THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: 2025-238394
In the matter between:
UMSHWATHI LOCAL MUNICIPALITY Applicant
and
SIBUSISO LUNGA First Respondent
LUNGILE BRENDA MSOMI Second Respondent
SHERIFF OF THE HIGH COURT, NEW HANOVER Third Respondent
Case No: D467/24
In re:
UMSHWATHI LOCAL MUNICIPALITY Applicant
and
SIBUSISO LUNGA First Respondent
LUNGILE BRENDA MSOMI Second Respondent
VEESLA SONI N.O. Third Respondent
SOUTH AFRICAN LOCAL GOVERNMENT Fourth Respondent
BARGAINING COUNCIL
Heard: 12 December 2025
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Supplementary submissions received on 19 December 2025.
Delivered: 19 March 2026 (This judgment was handed down
electronically by emailing a copy to the parties. 1 9 March 2026 is deemed
to be the date of delivery of this judgment).
JUDGMENT
KROON AJ
Introduction
[1] This application was initially brought on an urgent basis by the Applicant
(the Municipality) . It sought an order staying the enforcement of an
arbitration award pending the outcome of a review application lodged by
the Municipality. The application was opposed by the First and Second
Respondents (the Employees). The urgency of the matter dissipated when
it was recorded, constructively so, in the answering affidavit , that the
Employees would not seek the enforcement of the arbitration award
pending the outcome of this judgment. The Court decided, nonetheless, to
entertain the merits of the application.
[2] The opposition to the application is based on the contention that the
review application has lapsed and, accordingly, execution should not be
stayed because there is no pending review application. In support of this
proposition, regard may be had to Cheou v Department of Justice and
Constitutional Development Limpopo and Others
1, Sidas Security v
Commission for Conciliation, Mediation and Arbitration and Others 2 and
Department of Higher Education v Ramoshowana NO and Others 3 in
terms of which reference is made, inter alia , to City of Tshwane
1 [2025] 4 BLLR 419 (LAC)
2 (2022) 43 ILJ 934 (LC)
3 [2026] ZALCJHB 46 (15 February 2026)
3
Metropolitan Municipality v South African Local Government Bargaining
Council and Others.4
The argument on behalf of the Employees
[3] Shorn of all elaboration, the argument presented on behalf of the
Employees was that after the lapse of a period of 12 months since the
lodging of the review application without there having been a request for a
hearing date, the review application automatically lapsed. In support of this
argument, the Employees relied on Directive 01 of 2025: Implementation
of Court Online Electronic Platform in the Labour Court (the Directive).
[4] It is helpful , at the outset, to set the Employees' case against the proper
historical context. I n terms of the erstwhile Practice Manual of the Labour
Court of South Africa 2 April 2013 (the Practice Manual) ,
5 the following
provision found application:
“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
good cause is shown why the application should not to be archived or be
removed from the archive.”
[5] Accordingly, there was an automatic lapsing or archiving of a review
application if all the papers had not been filed and a date had not been
sought within 12 months . With the advent of the new rules in July 2024,
the Practice Manual was repealed. Although some of the provisions in the
Practice Manual found their way into the new Rules, clause 11.2.7 was not
one of them. Rule 37(25) addresses the situation in which pleadings have
closed in a review application. It provides as follows:
4 [2025] 11 BLLR 1145 (LAC); (2025) 46 ILJ 2840 (LAC)
4 [2025] 11 BLLR 1145 (LAC); (2025) 46 ILJ 2840 (LAC)
5 It was submitted on behalf of the Employees that the Practice Manual found application. The
submission was obviously wrong because the review application was launched on
16 September 2024 after the Practice Manual had been replaced by the new rules.
4
“After receipt of any replying affidavit or the expiry of the time limit for filing
a replying affidavit (whichever occurs first), the applicant must index and
paginate the file in terms of rule 29(3), with separate sections containing
the pleadings and affidavits, the relevant notices, and the record of the
proceedings under review, and within 10 days of the expiry of the time limit
contemplated in this subrule, apply to the registrar for a hearing date. If the
applicant fails to apply for a hearing date within the prescribed period, the
respondent may apply for a date.”
[6] As appears from the above quotation, there is no provision for the
automatic lapsing of a review application after the expiry of 12 months, or
any period for that matter . The lapsing provision has been replaced with a
provision that a request for a date must be made within 10 days of the
expiry of the period in “this sub -rule”.6 Should there be non- compliance
with this time period and should this be an issue, then, if anything, what
would be required would be an application for condonation for non-
compliance with the Rule. This outworking is distinguishable from the
situation where a review application lapses , and, consequently, what is
required is a substantive application for reinstatement or revival to place
the matter before the Court.
[7] The drafters thus took a deliberate decision to remove the 12-month
period and the lapsing provision, evidently being of the view that it was not
appropriate to incorporate it into the new Rules. This is to be contrasted
with another lapsing provision, namely clause 11.2.3 of the Practice
Manual, which was in fact incorporated in the Rules , albeit with one
qualification.
7
6Although the Rule is unclear, it appears to contemplate that there are 10 court days to index
and paginate the file, Rule 29(1) and thereafter there is a further 10 days within which an
applicant may apply to the Registrar for a hearing date.
applicant may apply to the Registrar for a hearing date.
7 In terms of the current Rules, a review application will lapse if the full record as not filed within
60 days of the notification having been received from the Registrar (see Rule 37(13) ).
Presumably, this refinement (the reference to the full record) was included to address the
endless difficulties which litigants have experienced when it comes to obtaining records from
either the Commission for Conciliation, Mediation and Arbitration (the CCMA) or the Bargaining
Council and to address the effects of South African Police Services v Coericius and Others
[2023] 1 BLLR 28 (LAC) in terms of which the Labour Appeal Court found that because there is
no provision in the Rules for filing part of the record, the delivery of part of the record does not
prevent a review application from lapsing in terms of clause 11.2.3 of the Practice Manual.
5
[8] To illustrate the point further , not only has there been a decision by the
drafters to remove the 12-month lapsing mechanism, but Rule 37(25) itself
indicates what is to be done if a respondent in a review application is of
the view that the prosecution of the review application is being delayed. It
provides that a respondent may apply for a date (at any stage) if the
applicant does not apply for a date.
8 Without wishing to state the obvious,
if a review application automatically lapse s after the passage of a 12-
month period, then the Rule would be non -sensical, as it would not be
competent for the respondent to apply for a date in respect of a lapsed
review application.
The first difficulty with the argument of the Employees
[9] The immediate difficulty with the argument advanced on behalf of the
Employees, which is based on the interpretation of a directive (not the
Rules), is that a directive cannot override a provision in the Rules. The
Rules constitute subordinate legislation. Where a directive contradicts a
Rule, it would be ultra vires such subordinate legislation and should be
treated as pro non scripto.
[10] In National Director of Public Prosecutions (Ex Parte Application),
9 the
Supreme Court of Appeal explained as follows:
“[19] Practice directives provide essential guidance for the daily functioning
of the courts. Practice directives may not derogate from legislation,
the common law or rules of court that have obligatory force. A statute
that permits the use of a procedure so as to make its enforcement
effective must be adhered to. The competence of the courts to give
practice directives is an important means by which the work of the
courts may be carried out. However, practice directives must facilitate
what a statute requires. Practice directives should not place obstacles
in the way of achieving the objects of a statute.” (own emphasis)
8 The Court does not express a view on whether a respondent, in such circumstances, may
have other remedies.
have other remedies.
9 [2021] ZASCA 142; 2022 (1) SACR 1 (SCA) (7 October 2021)
6
[11] Section 159 of the LRA establishes a Rules Board which is tasked, inter
alia, with making and repealing rules and publishing any Rules which it
makes, alters or repeals, in the Government Gazette.
[12] In Mthembu v Unique Air, Parnis Airport Maintenance Services (Pty)
Limited v CCMA and Others 10, as referred to in Inxuba Yethemba
Municipality v South African Local Government Bargaining Council and
Others,
11 Landman J explained the position, with reference to the
erstwhile Rules of the Labour Court, as follows:
”[2] ...
The Registrar has followed this direction. The Registrar cannot be
criticised by this court for following a direction issued to her by the Judge
President of this court. However, when the matter reaches court, the
court must decide whether the Judge-President's direction takes
precedence over the rules of the Labour Court. The rules of a court of
law constitutes subordinate legislation. See Jones & Buckle, The Civil
Practice of the Magistrates' Court of South Africa, Vol 1, 33.
I am of the opinion that the Rules of the Labour Court, which are issued
by the Rules Board, also constitute subordinate legislation. I find that
subordinate legislation cannot be overruled by a directive which is of an
administrative nature. In these circumstances I intend to follow the rules
until such a time as the rules have been amended.” (own emphasis)
[13] In conclusion, because directives cannot prevail over R ules published
under legislation and given the fact that it was the intention of the drafters
of the Rules to remove, and thus to exclude, the 12- month lapsing
provision, it follows that, insofar as any directive may provide otherwise
and may, as the Employees suggest, seek to resurrect the 12 -month
lapsing period, such directive would be unenforceable.
10 [2001] 11 BLLR 1246 (LC)
11 (PR41/2020) [2022] ZALCPE 1 (31 January 2022) at para [51]
7
Analysis of the argument presented on behalf of the Employees
Introduction
[14] Insofar as it may be necessary to do so, I , in any event, now turn to the
case of the Employees, which is based on the Directive. The case made
out on behalf of the Employees is based on items 11 to 13 of a compliance
checklist relating to review applications (the Checklist) , which is appended
to the Directive.
The Checklist
[15] It seems to me that the Checklist, as with the other checklists appended to
the Directive, is a compliance tool, a type of administrative aid created for
the benefit of the Registrar 12 and her staff . It is primarily a verification
mechanism to ensure that the correct procedures are followed and that ,
when a file reaches the desk of the Presiding Judge, it is ripe for hearing.
Like all checklists, it may oversimplify the procedures contained in the
Rules.
[16] Although the various checklists are referenced in the Directive's index,
they are unnumbered and not referred to in the body of the Directive.
Looking at the document holistically, it seems to me that they fall outside
of the Directive in the sense that it was not intended that they form part of
the Directive itself. They were seemingly included in the document for the
sake of expediency but are, so to speak, for ‘office use’. They are there to
assist the Registrar in managing the Court files and in ensuring
compliance with both the Rules and the Directive . That being so, I do not
see how they can have any legal significance. This is so because in
answering the question of whether a case has been validly and properly
prosecuted, the test is whether there has been compliance with the Rules
12 I would comment that the manner in which the Checklist is formulated is, in one respect,
problematic. It contains placeholders for the “firm’s name” and a “name and surname” as well as
for a “signature”. On the face of it, this suggests that there is an obligation, presumably on the
legal representatives of an applicant, to participate in the vetting process; yet, as a matter of
common sense, the Directive should be for the use of the Registrar , who must, inter alia, check
whether a matter is ready to be enrolled. The Directive provides as much as paras 8.1 and 8.2.
8
and the Directive and it is self-evidently not whether there has been
compliance with the checklists themselves.
Summary of the Employee’s argument
[17] As a reference point, it is convenient to reproduce the Checklist below.
“Compliance Checklist for Reviews
CASE NO:___________________________
DATE CHECKED: _____________________
BEFORE THE MATTER IS ENROLLED FOR HEARING, CHECK IF:
PLEADINGS/NOTICES TO BE
FILED
DATE FILED YES / NO COMMENTS
1. Is there a Labour Court case
number allocated and does the
case number appear on the
document
2. Is there proof of service of the
application on the respondent(s)
and a service affidavit (Proof of
service in terms of Rule 9(2)) If
one of the respondents is a
State department, ensure that
service was effected on the
State Attorney
3. Notice of Motion with a
founding affidavit filed
CHECK
COMPLIANCE OF
RULE 37(2)
4. Is the arbitrator cited as a
party
9
5. Is the CCMA or bargaining
council cited as a party 6. Is a
copy of the award/ ruling
attached to the application
6. Is a copy of the award/ ruling
attached to the application
7. Is the copy of the award /
ruling complete and signed
4. Notice of intention to oppose,
if any
Within 10 days from
the day on which the
application is served
Rule 37 (2)
5. Rule Notice 37(14)
(Transcribed record)
CHECK WHEN
RULE 37(9) and (11)
NOTICE WAS SENT
TO PARTIES
(RECORD TO BE
FILED WITHIN 60
DAYS
THEREAFTER)
6. Rule 37(20) Notice within 5 days after
the transcribed
record has been
filed
7. Supplementary affidavit (This
is not compulsory)
8. Answering affidavit (In the
event that the application is
opposed) Rule 37(22)
WITHIN 10 DAYS
AFTER RECEIPT
OF THE RECORD
10
AND NOTICE OF
AMENDMENT OR
NOTICE THAT THE
APPLICANT
STANDS BY ITS
NOTICE OF
MOTION
9. Replying Affidavit (This is not
compulsory) Rule 37(24)
WITHIN 5 DAYS
FROM THE DAY
ON WHICH ANY
NOTICE OF
OPPOSITION AND
ANSWERING
AFFIDAVIT ARE
DELIVERED.
10. Is the file paginated in
compliance with Rule 23 (3)
Rule 37(2)
11. Request for Set down. If
such a request is filed, the file
must be processed for set down
Rule 37(25)
TO BE FILED
WITHIN 12
MONTHS OF THE
FILING OF THE
APPLICATION
12. If a request to archive a file
is filed, it must be dealt with
immediately and such request
should not be merely placed in
the file with no further action
13. Where there is no formal
request for the archiving of a
file, the provisions of Rule 69(2)
apply and files are to be dealt
11
with accordingly when the
record was filed late, or a period
of 6 months has elapsed without
any steps taken by the applicant
from the date of filing the
application or the date of last
process filed
Applicant’s heads of argument
Rule 40 (2)
WITHIN A PERIOD
OF 15 DAYS
AFTER THE DATE
ON WHICH
PLEADINGS
CLOSE. REQUIRED
IN UNOPPOSED
REVIEW
APPLICATIONS
ONLY
Respondent’s heads of
arguments Rule 40(4)
MUST DELIVER
HEADS OF
ARGUMENT NO
LATER THAN 15
DAYS PRIOR TO
THE HEARING OF
AN OPPOSED
APPLICATION.
IF MATTER IS DEEMED WITHDRAWN OR ARCHIVED MATTER WILL NOT BE
SET DOWN UNLESS A REINSTATEMENT APPLICATION HAS BEEN RECEIVED.
Rule 69(3)
Recommendation:
12
NAME & SURNAME :
FIRM’S NAME :
SIGNATURE : DATE:
[18] If the Court correctly understands the argument presented on behalf of the
Employees, they are relying on items 11 to 13 of the Checklist. They place
particular store in a sentence, which is in the column headed
“COMMENTS”, adjacent to the item dealing with the request for a set
down (item 11). Under this heading, it is stated as follows:
“TO BE FILED WITHIN 12 MONTHS OF THE FILING OF THE
APPLICATION”
[19] In short, the Checklist appears to indicate that a request for the allocation
of a date should be made within 12 months of lodging the review
application, albeit that the indication is under the heading “ COMMENTS”
which, for want of a better expression, is curious. There is , confusingly so,
no indication of where the 12-month period comes from.13 The Checklist is
intended to be a tool to assist the Registrar and her staff in cross-
referencing the Rules and the Directive; b ut neither of these documents
contain a reference to 12 months . The Court is driven to the conclusion
that the reference to the 12-month period is an error, if for no other reason
than because, as mentioned, there is no reference to a 12 month period in
either the Directive or the Rules and Rule 37(25) provides the applicable
time period (10 days) within which an application for a date must be made.
For the sake of completeness, I note that the LRA references a six month
period.
14
13 One possible explanation is that the insertion of a 12- month period is detritus in the form of a
stray remnant from clause 11.2.7 of the Practice Manual which was erroneously carried over
into the Checklist.
14 Section 145(5) of the LRA obliges a party to apply for a date six months after the lodging of a
review application. But this obligation is subject to the Rules which has been interpreted to
mean that an application should not be made in terms of this section if a matter is not ripe for
hearing. Cf Department of Higher Education v Ramoshowana NO and Others (2025/239196)
[2026] ZALCJHB 46 (15 February 2026) at para [46]
13
[20] The argument advanced on behalf of the Employees was not always easy
to follow. The grounds relied on in the opposition shifted to a degree until
they crystallised in the supplementary submissions . These submissions
were made against the backdrop of a torturous analysis of the Directive
and the Checklist . In short, the argument advanced on behalf of the
Employees appears to be that the inclusion, in the Checklist, of the
sentence stipulating that applications for dates must be filed within 12
months of the filing of the application, in and of itself, means , or has the
result that , if there is no request for a set down within 12 months of the
filing of the application, the review application lapses.
[21] In developing this argument, the Employees, inter alia, referred to clauses
8.1 and 8.2 of the Directive which provide as follows:
“8.1 Once there is compliance with the Rules of the Labour Court
and the provisions of this Practice Directive, the Applicant’s
legal representative must no later than the prescribed time
periods, upload the notice of request for enrolment, which must
correspond with the Registrar’s Provisional Roll, in the correct
section titled “Final notice of set down” on the case file and
invite the set-down office to the case.
8.2 The Registrar will review the notice of request for enrolment for
compliance with the relevant timeframes in the Rules of the
Labour Court and applicable Directives; and confirm the final
enrolment and hearing date by noting the description of the roll
whereon the matter is enrolled.”
[22] The Employees further referred to clause 5.14 of the Directive, which
provides as follows:
“5.14 The Office of the Registrar is specifically directed and mandated:
(a) to disregard/reject matters that are non-compliant with this
Directive.
(b) not to allocate dates for matters that are noncompliant with this
Directive.”
14
[23] Thus, stripped of all embroidery, if the Court understood the argument
correctly, it was that because there has not been a request for a date
within 12 months, there has been non-compliance with the Directive, such
non-compliance cannot be remedied and therefore the Registrar is not
permitted to set the review application down and for that reason it should
be regarded as having lapsed.
[24] Leaving aside the circumstance that the 12- month period contained in the
Checklist is inconsistent with Rule 37(25), which provides for 10 days, and
is, for that reason, unenforceable simpliciter , in my view the argument
advanced on behalf of Employees is, in any event, flawed and would fail
even if there was no conflict with the Rules. I say this for two self -standing
reasons.
[25] Firstly, as mentioned, what is stated under the heading “ COMMENTS” is
not part of the Directive (it is part of the Checklist) . Accordingly, it would
not be affected by clauses 8.1 and 8.2 as well as 5.14 of the Directive.
Those clauses are concerned with compliance with the Directive and do
not apply to the Checklist. T he purpose of the respective checklists is
surely not to create new rights or obligations; rather, the checklists are, as
mentioned, screening mechanisms aimed at ensuring compliance with the
Rules and the Directive.
[26] To further illustrate the fallacy of the argument presented on behalf of the
Employees, taken to its logical conclusion it would mean that applications
brought in the normal course (which are not considered to be urgent),
would also automatically lapse after the 12- month period, because there
exists the same provision in the c hecklist for ordinary applications.
15 In my
view, it could not conceivably have been the intention of the drafters that a
new 12 month lapsing provision be introduced through the Directive for all
ordinary applications.
[27] Secondly, to argue that , because compliance with a time period is
[27] Secondly, to argue that , because compliance with a time period is
peremptory, this means that if there is non- compliance, an application
15 Compliance Checklist for Applications item 8
15
must be deemed to have lapsed is a non sequitur . Non-compliance with a
time period does not automatically result in the lapsing of proceedings.
The Labour Court has inherent jurisdiction to regulate its proceedings
when it comes to matters within its jurisdiction, and to condone any non-
compliance.
[28] More importantly, and decisively so, the Checklist itself expressly provides,
at item 13, that Rule 69(2) applies. As has been held by the Labour
Appeal Court, 16 Rule 69(2) does not envisage automatic lapsing. Before
there can be any question of lapsing, there must be a notification from the
Registrar. It is common cause that this did not happen in this matter.
[29] In conclusion, the Employees have, through an ouroboros of deduction, a
vortex of circular reasoning, sought to persuade the Court to arrive at the
fundamentally unsound conclusion that the very instrument utilised to
verify whether there has been compliance with the Directive or the Rules
can, itself, somehow be the source of a right or an obligation. To
exacerbate matters, the conclusion so urged upon the Court is in conflict
with the Rules and the analysis of the Directive and the Checklist is, in any
event, flawed for the reasons set out above.
Challenge to the validity of the Security Bond
[30] The Employees also sought , indirectly, to raise a challenge to the validity
of the Security Bond. In this regard they, so to speak, sought to smuggle
this challenge into the answering affidavit. The Court is not prepared to
entertain the challenge for three reasons. Firstly, no relief was sought in
respect of the Security Bond in the answering affidavit. It would seem that
the Employees wanted the Court, contrary to the omnia praesumuntur
principle, to simply disregard the Security Bond which, on the face of it,
was valid. Secondly, all things considered, in my view the proper course to
have followed would have been for the Employees to have brought an
have followed would have been for the Employees to have brought an
interlocutory application contemplated by the Rules particularly in
circumstances where the challenge would necessarily involve the
16 Gololo v Limpopo Department Economic Development Environment and Tourism and Others
(2025) 46 ILJ 1985 (LAC); [2025] 9 BLLR 925 (LAC) at paras [10] to [11]
16
production of evidence and thus does not fall within the province of a legal
point. Thirdly, the Employees have known about the Security B ond since
the review application was lodged on 16 September 2024. At no stage did
they contend that it was defective and in fact sought to execute on the
award without challenging it. It was not for the Employees to wait for three
months and then to ask the Court to decide this issue on an urgent basis,
as it were, through the back door.
Costs
[31] Notwithstanding the circumstance that the opposition lacked merit, in my
view, as is the usual order when it comes to interdicts granted pendente
lite, the costs should be determined by the review court.
17
Order
1. Insofar as it may be necessary to do so, it is declared that the matter is
urgent and that any non-compliance with the Rules is condoned.
2. The enforcement of the award issued by Commissioner Veesal Soni
under case number KPD022105 dated 2 August 2024 is stayed pending
the finalization of the review application launched under case number
2025-238394.
3. The attachment made by the Third Respondent (the Sheriff New
Hanover) of goods contained in the inventory attached as annexure “X”
to the notice of motion is set aside.
4. No order is made regarding the challenge to the bond of security.
17 Cf Young v Coega Development Corporation (Pty) Ltd 2009 (6) SA 118 (ECP); (2009) 30 ILJ
1776 (ECP) at para [39]
17
5. Costs of the application will be determined by the Court hearing the
review application.
_______________________
P N KROON
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: NSV Mfeka
Instructed by: Mdledle Incorporated Attorneys
For the Respondent: Mr MA Mirza of Mirza and Associates Incorporated