THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: 2025-239196
In the matter between:
DEPARTMENT OF HIGHER EDUCATION Applicant
and
SILAS RAMOSHOWANA NO First Respondent
GENERAL PUBLIC SERVICE SECTORAL Second Respondent
BARGAINING COUNCIL
MBULAHENI BEN KHAKHU Third Respondent
SHERIFF PRETORIA CENTRAL Fourth Respondent
In re:
DEPARTMENT OF HIGHER EDUCATION Applicant
and
SILAS RAMOSHOWANA NO First Respondent
GENERAL PUBLIC SERVICE SECTORAL Second Respondent
BARGAINING COUNCIL
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
MBULAHENI BEN KHAKHU Third Respondent
Heard: 11 December 2025
Delivered: 16 February 2026 (This judgment was handed down
electronically by emailing a copy to the parties. 1 6 February 2026 is
deemed to be the date of delivery of this judgment).
JUDGMENT
KROON AJ
Introduction
[1] This is an opposed application, one of many set down on the urgent roll
during the December 2025 recess, to set aside a “ Writ of Execution”
and to stay the enforcement of an arbitration award dated 28 June 2019
(the Award).
[2] The matter has a long and troubled history. Pursuant to the issuance of
the Award, the Applicant (the Department) launched a review
application on 16 August 2019, and, save for a security bond dated 18
June 2021, the challenge to the Award came to a standstill. Thus, w hat
looms over the present state of affairs is that, although more than six
years have elapsed since the review application was launched, the
Court remains uncertain about its status . The Court is told no more by
the Department , through counsel, than that the “file” could not be
located. The way forward, if there is one, remains unclear , and it seems
the application will continue to languish indefinitely in legal no- man’s-
land.
3
[3] Meanwhile, as the years pass, the Award is accruing interest. According
to the Court’s calculations,1 given the passage of some 6.45 years
since the issuance of the Award on 30 June 2019, applying the
prescribed rate of interest at the time, 2 then, as of 12 December 2025
(the hearing date), the interest accrued on the Award is in an amount of
some R320 000,00. This on a capital amount of R484 860,00.
[4] The inordinate six-year delay is explained in a princely two pages in the
founding affidavit . From the Department’s side, the deponent to the
founding affidavit, Mr Shikwambana, a legal administration officer within
the employ of the Department, says little more than that, pursuant to
enquiries by unidentified people on unidentified dates, the Department
was informed by the O ffice of the State Attorney , again it is not
specified as to when and by whom, that the attorneys in that office who
initially dealt with the matter were either no longer in the employ of the
State Attorney or, for reasons which are not disclosed, could not be
located. The Court is told that Mr Kopman left in 2022 and Ms
Gejengane in 2023. Ms Naidoo, who is apparently now “ handling the
matter,” could not be found, notwithstanding that she is still in the
employ of the State Attorney.
[5] As to the role played by the State Attorney during these six years, there
is, disturbingly, no affidavit from anyone in that office explaining what
happened during this period of inactivity . Mr Masondo, from the Office
of the State Attorney, has deposed to an affidavit, but his evidence is
confined to the period from 10 October 2025 to the date of the hearing.
As a result, the remarkable six-year delay is, for all intents, unexplained.
The allegations made by the Department in respect of the prosecution
of the review application are hearsay, and they are hearsay of the worst
1 which are obviously not binding as this was not an issue before the Court
2 10.25%
4
kind because Mr Shikwambana does not identify the sources of his
information.
[6] To exacerbate matters , the Court has not been placed in a position to
evaluate whether the review application has been timeously instituted or
is arguable. The founding affidavit makes a few allegations regarding
the Award's reviewability . But these allegations are not verifiable in the
absence of the review application itself, which is presumably contained
in the file, which cannot be located. The deponent does not expressly
say that the allegations he makes correspond with the grounds of
review or that he has even seen the review application. The Court is left
to speculate whether his allegations are based on his memory of
something which he may have seen six years ago when the review
application was launched, or whether he relies on some other
unidentified source. Ordinarily, this would have been sufficient, without
more, to have dismissed the application, at least insofar as it concerns
the stay in respect of the enforcement of the Award. An applicant is not
permitted, save possibly in the most exceptional of circumstances, to
ask a Court to grant a stay, as it were, in the dark. However, more
needs to be said.
Has the review application lapsed?
[7] It was contended on behalf of the Department that the Court should not
adjudicate on whether the review application had lapsed. If I understood
the submission correctly, it was that this task was solely for the review
court. Leaving aside that the hearing of a reinstatement application
does not fall solely within the purview of the review court (it is a
substantive application that can be adjudicated independently of the
5
review application itself) ,3 I find myself unable to endorse this
submission. The lapsing of the review application has been squarely
raised in the answering affidavit. It goes to the question of jurisdiction. If
there is no pending review application, the prayer that the enforcement
of the Award be stayed pending the review application must necessarily
fail, as it is ordinarily not permissible to grant an interdict pendente lite
when there are no pending proceedings. In Singh v Adam ,4 the Court
commented as follows:
“[16] ... Before an interim interdict pendente lite can be granted, there
must be a pending lis regarding the restraint of trade. ...”
[8] The Court accepts that this is not an immutable rule and that if there
had been an undertaking by the Department to seek a stay so that it
may bring a reinstatement application within a specified time period, this
may potentially have placed a different complexion on the matter .
However, the Department would still have had to overcome the
unexplained delay . I emphasise that the Department did not take
responsibility for its failure to prosecute the review application and did
not acknowledge that it had lapsed. The Department did not seek a stay
to bring a reinstatement application.
[9] If one considers the Department’s own allegations regarding the
matter's history, it is clear that the review application has lapsed. It is
not in dispute that, following the filing of the review application on 16
August 2019, no further pleadings were filed, save for the alleged
delivery of a security bond dated 18 June 2021, approximately two
years later. After the launch of the review application in August 2019 ,
the next step would have been to deliver the record. This was not done.
3 Although it is often convenient to hear the two applications together to avoid a duplication of
costs and piecemeal litigation Cf NUMSA obo Charles v DSV Solutions (Pty) Ltd and Another
[2021] ZALCPE 11 (22 October 2021)
[2021] ZALCPE 11 (22 October 2021)
4 (2006) 27 IJL 385 (LC)
6
The allegations regarding the record are unsatisfactory. The deponent
says, by way of hearsay, that after there were difficulties with the
record, the other side was , without success, approached for their co-
operation. He then states that, on an unidentified date, he was advised
by an unknown person that, after the other side failed to co-operate, the
Judge President was approached for assistance. No documentation is
provided to corroborate this allegation. If indeed such an approach was
made, he does not know what the response was, if any.
[10] A letter is attached to t he founding affidavit indicating that Mr Kopman
had approached Mr Khakhu’s erstwhile attorneys of record on 20 July
2020 to request co-operation when it comes to the reconstruction of the
record. In that l etter, it is recorded that, pursuant to a notification from
the Registrar on 24 March 2020, the record had been uplifted but that it
was defective. G iven the mandatory 60-day period applicable for the
filing of the record as contained in the Practice Manual of the Labour
Court of South Africa (the Practice Manual) , the review application
would, by virtue of paragraph 11.2.3 of the Practice Manual , have
lapsed on 23 June 2020.
[11] The review application would , in any event, have lapsed on 16 August
2020 by virtue of paragraph 11.2.7 of t he Practice Manual , which
provides as follows:
“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
7
good cause is shown why the application should not to [sic] be
archived or be removed from the archive.” (own emphasis)
Argument advanced by the Department in support of the contention that the
review application had not lapsed
[12] The primary submission made on behalf of the Department in support of
the contention that the review application had not lapsed was that it
could not have lapsed because the Registrar had not given notice to the
parties of the archiving. Counsel for the Department placed heavy
reliance on Gololo v Limpopo Department Economic Development
Environment and Tourism and Others ,
5 a case that addressed
paragraph 16 of the Practice Manual.
[13] Gololo is not authority for the proposition advanced on behalf of the
Department. As pointed out by the bench during the hearing, Gololo
distinguishes paragraph 16.1 of the Practice Manual from other
paragraphs containing deeming provisions, including paragraph 11.2.7.
I quote as follows:
“[7] Paragraph 16.1 entitles the Registrar to archive a matter. In the
current matter, the Registrar did not do so. Since the matter had
not been archived, it remained alive, and the Labour [sic] erred in
finding that, without notice to the appellant, it was deemed to have
been withdrawn. This is so since paragraph 16.1 does not provide
that when the six -month period has elapsed, a matter is
automatically dismissed or deemed to have been withdrawn, even
if no steps have been taken by the Registrar and the applicant has
received no notice of this. In finding differently, the decision
in November is wrong, and in the current matter, the court a
quo erred in making the order that it did.
5 (2025) 46 ILJ 1985 (LAC); [2025] 9 BLLR 925 (LAC)
8
[8] This position is further bolstered by a complete reading of the
Practice Manual, particularly at paragraph 11.2.7, which provides
for the automatic archival of review applications where all the
necessary documents in the application are not filed within a 12-
month period from the date on which the application was launched.
In contrast to paragraph 16.1, paragraph 11.2.7 does not require
any action on the part of the Registrar for the matter to acquire the
status of ‘archived’, rather, it is the inaction on the part of a
delinquent party within the stipulated time period which changes
the status of their application to one which is archived, and
requiring court intervention to resuscitate it.” (own emphasis)
[14] The correct position is as set out in E Tradex (Pty) Ltd t/a Global Trade
Solution v Finch and Others 6 wherein the Labour Appeal Court
explained that , under paragraph 11.2.7, the lapsing is automatic. I
quote:
“[12] …On these facts, on 16 January 2021, when the 12-month period
since the launch of the application in terms of clause 11.2.7 had
expired, automatically the case acquired the status of being
archived; i.e., having lapsed or having been dismissed...”
What about the bond of security?
[15] The Department, in support of its argument, also relied on the bond of
security which had been delivered after the review application had
lapsed. If I understood the argument, it was that the filing of a security
bond in respect of a lapsed review application somehow revived the
review application. This reasoning is self-evidently incorrect. That would
6 (2022) 43 ILJ 2727 (LAC)
9
be for the tail to wag the dog. Only a reinstatement or revival application
can salvage a lapsed review application.7
[16] In my view, if a security bond had been filed, it would have been a
nullity. It could have had no legal significance because it would have
been delivered in respect of an application which is no longer pending
before the Court .8 In Sidas Security v Commission for Conciliation,
Mediation and Arbitration and Others 9 the Court explained the position
as follows:
“7. The deemed withdrawal of a review application in terms of
paragraph 11.2.3 of the Practice Manual is automatic and occurs
ipso jure (by operation of law) and no pronouncement to this effect
is necessary although it may be convenient or even good practice
for the Registrar to notify the parties of this event.
8. As a matter of logic, it must follow that when a review application is
deemed to have been withdrawn then, absent an application for the
reinstatement of that application, no further litigation should arise in
respect of that application save possibly if a respondent sought to
recover costs in the wake of the deemed withdrawal. A Court
should, absent special circumstances, thus be reluctant to grant any
relief pursuant to the bringing of a dismissal application where the
review application is deemed to have been withdrawn. This is for the
elementary reason that such an application would be superfluous
and redundant. A Court would not want, as a matter of judicial
policy, to encourage or in any way endorse or give its imprimatur
(approval) to the institution of unnecessary litigation which would in
turn serve only to congest its roll and would result in a wastage of
time and costs.
7 Cf E Tradex at para [16]
8 Inxuba Yethemba Municipality v South African Local Government Bargaining Council and
Others (PR41/2020) [2022] ZALCPE 1 at para [14]
9 (2022) 43 ILJ 934 (LC)
10
…
10. By way of further amplification, if a review application is deemed to
have been withdrawn then there are no proceedings pending before
the Court or, expressed differently, there is no longer a lis before it.
Absent an application for the reinstatement of the review
application, the Court would have no jurisdiction to entertain the
review application and what is more any steps taken by the parties
in respect of a review application which is deemed to have been
withdrawn will have no legal significance because the parties would
effectively be litigating, as it were, in a vacuum.” (own emphasis)
[17] Thus, after a review application has lapsed, it is impermissible to deliver
any further pleadings in respect of a review application which, for all
intents, no longer exists. In Festive, A Division of Astral Operations
Limited v Commission for Conciliation, Mediation and Arbitration and
Others
10 the Court explained the position as follows:
“[10] In the present case, the third respondent only filed an
application for condonation of the late filing of the transcribed
record way after the matter had been deemed withdrawn or
archived in terms of the Practice Manual. However, there is no
application for the reinstatement of the review application despite
the third respondent’s concession that the review application is
deemed to have been withdrawn, alternatively or archived for the
dilatory prosecution. This approach was found to be irregular
in Sol Plaatjie Local Municipality v South African Local
Government Bargaining Council and Others, where Prinsloo, J,
found that without an application reinstating the review
application, there is no application to entertain, including a
condonation application for the late filing of the record.....”
10 JR1686/15) [2020] ZALCJHB 178 (31 August 2020)
11
[18] In this context, the Department also contended that the security bond
still needed to be set aside. The Court disagrees. If a party files a
pleading in respect of a non- existent application, it can be treated as
pro non scripto. In Sidas, it was further explained that:
“18. To summarise in more general terms, what has happened is that
the party which brought the review application has furnished
security as contemplated by Section 145(7) of the LRA but the
review application has, subsequent to that payment, become
deemed to have been withdrawn. As mentioned above, there is
thus no longer a lis before the Court. The furnishing of security in
terms of Section 145(7) of the LRA cannot, in and of itself, sustain,
breathe life into, resurrect or in any way salvage a review
application which would otherwise correctly be regarded as
deemed to have been withdrawn. Where a review application is
‘deemed’ to have been withdrawn in terms of the Practice Manual,
that operation of deeming is, on a proper interpretation of the
Practice Manual, definite in effect[14] and there is, for all intents,
no longer a review application in existence.
19. Thus, as matters currently stand, there is no obstacle to Mr Totolo
executing on the award. ....” (own emphasis)
Was there an obligation on Mr Khakhu to have applied for the review application
to be dismissed?
[19] Where a review application has, as in this case, lapsed, there can be no
basis for the granting of a stay application, save possibly, as mentioned
above, in exceptional circumstances where a litigant acknowledges that
a review application has lapsed, gives an undertaking that a
reinstatement application will be launched within a stipulated period and
demonstrates that such an application enjoyed prospects of success.
But the general rule is that, if no court process is pending, a court will
12
exercise its discretion not to grant a stay particularly where there is no
indication that any such Court process will be instituted.
[20] This much was confirmed, albeit implicitly, by the Labour Appeal Court
in Cheou v Department of Justice and Constitutional Development
Limpopo and Others. 11 In Cross Border Road Transport Agency v
Mpato and Others12 the Court held as follows:
“The result is that the jurisdictional prerequisites for the review are non -
existent in that there is no application for condonation, nor has there
been service of the review. Accordingly, there is no review application
that complies with the rules of this court. In the circumstances, there is
no process pending which warrants the granting of [the order to stay
execution on the arbitration award].” (own emphasis)
[21] It is , however, the case of the Department,13 that Mr Khakhu should
have first applied to have the review application dismissed. The Labour
Appeal Court has recently, in City of Tshwane Metropolitan Municipality
v South African Local Government Bargaining Council and Others 14,
reiterated what, with due respect, should be obvious, that there is no
requirement to have a lapsed review application dismissed before
execution can take place. In short, it has always been the case that, if
any legal proceedings are deemed to have lapsed, absent a successful
stay application, execution is permissible.
Is it competent to dismiss a review application which is deemed to be withdrawn
or has lapsed?
[22] Although it is not strictly necessary to consider the point whether it was
11 [2025] 4 BLLR 419 (LAC)
12 [2010] ZAGPPHC 635.
13 at para [12.10] of the founding affidavit
14 [2025] 11 BLLR 1145 (LAC); (2025) 46 ILJ 2840 (LAC) at para [22]
13
even competent for Mr Khakhu to have brought a dismissal application,
given the circumstance that he was under no obligation to do so before
execution, the Court, nonetheless, wishes to say something about the
current state of the law on this point. There seem to be conflicting
Labour Appeal Court judgments on the issue:
[22.1] There is the approach taken in E Tradex as echoed in South
African Police Services v Coericius and Others.
15 In terms of
this approach, a review application which is deemed to have
been withdrawn is to be regarded as lapsed or dismissed and
the Court will have no jurisdiction to deal with it. The Registrar is
not permitted to set it down. This is the approach adopted in
civil litigation.
[22.2] There is the approach in City of Tshwane, which embraces the
notion that, notwithstanding that , in respect of a lapsed review
application, there is no pending application, the Court may still
dismiss it. The Registrar may set it down (not because the
Applicant wants it set down but because the Respondent does) ,
if only for it to be exposed to an order of dismissal.
[23] In Coericius, Sutherland JA explained what “deemed to be withdrawn”
means. I quote:
“[9] Because the respondent had raised squarely the issue that the
review application was, in terms of clause 11.2.3, “deemed to be
withdrawn” and sought an order dismissing it, the Labour Court had to
give an answer. What does “withdrawn” in the context of clause 11.2.3
mean? Plainly, it must be understood to mean that the application is
abandoned and such an applicant is no longer intent on seeking the
relief in the review application.” (own emphasis)
15 [2023] 1 BLLR 28 (LAC)
14
[24] According to Coericius, it is the lapse of the review application that
lends certainty to the proceedings. It signals that the dominus litus, who
has brought the application, no longer intends to pursue it. It has, for all
intents, in the words of Sutherland JA, been “ abandoned”. The
Supreme Court of Appeal in Lebra Development (Pty) Ltd and Others v
Bester and Others16 explained in words which it seems to me find equal
application to the prosecution of review applications as follows:
“[24] Legal certainty requires a party aggrieved by an order of court to
prosecute its appeal speedily. In the interest of justice, appeals should
be heard as soon as possible. Parties must be able to continue with their
lives post-litigation without the possibility of legal action indefinitely
hanging over their heads. To facilitate legal certainty, the effect of Rule
49(6)(a) is that an appeal is ipso facto deemed to have lapsed after the
expiry of the periods provided in the Rule. ….” (own emphasis)
[25] Coericius concerned an appeal emanating from the Cape Town Labour
Court against a decision by Rabkin- Naicker J in South African Police
Services v Coericius N.N.O. and Others 17 in terms of which the learned
Judge found, relying on Macsteel Trading Wadeville v Van der Merwe
NO & others, 18 that it was permissible to dismiss a lapsed review
application. The finding of the Court a quo was, however, overturned on
appeal. Although Coercius did not expressly address whether a review
application could be dismissed, in upholding the appeal it set out the
three aspects of the controversy between the litigants which fell to be
considered by the Court a quo on remittal.19 The possible dismissal of
the review application was not one of them.
16 (A154/2022) [2024] ZAGPPHC 1087 (21 October 2024)
17 (C 263 of 2019) [2021] ZALCCT 70 (30 August 2021)
18 (2019) 40 ILJ 798 (LAC)
19 at para [19]
15
[26] In E Tradex, the Labour Appeal Court, again per Sutherland JA ,
emphasising that the Registrar is prohibited from setting down a lapsed
review,20 explained the position as follows:
“[10] The use of the term ‘archived’ is peculiar to the Labour Court
Practice Manual. In the general civil courts, for example, the failure to
prosecute an appeal timeously results in the appeal having lapsed. 21
The effect of that is that the case shall not be dealt with by a court
unless an application to reinstate the appeal is made. It is, in our view,
plain that the archiving of a Labour Court case was intended to have the
identical effect; indeed, clause 16.3 goes even further, to equate the
consequence of an archiving of a case to be understood to mean the
application is ‘dismissed’, albeit that a procedure exists to reinstate the
case on good cause shown.” (own emphasis)
[27] In E Tradex , the Court thus made it clear that it will not deal with a
lapsed appeal unless there is a reinstatement application. Importantly,
the Court decided that, whatever label you give to it, the lapsing of a
review application was intended to have an “ identical effect” to that of
the lapsing of an appeal, to which the Court now turns . Simply put, the
position, in civil law, is that, where legal proceedings are deemed to
have lapsed, then, as a matter of law, there can be no question of
dismissing such proceedings. This is because there is no lis , and it is
not competent to dismiss a non- existent application. If, however, there
is a dispute as to whether an application has lapsed, then a declaratory
order may be sought.
[28] In NAWA And Others V Marakala And Another, 22 Landman J explained
that if an appeal is deemed to have lapsed the way to “ dispose of the
matter”, is to issue a declaratory order that the appeal is deemed to
20 Paras [7] to [9]
21 Rule 49(6)(a) and (b) of the Uniform Rules of Court.
22 2008 (5) SA 275 (Bh)
16
have lapsed. 23 As explained further in Genesis One Lighting (Pty) v
Bradley Lloyd Jamieson and Others ,24 endorsed by the Full Bench in
Taute v Borman, 25 the position when it comes to the lapsing of an
application, as follows:
“[33] Rule 49(6)(a) expressly provides that if written application to the
Registrar for the hearing of the appeal is not timeously made, the appeal
“shall be deemed to have lapsed”. Accordingly, the consequence of a
failure to comply with rule 49(6)(a) is a deemed lapsing of the appeal.
Should there be a dispute about this, then the court can be approached
for the appropriate declaratory relief as to whether the appeal has
lapsed or not.” (own emphasis)
[29] Whilst it is true that, as part of its inherent powers to regulate its own
proceedings in terms of section 173 of the Constitution, the Court has
the power to dismiss an application without considering the merits of the
matter if there is an abuse of Court process,
26 i t, however, has no
jurisdiction to dismiss an application that is not pending before the
Court. In such circumstances, there is no issue for the Court to decide,
and the Court lacks jurisdiction. In PL v YL,27 the Full Bench explained
as follows:
“[24] .... the court’s mandate or jurisdiction is determined by the lis
between the parties. The court’s authority in other words does
not extend beyond the issues which the action is capable of
raising, and which the parties themselves have raised in their
pleadings. ...” (own emphasis)
23 At paras [15] to [17]
24 [2021] ZAGPJHC 862
25 (CIV APP MG 13/2023) [2024] ZANWHC 66
26 Vena and Another v Vena and Others 2010 (2) SA 248 (ECP) at para [7]
27 (2013 (6) SA 28 (ECG)
17
[30] Applying this dictum , if an applicant in a lapsed review application has
elected not to bring a reinstatement application, it logically has not
presented any claim for the Court to decide. It has not given the Court
any mandate, and the Court has no jurisdiction to pronounce on the
claim he has abandoned, as it is not before the Court.
[31] In MEC for Health, Province of Eastern Cape NO and Another v Kirland
Investments (Pty) Ltd t/a Eye & Laser Institute ,28 the Supreme Court of
Appeal, in a judgment confirmed by the Constitutional Court, explained
the position as follows:
“[27] In my view, Makaula J had no jurisdiction to set aside the
approvals granted by Diliza in the absence of either an
application or a counter -application in which that relief was
sought. Section 6(1) of the PAJA, not surprisingly, postulates
proper proceedings having been instituted as a pre-condition to a
court’s exercise of its powers of judicial review when it states that
‘[a]ny person may institute proceedings in a court . . . for the
judicial review of an administrative action’. In terms of s 8(1), a
court may grant just and equitable relief, including the setting
aside of an administrative action, ‘in proceedings for judicial
review in terms of s 6(1)’. Taken together, these provisions mean
no more than that, before a court may set aside an
administrative action, there must have been proceedings for
judicial review that were brought for that relief, in exactly the
same way that, before a court may grant an award of damages,
there must have been a claim instituted in accordance with the
proper procedure.” (own emphasis)
[32] At the risk of restating the point ad nauseam, if a review application has
lapsed, then there is no application, and the Court will have no
jurisdiction. In terms of the common law, as embraced by E Tradex and
28 2014 (3) SA 219 (SCA)
18
Coericius, the position is that where legal proceedings have lapsed, a
court has no jurisdiction or authority to make a pronouncement on them,
save that if there is uncertainty whether it has, at the level of proper
fact, indeed lapsed. In such circumstances , a party may seek a
declaratory order on this issue.
[33] In Jowell v Bramwell- Jones and Others ,29 Heher J (as he then was
before his elevation to the Supreme Court of Appeal) elaborated on this
trite principle as follows:
“... Indeed, the court would be acting contrary to its own character and
nature if it were to pronounce upon any claim or defence not made by
the parties. ...Moreover, in such an event, the parties themselves, or at
any rate one of them, might well feel aggrieved; for a decision given on a
claim or defence not made, or raised by or against a party is equivalent
to not hearing him at all and may thus be a denial of justice. The Court
does not provide its own terms of reference or conduct its own enquiry
into the merits of the case but accepts and acts upon the terms of
reference which the parties have chosen and specified in their
pleadings. In the adversary system of litigation, therefore, it is the parties
themselves who set the agenda for the trial ... ” (own emphasis)
[34] Heher J thus raises a further point. Why should a respondent who has,
through his conduct, elected not to place his case before the Court for
its judgment, nonetheless be subjected to a judgment? Although the
jurisprudence is not harmonious, there has emerged a substantial body
of case law which endorses the civil- law approach. By way of
illustration:
[34.1] In Eskom Holdings SOC Ltd v Kgaile
30 Van Niekerk J (as he
then was) held as follows:
29 1998 (1) SA 836 (W)
19
“…The review application is thus deemed to have been
withdrawn by the respondent. In the absence of an order
reinstating the application, there is no review application that
serves before the court. For the purpose of the Rule 11
application and the basis on which the dismissal of the review
application is sought, there is nothing to dismiss. I agree with
counsel for the applicant that in these circumstances, the
appropriate order is a declarator to the effect that the review
application is deemed to have been withdrawn.”
[34.2] In Ndlela v Department of Correctional Services: In Re:
Department of Correctional Services v Ndlela and Others 31
Nkutha-Nkontwana J (as she then was), held, with reference to
Macsteel Trading Wadeville v Van der Merwe NO and others ,32
that the Labour Court has no jurisdiction to “... entertain a
defunct review application in terms of Rule 11 …”. 33
[35] I now turn to the approach adopted in the City of Tshwane. What stands
out to the Court is that the Labour Appeal Court did not, in that matter,
tackle the biggest question, which is : If the Labour Court has no
jurisdiction over the review application (something acknowledged by the
Court in City of Tshwane 34), on what basis could it make a
pronouncement effectively extinguishing a claim which is not before it?
[36] As to its ratio , the Court states that the cause of action underlying an
application for the dismissal of a lapsed review application is firstly an
entitlement to “ irrefutable finality ”.35 This part of the reasoning is,
respectfully, not reconcilable with the erstwhile Practice Manual and the
30 [2021] ZALCJHB 8 at para [9]
31 [2022] ZALCJHB 133; [2022] JOL 54984 (LC).
32 (2019) 40 ILJ 798 (LAC)
33 at para [15]
34 at para [21]
35 at para [23]
20
current Rules which provide that an applicant in a review application is
entitled, as of right, to bring a reinstatement application. If an applicant
has such a right, it must follow that a respondent has no right to
“irrefutable finality ” if that right means taking away the right of his
opponent to bring a reinstatement application. Stripped of all
embroidery, what the Court is in effect saying is that because a
respondent has a right to finality it can rely on this right to take away the
right of an applicant to apply for condonation.
[37] The second, but allied ground, put forward as a basis for the judgment
is that a dismissal application can be brought if there has been an
“inordinate delay ” in the bringing of a reinstatement application. This
reasoning is also difficult to follow because, as mentioned above, the
very lapsing of the review application provides certainty and the longer
the delay, the more certainty it must surely provide. Again, reference to
the Rules is apposite. The Rules do not provide that an applicant in a
review application has a right to bring a reinstatement application if the
review has lapsed, except where there is an inordinate delay. Without
wishing to belabour the point, the question of an inordinate delay and
whether there is a good explanation therefor should be dealt with by the
Court in the event that an application for reinstatement is brought.
[38] The Court further reasons
36 that, because the Court has jurisdiction to
entertain an application for reinstatement, it follows, by implication , that
it has jurisdiction to dismiss a lapsed review application. With due
respect, this reasoning cannot be correct. It constitutes a non sequitur.
The fact that the Labour Court has jurisdiction to entertain a
reinstatement application means only that it can make an order in
respect of that application, which would include an order either refusing
or dismissing that application. However, it does not follow that because
or dismissing that application. However, it does not follow that because
the Labour Court has jurisdiction to entertain a reinstatement
36 at para [23]
21
application which is pending before it, it has jurisdiction to dismiss a
review application which is not pending before it.
[39] Importantly, the Court acknowledged 37 that the same principles which
apply to a lapsed review application should apply when it comes to
lapsed appeals in the Labour Appeal Court as well as the civil courts ,
but, as pointed out above, it is not competent for an appeal court to
dismiss a lapsed appeal for the reason that there is no appeal in
existence.
[40] It appears that in the City of Tshwane, the Court endorsed a legal
concept, foreign to jurisprudence, under which lapsed legal proceedings
that are not pending before the Court may nonetheless be dismissed by
the Court , even though there is no lis . The Court says, in effect that ,
even if an applicant does not wish to proceed with its application and
does not wish to apply for it to be heard by the Court , the Respondent
may, nonetheless, take that application and place it before the Court for
dismissal.
[41] As is apparent from the jurisprudence which supports this second
school of thought, there has been recourse to all manner of metaphors
to describe the existence of the lapsed review. The cases suggest that
it takes some type of shadowy form. It is forgotten, but not dead. Taking
a leaf from the book of this jurisprudence it, so to speak, hibernates in
some oubliette
38 of the law with a lifespan which has no end. In matters
of legal characterisation or description, precision is the touchstone.
Whilst such analogies may be helpful, the Court should be careful not to
risk substituting rhetoric for reason or principle. In the respectful view of
this Court, the approach adopted in City of Tshwane is lacking in both
37 at para [21]
38 The term is derived from the French word oublier (to forget). An oubliette is a secret dungeon
found in medieval castles, accessible only through a high ceiling trap door, designed to allow
prisoners to be forgotten.
22
principle and coherency. It flouts the trite doctrine that if the Court does
not have jurisdiction, it is not entitled to make an order which affects the
substance of the matter. Where a Court has no jurisdiction over a
matter, it must strike it from the roll. It is inherently contradictory to say
that a Court has no jurisdiction to entertain a matter yet, in the same
breath, to say that the same Court has jurisdiction to dismiss it with a
result that it extinguishes it. Either there is a claim before the Court on
which the Court can make a pronouncement, or there is not.
[42] One needs to be careful not to conflate a review application that exists
as a matter of fact with one that does not exist as a matter of law and
thus has legal consequences . Self-evidently, a review application that
has lapsed still exists as a matter of fact. But as a matter of law, absent
a reinstatement application, it, for all intents, does not exist and it
cannot have any legal significance. As explained by the Full Bench in
Myeni v Organisation Undoing Tax Abuse and Another ,
39 if an
application for leave to appeal has lapsed, it does not exist:
“[26] The application for leave to appeal in the present matter has
lapsed. In order for the application for leave to appeal to be revived,
condonation will have to be granted by the SCA. Until such time, there is
no application as contemplated by section 18(5) of the Superior Courts
Act, and the ineluctable consequence is that the section 18(4) appeal is
not competent. ...” (own emphasis)
[43] From a purist’s point of view, one wonders whether the City of Tshwane
approach will not result in additional and unnecessary litigation,
something anathema to the ethos of the LRA or even confusion or
uncertainty:
39 (15996/2017) [2021] ZAGPPHC 56 (15 February 2021)
23
[43.1] As to the former, there is the potential for a flood of dismissal
applications to be brought in “ the interests of certainty ”,
something which is not permitted in civil litigation. Furthermore,
what if these applications are opposed on the basis that a
reinstatement application has subsequently been brought or will
be brought within a fixed time period? If the opposition is
successful, it will mean that there will be two opposed
applications covering essentially the same subject matter , each
of which will be independently appealable.
40
[43.2] As to the latter point, what of a review application or a
statement of claim that has been filed out of time and is not
accompanied by a condonation application? Can parties, on the
strength of the reasoning in City of Tshwane, apply for such a
review application or statement of claim to be dismissed even
though they are not pending before the Court? If it is discovered
that an appeal which has been enrolled has lapsed, will the
Appeal Court, on the strength of the reasoning in City of
Tshwane, now have the option of dismissing the appeal as
opposed to striking it?
[44] As pointed out by Heher J in Bramwell-Jones the interpretation also
offends one’s sense of justice as well as the a udi rule. Take the
example of a litigant who initiated a review application but, due to
changed circumstances, allowed it to lapse and has no intention of
pursuing it before the Court. Surely there is something wrong where
that litigant is vulnerable to having a Court order made against him in
respect of proceedings which he has no intention of pursuing.
40 It is trite that an application granting condonation is appealable, more so an application
dismissing the main review application. Cf Charles (supra) which illustrates the perils of litigation
being conducted in this manner.
24
[45] Finally, one wonders whether the approach taken in City of Tshwane is
consistent with the Constitution. In terms of Section 34 of the
Constitution, every litigant has an entrenched right to due process. It is
only in exceptional circumstances, such as where there has been an
abuse of the process and a litigant has, for example, proven to be a
vexatious litigant, that such a right may be restricted or even forfeited .
41
This right to access to justice finds expression in the right which a
litigant has to bring a reinstatement application. The bringing of the
dismissal of a lapsed review application says to the Applicant that he
should be stripped of his right, given to him in terms of the Rules, to
bring a condonation application in the first place. As mentioned above,
the outcome of this application does not turn on which approach is to be
preferred and this Court obviously accepts that it is bound by the
decisions of the Labour Appeal Court. Insofar as City of Tshwane is
now binding because it is the most recent decision, it is respectfully
submitted that this question needs to be revisited for the reasons set
out above.
Additional arguments raised on behalf of the Department
[46] As part of a scattergunning of legal points, the Department further, in an
apparent attempt to deflect blame, contended that Mr Khakhu should
have set the matter down and complained about the fact that he had not
delivered a Notice of Opposition. The latter point can be easily disposed
of. There was no obligation on Mr Khakhu to deliver a Notice of
Opposition until a supplementary pleading had been delivered either in
terms of the erstwhile Rule 7A(8) or in terms of the current Rule 37(20).
The contention that Mr Khakhu should have set the review application
down is also nonsensical. Leaving aside the fact that Mr Khakhu was
not dominus litis and the fact that the obligation to set a review
41 Skulpad and Another v Department of Health Eastern Cape and Others [2025] 1 BLLR 70
41 Skulpad and Another v Department of Health Eastern Cape and Others [2025] 1 BLLR 70
(LC); (2025) 46 ILJ 193 (LC) at paras [45] to [47]
25
application down falls on an applicant in a review application, 42 any
attempt to have set the review application down would, in any event,
have been premature because pleadings were not closed. Accordingly,
the matter would not have been ripe for hearing. By way of
amplification, the obligation to apply for a set -down date within six
weeks is “subject to the rules ,” which can only mean that, if pleadings
have not closed, it is not competent to make such a request.
43
Prescription
[47] The Department also sought , in its founding affidavit, to invoke the
defence of prescription. This was after the State Attorney had
transmitted correspondence to the legal representatives of Mr K hakhu
on 20 November 2025 referencing case law44 decided some 15 years
ago. On the strength of this case law it was contended that the claim of
Mr Khakhu had prescribed because the launching of a review
application does not interrupt prescription. Mr Khakhu was threatened
with a “ special cost order ” if he did not withdraw “ …the warrant of
execution.”
[48] The belated attempt to invoke prescription is , in my view, regrettable.
The jurisprudence on whether an award prescribes notwithstanding the
institution of review proceedings has developed considerably since the
case relied on by the Department .
45 Decisively, t he contention
overlooks the fact that a year and a half prior to the issuance of the
Award, the LRA was amended to include section 145 (9) which reads
as follows:
42 Paragraph 11.2.7 of the Practice Manual and section 145(5) of the LRA
43 Cf Madikane and Others v Bantwini and Others (P403/11) [2018] ZALCPE 25 (3 October
2018) at para [5]
44 SATAWU obo Phakathi v Ghekko Services SA (Pty) Ltd (2011) 32 ILJ 1728 (LC)
45 See Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus & Others
2018 (1) SA 38 (CC); (2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC)
26
“An application to set aside an arbitration award in terms of this section
interrupts the running of prescription in terms of the Prescription Act,
1969 (Act No. 68 of 1969), in respect of that award.”
[49] In this context, i t is important to reiterate that the Department is
adamant that the review application must be prosecuted to finality. In
this context, i t was indicated to the Court that, i f necessary, a further
bond of security would be filed . Thus, on the Department’s own
account, the proceedings relating to the review application are not at an
end, and their conclusion has not yet eventuated. Following on from
this, resorting to invoking a preliminary point about prescription with the
clear aim of thwarting Mr Khakhu’s access to justice, is cynical. It is
aggravated by the fact that it was preceded by a communication
transmitted to Mr Khakhu in intimidatory vein. Effectively, the
Department is seeking to rely on its own remissness and ineptitude in
failing to prosecute the review application diligently as a basis for non-
suiting Mr Khakhu. In Hudaco Trading (Pty) Ltd t/a Ambro Steel and
Others v Ramothwala
46 the Labour Appeal Court was confronted with
an analogous set of facts where an employer sought to rely on its own
failure to properly prosecute the review application as a basis to
contend that the Award was no longer enforceable owing to
prescription. The Court, referencing Myathaza, took a dim view of this
strategy.
47 Its criticism culminated in the following statement by Jolwana
AJA:
“[29] … I fail to understand how the Award could have become
prescribed while the review application was still being pursued.”
46 (2024) 45 ILJ 1987 (LAC)
47 See paras [30] and [36]
27
Urgency
[50] The applicable timeline is the following:
[50.1] After the issuance of the Award at the end of June 2019, it was
certified and attempts were made to enforce it by Mr Khakhu.
These attempts stopped, so the Department alleges, when it
filed a bond of security on 18 June 2021. However, after the
passage of a number of years, the patience of Mr Khakhu ran
out and renewed attempts were made to enforce the Award.
[50.2] On 24 June 2025, the Sheriff visited the Department and
attached its furniture. No proceedings were instituted on behalf
of the Department by t he Office of the State Attorney. No
reasons are provided for the inactivity.
[50.3] On 8 October 2025, three and a half months later, the Sheriff
again visited the Department and left a notice of attachment.
Again, no legal proceedings were instituted. The only reason
furnished was that the “file” could not be found.
[50.4] On 17 November 2025, the Sheriff again arrived at the
Department's premises to attach property . Again, no
proceedings were instituted. Instead, the response of the Office
of the State Attorney was to contend, on 23 November 2025, in
my view disingenuously so, that the Award had prescribed and
to threaten Mr Khakhu with a punitive costs order.
[50.5] It was only on 27 November 2025 , five months after the visit of
28
the Sheriff on 24 August 2025, that one Mr Hayayana 48 (who
has not deposed to an affidavit) apparently thought that it might
be a good idea to establish whether a copy of the file could be
obtained from the Labour Court.
[50.6] Lastly, t here was a further delay in the matter because the
Counsel on brief was acting as a Judge in the Labour Court
and, accordingly, could not assist with the drafting of the
application.
[50.7] The application was ultimately brought on 6 December 2025,
and the respondents were given a mere two days to deliver
answering papers, this after, on the Department’s own version,
it had known since 24 June 2025 that Mr Khakhu had run out of
patience and was of the mind to enforce the Award.
[51] The facts drive the Court to the conclusion that t his is par excellence a
case of self -induced urgency compounded by a wholly unjustified and
unreasonably stringent timetable. When it comes to urgency, the bull
point of the Department is to be found in the vague statement that the
attached property “… is being used for the purpose of effecting service
delivery to the general public…” . The only concrete allegation made in
support of this contention is that computers (it does not say how many)
have been attached and that these computers contain unidentified
“important information” of learners. Leaving aside that the vagueness of
allegation seriously detracts from its probative value , no explanation is
put forward as to why, in this modern age, “ the important information”
cannot be preserved through off-device backups and, where necessary,
encryption.
48 It is unclear as to who Mr Hayayana is. An unsigned affidavit was uploaded on case lines in
terms of which no more is recorded that Mr Hayayana is a personal assistant. He does not say
who his employer is.
29
[52] In Tekoa Engineers (Pty) Ltd v Alfred Nzo Municipality and Others ,49
Lowe J was confronted by an urgent application where similar
arguments were raised by the party which had made itself guilty of self -
created urgency:
“38. It is argued for the applicant that it has shown sufficient and
satisfactory grounds to permit the hearing sought, not only
seeking to exercise its right to approach a court for relief not
solely for financial reasons, but also in protection of unlawful
spending of tax payers’ money which it is alleged cannot be
reversed in the event that the appeal proceedings are not in
respondents’ favour. It is alleged that there has been no undue
delay in bringing the application and that on the facts applicant
may not obtain substantial redress in the event that it is
successful but forced to wait in the queue to argue the
application.”
[53] The Court rejected this argument:
“61. In my view, the allegations made in the founding affidavit and in
reply, do not serve to address or cure the defects pointed out
above. It seems to have been applicant’s attitude that having
regard to the fact that public moneys were involved, it was the
court’s duty to deal with the matter however inappropriate the time
line may have been. This is obviously an unsustainable argument.
62. In my view accordingly and having regard to all of the above, this
is a matter which simply cannot proceed on the urgency time line
adopted by the applicant as a result of both the self-created
urgency adverted [sic] to above and quite separately from that the
unreasonable and unnecessary stringent and unsustainable time
line adopted. ” (own emphasis)
49 (1284/20) [2022] ZAECMKHC 84 (25 October 2022)
30
[54] In my view, the sentiments expressed by Louw J apply equally, if not
with more force, to the current state of affairs.
The State Attorney
[55] Lastly, the question of urgency aside, I return to the lamentable conduct
of the State Attorney when it comes to the prosecution of the review
application. The State Attorney has done little to nothing to prosecute
the review application over a period of six years. This unsatisfactory
state of affairs is amplified by the absence of any meaningful record of
what actually occurred during the passage of more than half a decade.
Because the missteps cannot be traced, it is impossible to say what
went wrong and to charter a better course forward. Insight into failure is
the first condition of progress. As recorded above, no attorney from the
Office of the State Attorney assumed the responsibility of deposing to
an affidavit explaining what had happened and apologi sing for the six-
year delay.
[56] The State Attorney has developed a policy styled “ THE POLICY ON
INITIATING, DEFENDING AND OPPOSING ON MATTERS ON
BEHALF OF THE STATE”.
50 It is a policy initiated by the Office of the
Solicitor General and approved by Cabinet. The policy was discussed at
length by the Full Bench in North West Department of Health.
51 I quote
from that matter as follows:
“[15] In terms of the Objects of the Policy, its purpose is to provide
norms and standards between attorneys and client departments on
initiating, defending and/or opposing of matters on behalf of the Organs
50 developed in terms of section 3(4) of the State Attorney Amendment Act 13 of 2014
51 Member of the Executive Council, North West Department of Health v LSM obo OM In re: In
the application to declare the appeal lapsed: L[...] S[...] M[...] obo O[...] M[...] Case No. FC
06/2024 (16 October 2025)
31
State. It is to ensure uniform procedures in initiating and defending of
matters on behalf of Organs of State; and ensure compliance with the
norms and standards in initiating and defending of matters on behalf of
Organs of State. Central to the policy is the alignment and redefining,
where necessary, the functions and processes in the initiating and
defending of matters on behalf of Organs of State. Ultimately, it aims to
assist in reducing the cost of litigation against and on behalf of Organs
of State.
...
[17] That having been said, the scope of application of the Policy
provides that the principles espoused in the policy apply to all State
Attorneys and Client Departments within the national, provincial, local
spheres of Government and including State owned enterprises . The
Objects and Scope of Application of the Policy therefore implicate not
only the Office of the State Attorney but all Organs of State which they
are legally obligated to represent in terms of the State Attorney Act. This
is underscored by Item 2.3 of the Policy that State Attorneys are
professional public sector legal practitioners reporting to the Office of the
Solicitor General whose function is to provide legal services to Client
Departments. Their work is regulated by the Legal Practice Act and the
State Attorney Amendment Act
...
[20] Of particular importance relevant to the blame apportioned solely
to the conduct of Mr Sekgota, the Policy which equally applies to the
appellant, instructively provides that all correspondences between the
Attorney and Client Department must be in writing, either by letter or e-
mail. Telephone and verbal discussions on the matter must be
subsequently confirmed in writing either by letter or e-mail. All incoming
and outgoing emails must be copied to the legal secretary and where an
Attorney to whom a matter is allocated is away for an extended period of
time, that attorney must activate the Outlook out of office assistant
time, that attorney must activate the Outlook out of office assistant
information. After receipt of instructions and a consideration thereof, the
Attorney must call for all necessary additional information regarding the
matter. The correspondence (requesting the relevant information) must
clearly list all the required information, e.g. statements, reports and
documents so required and an indication of when such information
32
should be furnished to the requestor. The file must, depending on the
urgency, be diarised for a period of no more than ten (10) days. After the
expiry of the period aforesaid, further correspondence should be
addressed to the Client Department informing them of steps taken in
relation to the matter and clearly outlining whether a notice of intention
to defend/oppose has been served and filed and when. In order to
protect the interests of the State, the attorney should clearly and
unequivocally inform the Client Department when either a plea (in the
case of claims), answering or replying affidavit (in the case of motion
proceedings) shall be required to be served and filed as well as outlining
the consequences that might ensue in the case of non-adherence with
the timelines . In the event that the Client Department fails to respond
after the second request has been sent, the Attorney must refer the
matter to the Section Head or Supervisor (as the case might be) for
intervention. In the event that the intervention by the Section Head or
Supervisor does not yield the desired results, then the State Attorney
shall, after notifying the Head of Office of State Attorney, liaise with the
Head of Legal Services for the relevant Organ of State or Client
Department recording the issue of non-response or lack of cooperation
by the Client Department. The escalation to the Head of Legal Services
on the issue of non-responsiveness or lack of cooperation should be
reduced to writing in a letter or email to be transmitted to the relevant
Client Department for record purposes. Should escalation of the issue of
non-responsiveness and/or lack of cooperation yield no results, then
and in that event the matter shall be referred to the Office of the
Solicitor-General for a decision and directions on the further handling of
the matter.....
...
[22] Mr Sekgota is accused of claiming that he was overworked and
had forgotten about the matter or undertaking she made regarding the
had forgotten about the matter or undertaking she made regarding the
matter. There can be no excuse for such conduct as Item 8.3 of the
Policy makes it peremptory that all Attorneys must at all times keep and
maintain a diary in which they record all dates of consultations, trial
dates and other important appointments and/or all attendances. In
addition, the Attorney must keep one or more of the following diary
systems namely: (a) Electronic/outlook, (b) Pocket diary, (c) Board diary,
33
(d) Section Heads/Supervisors must over and above the mentioned
diary systems, also keep and maintain a central diary to monitor and
manage litigation in their respective sections . The Attorney must also
diarise all files for attention on a future date and then record the same
date on the file cover. Each day the attorney or his/her secretary must
draw all the files diarised for that day. No file may be filed away unless it
has been diarised for a future date.
...
[24] Nowhere in the papers filed of record by the appellant, is there
any reference to escalation of the ineptitude of Mr Sekgota. Instead,
rather than escalate the matter in accordance with the policy by which
the appellant is bound, steps were taken to terminate the mandate of the
State Attorney. Item 8.7 of the Policy provides specifically that all the
work in the Offices of the State Attorney, including legal advice and
opinions will be supervised by the respective managers and/or
supervisors, with the oversight of Heads of Offices . Any contravention of
the Policy by any role player covered by the Policy must be met with
consequence management. Rather than follow the prescripts of the
Policy, the mandate of the State Attorney was terminated. .....” (own
emphasis)
[57] In light of the obligations resting on attorneys in the Office of the State
Attorney, in particular the responsibility to keep a written record of each
step in the litigation , the yawning evidentiary chasm spanning the six -
year period of inactivity when it comes to the prosecution of the review
application boggles the mind. Black holes are located in outer space;
there is no place for them in the prosecution of review applications.
Despite the flagrant disregard for the time limits and the jarring absence
of progress made in the review application, there is not only no
accountability demonstrated but, it would seem, no potential for
accountability because no one knows what happened. The only answer
given is that the file is lost.
34
[58] In the founding affidavit, Mr Shikwambana makes the extraordinary
statement that the Department is compelled to utilise the services of the
State Attorney. I quote:
“It is also important to mention that as the Department of Education, we
are bound to be represented by the State Attorney and therefore could
not instruct anyone else.”
[59] It is difficult not to g ain the impression that this paragraph contains an
appeal for sympathy or special treatment by the Department. Reading
between the lines, what the Department says, in effect, is that it is, so to
speak, saddled with the Office of the State Attorney , does not have
access to private firms of attorneys and for that reason it is prejudiced.
The complaint is premised on an assumption that the Office of the State
Attorney provides inferior legal services. The statement is problematic
for two reasons.
[60] Firstly, it is in accurate. The State Attorney should have advised the
Department that the Department is entitled to outsource legal work to
private firms of attorneys. The very legislation on which the Department,
through the State Attorney, relies in support of its point about the
allegedly invalid writ (see below) , explicitly contemplates government
departments engaging private attorney s.52 The right of the State
Attorney to outsource legal work finds expression in another policy
developed by the State Attorney, namely the “BRIEFING AND
OUTSOURCING OF STATE LEGAL WORK”. 53 In terms of that policy,
the State Attorney has a discretion to outsource work to both attorneys
and advocates. Paragraph 1.2.11 of that policy provides as follows:
52 Section 3(1) of the SLA refers to the “State Attorney or attorney of record appearing on behalf
of the Department concerned. ...”
53 developed in terms of section 3(4) of the State Attorney Amendment Act 13 of 2014
35
“1.2.11. In briefing and outsourcing legal work, this policy is applied in
conjunction with the Framework Contract, which establishes
the pre-approved list of legal practitioners (Law
firms/Attorneys and Advocates) who will provide legal services
on behalf of the State.”
[61] The policy further provides as follows:
“4.2. OUTSOURCING OF STATE LEGAL WORK
4.2.1 The Office of the State Attorneys shall outsource State Legal
work to Legal practitioners, including the instruction of
correspondent attorneys under the following circumstances:
4.2.1.1 Where the Office of the State Attorney does not have an
office within the jurisdiction of the Court, the State Attorney shall
appoint a private Legal practitioner to act as a correspondent
attorney to receive, serve and file documents or court
processes with the Court and the opposing party. Page 14 of 23
Briefing and Outsourcing of State Legal Work Policy
4.2.1.2 Where the Office of the State Attorney lacks capacity
requirements or is conflicted in the matter and it will be in the
interests of transformation.”
[62] Thus, if there was a lack of capacity to deal with the review application
at the Durban office of the State Attorney, then, contrary to the
Department's allegation, the State Attorney could and should have
outsourced the conduct of the review application to a private law firm.54
54 That is, coincidentally, what happened in North West Department of Healt h when the State
Attorney was not performing. Regrettably, in that matter, the engagement of a private attorney
did not improve matters.
36
[63] I turn now to the apparent attempt by Mr Shikwambana to paint the
Department as powerless, or at least handicapped, and deserving of
special treatment or at least sympathy . This sentiment is not
reconcilable with the jurisprudence which, to the contrary, dictates that
Organs of State should set an example when it comes to litigation. In
Mluleki Fihlani v Port St John’s Local Municipality ,55 Jolwana J with
reference to Constitutional Court authority, reiterated the position in the
following terms:
“[39] The underlying constitutional principle with regard to the municipality’s
obligation to respect the law and its fidelity to the constitutional framework
is not optional. This principle has been restated in various ways in different
circumstances and contexts by our courts all the way up to the
Constitutional Court. As an illustrative examples, in Asla Construction
56, not
so long ago, the Constitutional Court said:
“This Court has repeatedly stated that the state or an organ of state is
subject to a higher duty to respect the law. As Cameron J put it in
Kirkland:
‘[T]here is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing
with rights. Government is not an indigent or bewildered
litigant, adrift on a sea of litigious uncertainty, to whom the
courts must extend a procedure– circumventing lifeline. It is the
Constitution’s primary agent. It must do right, and it must do it
properly.”
In Khumalo
57, the court made it clear that the constitutional and legislative
framework must inform an approach that does not undermine the hard- won
protections afforded to public sector employees. The standard against
which a state litigant’s conduct is measured is high and ought to accord
with the prescripts of the law. ....”
55 (1046/2025) [2025] ZAECMHC 66 (8 July 2025)
56 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited 2019 (4) SA 331 (CC)
paras [60] to [61]
paras [60] to [61]
57 Khumalo v MEC for Education 2014 (5) SA 579 (CC) at 589D
37
[64] In short, it is not open to the State, in our democratic and Constitutional
order, to plead ignorance and lack of resources. In this matter, the
Department, although not itself blameless, was let down by the Office of
the State Attorney. Had there been a request for a costs order de bonis
propriis, the Court would have given it serious consideration. If the
matter had been conducted in the same vein by a private firm of
attorneys, such a firm would have been exposed to a claim for damages
flowing from the gross failure to fulfil the mandate.
Writ of execution
[65] The Department has a last string to its bow. It contends that the “writ of
execution” is invalid because there was non- compliance with the State
Liability Act 20 of 1957 (the SLA). A final order was sought , setting it
aside. At the level of proper fact, there is in truth no writ in existence.
There is only the certified arbitration award. Thus, if there is going to be
an attack under this heading, it would have to be aimed at the decision
to certify the award. For the sake of convenience, I will however refer to
the certified award as the Writ.
[66] The Department contends that the writ must be set aside because
Mr Khakhu has not complied with his obligations under section 3 of the
SLA to serve the award on the State Attorney, the Accounting Officer
(the head of the department), and National Treasury. Revealingly, t he
Department does not disclose whether the State Attorney has complied
with its self-standing obligations under section 3(2) of the SLA regarding
service on the Accounting Officer and the relevant treasury.
58 The facts
suggest otherwise.
58 In the light of the inactivity accompanying the prosecution of the review application, the Court
has reservations as to whether there has been compliance.
38
[67] The first hurdle facing the Department is that neither the Commission
for Conciliation, Mediation and Arbitration (the CCMA) nor the official
who certified the award, the Director of the CCMA, have been joined in
these proceedings . Yet, it is their administrative decision which is
impugned.
On the face of it, this is a material non-joinder.59
[68] The Court requested the parties to furnish supplementary submissions
on whether the SLA applies to arbitration awards issued in terms of the
LRA. It did so primarily in light of the SLA's language, which references
court process, court officials, court rules, court orders, and court
judgments. It does not refer to arbitration proceedings, arbitration
officials, CCMA or Bargaining Council awards. It is not difficult to
understand why this is the position. Prior to the amendment to section
143 of the LRA, which had the result that arbitration awards did not
have to be made orders of court before they could be enforced, there
was no need for the SLA to refer to arbitration awards. T he law has
always been self-enforcing or immediately executable. If there was non-
compliance with an arbitration award, the successful party seeking to
enforce it would have to approach a court for assistance to seek that
the arbitration award be made an order of court. This remains the
position when it comes to arbitration awards other than those
contemplated by the LRA.
60 In short, the SLA was never meant to apply
to arbitration awards. In Mateis v Plaaslike Munisipaliteit Ngwathe en
Andere,61 it was argued that in the light of the constitutional
dispensation, section 3 of the SLA should be interpreted as applying to
municipalities. The Supreme Court of Appeal however disagreed. It said
the wording was clear. It held that an interpretation that the SLA applied
to municipalities would constitute a statutory amendment rather than a
statutory interpretation, so too an interpretation that the SLA applies to
statutory interpretation, so too an interpretation that the SLA applies to
59 See CCMA v MBS Transport CC and Others [2016] ZALAC 34 where the CCMA was a party
and where the Director of the CCMA actively participated in the proceedings and indeed was
the appellant.
60 See section 31 of the Arbitration Act 42 of 1965 (the Arbitration Act) ; Cool Ideas 1186 CC v
Hubbard and Another 2014 (4) SA 474 (CC) at para [9].
61 2003 (4) SA 361 (SCA)
39
arbitration awards. An arbitration award is self -evidently not equivalent
to a court order or a judgment. The CCMA and the Bargaining Councils
are statutory tribunals. They are not Courts of Law. Their decisions,
although quasi-judicial in nature, constitute administrative action. The
Director of the CCMA, when certifying an award, does not convert it into
a Court Order. Thus, if the SLA applies to LRA arbitration awards, one
must look beyond the SLA's own wording to reach that conclusion
[69] In the Department’s supplementary submissions, the Court was not
referred to any authority supporting the proposition that the SLA applies
to arbitration awards. It was referred to Denel SOC Ltd v NUMSA obo
Petersen and Another,
62 a case which did not concern the setting aside
of a writ, but merely mentioned, en passant, that a writ may be set aside
if it is unlawful. 63 The Court’s attention was drawn to an obiter footnote
stating no more than that a writ of execution issued in contravention of
section 3 of the SLA would be unlawful . That is no more than a
restatement of the law. It begs the question as to what the position is
when it comes to an arbitration award in respect of which no writ has
been issued.
[70] The purpose of section 143 is, to put it colloquially, to make the
enforcement of arbitration awards more user -friendly.
64 The framework,
and in particular, the certification process which culminates in the legal
fiction that the certified award is to be regarded as a writ,
65 was self -
evidently devised to ensure economy and expedition. At a practical
level, the section was inserted, inter alia , to do away with the time -
consuming requirement that employees approach the Labour Court in
terms of section 158(1)(c) of the LRA to make awards an order of Court
or the Registrar to have writs issued.
62 (2022) ZALCJHB 143
63 At para [12]
64 MBS at para [25]
65 Section 143(1)
40
[71] In its supplementary submissions , the Department relied, in particular,
on section 143(5) which provides that:
“Despite subsection (1), an arbitration award in terms of which a party is
required to pay an amount of money must be treated for the purpose of
enforcing or executing that award as if it were an order of the
Magistrate’s Court.”
[72] On the face of it, there is scope for an argument to be developed based
on this section. Still, questions do arise. If the overarching purpose of
this section was to obviate the need to obtain a writ, why then would the
Legislature deem it fit that the conditions necessary to obtain a writ as
contained in the SLA should be met? Why did the Legislature not use
language equivalent to that found in the Arbitration Act when it comes to
the enforcement of private arbitration awards ?66 If the purpose of
section 143(5) was to make arbitration awards which are enforceable
against the State subject to the SLA, why is it of general application and
why does it apply to all arbitration awards? Is the application of the SLA
a secondary consequence of t his section? W hy did the Legislature
choose not to convey, in the amendment so introduced, that the SLA
remained applicable to LRA arbitration awards?
[73] In his supplementary submissions , Mr Maisela, appearing on behalf of
Mr Khakhu, approached the matter from a different angle. He referred
to Minister of Police v Miya
67 wherein the Supreme Court of Appeal ,
albeit in a different context, dealt with the question as to whether the
failure to effect proper service as required by the SLA was fatal. The
Supreme Court of Appeal agreed with the Court a quo that it was not.
Revealingly, the Court commenced its judgment as follows:
66 Section 31(3) of the Arbitration Act
67 2025 (3) SA 130 (SCA)
41
“[1] A little less than a decade ago, the Constitutional Court, to
underscore the approach our courts should employ in applying the
laws in this country, including the interpretation of the Constitution,
statutes, and contracts in matters before them remarked:
‘Our peculiarity as a nation impels us to remember always, that
our Constitution and law could never have been meant to
facilitate the frustration of real justice and equity through
technicalities. The kind of justice that our constitutional
dispensation holds out to all our people is substantive justice.
This is the kind that does not ignore the overall constitutional
vision, the challenges that cry out for a just and equitable
solution in particular circumstances and the context within which
the issues arose and are steeped. We cannot emphasise
enough, that form should never be allowed to triumph over
substance
….’68
[74] It is not my intention to investigate whether a similar approach would be
justified when the m ateriality of the alleged breach is considered. I
would however say that, at first glance, it appears to be disingenuous
for the Department to complain about non- service in circumstance s
where, before the A ward was certified, the Department instructed the
State Attorney to launch a review application to have it set aside. The
Department and the State Attorney were thus highly alive to the
existence of the Award. As to service on Treasury, had the state
attorney complied with its obligations under section 3, Treasury would
have been aware of the Award under section 3. However interesting the
debate about the application of the SLA may be, the Court is not
prepared to decide this issue finally. The Department, on its own
version, was aware that Mr Khakhu was enforcing the award, up until
the bond of security was delivered on 18 June 2021. To delay for such
a lengthy period, more than half a decade, and then to bring an urgent
a lengthy period, more than half a decade, and then to bring an urgent
68 City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19; 2016 (9)
BCLR 1133 (CC); 2016 (6) SA 279 (CC) para [18]
42
application to set aside the writ on two days' notice is conduct which
cannot be countenanced. It is not only a misuse but indeed an abuse of
the court process.
[75] Furthermore, this is not the type of issue that should be properly
determined on the back of an urgent roll, without the benefit of proper
argument. In In Re several matters on the urgent Court roll,
69 the Court
made the following observation which applies to the question as to
whether this Court should, on an urgent basis, make a finding regarding
the validity of the writ:
“[15] Further, if a matter becomes opposed in the urgent court and the
papers become voluminous there must be exceptional reasons why the
matter is not to be removed to the ordinary motion roll. ‘The urgent
court is not geared to dealing with the matter which is not only
voluminous but clearly includes some complexity and even some novel
points of law .’ See Digital Printers v Riso Africa (Pty) Ltd case number
17318/02, an unreported judgment of Cachalia J delivered in this
Division…”. (own emphasis)
Conclusion
[76] As to urgency, this Court has broad discretion. It may , if it is in the
interests of justice to do so, adjudicate the merits of a matter, or part
thereof, even if the requirements of urgency have not been satisfied.70 I
am inclined to dismiss the application to s tay the enforcement of the
Award on the merits because of the inordinate and unexplained delay
and, decisively so, because the review application has lapsed. 71 The
69 [2012] ZAGPJHC 165; [2012] 4 All SA 570 (GSJ); 2013 (1) SA 549 (GSJ)
70 Windsor Hotel (Pty) Ltd v New Windsor Properties (Pty) Ltd and Others (1820/2013) [2013]
ZAECMHC 14 (7 August 2013)
71 In this context, it is noted that the Award was not attached to the founding affidavit as required
by the Rules . Mr Khakhu annexed a copy of it to his answering affidavit . It was not contended
that Mr Khakhu had followed the wrong route in seeking to execute on the Award.
43
order this Court will issue does not prohibit the Department, if so
advised, from filing a reinstatement application and potentially seeking
another stay application. The fate of that application will be determined
by another court based, inter alia , on the explanation for the inordinate
delay in the bringing of the reinstatement application.
[77] As to the application to set aside the writ, I intend to strike it from the roll
for lack of urgency. As mentioned, i t is not appropriate for this type of
novel and nuanced question to be adjudicated by way of urgent
application proceeded by an unreasonably truncated timetable without
the benefit of full argument. There is also the circumstance that neither
the CCMA nor the Director of the CCMA has been joined. It would also
not be in the interests of justice for the Court to decide on such an
important and novel issue with such potentially far -reaching
consequences
72 without the input of the CCMA and the Director of the
CCMA.
Order
1. The application to stay the enforcement of the writ is refused on the
merits.
2. The application to set aside the w rit is struck from the roll for lack of
urgency.
3. The Applicant is ordered to pay the costs of the application on Scale C.
72 If compliance with the SLA is required, there would then be onerous duties on all concerned,
including unrepresented litigant s, to the effect that they will now be required to serve their
arbitration awards on the officials identified in the SLA before applying for certification.
44
4. This Registrar is to bring this judgment to the attention of the Solicitor
General
_______________________
P N KROON
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Ms NS Mteto
Instructed by the Durban State Attorney
For the Third Respondent: Mr RR Maisela
Instructed by Kotana Babalwa Inc. Attorneys