THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JA 30/2025
In the matter between:
LEKABANE GILFORD MATSEKOLENG First Appellant
DENGA INCORPORATED Second Appellant
and
SYNERGY WORLD LOGISTICS (PTY) LTD Respondent
Heard: 20 November 2025
Delivered: 20 February 2026
Coram: Van Niekerk JA et Chetty AJA, Kganyago AJJA
JUDGMENT
CHETTY, AJA
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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Introduction
[1] This appeal lies against the decision of the Labour Court ( Makhura J), with the
leave of that Court against part of the judgment and part of the order delivered on
12 February 2025. The first appellant was dismissed on 29 May 2020 due to
economic circumstances . Having launched proceedings in the Labour Court
challenging his unfair dismissal, the first appellant’s matter fell to be archived in
terms of the Practice Directi ves of the Labour Court. After successfully obtaining
an order to retrieve his file and reinstate his application, the Labour Court issued
an order directing his attorneys, Denga Incorporated (Denga Inc), to file an
affidavit showing cause as to why it should not be liable for the costs of the
retrieval of the application as well as forfeiting all fees charged to Mr
Matsekoleng. Denga Inc duly filed an affidavit setting out the reasons why the
court a quo ought not to mulct it with the costs of the retrieval application. This
did not prevent the court a quo from making a punitive order for costs against
Denga Inc.
[2] The facts giving rise to the dismissal of the first appellant, although not directly
relevant to the issues forming the basis of the appeal, are relatively undisputed.
Neither the first appellant’s statement of case nor the respondent’s response
formed part of the record. The affidavits filed by the first appellant and t he
respondent do not shine much light on the facts , except that the respondent
denies any claim of unfair ness by contending that Mr Matsekoleng was afforded
the opportunity to make submissions on why he should not have been
retrenched.
[3] The judgment of the court a quo records that Mr Matsekoleng was employed as a
driver for the respondent until he was dismissed via a text message on 29 May
2020. Prior to being dismissed, he was requested to travel from Limpopo to the
respondent’s offices. He indicated that he could not do so due to the restrictions
respondent’s offices. He indicated that he could not do so due to the restrictions
imposed by government during the early stages of the C OVID-19 pandemic. He
was shortly thereafter informed in a text message of his dismissal. This formed
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the basis of his claim that his dismissal was procedurally and substantively unfair.
The merits of the case are only relevant to the extent that the court a quo
considered the prospects of success in the context of the application for
condonation for the late application to retrieve the file after it had been archived.
[4] It is common cause that the statement of case was filed in August 2020, with the
respondent filing its response on 21 October 2020, albeit outside the stipulated
time periods. What is not disputed i s that thereafter the first appellant’s attorneys
took no further steps in furtherance of the diligent prosecution of the matter ,
resulting in the file being archived in terms of clause 16.1 of the Practice
Directives which were applicable at the time when the application for the retrieval
was lodged. 1 The period of inaction was from October 2020 until March 2022.
The second appellant , as the attorneys acting for the first appellant, ought to
have acted within six months of 21 October 2020. They failed to do so. That
position continued for almost another year until the matter resurfaced on their
radar in March 2022. On any explanation, this delay is excessive.
[5] The court a quo, in considering the application for the retrieval of the file from the
archives, was satisfied after considering all of the circumstances that the
application should be granted and directed t he parties to file a pre- trial minute
within 30 days of its order, delivered on 22 January 2025. In relation to the issue
of the costs, the court a quo directed that Denga Inc . file an affidavit explaining
why it should not personally bear the costs and why it should not be deprived of
any fees paid by Mr Matsekoleng. The explanation by the instructing attorney, Mr
Alpeus Denga, stated that the matter was handled by a candidate attorney who
was not fully conversant in the area of labour law, and who has since started
practice for his own account. Mr Denga recognised that the delay was
practice for his own account. Mr Denga recognised that the delay was
attributable to some negligence on the part of the firm and, correctly in my view,
tendered to pay the reasonable disbursements and expenses incurred by the
respondent in opposing the application for retrieval of the file. It was pointed out
1 The Practice Manual of the Labour Court of South Africa, effective, 1 April 2013. The Practice Manual
has been repealed by the new Rules Regulating the Conduct of the Proceedings of the Labour Court that
came into effect on 17 July 2024.
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by Mr Denga that the respondent was represented by an employer’s association,
namely, the National Employers Association of South Africa and accordingly no
legal fees in the strict sense would have been incurred by the respondent.
[6] Mr Denga further stated that Mr Matsekoleng had not paid any legal fees and
that any fees due would be recovered if he succeeded in his application for unfair
dismissal. Although this arrangement was described by Mr Denga as him acting
on a ‘ pro bono basis’, he is incorrect. The arrangement in place with Mr
Matsekoleng was more akin to a contingency fee arrangement.
[7] In a judgment delivered on 12 February 2025, Makhura J found that Denga Inc’s
conduct in the handling of the matter on behalf of the first appellant displayed
“serious negligence and a dereliction of duty ” in that it permitted a candidate
attorney “unfettered and unsupervised power to run with the matter ” ultimately to
the prejudice of Mr Matsekoleng. Notwithstanding the court a quo finding that the
explanation tendered by Denga Inc to be “ flimsy” and the delay in bringing the
proceedings to be “inordinate”, after considering the prospect s of success in the
matter, it granted an order allowing for the retrieval of the archived file.
[8] In arriving at its decision that Denga Inc personally pay the costs of the retrieval
application and forsake any payments already made by its client, the court a quo
found that the explanation from Mr Denga of the fee arrangement with Mr
Matsekoleng to be “riddled with inconsistencies and not accepted”. Further, the
court a quo found that Denga Inc failed to ensure that the candidate attorney who
was entrusted to deal with the matter was properly supervised and that his
supervising attorney failed to provi de the necessary training, development and
guidance to the cand idate attorney concerned. The court a quo considered Mr
Denga or the supervising attorney’s conduct as leading to an “ injustice and a
Denga or the supervising attorney’s conduct as leading to an “ injustice and a
disservice” to the candidate attorney and to Mr Matsekoleng. It proceeded to
make the order for punitive costs, which forms the basis for this appeal.
[9] The order of Makhura J, delivered on 12 February 2025, which forms the basis of
this appeal reads as follows:
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‘1. Denga incorporated shall pay the respondent’s actual expenses and/or
expenditures incurred in opposing this application;
2. Denga Incorporated shall be liable to pay the counsel’s fees to date from
its own account;
3. Denga Incorporated shall not be entitled to charge any fees from the
inception of the matter to the date of the hearing of the retrieval
application (22 January 2025);
4. Denga Incorporated shall repay any money that the applicant has paid
into its trust account or in any manner for services rendered from the
inception of the matter until the date of hearing of the retrieval application
(22 January 2025) within 10 days of this order.’
[10] Leave to appeal was applied for by both Mr Matsekoleng and Denga Inc on 14
March 2025 against part of the judgment and part of the order delivered on 12
February 2025. It is clear from notice of application for leave to appeal and the
judgment of the court a quo granting leave that the issue sought to be appealed
pertained only to the award of costs de bonis propriis against Denga Inc. The
order also cast a shadow over the professional reputation of Denga Inc.
[11] The respondent seized the opportunity and filed a cross -appeal seeking that the
whole of the order granted by the Labour Court be set aside and replaced with an
order that the reinstatement application should have been dismissed with costs.
The central basis relied upon by the respondent was that Mr Matsekoleng should
not be allowed to escape the negligence of his attorney, and the excessive delay
in prosecuting the application ought not to have been condoned by the court a
quo.
[12] It was submitted by Mr Maluleke, on behalf of the appellants, that the court a quo
erred in concluding that the explanation for the delay in filing the retrieval
application by Mr Denga w as riddled with inconsistences or that he failed to
ensure that the person assigned to deal with the matter , was properly trained. In
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support of the application for retrieval, Mr Denga filed an affidavit in which he
said the following:
‘I confirm that the aforementioned filing of the Respondent’s response to the
Applicant’s Statement of Case was the last step that was taken which then
necessitated this application for the revival of the Statement of Case because the
file had since been archived as per the Directive of this Honourable Court that
came into effect on 2nd of April 2013.
I however wish to confirm that this matter was handled by Avhashoni Nkhueleni,
the then Candidate Attorney who was not full y conversant in labour matters, who
had since left the practice of Denga Incorporated for his own account and on or
about the 19 th of August 2021 he attempted to serve and file the discovery
affidavit which was an irregular step in terms of the Rules of this Court as the
same is not provided for and such discovery affidavit had to be withdrawn on the
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th of August 2021.’
[13] It was submitted on behalf of the appellants that the court a quo’s attention ought
to have focused on the explanation for the delay by Mr Denga for the period from
22 April 2021 to 22 March 2022, when the application for the retrieval of the file
was made. This is the relevant period during which the Labour Court concluded
that Denga Inc had failed to act in a diligent manner, leaving the fil e in the hands
of an untrained candidate attorney. Counsel for the appellant’s contended that
this conclusion was erroneous in that Avhashoni Nkhueleni (the candidate
attorney referred to earlier) had in fact been admitted as a practicing attorney on
11 February 2021 in the Gauteng Provincial Division . A copy of the relevant
order forms part of the appeal record. There is nothing on record to gainsay this
evidence.
[14] While the court a quo may have been correct to conclude that the matter was not
dealt with by the attorneys as diligently as it ought to, it is not correct that the
dealt with by the attorneys as diligently as it ought to, it is not correct that the
person dealing with the matter (the said Avhashoni Nkhueleni) was untrained and
unsupervised during the relevant period. He was admitted to practice as an
attorney, and effective 11 February 2021 no longer required supervision of a
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senior attorney. The conclusion reached by the court a quo was factually
incorrect. Courts should always exercise restraint when making comments that
could cast aspersions on the professional integrity of a legal representative,
except in the clearest of cases where the necessary evidence supports such a
conclusion.
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[15] I agree with the appellant’s counsel that the criticism directed at Mr Denga and/or
Denga Inc for not supervising the legal practitioner assigned to deal with the
matter during the period when a retrieval application became necessary, was
based on an erroneous premise and not justified on the evidence before it. I also
accept that in this context, such comments by a court can adversely impact the
professional reputation of the practitioner concerned. This was one of the
grounds of which leave to appeal was sought.
[16] In relation to the order directing Denga Inc to repay monies to Mr Matsekoleng,
this order is contrary to the evidence of Mr Denga that no monies have been paid
to him by Mr Matsekoleng and as such, there is nothing to be refunded. The
order by the Labour Court at paragraph four cannot stand as there is no evidence
to sustain it. On this basis counsel submitted that paragraphs two, three and four
of the Order of the court a quo cannot stand. I see no reason to conclude
otherwise for the reasons set out above.
[17] It was further conceded by Mr Denga in his affidavit before the court a quo that in
the event of his firm being found to be negligent in the handling of the matter, he
tendered to pay the “reasonable actual disbursements and expenditure incurred
by the respondent in opposing the application”. That tender still stands and I can
find no basis to interfere with paragraph one of the Order.
[18] What remains is the cross-appeal by the respondent that the court a quo erred in
condoning Mr Matsekoleng’s delay in bringing the application for retrieval of the
condoning Mr Matsekoleng’s delay in bringing the application for retrieval of the
file from the archives and for the reinstatement of his claim of an unfair dismissal.
2 See: Choeu v Department of Justice and Constitutional Development , Limpopo Povince and others
[2025] 4 BLLR 419 (LAC).
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It must be borne in mind that leave to appeal was granted to Denga Inc in
respect of the judgment delivered on 12 February 2025. That Order only deals
with the issue of Denga Inc having to personally pay the costs of the application
incurred by the respondent. The order does not involve the merits of the
application for the reinstatement of the matter. No leave to appeal was sought by
either party against that specific order, and especially not against that part of the
order permitting the retrieval of the file from the archives and permitting Mr
Matsekoleng to proceed with his referral.
[19] On a strict interpretation, the order of Makhura J dated 22 January 2025 is not
the subject matter of the appeal before this Court and consequently the
respondent’s cross- appeal falls to be dismissed on this ground alone. This is
apparent from the judgment on 12 February 2025 which reads as follows:
‘The retrieval application in this matter was set down on the opposed motion roll
on 22 January 2025. On that day, the Court, after hearing arguments from both
parties, issued an order in the following terms:
1. The application is granted, and the file is retrieved from the archives.
2. The applicant is permitted to proceed with his referral.
3. The parties are ordered, within 30 calendar days from today, to convene a
pre-trial conference, conclude and sign a pre-trial minute.
4. ………….. ’
[20] On a more benevolent interpretation, it could be contended that the orders of 22
January 2025 and 12 February 2025 are inter -twined and must be read together.
The appellants adopt the position that the order of 12 February 2025 had nothing
at all to do with the retrieval application and only concerned the adverse costs
order against Denga Inc. Considering those facts, the appellants contend that no
leave has been granted to appeal the order of 22 January 2025 and on that
basis, the cross-appeal should be struck out.
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[21] Mr Dames who appeared on behalf of the respondent submitted, and correctly
so, that the c ourt a quo did not issue any reasons for the O rder on 22 J anuary
2025, when it granted the application for the retrieval of the files from the
archives. It is also correct that in its judgment of 12 February 2025 when the
court made a punitive order of costs against Denga Inc, the court a quo referred
to its earlier order and considered the aspects of condonation, excessive delay
and prospects of success. Notwithstanding, it is trite that an appeal lies against
an order and not the reasons. The respondent remains hamstrung in that it noted
a cross-appeal against a judgment w here no leave to appeal was sought from
the court a quo. I agree with Mr Maluleke that the appeal should be dismissed on
this ground alone.
[22] However, given the peculiar nature of the two orders issued by the court a quo
and the extent that they overlap, this Court was urged to have regard to the
argument advanced on behalf of the respondent that condonation should not
have been granted because of the excessive delay, which is attributed to
negligence on the part of Denga Inc . It was further contended that Mr
Matsekoleng’s prospects of success were weak and not sufficiently strong to
displace the unexplained, lengthy delay in bringing the applic ation for
condonation.
[23] Mr Dames conceded that for this Court to revisit or set aside w ith the decision of
the court a quo to condone the delay in bringing the applicat ion for retrieval, this
would require this C ourt to interfere with the exercise of a true discretion vested
in the court a quo. It is trite that courts of appeal are loathe to interfere in such
cases, except i n the case of a clear misdirection. On the facts before us, it is
evident that the court a quo considered the extent of the delay, the reasons
advanced for the delay and Mr Matsekoleng’s prospects of success. Regarding
advanced for the delay and Mr Matsekoleng’s prospects of success. Regarding
the last-mentioned factor, the court a quo had the benefit of being in possession
of the statement of case and response thereto, which it considered in arriving at
its decision. Those documents do not form part of the appeal record. Against this
backdrop, we are unable to interrogate the decision of the court a quo in
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ascertaining whether any irregularity was committed. Accordingly , the
respondent is unable to assail the threshold on the facts that would allow an
appeal court to interfere with a decision following the exercise of the Labour
Court’s discretion. The cross-appeal must accordingly fail.
[24] Counsel for the respondent accepted that if the Labour Court erred in its
conclusion in mulcting Denga Inc with a punitive order as to costs, that
paragraphs two, three and four of the order dated 12 February 2025 could not
stand. The respondent accepted that in the event that the cross -appeal does not
succeed, the tender of Denga Inc to pay the costs incurred by the respondent in
opposing the retrieval application in the court a quo, should stand. Mr Maluleke
for the appellants did not oppose the proposed order.
[25] Finally, in relation to costs of these proceedings, the rule applicable in this Court
is that costs do not necessarily follow the result and that any liability for costs
falls to be determined having regard to the requirements of the law and
considerations of fairness. The appellants have been largely successful in
having the adverse costs award against Denga Inc reversed. More importantly
for the second respondent, any imputation against the professional reputation
has been corrected. Although the cross -appeal was unsuccessful, I am of the
view that the equitable outcome is that each party bear their own costs in respect
of the proceedings in this Court.
[26] In the result, the following order is made:
Order
1. The appeal is upheld, with no order as to costs.
2. The order in paragraphs (2), (3) and (4) granted by the Labour Court
dated 12 February 2025 are set aside and substituted with the following:
“1. Denga Incorporated shall pay the respondent’s reasonable costs
and disbursements incurred in opposing this application.”
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____________________
M R CHETTY
Acting Judge of the Labour Appeal Court of South Africa
Van Niekerk JA et Kganyago AJJA concur.
APPEARANCES:
FOR THE APPELLANT: Mr MD Maluleke
Instructed by: Denga Inc
FOR THE RESPONDENT: Mr CR Dames
Instructed by: JKL Attorneys