THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No. C405/23
In the matter between:
7Y Applicant
and
ELIZABETH DE WITT First Respondent
COLLEEN WEST N.O. Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
Heard: 12 February 2026
Delivered: 19 February 2026
Practice and Procedure - Review - Reinstatement of deemed withdrawn review
application – Interest of justice - Explanation inadequate, inconsistent, and partly
fabricated - Inaction by legal representatives not a bona fide mistake.
Review application - Unreasonable delay of six months in launching review under s
158(1)(g) of LRA - Prospects of success - Review directed at s 142A award - Weak
prospects - Application not bona fide, brought only after execution steps commenced -
Interests of justice do not favour reinstatement - Application dismissed.
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
MAKHURA, J
[1] This matter concerns an application brought by the applicant, Carpe Diem NPO,
for the reinstatement of a review application that has been deemed withdrawn in
terms of clause 11.2.3 of the (now repealed) Practice Manual of the Labour
Court1, or alternatively for the retrieval of the archived file. The review
application, which the applicant seeks to revive, relates to an arbitration award
issued in terms of section 142A
2 of the Labour Relations Act 3 (LRA), pursuant to
a settlement agreement concluded between the applicant and the first
respondent.
[2] It is common cause that the applicant failed to file the record of the arbitration
proceedings within the prescribed sixty- day period following notification by the
Registrar that the record comprising documents only was available for upliftment.
As a result, the review was deemed withdrawn. Since r einstatement and/or
revival applications are akin to condonation applications
4, this application
therefore requires the Court to determine whether the interests of justice warrant
the reinstatement of the review, taking into account the extent of the delay, the
1 The review application is deemed withdrawn in terms of clause 11.2.2 and 11.2.3 the now repealed
Practice Manual of the Labour Court of South Africa, April 2013 (Practice Manual).
2 Section 142A provides that:
‘(1) The Commission may, by agreement between the parties or on application by a party,
make any settlement agreement in respect of any dispute that has been referred to the
Commission, an arbitration award.
(2) For purpose of subsection (1), a settlement agreement is a written agreement in
settlement of a dispute that a party has the right to refer to arbitration or to the Labour
Court, excluding a dispute that a part is entitled to refer to arbitration in terms pf section
74(4) or 75(7)’.
3 Act 66 of 1995, as amended.
4 Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC); [2017] 7 BLLR 681 (LAC).
3
adequacy of the explanation tendered, its impact on the administration of justice,
and the prospects of success in the underlying review.5
[3] After the review application was served on 8 August 2023, the Registrar issued a
rule 7A(5)
6 notice on 24 August 2023 indicating that the record of proceedings
(with no audio recordings ) was available for upliftment . The notice required the
applicant to uplift the record within seven days and to file a transcribed record
within 60 days. The sixty-day period expired on 17 November 2023.
[4] Two months before the deadline, on 19 September 2023, the first respondent ’s
attorneys asked the applicant’s attorneys whether they had uplifted the record
and whether they intended to stand by or supplement their founding papers. The
applicant’s attorneys responded that they had already uplifted the record and had
sent it to counsel for advice.
[5] It is common cause that no further steps were taken by the applicant after this
exchange of correspondence. Despite having confirmed that the record had been
uplifted and sent to counsel , the applicant did not file the record on or before 17
November 2023.
[6] On 6 March 2024, the first respondent requested arbitration of the unfair
dismissal dispute that was withdrawn on 19 September 2023
7. This request was
made three and half months after the expiry of the sixty-day period. The applicant
explains that:
‘Consequently the applicant’s attorney of record was alerted to the fact and
realised that the first respondent was under the (mistaken) impression that the
5 Brummer v Gorfil Brothers Investments (Pty) Ltd and others 2000 (2) SA 837 (CC); 2000 (5) BCLR 465
(CC) at para 3; Van Wyk v Unitas Hospital and another (Open Democratic Advice Centre as Amicus
Curiae) 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC); Grootboom v National Prosecuting Authority and
another 2014 (2) SA 68 (CC); [2014] 1 BLLR 1 (CC).
6 Rules for the conduct of proceedings before the Labour Court, GG 17495 of 14 October 1996, repealed
by Rules Regulating the Conduct of Proceedings of the Labour Court, GN4775a in GG 50608, 3 May
2024 (with effect from 17 July 2024).
7 This was an unfair dismissal dispute referred by the first respondent, represented by her trade union,
earlier in 2023. This dispute was set down for arbitration on 19 September 2023 and was withdrawn by
the first respondent on the same day pending determination of the applicant’s review application.
4
Review was either not proceeding and/or that outcome of the Review was not still
(sic) pending and/or that it had been withdrawn and/or archived by the Registrar.
On investigation by the applicant’s attorney it came to light that that Review
record had not been filed as required in terms of Rule 7A(6) and sought
counsel’s advice as to the repercussions of the failure to timeously file the
record.’
[7] The reinstatement application was filed on 2 May 2024, five and a half months
outside the sixty-day period. The failure to file the record timeously was attributed
to the absence of the audio record and the applicant’s attorney’s mistaken
impression that “despite the provisions of the Rules, no Rule 7A(6) (with the
documents) was to be filed in the circumstances” and the fact that the applicant’s
attorneys “do not primarily litigate in labour forums” and “were not familiar with
the procedural requirements” of this Court. The applicant then explained that:
‘Only upon receipt of the applicant’s 7.13 referral form in the CCMA… in a
different dispute… did the applicant’s attorney of record, on further investigation,
realise that there had been a procedural mishap in that the Rule 7A(6) Notice
which should have been filed had inadvertently never been filed.’
[8] The applicant and its attorneys cannot rely on the absence of the audio recording
to justify their failure to comply . The award in question was issued under section
142A, based on the application which attached the written settlement agreement,
and no oral evidence was required. The applicant therefore could not reasonably
have believed that an audio record should exist. It also failed to take any steps to
file the available documentary record and to the extent they believed that there
should have been audi o recording, they failed to take steps to enquire about
such recording. This explanation is unfounded and constitutes a poorly
constructed explanation of facts which must be rejected.
constructed explanation of facts which must be rejected.
[9] The applicant then shifts full responsibility to its attorneys, who continue to act for
it, asserting that their unfamiliarity with labour litigation and limited labour law
experience caused the non- compliance. However, the attorneys appear to have
5
overlooked that on 19 September 2023, they had already informed the first
respondent’s attorneys that the record had been uplifted and was with counsel
for advice, a fact that was not disclosed in the applicant’s founding papers. Even
if the attorneys lacked experienc e, an excuse that holds little to no weight, the
applicant provides no explanation regarding the counsel who had the record
since September 2023. After that 19 September 2023 correspondence, more
than five and a half months passed before the first respondent sought arbitration
on 6 March 2024. Only then did the applicant investigate the matter, leading to
the supposed discovery of the “procedural mishap”.
[10] Counsel for the applicant, Ms Erasmus, characterised the attorney’s conduct as a
bona fide procedural mistake. I am unable to agree. A mistake presupposes that
some action was taken, but taken incorrectly. In this case, the attorney did
nothing at all to progress the matter. Inaction cannot be described as a mere
mistake. The explanation is therefore poor and without merit.
[11] Ms Erasmus also relied on the judgment of Matsekoleng v Synergy World
Logistics (Pty) Ltd
8 (Matsekoleng), where this Court revived an employee’s
dispute because he had consistently made enquiries about the matter and
overlooked his attorneys’ inaction in prosecuting the matter. However, as Mr van
der Merwe correctly argued, that case is distinguishable. Unlike the applicant in
Matsekoleng, the applicant in this matter made no enquiries or attempts to
advance its case. Given the facts and the applicant’s inadequate and seemingly
fabricated explanation, excusing the conduct of its legal representatives would
not in my view serve the interests of justice.
[12] Even once the applicant became aware, through the arbitration referral on 6
March 2024, that there had been a procedural failure, it still delayed a further two
months before filing the reinstatement application on 2 May 2024. The applicant
months before filing the reinstatement application on 2 May 2024. The applicant
attributes this period to further investigation and obtaining advice from counsel,
yet provides no details about the specific steps taken, why earlier consultation
8 [2025] ZALCJHB 46.
6
was not possible, or what prevented the attorney and counsel from acting
sooner.
[13] The explanation for non- compliance with the rules and provisions of the Practice
Manual (now repealed) is unacceptable. For the above reasons, the explanation
is rejected. The remaining question, therefore, is whether the applicant’s
prospects of success in the review application are strong enough to outweigh the
lengthy delay and the inadequate explanation provided.
[14] The applicant contends that it has good prospects of success in the review
application. However, t he prospects of success hinge on whether the delay in
launching the review has been reasonably explained. Therefore, before the Court
can even consider the merits of the review, it must first assess the adequacy of
the explanation for the six-month delay between the applicant becoming aware of
the section 142A award and filing the review application.
[15] According to the applicant’s own version, it had already decided by November
2022 not to comply with the settlement agreement, yet it took no steps to set it
aside. When the first respondent applied to have the settlement agreement made
an award, the applicant elected not to oppose the application. After becoming
aware of the award on 16 February 2023, the applicant still waited approximately
six months until 8 August 2023 to serve the review application.
[16] The review was brought in terms of section 158(1)(g) of the LRA, which allows
the Labour Court to review the actions or decisions of the CCMA on any legally
permissible grounds. The LRA does not prescribe a specific time limit for such
reviews. The Labour Appeal Court (LAC) in G4S Secure Solutions (SA) (Pty) Ltd
v Gunqubele N .O and Others
9 held that courts may not impose a fixed period
deemed “reasonable” or require condonation to be filed within a set timeframe.
However:
9 [2017] ZALAC 52; (2018) 39 ILJ 131 (LAC).
7
‘[11] … An application for condonation must be made when the delay is
unreasonable and must be made at the earliest opportunity. The correct
approach is that outlined by Brand JA in Associated Institutions Pension
Fund v Van Zyl , followed by this court in Colett v Commission for
Conciliation, Mediation and Arbitration and Others, namely:
‘[46] … It is a longstanding rule that courts have the power, as part of their
inherent jurisdiction to regulate their own proceedings, to refuse a review
application if the aggrieved party had been guilty of unreasonable delay
in initiating the proceedings…
[47] The scope and content of the rule has been the subject of
investigation in two decisions of this Court. They are the
Wolgroeiers case and Setsokosane Busdiens (Edms) Bpk v
Voorsitter, Nasionale Vervoerkommissie, en ’n ander 1986 (2) SA
57 (A). As appears from these two cases and the numerous
decisions in which they have been followed, application of the rule
requires consideration of two questions:
(a) Was there an unreasonable delay?
(b) If so, should the delay in all the circumstances be condoned?...’
[48] The reasonableness or unreasonableness of a delay is entirely
dependent on the facts and circumstances of any particular case
(see eg Setsokosane at 86G). The investigation into the
reasonableness of the delay has nothing to do with the Court’s
discretion. It is an investigation into the facts of the matter in order
to determine whether, in all the circumstances of that case, the
delay was reasonable. Though this question does imply a value
judgment it is not to be equated with the judicial discretion
involved in the next question, if it arises, namely, whether a delay
which has been found to be unreasonable, should be condoned
(see Setsokosane at 86E-F).’
[17] The Court must therefore determine whether the applicant acted unreasonably in
delaying the launch of the review application, and if so, whether the delay should
8
be condoned. In this context, a six -week period, similar to the timeframe
applicable to section 145 reviews , serves as a useful benchmark. A six -month
delay in labour matters is substantial. Whether this delay is unreasonable and
whether it deserves condonation depends on the specific facts pleaded by the
applicant.
[18] The applicant states that after receiving the award, it met with its legal
representative on 21 February 2023, who later provided preliminary advice,
although the applicant does not indicate when this advice was given. The School
Governing Body (SGB) only met a month later, on 23 March 2023, to consider
that advice, with no explanation as to why it could not meet sooner or what
decision it reached. During this period, the applicant and the first respondent ,
through her union, were allegedly in ongoing discu ssions to try to resolve the
matter amicably.
[19] It is common cause that the first respondent had referred an unfair dismissal
dispute to the CCMA. On 17 April 2023, the applicant raised a point in limine ,
which the commissioner dismissed on 26 April 2023. The SGB then met again a
month later, on 25 May 2023, to consider that ruling. The applicant offers no
explanation why the SGB meeting could not be convened earlier. At that
meeting, the SGB resolved to seek legal advice, which was subsequently
provided and recommended that the award be challenged on review.
[20] On 29 May 2023, the sheriff attended the applicant’s premises for the purpose of
executing the award. The applicant claims that its attorneys provided legal advice
in June 2023, recommending a review of the award. Despite receiving this
advice, the applicant does not explain what steps were taken to prepare and file
the review application. Meanwhile, the unfair dismissal dispute that was referred
earlier was scheduled for arbitration on 25 July 2023. The applicant states that
although the parties attempted to settle this dispute on that date, they were
unsuccessful.
9
[21] On 4 A ugust 2023, the sheriff informed the applicant’s attorney that he held the
instruction to remove the attached assets. The applicant then states that this left
it with no alternative but to bring this review application, suggesting that the
sheriff’s communication to execute the award triggered the application.
[22] The applicant suggests that the unfair dismissal dispute and attempts to settle
that dispute caused the delay in filing the review application. However, it fails to
provide adequate facts to support the explanation of why this delayed the filing of
the review application. The discussions to resolve the dispute refer to the unfair
dismissal dispute. Despite its intention as early as November 2022, t he applicant
did not take any steps to set aside the binding settlement agreement before it
was made an award, nor did it oppose the section 142A application. Instead, it
waited approximately six months after the award was issued before launching the
review. Even after receiving legal advice in June 2023, the applicant still delayed
until 8 August 2023. Based on the above, the only reasonable conclusion is that
the review was brought only because the sheriff was about to execute the award,
making the application not bona fide but rather an attempt to delay or obstruct
the implementation of a valid award.
[23] Accordingly, the applicant unreasonably delayed in launching the review
application, and its explanation for this delay is inadequate. Moreover, the
applicant would not have brought the review had the sheriff not attempted to
execute the award. Granting condonation in these circumstances would
effectively reward dilatory, careless conduct and erode the LRA’s purpose of
ensuring that labour disputes are resolved quickly and efficiently. It would also
undermine the proper administration of justice.
[24] Regarding the merits of the review, it must be emphasised that the award in
question was issued under section 142A of the LRA, meaning the commissioner
question was issued under section 142A of the LRA, meaning the commissioner
merely converted a voluntarily and freely concluded settlement agreement into
an arbitration award, a process akin to making a settlement an order of court.
Even if the applicant had a potentially arguable case, its failure to provide a
10
satisfactory explanation for its procedural non- compliances in the reinstatement
and condonation applications weighs heavily against it. Granting the
reinstatement application and then condoning the late filing of the review would,
in these circumstances, result in a miscarriage of justice.
[25] Therefore, the reinstatement application falls to be dismissed. Although both
parties sought costs against one another, the Court is not persuaded that the
circumstances justify departing from the established principle that costs do not
ordinarily follow the result in this Court. Accordingly, no order as to costs is
made.
[26] In the premises, the following order is made:
Order
1. The application for reinstatement is dismissed.
2. There is no order as to costs.
____________________
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Ms A. Erasmus
Instructed by: Raubenheimers Attirneys
For the First Respondent: Mr F. van der Merwe
Instructed by: Le Roux Lamprecht Inc.