THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR1597/2019
In the matter between:
MINISTER OF WATER AND SANITATION Applicant
and
JANE MODIBA First Respondent
JANE TLOU Second Respondent
J.J. MPHELA Third Respondent
MOYO MASHUDU Fourth Respondent
M.M. MOTLOUTSI Fifth Respondent
NATIONAL EDUCATION HEALTH AND
ALLED WORKERS UNION (NEHAWU) Sixth Respondent
MOLOKO PHOOKO N.O. Seventh Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL (GPSSBC) Eighth Respondent
Heard: 21 January 2026
Delivered: 06 March 2026
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
PHAKEDI, AJ
Introduction and material facts
[1] This is an opposed application to reinstate the review application which is
deemed to be withdrawn as envisaged in clause 11.2.7 read with 16.2 of the
Practice Manual of the Labour Court. 1 The first to sixth respondents (the
respondents) are seeking an order dismissing this application with costs.
[2] The review application was launched on 26 September 2019 and the record
was served on 6 December 2019. However, the applicant did not file a notice
as required by rule 7A(8) of the now repealed Rules for the Conduct of
Proceedings in the Labour Court
2 (the Rules). No steps were taken by the
applicant to prosecute the review application and it became archived by
operation of the practice manual.
[3] On 6 December 2020, the respondents launched an application in terms of
section 158(1)(c) of the Labour Relations Act 3 (the LRA) to make an
arbitration award an order of court. The applicant opposed the application and
also launched an application to condone the late filing of its notice in terms of
rule 7A(8)(b) which it filed on 4 December 2020.
[4] The respondents’ application came before Tlhotlhalemaje J on 6 November
2023 who made the following order:
1 Practice Manual of the Labour Court of South Africa, effective 2 April 2013 (Repealed and replaced
with the Rules Regulating the Conduct of the Proceedings of the Labour Court , effective 17 July
2024).
2 Repealed and replaced with the Rules Regulating the Conduct of the Proceedings of the Labour
Court, effective 17 July 2024).
3 Act 66 of 1995, as amended.
3
‘1. The applicants’ application to make the arbitration award issued by the
second respondent in terms of section 158(1)(c) of the Labour
Relations Act is postponed sine die.
2. The first respondent is directed to deliver and file an application in
accordance with clause 16.2 of the Practice Manual of this Court
within 30 days of this order.
3. The first respondent is ordered to pay costs… ’
[5] In compliance with the above- mentioned order, the applicant then launched
this current application. The basic principle in our jurisprudence is that in order
to properly deal with condonation applications, the Court must consider all the
factors as pleaded by the applicant in order to e xercise its discretion
judiciously.
The reinstatement application and principles
[6] It is trite that an application for reinstatement is akin to a condonation
application and the applicant must show good cause for its failure to comply
with the Rules and the Practice Manual. In its application, the applicant must
address the degree of lateness, provide an explanation for the delay,
prospects of success, importance of the case, prejudice to the other party and
the court, and the interests of justice.
Degree of lateness
[7] There are two sets of explanations which the applicant ought to provide to this
Court in respect of the late filing of the notice in terms of rule 7A(8) and the
application for reinstatement. The record was filed on or during December
2019 but the notice in terms of rule 7A(8)(b) was only filed another year later
on 4 December 2020. No proper and reasonable explanation has been
provided for the period between 6 October 2020 when the applicant received
the section 158 (1)(c) application and the eventual filing of the rule 7A(8) (b)
notice on 4 December 2020.
Explanation for the delay
4
[8] The explanation provided by the applicant for its delay in f iling the notice in
terms of rule 7A(8) is that there was a change of personnel within the Office of
the State Attorney in that Ms Hongo left the office without ensuring that the
notice in terms of r ule 7A(8)(b) was filed. Ms Sibanyini took over the file on or
during March 2020 and she only learned that the notice was never filed when
she received the section 158 (1)(c) application.
[9] The respondents are not happy with the explanation provided by the
applicant, particularly as no explanation is provided to cover the period
between the date of 6 October and 4 December 2020. Furthermore, the
respondents argued that the applicant ought to have brought the application
for reinstatement rather than sit and do nothing between 6 October 2020 and
31 October 2023.
[10] The applicant states that at no stage did it abandon the review application and
the matter was being handled by the Office of the State Attorney and the
record was filed within the period prescribed in the r ules. It further issued
instructions to the State Attorney to file a notice in terms of r ule 7A(8)(b) as
there was no need to amend the notice of motion nor file a supplementary
affidavit. The applicant was at all material times waiting for the respondents to
file their answering affidavit resisting the review application.
[11] The applicant then issued instructions for Counsel to draft the notice to
oppose, counter application to condone the late filing of the notice in terms of
rule 7A(8)(b) and to file heads of argument in the lapsed review application. It
was as a result of this action that the Court then granted them an opportunity
to launch the reinstatement application.
Prospects of success
[12] The applicant submitted that there are prospects of success in the review
application and raised various grounds for reviewing and setting aside the
arbitration award as it does not fall within the band of reasonableness.
arbitration award as it does not fall within the band of reasonableness.
[13] What is common cause, however, is that the first to fifth respondents were
employed as General workers on a salary level 3 on or during 2012. From
5
their commencement of employment, by arrangement with their supervisor,
they performed clerical duties which were graded at salary level 5 but
continued to be remunerated at salary level 3 . An investigation was launched
into their functions and recommendations of the investigators were rejected.
The respondents then referred an unfair dismissal dispute to the GPSSBC
and the Commissioner ordered the applicant to retain the employees at salary
level 5 and pay them the salary difference from 2018.
[14] It is trite that i n a condonation application, an applicant need not fully address
the merits of a dispute to establish that they will succeed. What is required is
for an applicant to set out facts which, if established, would result in the relief
sought being granted or refused. In this application, the applicant has
sufficiently outlined facts upon which it is argued that the arbitration award
ought to be reviewed and set aside. The respondents are opposing this
application and have also provided a set of facts justifying the award.
[15] The onus of showing the existence of good cause in a condonation
application rests with the applicant, and this essentially entails satisfying the
two well- established requirements, namely: (a) providing a satisfactory
explanation for the delay; and (b) showing the prospect of success in the main
case. The applicant bears the burden of showing good cause. A mere
allegation of good cause will not be sufficient to assist the Court in exercising
its discretion whether to grant condonation or not. In other words, as stated in
Standard General Insurance Co Ltd v Eversafe (Pty) Ltd and Others
4, the
applicant must:
“at least, furnish an explanation of his default sufficiently full to enable the
court to understand how it really came about and to assess his conduct and
motives… Where there has been a long delay, the court should require the
party in default to satisfy the court that the relief sought should be granted”.5
party in default to satisfy the court that the relief sought should be granted”.5
Prejudice and the interests of justice
4 2000 (3) SA 87 (W) at para 12.
5 Aspen Holdings (Pty) Ltd and another v Phelane and another (Aspen Holdings) [2025] 4 BLLR 409
(LAC) at para 14.
6
[16] The applicant submitted that it is in the interests of justice that the review
application be reinstated for the purpose of ventilating the main dispute. If this
application does not succeed, the award will undermine promotion policies
and the respondents will be promoted to positions which have not been
advertised, funded nor approved on the organogram of the Department. The
respondents are opposing the reinstatement of the review application on the
basis of prejudice as a result of excessive delays in prosecuting the review
application.
Evaluation
[17] Section 1(d) of the LRA provides that one of the objects of the LRA is to
promote the effective resolution of labour disputes. The Labour Appeal Court
(LAC) in Samuels v Old Mutual Bank
6 (Samuels) held that:
‘… [The] purpose of [the Practice Manual] is, inter alia, to provide access to
justice by all those whom the Labour Court serves; promote uniformity and/or
consistency in practice and procedure and set guidelines on standards of
conduct expected of those who practise and litigate in the Labour Court. Its
objective is to improve the quality of the court’s service to the public, and
promote the statutory imperative of expeditious dispute resolution.’
[18] In Samuels7 the LAC held that:
‘the practice manual is not intended to change or amend the existing Rules of
the Labour Court but to enforce and give effect to the Rules, the Labour
Relations Act as well as various decisions of the courts on the matters
addressed in the practice manual and the Rules. Its provisions therefore, are
binding. The Labour Court’s discretion in interpreting and applying the
provisions of the practice manual remains intact, depending on the facts and
circumstances of a particular matter before the court.’
Although this court is not bound by the provisions of the Manual, litigating
parties are bound by it. It is incumbent on the applicant in the review
6 (2017) 38 ILJ 1790 (LAC) at paras 14.
7 Ibid at para 15.
7
application to ensure that the matter is dealt with in line with the prescripts
and not to frustrate the object of the LRA.
[19] In Macsteel Trading Wadeville v Francois van der Merwe N.O and Others 8,
the LAC held that:
‘The Practice Manual came into effect during April 2013; midway through the
review application. It, therefore, applies to it. Clause 11.2.7 imposes an
obligation on the applicant to ensure that all the necessary papers in the
application are filed within 12 months of the date of the launch of the
application (excluding heads of argument), and the registrar is informed in
writing that the application is ready to be set down for hearing. Where this
time limit is not complied with, the application will be archived and be
regarded as lapsed unless good cause is shown why the application should
not be archived or be removed from the archive. The record in the review
application had been filed approximately 20 months after the launch of the
review application. And the review application was set down for hearing
almost six years from its launch. This means that by the date of set down of
the review application, it had been archived and regarded as lapsed.’
[20] The LAC in Govender and others v Commission for Conciliation , Mediation
and Arbitration and others 9 expanded the above- mentioned principles and
held that:
‘[57] … The factors relevant in the consideration of the grant or refusal of
condonation include the degree of lateness, the explanation therefor, the
prospects of success and the importance of the case. And in certain cases,
the interest of justice may play a role.
[58] Added to the factors applicable to condonation applications is the
consideration that employment disputes should be dealt with expeditiously as
a delay in the resolution of labour disputes undermines the object of the LRA
and “ any determination of the issue of good cause must always be
considered against the backdrop of this fundamental principle” and further
considered against the backdrop of this fundamental principle” and further
8 (2019) 40 ILJ 798 (LAC) at para 23.
9 [2024] 5 BLLR 453 (LAC); [2024] ZALAC 6.
8
that review applications are by their nature, urgent and must be treated with a
degree of diligence and promptness.’
[21] The applicant was at all material times legally represented and it can be
assumed that its representatives became aware that the review was deemed
withdrawn when a period of six months lapsed without any steps being taken
to prosecute such application. Instead of bringing this reinstatement
application at the earliest available opportunity, the applicant brought a
condonation application for the late filing of the r ule 7A(8) notice. Be that as it
may, I do not believe that the inactions of the legal representatives should be
imputed to the applicant department. I have taken note of the steps taken by
the applicant from the moment the section 158(1)(c) application was instituted
and it is in the interest of justice that the review application must be
determined on the merits.
[22] As much as I sympathise with the respondents who have been sitting with an
arbitration award in their favour since 2019, justice will be served in this
matter if the review is reinstated, and the parties are allowed to proceed with
the review application on the merits. In Samuels the court held that:
“The Practice Directive, in particular the provisions relating to archiving and
retrieval are there to facilitate expeditious but fair adjudication of the disputes
in the Labour Court. The manual should not be used to enable a party to gain
an unfair advantage over the other”10
The Court concluded that “ it would be in the interest of justice and fairness
that the non-compliance be condoned.”
[23] In order to assist the parties in moving forward and ensuring that the review
application is prosecuted without any further delays, it is accepted that the
notice in terms of rule 7A(8)(b) filed by the applicant on 4 December 2020 has
been received by the respondents. The respondents are therefore entitled to
file their answering affidavit within fifteen (15) days of receipt of this judgment.
file their answering affidavit within fifteen (15) days of receipt of this judgment.
10 Samuels (id fn 8) at para 23
9
Costs
[24] It is trite that the awarding of costs in the Labour Court is discretionary as
envisaged in section 162 of the LRA. The Constitutional Court in Booi v
Amathole District Municipality and others11, dealt with the issue of costs in the
Labour Court and held as follows:
‘However, this is a labour matter and this court’s jurisprudence is settled: the
ordinary rule that costs follow the result does not apply in labour matters.
Rather, what emerges from the provisions of the LRA and the jurisprudence is
that courts, when awarding costs in labour disputes, must consider what
fairness demands and err on the side of not discouraging parties from
approaching the courts for the peaceful resolution of labour disputes. Further,
if costs are to be awarded in labour matters, there must be reasons that justify
a court’s decision to depart from the position that a losing party should not be
mulcted in costs in labour disputes.’
[25] The above-mentioned principle was clearly espoused in Member of the
Executive Council for Finance, KwaZulu- Natal and another v Dorkin NO and
another12 where the Court held:
‘In making decisions on cost orders this court should seek to strike a fair
balance between, on the one hand, not unduly discouraging workers,
employers, unions and employers’ organizations from approaching the
Labour Court and this court to have their disputes dealt with, and, on the
other, allowing those parties to bring to the Labour Court and this court
frivolous cases that should not be brought to court. That is a balance that is
not always easy to strike but, if the court is to err, it should err on the side of
not discouraging parties to approach these courts with their disputes. In that
way these courts will contribute to those parties not resorting to industrial
action on disputes that should properly be referred to either arbitral bodies for
arbitration or to the courts for adjudication.’
11 (2022) 43 ILJ 91 (CC) at para 60.
arbitration or to the courts for adjudication.’
11 (2022) 43 ILJ 91 (CC) at para 60.
12 (2008) 29 ILJ 1707 (LAC); [2008] 6 BLLR 540 (LAC) at para 19.
10
[26] Based on the above authorities, this Court comes to the conclusion that it is in
the interests of the law and fairness that each party be burdened with its own
costs.
[27] In the result, the following order is made:
Order
1. The lapsed review application launched under case number
JR1597/2019 is reinstated.
2. The first to sixth respondents are directed to file their answering
affidavit within fifteen (15) days of receipt of this judgment in the event
that they wish to oppose the review application.
3. There is no order as to costs.
____________________
G. C. Phakedi
Acting Judge of the Labour Court of South Africa
11
Appearances:
For the Applicant: Adv H A Mpshe
Instructed by: The State Attorney, Pretoria
For the Respondent: Adv L Quilliam
Instructed by: Moabelo Attorneys