expiry of the 60 day period
contemplated in clause 11.2.3 of the Practice Manual,
the review
application is deemed withdrawn. The Respondents proceeded to quote
in their footnote, the case of
Shoba
Zikhali v Technology Innovation Agency and Others
[4]
,
where the Labour Court held that if an applicant does not serve the
record on the respondents the applicant has not complied with
the
requirements of rule 7A(6) of the Labour Court Rules. Van Niekerk J
(as he then was) held:
‘
Rule
7A(6) refers to the obligation to “furnish” the Registrar
and other parties with a copy of the transcribed records,
while
clause 11.2.2 of the Practice Manual requires the applicant to “file”
the record. The only sensible interpretation
to be accorded clause
11.2.2 is that the obligation to file the record is no different to
the obligation to ‘furnish’
the record for purposes of
Rule 7A(6) …The Applicant does not dispute that the
transcribed record was furnished to the first
respondents months
late. There is no record of any request addressed to the Judge
President for a direction. In the absence of
compliance with Rule 7 A
(6) …The applicant does no dispute that the transcribed record
was furnished to the first respondent
months late. There is no record
of any request for any extension within which to furnish the record,
nor is there any record of
any request addressed to the Judge
President for a direction. In the absence of compliance with Rule 7A
(6) read with clause 11.2
of the Practice Manual, the applicant is
deemed to have withdrawn the review application.’
[5]
[5] Respondents
thus submitting the Applicant’s service was defective as he
served the record on the third and fourth
respondent’s elected
address on 28 January 2025, more than two years after the expiry of
the 60 day period contemplated in
clause 11.2.2 of the Labour Court
Practice Manual (the Practice Manual) and therefore the review
application is deemed withdrawn.
[6] The Applicant’s
reply in relation to this first point
in limine
submitted that
the respondent notified both the court registrar and the applicant by
email that they chose their attorneys address
as the address where
all service will be received, as outlined in their Notice of
Opposition. What the Respondents failed to do
is to file the Notice
in court as outlined in the court directive that was issued during
the Covid-19 pandemic, Labour Court Judge
President Practice
Directive 02/2022. In terms of the Directive clauses 1 (a), (b) and
2(a), the service email should be followed
by a contact and service
affidavit, and thereafter it should be filed in court as soon as
possible. Applicant argued further that
there is no record that the
respondent attorneys filed the Notice of Opposition in court in line
with the court’s directive.
Both the registrar and the
applicant were thrown off by that due to lapse of time, hence
Registrar enrolled the matter on the unopposed
roll and had to
withdraw and re-enroll it as opposed. The application was withdrawn
by agreement between the parties after Applicant
filled Notice of
Objection (Irregular Step). Lastly, Applicant humbly submitted that
there was thus no filling of the Notice of
Opposition in court.
Second Preliminary
Point – Late Filing of Record
[7]
Respondents argued that the record was filed late. On 27 June 2022
the Registrar notified the Applicant that the record
was available
for collection in terms of Rule 7A (5) of the erstwhile Labour Court
Rules. Its common cause that the Applicant uplifted
the record from
the Labour Court on 28 June 2022 and accordingly arranged
transcription of the records by emailing same to the
transcriber.
Portion of the records were however illegible,thus the Applicant
uplifted the records yet again and provided them
directly to the
transcriber.The second transcription was legible and was filed on 21
October 2022.Respondents argued that the Applicant
seems to suggest
that the second upliftment to re-transcribe the illegible portions of
the records interrupted the 60 day period
contemplated in clauses
11.2.2 and 11.2.3 of the erstwhile Practice Manual. Thus argued and
placed on record that complications
in transcribing the recordings do
not interrupt the 60 day period
[6]
.
If the Applicant encounters such complications, recourse can be found
in the provisions of clause 11.2.3
[7]
.
[8] Applicant in
response to this point
in limine
, was to the effect that the
Respondents misunderstand the wording of clause 11.2.3 as in
accordance with his understanding this
refers to a situation where
the record is delayed, and this is not the position herein.
Third Point
in
Limine
- No Application for Condonation by the Applicant
[9]
As a point of departure, Respondents argued that the review
application was instituted outside the six week period contemplated
in section 145 (1)(a) of the LRA. Applicant conceded that the Second
Respondent served the arbitration award on him on 14 April
2022 by
email. Applicant however only became aware of the award on 18 April
2022.Further that the CCMA is to have made a follow
up call to
confirm and or alert him and did not. That 18 April 2022 is the date
he became aware of the award using Ronald Mbana
’s computer as
he did not have emails nor a sophisticated phone that received
emails, as he handed same back to the erstwhile
Employer. Thus,
Applicant conceded to being late by two days, after counting 14 April
2022 as per the Respondent’s argument.
Thus, as per Applicant’s
calculations and in accordance with section 145 (1)(a) of the LRA,
the award reviewed was filed
on 2 June 2022 within 44 days from the
day it was served. The Respondents argued that if the Applicant’s
argument was to
be entertained that the days should be calculated as
at 14 April 2022 he would have had to institute the review by 26 May
2022,
which makes the review application seven days late. Further, if
18 April 2022 is to be used as the date of calculation of the six
week period, application fell due on 30 May 2022 and is thus still
late. Thus Respondents argued that the review application is
not
properly before the court.
[8]
[10] Respondents
thus argued that the court lacks jurisdiction to adjudicate the
Applicant’s review application for
at least the above 3
distinct reasons. Firstly, there is not review application before
this Court as it was filed outside the prescribed
time limit;
secondly, the review application is deemed withdrawn and or lapsed as
Applicant did not serve same on the Respondent‘s
appointed
address until January 2025; and lastly, the application is deemed
withdrawn and/or lapsed as Applicant did not file the
review record
within the prescribed 60 days.
The
Law
[11] Paragraphs
11.2.2 to 11.2.2 of the Practice Manual provided as follows :
‘
11.2
Applications to review and set aside arbitration awards
and rulings
11.2.1 Once the registrar
has notified an applicant in terms of Rule 7 A (5) that a record has
been received and may be uplifted,
the applicant must collect the
record within 7 days.
11.2.2 For the purposes
of Rule 7 A (6), records must be filled within 60 days of the date on
which the applicant is advised by
the registrar that the record has
been received.
11.2.3 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 filled
within the time limits prescribed by Rule 7.The Judge President will
then allocate
the file to a judge for ruling, to be made in chambers,
on any extension of time that the respondent should be afforded to
file
the record”
[12]
The Labour Appeal Court (LAC) in the matter of
SAMWU
obo Shongwe and Others v Moloi N.O and Others
[9]
held that:
“
In
IMATU, this Court held in respect of the delay in the prosecution of
a review brought in terms of the LRA, essentially, that
the Labour
Court has the discretionary power to dismiss a review for that
reason, but it was a power that had to be exercised with
circumspection and in exceptional circumstances, because of a
litigant’s rights in terms of section 34 of the Constitution
to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before a Court. It was held
further
there, that in the exercise of that discretion, the delay must not be
considered in a vacuum, but must be evaluated in
light of the
relevant facts, including the prejudice of the parties, the possible
consequences of granting the relief sought in
respect of the merits,
and the prospects of success, although there is no close list. This
Court also held that, ultimately the
interests of justice are
paramount.”
[13]
In
City
of Johannesburg Metropolitan Municipality and Others v Independent
Municipal and Allied Trade Union and Others
[10]
the LAC held:
“
[55]
Having found that there has been an inadequately
explained unreasonable delay, the court nevertheless retained
the
discretion to determine the application on its merits. In other
words, the Court a quo, in the exercise of its discretion had
to
decide whether it was going to deal with the merits despite the
delay. The delay cannot be evaluated in isolation or in vacuum
but
must be evaluated taking into account at least the following :the
potential prejudice to the affected parties,the possible
consequences
if granting the relief sought and the effect of not granting it or
not dealing with the matter on the merits.
[56]
The nature of the application and the strength of the merits may also
either favor or not favor
overlooking the delay. Unfortunately, the
Court aquo came to a conclusion that the application stood to
be dismissed by looking
at the issue of delay in isolation …
[76]
The Court a quo erred in dismissing the application because of the
delay, without considering
,whether, in light of factors such as the
right of the parties in terms of section 34 of the Constitution, the
importance of the
matter, the prospects of success of the
application, the potential prejudice of the parties, including the
consequences of not
granting the relief sought and of not finalizing
the application on its merits, it should, nevertheless, entertain the
application,
despite the delay, and concluding accordingly…’
[14]
In
Samuels
v Old Mutual Bank
[11]
it was held that:
“
In
essence , an application for the retrieval of the file from 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; the applicant
provide a
reasonable explanation which covers the entire period of default and
shows that he/she has reasonable prospects of success
in the main
application, and lastly that it is in the interests of justice to
grant the order. It is not a requirement that the
applicant deal
fully with the merits of the dispute to establish prospects of
success, it is sufficient to set out facts which
if established,
would result in success. In the end, the decision to grant or refuse
condonation is a discretion which must be
judicially exercised.”
[15]
Authority is to the effect that the court has a wide discretion
whether condonation should be granted which should be
exercised
judicially, on the consideration of each and every case
[12]
.That
condonation is not merely there for the asking
[13]
.The
court’s discretion is furthermore not absolute or unqualified
and must be exercised in accordance with certain recognized
principles. What is mainly required for the Applicant is to show good
cause when applying for condonation.
[16]
The courts have laid down factors, although not exhaustive, which
have been identified as being relevant to the consideration
of
whether or not an Applicant for condonation, has succeeded in showing
good cause for condonation
[14]
.
The application must be made
bona
fide
,
the Applicant must show that it has reasonable prospects of
success
[15]
. The degree of
non-compliance and the explanation for the delay
[16]
.The
importance of the case
[17]
.The
nature of the relief sought
[18]
.
The other party’s interest in finality
[19]
.
Prejudice to the Respondent which cannot be compensated for by a
suitable costs order
[20]
. The
convenience of the court. The avoidance of unnecessary delay in the
administration of justice, and the degree of negligence
of the
persons responsible for the non-compliance
[21]
.
Willful default or gross negligence will preclude a finding of good
cause
[22]
. The Applicant must
argue that where there are no sufficient prospect of success for
lateness to be condoned, the interest of justice
is not served by
condoning lateness
[23]
. That
the explanation for the delay must cover the entire period for the
delay
[24]
. In
Melane
v Santam Insurance
[25]
the court held that a slight delay and a good explanation may help
compensate for prospects of success which are not strong. The
Applicant further argued that some allowance must be made for
bona
fide
errors and omissions, and fault can only preclude relief in the event
of intentional disregard, indifference or gross negligence
[26]
.
[17]
The approach to an application for reinstatement of the review should
be considered in the same light as an application
for
condonation
[27]
, bearing in
mind the litigant’s right in terms of section 34 of the
Constitution of the Republic of South Africa, 1996, and
the interests
of justice. Should the reinstatement application be refused, the
Applicant will suffer significant and irreparable
prejudice. It
follows that it would in that unfortunate event be deprived of the
opportunity of having its case for review determined
on the merits.
[18] In the premise
the following order is made:
Order
1.
The Third and Fourth Respondent’s
Points in limine are upheld.
2.
The Applicant is to bring a condonation
application for the late filing of the review application and for the
reinstatement of the
review application if such late filing is
condoned.
3.
There is no order as to costs.
L.
Gura
Acting
Judge of the Labour Court of South Africa
Appearances:
For the applicant:
MHLELI MBANA
Instructed by:
IN PERSON
For the respondent:
CHEADLE THOMPSON & HAYSOM INC.
Instructed by:
JEREMY PHILLIPS
[1]
Act 66 of 1995, as amended.
[2]
(
2011)
32 ILJ 667 (LC) at para 9.
[3]
Applicant’s
Answering Affidavit : Preliminary Points at para 26.
[4]
(D 1462/2019) [2022] ZALCD 1 (22 February 2022).
[5]
Ibid
at paras 10 and 11.
[6]
See:
Muleya
V South African Post Office SOC Limited and Others
(JR2107/21) [2025] ZALCJHB 143 (14 May 2025);
Madikizela
v CCMA and Others
(D382/22) [2024] ZALCD42 (7 November 2024);
Bophelong
Construction (Pty) Ltd v BCEI and Others
(J356/24) [2024]ZALCJHB 176 (2 May 2024).
[7]
See:
Overberg
District Municipality (ODM) v IMATU obo Spangenberg and Others
(C 157/18) [2020] ZALCCT 38 (10 June 2020).
[8]
See:
PT
Operational Services (Pty) Ltd v RAWU obo Ngweletsana
(2013) 34 ILJ 1138 (LAC).
[9]
[2021]
5 BLLR 464
(LAC) at para 26.
[10]
(2017)
38 ILJ 2695 (LAC) at paras 55, 56, and 76.
[11]
(2017) 38 ILJ 1790 (LAC) at para 17.
[12]
See:
S
v Yusuf
1968
(2) SA 52
(A) at para 53.
[13]
See:
Uitenhage
Transitional Local Council v South African Revenue Service
2004
(1) SA 292
(SCA) at para 6.
[14]
See:
TLE
(Pty) Ltd v The Master of the High Court and Others
2012
(2) SA 502
(GSJ) at para 12;
Express
Model Trading 289 CC V Dolphin Ridge Body Corporate
[2014] 2 All SA 513
(SCA) at pages 11 and 19;
Subramanian
v Standard Bank Ltd
[2013] JOL 30321
(KZP) at para 12 and
Gumede
v Road Accident Fund
2007 (6) SA 304 (C).
[15]
See:
Marco
Fishing (Pty) Ltd v Gemfarm Investments (Pty) (Ltd)
[2003] 4 All SA 614
(C) paras 31-33 and
Kgantsi
v S
[2012] JOL 29402
(SCA) at para 7.
[16]
See:
Laerskool
Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd
2012
(2) SA 637
(CC) at paras 15 and 16.
[17]
See:
Kgobane
and another v Minister of Justice
1969
(3) SA 365
(A) at 369.
[18]
See:
Maloney’s Eye Properties and another v Bloemfontein Board
Nominees BPK
1995 (3) SA 249
(O) at 253.
[19]
See:
Van
Wyk V Unitas Hospital and another
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at para 31; Laerskool Generaal (Id fn 18) at para
16.
[20]
Long
v Appeal Authority iro Ndlambe Municipality and Others
[2024] 1 All
SA 364
(ECG) at 29.
[21]
Ibid.
[22]
See:
Securiforce
CC v Ruiters
2012
(4) SA 252
(NCK) at para 12.
[23]
See:
Princeton
Protection Services (Pty) Ltd v Western Cape Provincial Government
and Others and related matters
[2024]
3 All SA 301
(WCC) at 29-30
[24]
See:
eThekwini
Municipality v Ingonyama Trust
2014
(3) SA 240 (CC) at 28,
Pangbourne
Properties Ltd v Pulse Moving CC and Another
2013 (3) SA 140
(GSJ);
Van
Heerden and Another v Master of Eastern Cape High Court, Port
Elizabeth and Others
[2023] 4 All SA 875
(ECP) at para 36.
[25]
See:
Melane
v Santam Insurance Co.
Ltd
1962
(4) SA 531
(A) at 532 B-E.
[26]
See:
Burton
v Barlow Rand t/a Barlow Tractors and Machinery Co
1978
(4) SA 794 (T).
[27]
See:
Tokwe
v General Public Service Section and Others
(PR90/19)
[2024] ZALCPE (25 July 2024) at para 45.