THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR2880/22
In the matter between:
PELCHEM (SOC) LTD Applicant
and
ALETTA NKEPILE LETSOALO First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
LUNGISANE AMOS SITHOLE N.O Third Respondent
Heard: 12 November 2025
Delivered: This judgment was handed down electronically by circulation to
the parties by email and publication on the Labour Court’s
website. The date for hand down is deemed to 27 February 2026.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HOLMES, AJ
(1) Reportable No
(2) Of interest to other Judges: No
(3) Revised
___________ 27/02/2026
Signature Date
2
Introduction
[1] The application before this Court concerns the reinstatement of a review
application. The review application was deemed withdrawn in terms of clause
11.2.3 of the Labour Court Practice Manual, 1 owing to the applicant ’s,
Pelchem (SOC) Ltd ( Pelchem), failure to file the record within sixty (60) days
after being notified by the Registrar that the record was available for
collection. The application is opposed by the first respondent (Ms Letsoalo).
Legal principles
The Practice Manual
[2] The Practice Manual , prior to its repeal, did not serve as a substitute for the
Rules for the Conduct of Proceedings in the Labour Court 2 (the Rules ).
Rather, its primary purpose was to regulate the practical application of those
Rules in the Court’s day -to-day functioning. It sought to promote uniformity
and consistency in practice and procedure, and to provide guidance on the
standards of conduct expected of practitioners who appear before this Court.3
[3] Clause 11.2.2 of the Practice Manual provides that records must, for purposes
of Rule 7A(6), be filed within sixty (60) days of the date on which the applicant
is advised by the Registrar that the record has been received.
[4] If an applicant fails to file a record within the above prescribed time period, the
applicant would, in terms of clause 11.2.3 of the Practice Manual, be deemed
to have withdrawn the application, unless the applicant has, during that
period, requested and been given consent by the respondent for an extension
of the time. If consent is refused, the applicant may, on notice of motion
1 Practice Manual of the Labour Court of South Africa effective 1 April 2013 (repealed, 17 July 2024).
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.
3 See introductory clause of the Practice Manual. Also see MJRM Transport Services CC v
Commission for Conciliation, Mediation & Arbitration & others (2017) 38 ILJ 414 (LC) at para 14,
where the Court held that the purpose of the Practice Manual “is to fill in gaps not adequately catered
for in either the rules or the provisions of the LRA for the proper functioning of the court and the
expeditious resolution of disputes. Inasmuch as its provisions call for flexibility in their application
where required, litigants are nevertheless bound by them. To hold otherwise would lead to a
dysfunctional court system, where parties can litigate in any manner that they deem fit, simply
because it suits them to do so”.
3
supported by affidavit, apply to the Judge President in chambers for an
extension of time.4
[5] In essence, the Practice Manual serve d to clarify and supplement the Rules
by prescribing specific time frames within which certain procedural steps in
the prosecution of a review application must be taken (time frames which
were not expressly provided for in the Rules themselves ). Importantly, the
Practice Manual not only set out these time limits but also stipulated the
adverse consequences that flow from non- compliance, through the deeming
provisions contained in, inter alia , clause 11.2.3, in terms of which a review
application may be deemed withdrawn. This deeming provision is designed to
curb the dilatory prosecution of review applications and to promote the
expeditious finalisation of matters before the Court.5
The test for reinstatement of review applications
[6] This Court has long held that an application for reinstatement is akin to a
condonation application. 6 The principles applicable to condonation can
therefore be set out briefly.
6.1. The general principles applicable to condonation are well established.
Condonation is not there for the asking, nor are applications for
condonation a mere formality.7 A party seeking condonation must make
out a case for the indulgence sought and bears the onus to satisfy the
court that condonation should be granted.
6.2. In determining whether to grant the relief sought, the Court is enjoined
to exercise a discretion, taking into account the length of the delay, the
adequacy and reasonableness of the explanation advanced for such
delay, the applicant’s prospects of success in the review, and the
4 Digital Experience (Pty) Ltd v Veira and Others (JR 2167/19) [2023] ZALCJHB 335 (1 November
2023) at para 21.
5 See Overberg District Municipality v Independent Municipal & Allied Trade Union on behalf of
Spangenberg & others (2021) 42 ILJ 1283 (LC) at para 24.
Spangenberg & others (2021) 42 ILJ 1283 (LC) at para 24.
6 Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and others (2014) 35 ILJ 1672 (LC).
7 NUMSA and Another v Hillside Aluminium [2005] 6 BLLR 601 (LC); also see Grootboom v N ational
Prosecuting Authority and Another [2014] 1 BLLR 1 (CC).
4
potential prejudice that may be suffered by either party should the
application be granted or refused. These considerations are not to be
assessed in isolation . Rather, they are interrelated and must be
weighed collectively in arriving at a just and equitable determination.
6.3. In this C ourt, that formulation which has its roots in Melane v Santam
Insurance Co Ltd8 has long been qualified by the rule that where there
is an inordinate delay that is not satisfactorily explained, the applicant’s
prospects of success are immaterial.9
6.4. The application for condonation must offer an explanation for the full
length of the delay.
10 A reckless or intentional disregard of the rules will
not be condoned and neither will a lack of bona fides .11 For the
avoidance of doubt, this means that the a pplicant is required to explain
the period of the delay before and after the deemed withdrawal. It
further means that, if there is any delay in seeking condonation, this too
must be adequately explained.12 This is more so when having regard to
the manner in which the Applicant has conducted the prosecution of
the review application.
13
6.5. Equally significant , of course, are the respondent’s interests in the
finality, which should not be disregarded, together with the Court’s own
interest in the efficient administration of justice and the avoidance of
undue delays that impede the expeditious resolution of disputes.14
8 1962 (4) SA 531 (A).
9 National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC). This
principle was confirmed in National Education Health and Allied Workers Union on behalf of Mofokeng
and Others v Charlotte Theron Children’s Home (2004) 25 ILJ 2195 (LAC) at para 24 , where the LAC
held that without a reasonable and acceptable explanation for a delay, the prospects of success are
immaterial.
10 eThekwini Municipality v Ingonyama Trust 2013 (5) BCLR 497 (CC).
immaterial.
10 eThekwini Municipality v Ingonyama Trust 2013 (5) BCLR 497 (CC).
11 See Floorworx Africa (Pty)Ltd v Mazars (Gauteng) Inc and others (87546/2018) [2023] ZAGPPHC
498 (23 June 2023).
12 CWIU and Another v Ryan and Others [2001] 3 BLLR 337 (LC); Darries v Sheriff, Magistrate’s
Court Wynberg and Another 1998 (3) SA 34 (SCA).
13 Digital Experience supra note 4 at para 41 and 42.
14 See S v Di Blasi [1995] ZASCA 111 at 3g.
5
[7] In Overberg District Municipality v Independent Municipal & Allied Trade Union
on behalf of Spangenberg & others (Overberg),15 the Court, dealing with an
application for the reinstatement of a review application deemed withdrawn,
stated the following:
‘[31] … If effect is to be given to the deemed status of the review
application, it seems the correct approach is that the application must
be reinstated and that a condonation application for the non -
compliance alone cannot be brought because an interlocutory
application relating to a non- existent review application makes no
sense. It appears that most judgments favour the approach that a
reinstatement application has to be brought together with the
condonation application.
[32] However, even though this approach seems to be formally correct,
when it comes to deciding whether or not to reinstate the review
application that decision will always be inextricably linked with whether
or not the non -compliance with the manual should be condoned. It is
difficult to envisage how any review application could be reinstated,
unless the act of non-compliance is also condoned.
…
[39] On the approach adopted, as one pre- condition for reinstatement, the
court needs to be satisfied that the non- compliance with the manual
which led to the application being deemed inactive, should be
condoned. If that conduct should be condoned, its dilatoriness up to
the point the application was deemed inactive will be excused .
Further, if it is to ultimately succeed in reinstating the application it
should still demonstrate that it acted promptly in launching the
reinstatement application and has provisionally taken further steps in a
bona fide attempt to ensure the expeditious finalisation of the review if
reinstatement is permitted. To the extent that those further steps would
also need to be condoned if the application is brought back to life, the
court must determine if they should be . If not, that will sometimes
court must determine if they should be . If not, that will sometimes
prevent the reinstatement of the application, just as the failure to
15 Overberg supra note 5 at para 31, 32 and 39.
6
obtain condonation for the initial non -compliance would. However, if
the condonation required relates to some step that is not a pre-
condition for pursuing a review, such as the late filing of a replying
affidavit, then it would not be an obstacle to reinstating the review
application, even if that step is not condoned.’ [Own emphasis]
[8] Accordingly, an applicant seeking the reinstatement of a review application
arising from non- compliance with clause 11.2.3 of the Practice Manual was
required to furnish a comprehensive explanation addressing three distinct
periods.
[9] First, an explanation must be provided as to why the record could not be
transcribed and filed within the prescribed sixty (60) days. Second, the
applicant must account for the period between the date of non- compliance
and the filing of the reinstatement application. Third, and as set out in
Overberg, the applicant is required to set out what provisional steps it has
taken in a bona fide attempt to ensure the expeditious finalisation of the
review if reinstatement is permitted.
16
[10] The Court explained that an explanation of the provisional steps taken is
required for the following reasons:17
‘[37] Strictly speaking, once a review application’s legal status as a pending
application ceases by operation of one of the deeming provisions in
the manual there can be no enforceable obligation on either party to
file further court process in the main application. Should the inaction of
an applicant party after the application has become defunct be a
consideration in reinstating the application, or should the determination
of reinstatement be confined essentially to whether the non-
compliance which led to it being deemed such, should be excused?
[38] In my view, it would be odd that a party whose non- compliance had
caused its application to become inactive, could then fold its arms until
its application for reinstatement was decided. While it might not be
its application for reinstatement was decided. While it might not be
strictly obliged to take further steps, its bona fides in seeking to finalise
the review would surely be questionable if it did nothing further to
ready the matter for speedy resolution in the event its reinstatement
application succeeds . To accept the passivity of such a party once
their application is deemed inactive, would also seem to promote
16 Overberg supra note 5 at para 39 (footnotes omitted).
17 Overberg supra note 5 at para 37 and 38.
7
further delay rather than curtail it, contrary to the principle that reviews
should be dealt with expeditiously . An applicant party that has been
dilatory and is seeking an indulgence to revive the review application
therefore ought to satisfy the court that in the interim it has done what
it can to remedy its failure which led to the application being deemed
inactive in the first place and done whatever else it could reasonably
do so that the matter would be ready for hearing if reinstated… in my
view this would be in keeping with the condonation principles affirmed
in Samuel’s case...’ [Own emphasis]
[11] It is within this context, and against the above legal framework and principles,
that Pelchem’s application must be assessed.
Analysis of the application to reinstate the review application
[12] The delay in this matter is significant. It is common cause that the record
should have been filed on or before 26 April 2023. However, owing to what, on
Pelchem’s version, appears to be persistent financial hurdles that prevented it
from being in a position to (i) pay for the security bond in terms of section
145(7) of the LRA and (ii) afford the costs of transcribing the record of
proceedings, Pelchem was unable to file a transcribed record by 26 April
2023, as required in terms of clause 11.2.2 of the Practice Manual.
[13] For purposes of determining whether Pelchem has established a proper basis
for the granting of the reinstatement application, it is necessary to summarise
the material facts relevant to this assessment. These facts are considered
with reference to the following three distinct periods , as they are material to
Pelchem’s explanation for the period of delay:
13.1. The initial sixty (60) day period following receipt of the Rule 7A(5)
notice from the Registrar;
13.2. The period between the date of non- compliance with clause 11.2.3 of
the Practice Manual and the filing of the present reinstatement
application; and
the Practice Manual and the filing of the present reinstatement
application; and
13.3. The period from the filing of the reinstatement application to its
determination, during which Pelchem is required to demonstrate the
8
measures taken to ensure the expeditious prosecution and finalisation
of the review application.18
Launching of the review application
[14] On 20 November 2022, the third respondent issued an arbitration award in
favour of Ms Letsoalo under case number GATW110- 21. On 22 December
2022, Pelchem launched a review application under case number JR2880/22,
seeking an order reviewing and setting aside the arbitration award.
[15] On 4 January 2023, the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”) certified the award in terms of section 143(1) of the
Labour Relations Act 19 (“the LR A”). Shortly t hereafter, and on 26 January
2023, Pelchem was served with a writ of enforcement of the award,
authorising the Sheriff to attach Pelchem ’s movable property in satisfaction
thereof.
[16] On 30 January 2023, the Registrar issued a notice in terms of Rule 7A(5),
advising Pelchem that the record of the arbitration proceedings was ready for
collection.
Pelchem’s explanation for the initial sixty (60)-day period
[17] After receiving the Rule 7A(5) from the Registrar, and on 31 January 2023,
Pelchem attended court to uplift the record.
[18] On 15 February 2023, Pelchem discussed with its legal representatives the
issue of providing security as contemplated in section 145(8) of the LRA. It
was noted that obtaining a guarantee from the National Treasury would take
approximately six (6) to nine (9) months.
[19] On 24 February 2023, Pelchem informed Ms Letsoalo’s legal representatives
that, as a state- owned entity, it possessed sufficient assets to satisfy the
award and made an undertaking to settle the amount of R1 033 125.00 in full.
Ms Letsoalo’s legal representatives, however, rejected this undertaking as
18 Overberg supra note 5 at para 39.
19 Act 66 of 1995, as amended.
9
insufficient to constitute proper security for purposes of section 145(7) of the
LRA.
[20] On 2 March 2023, following a request by the Sheriff to access Pelchem ’s
premises to effect attachment, Pelchem ’s Senior Legal Advisor, Mr Jantjies,
advised that the premises were situated within a National Key Point and that
the Sheriff would be required to undergo an induction process before access
could be granted. Therefore, on 6 March 2023, a meeting was convened to
address the issue of security. It was noted that Pelchem lacked the financial
means to furnish a cash guarantee and would therefore approach its holding
company, the South African Nuclear Energy Corporation ( NECSA), for
assistance. These discussions, however, did not yield any results.
[21] On 16 March 2023, the Sheriff underwent the required SHEQ Training and
Access Card induction. By 30 March 2023, Pelchem had still not secured the
necessary security payment, and the Sheriff proceeded to attach Pelchem’s
movable assets, consisting of spare parts stored in its YMB facility, as
security.
[22] On 4 April 2023, the Sheriff attached Pelchem ’s assets to an estimated value
of R2.5 million but did not remove them from the premises.
[23] On 16 April 2023, Mr Jantjies convened a meeting to explore the possibility of
selling Pelchem’s spare parts (valued at approximately R48 million) as
previously authorised by the NECSA Board, to realise the amount of R1 033
000.00 required as security. During this period, Mr Jantjies cautioned that the
delay in securing payment of security could have adverse implications for the
pending review application, particularly as it prevented Pelchem from
instructing its legal representatives to have the record transcribed.
[24] On 16 April 2023, Pelchem ’s Supply Chain Management Department was
instructed to proceed with the sale of the spare parts. By early May 2023,
three interested parties had submitted quotations, and sales were
three interested parties had submitted quotations, and sales were
subsequently concluded. Pelchem received R32 325.50 on 16 May 2023, R47
652.00 on 18 May 2023, and R41 328.00 on 31 May 2023, totalling R121
305.50.
10
Pelchem’s explanation for the period between the date of non- compliance and the
filing of the present reinstatement application
[25] In terms of clause 11.2.3 of the Practice Manual, the record in the review
application ought to have been filed by no later than 26 April 2023. Pelchem ,
however, failed to do so.
[26] By the time the quotations were received, the prescribed period had already
expired, and the review application had consequently lapsed. Mr Jantjies
thereafter sought instructions from Pelchem, which advised that it intended to
utilise anticipated income from container rentals, expected from a Saudi
Arabian entity, to furnish the required security.
[27] Around this time, Pelchem ’s former Managing Director, Mr Umesh Natho,
vacated office, and Petrus Schute assumed the role of Acting Managing
Director. During this transition, correspondence from the Sheriff continued to
be sent to the former Managing Director’s email address, resulting in the
Acting Managing Director only becoming aware of the Sheriff’s
communications on or about 3 July 2023. A meeting was subsequently
arranged and held with the Sheriff on 6 July 2023.
[28] At this meeting, the Sheriff indicated his intention to proceed with advertising
Pelchem’s assets for auction on 1 August 2023. The Sheriff was informed that
Pelchem anticipated being able to furnish the security payment on or about 10
July 2023. On 7 July 2023, Pelchem received USD 56 264.26 (which, at the
time, was approximately R1 069 016.00) from container rentals. Approval was
granted for this amount to be utilised as security. Pelchem accordingly
deposited the amount of R1 155 983.50 into Ms Letsoale’s attorneys’ trust
account and notified the Sheriff of the payment.
[29] Despite this, on 1 August 2023, the Sheriff proceeded to advertise the
attached assets for public auction. Pelchem therefore took steps to launch an
urgent application before the Labour Court to interdict the auction and to
urgent application before the Labour Court to interdict the auction and to
suspend enforcement of the arbitration award, pending an application for the
reinstatement of the review application. An order to that effect was granted,
11
directing that Pelchem file the reinstatement application within five (5) days
therefrom.
[30] In light thereof, Pelchem instituted the present application for reinstatement on
5 September 2023.
The period from the filing of the reinstatement application to its determination
[31] There is no specific description of steps taken by Pelchem since filing the
reinstatement application on 5 September 2023, and as at the date of delivery
of this judgment, Pelchem has yet to transcribe, prepare and file the record of
the proceedings in the review application it seeks to reinstate.
[32] Pelchem provides no explanation for its failure to take steps to ensure the
expeditious resolution of the review application.
Assessment of Compliance with Practice Manual
[33] Pelchem sought to justify its non- compliance with the Practice Manual on the
basis that, during the relevant periods, its primary focus was directed at
securing the funds required to furnish security in terms of section 145(7) of the
LRA.
[34] When Pelchem elected to institute review proceedings , a s dominus litis , it
bore responsibility for ensuring compliance with not only section 145(7) of the
LRA, but all the procedural time frames governing the review proceedings it
had initiated, including the time periods prescribed by C lause 11.2.2 of the
Practice Manual.
[35] Clause 11.2.3 of the Practice Manual envisages that litigants may experience
difficulties with complying with the 60- day period. For this reason, it allows for
the respondent to consent to an extension of the time , failing which the
applicant may approach the Judge President in chambers for an extension of
the time . Properly construed, the Practice Manual does not oblige an
applicant to seek an extension of time , h owever, in the absence of an
application for an extension, a review application is deemed withdrawn.
12
[36] Notwithstanding the difficulties it claims to have encountered, Pelchem did not
invoke clause 11.2.3 of the Practice Manual by seeking an extension of time.
It concedes that no attempt was made to obtain an extension, either from Ms
Letsoalo’s attorneys or, failing that, from this Court. Pelchem states that it did
not seek Ms Letsoalo’s consent because it anticipated that such consent
would be refused. I t was , however, left with the option of approaching the
Judge President, no explanation is furnished for why this step was not taken
in accordance with the Practice Manual.
[37] Pelchem’s failure to do so is unfortunate. The explanation advanced by the
applicant for the delay in furnishing security is not without merit . It is well
known that state -owned entities are often required to navigate extensive
administrative and regulatory processes before securing approval for the
release of large sums of money, including for purposes of furnishing security
under section 145(7) of the LRA. Had these considerations been properly
placed before the Judge President, it is very probable that an extension of
time would have been granted.
[38] I accordingly agree with Ms Letsoale that Pelchem’s decision to prioritise the
securing of funds for purposes of compliance with section 145(7), to the
exclusion of its obligations under clause 11.2.3 of the Practice Manual, was
misplaced and does not assist it in the present application. This is particularly
so given that Pelchem expressly acknowledged in its papers that it was aware
that a failure to comply with the Practice Manual would result in the review
application being deemed withdrawn.
[39] When having regard to Pelchem’s bona fides in expediting the review
application, it is noteworthy that it has taken no steps to further the review
application since filing the reinstatement application on 5 September 2023.
[40] It is also necessary, at this stage, to address the following inconsistencies in
Pelchem’s version:
Pelchem’s version:
40.1. On 18 May 2023, Ms Letsoale’s attorneys addressed correspondence
to Pelchem’s attorneys advising that the 60 -day period prescribed by
13
the Practice Manual had expired on 26 April 2023 and that,
consequently, the review was deemed withdrawn.
40.2. Pelchem received USD 56 264.26 for container rentals on 7 July 2023
and, shortly thereafter, on 10 July 2023, informed Ms Letsoale’s
attorneys that security in the amount of R1 155 983.50 had been
furnished by way of a deposit into its attorneys’ trust account. Pelchem
advised Ms Letsoale’s attorneys that it was “proceeding with requesting
the transcribed records” in order to finalise the review application. This
is significant, as any contention that funds were previously unavailable
to procure the transcription of the record and to advance the review
would, on Pelchem’s own version, have fallen away by that stage.
40.3. On 11 July 2023, Ms Letsoale’s attorneys again addressed
correspondence to Pelchem’s attorneys advising that the 60-day period
had expired on 26 April 2023 and that the review was accordingly
deemed withdrawn. This notwithstanding, no steps were taken by
Pelchem either to advance the review application or to institute an
application for reinstatement.
40.4. On 11 August 2023, Ms Letsoale’s attorneys addressed
correspondence to Pelchem’s attorneys requesting confirmation as to
whether the audio recordings of the arbitration proceedings had been
provided to transcribers and, if so, to whom. In response, Pelchem’s
attorneys indicated in correspondence dated 11 August 2023 that they
had “instructed Digital Audio Recording Transcriptions on 1 February
2023”. This statement, however, is contradicted by the version later
advanced in Pelchem’s replying affidavit, where it is acknowledged that
the attorneys had merely obtained a quotation from d igital audio
recording transcriptions and, due to an alleged lack of funds, had not in
fact instructed them to proceed with the transcription.
40.5. Pelchem’s heads of argument attempt to justify the failure to file the
record on the basis that the “Applicant realised that the record of
record on the basis that the “Applicant realised that the record of
proceedings was incomplete and accordingly made several attempts to
14
the CCMA to procure same” . Reference is made to annexure AL8,
page 67 of the founding affidavit in the reinstatement application. There
is no AL8 in the founding papers, and ALR8 of the answering papers
does not support this averment. Moreover, no reference is made in
either the founding or answering papers to any attempts to contact the
CCMA.
[41] These inconsistencies are material and weigh against Pelchem. The
contradictory versions advanced in correspondence and in the affidavits
undermine the reliability of its explanation and cast doubt on its bona fides . A
litigant seeking an indulgence must place a full, frank and consistent account
before the Court. Where an explanation shifts over time and is contradicted by
contemporaneous correspondence, an adverse inference may properly be
drawn. In these circumstances, the inconsistencies materially weaken
Pelchem’s attempt to establish good cause and render its explanation for the
delay unpersuasive.
[42] To compound matters , at no stage, whether in correspondence or in its
founding papers, does Pelchem contend that it lacked sufficient funds to
procure the transcription of the record. The explanation advanced in
Pelchem’s founding papers for its non-compliance with the Practice Manual is
that it was “more focused on seeking funds to satisfy the security bond as
provided for in section 145(7) of the LRA ”. The version that Pelchem lacked
the necessary funds to transcribe the record emerges only for the first time in
its replying papers.
[43] I accordingly find that no satisfactory explanation has been furnished for the
delay.
[44] I nevertheless proceed to consider the prospects of success.
Prospects of success in the review application
[45] The Court is also required to consider whether an applicant has reasonable
prospects of success on review, should it be able to establish the grounds
upon which the review is premised when the matter is argued . This requires
15
an applicant to set out allegations which, if established, demonstrate a
reasonable prospect of success.20
[46] Ms Letsoale contended that Pelchem ’s case does not enjoy reasonable
prospects of success. She further states that, had Pelchem genuinely enjoyed
strong prospects of success, as it contends, it would have had little difficulty in
diligently prosecuting the review . I am persuaded that this contention is well
founded.
[47] In the absence of a transcribed record and the full complement of affidavits
filed in the review application, this Court is left only with the Commissioner’s
award, which appears to have been reached in a careful and considered
manner, particularly having regard to the extensive body of evidence before
him, including, i n Ms Letsoale’s bundle alone, documentation running to
approximately 3 000 pages. It is apparent from the comprehensive nature of
the award that the Commissioner considered and addressed all material
issues placed before him. The Commissioner delivered a detailed and well -
reasoned arbitration award, the findings of which are justified when viewed
against the extensive evidence that was before him.
[48] By contrast, Pelchem’s case rests largely on vague and unsubstantiated
grounds of review , unsupported by documentary evidence and
unaccompanied by confirmatory affidavits. This deficiency is compounded by
material inconsistencies in the correspondence and affidavits.
[49] Having regard to the material before this Court , I am satisfied that the
Commissioner’s finding is one that a reasonable decision- maker would have
reached and, accordingly, Pelcham enjoys little prospect of success in the
review application.
Prejudice
[50] As far as prejudice is concerned, Pelchem contends that they would suffer
significant prejudice if the reinstatement were refused. The refusal of
20 MEC for Public Works: North West Province and Another v Public Service Coordinating Bargaining
Council and Others (JR430/18) [2025] ZALCJHB 54 (4 February 2025) at para 8.
16
reinstatement would bar them from challenging the arbitration award, which
found to the contrary.
[51] On the other hand, M s Letsoalo contends that no prejudice would befall
Pelchem should reinstatement be refused. On the contrary, she submits , inter
alia, that –
51.1. She has already endured a protracted delay in securing finality in this
matter, occasioned by Pelchem’s failure to prosecute the review
application diligently and in good faith, as required by the principles of
expeditious dispute resolution; and
51.2. Despite its acknowledged financial constraints, Pelchem has continued
to incur unnecessary and avoidable legal costs arising solely from its
own non-compliance.
[52] It is for these main reasons Ms Letsoalo asserts that Pelchem is the author of
its own misfortune, and that it would be unjust to subject her to further
prejudice and delay while Pelchem continues to pursue this matter in the
dilatory manner it has exhibited to date. I am inclined to agree with Ms
Letsoale.
[53] I therefore find that the balance of prejudice favours Ms Letsoale.
Finding
[54] Having considered the submissions advanced, and when weighed against Ms
Letsoale’s detailed response, I am not persuaded that Pelchem has
established good cause for the reinstatement of the review application. This is
particularly so in light of the unsatisfactory explanation for the delay , which is
riddled with inconsistencies , and the unconvincing prospects of success,
which do not sufficiently compensate for the extent of that delay.
[55] In the circumstances, the present application must fail. The review application
is accordingly not reinstated, remains deemed withdrawn and is accordingly
dismissed.
17
Costs
[56] Turning to the issue of costs, this Court enjoys a wide discretion in
determining an appropriate costs order, guided at all times by the principles of
law and fairness. Section 162 of the LRA permits the Court to have regard to,
inter alia, the conduct of the parties in the course of litigation.
[57] In rendering a decision with respect to costs, i t is important to acknowledge
that, a s alluded to above, o n 18 May 2023, the Respondent’s attorneys
addressed correspondence to Pelchem’s attorneys advising that the 60- day
period prescribed by the Practice Manual had expired on 26 April 2023 and
that, as a consequence, the review was deemed withdrawn. Pelchem ,
however furnished no explanation for its failure to comply with the Practice
Manual, no steps were taken to apply for reinstatement until 5 September
2023, and no reasonable explanation for this delay was advanced in its
papers for this substantial delay.
[58] Such conduct is inappropriate. The Practice Manual, at the time that Pelchem
filed this reinstatement application, had been in operation for nearly a decade
and provided clear mechanisms to address each stage of the review process.
In particular, where difficulties arise in relation to the record, it expressly
provided that a party may, within the prescribed time period, seek the consent
of the opposing party for an extension and, failing such consent, approach the
Judge President of this Court for appropriate directions. Pelchem did neither.
[59] Instead, it elected to proceed in isolation, despite the availability of both the
opposing party and the Judge President as mechanisms to resolve the
difficulties encountered. In the circumstances, Pelchem is plainly the author of
its own misfortune. This conclusion is reinforced by the fact that it has been
legally represented throughout the proceedings.
[60] In the circumstances, it would be unfair to burden Ms Letsoale with the costs
of an application that could and should have been avoided had due diligence
of an application that could and should have been avoided had due diligence
been exercised. The dictates of fairness therefore, justify an award of costs in
this application.
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[61] For the avoidance of doubt, the costs order granted herein is confined to this
reinstatement application. As regards the costs associated with the review
application, the provisions of Rule 4 3(1)(b) of the Labour Court Rules find
application. Accordingly, unless Pelchem tenders the wasted costs, Ms
Letsoale may, on notice, apply for such costs.
[62] In the circumstances, I accordingly make the following orders:
Order
1. The application to reinstate the review application is dismissed.
2. The Applicant must pay the costs of this reinstatement application.
________________
K A Holmes
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv. Nicholas Zwane
Instructed by: Mpoyana Ledwaba
For the First Respondent: Rudolph Kuhn
Instructed by: Rudolph Kuhn Attorneys