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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 209/21
In the matter between
DEPARTMENT OF INFRASTRUCTURE DEVELOPMENT Applicant
and
GENERAL PUBLIC SERVICE BARGAINING COUNCIL First Respondent
COMMISSIONER ELAINE MOLEKO N.O. Second Respondent
NEHAWU Third Respondent
WENDY MHLANGA Fourth
Respondent
Heard: 15 July 2025
Delivered: 02 December 2025
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date for hand- down is deemed to be on 02
December 2025.
JUDGMENT
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SAUNDERS, AJ
Introduction
[1] This matter deals with a review application and the ancillary issue of
condonation for the late filing of the review. The applicant seeks an order
setting aside the arbitration award. The application is opposed.
[2] At the hearing of the matter, full argument was presented. Judgment was
reserved. Prior to the consideration of the merits of the review application, the
issue of the deemed withdrawal must be considered.
[3] On 23 January 2024, the third and fourth respondents filed a Notice of
Deemed Withdrawal. On the preparation of this judgment , there were several
references to a reinstatement application. The first was a letter from the
attorney for the third and fourth respondents, dated 11 November 2024, which
referenced a reinstatement application brought by the applicant, presumably
in response to the Notice of Deemed Withdrawal. In addition, the
reinstatement application was referenced in the heads of argument prepared
by the applicant.
[4] There was no reinstatement application in the court file. On request from the
parties, I was provided with a copy of the reinstatement application by the
third and fourth respondents, who also indicated that the reinstatement
application was not opposed and that they sought an order in the main
application. The reinstatement application appears to have been served on
the third and fourth respondents, who confirmed receipt and that the matter
was unopposed, but it did not reflect a court stamp.
[5] A further request, specifically to the State Attorney, to be provided with a copy
of the reinstatement application which had been served and, importantly, filed,
was left unanswered.
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[6] This review application was launched under the provisions of the now-
repealed Practice Manual 1 (Practice Manual) and the Rules of the Labour
Court in existence in 2020.
[7] The relevant excerpts of Clause 11 of the Practice Manual read as follows:
‘11.2 Applications to review and to set aside arbitration awards and
rulings
11.2.1 Once the registrar has notified an applicant in terms of Rule 7A
(5) that a record has been received and may be uplifted, the
applicant must collect the record within seven days.
11.2.2 For the purposes of Rule 7A (6), records must be filed 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
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.
11.2.4 If the record of the proceedings under review has been lost, or
if the recording of the proceedings is of such poor quality to the
extent that the tapes are inaudible, the applicant may approach
the Judge President for a direction on the further conduct of
the review application. The Judge President will allocate the
file to a judge for a direction, which may include the remission
1 Practice Manual of the Labour Court of South Africa effective 2 April 2013 and repealed with effect
from 17 July 2024
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of the matter to the person or body whose award or ruling is
under review, or where practicable, a direction to the effect that
the relevant parts of the record be reconstructed.
…
11.2.7 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 Arguments) 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 is
shown why the application should not to be archived or be
removed from the archive.’
[8] Clause 16 of the Practice Manual reads as follows:
‘16. ARCHIVING FILES
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.
16.2. A party to a dispute in which the file has been archived may submit an
application, on affidavit, for the retrieval of the file, on notice to all
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other parties to the dispute. The provisions of Rule 7 will apply to an
application brought in terms of this provision.
16.3 Where a file has been placed in archives, it shall have the same
consequences as to further conduct by any respondent party as to the
matter having been dismissed.’
[9] In this matter, the review application was launched on or about 4 February
2021. On 5 March 2021, the Notice of Compliance in terms of Rule 7A(2)(b)
was filed by the bargaining council, indicating that the record was available for
collection by the applicant. The record appears to have been filed on 12 May
2021. On 6 June 2021 and 11 June 2021, further Notices of Compliance in
terms of Rule 7A(2)(b) were filed by the bargaining council. The second part
of the record was filed on 11 August 2021, some 3 months after the first part
of the record was filed. The supplementary affidavit was served and filed on
12 August 2021, and the answering affidavit of the third and fourth
respondents was served and filed on 22 September 2021. No reply was filed.
On 4 August 2022, almost a full year after the pleadings closed, the applicant
took steps to have the matter enrolled.
[10] On 23 January 2024, the third and fourth respondent s correctly brought a
notice stating that the application is deemed withdrawn in terms of the
Practice Manual. On 13 February 2024, Makhura J issued a directi ve that the
matter be enrolled on the opposed motion roll for hearing. This was done. It
appears that the third and fourth respondents consider this directive to be a
finding on the issue of the deemed withdrawal. This is not the case. The
directive is simply a case management step referring the matter for
adjudication. That adjudication will include an assessment of the deemed
withdrawal.
[11] According to correspondence in the court file, a reinstatement application
appears to have been served on the third and fourth respondent by the
applicant on or about 5 November 2024, some 11 months after the Notice of
applicant on or about 5 November 2024, some 11 months after the Notice of
Deemed Withdrawal and in excess of two years since a date was requested
from the Registrar (being 4 August 2022). There is nothing to suggest that the
reinstatement application was ever filed in the court file.
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[12] It is incumbent on this court to consider the reinstatement application to the
extent that it is before the court. In the unreported judgment of Chasi v
University of Johannesburg2, Snyman AJ stated the following:
‘[42] A referral as contemplated by section 191(11) is made by way of a
statement of claim in terms of Rule 6 of the Labour Court Rules .3 Rule
6(1) prescribes that the statement of claim must be in a document
form, inter alia containing the title of the matter, the case number
assigned by the Registrar, and must be signed by the referring party
concerned.4 Of particular relevance to the case in casu, Rule 6(1)(f)
prescribes that the statement of claim must 'be delivered'.
[43] As to what constitutes 'delivered', this is dealt with in the definitions in
Rule 1, where it is recorded that “deliver’ means serve on other parties
and file with the registrar' . In turn, 'serve' is defined as meaning
service in terms of Rule 4(1)…
[44] It follows from the above that a referral to this Court in terms of Rule 6
only exists when a statement of claim complying with all the provisions
of Rule 6(1) is validly served on the respondent party, and then filed in
Court. There is no delivery of the statement of claim until such time as
both the service and the filing of the statement of claim has occurred.’
[13] While the above dictum addressed referrals in terms of Rule 6, the principles
are equally as applicable to referrals under Rule 7A as well. On the basis that
the State Attorney was not able to indicate that the reinstatement application
was before Court, the only conclusion must be that it was served on the third
and fourth respondent but not filed in the court file and therefore does not
meet the threshold of being a proper referral before Court.
[14] In the absence of a reinstatement application for consideration, the review
application has been deemed withdrawn and is not before this Court. On the
basis that the review application has lapsed and is deemed withdrawn, and
basis that the review application has lapsed and is deemed withdrawn, and
may not be reinstated until such time as the applicant is successful in applying
2 [2022] ZALCJHB 275.
3 These are the Rules for the Conduct of Proceedings in the Labour Court (as amended), first
promulgated by GN 1665 in GG 17495 of 14 October 1996.
4 See Rule 6(1)(a)(i) and (ii), and Rule 6(1)(c).
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to have the lapsed application retrieved from the archive and reinstated, the
matter must be struck from the roll.
[15] It is hereby ordered that:
Order
1. The matter is struck from the roll.
2. There is no order as to costs.
______________________
S. Saunders
Acting Judge of the Labour Court of South Africa
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Appearances
For the Applicant: Adv M Khumalo
Instructed by: State Attorney
For the Third Respondent: Adv PF Serogole
For the Fourth Respondent: MashifaneMoswane Attorneys