THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 2511/2022
In the matter between:
KELA SECURITIES (PTY) LTD Applicant
and
VINCENT JOSEPH FREEMANTLE First Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
JUSTICE ZINZISWA GUMEDE N.O Third Respondent
Heard: 4 February 2026
Delivered: 13 February 2026
This judgment was handed down electronically by consent of the parties’ representatives by
circulation to them via email. The date for hand-down is deemed to be on 13 February 2026.
JUDGMENT
PRINSLOO, J
Background facts
[1] The First Respondent (Respondent) was employed by the Applicant as its
chief financial officer in October 2020. He resigned in July 2022 and referred
an unfair dismissal dispute to the Second Respondent (CCMA). The dispute
(1) Reportable: Yes
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
was arbitrated in the absence of the Applicant and on 24 August 2022 a
default arbitration award was issued in favour of the Respondent . The Third
Respondent (arbitrator) found that the Respondent was unfairly dismissed
and the Applicant was ordered to pay him compensation.
[2] The Applicant subsequently applied for rescission of the default award, which
application was dismissed on 26 September 2022. In the rescission ruling the
arbitrator considered the fact that the notice of set down from the CCMA was
received by the Applicant on 26 July 2022 (for proceedings on 11 August
2022), but that the Applicant failed to attend the proceedings because “they
had to attend to some urgent reports that needed to be submitted to the JSE
and could therefore not avail themselves for arbitration”.
[3] The arbitrator found inter alia
‘The applicant's representative alleges that they were absent because they
had an urgent submission to make at the JSE.
I have perused the emails between the applicant and JSE which were
annexed to the application. Firstly, it is clear from the emails that the queries
from the JSE started in June 2022. Secondly, on 5 August 2022 the JSE sent
an email to the applicant that the report was viewed and requesting that the
applicant responds by 11 August 2022, the date of the hearing.
Based on the above the applicant had ample time to arrange and ensure that
there is a representative in attendance for the arbitration or at least apply for a
postponement timeously.
Mr Kelatwang sent an email to the commission on 11 August 2022 requesting
a postponement and misleading the commission to say the request is due to
an unforeseen urgent matter, when the matter was foreseen.
The applicant has a duty to show that they have good prospects of
succeeding in the main claim of dismissal, however, they only state that the
employee resigned and is the one who caused their issues with the JSE.
There is no prima facie case or defense shown in as far as the alleged
There is no prima facie case or defense shown in as far as the alleged
constructive dismissal is concerned.’
3
[4] On 10 November 2022 t he Applicant filed an application to review and set
aside the rescission ruling and for the ruling to be substituted with an order
that “the Applicant’s rescission application is hereby rescinded”.
[5] The record was served and filed in June 2023, with a supplementary affidavit.
On 31 August 2023, the Applicant filed an application for condonation of the
late filing of the supplementary affidavit.
[6] In May 2023, the Respondent filed an application in terms of section 158(1)(c)
of the Labour Relations Act
1 (LRA) to make the default arbitration award an
order of the Court. The Respondent informed the Applicant that its review
application had lapsed, which was disputed by the Applicant’s attorneys. The
Applicant’s attorneys indicated that they would oppose the section 158(1)(c)
application. On 4 August 2023, the Registrar issued a notice of set down,
enrolling the section 158(1)(c) application for hearing on 22 November 2023.
The notice was addressed to both parties’ attorneys.
[7] On 22 November 2023 , this Court (per Tlhotlhalemaje) made the default
arbitration award of 24 August 2022 an order of the Court. The said order was
served on the Applicant’s attorneys in January 2024.
[8] A writ of execution was subsequently issued and when the Respondent
commenced with the enforcement process, the Applicant filed an urgent
application to stay enforcement pending the determination of the review
application under case number JR 2511/22.
[9] The urgent application under case number 2025- 172308 was heard on 2
October 2025 and judgment was delivered on 7 October 2025
2. The Court
(per Makhura J) dismissed the urgent application with punitive costs.
[10] The said judgment dealt with the background facts and the relief sought in the
urgent application comprehensively. Relevant for purposes of this judgment is
that in dismissing the urgent application, the Court , referring to applicable
authorities, found that:
1 Act 66 of 1995, as amended.
authorities, found that:
1 Act 66 of 1995, as amended.
2 (2025/172308) [2025] ZALCJHB 456 (7 October 2025).
4
‘[16] From the above, it is clear that the award that the applicant seeks to
review is no longer in existence. The award ceased to exist on 22
November 2023 when Tlhohlalemaje J made it an order of the Court.
This is different to a certification of the award in terms of section
143(3) of the LRA, which does not make the award an order of court.
Therefore, the review application has been overtaken and rendered
moot by the granting of the application in terms of the section
158(1)(c) application. Accordingly, the review door was shut by the 22
November 2023 order, and this Court has effectively become functus
officio in that, having made the award an order of court, the Court
cannot later consider a review of the same award. The applicant’s
remedy is to challenge the order of 22 November 2023. Accordingly,
the application to stay the enforcement of the award pending the
determination of the review application is incompetent and falls to be
dismissed.’
[11] The Court found in no uncertain terms that the review door was shut by the
Court of 22 November 2023, that the Court effectively became functus officio
and cannot consider a review of the same award that was made an order of
court and that t he Applicant’s remedy wa s to challenge the order of 22
November 2023.
[12] Notwithstanding the clear finding of the Court, as set out in the judgment of 7
October 2025, Mr Nyangiwe, for the Applicant , persisted with an application
for review before this Court on 4 February 2026.
[13] The fact that the Applicant persisted with the review application in view of the
recent judgment, the applicable authorities and the existing legal position, is of
grave concern to this Court . I canvassed the reason as to why the review
application remained enrolled with Mr Nyangiwe, who confirmed that he had
represented the Applicant in the urgent application of October 2025 and that
he was well aware of the judg ment by Makhura J. Mr Nyangiwe , who was
he was well aware of the judg ment by Makhura J. Mr Nyangiwe , who was
prepared to argue the merits of the review application, indicated that the
Applicant persisted with the review applicati on because it was so enrolled by
the Registrar. The position adopted by the Applicant and its attorneys is
concerning, problematic and untenable, for reasons I will deal with infra.
5
The law
[14] In the Department of Home Affairs v Public Service Co- ordinating Bargaining
Council and others 3 (Home Affairs), the Court considered the legal principles
regarding the effect of an arbitration award been made an order of the Court
pending a review application and held as follows:
‘[7] The relevant principles are well -established. This court has long held
that the fact of a pending review is not a bar to the court making any
arbitration award that is sought to be reviewed and set aside an order
of court (see Ntshangane v Speciality Metal s CC (1998) 19 ILJ 584
(LC); [1998] 3 BLLR 305 (LC)). It is equally well- established though
that where an arbitration award is made an order of court, that order is
fatal to any pending application to review the award, if only because
the arbitration award ceases to exist. In Blue Marine (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and others
(2003) 24 ILJ 1528 (LC); [2003] 9 BLLR 853 (LC) Ndlovu AJ (as he
then was) said the following at para 15:
‘It is important to reali ze that once the award is made an order
of the court the award, from which such order was made, falls
away. In other words, the two instruments cannot co- exist
alongside each other. Therefore, upon the award being made
an order of the court, there can be no question again of an
application for review, aimed at reviewing and setting aside the
same award. By then, the award no longer exists. Any party
who feels aggrieved by the award, can then only look for
remedy to challenge the court order (derived from the award)
and not the award.’
[8] More recently, in Gauteng Department of Education v Saunders: In re
Saunders v Gauteng Department of Education and others [2015] 12
BLLR 1187 (LAC), the Labour Appeal Court observed at para 32:
“It is trite that once an arbitration award has been made an order of
court, it is no longer reviewable. The order is of final effect and is,
therefore, appealable.”’
therefore, appealable.”’
3 (2018) 39 ILJ 823 (LC); [2017] ZALCPE 24.
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[15] As far back as 2015, the Labour Appeal Court (LAC) confirmed the position
that once an arbitration award is made an order of the Court, it is no longer
reviewable. In Home Affairs, the Court reiterated in 2018 that:
‘I fail to appreciate how under these circumstances it can be said that it
remains open to the applicant to contest the award by way of review. The fact
remains that there are two orders by this court which, on the authorities
referred to above, have had the effect that the award no longer exists and is
therefore incapable of review. Put another way, the application for review is
moot, at least in the sense expressed in National Coalition of Gay and
Lesbian and others v Minister of Home Affairs and others 2000 (2) SA 1 (CC)
where the court said that a case is moot and therefore not justiciable if it no
longer presents an existing or live controversy (at para 21 footnote 8), or
where, in the words of Rand Water Board v Rotek Industries (Pty) Ltd 2003
(4) SA 58 (SCA), making a determination will have no practical effect. (See
Tecmed Africa (Pty) Ltd v Minister of Health and another [2012] 4 All SA 149
(SCA.)’4
[16] The legal position is clear. Even if the Applicant or its attorney was unaware of
the legal position, the possibility of ignorance could not prevail after 7 October
2025, when they received the judgment of Makhura J. The judgment not only
referred to the applicable authorities, but explicitly found that the award that
the applicant seeks to review is no longer in existence, that the review
application has been overtaken and rendered moot by the granting of the
section 158(1)(c) application and that the review door was shut by order of 22
November 2023.
[17] The status of the Applicant’s review application could not be clearer.
[18] The conduct of the Applicant is disturbing in that it ignored the authorities it
was made aware of by Makhura J , and in complete disregard for the legal
was made aware of by Makhura J , and in complete disregard for the legal
position, instructed its attorney to argue the merits of the review application on
4 February 2026.
4 Home Affairs at para 10.
7
[19] In law and effect , the default arbitration award no longer exists and is
incapable of review . The Applicant should have removed the review
application from the roll, but instead instructed an attorney to argue the merits.
[20] The conduct of the Applicant’s attorney, as an officer of this Court , is even
more disturbing. In Ex parte Minister of Home Affairs and Others; In re
Lawyers for Human Rights v Minister of Home Affairs and Others 5 the
Constitutional Court noted that legal practitioners are an integral part of the
justice system, and that they must uphold the rule of law, and act diligently
and professionally. They have a high ethical and moral duty to their clients,
the public and the courts.
[21] This principle has significant implications. It requires inter alia that
representatives conduct themselves in a manner that ensures that the
legitimacy, dignity and decorum of the court are maintained. There is an
ethical obligation on legal practitioners to ensure that clients are properly
advised and that the legal position is considered before a matter is argued in
Court.
[22] In Naidoo v Gayregina Investments CC and Another 6 the High Court recently
lamented the fact that litigation was handled in a manner that “has been to the
financial detriment of the parties and to the detriment of the court, whose
diminishing resources, already under severe strain, have been needlessly
consumed”. The Court said that:
‘[21] It is a notorious fact that litigation in the High Court is expensive. In the
light of that the least that the clients of legal representatives can
expect is that the attorney that they have instructed properly and
soberly considers the facts of the case in respect of which the
instruction has been given, performs the necessary research where
knowledge is lacking, knows and understands the law relating to that
matter and is familiar with the requirements of the Uniform Rules of
Court…’
matter and is familiar with the requirements of the Uniform Rules of
Court…’
5 [2023] ZACC 34 ; 2024 (2) SA 58 (CC) at para 103. See also Kekana v Society of Advocates of
South Africa 1998 (4) SA 649 (SCA); [1998] ZASCA 54.
6 (D4690/2023) [2026] ZAKZDHC 6 (4 February 2026).
8
[23] The limited resources of this Court and the backlog in dealing with matters,
especially opposed motions, are notorious and a well -known fact, more so to
legal practitioners who regularly litigate in this Court . It is known that parties
must wait in the queue for their day in Court for a period between 12 and 24
months. The detrimental effect thereof is no secret.
[24] In Mphahlele v Ephraim Mogale Municipality 7, albeit in a different context, the
Court warned practitioners that:
‘This court has a substantial backlog, both in relation to matters referred for
trial and opposed motions. In both instances, parties are being expected to
wait for up to 12 months for the allocation of hearing dates. Matters such as
the present, which are so manifestly misguided and devoid of merit, require
the same time, attention and allocation of scarce resources as those matters
that disclose genuine disputes justiciable by this court. The parties in those
matters are prejudiced by the referral of disputes such as the present. The
court ought to mark its disapproval of those practitioners who persist with
claims of the sort described above and who undermine the statutory purpose
of expeditious and efficient dispute resolution. If a costs order de bonis propiis
is an appropriate means of achieving that end, then so be it.’
8
[25] Mr Nyangiwe or the responsible attorney at Rams Attorneys , should have
realised the legal position and should have advised the Applicant accordingly.
Showing up in Court to argue the merits of a review application, where the
arbitration award, which is the subject of the review application, has been
made an order of Court in November 2023, was an abuse of scarce judicial
resources and is indicative of a lack of understanding of the law and the
consequences it has on the continuation of the review application. Rams
Attorneys should have removed the matter from the roll and should have
advised the Applicant on what the law is.
advised the Applicant on what the law is.
[26] Mr Nyangiwe submitted that the matter was persisted with because it was
enrolled by the Registrar. Such an argument is untenable.
7 (2018) 39 ILJ 879 (LC); [2023] ZALCJHB 179.
8 Ibid at para 15.
9
[27] In E Tradex (Pty) Ltd t/a Global Trade Solution v Finch and others 9, the LAC
considered the consequences of archiving and made a clear distinction
between ‘status’ and an ‘administrative act’. The LAC confirmed that:
‘[11] It must therefore follow that the archived case acquires a peculiar
status which requires the delinquent party to justify why it should be
reinstated and thereafter be entertained by a court in the wake of a
lack of expeditious prosecution. The Labour Court a quo, treated the
‘archiving’ as an administrative act, not as a matter of status. The
significance of this distinction between status and an administrative
act is that the acquisition of a peculiar status means that upon a given
event, the status automatically adheres to the case. That status has
legal consequences which a mere administrative act by the registrar
cannot undo.’
[28] The status of the default judgment changed on 22 November 2023, so too did
the remedies available to the Applicant after the award was made an order of
Court and obviously, the review of the award was no longer an option. The
fact that the matter was enrolled by the Registrar cannot and did not change
the status of the award and cannot and does not open the doors of the review
Court when those doors were shut by the operation of law. The notice of set
down was no more than an administrative act and it did not undo the legal
consequences of the Court order of 22 November 2023. To persist with a
review application in these circumstances on the strength of a set down from
the Registrar is opportunistic and nothing but an attempt to snatch at a
bargain.
Costs
[29] In so far as costs are concerned, this Court has a broad discretion in terms of
the provisions of section 162 of the LRA to make orders for costs according to
the requirements of the law and fairness.
[30] In Zungu v Premier of KwaZulu- Natal and Others 10 the Constitutional Court
confirmed that the rule that costs follow the result does not apply in labour
confirmed that the rule that costs follow the result does not apply in labour
9 (2022) 43 ILJ 2727 (LAC); [2022] ZALAC 106 at paras 9 – 12.
10
matters. The Court should rather seek to strike a fair balance between unduly
discouraging parties from approaching the Labour Court to have their disputes
dealt with and, on the other hand allowing those parties to bring to this Court
cases that ought not have been brought to Court in the first place.
[31] This is a case where the Court must strike a balance, considering the
requirements of law and fairness.
[32] Mr Nyangiwe submitted that each party should be ordered to pay their own
costs, as it would be unfair to saddle the Applicant with a cost order. On the
other hand, Mr Botha for the Respondent, argued that cost should follow the
result and considering the conduct of the Applicant, a punitive cost order
should be granted.
[33] In my view this is a case where it is appropriate to make a cost order. A cost
order is a method of ensuring that decisions on how to conduct litigation in
this Court are taken with due consideration of the law and the prospects of
success.
[34] The conduct of the Applicant warrants a punitive cost order, as it persisted
with a review application, notwithstanding a judgment which made the position
clear and indicated in no uncertain terms that the doors of the review court
were shut. The content of Makhura J’s judgment was ignored and the
applicable legal position was disregarded. To make matters worse, the
Applicant was legally represented and did not approach this court as an
unrepresented layperson. It would be unfair to saddle the Respondent wi th
costs to oppose an application that should not have been persisted with.
[35] In the premises, I make the following order:
Order
1. The review application is struck off the roll;
2. The Applicant is to pay the Fi rst Respondent’s costs on a scale as
between attorney and own client.
10 (2018) 39 ILJ 523 (CC); [2018] ZACC 1 at para 24.
11
__________________
Connie Prinsloo
Judge of the Labour Court of South Africa
12
Appearances:
On behalf of the Applicant: Mr L Nyangiwe from Rams Attorneys
On behalf of the First Respondent: Mr G Botha from Gerhard Botha Attorneys