THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C249/22
In the matter between:
SIYABONGA MYEKO Applicant
and
THE CITY OF CAPE TOWN First Respondent
THE SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
COMMISSIONER A SINGH-BHOOPCHAND NO Third Respondent
Heard: 26 February 2026
Delivered: 26 February 2026
Summary: An application to set aside a notice of objection to the late filing of an
answering affidavit in a review application as an irregular step because the
condonation application in the review application is defective.
JUDGMENT
GANDIDZE, J
(1) Reportable: NO
(2) Of interest to other Judges: No
26 February 2026
Signature Date
Background
[1] The applicant has a pending review application, filed in May 2022, in which he
is contesting an arbitration award issued in favour of the City of Cape Town
(the City). As the application was filed outside the six -week prescribed time
period, the applicant filed a condonation application in June 2022.
[2] The complete record in the review application was served, and in November
2022, the applicant filed a notice that he stood by his notice of motion. The
City did not file an answering affidavit in the review application.
[3] The City filed its answering affidavit in the condonation application on 14
March 2023. It also raised the issue of the need for condonation for the late
service of the review application.
[4] In November 2024, a set-down notice for the hearing of the review application
in January 2025 was issued.
[5] In December 2024, in terms of Rule 57 of the Rules Regulating the Conduct
of the Proceedings of the Labour Court
1 (the new Labour Court Rules ),2 the
City brought an application to set aside the set -down notice for the hearing of
the matter on 23 January 2025, and confirmation that the review application
was archived in terms of the Labour Court Rules.
[6] The review application could not be heard in January 2025 due to the City’s
interlocutory application, and it was postponed.
[7] The City’s interlocutory application was dismissed by Barthus AJ on 25 June
2025.
[8] On 9 July 2025, the City delivered an answering affidavit in the review
application.
1 GN 4775, G. 50608 of 3 May 2024, which commenced on 17 July 2024.
2
[9] On the same day, the applicant filed a notice of objection to the late filing of
the answering affidavit.
[10] The present application is the City’s second interlocutory application, also
made under Rule 57 of the Labour Court Rules, to set aside the notice of
objection. The City considers the notice of objection an irregular step. When
the applicant did not respond favourably to the City’s notice to remove the
cause of the complaint, it set down for hearing its application to set aside the
notice of objection as an irregular step.
[11] The applicant opposed the application.
The parties' contentions
[12] Rule 57 provides for the setting aside of an irregular step taken by a party
upon application to this Court.
[13] The City contends that the review application was submitted late and that the
condonation application served on 15 June 2022 is defective because the
notice of motion refers to the late submission of a Statement of Case, and the
founding affidavit refers to the delayed filing of an application for leave to
appeal. The submission is that the condonation application is incomplete and
that the applicant has not attempted to amend it. The further argument is that
even if condonation is granted, it would not fully address the applicant’s non-
compliance nor confer jurisdiction on this Court to hear the review application.
[14] The City also contends that, although the review application is not properly
before the Court, it filed the answering affidavit out of an abundance of
caution, and that filing the affidavit does not constitute consent or acceptance
that the review application is properly before the Court.
[15] The submission further states that, because the review application is not
properly before the Court, the filing of the answering affidavit cannot be
regarded as late.
[16] The City refers to the decision of the Constitutional Court in Grootboom v
National Prosecuting Authority & Another 3, which, inter alia , deals with
principles governing condonation applications and submits that the applicant’s
condonation application did not fully address the extent of the delay in
instituting the review application.
[17] A submission is also made that, until a proper condonation is determined and
granted, the review application is not properly before this Court. The Court
was requested to issue a directive that the condonation application be
enrolled for hearing.
[18] The further submission is that the City is not acting in an obstructive manner
and does not seek to delay the finalisation of the matter.
[19] Costs are also sought against the applicant, relying on a decision of the
Constitutional Court in Myathaza v JHB Metropolitan Bus Service (SOC) Ltd
t/a Bus Metrobus
4. It is alleged that the applicant’s prolonged inaction has
unduly delayed and protracted the legal proceedings, and that should the
review application succeed, the City will be prejudiced if it is ordered to
reinstate him or if the matter is remitted for a fresh hearing. It is also said that
the applicant had been given several opportunities to remedy the irregularities
to facilitate the expeditious resolution of the matter, but he failed to do so.
[20] The applicant argued that the application had been misplaced and that the
City’s actions had delayed the finalisation of the review process. There is
merit to this argument, as discussed below.
Analysis
[21] The main question to determine is whether a notice of objection to the late
filing of an answering affidavit counts as an irregular step. The answer
depends on the Labour Court Rules.
3 (2014) 35 ILJ 121 (CC).
4 2018 (1) SA 38 (CC).
[22] When the review application was lodged in May 2022, the old Labour Court
Rules, which were repealed effective from 16 July 2024, were applicable.
Without reproducing the entire Rule 7A, which was in force at the time, the
sequence of events in a review application is that the application is filed, the
record is delivered, and then a notice indicating that the applicant stands by
the Notice of Motion, or a supplementary affidavit elaborating on the grounds
of review, is filed.
[23] Rule 7A provided as follows:
‘(9) Any person wishing to oppose the granting of the order prayed in the notice of
motion must, within 10 days after receipt of the notice of amendment or notice that
the applicant stands by its notice of motion, deliver an affidavit in answer to the
allegations made by the applicant.’
[24] The full record in the review application was filed in September 2022, together
with a notice that the applicant stood by his notice of motion. The City did not
deliver an answering affidavit.
[25] On 14 March 2023, the City delivered an answering affidavit in the
condonation application. The applicant did not file a replying affidavit , with the
consequence that the pleadings in the condonation application closed and the
application was ripe for hearing.
[26] The applicant states that when his attorneys were preparing to index and
paginate a file so that a hearing date could be allocated, they realised that it
could not be heard due to the City’s first interlocutory application. Therefore,
on the scheduled hearing date in January 2025, the matter was postponed for
the determination of the City’s interlocutory application.
[27] That interlocutory application was dismissed in June 2025.
[28] The City delivered its answering affidavit in the review application in July
2025, following the dismissal of the interlocutory application.
[29] The answering affidavit was submitted after the new Labour Court Rules were
[29] The answering affidavit was submitted after the new Labour Court Rules were
in force. These new Labour Court Rules did not alter the position regarding
the deadline for filing an answering affidavit in a review application. Rule 36 of
the new Labour Court Rules deals with the filing of answering and replying
affidavits. It states as follows:
‘36. Filing of answering and replying affidavits
(1) ….
(2) If the respondent or the applicant has filed its opposing or replying affidavits
respectively outside the time period set out in the rules, there is no need to apply for
condonation for the late filing of such affidavits unless the party upon whom the
affidavits are served delivers a notice of objection to the late filing of the affidavits.
(3) The notice of objection must be served and filed within 10 days of the receipt of
the affidavits after which time the right to object shall lapse.’
[30] The City neither claims nor could claim that it filed its answering affidavit
within the required 10 days . Therefore, the applicant’s objection to the late
filing of the answering affidavit, submitted outside that period, is not an
irregular step.
[31] If the City believes its answering affidavit was not filed late, it should have
ignored the applicant's notice of objection. The court hearing the review
application would have decided whether it was opposed , and the answer
depended on whether the answering affidavit was filed on time. An application
to set aside the filing of the notice of objection as an irregular step was
unnecessary, if not incompetent.
[32] In oral argument I invited Ms Mahillal, the City’s counsel to refer to the case
authority relied upon in bringing the application. She responded that she was
not aware of any, but persisted with the argument that the City’s second
interlocutory application was competent that it did not file the answering
affidavit late.
[33] The City’s argument that it was not required to submit an answering affidavit
in response to a defective condonation application does not alter the position
outlined in the Rules, as I have stated above. If the City believes that the
condonation application is defective, it must raise this issue in its answering
condonation application is defective, it must raise this issue in its answering
affidavit to the condonation application, and the Court hearing that application
will decide the matter.
[34] During oral argument, both Ms Mahillal and Mr Yono for the applicant
confirmed that the same contention—that the condonation application was
defective—was raised before Barthus AJ and it was dismissed. However, as
per Ms Mahillal’s submission, the City could raise the same argument again,
given the notice of objection to its answering affidavit. If an argument is raised
before a Court and dismissed, it cannot be raised again. If the City believed
that Barthus AJ was wrong in dismissing its first interlocutory application, its
remedy was to seek leave to appeal against the judgment. It did not do so and
cannot raise the same issue in a new application, hoping for a different
outcome.
[35] The City’s submission that the condonation application fails to provide an
explanation covering the entire period of the delay relates to the merits of the
application, which the Court hearing it will decide. It is not a valid reason not to
file an answering affidavit when a party has been served with a notice that it
stands by its notice of motion and founding affidavit in a review application.
[36] It is correct that, until condonation is granted for the late filing of a review
application, the Court cannot entertain it. However, in practice, both the
condonation and the review applications are heard in one sitting to ensure the
swift resolution of labour disputes, which is one of the main objectives of the
Labour Relations Act
5 (LRA).
[37] On the facts, the City’s complaint that the applicant is delaying the matter is
remarkable. Based on the limited facts before the court, it appears that the
City is hindering the progress of the review application by submitting meritless
interlocutory applications for reasons best known to it . To demonstrate my
point, half of what was submitted in the City’s heads of argument in the first
interlocutory application is repeated in the heads of argument in the present
application, and as I have recorded above, Ms Mahillal submitted that the City
application, and as I have recorded above, Ms Mahillal submitted that the City
was within its rights to make the same submissions that Barthus AJ
dismissed. I have dealt with the submission above.
[38] Without these interlocutory applications, this matter would have been heard in
January 2025, and a judgment would have been delivered by now. Instead,
5 Act 66 of 1995.
the City is obstructing the progress of the review application, yet it complains
that delays will prejudice it if the applicant is reinstated or if the matter is
remitted for a fresh hearing.
[39] If the Court is mistaken in its prima facie view that the City, rather than the
applicant, caused the delay in progressing the litigation, the City has remedies
available, excluding applications to set aside notices filed claiming they
constitute irregular steps.
[40] It follows that there is no merit in the City’s application, which the Court has
determined was merely a scheme to delay the finalisation of the review
application. In saying this, I am mindful that the City has requested the Court
to issue a directive for the hearing of the condonation application. That is
commendable of the City, but it raises the question of why the City wishes the
condonation application to be heard separately from the review application.
The Court is of the view that this is yet another attempt by the City to prolong
the finalisation of the matter.
[41] It is not necessary for the Court to issue any orders concerning the next steps.
If the pleadings have closed, either party may contact the Registrar to request
a set -down notice for the hearing of both the condonation and the review
application in one sitting.
Costs
[42] Shockingly, the City also sought costs against the applicant. I find this
shocking because it is the City that initiated and requested a set-down date for
an unnecessary application that the Court has found meritless. In accordance
with the requirements of law and fairness, under section 162 of the LRA, it is
the City that should be ordered to pay the costs for bringing an unmeritorious
and unnecessary application. This is a second one, arguing the same issues
that were dismissed by Barthus AJ. Any legal representative applying their
mind to the matter, because they are being paid for the services rendered,
mind to the matter, because they are being paid for the services rendered,
would have realised that the application was a waste of the applicant’s and
the Court’s time and already limited resources.
[43] In oral argument, Mr Yono informed the Court that the applicant, an individual,
is paying the legal bills out of his own pocket. Twice he has been dragged to
Court to oppose meritless interlocutory applications, when he should have
only worried about costs related to arguing the condonation and review
applications. He must not be left out of pocket. I am also convinced that,
unless a costs order is issued against the City, this interlocutory application is
unlikely to be the last . A costs order ensures that serious consideration is
given before filing any further interlocutory applications in this matter. Had the
applicant sought costs on a punitive scale, I would have granted the order.
[44] In the result, the following order is made:
Order
1. The City of Cape Town’s application to set aside the notice of objection
to the late filing of the answering affidavit is dismissed.
2. The City of Cape Town is ordered to pay the applicant’s costs.
_______________________
T Gandidze
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Y Bono
Instructed by: YBI Attorneys
For the first respondent: Advocate Ureesa Mahilall
Instructed by: Cluver Markotter Inc.