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[2026] ZALCCT 9
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Bwawusa obo Seti v Commission for Conciliation, Mediation and Arbitration and Others (C236/2024) [2026] ZALCCT 9 (15 January 2026)
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No:
C236/2024
In
the matter between:
BWAWUSA o.b.o GERALD
KIMISHI SETI
Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
MACJON
MAARMAN N.0.
Second Respondent
LANCEWOOD FARM (PTY)
LTD
Third Respondent
Heard
:
16 October 2025
Delivered
:
15 January 2026
Summary:
Review application - review application late - record late -
application for condonation - reinstatement
JUDGMENT
MKHATSHWA, AJ
Introduction
[1]
This is an opposed application:
- for condonation for the
late filing and / or service of the Transcribed Record of the
arbitration award of the Second Respondent
issued on the 05
th
of April 2024 in his capacity as an arbitrator of the First
Respondent in the matter between BWAWUSA OBO GERALD KHIMISHI SETI and
LANCEWOOD FARM (PTY) LTD under case number WEGE621-2023, in terms of
which he dismissed the Applicant’s claim and found that
the
Third Respondent had not unfairly dismissed the Applicant.
- to reinstate the
Applicant’s Review Application under case number C236/2024.
[2]
The Building, Wood and Allied Workers Union
of South Africa (BWAWUSA) is the Applicant, acting on behalf of the
employee, Mr Gerald
Khimishi Seti.
Background facts
[3]
The Applicant avers that it served what it
calls a “homebrewed” transcribed record on 21 August 2024
via email on the
Registrar and the Respondents. On 05 September
2024, the Third Respondent’s attorneys of record questioned the
authenticity
of the transcribed record and also asked for all
documentation and CDs from the Registrar so they could construct
their own record.
On 06 September 2024 the Applicant responded and
indicated the status of its dire financial position and what
assistance it could
provide to secure a correct transcription.
On 10 September 2024, the Applicant alleges that it sent all the
documentation
and records requested by the Third Respondent’s
attorneys of record.
[4]
On 12 November 2024 the Third Respondent’s
attorneys of record acknowledged receipt of the documentation and
records.
On 01 November 2024 the Third Respondent’s
attorneys of record advised the Applicant that the review application
had lapsed
and therefore deemed to have been withdrawn. The
Applicant states that on 04 November 2024, it sought an indulgence
for time
“
to fix the errors
”
and to comply with the Rules for the Conduct of Proceedings in the
Labour Court (the rules). On 06 November 2024 the
Third
Respondent’s attorneys of record advised the Applicant to bring
an application to reinstate the review application
as they could not
allow the Applicant to file the transcribed record without a court
order but also that the application for reinstatement
would be
opposed.
[5]
According to the Applicant, the
reinstatement application was 54 days late. The Applicant alleges
that the Third Respondent has
not suffered significant prejudice
because of the delay. Further that the Third Respondent has
been fully engaged in the
process and has had the opportunity to
prepare its version of the transcribed record.
[6]
Regarding the prospects of success, the
Applicant argues that the Second Respondent accepted evidence that
was objected to as hearsay.
Also, that the Second Respondent
failed to determine the reasonableness of the management’s
decision to belatedly cancel
leave it had already granted.
[7]
On its part the Third Respondent alleges
that it received the application for condonation and the application
for review on 11 June
2024 via email. This made the application
approximately 25 days late.
[8]
The Third Respondent states that a previous
version of the application that contained neither a case number nor a
court stamp was
electronically served on it on 31 May 2024. In
that case the application would have been 14 days late. To this end
the Third
Respondent’s attorneys of record advised the
Applicant that the application had not been served in accordance with
rule 3(1)
and that it could not be considered as it did not have a
case number. That the Applicant took another 11 days until 11 June
2024
to formally serve the papers, without an explanation of the
delay. Further that the papers served on 11 June 2024 did not
contain a court stamp and as such it was not possible to ascertain
when the papers were issued.
[9]
The Third Respondent denies the explanation
of the lack of funds by the Applicant, as the Applicant alleges to be
the largest trade
union in the building sector in the Western Cape.
According to the Third Respondent, the Applicant’s legal
department ought
to have prepared the application.
[10]
Regarding prejudice, the Third Respondent
argues that the employee continues to reside on the Third
Respondent’s premises
since his dismissal. Further
that the employee is causing disharmony among existing farm employees
and that he has
had an altercation with the farm’s security
company that has led to criminal charges. Further that his stay
on the
farm has caused a shortage of accommodation as his vacancy
needs to be filled.
[11]
The Third Respondent states that the
Applicant has failed to set out what legal errors were allegedly made
by the Second Respondent.
Further that the Applicant failed to state
which crucial evidence was objected to as hearsay. That the
employee’s leave
was cancelled by the Applicant upon receipt of
a protected strike as the Third Respondent is a dairy farm it could
not stop its
operations.
Evaluation
[12]
The employee was dismissed on 08 September
2023 after a disciplinary hearing. He was employed as a Farm
Manager. The
dismissal of the employee was upheld on 05 April
2024 in the award of the Second Respondent.
[13]
Immediately on the date of the award, the
Applicant made its intention clear that it was going to bring a
review application. Coincidentally
it specifically made reference to
the six weeks requirement to bring the application. On 31 May 2024 an
unissued application was
served outside of the six weeks period.
It was only on 11 June 2024 that the application with a case number
but without a
court stamp was served.
[14]
The so-called “homebrewed”
transcript was filed on 21 August 2024. The Third respondent’s
attorneys of record
advised the Applicant that the transcript was not
certified. There was no response and again on 5 September 2024
the Third
Respondent’s attorneys of record highlighted issues
with the record. The following day the Applicant responded indicating
that the entirety of the record filed by the First Respondent would
be couriered.
[15]
On 10 September 2024 the Third Respondent’s
attorneys of record informed the Applicant that the 60 days period
within which
to file the record was approaching and that the
Applicant was not absolved from filing the proper record. There was
no response
from the Applicant. The due date for the filing of the
record was on 16 September 2024.
[16]
On 04 November 2024 the Applicant requested
an indulgence for the late filing. On 06 November 2024 the
Third Respondent’s
attorneys advised the Applicant to bring a
reinstatement application.
[17]
The entire application in this matter is
replete with serious problems. The review application was
approximately 14 days out of
time. There is no replying
affidavit in respect of the condonation application. The application
for reinstatement was approximately
54 days out of time. The
Applicant did not file a notice indicating whether it stood by its
notice of motion and founding affidavit.
It did not file a replying
affidavit in the reinstatement application. The correct transcript
(properly certified) has not been
filed by the Applicant with the
Registrar to date. The Applicant has also not filed a record of
the arbitration proceedings.
[18]
The Applicant blames a “miscommunication”
for its failures, in particular with reference to the various
correspondences
that were exchanged between the parties.
Legal analysis
[19]
In
the matter of
Saloojee
and Another NNO v Minister of Community Development
[1]
, Steyn CJ held as follows:
“
A
litigant, moreover, who knows, as the applicants did, that the
prescribed period has elapsed and that an application for condonation
is necessary, is not entitled to hand over the matter to his attorney
and then wash his hands of it. If, as here, the stage is
reached
where it must become obvious also to a layman that there is a
protracted delay, he cannot sit passively by, without so
much as
directing any reminder or enquiry to his attorney…and expect
to be exonerated of all blame; and if, as here, the
explanation
offered to this Court is patently insufficient, he cannot be heard to
claim that the insufficiency should be overlooked
merely because he
has left the matter entirely in the hands of his attorney. If he
relies upon the ineptitude or remissness of
his own attorney, he
should at least explain that none of it is to be imputed to himself.
That has not been done in this case.”
[20]
My sister
Prinsloo J in
South
African Social Security Agency v Hartley and others
[2]
,
makes a distinction between a scenario where the record is available,
yet the applicant has done nothing to have it transcribed
and filed,
and a scenario where the applicant has made serious attempts to file
the record but cannot do so because the record
either does not exist
or is not made available.
[21]
In
terms of the former Practice Manual
[3]
,
sub-clauses 11.2 and 11.3 respectively read as follows:
‘
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.’
[22]
Sub-ule 37(13), (14), (15) and (16) of the current Rules of this
court now provide that:
“
(13)
The applicant must furnish the registrar and each of the other
parties with a copy of the record or portion
of the record, as the
case may be, and a copy of the reasons filed by the person or body;
provided that, should it transpire that
the person or body upon whom
a notice of motion is served in terms of subrule
(2)
has failed to deliver a complete record, the 60-day period
contemplated in subrule (14)
will commence running only once a
complete record has been delivered.
(14)
Transcribed records must be delivered within 60 days of the date on
which the applicant is advised by the
registrar that the record has
been received.
(15)
If the applicant fails to file a transcribed 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. Any consent given must be expressed in writing and
filed with the registrar.
(16)
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 35.”
[23]
It
was held in
Govender
and Others v CCMA and Others
[4]
that
the application for reinstatement requires an assessment of the
applicant’s prospects of success in the review application.
[24]
An example
of an extreme case of tardiness, was dealt with in
Liwambano
v Department of Land Affairs and Others
[5]
,
the applicant had for a period of four years made no effort
whatsoever to have the arbitrator’s bench notes transcribed
and
had made no attempt to reconstruct the transcript of the evidence
from inaudible, incomplete and intelligible electronic recording,
despite the respondent employer’s willingness to cooperate in
the reconstruction. The application for review was dismissed
as
a result.
[25]
Regarding the application for condonation, the
Applicant has provided scant details explaining the delay in bringing
the review
application itself. The absence of the record of the
arbitration makes it doubly hard to understand the merits of the
Applicant’s
case. As a result, it is impossible to
determine what prospects of success if any the Applicant has in the
review application.
[26]
While the delays both in the review application
and in the reinstatement application are not excessive (approximately
14 days and
54 days respectively), once more it is the explanation
that is not sound. A miscommunication cannot be a reason why a
party
does not comply with the rules of court. The Employee was
employed as a Farm Manager, a fairly senior position. He should
have known that he needed to hurry the Applicant along to process his
case. He was initially represented by attorneys (plus
Counsel)
and subsequently by the Applicant. The fact that the Third
Respondent’s attorneys of record kept responding
in writing and
advising the Applicant on what steps to take to move the application
forward counts against the Applicant and the
employee. The
Applicant knew that the time lines were approaching and that they
subsequently passed for the processing of
the application. Yet
the Applicant paid scant regard to the requirement to comply with the
rules of the court.
[27]
On the question of prejudice, the employee has
effectively been “free loading” as he has enjoyed
accommodation at the
Third Respondent’s premises way past his
date of dismissal. A factor that should have spurred him and the
Applicant on to
process the application expeditiously. They have
failed to do so. It begs the question whether the Applicant
deliberately
delayed the application, because the employee continues
to enjoy the benefit of the Third Respondent’s accommodation?
Whatever
the motivation, the Applicant, clearly with the full
knowledge of the employee has not done much to assist the employee’s
case.
[28]
Do the interests of justice favour the Applicant?
Considering the facts of this matter and the applicable law, even the
interests
of justice militate against the court exercising its
discretion in favour of the Applicant or the employee.
Conclusion
[29]
The Applicant has not shown good cause for the granting of the
application for condonation and it has failed to show good cause
for
the reinstatement of the review application.
[30]
In the premise the following order is made:
Order
1.
The application is dismissed.
2.
There is no order as to costs.
M.
Mkhatshwa
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Mr H Mdyogolo (BWAWUSA)
For
the Third Respondent:
Adv M Aggenbach
Instructed by:
Brand & Van der Bergh Attorneys
[1]
1965 (2) SA 135
(A) at para 141.
[2]
(2023) 44 ILJ 1334 (LC).
[3]
Effective
2013. Repealed and replaced by the Rules regulating the conduct of
proceedings of the Labour Court (GN50608). Effective
17 July 2024.
[4]
(2024) 45 ILJ 1197 (LAC).
[5]
(2012) 33 ILJ 1862 (LC).